Appendix — Puyallup Tribe v. Department of Game of Wash.

SUPREME COURT, 7: & hs | FEB a

court 1968

APPENDIX cs | __J8HN F. DAW, eueRK.

we

mn the Supreme. ourt of the United States

| OCTOBER TERM, 1967

i a eto

No. 319°

NUGENT KAUTZ, et al, >.

: PETITIONERS =

*:

- DEPARTMENT OF GAME OF THE STATE | OF

WASHINGTON

ern —

; AND THE

‘DEPARTMENT OF FISHERIES OF THE

7 STATE OF WASHINGTON ° ie

s Rates - Respondents a

,

ON” WRIT OF. CERTIORARI TO THE WASHINGTON STATE

ee SUPREME COURT . ~- .

- PETITION FOR CERTIORARI FILED JUNE 30, 1967

\ 3 . CERTIORARI GRANTED DECEMBER 16, 1967

<

‘Dammeier Printing Co.

© ‘

APPENDIX TO THE BRIEFS

Docket Entries lilies ‘ae oe

‘Complaint . secs Series 2, 3

_ Answer : IE AR ORE ON Oe -. 4

‘* Motion and Affidavit. to Dismiss Bese A an 5

Stipulation se eeianl .. §

Findings of Fact; Conclusions of Law .*

‘of The Superior Court oe

Judgment, and Decree of Superior Court. eee

In the Supreme-Court of the United States

“OCTOBER TERM, 1967 |

2

No. 319

| ~~ NUGENT KAUTZ, et al.,

a PETITIONERS

v.

DEPART MENT OF GAME. OF THE STATE OF

WASHINGTON _

AND THE -

DEPARTMENT OF FISHERIES OF THE

STATE OF WASHINGTON

Respondents ~

ON WRIT OF CERTIORARI TO THE WASHINGTON STATE

SUPREME COURT

Died

_ Decision of The Supreme Court of Washington... 11-18

°

“DOCKET ENTRIES

Before the ‘Sik Court of the State of rs On

in and for the County of Pierce

uous 29, 1964 Complaint.

February 9, 1965 Answer. eas

February 27, 1965 Motion and Affidavit to Dismiss.

June . 23, 1965 "Stipulation.

| August 13, 1965' Findings of Fact and Conclusions

. of Law: OF

August 13, 19952 Judgment and Decree. i

_ September 8, 1965 Notice of Appeal.

Before the Supreme Court of the —

State of ‘Washington

January 12, 1967 Decision of the Supreme Court

of the State of Washington.

; February 8, 1967 Petition for Rehearing.

- Before the Supreme Court

—~June. 30, 1967 Petition for a Writ. of Certiorari

' filed in the Supreme Court.

December 18, 1957 Order of the Supreme Court filed

granting the petition.

” RIN ery

APTI A Rp ae cme) => gun

e .

- COMPLAINT

Come now ‘the plaifftiffs, by and through their

Attorney General; John J. O'Connell, and Assistant

Attorneys General, Joseph L. Coniff and Mike Johns-

ton, and for a claim against the defendants, * state

_as follows: =: ieaalaiaiay I :

The State of Washington is a sovereign state of

the United States, and that the Departments of Fish-

eries and Game thereof are charged with the duty of

_ enforcing its laws, rules and regulations relating to

_ the preservation; conservation, and management of

ithe food and game fishery-resources of the state.

jen ,

The defendants are citizens of the State of Wash-

‘ington and of the United States of America.

ee _o

The Nisqually River is a river that forms a portion

of the southern boundary of Pierce County in the State

of Washington. that sustains a large anadromous fish

population. .

, . oe fe |

_ The plaintiffs have expended a . ubstantial amount

of public monies to maintain the anadromous fish runs

of the Nisqually River. )

: ve

The defendants claim special privileges or immu-

nities from the application of valid conservation laws

/

3

of the State of. Washington, to which they are not

legally entitled. By virtue of the claimed special privi- -

leges or immunities, the defendants have threatened

and are fishing extensively in the Nisqually River with -

set nets and drift. nets.

. - . / . e

VI .

