Petition — Puyallup Tribe, Inc. v. Department of Game of Wash.

Supreme Court brief1977

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SEP 22 1976

MICHAEL RODAK, JA.CLERK

. IN THE --—_-———_ - —- ll

SUPREME CCURT OF THE UNITED STATES

October Term, iS

PUYALLUP TRIBE, NC e»

and

RAMONA BENNETT,

Petitioners,

DEPAPTMENT OF GAME OF

THE STATE OF WASHINGTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF WASHINGT

—

©)

William H. Rodgers John Sennhauser

. Georgetown University 5308 Baliard Ave,

Law Center N.W.

600 New Jersey Ave,N.W. Seattle, Wasn.93107

Washincton, D.C. 2000i Attorney for

Tohn Clinebeli

2232 East 28th St.

Tacoma, Wash. 98404

Attorneys for Puvailup Tribe

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

PUYALLUP TRIBE, INC.,

and

RAMONA BENNETT,

. Petitioners,

DEPARTMENT OF GAME OF

THE STATE OF WASHINGTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF WASHINGTON

William H. Rodgers John Sennhauser

Georgetown University 5308 Ballard Ave,

Law Center N.W.

600 New Jersey Ave,N.W. Seattle, Wash.98107

Washington, D.C. 20001 Attorney for

John Clinebell Ramona Bennett

2232 East 28th St.

Tacoma, Wash. 98404

Attorneys for Puyallup Tribe

Gpanionmes Belew. « «+ «© «© se 2

Jurisdictional Grounds. ....

Question Presented. ......

Treaties and Statutes Involved.

Statement of the Case .....

BUsENGO BOSON . 6-2 © ee 8 8

Sandions for Granting the Writ .

COMGLUBEOR. « «+ we wp se ee ee

Treaty and Statutory Pro-

visions Involved

Decision of Washington

State Supreme Court

Memorandum Decision of

Superior Court of

Pierce County

Findings of Fact and Con-

clusions of Law of

Superior Court of

Pierce County

Page

° e 1

. eo 2

. . 2

°° 2

* 7. 2

a ee

> . 18

7 7. 32

App. A

App. B

App. C

App. D

Order and Judgment of

Superior Court of’

Pierce County App. E

Note: Appendices C - E are bound

separately.

TABLE OF CASES CITED

Alaska Pacific Fisheries v.

United States, 248 U.S.

78 (1918)

Antoine v. Washington, 420 U.S.

194 (1975)

-Arnett v. Five Gill Nets,

48 Cal. App. 3d 454,

121 Cal Rptr. 906 (1975),

cert. denied, 96 S.Ct.

1500 (1976)

City of Tacoma v. Taxpayers,

357 U.S. 320 (1958)

Crowe v. Eastern Band of

Cherokee Indians, Inc.,

506 F.2d 1231 (4th Cir.

1974)

Department of Game v. Puyallup

Tribe, Inc., 80 Wn.2d

561, 497 P.2d 171 (1972)

Department of Game v. Puyallup

Tribe, Wn.2d P

548 P.2d 1058 (1976)

25-26

passim

Page

Department of Game v. Puyallup

Tribe (Puyallup II), 414

U.S. 44 (1973) passim

Donahue v. California Justice

Court, 15 Cal. App. 3d

557, 93 Cal. Rptr. 310

(1971), cert. denied,

404 U.S. 990 (1971) 25

Ex Parte Crow Dog, 109 U.S.

556 (1883) 20

Fisher v. District Court,

96 S.Ct. 943 (1976) 21

Haile v. Saunooke, 246 F.2d

293 (4th Cir.), cert.

denied, 355 U.S. 893

(1957) 29

In re Blackbird, 109 Fed. 139

(W.D. Wis. 1901) 25

In re Lincoln, 129 Fed. 247

(N.D. Cal. 1904) 25

Kimball v. Callahan, 493

F.2d 564 (9th Cir.),

cert. denied, 419 U.S.

1094 (1974) 24

Klamath & Modoc Tribes v.

Maison, 139 F.Supp.

634 (D. Ore. 1956),

modified, 338 F.2d

620 (9th Cir. 1964)

Leech Lake Band of Chip-

pewa Indians v. Herbst,

334 F.Supp. 1001 (D.

Minn. 1971)

Mason v. Sams, 5 F.2d 255

(W.D. Wash. 1925)

Mattz v. Arnett, 412 U.S.

481 (1973)

McClanahan v. Arizona State

Tax Comm'n, 411 U.S. 164

(1973)

Menominee Tribe v. United

States, 391 U.S. 404

(1968) 17,

Mescalero Apache Tribe v.

Jones, 411 U.S. 145

(1973)

Moore v. United States, 157

F.2d 760 (9th Cir.),

cert. denied, 330 U.S.

827 (1946)

Page

21,

20,

Page

Morgan v. Colorado River : oe aeaee Cusppewe tribe

: Council v. Minnesota

Indian Tribe, 103 '

Ariz. 425, 443 P.2d Chippewa Tribe, 370

421 (1968) 29 F.2d 529 (8th Cir. 1967) 29

United States ex rel. Lynn v.

Bamekagon Deve lopment oo. ae Hamilton, 233 Fed. 685 (WwW.

Bois Forte Reservation D. N.Y. 1915) 25

Housing Authority, 517 cetein

F.2d 508 (8th Cir. 1975) 28

United States v. United States

= ' Fidelity & Guaranty Co.,

Oneida Tribe of Indians v. 309 U.S. 506 (1940) 28

United States, 165 Ct.

Cl. 487, cert. denied,

United States v. Washington,

379 U.S. 946 (1964) 25 496 F.2d 620 (9th Cir.),

” Puyallup Tribe v. Department | Ach. Sapeee: 419 U.S. 6. 29

of Game (Puyallup I), 391 .

U.S. 342 (1968) passim

United States v. Washington, 520

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

Quechan Tribe v. Rowe, 350 cert. denied, 96 S.Ct. 877

F.Supp. 106 (S.D. Cal. 97 29-94

1972) 25 (1976)

, 414 United States v. Washington, 384

Satiacum v. yin 1 es F.Supp. 312 (W.D. Wash. 1974),

U.S. 1 (1 aff'd, 520 F.2d 676 (9th Cir.

Seymour v. Soperintendent 1975), cert. denied, 96 S.Ct. 5

e .

F 877 (1976 10, 30

368 U.S. 351 (1962) 21 (

| i11i ‘ , .S. 7

Tulee v. Washington, 315 U.S. = "419805 Lee, 358 U.S. 21 20, 21

681 (1942) 19, 30 e ’

Worcester v. Georgia, 31 U.S.

(6 Pet.) 515 (1832) 17, 20

STATUTES AND AUTHORITIES CITED

F. Cohen, Handbook of Federal

Indian Law (1942). .

Rev. Code. Wash. Ann. § 37.12.

O60 (1964) .... -«

Treaty of Medicine Creek

10 Stat. 1132 (1854)

18 U.S.C. § 1151 (1970) .

18 U.S.C. § 1162(b) (970)

28 U.S.C. § 1257 (1970) .

Page

s~ 3 20

— 23

oe 25

i 22

. * . 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1976

No.

PUYALLUP TRIBE, INC.,

and

RAMONA BENNETT,

Petitioners,

Vv.

)

THE DEPARTMENT OF )

GAME, et al., )

)

Respondents.

PETITION FOR A WRIT

OF CERTIORARI TO THE

SUPREME COURT OF WASHINGTON

Petitioner respectfully prays that a

writ of certiorari issue to reviewone as-

pect of the judgment of the Supreme Court

of Washington entered in the above-enti-

tled case, upon denial of a motion for

rehearing, On June 25, 1976.

Opinions Below

The opinion of the Supreme Court of

Washington, Appendix B infra, is reported

in Wn.2d , 548 P.2da 1058 (1976).

The Memorandum Decision, Findings and Con-

clusions and the Order and Judgment of the

Superior Court for Pierce County, the

Honorable William L. Brown, Jr., entered

On December 23, 1974, and April 8, 1975,

Appendices C through E, are unreported.

Jurisdictional Grounds

. The judgment of the Supreme Court of

Washington (App. B) became final, upon

denial of motion for rehearing by a vote

of seven to one, on 25 June 1976. (App.

B-67). The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(3) (1970).

Question Presented

Whether, consistently with establish-

ed principles of tribal immunity, a state

court may adjudicate on-reservation trea-

ty fishing rights of an Indian tribe and

allocate the catch among tribal and non-

tribal fishermen.

Treaties and Statutes Involved

The treaties and statutes involved

are set forth in Appendix A.

Statement of the Case

This case arrives in this Court for

the third time during its thirteen-year

history. It was initiated originally by

the Washington Departments of Game and

Fisheries in the Superior Court for Pierce

County against the tribe and certain

named individuals seeking to enjoin al-

leged violations of state fishing laws.

On certiorari here for the first time,

this Court, viewing the case as one in-

volving state power to regulate off-re-

servation fishing (391 U.S. at 396 n.1l),

ruled that a state prohibition against

Indian net fishing could be sustained

only as "a reasonable and necessary” con-

servation measure. Puyallup Tribe v.

Department of Game (Puyallup I), 391 U.S.

392, 403 (1968). The Court pointed out

that on remand "any ultimate findings on

the conservation issue must also cover

the issue of equal protection implicit in

the [treaty] phrase ‘in common with.'”

Id.

On remand, the Department of Game

assumed what the trial court called an

"adamant" posture that Indians had no

rights other than those of non-Indian

citizens. The trial court denied injunc-

tive relief on conservation grounds, rul-

ing that the Game Department “had failed

to give any consideration to Indian Trea-

ty fishing rights as decreed by the Su-

preme Court.” Memorandum Opinion of

Rummel, J., November 24, 1970, Pierce

County Superior Court. On appeal, the

Washington Supreme Court upheld as reason-

able a 1970 Fisheries Department regula-

tion allowing limited Indian net fishing

for coho salmon on the Puyallup River and

a 1970 Game Department regulation preclud-

ing all Indian net fishing for steelhead.

Department of Game v. Puyallup Tribe, 80

Wn.2d 561, 497 P.2d 171 (1972). On cer-

tiorari for a second time, this Court held

that the Department of Game's 1970 total

prohibition against Indian net fishing for

steelhead on the Puyallup was an invalid

"discrimination" because “all Indian net

fishing is barred and only hook and line

fishing, entirely preempted by non-Indians,

is allowed." Department of Game v.

Puyallup Tribe (Puyallup II), 414 U.S. 44,

48 (1973). The order of remand from this

Court led to the first state authorized

Indian net fishery for steelhead on the

Puyallup River during the 1973-74 winter

season, more than ten years after the

initiation of the action, and more than

five years after this Court made clear

that state closures of off-reservation

Indian fisheries must be justified by con-

servation needs.

Two federal adjudications, to which

both the Department of Game and the Puyal-

lup Tribe are parties, intervened some

months before the instant case came on for

its third trial. In February and March of

1974, Senior District Judge George H. Boldt

of the Western District of Washington, in

the exercise of his continuing jurisdic-

tion over virtually all aspects of trea-

ty fishing rights of more than 20 tribes

in the region, entered a series of rulings

affecting a wide range of issues—includ-

ing tribal self-regulation, allocation of

anadromous fish resources among treaty

and nontreaty fishermen, and the power of

the state to restrict off-reservation

fishing for conservation purposes. United

States v. Washington, 384 F.Supp. 312

(W.D. Wash. 1974), aff'd, 520 F.2d 676

(9th Cir. 1975), cert. denied, 96 S.Ct.

