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

oe an

11

Se

Cases—Continued

Depariment of Gante: Mi Puyallup Tribe, 70

Wash. 2d 245, 422 P

net Popgegset ve.

Mescalero aioe Tribe v. F fone No. ae es

= Se TT PS

i

aes

Treaty, statutes, and — iesiahi

BOS Bar oak aGadas cacecencd cba 3

Po ESSER RR ORE etme era 3

Article II oe Pelee = heen ose d os aioe 2; 4, 19

Act. of August 15, 1958, 67 Stat, 588, 18

VBC, AOR. nce Fe mnite ones Jo positions 21

Ill

Treaty, statutes, and regulation—Continued

» Act of April 11, 1968, Title TV, 82 Stat. 78, page

Ce eee ee easkeoene 21

__ Indian Reorganization Act of 1934:

BS Oe ca ceen ape nes 3

SE ST 3

ee waccnktnkelnee 21

Revised Code of Washington 77.16.060-- ---- 3,17

Revised Code of Washington 77.08.020- ----. 3, 17

ae teh Ae. 4 eee 26

Miscellaneous:

troversy, Fishing Rights of the Muckleshoot,

Puyallup and Nisqually Indians (1970) - - - - 19

Hearings before the Subcommittee on Indian

Affairs of the Senate Committee on Interior

and Insular Affairs on 8.J. Res. 170anhd 8.J.

Res. 171, 88th Cong., 2d Sess. -.-..------ 22

2 Kappler, Indian Affairs—Laws and Treaties

(IGGR).... 2 2nd ooo ccc e ncn sees aens 19

monde

'

1°

[|

.

i

‘

'

“ ‘

*

i

‘ ‘

bow

e '

P<

hye Deparrmens oF Game OF THE STATE OF !

WasHinaton, PETITIONER . ,

v.

THE Duvautr Tae

No. 72-746 :

THe PuyaLLup. TRIBE, PETITIONER

v. !

THe DEPARTMENT OF GAME OF THE STATE OF

WASHINGTON

ON WRITS OF CERTIORARI TO THE SUPREME OOURT OF THR”

STATE OF WASHINGTON

BRIEF FOR THE PUYALLUP TRIBE

OPINIONS BELOW

This Court’s previous opinion in this case is re-

ported at 391 U.S. 392. The original opinion of the

Supreme Court of the State of Washington is re-

ported at 70 Wash. 2d 245, 422 P. 2d 754; that court’s

opinion after remand (Pet. App. No. 72-481) is re-

ported at 80 Wash. 2d 561, 497 P.2d 171. The findings

(1)

2

and conclusions of the Superior Court for Pierce

County, Washington on remand (App. 21-25) and the

PHA hatte at a Hic si gute st me

The judgment of the Sipreiiiée' Colt of Washington

was entered on May 4,-4972:-Timely petitions for re-

hearing were denied by.that court on June 23, 1972.

The petition for a writ of certiorari in No. 72-481

was filed on September 21, 1972," On. Sey mber 20,

1972, Mr. Justice Douglas extended the Tribe’s time

for filing a petition for a writ of certiorari to Novem-

ber 20, 1972, and the petition in No. 72-746 was filed

on that date. Both petitions were granted on March 19,

1973. The jurisdiction'of this‘Court is invoked under

28 U.S.C. 19573). er a es ee

QUESTION PRESENTED

Whether the State of Washington’s laws and! regu-

lations absolutely prohibiting the Puyallup Indians

from net fishing for steethead trout at their usual and

aecustomed fishing places, rather than limiting sports

fishing so as to preserve at least some measure of the

Indians’ net fishery, are necessary for the conservation

of fish and do not discriminate against the Indians. —

STATUTES AND TREATY PROVISIONS INVOLVED

The Treaty of Medicine Creek, 10 Stat, 1132, Arti-

cle III, provides: | 7 ee

The. right of taking fish, at all usual and

accustomed grounds and stations, is further

secured to said Indians, in common with all

citizens of the Territory, * * *.

‘ vised, Code of Washingto 7716 .060 provides in

ftitng 2% eres + i to a to aft ous this vie SEO Ht

aT “Te Ds ee 4 awful p igi tt ony pers FARR

win gt sét, tise, We any *** ay ye . he

2S ih BY anny” ot a A state’ rail

tt ns pret +6catch) take. or kill any garhe'fish:

It shall be unlawful to lay, set or usé!aé met

ai eo taking. game, fishin any .watersi of

rajive this state; except, a: permite pale Beg ee

iM , the, Pe galley iy ated

me ay use

10) iets’ oF Seines ‘inthe’ taki oF riongaitie. fish.”

“Revised Code of ‘Washington’ 71.0 08. 020, provides i in

relevant part: Set

re As ast in this title. or in 1 any. ‘rule or regu-

lation of the [game] commission, “‘game fish” in-

clude * * * Salmo patrdherit contimonly known

as steelhead mie I,

STATEMENT _ ?

The Puyallup Tribe is a federally recognized Indian

Tribe with a Constitution and by-laws approved ‘by

the United States under the Indian Reorganization

Act of 1934, 48 Stat. 984. It is one of, the.tribes which

was a party to the Treaty of Medicine Creek signed

on December 26, 1854, and ratified by the Senate on

March 3,.1855, 10 Stat. 1132-1137. See Puyallup Tribe

v. Department of Game, 391 US. 392, 394-395. The

treaty, in return for the, Tribe’s relinquishment of

large areas of land (Article,I), reserved an area of

land for the Tribe’s exclusive use (Article II), and

also reserved to the Tribe the right ‘‘of taking fish, at

all usual and accustomed grounds and stations * * *

4

in common with all citizens of the Territory” (Article

Tif). beers hee the Tribe eondueted an active

+, eh n Ana. Nl purposes,

“ln and 3 pear the Puyallup River, See Puyallup Tribe.

