Petitioners Brief — Puyallup Tribe, Inc. v. Department of Game of Wash.

Supreme Court, U. 5,

tH. FIL E Dp

wy?

IN THE MICHAEL RODAK, IR crew |

Supreme Court of the United States

OcroBeR TERM, 1976

No. 76-423

PuyatLur Trise, Inc., anp RAMONA BENNETT,

.. Petitioners,

DEPARTMENT OF GAME OF THE STATE OF WASHINGTON,

Respondent,

On Writ of Certiorari to the Supreme Court

of the State of Washington

BRIEF FOR THE PUYALLUP TRIBE AND

RAMONA BENNETT

WiuiAM H. Ropaers, Jr.

GEORGETOWN UNiversiry LAw CENTER

600 New Jersey Ave., N.W.

Washington, D.C, 20001

JOHN CLINEBELL

2232 Kast 28th Street

Tacoma, Washington 98404

JOHN SENNHAUSER

NATIVE AMERICAN Ricuts Funp

1506 Broadway

Boulder, Colorado 80302

Counsel for Petitioners

Press or Byron S. Apams Parntine, Inc., Wasuincton, D. C.

TABLE OF CONTENTS

Page

DT nde ce cccccescccecantvaseecesunes 1

PUTS GOOD oc occ ccveccsncccesccseccese 2

Geeta PORTE oc. cc ccccscvededecccccccccccose 2

Treaties and Statutes Involved .................06- 2

I ET SN CON 55 od kccntadae de edeesee< caebes 2

A Secs ce atees bal cbbeavdrecseneseseets 15

I GE BINS oo. cece cctcceccicicvciness 17

PPP PPT Prerrrrrrrrrrerrer er Teri reer te 20

I. State Administrative Agencies and Courts Are

Without Power To Adjudicate Tribal Kntitlement

to On-Reservation Fisheries and To linforece De-

RE ca. Chdeueneddbendéuuwsbekhébenadeeduesnes 20

Il. Indian Fishing, Even When Off-Reservation, Can

Be Curtailed by the State Only Upon a Compel-

ling Justification of Conservation Necessity .... 27

Ili. Tribal Sovereign Immunity Precludes State Courts

From Adjudicating Tribal Community Fishing

DE Gleb duddu ashe ssednau cudbnssbatadduvens 31

IV. The State and the Game Department Are Barred

by Principles of Collateral Estoppel from Reliti-

gating the Issue of State Power To Regulate On-

PED CUED S640 dnddeevancvdesceduecnc 35

V. The Issue of Treaty Entitlement to Hatchery

Steelhead Is Not Before the Court and Is Unnee-

ET GO Te TH 6 8hsk 0c cd eeddcedces tees 38

rs hanes ceeseiuedesddawkwnbaeanededaaaee 40

ii Table of Contents Continued

P

Attachment -

Treaty of Medicine Creek .............scceeeeees la

Publie Law 280, § 2, 18 U.S.C. 1162 (1970) ........ 2a

The Civil Rights Act of 1968, § 401, 25 U.S.C. § 1321

SE Rh dd debian eacbecdaeuneveseéedscune 2a

Indian Reorganization Act of 1934, §16, 25 U.S.C.

Se EY cu ls veuna eeveawiuce suds be KEeES 3a

TABLE OF AUTHORITIES

CasEs:

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

rr oe emery stn) ne ee 25

Antoine v. Washington, 420 U.S. 194 (1975) ..17, 27-29, 33

Arnett v. Five Gill Nets, 48 Cal. App.3d 454, 121 Cal.

Rptr. 906 (1975), cert. denied, 425 U.S. 907 (1976) 26

Bryan v. Itasca County, 96 S. Ct. 2102 (1976) ........ 24

Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th Cir.),

cert, denied, 409 U.S. 1039 (1972) .............. 31

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) .. 6

City of Tacoma v. Taxpayers, 357 U.S. 320 (1958) .. 36

Colville v. Washington, 412 F. Supp. 651 (E.D. Wash.

MEE 640s b4in nuedaehenanetwheaees cokdaeewees 2h

Crowe v. Eastern Band of Cherokee Indians, Ine., 506

f 2 ff RE eas 31

Dalehite v. United States, 346 U.S. 15 (1953) ....... 33

ny v. South Dakota, 319 F.2d 845 (8th Cir.

iekheWccchl hb wkses Wenn be Kuk oo be Kaka 33

Department of Game v. Puyallup Tribe (Puyallv

414 U.S. 44 (1973) ....... : Cer roe + . os AP neste

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

ke CY eee iereseteeneee 3,14

Department of Game v. Puyallup Tribe, 70 Wn.2d 245

hl eB spe eadiotep eer pres 8

SE ea eat 26

Dugan v. Rank, 372 U.S. 609 (1963) ................ 32

Ex Parte Crow Dog, 109 U.S. 556 (1883) ........... 21

Table of Authorities Continued iil

Page

Fisher v. District Court, 424 U.S. 382 (1976) ...... 21, 30

Fontenelle v. Omaha Tribe of Nebraska, 480 F.2d 143

CU CUR, BPO) cccccccccccccccccvvccesccescccces 32

General Talking Pictures Corp. v. Western Elec. Co.,

POD ccc dedeceneneesdnasdss bese 38

Haile v. Saunooke, 246 F.2d 293 (4th Cir.), cert.

denied, 365 U.S. 803 (1957) ......ccccesccenes 31

Hancock v. Train, 96 S. Ct. 2006 (1976) .......... 33

In re Blackbird, 109 Fed, 139 (W.D. Wis. 1901) .... 25

In re Lincoln, 129 Fed. 247 (N.D. Cal. 1904) ........ 25

International Ass’n of Machinists & Aerospace Work-

ers v. Nix, 512 F.2d 125 (5th Cir. 1975) ........ 36

Irvine v. California, 347 U.S. 128 (1954) .......... 38

J.I. Case Co. v. Borak, 377 U.S. 426 (1964) ........ 38

Kennerly v. District Court of Montana, 400 U.S. 423

SEE: <banenccednsededecerdnesceeatsasedevenes 22

Kimball v. Callahan, 493 F.2d 564 (9th Cir.), cert.

denied, 419 U.S. 1019 (1974) .......ccececcecees 25

Klamath & Modoe Tribes v. Maison, 139 F. Supp. 634

(D. Ore. 1956), modified, 338 F.2d 620 (9th Cir.

DEY setedccdbcunteedns bacngvueesuaneesesssi'’ 25

Leech Lake Band of Chippewa Indians v. Herbst, 334

F. Supp. 1001 (D. Minn, 1971) ...........-00 eee 25

Lomayaketwa v. Hathaway, 520 F.2d 1324 (9th Cir.

1975), cert. denied, 425 U.S. 903 (1976) ........ 32

Maryland Casualty Co. v. Citizens Nat’l Bank, 361

F.2d 517 (5th Cir.), cert. denied, 385 U.S. 918

SE. bu antncebede) Cacdaeenis sy dacasctereees 32

Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925) ...... 25

Mattz v. Arnett, 412 U.S. 481 (1973) .............. 26

McClanahan v. Arizona State Tax Comm/’n, 411 U.S.

SE cc aeudanekavaneas ee¥encscgansis 21, 24

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

a SER oe RR SD 16, 22, 25

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

neacddekeuvarndeeesseunnriesessennss 21, 33

Metlakatla Indian Community v. Egan, 369 U.S. 45

SE. ceceedecchdcnedskacissepetaens s+hen 08% 23

Moe v. Confederated Salish & Kootenai Tribes of the

Flathead Reservation, 425 U.S. 463 (1976) ...... 21

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

cert. denied, 330 U.S. 827 (1947) ........e eee 25

iv Table of Authorities Continued

Page

Morgan v. Colorado River Indian Tribe, 103 Ariz, 425,

Be £ FO Fr ee eee 31

Morton v. Maneari, 417 U.S. 535 (1974) ............ 30

Namekagon Development Co. v. Bois Forte Reserva-

tion Housing Authority, 517 F.2d 508 (8th Cir.

. 446660460.4006s0bnndeetndaren wes heneses 32

Nisqually Tribe v. United States, 29 Ind, Cl. Comm.

ae nactustshesdevasachedtedses ade sas 30

Oncida Tribe of Indians v. United States, 165 Ct. Cl.

487, cert. denied, 379 U.S. 946 (1964) ........... 25

ate v. Jondreau, 384 Mich. 539, 185 N.W.2d 315

En +) ibdd thas ekienahuh oesabaeeselonsbeen 26

Puyallup Tribe, Inc. v. Department of Game, 86 Wn.2d

De DT eee passim

Puyallup Tribe v. Department of Game (Puyallup [),

ee Oe hie ee passim

Puyallup Tribe v. United States, 17 Ind. Cl. Comm.

Eh s00ke hb beebhbaenénndevdien sian ks 30

Quechan Tribe v. Rowe, 350 F. Supp. 106 (S.D. Cal.

SUED. Rd sbndebeeeennioseadécuhaenesekeabedann 25

Satiacum v. Washington, 414 U.S. 1 (1973) .......... 9, 37

ke mamad v. Superintendent, 368 U.S. 351 (1962) ..... 21

So APpy v. Smith, 529 F.2d 570 (9th Cir. 1976) ...... 28

Tewa Tesuque v. Morton, 498 F.2d 240 (10th Cir.

1974), cert. denied, 420 U.S. 962 (1975) ........ 32

Tulee v. Washington, 315 U.S. 681 (1942) ....., 20, 27, 29

Turner v. United States, 248 U.S. 354 (1919) ........ 32

Twin Cities Chippewa Tribal Council v. Minnesota

Chippewa Tribe, 370 F.2d 529 (Sth Cir. 1967) .... 31

United States v. District Court for the County of

eS BY | OF eee eae 32

United States ex rel. Feather v. Erickson, 489 F.2d 99

(8th Cir. 1973), rev’d sub nom., DeCotean v. Dis-

trict Court, 420 U.S. 425 (1975) ............... 33

United States ex rel. Lynn v. Hamilton, 233 Fed. 685

I 25

United States v. United States Fidelity & Guaranty

i Oe Wh, OE CUED inc buncevuseccdscdence 31

United States v. Washington, 520 F.2d 676 (9th Cir.

