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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1977
- **Citation:** 433 U.S. 165

## Text

IN THE ib
Supreme Court of the United States

Ocrosper Teno, L976

FOR ARGUMEWT

No. 76-423

PUYALLUP TRIBE AND RAMONA BENNETT,
Petitioners,

Vv.

DEPARTMENT OF GAME OF THE STATE OF WASHINGTON,
Respondent,

On Writ of Certiorari to the Supreme Court
of the State of Washington

REPLY BRIEF FOR THE PUYALLUP TRIBE AND
RAMONA BENNETT

WititaM Hl. Ropaers, Jr.

GEORGETOWN UNIverstry LAw CENTER
600 New Jersey Ave., N.W.
Washington, D.C. 20001

JOHN CLINEBELL
2932 East 28th Street
Tacoma, Washington 98404

JOHN SENNHAUSER
Native AMeRICAN RicHts Funp
1506 Broadway
Boulder, Colorado 80302
C'ounsel for Petitioners

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

BIE ccccccccccetseccccesccccoessccocccscoses

I. State Administrative Agencies and Courts Are
Without Power To Adjudicate Tribal Entitlement
to On-Reservation Fisheries and To Enforce De-
CE ed caen bain naddudddae ne 6éumeeen cad bee

II. Indian Fishing, Even When Off-Reservation, Can
Be Curtailed by the State Only — a Compel-
ling Justification of Conservation Necessity ....

III. Tribal Sovereign Immunity Precludes State Courts
hae Adjudicating Tribal Community Fishing
BED Kencccecschedocoenecedserseecenccoecese

IV. The State and the Game Department Are Barred
by Principles of Collateral “1 from Reliti-
gating the Issue of State Power To Regulate On-

SD WUE 00 0.0 duenn6650.9044sc0nwdne

V. The Issue of Treaty Entitlement to Hatchery
Steelhead Is Not Before the Court and Is Unnec-
SR Oe Ge SEED 066.800 cbsececccceescocsds

Er aan rae PR AE ee ee ee

TABLE OF AUTHORITIES
Cases:

Antoine v. bedngeny e 420 U.S. 194 (1975) .........
City of Tacoma v. Taxpayers, 357 U.S. 320 (1958) ...
DeCoteau v. District County Court, 420 U.S, 425 (1975)
mea hr of Game v. Puyallup Tribe, 414 U.S. 44

<cacb660060000096060060600000000006 00.04
Hartford Life Ins. Co. v. Blinecoe, 255 U.S. 129 (1921)
Kalb v. Feuerstein, 308 U.S. 433 (1940) .............
New 1094) Telephone Co. v. Maltbie, 291 U.S. 645

DEE: CAHUSERADAC EUR SS SeNEEeédRbSOteedcenss

6

ii Table of Authorities Continued
Page

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

664, 548 P.2d 1058 (1976) ..... 6c cece eeeeeees passim
ee v. Department of Game, 391 U.S. 392

NS ys I PETERS ES AOE EN 4-5
Quechan Tribe v. Rowe, 531 F.2d 408 (9th Cir. 1976).. 4
Satiacum v. Washington, 414 U.S. 1 (1973) .......... 4
Stoll v. Gottlieb, 305 U.S. 165 (1938) ..........0. eee &

United States v. Finch, 395 F.Supp. 205 (D. Mont.
1975), rev’d, — F.2d —, No. 75-2149 (9th Cir.
Dec. 22, 1976), petition for cert. filed, 45 U.S.L.W.
3619 (U.S. Mar. 15, 1977) (No. 76-1206) ........ 4

United States v. United States Fidelity & Guaranty
Co., 309 U.S. 506 (1940) .......ccceeevccecccvess

United States v. Washington, 496 F.2d 620 (9th Cir.),
cert. denied, 419 U.S. 1032 (1974) .........005. 2,7,8