Department of Game, ah US, 392, 296, See alao App.

120-132. '

In 1963, the Departments of Game and Fisheries of

the State of Washington initiated this action against

the Puyallup Tribe and some of its’ members, to deter.’

mine if the Tribe and its members are subject to the

State’s laws prohibiting net fishing at their usual and

accustomed places or whether they are exempted from

those laws by rights granted them in the Treaty of

Medicine Creek. The suit also sought to enjoin them

from violating state fishing regulations. The trial

court held that the Puyallup Indians have no treaty,

rights under the Treaty of Medicine Creek, and en-

tered a permanent injunction restraining the Puyall-

up Indians,from fishing in any manner contrary to the

laws of the State of Washington (Pet. App. No. 72-

481, pp. 563-564).

The Supreme Court of the State of Washington re-

versed. Department of Game v. Puyallup Tribe, 7

Wash..2d 245, 422 P. 2d 754. That court confirmed

the Tribe’ 5 treaty-protected fishing rights and re

manded thejgase to‘the trial court with directions that

the decree eeeen reflect that ‘‘(1) If a defendant

proves that he is a member of the Puyallup Tribe;

and (2) He is fishing at one of the usual and accué

tomed fishing places of that tribe; (3) He cannot be

restrained or enjoined from doing so, unless he is violat-

ing a statute, or regulation of the [State] Departments

——S

Fisheri es and, of | thereunde

a te met

or the Selivei 1) ry.” 90 'Wast. 24

gat: for ! 7

y okies a hig nage o Steet

“ : lip Pees.

"eld Bhat the

be and its in wicgent a haves ‘fish:

rights” ‘andl to ‘Treaty. ‘of! Creek that

are toi of their reservation De land.” ‘Tn

aucing those rights in light éf’ thie Words Win ‘doin-

mon with” the Court reibebed” the: argument ‘that the

Tribe had no right beyond ‘that of other citizens

quoted from United States v. “Winans, 198 US. 371,

380, that “[t]o construe the treaty aS giving the In-

dians ‘no rights but such as they would have without

the treaty’ * * ow ‘ould ‘be ‘an ‘impotent: otiteortie td

negotiations and a convention, which seemed to prom

ise more and give the word of the Nation for’ mofe',

391 U.S. at 397.

The Court held that Indian off.redervaltion fishing

rights are subject to state conservation laws only if

those laws give adequate recognition to the treaty

rights, are “ ‘necessary for the conservation of fish’”

(id. at 399, 401-402, n. 14) ‘and do “not discriminate

against the Indians” (td. at 398). The Court remanded

the case for a determination of “[w]hether the prohi-

bition of the use of set nets in those fresh waters was

a ‘reasonable and necessary’ i Ned conserv ation meas-

1 See 391 U.S. at 394, n. 1. The question of the present existence

of the reservation of land is pending in the Court of Appeals

for the Ninth Circuit. United States v. State of Washington.

No. 73-1793.

506-653—73——2

shisetod? batgelemorg [orasi

. + ’ s Se .

ure” (id, at-401), admonis

RAT NSE OD TAVEEE SAS ST Hs

the SOTINer ¥ £ stim

‘equi tiot

pe--Sit besa yS} & ety. + ay YS PAE

with’” (a <4

epa 41 er - : eh KR Pct aes

Spats fee a

ph though. it maintained its seo

Palys of ‘the: river. where ‘the fish spawn (App. 16,

22-93, 104-106; P. Exhibit 6).* The Department of

Fisheries also curtailed certain commercial fishing

near the Puyallup River to increase the runs available

in the river (App. 113; -. Exhibit 5).

The Department, of Game (which regulates steel-

head trout, fishing), i in contrast to the Department of

Fisheries, maintained, the. position, that it had. taken

before this ‘Court’ s decision, namely, that 80. long. as

Indians, and non-Indians are treated alike it, has ng

duty. to, recognize’ any special. Indian fishing rights

The Department of Game continued its total prohibi-

tion of net fishing for steelhead trout (App. 16, Tr.

This Exhibit which isthe text of the eguaton, i lode

with the Clerk.

as

se also)" the: Brief vof the Department ot Game

nis: Oouir ee oh, sie ae Ansa

nde far as the Indians are concerned” (App.

8). But the’ court’ held’ that:'the ‘Department of

Game’s “regulations are not shown to be reasonable

and necessary” for the consérvation of fish (App. 24),

particularly in’ light of the court’s finding that while

Indian nét fishing is totally prohibited, sports fisher-

men are allowed an animal take of 12,000 to 18,000

steelhead trout per year (App. 23-24). The court also

held that there was no‘showing by either Department

justifying an injnnetion against the 1 Indians (App.

-25).

‘Both sides appealed to the Supreme Court of the

State of Washington. That court essentially affirmed

the decision of the trial. court insofar.as it held ithe

regulations of the Department of Fisheries’ valid. It

reversed the, trial, court’s decision..as,to,the Depart-

ment of Game, however, and upheld the Department’s

regulations totally prohibiting fishing by net for steel-

head trout for the year 1970,-It. ruled. that new fishing

regulations for the Puyallup Tribe must be made each

year, supported by ‘‘facts and data that show the reg-

:“T;” refers to the transcript of the trial on remand, which

is lodged with the Clerk.