1975), cert. denied, 423 U.S. 1086 (1976) . 22, 24-25, 28

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

(per curiam), cert. denied, 419 U.S. 1032 (1974) 6,

19, 35-36

ee =

Table of Authorities Continued Vv

Page

United States v. Washington, 384 F. Supp. 312 (W.D.

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

cert, denied, 423 U.S. 1086 (1976) ..... 4, 12, 20, 23, 35

United States v. Winans, 198 U.S. 371 (1905) ... 18, 22, 29

Washington State Commercial Passenger Fishing Ves-

sel Ass’n v. Tollefson, 87 Wn.2d 417, 553 P.2d 113

(1976), petition for rehearing granted, ——- Wn.2d

, P.2d DE. Skbbhdecovtsodéctssesan 29

Williams v. Lee, 358 U.S. 217 (1959) .......... 21, 24

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) .. 16, 20

Srarutes & Treaties

Civil Rights Act of 1968, §401(b), 82 Stat. 78, 25

Se ED MEE ap voccccceucnceeseuccass 23

Indian Reorganization Act of 1934, § 16, 48 Stat. 984,

— wee ee errr 24, 30

Indian Claims Commission Act, 60 Stat. 1049 (1946),

25 U.S.C. § 70 et seq. (Supp. IV, 1974) .......... 30

Treaty of Medicine Creek, 10 Stat. 1132 (1854) .. passim

Washington Statehood Act, 25 Stat. 676 (1889) ...... 22

cs endear eenebes ObREES 26

Sp Se ee EE csc eudkvednascteesess 17, 22-23

ee oe oe iho ob dseeneeseeeee te 11

SD Ce RED CEENED oc cccccctcccscesces 17, 23

ee vscicccapeeueeesneveaeues 22

re Ee <. ccGeuescaadsesecnctese 2

Pe rE siecle c bedues secs bbeeneseenes 32

i ee ade cee bebe aeSbheeeRNeees ee 23

TE <cccecaweusdasdcedseneusevedesdeers 3

ee id ls dened bUGneeendeed 3, 9

ee ls ae eceeadeienenheses 9

MISCELLANEOUS:

F. Cohen, Handbook of I"ederal Indian Law (1942) .. 21

Developments in the Law—Res Judicata, 65 Harv. LL.

Ss Ee CUED 5 URKSA ORNS ORS dCKsdOnedsescsers 32

Goldberg, Public Law 280: The Limits of State Juris-

diction Over Reservation Indians, 22 U.C.L.A. L.

i cco l ues cbndohdededeucehehoies 23

vi Table of Authorities Continued

ne IN THE

Gunther, Foreward: In Search of Evolving Doctrine on O f 1 ited St te

a Changing Court: A Model for a Newer Equal 1 ares

Protection, 86 Harv. L. Rev. 1 (1972) .......... “ae Supreme nurt 0 the uw

OctToser TERM, 1976

House Comm. on Appropriations, Department of In-

terior and Related Agencies Appropriation Bill,

1976, H.R. Rep. No. 374, 94th Cong., Ist Sess.

(RRUOD cccccccedessesececnehee ek aueien 4-5 No. 76-423

Johnson, The States Versus Indian Off-Reservation

Fishing: A United States Supreme Court Error, 47

—_—__ - --—--

Weah, Ea Bev. SHY (HUES . oc svescccecsevanueen 27 Puyattup Tripe, Inc., AND RaAMoNA BENNETT,

Restatement of Judgments §68 .................. 35.36 y. Petitioners,

Restatement (Second) Judgments § 68 (Tent. Draft No. . ;

Ry BEUGD ccccccesecseseckouneeenmnnne 36 DEPARTMENT OF GAME OF THE STATE OF WASHINGTON,

R. Stern & E. Gressman, Supreme Court Practice (4th sanponaent,

OG, TOGO) occccccscecesdeete tenn 38

Supreme Court Bules 23, 4 ..... 0... cece ccccccccces 38 On Writ of Certiorari to the Supreme Court

Washington State Constitution, article XXVI ........ 22 op eae Wengen

6 C. Wright & A. Miller, Federal Practice and Pro-

COGRTO CHBUED oo ncccncccvécceccesaussee ee 32 BRIEF FOR THE PUYALLUP TRIBE AND

RAMONA BENNETT

Opinions Below

The opinion of the Supreme Court of Washington,

Appendix B of the Petition for the Writ of Certiorari,

is reported in 86 Wn.2d 664, 548 P.2d 1058 (1976). The

Memorandum Decision, Findings and Conclusions,

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 of the Petition for the Writ

of Certiorari [hereinafter Pet. Cert. App.], are un-

reported.

2

JURISDICTION

Jurisdictional Grounds

The judgment of the Supreme Court of Washington

(Pet. Cert. App. B) became final, upon denial of mo-

tion for rehearing by a vote of seven to one, on June

25, 1976. (Pet. Cert. App. B-67). The petition for a

Writ of Certiorari seeking review of a single question

was filed September 22, 1976 and was granted Novem-

ber 29, 1976.’ The jurisdiction of the Court is invoked

under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Whether, consistently with established principles of

tribal immunity, a state court may adjudicate on-

reservation treaty fishing rights of an Indian tribe and

allocate the catch among tribal and non-tribal fisher-

men.

TREATIES AND STATUTES INVOLVED

The treaties and statutes involved are set forth in

the Attachment to this brief.

STATEMENT OF THE CASE

This case arrives in this Court for the third time in

its thirteen-year history. It was initiated originally

by the Washington Departments of Game and Fish-

eries in the Superior Court for Pierce County against

the tribe and certain named individuals seeking to en-

join alleged violations of state fishing laws. On cer-

1 Cross-petitions, seeking to raise issues pertaining to treaty en-

titlement to hatchery fish, were filed by respondents and were de-

nied as untimely by the Clerk. A motion by the respondents for

extension of time for filing cross-petitions was denied by Mr. Jus-

tice Rehnquist. Order of October 28, 1976.

|

3

tiorari here for the first time, this Court, viewing the

case as one involving state power to regulate off-reser-

vation fishing (391 U.S. at 396 n.11), ruled that a state

prohibition against Indian net fishing could be sus-

tained only as ‘‘a reasonable and necessary’? conserva-

tion measure. Puyallup Tribe v. Department of Game

(Puyallup I), 391 U.S. 392, 403 (1968).

On remand, the Department of Game assumed what

the trial court called an ‘‘adamant”’ posture that In-

dians had no rights other than those of non-Indian

citizens. The trial court denied injunctive relief on

conservation grounds, ruling that the Game Depart-

ment ‘‘had failed to give any consideration to Indian

Treaty fishing rights as decreed by the Supreme

Court.’’ Memorandum Opinion of Rummel, J., No-

vember 24, 1970, Pierce County Superior Court. On

appeal, the Washington Supreme Court upheld as

reasonable a 1970 Fisheries Department regulation

allowing limited Indian net fishing for coho salmon

on the Puyallup River and a 1970 Game Department

regulation precluding all Indian net fishing for steel-

head.? Department of Game v. Puyallup Tribe, 80

Wn.2d 561, 497 P.2d 171 (1972). On certiorari for a

second time, this Court held that the Department of

Game’s 1970 total prchibition against Indian net fish-

ing for steelhead on the Puyallup was an invalid ‘‘dis-

erimination”’ 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 IT), 414 U.S. 44, 48 (1973).

* The Fisheries Department is charged with the regulation of the

state’s commercial fishery, principally salmon. See RCW 75.08.012.

Steelhead trout are a game fish under the regulation of the De-

partment of Game. See RCW 77.08.020.

4

The order of remand from this Court led to the first

state recognized 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 conservation needs.

Two federal adjudications, to which both the De-

partment of Game and the Puyallup Tribe are parties,

intervened some months before the instant case was

tried for a third time in the summer of 1974. In Feb-

ruary and March of 1974, Senior District Judge George

H. Boldt of the Western District of Washington, in

the exercise of his continuing jurisdiction over vir-

tually all aspects of treaty fishing rights of more than

20 tribes in the region, entered a series of rulings af-

fecting a wide range of issues—including 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 con-

servation purposes. United States v. Washington, 384

F.Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676

(9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).

Since the initial decision, Judge Boldt has exercised

a continuing jurisdiction, ordering closures at various

times of Indian and non-Indian fisheries, on and off

reservation.* Congress has appropriated more than

$6 million to implement the Boldt decision, a sizeable

portion of which has gone to the Bureau of Indian

Affairs for the purpose of strengthening the tribes’

fisheries management programs. See House Comm.

3’ Between February 1974 and December 1976 the federal dis-

trict court entered 56 orders in the exercise of its continuing

jurisdiction.

ee

)

on Appropriations, Department of the Interior and

Related Agencies Appropriation Bill, 1976, H.R. Rep.

No. 374, 94th Cong., Ist Sess. 32 (1975).

Presently pending before Judge Boldt, and referred

to by the parties as Phase II of the treaty fishing liti-

gation, are several environmental claims asserted by

the tribes against the State of Washington. The claims

are farreaching, involving the more than twenty tribes

party to the Boldt litigation, six treaties, over fif-

teen rivers in the case area including several outside

of Puget Sound, and all five species of anadromous

fish reached by the treaties. The remedies sought in-

elude equitable relief against state action alleged to

impair substantially the fish resources and fishing

grounds that are subject of the treaties, and a decla-

ration that all free-swimming fish, including those that

are hatchery reared, are embraced by the treaty ‘‘right

of taking fish.”” In an order and opinion of August

13, 1976, Judge Boldt enjoined state officials from bas-

ing any determination of numbers of harvestable fish

available to treaty fishermen on anything other than

total estimated runs of free-swimming fish, including

hatchery fish, pending final determination of the Phase

II claims. After one extension, a trial date on Phase

IT has been set tentatively for January 8, 1978. Dis-

covery is proceeding consistently with normal rules

governing complex litigation.

