414 U.S. 44 (1973), 72-481, Department of Game of Washington v. Puyallup Tribe

Docket Nº:No. 72-481
Citation:414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254
Party Name:Department of Game of Washington v. Puyallup Tribe
Case Date:November 19, 1973
Court:United States Supreme Court

Page 44

414 U.S. 44 (1973)

94 S.Ct. 330, 38 L.Ed.2d 254

Department of Game of Washington


Puyallup Tribe

No. 72-481

United States Supreme Court

Nov. 19, 1973

Argued October 10, 1973



Commercial net fishing by Puyallup Indians, for which the Indians have treaty protection, Puyallup Tribe v. Dept. of Game, 391 U.S. 392, forecloses the bar against net fishing of steelhead trout imposed by Washington State Game Department's regulation, which discriminates against the Puyallups, and as long as steelhead fishing is permitted, the regulation must achieve an accommodation between the Puyallups' net-fishing rights and the rights of sports fishermen. Pp. 45-49

80 Wash.2d 561, 497 P.2d 171, reversed and remanded.

DOUGLAS, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in which BURGER, C.J., and STEWART, J., joined, post, p. 49.

Page 45

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

In 1963, the Department of Game and the Department of Fisheries of the State of Washington brought this action against the Puyallup Tribe and some of its members, claiming they were subject to the State's laws that prohibited net fishing at their usual and accustomed places and seeking to enjoin them from violating the State's fishing regulations. [94 S.Ct. 332] The Supreme Court of the State held that the tribe had protected fishing rights under the Treaty of Medicine Creek, and that a member who was fishing at a usual and accustomed fishing place of the tribe may not be restrained or enjoined from doing so unless he is violating a state statute or regulation "which has been established to be reasonable and necessary for the conservation of the fishery." 70 Wash.2d 245, 262, 422 P.2d 754, 764.

On review of that decision, we held that, as provided in the Treaty of Medicine Creek, the

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

extends to off-reservation fishing, but that

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 discriminate against the Indians.

391 U.S. 392, 395, 398. We found the state court decision had not clearly resolved the question whether barring the "use of set nets in fresh water streams or at their mouths" by all, including Indians, and allowing fishing only by hook and line in these areas, was a reasonable and necessary conservation measure. The case was remanded for determination of that question and also "the issue of equal protection...

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