8

ulation is necessary: for the. consenvation”” of the spe

cies of fish in question (Pet. Apps N@,,72-481) p76);

The: court further, ordered, that the injunction against

the, Tribe shguid: be reinstated, subject, to modifications

consistent, with, the opinion of ithe,court (6d, at, 577),

Ini mpholding: the, 1970 | prohibition of net, fishing; for

steathead.trout, the court held,that,‘the satch of the

steelhead sports. fishery, alone, jn, the Puyallup. River

leaves, no more ; than a, sufficient, number .of steelhead

for escapement necessary, for the conservation. of the

steelhead fishery in that river” (id. at573)« «00

.. Both, the, Department. of Game .of;, the - State af

Washington and the Puyallup. Tribe petitioned this

Court for reyiew of the judgment, of the Supreme

Court of .Washington insofar, as it. coneerned the

walidity of the laws and regulations of the State of

Washington prohibiting net ,fishing for. steelhead

trout. None of the parties sought further review of the

decision concerning the regulations of the Department

of Fisheries (concerning salmon fishing).* On Mareh

19, 1973, the,Court granted the petitions for certiorari

and consolidated the cases.’

*'The Tribe continues to take exception to the extent of fish

ing permitted it by the Department of Fisheries, but has sought

review only of the Department of Game’s, total failure to rec- ©

ognize its fishing rights.-Tt is the Tribe’s view that the’ w villing:

ness of the Department of Fisheries to recognize Indian treaty

rights will make possible a resolution of practical differences

with that Department. Litigation to quantify the fishing rights

of a number of Tribes including the Puyallup has been brought

by the United States. United States v. Washington, Civil Action

No, 9213, U.S.D.C., W.D. Wash.

* A conditional cross-petition by a tribal member, Ramona C.

Bennett, No. 72-5437, remains pending.

‘9

“Houle ho (* SUMMARY) OF ARGUMENT ©” do anrsrertong

+ YT he ‘question left'by this Court to’ be ‘decided ‘on

eiiatid after its prior Géeisidh in this case was' wheth-

a’ the State of Washington’s total ‘prohibition of ‘Tn

_ @ifan net 'fisting’in the ‘Puyallup River was ‘necessary

jor the consérvation éf fish and, as applied to’ their

treaty protected’ rights, ‘did nut discriminate’ against

éIndians. ‘In thé trial’ on’ Femand ‘the evidence

ghowed'that “after this Court's decision’ the Depart-

tient ‘of Fisheries of the State of Washington changed

its position and permitted ‘a regulated net fishery

for salmon in the Puyallup River. The trial showed,

however, that the Department of Game, by contrast,

had continued to prohibit Indian net ‘fishing for steel-

head trout and that this prohibition was based on the

State’s allocation of the entire take of steelhead trout

to sports fishermen rather than upon any requirement

for conservation of “fish: The évidence also showed

fhat as mariy'as 18,000 steelhead trout are’ taken’ an-

mally in’ the’ Puyallup River by sports fishermet

while all Indian net’ fishing for steelhead trout re-

mains prohibited. The trial court thus correctly found

that the State of Washington had failed to show that

its prohibition of Indian net fishing for steélhead

trout was necessary for the conservation of fish and

did not discriminate against the Indians.

2. In reversing the decision of the triel court as to

steelhead trout, the Supreme Court of the State of

Washington applied an incorrect legal standard that

is not in accord with this Court’s prior decision in this

ease. The Supreme Court of Washington held that an

Indian net fishery for steelhead trout could not be

10

permitted because» the: catch: of ithe: ‘‘sports fishery

alone in the Puyallup River leaves no more than a’

sufficient number of steelhead trout for escapement

necessary for the conservation of the steelhead fishery

in that river” (Pet. App. No. 72-481, p. 673). This

holding subordinates. the Tribe's, rights to those of

sports fishermen, permitting an Indian net fishery

only, if there ,are sufficient excess fish after sports

fishermen have, been, satisfied, This. total subordination

of the.. Indians’. , treaty, rights is contrary to. this

Court’s prior decision i in this case and the precedents

on which it was based, which recognize that the treaty

provision involved, here, and. provisions ,similar to it,

confer, on. the Indians a special: right to, continue to

- fish for trade and sustenance in, accordance with their

traditional way of life and present needs. .;.

' ‘The, Department of Game continues. to argue os it

aid when this, case was previously, before, this Court

that the treaty, gives members of the Tribe no fishing

rights not held by all other citizens of the, State. This

argument was fully considered and properly. rejected

by this Court in its previous decision in this case, and

is also foreclosed by the previous judgment of the

State Supreme Court in this case which this Court

3. If this Court agrees. with our contention that the

State of Washington has failed to show that its abso-

lute prohibition of net fishing for steelhead. trout is

neeessary for the conservation of fish and does not

discriminate against the Indians, then, in light of the

long history of this litigation, it should order that the

Indians be afforded their treaty rights forthwith and

11

that future regulations of Indian net fishing for steel-

head. trout fully recognize and safeguard those rights. :

r

THE TRIAL COURT CORRECTLY FOUND THAT THE STATE OF

“WASHINGTON | FAILED TO SHOW THAT ITS TOTAL PRO-

‘ WIBrTION OF INDIAN NET FISHING FOR STEELHEAD TROUT

“WAS NBOBSSARY FOR THE CONSERVATION OF FISH AND

i NOSTSRRCNTRET Nee AOMIES faut MOTs ite

The question left by this Court to be decided on

remand was whether the State’s total prohibition’ of

net fishing in the Puyallup River was necessary for

the conservation of fish and, as applied to their treaty-

protected rights, did not discriminate against the In-

dians. Unless the State ‘could: show this, this Court de-

cided, its prohibition of net fishing by ‘Puyallup In-

dians was invalid, as contrary to their treaty tights.

