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

No. 76-425

In the Supreme Court of the United States

OCTOBER ‘TERM, 1976

PUYALLUP TRIBE, INC., AND

RAMONA BENNETT, PETITIONERS

v.

DEPARTMENT OF GAME OF THE STATE OF WASHINGTON

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATL OF WASHINGTON

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DANIEL M. FRIEDMAN,

Acting Solicitor General,

PETER R. TAFT,

Assistant Attorney General,

H. Barrow Farr, III,

Assistant to the Solicitor General,

EDMUND B. CLARK,

GEORGE R. HYDE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

TTT ST OR ES

Jurisdiction —.............. 1

.

e eset ae 1

Zr 8 ;

Introduction and summary of argument

} FERS IAEA Scar Ac

I. The state superior court lacked juris-

diction over the petition for relief be-

cause of the sovereign immunity of the

1 .

II. Established principles of res judicata

and collateral estoppel bar relitigation

of the principal issues in this case

III. The right of the Puyallup Tribe to fish

on its Reservation without State inter-

ference is preserved by the endl of

Medicine Creek ia

IV. The State of Washington does not

have the power to regulate the on-res-

ervation fishing activities of the Puy-

allup Tribe —

r SEES ae Cee a

CITATIONS

Cases

Antoine v. Washington, 420 U.S. 194

aon dos dos de eH

12

12

16

22

27

31

23

Bryan v. Itasca County, 426 U.S. 373 12, 27, 28

Cases—Continued Page

City of Tacoma v. Taxpayers, 357 U.S.

eS Ea SS 22

Commissioner v. Sunnen, 333 U.S. 591 19

Edelman v. Jordan, 415 U.S. 661 14

Fisher v. District Court, 424 U.S. 382 28

Hancock National Bank v. Farnum, 176

1 ————— 19

Irvine v. California, 347 U.S. 128 18

Maiorano v. Baltimore & Ohio R. R. Co.,

III 26

Mattz v. Arnett, 412 U.S. 41111 5

McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 164 24, 27, 28

Menominee Tribe of Indians v. United

States, 391 U.S. 404 11, 24

Mescalero Apache Tribe v. Jones, 411

1 AAA 28

Missouri v. Holland, 252 U.S. 418 26

Moe v. Confederated Salish & Kootenai

Tribes of the Flathead Reservation,

II 28

Rice v. Olson, 324 U.S. 786 27

Santovincenzo v. Egan, 284 U.S. 30 26

Shoshone Tribe of Indians v. United

States, 299 U.S. 476 29

Southern Pacific Railroad Co. v. United

DIN et 19

Stoll v. Gottlieb, 305 U.S. 165 8 19

Thebo v. Choctaw Tribe of Indians, 66

1 — ra as 13

Tulee v. Washington, 315 U.S. 61 24

United States v. Devonian Gas and Oil

Ga, GB Fale Gee cnctiienens . 13

United States v. Pink, 315 US. 203 26

Cases Continued Page

United States v. United States Fidelity

& Guaranty Co., 309 U.S. 506 9, 10, 13, 16

United States v. Winans, 198 U.S. 371 31

Williams v. Lee, 358 U.S. 2177 28

Worcester v. Georgia, 6 Pet. 515 13

Treaty and statute:

Treaty of Medicine Creek, 10 Stat. 1132:

len

Article III 1 23, 25

Public Law 280, 28 U.S.C. 1360 ; 27

Miscellaneous:

1B Moore, Federal Practice, § 0.406[1]

r 19

Opinion Acting Sol. M. 28107, June 30,

1936, quoted in Department of Interior,

Federal Indian Law (19589555 24

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-423

PUYALLUP TRIBE, INC., AND

RAMONA BENNETT, PETITIONERS

V.

DEPARTMENT OF GAME OF THE STATE OF WASHINGTON

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF WASHINGTON

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted pursuant to the Court’s

invitation in its order of November 29, 1976.

OPINIONS BELOW

The opinion of the Supreme Court of the State

of Washington (Pet. App. B-1 to B-66) is reported

at 86 Wash. 2d 664, 548 P.2d 1058. The opinion

of the Superior Court of the State of Washington

in and for Pierce County (Pet. App. C-1 to C-59),

together with findings of fact and conclusions of law

(Pet. App. D-1 to D-24), is not reported.

(1)

JURISDICTION

The judgment of the Supreme Court of the State

of Washington became final on June 25, 1976 (Pet.

App. B-67 and B-68). The petition for a writ of

certiorari was filed on September 22, 1976, and

granted on November 29, 1976. The jurisdiction of

this Court rests upon 28 U.S.C. 1257(3).

QUESTION PRESENTED '

Whether the Washington state courts may limit the

right of the Puyallup Indian Tribe to fish for steel-

head trout within the boundaries of the Puyallup

Indian Reservation.

TREATY INVOLVED

The Treaty of Medicine Creek, 10 Stat. 1132, De-

cember 26, 1854, is set forth in pertinent part at

la-2a of the Attachment to petitioners’ brief.

STATEMENT

In 1963 the Department of Game and the Depart-

ment of Fisheries of the State of Washington brought

an action in state superior court against the Puyallup

Tribe and various individual tribal members, claim-

ing that they were subject to state fishing laws pro-

Although the Washington Supreme Court decided several

issues relating to the fishing rights of the Puyallup Indians,

the petition for a writ of certiorari filed by the Puyallup Tribe

raised only the issue whether the state courts may exercise

control over the right of the Puyallup Tribe to fish for steel-

head trout on its Reservation.

hibiting net fishing at their usual and accustomed

places outside the Reservation.

The trial court held that the Puyallup Tribe no

longer existed as an entity; that its members there-

fore no longer possessed treaty fishing rights; and

that there was no longer a Puyallup Reservation.

