NELSON v. YUROK

5 NICS App. 119, NELSON v. YUROK (May 1999)

IN THE YUROK TRIBAL COURT OF APPEALS

YUROK INDIAN RESERVATION

KLAMATH, CALIFORNIA

Richard Nelson, III, Appellant,

Yurok Tribe, Appellee.

No. 96-006 (May 7, 1999)

SUMMARY

Appellant appeals an order of the Yurok Tribal Court, alleging that he was denied procedural and/or substantive due process in his de novo trial and that his conviction under the Yurok Tribal Fishing Rights Ordinance (YTRFO) violates Article IX of the Yurok Constitution, which protects “traditional practices” from infringement by acts of the Yurok Tribal Council. The Court of Appeals holds that the Appellant failed to establish a prima facie cases for either his equal protection claim or his allegations of procedural and substantive due process violations.

Article IV, §5 of the Yurok Constitution vests the Tribal Council with the legislative power of the Yurok Tribe. The judicial power is vested in the tribal court. Yurok Constitution, article VIII. The purpose of the YTFRO is to protect the fishery resources and tribal fishing rights by establishing procedures for the conservation of fish stock and exercise of federally reserved fishing rights.

The tribe’s exercise of its governmental powers was based upon a legitimate, rational, constitutionally provided mechanism to protect its tribal resources and, therefore, there was no constitutional violation when the Yurok Tribe exercised its governmental authority to protect its resources by limiting Appellant’s right to fish in accordance with the tribe’s Ordiance and Harvest Management Plan. Affirmed.

FULL TEXT

Before: Fred Gabourie, Sr., Chief Justice; Douglas W. Luna, Justice; Michelle Demmert, Justice.

I. INTRODUCTION

This matter came before the Yurok Tribal Court of Appeals pursuant to Appellant’s Notice of Appeal filed on October 13, 1997. Appellant appeals the Opinion and Order of the Yurok Tribal Court. The tribal court, after a trial de novo, found the Appellant had violated the Yurok Tribal Fishing Rights Ordinance (YTFRO) and imposed the maximum fine of $200, which was suspended

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on condition that Appellant comply with tribal law for the following year. The Special Judge, appointed for purposes of holding a de novo trial, restored Appellant’s previously suspended fishing rights on the condition that he comply with YTFRO for one year.

II. JURISDICTION

This Court has personal jurisdiction over the Appellant because he is an enrolled member of the federally recognized Yurok Indian Tribe. The act which is the subject of this appeal occurred within the exterior boundaries of the Yurok Indian Reservation, giving rise to territorial as well as personal jurisdiction. This Court has subject matter jurisdiction in this case pursuant to Yurok Tribal Court Interim Ordinance and YTFRO § 8(a) concerning permissible and prohibited fishing. The Yurok Reservation is open to the taking of anadromous fish by eligible fishers for subsistence and ceremonial purposes unless specifically closed by YTFRO or a properly adopted pre-season or in- season adjustment.

III. FACTUAL BACKGROUND

On Wednesday, September 25, 1996, at approximately 4:30 p.m., California Fish and Game Warden, Richard Banko, observed Appellant in the process of dip-net fishing at the mouth of the Klamath River and notified the Bureau of Indian Affairs (BIA). At approximately 5:30 p.m., BIA officer, Tami Fletcher, arrived at the scene. Officer Fletcher found Appellant in possession of several salmon and cited Appellant pursuant to YTFRO § 8(a) for fishing during closure hours pursuant to the Yurok Tribe’s 1996 Harvest Management Plan (Plan). The BIA seized Appellant’s dip-net and salmon, as provided for in the YTFRO.