In order to decide these issues, a new trial was ‘held

on remand. It consisted ‘principally of testimony by

three witnesses, all biologists and experts i in fisheries

of the northwest coast. Two of the experts, Mr. Mil

lenbach and Mr. Lasater, were employes of the State

of Washington (App. 32, 74). The third, Mr. Heck-

man, was an employee of the Federal Bureau of

Sports Fisheries and Wildlife (App. 143).°

1. Mr. Lasater, of the State Department of Fish- .

eries, testified that the Department of Fisheries, which

regulates salmon fishing, had changed its views since

this Court’s previous decision in this case, and no longer

opposed a regulated gill-net Indian fishery in the Puy-

allup River. He explained: “When the decision was |

made, and we read it, then it, in part, said that we

12

were wrong, and ‘that: there was a special Indian

treaty right, and to us, gave us an obligation to rec.

ognize their right, and “we°also have our increased

ability, fishery science has advanced * * *. We are *

more confident of our ability to handle the fish Tuns

in an area like this, a special Indian Fishery, than

we. were at the time” (App. 102). Accordingly, he

testified, the Department had adopted regulations per-

mitting a limited Indian net fishery for salmon in the

Puyallup River (see P. Exhibit 6; App. 111-114). He

stated that the regulations prohibit fishing in Com-

mencement Bay where the fish mill and in their spawn-

ing grounds, but that the Department has determined :

that in between those two areas a net fishery can

properly, be allowed (App. 104-105, 111-115, 125).

Mr, Lasater also described a series of studies and of

meetings with the public aad with leaders of the

Tribe in which regulations as to a fishing season, num-

bers of days of the week in which fishing would be

allowed, and net types were developed (App. 111-114).

He testified that a portion of the regulation limiting

the length of nets to one-third of the river’s width was

taken from the Puyallup’s own regulations.‘ He de-

scribed successful Indian self-regulation of salmon

fishing on other reservations in the State which had

resulted in increased hatchery runs, permitting in-

creased Indian net fisheries (App. 108).

In sum, therefore, Mr. Lasater’s testimony showed

that while prohibiting all net fishing in the Puyallup

River might be an easy way of conserving fish, it is

* Tr. 217. We have lodged a copy of the Tribe’s present regula-

tions with the Clerk.

—

by ‘no means the orily way or a nécessary way, and

{hus that’ protection of the treaty’ rights of ‘the

{ndians—including 'the right toa‘ regttlated net fish’

ety—and proper conservation of fish are not’ mirutuially

exclusive.

" 2. The testimony of Mr. Millenbach of the State’s De-*

partment of Game reflected the difference between the

legal position urged by his Department and that of

the Department of Fisheries. His testimony was con-

cerned less with conservation requirements than with

the economic considerations underlying the State’s

policy of reserving steelhead trout for sports fishing.

He emphasized that the number of steelhead avail-

able-to sportsmen had been greatly increased by stock-

ing the ‘Puyallup River with fish produced at fish

hatcheries financed by hunting and fishing license fees

(App. 33), but he admitted that the hatcheries are also

supported by the federal goyernment (App. 35) and

apparently by reparations paid by power companies

(App. 37). Mr. Millenbach testified that in recent

years sportsmen had been catching an average of more

than 12,000 steelhead annually in the Puyallup River

(App. 37).’ By including the value of transportation,

food and drink consumed, sporting equipment sold

and the like, he estimated that the economic value of

a fish taken for sport is $60, which he claimed to be

far greater than that of a fish taken for subsistence

or commerce (App. 37, 53-54).

Mr. Millenbach’s testimony indicated that the De-

' He testified on cross-examination that in one recent year the

known sports catch on the Puyallup River was 18,000 steel-

head trout (App. 52).

14.

partment of, Game, in. contrast, to the Department of

Fisheries, had not.considered any compromise position

that would, allow, Indian, net fishing: with limitations

as to. location, seasons, days of the week, sizes of nets,

total take or the like. Although he testified in general

terms that it would be ‘contrary to, conservation” to

allow net fishing for steelhead in the Puyallup River

(App. 43),, his, testimony on ¢ross-examination made

clear, that, the State’s prohibition of, net fishing is the

result. of its alloeation of the entire take of steelhead

trout..tosperts fishing and would. not. otherwise be

required to, preserve the fishery (App. 62-63) :

Q. Let me ask you this: you said a net fishery

_ would. be absolutely impossible in terms of your

definition of conservation, What if we cut down

i the. number of fish a sportsman is allowed to

~ " ©" catch or the number of days, whatever, and we

“~~ allowed a ‘highly regulated, self-regulating: In-

dian net fishery. Would that be possible to still

SSR Sones mer arin ee nS

nowt, oy

A. It would be Aimy yen.

Q. Why don’t you do that?

A. We do not have the authority to do it.

Q. What do you mean, you don’t have the

authority to do it? You make the regulations.