As a result of the defendants’ illegal net fishery,

the anadromous fish runs of the Nisqually River will

be virtually exterminated if said fishery is permitted

to continue. as 3 |

‘-The plaintiffs have no adequate remedy at law

and the public’ will ‘suffer permanent irreparable injury

from the’ acts of the defendants. |

» WHEREFORE plaintiffs pray that the court de-

clare that the defendants are not entitled to any ‘

priviliges or immunities from the application of state

conservation measures;

FURTHER, the plaintiffs pray that a temporary

restraining order be issued enjoining the defendants

from netting anadromous fish in the Nisqually River ~~

or any of its tributaries and directing the defendants

not to hamper or molest in any way the anadromous

| fish runs of the Nisqually River;

FURTHER, that the court fix a time certain at

- which the defendants shall show cause why they should

not be enjoined and restrained during the pendency of

this. action from netting the runs of andramous fish -

of the Nisqually River; arid

FURTHER, that plaintiffs have judgment against

the defendants permanently enjoining them from de-

' Stroying the runs of anadromous.fish of the Nisqually’

_ River system, and for such other relief as the court .

. may deem just and reasonable.

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. . | ANSWER

Comes: now the defendants and for answer to

plaintiffs complaint admits and denies plaintiffs aile-

gations as follows:

oan +

Kinenieting — I of plaintiffs — the

aaa admit the same. By

: Fa hai

‘Tl | | |

Answering Paragraph II of plaintiffs naebiiae |

-. defendants admit that they are citizens of the United

States, but. deny that they are citizens of the State

of Cites for all —

>

Ill

prc ren Paragraph Ill of plaintiffs complaint

defendants admit the same.

IV

Answering Paragraph IV of plaintiffs complaint -

defendants have no knowledge of the allegations there-

in contained therefore baal the same.

V

| __ Answering Paragraphs V and VI of plaintiff's com-_

plaint defendants deny the — ne con-

tained.

“WHEREFORE he ig fully answered the flain-

’ tiffs complaint the defendants pray that the same be

chenieeys.

7 5

~~

MOTION AND AF FIDAVIT TO DISMISS 3

TO: STATE OF. WASHINGTON and ees J.

0’ CONNELL, Attorney General.

‘Comes now ‘Jack E. Tanner, attorney for the

above named defendants and moves the court for an .

. order of dismissal of the above entitled matter. This

motion is based upon the grounds that Superior Court

of Pierce County does not’ have. jurisdiction over the -

persons or subject matter involved in this case.

/s/ Jack E. TANNER a

Attorney for Defendants

STATE OF WASHINGTON, County of ‘Pierce!

JACK E. TANNER, being first duly swofn. upon

oath, deposes and says:

That it is his triformation’ and belief. that the ae

_. defendants above named are descendants of the tribes,

Puyallup and Nisqually, who were parties to the Medi-

cine Creek Treaty of 1854, and as parties to that agree-

ment between the United States and the Indian tribes _ :

the defendants, claim all rights and privileges afforded

‘to them by the Treaty which includes taking fish at all

/ . cusual and accustomed grounds and stations on the

Nisqually River. - :

Jack E. TANNER

oT pl Rie ates Lee ae ed

WOU ROE nyaze aes

"healed . pA

ge STIPULATION

a The following Stipulation as to facts is éntered ;

into this 23rgeday of June, 1965, between the plaintiffs

and the indiidual defendarits in the. above-entitled

action. . | er

1) The defendants are sucéessors in interest to the

Nisqually Tribe of Indians which tribe is signatory

to and entitled to rights under the Treaty of Medicine

Creek. (Kappler ). :

2) The boundaries of the Nisqually’ Indian Res-

€rvation are as shown on a, map marked “Exhibit A”

‘attached hereto and by reference incorporated herein.

