Amicus Curiae Brief — Department of Game of Wash. v. Puyallup Tribe

IN THE

Supreme Court of the United States

Ooroszr Term, 1972

—_—_—_—_—_—

Nos. 72-746 and 72-481

—_—_—_—_—_——

Tus Purauup Tare, Petitioner,

v.

Tx DEPARTMENT OF GAME OF THE STaTe OF

Wasuinaton, Respondent.

Tue DEPARTMENT OF GAME OF THE STaTe OF

Wasuineton, Petitioner,

IN THE

Supreme Court of the United States

OcroBEeR TERM, 1972

Nos. 72-746 and 72-481

THe PuyaLLup Trine, Petitioner,

Vv.

Tue DEPARTMENT OF GAME OF THE STATE OF

WASHINGTON, Respondent.

THE DEPARTMENT OF GAME OF THE STATE OF

WASHINGTON, Petitioner,

v.

THE PUYALLUP TRIBE, Respondent.

On Writs of Certiorari to the Supreme Court of the

State of Washington

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Jy * >

Ramona C. Bennett, the Muckleshoot Indian Tribe,

the Squaxin Island Tribe of Indians, the Nisqually

Indian Community, and the Sauk-Suiattle Indian Tribe

2

respectfully move for leave to file the attached brief

amici curiae in this case. The consent of the Solicitor

General, representing the Puyallup Tribe, has been

obtained. The consent of the attorney for the Depart-

ment of Game of the State of Washington has been

requested but was refused, although counsel has been

assured there will be no opposition to this motion.

The interest of Ramona C. Bennett arises from the

fact that she is a member of the Puyallup Indian Tribe

and serves on the Puyallup Tribal Council. Further,

she is the conditional cross petitioner in No. 72-5437,

seeking review of the decision of the Washington State

Supreme Court which is here under review. Ms,

Bennett had requested that her petition be granted

only if the petition of the Department of Game (No.

72-481) should be granted. That petition was granted

March 19, 1973, but at the conclusion of the Court’s

1973 term, Ms. Bennett’s petition was still pending.

Ms. Bennett was an intervenor in the remand proceed-

ings below and actively participated through her legal

counsel in the superior court and state supreme court

proceedings. She is concerned as a Puyallup Indian

who fishes herself with being able to exercise treaty

fishing rights at the tribe’s usual and accustomed places.

The extent to which Ms. Bennett, her family, and her

fellow tribal members are able to exercise their treaty

secured rights free from state infringement may be

determined by the Court’s decision in this case.

The Squaxin Island Tribe of Indians and the

Nisqually Indian Community. located in Western

Washington are parties to the Medicine Creek Treaty,

10 Stat. 1132, December 26, 1854, to which the Puyallup

Indian Tribe is also a party. The Nisqually’s fishing

rights were the subject of this Court’s decision in

3

Kautz v. Department of Game (No. 319) which was

consolidated with and decided under the name Puyallup

Tribe v. Department of Game, 391 U.S. 392 (1968).

The decision of the Puyallup case on remand was ap-

pealed, decided by the Washington Supreme Court,

and is now before the Court in this case.

The Muckleshoot Indian Tribe and the Sauk-Suiattle

Indian Tribe are located in Western Washington and

are parties to the Treaty of Point Elliott, 12 Stat.

997, January 22, 1855. This treaty and several others

negotiated in 1854 and 1855 between the Indian tribes

of the Northwest and the United States by Governor

Isaac Stevens reserve to the Indian tribes in language

virtually identical to that in Article III of the Treaty

of Medicine Creek the right to continue fishing at their

usual and accustomed places.’ ;

To the extent that a decision in this case rests upon

an interpretation of the language in the Medicine Creek

Treaty relating to fishing, it will affect the rights of

each of the amici tribes. They each have several mem-

bers whose fishing is a vitally important source of food

and income for them and their families. In addition,

the continued maintenance of their traditional fishing

culture is the key to preserving tribal and ethnic iden-

tity for these and other Northwest fishing tribes.’

‘Article III of the Treaty of Medicine Creek provides, in |

pertinent part,

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 ....

2See generally, American Friends Service Committee, Uncom-

mon Controversy: Fishing Rights of the Muckleshoot, Puyallup

and Nisqually Indians (1970).

4

The tribes and Ms. Bennett here bring to the Court’;

attention and discuss the following matters:

1, The reasoning in this Court’s decisions relating

to other reserved Indian rights is applicable to the

treaty reserved Indian fishing right.

2. Tribal and federal regulation of the fishery must

be considered before a determination of necessity for

conservation (as required by this Court’s earlier deci-

sion) can be made.

3. Restriction of Indian fishing is ‘‘necessary’’ only

after other means of achieving conservation goals are

shown to be inadequate.

4. Determinations of conservation necessity should

be made (a) in advance of enforcement of state laws,

and (b) by a federal court.

The matters discussed in this brief, while consistent

with the arguments, which will be advanced on behalf

of the Puyallup Tribe, will not be as fully explicated

elsewhere.