A. By the laws of the State of Washington,

steelhead may not be taken with a net. .

Q. If you could, would you do #?

Mr. ContrF:-I object, Your Honor. I

think the witness has answered the ques-

tion.

‘The Court: I think he has made himself

~ Clear.

15

Mr. SENNHAUSER: One’ aatenent,. “Your

Ria |

~ Q. Mr. Millenbach,. does it make. any’ difter

ence to conservation, whether 2,000 or 8,000,

whatever, ‘fish ‘ ‘are ‘caught "by sportittion or

whether they are caught by wepmpnde

A. Conservation alone, no. eae ie

Q: It: makes no difference? *

AL Ts weela be posits tecitelan devia,

bers caught . and still maintain conservation.

There is a surplus of fish or harvestable part

that ean be cropped in a system of congerve:

tion.

Mr. SENNHAUSER: No farther questions.

‘This testimony, by ‘the Departnient of Game’s own

witness, we submit, not only fails to establish that the

State’s prohibition of the taking of steelhead ‘by net

in the Puyalhip River is hecessary for the conserva-

tion of fish, but affirmatively shows that’ this total

prohibition is not necessary for’ that Purpose. ©

3. Any remaining doubt as to whether an ‘absolute

prohibition of net fishing for steelhead in the Puyal-

lup River is necessary for the conservation of fish was

dispelled, we submit, by the testimony. of the remain-

ing witness, Mr. Heckman, a federal . biologist. He

testified specifically that a properly regulated net-

fishery for steelhead trout on the Puyallup River

would be “commensurate with’’ ‘conservation’ (App.

152). He based this view partly on his experience with

the successful Quinault fishery for steelhead trout in

the Quinault and Queets Rivers in Washington where

the Indians carry on a commercial gill-net fishery for

steelhead and a successful sports fishery within the

16

‘Feservation (App. 148, 152, 167, 174-175). He was oes

familiar with the. gill-ne t fishe for stepthead i in the

Golumbia ‘River. (App. 3B) He was askéd_ specifi-

a “net, fishery. gn the. Puyallup River

“would adversely affect the spawning escapement for

steelhead” on that river.and responded that “if prop-

erly regulated * *»*: “an optimum” spawning escape-

merit” Couild be ‘achieved (App.'152).°° |!

"Yn bum,’ ‘the’ State’ of ‘Washington ‘has totally pro-

hibited the Indian | net fishery, for steelhead trout on

the Puyallup River while permitting sports. catches

averaging more.(perbaps substantially ;more) than

12,000 fish annually, and the State has failed. to. show

that this prohibition does not discriminate against the

Tribe’s treaty rights or that it is a ‘‘ ‘reasonable and

necessary’ ’’ conservation measure, Puyallup Tribe y,

Department, of Game, supra, 391. U.S, at 401-408. Ac-

cordingly, ie Arial paart an zemnand, 7a qceaet tp

our view, in holding (App. 20) :

ss aa, Coe In. view. of the large number dane

7 caught. in the, Puyallup River, it would. seem

that the Game Department is not in a. position

to say that the Indians can be entirely excluded

from the exercise of any special rights. It is

- within the province of the Department to adopt

a regulation setting forth such details as the

time in whiclt steelhead may be taken and by

what. means. It should. compute how much

eseapement should be allowed so that a compre-

hensive regulation may be formulated protect-

* An optimum escapement requires a certain number of fish to

be harvested so that fish do not die from overpopulation of the

river. See App. 114 (testimony of Mr. Lasater).

Af

0? pangithe special, rights of,.thesJndians, while still

gag iat RONEETVING. this. eueen aie? i:

3 it ys [-it Beal

i ca erotyted3 er ti. zxt)

HOLDING OF T eyrREa coUkr COURT OF. WASHINGTON,

ic INDIAN fi gh ibicw ‘CAN BE ALLOWED ONLY IF

““pHERE ‘IS 4 SURPLUS AFTER SPORTS’ FISHING AND ‘NEC-

| PAGARY ESCAPEMENT, RELEOATES INDIANFISHING TO! A

BOLE: IN VIOLATION OF (‘THE ' INDIANS’

/EREATY RIGH' IN THIS. ioe PRIOB

\QPINION IN THIS CASE. ait ail 4 “it

This Court held, in Puyalltip Tribe v. Dopnrttnene

ape, SRG POR TH. at390B: © os

The [treaty] right to fish ‘‘at all usual and ac-

~ eustomed’’ places may, of course, not be quali-

fied by the State, even though all Indians born

in the United States. are now citizens of the

United States. Act of, June 2, 1924, 43 Stat.

253, as superseded by § 201(b) of the N ation-

ality Act of 1940, 8 U.S.C. § 1401(a)(2). But

the manner of fishing, the size of the take, the

restriction of commercial fishing, and the like

may be regulated by the State in the interest

of conservation, provided the regulation meets

appropriate standards and does not. diserimi-

nate against the Indians. , 9

In upholding,'as applied to the Puyallup Tribe in

1970, the ‘State’s classification of the steelhead as a

game fish; R.C.W. 77.08.020 (p. 3, supra), and its abso-

lute prohibition of taking game fish by nets, R.C.W.

77.16.060..(p. 3, supra), the court, below reasoned (Pet.