The court also held that it was reasonable and neces-

sary that state conservation rules and regulations be

uniformly applied to all citizens.

On appeal, the Washington Supreme Court held

that the trial court lacked jurisdiction to determine

that the Tribe had been terminated; that, although

there was no longer a Puyallup Reservation, the

tribal members continued to have a right to fish at

usual and accustomed grounds; and that any regu-

lations of the Departments limiting or restricting

those rights must be reasonable and necessary for

the preservation of the fisheries. Under the circum-

stances, the court concluded, the injunction entered

by the trial court to limit Indian fishing was too

broad. The Washington Supreme Court therefore

set aside the judgment and remanded the cause.

Department of Game v. Puyallup Tribe, Inc., 70

Wash. 2d 245, 422 P.2d 754.

This Court, on certiorari to the Washington Su-

preme Court, affirmed. Puyallup Tribe v. Depart-

ment of Game, 391 U.S. 392 (Puyallup I). The

Court held that, although the State could not qualify

the Indians’ treaty right to fish “at all usual and

accustomed places,“ the State could regulate the man-

ner of fishing and the like “in the interest of con-

4

servation, provided the regulation meets appropriate

standards and does not discriminate against the In-

dians.” 391 U.S. at 398. The Court did not decide

whether the State’s prohibition against the use of

set nets in fresh water was “reasonable and neces-

sary” for purposes of conservation. This was an is-

sue that the State Supreme Court had left for the

trial court on remand. Id. at 401-402.

Prior to the trial on remand, the Department of

Fisheries promulgated salmon regulations limiting

commercial net fishing but permitting Indian net

fishing for salmon in the Puyallup River. The De-

partment of Game, however, refused to recognize

a treaty right to a commercial steelhead fishery and

continued its total prohibition on net fishing for steel-

head trout. After a hearing, the trial court dissolved

its prior injunction on the grounds that the Depart-

ment of Game had not met its burden of showing

that its regulations were reasonable and necessary

for the conservation of the fishery and that the De-

partment had made no showing of irreparable in-

jury. On appeal, the Washington Supreme Court,

in Department of Game v. Puyallup Tribe, Inc., 80

Wash. 2d 561, 497 P.2d 171, reinstated the injunc-

tion against Indian net fishing for steelhead trout.

This Court reversed. Washington Game Depart-

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

Reviewing the validity of regulations of the Depart-

ment of Game that banned net fishing for steelhead

trout, the Court held those regulations invalid be-

cause they discriminated against the Indians. All

5

Indian net fishing being barred, the steelhead were

being taken solely by hook and line fishing, which

was entirely preempted by non-Indians. The Court

observed that the State need not prohibit all net

fishing but could make regulations fairly allocating

the steelhead between Indians with nets and non-

Indians, while still providing the number necessary

for escapement. 414 U.S. at 48-49.

During this same period, two cases involving tribal

fishing rights were proceeding in the federal courts.

In United States v. State of Washington, 496 F.2d

620 (C.A. 9), certiorari denied, 419 U.S. 1032, the

Court of Appeals for the Ninth Circuit held that,

although ownership of the land had largely passed

from Indian hands, the Puyallup Indian Reserva-

tion nonetheless continued in existence. As a result,

the court indicated, tribal members had a continu-

ing right to fish free from state interference on that

portion of the Puyallup River lying within the reser-

vation (ibid.).* That decision was rendered on April

30, 1974.

The court of appeals stated (496 F.2d at 620):

This appeal presents for decision, a contention under

which the appellee challenges 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 that part of the Puyallup

River lying within the Reservation [footnote omitted].

The court then concluded, on the basis of Mattz v. Arnett, 412

U.S. 481, that “the Puyallup Indian Reservation continues to

exist” (496 F.2d at 621).

6

The Puyallup Tribe and the State of Washington

were also involved in litigation in the United States

District Court for the Western District of Washing-

ton. United States v. State of Washington, 384 F.

Supp. 312, affirmed, 520 F.2d 676 (C.A. 9), certio-

rari denied, 423 U.S. 1086. In that case, brought

by the United States to require the State to observe

fishing rights guaranteed by treaty to numerous

tribes including the Puyallup Tribe, the district

court held, inter alia, that on-reservation fishing

is not subject to state regulation (384 F. Supp. at

341) and that the Tribes were entitled to an oppor-

tunity to catch 50 percent of the harvestable steel-

head run off their reservations (384 F. Supp. at

343). The district court rendered its decision on

February 12, 1974.“

On April 8, 1975, after these federal decisions had

been handed down, the state superior court in the in-

stant case issued its decision curtailing the Tribe’s

right to capture steelhead both on and off the Reser-

vation. The court recognized, as had this Court in

Puyallup I, that the Department of Game has the au-

thority to regulate the off-reservation fishing activi-

ties of the Puyallup Tribe when such regulations are

necessary for the purposes of conservation. The court

further held, however, that it had jurisdiction to allo-

cate the fishery of both hatchery and naturally propa-

gated steelhead within the boundaries of the Reserva-

»The court of appeals affirmed on June 4, 1975, and then

amended its opinion in part on July 23, 1975.

7

tion (Pet. App. C-47). As to the allocation question,

the court found that the Puyallups are entitled to 45

percent of the harvestable natural steelhead run in

the Puyallup River (not to exceed 3,280 steelhead per

year) and that Indians within such limits are en-

titled to fish with nets and to sell the fish commer-

cially (Pet. App. C-57 to C-58). The court held that

the Tribe had no treaty right to hatchery produced

steelhead released by the Department of Game (Pet.

App. C-52).

