Petition — Bergh v. Washington

Seprome Coert, ¥. &

FILEQD

AUG 19 1976

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 76-253

LOREN BERGH, Petitioner,

Ve

STATE OF WASHINGTON; THOR TOLLEFSON,

DIRECTOR OF THE WASHINGTON STATE

DEPARTMENT OF FISHERIES; WASHINGTON

STATE DEPARTMENT OF FISHERIES;

EDGAR SCOFIELD and GEORGE BOLDT,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY SCHWAB

4737 Shilshole Ave. N.W.

Seattle, Washington 98107

1-206-789-4307

Counsel for Petiticner

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

LOREN BERGH, Petitioner,

Vv.

STATE OF WASHINGTON; THOR TOLLEFSON,

DIRECTOR OF THE WASHINGTON STATE

DEPARTMENT OF FISHERIES; WASHINGTON

STATE DEPARTMENT OF FISHERIES;

EDGAR SCOFIELD and GEORGE BOLDT,

Respondents.

PETITION FOR WRIT OF CERTIORARI

*

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY SCHWAB

4737 Shilshole Ave. N.W.

Seattle, Washington 98107

1-206-789-4307

Counsel for Petitioner

INDEX

Opinion Below. ..... ++ « «© « «

SUPLGGLCELOR « 6 ts te ee ee eee

Questions Presented. .....-.. -

Constitutional Provisions and

Statutes Involved ...... .

Statement of the Case. . ... e+. -«

Nature of the Action. .....

Proceedings in the District

COURE. « cs 6 8 ¢ © @ © @ @

Proceedings in the Court of

Appeals. ..+.«-++«e«e. »

Separate Proceedings in the

Washington State

Supreme Court. . ..-.+.+.« -«

Reasons for Granting the Writ

(1) Mutuality of Relief

Sought on Which Final

Judgment was Entered

(2) Mutuality in the Parties

and their Privies.. .

(3) Mutuality in the Issues

Litigated. . ..+.«. -»

Gemelumiom . «se 6© 6 © 6 8 ee 6 Uh CU

.

oF Ut

CITATIONS

Cases: -»

Cherokee. Tabacco Case, 78 U.S. 616

eevee s «4 @ © & 6 & @ a . *

Department of Game v. Puyallup

Tribe, Inc., 86 Wn.2d 664,

548 P.2d 1058 (1976). ....

In re Ah Chong, 2 Fed. 733, at 737

[oats <é «> + oe oh ee Se

Moses Lake Homes v. Grant County,

365 U.S. 744, 81 S. Ct. 870

[eeeese we ee wee ew ee ele

Puyallup Tribe v. Department of

Game, 391 U.S. 392, at 399

fe ae ee ee ee

Strom v. Commission, 158 F.2d 520

[eet s « & « ee & & & Se 6

Takahashi v. Fish Commission, 334

U.S. 410, 98 L. Ed. 1498. .. .

Toomer v. Whitsell, 334 U.S. 385,

OR Gees 2© © ee ee ee ee el

Truax v. Raich, 239 U.S. 33, at 41 .

United States v. 111.2 Acres of Land

in Ferry County, Washington,

293 F. Supp. 1042 (1968),

OG BOOP «© ec eee eee eo 8

United States v. United Airlines,

216 F. Supp. 709, at 725-726

(D.C. WA NA, 1962) (1962) .. .

olia

20

16

ll

18

19

14

13

13

1l

CITATIONS

(Continued) Page

IN THE

United States v. Washington :

(Mo. 9223). «ee eses 6 ae Oe SUPREME COURT OF THE UNITED STATES

Yick Wo v. Hopkins, 118 U.S. 356, OCTOBER TERM, 1976

at 369. « « «©» 6 «© 6 6 * 5 eee

STATUTES NO.

28 U.S.C., § 1254(1) « - ess seee om

42 U.8.C., § 1983. « «© ee + © + » ee eee

o + © e es s 6 eee

LOREN BERGH, Petitioner,

Ve

43 Stat. 233 . « « * « + =) 6 eee ; ;

59 Stat. 1035, at 1045-1046. ..... 18 STATZ OF WASHINGTON; THOR TOLLEFSON,

CONSTITUTIONAL PROVISIONS : DIRECTOR OF THE WASHINGTON STATE

DEPARTMENT OF FISHERIES; WASHINGTON

United States Constitution, STATE DEPARTMENT OF FISHERIES;

Fourteenth Amendment. .... - 8, 13 EDGAR SCOFIELD and GEORGE BOLDT,

Respondents.

United States Constitution,

Article Vv ..s«+eeest « » =e

Petition for Writ of Certiorari

TO THE UNiTED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Loren Bergh, prays that a

writ of certiorari issue to review the

, . judgment of the United States Court of

Appeals for the Ninth Circuit entered in

this cause on May 3, 1976, and upon which

rehearing was denied May 27, 1976.

OPINION BELOW

The opinion of the Court of Appeais

presently unreported is reproduced in the

appendix to the petition at pages 25 to

-iii-

28- The order of the Court of Appeals

denying rehearing is reproduced at page

24 of the appendix. The District Court

Gid not file an opinion but, rather,

entered an order and summary judgment

reproduced in the appendix at page

23- A conflicting Washington State

Supreme Court opinion, in a case in which

petitioner was not a party, Department of

Game v. Puyailup Tribe, Inc., is reproduced

in the appendix, pages 33 to 68, as

reported, 86 Wn.2d 664, 548 P.2d 1952

(1976).

JURISDICTION

Jurisdiction for this court to review,

by writ of certiorari, the judgment of the

Court of Appeals entered May 3, 1976, and

made final by the denial of the petition

for rehearing per an order dated May 27,

1976, is conferred and pursuant to 28

U.S.C., § 1254(1).

QUESTIONS PRESENTED

1. Does collateral estoppel from

United States v. Washington (NO. 9213) bar

petitioner from seeking and obtaining

injunctive relief in this action against

the selective adoption and enforcement of

fishing regulations by the State of

Washington and the Washington State Depart-

ment of Fisheries which discriminate

aginst petitioner as a commercial fisher-

man solely because he lacks a requisite

race, creed, color or ancestry?

2. Does the Fourth Article, the

Fourteenth Amendment to the United

States Constitution or 42 U.S.C., § 1933

prohibit a policy of selective adoption

and enforcement of state commercial

fishing regulations against petitioner but

not against other citizens, when the dis-

criminatory basis is solely that petitioner

lacks a requisite race, creed, color or

ancestry?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, Article

IVs

Section 2. The Citizens of each

State shall be entitled to all

privileges and Immunities of Citi-

zens in the several states.

United States Constitution, Amendment

XIV:

Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein they

reside. No State shall make or en-

force any law which shall abridge the

privileges or immunities or citizens

of the United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any per-

son within its jurisdiction the equal

protection of the laws.

42 U.S.C., § 1983:

Civil action for deprivation of

Rights.

Every person who under color of

any statute, ordinance, regulation,

custom, or usage, Of any State or

Territory, subjects or causes to be

subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the depriva~

tion of any rights, privileges, or

immunities secured by the Constitu-

tion and laws, shall be liable to the

party injured in an action at law,

suit in equity, or other pro ver

proceeding for redress.

STATEMENT OF THE CASE

Nature of the Action

Petitioner, a commercial gillnet fisher-

man for nineteen years, sought to enjoin

the application of fishing regulations

against him by the State of Washington

when that application was discriminatory

solely upon the basis that he lacked a

requisite Indian race, creed or ancestry.

The State of Washington responded that

they were compelled to do so by orders of

the Honorable George Boldt, United States

District Court Judge, which orders were

filed by Edgar Scofield, Clerk of the

United States District Court for the

Western District of Washington in cause

No. 9213.

Petitioner Bergh was not a party,

nor privie to a party, involved in cause

No. 9213 and argued that the State of

Washington was violating his Fourth

Article and Fourteenth Amendment rights

under the United States Constitution and,

also, 42 U.S.C., § 1983.

Proceedings in the District Court

Petitioner filed a verified complaint

and moved for summary judgment supported by

various affidavits. The State of Washing-

ton, George Boldt and Edgar Scofield moved

to dismiss on the record at that point.

The petitioner's factual record is un-

challenged and shows that the State of

Washington was obeying George Boldt's

orders and was discriminating against

petitioner Bergh in adopting and enforc-

ing fishing regulations solely on a basis

that Bergh lacked a requisite Indian race,

creed or ancestry. The record also shows

Bergh was not a privie or party to cause

No. 9213 and that in that cause Judge

Boldt denied intervention to other fisher-

men similarly situated and that the equal

protection argument had not been raised

and decided there.

The District Court, the Honorable

Donald Voorhees, granted summarv judgment

against petitioner dismissing his case

without opinion, but in order indicated

the basis was collateral estoppel from

cause No. 9213.

Proceedings in the Court of Appeals

The Court of Appeals also refused to

reach the merits holding that Judge

Voorhees was within his discretion,

because Judge Boldt's case was one of

continuing jurisdiction. Nothing in the

Opinion mentioned that Judge Boldt had

in all instances denied intervention to

persons similarly situated to petitioner

and that no party in Judge Boldt's court

had or would raise the “equal protection"

argument.

Separate Proceedings in the Washington

State Supreme Court

On remand from the United States

Supreme Court, the Supreme Court of the :

State of Washington in Department of Game

v. Puyallup Tribe, Inc., 86 Wn.2d 664,

548 P.2d 1058 (1976), ruled that the equal

protection argument is applicable to a

person who is in petitioner Bergh's situa-

tion and held as law what petitioner Bergh

urges here and urged to both the Ninth

Circuit and the District Court. That

opinion, reproduced in the appendix at

pages 33 to 68, was held in abeyance

pending review in this court upon that

case.

Reasons for Granting the Writ .

This case is the focus of a dispute

between the federal court system which ‘

refuses to reach the "equal protection"

theory on Indian fishing rights and the

Washington state court system, which has

recently decided that the "equal protec-

tion” argument is squarely applicable and

proscribes fishing regulations which

disfavor White fishermen solely because

they lack a requisite race, creed or

ancestry.

This court should grant review,

because this case clearly raised the issue

unencumbered by competing questions or

vagueness in the record and is the sole

case which has traveled the federal side

on the equal protection argument. :

If the court wishes review, it can

summarily consider the meritorious issue

on equal protection, infra, at point 2.

However, the collateral estoppel issue

used by the federal courts to avoid the

merits are presented as point l, infra.

l. Does collateral estoppel from

United States v. Washington

(No. 9213) bar petitioner from seek-

ing and obtaining injunctive relief in

this action against the selective adop-

tion and enforcement of fishing regula-

tions by the State of Washington and

the Washington State Department of

Fisheries which discriminate against

petitioner as a commercial fisherman

solely because he lacks a requisite

race, creed, color or ancestry?

There is no collateral estoppel work-

ing against petitioner Loren Bergh which’

precludes a decision upon the merits

because:

a. Mr. Bergh was not a party to, or

associated with any party to the

Boldt decision in No. 9213 and

Judge Boldt consistently has

denied intervention to persons

Similarly situated;

b. the issues raised here were not

raised or adjudicated in fact

in the Boldt decision;

c. the issues raised here could not

have been adjudicated in the Boldt

decision because the prayer for

declaratory decision did not

seek such discriminatory use of

state law and regulation and the

cause of action arose subsequent

to the Decision I therein;

d. George Boldt himself is a parti-

cipant and a named defendant,

and it is prejudicial to allow

him to decide his own case.

However, the collateral estoppel

point may be moot because the record is

undisputed and sufficient that this court

can make a decision upon the merits. On the

merits commercial fishing is a constitu-

tional protected common occupation of the

community and all actions of the defendant

are subject to constitutional prohibitions

of Article IV and Amendment XIV and 42

U.S.C., § 1983. The state has plenary

power to regulate all persons as to com-

mercial fishing for the general society

and must do so without discrimination or

denial of the equal protection of the law

to all citizens. Plaintiff and the

Indians at issue here are citizens and

distinguishable solely upon the basis of

race, creed, color or ancestry. Any per-

son who discriminates on this basis breaks

the law and should be enjoined.

Generally, for res judicata or

collateral estoppel to occur, the federal

textbook case of United States v. United

Airlines, 216 F. Supp. 709, at 725-726

(D.C. WA NA, 1962) states that there

must be a concurrent mutual identity in

three areas:

a. in the relief sought on which

final judgment was entered and

adjudicated;

b. in the parties or their privies;

c. in the issues litigated.