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) ............ 7, 8, 10

United States v. Washington, No, 76-3757 (9th Cir.),
Gin Gat. GB, TGS ccc cccvcccsccccccccsccccccscce

United States v. Washington, Nos. 75-2835, 76-1042
(9th Cir.), filed Aug. 18, 1975, Oct. 2, 1975, con-
palitated, BEGG, BE, BOGe ccccscvccccceevsccccicss 11

Washington State Commercial Passenger Fishing Ves-
sel Ass’n v. Tollefson, 87 Wn. 2d 417, 553 P.2d 113

(1976), rehearing granted, Nov. 4,1976.......... 11
STATUTES AND TREATIES:
Public Law 280, 67 Stat. 588 (1953) ....... 6. cece eee 3
Treaty of Medicine Creek, 10 Stat. 1132 (1854) ...... 3, 6
OD DLAs, Be CESEe oc eve dcccccccescovcesscseces 8
MISCELLANEOUS:
R. Cramton, D. Currie & H. Kay, Conflict of Laws (2d

OE, BED dbebscndsertcntececesaccanesecesésvene &
1B Moore’s Federal Practice J 0.404[10] ............ 4

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-423

PuyALLup TRIBE AND RAMONA BENNETT,
Petitioners,

V.

DEPARTMENT OF GAME OF THE STATE OF WASHINGTON,
Respondent,

On Writ of Certiorari to the Supreme Court
of the State of Washington

REPLY BRIEF FOR THE PUYALLUP TRIBE AND
RAMONA BENNETT

This brief replies to the briefs of Respondents De-
partment of Game [hereinafter Game brief], North-
west Steelheaders Council of Trout Unlimited and
Gary Ellis [hereinafter Steelheaders Brief], and of
the Amici Curiae Purse Seine Vessel Owners Associ-
ation, Puget Sound Gillnetters Association, West
Coast Trollers Association, and the Northwest Trollers
Association [hereinafter Amici Brief]. Our reply con-
forms to the format of our opening brief.

State Administrative Agencies and Courts Are Without Power
to Adjudicate Tribal Entitlement to On-Reservation Fisheries
and To Enforce The Decrees

The state chooses, at this late date, to make its prin-
cipal stand by arguing that the Puyallup Reservation
does not exist rather than contesting directly the prop-
osition that state authorities lack power to regulate the
tribal fishery on the reservation. Game Brief at 31-49.
The existence of the reservation, however, was con-
ceded by council throughout the trial,’ recognized as
fact by the trial court, FF XVI, Pet. Cert. App. D-17,
and by the Washington Supreme Court in its decision
under review here. 86 Wn.2d 664, 668, 548 P.2d 1058,
1063, Pet. Cert. App. B-6-7; see id. at 688-89, 548 P.2d
at 1074, Pet. Cert. App. B-45 (Stafford, C.J., with
Wright, Utter & Horowitz, J.J., concurring). Indeed,
the whole matter was settled by the separate reserva-
tion decision of the Ninth Circuit, United States v.
Washington, 496 F.2d 620 (9th Cir.), cert. denied. 419
U.S. 1032 (1974), compiled on a record containing a
great deal more than what counsel chooses to present
for the first time in this proceeding.’ See Game Brief

at 33-49.

1 App. 20-21 (‘‘Mr. Mackie: ... [WJe have to operate on the
premise that there is a reservation unless the United States Su-
preme Court grants certiorari on [the Ninth Circuit reservation
decision] and reverses the same.’’ Certiorari was denied. 419 U.S.
1032 (1974)); R. 1136 (‘‘Mr. Mackie: ... [WJith reference to
the reservation I should clarify, the State is now in a position of
having a decision against it by the 9th Circuit which we believe
is in error but at this stage of course we're bound by it.’’). No-
where in its brief before the W ishington Supreme Court did the
Department of Game assert that the reservation had been termi-
nated.