877 (1976). On the single issue of the

inclusion of hatchery steelhead in comput-

ing off-reservation Indian rights on the

Puyallup River, Judge Boldt initially de-

ferred to the state courts,} although he

has since refused to accord preclusive

effect to the Washington Supreme Court de-

cision on the natural-hatchery distinction

and has twice ruled that the state lacks

l"Discharge of [the responsibility to

distinguish between native and propagated

steelhead] appears to be within the juris-

diction of this court by issues all parties

have submitted. . .However, under the

Puyallup II mandate to the State Supreme

Court it appears appropriate to this court

that the state courts hear and determine

the matter referred to, at least in the

first instance." 384 F.Supp. at 344-45.

the power to regulate on-reservation In-

dian fishing.@ The second federal adjud-

ication before the latest trial of the in-

stant case occurred in May 1974. The

Ninth Circuit Court of Appeals entered a

ruling in a separate lawsuit initiated by

the United States on behalf of the Puyal-

lup Tribe against the state seeking a de-

Cclaration “that the Puyallup Indian Tribe

and its authorized representatives have

exclusive right to, and regulation of, all

fishing on or in the Puyallup River with-

in the Puyallup Indian Reservation."* The

complaint prayed for injunctive relief en-

joining the state defendants from exercis-

ing jurisdiction over and interfering with

Indian fishing within reservation boundar-

ies. Before the Ninth Circuit, the state

challenged "the continued existence of the

Puyallup Indian Reservation and, as a con-

sequence, the right of the Puyallup Tribe

of Indians to fish, free from State inter-

ference, on the part of the Puyallup River

lying within the Reservation." United

States v. Washington, 496 F.2d 620 (9th

Cir. 1974). The court rejected this claim

and held that the reservation "continues

to exist." Id. at 621. Certiorari was

denied. 419 U.S. 1032 (1974).

2 Order of October 22, 1975; Order of

Aug. 13, 1976.

3 Complaint, Civ. No. 39-71 (W.D.

Wash.).

The instant case was tried fcr the

third time in the Pierce County Superior

Court in June of 1974. On January 9,

1974, in an amended pleading, the Depart-

ment of Game had sought a declaration

that it possessed the sole authority to

regulate the taking of steelhead by the

Puyallup Tribe on the Puyallup River.

Complaints in intervention filed by two

sportsmen's groups, Northwest Steelheaders

Council of Trout Unlimited and the Western

Steelheaders, Inc., made claims that

sports fishermen were entitled to all

hatchery steelhead in the Puyallup River

by reason of contributions to the hatch-

ery program represented by sportsmen's

license fees and excise taxes. EET

By answer, filed on May 23, 1974, by

motion for continuance filed before trial,

at the trial (ST. 1-12), by motion for re-

consideration and by. proposed findings

and conclusions (Defendants' Proposed Find-

ings andConclusions 24-25), the tribe

asserted that the intervening decision of

the Ninth Circuit confirming the existence

of the Puyallup Reservation mooted the

remand because of the lack of state power

to regulate on-reservation fishing. By

these same procedural mechanisms, the

tribe continuously asserted its sovereign

immunity. Undisputed testimony at trial

establishes that the tribal steelhead

fishery occurs almost exclusively on the

river within the exterior boundaries of

the reservation. (ST. 773-74). The trial

court acknowledged the Ninth Circuit's rul-

ing that the Puyallup reservation “had not

been terminated and extinguished, "4 found

that the tribe's intention is to take 90

to 100 percent of all its future steelhead

harvest within the reservation boundaries

(FF XVIII, App. D - 17), averred that "the

extent of [the treaty] right within the

boundary of the former Puyallup Indian

Reservation is not now before this court”

(CL IV, App. D - 20), but then concluded

that treaty rights, even when exercised

on-reservation, permitted the taking of

no hatchery fish whatsoever and no more

than 45 percent of the harvestable natur-

al run. By the court's computation this

came to an annual tribal catch of 3,310

fish? or perhaps 3,280 fish.© The trial

court assumed a continuing jurisdiction

to regulate the on-reservation steelhead

fishery for purposes of both conservation

and allocation, and ordered the tribe to

file with the court an authenticated roll

4 FF XVI, App. D 16-17. In his

Memorandum Decision (App. C - 37), how-

ever, the trial court concluded that an

earlier state court opinion that the Pu-

yallup Reservation no longer exists was

"the law of this case."

3 FF XXII, App. D 19.

6 order and Judgment, App. E 3

of authorized fishermen and weekly catch

reports during the steelhead season. FF

VIII, App. D - 11; FF XXI, App. D - 18;

CL VII, App. D - 21; Order and Judgment,

App. E 3-4. While this case was sub

judice before the Washington Supreme

Court, during last winter's steelhead sea-

son the trial court exercised its contin-

uing jurisdiction over the on-reservation

fishery and entered a temporary restrain-

ing order against further treaty fishing

on a finding that the tribe "has exceeded

its treaty entitlement of 2,866 steelhead

for the 1975-76 winter steelhead run."

Order of February 3, 1976. On February 6,

1976, the trial court entered another or-

der directing the Puyallup Tribe, through

its officers, to enact a closure of trib-

al steelhead fishing and to enforce it.

This was followed, on February 27, 1976,

by a judgment of contempt reiterating the

closure directive and directing the De-

partment of Game to take on-reservation

enforcement action.

Proof at trial during June of 1974,

established that the tribe has regulated

its fisheries for a number of years by

regular enactment of ordinances, and open-

ings and closures. (ST. 762-73, 777, 779,

801, 803-05, 900, 905, 924-25; Exh. 74-P,

74-Q). Indeed, the regulation enacted by

the Game Department approving a tribal

steelhead fishery for the 1973-74 season

following this Court's decision in

Puyallup II borrowed heavily from existing

tribal ordinances. (ST. 802). The tribe

now fishes under the auspices of the fed-

eral court decision of Judge Boldt, which

calls for information exchanges among par-

ties and the filing of tribal and state

fishing regulations with the court. See

384 F.Supp. at 420. Overall, there are

20 full time tribal fishermen, 20 more

who fish on a part time basis, and 20

others who fish occasionally but rely

heavily on different runs for support (ST.

758-60; FF XV, App. D - 16). The 20 full

time fishermen support not only themselves

but also another 10 families. (ST. 759).

As many as 150 members of the tribe are

supported by these year round fishing ac-

tivities. (ST. 759). The income of tri-

bal members is low, and is heavily depen-

dent upon fishing opportunities. (ST.

760-61). The tribe itself has approximate-

ly 850 members according to figures of the

Bureau of Indian Affairs (ST. 755), and is

governe@ by a council. (ST. 754). The

chairperson of the tribe, Ms. Ramona

Bennett, is a member of the council (ST.

755) and testified at trial. Biological

expertise for tribal management of its

fisheries is provided by the Northwest .

Indian Fisheries Program of the United

States Fish and Wildlife Service, whose

director at the time, Mr. James Heckman,

testified at trial. (ST. 671-753, 960-

1063). The chief witness for the Game

Department described the 1973-74 Puyallup

River tribal steelhead fishery as "rather

orderly.” (ST. 1103-04). The tribal net

fishery, by all accounts, is accomplished

without trespassing on private lands. The

Puyallup fisherman anchor their set nets

to bridges and employ small boats to place

their drift nets. (See ST. 486-87, 805).

The actual steelhead catch by tribal fish-

erman for the 1973-74 season was estimated

by Mr. Heckman to be approximately 1,900

fish (ST. 971-72), although the Depart-

ment of Game put the figure at approximate-

ly 3,000 (ST. 1103). In any event, the

tribal catch did not exceed the 3,300 fish

allocation ordered initially by the trial

court. (FF XXII, App. D - 19; Order and

Judgment, App. E - 3).

Proof at trial dwelt mostly on the

respective sizes of natural and hatchery

steelhead runs in the Puyallup River, the

funding origins of the hatchery plants,

the interrelationships between hatchery

and natural fish, and the reliability of

methods for distinguishing between the

two. Factual representatives made tg this

Court during argument in Puyallup II’ are

T7414 U.S. at 48:

At oral argument counsel

for the Department of Game

represented the catch of

steelhead that were developed

from the hatchery program were

12 13

revised substantially by the present re- ° another way, steelheaders account for 10

cord: the size of the natural run, as- percent of the entire Game Fund. (ST.

sumed to approximate 5,000-6,000 fish dur- 164, 240-41). On a capital investment

ing the second appeal of this case, see basis, the principal witness for the De-

80 Wn.2d at 572-73, 497 P.2d at 178-79, partment of Game testified, the replace-

was fixed by the trial court at 14,715 ment value of the Department's steelhead

fish (FF XII, App. D 14-15), in light hatchery program facilities is $33 million,

of estimates extracted from the Game De~ three-fourths of which is accounted for

partment of a combined natural-hatchery by fedefal and mitigation money compensat-

run of 56,000 fish (Exh. 74-U; see ST. ing for fisheries resources destroyed by

1065-67). The size of the hatchery steel- hydroelectric and other projects. (ST.

head run was found to represent not 60 or 133-37). If forced to rely on state fund-

80 percent of the total run but only 50 ing alone, the Department would be able

percent. (FF XI, App. D - 14). The state to produce only slightly in excess of 1

game fund supports approximately two thirds million of the current annual steelhead

of the operating costs of the Game Depart- production of 5 million smolts (FF Ix,

ment's steelhead program. (ST. 144-46). App. D - 12; ST. 404-06).

Hunting and fishing license fees account

for 75 to 80 percent of the operating Evidence offered by the tribe was

funds of the Department of Game (FF IV, circumscribed sharply by evidentiary rul-

App. D 19-10) about half coming from ings of the trial court, although the case

hunting licenses and half from was tried without a jury. Testimony and

licenses relating to fishing. (See ST. exhibits offered to show extensive federal

164, 232). Steelhead fishermen account funding of western Washington hatchery facil-

for approximately 25 percent of the funds ities and smolts was excluded on objection of the

attributable to fishing licenses; stated Department and sportsmen'gs groups. (ST.

324, 328, 702-03, 717, 736-40, 744, 990-

in one year 60% of the total 1004; Exhs. 74-C, 74-K, 74-M). Similar

run and in another 80%. And ° rulings were made to exclude evidence on

he stated that approximately matters outside the Puyallup River water-

80% of the catch of that pro- , shed (ST. 324, 572, 702-03, 878, 990-1004),

gram was financed by license and evidence dealing with competition for

fees of sports fishermen. survival between hatchery and natural

steelhead (ST. 328-31; Ex 74-E, 74-F).

Most importantly, testimony and exhibits

dealing with environmental degradation of

the Puyallup watershed, offered to show

widespread adverse effects on the spawn-

ing and rearing of naturally produced

steelhead, was excluded repeatedly on ob-

jection of the Department and sportsmen's

groups (ST. 668-69, 683-94, 720-25).

This severely impacted on the tribe's conten-

tion that any treatment of hatchery fish

for purposes of the treaty cannot be di-

vorced from a consideration of the erosion

of the rights associated with the advances

of civilization. Despite these adverse

rulings, there is evidence in the record

documenting severe environmental abuses

affecting adversely the watershed and its

anadromous fish populations. (ST. 124-

28; 260-64; 726-31).

Rulings Below

Throughout the trial and in several

post trial submissions, the petitioners,

defendants below, argued the issues raised

here of lack of state power to regulate

fishing on-reservation and tribal sov-

ereign immunity. (See page 7, supra).

These contentions were rejected by the

trial court (Memorandum Decision, App. C -

51; Findings and Conclusions, CL I, App.

D - 19, CL VII, App. D - 21; Order and

Judgment, App. E - 3) and by the state

Supreme Court ( Wn.2d at , 548

P.2d at 1063, 1069, 1074, App. D 5-8,

27, 43).