(1) Mutuality of Relief Sought on

Which Final Judgment was Entered

Nothing in the case of United States

v. State of Washington (No. 9213) contem-

plated and no party prayed specifically

prior to the entry of Final Decision No. l

therein that the laws and regulations of

the State of Washington be applied ina

racially (supra-legislative) fiat. For

@§-

example, if Judae Boldt issued a

mandamus to the Washington State

Legislature and the governor is to

appropriate monies to enforce these

regulations, it would not be a collateral

attack upon the decision to challenge

this order by a direct independent suit.

It wouldn't be fair to regulate them

solely to an appeal process because no

trial foundation exists as to test the

act and, in addition, it would then

be colored by the inherent prejudice of

the actor deciding his own case.

(2) Mutuality in the Parties

and their Privies

It is an undisputed fact in the record

that Mr. Bergh was not a party to, repre-

sented in, or associated with any party to

United States v. State of Washington (No.

9213). He never had his day in court nor

his right to appeal under that cause of

action; nor did he seek it, because dis-

criminatory use of state laws and regula-

tions was not within the contemplation

of that suit. In addition, it is doubt-

ful that Judge Boldt would have granted

intervention, as he denied it to several

commercial and sports fishing groups.

Thus, when the District Court judge

refused to issue a decision upon the

merits of Mr. Bergh's cause of action, it

precluded Mr. Bergh from having his day

in court on the merits. The very essence

of the mutuality of parties criteria in

estoppel is to assure due process for

every citizen seeking redress for acts

against him which he alleges are

illegal; the very meaning of the word

estoppel refers to past acts of the

asserting actor. Mr. Bergh had no past

acts contradicting his instant allegation.

(3) Mutuality in che Issues Litigated

The record in this case conceded that

the issue of subsequent discriminatory

supra-legislative use of state law and

regulation was not litigated in United

States v. Washington (No. 9213).

In addition, precedent indicates that

unconstituticnal enforcement of a prior

court decision creates a subsequent

separate and independent cause of action

not barred Sy collateral estoppel even

among the same and identical litigants:

Nor is there any verit in the

respondent's contention that the

opinion and judgment of the Supreme

Court of Washington in the Moses Lake

Case, 51 W2d 285, 317 P2d 1069, supra,

is res judicata of the County's tax

claims against the Moses Lake lease-

hold for at least the years 1955

and 1956. This is so because no

tax whatever had then been assessed

and levied against the Moses Lake

leasehold, and hence no issue of

discrimination was or could have

been presented and adjudicated in

that case

Inasmuch as the taxes, presently

assessed and levied, discriminate

unconstitutionally against the

-10<

United States and its lessees, they

are void, and hence may not be

exacted.

Reversed.

Moses Lake Homes v. Grant County,

365 U.S. 744, 81 S. Ct. 870 (1961).

A District Court case in Mr. Bergh's

favor iS United States v. 111.2 Acres of

Land in Ferry County, Washington, 293

F. Supp. 1042 (1968), at 1049; there it

was held that a prior decision involving

the constitutionality of a state statute

did not collaterally estop a second

independent suit challenging its con-

stitutionality under a different article:

The government contends the State

is estopped from contesting the uncon-

stitutionality of RCW 90.40.050 under

the judgment entered in United States

vs. Anderson, 109 F. Supp. 755 (E.D.

Wash. 1953). The state was a party

to that case, but was enjoined only

to argue the unconstitutionality of

RCW 90.40.050, occupying the position

of amicus curiae. The State could

not appeal Judge Driver's decision.

Therefore his decision is not conclu-

Sive against the State. Restatement,

Judgments §69(2) (1942).

The question of law determined in

United States vs. Anderson, was

whether RCW 90.40.050 conflicted with

Article II, section 19 of the

Washington Constitution. . . . The

conflict was not raised. As the

question of law now before the

court was not "actually litigated

and determined" in the former

adjudication, that adjudication

is not conclusive upon the State.

of his community.

More than sixty years ago this

Supreme Court in Truax v. Raich, 239

U.S. 33, at 41, said:

It requires no argument to show that

the right to work for a living ina

common occupation of the community

is of the very essence of the per-

sonal freedom and opportunity that

it was the purpose of the amendment

to secure. .. . If this could be

refused solely upon the ground of

; : race or nationality, the prohibition

of the denial to any person of equal

protection of the laws would be a

barren form of words.

Therefore, petitioner submits that

collateral estoppel does not apply here

to proscribe reaching a decision upon

the merits of the equal protection issue. ’ ’

2. voes the Fourth Article, the

Fourteenth Amendment of the

United States Constitution, or

42 U.S.C., § 1983, prohibit a

policy of selective adoption and

enforcement of state commercial

fishing regulations against

petitioner but not against other

citizens when the discriminatory

basis is solely that petitioner

lacks a requisite race, creed,

color or ancestry?

Commercial fishing was brought within the

"common occupation” definition of Truax

as a constitutionally protected right by

Justice Vinson speaking in Toomer v. Witsell,

334 U.S. 385, at 403:

There was illegal discrimination

against petitioner Bergh solely because he

lacks a requisite race, creed, national

origin or ancestry such that he was

denied the privileges, immunities and

equal protection of the law afforded

other citizens in pursuit of his right : ,

to engage in a common occupation of his

Thus we hold that commercial shrimp-

ing in the marginal sea, like other

common callings, is within the pur-

view of the privileges and immunities

clause.

The United States Constitution,

Amendment Article XIV, is very plain and

clear in its mandate:

-12-

No state shall make or enforce any

law which shall abridge the privilege

or immunities or citizens of the

o} Se

United States; nor shall any state

deprive any person of Jife, liberty

Or property withcut due process of

law, nor deny to any person within

its jurisdiction the equal protection

of the laws.

The United States Constitution, Article

IV, reads:

The citizens of each state shall be

entitled to all of the privileges and

immunities of citizens in the several

states.

An identical case of ethnic discrimina-

tion in commercial fishing was heard by

this United States Supreme Court in 1948 in

which the Fourteenth Amendment issue was

considered. Takahashi v. Fish Commission,

334 U.S. 410, 98 L. Ed. 1498. In Takahashi

the California legislature passed a statute

precluding all persons not eligible for

citizenship from obtaining a commercial

fishing license. The law was racist,

because the real goal of the statute was

the exclusion of fishermen of Japanese

ancestry. Justice Black answered the

issue solely upon a Fourteenth Amendment

basis, finding that Mr. Takahashi had a

constitutionally-protected right to

commercially fish and the State of

California could not discriminate upon

an ethnic basis so as to abridge this

right. To eliminate potential hedging

upon its decision the court first said:

Accordingly, for the purpose of our

decision we may assume that the code

provision was passed to conserve fish

lg

in the California coastal waters, or to

protect California citizens engaged in

commercial fishing from the competi-

tion by Japanese aliens, or for both

reasons.

(at page 418).

The court then reversed the California

Supreme Court and voided the state

statute:

The Fourteenth Amendment and the

laws adopted under its authority thus

embody a general policy that all per-

sons lawfully in this county shall

abide "in any state” on an equality

of legal privileges with all

citizens under non-discriminatory

laws.

(at page 420).

One of the laws adopted under the

aegis of the Fourteenth Amendment was the

Civil Rights Act of 1866, which is codified

in part today as 42 U.S.C., § 1983, which

reads:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage of any State or Territory,

subjects, Or causes to be subjected,

any citizen of the United States or

other person within the jurisdiction

thereof to the deprivation of any

rights, privileges, or immunities

secured by the Constitution and

laws, shall be liable to the party

-15-

injured in an action at law, suit in

equity, or other proper proceedings

for redress.

Over ninety years ago federal circuit

Judge Sawyer said in In re Ah Chong, 2 Fed.

733, at 737 (1880):

To subject the Chinese to imprisonment

for fishing in the waters of the state,

while aliens of all European nations

under the same circumstances are

exempt from punishment whatever, 1s

to subject the Chinese to other and

entirely different punishments, pains,

and penalties than these to which

others are subjected, and it is to

deny them the equal protection of the

laws ...

The regulations of the Washington

State Department of Fisheries which are being

selectively enforced against Mr. Bergh under

a department policy of ethnic discrimination

due to the implementation orders of Judge

Boldt violate Article IV and the Fourteenth

Amendment to the United States Constitu-

tion and the Civil Rights Act of 1866, 42

uU.S.C., § 1983, and should be enjoined. Such

selective enforcement is patently illegal.

In re Ah Chong, supra; Yick Wo v. Hopkins,

118 U.S. 356, at 369.

A major argument which has been

marshalled in this case against this

plain reading of the Fourteenth Amendment

is the constitutional clause that treaties

are the supreme law of the land; this is a

misreading of the clause:

-16<

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;

and the judges in every State shall

be bound thereby, anything in the

Constitution or Laws of any State to

the contrary notwithstanding.

(Article VI).

Treaties are given no special prece-

dence under this provision. In addition,

the point has been unequivocally answered

as to a conflict between an Indian treaty

and the United States Constitution or

subsequent conflicting legislation.

By treaty of the Cherokee Nation was

guaranteed freedom from taxes upon its

tobacco products; subsequently, the

Congress passed a general tobacco tax

statute that the revenue department applied

to the Cherokees. Mr. Justice Swayne,

speaking in the Cherokee Tobacco Case,

78 U.S. 616 (1870), set the record straight

on the supreme law:

It hardly need to be said that a

treaty cannot change the Constitu-

tion or be held valid if it be in

violation of that instrument. This

results from the nature and funda-

mental principle of our government.

The court then stated the general principle

as to statutory and treaty language

conflicts:

olFa

A treaty may supersede a prior act

of Congress, and an act of Congress

may supersede a prior treaty.

- »« « and no greater inviola-

bility or immunity can be claimed

for them [treaties].

The court then pronounced the rule of

the case: the treaty conflicted with sub-

sequent legislation and was void to the

extent of that conflict and the tobacco

tax was exactable.

Here we find two important statutes

which were enacted subsequent to the

1854 Indian treaties which were the

issue in Judge Boldt's decision. There

are the Civil Rights Act of 1866 and the

Indian Citizenship Act of 1924 (43 Stat.

253). In addition, there is the subsequent

United Nations Charter which the United

States Senate ratified as a ireaty which

binds our government to adhere to:

(c) Universal respect for, and

observance of human rights and

fundamental freedoms for all with-

out distinction as to race, sex,

language, or religion.

(59 Stat. 1035, at 1045-1046).

Finally, this counsel submits that

under the decision written by Justice

Douglas in Puyallup JT (Puyallup Tribe v.

Department of Game, 391 U.S. 392, at 399

(1968), that as to Indian commercial

fishing which utlizes the resources and

the markets of the general society the

state police power is plenary and

o1§-

unrestricted but must be nondiscriminating

in its application.

But the manner of fishing, the size

of the take, the restriction on com-

mercial fishing, and the like may be

regulated by the State in the interest

of conservation. ...

(Emphasis added.)

Interestingly, the Ninth Circuit

Court o* Appeals haa seen the distinction

between commercial fishing and reservation-

oriented fishing in Strom v. Commission,

158 F.2d 520 (1947), where it adopted as its

own Opinion the tax court's decision, which,

in part, stated:

It is a far cry from the fishing

operations of the members of an

uncivilized tribe of Indians

at the time of execution of this

treaty, and the commercial fishing

business now carried on by these

petitioners.

The Indians are entitled to participate in

commercial fishing for salmon foodfish in

Washington waters on the same basis as

petitioner without discrimination; petitioner

is entitled to participate in commercial

fishing for salmon foodfish in Washington

waters on the same basis as the Indians

without discrimination. This is the

relief Mr. Bergh seeks. History saw the

nation make the Indian a second-class

citizen by Chicanery and mistake of law.

Yes just as surely we are making other

-19-

segments of our nation into a discriminated

class to relieve the pangs of guilt. This

court should follow the purity or theory

in our constitutional mandate of equal

protection of the laws and enjoin the

discriminatory adoption and enforcement

of commercial fishing regulations.

CONCLUSION

For the reasons set forth above, the

petition for writ of certiorari should be

granted along with the review of

Department of Game v. Puyallup Tribe, Inc.,

supra.