Respectfully submitted,

Davw H. GetcHes

Counsel for Amici Curiae

1506 Broadway

Boulder, Colorado 80302

Native AMERICAN Ricuts F'unp

Of Counsel

June, 1973

_—_

TABLE OF CONTENTS

. Page

Iwrenest OF AMICI CUBIAE .............-+eeeeeeeeee 1

SumMaBY OF ARGUMENT ...........-++seeee- ean 2

ARGUMENT 0... cccccc cece ccccccccccscccsccccccnces 3

L Tue Puyatiup Trise Has a Reservep Ricut To

Fisu at Irs Usuau anp AccusToMED Puaces.... 3

IL Terpat AnD Feperat Recutations Must Be Con-

SIDERED IN OrpeR To Make a DETERMINATION

Taat ENForceMENT or State Laws AGAINST

Inpians Is NEecEssaRY FOR CONSERVATION

A. The effect of the tribe’s regulatory powers . 10

B. The effect of the federal government’s regu-

latory activity ..........ccccccccccccccees 12

IIL Strate Recuiation or Inpianw Treaty FisHine

Must Be a Last RESOBT ...........2 eee eeeees 13

A. Restriction of non-treaty fishing must pre-

cede regulation of Indian fishing .......... 13

B. No problems of equal protection are created

by imposing stricter regulations upon non-

treaty fishermen .........ccccccccccccccee 15

IV. A Juprcran DeTrerMINATION oF NECESSITY FOR

ConservaTion SHOULD PREcEDE ENFORCEMENT OF

Any State Recuxuation or Inpian Fisnine .... 17

A. Advance determinations of conservation ne-

cessity will prevent waste of judicial re-

sources and denial of treaty rights ........ 17

B. A federal court is best suited to interpret

Indian treaties and to make determinations

of conservation necessity for state regulation 20

ConcLusIon

eee eee eeee ee ee ee eeeeeeeeeeeeeeeeeeeeee

ii Contents Continued

TABLE OF AUTHORITIES

Casks : Page

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

CRONE eecnywcee kb erences tbe <s oes ees ache cues 5

Arizona v. California, 373 U.S. 546 (1963) ........... 4,5

Department of Game v. Puyallup Tribe, 80 Wash. ay

561, 497 P.2d 171 (1972) ..............0..0.. 5, 20

Department of Game v. Puyallup Tribe, 70 Wash. 04

245, 422 P.2d 754 (1957) 0... cece ccc ccc eens 16, 19

Dick v. United States, 208 U.S. 340 (1908) .......... 10

Geer v. Connecticut, 161 U.S. 519 (1896) ............ 7, 16

Great Lakes Inter-Tribal Council v. Voight, 309 F.

Supp. 60 (W.D. Wis. 1970) .................05. 23

Johnson v. Gearlds, 234 U.S. 422 (1914) ............. 10

K — Ns District Court of Montana, 400 U.S. 423

CRORE dbk keh ea Wied tne 9.9404004040 Soa eens clus

Maison v. Confederated Tribes of the Umatilla Indian

Reservation, 314 F.2d 169 (9th Cir. 1963) ...... 15, 16

Makah Indian Tribe v. Schoettler, 192 F.2d 224 (9th

CAE OLE oan ckencestnnedan cd tecdedpeedes cane 16

Mattz v. Arnett, — U.S. —, 41 U.S.L.W. 4808 (US.,

June j1, 1973) ‘vupahecaveughhevbdessses ¥eensxa 9, 10

Menominee Tribe v. United States, 391 U.S. 404 (1968) 10

McClanahan v. Arizona Tax Comm’n, — U.S. —, 36

La Bd. TBD (1GTB) occ coc c coos Me htc ccc ccccens 9, 12

Missouri v. Holland, 252 U.S. 416 (1920) ......... 9, 13, 15

People v. Joiren 384 Mich. 539, 185 N.W.2d 375

EERE. Sica revises cetssadsiesannesenneds ese 2

Perrin v. United States, 232 U.S. 478 (1914) ......... 10

Puyallup Tribe v. Department of Game, 391 U.S. 392

| EA erry eres ery or 2, 7, 8, 12, 13, 14, 15, 16

Settler 5} Yakima Tribal Court, 419 F.2d 486 (9th Cir.

NORE 5s bee has a pennaes ana tase binekaesieers 11

Seymour v. Superintendent, 368 U.S. 551 (1962) ..... 9

Sohappy v. Smith, 302 F.Supp. 899 (D. Ore. 1969) ... 2,6,

14, 15, 16

State v. Soudy 1 Ore. App. 424, 462 P.2d 461 (1970) . 11

State v. Gurnoe, 53 Wis.2d 390, 192 N.W.2d 892 ( 1972) 2

State v. Moses, 79 Wash. 2d 104, 483 P.2d 832 (1971),

cert. denied, 406 U.S. 910 ( 1972) Pe ee Se 2, 8, 22

State v. Satiacum, 80 Wash. 2d 492, 495 P.2d 1035

(1972), petition for cert. filed, 41 U.S.L.W. 3301

(U.8., Oct. 15, 1972) (No. 72-552) .............- 2,7

State v. Satiacwm, 50 Wash. 2d 513, 314 P.2d 400

CRED Fase es beeededeeesenresececevesevxaien 16

—

Contents Continued iii

Page

State v. Tinno, 94 Ida. 759, 497 P.2d 1386 (1972) ...2, 6,14

Toomer v. Witsell, 334 U.S. 385 (1948) ............-. 22

Tulee v. Washington, 315 U.S. 682 (1942) ........ 7, 15,17

United States v. Ahtanum Irrig. Dist., 236 F.2d 321

(9th Cir. 1956), cert. denied, 352 U.S. 988; 330

F.2d 897 (9th Cir. 1956); 338 F.2d 307 (9th Cir.

1964), cert. denied. 381 U.S. 924 ...........-+..-- 5

United States v. Forty-Three Gallons of Whiskey, 93

US. 908 (1876) «.....ccccccccccccccccccccccces 10

United States v. Holliday, 70 U.S. (3 Wall.) 407 (1866) 10

United States v. Kagama, 118 U.S. 375 (1885) ....... 21

Warren Trading Post v. Arizona Tax Comm’n, 380

DE. OS (200G) . oc irrisevcccccccrcessecteccess 12

Washington Kelpers Ass’n v. State of Washington,

81 Wash. 2d 410, 502 P.2d 1170 (1973), cert. de-

nied, — U.S. —, 41 U.S.L.W. 3608 (U.S., May 14,

WTS) vcccccvcessnavasvesevecicressarssressens 22

Williams v. Lee, 358 U.S. 217 (1959) ..........+..-- 11, 12

Winans v. United States, 198 U.S. 371 (1905) .. .3, 4, 16, 20

Winters v. United States, 207 U.S. 564 (1908) ....... 4

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............ 17

SratuTes, TREATIES AND REGULATIONS:

CUBS. 8 UG cc cacccvccccsvcescvesessscrrsetwes 10

oil a Serer rrr rr errr rer rr rrr errr 11

TUBS, 8 OFT cc cvcvccccccvvcccsssvescsernsecsese 11

5 UBC. 8 1BDB 2... cccccccccccccccccccvccccosece 11

TO UBC. SUBST ow. cc ccccvccccdccccccccvcccccosens 23

SUBS. CMTE ccc cccvvcccvveccvccstcccerecsnes 23

C.FB. Part 256 0... ncccccccccccccccccscomcsses 13

Treaty of Medicine Creek ..,.......--+eeeeeeseeees 3

MISCELLANEOUS:

