Joseph A. Russ, James Whipple, and the Covelo Indian Community of the Round Valley Indian Reservation, in Intervention and v. Richard E. Wilkins, And

This action concerns the boundaries of the Round Valley Indian Reservation in Mendocino County, California, where the members of the Covelo Indian Community reside. The appellants contend that the Round Valley Indian Reservation, as established by- a Congressional Act of 1873, was reduced in size by a Congressional Act of 1890. The appellees maintain that the Act of 1890 merely authorized the sale to non-Indians of a portion of the reservation land outside certain boundaries, without altering the boundaries of the reservation.

Appellees Russ and Whipple, enrolled members of the Covelo Indian Community, killed a deer on land that was within the reservation as established in 1873, but was outside the boundaries established pursuant to the Act of 1890. The appellees were apprehended and the deer was confiscated by appellant Wilkins, a warden of the California Department of Fish and Game. The issue presented by this appeal is whether the site upon which the deer was killed is within the Round Valley Indian Reservation and thus is “Indian country,” where the California fish and game laws do not apply to the Indians, at least as to non-commercial hunting and fishing.

Appellees Russ…

dissenting:

The persuasive effect of an excellent majority opinion makes it difficult to dissent. The ultimate question is, of course, the effect of the Act of 1890, 26 Stat. 658 , upon the admitted establishment of the Round Valley Indian Reservation by the Act of 1873, 17 Stat. 633 . If the Act of 1890 disestablished the rights of the tribe to the previously established boundary lines created by the Act of 1873 (except for approximately 43,860 acres of both valley and mountain lands which were admittedly still reserved as the Round Valley Indian Reservation by the Act of 1890), then the majority is correct in its analysis of the problem. If however, the effect of the Act of 1890 was merely to “open up” the 63,680 acres for non-Indian settlement, or if the Act of 1890 is ambiguous as to its effect, then the district court must be affirmed.

I

I start with the premise that, as a general rule, ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians. Bryan v. Itasca County, 426 U.S. 373, 392 , 96 S.Ct. 2102, 2112 , 48 L.Ed.2d 710 (1976); Washington v. Yakima Indian Nation, 439 U.S. 463, 484 , 99 S.Ct. 740, 753 , 58 L.Ed.2d 740…

624 F.2d 914 Joseph A. RUSS, James Whipple, and the Covelo Indian Community of the Round Valley Indian Reservation, Plaintiffs, Plaintiff in Intervention and Appellees, v. Richard E. WILKINS et al., Defendants and Appellants. No. 76-2776. United States Court of Appeals, Ninth Circuit. Submitted Sept. 11, 1978. Decided Aug. 1, 1980. Charles W. Getz, IV, Cal. Dept. of Justice, San Francisco, Cal., for defendants and appellants. Michael A. McCord, U.S. Dept. of Justice, Washington, D. C., for United States, amicus curiae. Art Bunce, Karshmer & Bunce, Escondido, Cal., James F. King, Jr. Willits, Cal., Cal. Indian Legal Services, Ukiah, Cal., for plaintiffs, plaintiff in intervention and appellees. Appeal from the United States District Court for the Northern District of California. Before BROWNING and HUG, Circuit Judges, and HOFFMAN * , Senior District Judge. HUG, Circuit Judge: 1 This action concerns the boundaries of the Round Valley Indian Reservation in Mendocino County, California, where the members of the Covelo Indian Community reside. The appellants contend that the Round Valley Indian Reservation, as established by a Congressional Act of 1873, was reduced in size by a…