The second federal adjudication antedating the third

trial of the instant case occurred in May 1974. The

Court of Appeals for the Ninth Circuit entered a rul-

ing in a separate lawsuit initiated in 1971 by the

United States on behalf of the Puyallup Tribe against

the state and a sports fishing group and its officers,

seeking a declaration ‘‘that the Puyallup Indian Tribe

6

and its authorized representatives have exclusive right

to, and regulation of, all fishing on or in the Puyallup

River within the Puyallup Indian Reservation.’’ * The

complaint, reciting Department of Interior legal opin-

ions that the bed of the Puyallup River within the

original reservation boundaries was still held in trust

by the United States for benefit of the tribe, compare

Choctaw Nation v. Oklahoma, 397 U.S. 629 (1970),

prayed for injunctive relief enjoining the state and

private defendants from exercising jurisdiction over,

and interfering with, Indian fishing within reservation

boundaries. Before the Ninth Cireuit, the state chal-

lenged ‘‘the continued existence of the Puyallup In-

dian Reservation and, as a consequence, the right of

the Puyallup Tribe of Indians to fish, free from State

interference, on the part of the Puyallup River lying

within the Reservation.”?’ United States v. Washing-

ton, 496 F.2d 620, 620 (9th Cir. 1974) (per euriam).

The court rejected this claim and held that the reserva-

tion ‘‘continues to exist.”’ Id. at 621. Certiorari was

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

The instant case was tried for the third time in the

Pierce County Superior Court in June of 1974. On

January 10, 1974, in an amended pleading, the De-

partment of Game sought a declaration that it posses-

sed the sole authority to regulate the taking of steel-

head by the Puyallup Tribe on the Puyallup River.

(App. 3). The Department of Fisheries filed no plead-

ing and did not participate in the ease. Complaints in

intervention filed by two sportsmen’s groups, North-

west Steelheaders Council of Trout Unlimited and the

Western Steelheaders, Inec., made claims that sports

* Complaint, Civ. No. 39-71 (W.D. Wash.).

7

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 (App. 7).

By answer, filed on May 23, 1974 (App. 11), by

motion for continuance filed before trial, at the trial,

by motion for reconsideration, and by proposed find-

ings and conclusions (Defendants’ Proposed Findings

and Conclusions 24-25), the tribe asserted that the in-

tervening decision of the Ninth Circuit confirming the

existence of the Puyallup Reservation mooted the re-

mand because of the lack of state power to regulate on-

reservation fishing. By these same procedural mechan-

isms, the tribe continuously asserted its sovereign im-

munity. Undisputed testimony at trial establishes that

the tribal steelhead fishery occurs almost exclusively

on the river within the exterior boundaries of the

reservation. (App. 79; R. 775-74). The trial court ae-

knowledged the Ninth Cireuit’s ruling that the Puyal-

lup reservation ‘‘had not been terminated and exting-

uished,”’® found that the tribe’s intention is to take

90 to 100 pereent of all its future steelhead harvest

within the reservation boundaries (FF XVITTI, Pet.

Cert. App. D-17), averred that ‘‘the extent of [the

treaty] right within the boundary of the former Puyal-

lup Indian Reservation is not now before this court”

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

that treaty rights, even when exercised on-reservation,

permitted the taking of no hatehery fish whatsoever

and no more than 45 pereent of the harvestable natural

5FEF XVI, Pet. Cert. App. D 16-17. In his Memorandum De-

cison (Pet. Cert. App. C-37), however, the trial eourt concluded

that an earlier state court opinion that the Puyallup Reservation

no longer exists was ‘‘the law of this case.’’

8

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 regu-

late the on-reservation steelhead fishery for purposes of

both conservation and alloeation, and ordered the tribe

to file with the court an authenticated roll of authorized

fishermen and weekly eateh reports during the steel-

head season, FF VIII, Pet. Cert. App. D-11; FF XXII,

Pet. Cert. App. D-18; CL VII, Pet. Cert. App. D-21;

Order and Judgment, Pet. Cert. App. lf. 3-4. While this

ease was sub judice before the Washington Supreme

Court, during the 1975-76 winter steelhead season the

trial court exercised its continuing jurisdiction over

the on-reservation fishery and entered a temporary

restraining order against further treaty fishing on a

finding that the tribe ‘has exceeded its treaty entitle-

ment of 2,866 steclhead for the 1975-76 winter steel-

head run.”? Order of February 3, 1976. On February 6,

1976, the trial court entered another order directing

the Puyallup Tribe, through its officers, to enact a

closure of tribal steclhead fishing and to enforee it.

This was followed, on February 27, 1976, by a judgment

reiterating the closure directive and directing the De-

partment of Game to take on-reservation enforce-

ment action.

After the grant of certiorari in the instant case on

November 29, 1976, the Pierce County Superior Court

has continued to exercise its powers against the tribe's

on-reservation steelhead fishery. On application of the

Game Departinent, the court on December 14, 1976,

entered a temporary restraining order directing the

*FF XXII, Pet. Cert. App. D-19.

7 Order and Judgment, Pet. Cert. App. E-3.

;

/

2

:

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9

tribe to close its fishery and to enforee the closure. On

December 22, 1976, the trial court entered a “closure

order,”’ declaring thet “the Puyallup Tribe and its

members treaty entitlement to the 1976-77 steelhead

run in the Puyallup River is 670 steelhead as estab-

lished under the eourt’s formula previously entered

in this matter.”” The court found that the tribe had

exceeded its 670 fish entitlement, ordered the tribe to

cease net fishing in the Puyallup River, and authorized

on-reservation enforcement activity by the Department

of Game. The injunction also contained a provision

declaring that any catch in excess of the 670 fish limit

‘‘may be offset”? against future tribal catches.

With the single exception of the steelhead run on

the Puyallup River, state authorities in the last several

years have never sought to invoke the powers claimed

here to curtail on-reservation fishing. Routinely, treaty

fishing disputes are referred to, and disposed of, by

the federal district court in the exercise of its con-

tinuing jurisdiction. See note 2, supra,

The steelhead that is the subject of this controversy

is an anadromous trout, spawned naturally in fresh

water streams and rivers. Normally, after two years in

a freshwater environment the steelhead will migrate to

salt water for another two years, returning to the

place it was born to spawn. (FF V, Pet. Cert. App. D-

10). Unlike the salmon, a small number of steelhead

spawners, perhaps 5 to 20 percent (/d.; see R. 198, 200,

630-31), may survive the spawning act and migrate

again to salt water. The State of Washington classifies

steelhead as a game fish, RCW 77.08.020, and forbids

commercial trafficking in it. ROW 77.16.040. Steelhead

destined for South Puget Sound waters of the Puyal-

lup River are nonetheless subject to a heavy com-

10

mercial fishery, principally foreign fishing on the high

seas (App. 52; R. 323, 379-80). Steelhead also are

eaught in Washington waters incidental to the com-

mercial eateh of salmon. (R. 116). Perhaps 5 pereent

of the steelhead smolt migrating from the Payallup

River will return to spawn (R, 102-08, 421).

The steelhead eateh in western Washington is but a

fraction of the overall catch of four species of salmon

(chinook, silver, chum and pink). In 1971, for example,

246,000 steelhead were eaught and 7,777,000 salmon,

with steelhead representing only 3.3) pereent of the

total steelhead-salmon take (App. 36; R. 209-10). Steel-

head make up perhaps 10 pereent of the total Puyallup

tribal salmon-steelhead fishery (It. 943, 1061). Be-

cause of its location in South Puget Sound at the end

of the migration routes, the Puyallup tribal fishery has

access only to stocks surviving commercial and sport

fisheries occurring earlier. The reservation is found in

the lower reaches of the river (FF XVII Pet. Cert.

App. D-17, R. 756-57)," and the Indian steelhead fish-

ing oeecurs there. (App. 79, R. 773). Sports fishing oe-

eurs on the reservation (R. 811) and at points upriver

(R. 115). Indian closures on the weekends (R. 768,

809) and some net fishing at night (App. 64, R. 509-

10) help reduce contlicts between the two user groups.

Proof at trial during June 1974 established that

there are 20 full time tribal fishermen, 20 more who

fish on a part time basis, and 20 others who fish occas-

ionally but rely heavily on different runs for income

8 The Muckleshoot Reservation is located in the upper reaches

of the watershed on the White River (R. 917). The tribe argued

to the trial court and on appeal that the Muckleshoot Tribe was an

indispensable party to any allocation decision. The court below

did not address the point.

11

(FF XV, Pet. Cert. App. D-16; R. 758-60). The 20

full time fishermen support not only themselves and

their families but also another 10 families, (It. 759).

As many as 150 members of the tribe are supported by

these year round fishing activities. (R.759). The income

of tribal members is low, and is heavily dependent upon

fishing opportunities. (R. 760-61). While steelhead

make up only 10 percent of the total tribal eateh, each

fish brings approximately $10 on the commercial mar-

ket (App.-92; R. 1048-49). The steelhead is important

economically and for subsistence purposes because it

is the only fish in the river during the months of

December and January (See R. 337, 792-93, 896).

The Puyallup Tribe is organized under Section 16

of the Indian Reorganization Act of 1934, 48 Stat. 984,

987, Attachment 3a, now codified as 25 U.S.C. § 476. (R.

754). The tribe has approximately 850 members ae-

cording to figures of the Bureau of Indian Affairs (R.

755). Under the tribe’s constitution and bylaws, the

council exercises governing responsibilities, (R. 754).