? United States v. Washington, No. 39-71C3 in the district court,

3

Nor does the record permit a factual eseape from the
proposition that we are dealing with an on-reservation
Indian steelhead fishery. The trial court found as a
fact that the tribe intends to concentrate its fishery
within the boundaries of the reservation, Pet. Cert.
App. D-17, an the only testimony on the point is that
90-100 percent of all future harvests will be on the
reservation (App. 79-80); ef. DeCoteau v. District
County Court, 420 U.S. 425, 428-30 & n.3 (1975). None
of the Indian net fishing for the 1973-74 season here at
issue occurred off the reservation. Compare R. 485 with
the map appearing in the Game Brief at 75. See also
App. 79-80; R. 826. The correct factual hypothesis,
accepted by the state Supreme Court and beyond con-
tradiction here, is that ‘“‘substantially all’’ of the In-
dian catch of steelhead occurs on-reservation. 86 Wn.
2d at 688, 548 P.2d at 1074, Pet. Cert. App. B-45
(Stafford, C.J., with Wright, Utter, & Horowitz, J.J.,
concurring) ; see id. at 668-69, 548 P.2d at 1063, Pet.
Cert. App. B-6-7.

With the reservation established and the fishery fixed
on the reservation, Respondents are skewered deci-
sively by the propositions that Article iI of the Treaty
of Medicine Creek reserved exclusive fishing rights
on the reservation to the tribe and that the state lacks
power to regulate an on-reservation fishery. See Open-
ing Brief for the Puyallup Tribe and Ramona Bennett
20-26. It is suggested (Game Brief at 48-49) that the
Publie Law 280 prohibition against state adjudication
of tribal treaty fishing rights can be overcome by the
simple expedient of declaring more than three-fourths

was tried on a record consisting, among other things, of a 48-
page, 214 paragraph Plaintiff's Request for Admissions detailing
a complete history of the Puyallup Reservation.

4

of the harvestable fish in the river exempt from the
treaty. This exercise in circularity reduces the rights,
‘control and regulation’’ promised by Public Law 280
to the tribe pro tanto to the extent the state chooses to
withhold it. Nor is the case for state power enhanced
by citation (Game Brief at 47) to the opinion in
United States v. Finch, 395 F. Supp. 205 (D. Mont.
1975), holding that the Big Horn River crossing the
Crow Reservation is not Indian trust land for purposes
of fishing regulatiem, for the simple reason that the
Court of Appeals reversed on precisely this point. ——
F.2d ——, No. 75-2149 at 14-16 (9th Cir. Dee. 22, 1976),
petition for cert. filed, 45 U.S.L.W. 3619 (U.S. Mar.
15, 1977) (No. 76-1206). See also Quechan Tribe v.
Rowe, 531 F.2d 408, 410 (9th Cir. 1976). All this over-
looks the further proposition, equally decisive, that the
State of Washington and the Game Department have
litigated and lost the issue of tribal control of the on-
reservation fishery. See Opening Brief of the Puyallup
Tribe and Ramona Bennett 35-38.°

Indian Fishing, Even When Off-Reservation, Can Be Curtailed
by the State Only Upon a Compelling Justification of
Conservation Necessity

Neither decision below purports to justify the as-
sumption of on-reservation regulatory powers and the
allocations decreed as instances of conservation neces-

* The law of the case argument on the reservation status, also
raised here for the first time (see Game Brief at 45-46), founders
on the proposition that the existence of the reservation was pre-
termitted expressly by this Court in Puyallup I. 391 U.S. at 394
n.1; see Satiacum v. Washington, 414 U.S. 44 (1973). See also
Hartford Life Ins. Co. v. Blineoe, 255 U.S. 129, 136 (1921); 1B
Moore’s Federal Practice § 0.404[10], at 572-73.