The Supreme Court of Washington, with slight

modifications, affirmed. The court first held that the

state courts had jurisdiction to determine the extent

of Indian exemption from state regulations due to

overriding federal treaty rights and that it was not

necessary to defer on that question to the federal

courts (Pet. App. B-5 to B-8). The court then re-

treated from its earlier decision (in Puyallup I) rec-

ognizing an Indian net fishery as a matter of right

under the Treaty of Medicine Creek and suggested

that the finding should be re-examined by this Court

as well (Pet. App. B-8 to B-32). Holding that the

State Department of Game must exercise continuing

jurisdiction over Indian steelhead fishing, the court

ruled that, for purposes of conservation, regulations

applicable equally to Indians and non-Indians may

be imposed; that the State may not interfere with

access by Indians to their usual and accustomed fish-

ing places; that the award of 45 percent of the har-

vestable natural run as the extent of the Indians’

treaty right was an equitable determination by the

trial court (Pet. App. B-40); and that hatchery-

produced fish are not subject to Indian treaty fish-

ing rights (Pet. App. B-33 to B-37).

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Puyallup Indian Reservation, created by the

Treaty of Medicine Creek (10 Stat. 1132), encom-

passes within its boundaries a portion of the Puy-

allup River. As this Court noted in Puyallup I (391

U.S. at 395), steelhead trout “come in from the ocean,

pass through the salt water of Puget Sound, enter

the fresh waters at the mouths of rivers [includ-

ing the Puyallup River], and go up these rivers to

spawn.” As they proceed upriver to their spawning

grounds, therefore, the steelhead trout pass through

waters of the Puyallup River within the Puyallup

Indian Reservation. This case involves the right of

the Puyallup Indians to fish for such steelhead trout

within their Reservation free of state regulation and

control.

This case differs markedly from Puyallup I and

Puyallup II in several respects. Salmon fishing, at is-

sue in Puyallup I (but not Puyallup II), is not at

issue here. Nor does this case involve, as did both

Puyallup I and Puyallup II, regulation of fishing by

individual tribal members outside the Reservation;

the Tribe has challenged in its petition for certiorari

only the regulation by the Department of Game of

tribal fishing within the Puyallup Reservation. In-

deed, the Department of Game named only the Tribe

and its Chairperson as defendants in the State Su-

perior Court. In addition, important decisions in two

federal cases, rendered after this Court’s decision

in Puyallup II and befo.e the judgment of the Su-

perior Court in this case, have affirmed the existence

of the Puyallup Reservation and declared the In-

dians’ right to fish on the Reservation without State

interference.

It is the position of the United States that the

Washington state courts improperly exercised juris-

diction over the Puyallup Tribe in this case and that,

in any event, principles of collateral estoppel and res

judicata barred the state courts from adjudicating

the Tribe’s right to fish on its Reservation. On

the merits, we believe that the Tribe’s right to fish

on its Reservation has been preserved free from

State regulation by the Treaty of Medicine Creek.

Moreover, even if the Tribe were to exceed the rights

granted by the Treaty, the State of Washington can-

not govern the activities of the Tribe on its Reserva-

tion; the United States, in the exercise of its guard-

ianship over the Indians, has that power and re-

sponsibility.

The sovereign immunity of the Puyallup Tribe pro-

tects it from suit at the behest of the Department

of Game (United States v. United States Fidelity &

Guaranty Co., 309 U.S. 506). The present suit, un-

like the underlying suits in Puyallup I and Puyallup

II, is directed at the Tribe alone and does not concern

off-reservation fishing activities by individual tribal

members. The order of the State Superior Court im-

10

poses obligations and restrictions directly upon the

Tribe, including a restriction on the number of

steelhead trout that may be taken within the bound-

aries of the Puyallup Reservation. This order is in-

compatible with the immunity granted to the Tribe

as a “dependent * * * sovereignt[y]” (United States

v. United States Fidelity & Guaranty Co., supra, 309

U.S. at 512).

In any event, principles of res judicata and col-

lateral estoppel bar relitigation of issues previously

resolved by judgments in federal cases. The Court

of Appeals for the Ninth Circuit has held that the

Puyallup Reservation continues in existence and in-

dicated that the Tribe is thus free to fish upon the

Reservation without state interference (United States

v. State of Washington, 496 F.2d 620, certiorari de-

nied, 419 U.S. 1032). More importantly, the deci-

sion of the United States District Court for the West-

ern District of Washington, in a case involving both

the Puyallup Tribe and the Department of Game,

established allocation formulas applicable to off-res-

ervation fishing and concluded that tribal fishing on

the Reservation was not subject to state regulation

(United States v. State of Washington, 384 F. Supp.

312). The Court of Appeals for the Ninth Circuit

affirmed that decision (520 F.2d 676), and this Court

denied certiorari (423 U.S. 1086). Those judgments

are binding upon the state courts under the Full

Faith and Credit Clause and principles of res judi-

cata and collateral estoppel.

11

The remand from this Court in Puyallup II, a case

involving only off-reservation fishing by individual

Indians, did not render these principles ineffective.

The opinion of the Court in that case gives no indi-

cation that the state courts were to exercise jurisdic-

tion over on-reservation fishing for steelhead trout

regardless of intervening federal judgments. Nor does

the presence of the plaintiff-intervenors call for a

different outcome. To the extent that they did not

have the opportunity to present arguments in the

federal cases, their interests were amply represented

by the State of Washington and the Department of

Game.

For the foregoing reasons, we do not think it nec-

essary for the Court to reach the merits of this case.

Should it do so, we believe that Article II of the

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

apart Reservation lands for the “exclusive use” of

the Indian tribes, preserved for the Puyallup Tribe

the right to take fish upon the Reservation without

regulation by the State. Given the importance of

fishing rights to Indian tribes in 1854 (Menominee

Tribe of Indians v. United States, 391 U.S. 404, 405-

406) and the plentiful supply of fish at that time,

the Puyallup Tribe can hardly be thought to have

surrendered to future white settlers the power to

regulate its fishing activities upon the Reservation.