App. 72-481, p. 573) :

[T]he catch of the steelhead sports fishery

alone in the Puyallup River leaves no more

18 |

| than’ a). sufficient number of steelhead for

against th» Tribe’s treaty Liter It subordinates the

Tribe's, rights, to ‘ of sports fishermen and gives

the ‘Tribe. only, what might be left. after sports fisher-

men, of ‘unlimited number. have. had their take. More-

over, the ‘opinion below does not. discuss the trial

urt’s finding that the Department of Game had not

shown the prohibition to be necessary for the conser-

vation of fish, and it ignores the; substantial evidence

supporting that finding (see point I, supra). While it

directs the Department of Game to review annually

the possibility of a netting season for the Tribe, the

opinion below clearly permits the State to reserve

steelhead trout: exclusively for sports fishing. As a

practical matter, therefore, in light of the State’s past

deference to game- fishermen, the opinion offers little

prospect that any substantial Indian net fishing would

ever be allowed. Indeed, in the one “hearing”’ that

has heen held on the subject by the State Game Com-

mission since the judgment below, the large sports

take was permitted to continue without abatement

and the Indian fishery was again totally prohibited.’

_ The:treaty, however, does not state that the Indian

fishing rights’ it guarantees are to be subordinate to

the fishing rights of others; nor was the treaty in-

tended to provide the Indians merely with a right to

* Information supplied by the Department of the Interior

and documented in depositions filed in United States v. Wash-

ington, Civil Action No. 9213, U.S.D.C., W.D. Wash. See note 4,

supra.

ts ti ghd, 5 a Nowe

tribe in Tulee v. Washington, 315 U.S.

681, 684. decision strongly relied upon bythe Court

in its, Puyallup opinion): 6.7

ade FV To ath Ppireensa byte Weroniyy deoirs

the Indians had to retain the right to hunt and

; ‘ith ity eeooriiined withs the insthethovial ustome

i) of their Dribes. « a ist

lice Cis dad ts id Lisa’ Saude wo

mained: the way of life of the Northwest coastal

tribes.” Indeed, it was the vital importance of fish-

ing to their way of life which led to the inelusion of

language in the treaties with virtually all of the

Northwest Coastal tribes, such as the Puyallup, re-

serving a right to fish at the Indians’ usual and ac-

eustomed places.” As this Court explained in United

States v. Winans, 198 U.S, 371, 381 (also relied upon

in Puyallup), in construing treaty language essen-

tially similar to that involved here:

% The historical dependence of Northwest Indians upon fish-

ing for their subsistence and livelihood as well as its continu-

ing economic and cultural importance are recounted in Sohappy

v. Smith (United States v. Oregon), 302 F. Supp. 899, 907 (D.

Ore.).

1 Some ten treaties with the tribes of the Northwest were

negotiated on behalf of the United States and executed in

1854 and 1855. by Governor Isaac Stevens. Each of the treaties

included a phrase respecting fishing virtually identical to that

found in Article III of the Medicine Creek Treaty (see supra,

p. 2). 2 Kappler, Jndian Affairs—Laws and Treaties, pp. 495-

497, 501-506, 510-512, 521-531, 536-545 (1903). See generally

Friends’ Service Committee, Uncommon Controversey, Fishing

Rights of the Muckleshoot, Puyallup, and Nisqually Indians,

pp. 18-40 (1970).

20

Salil Fight, te -Fesprt 9 the fishing. Lil a

_fontroversy was a part. of larger righ

by the “upon © Porat e

3 nich’ there Wwhs riot ‘a shadow’ of itnpédiment!

0) sind which 4vere’ not. much lesa’ necessary to -the

existence of the Indiaris:than ‘the atmédsphere

| they. breathed. *.*,." [T]he treaty was not a

. grant of rights to. the Indians, but ja. grant of

_ rights from them-—+a reservation. of these not

granted. And the forin of the mstrument and

_its language was adapted to that purpose. Res-

-ervations were not of particular parcels of land,

and could hot be expréssed in deeds as dealings

between private individuals. '*.* * They im:

' «© posed a servitude upon ‘every piece of land as

though desertbed thereim.. There was an ex-

_ elusive right of fishing reserved within certain

boundaries. There was a right. outside of those

boundaries reserved ‘in common with citizens

of the Territory.” st indy SOIT

Winans thus recognized that the Indians made res-

ervations in the treaties not only of tracts of land

upon which to live, but also of rights to fish both

within and outside those lands.” It is, of course, axio-

matic that such reserved rights should be interpreted

so as to fulfill the purposes for which they were re-

served." The reserved fishing right of the Puyallup

2 “Tt is clear that the. reservation [land] was intended only

as @ residence, and the Indians were to remain free to roam and

fish at their usual places.” Skokomish Indian Tribe v. France,

320 .F. 2d 205, 210 (C.A. 9).

1*The interpretation of reserved rights has had its fullest

development in eases involving water rights. See, e.g.. Winters

v. United States, 207 U.S. 564; Arizona v. California, 373 US.

546, 595-601. Justice McKenna, who wrote the Court’s opinion

in Winters, had written the Court’s opinion in Winans three

21

Indians, therefore, should be interpreted to permit the

members of the Tribe to meet their eontinuing needs

for subsistence and trade, fully recognizing that the

. gfight is not exclusive: (Puyallup, supra, 301 U8. at

398), and that it is necessarily limited by the deplet-

able nature of the resources and thus may be regu-

lated to prevent their destruction (391 U.8. at 399,

401-403). But to diminish the treaty right to one of

mere sports fishing in common with other citizens

would give “the Indians ‘no right but such as they

would have without the treaty’” (391 U.S. at 397)

and thus would effectively abrogate the treaty right.