4)

sity within the meaning of Antoine v. Washington, 420
U.S. 194, 207 (1975). The record on this score, in an
exhibit prepared by the Game Department (Exh. 74-2,
App. 93; see R. 148-49, 170-74), searcely could be
clearer: the total Indian steelhead catch on the Puyal-
lup River during the period 1953-1973 (ineluding
some years when injunctions were in effect) amounted
to 28,328, an average of 1416 fish per year. The sports-
men have caught approximately 11,058 fish per year.
The 1400 or so fish per year taken by the Indians aver-
ages out to a little more than 10 percent of the harvest-
able steelhead on the river as computed by the trial
court (FF XII, Pet. Cert. App. D-14-15) or 20 per-
cent of the harvestable natural steelhead computed by
the trial court (/d.). Ina single year (1960) by a small
margin (approximately 1,200 fish) the Indian catch ex-
ceeded the annual catch figure for the tribe (3310 or
3280) fixed initially by the trial judge. See FF X XTT,
Pet, Cert. App. D-19, Order and Judgment, Pet. Cert.
App. E-3. This empty conservation threat recedes still
further if the issue is seen * as whether a virtually non-
existent off-reservation fishery must be controlled for
conservation reasons.

These catch figures are not overcome by unsupported
assertions of tribal overfishing ° or by snippets of rec-
ord references (see Steelheaders Brief at 22-26) that
are either miscast or now thoroughly stale. See Open-
ing Brief for the Puyallup Tribe and Ramona Ben-
nett at 11-13. The further argument pressed by the

* As it properly is, see Puyallup Tribe v. Department of Game,
391 U.S. 392, 399 (1968).

*’There is considerable evidence in the record confirming the
tribe’s coiamitment to conservation. R. 1103-04, 802; App. 79, 83;
Exh. 74-P; 74-Q; see R. 489.

6

Steelheaders (Brief at 26-30) and the state (Game
Brief at 49-50), that the resource must be protected
against multiple management, is simply another way
of saying the reservation status is meaningless and
tribal authority over on-reservation fishing is subject
to the good will and heavy hand of state domination.
That is also another way of repudiating the specific
commitments of the Treaty of Medicine Creek and the
general commitment of the Congress to principles of
tribal self-government. See Opening Brief of Puyal-
lup Tribe and Ramona Bennett at 22-24.

Tribal Sovereign Immunity Precludes State Courts From
Adjudicating Tribal Community Fishing Rights

The tribe’s sovereign immunity arguments (Opening
Brief at 31-35) are neither distinguished, refuted, nor
scarcely addressed by Respondents. The reason is that
the tribe’s objections are unanswerable. The Game De-
partment does assert that the State ‘‘is seeking to de-
termine the extent to which it can apply its regulatory
powers with relation to fishing activities by individual
members of the Puyallup Tribe. When the scope of
that power has been defined, the State can then seek
remedies against individual Indian fishermen who vio-
late those regulations.’’ Brief at 19. Yet, the relief
sought and secured in this case has been aimed solely
at the tribe and its chief executive officer. The original
Order and Judgment allocates the community fishery
and directs the tribe to file a list of fishermen and make
reports. Pet. Cert. App. E 2-5. In the exercise of its
continuing jurisdiction, the Pierce County Superior
Court has issued a series of orders aimed at the tribe
and the tribal council. See Opening Brief at 8-9. The

—_

—) ©

7

effect is to subject the tribe itself and its officials, and
their powers as regards the tribal fishery, to the contin-
uing mandates of the Superior Court. The state need
never again seek relief against individual fishermen
when the same result can be achieved by ordering the
tribe, under threat of contempt for its officers, to close
the fisheries. Subjecting the tribe to suit on these
grounds offends settled principles of sovereign im-
munity. E.g., Umted States v. United States Fidelity
& Guaranty Co., 309 U.S. 506, 512 (1940).