IV. PROCEDURAL BACKGROUND

After two no-shows and contempt citations by the tribal court, Appellant finally appeared at his first trial on February 21, 1997. At the first trial, Appellant was convicted and fined $175. His fishing rights were suspended pending payment of the fine. Due to a tape recorder malfunction, there was no record for appeal as required by tribal law. The Yurok Tribal Council agreed to hear Appellant’s appeal.¹

During the appeal hearing before the tribal council, Appellant again freely admitted fishing during closure hours.²Appellant argued that both the tribal court judge and the tribal prosecutor were biased against him, and he requested a different prosecutor and judge for the trial de novo³. The tribal council accommodated Appellant’s concerns by appointing a special prosecutor for the retrial, retaining a Special Judge, and providing him a trial de novo.

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At his trial de novo, held on September 5, 1997, Appellant for a third time freely admitted that he had been fishing during closure hours⁴. The Special Judge ruled on October 2, 1997, that the Appellant had violated the YTFRO § 8(a) and imposed the maximum fine of $200, which was suspended on condition that Appellant comply with tribal law for the following year. The Special Judge restored Appellant’s previously suspended fishing rights.⁵

Under the Yurok Tribal Court Rules of Appellate Procedure, the Court of Appeals “shall be convened to determine whether mistakes of law were made by the lower court.” Rule 1(A). The appellate court “shall have no jurisdiction to hear appeals based upon any other ground.” Rule 1(B).

On October 13, 1997, Appellant filed his Notice of Appeal citing Article IX of the Constitution of the Yurok Tribe, the Yurok Rules of Court, the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8), and Amendments V and VI of the U.S. Constitution. On January 9, 1998, the tribe filed its Appellate Brief.

On February 12, 1999, this Court accepted the Appellant’s appeal, ordered a briefing schedule for reply briefs, and scheduled oral argument to take place at the Yurok Tribal Courtroom at 10:00 a.m. on Friday, March 26, 1999. Due to scheduling difficulties, on March 17, 1999, an Order Amending Time for Oral Argument was issued, rescheduling the oral arguments for 9:00 a.m., on Friday, March 26, 1999. Court records indicate that on March 18, 1999, Appellant was sent by certified mail, a copy of the Order Amending Time for Oral Argument.

On March 26, 1999, this Court was convened at 9:00 a.m. The tribe appeared and was ready to proceed. Appellant was not present. The court recessed until 10:00 a.m., at which time it reconvened as was previously scheduled; again the Appellant was not present. The tribe presented its arguments in response to the Appellant’s appeal.

V. ISSUES ON APPEAL

In his Notice of Appeal, Appellant lists several grounds for his appeal from the de novo trial decision. Since the Appellant failed to submit a written brief and failed to appear for the scheduled oral arguments, the grounds for his appeal are based upon his Notice of Appeal and consolidated into two issues:

1) Was the Appellant denied procedural or substantive due process in the de novo trial?

2) Did the Appellant’s conviction violate Article IX of the Yurok Constitution which protects “traditional practices” from infringement by acts of the Yurok Tribal Council?

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VI. DISCUSSION

Even though the Appellant failed to do more then file a notice of appeal, he raises an issue worth addressing. That is, in the exercise of its authority, may a tribe regulate tribal members’ exercise of traditional practices regarding their right to fish?

Throughout this case the Appellant represented himself. It is because of this pro se status that we will discuss first in general terms the applicable tribal law, the legal concepts of due process and equal protection, and apply them to the Appellant’s specific arguments raised in his Notice of Appeal. We will then discuss the second constitutional issue and the underlying feature of his case regarding the rights of individual tribal members in relationship to their tribal government.

A. Applicable Tribal Law

The laws applicable to Appellant’s appeal are the Yurok Constitution, the YTFRO, the Yurok Tribe’s 1996 Harvest Management Plan, and the tribe’s September 11, 1996, “Advance Notice of In-Season Adjustment.”