Such a result is foreclosed by this Court’s prior

Puyallup decision (391 U.S. at 397-398) and, as we

have shown in point I, supra (and as the trial court

found) it is in any event not necessary for the con-

servation of fish.

Moreover, Congress has recently reaffirmed the con-

tinuing vitality of treaty provisions guaranteeing In-

dian fishing rights. Public Law 280, both as originally

enacted and as amended,“ explicitly excepts from the

extensions of state civil and criminal jurisdiction au-

_ thorized thereunder all rights ‘afforded under Fed-

years earlier, and relied on that decision in Winters. 207 U.S.

at 577. The rationale of the two cdses is the same. Arizona v.

California recognized the reserved right of Indians along the

Colorado River to satisfy their present and future needs for

irrigation from that river’s already heavily appropriated flow

because only such a measure of water rights would fulfill the

purposes for which the United States reserved the water for

the Indians. 373 U.S. at 600-601.

% Act of August 15, 1953, 67 Stat. 588, 18 U.S.C. 1162, 28

U.S.C. 1860; Act of April 11, 1968, Title IV, 82 Stat. 78, 25

U.S.C. 1821.

22

eral :‘treaty,: agreement, or | statute with espectiAg

hunting, trapping, or fishing or the‘rontrol,, licensing,

or regulation thereof.” And, isfter .extensiveshearings

a 1964, the: Senate let. die.in comniittee. two. proposals

te. terminate Indian: fishing rights on: the. W est:-Coast,

Hearings before; the; Subcommmittee.on Indian; Affairs

of the, Senate ;\Gommittee.on Interior and Insular Af:

fairs, on-S.J,:Res;,170 and §.J.,Res.. 171, €8th Oong,

2d Sess. ‘These. ‘hearings, documented: the :continning

need of the Tribes; to. exercise their fishing rights :for

their sustenance’ and livelihood and refuted: claims

that. the. abolition of . Indian, fishing . rights .was ;re-

quired for the conservation‘of, fisheries, If, indeed,

Indian treaty-rights are in effect to be. abolished, Con:

gress, rather than. States, must act, and sheuld give

full. consideration to compensating the Tribes for any

rights taken away.

‘In its brief in this Court the Bavesiinie of Cems

of the State of Washington argues that any special

treaty right the Indians may have had was abolished

by the admission of the State into the Union onan

equal footing with other states, and that the treaty

phrase ‘‘in common with all citizens of the Territory”

means the Indians are bound by state fishing regula-

tions whether or not those regulations are shown to be

necessary for the conservation of fish (Br. 8-17). The

Department relies primarily on this Court’s decisions

in Ward v. Race Horse, 163 U.S. 504, and Kake v.

Egan, 369 U.S. 60.

These are the same authorities and the same argu-

ments that the Department of Game relied on when

the case was last here (Resp. Br. in No. 247, October,

%

Term, 1967, pPr-22--26). After full: consideration, those

uments .were rejected in this Court’s previous opin:

ign in this. case, 391 U.S. at.397-A00."?, And,,ag the court

below held, (Pet, App. No,:72-491,p-.571), these.con-

tentions of the Department are,also, foreclosed, hy the

State Supreme. Court’s previqus judgment in this.case,

which this Oourt.affirmed.”, ),..0 25 si atinyet =!

_.In,sum, the question presented on the remand from

this Court in Puyallup was. not, whether, the Indians

have, a special fishing right or..whether, that right ex-

empts. them, from state regulation except ag;shown to

be necessary for the conservation of. fish., ‘Those prin-

ciples had previously been established, by this Court’s

See also id. at 401, ‘n. 14, final two paragraphs.

The only decision which evet|émbraced the “equal footing”

doctrine as a limitation on the exercise of Indian treaty rights

after statehood was Ward v. Rice Hofse, 163 U.S. 504, At the

time it was rendered, Pare Horse was out ‘of ‘harmony with a

prior Supreme Court ruling on the effect of .statehood aets on

preexisting Indian rights. Blue Jacket v. Board of Commis-

sioners of Johnson County (The Kansas Indians), 5 Wall. 757,

755-756. Any doubts about the inapplicability of the doctrine

to Indian treaties were laid to rest with the tacit overruling

of the “equal footing” holding of Race Horse less than a decade

later in United States v. Winans, supra, 198 U.S. at 382-384.

See also McClanahan vy. Arizona State Tax Commission, No.

71-834, decided March 27, 1973. And see the Memorandum for

the United States as Amicus Curiae in Nos. 246, 247, and 319,

October Term, 1967, in which the same arguménts now made

by the Department of Game were answered.

“Nothing in Mescalero Apache Tribe v. Jones, No. 71-738,

decided March 27, 1973, suggests that a treaty provision ex-

pressly providing an off-reservation right can be ignored or

abrogated by a State. Nor is there any conflict between that

decision and the Court’s previous decision in this case. The

treaty is the “express federal law to the contrary” referred to

in the passage from Mescalero (slip op., p. 4) quoted by the

Department of Game (Br. 15).

