Department of Game v. Puyallup Tribe, Inc.

Rosellini, J.

(concurring) — I concur in Justice Hunter’s scholarly interpretation of the Medicine Creek Indian Treaty. This interpretation should dispose of the case. However, Justice Hunter felt compelled by the language found in Department of Game v. Puyallup Tribe, 414 U.S. 44 , 38 L. Ed. 2d 254 , 94 S. Ct. 330 (1973), to review the determination of the amount of catchable fish to be apportioned between the commercial Indian net fishery and the hook and line fishery of other citizens.

I believe that any apportionment of the fish run is contrary to the treaty and the Constitutions of the United States and Washington. Apportionment cannot be sustained by the law, or the facts in the case.

I find nothing in the language of the Treaty of Medicine *691 Creek, 10 Stat. 1132 , or in the Treaty of Point Elliott, 12 Stat. 927 (2 Indian Affairs Laws and Treaties 669 (1904)), that would even imply that fish runs were to be apportioned between the Indians and the white settlers. In fact, the treaties negate any such interpretation.

The exact language of the treaty incorporated as it was in other similar treaties contemporaneously negotiated with tribes makes it clear that Indians were not to be excluded from fishing at their accustomed grounds, but these rights were to be coextensive only with the citizens of the territory. Thus, the Indians shall have all fishing rights that all the citizens have, and no Indian or non-Indian shall have any superior right.

Any other interpretation would distort the obvious meaning of the language.

Article 3 of the Treaty of Medicine Creek, as noted, says:

Article III. The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding horses, and shall keep up and confine the latter.

(Italics mine.) 10 Stat. 1133 .

There is no word in any of the articles or in any other treaty to suggest that either the Indians or the white settlers intended that Indian tribes have a superior right to fish not equally available to citizens of the territory.

The treaty made with the Quinaielt, Quillehute and other tribes, 12 Stat. 971 -72 (2 Indian Affairs Laws and Treaties 719-20 (1904)), employs identical language to the Treaty of Medicine Creek concerning the right of taking fish in common with all citizens of the territory.

The Treaty of Point Elliott, 12 Stat. 927 , 928, with the Dwamish, Suquamish, and other tribes employs the same *692 language used in the Treaty of Medicine Creek and the treaty with the Quinaielt and Quillehute:

Article V. The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.

None of these treaties contains a hint that the Indians would acquire fishing rights superior to the citizens of the territory, or that the Indians would have a property right to 45 percent of the fish runs or any fraction of any fish run. The treaty gave the Indians and settlers a right to be held in common — the privilege or opportunity of catching fish.

Similarly, in the Treaty of Point No Point, 12 Stat. 933 , 934, article 4 declares that

[t]he right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States; . . .

It will be noted that there is a minor departure from the language of the three other treaties in describing the settlers as citizens of the United States rather than as citizens of the territory. One cannot find from this treaty or the three other treaties any language which gives exclusive off-reservation fishing rights or any apportionment of the fish runs.

What the treaties said is that Indians should not be barred from an opportunity to fish any more than the settlers were denied the right to do so.

A treaty signed in June 1855 in Walla-Walla Valley between the United States and the Walla-Walla Tribe, 12 Stat. 945 , 946, illustrates that the Indians and United States were capable of using explicit language when it was desired to give exclusive rights to Indians to fish. Article 1 of the treaty says

*693 [t]hat the exclusive right of taking fish in the streams running through and bordering said reservation is hereby secured to said Indians, and at all other usual and accustomed stations in common with citizens of the United States, and of erecting suitable buildings for curing the same; the privilege of hunting, gathering roots and berries and pasturing their stock on unclaimed lands in common with citizens, is also secured to them.

It can be seen that in the Walla-Walla Treaty, the Indians reserved the exclusive right to take fish from streams running through and bordering said reservation and outside their reservation in common with the citizens of the United States. There was no difficulty in selecting the words to convey the separate ideas of “exclusive rights” and “rights secured in common” with the citizens of the United States.

The precise distinction between exclusive and shared rights held in common with the citizens of the territory were made in a treaty with the Yakima Indian Tribe. (See 12 Stat. 951 .)

A reading of all the treaties which were signed at about the time of the Medicine Creek Treaty in 1854 makes it clear that where an exclusive right was intended, and when a right to fish in common with the settlers or citizens was intended, language was used precisely to express the idea of exclusive rights and nonexclusive rights.

If it was intended to give 45 percent or any other portion of the fish runs to Indian or white citizens, language could have been used to express that intent. I find not even a hint that this was the intent of the treaties. I am sure that a treaty which would have given away any percentage of the fish runs would not have been ratified.

It must be remembered that the United States was inhabited by persons who left their homeland because of religious or political discrimination. They left also because of the economic discrimination. It must be remembered that game belonged to the King and to the estates of the lords. No one could hunt or fish without the consent of the King or the lords. In fact, poaching was a crime punishable *694 by imprisonment or death. Thus, it would have been inconceivable that the citizens or settlers of the United States would have allocation of fish or game.