American Friends Service Committee, Uncommon Con-

troversy: Fishing Rights of the Muckleshoot, Pu-

yallup, and Nisqually Indians (1970) ..........-. 21

Comment, ‘‘State Power and the Indian Treaty Right

To Fish,’’ 59 Calif.L.Rev. 485 (1971) ........... 2

Johnson, ‘‘The State v. Indian Off Reservation Fish-

ing: A United States Supreme Court Error,’’ 47

Wash.L.Rev. 207 (1972) ........cecccccccee sew + om

22 % Seo errerrerrerrr er reri rT cir re ee 11

EO me

-—-

a aediaaed

IN THE

Supreme Court of the United States

OctoBER TERM, 1972

Nos. 72-746 and 72-481

THE PUYALLUP Trisz, Petitioner,

v.

THE DEPARTMENT OF GAME OF THE STATE OF

WasuHineton, Respondent.

THE DEPARTMENT OF GAME OF THE STATE OF

WasHINGTON, Petitioner,

v.

THE PuyaLLup Trise, Respondent.

On Writs of Certiorari to the Supreme Court of the

State of Washington

BRIEF OF AMICI CURIAE

RAMONA C. BENNETT

MUCKLESHOOT INDIAN TRIBE

SQUAXIN ISLAND TRIBE OF INDIANS

NISQUALLY INDIAN COMMUNITY

SAUK-SUIATTLE INDIAN TRIBE

INTEREST OF AMICI CURIAE

The interests of amici curiae Ramona C. Bennett,

the Muckleshoot Indian Tribe, the Squaxin Island

Tribe of Indians, the Nisqually Indian Community,

2

and the Sauk-Suiattle Indian Tribe are set forth fully

in the Motion for Leave to File Brief Amici Curiae

which accompanies this brief.

SUMMARY OF ARGUMENT

This Court’s earlier decision in this case’ hag

prompted diverse interpretations by state and federal’ :

courts? and by scholars.2 Articulation of further

guidelines for the manner in which courts should

determinations of necessity for conservation—the pre-

requisite for state regulation of Indian treaty fishing—

is needed. In addition to the need for guidelines for

treaty interpretation, the prescription of specific pro-

cedures for making these determinations in advance of

their enforcement is in order.

Amici urge that this Court’s treatment of cases re--

quiring determinations of the extent of other reserved

rights held by Indians is applicable here. Secondly,

because the state has power to regulate only for conser-

vation necessity, the exercise of such power should be

as a last resort. Further, it is argued that tribal and

federal regulations must be considered before a state

? Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968).

2 E.g., Department of Game v. Puyallup Tribe, 80 Wash.2d 561,

497 P.2d 171 (1972) ; State v. Tinno, 94 Ida. 759, 497 P.2d 1386

(1972) ; State v. Satiacum, 80 Wash.2d 492, 495 P.2d°1035 (1972),

’ petition for cert. filed, 41 U.S.L.W. 3301 (U.S., Oct. 15, 1972) (No.

72-552) ; State v. Moses; 79 Wash.2d 104, 483 P.2d 832 (1971),

cert, denied 406 U.S. 910 (1972) ; State v. Gurnoe, 53 Wis.2d 390,

192 N.W.2d 892 (1972); People v. Jondreau, 384 Mich. 539, 185

N.W.2d 3%5 (1971) ; Sohappy v. Smith, 302 F.Supp. 899 (D. Ore.

1969).

* See, e.g., Johnson, ‘‘The State v. Indian Off Reservation Fish-

ing: A United States Supreme Court Error,’’ 47 Wash.L.Rev. 207

(1972) ; Comment, ‘‘State Power and the Indian Treaty Right to

Fish,’’ 59 Calif.L.Rev. 485 (1971).

3

regulation can be found to be ‘‘necessary for conser-

vation.”’ Finally, amici urge that determinations of

conservation necessity be made by a federal court be-

fore enforcement of state regulations in order to avoid

suppression of Indian treaty fishing which later may

be declared lawful, and to avoid a great waste of judi-

cial resources.

ARGUMENT

L The Puyallup Tribe Has a Reserved Right to Fish at Its

‘Usual and Accustomed Places.

The right of Puyallup tribal members to fish at usual

and accustomed places outside their reservation boun-

daries is a right reserved by the tribe, not a right

granted to it, in the Medicine Creek Treaty. Just as

the tribe reserved certain lands while ceding others, it

reserved the right to fish outside reserved lands. While

the fishing rights were, by their terms, to be exercised

at usual and accustomed places outside reserved lands,

the rights being exercised are reserved rights—reserva-

tions themselves. Thus, this case must not be seen as

a non-reservation case.

The reserved right notion originated with this

Court’s decision in Winans v. United States, 198 U.S.

371 (1905), in which interpretation of the same treaty

language relative to fishing in a land area not retained

by the tribe in its treaty was in issue. The Court held:

The right to resort to the fishing places in contro-

versy was a part of larger rights possessed by the

Indians, upon the exercise of which there was not

a shadow of impediment, and which were not much

less necessary to the existence of the Indians than

the atmosphere they breathed.... [T]he treaty

was not a grant of rights to the Indians, but a grant

of rights from them,—a reservation of those not

granted. And the form of the instrument and its

$ ny

pecially im the ares of Indian water rights. Winters

+t. Cedied States, B71 UB. 564 (1908), is the leading

case om reeerved Indian water rights. The Court there

fie Culbwade River have a right to sufficient

“mets a me

5

by the tribes. If that left little or even no water for

the white settlers, that was the inevitable consequence

of the treaty * which, after all, made possible the settle-

ment of the Northwest.

In Alaska Pacific Fisheries v. United States, 248

U.S. 78 (1918), this Court found that:

The purpose of creating a reservation was to en-

courage, assist and protect the Indians in their ef-

fort to train themselves to habits of industry, be-

come self-sustaining, and advance to the ways of

civilized life."