3) The usual and accustomed fishing grounds -

(within the meaning of the Treaty of Medicine Creek,

_ supra) of the Nisqually Tribe of-“Indians encompass

‘the whole of the Nisqually River, and its tributaries

°

downstream. from the Nisqually Indian Reservation

-as described in Paragraph 2, above. . 7

.. 4) The defendants began engaging in an open ney, .

fishery for salmon and steelhead -at the usual and

accustomed grounds in 1960, and have, since that date,

. continued to‘fish contrary to state fishing conservation

laws and regulations. | | |

5) If permitted to continue, the defendants’ com-

mercial fishery would virtually exterminate the salmon

and steelhead fish runs of the Nisqually River. ’

6) The plaintiffs have expanded a substantial

amount of public manies to maintain the anadromous.

fish runs of the Nisqually River and it is necessary for

‘proper conserwation of the salmon and steelhead fish

runs of the Nisqually River {within the meaning, of

_ State v. McCoy, 63 Wn. 2d 423 (1963)] that the plain- _

tiffs’ enforce state fishery conservation laws and: regu-

lations to the fishing activities of the defendants at

their usual and accustomed grounds. x

; | 7

FINDINGS OF FACT AND CONCLUSIONS OF LAW

na OF THE SUPERIOR COURT

This case having come on for hearing. before the

undersigned Judge, sitting. without a jury on a.stipu- -

' - . lated statement of facts on the 12th day. of August, -

1968, the plaintiffs being represented by John ‘J. O’Con- -

nell, Attorney General, and Joseph L. Coniff and Mike

Johnston, Assistant Attorneys Generah. and the de- -

.fendants being représented by Jack Tanner, and the

_ COurt having examined the stipulation of facts and

. heard the argurfents of counsel and being fully ad-.

vised. in the premises, hereby makes the following

Findings of Fact:

FINDINGS OF FACT iit

. S I

»

| The defendants are successors in interest to the

Nisqually ‘Tribe of Indians which tribe is signatory— -

. to and entitled to rights under. the Treaty of Medicine

Creek (Kappler). — ae :

a 1 ne

' The boundaries of the Nisqually Indian -Reser-

vation are as shown on a map marked “Exhibit* A”

attached hereto and by reference incorporated herein.

eae =

The usual and accustomed fishing grounds (with-

in the meaning of the Treaty of Medicine Creek, supra)

of the Nisqually Tribe of Indians encompass the whole

of the Nisqually River, and its tributaries downstream

from the Nisqually Indian Reservation as described in -

Paragraph 2, above.

> a

VE ad MEN ee eT

PRONG EF ROMP yr

I OC ORT Pe ee PT eT te Te

IV

‘The defendants began engaging \in an ‘open net.

fishery for salmon and steelhead at‘the usual and

accustomed grounds in 1960, and have, since that date,

continued to fish contrary to state fishing conservation fe

rg

laws and regulations. -

0 _ ; ; om

Y

iif permitted to continue, the defendants’ com-

mercial fishery would virtually exterminate the salmon

_ and steelhead fish runs of the Nisqually River.

VI

The plaintiffs have expended a substantial amount

_ of public monies to maintain the anadromous fish runs

of the Nisqually River and it is necessary for proper

conservation of the salmon and steelhead fish runs of ie

the Nisqually River [within the meaning of State v. -

‘McCoy, 63 Wn. 2d 423 ( 1963)] that the plaintiffs’

enforce state fishery conservation laws and regulations

to the fishing -activities of the defendants at their

usual and accustomed grounds. | fy

_ FROM THE FINDINGS OF FACT, THE COURT

MAKES THE FOLLOWING CONCLUSIONS OF LAW:

{

at

It is reasonable and necessary that state conser-—

_ vation laws, rules and regulations be uniformly applied

\

\

eee a

9

to all citizens on an equal basis including the de-

fendants. |

“v

et

That to permit the defendants to fish as they have |

done since. 1960, and. as they would do in the. future —

if not restrained, would seriously hamper and ulti-

mately destroy the effectiveness of the state’s conserva-

tion program, particularly as_applied to the Nisqually

> River oe 7

I eo,

_ That the defendants should be. permariently en-

joined from fishing in the Nisqually River, without the

' boundaries of the reservation, in any manner contrary “~~

to the laws, rules: and regulations of the State of

_.Washington. ,

“~ DONE IN OPEN COURT THIS 13th day of Au-

. gust, 1965. Saree a. (

. _/8/ Joun D. Coctran

| Judge of the Superior Court

- . % é

of

of

10 . , aie ‘> eas

’ . JUDGMENT: AND. DECREE :

OF THE SUPERIOR COURT

The. above-entitled matter having come on regu- _

larly for trial and hearing on Stipulated facts before

the undersigned judge, sitting without a jury on the

13th day of August, 1965, the plaintiffs being repre-

sented by. John J. G’Connell Attorney General, atid, Jo-

seph L. Coniff and Mike Johnston, Assistant Attorneys

General, and the defendants being represented by Jack .

