Department of Game of Washington v. Puyallup Tribe Puyallup Tribe v. Department of Game of Washington 8212 481, 72 8212 746

• Citation: 94 S.Ct. 330,414 U.S. 44,38 L.Ed.2d 254
• Decision Date: 19 November 1973
• Docket Number: Nos. 72,s. 72
• Parties: DEPARTMENT OF GAME OF the State of WASHINGTON, Petitioner, v. The PUYALLUP TRIBE et al. PUYALLUP TRIBE, Petitioner, v. DEPARTMENT OF GAME OF the State of WASHINGTON. —481, 72—746
• Court: United States Supreme Court

414 U.S. 44

94 S.Ct. 330

38 L.Ed.2d 254

DEPARTMENT OF GAME OF the State of WASHINGTON, Petitioner,

v The PUYALLUP TRIBE et al.

PUYALLUP TRIBE, Petitioner,

v. DEPARTMENT OF GAME OF the State of WASHINGTON.

Nos. 72—481, 72—746.

Argued Oct. 10, 1973.

Decided Nov. 19, 1973.

Syllabus

Commercial net fishing by Puyallup Indians, for which the Indians have treaty protection, Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689, 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—59.

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

Joseph L. Coniff, Jr., Olympia, Wash., for petitioner in No. 72—481 and for respondent in No. 72—746.

Harry R. Sachse, New Orleans, La., for respondents in No. 72 481 and petitioner in No. 72—746.

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. 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, 88 S.Ct. 1725, 1728. 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 implicit in the phrase 'in common with" as used in the Treaty. Id., at 400, 403, 88 S.Ct., at 1730, 1931.

In Washington the Department of Fisheries deals with salmon fishing, while steelhead trout are under the jurisdiction of the Department of Game. On our remand the Department of Fisheries changed its regulation to allow Indian net fishing for salmon in the Puyallup River (but not in the bay or in the spawning areas of the river). The Department of Game, however, continued its total prohibition of net fishing for steelhead trout. The Supreme Court of Washington upheld the regulations imposed by the Department of Fisheries which, as noted, were applicable to salmon; and no party has brought that ruling back here for review. The sole question tendered in the present cases concerns the regulations of the Department of Game concerning steelhead trout. We granted the petitions for certiorari, 410 U.S. 981, 93 S.Ct. 1495, 36 L.Ed.2d 177.

The Supreme Court of Washington, while upholding the regulations of the Department of Game prohibiting fishing by net for steelhead in 1970, 80 Wash.2d 561, 497 P.2d 171, held (1) that new fishing regulations for the Tribe must be made each year, supported by 'facts and data that show the regulation is necessary for the conservation' of the steelhead, id., at 576, 497 P.2d, at 180; (2) that the prohibition of net fishing for steelhead was proper because 'the catch of the steelhead sports fishery alone in 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., at 573, 497 P.2d, at 178 179.

The ban on all net fishing in the Puyallup River for steelhead¹ grants, in effect, the entire run to the sports fishermen. Whether that amounts to discrimination under the Treaty is the central question in these cases.

We know from the record and oral argument that the present run of steelhead trout is made possible by the planting of young steelhead trout called smolt and that the planting program is financed in large part by the license fees paid by the sports fishermen. The Washington Supreme Court said:

'Mr. Clifford J. Millenbac(h), Chief of the Fisheries Management Division of the Department of Game, testified that the run of steelhead in the Puyallup River drainage is between 16,000 and 18,000 fish annually; that approximately 5,000 to 6,000 are native run which is the maximum the Puyallup system will produce even if undisturbed; that approximately 10,000 are produced by the annual hatchery plant of 100,000 smolt; that smolt, small steelhead from 6 to 9 inches in length, are released in April, and make their way to the sea about the first of August; that during this time all fishing is closed to permit...