The Yurok are a fishing people and the tribe’s Constitution and fishing laws are expressly designed to conserve and restore the severely depleted Klamath River anadromous fishery for current members and future generations. The first paragraph of the Preamble to the Yurok Constitution states:

Our people have always lived on this sacred and wondrous land along the Pacific Coast and inland on the Klamath River, since the Spirit People, Wo-ge’, made things ready for us and the Creator, Ko-won-no-ekc-on Ne-ka-nup-ceo, placed us here. From the beginning, we have followed all the laws of the Creator, which became the whole fabric of our tribal sovereignty. In times past and now Yurok people bless the deep river, the tall redwood trees, the rocks, the mounds, and the trails. We pray for the health of all the animals, and prudently harvest and manage the great salmon runs and herds of deer and elk. We never waste and use every bit of the salmon, deer, elk, sturgeon, eels, seaweed, mussels, candlefish, otters, sea lions, seals, whales, and other ocean and river animals. We also have practiced our stewardship of the land in the prairies and forests through controlled burns that improve wildlife habitat and enhance the health and growth of the tan oak acorns, hazelnuts, pepperwood nuts, berries, grasses, and bushes, all of which are used and provide materials for baskets, fabrics, and utensils.

The last paragraph of the Preamble expressly provides:

Therefore, in order to exercise the inherent sovereignty of the Yurok Tribe, we adopt this Constitution in order to:

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1) Preserve forever the survival of our tribe and protect it from forces which may threaten its existence;

2) Uphold and protect our tribal sovereignty which has existed from time immemorial and which remains undiminished;

3) Reclaim the tribal land base within the Yurok Reservation and enlarge the reservation boundaries to the maximum extent possible within the ancestral lands of our tribe and/or within any compensatory land area;

4) Preserve and promote our culture, language, and religious beliefs and practices, and pass them on to our children, our grandchildren, and to their children and grandchildren, on and on, forever;

5) Provide for the health, education, economy, and social well- being of our members and future members;

6) Restore, enhance, and manage the tribal fishery, tribal water rights, tribal forests, and all other natural resources; and

7) Insure peace, harmony, and protection of individual human rights among our members and among others who may come within the jurisdiction of our tribal government.

Article IV, § 5 of the Yurok Constitution vests the Yurok Tribal Council with “the legislative power of the Yurok Tribe,” including:

[T]he authority to enact legislation, rules and regulations not inconsistent with this Constitution; to further the objectives of the Yurok Tribe as reflected in the Preamble to this Constitution; administer and regulate affairs, persons and transactions within Tribal Territory; enact civil and criminal laws . . . manage tribal lands and assets. . . .⁶

The judicial power of the Yurok Tribe is vested in the tribal court. Yurok Const. Art. VIII.

The YTFRO, as amended June 6, 1996, “was issued by the authority of the Yurok Tribal Council as provided by the Constitution of the Yurok Tribe.” YTFRO § 1(a) provides:

The purpose of this ordinance is to protect the fishery resources and therefore, tribal fishing rights by establishing procedures for the conservation of fish stock and exercise of federally reserved fishing rights. This YTFRO is intended to allow fishing opportunity to Yurok tribal members, while at the same time assuring adequate spawning escapement and the attainment of conservation objectives.⁷

5 NICS App. 119, NELSON v. YUROK (May 1999) p. 124

Section 8(p) of the YTFRO provides: “Dip-net and hook-and-line fishing: Eligible Indians may engage in dip-net fishing or angling at all times on the reservation except when expressly prohibited.” The YTFRO § 10(a) provides that “the Yurok Tribal Council shall adopt pre-season and in-season changes to this YTFRO for resource conservation and management purposes.” Notification of such adjustments “shall be posted at tribal offices and other places as determined by the tribal council.” YTFRO § 10(c).

The YTFRO §1(d) and §2(b) provides for prosecution in tribal court, or other courts of competent jurisdiction, as well as penalties for any violations. The first violation of §8 by illegal fishing is punishable by “forfeiture of all fish seized and by a fine of not less than fifty dollars ($50) nor more than two hundred dollars ($200). YTFRO §13(a)(1). Enforcement is accomplished by law enforcement officers pursuant to YTFRO §12(b).