Respectfully submitted,

ANTHONY SCHWAB

4737 Shilshole Ave. N.W.

Seattle, Washington 98107

Counsel for Petitioner

-20-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

LOREN BERGH, Petitioner,

V.

STATE OF WASHINGTON; THOR TOLLEFSON,

DIRECTOR OF THE WASHINGTON STATE

DEPARTMENT OF FISHERIES; WASHINGTON

STATE DEPARTMENT OF FISHERIES;

EDGAR SCOFIELD and GEORGE BOLDT,

Respondents.

APPENDIX

TABLE OF CONTENTS: Pages

Copy of Judgment of United

seates District Court . . « « 42

Copy of Order of United States

Damen aeee Gees «6 «6. 6 6 6 eae

Copy of Order of Ninth Circuit

Court of Appeals Denying

Petition for Rehearing. ... .24

Copy of Opinion of Ninth Circuit

Court of Appeals. .... 25-28

Copy of Rulings on Post

Decision Motions (lnited

States V. Washington) . . 29 = 32

Opinion of Washington State

Supreme Court in Department

of Game v. Puyallup Tribe 33-68

oZie

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

FILED : : AT SEATTLE

UNITED STATES DISTRICT COURT LOREN BERGH, )

Western District of Washington Plaintiff, ) No. C74-5245S

NOV 6 1974 vs. )

EDGAR SCOFIELD, Clerk STATE OF WASHINGTON, et ail.,) ORDER

By /s/ JD Deputy Defendants. )

UNITED STATES DISTRICT COURT |

WESTERN DISTRICT OF WASHINGTON Having considered the motion of plain-

AT SEATTLE tiff for summary judgment against defendants

LOREN BERGH ) . State of Washington, Thor Tollefson and the

) CAUSE NO. C74-5245S Washington State Department of Fisheries,

vs. ) the motion of defendants George Boldt and

) JUDGMENT Edgar Scofield to dismiss, and the motion

STATE OF WASHINGTON ETAL | . , of defendants State of Washington and Thor

Tollefson and the Washington State Depart-

ment of Fisheries to dismiss, the memoranda

This action came on for consideration : ° presented in support of and in opposition

before the Court, Honorable DONALD S. VOORHEES, thereto, and the oral argument of counsel,

United States District Judge, presiding, and the Court is of the opinion that plaintiff's

the issues having been duly considered, and a action is a collateral attack upon the judg-

decision having been duly rendered, ment rendered by the Honorable George Boldt

Plnt's Motion for Summary Judgment is denied. in United States v. State of Washington,

Defendants Boldt and Scofield to dismiss is (W.D. Wash., Civil No. 9213) and is an im-

granted. Motion of defendants State of permissible attempt to relitigate issues

Washington, Thor Tollefson and the Washington already litigated and ruled upon in that

State Dept. of Fisheries to dismiss is action, now therefore,

granted.

Plaintiff's motion for summary judgment

is hereby DENIED.

The motion of defendants Boldt and

Scofield to dismiss is GRANTED, and

The motion of defendants State of

Dated this 6 day of November, 1974. . . Washington, Thor Tollefson and the Washing-

ton State Department of Fisheries to dismiss

is GRANTED.

/s/ R. Chris . . IT IS SO ORDERED.

Deputy Clerk of Court The Clerk of this Court is instructed

to send uncertified copies of this order to

all counsel of record.

DATED at Seattle, Washington, this

~22- 6 day of November, 1974.

It is Ordered and Adjudged,

Case is dismissed.

/s/ Donald S. Voorhees

United States District Judge

a23<

FILED

MAY 27 1976 FILED

EMIL E. MELFI, JR. /s/ JID

CLERK, U.S. COURT OF APPEALS EMIL E. MELFI, JR.

CLERK, U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOREN BERGH,

Plaintiff-Apvpellant,) No. 75-1511

LOREN BERGH,

Vv.

STATE OF WASHINGTON; THOR ORDER Plaintiff-Appellant,, No. 75-1511

TOLLEFSON, Director of Wash- ‘ . Vv.

ington State Department of DOCKETED STATE OF WASHINGTON; THOR OPINION

Fisheries; WASHINGTON STATE

MAY 27 1976 TOLLEFSON, Director of

° . Vashington State Department

of Fisheries; WASHINGTON

STATE DEPARTMENT OF FISHERIES;

EDGAR SCOFIELD; GEORGE BOLDT:

De fendants-Appellees.

DEPARTMENT OF FISHERIES;

EDGAR SCOFIELD; GEORGE

BOLDT;

De fendants~-Appellees.

mee eee ee

Appeal from the United States District —

Court for the Western District of

Washington On Appeal from the United States

District Court For the

Before: CHAMBERS and KENNEDY, Circuit Judges, Western District of Washington

and JAMESON,* District Judge. ,

, ’ Before: CHAMBERS and KENNEDY, Circuit

Appellant's petition for rehearing is Judges, and *JAMESON, District

DENIED. Judge.

° . PER CURIAM:

Appellant Loren Bergh is a commercial

: ° fisherman, duly licensed by the State of

Washington. He brought suit seeking in-

jJunctive and declaratory relief against

the following: The Honorable George Boldt,

United States District Court; Edgar

Scofield, Clerk of the District Court for

the Western District of Washington; the

State of Washington and its Department of

Fisheries; and Thor Tollefson, the

department director. Appellant challenges

*Honorable William J. Jameson, United States

-24- District Judge for the District of Montana,

Sitting by designation.

25

*Honorable William J. Jameson, United States

District Judge for the Western District of

Viashington, sitting by designation

certain regulations, promulgated by

the State of Washington in response to

Judge Boldt's decision in United

States v. State of Washington, aff'd,

520 F.2d 676 (9th Cir. 1975), cert.

denied, 44 U.S.L.W. 3428 (U.S. Jan. l,

1976). Appellant claims that the regula-

tions gave Indian fishermen greater fishing

rights than non-Indian fishermen and that

this constitutes unlawful discrimination

on the basis of race, in violation of the

Civil Rights Act of 1866, 42 U.S.C.§ 1983,

and the fourth article and fourteenth

amendment of the Constitution. Specifically,

appellant sought to enjoin (1) Judge Boldt

from ordering the State of Washington to

promulgate regulations favoring Indian

fishermen, (2) Edgar Scofield from filing

any such order, and (3) Thor Tollefson and

the Washington State Department of Fisheries

from adopting and enforcing such regulations.

The district court dismissed the action in

a memorandum order dated November 6, 1974.

We affirm.

When an injunction sought in one

federal proceeding would interfere with

another federal proceeding, considerations

of comity require more than the usual measure

of restraint, and such injunctions should

be granted only in the most unusual cases.

Arthur Kahn Co. v. Switzer Bros., 201

F.2d 55 (6th Cir. 1952). Where, as here,

the two federal courts are of coordinate

jurisdiction, and their decisions are

reviewed by the same Court of Appeals, the

issuance of such an injunction is rarely, ‘

if ever, justified. United States v.

American Radiator & Standard Sanitary

Corp., 388 F.2d 201, 293-04 (3d Cir. 1967),

cert. denied, 390 U.S. 922 (1968). In such

cases, “[t]he proper exercise of restraint

in the name of comity keeps to a minimum

the conflicts between courts administering

the same law, conserves judicial time and

expense, and has a salutary effect upon

the prompt and efficient administration

of justice.” Brittingham v. Commissioner,

451 F.2d 315, 318 (5th Cir. 1971).

The injunction against Judge Boldt

and Clerk Scofield was properly denied on

the further ground that appellant lacks

standing to affect the disposition of an

action to which he is not a party. The

proper course would have been to

seek intervention. Fed. R. Civ. Pro. 24.

Dismissal of the complaint against

the State of Washington and its officials

was also proper. While the promulgation

cf regulations by the State of Washington

may result in future injury to appellant,

the constitutional challenge to the regula-

tion is not ripe for decision in the present

posture of this case. See Communist Party

of the United States v. Subversive Activities

Control Board, 367 U.S. 1, 70-81 (1961);

Poe v. Ullman, 367 U.S. 497, 500-509 (1961)

(opinion of Frankfurther, J.); United Public

Workers of America v. Mitchell, 330 U.S. 75,

86-91 (1947); Rincon Band of Mission

Indians v. County of San Diego, 495 F.2d

1, 2-7 (9th Cir. 1974). We note, moreover,

that the propriety of these regulations

was concurrently being considered by Judge

Boldt in United States v. State of Wash-

ington. As Mr. Justice Harlan has noted,

"A court may .. . in its discretion dis-

miss a declaratory judgment or injunctive

suit if the same issue is pending in

litigation elsewhere." Abbott Laboratories

v. Gardner, 387 U.S. 136, 155 (1967). The

dismissal of the complaint was therefore

proper as to all parties, and is hereby

affirmed.

CHAMBERS, Circuit Judge, concurring:

o27e

I concur in Judge Kennedy's opinion.

He has said all that is necessary to

dispose of the case.

However, there are other problems

with the case. Without arguing them or

listing all of them, I suggest a couple:

1. How on earth could the clerk of

the district court be a proper party?

2. How could Judge Boldt be a

proper party? (Counsel in oral argument

seemed to suggest it could be done by

Simply calling Judge Boldt by the name

of "Mr. Boldt.")

In a proper case, mandamus might lie,

but that is not available for a collateral

attack.

@28<

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA, et al,

Plaintiffs, CIviLb

NO. 9213

VS.

POST DECISION

MOTIONS

)

)

)

)

STATE OF WASHINGTON, ct al, 7 RULINGS ON

Defendants |

Following entry of Final Decision #1l

(TD#1) on February 12, 1974 a number of

motions for reconsideration and other pur-

poses were served and filed. After brief-

ing, all pending motions were heard on oral

argument March 5, 6, 18, 19 and 20, 1974.

During argument, Oral and tentative rulings

were made on a number of said motions and

ruling on other was deferred for further

consideration by counsel and the court.

The court fully reviewed all the proposals

of counsel pertaining to said motions, and

having considered each motion this order is

entered as formal and final ruling on each

and all of said motions.

1. Motions of Northwest Steelheaders

Council o. Trout Unlimited and Purse Seine

Vessel Owners Association to intervene as

parties defendant.

The motions of these organizations to

change their status from amicus curiae in

this litigation to intervenir defendants

is found by the court to be untimely and

unnecessary in each instance because their

interests have been and will continue to

be adequately represented by the State

of Washington, its Game Commission and

Fisheries Department and their counsel

=29@

and therefore each of said motions is here- ; , agreed solution. Therefore, ruling on this

by denied. Both organizations may continue motion is deferred, subject to reconsidera-

to act as amicus by serving and filing tion when the parties submit their final

briefs, both in this court and on appeal, report.

and in any proceeding in this court during

appeal. Either of said amici may apply 6. Fisheries’ motion for

for permission to participate in some other reconsideration.

particular in any future specific proceeding. .

This motion includes a considerable number

2. Washington Reef Net Owners Associa- of written questions submitted during

tion's motion to amend or make new Findings, argument. Each particular question pre-

Conclusions and Judgment. sented has been considered and in some

instances oral ruling was made thereon.

The court finding said motion without merit Rulings on all questions posed by

in all particulars, it is hereby denied. : ’ Fisheries are specified in Exhibit "A"

attached hereto and by this reference are

3. Yakima Nation's motions for (a) made a part hereof. Said rulings are

Reconsideration of FD#l re state power to . . hereby confirmed as the formal and final

regulate federal treaty right fishing and order of said motion in each and all

(b) for approval of self-regulating status. particulars.

Motion 3(a) was heard, considered and denied 7. Game's motion for clarification

thereof is hereby confirmed. Motion 3(b) and amendment of Final Decision #1.

is granted subject to adoption of a regula- —

tion by the Yakima Nation comparable to that The oral decision on 3/6/74 holding that

filed with the court by the Quinault Tribe treaty right fishermen may sell or other-

on 3/18/74. wise deal commercially with steelhead

taken per tribal regulations at usual

4. Quinault, Makah, Lummi and and accustomed places is hereby affirmed.

Quileute Tribes' motion re adjudication The motion is otherwise denied, except

of allocation of propagated and natural as provided in the rulings on the

fish. Fisheries' motion.