Although circumstances have changed significantly

in the past 123 years, the State may not now limit

by regulation the rights conferred to the Tribe by

federal treaty.

The State of Washington has no inherent jurisdic-

tion over the Puyallup Indians upon their Reserva-

tion (Bryan v. Itasca County, 426 U.S. 373, 376-377,

n. 2). Although this Court has permitted limited

exercise of state jurisdiction over matters involving

Indians off their Reservation and over matters in-

volving non-Indians, the activities in this case fall

into neither category; rather, the State seeks to regu-

late tribal activity on the Reservation that it suspects

may affect non-Indians outside the Reservation. This

substantial interference with tribal sovereignty finds

no warrant in the decisions of this Court.

The federal government, in the exercise of its

plenary power over the Indian tribes, can oversee

proper exercise of the Indians’ treaty rights. And

the State, of course, may reach an accommodation

with the Tribe through appropriate bargaining. What

the State may not do, in our view, is unilaterally

to impose regulations on the Puyallup Tribe within

the borders of its Reservation and thus make the

Tribe’s exercise of its treaty rights subject to con-

tinuing state control.

ARGUMENT

I. THE STATE SUPERIOR COURT LACKED JURIS-

DICTION OVER THE PETITION FOR RELIEF BE-

CAUSE OF THE SOVEREIGN IMMUNITY OF THE

PUYALLUP TRIBE.

The Amended Petition for Declaratory Relief, filed

by the Department of Game on January 9, 1974,

following remand after the decision in Puyallup I/

(App. 3), names as defendants only the Puyallup

18

Tribe, Ine. and Ramona Bennett, Chairperson of the

Tribal Council. The complaints filed by the plaintiffs-

intervenors are directed to the same defendants. Not

surprisingly, therefore, the relief awarded by the

state superior court (and substantially affirmed by

the Washington Supreme Court) generally runs

against the Tribe: the Tribe is directed to submit a

roll of authorized fishermen; the Tribe is required to

report on a weekly basis the take of the Tribal mem-

bers; and, most importantly, the take of the Tribe

within the boundaries of its Reservation is limited by

the allocation formula developed by the superior

court. Moreover, the state courts have denied the

Tribe and its members any right to take hatchery

fish that pass through the Puyallup Reservation (Pet.

App. E-2 to E-5).

The principle is well-established that Indian tribes

enjoy sovereign immunity from suit absent a clear

waiver. United States v. United States Fidelity &

Guaranty Co., 309 U.S. 506. Once themselves re-

garded a- sovereign nations,‘ Indian tribes tradi-

tionally have been protected by principles of im-

munity similar to those applicable to the several

States. See, e.g., Thebo v. Choctaw Tribe of Indians,

66 Fed. 372 (C.C.A. 8). Under normal circum-

stances, and without clear waiver, those principles

would protect an Indian tribe from being haled into

state court, at the behest of a state agency, and or-

*See Worcester v. Georgia, 6 Pet. 515 (Marshall, C.J.);

United States v. Devonian Gas and Oil Co., 424 F.2d 464

(C.A. 2) (Friendly, J.).

14

dered to forego rights believed to have been secured

in a treaty with the United States.

The Washington state courts in this case asserted

jurisdiction over the Puyallup Tribe apparently upon

two grounds.’ First, the Washington Supreme Court

(Pet. App. B-6) found persuasive the language of

this Court in Puyallup I, rejecting a sovereign im-

munity defense: “This case, however, is a suit to en-

join violations of state law by individual tribal mem-

bers fishing off the reservation. As such, it is analo-

gous to prosecution of individual 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 397, n. 11). The pres-

ent suit, however, as a reading of the petition for

relief shows, is not “a suit to enjoin violations of

state law by individual tribal members” (emphasis

added), none of whom is named as a defendant in

the petition, nor is it a suit involving only “fishing

off the reservation” (emphasis added). Rather, the

suit is directed in large part at controlling the activi-

* Although it does not appear that the Tribe raised the

defense of tribal sovereign immunity in its answer, we believe

that this defense, like the Eleventh Amendment defense, “suffi-

ciently partakes of the nature of a jurisdictional bar so that it

need not be raised in the trial court” (Edelman v. Jordan,

415 U.S. 651, 678).

The Washington Supreme Court apparently assumed that

the Tribe was subject to suit; the pertinent question in its

view was whether federal treaty rights could be determined

in State court (Pet. App. B-5). In this brief we discuss the

positions taken by the Washington Supreme Court insofar as

they may pertain to the issue of sovereign immunity as well.

—

15

ties of the Puyallup Tribe itself (and presumably its

members at least indirectly) both off and on the

Reservation in a manner not contemplated during

the proceedings under review in Puyallup I.

The second basis for assuming jurisdiction over the

Tribe was the remand from this Court in Puyallup

II. But Puyallup II, like its predecessor, involved

fishing by individual tribal members off the Reserva-

tion. Although the Tribe (as in Puyallup 1) was

named as a defendant, the sole question before this

Court was the extent of off-reservation fishing rights

exercisable by tribal members in common with non-

treaty fisherman in Washington. Nothing in these

prior cases placed obligations upon the Tribe itself

or in any way restricted the right of the Tribe to

conduct fishing operations within the confines of its

Reservation.