In the opinion of the Supreme Court

of Washington, tribal sovereign immunity

and on-reservation jurisdictional objec-

tions were without merit for two reasons:

first, the court read this Court's rejection

of sovereign immunity claims in Puyallup

I (391 U.S. at 396 n.11) as still control-

ling because the case was analogized to

"a suit to enjoin violations of state

law by individual tribal members fishing

off the reservation." Wn.2d at P

548 P.2d at 1063, App. B - 6. Second, the

court read the remand in Puyallup II as

mandating an allocation of the entire

steelhead run, and enforcement of that

allocation by state authorities without

regard to reservation boundaries. Id. at

, 548 P.2d at 1063, App B - 6. On

the issue of the treaty applicability to

hatchery fish, the prevailing opinion

assigns three reasons for denying an Indi-

an entitlement: first, the court found it

"inconceivable," in view of the "“inexhaust-

ible" supply of fish at treaty times, that

the parties “intended the Treaty to create

any rights beyond the natural run." Id.

at , 548 P.2d at 1071, App. B - 3l.

Second, the court read the shellfish pro-

viso® to the treaty "right of taking fish"

8 "provided, however, That they shall

not take shellfish from any beds staked or

cultivated by citizens, and that they

as suggesting "that the rights secured to

the tribe under the treaty did not encom-

pass artificially propagated sources of

fish.” Id. at , 548 P.2d at 1071,

App. B 33-34. Third, the court ground-

ed exclusion of the hatchery fish from

the scope of the treaty right on a “con-

sideration of equity” said to be support-

ed by the fact "that the steelhead program

conducted by the State Department of Game

is nearly totally funded by the citizens

of the state, primarily via license and

other ‘user fees.'" Id. at , 548

P.2d at 1071-72, App. B - 6 (footnote

omitted). This was described as a “sub-

sidy" to the Indian fishery, supported by

reference to the concurring opinion of Mr.

Justice White in Puyallup II. 414 U.S. at

49-50. The disposition of the state Su-

preme Court, with one important qualifica-

tion, was to affirm the judgment of the

trial court in all respects. The qualif-

ication took the form of a direction to

the Department of Game to determine annu-

ally the size of the natural steelhead run

on the Puyallup River and the number of

fish represented by the tribe's share (45

percent), and to enforce that allocation.

Wn.2d at , 548 P.2d at 1073-

shall alter all stallions not intended

for breeding horses, and shall keep up and

confine the latter." 10 Stat. 1133, App.

A - 2.

74, App. B 41, 44.

Chief Justice Stafford joined by

three other justices concurred in the

result on the ground that Puyallup II

mandated an-apportionment between

treaty and nontreaty fishermen of

the entire steelhead run. "At first

blush,” Chief Justice Stafford wrote, "it

would appear that the State lacks the ne-

cessary power to enforce the equitable

apportionment directed by the United

States Supreme Court,” citing such cares

as Worcester v. Georgia, 31 U.S. (6 Pet.)

515 (1832) and Menominee Tribe v. United

States, 391 U.S. 404 (1968). But Chief

Justice Stafford assumed nonetheless that

Puyallup II must be read as repudiating

sub silentio this line of authority: "If

the Supreme Court had not recognized the

existence of a State power to control and

supervise the mandated allocation, the

Supreme Cour.'s direction would, for all

practical purposes, be impossible to es-

tablish, implement, and enforce."

Wn.2d at , 548 P.2d at 1075, App. B

46-48.

Justice Rosellini concurring in part

and dissenting in part, reasoned that the

Treaty of Medicine Creek could not have

reserved an exclusive right to fish and

control fishing on-reservation, pointing

out that such a right is reserved with

specificity in the Walla-Walla Treaty.

Id. at , 548 P.2d at 1077, App. B

55-56. He would find a denial of equal

protection to other citizens in any trea-

ty right that gives Indians superior

rights.

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of

Washington encroaches severely upon fed-

erally protected rights indispensable to

the livelihood of the members of the Pu-

yallup and other tribes. Ironically, it

has transformed this Court's reversal in

Puyallup II of the Game Department's con-

sistent refusal to recognize Indian rights

into an instrument for eroding these

rights still further by summary use of

state powers. If the judgment stands, its

impact will be severe -- not only upon the

Puyallup fishery essential to sustenance

of tribal members but on tribal self-re-

gulation and the integrity of control over

other on-reservation tribal affairs. The

issues call for determination and consid-

eration by this Court.

First: The decision of the court below is

in conflict with the decision of this

Court in Puyallup I and II and other de-

cisions of this Court and the lower fed-

eral courts permitting restrictions upon

any Indian fishery only upon a strict

showing of conservation necessity. The

State “must demonstrate that its regulation

is a reasonable and necessary conservation

measure. - -, and that its application to

the Indians is necessary in the interest

of conservation." Antoine v. Washington,

420 U.S. 194, 207 (1975) (emphasis in or-

iginal), citing Department of Game v. Pu-

yallup Tribe (Puyallup II), 414 U.S. 44

(1973); Tulee v. Washington, 315 U.S. 681,

684 (1942). The decision below authorizes

the Game Department to determine annually

the number of fish represented by the alloca-

tion (45 percent of the natural run), and

to enforce that allocation by a closure

on-reservation without regard to conser-

vation necessity. This is exactly what

happened only last winter while this case

was pending before the Washington Supreme

Court. The trial court chose to exercise

its continuing jurisdiction, recompute

downwards the tribal share (from3,310 fish

to 2,866 fish) and order an on-reservation

closure without a colorable conservation

justification (p. 9, supra). The de-

cision below approving this practice

would be wrong were it applied to an off-

reservation fishery, and is twice wrong

because it is applied to an on-reservation

fishery.

Second: By holding that state authorities

may regulate tribal fishing on the reser-

vation, the court below contradicts

settled principles of Indian law going

back to the early days of the Republic.

The concurring opinion of Chief Justice

Stafford concede the problem by acknow-

ledging that“it would appear that the

State lacks the necessary power to enforce

the equitable apportionment directed by

the United States Supreme Court."

Wn.2d at , 548 P.2d at 1075, App.

B 46-47, citing Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832) and Menominee

Tribe v. United States, 391 U.S. 404

(1968), among other authorities.

By reading Puyallup II as discarding

this unbroken line of precedent, the

state Supreme court departed from well es-

tablished principles protecting the author-

ity of an Indian tribe to regulate the

conduct of its members free from state in-

terference. Worcester v. Georgia, 31 U.S.

(6 Pet.) 515, 559 (1832), of course makes

clear that the tribes are recognized as

"distinct, independent, political commun-

ities" qualified to exercise powers of

self-government "not by virtue of any de-

legation of powers from the Federal Gv-

ernment, but rather by reason of their

original tribal sovereignity." F. Cohen,

Handbook of Federal Indian Law 122 (1942).

This principle has survived in decisions

of this Court through Ex Parte Crow Dog,

109 U.S. 556 (1883), holding that tribal

courts alone had jurisdiction over the

murder on-reservation of one Sioux Indian

by another, and Williams v. Lee, 358 U.S.

217 (1959), forbidding the exercise of

state court jurisdiction over a suit by

a non-Indian to collect on a debt incurred

On-reservation, to McClanahan v. Arizona

State Tax Comm'n, 411 U.S. 164 (1973),

barring the imposition of a state income

tax on earnings of Indians derived from

Oon-reservation activities. Whether the

theory be one of tribal sovereign immun-

ity or federal preemption by treaties and

statutes, see id. at 172, the question to

ask, according to Williams v. Lee, is

whether the particular state initiative

"infringed on the right of reservation In-

dians to make their own laws and be ruled

by them.” 358 U.S. at 220. Only last

term this Court applied the teaching of

Williams v. Lee and similar cases to fore-

close state court jurisdiction over an

Indian adoption proceeding where the par-

ties resided on-reservation and the con-

duct occurred there. Fisher v. District

Court, 96 S.Ct. 943, 946 (1976). See also

Seymour v. Superintendent, 368 U.S. 351

(1962).

That the exercise of state power here

at issue encroaches heavily on the Indians'

right "to make their own laws and be ruled

by them” is, we submit, overwhelmingly

clear. The state courts have asserted no-

thing short of a power to nullify tribal

regulation of the single activity that is

indispensable to the economic well being

of the membership and their traditional

values. It is difficult to conceive of.

an intervention in tribal self-government

more demeaning and decisive than an order

to its governing body to enact and en-

force an ordinance curtailing the member-

ships’ chief economic activity. This is

not a tax on income earned, as was con-

demned in McLanahan, but a ban on earn-

ing income. The court below has approved

the exercise of a continuing jurisdiction,

replete with administrative details, that

places the practical governance of an im-

portant tribal fishery in the hands of

state officials whose hostility has been

clearly recorded. See United States v.

Washington, 520 F.2d 676, 693 (9th Cir.

1975), cert. denied, 96 S.Ct. 877 (1976)

(Burns, J., concurring) (recalcitrance of

state officials, and vocal commercial and

sports fishermen produced denial of Indi-

an rights requiring intervention by fed-

eral district court).

Not only can the Game Department

point to no federal statutory authority

justifying this unprecedented encroach-

ment over a tribal fishery, the legisla-

tion that can be found points the other

way. The well known Public Law 280, 67

Stat. 588 (1953), 18 U.S.C. § 1162 (1970),

App. A 2-3, granting certain states

jurisdiction over some offenses committed

by or against Indians in “Indian Country,

contains an exclusion that hardly could be

more specific:

Nothing in this sec-

tion. . .shall deprive

any Indian or any Indian

tribe, band, or communi-

ty of any right, privi-

lege or immunity afford-

ed under Federal treaty,

agreement, or statute

with respect to hunting,

trapping, or fishing or

the control, licensing,

Or regulation thereof.

By inviting state aut! orities to close

fisheries on the reservation, the decision

below flatly offends 18 U.S.C. § 1162,

not to mention a local variation of the

same proposition, R.C.W.A. § 37.12.060

(1964), and a host of federal court deci-

sions. Only last year the Ninth Circuit

read the Treaty of Medicine Creek as con-

firming a proposition now contradicted by

the decision below:

The right to take fish

in common with the settlers

off the reservations was a

right reserved by the Indi-

ans in addition to their

right to occupy and use

reservation land. The

settlers obtained no

analogous rights on the

reservations. Other citi-

zens clearly have no more

claim to a share of the fish

caught on the reservations

than they do to a right to

reside on these reservations.

The court thus did not abuse

its discretion in excluding

fish caught on the reserva-

tions from the apportionment.

520 F.2d at 690.

The judgment below, by authorizing

state control over an on-reservation

fishery, conflicts either with direct

holdings or considered dicta of an unbro-

ken line of authority, including decisions

of this Court, Menominee Tribe v. United

States, 391 U.S. 404, 411 n.12 (1968)

("the exercise of rights on reservation

lands guaranteed to the tribe by the Fed-

eral Government would not be subject to

state regulation, at least in absence of

a cession by Congress ")? Alaska Pacific

Fisheries v. United States, 248 U.S. 78

(1918) (affirming restraint against non-

Indian encroachment upon reservation fish-

eries); decisions of the lower federal

courts, Kimball v. Callahan, 493 F.2d 564,

568 (9th Cir.), cert. denied, 419 U.S.

1094 (1974) (although the former reserva-

tion lands in question were “no longer

legally occupied by the Klamaths”"); Moore

v. United States, 157 F.2d 760 (9th Cir.),

cert. denied, 330 U.S. 827 (1946); Mason

v. Sams, 5 F.2d 255 (W.D. Wash. 1925);

Quechan Tribe v. Rowe, 350 F.Supp. 106

(S.D. Cal. 1972); Leech Lake Band of Chip-

pewa Indians v. Herbst, 334 F.Supp. 1001

(D. Minn. 1971); Klamath & Modoc Tribes

v. Maison, 139 F.Supp. 634 (D. Ore. 1956),

modified, 338 F.2d 620 (9th Cir. 1964);

United States ex rel. Lynn v. Hamilton,

233 Fed. 685 (W.D. N.Y. 1915); In re Lin-

coln, 129 Fed. 247 (N.D. Cal. 1904); In

re Blackbird, 109 Fed. 139 (W.D. Wis.