The court has jurisdiction to adjudicate ° 8. Motions for attorneys' fees and

such issue in this case but hereby costs.

reaffirms the ruling stated in FD#l pro- ; .

viding for initial adjudication by state By agreement these motions will be heard

courts. and determined at an early date following

briefing on a stipulated schedule.

5S. Lummi tribe motion for post FD#l

order re Lummi reef net fishing. Exceptions to any of said rulings by

any party aggrieved thereby is hereby

The parties involved have reported to the noted.

court that they are near reaching an

-30- ate

IT IS SO ORDERED.

Upon entry hereof the Final Decision

7l and the Declaratory Judgment and

Decree entered herein 2/12/74 become

unreservedly final and reviewable as pro-

vided by 28 U.S.C.A. 2201.

Dated this 22nd day of March, 1974.

/s/ George H. Boldt

Senior United States District Judge

o32<-

664

[1]

{2]

{3}

(4)

[5]

[6]

[7]

{8}

DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

{No. 43736. En Banc. April 8, 1976.]

THE DEPARTMENT OF GAME, ET AL, Respondents, v.

PUYALLUP TRIBE, INC., ET AL, Appellants.

Fish—Indians—State Conservation Rules—Jurisdiction—In Gen-

eral. The State has jurisdiction to determine the extent to which it

may regulate resources for conservation purposes, and the extent to

which treaty rights may exempt Indians from such conservation

regulations.

Courts—Jurisdiction—Federal Issue—Kemand. A remand from the

United States Supreme Court to the Supreme Court for determina-

tion of a federal issue confers jurisdiction upon the Supreme Court

for such purposes.

Fish—Iindians—Siate Conservation Rules—Jurisdiction—On-Reser-

vation Controis. The jurisdictional scope of the State's powers to

enforce fish resource conservation regulations is unaffected by the

boundaries of an Indian reservation. When required to meaning-

fully control the conservation of a species of fish, both on-reserva-

tion and oif-reservation areas may be regulated by the State

Courts—Jurisdiction—Comity—Latcer Federal Action, Tie incre

happenstance of a later-commenced f[cdcral court action treating a

sim.lar subject matter does not affect the jurisdiction of the State

to continue seeking a determination in a prior matter in the State’s

courts.

l'ish—Indians—State Conservation Rules-——Net Fishery—Require-

ment. There is no requirement, under the Treaty of Medicine

Creek, that the Department of Game create regulations permitting

an Indian net fishery for steelhead trout.

Indians—Treaties—Construction—Intent of Parties—In General.

While Indian treaties are generally to be construed to reficct the

Indians’ understanding when in conflict with technical meanings,

and to favor the Indians and resolve ambiguitics in their favor,

such construction rules do not require that the Indians’ under-

standing must prevail, nov may the clear terms of a treaty be

altered or construed to mean other than what they state even

though other results may be considered desirable.

Fish—Indians—Stlate Conservation Rules—“In Common With.” The

right of Indians under the Treaty of Medicine Creck to fish “in

common with” others merely means that fishing conservation regu-

lations must accord cqual treatment to both Indian and non-Indian

fishermen.

Fish—Indians—-Siate Conservation Rules—Usual and Accustomed”

Places. The right of Indians under the Treaty of Medicine Creck to

-33-

Apr. 1976] DIP’T OF GAME v. PUYALLUP TRIBE 665

have access to their usual and accustomed fishing grounds may not

be contravened by the State.

[9] Fish—Indians—State Conservation Ruies—Method of Fishing. Fish

conservation regulations dealing with the methods by which a

particular spccics is taken must, under both the federal cqual

protection mandate and the Treaty of Medicine Creek, apply

equally to both Indian and non-Indian fishermen.

{10] Fish—Indians—Treaties—Natural and Artificial Fish Runs—Ap-

plication. Any rights accorded Ind‘ans by the Treaty of Medicine

Creck to a net fishery are only applicable to natural fish runs.

Artificial-source fish runs are beyond the scope of the treaty.

[11] Appeal and Error—Review—Discretionary Matter. A matter sub-

ject to the cquitable discretion of the trial court will not be

disturbed on review in the absence of a manifest abuse of such

discretion.

[12] Fish—Indians—State Conservation Rules—Stleclhead Trout—Allo-

cation. The Department of Game is the proper agency to allocate

steelhead trout fish runs between Indian and non-Indian fishermen

under the department's conservation regulations.

Starroxp, C.J., and RoOsei..ini, Wriciutr, Utren, BRrRAciwvENgtACH, and

Horowitz, JJ., concur by separate opinions,

Appeal from a judgment of the Superior Court for Pierce

County, No. 158069, William L. Brown, Jr., J., entered

April 8, 1975. Affirmed as modified.

Action to determine Indian steelhead trout fishing rights.

Appeal taken from a judgment determining rights and allo-

cating portions of the fish run.

Stan Pitkin, United States Attorney; Harry J. McCarthy,

Assistant Attorney of the United States; George D. Dysart,

Assistant Regional Solicitor; and William H. Rodgers, Jr.,

for appellant Puyallup Tribe, Inc.

John Sennhauser, for appellant Bennett.

Slade Gorton, Attorney General, and Edward B. Mackie,

Deputy, for respondent State.

Willner, Bennett, Riggs & Skarstad, by Don S. Willner,

and Riddell, Williams, Ivie, Bullitt & Waikinshaw, by Vin-

cent R. Larson, for respondenis Northwest Steelheaders, et

al.

o%4e

666 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

HuNTER, J.—The appellants (defendants), the Puyallup

Tribe and Ramona Benrett, the Tribal Council

chairwoman,’ appeal from a decision of the Superior Court

for Pierce County, which determined the extent of their

right to commercially fish for steelhead. The Washington

State Department of Gamc has also appealed from certain

aspects of the trial court’s decision.

This case does not involve a conflict of recent origin.

Rather, the initial litigation commenced in 1963. Since that

time, we have written two decisions, both of which have

been reviewed by the United States Supreme Court. In

order to place the present case in proper perspective, we

shall initially set forth the nature of the issues previously

raised and the decisions rendered.

In Department of Game v. Puyallup Tribe, Inc., 70 Wn.2d

245, 422 P.2d 754 (1967), we recognized that the Puyallup

Tribe still existed ard that its members enjoyed certain

fishing rights under the Treaty of Medicine Creek. Further-

more, we held that these rights could only be limited

through statute or regulations to the extent reasonably nec-

essary for the conservation of the fishery. On review, the

United States Supreme Court aflirmed our decision. It held

that while the rights secured by the treaty extended to

off-reservation fishing, nevertheless “the manner of fishing,

the size of the take, the restriction of commercial fishing,

and the like may be regulated by the State in the interest

of conservation, provided the regulation meets appropriate

standards and does not discriminate against the Indians.”

Puyallup Tribe v. Department of Game, 391 U.S. 392, 358,

20 L. Ed. 2d 689, 88 S. Ct. 1725 (1967) (hereinafter cited as

Puyallup I). However, that court remanded the case for a

determination of the issue of whether the total bar against

erroneous, there being no entity known as “The Puyallup Tribe, Inc., a

corporation.’ The Puyallup Tribe of Indians did appear and cuswer by

and through the chairman of the Tribal Council.” Department of Game

v. Puyallup Tribe, Inc., 70 Wn.2d 245, 247 n.1, 422 P.2d 754 (1967),

quoted in Department of Game v. Puyallup Tribe, Inc., 80 Wn.2d 561,

563 n.1, 497 P.2d 171 (1972).

-35-

Apr. 1976) DEP’T OF GAME vy. PUYALLUP TRIBE 667

the use of set nets in freshwater streams or at their mouths

was a reasonable and necessary conservation measure. In

response to this decision, the Department of Fisheries,

charged with the duty of regulating the salmon fishery,

changed its regulations to allow a net fishery for salmon in

those arcas of the Puyallup River not utilized for spawning.

On the other hand, the Department of Game, which is

the governing agency with regard to steelhead, refused to

pass a similar regulation and continued to prohibit all net

fishing for steelhead trout. In an appeal to this court, we

held that the regulations passed by the Department of Fish-

eries were reasonable and consistent with the necessary

conservation standards. Department of Game v. Puyallup

Tribe, Inc., 80 Wn.2d 561, 497 P.2d 171 (1972). In regard to

stcelhead, we stated that while the Indians may have a

risht to a net fishery, nevertheless the steciIhead rvn was

not of sufficient size to withstand a commercial net fishery

for that year. On review, the United States Supreme Court

held that a total ban of net fishing would discriminate

against the Indians, since the steclhead fishery was totally

preempted by the hook and line, nen-Indian sport fisher-

men. Department of Game v. Puyallup Tribe, 414 U.S. 44,

38 L. Ed. 2d 254, 94 S. Ct. 380 (1973) (hereinafter cited as

Puyallup 1). That court remanded the cause for a determi-

nation of the percentage of the run which had to ke ai-

lowed to escape in order to perpetuate the species, and the

number of catchable fish which had to be apportioned to ar.

Indian commercial net fshery. In a concurring cpinion,

three Justices noted that the majority opinion applied only

to the natural run of steelhead.

On remand, the Superior Court for Pierce County held

that the fishing rights afforded under the treaty did not

extend to the hatchery run, that one-half of the natural run

had to be allowed to escape in order to pervetuate the

species, and that the Indians were entitled to catch 45

percent of the remaining one-half of the natural run. The

Puyallup Tribe has appeaied from the trial court’s decision

in its entirety. The State Department of Game has appealed

-36-

668 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

from that portion of the decision which determined the size

of the total natural run and the apportionment of 45 per-

cent of the catchable fish to the tribe.

[1} At the outset it seems appropriate to discuss the

jurisdictional aspects of this case. Appellants have con-

tended all along that the state courts do not have jurisdic-

tion in this matter because issues pertaining to federal

treaty rights are exclusively federal matters. We belicve

this contention is without merit for two reasons. First, in

this case the State is concerned with a matter that is

clearly within its jurisdiction—it is seeking to determine

the extent to which it can apply its sovereign power

to regulate resources for the purpose of conservation. See

Puyallup I at 398-400. In order to do so, it is necessary to

determine the extent to which Indians may be exempt from

state regulations because of overriding federal treaty

rights. See State ex rel. Campbell v. Cose, 182 Wash. 334,

341, 47 P.2d 24 (1935). In this posture, the case is analogous

to “a suit to enjoin violations of state law by individual

tribal members fishing off the reservation,” a situation

clearly within state jurisdiction. See P«yallup I at 397 n.11.

[2] Second, and more importantly, jurisdiction is

proper because the United States Supreme Court specifi-

cally remanded this case for a determination of a fair allo-

cation that “accommodate/s] the rights of Indians under

the Treaty and the rights of other people.” See Puyallup II

at 49. We view Puyallup II as expressly conferring jurisdic-

tion in this matter in the state courts.

{3,4] It has also been contended that the recently es-

tablished, continuing existence of the Puyallup Indian Res-

ervation, see United States v. Washington, 496 F.2d 620

(9th Cir. 1974), cert. denied, 419 U.S. 1032 (1974), pre-

cludes any state jurisdiction over activitics occurring

within the reservation boundaries. We believe that this is

at most simply not the case, and at least an open question

after Mattz v. Arnett, 412 U.S. 481, 485, 37 L. Ed. 2d 92, 93

S. Ct. 2245 (1972). In addition, the Supreme Court’s clear

mandate in Puyallup IT would seem to include on-reserva-

a3Te

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 669

tion state jurisdiction. In order to control the escapement

necessary for the conservation of the species, it is inescap-

able, given the geography in this case, that the State must

be able to control on-reservation fishing activities. State

regulation of on-reservation fishing is mandated by, and

consistent with, the Supreme Court’s view of Indian treaty

rights as presented in Puyallup II at page 49:

We do not imply that these fishing rights persist down

to the very last sicelhead in the river. Rights can be

controlled by the need to conserve a species; and the

time may come when the life of a steelhead is so precar-

ious in a particular stream that all fishing should be

banned until the species regains assurance of survival.

The police power of the State is adequate to prevent the

stcelnead from foliowing the fate of the passenger pi-

geon; and the Treaty does not give the Indians a tederal

right to pursue the last living steelhead until it enters

their ncts.

Finally, any suggestion that this court should defer to the

United States District Court of Western Washington, in

light of its continuing jurisdiction in a similar fishing mat-

ter, on grounds of comity, is not well taken. The present

case was remanded by the Supreme Court to the state

courts before that federal action was even started. There is

no reason we should defer to the subsequently commenced,

ongoing litigation in that federal court.