The Yurok Tribe’s 1996 Harvest Management Plan (“Plan”) sets forth the fisheries resource management requirements of the Tribe for 1996. The Plan specifies that in Area 1, which is the mouth of the Klamath River where Appellant was fishing, subsistence fishing after August 1 is allowed “during the same time period as commercial fishing,” unless the commercial fishery is closed, in which case subsistence fishing is allowed at all times (except 9 a.m. to 5 p.m. Monday). Plan § III (B). In turn, commercial fishing in Area 1 was allowed only before 6 a.m. and after 6 p.m. on the day Appellant was fishing at 4 p.m. Plan §IV. As set forth in the September 11, 1996, “Advance Notice of In-Season Adjustment” (“Notice”), the commercial season was extended through September 30, 1996, and “regulations for subsistence fishing remain unchanged.”

In short, on the day in question, Wednesday, September 25, 1996, Appellant was entitled to fish at the mouth of the Klamath with his dip-net before 6:00 a.m. and after 6:00 p.m. Instead the Appellant chose to fish for an unknown number of hours before the 6:00 p.m opening.⁸Appellant was first observed fishing at 4:30 p.m. and was cited at 5:30 p.m.

B. Procedural Due Process and Equal Protection

The Special Trial Judge correctly noted in his Opinion and Order:

Historically, federal law has shaped the existence of tribal communities in the United States. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831). However, federal law has not completely pre-empted tribal sovereignty. Tribal sovereignty is the right of the tribe to exercise self-governance within the exterior boundaries of its territory. (See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670 (1978)).

In the case before us, the Yurok Tribe is a domestic dependent nation within the United States. Cherokee Nation, 30 U.S. 1 (1831). The Yurok Tribe is entitled to legislate and enforce its

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own laws.⁹

In his Notice of Appeal, the Appellant offers several equal protection and due process arguments. With regard to the equal protection arguments raised in his Notice of Appeal, we note the Appellant’s lack of effort to establish a prima facie case for an equal protection claim. We find no authority that requires this Court to second guess his efforts in establishing a prima facie equal protection case.

With regard to the due process arguments the Appellant raises in his Notice of Appeal, we note that many of these arguments were raised at the de novo trial and were correctly ruled upon by the Special Judge. We find no error as to how those arguments were resolved during the de novo trial and therefore, can find no procedural due process violations. In reaching this conclusion, we examine the Appellant’s arguments and explain why there were no procedural or substantive due process violations.

In his Notice of Appeal, Appellant argues that the de novo trial judge was “not a licensed attorney and therefore, not qualified to adjudicate a criminal proceeding as a matter of federal and tribal due process.”¹⁰Appellant cites no authority for this proposition.

The tribe argues that: (1) it is neither tribal law nor practice to require a tribal judge to be a licensed attorney; (2) federal law has no such requirement; and (3) there is no evidence in the record as to whether the trial judge is or is not a licensed attorney. We agree.

Appellant further argues that the Special Judge was biased due to purported contractual relationships with the tribe. We agree with the tribe that this is a factual, not a legal issue and therefore, is not subject to appeal. Further, there is no evidence in the record to support this accusation and we therefore find the Appellant’s accusation baseless. Even if it were true, it is legally irrelevant given Appellant’s admission of fishing during closure. Finally, we note that the Special Judge gave Appellant the opportunity to make a motion to remove the judge, an opportunity that Appellant declined.¹¹

Ironically, the Appellant appeals the use of the Special Judge that was appointed at his request to avoid any appearance of bias. This is the same judge who restored Appellant’s fishing rights and suspended the fine for Appellant’s admitted violation of tribal law. Still not satisfied, Appellant has the temerity to now disavow his prior demands and contend that he should have been tried by the original tribal prosecutor and the original tribal judge, who convicted him in the first trial. His contentions are simply vexatious.