1901); Oneida Tribe of Indians v. United

States, 165 ct. Cl. 487, cert. denied,

379 U.S. 946 (1964); and of the state

courts, Donahue v. California Justice

Court, 15 Cal. App. 3d 557, 93 Cal. Rptr.

310 (1971), cert. denied, 404 U.S. 990

(1971).

In Mattz v. Arnett, 412 U.S. 481,

506 (1973), this Court held that the

Klamath Indian Reservation had not been

terminated by Act of Congress and there-

fore remained "Indian Country" for pur-

poses of 18 U.S.C. § 1151. The Court

pointed out, however, that it was decid-

ing nothing regarding the existence of

Mattz' fishing rights or the application

of California law notwithstanding the re-

servation status, 412 U.S. at 485, al-

though on remand the state court applied

the general rule foreclosing state juris-

diction over on-reservation fishing.

Arnett v. Five Gill Nets, 48 Cal. App. 3d

454, 461-62, 121 Cal. Rptr. 906, 911-12

(1975), cert. denied, 96 S.Ct. 1500 (1976).

In the instant case the court below, mis-

takenly we believe, read this Court's re-

mand in Mattz as making state jurisdiction

Over on-reservation fishing an “open ques-

tion," _ Wn.2d at , 548 P.2da at

1063, App. B - 7, then proceeded to resolve

it against the tribe. The decision thus

misreads Mattz, misconstrues the scope of

the remand in Puyallup II, and contradicts

other basic principles of Indian law. All

are sufficient reasons to require correc-

tion here.

Third: By ruling that tribal fishing

rights extended to none of the hatchery

fish and less than half of the harvestable

natural steelhead run, the Washington Su-

preme Court effectively extinguished tri-

bal community fishing rights in more than

three-fourth's of the harvestable steel-

head in the river. By doing so and by go-

ing further to authorize a continuing ad-

ministrative authority over tribal fisher-

men and catch, the court grossly exceeded

its jurisdiction and offended principles

of tribal sovereign immunity that are

firmly established, misapplying in the pro-

cess this Court's decision in Puyallup I.

The tribe's objection on this point

was thought by the Washington Supreme Court,

Wn.2d at , 548 P.2d at 1063,

App. B - 6, to be answered fully by the

ruling of this Court in Puyallup I where

sovereign immunity objections were an-

swered as follows: "This case, however,

is a suit to enjoin violations of state

law by individual tribal members fishing

off the reservation. As such, it is ana-

logous to prosecution of individual Indi-

ans for crimes committed off reservation

lands, a matter for which there has been

no grant of exclusive jurisdiction to fed-

eral courts.” 391 U.S. at 396 n.ll.

The Washington Supreme Court, we be-

lieve, has misread this narrow rejection

of sovereign immunity claims in the early

phases of this litigation to make the

tribe a virtual prisoner in the state

courts, answerable to any claims regarding

fishing that happen to be asserted by the

state or by any intervenor. A number of

factors combine to contradict this read-

ing of Puyallup I: first, the Ninth Cir-

cuit's decision confirming the existence

of the reservation has transformed this

litigation from what was presumed to be

an off-reservation case to what is known

to be an on-reservation case.” Second,

9 This Court always has understand

Puyallup I to be applicable only to off-

reservation activity. See Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 149

(1973).

the instant case presents not even a col-

Orable claim of a violation of state law.

Allegations of violence during the fish-

ery were included in the Department's a-

mended pleading but were repudiated by a

Department witness at trial (ST. 1104-05)

and are wholly unsubstantiated by the re-

cord. No conservation justification is

offered either for excluding hatchery

fish from the treaty or for allocating

the natural run. What the court below

has done, purely and simply, is to resolve

basic issues of treaty rights adversely

to the tribe over continuing jurisdiction-

al and sovereign immunity objections.

Third, the analogue of the prosecution of

individual Indians is exploded thoroughly

by a recognition that what has been accom-

plished is to exempt a substantial segment

of the steelhead in the river from the

terms of the federal treaty.

Under these circumstances, the deci-

sion below conflicts with firmly establish-

ed principles extending to the tribe an

immunity coextensive with that available

to the United States. E.g., United States

v. United States Fidelity & Guaranty Co.,

309 U.S. 506 (1940); Namekagon Development

Co. v. Bois Forte Reservation Housing

Authority, 517 F.2d 508 (8th Cir. 1975);

Crowe v. Eastern Band of Cherokee Indians,

Inc., 506 F.2d 1231 (4th Cir. 1974). If

tribal sovereign immunity operates to

bar a suit against a tribe for negligence

claims growing out of the operation of a

bridge on-reservation, Haile v. Saunooke,

246 F.2d 293 (4th Cir.), cert. denied,

355 U.S. 893 (1957), or of a tribal resort,

Morgan v. Colorado River Indian Tribe,

103 Ariz. 425, 443 P.2d 421 (1968), or

of the conduct of an election, Twin Cities

Chippewa Tribal Council v. Minnesota Chip-

pewa Tribe, 370 F.2d 529 (8th Cir. 1967),

then one wonders why it does not preclude

a lawsuit that strikes heavily at the in-

come of tribal fishermen by curtailing

their opportunities to make a living. In-

deed, were a state agency to file suit

against the tribe tomorrow in the Pierce

County Superior Court, State of Washington,

seeking an allocation, let us say, of the

Puyallup River coho salmon run, we believe

the suit would be subject to summary dis-

missal on sovereign immunity grounds. The

result should not be different where, as

here, an action initiated thirteen years

ago gradually evolves into an attempted

adjudication of tribal community fishing

rights.

Fourth: The decision of the court below

is in clear conflict with the decision of

the Ninth Circuit confirming the existence

of the Puyallup Reservation, United States

v. Washington, 496 F.2d 620 (9th Cir.),

cert. denied, 419 U.S. 1032 (1974), and

of Judge Boldt's decisions also affirmed

by the Ninth Circuit, allocating the Indian

and non-Indian catch. United States v.

Washington, 384 F.Supp. 312 (W.D. Wash.

1974), aff'd, 520 F.2d 676 (9th Cir. 1975),

cert. denied, 96 S.Ct. 877 (1976). The

Ninth Circuit decision, holding that the

reservation still exists, a fortiori re-

solves the question of the tribe's exclu-

sive power to regulate the fishing of its

members On-reservation. That the issues

are one and the same was conceded by state

authorities in the continuing litigation

before Judge Boldt, 1° and for all practic-

al purposes thirty years ago before this

Court. Tulee v. Washington, 315 U.S. 681,

683 (1942). By holding that state regu-

lation may ensue despite reservation sta-

tus, the tribe's long awaited success in

winning judicial recognition of the reser-

vation is rendered a nullity. The deci-

sion below also contradicts, sometimes

purposely so, several aspects of Judge

Boldt's decisions, including those per-

mitting the tribe to fish under its own

regulations properly filed in the federal

court, those allocating the Puyallyp River

steelhead fishery on a 50-50 basis among

the tribal and sports fisheries, and those

barring on-reservation enforcement powers.

10 “an exclusive right of fishing was

reserved by the tribes within. . .their

reservations. This proposition is not

denied or challenged by any party in this

case.” 384 F.Supp. at 332 & n.12. see id.

at 341.

ll Id. at 343-45 (spelling out the

allocatéon formula).

The state court judgment asserts under a

slightly different rationale the conclu-

sion that the Puyallup Reservation does

not exist, and thus repeats again a hold-

ing that already has prompted this Court

once to enter a summary reversal. Satiacum

v. Washington, 414 U.S. 1 (1973) (per cur-

iam) (on the ground, however, that a fed-

eral question had been decided unnecessar-

ily). By allowing the Game Department to

relitigate questions of power over Indian

fishing on-reservation, previously resolved

by litigation in the federal courts, the

decision not only creates a conflict re-

quiring review before this Court but also

offends basic principles of collateral

estoppel. City of Tacoma v. Taxpayers,

357 U.S. 320 (1958). This separate ground,

alone and in combination with the others,

is reason enough for granting the writ.

Il.

For the reasons stated above, we be-

lieve the Washington Supreme Court erred

in reading Puyallup II as approving, with-

out regard to reservation status, the

assumption by the state courts of a power

to decide the question of treaty entitle-

ment to hatchery fish, allocate the natur-

al run and enforce the allocation on-reser-

vation. On the merits of the treaty applic-

ability to hatchery steelhead, we believe

the decision below to be equally wrong.

It represents, in our view, a fundamental

misreading of the language and purposes

of the treaty, a misunderstanding of the

relevance of sources of funding to the

scope of a federally protected fishing

right, and a rule that is unworkable in

fact. The decision was made, moreover,

On a record improperly curtailed, parti-

cularly as regards evidence of environ-

mental degradation of the Puyallup water-

shed. We do not seek certiorari on this

second issue, however, for the reason

that the tribe has an adequate remedy a-

vailable to it. On August 13, 1976, the

Honorable George H. Boldt of the United

States District Court, Western District

of Washington, entered an order clarify-

ing his intention to proceed to trial on

certain environmental claims of all wes-

tern Washington tribes and on the claims

of all tribes to an entitlement to hatch-

ery stock included in all anadromous fish

runs. The separate tribes, including the

Puyallup Tribe, the United States, and

state authorities are parties to that

proceeding. For this reason, the tribe

is not at this time seeking certiorari on

the second issue of treaty applicability

to hatchery fish.

Conclusion

For the foregoing reasons, it is re-

spectfully submitted that this petition

for a writ of certiorari should be granted

to review the question of state court jur-

isdiction to adjudicate on-reservation In-

dian fishing.

WILLIAM H. RODGERS, JR.,

JOHN CLINEBELL,

Attorneys for Petitioner

Puyallup Tribe

JOHN SENNHAUSER,

Attorney for Petitioner

Ramona Bennett

APPENDIX A

Treaty and Statutory Provisions

Involved

Treaty of Medicine Creek

10 Stat. 1132 (1854)

x*~*ee*k tk

ARTICLE II. There is, however reserv-

ed for the present use and occupation of

the said tribes and bands, the following

tracts of land, viz: ... . all which

tracts shall be set apart, and, so far

as necessary, surveyed and marked out

for their exclusive use; nor shall any

white man be permitted to reside upon

the same without permission of the tribe

and the superintendent or agent. And the

said tribes and bands agree to remove to

and settle upon the same within one year

after the ratification of this treaty,

Or sooner if the means are furnished

them. In the mean time, it shall be law-

ful for them to reside upon any ground

not in the actual claim and occupation of

citizens of the United States, and upon

any ground claimed or occupied, if with

the permission of the owner or claimant.

A-2

If necessary for the public convenience,

roads may be run through their reserves,

and, on the other hand, the right of way

with free access from the same to the

nearest public highway is secured to them.

ARTICLE III. The right of taking

fish, at all usual and accustomed grounds

and stations, is further secured to said

Indians, in common with all citizens of

the Territory, and of erecting temporary

houses for the purpose of curing, to-

gether with the privilege of hunting,

gathering roots and berries, and pastur-

ing their horses on open and unclaimed

lands: Provided, however, That they

shall not take shell fish from any beds

staked or cultivated by citizens, and

that they shall alter all stallions not

intended for breeding horses, and shall

keep up and confine the latter.

18 U.S.C. §1162. State jurisdiction over

offenses committed by or against Indians

in the Indian Country.

x**«k ek

(b) Nothing in this section

shall ... . deprive

any Indian or any Indian

A-3

tribe, band, or com-

munity of any right,

privilege, or immunity

afforded under Federal

treaty, agreement, or

statute with respect to

hunting, trapping, or

fishing or the control,

licensing, or regula-

tion thereof.

APPENDIX B

IN THE SUPREME COURT

OF THE

STATE OF WASHINGTON

DEPARTMENT OF GAME

OF THE STATE OF

WASHINGTON,

, Respondent,

)

NORTHWEST STEEL- )

HEADERS COUNCIL OF )

TROUT UNLIMITED and )

GARY ELLIS, )

)

Intervenor-

Respondents,

WESTERN STEEL-

HEADERS, INC.,

Intervenor- )

Respondents, )

)

Vv.