Therefore, we conclude that our jurisdiction is proper.

Furthermore, as will be indicated later in the opinion, con-

tinuing jurisdiction over the Indians’ steelhead fishery must

be exercised by the State Department of Game.

Before considering the issues raised by the appellants

and cross-appellants, an analysis of the United States Su-

preme Court’s decision in Puyallup II is essential. Reading

Puyallup II in context with Puyallup I, we feel that the

issue of whether the Treaty of Medicine Creck gives the

Indians a right to a commercial net fishery is at least an

open question. In Puyallup IT, the United States Supreme

Court stated on page 48: “Our prior decision recognized

that net fishing by these Indians for commercia: purposes

othe

670 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

was covered by the Treaty. 391 U.S., at 398-399.” However,

as demonstrated below, the language of Puyallup I docs not

bear this out. In Puyallup I, the United States Supreme

Court made the following statement on page 398:

The treaty right is in terms the right to fish “at all

usual and accustomed places.” We assume that fishing by

nets was customary at the time of the Treaty; and we

also assume that there were commercial aspects to that

fishing as there are at present. But the manner in which

the fishing may be done and its purpose, whether or not

commercial, are not mentioned in the Treaty. We would

have quite a different case if the Treaty had preserved

the right to fish at the “usual and accustomed places” in

the “usual and accustomed” manner. But the Treaty is

silent as to the mode or modes of fishing that are guaran-

teed. Moreover, the right to fish at those respective places

is not an exclusive one. Rather, it is one “in common

with all citizens of the Territory.” Certainly the right of

the latter may be regulated. And we sce no reason why

the right of the Indians may not also be regulated by an

appropriate exercise of the police power of the State. The

right to fish “at all usual and accustomed” places may, of

course, not be qualified by the State, even though all

Indians born in the United States are now citizens of the

United States. Act of June 2, 1924, 43 Stat. 253, as su-

perseded by § 201(b) of the Nationality Act of 1940, 8 U.

S. C. § 1401(a) (2). But the manner of fishing, the size of

the take, the restriction of commercial fishing, and the

lise may be regulated by the State in the interest of

conservation, provided the regulation meets appropriate

standards and does not discriminate against the Indians.

In the final paragraph of the Puyallup I opinion, the Su-

preme Court drew the following conclusion on pages 401-

03:

Whether the prohibition of the use of set nets in these

fresh waters was a “reasonable and necessary” (70 Wash.

2d, at 251, 422 P.2d, at 764) conservation measure was

left for determination by the trial court when the Su-

preme Court, deeming the injunction in No. 247 too

broad, remanded the case for further findings. When the

case was argued here, much was said about the pros and

the cos of that issue. Since the state court has given us

no authoritative answer to the question, we leave it un-

-39-

Apr. 1976) DEP’T OF GAME v. PUYALLUP TRIBE 671

answered and only add that any ultimate findings on the

conservation issue must also cover the issue of equal

protection implicit in the phrase “in common with.”

(Footnotes omitted.) Therefore, it certainly appears that

the United States Supreme Court in Puyallup I declined to

interpret the Medicine Creek Treaty with regard to the

Indians’ right to a net fishery. We recognized this in our

second decision, Department of Game v. Puyallup Tribe,

Inc., 80 Wn.2d 561, 497 P.2d 171 (1972), when we stated on

page 568:

[TJhere can no longer be any question that whatever the

United States Supreme Court may ultimately construe to

be the Indian rights to fish under the Medicine Creek

Treaty, they are subject to the reach of the state powers

and regulations necessary to the conservation of the fish-

ery, providing the regulations are not discriminatory

against the Indians.

T

\ i

Lalics ours. )

[5] In addition, it is important to place our decision in

the above case in the correct perspective. The controlling

issue there was the validity of regulations enacted py the

Department of Fisheries and the Department of Game. The

Department of Fisheries’ regulations allowed an Indian net

fishery in the Puyallup River fer salmon, subject to certain

limitations for conservation purposes. The Department of

Geme regulations prohibited a net fishery for steelhead.

Our decision was designed to determine the reasonableness

of regulations and not to interpret the treaty itself. It was

unnecessary to decide whether the Department of Game

was required to pass a regulation allowing a net fishery for

steelhead. Consequently, we overstated our case by indicat-

ing that an Indian net fishery was a matter of right under

the treaty. To the extent that our decision lends itself to

this interpretation, it is hereby overruled.

Considering the present appeal in this posture, we now

direct our analysis to the interpretation of the Treaty of

Medicine Creek that we deem to be correct. We feel that an

interpretation is necessary as an initial matter in order to

-40-

672 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

arrive at an allocation of steelhead in the Puyallup River

that is consistent with and takes into account Indian rights

under the treaty. Those rights must be determined before

they can be given effect.

If the Treaty of Medicine Creek, December 26, 1854 (10

Stat. 1132), provides the Puyallup Indians with any fishing

right at all beyond those possessed by ordinary citizens, the

provision that does so is article 3 (10 Stat. 1133). See

Puyallup I at 394-95 n.1. The pertinent language of article 3

is the following:

The right of taking fish, at all usual and accustomed

grounds and siations, is further secured to said Indians, in

common with all citizens of the Territory

(Italics ours.) It is the interpretation of this treaty lan-

guage that is crucial to any determination of Indian fishing

rights. As with any Indian treaty, of course, certain long-

standing and often stated rules of construction govern this

very significant interpretation.

[6] The rules of interpretation applicable to Indian

treaties have been variously stated. Basically, treaties are

to be interpreted in accord with the intent of the parties.

So far as possible, the sense in which the Indians under-

stood the treaties rather than a technical legal meaning

should be given effect. Choctaw Nation v. Oklahoma, 397

U.S. 620, 631, 25 L. Ed. 2d 615, 90 S. Ct. 1328 (1970);

Choctaw Nation of Indians v. United States, 318 U.S. 423,

432, 87 L. Ed. 877, 63 S. Ct. 672 (1943); United States v.

Shoshone Tribe, 304 U.S. 111, 116, 82 L. Ed. 1213, 58 S. Ct.

794 (1938); Starr v. Long Jim, 227 U.S. 613, 623, 57 L. Ed.

670, 33 S. Ct. 358 (1913), quoting Jones v. Meehan, 175 U.S.

1, 11, 44 L. Ed. 49, 20 S. Ct. 1 (1899); United States v.

Winans, 198 U.S. 371, 49 L. Ed. 1089, 25 S. Ct. 662 (1905);

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 581, 8 L. Ed.

483 (1832). The United States Supreme Court stated this

principle in Tulee v. Washington, 315 U.S. 681, 684, 86 L. Ed.

1115, 62 S. Ct. 862 (1942), as foliows:

It is our responsibility to see that the terms of the treaty

are carried out, so far as possible, in accordance with the

ajo

Apr. 1976] DE?’T OF GAME v. PUYALLUP TRIBE 673

meaning they were understood to have by the tribal rep-

resentatives at the council, and in a spirit which gener-

ously recognizes the full obligation of this nation to pro-

tect the interests of a dependent people.

Another recognized rule of construction requires that the

language in treaties and statutes ratifying agreements with

the Indians be construed liberally in favor of the Indians

and never to their prejudice. Antoine v. Washington, 420

U.S. 194, 199, 43 L. Ed. 2d 129, 95 S. Ct. 944 (1975); Choc-

taw Nation of Indians v. United States, supre at 431;

Vorcester v. Georgia, supra. Likewise, any ambiguities or

“doubtful expressions” are to be resolved in favor of the

Indians. McClanahan v. Arizona Tax Comm’n, 411 U.S. 164,

174, 36 L. Ed. 2d 129, 93 S. Ct. 1257 (1973), quoting Carpen-

ter v. Shaw, 2380 U.S. 363, 367, 74 L. Ed. 478, 50 S. Ct. 121

(1930); Choctaw Nation v. Oklahoma, supra; Winters v.

United States, 207 U.S. 564, 576, 52 L. Ed. 340, 28 S. Ct. 207

(1908).

These canous of construction, however, are not without

their limitations. With regard to the rule that resolves am-

biguities in favor of the Indians, the United States Supreme

Court recently stated in DeCoteau v. District County Court,

420 U.S. 425, 447, 43 L. Ed. 2d 300, 95 S. Ct. 1082 (1975), as

follows:

We give this rule the broadest possibie scope, but it re-

mains at base a canon for construing the complex trea-

ties, statutes, and contracts which define the status of

Indian tribes. A canon of construction is not a license to

disregard clear expressions of tribal and congressional

ailent,

(Italics ours.) Similar limitations apply to all the liberal

rules of construction mentioned above. First, the attempt as

an initial matter, to prefer the Indians’ understanding of a

treaty does not mean that their alleged understanding must

prevail. “|E|ven Indian treaties cannot be rewritten or ex-

panded beyond their clear terms to remedy a claimed injus-

tice or to achicve the asserted understanding of the par-

tics.” Choctaw Nation of Indians v. United States, supra at

432. See Skokomish Indian Tribe v. France, 220 F. 2d 205,

‘

+

wd2a

674 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

207 (9th Cir. 1963). The United States Supreme Court has

also stated that

[w]e attempt to determine what the partics meant by

the treaty. We stop short of varying its terms to mecct

alleged injustices. Such generosity, if any may be called

for in the relations between the United States and the

Indians, is for the Congress.

(Footnote omitted.) Northwestern Bands of Shoshone Indt-

ans v. United States, 324 U.S. 335, 353, 89 L. Ed. 985, 65 S.

Ct. 690 (1945).

Second, the Supreme Court has said that it cannot

“under the guise of interpretation, create presidential au-

thority where there was none, nor rewrite conrressional

acts so as to make them mean something they obviously

were not intended to mean.” Confederated Bands of Ute

Indians v. United States, 330 U.S. 169, 179, 91 L. Ed. 823, 67

S. Ct. 650 (1947). Indian rights cannot be determined

“under any acceptable rule of interpretation” mercly be-

cause the Indians thought the right existed. Confederated

Bands of Ute Indians v. United States, supra at 180. Hence,

if the language in an Indian treaty is clear and unambigu-

ous, then the courts cannot interpret the treaty in a way

that will expand or go beyond the rights that are plainly

set out by the treaty.

As heretofore stated, the important language to be con-

strued in article 3 of the Treaty of Medicine Creck is “|t}he

right of taking fish . . . is further secured to said Indi-

ans, in common with all citizens of the Territory.” The

meaning of this clause is clear and unambiguous on its face.

ts plain meaning has significance and confers a distinct

benefit. However, interpretation of the treaty requires us

to construe and give meaning to the phrase “in common

with.”

[7,8] The general meaning of “common” has changed

very little since the Treaty of Medicine Creek was written.

Cumpare N. Webster, An American Dictionary of the Eng-

lish Language 231 (1862), and A Dictionary of American

English 575 (W. Craige ed. 1936) with Webster's Third

-43-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRILE 675

New International Dictionary (1961). The basic definition

of “common” is not complicated. “Common” means “of or

relating to a community at large (as a family unit, social

group, tribe, political organization, or alliance) .. .” It

therefore seems obvious that this treaty provision simply

means that the Indians share in common, that is, share

equally, with other citizens the opportunity to take fish.

This treaty provision requires that as to their “accustomed

grounds and stations” the Indians must not be denied the

right to fish to the same extent as all other citizens of the

state. State regulations governing fishing resources must

treat Indians no better or worse than other citizens.

The United States Supreme Court scemed to recognize

this interpretation when it said in the last paragraph of

Puyallup 1, on page 403, “that any ultimate findings on the

conservation issue must also cover the issue of equal pro-

teclion implicit in the phrase ‘in common with.’ ” History

also supports the view that the intent of the parties, as is

clear from the provision’s language, was to preserve equal

treatment for the Indians.