In accord with this purpose, the Indians were held

to have rights not only to the lands specifically reserved

to them, but to tlie adjacent fishing grounds. In so

holding, the Court looked to the circumstances in

which the reservation was created including ‘‘the power

of-Congress in the premises, the location and character

of the lands, the situation and needs of the Indians,

and the object to be obtained.’’ * :

The purpose of including a clause in each of the

treaties negotiated by Governor Isaac Stevens with the

several Northwest Indian Tribes in 1854 and 1855 has

been discussed in several cases. For instance, this

*373 U.S. at 600.

*See United States v. Ahtanum Irrig. Dist., 236 F.2d 321, 327

(9th Cir. 1956), cert. denied 352 U.S. 988; 330 F.2d 897 (9th Cir.

1956) ; 388 F.2d 307 (9th Cir. 1964), cert. denied 381 U.S. 924.

1248 U.S. at 89.

#248 U.S. at 87.

® The historical dependence of Indians who were parties to the

Stevens Treaties upon fishing for their subsistence and livelihood

was well articulated by the United States District Court in Oregon:

From the earliest known times, up to and beyond the time of

the treaties, the Indians comprising each of the intervenor

7

2 ae 6

Court has stated, ‘‘We are impressed by the strong de-

sire the Indians had to retain the right to hunt and

tribes were primarily a fishing, hunting and gathering people

dependent almost entirely upon the natural animal and veget.

tive resources of the region for their subsistence and culture,

They were heavily dependent upon such fish for their sub.

sistence and for trade with other tribes and later with the

settlers. They cured and dried large quantities for year

around use. With the advent of canning technology in the

latter half of the 19th Century the commercial exploitation of

the salmonid resource by non-Indians increased tremendously,

Indians, fishing under their treaty-secured rights, also partici.

pated in this expanded commercial fishery and sold many fish

to non-Indian packers and dealers.

During the negotiations which led to the signing of the treaties

the tribal leaders expressed great concern over their right to

continue to resort to their fishing places and hunting grounds.

They were reluctant to sign the treaties until given assurances

that they could continue to go to such places and take fish

and game there. The official records of the treaty negotiations

prepared by the United States representatives reflect this con-

cern and also the assurances given to the Indians on this point

as inducement for their acceptance of the treaties.

Sohappy v. Smith, 302 F.Supp. 899, 907 (D. Ore. 1969). The Idaho

Supreme Court has also taken cognizance of the treaty purposes:

The gathering of food from open lands and streams constituted

both the means of economic subsistence and the foundation of a

native culture. Reservation of the right to gather food in

this fashion protected the Indians’ right to maintain essential

elements of their way of life, as a complement to the life defined

by the permanent homes, allotted farm lands, compulsory ed-

ucation, technical assistance and pecuniary rewards offered in

the treaty. Settlement of the west and the rise of industrial

America have significantly circumscribed the opportunities of

contemporary Indians to hunt and fish for subsistence and to

maintain tribal traditions. But the mere passage of time has

not eroded the rights guaranteed by a solemn treaty that both

sides pledged on their honor to uphold. As part of its con-

servation program, the State must extend full recognition to

these rights, and the purposes which underlie them.

State v. Tinno, supra, 94 Ida. at 766, 497 P.2d at 1393.

—_

7

fish in accordance with the immemorial custom of their

Tribes.’’*° From these discussions, it is clear that the

Indians intended to be able to continue fishing as they

had before the treaties in order to maintain their liveli-

hood and cultural identity. Thus, amici submit that

the right extends to sufficient fish to meet subsistence

and trading needs. No less would fulfill the treaty ’s

purpose.

Of course, the right cannot and should not extend so

far as to permit the waste of fish.” And it is logical

that the right does not permit harvesting fish in excess

of the number which safely can be taken consistent

with the escapement necessary to perpetuate the re-

source. Apparently in recognition of this latter limi-

tation, and of the fact that the states are generally

charged with management and regulatory power over

fish and game within their boundaries,” this Court held

that ‘“‘the overriding police power of the State, ex-

pressed in non-discriminatory measures for conserving

fish resources, is preserved.””” In order to put to

rest any doubt about the manner in which that police

power may be exercised, we urge this Court to provide

the State of Washington with guidance as to the ex-

tent of the treaty rights held by the Puyallup Tribe.

Articulation of the standard by which reserved rights

are measured—sufficient to fulfill the purposes of the

reservation—will provide the state and the courts with

10 Tulee v. Washington, 315 U.S. 682, 684 (1942).

11 Compare, State v. Satiacum, supra.

12 Geer v. Connecticut, 161 U.S. 519 (1896).

18 Pyyallup Tribe v. Department of Game, supra at 399.

8

a starting point for understanding the purpose and

nature of the federally secured right which they seek

to regulate. Misunderstanding of the Indian treaty

fishing right has led in the past to extensive prohibi-

tion of Indian treaty fishing as a means of protecting

a fishing privilege for other citizens. Amici believe

that this state practice violates the Supremacy Clause

of the Constitution in that a federal treaty is the sn-

preme law of the land. Further, rights of individual

tribal members are violated when their special

rights are ignored while citizens without such rights

are protected.

II, Tribal and Federal Regulations Must Be Considered in

Order to Make a Determination that Enforcement of State

Laws Against Indians Is Necessary for Conservation.

This Court has said, most recently in Puyallup Tribe

v. Department of Game, that there is a sphere of per-

missible state regulation of fishing by Indians with

treaty rights. The state power to regulate may be ex-

ercised, however, only when it is shown that state reg-

ulation is necessary for conservation.“ Until the effect

of other applicable regulatory schemes which may op-

erate upon the fishery is considered, a determination of

necessity cannot be made intelligently. This proposi-

tion is rooted not only in common sense, but in estab-

lished legal principles in the case of Indian fishing.

Nevertheless, the State of Washington sees its role in

regulating fishing within its territory as plenary.”

Regulation of Indian fishing is reposed in tribal and

a

———

14 Td. at 399 and 401.

18 See State v. Moses, supra.

_———

9

federal authority and the exercise of state power in the

area must be seen as supplementary.”*

To view the state’s regulatory jurisdiction over

Indians exercising fishing rights reserved by their

tribes as primary or exclusive would raise two impor-

tant, recurring issues. First, it would create an inter-

ference with the tribe’s ability to govern itself. Sec-

ond, the federal government’s plenary authority, and

possible preemptive activity, in the area would be ig-

nored.