PUYALLUP TRIBE,

INC., et al.,

de ee ed

Appellants.)

NO. 43736

EN BANC

Filed

APR 8 1973

B-2

HUNTER, ASSOCIATE JUSTICE

The appellants (defendants), the Pu-

yallup Tribe and Ramona_Bennett, the Tri-

bal 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 Depart-

ment of Game has also appealed from cer-

tain aspects of the trial court's deci-

sion.

This case does not involve a con-

flict of recent origin. Rather, the in-

itial litigation commenced in 1963.

Since that time, we have written two de-

cisions, both of which have been review-

ed 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 pre-

viously raised and the decisions rendered.

. As we have pointed out twice be-

fore, “(t]he case caption is erroneous,

there being no entity known as ‘The Pu-

yallup Tribe, Inc., a corporation.’ The

Puyallup Tribe of Indians did appear and

answer by and through the chairman of the

Tribal Council.” Department of Game v.

Puyallup Tribe, Inc., 70 Wn.2d 245, 247

n.l, 422 P.2da 754, 755 (1967), quoted in

Department of Game v. Puyallup Tribe,

Inc., 80 Wn.2d 561, 563 n.1, 497 P.2d 171

(1972).

B-3

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 and that its members

enjoyed certain fishing rights under the

Treaty of Medicine Creek. Furthermore,

we held that these rights could only be

limited through statute or regulations to

the extent reasonably necessary for the

conservation of the fishery. On review,

the United States Supreme Court affirmed

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 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, 398,

20 L. Ed. 2d 689, 88 S. Ct. 1725, 1728(1967)

(hereinafter cited as Puyallup I). How-

ever, that Court remanded the case for a

determination of the issue of whether the

total bar against the use of set nets in

freshweter 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 fish-

ery, changed its regulations to allow a

net fishery for salmon in those areas of

B-4

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 pro-

hibit all net fishing for steelhead

trout. In an appeal to this Court, we

held that the regulations passed by the

Department of Fisheries were reasonable

and consistent with the necessary conser-

vation standards. Department of Game v.

Puyallup Tribe, Inc., 80 Wn.2d 561, 497

P.2d 171 (1972). In regard to steelhead,

we stated that while the Indians may have

a right to a net fishery, nevertheless

the steelhead run was not of sufficient

size to withstand a commercial net fish-

ery for that year. On review, the United

States Supreme Court held that a total

ban on net fishing would discriminate

against the Indians, since the steelhead

fishery was totally preempted by the hook

and line, non-Indian sport fishermen.

Washington Game Dept. v. Puyallup Tribe,

414 U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct.

330 (1973) (hereinafter cited as Puyallup

II). That Court remanded the case for a

determination of the percentage of the

run which had to be allowed to escape in

order to perpetuate the species, and the

number of catchable fish which had to be

apportioned to an Indian commercial net

B-5

fishery. In a concurring opinion, three

Justices noted that the majority opinion

applied only to the natural run of steel-

head.

On remand, the Superior Court for

Pierce County held that the fishing

rights afforded under the treaty did not

extend to the hatchery run, the one-half

of the natural run had to be allowed to

escape in order to perpetuate 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 appealed from the trial court's

decision in its entirety. The State De-

partment of Game has appeled from that

portion of the decision which determined

the size of the total natural run and the

apportionment of 45 percent of the catch-

able fish to the tribe.

At the outset it seems appropriate

to discuss the jurisdictional aspects of

this case. Appellants have contended all

along that the state courts do not have

jurisdiction in this matter because

issues pertaining to federal treaty

rights are exclusively federal matters.

We believe this contention is without

merit for two reasons. First, in this

case the State is concerned with a niatter

that is clearly within its jurisdiction--

it is seeking to determine the extent to

B-6

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 de-

termine the extent to which Indians may

be exempt from state regulations because

of overriding federal treaty rights. See

State ex rel. Campbell v. Case, 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 in-

dividual tribal members fishing off the

reservation," a situation clearly within

state jurisdiction. See Puyallup I at

397 n.1ll.

Second, a more importantly, juris-

diction is proper because the United

States Supreme Court specifically remand-

ed this case for a determination of a

fair allocation that “accommodate [s] the

rights of Indians under the Treaty and

the rights of other people." See Puyal-

lup II at 49. We view Puyallup II as ex-

pressly conferring jurisdiction in this

matter in the state courts.

It has also been contended that the

recently established, continuing exist-

ence of the Puyallup Indian Reservation,

see United States v. State of Washington,

496 F.2d 620 (9th Cir. 1974), cert. den-

ied, 419 U.S. 1032 (1974), precludes any

state jurisdiction over activities

B-7

occurring within the reservation boundar-

ies. 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 II would seem

to include on-reservation state juris-

diction. In order to control the escape-

ment necessary for the conservation of

the species, it is inescapable, 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 49:

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 time may come

when the life of a

steelhead is so pre-

carious 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 pre-

vent the steelhead from

following the fate of

the passenger pigeon;

and the Treaty does not

give the Indians a fed-

eral right to pursue the

last living steelhead un-

til it enters their nets.

Finally, any suggestion that this Court

should defer to the United States Dis-

trict Court of Western Washington, in

light of its continuing jurisdiction in

a similar fishing matter, on grounds of

comity, is not well taken. The present

case was remanded by the Supreme Court to

the state courts before that federal ac-

tion was even started. There is no rea- ¢

son we should defer to the subsequently

commenced, ongoing litigation in that

federal court.

Therefore, we conclude that our jur-

isdiction is proper. Furthermore, as

will be indicated later in the opinion,

continuing 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 Supreme

B-9

Court's decision in Puyallup II is essen-

tial. Reading Puyallup II in context

with Puyallup I, we feel that the issue

of whether the Treaty of Medicine Creek

gives the Indians a right to a commercial

net fishery is at least an open question.

In Puyaliup II, the United States Supreme

Court stated on page 48: “Our prior de-

cision recognized that net fishing by

these Indians for commerical purposes was

covered by the Treaty. 391 U.S., at 398-

399." However, as demonstrated below,

the language of Puyallup I does not bear

this out. In Puyallup I, the United

States Supreme Court made the following

statement of page 398:

The treaty right is in

terms the right to fish

"at all usual and accus-

tomed 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 fish-

ing may be done and its

purpose, whether or not

commercial, are not men-

tioned in the Treaty.

We would have quite a

B-10

different case if the

Treaty had preserved

the right to fish at

the “usual and accus-

tomed places" in the

"usual and accustomed"

manner. But the Treaty

is silent as to the

mode or modes of fishing

that are guaranteed.

Moreover, the right to

fish at those respective

places is not an exclu-

sive one. Rather, it

is one "in common with

all citizens of the Ter-

ritory." Certainly the

right of the latter may

be regulated. And we

see no reason why the

right of the Indians may

not also be regulated

by an appropriate exer-

cise 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.

B-11

253, as superseded by

§ 20l1(b) cf the Nation-

ality Act of 1940, 8

U. S. C. § 1401(a) (2).

But the manner of fish-

ing, the size of the

take, the restriction

of commercial fishing,

and the life may be re-

gulated by the State in

the interest of conser-

vation, provided the re-

gulation meets appro-

priate standards and

does not discriminate

against the Indians.

In the final paragraph of the Puyallup I

opinion, the Supreme Court drew the

following conclusion on pages 401-03:

Whether the prohibi-

tion of the use of set

nets in these fresh

waters was a “reason-

able and necessary”

(70 Wash. 2d, at 261,

422 P.2d, at 764) con-

servation measure was

left for determination

by the trial court when

the Supreme Court, deem-

ing the injunction in

No. 247 too broad,

B-12

remanded the case for

further findings. When

the case was argued

here, much was said a-

bout the pros and the

cons of that issue.

Since the state court

has given us no author-

itative answer to the

question, we leave it

unanswered and only add

that any ultimate find-

ings on the conservation

issue must also cover the

issue of equal protection

implicit in the phrase

“in common with.”

(Footnotes omitted.) Therefore, it cer-

tainly 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 se-

cond decision, Department of Game v. Pu-

yallup Tribe, Inc., 80 Wn.2d 561, 497

P.2d 171 (1972), when we stated on page

568:

[T]here can no longer be

any question that what-

ever the United States

Supreme Court may ulti-

mately construe to be

B-13

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 conserva-

tion of the fishery, pro-

viding the regulations are

not discriminatory against

the Indians.

(Italics ours.)

In addition, it is important to

place our decision in the above cases in

the correct perspective. The controlling

issue there was the validity of regula-

tions enacted by the Department of Fish-

eries and the Department of Game. The

Department of Fisheries’ regulations

allowed an Indian net fishery in the

Puyallup River for salmon, subject to

certain limitations for conservation pur-

poses. The Department of Game regula-

tions prohibited a net fishery for steel-

head. Our decision was designed to de-

termine 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 indicating that an Indian net

fishery was a matter of right under the

B-14

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 neces-

sary as an initial matter in order to ar-

rive at an allocation of steelhead in the

Puyallup River that is consistent with

and takes into account Indians rights un-

der the Treaty. Those rights must be de-

termined before they can be given effect.

If the Treaty of Medicine Creek,

December 26, 1854 (10 Stat. 1132), pro-

vides the Puyallup Indians with any fish-

ing 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.l. The per-

tinent language of article 3 is the fol-

lowing:

The right of taking

fish, at all usual and

accustomed grounds and

stations, is further

secured to said Indians,

in common with all citi-

zens of the Territory. . .

B-15

(Italics ours.) It is the interpretation

of this Treaty language 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.

The rules of interpretation applic-

able to Indian treaties have been vari-

ously stated. Basically, treaties are

to be interpreted in accord with the in-

tent of the parties. So far as possible,

the sense in which the Indians understood

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 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. lll, 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 &. Ct. 662 (1905);

Worcester v. Georgia, 31 U.S. (6 Pet.)

515, 581, 8 L. Ed. 483 (1832). The Uni-

ted 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 follows:

B-16

It is our responsibil-

ity to see that the

terms of the treaty are

carried out, so far as

possible, in accordance

with the meaning they

were understood to have

by the tribal represen-

,tatives at the council,

and in a spirit which

generously recognizes

the full obligation of

this nation to protect

the interests of a de-

pendent people.

Another recognized rule of construc-

tion requires that the language in trea-

ties 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, L. Ed. 2d °

an, Se C- (1975); Choctaw Indians

v. United States, supra at 431; Worcester

v. Georgia, supra. Likewise, any ambig-

uities or “doubtful expressions” are to

be resolved in favor of the Indians.

McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164, 174, 36 L. Ed. 2d 129, 93

S. Ct. 1257 (1973), quoting Carpenter v.

Shaw, 280 U.S. 363, 367, 74 L. Ed. 478,

50 S. Ct. 121 (1930); Choctaw Nation v.

Oklahoma, supra; Winters v. United States,

B-17

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

Ct. 207 (1908).

These canons of construction, how-

ever, 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, L. Ed. 2d

’ BS. Ce. (1975), as fol-

lows:

We give this rule the

broadest possible scope,

but it remains at base

a canon for construing

the complex treaties,

statutes, and contracts

which define the status

of Indian tribes. A

cannon of construction

is not a license to dis-

regard clear expressions

of tribal and congress-

ional intent.

(Italics ours.) Similar limitations

apply to all the liberal rules of con-

struction mentioned above. First, the

attempt as an initial matter, to prefer

the Indians’ understanding of a treaty

does not mean that their alleged under-

standing must prevail. "“[E]ven Indian

treaties cannot be rewritten or expanded

B-18

beyond their clear terms to remedy a

claimed injustice or to achieve the

asserted understanding of the parties."