E. Tanner and the court having examined the Stipula-.

tion of facts and heard the argumients of counsel and |

being, fully advised in the premises and having entered -

its Findings of -Fact and Conclusions of Law, now,

therefore,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED THAT:. as seacaan

The defendants are hereby permanently. enjoined

_ from fishing in the Nisqually River watershed, without

the boundaries of the Nisqually Reservation as stipu-

lated in the facts, in any manner that is contrary to.

the laws of the State. of ‘Washington or contrary to

‘the rules and ‘regulations of the Department of Fish-

eries of the State of Washington and the Department _

- of Game of the State of Washington. a

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED That plaintiffs shall recover their costs and *

-disbursemehts herein. CS vee |

DONE IN OPEN-COURT THIS 13th day of Au-

gust, “965. | maser, eo

ao /sf Joun D. Gocuran

Judge of the Superior Court .

ae |

DECISION OF THE SUPREME COURT

January 12, 1967

’ Hitt, J.—This is an action by the Department of

Game.of the State of Washington ahd the Department

of Fisheries of the State of Washington, hereinfater .

called the Departments, against 12 named individuals

and a John Doe, all of whom it is alleged, “have threat-

ened and are fishing extensively in tHe Nisqually River

with set nets and drift nets,” under a claim of special

privileges or immunities from the conservation laws of

the State of Washington. nas

The Departments alleged that ‘if the. defendants’

net ‘fishing was permitted to continue.the anadromous

fish’ runs of’ the Nisqually River would be \vittually -

exterminated.

The Departments sought a judgment, holding that

the defendants are not entitled -to any privileges or .

immunities from the applicktion of state conservation

‘measures, and that they be restrained from netting an-

adromous’ fish in the Nisqually River or any of iis

tributaries. | |

The Nisqually Tribe* and the Puyallup Tribe, with

numerous others, were signators to the Treaty of Medi-

‘For an understanding of an “anadromous” fish, see

, Opinions, by Judge Rosellini in State v. McCoy, 63 Wn.2d 421

at page 426¢t seq., 387. P.2d 942 (1963), and his concurring

opinion in State c. Satiacum,50 Wn.2d 513, 531 et seq.,

314 P.2d 400 (1957).

*The Nisqually Tribe was not made a defendant in this

action. The trial court entered am order “that the Nisqually

Indian Tribe be and ig hereby joined as a party defendant to

this cause and it is furthet ordered that ‘they be so sum-

moned.” The only proof of being “summoned” is that a copy

of the order was served on the wife of the chairman of. the

>

Nisqually Indian Community Council at his residence: _The-

tribe never appeared; no default was ever entered.

|

Paper

PE LE AERO MOY OL ae

D ae eae oe

Qe rene, ', tiie

“

‘.. Wation.

!

cine Creek and entitled to certain rights thereunder,

which rights have previously been discussed in the

companion case (No. 38611) filed this day involving

the Puyallup Tribe of Indians (70 W.D.2d 241, .

—P.2d—). gn ;

_ In this case, there is no question as to the continua-

‘pa of the Nisqually Tribe or as to the existence of the.

isqually Indian Reservation. |

It is stipulated that the defendants are Nisqually

Indians and’ that “usual and accustomed fishing

_ grounds™ (within the meaning of the Treaty of Medi-»

cine Creek). encompass the ‘whole of the Nisqually

River and its tributaries downstream from the reser-

It is stipulated’ further: |

_ 4) The defendants began engaging in an open

net fishery for salmon and steelhead at the usual

and accustomed grounds in 1960, and have, sirice

' that date, continued to fish contrary to state fihing

conservation laws and regulations.

5) If permitted to continue, the defendants

commercial fishery: would virtually exterminate

the salmon and steelhead fish runs of the Nisqually

River. eee

6) The plaintiffs have expended a substantial

amount of public monies to maintain the anadro-

mous fish runs of the Nisqually River: and it is

necessary for proper conservation of the salmon

and steelhead fish runs of the Nisqually River

[within the meaning of State v:-McCoy, 63 Wn.2d

423 (1963) ] that the plaintiffs enforce state fishery

°The Medicine Creek Treaty: refers to “all usual and |

accustomed fishing grounds and stations.”