The chairperson of the tribe, Ms. Ramona Bennett, is

a member of the council (R. 755) and testified at trial.

The tribe has regulated its fisheries for a number of

years by enactment of ordinances, and openings and

closures. (R. 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 IT borrowed heavily from exist-

ing tribal ordinances. (R. 489, 802). Biological ex-

pertise for tribal management of its fisheries is pro-

vided by the Northwest Indian Fisheries Program of

the United States Fish and Wildlife Service, whose

director testified at trial. (R. 671-753, 960-1063). The

12

chief witness for the Game Department described the

1973-74 Puyallup River tribal steelhead fishery as

‘rather orderly,’’ with closed periods being honored

‘‘very carefully.”’ CR. 1103-04, 802).

The tribe now fishes under the auspices of the federal

court decision of Judge Boldt, which calls for informa-

tion exchanges among parties and the filing of tribal

and state fishing regulations with the court. Sce 384

F. Supp. at 420. At the time of trial in the instant

ease, occurring some three months after the initial

Boldt decision and before the major autumn fisheries,

the tribe was without a biologist apart from the ex-

perts provided by the Northwest Indian Fisheries

Program (App. 89-99; R. 768, 811, 924, 934) and had

engaged in no steelhead or salmon hatchery planting

programs (see R. 768, 896). In the two and a half years

sinee trial these facts have changed:° the tribal fish-

eries management office now has a staff of ten, inelud-

ing two biologists. ‘The office has commenced its own

data collection system, including eateh data and stream

surveys, and has undertaken an enhancement program

to rebuild depleted fishing stocks. During 1976, over

900,000 salmon were planted by the tribe in various

tributaries of the Puyallup watershed. The Council

has adopted a Fisheries Management Code, and each

spring adopts annual fishing regulations for the up-

coming season; these are updated by emergency regula-

tions throughout the season, which have been adopted

on approximately a dozen occasions each of the three

fishing seasons since the trial. The tribe now employs

two full time and one part time enforcement officers,

and receives the services of one Bureau of Indian

Affairs officer who is assigned to the tribe.

® These are representations of counsel.

_— wk ee ee oe

13

The tribal steelhead net fishery, by all aecounts, is

accomplished without trespassing on private lands.

The Puyallup fishermen anchor their set nets to bridges

and employ small boats to place their drift nets. (See

App. 86; R. 486-87, 805). Obviously, the fishing takes

place in the river and thus within trust lands. The

trial court’s finding that the tribe intended to take 90

to 100 percent of its future steelhead harvest within

the reservation boundaries (FF XVIII, Pet. Cert.

App. D-17) is predicated on the fact that there is no

need to go elsewhere because the fish migrate through

the reservation (App. 79-80; R. 773). The actual

steelhead catch by tribal fishermen for the 1973-74

season was estimated by the U.S. Fish and Wildlife

Service to be approximately 1,900 fish (R. 971-72),

although the Department of Game put the figure at

roughly 3,000 (R. 1103). In any event, the tribal eateh

did not exceed the 3,300 fish allocation ordered ini-

tially by the trial court. (FF XXII, Pet. Cert. App.

D-19; Order and Judgment, Pet. Cert. 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 haichery plants, the

interrelationships between hatchery and natural fish,

and the reliability of methods for distinguishing be-

tween the two. Factual representations made to this

Court during argument in Puyallup IT are revised

substantially by the present record: the size of the

414 U.S. at 48.

At oral argument counsel for the Department. of Game repre-

sented the catch of steelhead that were developed from the

hatchery program were in one year 60% of the total run and

in another 80%. And he stated that approximately 80% of the

catch of that program was financed by license fees of sports

fishermen.

14

natural run, assumed to approximate 4,000-6,000 fish

during the second appeal of this case, 80 Wn.2d at

572, 497 P.2d at 178, was fixed by the trial court

at 14,715 fish (FF XII, Pet. Cert. App. D 14-15), in

light of estimates extracted from the Game Depart-

ment of a combined natural-hatchery run of 56,000 fish

(Exh. 74-U; see R. 1065-67). The size of the hatchery

steelhead run was found to represent not 60 or 80 per-

cent of the total run but only 50 percent. (FF X1, Pet.

Cert. App. D 14). The state game fund supports ap-

proximately two thirds of the operating costs of the

Game Department’s statewide steelhead program.

(App. 30-31; R. 144-46). Altogether hunting and fish-

ing license fees account for 75 to 80 percent of the op-

erating funds of the Department of Game (FF IV,

Pet. Cert. App. D 9-10), with about half of the reve-

nue coming from hunting licenses and half from li-

censes relating to fishing. (See R. 164, 232.) Steel-

head fishermen account for approximately 25 percent

of the funds derived from fishing licenses. (Most

sportsmen fish for trout.) (See R. 233, 258). Stated

another way, steelheaders account for 10 percent of the

entire Game Fund (App. 40; R. 164, 240-41), not the

80 percent suggested to the Court in Puyallup IT. On

a capital investment basis, according to the principal

witness for the Department of Game, the replacement

value of the Department’s steelhead hatchery program

facilities is $33 million, three-fourths of which is ae-

counted for by federal and mitigation money compen-

sating for fisheries resources destroyed by hydroelec-

tric and other projects. (R. 133-37). If forced to rely

on state funding alone, the Department would be able

to produce only slightly in excess of 1 million of the

current annual steelhead production of 5 million smolts

(See FF IX, Pet. Cert. App. D-12; App. 55-56, R.

404-06).

15

RULINGS BELOW

Throughout the trial and in several post trial sub-

missions, the petitioners, defendants below, argued the

issues raised here of lack of state power to regulate

fishing on-reservation and tribal sovereign immunity.

These contentions were rejected by the trial court

(Memorandum Decision, Pet. Cert. App. C-51; Find-

ings and Conclusions, CL I, Pet. Cert. App. D-19, CL

VII, Pet. Cert. App. D-21; Order and Judgment, Pet.

Cert. App. E-3) and by the state Supreme Court (86

Wn.2d at 668-69, 678-79, 687-88, 548 P.2d at 1063, 1069,

1074, Pet. Cert. App. B 5-8, 27, 43). In the opinion

of the Supreme Court of Washington, tribal sovereign

immunity and on-reservation jurisdictional objections

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

controlling because the case was analogized to ‘‘a suit

to enjoin violations of state law by individual tribal

members fishing off the reservation.’’ 86 Wn.2d at

668, 548 P.2d at 1063, Pet. Cert. App. B-6. Second,

the court read the remand in Puyallup IT as mandat-

ing an allocation of the entire steelhead run, and en-

forcement of that allocation by state authorities with-

out regard to reservation boundaries. Jd. at 668, 548

P.2d at 1063, Pet. Cert. App. B-6. On the issue of the

treaty applicability to hatchery fish,’ va,ious reasons

were assigned for denying an Indian entitlement. The

disposition of the state Supreme Court, with one im-

portant qualification, was to affirm the judgment of the

trial court in all respects. The qualification took the

form of a direction to the Department of Game to de-

*! Certiorari was not sought on this second issue. See pp.

38-40 infra.

16

termine annually the size of the natural steelhead run

on the Puyallup River and the number of fish repre-

sented by the tribe’s share (45 percent), and to enforee

that allocation. 86 Wn.2d at 686, 688, 548 P.2d at 1073-

74, Pet. Cert. App. B 41, 44.

Chief Justice Stafford joined by three other justices

coneurred in the result on the ground that Puyallup IT

mandated an apportionment. between treaty and non-

treaty fishermen of the entire steelhead run. ‘‘ At first

blush,’’ Chief Justice Stafford wrote, ‘‘it would appear

that the State lacks the necessary power to enforce the

equitable apportionment directed by the United States

Supreme Court,”’ citing such cases 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 Pu-

yallup IT must be read as repudiating sub silentio this

line of authority: ‘‘If the Supreme Court had not ree-

ognized 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.’’ 86

Wn.2d at 689-90, 548 P.2d at 1075, Pet. Cert. App.

B 46-48.

Justice Rosellini, eoneurring in part and dissenting

in part, reasoned that the Treaty of Medicine Creek

could not have reserved an exclusive right to fish and

eontrol fishing on-reservation, pointing out that such

a right is reserved with specificity in the Walla-Walla

Treaty. Id. at 693, 548 P.2d at 1077, Pet. Cert. App.

B 55-56. He would find a denial of equal protection to

other citizens in any treaty right that gives Indians

superior rights. Id. at 694, 548 P.2d at 1077, Pet. Cert.

App. B 57-58.

Te

17

SUMMARY OF ARGUMENT

1

The decision below, authorizing state regulation of

on-reservation fishing, flouts settled principles of In-

dian law well understood since the early days of the

Republic. The test of validity of a state regulatory

measure on the reservation, repeatedly applied by this

Court, is whether it impairs a federally reserved right

or interferes with tribal self-government.

This standard is twice fatal to the exercise of state

power here asserted against the tribe. The Treaty of

Medicine Creek, 10 Stat. 1132, reserved exclusive fish-

ing rights on the reservation to the tribe, and there is

not a shred of statutory support for the claim that

Congress has rescinded that original commitment. In-

deed, the notorious Publie Law 280. Attachment 2a,

authorizing deep intrusions of state authority into on-

reservation activities, specifically protects rights of the

tribes to regulate their own fishing. 18 U.S.C. § 1162

(1970) ; 25 U.S.C. § 1321(b) (1970). The decision be-

low cheapens these federally reserved rights severely,

and does so with a series of mandates that reduces

tribal self-government to a mockery. The ease law,

overwhelmingly and without exception, disavows state

attempts to control on-reservation fishing.

