391 U.S. 392 (1968), 247, Puyallup Tribe v. Department of Game of Washington

Docket Nº:No. 247
Citation:391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689
Party Name:Puyallup Tribe v. Department of Game of Washington
Case Date:May 27, 1968
Court:United States Supreme Court
 
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Page 392

391 U.S. 392 (1968)

88 S.Ct. 1725, 20 L.Ed.2d 689

Puyallup Tribe

v.

Department of Game of Washington

No. 247

United States Supreme Court

May 27, 1968

Argued March 25-26, 1968

CERTIORARI TO THE SUPREME COURT OF WASHINGTON

Syllabus

Respondents brought these actions in the state court seeking declaratory relief concerning rights which petitioner Indians asserted by virtue of Article III of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians and certain conservation measures adopted by the State of Washington with respect to its territorial waters. Under that provision of the treaty, the

right of taking fish at all usual and accustomed grounds and stations, is . . . secured to said Indians, in common with all citizens of the Territory. . . .

The fish to which the Treaty rights in these cases relate are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup and Nisqually Rivers. To catch these fish for their own use and for commercial purposes, the Indians have used set nets, which Washington undertook to regulate. The State Supreme Court held that these fishing rights can be regulated by the State, and remanded the causes to the trial court to determine if the regulations were reasonable and necessary.

Held:

1. The State may, in the interest of conservation, regulate fishing by the Indians "in common with" the fishing by others. Pp. 397-401.

2. Whether the use of set nets at locations where the Indians placed them is permissible is a question not reached on the record. Pp. 401-403.

No. 247, 70 Wash.2d 245, 422 P.2d 754; No. 319, 70 Wash.2d 275, 422 P.2d 771, affirmed.

Page 393

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

These cases present a question of public importance which involves in the first place a construction of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians in 1854 (10 Stat. 1132) and secondly the constitutionality of certain conservation measures adopted by the State of Washington allegedly impinging on those treaty rights.

Page 394

These suits were brought by respondents in the state court against the Indians for declaratory relief and for an injunction. The trial court held for respondents and, with exceptions not relevant to our problem, the Supreme Court affirmed in part and remanded for further findings on the conservation aspect of the problem. Department of Game v. Puyallup Tribe, 70 Wash.2d 245, 422 P.2d 754; Department of Game v. Kautz, 70 Wash.2d 275, 422 P.2d 771. We granted the petitions for certiorari and consolidated the cases for oral argument. 389 U.S. 1013.

While the Treaty of Medicine Creek created a reservation for these Indians, no question as to the extent of those reservation rights, if any, is involved here.1 Our

Page 395

question concerns the fishing rights protected by Article III, which, so far as relevant, reads as follows:

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, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands. . . .

The fish to which the Treaty rights pertain in these cases are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup River and the Nisqually River. The steelhead is a trout; the salmon are [88 S.Ct. 1727] of four species -- chinook, silver, chum, and pink. They come in from the ocean, pass through the salt water of Puget Sound, enter the fresh waters at the mouths of rivers, and go up these rivers to spawn. The adult salmon die after spawning, but not necessarily the steelhead. In time, the fry return to the ocean and start the cycle anew.

People fish for these species far offshore.2 As respects fishing within its territorial waters, Washington specifies the time when fishing may take place, the areas open to fishing, and the gear that may be used.3

Page 396

Fishing licenses are prescribed.4 Steelhead may be taken only by hook,5 and not commercially. Salmon may be taken commercially with nets of a certain type in certain areas.6 Set nets or fixed appliances are barred in "any waters" of the State for the taking of salmon or steelhead.7 So is "monofilament gill net webbing."8

Nearly every river in the State has a salmon preserve at its mouth,9 and Commencement Bay at the mouth of the Puyallup River is one of those preserves.10

The Puyallup Indians use set nets to fish in Commencement Bay and at the mouth of the Puyallup River and in areas upstream. The Nisqually Indians use set nets in the fresh waters of the Nisqually River. These Indians fish not only for their own needs, but commercially as well, supplying the markets with a large volume of salmon. The nets used are concededly illegal if the laws and regulations of the State of Washington are valid, and it is to that question that we now turn.11

Page 397

[88 S.Ct. 1728] The "right of taking fish at all usual and accustomed places, in common with" citizens of the Territory under a treaty with the Yakimas was involved in United States v. Winans, 198 U.S. 371. The lands bordering the Columbia River at those places were acquired by private owners who, under license from the State, acquired the right to fish there and sought to exclude the Indians by reason of their ownership. The Court held that the right to fish at these places was a "continuing" one that could not be destroyed by a change in ownership of the land bordering the river. 198 U.S. at 381. To construe the treaty as giving the Indians "no rights but such as they would have without the treaty," 198 U.S. at 380, would be "an impotent outcome to negotiations and a convention which seemed to promise more and give the word of the Nation for more." Ibid. In Seufert Bros. Co. v. United States, 249 U.S. 194, the Court construed the same provision liberally so as to include all "accustomed places" even though the Indians shared those places with other Indians and with white men, rejecting a strict, technical construction not in...

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