Appellant complains that the tribe “unfairly hired a law firm” to prosecute him. The law firm

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is the tribe’s general counsel and was appointed to prosecute this case only because Appellant requested a new prosecutor.¹²There is no impropriety, much less a due process violation.

In his Notice of Appeal, Appellant further claims that the “trial judge illegally and arbitrarily increased the fine imposed in the first trial.” It was Appellant who demanded a trial de novo, which by definition erases the prior proceeding and begins a new proceeding from scratch. No tribal law or procedural rule precludes imposition of a higher or lower penalty in the second trial. On retrial the Special Judge suspended the fine, and Appellant will pay nothing if he complies with tribal law for one year. In the meantime, his fishing rights are restored.

Appellant has repeatedly and freely admitted that he was fishing at the time and place he was cited.¹³He has further admitted that he had prior notice and warning that he was fishing in violation of tribal law.¹⁴On appeal he implies for the first time, but does not directly state, that he may not have had adequate notice of the fishing restrictions due to insufficient publication by the tribe.

To accept Appellant’s notice argument is to ignore his repeated admissions that he had prior notice and had been warned that he was illegally fishing.¹⁵It is also to ignore his testimony that he knew at least two locations where the notices were posted. At the de novo trial, Appellant complained that where the notices are posted in Klamath, the glass cover sometimes fogs over, or the notice may be torn down.¹⁶The tribe correctly argues that the Appellant certainly knows how to contact the tribal officer or fisheries department in order to confirm current restrictions. Instead, Appellant admits that he takes no interest in, or responsibility for, tribal law: “When I go fishing, I just go fishing.”¹⁷It is this contention that is at the heart of this case.

Based upon the entire record, we conclude that the Appellant failed to establish a prima facie case for a procedural due process violation. Having failed to establish a procedural due process violation, we will nevertheless examine his due process violation claims to determine if there were any substantive due process violations.

C. Substantive Due Process

The Appellant raises a number of claims regarding the application of the United States Constitution to these tribal court proceedings. The Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302(8) applies some but not all of the U.S. Constitution’s Bill of Rights to all persons, including tribal members. The Yurok Constitution specifically incorporates the Indian Civil Rights in its Bill

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of Rights.¹⁸

Appellant argues that the tribe was required to appoint him legal counsel at the tribe’s expense. The Indian Civil Rights Act expressly disavows any right to paid counsel; it requires only that the tribe allow the Appellant, at his own expense, to have the assistance of counsel for his defense.¹⁹He is not entitled to a defense paid by the tribe.²⁰The fact that BIA officials acting on behalf of the tribe issued the citation does not change the fact that this is a tribal court proceeding in which the tribe is acting as an independent sovereign to prosecute a tribal member who violated tribal law. The tribe is not acting as an arm or agency of the United States, and the United States has no jurisdiction over this case.²¹ Under these circumstances, the Sixth Amendment of the Constitution simply does not apply.²²The Yurok Tribe does not have to provide paid legal counsel in a tribal court proceeding involving a tribal member and a fishing ordinance violation within the exterior boundaries of the reservation.

Appellant inexplicably states that the Special Judge prohibited him from “making an oral defense in [his] own behalf at trial.” To the contrary, the transcript shows that Appellant made a spirited defense, and that two witnesses spoke on his behalf. The Special Judge did prevent Appellant from reading verbatim a long, prepared speech about his rights under the U.S. Constitution. The Special Judge properly told him that Indian tribal governments were accountable through the Indian Civil Rights Act of 1968, and that the Constitution did not apply pursuant to Talton v. Mayes,²³but that his written speech, nevertheless, would be included in the record for the trial judge’s review in preparing his decision and order.²⁴There is no tribal or federal due process rule that a defendant must be allowed to recite at trial an irrelevant text. In reaching this conclusion we also note that Yurok Tribal Code, 1-05, Title 5 § 5.2 sets forth the obligations as to how the trial is to be conducted. The Special Judge conducted the de novo trial pursuant to this ordinance and also correctly protected the inherent rights of all trial judges to control the proceedings.