II

Even off the reservation, this Court has made clear

that 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 original). The

18

allocation and enforcement aspects of the decision be-

low do not purport to meet this standard, and plainly

could not do so on this record. The decision would be

wrong were it applied to an off-reservation fishery,

and it is twiee wrong because it is applied to an on-

reservation fishery. Language in the opinion suggest-

ing that there are no treaty rights to net fish, and the

theory espoused in support, frankly defies earlier de-

cisions of this Court and disinters arguments put to

rest as long ago as United States v. Winans, 198 U.S.

371 (1905).

III

Wholly apart from the question of the reservation

fishery, the decision of the Washington Supreme Court

offends well established principles of tribal sovereign

immunity by extinguishing tribal rights in more than

three-fourths of the harvestable steelhead in the river

and imposing other administrative burdens. A suit in

state court against the tribe to decree an allocation of

one of the Puyallup River salmon runs would be sub-

ject to summary dismissal on sovereign immunity

grounds. The result should not be different where,

as here, an action initiated more than thirteen years

ago gradually evolves into an attempted adjudication

of tribal eommunity fishing rights. The tribe’s sov-

ereign immunity argument was rejected by this Court

in Puyallup I only on the assumption that the case was

analogous to the proseeution of individual Indians for

erimes committed off reservation lands. 391 U.S. at

396 n.11. This premise is shattered by the present

record: the fishing here occurred on-reservation, indi-

vidual fishermen had nothing to do with the case, and

the issues involved solely federal treaty rights.

19

IV

Principles of collateral estéppel, alone and in eom-

bination with the other grounds, foreclose the state

from reasserting the power to regulate the tribal steel-

head fishery. Washington State already has litigated

and lost the question of the continued existence of the

reservation and its power to regulate the on-reserva-

tion fishery. United States v. Washington, 496 F.2d

620 (9th Cir.) (per euriam), cert. denied, 419 U.S.

1032 (1974). By authorizing state officials to divide

up the fishery and to enforee these decisions on-reser-

vation, the decision below permits the reassertion of

an authority previously withheld by a fully contested

federal judgment. This is but the most recent arrival

in the long line of theories in this litigation making

determined inroads upon federally protected rights.

V

Certiorari was sought on the single question of state

power to regulate on-reservation fishing, and review

should be confined to that issue. Dismissal of the ease

on jurisdictional or sovereign immunity grounds would

make it unnecessary to explore the grounds for alloea-

tion. This conclusion is reinforeed by intensely praec-

tical considerations. The issue of treaty entitlement

to hatehery fish under all the Northwest Indian treaties

is presently being litigated in the federal district eourt

and ought to be resolved there.

20

ARGUMENT

I

State Administrative Agencies and Courts Are Without Power

To Adjudicate Tribal Entitlement to On-Reservation

Fisheries and To Enforce the Decrees

By holding that state authorities may regulate tri-

bal fishing on the reservation, the court below contrad-

icts settled principles of Indian law going back to the

early days of the Republic. The coneurring opinion of

Chief Justice Stafford recognizes the problem by ae-

knowledging that ‘tit would appear that the State lacks

the necessary power to enforce the equitable appor-

tionment direeted by the United States Supreme

Court.”’ 86 Wx.2d at 689, 548 P.2d at 1075, Pet. Cert.

App. B 46-47. Indeed, state authorities have conceded

the very point they are rearguing here in the ongoing

treaty fishing litigation in the federal district eourt”

and for that matter more than thirty years ago be-

fore this Court in Tulee v. Washington, 315 U.S. 681,

G83 (1942).

By reading Puyallup IT as disearding this unbroken

line of preeedent, the state Supreme Court departed

from well established principles protecting the autho-

rity of an Indian tribe to regulate the conduct of its

members free from state interference. Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 559 (1832), of course

2 Sce 384 F. Supp. at 341:

All parties in this case agree that on-reservation fishing is not

subject to state regulation and no issue to the contrary is pre-

sented in this case.

An identical concession was made by Counsel at trial in the in-

stant ease. See App. 20-21; R. 20-21.

13*°The state does not claim power to regulate fishing by the

Indians in their own reservation.”’

a eee

MMi 66.

21

makes clear that the tribes are recognized as “‘distinet,

independent, political communities’? qualified to ex-

ereise powers of self-government *‘not by virtue of any

delegation of powers from the Federal Government,

but rather by reason of their original tribal sovereign-

ity.” F. Cohen, Handbook of Federal Indian Law 122

(1942). This principle has survived in decisions of this

Court through Ke Parte Crow Dog, 109 U.S. 556 (18-

83), holding that tribal courts alone had jurisdiction

over the murder on-reservation of one Sioux Indian by

another, and Williams v. Lee, 258 U.S. 2917 (1959),

forbidding the exereis. of state court jurisdietion over

a suit by a non-Indian to collect on a debt ineurred

on-reservation, to McClanahan vy. Arizona State Tax

Comm'n, 411 US. 164 (1973), barring the imposition

of a state income tax on earnings of Indians derived

from on-reservation activities. Whether the theory be

one of tribal sovereignty or federal preemption by

treaties and statutes, see id. at 172, the questions to ask,

according to Mesealero Apache Tribe v. Jones, 411 US.

145, 148 (1973), are whether the particular state ini-

tiatives would “interfere with reservation self-govern-

ment or would impair a right granted or reserved by

federal law.’’ Only last term the Court applied this

teaching to foreclose state court jurisdiction over an

Indian adoption proceeding where the parties resided

on-reservation and the conduct occurred there. Fisher

v. District Court, 424 U.S. 382, 386 (1976) ( per curi-

am); see Moe vy. Confederated Salish & Kootenai Tri-

bes of the Flathead Reservation, 425 U.S. 463, 480-81

(1976). See also Seymour v. Superintendent, 368 US.

Sol (1962).

That the exercise of state power here at issue erodes

rights federally reserved is, we submit, overwhelmingly

22

clear. Not only can the state identify no federal statu-

tory authority justifying this unprecedented encroach-

ment upon on-reservation Indian fishing activity, the

legislation that can be found points the other way.

The starting point of course is the Treaty of Medicine

Creek reserving to the tribe the ‘‘exelusive use’’ of

reservation lands, 10 Stat. 1132 (1854), Attachment

la-2a, and along with it exclusive powers to control on-

reservation fisheries. Menominee Tribe vy. United

States, 391 U.S. 404, 405-6 (1968); United States v.

Winans, 198 U.S. 371, 381 (1905); United States v.

Washington, 520 F.2d 676, 690 (9th Cir. 1975), cert.

denied, 423 U.S. 1086 (1976). The state that is here

claiming the power reserved to the tribe by federal

treaty was not admitted to the union for another

thirty-five years, and then by an enabling act preserv-

ing existing rights of the Indians. 25 Stat. 676, 677

(1889)."* Although the Congress from time to time has

invited the exercise of state powers over certain on-

reservation activities, the conditions of these waivers

must be carefully read, see Kennerly v. District Court

of Montana, 400 U.S. 423 (1971) (per curiam), and

none comes close to authorizing the interference with

federally protected rights contended for here. The well

known Publie Law 280, 67 Stat. 588 (1953), surrender-

ing jurisdiction over Indian country to the states under

certain circumstances,” specifically withholds from the

state civil, 25 U.S.C. §1322(b) (1970), and eri-

minal courts, 18 U.S.C. § 1162 (1970), the power to

14 A comparable provision appears in the Washington State

Constitution, Article XXVI.

15 Tt is subject to judicial notice that the Puyallup Tribe never

has consented to the assumption of 280 jurisdiction by the state.

See 25 U.S.C. § 13822(a) (1970).

23

adjudicate rights in tribal natural resources. The

words of 18 U.S.C. § 1162 (1970) repeated verbatim

in section 401(b) of the Civil Rights Act of 1968, 82

Stat. 78-79, 25 U.S.C. §1821(b) (1970) * hardly could

be more specific:

Nothing in this section . . . shall deprive any In-

dian or any Indian tribe, band, or community

of any right, privilege, or immunity afforded un-

der Federal treaty, agreement, or statute with re-

spect to hunting, trapping, or fishing or the con-

trol, licensing, or regulation thereof.

Notwithstanding these mandates, the state in the past

repeatedly has applied its civil and criminal processes

to interdict tribal fishing on the river. See R. 777-78,

824-26; United States v. Washington, 384 F. Supp. 312,

358, 388 (W.D. Wash. 1974), aff’d 520 F.2d 676 (9th

Cir. 1975), cert. denied, 423 U.S. 1086 (1976). By in-

viting state authorities to close fisheries on the reserva-

tion and to enforee these edicts, the court below con-

tinues to sanction an interference with federally pro-

tected rights that is at war with the specifies of the

Treaty of Medicine Creek and longstanding congres-

sional policies carefully hedging the reach of state

authority on federal Indian reserves. Compare Metla-

katla Indian Community v. Egan, 369 U.S. 45, 58

(1962) (reading Publie Law 280 as disclaiming ‘‘the

intention to permit states to interfere with federally

granted fishing privileges or use of properties’’).

Nor is there any doubt that the state power applied

here encroaches heavily on the Indians’ right ‘‘to make

*6 An identical disclaimer of state jurisdiction as regards Indian

fishing appears in RCW 37.12.060. See Goldberg, Public Law 280:

The Limits of State Jurisdiction Over Reservation Indians, 22

U.C.L.A. L. Rev. 535, 547 (1975). The provision was cited in the

briefs below but not in the opinions.

24

their own laws and be ruled by them.’’ Williams v.