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

Respondents’ and the amici’s briefs demonstrate,
far more convincingly than simple assertions by the
tribe, an unswerving determination to reargue a wide
variety of propositions decided adversely to them by
various courts in recent years. This Court is asked to
reexamine the decision in Department of Game v. Pu-
yallup Tribe (11), 414 U.S. 44 (1973) (Game Brief at
51), for no discernible reason other than a change in
membership of the Court, to reopen the Puyallup
Reservation case, United States v. Washington, 496
F.2d 620 (9th Cir.) (per curiam), cert. denied, 419
U.S. 1032 (1974), without benefit of the record com-
piled there, and to reject, again without benefit of a
record, most of the legal premises of Judge Boldt’s
rulings in 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).

Simply put, the facts are that prior to the Superior
Court decision in the instant case federal courts, on

‘8

two occasions where the state was a party, ruled that
state agencies lacked power to regulate on-reservation
fishing. This was true in Judge Boldt’s case (384 F.
Supp. at 341) and in the Ninth Cireuit’s reservation
decision (496 F.2d at 620) where it can safely be said
that the chief issue in the case involved tribal power
to regulate the Puyallup River steelhead fishery. Not-
withstanding these prior adjudications, the State Su-
perior Court (Pet. Cert. App. C-51) and Supreme
Court in turn (86 Wn.2d at 669, 548 P.2d at 1063, Pet.
Cert. App B-7) approved on-reservation regulation of
the tribal steelhead fishery.

The principles of repose represented by res judicata
and collateral estoppel, expressed as full faith and
credit in the interstate context, 28 U.S.C. § 1738, surely
put a halt to the relitigation attempted here. See Kalb
v. Feuerstein, 308 U.S. 433, 440 & n.12 (1940) ; Stoll v.
Gottheb, 305 U.S. 165, 172 (1938); R. Cramton, D.
Currie & H. Kay Conflict of Laws 659 (2d ed. 1975).
The reservation question is closed and along with it the
state’s power to regulate within the reservation boun-
daries. The Steelheaders suggest (Brief at 30) that as
nonparties they can litigate anew the question of reser-
vation status. The law is to the contrary, see City of
Tacoma v. Taxpayers, 357 U.S. 320, 340-41 (1958),
and for good and sufficient policy reasons. If a ruling
against the state did not foreclose objections by private
citizens, Indian tribes would be perpetually on the de-
fensive rearguing issues of tribal or reservation status.
Indeed, the complaint filed in the reservation case in
the federal courts named one sportsmen’s group as a
defendant (note 2, supra), only to have two others
emerge in this case (including the Steelheaders) to re-
argue the reservation issues.

9
Vv

The Issue of Treaty Entitlement to Hatchery Steelhead Is Not
Before the Court and Is Unnecessary to the Decision

We interpret the Steelheaders’ Brief (at 14, 18-19,
A1-A3) charitably as expressing annoyance at the
tribe for not seeking certiorari on the issue of treaty
entitlement to hatchery steelhead while conceding that
as a prevailing party it could not have sought review
here. See New York Telephone Co. v. Maltbie, 291 U.S.
645 (1934). The various reasons advanced by Respon-
dents in support of the argument that this Court
should review an issue not raised in the Petition add
up to the proposition that the question of treaty en-
titlement to hatchery fish is important, which none
would deny. Indeed, the issue is so important that it
manifestly should not be decided on this record sharply
curtailed by the scope of the issues (a single species
on a single river) and by repeated evidentiary rulings
curtailing tribal evidence relevant to the disposition.
See Opening Brief for the Puyallup Tribe and Ra-
mona Bennett at 39-40. Compare Exh. 74-I with R.
1137-39 (excising from the exibit those pages dealing
with environmental damage to the river).° Nor, de-
cisively, should the issue be reviewed on a record com-
piled by a state court without power to make the deci-
sion.

Respondent Steelheaders take offense also (Brief at
14) at the decision of the district court of the Western

® As counsel for the Steelheaders put it to the trial court:

[W]e are here concerned with a remand concerning the
Puyallup River system. It is irrelevant to the Puyallup River
system what may have been done on the Columbia River or
other places involved in the Pacifie Northwest.