The fact that individual fishing rights are gen-

erally derived from, and dependent on, tribal fishing

rights is, under these circumstances, not relevant to

the question of sovereign immunity. A State may

sue individual tribal members to regulate their off-

reservation conduct under non-discriminatory fishing

regulations held necessary for conservation and com-

patible with Tribal treaty rights; but it does not

follow that the Tribe itself must answer in State

court for the extent of its on-reservation fishing and,

in addition, submit lists and reports to assist state

regulation off the Reservation. Whatever may be the

obligation of individual Indians to respond to state

process, the Tribes, as “dependent * * * sovereignties”

16

(United States v. United States Fidelity & Guaranty

Co., supra, 309 U.S. at 512), are not subject to suit

at the behest of a State or private parties. Thus,

the exercise of judicial power over the Tribe in this

case is incompatible with recognized principles of

Tribal sovereign immunity.

II. ESTABLISHED PRINCIPLES OF RES JUDICATA

AND COLLATERAL ESTOPPEL BAR RELITIGA-

TION OF THE PRINCIPAL ISSUES IN THIS CASE.

If the Tribe’s immunity from suit did not bar the

Washington state courts from deciding the scope of

the Indians’ fishing rights, we believe these issues are

nevertheless foreclosed, under principles of collateral

estoppel and res judicata, by the decision of the

United States District Court for the Western Dis-

trict of Washington in United States v. State of Wash-

ington, 384 F. Supp. 312, affirmed, 520 F.2d 676

(C.A. 9), certiorari denied, 423 U.S. 1086.

Despite the complex history of this litigation, and

the related federal litigation, the facts giving rise

to application of principles of res judicata and col-

lateral estoppel are relatively straightforward. On

January 9, 1974, after the remand from this Court

in Puyallup II, and the subsequent remand to the

state superior court from the Washington Supreme

Court, respondent Department of Game there filed

an Amended Petition for Declaratory Relief. Shortly

thereafter, on February 12, 1974, Federal District

Judge Boldt entered his decision in United States v.

State of Washington, supra, upholding the right of

17

the Puyallup Tribe to take 50 percent of the harvest-

able steelhead in off-reservation fishing sites recog-

nized by the Treaty of Medicine Creek. Judge Boldt

also held that fish taken by the Tribe on the reserva-

tion were not subject to regulation by the State and

were not to be counted in the Tribe’s specified share.

On April 30, 1974, the Court of Appeals for the Ninth

Circuit, in a separate federal case, agreed that the

Puyallup Reservation continued in existence and that

the Tribe had an exclusive right to take fish from

waters within that Reservation. United States v.

State of Washington, supra. Neither decision was

thereafter disturbed in any way significant to the

questions under consideration in the state courts.

The order of the state superior court in this case

was not entered until April 8, 1975. The state

superior court accepted the continued existence of the

Puyallup Reservation (Pet. App. C-39) but declined

in all other respects to accede to the results of the

federal litigation.“ The court, therefore, established

»The defenses of res judicata and collateral estoppel, while

perhaps not raised below with the greatest clarity, appear to

have been sufficiently pleaded to impede further litigation on

the matters in question. For example, Affirmative Defense I

(App. 15) notes that the Ninth Circuit in United States v.

State of Washington, 496 F.2d 620, certiorari denied, 419 U.S.

1032, had held that the Puyallup Reservation continued in ex-

istence and that the Tribe retained a “sole and exclusive right”

to take steelhead on the Reservation. Affirmative Defense II

(App. 15) cites to the district court opinion in United States

v. State of Washington, 384 F. Supp. 312, affirmed, 520 F.2d

676 (C.A. 9), certiorari denied, 423 U.S. 1086, and states:

“This decision affirms the right of the Puyallup Indian Tribe,

18

different allocation percentages and procedures and

held that “the State can enforce reasonable restric-

tions on the commercial fishing of Indians even

though the fish pass through a portion of the river

that would be designated within the boundaries of an

Indian Reservation” (Pet. App. C-51).

The state courts were not free to disregard the

prior decisions of the federal courts on these matters.

“Under the [Full Faith and Credit Clause] and 28

USC §1738, which implements the Constitution

and is broader in scope in some respects a valid

judgment of one state must be given full faith and

credit in the courts of another state and in the fed-

eral courts, and a valid federal judgment must be

given full faith and credit in the state courts. Thus

the doctrine of full faith and credit supports and

under the Treaty of Medicine Creek, to share in the taking of

50% of the harvestable steelhead from the affected waters, ex-

clusive of Puyallup tribal needs and on-reservation fishing.”

Although the answer speaks in terms of mootness (App. 15)

and preemption (App. 16), the basis for claims of res judicata

and collateral estoppel is set out in sufficient detail to provide

the plaintiffs and the state court with notice of prior binding

decisions. In fact, the trial judge explicitly rejected “the

position that [he] was bound by Judge Boldt’s decision” (Pet.

App. C-30 to C-31).

Similarly, we believe that this issue is fairly raised by the

Petition for Certiorari. The “Question Presented” (Pet. 2),

though phrased in general terms, does challenge the right of

the state courts to adjudicate on-reservation fishing rights,

and the issue of collateral estoppel is specifically addressed in

the petit n (Pet. 31). This case does not, therefore, evidence

“the practice of smuggling additional questions into a case

after [the Court] grant[s] certiorari” (Irvine v. California,

347 U.S. 128, 129 (opinion of Jackson, J.)).

——Ü— OR ge el ee NL ͥͤꝓ—＋r äkʃ—ä—bk tw —

19

gives effect to the doctrine of res judicata, and ac-

cordingly ‘the local doctrines of res judicata, speak-

ing generally, become a part of national jurispru-

dence’ [Riley v. New York Trust Co., 315 U.S. 343,

349].” 1B Moore, Federal Practice, . 0.406[1], pp.