$4

decisions and were reaffirmed in Puyallup. The Gite.

pera remand was whether the Btate’s régulatioiy

f' that'right were reasonable and ‘hecessary for the

_ cited SE aate Ble “did: not’ against

the Indians: As we have shown, ‘the State's’ prohibi-

tion of’ all Tndish’ net fishing for steethéad trout thi

the Puyallup River is not necessary forthe conserva:

tion of fish and gives'‘né reeognition to the special

Indian fishing right guaranteed by the treaty, and thus;

under this Court’s prior decision, was correctly found

by the trim} court to be an invalid diminution by the

State of a federal treaty right. Cf. Kolovrat v. Ore-

gon, 366 U.S. 187; Hauenstein v. Lynham, 100 US.

488. ;

iil

IN LIGHT OF THE HISTORY OF THIS LITIGATION, AN AP-

PROPRIATE REMEDY SHOULD ASSURE THAT THE INDIANS

_ARE AFFORDED THEIR FISHING RIGHTS FORTHWITH

If the Court agrees with our contention that the

State has ‘failed to show that its total prohibition of

Indian net fishing for steelhead trout in the Puyallup

River is necessary. for the conservation of fish and

does not discriminate against the Indians, then the

question of fashioning an adequate remedy arises.

This ease has been in litigation since 1963. Durifig”

most of that time thé Tribe has been deprived of all of

its treaty fishing rights, and it still remains deprived

of those rights with respect to steelhead trout. State

administrative determinations and judicial decisions

haye failed during this period to provide adequate

protection for the rights secured to the Puyallup

Tribe under the Treaty of Medicine Creek.

95

This Court,, of. course, cannot itself fashion: fishing

regulations for the Puyallup. River, But: it can and

should. hold, that, as applied to. treaty-protected In-

dians, the State’s total prohibition, of: net fishing for

steelhead trout violates the Treaty of Medicine Creek,

and that such fishing must he permitted forthwith.

This Court should. also hold that in adopting new. regu-

lations the Department of Game must act in s manner

that is both. procedurally, and substantively fair to the

Tribe. Substantively, it must sufficiently curtail sports

commercial fishery. Procedurally, the State should. be

required to provide. an, opportunity, for; the | Tribe’s

views to be heard. before it; adopts negulations affect-

ing the Tribe, Ag a-guide, we suggest the criteria that

have been, accepted by. both the State of, Oregon and

the various tribes there in handling-the'same problem

in that, State, As stated in Sehappy x, Swuth (United

States V, Oregon), 302 F, Supp. 899,912 (.D.: Ore.):

The - State must recognise: that : ‘the federal

right which the Indians have is. et from

the fishiig rights of others over which the state

has a broader latitude of regulatory control.and

that. the tribal entities.are interested parties to

any regulation affecting the treaty fishing right.

They; as well as their metiibers to whom the

regulations will be directly applicable; ‘are en-

titled t6 be heard on the subject and, ¢onsistent

with the need for dealing with emergency or

changing situations on short motive, to be given

appropriate notice and opportunity ‘to partici-

pate meaningfully in the rule-making ptiocéss.

( 36

‘Enithe interim, until valid regulations | are’ adopted

ur the State ‘after appropriate’ proceedings, the Puy.

allup Tribe should be allowed to enforée its own Pegi

lations “of steelhead fishing by members of the ‘Trike

and to adopt and ‘enforce further regulations designed

to assure a” sufficient ‘escapemeiit for spawning." ‘As

the record: in ‘this case shows, Indian tribes have with-

out ‘state supervision successfully’: regulated fishing by

their members within reservations although that’ regu-

lation 'nécessarily affects fishing elsewhere in ‘the

stream ‘system (see pp. 12,°15-16, supra.). Tribes have

also regulated off-vesérvation fishing by their members.

See Settler v. Yakima Tribal Court, 419 F. 2d 486 (C.A.

9), certiorari denied, 398 U.S. 903, decision on remand,

Civil No. 2378,’ E:D. Wask., -May’5; 1971; ™* Off-Reser-

vation Fishing Rights of Fndiaits $n Washington and

‘Oregon, 69: I.D: 68. Here; the Tribe’s interest in: main-

taining the'fishery on thé Puyallup River is as great

as that of the’State,.and should ‘be relied’ upon unless

and’ until: the State adopts a reguiatery program for

17 Such ‘Tribal “regulations are, of ‘course, valid. and en-

forceable ‘against’ tribal members regafdless of the co

existence of valid state regulation of the’ same activities. See

authorities cited infra. Department of the Interior regulations

also authorize assistance by the. United. States, where needed,

in. regulating off-reservation fishing. See 25. C.F.R. Part 256.

These Department of the Interior regulations were not intended

to pre-empt state law and thus, in our view, an Indian fishing

off-reservation in violation of valid tribal regulations would

have no féderal defense to enforcement against him by the

State of its fishing Jaws. See State v. Gowdy, 1 Ore. App. 42%,

462 P.2d 461.

18 We have selend a copy of the opinion with the Clerk.

27

steelhead trout fishing that gives adequate recognition

to the Tribe’s treaty rights.

CONCLUSION

For the foregoing reasons, the judgment of the

Supreme Court ‘of the State of Washington should

be reversed on the Tribe’s petition and affirmed on the

questions raised by the petition of the Department of

Game.

Respectfully submitted.

ERwIn N. Griswo.p,

Solicitor General.

Watace H. JOHNSON,

Assistant Attorney General.

LaWRENCE G. WALLACE,

Deputy Solicitor General.

Harry R. Sacuse,

Assistant to the Solicitor General.

Epmunp B. Cuark,

GLEN R. GoopsELL,

Attorneys.

JUNE 1973.

U.S. GOVERMENT PRINTING OFFICE: 10/3