In any event, article 6 of the United States Constitution reads:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;

It will be seen that the United States Constitution, the laws made pursuant thereto, and the treaties are the supreme law. The laws enacted must pass the test of constitutionality. The treaties which are passed may not violate the constitution and may not deprive the citizen of any of his constitutional rights.

Treaties are part of the domestic law and where, as in this case, both parties to the treaties are citizens of the United States, the provisions of the constitution apply. Otherwise, the Executive and the Senate could by treaty which involves rights of its citizens disenfranchise a class of citizens. Any treaty right that gives Indians superior rights denies the equal protection of other “citizens’ ” rights.

Let me further state why I think an apportionment of the fish run is legally incorrect.

It must be remembered that the steelhead fishery is financed by the purchase of fishing licenses and steelhead tags by the fishermen. None of the taxpayers’ money is used for hatchery planting programs in restocking the rivers, except a very small amount furnished by the federal government.

Without the hatchery-reared steelhead planted in the rivers, there would not be any fish to catch and there would not be a natural run. My conclusions are based upon the following facts which logically follow from the planting statistics, and take into account the misconception of what is natural and what is native steelhead.

The record disclosed that natural or native steelhead is *695 arbitrarily defined as any steelhead that does not have any hatchery marking. The record disclosed that the progeny of the hatchery-planted steelhead under this definition is arbitrarily counted as a natural run of steelhead.

The following chart which sets forth the planting and catch of steelhead illustrates to my mind that without the large planting, the return of the steelhead would be minimal.

Respondent’s Brief, Appendix; Exhibit 74-2.

*696 Without the massive infusion of the hatchery fish, the steelhead runs subject to the net fishery would have been depleted.

The evil of permitting net fishing for steelhead is that it will devastate the run. The net fishery on the Skagit River exceeds 57 nets. Many of the nets are placed alternatively from one side of the river to the center of the river. The nets on the opposite side are placed alternatively so that they intersect the nets placed on the other side of the river. The effect is to block all upstream fish.

Steelhead are different from salmon, which spawn and die. Steelhead will spawn and live to return to spawn again. They are in a very poor condition after spawning and are regarded as unfit to eat. The nets not only take all the steelhead going upstream to spawn, but will catch all the steelhead which have already spawned and are returning downstream.

Runs of steelhead enter rivers at different times during the season. It is possible to deplete the run at a certain period. It is urged that proper regulation can control this situation; however, the record is replete with evidence that net fishery cannot be successfully regulated.

The inefficiency of the enforcement of the regulation is shown by the fact that in December 1975, the Indians caught 2,476 fish on the Puyallup River, while 1,341 sportsmen fishing by line and hook caught only 102. In Western Washington Green River, 12,000 non-Indians caught only 50 fish, while Indian netters took 4,839. On the Skagit River, 893 sportsmen caught 89 fish while the Indians netted 2,367 fish.

Conservation means the wise use of the resource, and in the management of steelhead there must be necessary escapement for needed spawning to insure the perpetuation of the resource.

The manner of fishing must be such that it can be controlled so it does not impair or damage the necessary escapement; and, further, the manner of fishing itself must not be destructive. The Department of Game, in order to con *697 serve the steelhead runs, has placed limitations on the manner of fishing and the catch limit of steelhead. Non-Indians must fish with line and hook (as opposed to the Indian net fishing), and the non-Indian is limited to the maximum of 2 per day and no more than 4 in possession, and a maximum of 30 per season.

This case is entitled “Department of Game v. Puyallup Tribe, Inc.” It suggests that the tribe itself is benefiting from the net fishery. However, the record shows that there are approximately 850 members of the Puyallup Tribe, of which 320 are over the age of 21. Twenty Puyallup Tribe fishermen fish essentially full time, 20 part-time, and an additional 20 fish only occasionally. The commercial value of steelhead caught by the Indians is approximately $10 a fish. The individual fishermen keep the proceeds of their fish sales, and this money is not shared with the tribe.

How can an apportionment of the catch, as found by the court, of 45 percent of the fish runs be equitable, fair, or conscionable when 60 Indians are allocated such a large proportion and thousands of non-Indians must share the remainder?

Under the Treaty of Medicine Creek, the only guaranty to the Indians is a right to the opportunity to fish. The treaty did not guarantee them any portion of the fish. Even if apportionment is permitted, should not the fish be divided more equitably between the non-Indian sportsmen and the Indians?

It must be remembered that before the incredible doctrine of apportionment was announced, the Indians had the same right to fish, and in the same manner as non-Indians. The treaty Indians could fish as sportsmen or as commercial fishermen, whether it was by troller, gillnetting, or set-net.

Heretofore, all citizens, whether Indians or non-Indians, were treated as equals. Now the courts have decided the rights of other citizens are inferior to Indian rights. I cannot subscribe to such a doctrine. I would hold that the treaty does not permit or contemplate any allocation of the *698 fish, but rather the opportunity to fish and catch fish in the same manner as any citizen. I would take cognizance of the fact that fishing with fixed nets will devastate the fish runs and jeopardize one of the great natural resources of this state — a result which could never have been intended by any party to these treaties.

Brachtenbach, J., concurs with Rosellini, J.

Petition for rehearing denied June 25, 1976.