There were absolutely no limitations on anyone, Indian

or non-Indian, as to the steelhead or salmon harvest until the

last part of the nineteenth century. See Uncommon Contro-

versy: Fishing Rights of the Muclleshoot, Puyallup, and

Nisqually Indians 61-62 (A Report Prepared for the Ameri-

can Friends Service Comm.) (U. W. Press 1970); Johnson,

The States Versus Indian off-Reservation Fishing: A

United States Supreme Court Error, 47 Wash. L. Rev. 207,

213-14 (1972).? This fact clearly indicates that at the time

‘Up to 1921, the regulation of the fisheries that did occur was

undertaken directly by the state legislature without technical help. The

regulations reflected no more than a cursory knowledge of conservation

requirements and consisted of limited time closures and increasin=ly

stricter limitations on fixed gear. J. Crutchfield & G. Pontecorvo, The

Pacific Salmon Fisheries 131-32 (1969). See, ¢.g., Laws of 1899, ch. 117,

gs 1 and 2, p. 194-95; Laws of 1897, ch. 82, $$ 1-3, p. 214-16. See also

State v. Allen, 80 Wash. $3, 141 P. 292 (1914). |

The use of the most cifective incthcds of catching fish, c.g., xed

appliances such as fish traps and setnets, was not complete ly prohibited

until 1935. Laws of 1935, ch. 2, § ®, p. 6. This prohibition was the result

a44-

676 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

of the treaty in 1854, the parties did not contemplate the

event of conservation requirements necessary to preserve

the species. There was an inexhaustible supply of fish, see

Uncommon Controversy, supra at 4 n.3, 61-62, and the

treaty was undoubtedly premised on this condition. Conse-

quently, it is inconceivable that the parties to the treaty

contemplated an allocation of the fish or an advantage of

one over the other in the manner of taking fish. The fish

were there for the taking. It was important only for the

Indians to enjoy the right of taking fish in common with,

i.e, on an equal basis with, the citizens of the territory.

This is exactly what the parties must have intended. It is

what the language of article 3 plainly provides in addition

to assuring the Indians access to certain geographical fish-

ing areas.

Our interpretation of article 3 means that Indians under

treaties concerning fishing rights “in common with all citi-

zens” are, to the same extent as other citizens, subject to

state conservation regulations that meet appropriate stan-

dards. See Puyallup I at 398-99. However, the Indians’

treaty right to fish “at all usual and accustomed grounds

and stations” cannot be qualified by the State. See Antoine

v. Washington, supra at 206-07; Puyallup I at 398; United

States v. Winans, supra at 381, 384. Thus the treaty lan-

guage guarantees the Indians access to their usual and ac-

customed fishing grounds. This right of access cannot be

contravened by the State even in the exercise of its police

power for the conservation of fish as a natural resource.

But the State can, for the purposes of conservation, prop-

erly regulate the public’s right to fish and such regulations

are applicable equally to Indians and non-Indians.

The United States Supreme Court’s treatment of similar

language in other Indian treaties is consistent with the

above analysis. For instance, the court stated in United

not of legislative action but of an initiative measure which was ap-

proved at the senecral clection on November 6, 1934. Morcover, it was

not until 1947 that the steclhead specics was classified as a game fish

and thus became subject to the special regulations enforced by the

Department of Game. See Laws of 1947, ch. 275, § 10, p. 1200.

~~)

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 677

States v. Winans, supra at 381, that the right of taking fish

at all usual and accustomed places

was a right outside of those boundaries [the reservation ]

reserved “in common with the citizens of the Territory.”

As a mere right, it was not exclusive in the Indians.

Citizens might share it, but the Indians were secured in

its enjoyment by a special provision of means for its

exercise.

The court further stated that this right does not “restrain

the State unreasonably, if at all, in the regulation of the

right. It only fixes in the land such easements as enables

the right to be exercised.” United States v. Winans, supra

at 384.

Other Supreme Court treatments of this problem recog-

nize more explicitly the equal regulation aspect. In New

York ex rel. Kennedy v. Becker, 241 U.S. 556, 563, 60 L. Ed.

1166, 36 S. Ct. 705 (1916), which, as against Indians claim-

ing a treaty right, upheld a state rezulation prohibiting

spear fishing, the Supreme Court justified the result as

follows:

Rather are we of the opinion that the [treaty] clause is

fully satisfied by considering it a reservation of a privi-

lege of fishing and hunting upon the granted lands in

common with the grantees, and others to whom the privi-

lege might be extended, but subject nevertheless to that

necessary power of appropriate regulation, as to all those

privileged, which inhered in the sovereignty of the State

(Italics ours.)

In Tulee v. Washington, supra at 685, the Supreme Court

held that a state regulation requiring license fees for fish-

ing could not be applied to Indians because “such exaction

of fees as a prerequisite to the enjoyment of fishing in the

‘usual and accustomed places’ cannot be reconciled with a

fair construction of the treaty.” However, the Supreme

Court did clearly recognize the State’s right to regulate for

conservation when it stated earlier in the opinion on page

684, that

the treaty leaves the state with power to impose on Indi-

ans, equally with others, such restrictions of a purely

-46-

678 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

regulatory nature concerning the time and manner of

fishing outside the reservation as are necessary for the

conservation of fish .

(Footnote omitted.)

Further support for the interpretation presented above

—that the Indians share equally, i.e., in common with other

citizens, the public right to fish and, in addition, are guar-

anteed access to certain fishing locations—is found in Seu-

fert Bros. Co. v. United States, 249 U.S. 194, 63 L. Ed. 555,

39 S. Ct. 203 (1919). This case is particularly relevant

because it involved article 3 of the Treaty with the Yaki-

mas, June 9, 1855 (12 Stat. 25). That provision is nearly

identical to articie 3 of the Treaty of Medicine Creck. The

two treaties were entered into contemporaneously. See

Seufert Bros. Co. v. United States, supra at 196. The Su-

preme Court interpreted the treaty language as follows:

How the Indians undersiood this proviso we are con-

sidcring is not doubtful. During all the years since the

treaty was signed they have bcen accustomed habitually

to resort for fishing to the places to which the decree of

the lower court applies, and they have shared such places

with Indians of other trikes from the south side of the

river and with white men. This shows clearly that their

understanding of the treaty was that they had the right

to resort to these fishing grounds and make use of them

in common with other citizens of the United States,—and

this is the extent of the right that is secured to them by

the decree [injunction] we are asked to revise.

Seufert Bros. Co. v. United States, supra at 198-99. See

Puyallup I at 399.

We conclude therefore that a proper interpretation of the

Treaty of Medicine Creek permits the State to promulgate

conservation regulations meeting appropriate standards

that affect all citizens, Indian and non-Indian, equally.

However, such regulations cannot deny the Indians access

to their usual and accustomed fishing places, nor can they

restrain Indian fishing at those places except to the extent

the regulations restrain the fishing rights of all state citi-

-47<

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 679

zens, e.g., regulations as to time and manner of fishing, size

of catch, ete.

It should be noted that this interpretation of the treaty

grants to the Indians certain rights that they otherwise

would not clearly have retained at the time. In addition to

guarantceing access to certain fishing locations, article 3 of

the treaty put them on an equal footing with “all citizen

of the Territory.” Admittedly, such equal treatment would

be superfluous today—it would give the Indians no addi-

tional rights beyond those that they already possess. But at

the time of the treaty, equal footing with citizens of the

Territory was very significant. When the treaty was writ-

ten Indians were not citizens and, in addition, some of the

normal methods of obtaining citizenship were not open to

them. Sce Cohen’s Handbook of Federal Indian Law 154

(1971). Article 3 served a definite purpose because it as-

sured the Indians that they would have a right to uninhib-

ited access to their usual and accustomed fishing grounds.

This guaranty was not unimportant in the context of a

government policy designed to restrict the Indians to resi-

dence on the reservations as much as possible in order to

avoid conflict between the Indians and the seiilers. See E.

Swindwell, Report on Source, Nature, and Extent of the

Fishing, ITunting and Miscellaneous Related Rights of Cer-

tain Indian Tribes in Washington and Oregon 55, 58-59

(Department of the Interior, 1942); Uncommon Contro-

versy, supra at 41-49: Coan, The Adoption of the Reserva-

tion Policy in Pacific Northwest 1853-1855, 23 Ore. Histori-

cal Q. 1, 12, 14 (1922). Consequently, the interpretation

above, which means the Indians were assured equal treat-

nent at the time of the treaty (plus the absolute right of

access to certain locations), does not mean that the Indians

were merely given something that they would have had even

without the treaty. Cf. Unite ed St 0 v. Winans, 198 U.S.

371, 380, 49 L. Ed. 1089, 25 S. Ct. 662 (1905)

Certain rhage d rights may now “et nugatory duc to sukse-

quent events, that is, they are now enjoyed by the Indians

] 1 ] ae e 4} Tattnall Ge

simply wecause i.ney are citizens oi the uni ed States. Th

-48-

LL LLL nnn e-em see

680 DEP’T OF GAME v. PUYALLUP TRIBE {[Apr. 1976

%~

does not mean, however, that a court in the context of

interpretation can expand and rewrite a treaty beyond its

clear meaning at the time it was entered into. See Choctaw

Nation of Indians v. United States, 318 U.S. 423, 87 L. Ed.

877, 63 S. Ct. 672 (1943).

The Treaty of Medicine Creek clearly provided for sig-

nificant rights at the time it was concluded. The treaty

cannot now be expanded beyond its unambiguous terms

even if some of those terms have been superseded, thus

making the treaty arguably unjust. See Northwestern

Bands of Shoshone Indians v. United States, 324 U.S. 335,

89 L. Ed. 985, 65 S. Ct. 690 (1945).

Because the treaty, as well as the equal protection guar-

antics to the Constitution, demands that the Indians re-

ceive cqual treatment, it is uncontroverted that any state

regulation of fishing may not discriminate, that is, the regu-

lations must apply equally to all citizens whether Indian or

non-Indian. See Puyallup I at 398, 403; cf. New York ex rel.

Kennedy v. Becker, supra at 562. In the absence of an

overriding federal treaty right granting the Indians a right

to fish for steelhead trout with nets, state regulations al-

lowing Indians to fish with nets while denying that manner

of fishing to other citizens would be discriminatory and,

hence, improper. Cf. State ex rel. Campbell v. Case, 182

Wash. 334, 341, 47 P.2d 24 (1935). Equal protection is de-

nied when similarly situated persons, ¢.g., all state citizens

including Indians, are treated differently by allowing only

a certain class to fish with nets. See Truax v. Corrigan, 257

U.S. 312, 334, 66 L. Ed. 254, 42 S. Ct. 124, 27 A.L.R. 375

(1921); Siate ex rel. Bacich v. Iuse, 187 Wash. 75, 80, 59

P.2d 1101 (1936). Thus there would be no discrimination if

all oat fish ngs, including Indian net fishing, were prohib-

ited. There is also no discrimination where all state citizens

are er allowed to fish by a certain method, ¢.g., by hook

and line. legal discrimination would occur o1 ily ee ere one

group is given special rights that the other group is denied,

e.g., allowing cnly Indians to net fish or allowing only

non-Indians to fish with hook and line. See Thomson v.

-49-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBF 681

Dana, 52 F.2d 759, 764 (D. Ore. 1931), aff’d per curiam, 285

U.S. 529, 76 L. Ed. 925, 52 S. Ct. 409 (1932); State v. Hals,

90 Wash. 540, 542-43, 156 P. 395 (1916); Barker v. State

Fish Comm’n, 88 Wash. 73, 76-77, 152 P. 537 (1915).

19] Therefore, in the absence of special federal rights,

state regulations permitting only one group to utilize a

certain fishing method would be discriminatory and in vio-

lation both of constitutional equal protection guaranties

and the straightforward language of the Treaty of Medicine

Creek. Consequently, we hold that the manner of fishing

permitted by any regulation for the conservation of the

fishery must apply the same to Indians as to non-Indians.

For example, if the prohibition of net fishing is necessary

for the preservation of the fishery, it must be cqually ap-

plied both to Indians and non-Indians in order to come

within the ambit of the equal protection clause of the

Uniied States Constitution and the “equal protection” im-

plication of article 3 of the Treaty of Medicine Creck.

As previously mentioned, we feel that the juxtaposition

of Puyallup II beside Puyallup I demonstrates that the

interpretation of the Treaty of Medicine Creek is an open

question. For this reason, we have rendered the decision

akove as the first phase of our opinion. We recognize that

the ultimate disposition of the treaty interpretation ques-

tion is, however, vested w.th the United States Supreme

Court. Moreover, we feel constrained by the express lan-

guage on the face of Puyallup II, when considered indepen-

dent of Puyallup I, to defer to the statement in Puyallup I,

recomnizing an Indian rieht to a net fishery. Therefore,

pending an ultimate disposition of this issue by the United

Stetes Supreme Court, we will follow Puyallup IT and

undertake a consideration of the allocation question ex-

pressly called for hy that case. We must determine two

issues. First, does the Indian treaty right to a net fishery

encompass only the natural run of steelhead, or docs it

extend to both the natural run and the hatchery iin? See-

ond, in terms of number of fish, how extensive is the right,

and by what agency should this allocation be implemented?