The collage of overlapping jurisdictions must be

seen against the backdrop of a conservative Congres-

sional attitude toward extension of state jurisdiction

over Indian affairs." Where Indians, even outside

Indian country, are engaged in transactions over which

Congress has asserted its constitutional power, any

state interference with the exercise of this power is in-

valid. For example, Congress in the past has prohib-

ited liquor sales to Indians outside Indian reservations

and its exercise of jurisdiction was upheld by the

—_——

16 Missouri v. Holland, 252 U.S. 416 (1920), holds that the right

of a state to manage game within its boundaries is not infringed by

a federal treaty and regulations under it which regulate game within

the state in that under the Supremacy Clause the sovereign power

of the state must yield to paramount federal power.

7 This Court has recognized that only express Congressional acts

are effective to extend state jurisdiction over Indian country.

Mattz v. Arnett, —— U.S. ——, 41 U.S.L.W. 4808 (U.S., June 11,

1973) ; Seymour v. Superintendent, 368 U.S. 551 (1962) ; see also

McClanahan vy. Arizona Tax Comm’n., —— U.S. ——, 36 L.Ed.2d

129 (1973) ; Kennerly v. District Court of Montana, 400 U.S. 423

(1971).

10

courts.” Regulation of rights secured to Indians under

federal treaties a fortiori is an area in which there ig

substantial federal interest. To be sure, Congress hag

dealt jealously with the question of allowing states

to extend their jurisdiction over treaty secured In-

dian fishing rights. For instance, the general statute

providing for the assumption of state jurisdiction over

Indians specifically prohibits the exercise of state juris-

diction in such a manner as-to ‘‘deprive any Indian or

any Indian tribe, band, or community of any right,

privilege, or immunity afforded under federal treaty,

agreement, or statute with respect to hunting, trapping,

or fishing or the control, licensing or regulation there-

of. 99 19

A. The effect of the tribe's regulatory powers.

An impairment of the tribe’s ability to govern its

members is the result of confining to the state all reg-

ulatory power over the exercise by individual tribal

members of rights reserved by the tribe in a solemn

18 Johnson v. Gearlds, 234 U.S. 422 (1914); Perrin v. United

States, 232 U.S. 478 (1914); Dick v. United States, 208 U.S. 340

(1908) ; United States v. Forty-Three Gallons of Whiskey, 93 US.

188 (1876); United States v. Holliday, 70 U.S. (3 Wall.) 407

(1866). This Court has recognized that federal power in these

cases is not unlimited and ‘‘does not go beyond what is reasonably

essential to their [the Indians] protection, and that, to be effective,

its exercise must not be purely arbitrary, but founded on some rea-

sonable basis.’’ Perrin v. United States, supra at 486. Thus, fed-

eral power over Indian treaty fishing appropriately extends so far

as is necessary to assure fulfillment of the purposes of the treaty.

19 Public Law 83-280, 18 U.S.C. § 1162. Cf. Menominee Tribe v.

~— States, 391 U.S. 404 (1968), where this Court held that the

tion expressed by this phrase in Public Law 83-280 indicates

tha treaty reserved fishing rights should survive even termination

of the tribe. See also Mattz v. Arnett, supra.

11

treaty with the United States. This is an area in which

the Puyallup Tribe has the power to regulate and which

it does in fact regulate. The Constitution and By-Laws

of the Puyallup Tribe providing for tribal self-gov-

ernment have been approved by the Secretary of the

Interior pursuant to the Indian Reorganization Act.”

The Puyallup Tribe, like many other treaty tribes, has

exerted its regulatory powers over the exercise of fish-

ing rights reserved in treaties." Enforcement of the

‘regulations is generally carried out by officers under

tribal supervision. Prosecutions are handled in tribal

courts with recourse to federal district courts by means

of habeas corpus proceedings.” Further, fishing in

violation of tribal regulations is considered to be out-

side the scope of the treaty right and thus subjects

an Indian so fishing to prosecution for a state fishing

regulation he might also be violating.”

It is well established that a state may not exercise

its jurisdiction over Indians such that it ‘‘would un-

2025 U.S.C. §§ 476 et seq. ‘‘To assure adequate government

of the Indian tribes [Congress] enacted comprehensive statutes in

1834 regulating trade with Indians and organizing a Department

of Indian Affairs, 4 Stat. 729, 735. Not satisfied solely with cen-

tralized government of Indians, it encouraged tribal governments to

become stronger and more highly organized. See, e.g., the Wheeler-

Howard Act, §§ 16, 17, 48 Stat. 987, 988, 25 U.S.C. §§ 476, 477.”’

Williams v. Lee, 358 U.S. 217, 220 (1959).

21 See Tr. 217; see also App. 103. A.copy of the tribe’s current

regulations has been lodged with the’ clerk by the Solicitor General.

2225 U.S.C. § 1303. See also Settler v. Yakima Tribal Court, 419

F.2d 486 (9th Cir. 1969) (habeas corpus from alleged unconstitu-

tional prosecution for violation of tribal off reservation fishing

regulations).

% State v. Gowdy, 1 Ore. App. 424, 462 P.2d 461 (1970) ; 69 ID.

68, 70 (1962).

12

dermine the authority of the tribal courts over Reser-

vation affairs and hence would infringe on the right of

the Indians to govern themselves.’”’* Although the

case from which this language is taken involved actiy-

ity between Indians and non-Indians within boundaries

of an Indian reservation, it is applicable with even

greater force, here where the governing authority of

a tribe over its own members exercising a treaty-re-

served right is frustrated by the imposition of state

authority without any consideration of tribal regula-

tions or the tribe’s jurisdiction to regulate. This Court

has recently suggested in McClanahan v. Arizona Taz

Comm'n, supra, that treaties be read ‘‘with this tradi-

tion of sovereignty in mind.’’* To do so demands, at

the least, that the state and any reviewing court take

into aceount the effect of tribal regulations in deter-

mining whether a state regulation is ‘‘necessary”’ for

conservation pursuant to the mandate of this Court’s

decision in Puyallup Tribe v. Department of Game.