Despite his contention to the contrary, Appellant was not compelled to be a witness against himself. He never stated that he declined to testify, and he never asserted any right against self- incrimination. The Special Judge asked Appellant if he was representing himself, and Appellant voluntarily testified on his own behalf.²⁵Indeed, he wanted to read a lengthy statement. He cannot now complain that he was compelled to testify, or that once he voluntarily did so, that the Special Judge could not ask him questions.

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Appellant complains that he did not have notice of the witnesses against him. The tribe argues that there were no witnesses against him at the trial de novo because he freely admitted that he was fishing during closure hours.²⁶There was no need to call the citing officers.²⁷Moreover, Appellant had actual and constructive notice of the witnesses against him. Before his first trial, he was given written notice of the three citing officers who would testify against him.²⁸He cannot genuinely claim that he did not know who would testify against him at the trial de novo. Even were he entitled to a formal re-notice of the witnesses against him, any lack of such notice is harmless error, as no witness testified against him. Indeed, the trial judge gave Appellant an opportunity to question the citing officer, which Appellant declined to do.²⁹We also note that prior to the de novo trial, the Appellant failed to exercise his right to subpoena witnesses.³⁰

During the de novo trial the Special Judge correctly noted that the entire United States Constitution does not apply to this proceeding.³¹The Indian Civil Rights Act requires the tribe to apply due process under its tribal laws (25 U.S.C. § 1302 (8)), and here the tribe has done so in excess: not only did the tribe order a second trial de novo, despite Appellant’s repeated admissions of fishing during closure and repeated failure to appear, but the tribe granted Appellant’s request for a different prosecutor and a different judge when there was no reason to do so. The only “overt intervention of the Yurok Tribal Executive Branch” was the tribal council’s decision to bend over backwards to accommodate Appellant’s demands.³²

Finally, Appellant argues that he was “singled out for selective enforcement of the tribal fishing law.” The only evidence on this point is Appellant’s repeated statements at his various court appearances that he is not the only one who violates the tribe’s fishing ordinances. Even if this is true, a claim of selective enforcement requires far more than a showing that others break the law and do not get caught. There was neither selective enforcement nor a substantive due process violation in this case.

D. Constitutional Issue

The second major issue in this case is the Appellant’s claim that the fishing restrictions of the YTFRO and Plan violate the Yurok Constitution’s Article IX protection of “traditional practices,” specifically his supposed right to dip-net at any time and place he wants. He bases this argument on the ground that the tribal resource conservation laws are irrational and tribal members have an absolute right to those resources. At the de novo trial, Appellant offered his opinion, but no factual or scientific evidence, that the tribe’s resource conservation laws are irrational.

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The tribe responded with several arguments. First, it is common knowledge that the salmon fishery of the Klamath River is in severe decline and requires careful management to restore and maintain the fishery for present and future generations. The tribe’s fishing YTFRO and Plan, on their face, demonstrate the tribe’s careful efforts to do so.

Second, the tribe’s efforts are mandated by the Yurok Constitution itself, which dictates that the tribe “restore, enhance, and manage the tribal fishery.”³³Appellant ignores this mandate, relying instead on Article IX and its protection of traditional practices.

Third, the tribe’s Fishing YTFRO and Plan do not deny Appellant his traditional practices. Appellant is free to dip-net on the days and times prescribed, which are ample to provide him and all tribal fishers food and livelihood. Had he simply waited a couple of hours on the day he was cited, Appellant could have fished lawfully and unhindered for twelve straight hours.