-50-

682 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

We shall address ourselves to these issues in the above

order.

[10] The artificial propagation of steelhead through a

hatchery program on the Puyallup River did not commence

until 1933. Therefore, just as the inexhaustible supply of

fish at the time of the treaty makes it inconceivable that

the parties contemplated controls and limits on the fishery,

it is also inconceivable that eithcr the tribe or the govern-

ment intended the treaty to create any rights beyond the

natural run. However, by examining the treaty itself, we

do find evidence which specifically relates to this issue.

Even though the treaty obviously makes no reference to

artificially propagated steelhead, which were unknown at

the time, it does set forth Indian rights with regard to

artificially cultivated shellfish. There is an explicit proviso

in article 3 that follows the language securing “the right of

taking fish.” The proviso states “[t]hat they [the Indians]

shall not take shellfish from any beds staked or cultivated

by citizens . . .” Treaty of Medicine Creek (10 Stat.

1132-33). This plain language demonstrates that the rights

secured to the tribe under the treaty did not encompass

artificially propagated sources of fish. Likewise, the Su-

preme Court indicated in Puyallup II that this result is

correct. The majority opinion made no comment at all on

the issuc, but the concurring opinion of Mr. Justice White

stated that “the Treaty docs not obligate the State of Wash-

ington to subsidize the Indian fishery with planted fish paid

for by sports fishermen.” Puyallup IJ at 49.

We can find no reason to distinguish artifically cultivated

shellfish from hatchery bred steelhead since the impact of

the treaty is to distinguish natural sources from artificial

sources. To interpret the treaty in any other fashion re-

quires this court to literally rewrite the terms of the treaty

and this we cannot do. See Confederated Bands of Ute

Indians v. United States, 330 U.S. 169, 91 L. Ed. 823, 67 S.

Ct. 650 (1947); Northwestern Bands of Shoshone Indians

v. United States, supra; and Choctaw Nation of Indians v.

United States, supra.

o$le

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 683

The appellants contend that the opposite result must ob-

tain due to changed circumstances such as civilization and

pollution which are claimed to have caused depletion of the

natural run. We disagree. The treaty itself does not vest

the Indians with any right in hatchery bred steelhead. Fur-

thermore, the record does not demonstrate that the run has

been depleted, but instead establishes that the artificially

propagated run in fact augments the natural run since a

hatchery bred steelhead loses its distinguishing characteris-

tics upon returning to its native stream and henceforth is

classified as a natural run steclhead. Mr. Millenbach, the

Chief of the Fisherics Management Division, testified as

follows:

Q. Now, does the Depariment of Game at no cost to

the members of the Puyallup Tribe provide any services

which enhance the Puyaliup Tribe fishery? A. Well, the

hatchery planting of smolt steelhead have contributed

substantially to the net catch in the Puyallup River—the

Indian net catch.

Mr. Heckman, who was called as an cxpert witness by the

appellants and is a fishery biologist in charge of the North-

west Fisheries program, concurred in this opinion. The

State thus established that the size of the natural run is

increased yearly at no experse to the trike. On the other

hand, the appellants failed to introduce any evidence which

substantiated their claim that the size of the natural run

nas in fact been depleted by the effects of modern society

and, if so, the extent thercof. In conclusion, the appellants’

contention that changed circumsiances justify the sanction-

ing of a nct fishery for hatchery bred steelhead cannot be

justified by the treaty and is not supported by the record.

Consequently, their argument musi fail.

This result, which excludes hatchery bred fish from the

treaty right, is further supported by consideration of eq-

uity. The evidence below demonstrated that the steelhead

program conducted by the State Department of Game is

nearly totally funded by the citizens of the state, primarily

@$2<

684 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

via license and other “user fees.’’* It would be manifestly

unfair to give one group of citizens a superior opportunity

to enjoy a resource thusly provided while denying other

citizens, who provide the necessary funding, equal treat-

ment. To allow the Indians to take hatchery fish by the use

of nets would be to subsidize them to the extent that other

state citizens are paying for the hatchery program, while

being limited solely to the much less effective hook-and-

line method of fishing.* The Indian treaty does not de-

mand such a subsidy. See Puyallup II at 49 (White, J.

concurring).

We hold therefore that the Puyallup Indians have no

rights in the hatchery run of steelhead other than those

enjoyed by all citizens of the state. To hold otherwise

would ke to put the State to a Hokson’s choice: either to

continue the hatchery program and thus provide the Indi-

ans with additional steelhead guaranteed to be caught in

their nets; or, to discontinue the program altogether and

thus deny the benefits of such a resource program to all

citizens of the state. Our holding in no way discriminates

against the Indians because they, like all other citizens, are

still free, as they always have been, to catch hatchery fish

by the hook-and-line method as provided under the regula-

tions of the State Department of Game.

We now direct our attention to the final issue. How many

actual fish must be made availabie for that net fishery, and

in what manner should this allocation be implemented?

*The record clearly establishes that approximately 75 percent of the

Department of Game's total revenue is derived frora license fees.

foreover, cnly 4 percent of the total statewide expenditures by the

Department of Game for the steclhecad program are federally derived

and this amount is attributable to matching funds under the Fedcral

Anadromous Fish Act. It is our opinion, furthermore, that even if the

State Department of Game’s programs were totally federally funded,

the Indians, ubsent specific conditions on such federal financing, would

enjoy cnly those rights available to all state citizens to the resources

thus provided.

‘We take judicial notice cf the fact that one is far more likely to

catch fish through the utilization of a nct than with hook and line.

-53-

CO —

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 685

tempt to follow the Supreme Court’s mandate in Puyallup

II, The Supreme Court stated that the harvestable number

of steelhead

must in some manner be fairly apportion between Indian

net fishing and non-Indian sports fishing so far as that

particular species isconcerned. . . .

The aim is to accommodate the rights of Indians under

the Treaty and the rights of other people.

(Italics ours.) Puyallup II at 48-49.

In order to do this, the trial court first determined, as we

have, that the Indians’ treaty right does not extend to

hatchery fish. It then found that the total steelhead run in

the Puyallup River is composed of hatchery and natural

fish in equal proportions, i.e., half the run is of natural

origin and half is of hatchery origin. This finding is amply

supported by the record. The record also supports the trial

court’s finding that a 50 percent escapement factor is re-

quired for the propagation of the natural run. Fifty percent

of the natural run must be allowed to spawn in order to

preserve the species. The trial court thus determined, in

effect, that half the total annual steelhead run was natural

and that it would be consistent with conservation (escape-

ment) requirements to harvest half of the natural run.

Afier making the above determinations, the trial court

then disposed of the main issue—the ultimate allocation

between an Indian net fishery based on the treaty and the

sports fishery. Based on equitable factors, the trial court

found that giving the Puyallup Treaty Indians 45 percent

of the annual, natural steclhead run available for harvest

would be a fair apportionment of the resource. Using esti-

mates of the annual natural run size based on evidence

relating to past steelhead runs, the trial court translated

this percentage share inio an exact number of fish, pro-

vided thai the annual run size continued to be of the same

magnitude as the run size estimates before the court.

[11] We believe that 45 percent of the harvestable nat-

ural run was an equitable determination by the trial court

in the exercise of its discretion. We cannot say from this

-54-

686 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 197¢

record that such a determination was a manifest abuse of

discretion. We therefore are not disposed to disturb this

holding of the trial court. See Granite Equip. Leasing Corp.

v. Hutton, 84 Wn.2d 320, 328, 525 P.2d 223 (1974); State ex

rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

The number of fish resulting from this apportionment

will probably vary, of course, from year to year depending

on the size of the natural run. The evidence in the record

does not clearly establish a constant annual natural run

size. On the contrary, the record indicates that the run size

varics from year to year. The available estimatcs ranged

from about 4,000 in the natural run to 56,000 in the total

run. It is therefore obvious that the effect of this allocation

decision will be determined each year by the size of the

natural run. Thus it is necessary to decide who should be

charged with the duty to make this annual allucation deter-

mination.

[12] The Department of Game is the expert state

agency charged with the duty to conserve the states’ game

resources, including the steelhead trout. See RCW

77.12.010, .040. The Supreme Court recognized in Puyallup

II on page 48, that conservation decisions must be made by

an expert. “Only an expert could fairly estimate what de-

gree of net fishing plus fishing by hook and line would

allow the escapement of fish necessary for perpetuation of

the species.”

The 45 percent allocation figure of this decision applies to

the harvestable amount of the annual, natural steelhead

run, t.e., the amount available after conservation require-

ments are met. This allocation will necessarily depend on

the Department of Game’s estimates of the natural run size

each year and its annual approximations as to the harvesta-

ble number of fish in the natural run. The department’s

annual determination of the harvestable number of fish in

the natural run, that is, its determination of the escapement

requirement calculated to assure preservation of the spe-

cies, will therefore determine the extent of the Indian net

fishery required by federal treaty. Forty-five percent of the

-55-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 687

harvestable natural run is the extent of this treaty right.

The Department of Game’s annual determination will ac-

tually yield the number of fish that the Indians can catch

using nets pursuant to the treaty rights that, for purposes

of this part of our opinion, we have assumcd to exist.

By thus transforming the Indian right to a net fishery

into an actual number of fish, it is possible to recognize this

Indian treaty right in light of conservation requirements

and in the context of the total annual steclhead run. The

total run consists of both hatchery and natural origin stecl-

head, while the treaty right only applies to the natural fish.

It is possible to differentiate the two types of fish by certain

markings, but they are substantially identical in size and

all other characteristics. In practical terms there is no way

to assure that only natural fish will be caught in the Indian

nets.

All of the hatchery fish are harvestable because their

escapement is not required to preserve the natural run.

Thus, if the Indians take annually the actual number of

their treaty fish, the rest of the harvestable natural run;

plus the rest of the hatchery run, will still be available to

the sports fishery.* This method allocates the fish available,

in light of conservation requirements, between the Indians’

net fishery and the sports fishery—it assures that the In-

dian treaty right is recognized.

To summarize, in phase one of the opinion, we hold that

the Puyallup Tribe’s right to a net fishery under the Treaty

of Medicine Creek has never been directly adjudicated. It is

our belief that the treaty language “in common with” does

not require that the Indians be exempted from State regu-

lations. Rather, all that the treaty requires is that the

regulations apply equally to Indians and non-Indians. Be-

cause we feel kound to follow the express language on the

‘We emphasize again that the sports fishery is available to all state

citizens—Indians are not preempted or precluded from participating in

the hook-and-line fishery. The record shows that Puyallup Indians

have in fact fished in this manner. Indians enjoy the right to sports

fishcry on an cqual basis with other citizens except that they are not

required to purchase either a license or a punch card.

-56-

688 DEP’T OF GAME v. PUYALLUP TRIBE [Apr. 1976

face of Puyallup II, under phase two of our spinion, we

hold that allocating 45 percent of the harvestable natural

steelhead run each year to the Indian treaty net fishery is

a fair apportionment between Indian net fishing and sports

fishing. The Department of Game has the responsibility to

determine the extent of the harvestable natural run and to

accommodate this apportionment when establishing annual

conservation regulations.

The judgment of the trial court is affirmed, except as to

the modification thereof, wherein we direct the Department

of Game to implement the annual allocation of steelhead

consistent with this opinion. The first phase of our opinion

is held in abeyance pending a final disposition of the treaty

interpretation issue by the United States Supreme Court, at

which time a reversal of the trial court decision, consistent

with the first phase of this opinion, may be necessary.

HAMILTON and Warcit, JJ., concur.

Starrorp, C.J. (concurring in the result)—I concur in

the result reached by the majority as well as with the

allocation of the steelhead trout run between the !ndians

and non-Indians. However, I reach the same result for dif-

ferent reasons.

I have reviewed Puyallup Tribe v. Department of Game,

391 U.S. 392, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1967) (here-

inafter called Puyallup I) and Denartment of Game

v. Puyallup Tribe, 414 U.S. 44, 38 L. Ed. 2d 254, 94 S.