Lee, 358 U.S. 217, 220 (1959); see Bryan vy. Itasca

County, 96 S. Ct. 2102 (1976). Indeed, one wonders

what remains of the tribe’s. power to govern itself un-

der the terms of Section 16 of the Indian Reorganiza-

tion Act of 1934, Attachment 3a-4a, infra, 25 U.S.C,

§ 476 (1970). ‘The state courts have asserted nothing

short of an authority to nullify tribal regulation of the

single activity that is indispensable to the economic

well being of the members 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 enforce an

ordinance curtailing the membership’s chief economic

activity. This is not a tax on income earned, as was

condemned in McLanahan, but a ban on earning in-

come. 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. 19-

75), cert. denied, 423 U.S. 1086 (1976) (Burns, J., con-

curring) (‘‘The record in this case, and the history set

forth in the Puyallup and Antoine cases, among others,

make it crystal clear that it has been recalcitrance of

Washington state officials (and their vocal non-Indian

commercial and sports fishing allies) which produced

the denial of Indian rights requiring intervention by

the district court’’). In the years following the Puyal-

lup II decision, the tribal share of steelhead has been

recomputed downwards by state authorities in rapid

succession to be 3310 or 3280 fish (1974-75), then 2866

fish (1975-76) and now 670 fish (1976-77). These ‘‘allo-

eations’’ are made despite the acknowledged inability

Se ee

25

of the Department of Game to predict run size. (App.

53, R. 380-81, 775, Exh. 74-R). Puyallup I and Puyal-

lup IT record the eventual point of satisfaction of this

untrammeled state power.

The judgment below, by authorizing state control

over an on-reservation fishery, conflicts either with di-

rect holdings or considered dicta of an unbroken line

of authority, including decisions of this Court, Me-

nominee 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 Federal 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) (affirm-

ing restraint against non-Indian encroachment upon

reservation fisheries); decisions of the lower federal

courts, United States v. Washington, 520 F.2d 676 (9th

Cir. 1975), cert. denied, 423 U.S. 1086 (1976) ; Kimball

v. Callahan, 493 F.2d 564, 568 (9th Cir.), cert. denied,

419 U.S. 1019 (1974) (even though 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. 1946), cert. denied, 330 U.S. 827 (1947) ;

Colville v. Washington, 412 F. Supp. 651 (E.D. Wash.

1976) ; Quechan Tribe v. Rowe, 350 F. Supp. 106 (S.D.

Cal. 1972); Leech Lake Band of Chippewa Indians v.

Herbst, 334 F. Supp. 1001 (D. Minn. 1971); Klamath

& Modoe Tribes v. Maison, 139 F. Supp. 634 (D. Ore.

1956), modified, 338 F.2d 620 (9th Cir. 1964); Mason

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

ex rel. Lynn vy. Hamilton, 233 Fed. 685 (W.D.N.Y.

1915) ; In re Lincoln, 129 Fed, 247 (N.D. Cal. 1904) ;

In re Blackbird, 109 Fed. 139 (W.D. Wis. 1901) ; One-

ida 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); see People v. Jondreau, 384 Mich.

539, 185 N.W.2d 315 (1971). There is, in short, not a

shred of precedent for the assertion of state power

here involved, as prior concessions so thoroughly attest.

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 therefore

remained ‘‘Indian Country” for purposes of 18 U.S.C.

§ 1151. The Court pointed out, however, that it was de-

ciding nothing regarding the existence of Mattz’s fish-

ing rights or the application of California law notwith-

standing the reservation status, 412 U.S. at 485, al-

though on remand the state court applied the general

rule foreclosing state jurisdiction 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,

425 U.S. 907 (1976). In the instant case the court

below, mistakenly we believe, read this Court’s remand

in Mattz as making state jurisdiction over on-reserva-

tion fishing an ‘“‘open question,’’ 86 Wn.2d at 668, 548

P.2d at 1063, Pet. Cert. App. B-7, then proceeded to

resolve it against the tribe. The decision thus mis-

reads Mattz, misconstrues the scope of the remand in

Puyallup II, and contradicts other settled principles

of Indian law. All are sufficient reasons to require

correction here.

= "we ecw

Indian Fishing, Even When Off-Reservation, Can Be Curtailed

by the State Only Upon a Compelling Justification of

Conservation Necessity

Ironically, the decision of the Supreme Court of

Washington has transformed this Court’s reversal in

Puyallup II of the Game Department’s consistent

refusal to recognize Indian rights into an instrument

for eroding those rights still further by summary use

of state powers. Indeed, the precise holding of this

Court in Puyallup IT, that a ban on Indian net fishing

offends the treaty, is repudiated by the court below,

86 Wn.2d at 671, 678-80, 687, 548 P.2d at 1065, 1068-70,

1074, Pet. Cert. App. B 13-14, 26-28, 30-31, 43, with the

wholly understandable expectation that the tribe would

be forced to seek redress here.

Puyallup I makes clear that off-reservation Indian

treaty fishing may be regulated by the state in the in-

terest of conservation. 391 U.S. at 396 n.11, 398." The

state ‘‘must demonstrate that its regulation is a rea-

sonable 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 original), citing

Department of Game v. Puyallup Tribe (Puyallup IT),

414 U.S. 44 (1973); Tulee v. Washington, 315 U.S.

681, 684 (1942). While the Court in Antoine specif-

ically declined to embrace the familiar compelling

state interest test to scrutinize state closures of off-

1 Even this concession of state power is a close one, resting as

it does on the assumption that the Article III reservation of fed-

eral treaty rights ‘‘in common with”’ citizens of the territory is

non-preemptive. See Johnson, The States Versus Indian Off-Res-

ervation Fishing: A United States Supreme Court Error, 47 Wash.

L. Rev. 207 (1972).

28

reservation Indian fisheries, 420 U.S. at 207; see Gun-

ther, Foreward: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protec-

tion, 86 Harv. L. Rev. 1 (1972), it is clear, we submit,

that state conservation closures must be strictly justi-

fied, carefully tailored, and applied to Indians only if

necessary. That is the standard presently governing

all western Washington off-reservation Indian treaty

fishing, United States v. Washington, 520 F.2d 676

(9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976), as

well as the Columbia River fisheries. See Sohappy v.

Smith, 529 F.2d 570 (9th Cir. 1976).

By eschewing this standard of conservation neces-

sity, the decision below would be wrong if applied to

an off-reservation fishery, and is twice wrong applied

to an on-reservation fishery. In its vital particulars,

the decision of the Washington Supreme Court author-

izes the Game Department to estimate the size of the

returning natural and hatchery runs,” identify 45 per-

cent of the harvestable run as the tribal share, and en-

force that allocation by closures on-reservation with-

out regard to conservation necessity. That is exactly

what happened during the winters of 1975 while the

case was sub judice before the Washington Supreme

Court and of 1976 while the case was pending here.

See p. 8-9, supra. In 1975 the trial court chose to in-

voke its continuing jurisdiction, recompute downwards

18 The Game Department admits an inability to make run size

predictions. (App. 53; R. 380-81, 775). The chief witness for the

Department conceded that his figures on natural run size had

‘*decided limitations’’ and that to allocate the fishery pursuant to

court order ‘‘in a meaningful way’’ would require ‘‘broader in-

formation and more complete information which could be ob-

tained through a special designed effort to do so.’’ (App. 51; R.

352; see 353, 696-97, 724-25).

29

the tribal share (from 3,310 fish to 2,866 fish) and or-

der an on-reservation closure without a colorable eon-

servation justification. The same exercise was repeated

in 1976, except that the tribal share triggering injunc-

tive relief had shrunk to 670 fish.

By reading Antoine and Puyallup T as guaranteeing

Indian access to their traditional fishing grounds but

not necessarily to the fish swimming by, sce 86 Wn.2d

at 676, 548 P.2d at 1068, Pet. Cert. App. B-23, the

Washington Supreme Court unmistakably reads the

constraints out of this Court’s qualified recognition of

a state power to interdict off-reservation Indian fish-

eries posing a genuine threat to the perpetuation of a

particular run of fish. Indeed, the opinion below, while

purporting to subject the Indian fishery to the same

regulatory regime as the nontreaty fishery,” does not

even attempt to justify the constraints approved as

**eonservation’’ measures. The position, indeed, is

simply a rerun of the argument made and rejected

seventy years ago in United States v. Winans, 198

U.S. 371, 379 (1905), where it was urged that Indian

treaty rights ‘‘confer[red] only such rights as a white

man would have.’’ It is hardly radical to suggest that

the state regulatory measures invalidated in Winans,

not to mention Antoine and Tulee v. Washington, 315

1” Tronically, in a collateral attack on the rulings of Judge Boldt

by non-Indian commercial fishing interests the Washington Su-

preme Court has left open the issue of whether the state is em-

powered to implement the federal decision by curtailing nontreaty

fishing to allow escapement to the traditional grounds of the tribes.

See Washington State Commercial Passenger Fishing Vessel Ass’n

v. Tollefson, 87 Wn.2d 417, —, 553 P.2d 113, 114 (1976), petition

for rehearing granted, —- Wn.2d — (1976). The decision in the

instant case thus approves a state power on-reservation against the

Indians that is said to be in doubt applied off-reservation to non-

Indians.

30

U.S. 681 (1942), could be reinstated through the sim-

ple expedient of characterizing them as measures ‘‘to

support the state government in its efforts to conserve

fisheries resources.”’

The decision below is improved not at all by the sug-

gestion that the treaty must be rendered a nullity be-

cause ‘‘equal protection is denied when similarly situ-

ated persons, é.g., all state citizens including Indians,

[are] treated differently by allowing only a certain

class to fish with nets.’? 86 Wn.2d at 680, 548 P.2d at

1070, Pet Cert. App. B-30. The claim that legislation

treating Indians separately amounts te invidious dis-

crimination was put to rest decisively by this Court’s

unanimous decision in Morton v. Mancari, 417 U.S.

535, 551-55 (1974), upholding Indian employment cri-

terion provisions. The rationale, embraced by yet an-

other unanimous decision last term, see Fisher v. Dis-

trict Court, 424 U.S. 382, 390-91 (1976) (per curiam),

is that the different treatment derives from the quasi-

sovereign status of the tribe and advances a solemn

congressional policy of tribal self-government in the

Indian Reorganization Act of 1934. That Indians may

fish with neis-ander the terms of the Treaty of Medi-

cine Creek is a small price to pay for the land cessions

enjoyed by all citizens of the state today,” and it is a

price Congress still deems indispensable to the survival

of this small tribal entity.