Choctaw Indians v. United States, supra

at 432. See Skokomish Indian Tribe v.

France, 320 F.2d 205, 207 (9th Cir. 1963).

The United States Supreme Court has also

stated that

[w]e attempt to determine

what the parties meant by

the treaty. We stop short

of varying its terms to

meet alleged injustices.

Such generosity, if any

may be called for in the

relations between the

United States and the In-

dians, is for the Congress.

(Footnote omitted.) Northwestern Bands

of Shoshone Indians 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 inter-

pretation, create presidential authority

where there was none, nor rewrite con-

gressional acts so as to make them mean

something they obviously were not intend-

ed to mean." Confederated Bands of Ute

Indians v. United States, 330 U.S. 169,

179, 91 L. Ed. 823, 67 S. Ct. 650 (1947).

B-19

Indian rights cannot be determined “under

any acceptable rule of interpretations”

merely because the Indians thought the

right existed. Confederated Bands of Ute

Indians on page 180. Hence, if the lang-

uage in an Indian treaty is clear and un-

ambiguous, then the courts cannot inter-

pret 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 construed in article 3 of

the Treaty of Medicine Creek is " [t]he

right of taking fish. . .is further se-

cured to said Indians, in common with all

citizens of the Territory." The meaning

of this clause is clear and unambiguous

on its face. Its plain meaning has sig-

nificance and confers a distinct benefit.

However, interpretation of the Treaty re-

quires us to construe and give meaning to

the phrase “in common with."

The general meaning of “common” has.

changed very little since the Treaty of

Medicine Creek was written. Compare N.

Webster, An American Dictionary of the

English Language 231 (1862), and A Dic-

tionary of American English 575 (W. Craige

ed. 1936) with Webster's Third New Inter-

national Dictionary (1961). The basic

definition of “common” is not complicated.

"Common" means “of or relating to a

B-20

community at large (as a family unit,

social group, tribe, political organiza-

tion, 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

seemed to recognize this interpretation

when it said in the last paragraph of

Puyallup I, on page 403, “that any ulti-

mate findings on the conservation issue

must also cover the issue of equal pro-

tection 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 Indi-

ans.

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 Controversy: Fishing Rights

B-21

of the Muckleshoot, Puyallup, and Nisqual-

ly Indians 61-62 (A Report Prepared for

the American Friends Service Comm.) (U.

W. Press 1970); Johnson, The States Ver-

sus Indian off-Reservation Fishing: A

United States Supreme Court Error, 47

Wash. L. Rev. 207, 213-14 (1972) .* This

2 up to 1921, the regulation of the

fisheries that did occur was undertaken

directly by the state legislature without

technical help. The regulations reflect-

ed no more than a cursory knowledge of

conservation requirements and consisted

of limited time closures and increasingly

stricter limitations on fixed gear. J.

Crutchfield & G. Pontecorvo, The Pacific

Salmon Fisheries 131-32 (1969). See,

e.g., Laws of 1899, ch. 117, §§ 1 and 2,

p. 194-95; Laws of 1897, ch. 82, §§ 1-3,

p- 214-16. See also State v. Allen, 80

Wash. 83, 141 P. 292 (1914).

The use of the most effective methods

of catching fish, e.g., fixed appliances

such as fish traps and setnets, was not

completely prohibited until 1935. Laws

of 1935, ch. l, § 8, p. 6. This prohibi-

tion was the result not of legislative ac-

tion but of an initiative measure which

was approved at the general election on

November 6, 1934. Moreover, it was not

until 1947 that the steelhead species was

classified as a game fish and thus became

B-22

fact clearly indicates that at the time

of the Treaty in 1854, the parties did

not contemplate the event of conservation

requirements necessary to preserve the

species. There was an inexhaustible sup-

ply of fish, see Uncommon Controversy,

supra at 4 n.3, 61-62, and the Treaty was

undoubtedly premised on this condition.

Consequently, 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 tak-

ing fish. The fish were there for the

taking. It was important only for the

Indians to enjoy the right of taking f sh

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 fishing areas.

Our interpretation of article 3

means that Indians under treaties con-

cerning fishing rights “in common with

all citizens” are, to the same extent as

note 2 con't.

subject to the special regulations en-

forced by the Department of Game. See

Laws of 1947, ch. 275, § 10, p. 1200.

B-23

other citizens, subject to state conser-

vation regulations that meet appropriate

standards. 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 language guarantees the Indi-

ans access to their usual and accustomed

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 re-

source. But the state can, for the pur-

poses of conservation, properly regulate

the public's right to fish and such regu-

lations 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 a-

bove analysis. For instance, the Court

stated in United 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 cit-

izens of the Territory.”

B-24

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 recognize 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 claiming a trea-

ty right, upheld a state regulation pro-

hibiting spear fishing, the Supreme Court

justified the result as follows:

Rather are we of the

opinion that the [trea-

ty] clause is fully sa-

tisfied by considering

it a reservation of a

privilege of fishing

and hunting upon the

granted lands in

B-25

common with the grantees,

and others to whom the

privilege might be ex-

tended, but subject

nevertheless to that

necessary power of ap-

propriate regulation,

as to all those privi-

leged, 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

fishing could not be applied to Indians

because “such exaction of fees as a pre-

requisite 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 In-

dians, equally with others,

such restrictions of a pure-

ly regulatory nature concern-

ing the time and manner of

B-26

fishing outside the re-

servation as are neces-

sary for the conserva-

tion of fish...

(Footnote omitted.)

Further support for the interpreta-

tion presented above -- that the Indians

share equally, i.e., in common with other

citizens, the public right to fish and,

in addition, are guaranteed access to cer-

tain fishing locations -- is found in

Seufert Bros. Co. v. United States, 249

U. S. 194, 63 L. Ed. 555, 39 S. Ct. 203

(1919). This case is particuarly rele-

vant because it involved article 3 of the

Treaty with the Yakimas, June 9, 1855

(12 Stat. 25). That provision is nearly

idential to article 3 of the Treaty of

Medicine Creek. The two treaties were

entered into contemporaneously. See 249

U.S. at 196. The Supreme Court interpre-

ted the treaty language as follows:

How the Indians under-

stood this proviso we are

considering is not doubt-

ful. During all the years

since the treaty was signed

they have been accustomed

habitually to resort for

fishing to the places to

which the decree of the

B-27

lower court applies, and

they have shared such

places with Indians of

other tribes 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 citi-

zens 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 appro-

priate standards that affect all citizens,

Indian and non-Indian, equally. However,

such regulations cannot deny the Indians

access to their usual and accustomed fish-

ing places, nor can they restrain Indian

fishing at those places except to the ex-

tent the regulations restrain the fishing

B-28

rights of all state citizens, e.g., regu-

lations as to time and manner of fishing,

size of catch, etc.

It should be noted that this inter-

pretation of the Treaty grants to the In-

dians certain rights that they otherwise

would not clearly have retained at the

time. In addition to guaranteeing access

to certain fishing locations, article 3

of the Treaty put them on an equal foot-

ing with "all citizens of the Territory.”

Admittedly, such equal treatment would be

superfluous today--it would gi@e the In-

dians no additional rights beyond those

that they already possess. But at the

time of the Treaty, equal footing with

citizens of the Territory was very signi-

ficant. When the Treaty was written In-

dians were not citizens and, in addition,

some of the normal methods of obtaining

citizenship were not open to them. See

F. Cohen's Handbook of Federal Indian

Law 154 (1971). Article 3 served a defi-

nite purpose because it assured the In-

dians that they would have a right to un-

inhibited access to their usual and ac-

customed fishing grounds. This guarantee

was not unimportant in the context of a

government policy designed to restrict

the Indians to residence on the reserva-

tions as much as possible in order to

avoid conflict between the Indians and

the settlers. See E. Swindwell, Report

B-29

on Source, Nature, and Extent of the Fish-

ing, Hunting and Miscellaneous Related

Rights of Certain Indian Tribes in Wash-

ington and Oregon 55, 58-59 (Department

of the Interior, 1942); Uncommon Contro-

versy, supra at 41-42; Coan, The Adoption

of the Reservation Policy in Pacific

Northwest 1853-1855, 23 Oregon Historical

Quarterly 1, 12, 14 (1922). Consequently,

the interpretation above, which means the

Indians were assured equal treatment at

the time of the Treaty (plus the absolute

right of access to certain locations),

does not mean that the Indians were mere-

ly given something that they would have

had even without the Treaty. Cf. United

States v. Winans, supra at 380.

Certain Treaty rights may now be

nugatory due to subsequent events, that

is, they are now enjoyed by the Indians

simply because they are citizens of the

United States. This does not mean, how-

ever, that a court in the context of in-

terpretation can expand and rewrite a

treaty beyond its clear meaning at the

time it was entered into. See Choctaw

Indians v. United States, supra. The

Treaty of Medicine Creek clearly provided

for significant rights at the time it was

concluded. The Treaty cannot now be ex-

panded beyond its unambiguous terms even

if some of those terms have been super-

seded, thus making the Treaty arguably

B-30

unjust. See Northwestern Bands of Sho-

Because the Treaty, as well as the

equal protection guarantees to the Con-

stitution, demands that the Indians re-

ceive equal treatment, it is uncontrover-

ted that any state regulation of fishing

may not discriminate, that is, the regu-

lations must apply equally to all citi-

zens 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 allowing 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 pro-

tection is denied when similarly situated

persons, e.g., all state citizens includ-

ing Indians, are treated differently by

allowing only a certain class of fish

with nets. See Truax v. Corrigan, 257

U.S. 312, 334, 66 L. Ed. 254, 42 S. Ct.

124 (1921); State ex rel. Bacich v. Huse,

187 Wash. 75, 80, 59 P.2d 1101 (1936).

Thus there would be no discrimination if

all net fishing, including Indian net

fishing, were prohibited. There is also

no discrimination where all state

B-31

citizens are only allowed to fish by a

certain method, e.g., by hook and line.

Illegal discrimination would occur only

where one group is given special rights

that the other group is denied, e.g., al-

lowing only Indians to net fish or allow-

ing only non-Indians to fish with hook

and line. See Thomson v. Dana, 52 F.2d

759, 764 (D.C. 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).

Therefore, in the absence of special

federal rights, state regulations permit-

ting only one group to utilize a certain

fishing method would be discriminatory

and in violation both of constitutional

equal protection guarantees 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 Indi-

ans as to non-Indians. For example, if

the prohibition of net fishing is neces-

sary for the preservation of the fishery,

it must be equally applied both to Indi-

ans and non-Indians in order to come

within the ambit of the equal protection

clause of the United States Constitution

and the “equal protection” implication of

B-32

article 3 of the Treaty of Medicine Creek.

As previously mentioned, we feel that

the juxaposition of Puyallup II beside

Puyallup I demonstrates that the interpre-

tat.on of the Treaty of Medicine Creek is

an open question. For this reason, we

have rendered the decision above as the

first phase of our opinion. We recognize

that the ultimate disposition of the trea-

ty interpretation question is, however,

vested with the United States Supreme

Court. Moreover, we feel constrained by

the express language on the face of Puyal-

iup II, when considered independent of

Puyallup I, to defer to the statement in

Puyallup II, recognizing an Indian right

to a net fishery. Therefore, pending an

ultimate disposition of this issue by the

United States Supreme Court, we will fol-

low Puyallup II and undertake a consider-

ation of the allocation question express-

ly called for by that case. We must de-

termine two issues. First, does the In-

dian Treaty right to a net fishery encom-

pass only the natural run of steelhead,

or does it extend to both the natural run

and the hatchery run? Second, in terms

of number of fish, how extensive is the

right, and by what agency should this al-

location be implemented? We shall ad-

dress ourselves to these issues in the

above order.