B. The effect of the federal government's regulatory activity.

A second factor which should be considered in mak-

ing a determination of the validity of any state regu-

lation of Indian fishing is the extent to which the fed-

eral government has occupied the area of regulation.

Where the government has a regulatory scheme, no

state scheme of regulation operating in the same area

is permitted.* Here the federal government has pro-

4 Williams v. Lee, supra at 223. See also Warren Trading Post

v. Arizona Tax Comm’n, 380 U.S. 685 (1965) ; McClanahan v. Ari-

zona Taz Comm’n, supra.

25 36 L.Ed.2d at 136.

26 See Warren Trading Post v. Arizona Tax Comm’n, supra.

13

mulgated regulations for the fishery in question.” Just

as no exercise of state power inconsistent with the lan-

guage or purpose of a federal treaty is lawful, neither

is the exercise of such power in an area occupied by

federal regulation implementing that treaty.”

Amici submit that a state must consider federal regu-

lation of the Puyallup fishery before it undertakes to

design its regulatory scheme and that it must avoid

any conflict between the two. A recognition of the

conservation which may be effected by federal regula-

tions, just as those which will be achieved by tribal reg-

ulation, will certainly have a bearing on the existence

or degree of ‘‘necessity’’ for any state regulations.

Ill. State Regulation of Indian Treaty Fishing Must be a

Last Resort.

A. Restriction of non-treaty fishing must precede regulation of

Indian fishing.

Instead of restricting citizen groups greater in num-

ber and in political power whose catch of salmonid

fish account for the vast majority of fish caught each

year, the State of Washington has elected to prohibit

or restrict the fishing of a handful of Indians.” As the

Idaho Supreme Court has recognized, treaty Indians

have subsistence and cultural interests in hunting and

725 C.F.R. Part 256. The Executive undeniably has the power

to develop regulations to implement treaties entered into by the

United States.

28 Cf. Missouri v. Holland, supra.

* The original record in Puyallup Tribe v. Department of Game

reflects the fact that Indian fishermen accounted for between 3

percent and 5 percent of the total catch with the remainder being

harvested by non-Indian commercial and sport fishermen. Rs.A-32,

178-79.

14

fishing that are rooted more deeply than the recrea-

tional interests asserted by sportsmen.” . z

Interpreting the earlier decision of this Court in

this case, the United States District Court for the Dis-

trict of Oregon held that:

The state may regulate fishing by non-Indians to

achieve a wide variety of management or ‘‘con-

servation”’ objectives. Its selection of regulations

to achieve these objectives is limited only by its

own organic law and the standards of reasonable-

ness required by the Fourteenth Amendment. But

when it is ting the federal right of Indians

to take fish at their usual and accustomed places

mi does not saad jectis mapas igh =) prescribing

e managemen ives an regulato

means of achieving them. The state may not qual-

ify the federal r by subordinating it to some

other state ob or policy. It may use its po-

lice power only to the extent necessary to prevent

the exercise of that right in a manner that will

imperil the continued existence of the fish re-

source.

Following this approach, amici submit that occasion-

ally the State of Washington must shift the burdens of

its ‘‘fishery management”’ objectives in order to avoid

impairing treaty guaranteed Indian fishing rights when

restrictions must be imposed on someone to insure

perpetuation of fishery resources.”

&

8° State v. Tinno, supra, 94 Ida. at 765, 497 P.2d at 1392.

31 Sohappy v. Smith, supra at 908.

2 This Court has indicated that because the standard by which

state power to regulate treaty fishing is necessity for conservation,

‘*the measure of the legal propriety of those kinds of conservation

measures is distinct from the federal constitutional standard con-

cerning the scope of the police power of a State.’ Puyallup Tribe

15

Before a state regulation of Indian treaty fishing

can be found to be ‘‘necessary,’’ amici submit that it

must be the least restrictive which can be imposed

consistent with assuring the necessary escapement of

fish for conservation purposes.” In order to meet this

test, other avenues designed to achieve the conserva-

tion objectives must be exhausted. Making regula-

tion of Indian treaty fishing a last resort to protect

the resource stands in sharp contrast to the Washing-

ton Supreme Court’s ‘‘Indians last’’ approach,™ but

is compelled by this Court’s direction to that court

to determine whether regulations are necessary for

conservation.

B. No problems of equal protection are created by imposing

stricter regulations upon non-treaty fishermen.

The crux of the argument posited by the Washing-

ton State Department of Game before this Court now

and at the time this case was first presented is that

affording any special treatment in the state regulatory

scheme to Indians possessing treaty protected fishing

rights would be contrary to the equal protection clause

v. Department of Game, supra at 401, n. 14. Thus, more severe

regulation, even prohibition, of non-treaty fishing may be proper.

See also Sohappy v. Smith, supra at 908, 911; Maison v. Confed-

erated Tribes of the Umatilla Indian Reservation, 314 F.2d 169, 174

(9th Cir. 1963) ; Tulee v. Washington, supra at 685.

* See Sohappy v. Smith, supra at 907.

“The Washington State Supreme Court held that ‘‘the catch of

the steelhead sports fishery in the Puyallup River leaves no more

than a sufficient number of steelhead for escapement’’ thus pre-

cluding the possibility of an Indian fishery because the river is

effectively fished out by sport fishermen. Department of Game v.

Puyallup Tribe, supra, 80 Wash.2d at ——;497 P.2d at 178-179.

This approach flaunts the Supremacy Clause as well as Missouri

v. Holland, supra, and this Court’s holding in Puyallup Tribe v.

Department of Game, supra.

16

of the Fourteenth Amendment, to the United States

Constitution. In continuing to make this contention

after this Court’s 1968 decision, the state points with

confidence to the last sentence of the opinion which

mandates that findings ‘‘on the conservation issue must

also cover the issue of equal protection implicit in the

phrase ‘in common with.’’’* The state position is

totally without merit. The Indians’ right to fish pur-

suant to treaty must be contrasted to the mere privi-

lege of non-treaty fishermen.” No other citizens have

a right to fish. Numerous courts have considered the

identical argument reiterated by this same litigant and

have soundly rejected it.”