Ct. 330 (1973) (hereinafter called Puyallup II). The totality

of the facts in Department of Game v. Puyallup Tribe, Inc.,

70 Wn.2d 245, 422 P.2d 754 (1967) and Department of

Game v. Puyallup Tribe, Inc., 80 Wn.2d 561. 497 P.2d 171

(1972) when considered with Puyallup I and Puyallup II

makes several things abundantly clear.

(1) Substantially all of the steclhead trout fishery occurs

after their entrance into the Puyallup River; (2) that the

case is concerned with the Puyallup Indians’ use of setnets

to catch steelhead in the Puyallup River; (3) that the only

portion of the Puyallup River with which we are concerned

-57-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 689

flows through the Puyallup Indian reservation; (4) that the

present run of steelhead is made possible by the planting of

steelhead; (5) that the planting program is financed in

large part by the license fees paid by sports fishermen; and

(6) that the central issue is the problem of accommodating

the Puyallup Indians’ net fishing and the non-Indian sporis

fishing with the conservation needs of the fishery.

It is equally clear the United States Supreme Court re- -

manded the case for this state court to make a fair appor-

tionment between Indian net fishing and non-Indian sports

fishing under the above related circumstances. The major-

ity has accomplished this in an equitable manner.

I am convinced the Supreme Court did not direct this

court to resolve the apportionment problem as an empty

gesture. It is only logical to assume that once a formula

resulting in fair distribution was achieved that the fair

allocation should, insofar as possible, be maintained. If this

acsumption is not correct, then much of the language in

Puyallup II is meaningless.

At first blush it would appear that the State lacks the

necessary power to enforce the equitable apportiorment

directed by the United States Supreme Court. In this re-

gard see such cases as Menominee Tribe of Indians v.

United States, 391 U.S. 404, 20 L. Ed. 2d 697, 88 S. Ct. 1705

(1968); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed.

483 (1932); Kimball v. Callahan, 493 F.2d 564 (9th Cir.

1974); Moore v. United States, 157 F.2d 760 (9th Cir. 1946);

see also Seufert Bros. Co. v. United States, 249 U.S. 194, 63

I.. Ed. 555, 39 S. Ct. 203 (1919); and United States v.

Winans, 198 U.S. 371, 49 L. Ed. 1089, 25 S. Ct. 662 (1905).

On the other hand, it is only logical to assume the Supreme

Court is equally aware of the above cited cases and had

them in mind when the following broad language was used

in Puyallup IT at page 49:

The aim is to accommodate the rights of Indians under

the Treaty and the rights of other people.

We do not imply that these fishing rights persist down

to the very last steelhead in the river. Rights can be

controlled by the need to conserve a species; and the

-58-

690 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

time may come when the life of a steelhead is so preca-

rious in a particular stream that all fishing should be

banned until the species regains assurance of survival.

The police power of the State is adequate to prevent the

steelhead from following the fate of the passenger pt-

geon; and the Treaty does not give the Indians a federal

right to pursue the last living steelhead until it enters

their nets.

(Italics mine.)

When one considers the fragile nature of the fishery in-

volved, as well as the state’s physical and financial support

of that resource, it is easy to understand the above quoted

language. If the Supreme Court had not recognized the

existence of a state power to control and supervise the

mandated allocation, the Supreme Court’s direction would,

for all practical purposes, be impossible to establish, imple-

ment, and enforce. Without question the Supreme Court

did not intend to direct the State of Washington to perform

a useless act.

For this reason, I am willing to accept the above quoted

portion of Puyallup II at face value and concur in the

result reached by the majority.

Wricnt, Utter, and Horowitz, JJ., concur with Srar-

rorp, C.J.

RoseE.uin1, J. (concurring)—I concur in Justice Hunter’s

scholarly interpretation of the Medicine Creek Indian

Treaty. This interpretation should dispose of the case. How-

ever, 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 determi-

nation 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 con-

trary 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

-59-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 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 appor-

tioned 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 contemporancously 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 terri-

tory. 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:

ArtTIcLe 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 Terri-

tory, 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 in-

tended 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 set-

tlers 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 cora-

mon with all citizens of the territory.

The Treaty of Point Elliott, 12 Stat. 927, 928, with the

Dwamish, Suquamish, anc other tribes employs the same

-60-

reer Sennen

692 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

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 accus-

tomed 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 set-

tlers 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 sct-

tlers were denied the right to do so.

A treaty signed in June 1855 in Walla-Walla Valley be-

tween 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 de-

sired to give exclusive rights to Indians to fish. Article 1 of

the treaty says

-6l1-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 693

[t]hat the exclusive right of taking fish in the streams

running through and bordering said reservation is

herekty 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 cur-

ing 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 Indi-

ans reserved the exclusive right to take fish from streams

running through and bordering said reservation and out-

side 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. $51.)

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 intendcd 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 heen ratified.

It must be remembered that the United States was in-

habited 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

@62@

694 DEP’T OF GAME v. PUYALLUP TRIBE LApr. 1976

by imprisonment or death. Thus, it would have been incon-

cecivable 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 trea-

ties 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 su-

preme law. The laws enacted must pass the test of constitu-

tionality. 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. Oth-

erwise, the Executive and the Senate could by treaty which

involves rights of its citizens disenfranchise a class of citi-

zens. 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 riv-

ers, except a very small amount furnished by the federal

government.

Without the hatchery-reared steelhead planted in the riv-

ers, 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

o£ 3=

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 695

arbitrarily defined as any steclhead that does not have any

hatchery marking. The record disclosed that the progeny of

the hatchery-planted steelhead under this definition is arbi-

trarily counted as a natural run of steclhead.

The following chart which sets forth the planting and

catch of stcelhead illustrates to my mind that without the

large planting, the return of the steclhead would be mini-

mal.

PuYAL.Lup River SysteM STEELNEAD PLANTS AND CATC!"

Winter Season Cycle Plant’ Indian’ Sports Total

1947-48 1,937 1,937

49 4,644 4,644

50 52,000 7,443 7,443

51 18,000 6,037 6,037

52 33,000 15,660 15,660

53 66,000 104 14,566 15,670

54 74,000 2,671 19,296 21,967

55 70,000 2,029 14,490 16,519

56 47,000 2,308 20,348 22,656

57 70,000 2,554 14,184 16,733

98 97,000 2,960 8,794 11,754

59 53,000 2,740 7,528 10,268

GO 55,000 4,506 9,547 13,053

G1 63,000 2,917 4,684 7,601

62 79,000 2,629 10,419 13,048

63 57,000 1,834 11,717 13,551

C4 65,000 15,942 15,942

65 63,000 6,914 G94

66 93,000 18,761 18,761

67 65,000 15,971 15,971

68 100,000 16,971 16,971

69 67,000 11,602 11,602

70 98,000 500 6,738 7,238

71 124,000 1,500 12,101 13,601

72 123,000 9,648 9,648

73 122,000 317 4,015 4,332

74 107,000 1,105[2,500-3,000}* [4,472]

75 75,090

76 68,000

‘Cycle plants made 2 years prior to winter season, i.c., cycle plant

of 52,000 (1950) was made in 1948 and contributed to the catch of 7,443

fish in 1949-50 winter season. .

‘Data represents White River and Puyallup Indian catch as available

aad is incompicte. <ae

*The numbers appearing in brackets are not part of the exhibit.

Responden‘’s Brief, Appendix; Exhibit 74-2.

-64-

696 DEP’T OF GAME v. PUYALLUP TRIBE (Apr. 1976

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

Steclhead are different from salmon, which spawn and

die. Steclhead 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, bui will catch all

the steelhead which have already spawned and are return-

ing downstream.

Runs of steclhead 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 sports-

men 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 steclhead there must be necessary es-

capement for needed spawning to insure the perpetuation

of the resource.

The manner of fishing must be such that it can be con-

trolled so it does not impair or damage the necessary escape-

ment; and, further, the manner of fishing itself must not

be destructive. The Department of Game, in order to con-

-65-

Apr. 1976] DEP’T OF GAME v. PUYALLUP TRIBE 697

serve the steelhead runs, has placed limitations on the man-

ner 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

Trike, Inc.” It suggests that the trike itself is benefiting

from the net fishery. However, the record shows that there

are approximately 850 members of the Puyallup Trike, 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 di-

vided more equitably between the non-Indian sportsmen

and the Indians?

It must be remembered that before the incredible doc-

trine 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 commer-

cial 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 infericr to Indian rights. I can-

not subscrike to such a doctrine. I would hold that the

treaty does not permit or contemplate any allocation of the

-66-

698 LINDSAY v. SEATTLE [Apr. 1976

fish, but rather the opportunity to fish and catch fish in the

same manner as any citizen. I would take cognizance of the

fact tnat 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.

{[No. 43750. EnQBane. April 8, 1976.}

Micuar. E. Lrnpsay, ET AL, Plaintiffs, Westey BraApant,

Appellant, v. THe City or SEATTLE, ET AL, Respondents.

[1] Civil Rights—Public Employmcnt—Discrimination—Dctcrmination,

A court may determine whether public employment practices vio-

late the cqual protcction rights of minority applicants by applying

the test imposed by title 7 of the Civil Rights Act of 1964, ie.,

whether they deprive or tend to deprive such persons of employ-

ment opportunities or adversely affect their status as employees on

the basis of race or national origin. Discrimination may be inferred

from statistics which demonstrate a substantially disproportionate

level of minority representation in public cmploymert.

{[2] Civil Rights—Affirmative Action—Necessity—Public Employment.

Title 7 of the Civil Rights Act of 1964 mandates an aflirmative

action program for persons of minority background in public cm-

ployment when necessary to climinate the continuing effects of past

discrimination, whether or not current practices are discriminatory.

The need and justification for affirmative action are eliminated

when minority representation in public employment fairly approxi-

mates minority representation in the population of the area; statis-

tical perfcction is not required.

[3] Civil Service—Discrimination—Federal Supremacy—Local Laws.

Under the supremacy clause (U.S. Const. art. 6, cl. 2), federal

legislation relating to discrimination in public employment is con-

trolling over conflicting state or locai enactments relating to selcc-

tion of public employees.

{[4] Appeal and Error—Review—Issues Not Raised in Trial Court—In

General. An appzilate court will not pass upon issues which were

not prescnted to the trial court.

-67-

Apr. 197¢} LINDSAY v. SEATTLE 699

[5] Administrative Law and Procedure—Delegation of Powers—Consti-

tutional Requisiles. A delegation of legislative power is constitu-

tionally permissible when it provides standards which indicat

what is to be done and the administrative body which is to do it,

and there are procedural safeguards against arbitrary administra-

tive action and abus > 2 of di sere! ‘ ionury powcr,

[G] Civit Rights—Aflirinative Action—Public Employmecni—Use of

Gea's—Validity. The use of goals in implementing an affirmative

action program in public onatieyment is constitutionally pcermissi-

ble. A goal, unlike an absolute quota or preference, is a realistic

numerical objective which is bascd on expected job vacancies and

qualified applicants available and which docs not require displacc-

ment of existing cmployces, crcation of unnecded positions, or the

hiring of unqualified persons.

17] Acmiristrative Law and Proecdure—Administvative Rules—Valid-

ity—Determination. Rules adopted by un aclministrative agency pur-

suant to a spvecilic legislative dclegaiion of such authority are

presumed to be valid; a person who asserts their invalidity has the

burden of proving that the agency abuscd its diserction in adopting

the rules in question.

Appeal from a judgment of the Superior Court for King

County, No. 757364, Solie M. Ringold, J., entered October 5

1973. Affirmed.

Action challenging a civil service affirmative action pro-

gram. One of the plaintif’s appeals from a summary judg-

ment in favor of the defendants.

C. R. Lonergan, Jr. (of Siderius, Lonergan & Crowle),

for appellant.

John P. Harris, Corporation Counsel, and Gordon F. Cran-

dall, Assistant, for respondents City of Seattle, et al.

James E. Fearn, Jr., and Peter Greenfield of Legal Ser-

vices Center (Seattle), for respondents Green, et al.

This opinion was prepared by the late Justice Robert C.

Finley. It is adopted by the undersigned Justices as the

opinion of this Court

The central issue raised in this case is whether the City

of Seattle may udopt a system or program for the employ-

ment of civil service workers that gives special employ-

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