B-33

The artificial propagation of steel-

head through a hatchery program on the |

Puyallup River did not commence until

1933. Therefore, just as the inexhaust-

ible 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 either the tribe or the government

intended the Treaty to create any rights

beyond the natural run. However, by ex-

amining the Treaty itself, we do find

evidence which specifically relates to

this issue. Even though the Treaty obvi-

ously makes no reference to artificially

propagated steelhead, which were unknown

at the time, it does set forth Indian

rights with regard to artificially cul-

tivated 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, 1133). This plain lang-

uage demonstrates that the rights secured

to the tribe under the Treaty did not en-

compass artificially propagated sources

of fish. Likewise, the Supreme Court in-

dicated in Puyallup II that thir result

is correct. The majority opinion made no

comment at all on the issue, but the con-

curring opinion of Mr. Justice White

B-34

stated that "the Treaty does not obligate

the State of Washington to subsidize the

Indian fishery with planted fish paid for

by sports fishermen.” Puyallup II at 49.

We can find no reason to distinguish

artificially cultivated shellfish from

hatchery bred steelhead since the impact

of the Treaty is to distinguish natural

sources from artificial sources. To in-

terpret the Treaty in any other fashion

requires this Court to literally rewrite

the terms of the Treaty and this we can-

not do. See Confederated Bands of Ute

Indians v. United States, supra; North-

western Bands of Shoshone Indians v. Uni-

ted States, supra; and Choctaw Indians v.

United States, supra.

The appellants contend that the op-

posite result must obtain 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 hatch-

ery bred steelhead. Furthermore, the

record does not demonstrate that the run

has been depleted, but instead establish-

es that the artificially propagated run

in fact augments the natural run since a

hatchery bred steelhead loses it disting-

uishing characteristics upon returning to

its native stream and henceforth is

B-35

Classified as a natural run steelhead.

Mr. Millenbach, the Chief of the Fisher-

ies Management Division, testified as

follows:

Q. Now, does the Depart-

ment of Game at no cost to

the members of the Puyallup

Tribe provide any services

which enhance the Puyallup

Tribe fishery? A. Well,

the hatchery planting of

smolt steelhead have con-

tributed substantially to

the net catch in the Puyal-

lup River--the Indian net

catch.

Mr. Heckman, who was called as an expert

witness by the appellants and is a fish-

ery biologist in charge of the Northwest

Fisheries program, concurred in this op-

inion. The State thus established that

the size of the natural run is increased

yearly at no expense to the tribe. On

the other hand, the appellants failed to

introduce any evidence which substantia-

ted their claim that the size of the na-

tural run has in fact been depleted by

the effect of modern society and, if so,

the extent thereof. In conclusion, the

appellants’ contention that changed cir-

cumstances justify the sanctioning of a

net fishery for hatchery bred steelhead

B-36

cannot be justified by the Treaty and is

not supported by the record. Consequent-

ly, their argument must fail.

This result, which excludes hatchery

bred fish from the Treaty right, is fur-

ther supported by consideration of equity.

The evidence below demonstrated that the

steelhead prgram conducted by the State

Department of Game is nearly totally fund-

ed by the citizens of the state, primari-

ly 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

3 The record clearly establishes

that approximately 75 percent $f the De-

partment of Game's total revenue is de-

rived from license fees. Moreover, only

4 percent of the total statewide expendi-

tures by the Department of Game for the

steelhead program are federally derived

and this amount is attributable to match-

ing funds under the Federal Anadromous

Fish Act. It is our opinion, furthermore,

that even if the State Department of

Game's programs were totally federally

funded, the Indians, absent specific con-

ditions on such federal financing, would

enjoy only those rights available to all

state citizens to the resources thus pro-

vided.

B-37

denying other citizens, who provide the

necessary funding, equal treatment. To

allow the Indians to take hatchery fish by

the use of nets would be 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 be to put the State to a

Hobson's choice: either to continue the

hatchery program and thus provide the In-

dians with additional steelhead guaran-

teed to he 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

@wWe take judicial notice of the

fact that one is far more likely to catch

fish through the utilization of a net

than with hook and line.

B-38

under the regulations of the State Depart-

ment of Game.

We now direct our attention to the

final issue. How many actual fish must

be made available for that net fishery,

and in what manner should this allocation

be implemented?

The trial court decision below was,

quite simply, an attempt to follow the

Supreme Court's mandate in Puyallup II.

The Supreme Court stated that the harves-

table number of steelhead

must in some manner be

fairly apportioned be-

tween Indian net fish-

ing and non-Indian

sports fishing so far

as that particular

species is concerned. ..- .-

The aim is to accom-

modate the rights of

Indians under the Trea-

ty 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

B-39

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 hatch-

ery origin. This finding is amply suppor-

ted by the record. The record also sup-

ports the trial court's finding that a 50

percent escapement factor is required for

the propagation of the natural run. Fif-

ty percent of the natural run must be al-

lowed 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

(escapement) requirements to harvest half

of the natural run.

After making the above determina-

tions, 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 steel-

head run available for harvest would be a

fair apportionment of the resource. Us-

ing estimates of the annual natural run

size based on evidence relating to past

steelhead runs, the trial court trans-

lated this percentage share into an exact

number of fish, provided that the annual

B-40

run size continued to be of the same mag-

nitude as the run size estimates before

the court.

We believe that 45 percent of the

harvestable natural run was equitable

determination by the trial court in the

exercise of its discretion. We cannot

say from this record that such a deter-

mination was a manifest abuse of discre-

tion. 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 evi-

dence in the record does not clearly es-

tablish a constant annual natural run

size. On the contrary, the record indi-

cates that the run size varies from year

to year. The available estimates ranged

from about 4,000 in the natural run to

56,000 in the total run. It is therefore

cbvious that the effect of this alloca-

tion 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 allocation determination.

B-41

The Department of Game is the expert

state agency charged with the duty of

conserve the state's game resources, in-

cluding the steelhead trout. See RCW

77.12.010,.040. The Supreme Court recog-

nized in Puyallup II on page 48, that

conservation decisions must be made by an

expert. "Only an expert could fairly es-

timate what degree of net fishing plus

fishing by hook and line would allow the

escapement of fish necessary for perpetu-

ation of the species.”

The 45 percent allocation figure of

this decision applies to the harvestable

amount of the annual, natural steelhead

run, i.e., the amount available after

conservation requirements are met. This

allocation will necessarily depend on the

Department of Game's estimate of the na-

tural run size each year and its annual

approximations as to the harvestable num-

ber of fish in the natural run. The De-

partment's annual determination of the

harvestable number of fish inthe natural

run, that is, its determination of the

escapement requirement calculated to as-

sure preservation of the species, will

therefore determine the extent of the In-

dian net fishery required by federal

treaty. Forty-five percent of the harvest-

able natural run is the extent of this

treaty right. The Department of Game's

annual determination will actually yield

the number of fish that the Indians can

catch using nets pursuant to the treaty

B-42

rights that, for purposes of this part

of our opinion, we have assumed to exist.

By thus transforming the Indian

right to a net fishery into an actual

number of fish, it is possible to recog-

nize this Indian Treaty right in light of

conservation requirements and in the con-

text of the total annual steelhead run.

The total run consists of both hatchery

and natural origin steelhead, while the

treaty right only applies to the natural

fish. It is possible to differentiate

the two types of fish by certain mark-

ings, but they are substantially identi-

cal in size and all other characteris-

tics. 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 harves-

table because their escapement is not re-

quired 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.>5 This

3 We emphasize again that the sports

fishery is available to all state citi-

zens--Indians are not preempted or pre-

cluded from participating in the hook-and-

line fishery. The record shows that

B-43

me thod allocates the fish available,

in light of conservation requirements,

between the Indians’ net fishery and the

sports fishery--it assures that the Indi-

an 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 direct-

ly adjudicated. It is our belief that

the Treaty language “in common with” does

not require that the Indians be exempted

from State regulations. Rather, all that

the Treaty requires is that the regula-

tions apply equally to Indians and non-

Indians. Because we feel bound to follow

the express language on the face of Pu-

yallup II, under phase two of our opin-

ion, we hold that allocating 45 percent

of the harvestable natural steelhead run

each year to the Indian Treaty net fish-

ery is a fair apportionment between Indi-

an net fishing and sports fishing. The

Department of Game has the responsibility

to determine the extent of the harvesta-

ble natural run and to accommodate this

Puyallup Indians have in fact fished in

this manner. Indians enjoy the right to

sports fishery on an equal basis with

other citizens except that they are not

required to purchase either a license or

a punch card.

B-44

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 alloca-

tion of steelhead consistent with this

opinion. The first phase of our opinion

is held in abeyance pending a final dis-

position 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.

/s/ Hunter, J.

WE CONCUR:

/s/ Wright, J.

ZsZ Hamilton, J.

B-45

No. 43736

STAFFORD, C. J. (Concurring in the

Result) -— I concur in the result reached

by the majority as well as with the allo-

cation of the steelhead trout run between

the Indians and non-Indians. However, I

reach the same result for different rea-

sons.

I have reviewed Puyallup Tribe v.

Department of Game, 391 U.S. 392, 20 L.

inafter called Puyallup I) and Washington

Game Dep't 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 steel-

head trout fishery occurs after their

entrance into the Puyallup River; (2)

that the case is concerned with the Puyal-

lup Indians’ use of set nets to catch

steelhead in the Puyallup River; (3) that

the only portion of the Puyallup River

with which we are concerned flows through

the Puyallup Indian reservation; (4) that

B-46

the present run of steelhead is made pos-

sible 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 cen-

tral issue is the problem of accommodat-

ing the Puyallup Indians’ net fishing and

the non-Indian sports fishing with the

conservation needs of the fishery.

It is equally clear the United

States Supreme Court remanded the case

for this state court to make a fair ap-

portionment 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 ap-

portionment 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 maintain-

ed. If this assumption 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 apportionment di-

rected by the United States Supreme Court.

B-47

In this regard see such cases as Menomi-

nee Tribe v. United States, 391 U.S. 404,

20 L. Ed. 24 697, 88 S. Ct. 1705 (1968);

Worcester v. Georgia, 31 U.S. (6 Pet.)

515, 8 L. Ed. 483 (1932); Kimball v. Cal-

lahan, 493 F.2d 564 (9th Cir. 1974);

Vv. ted St , 157 F.2d 760 (9th

Cir. 1946); see also Seufert Bros. Co. v.

United States, 249 U.S. 194, 63 L. Ed.

555, 39 S. Ct. 203 (1919); and United

v.W , 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 II at page 49:

The aim is to accom-

modate the rights of

Indians under the Trea-

ty and the right 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 time may come when

the life of a steelhead is

so precarious in a particu-

lar stream that all fishing

B-48

should be banned until

the species regains as-

surance of survival.

The police power of the

State is adeguate to pre-

vent the steelhead from

following the fate of the

passenger pigeon; 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 na-

ture of the fishery involved, as well as

the State's physical and financial sup-

port of that resource, it is easy to

understand the above quoted language.

If the Supreme Court has 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, implement, and enforce. With-

out 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 Puyal-

lup II at face value and concur in the

B-49

result reached by the majority.

/s/ Stafford, C.J.

I concur

/s/___ Wright, J.

I concur

/3/ Utter, J.

I concur

Lsf Horowitz, J.

B-50

No. 43736

ROSSELLINI, J. (concurring) --I concur

in Justice Hunter's scholarly interpreta-

tion of the Medicine Creek Indian Treaty.

This interpretation should dispose of the

case. However, Justice Hunter felt com-

pelled by the language found in Washing-

ton Game Dep't v. Puyallup Tribe, 414

U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct. 330

(1973), to review the determination of

the amount of catchable fish to be appor-

tioned between the commercial Indian net

fishery and the hook and line fishery of

other citizens.

I believe that any apportionment of

the fish run is contrary to the treaty

and the Constitutions of the United States

and Washington. Apportionment cannot be

sustained by the law, or the fact in the

case.

I find nothing in the language of

the Treaty of Medicine Creek, 10 Stat.