901-903 (2d ed. 1974). See also Stoll v. Gottlieb, 305

U.S. 165; Hancock National Bank v. Farnum, 176

U.S. 640. Under principles of res judicata, “when a

court of competent jurisdiction has entered a final

judgment on the merits of a cause of action, the par-

ties to the suit and their privies are thereafter bound

‘not only as to every matter which was offered and re-

ceived to sustain or defeat the claim or demand, but

as to any other admissible matter which might have

been offered for that purpose.’ Cromwell v. County of

Sac, 94 U.S. 351, 352.“ Commissioner v. Sunnen, 333

U.S. 591, 597. When a second suit, not yet brought to

judgment, is for a different cause of action, princi-

ples of collateral estoppel dictate that “a right, ques-

tion or fact distinctly put in issue and directly deter-

mined by a court of competent jurisdiction, as a

ground of recovery, cannot be disputed in a subse-

quent suit between the same parties or their privies

.“ Southern Pacific Railroad Co. v. United

States, 168 U.S. 1, 48-49.

The Department of Game has had a full opportu-

nity to litigate in the federal lawsuits the extent of

its regulatory power over both on-reservation and

off-reservation fishing by the Puyallup Indians. In

the lawsuit before Judge Boldt, the parties uni-

formly agreed that the State lacked the power to

regulate on-reservation fishing.’ The court then gave

extensive consideration to the question of off-reserva-

tion and set forth principles of allocation that ensured

full protection of the Indians’ treaty rights. There

is no indication that the materials before Judge

Boldt were misleading or in any way deficient. The

Department of Game is precluded, therefore, from

relitigating those issues in a different forum.

For several reasons, we do not believe that the

remand from this Court in Puyallup II was intended

to, or did, supplant traditional principles of finality

in litigation. To begin with, the question of regulat-

ing on-reservation fishing was never addressed in

the prior Puyallup cases: as we have discussed (pp.

14-15, supra), those cases involved off-reservation

fishing rights alone. Moreover, although the Wash-

ington Supreme Court stated that this Court “spe-

cifically remanded this case for a determination of

a fair allocation that ‘accommodate[s] the rights of

Indians under the Treaty and the rights of other

people.’ See Puyallup II at 49,” (Pet. App. B-6) the

Court in Puyallup II did no more than to hold that

the previous regulations of the Department of Game

failed to protect the Indians’ treaty rights. The Court

did not direct the state courts or the Department of

Game to devise allocation formulas but merely noted

that the “aim” of any formula, or any other pro-

Judge Boldt specifically noted: “All parties in this case

agree that on reservation fishing is not subject to state regu-

lation and no issue to the contrary is presented in this case”

(384 F. Supp. at 341).

21

posed solution, must be the fair accommodation of

competing interests in off-reservation fishing—a re-

sult since achieved in the federal litigation before

Judge Boldt. Finally, at the time that this Court

decided Puyallup I, the federal decisions Jater raised

as a bar to further litigation of the same issues in

Puyallup III had not yet been handed down. Under

those circumstances, this Court hardly can have in-

ten ded to invert the normal principles of res judicata

and collateral estoppel and deny force to those federal

decisions because of the expected pendency of further

proceedings in state court.

Nor does the presence of the plaintiffs-intervenors *

in this lawsuit make relitigation of these issues ap-

propriate. Although neither intervenor was a party

to the federal lawsuit before Judge Boldt, the North-

west Steelheaders did participate fully in briefing

and argument before the court of appeals. This

appearance was sufficient to allow meaningful pres-

entation of its views, and the policies of judicial

finality and freedom from vexatious and repetitive

litigation argue in favor of barring reconsideration

of identical issues in this lawsuit.

Moreover, the interests of all plaintiffs-intervenors

were fully represented by the State in the federal

litigation before Judge Boldt and intervenors would

have benefitted from any judgment favorable to the

State in that litigation. Although intervenors sug-

* Northwest Steelheaders Council of Trout Unlimited and

Gary Ellis; and Western Steclheaders, Inc. (Pet. App. B-1).

gest that they are seeking a declaration of personal

rights in the steelhead fishery, those rights, to the

extent that they involve non-hatchery fish available

for capture off the Reservation, can be no more than

the right to fish in common with the Puyallup In-

dians—a right possessed by all citizens of the State

subject to appropriate regulation. A judgment against

the State affecting those fish, therefore, binds its

citizens as well. See City of Tacoma v. Taxpayers,

357 U.S. 320, 340-341. To the extent that the rights

claimed are in hatchery fish alone, because of license

fees paid for their propagation, intervenors’ interest

is limited primarily to a matter not decided by the

federal courts and not raised as a question presented

in the petition here. Intervenors’ interest is certainly

not sufficient to justify the state courts’ refusal to

give full faith and credit to the lower federal courts’

determination that the State may not regulate Tribal

fishing on the reservation.

III. THE RIGHT OF THE PUYALLUP TRIBE TO FISH

ON ITS RESERVATION WITHOUT STATE INTER-

FERENCE IS PRESERVED BY THE TREATY OF

MEDICINE CREEK.

The Treaty of Medicine Creek, 10 Stat. 1132, be-

tween the United States and various Indian bands

(including the Puyallup Tribe), provided that certain

lands previously occupied by the Indians would be

ceded to the United States for an agreed considera-

tion. The same treaty also provided that specified

tracts of land, including the present Puyallup Reser-

vation, would be “reserved for the present use and

—

occupation of the said tribes and bands * * *.” Ac-

cording to Article II of the Treaty, those tracts were

to be “set apart, and, so far as necessary, surveyed

and marked out for their exclusive use; nor shall any

white man be permitted to reside upon the same

without permission of the tribe and the superintend-

ent or agent” (emphasis added).