Fourth, it is frivolous to suggest that the constitutional protection of traditional practices strips the tribe of any authority to regulate such practices to preserve a critical resource for generations to come, particularly when such conservation is expressly mandated by the same Constitution. In effect, the conservation regulations assure that tribal fishers will be able to continue their traditional practices for years to come.

Fifth, it is a commonplace of statutory construction that the more specific provision of law controls the less specific. Here, the constitutional fisheries conservation mandate is more specific than the broad protection of traditional practices. Even if some conflict were implied between these two constitutional provisions, they can be harmonized by acknowledging that the specific conservation mandate is regulatory, not prohibitory of traditional practices, and is in fact necessary to assure the health of the fishery so that tribal fishers will have traditional practices to carry on.

Sixth, it is for the tribe, not Appellant as an individual, to determine what is a rational and appropriate fisheries policy. If tribal members disagree with the policies of their elected tribal council and the tribe’s technical fisheries staff, they are but one election away from changing those policies.

Based upon the entire record including the tribe’s Preamble provisions cited earlier, we find the tribe’s argument compelling. The tribe’s exercise of its governmental powers was based upon a legitimate, rational, constitutionally provided mechanism to protect its tribal resources. There was no constitutional violation when the Yurok Tribe exercised its governmental authority to protect its resources by limiting a tribal member’s right to fish in accordance with its ordinance and Harvest Management Plan.

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E. Indian Rights

We note the Appellant’s basic argument centers on the concept that his definition of a “traditional practice” for exercising his fishing rights is flawed for a number of reasons. First, as noted above, the Yurok tribal government has exercised its rights in accordance with federal and tribal law to define the areas and times for fishing, as correctly noted by the Special Judge. YTFRO § 8(p), concerning dip-net fishing, provides that “eligible Indians may engage in dip-net fishing or angling at all times on the reservation except when expressly prohibited.”

We also note that the Appellant’s claim of a right to exercise of “traditional practice” to fish any time he wishes violates the notion of rights and obligations between any government and its governed. That is, government relies upon the fundamental foundation that there is no such thing as individual sovereignty. Tribal governments are sovereign domestic dependent nations within the United States;³⁴individual tribal members are not. More importantly, tribal governments, in the exercise of power, also rely upon two fundamental rules of traditional Indian law.

It has been our experience that tribal governments and individual Native Americans still maintain a fundamental relationship that pre-dates other societies. We call these concepts the first two rules of Indian law. The First Rule is: “Bring honor and respect to the family, clan, and tribe.” The Second Rule is: “Live in harmony with nature.”

In this case, if the Appellant abided by the de novo court’s decision and complied with tribal law for one year, he would restore his honor and bring respect back to his family, clan, and tribe, and he would be living in harmony with nature. In this case, we note that the Yurok Tribe has placed greater emphasis in its Constitution regarding the Second Rule, to live in harmony with nature,³⁵over that of traditionally exercising a fishing right.

Finally, we note, even if the Appellant’s claim of a “traditional practice” is wrongly analyzed as a property right, he would still be subject to the tribal government’s restrictions. The great scholar, Felix S. Cohen, noted that when looking at the dependancy of individual rights upon the extent of tribal property:

The individual Indian, claiming a share in tribal assets, is subject to the general rule that he can obtain no greater interest than that possessed by the tribe in whose assets he participates. [Citations omitted].

Handbook of Federal Indian Law, p. 185 (1942).

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In the case at hand, the Appellant has no greater rights than the tribe. The tribe has placed upon itself and its members a traditional obligation of living in harmony with nature.

The judgment of the de novo trial court is hereby affirmed.

Chief Justice Gabourie and Justice Demmert concur.

The Yurok Tribal Council as the Appellate Division of the Yurok Tribal Court of Indian Offenses.

Hearing Tr., 3/31/97, at 10:7 - 11:6; 23:9-17.

Id. at 48:6-11.

Hearing Tr., 9/5/97, at 307, 460-470.

Id. at 111-116.

Yurok Const. at 12 (emphasis added).