Not only is the argument advanced by the state at

odds with existing law, it turns on its head the mean-

ing of this Court’s admonition concerning equal pro-

tection. The reasonable meaning of the language of

the decision is that any violation of the Indians’ right

to equal protection should be avoided.” There are at

% Puyallup Tribe v. Department of Game, supra at 403. See

Appellants Brief, pp. 8, et seq.

-.8 Geer vy. Connecticut, supra at 532. The extent of paramount

“reserved Indian rights recognized by this Court is discussed supra

at p. 5. pa!

37 See, 4 .» Winans v. United States, supra at 379-381; Tulee v.

Washington, supra at 684; Department of Game v. Puyallup Tribe,

70 Wash.2d 245, 250, 422 P.2d 754, 757-758 (1957); Sohappy v.

Smith, supra at 905; Makah Indian Tribe v. Schoettler, 192 F.2d

224, 226 (9th Cir. 1951) ; State v. Satiacum, 50 Wash.2d 513, 523-

524, 314 P.2d 400, 405 (1957) ; Maison v. Confederated Tribes of

Umatilla Indian Reservation, supra at 171.

* In its opinion, the Court prescribes that state regulations, where

shown to be ‘‘necessary,’’ may not ‘‘discriminate against Indians”

(391 U.S. 398), and that only ‘‘non-discriminatory measures for

conserving the fish resources’’ are proper (391 U.S. 399). Thus,

read as a whole, the thrust of the opinion’s equal protection

language is clear.

17

least three distinct ways in which such equal protec-

tion violations can and do occur:

a. Recognizing no greater rights in persons with

special federally established rights (Indians) than in

those without such rights. Equal protection is denied

to Indians who are thus unable to obtain the full pro-

tection of state law for their rights.

b. Laws which seem fair on their face but which op-

erate to the detriment of Indians. Laws which provide

for closure of particular fishing areas or for restric-

tions on use of certain gear may be reasonable exercises

of legislative or administrative discretion and seem-

ingly apply-to all persons. However, if they operate to

eliminate primarily Indian fishing areas or prohibit

fishing with gear used primarily by Indians, the effect

is discriminatory.”

_ ¢ A regulatory scheme which provides for the ful-

‘fillment of the needs and objectives of other user

groups but which fails to consider Indian needs and the

purposes of their treaty reserved rights. Leaving In-

dians without a classification, effectively excluding

them and their needs and rights from the rule making

process, while implementing a comprehensive scheme

providing for sport and commercial fishing, discrimi-

nates against Indians as a class.

IV. A Judicial Determination of Necessity for Conservation

Should Precede Enforcement of any State Regulation of

Indian Fishing.

A. Advance determinations of conservation necessity will pre-

vent waste of judicial resources and denial of treaty rights.

The requirement ‘‘necessary for conservation’? im-

plies, as we have already discussed, a last resort. Thus,

"See Yick Wo v. Hopkins, 118 U.S. 356 (1886); ef. Tulee v.

Washington, supra at 685.

J

i

i

f

!

;

i

copendiinam of pudieasl reeares om Indian fishing

tigi: comme ie Reet Gikeetveted by this case which

= sow comelicsliing its tenth year of continuous liti-

Gatti ower fie legality of regulations for fishing

eae pet (Whe rererd in the superior

woatt of Washington coanpries several thousand

a ping weeke of courtroam proceed-

ie «= Wie eetiigee ewe Beem beld in the state

seen court cecalitemg i reperted decisions fil-

iege come srernty fee pages This is the second time

the Cong ines commbeved essentially the same issues.

tered te Pepaiiap Trite is enly one of mord”

nereathy ‘tewethy Unclitem tribes im the State of Washing-

ove towering fiectniag rights om rivers throughout the state.

dhs sevivnes ms fle treamendous expenditure of judicial

neers ames be the gravest effect of the inefficient

19

system of judicial review of state regulations after

they have reached the enforcement stage is upon the

tribe and its fishermen. The decade of this case’s pen-

dency has been filled with uncertainty for them. As

the record here reflects, the state’s position has vacil-

lated considerably and now differs tremendously even

as between the Departments of Game and Fisheries. In

the meantime, Indians who have dared to fish have

suffered arrests, loss of valuable gear, and prosecution.

There are numerous criminal cases fought each year

Indians in Washington for illegal fishing in

which a treaty defense has been asserted. These cases

represent only a fraction of the total number of prose-

eutions of Indians with treaty fishing rights because a

‘complete assertion of a defense based upon treaty rights

requires expensive and lengthy litigation which is

beyond the financial capabilities of the average citizen,

let alone an impecunious Indian fisherman. ‘As stated

by the Washington State Supreme Court at the time

of its first consideration of this case:

A multiplicity of arrests for violation of fishing

regulations, which involve the jailing and deten-

tion for considerable periods of individuals and

consequent hardship to them and their families,

seems to us the unnecessarily hard way of deter-

mining whether they have immunity from certain

fishing regulations.“

Amici need not here take exception with the holding

of the Washington State Supreme Court in the deci-

sion that is here under review that injunction may be

a proper remedy to prevent threatened mass violations

of regulations which have been determined to be nec-

* Department of Game v. Puyallup Tribe, supra, 70 Wash.2d at

348, 422 P.2d at 756.

20

essary for conservation. It is sufficient to urge that

the determination of necessity, and hence enforce.

ability must be made by a court in special pro.

ceedings for that purpose before there is any enforce-

ment or injunction against Indians exercising treaty

fishing rights. This would avoid the evils which have

resulted in this case—years of Indian treaty fishing

prevented by enforcement of state regulations pending

a decision on their necessity for conservation. This

would depart from the ‘‘presumption of validity”

which the Washington Supreme Court would attach

to administrative determinations of fishing regulations

applicable to Indians exercising treaty rights.“

B. A federal court is best suited to interpret Indian treaties and

to make determinations of conservation necessity for state

regulation.

As we have shown, a reserved right is measured in

terms of what is needed to fulfill the purposes of the

reservation. Thus, the propriety of any state regula-

tion affecting Puyallup Indian fishing at usual and ac-

customed fishing places must be determined in light

of the purposes of the Treaty of Medicine Creek. In

determining what these purposes are and whether they

are being fulfilled, familiar canons of Indian treaty

construction must be employed. This Court has often

said that it ‘‘will construe a treaty with the Indians

as ‘that unlettered people’ understood it, and as jus-

tice and reason demand... .’’“

Agencies of the state government are ill-suited to

engage in such treaty interpretation, to say the least.