20 See Puyallup Tribe v. United States, 17 Ind. Cl. Comm’n 1

(1966) ; Nisqually Tribe v. United States, 29 Ind. Cl. Comm’n 432

(1973) (holding that token payments for lands ceded by the In-

dians under the Treaty of Medicine Creek were ‘‘unconscionable’’

within the meaning of Section 2 of the Indian Claims Commission

Act). The Puyallup Tribe’s claim is still pending.

siete

31

Tribal Sovereign Immunity Precludes State Courts From

Adjudicating Tribal Community Fishing Rights

By ruling that tribal fishing rights extended to none

of the hatchery fish and less than half of the harvest-

able natural steelhead found in the Puyallup River,

the Washington Supreme Court effectively extin-

guished tribal community fishing rights in more than

three-fourths of the harvestable steelhead in the river.

By doing so and by going further to authorize a con-

tinuing administrative authority over tribal fishermen

and catch, the court grossly exceeded its jurisdiction

and offended principles of tribal sovereign immunity

that are firmly established, misapplying in the process

this Court’s decision in Puyallup I.

Ordinarily, Indian tribes enjoy an immunity coex-

tensive with that afforded the United States. F.9.,

United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506 (1940); Crowe v. Eastern Band of

Cherokee Indians, Inc., 506 F.2d 1231, 1233 (4th Cir.

1974) ; Cherokee Nation v. Oklahoma, 461 F.2d 674,

681 (10th Cir.), cert. denied, 409 U.S. 1039 (1972).

The policy justifications, understandably, derive from

the historical political independence of the tribes and

Congress’ recognition of it. If tribal sovereign immu-

nity operates to bar a suit against a tribe for negli-

gence 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. Min-

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

then one wonders why it does not preclude a lawsuit

32

that strikes heavily at the income 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 dismissal on sovereign

immunity grounds. The result should not be different

where, as here, an action initiated more than thirteen

years ago gradually evolves into an attempted adjudi-

eation of tribal community fishing rights.

We find nothing that distinguishes the sovereign

immunity eases cited above and others * from the pres-

ent situation. There is surely no draconian rule allow-

ing the piling on of claims against an Indian tribe once

an initial pleading is found to survive sovereign im-

munity objections. Cf. 6 C. Wright & A. Miller, Fed-

‘eral Practice and Procedure §§ 1588, 1592 (1971). Nor

can there be found a Congressional waiver of objec-

tions against suit which is a more traditional mode of

cireumventing sovereign immunity objections. Sec

Dugan v. Rank, 372 U.S. 609 (1963); United States

v. District Court for the County of Eagle, 401 U.S. 520

(1971); Namekagon Development Co. v. Bois Forte

Reservation Housing Authority, 517 F.2d 508, 510

(8th Cir. 1975); Fontenelle v. Omaha Tribe of Ne-

braska, 430 F.2d 143 (8th Cir. 1970); 25 Stat. 444

(1908). This Court more than once has insisted upon a

“clear relinquishment’’ of sovereign immunity insofar

*1 F.g., Turner v. United States, 248 U.S. 354 (1919) ; Lomayak-

tewa v. Hathaway, 520 F.2d 1324 (9th Cir. 1975), cert. denied, 425

U.S. 903 (1976) (action to void coal mining lease) ; Tewa Tesuque

v. Morton, 498 F.2d 240 (10th Cir. 1974), cert. denied, 420 U.S.

962 (1975) (action to cancel a 99 year lease between the tribe and

a developer) ; Maryland Casualty Co. v. Citizens Nat’l Bank, 361

F.2d 517 (5th Cir.), cert. denied, 385 U.S. 918 (1966).

Pa

ee

a wit. red crt ns ee

oe ve

33

as the United States is concerned, Dalehite v. United

States, 346 U.S. 15, 31 (1953); ef. Hancock v. Train,

96 S. Ct. 2006, 2012-13 (1976), and would demand no

less a showing for the tribes whose rights have been

long protected against ambiyuous and unarticulated

waivers. See, e.g., Antoine v. Washington, 420 U.S.

194, 199-200 (1975). Not only has the Congress taken

no action to subject the tribes to suits in state courts

to curtail natural resource holdings, it has acted posi-

tively through Public Law 280 to protect fishing rights

from a state’s judicial process. See pp. 22-25, supra.

It goes without saying that the decision to subject un-

willing tribes to state court adjudications of their

treaty rights as regards any contested resources (tim-

ber, coal, oil, gas, fish, water or otherwise) would be

a startling proposition, and one not likely undertaken

by the Congress.

The tribe’s objection on this point was thought by the

Washington Supreme Court, 86 Wn.2d at 668, 548 P.2d

at 1063, Pet. Cert. App. B-6, to be answered fully by

the ruling of this Court in Puyallup I where sovereign

immunity defenses were answered as follows: ‘‘This

case, however, is a suit to enjoin violations of state law

by individual tribal members fishing off the reserva-

tion. As such, it is analogous to prosecution of individ-

ual Indians for crimes committed off reservation lands,

a matter for which there has been no grant of exclusive

jurisdiction to federal courts.”’ 391 U.S. at 396 n.11,

citing among other cases, DeMarrias v. South Dakota,

319 F.2d 845 (Sth Cir. 1963) .”

22 DeMarrias was overruled by United States ex rel. Feather v.

Erickson, 489 F.2d 99 (8th Cir. 1973) (holding that the Lake Tra-

verse Indian Reservation had not been terminated), rev’d sub nom.

DeCotcau v. District County Court, 420 U.S. 425 (1975) (solely

on the ground that the reservation had been terminated).

34

The Washington Supreme Court, we believe, 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 as-

serted by the state or by any intervenor. A number of

factors combine to contradict this reading of Puyallup

I: first, the Ninth Cireuit’s decision contirming the ex-

istence of the reservation has transformed this litiga-

tion from what was presumed to be an off-reservation

ease to what is known to be an on-reservation case.”

Wholly apart from the status of the reservation the

analogue of the prosecution of individual Indians is

exploded thoroughly by a recognition that what has

been accomplished is to exempt a substantial segment

of the steelhead in the river from the terms of the fed-

eral treaty. Defendants are the tribe and its chief ex-

ecutive officer as representative of the tribe, and the

rights adjudicated are community treaty rights. At

this third trial individual tribal fisherman were not

named in the complaints, were not represented by coun-

sel, and did not even appear as witnesses. Indeed, the

instant case presents solely federal issues without even

a colorable claim of « violation of state law. Allega-

tions of violence during the fishery were included in the

Department’s amended pleading but were repudiated

by a Department witness at trial (R. 1103-05) and are

wholly unsubstantiated by the record. No conserva-

tion justification is offered for the allocation decisions

and none exists. What the court below has done, pure-

ly and simply, is to resolve basic issues of federal treaty

23 This Court always has understood Puyallup I to be applicable

only to off-reservation activity. See Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 149 (1973). Compare note 22, supra.

eee ee

35

rights adversely to the tribe over continuing sovereign

immunity objections. This is sufficient reason alone for

reversal here.

IV

The State and the Game Department Are Barred by Principles

of Collateral Estoppel from Relitigating the Issue of State

Power To Regulate On-Reservation Fishing.

The decision of the court below is in clear conflict

with the decision of the Ninth Cireuit confirming the

existence of the Puyallup Reservation, United States

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

cert. denied, 419 U.S. 1032 (1974), and of Judge Boldt’s

decisions, also affirmed by the Ninth Cireuit, 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, 423

U.S. 1086 (1976). The Ninth Cireuit decision, holding

that the reservation still exists, a fortiori resolves the

question of the tribe’s exclusive power to regulate the

fishing of its members on-reservation. Indeed, before

the Ninth Circuit the state contested “the continued

existence of the Puyallup Indian Reservation and as a

consequence, the right of the Puyallup Tribe of Indians

to fish, free from state interference, on the part of the

Puyallup River lying within the reservation.’’ 496

F.2d at 620. The state now returns to this Court to de-

fend a decision which approves a state interference

with on-reservation fishing so decisive in its implement-

ing particulars that it leads tu closure orders aimed at

the tribal council.

The law of collateral estoppel is well settled, and or-

dinarily prevents a party from relitigating in another

forum issues of fact and law actually litigated and de-

termined by a prior judgment. Restatement of Judg-

ments §68; Restatement (Second) Judgments § 68

(Tent. Draft No. 1, 1973) ; Developments in the Law—

Res Judicata, 65 Harv. L. Rev. 818, 840-50 (1952) ; see

City of Tacoma y. Taxpayers, 357 U.S. 320 (1958) ;

Tuternational Ass'n of Machinists & Aerospace Work-

ers Vv. Nix, 512 F.2d 125, 132 (5th Cir. 1975). Here, the

state has litigated to a conclusion in the federal courts

factual and legal questions regarding reservation status

and the consequent power of the state to regulate the

tribal fishery on the reservation. The district court in

the reservation case had granted the state’s motion

confirming its power to regulate the taking of fish on

the river by tribal fishermen. In its brief on appeal

the state fully argued the reservation termination and

regulatory power questions,* only to be told by the

Ninth Cireuit that the reservation still exists and that

the tribe could fish “‘ free from state interference”’ with-

in its boundaries. 496 F.2d at 620. Yet the basic pleading

upon which this case was tried for a third time prayed

for a declaration that the Game Department possesses

‘“‘the sole and exclusive authority to promulgate regu-

lations for the taking of steelhead trout’? by members

of the Puyallup Tribe ‘‘in the bay, the river, and its

tributaries.”’ (App. 5).