1132, or in the Treaty of Point Elliott,

12 Stat. 927 (2 Indian Affairs Laws &

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 in-

B-51

corporated as it was in other similar

treaties contemporaneously negotiated

with tribes makes it clear that Indians

were not to be excluded from fishing at

their accustomed grounds, but these

rights were to be co-extensive only with

the citizens of the territory. Thus, the

Indians shall have all fishing rights

that all the citizens have, and no Indian

Or non-Indian shall have any superior

right.

Any other interpretation would dis-

tort the obvious meaning of the language.

Article 3 of the Treaty of Medicine

Creek, as noted says:

ARTICLE III. The right

of taking fish, at all us-

ual and accustomed grounds

and stations, is further

secured to said Indians,

in common with all citizens

of the Territory, and of

erecting temporary houses

for the purpose of curing,

together with the privi-

lege of hunting, gather-

ing roots and berries, and

pasturing their horses on

open and unclaimed lands:

Provided, however, That

they shall not take shell

B-52

fish from any beds staked

or cultivated by citizens,

and that they shall alter

all stallions not intended

° for breeding horses, and

shall keep up and confine

the latter.

(Italics mine.) 10 Stat. 1133.

There is no word in any of the arti-

clesor 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 avail-

able to citizens of the territory.

The treaty made with the Quinaielt,

Quillehute and other tribes, 12 Stat. 971l-

72 (2 Indian Affairs Laws & Treaties 719-

20 (1904)), employs identical language to

the Treaty of Medicine Creek concerning

the right of taking fish in common with

all citizens of the territory.

The Treaty of Point Elliott, 12 Stat.

927, 928, with the Dwamish, Suquamish,

and other tribes employs the same lang-

uage used in the Treaty of Medicine Creek

and the treaty with the Quinielt and

Quillehute:

B-53

ARTICLE V. The right

of taking fish at usual

and accustomed grounds

and stations is further

secured to said Indians

* in common with all citi-

zens of the Territory,

and of erecting tempor-

ary houses for the pur-

pose 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 fish-

ing 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 de-

clares that

B-54

[t]he right of taking fish

at usual and accustomed

grounds and stations is fur-

ther secured to said Indi-

ans, 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 is describing the

settlers as citizens of the United States

rather than as citizens of the territory.

One cannot find from this treaty or the

three other treaties any language which

gives exclusive off-reservation fishing

rights or any apportionment of the fish

runs.

What the treaties said is that Indi-

ans should not be barred from an oppor-

tunity to fish any more than the settlers

were denied the right to do so.

A treaty signed in June 1855 in

Walla-Walla Valley between the United

States and the Walla-Walla Tribe, 12 Stat.

945, 946, illustrates that the Indians and

United States were capable of using expli-

cit language when it was desired to give

exclusive rights to Indians to fish.

Article 1 of the treaty says

[t]hat the exclusive

right of taking fish

B-55

in the streams running

through and bordering

said reservation is here-

by secured to said Indi-

ans, and at all other

usual and accustomed sta-

tions in common with citi-

zens of the United States,

and of erecting suitable

buildings for curing the

same; the privilege of

hunting, gathering roots

and berries and pasturing

their stock on unclaimed

lands in common with citi-

zens, is also secured to

them.

It can be seen that in the Walla-

Walla Treaty, the Indians reserved the

exclusive right to take fish from streams

running through and bordering said reser-

vation and outside their reservation in

common with the citizens of the United

States. There was no difficulty in se-

lecting 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 ex-

cleive and shared rights held in common

with the citizens of the territory were

made in a treaty with the Yakima Indian

B-56

Tribe. (See 12 Stat. 951).

A reading of all the treaties which

were signed at about the time of the Me-

dicine Creek Treaty in 1854 makes it clear

that where an exclusive right was intend-

ed, and when a right to fish in common

with the settlers or citizens was intend-

ed, language was used precisely to express

the idea of exclusive rights and nonex-

clusive rights.

If it was intended to give 45 percent

Or any other portion of the fish runs to

Indian or White citizens, language could

have been used to express that intent. I

find not even a hint that this was the

intent of the treaties. I am sure that a

treaty which would have given away any

percentage of the fish runs would not

have been ratified.

It must be remembered that the United

States was inhabited by persons who left

their homeland because of religious or

political discrimination. They left also

because of the economic discrimination.

It must be remembered that game belonged

to the King and to the estates of the

lords. No one could hunt or fish without

the consent of the King or the lords. In

fact, poaching was a crime punishable by

imprisonment or death. Thus, it would

have been inconceivable that the citizens

B57

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 there-

of: and all treaties made,

or which shall be made, un-

der 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 pur-

suant thereto, and the treaties are the

supreme law. The laws enacted must pass

the test of constitutionality. The

treaties which are passed may not violate

the constitution and may not deprive the

citizen of any of his constitutional

rights.

Treaties are part of the domestic

law and where, as in this case, both par-

ties to the treaties are citizens of the

United States, the provisions of the con-

stitution apply. Otherwise, the Executive

and the Senate could by treaty which in-

volves rights of its citizens disenfren-

B-58

chise a class of citizens. Any treaty

right that gives Indians superior rights

denies the equal protection of other "ci-

tizens”" rights.

Let me further state why I think an

apportionment of the fish run is legally

incorrect.

It must be remembered that the steel-

head 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 pro-

grams in restocking the rivers, except a

very small amount furnished by the federal

government.

Without the hatchery-reared steelhead

planted in the rivers, there would not be

any fish to catch and there would not be

a natural run. My conclusions are based

upon the following facts which logically

follow from the planting statistics, and

take into account the misconception of

what is natural and what is native steel-

head.

The record disclosed that natural or

native steelhead is arbitrarily defined

as any steelhead that does not have any

hatchery marking. The record disclosed

that the progeny of the hatchery-planted

steelhead under this definition is

B-59

arbitrarily counted as a natural run of

steelhead.

The following chart which sets forth

the planting and catch of steelhead il-

lustrates to my mind that without the

large planting, the return of the steel-

head would be minimal.

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B~ |

Total

Sports

Indian?-

Cycle

Plant

Winter

Season

1,105 [4,472]

[2,500-3,000]*

107,000

1973-74

75,000

68,000

Cycle plants made 2 years prior to winter season,

cycle plants 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 and is incomplete.

The numbers appearing in brackets are not part of the

exhibit.

An explanation for the numbers is found on page 25

of this brief.

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

B-63

Without the massive infusion of the

hatchery fish, the steelhead runs subject

to the net fishery would have been deple-

ted.

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 ri-

ver. The effect is to block all upstream

fish.

Steelhead are different from salmon,

which spawn and die. Steelhead will

spawn and live to return to spawn again.

They are in a very poor condition after

spawning and are regarded as unfit to eat.

The nets not only take all the steelhead

going upstream to spawn, but will catch

all of the steelhead which have already

spawned and are returning downstream.

Runs of steelhead enter rivers at

different times during the season. It is

possible to deplete the run at a certain

period. It is urged that proper regula-

tion can control this situation; however,

the record is replete with evidence that

net fishery cannot be successfully regu-

lated.

B-64

The inefficiency of the enforcement

of the regulation is shown by the fact

that in December 1975, the Indians caught

2,476 fish on the Puyallup River, while

1,341 sportsmen fishing by line and hook

caught only 102. In Western Washington

Green River, 12,000 non-Indians caught

only 50 fish, while Indian netters took

4,839. On the Skagit River, 893 sports-

men caught 89 fish while the Indians

netted 2,367 fish.

Conservation means the wise use of

the resource, and in the management of

steelhead there must be necessary escape-

ment for needed spawning to ensure the

perpetuation of the resource.

The manner of fishing must be such

that it can be controlled so it does not

impair or damage the necessary escapement;

and, further, the manner of fishing itself

must not be destructive. The Department

of Game, in order to conserve the steel-

head runs, has placed limitations on the

manner of fishing and the catch limit of

steelhead. Non-Indians must fish with

line and hook (as opposed to the Indian

net fishing), and the non-Indian is lim-

ited to the maximum of two per day and no

more than four in possession, and a maxi-

mun of 30 per season.

B-65

This case is entitled "Department of

Game v. Puyallup Tribe, Inc.” It sug-

gests that the tribe itself is benefiting

from the net fishery. However, the re-

cord shows that there are approximately

650 members of the Puyallup Tribe, of

which 320 are over the age of 21. Twenty

Puyallup Tribe fishermen fish essentially

full time, 20 part-time, and an addition-

al 20 fish only occasionally. The com-

merical 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 apportiomnent of the

catch, as found by the court, of 45 per-

cent of the fish runs be equitable, fair,

Or conscionable when 60 Indians are allo-

cated such a large proportion and thou-

sands of non-Indians must share the re-

mainder?

Under the Treaty of Medicine Creek,

the only guarantee to the Indians is a

right to the opportunity to fish. The

treaty did not guarantee them any portion

of the fish. Even if apportionment is

permitted, should not the fish be divided

more equitably between the non-Indian

sportsmen and the Indians?

It must be remembered that before

the incredible doctrine of apportionment

B-66

was announced, the Indians had the same

right to fish, and in the same manner as

non-Indians. The treaty Indians could

fish as sportsmen or as commercial fisher-

men, whether it was by troller, gillnett-

ing, or set net.

Heretofore, all citizens, whether

Indians or non-Indians, were treated as

equals. Now the courts have decided the

rights of other citizens are inferior to

Indian rights. I cannot subscribe to such

a doctrine. I would hold that the treaty

does not permit or contemplate any alloca-

tion of the fish, but rather the opportun-

ity to fish and catch fish in the same

manner as any citizen. I would take cog-

nizgance of the fact that fishing with

fixed nets will devastate the fish runs

and jeopardize one of the great natural

resources of this state--a result which

could never have been intended by any

party to these treaties.

/3/ Rosellini, J.

I concur

/3/ Brachtenbach, J.

B-67

THE SUPREME COURT

OF .)

WASHINGTON

THE DEPARTMENT OF GAME,

)

ET AL, )

)

Respondents, )

)

PUYALLUP TRIBE, INC., ) No. 43736

ET AL, )

)

Appellants ) ORDER

) DENYING

) PETITION FOR

) REHEARING

)

The Court having decided by a vote

of seven to one that the appellants'

petition for rehearing should be denied,

It is ordered that the petition be

and it hereby is denied.

Dated this 25th day of June, 1976.

ZaZ

Chief Justice

DEPARTMENT OF GAME OF THE STATE OF )

WASHINGTON,

Respondent, _

NORTHWEST STEELHEADERS COUNCIL OF TROUT

UNLIMITED and GARY ELLIS,

Intervenor- Respondents,

WESTERN STEELHEADERS, INC., SSNseTITUS

cousummaditervenor-Respondents, oo} No...43736._

a a A County No.......158069

PUYALLUP TRIBE, INC., et al.,

Appellants.

The S:ate of Washington to: The Superior “ourt of the State of Washington

in an for PTO Ce nemmemm County

s is to certify that the opinion of the Supreme Court of the State of Washington filed on

am “oril 8 , 19 16 , became the final judgment of this court in the above entitled

case <°. June 25 — 19.76 .. This cause is remitted to the superior court from

which the appeal was taken for further proceedings in accordance with the attached true copy of

the opinion.

Pursuant to Rule 55 on Appeal, costs are taxed as follows:

Costs will be taxed by supplemental judgment following the Court's decision on the

motion taken under advisement by the Court on June 4, 1976.

The petition for rehearing was denied by Order dated June 25, 1976.

cc: Counsel (per attached list)

Reporter of Decisions

IN TESTIMONY WHEREOFP, I have hereunto

set my hand and affixed the seal of said

Court at Olympia, this...28th.......day of

en eee ne

JOUN J. CHAMPAGNE

lerk ny the Sek on’ Court, State of Washinyton

y! Reginald Shriver, Deputy

SUP.007 (10.75) .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.