:

a

conservation laws and regulations to the fishing

activities of the defendants at their usual and ac-

customed grounds — J

We have here- the extreme case: It is stipulated

that the “defendants’ commercial fishery would virtu-

ally exterminate the salmon and steelhead fish runs.of

the Nisqually River”; that the enforcement of the con-

Servation laws and regulations ‘are necessary for the

_ proper conservation of the salrnon and steelhead fish

runs;“nevertheless, ‘the defendants asserted in the trial

court and assert here that their right to fish as they.

‘please is not subject to any interference’ by‘the Depart-

ments. They challenged the jurisdiction of the superior

court ta consider the cause of action and its right to

- restrict in any way their treaty rights. |

The superior court held that it did have the juris-

diction to hear the ‘matter ‘and permanently, enjoined

the defendants‘ from fishing in the Nisqually’ River

watershed without the boundaries of the Nisqually Res-

ervation in any manner that is.contrary to the laws of

the §tate of Washington or contrary to the rules and

regulations of the Departments. |

* [1] "We agree with the trial cour that it did have

jurisdiction to hear the cause and to enter its order.

When Indians seek to enjoin claimed interference with

their treaty rights, they usually invoke the jurisdiction

of the federal courts, as did the Makah Tribe in the-

‘The state’ asserts in its brief (p. 4) that the Nisqually

Tribe was joined as an additional party defendant and is-

bound by the injunction. See Note 2 for the only indication |

in the record that the tribe was made a party defendant. We —

do not pass upon the issue of whether the tribe is included

in the defendants, who aré enjoined. —

po

Ror

ORIG GOL ng

APR: Tle BABB ay V0 HH

—

14

Schoettler® and McCauley’ cases, and the Confederated

Tribes of the Umatilla Reservation in the Maison’ case.

When a state seeks to enforce its laws and the regu-

'. y, lations made thereunder, in furtherance of its police

power, ‘to conserve its fish and game, it invokes. the

jurisdiction of the state courts as in the Tulee,* Becker"

and Race Horse" cases, and the claimed_ interference

with treaty rights becomes a matter of defense.

The United States brought one action to enforce

Indian treaty rights in our territorial court,'' and an-

_ other in the Circuit Court of the United States for the

District of Washington.” : Pins |

In the final ‘analysis, irrespective of which route

has been pursued—federal courts or territorial and

state courts—the Supreme Court of the United States

can be requested to determine the rights of the con-

testing parties, if an interpretation of a treaty between

an Indian tribe and ‘the United States is involved.. :

*Makah Indian Tribe v. Schoettler, 199 F 9d 224 (9th.

Cir. 1951). - av

*McCauley v. Makah Indian Tribe, 128 F.2d 867_£9th

Cir. 1942): Be ee, hay PT get .

‘Maison v. Confederated Tribes. of the Umatilla Indian

Reservation, 314 F.2d 169 (9th Cir. 163).

‘Tulee v.° Washington, 315 U.S. 681, 86 L. Ed. 1115,

62 Sup. Ct. 862 (1941), ty

_. "New York ex rel. Kennedy v. Becker, 241 U. S. 556,

60 L, Ed. 1116, 36 Sup. Ct. 705 (1916).

1°Ward v. Race Horse, 163 U. S. 504 (1896)...

United States v. Taylor, 3 Wash. Terr. 88 (1887).

“United States v. Winans, 198 U. S. 3717 49 L. Fd. 1089.

25 Sup. Ct. 662 (1905). : . |

. .

» . : ,

a | 15

i \

-

et, . -

_ We find nothing in any of the cases d

_ Indian treaty rights which would indicate that a state

. does not have jurisdiction over a violation of. its con- -

servations laws or the regulations issued thereunder

by an Indian at a locus in qu0“within the state and _

outside a reservation. Should the state. trial court and

this court fail to properly interpret the off-reservation

treaty rights of an Indian, the Supreme Court of the

United States is available for a final determination. A

State court*has the right to. be wrong in‘such a case,

and we find no support for the challenge of. the de-

fendants to the jurisdiction of the Superior court.

