## Facts

- The Yakama Reservation was established by the 1855 Treaty with the Yakimas, which secured to the tribes the exclusive right to fish in reservation streams and the right to fish at “usual and accustomed” places off the reservation in common with non-Indians.
- The Yakama Tribal Council adopted fishing regulations in 1966 governing seasons, locations, gear, and identification requirements; in 1968 it adopted a resolution expressly authorizing tribal officers to enforce the regulations “on or off” the reservation, including arrest and seizure of fishing equipment.
- Alvin Settler and Mary Settler, Yakama members living off the reservation, were accused of violating tribal fishing regulations at an off-reservation “usual and accustomed” fishing site; tribal officers arrested Mary at the site and seized equipment.
- Alvin was convicted in Yakama Tribal Court for fishing violations arising from 1967 and 1968 incidents and later asserted double jeopardy and denial of professional counsel.
- Alvin filed federal habeas petitions challenging his tribal convictions; Mary filed a federal habeas petition challenging the lawfulness of her off-reservation arrest and equipment seizure.
- The district court denied Alvin’s petitions but granted Mary relief, reasoning tribal enforcement authority was limited to reservation boundaries.

## Issues

1. Whether the Yakama Tribe had authority under the 1855 treaty and federal law to regulate and enforce treaty fishing rights against tribal members at off-reservation “usual and accustomed” fishing places, including arrest and seizure.
2. Whether Alvin Settler was entitled to federal habeas relief based on alleged double jeopardy and right-to-counsel violations arising from pre-1968 tribal court proceedings, including whether such protections applied through the Constitution or the Indian Civil Rights Act of 1968 (ICRA).

## Decision

- The Ninth Circuit held that the Yakama Tribe’s power to regulate and enforce fishing regulations extends off the reservation to “usual and accustomed” fishing places as to tribal members.
- The court reversed the district court’s grant of habeas relief to Mary Settler, upholding the off-reservation arrest and seizure as within tribal authority.
- The court rejected Alvin Settler’s constitutional claims and affirmed denial of his habeas petitions.
- The court reasoned that ICRA was not retroactive to Alvin’s pre-1968 convictions and that the asserted Fifth and Sixth Amendment protections did not provide a basis to invalidate those tribal convictions on federal habeas review.

## Legal Principles

- Treaty-reserved fishing rights at “usual and accustomed” places may carry with them tribal authority to regulate members’ exercise of those rights, absent congressional withdrawal.
- Where a tribe has authority to regulate off-reservation exercise of treaty rights by members, it may also enforce those regulations off reservation, including arrest and seizure, consistent with tribal law.
- Federal habeas relief from tribal custody requires a cognizable violation of federal law; ICRA protections apply by statute and are not retroactive to tribal proceedings occurring before its enactment.
- Many constitutional protections do not bind tribal governments of their own force; absent an applicable congressional mandate, constitutional claims may not support federal habeas relief from tribal convictions.

## Conclusion

The Ninth Circuit upheld the Yakama Tribe’s authority to regulate and enforce treaty fishing regulations against tribal members at off-reservation “usual and accustomed” fishing places and denied habeas challenges premised on constitutional and ICRA-based claims where the convictions predated ICRA and no federal-law violation justified disturbing tribal judgments.


Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974)