The Washington State Department of Game has evi-

41 See Department of Game v. Puyallup Tribe, supra, 80 Wash.2d

at , 497 P.2d at 179.

42 Winans v. United States, supra at 380.

21

denced its attitude toward Indian fishing by its con-

sistent refusal to recognize any special Indian treaty

fishing rights, even after this Court’s earlier decision

in this ecase.* The juxtaposition of the obdurate re-

fusal of this state agency, which is charged with pro-

mulgating fishing regulations, to accept the fact that

there is any Indian treaty fishing right at the tribe’s

usual and accustomed places, with the tribe’s strong,

and in this case, justified feeling that it has been in-

hibited in the exercise of rights guaranteed by a fed-

eral treaty, creates a familiar scene in Indian affairs.

The situation was well characterized by this Court in

United States v. Kagama, 118 U.S. 375 (1885):

These Indian Tribes are the wards of the Nation.

They are communities dependent on the United

States.... They owe no allegiance to the States,

and receive from them no protection. Because

of local ill feeling, the people of the States where

they are found are often their deadliest enemies.“

In a situation where the exercise of Indian rights

is frequently met with hostility, it is unreasonable to

expect that regulation of Indian fishing will be even

handed. The state’s brief presents arguments which

purportedly militate against affording Puyallup In-

dians the fishing rights for which they bargained. At

some length the state discusses the value of steelhead as

a sport caught fish compared to its value for food,

“recreational’’ and ‘‘aesthetic values associated with

the sport angling activities,’’ the extent of the Game

‘Department’s planting program, and other matters

43 See, e.g., Brief for the Department of Game, Appellant, p. 17.

#118 U.S. at 384. Concerning the special problems of Western

Washington Indian treaty fishermen see Chapter V, American

Friends Service Committee, Uncommon Controversy: Fishing Rights

of the Muckleshoot, Puyallup, and Nisqually Indians (1970).

22

irrelevant to regulating for conservation. These ar

guments depart considerably from the touchstone of

conservation necessity which this Court found to be a ~

prerequisite for imposition of state regulatory power,

The Washington State Supreme Court seemingly has

accepted the administrative agency’s reverence for

sport fishing in its decision that no Indian fishing will

be permitted if all of the fish can be taken by sport fish-

ermen. The state court has consistently upheld the

concept of state ownership of game within its bound-

aries. In a recent case involving the treaty fishing

rights of members the amicus Muckleshoot Tribe it

stated :

Fish, while in a state of freedom, are the prop-

erty of the sovereign power in whose waters the

fish are, and the state owns the fish in its sovereign

capacity as the representative of and for the bene-

fit of all people in common.“

Although this Court has rejected the ‘‘ownership”

theory as ‘‘but a fiction,’’ “ the Washington court con-

tinues to apply it, even to deny the fishing rights of

Indian treaty fishermen.

Enforcement of regulations of Indian treaty fishing

in the atmosphere which exists in Washington without

a prior court review invites continued deprivation of

rights secured by treaty. Such court review is most

45 State v. Moses, supra, 79 Wash.2d at 113, 483 P.2d at 837.

This proposition was recently reaffirmed by the state supreme court

in a case not involving Indian fishing, but citing Moses with

approval. Washington Kelpers Ass’n v. State of Washington, 81

Wash.2d 410, 502 P.2d 1170 (1973), cert. dented —— U.S. ——, 41

U.S.L.W. 3608 (U.S. May 14, 1973).

46 Toomer V. Witsell, 334 U.S. 385, 402 (1948).

23

appropriately the task of a federal court. The inter-

position of the federal judiciary in the state admin-

istrative process where Indian treaty secured fishing

rights are involved is entirely appropriate: interpre-

tation of the effect of treaties with the United States

is a federal question.” This is true no less with In-

dian treaties than it is with international treaties. And

federal jurisdiction over rights reserved by Indian

tribes in treaties with the federal government are mat-

ters with which the federal judiciary is particularly

concerned. Thus, the forum for determining the pro-

priety of state fishing regulations should be a federal

court. Reposing this task in a federal court will con-

tribute to a resolution of the problem of overlapping

regulatory jurisdiction as between tribal, federal and

state governments and will result in an overall reduc-

tion in court congestion.

CONCLUSION

The holding of the-Washington State Supreme Court

relegating Indians having special treaty fishing rights

to a position subordinate even to persons without such

rights, and allowing a total prohibition of Indian net

fishing for steelhead, should be reversed. As the su-

728 U.S.C. §§ 1831 and 1362 provide Indians with access to

federal courts in cases arising ‘‘under the Constitution, laws, or

treaties of the United States.’’ Cf. Great Lakes Inter-Tribal Coun-

cil v. Voight, 309. F.Supp. 60, 64 (W.D. Wis. 1970) where the

court stated :

To require exhaustion of state remedies, or to abstain from

the exercise of jurisdiction until the state has undertaken to

clarify the applicability of its fish and game laws to plain-

tiffs on Indian lands, would be to dilute the Congressional

intention to provide Indians with a federal forum for just

such questions as those presented here.

perior court found, there was no showing by the stats

that the prohibition of Indian fishing was necessary

for conservation. Any showing that a new state reg.

ulation restricting Indian fishing is necessary for con:

servation requires that there be a determination prior

to enforcement that:

1. Conservation needs will not be met by tribal or

federal regulations;

2. Regulation of Indians is a last resort after state

attempts to meet conservation needs by the ex-

ercise of its regulatory powers over others.

Amici specially ask that this Court take notice of

the gross deprivation of fishing rights, which results

from continued enforcement’‘of state regulations which

restrict Indian treaty fishing during prolonged litiga-

, tion challenging those regulations. To avoid this un-

* eonscidnable result, prior eourt approval of such state

regulation should be required. The courts with un-

questionable jurisdiction to do the job are the federal

courts. ;

Respectfully submitted,

Davi H. GETCHES

Counsel for Amici Curiae

1506 Broadway

Boulder, Colorado 80302

NATIVE AMERICAN Ricuts FunD

Of Counsel

June, 1973