Article III of the Treaty, considered by this Court

in Puyallup I and Puyallup II, supplemented the res-

ervation fishing rights by providing: “The right of

taking fish, at all usual and accustomed grounds and

stations, is further secured to said Indians, in com-

mon with all citizens of the Territory * * *.” Article

III conveyed no fishing rights on the Reservations to

white settlers within the Territory; rather it reserved

to the Indians their prior fishing rights in the ceded

territory, now outside the Reservations, subject only

to the qualification that they were no longer to be

exclusive but to be exercised “in common with” other

citizens. These rights were in addition to the rights

reserved under Article II, not in derogation of them.

The principles to be applied in interpreting the pro-

visions of this Treaty have been set forth in numer-

ous prior decisions of this Court. “[T]he wording of

treaties and statutes ratifying agreements with the

Indians is not to be construed to their prejudice.”

Antoine v. Washington, 420 U.S. 194, 199. “It is

[the court’s] responsibility to see that the terms of

the treaty are carried out, so far as possible, in

accordance with the meaning they were understood to

have by the tribal representatives at the council, and

in a spirit which generously recognizes the full obli-

gation of this nation to protect the interests of a

dependent people” (Tulee v. Washington, 315 U.S.

681, 684). “ ‘Doubtful expressions are to be resolved

in favor of the weak and defenseless people who are

the wards of the nation, dependent upon its protec-

tion and good faith.’ Carpenter v. Shaw, 280 U.S.

363, 367 (1930)” (McClanahan v. Arizona State Tax

Commission, 411 U.S. 164, 174).

In light of these principles we believe that Article

II of the Treaty of Medicine Creek provided for the

Puyallup Tribe a Reservation on which its members

were entitled to fish free from state interference.

In 1854 fishing was generally an integral part of

tribal life upon the Reservations (see Menominee

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

405-406); and Indians largely depended upon fish

for their subsistence. “The right to hunt and fish

was part of the larger rights possessed by the Indians

in the lands used and occupied by them. Such right,

which was ‘not much less necessary to the existence of

the Indians than the atmosphere they breathed’ re-

mained in them unless granted away. United States

v. Winans, 198 U.S. 371.” Op. Acting Sol. M. 28107,

June 30, 1936, quoted in Department of Interior, Fed-

eral Indian Law 497 (1958). At that time, more than

three decades before admission of the State of Wash-

ington to the Union, the Indians could not have ex-

pected that by agreeing to remove to a Reservation

set apart for “their exclusive use,” they had conferred

upon future white settlers in the surrounding area

—

the power to limit the Indians’ traditional fishing

rights upon the Reservation. Rather the parties to

the Treaty must have intended that the Indians

could continue their tribal existence, as before, on

the lands to which they were removed—that is, the

Indians would be free to fish on their Reservation,

subject only to the terms of the Treaty itself.

Indeed, the Supreme Court of Washington, with-

out discussing Article II of the Treaty, lends support

in its opinion to our position that the parties to the

Treaty did not intend to limit traditional Indian

fishing rights. Reviewing the historical background

of the Treaty in its analysis of Article III, that court

observed (Pet. App. B-22):

[A]t the time of the Treaty in 1854, the parties

did not contemplate the event of conservation

requirements necessary to preserve the species.

There was an inexhaustible supply of fish, see

Uncommon Controversy, [Fishing Rights of the

Muckleshoot, Puyallup and Nisqually Indians (A

Report Prepared for the American Friends Serv-

ice Commission] at 4 n. 3, 61-62, and the Treaty

was undoubtedly premised on this condition.

In short, there was at that time no need to impose

by treaty the limitations upon on-reservation fishing

that the Department of Game now seeks to impose by

enforcement of its regulations through the state

courts.

We recognize, of course, that conditions today

have changed. Expanding population, particularly

non-Indian population, and the increased sophistica-

tion of fishing methods create demands on the supply

of steelhead trout unforeseen in 1854. But the press

of changed circumstances, without more, is not a

sufficient reason for the State unilaterally to disre-

gard or redraw Indian treaty rights without seeking

legislation by Congress that takes into account the

Indians’ continuing interest and provides an appro-

priate consideration for any rights now modified.

The treaty rights of the Indians, by virtue of the

Supremacy Clause, are not subject to limitation by

state legislation in that manner. United States v.

Pink, 315 U.S. 203; Santovincenzo v. Egan, 284

U.S. 30. See also Missouri v. Holland, 252 U.S. 416;

Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268.

Although the matter is not strictly relevant to in-

terpretation of the Treaty of Medicine Creek, we

note that the concern expressed by the state superior

court below—that the Indians would deplete the entire

steelhead run by on-reservation fishing (Pet. App.

C-40)—appears overstated. The Puyallup Indians

have not sought at any time to capture all fish pass-

ing through the Reservation and the record does not

support speculation that they intend to do so. Nor

does this case present the question whether the Treaty

of Medicine Creek could be interpreted consistently

with the Indians’ benefit to protect against total ex-

haustion of the fish supply. Moreover, Congress pre-

sumably retains the power to prevent abuse of the

Indians’ fishing rights if the need for such protection

should arise.

— —— —-ũ—ͤ

—— —ä . ——

IV. THE STATE OF WASHINGTON DOES NOT HAVE

THE POWER TO REGULATE THE ON-RESERVA-

TION FISHING ACTIVITIES OF THE PUYALLUP

TRIBE.

Should the Court conclude that the Treaty of Medi-

cine Creek does not reserve to the Puyallup Tribe un-

restricted fishing rights on its Reservation, the Court

would have to decide whether the State has the power

to exercise jurisdiction over the on-reservation fish-

ing activities at issue in this case. We believe the

State does not have such power.

The State of Washington, like other States, has

no inherent general jurisdiction over Indian activities

occurring within the boundaries of an Indian reser-

vation. See Bryan v. Itasca County, supra, 426 U.S.

at 376-377, n. 2.“ To the contrary, “[t]he policy of

leaving Indians free from state jurisdiction and con-

trol is deeply rooted in the Nation’s history.” Rice v.