R. 702; see R. 324, 328, 703, 717, 991-92, 996, 1002.

10

District of Washington of August 13, 1976, granting a
preliminary injunction against state officers restrain-
ing them from excluding hatchery reared fish from
tribal allocations pending a full trial in Phase IT of the
United States v. Washington litigation. See id., App.
A-8 to A-9. Apart from misstating the possible collat-
eral estoppel effect of the instant litigation on the
Puyallup Tribe in that proceeding,’ Respondents are
asking this Court to prejudge not only the propriety
of the August 13, 1976 injunction, from which an ap-
peal has been taken by the state,* but also major as-
pects of the Phase IT litigation vet to be tried. This is
consistent with Respondent’s view of this case as a
vehicle for undoing all of the legal damage done to
them by numerous courts in the last several years.

Amici commercial fishermen point out (Brief at 10-
15) certain conflicts between federal and state deci-
sions on various Indian fishing issues. This happens to
be true although many of the conflicts were occasioned

* The August 13, 1976 memorandum decision of the district court
does recite at length the repeated rulings at trial in the instant
case excluding tribal evidence pertinent to the natural-hatchery
issue (/d. at 11-12). The court holds that the Puyallup Tribe
would not be foreclosed by res judicata from litigating legal
issues regarding environmental degradation of the watershed and
treaty entitlement to hatchery fish (CL-8 at 26) and concludes
(CL-9 at 26):

To the extent that the Puyallup Tribe may be collaterally
estopped from litigating before this Court fact issues actually
litigated during the Puyallup IIT trial (for example, ques-
tions concerning the historic sizes of the natura] and hatchery
steelhead runs on the Puyallup River and the sources of fund-
ing for those runs), the issues are best decided as they arise
during pending Phase IT litigation.

‘United States v. Washington, No. 76-3757 (9th Cir.), filed
October 8, 1976.

11

by suits against state agencies by commercial fishing
interests seeking to attack collaterally the decisions of
the federal district court. Various issues in these con-
troversies are now before the courts,’ and none of them
are remotely presented here. The further suggestion by
Amici (Brief at 7-10) that this Court ought to proceed,
willy-nilly as it were, to exclude hatchery reared sal-
mon from the reach of all Indian treaties is bold even
by the standards of this case since there is neither a
pleading nor shred of evidence in the record addressing
treaty entitlement to hatchery reared salmon. Lastly,
amici suggest (Brief at 16-17) that the Puyallup Tribe
already has argued here the issue of treaty entitlement
to hatchery steelhead, which manifestly we have not
done, and will not do so, unless the Court advises us
that the normal rules for the presentation of questions
are suspended in Indian fishing cases.

° United States v. Washington, Nos. 75-2835, 76-1042 (9th Cir.)
(raising the question, among others, whether a state agency can
resist compliance with federal court orders on the ground that
state law precludes the closure of fisheries for any reason other
than conservation (i.e., to allow sufficient + ttm : = “ee

i i ounds)); Washington State Commercial Passenge
Santer Seon = “ Tollefson, 87 Wn. 2d 417, 553 P.2d 113
(1976), rehearing granted, Nov. 4, 1976.

CONCLUSION

For the foregoing reasons, the judgment of the Su-
preme Court of the State of Washington should be
reversed with directions to dismiss.

Respectfully submitted,

WituiaM H. Roporrs, Jr.

GEORGETOWN UNiverstry LAw CENTER
600 New Jersey Ave., N.W.
Washington, D.C. 20001

JOHN CLINEBELL
2232 East 28th Street
Tacoma, Washington 98404

JOHN SENNHAUSER

Native AMERICAN Riauts Funp
1506 Broadway
Boulder, Colorado 80302

Counsel for Petitioners

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0648%3A09. Public record. Not legal advice.