' . We have considered in_the companion Puyallup -

case, supra, the extent of the rights of Indians to fish

~ at “all usual and accustomed grounds and stations,”

aceorded them by the various treaties, and have con-

- cluded that: their off-reservation fishing rights are—

together with those of other citizens of the state—

Subject to regulations necessary for the preservation of

the fishery. Repetition of that discussion would seem

to be unnecessary. Otis Age

The defendants having stipulated that their cofn-

mercial fishing, if permitted to continue, would virtually

exterminate the salmon and steelhead fish runs; and

that the enforcement of the regulations of the De-

partments is necessary for proper conservation of the

salmon and steelhead fish runs, it would follow that

their fishing in violation of those regulations should be

enjoined. ae :

Apparently the reason for an appeal, in. the face

of. such. stipulations, is to raise the jurisdictional issue

(already disposed’ of) and the issue raised by the lan-

guage in the opinion in Maison v. Confederated: Tribes

of the Umatilla Indian Resérvation (see note 7:), which

: ‘. g

ealing with |

Lac latllal a iaa tata: 4

¢

+ 16.

We have, in the Puyallup case, supra, indicated

gp Cagroement with the “indispensable” test and our

= a | N =

While we agree that under the Stipulation an

injunction was proper, it should .not’ be permanent.

junction to meet a Specific situation, as in the Puyallup -

Case, supra, is not necessary.

- The-cause will be remanded to the superior court

for a-proper limitation of the injunction.. The respon-

dents will recover their costs on this appeal, the remand

not being on any issue raised by the.appellants. -

es ene

ee

Whether the off-reservation fishing rights are reserved +

.

. - . -

anennadas es ~

. 17_

Fintey, C. J., WEAVER and Hamitton, J. and—

_ _Lancensacu, J. Pro Tem., concur.

Donwortu, J. (concurring in part and‘ dissenting ‘

in part)—This case involves the treaty rights of the

appellant Nisqually Indians to fish at the. usual and.”

accustomed fishing grounds and “stations under the |

Treaty of Medicine Creek. +=

I agree with the majority in holding that the trial

court had jurisdiction of this controversy, but I do not

agree with the majority's disposition of this case for -

the reasons stated by me in the companion case (No.

38611) involving the Pu yallup Tribe (70 W.D.2d 241).

"In the instant case, appellants have stipulated to

| the facts quoted in the majority opinion. It seems ironic

’ . that appellants in this case have thus admitted facts t

_ Which, in my opinion, the respondent state departments £

. Were unable.to prove by a preponderance of the evidence

in the Puyallup case. | |

Nevertheless, I would reverse the trial court’s in- ~ |

junctive decree and direct that the action be dismissed

for the three reasons which | stated in the Puyallup

;

cases. Even with the facts-admitted in the Stipulation,

' the-reasons which | discussed therein are still ap-

plicable to the present case. '

a . The majority opinion states that, if this court fails 1

to interpret correctly appellants’ treaty rights to fish ;

off the reservation, the United States Supreme Court |

.¢ 4s available for a final determination of the case. This

_ is theoretically true, but we should not overlook the

fact that the Supreme Court has twice declined to

review either of two cases (one from a state supreme

| treaty was brought into question. .

18 |

See State v. Arthur, 74 Ida. 251, 261 P.9d 135

(1953), in which certiorari was denied 347 U. S. 937,

- 98 L. Ed. 1087, 74 Sup. Ct. 627 (1954), and Maison v.

_ Confederated Tribes of the Umatilla Indian Reservation,

314 F.2d 169 (9th Cir. 1963), in which certiorari was.

_ denied 375 U. S. 829, 11 L. Ed. 2d 60, 84 Sup. Ct. 73

~~ (1963). |

Nevertheless, the important questions involved in

the present two companion cases would seem to justify

an authoritative determination of the constitutional sta- *

tus of these Indian treatiés by the only tribunal compe-

-. tent to finally decide them. -

Hunter, J. (dissenting) —I dissent t the modifi-

cation of the trial coutt’s injunction for. tHe same rea-

sons stated in my dissent to Departinent of Game v.

Puyallup Tribe, 70 W.D.2d 241, —P.2d— (1967).

ROSELLIiNI and -Hate, J., concur with HunTER, a.

a