The decision of the court below, by cooperating in

this relitigaion, permits the state to reassert an author-

ity previously withheld by a fully contested federal

The first two issues presented for review, aceording to the

Brief for Appellee, p. 3, United States v. Washington, No. 73-1793

(9th Cir.) were:

A. Whether the Cushman Act of 1904 indicated Congressional

intent to terminate the Puyallup Indian Reservation?

B. Whether the descendents of the Puyallup Tribe of Indians

own any uplands, the river bed, or the fish in the Puyallup

River where it runs through the original 1873 boundaries.

37

judgment. By holding that state regulation may en-

sue despite reservation status, the tribe’s long awaited

success in winning judicial recognition of the reserva-

tion is rendered a nullity. Too soon it appears the tribe

was led to believe that the Ninth Cireuit settled, once

and for all, the question whether the conveyance to

private ownership of most of the lands within the reser-

vation extinguished also valuable on-reservation fishing

rights without triba! consent, without compensation,

and without congressional or exeeutive approval.

As this litigation approaches its fourteenth anniver-

sary, the Puyallup Tribe urges the Court to consider

the practices sought to be validated here against the

pattern of prior arguments whose only constancy is a

dogged pursuit of a diminished Indian fishery. State

authorities have argued, at various times in the litiga-

tion, that the Puyallup Tribe was defunct and its mem-

bers without rights under the treaty, that the treaty is

but a scrap of paper entered into without consideration

from ‘‘a conquered people’”’ having no ‘“‘right or title

to anything,’’ Dep't of Game v. Puyallup Tribe (1),

70 Wn.2d 245, 249, 422 P.2d 754, 756 (1967), that the

state has full power to regulate on-reservation because

the reservation does not exist, 70 Wn.2d at 253, 422 P.2d

at 759; see Satiacum v. Washington, 414 U.S. 1 (1973)

(per curiam) (holding that the federal question of the

existence of the Puyallup Reservation had been decided

unnecessarily), that the power to regulate off reserva-

tion for conservation purposes includes the power to

preclude totally Indian net fishing in favor of sport

fishing, Dep’t of Game v. Puyallup Tribe (11), 414

U.S. 44 (1973), and now, that despite the existence of

the reservation, a state court may proceed anyway to

adjudicate on-reservation treaty fishing rights, allocate

38

the catch, and enforce the allocation. It is time to call

a halt to this litigation distinguished only by a pro-

liferation of theories designed to diminish federally

protected rights.

Vv

The Issue of Treaty Entitlement to Hatchery Steelhead Is Not

Before the Court and Is Unnecessary to the Decision

The petition for certiorari sought review of the single

issue of state power to regulate on-reservation fishing.

Usually, review here is confined to the questions raised

in the petition, see, e.g... J.1. Case Co. v. Borak, 377 U.S.

426, 428 (1964) ; Irvine v California, 347 U.S, 128, 129

(1954); General Talking Pictures Corp. v. Western

Elee. Co., 304 U.S. 175, 177 (1938) ; Sup. Ct. Rules 23

(1) (e), 40(1) (d) (2), and we detect none of the extra-

ordinary circumstances that conceivably could encour-

age the Court to depart from that principle. See R.

Stern & E. Gressman, Supreme Court Practice 298-99

(4th ed. 1969). Respondents, however, by the filing of

cross-petitions rejected as untimely, note 1 supra, by

their responses to the petition, and by their record des-

ignations for inclusion in the Appendix have made clear

an intention to argue here the issue of treaty applicabil-

ity to hatchery fish. Out of an excess of caution, there-

fore, we consider it necessary to elaborate briefly on our

reasons for believing the issue should not be considered

here.

We have argued that the Puyallup tribal steelhead

fishery for all practical purposes occurs exclusively on-

reservation and thus beyond the regulatory grasp of

the state. (Part I, supra). The point, we believe, al-

ready has been settled by prior litigation, (Part IV,

supra), and is confirmed by this Court’s prior Indian

nab nde Laced OIE ae Rie ete ne ee OT ces:

39

fishing decisions. (Part 11, supra). Counsel for the

state recognizes that any distinetion between hatchery

and natural fish ‘‘is only material to the off-reservation

fishery’’ (App. 21) which happens to be no longer in-

volved in the case. Regardless of the status of the

reservation, we submit it is similarly clear that settled

principles of tribal sovereign immunity foreclose a suit

in the state courts aiming to exempt from the treaty a

sizeable supply of available fish. (Part III, supra).

Thus for these twin legal reasons of reservation status

and sovereign immunity, we believe the courts below

were without power to deeree tribal entitlement to the

steelhead run (whether hatchery or natural) and to

enforce any allocation so deereed. Acceptance of this

view forecloses any need for inquiring into the basis of

any allocation.

Intensely practical considerations reinforce the in-

appropriateness of this Court addressing the natural-

hatchery issue at this time. First, presently pending

in the federal district court for the Western District of

Washington is Phase II of United States v. Washing-

ton where the parties are litigating actively the entitle-

ment to hatchery fish of all species asserted by all tribes

under all treaties in all western Washington waters

(p. 5, supra,) Second, the instant case, although tried

without a jury, produced repeated rulings exeluding

tribal testimony and exhibits relevant to treaty entitle-

ment to hatchery reared fish. This was true as to evi-

dence offered to show extensive federal funding of west-

ern Washington steelhead smolts and hatchery facilities

(R. 324, 328, 702-03, 717, 736-40, 744, 989-1004; Exhs.

74-0, 74-K and 74-M ), competition for survival between

naturally reared steelhead and hatchery plants (R. 328-

31; Exh. 74-E, 74-F), and environmental degradation

ATTACHMENT

TREATY OF MEDICINE CREEK

AND STATUTES

la

TREATY OF MEDICINE CREEK AND STATUTES

Treaty of Medicine Creek, 10 Stat. 1132 (1854)

Wuereas a treaty was made and concluded on the She-

nah-nam, or Medicine Creek, in the Territory of Washing-

ton, on the twenty-sixth day of December, one thousand

eight hundred and fifty-four, between the United States of

America and the Nisqually and other bands of Indians,

which treaty is in the words following, to wit:—

Articte Il. There is, however, reserved for the present

use and occupation of the said tribes and bands, the follow-

ing 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 per-

mitted 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 lawful 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. 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.

Articite 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 cur-

ing, together with the privilege of hunting, gathering roots

and berries, and pasturing their horses on open and un-

claimed lands: Provided, however, That they shall not take

shell fish from any beds staked or cultivated by citizens,

2a

and that they shall alter all stallions not intended for

breeding horses, and shall keep up and confine the latter.

Public Law 280, §2, 67 Stat. 588 (1953), codified at 18 U.S.C.

§ 1162 (1970), as amended:

§ 1162. Srare Jurispiction Over Orrenses CoMMITTED BY

ok Acatnst INDIANS IN THE INDIAN CoUNTRY

° * o a

(b) Nothing in this section shall authorize the alienation,

encumbrance, or taxation of any real or personal property,

including water rights, belonging to any Indian or any

Indian tribe, band, or community that is held in trust by

the United States or is subject to a restriction against

alienation imposed by the United States; or shall authorize

regulation of the use of such property in a manner in-

consistent with any Federal treaty, agreement, or statute

or with any regulation made pursuant thereto; or shall

deprive any Indian or any Indian tribe, band, or com-

munity of any right, privilege, or immunity afforded under

Federal treaty, agreement, or statute with respect to hunt-

ing, trapping, or fishing or the control, licensing, or regula-

tion thereof.

The Civil Rights Act of 1968, § 401, 25 U.S.C. § 1321 (1970):

§ 1321. Assumption By State oF CrIMINAL J URISDICTION—

Consent or Unrrep States; Force anp Errect or Crim-

INAL Laws

e . e

ALIENATION, ENCUMBRANCE, TAXATION, AND USE OF PROPERTY;

Huntine, Trappine, or FISHING

(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal prop-

erty, including water rights, belonging to any Indian or

any Indian tribe, band, or community that is held in trust

by the United States or is subject to a restriction against

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alienation imposed by the United States; or shall authorize

regulation of the use of such property in a manner incon-

sistent with any Federal treaty, agreement, or statute or

with any regulation made pursuant thereto; or shall de-

prive any Indian or any Indian tribe, band, or community

of any right, privilege, or immunity afforded under Federal

treaty, agreement, or statute with respect to hunting, trap-

ping, or fishing or the control, licensing, or regulation

thereof.

Indian Reorganization Act of 1934, § 16, 25 U.S.C. § 476 (1970):

§ 476. ORGANIZATION OF INDIAN TRIBES; CONSTITUTION AND

By.taws; SpeciaL Evection

Any Indian tribe, or tribes, residing on the same reserva-

tion, shall have the right to organize for its common wel-

fare, and may adopt an appropriate constitution and by-

laws, which shall become effective when ratified by a ma-

jority vote of the adult members of the tribe, or of the

adult Indians residing on such reservation, as the case may

be, at a special election authorized and called by the Sec-

retary of the Interior under such rules and regulations

as he may prescribe. Such constitution and bylaws, when

ratified as aforesaid and approved by the Secretary of the

Interior, shall be revocable by an election open to the

same voters and conducted in the same manner as here-

inabove provided. Amendments to the constitution and

bylaws may be ratified and approved by the Secretary in

the same manner as the original constitution and bylaws.

In addition to all powers vested in any Indian tribe or

tribal council by existing law, the constitution adopted by

said tribe shall also vest in such tribe or its tribal council

the following rights and powers: To employ legal counsel,

the choice of counsel and fixing of fees to be subject to the

approval of the Secretary of the Interior; to prevent the

sale, disposition, lease, or encumbrance of tribal lands, in-

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terests in lands, or other tribal assets without the consent

of the tribe; and to negotiate with the Federal, State, and

local Governments. The Secretary of the Interior shall

advise such tribe or its tribal council of all appropriation

estimates or Federal projects for the benefit of the tribe

prior to the submission of such estimates to the Bureau

of the Budget and the Congress.