Olson, 324 U.S. 786, 789. As this Court recently

stated in McClanahan v. Arizona State Tax Commis-

sion, supra, 411 U.S. at 168:

This policy was first articulated by this Court

141 years ago when Mr. Chief Justice Marshall

held that Indian nations were “distinct political

communities, having territorial boundaries. with-

in which their authority is exclusive, and hav-

ing a right to all the lands within those boun-

Nor has Washington acquired jurisdiction under Public

Law 280, 28 U.S.C. 1360, over criminal and civil matters

affecting the Puyallup Indians. We do not address the ques-

tion whether Public Law 280, if applicable, would permit reg-

ulation of on-reservation fishing activities by the Puyallup

Tribe.

daries, which is not only acknowledged but

guarantied by the United States.” Worcester v.

Georgia, 6 Pet. 515, 557 (1832). It followed

from this concept of Indian reservations as sepa-

rate, although dependent nations, that state law

could have no role to play within the reservation

boundaries.

The doctrine of tribal immunity from state juris-

diction, which has served as well as a “backdrop” for

the doctrine of federal preemption, McClanahan,

supra, 411 U.S. at 172; Bryan v. Itasca County,

supra, 426 U.S. at 376-377, n. 2, is not absolutely

rigid. The Court has permitted a narrow exercise of

state jurisdiction over matters involving Indians sep-

arate and apart from the reservation and over mat-

ters involving non-Indians. McClanahan, supra, 411

U.S. at 171; Moe v. Confederated Salish and Kootenai

Tribes of the Flathead Reservation, 425 U.S. 463,

480-481. Modification of the doctrine has occurred,

however, only “in cases where essential tribal rela-

tions were not involved and where the rights of In-

dians would not be jeopardized” (Williams v. Lee,

358 U.S. 217, 219). The pivotal consideration in

those cases has been defined as “whether the state

action infringed on the right of reservation Indians

to make their own laws and be ruled by them” (id.

at 220; Fisher v. District Court, 424 U.S. 382, 386)

or whether the state action would “interfere with res-

ervation self-government or would impair a right

granted or reserved by federal law” (Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 148.

ee oOoOoO lekẽ ů ———— —＋8ͤũ285 444% %%% 0

—— — ͤ w— eek — —

This case involves neither the conduct of non-

Indians upon reservation lands nor the conduct of

Indians off reservation lands.“ The State of Wash-

ington instead seeks to extend its regulatory powers

onto the Reservation, to control the activities of the

Tribe and its members, because it believes those

activities may have an adverse impact on non-Indians

outside the Reservation. The state superior court has

issued an opinion prohibiting certain fishing prac-

tices conducted solely within the reservation boun-

daries; that opinion presumably may be enforced by

contempt proceedings. Thus, the potential interfer-

ence with tribal sovereignty, and with plenary fed-

eral control over Indian affairs (Shoshone Tribe of

Indians v. United States, 299 U.S. 476), is both

direct and considerable.

The fact that the Puyallup Tribe might be taking

fish on its Reservation in excess of the rights pre-

served by the Treaty of Medicine Creek would not

in itself justify interference by the State. In our

view, the doctrines of sovereign immunity and fed-

eral preemption do not serve only to protect the

Indians from state regulation of lawful activity.

Rather, they rest upon the premise that unauthorized

entry onto reservation lands by State officials,

whether to enforce state or federal laws, is incon-

sistent with both the independent status of Indian

tribes and the primary responsibility of the federal

government over Indian affairs.

In Puyallup I and Puyallup II, the State sought to regu-

late the conduct of Indians fishing off the Reservation.

Although we are not prepared at this time to say

that a State may never seek to regulate Indian prac-

tices upon a Reservation, regardless of the effect on

citizens outside the Reservation, the circumstances

of this case do not call for even a narrow exception

to the tradition of noninterference. As yet, the citi-

zens of the State of Washington have suffered no

serious deprivations from the exercise of fishing

rights by the Puyallup Tribe; thus, the State is not

acting under narrowly circumscribed powers to mod-

erate a situation of emergency. The record does not

show that the State will be unable to provide an

adequate supply of fish for its sport and commercial

fishermen unless it reaches its regulatory arm onto

the Puyallup Reservation. Moreover, the State has

had a full opportunity to argue its position in fed-

eral court in a lawsuit to which the United States, as

well as the Puyallup Tribe, is a party. Should the

Puyallup Tribe fail to comply with the terms of the

judgment in that case, federal enforcement may be

available. And Congress, of course, remains free to

enact federal legislation to remedy any difficulties

that actually arise.

Even if the State’s efforts at on-reservation regu-

lation are viewed in terms of the existing narrow

exceptions to the policy of noninterference (p. 28,

supra), the regulation is not justified. The right to

fish upon a Reservation is a right long associated

with tribal existence. Although it may no longer be

true that exercise of the right is “not much less nec-

essary to the existence of the Indians than the atmos-

—ͤ—ũ— — —WG— ey

—— —— . ——¶ ZZ — — — 2 —

31

phere they breathed,” United States v. Winans, 198

U.S. 371, 381, the record indicates that fishing plays

an important role in the economic preservation of the

Puyallup Tribe. In fact, fishing rights are about all

the Tribe has retained, as the bulk of its lands were

sold. To cut back these rights, as the State would do,

would cause a significant hardship to the Tribe and

its members.

CONCLUSION

For the foregoing reasons, the judgment of the

Supreme Court of the State of Washington should

be reversed.

Respectfully submitted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

PETER R. TAFT,

Assistant Attorney General.

H. BARTOW Farr, III,

Assistant to the Solicitor General.

EDMUND B. CLARK,

GEORGE R. HYDE,

Attorneys.

MARCH 1977.

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