433 U.S. 165 (1977), 76-423, Puyallup Tribe, Inc. v. Department of Game of Washington

Docket Nº:No. 76-423
Citation:433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667
Party Name:Puyallup Tribe, Inc. v. Department of Game of Washington
Case Date:June 23, 1977
Court:United States Supreme Court

Page 165

433 U.S. 165 (1977)

97 S.Ct. 2616, 53 L.Ed.2d 667

Puyallup Tribe, Inc.


Department of Game of Washington

No. 76-423

United States Supreme Court

June 23, 1977

Argued April 18, 1977



After protracted litigation, the Washington Superior Court entered a judgment against petitioner Puyallup Tribe reciting that the court possessed jurisdiction to regulate the Tribe's fishing activities both off and on its reservation, and limiting the number of steelhead trout that tribal members might net in the Puyallup River each year, and the Tribe was directed to file a list of members authorized to exercise treaty fishing rights, and to report to respondent Washington Department of Game and to the court the number of steelhead caught by the treaty fishermen each week. The Washington Supreme Court affirmed, with a slight modification. The Tribe contends that the doctrine of sovereign immunity requires that the judgment be vacated; that the state courts have no jurisdiction to regulate fishing activities on the reservation; and that, in any event, the limitation on the steelhead catch is not a necessary conservation measure.


1. Absent an effective waiver or consent, a state court may not exercise jurisdiction over a recognized Indian tribe, but tribal sovereign immunity here does not impair the Superior Court's authority to adjudicate the rights of individual tribal members over whom it properly obtained personal jurisdiction, Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 (Puyallup I), and hence only those portions of the judgment that involve relief against the Tribe itself must be vacated in order to honor the Tribe's valid claim of immunity. Pp. 168-173.

2. Neither the Tribe nor its members have an exclusive right, under the Treaty of Medicine Creek, to take steelhead passing through the reservation. It not only appears that the Tribe, pursuant to Acts of Congress passed after the treaty was entered into, alienated in fee simple absolute all areas of the reservation abutting on the Puyallup River, but, moreover, the Tribe's treaty right to fish "at all usual and accustomed [97 S.Ct. 2618] places" is to be exercised "in common with all citizens of the Territory," Puyallup I, supra, at 398, and is subject to reasonable regulation by the State pursuant to its power to conserve an important natural resource. The fair apportionment of the steelhead catch between Indian net fishing and non-Indian sport fishing directed by Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup II),

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could not be effective if the Indians retained the power to take an unlimited number of steelhead within the reservation. Pp. 173-177.

3. It appears that the state court complied with the mandate of Puyallup II, supra, at 48-49, and used a proper standard of conservation necessity in limiting the steelhead catch, where such limitation was based primarily on expert testimony for both parties. P. 177.

4. Although the Tribe properly resists the state courts' authority to order it to provide information with respect to the status of tribal members and the size of their catch, it may find that its members' interests are best served by voluntarily providing such information, but the state courts on remand must continue to respect the Tribe's right to participate in the proceedings without treating such participation as qualifying the Tribe's right to claim sovereign immunity. P. 178.

86 Wash.2d 664, 548 P.2d 1058, vacated and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 178. BRENNAN, J., filed an opinion dissenting in part, in which MARSHALL, J., joined, post, p. 179.

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STEVENS, J., lead opinion

MR. JUSTICE STEVENS delivered the opinion of the Court.

On April 8, 1975, after more than 12 years of litigation, including two decisions by this Court,1 the Superior Court of the State of Washington for Pierce County entered a judgment against the Puyallup Tribe of Indians. That judgment recited that the court had jurisdiction to regulate the fishing activities of the Tribe both on and off its reservation, and limited the number of steelhead trout that members of the Tribe may catch with nets in the Puyallup River each year. The Tribe was directed to file a list of members authorized to exercise treaty fishing rights, and to report to the Washington State Department of Game, and to the court, the number of steelhead caught by its treaty fishermen each week. The judgment, with a slight modification, was affirmed by the Supreme Court of Washington, 86 Wash.2d 664, 548 P.2d 1058 (1976).

The Tribe, supported by the United States as amicus curiae, contends in this Court that the doctrine of sovereign immunity requires that the judgment be vacated, and that the state courts of Washington are without jurisdiction to regulate fishing activities [97 S.Ct. 2619] on its reservation. The Tribe also argues that the limitation of the steelhead catch imposed by those courts is not, in any event, a necessary conservation measure. We hold that, insofar as the claim of sovereign immunity is

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advanced on behalf of the Tribe, rather than the individual defendants, it is well founded, but we reject petitioner Tribe's other contentions.


The complaint as originally filed by respondent Department of Game of the State of Washington (hereafter respondent),2 named 41 individuals, including "John Doe and Jane Doe, members [of the Tribe],"3 as defendants. It alleged that the defendants, claiming to be immune from the State's conservation laws, were fishing extensively in the Puyallup River with set nets and drift nets in a manner which would virtually exterminate the anadromous fishery if not enjoined. Anadromous fish are those which spend most of their life in the open sea, but which return as adults to freshwater streams, such as the Puyallup River, to spawn. The steelhead is an anadromous fish. The prayer of the complaint sought a declaration that the defendants were bound to obey the State's conservation laws and an injunction against netting the runs of anadromous fish.

The trial court entered a temporary restraining order enjoining each of the defendants from netting fish in the Puyallup River, and directing that service be made on each defendant.

In response, a "Return on Temporary Restraining Order and Answer to Complaint" was filed by "the PUYALLUP TRIBE of INDIANS, by and through the Chairman of the Tribal Council, MR. JEROME MATHESON." App. in

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Puyallup I, O.T. 1967, No. 247, p. 8 (hereafter App. in Puyallup I). The return and answer used the term "tribe" in two senses, first as a collective synonym for the individual defendant-members,4 and also as referring to a sovereign Indian nation.5 It asserted an exclusive right to the fish in the Puyallup River, describing that right somewhat ambiguously as a "property right which belongs to the Tribe and is exercised by the Tribe members under the Treaty of Medicine Creek." Ibid. Therefore, while filed in the name of the Tribe, the return and answer was also tendered on behalf of the individual defendants.6

Throughout this long litigation, the Tribe has continued to participate in the dual capacity of a sovereign entity7 and as

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a [97 S.Ct. 2620] representative of its members who were individual defendants.8 The Tribe has repeatedly asserted its sovereign immunity from suit, arguing that neither it nor Congress has waived that immunity.9

In Puyallup I, we addressed the problems of tribal immunity and state court jurisdiction in a footnote:

Petitioners in No. 247 argue that the Washington courts lacked jurisdiction to entertain an action against

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the tribe without the consent of the tribe or the United States Government (citing United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, and Turner v. United States, 248 U.S. 354), viewing the suit as one to "extinguish a Tribal communal fishing right guaranteed by federal Treaty." This case, however, is a suit to enjoin violations of state law by individual tribal members fishing off the reservation. As such, it is analogous to prosecution of individual Indians for crimes committed off reservation lands, a matter for which there has been no grant of exclusive jurisdiction to federal courts.

391 U.S. 392, 396-397, n. 11.

Thus, Puyallup I settled an important threshold question in this case -- regardless of tribal sovereign immunity, individual defendant members of the Puyallup Tribe remain amenable to the process of the Washington courts in connection with fishing activities occurring off their reservation. That conclusion was predicated on two separate propositions worthy of restatement here.

First, even though the individual defendants were members of the Tribe, and therefore entitled to the benefits of the Treaty of Medicine Creek, that treaty, as construed by this Court, does not confer the complete individual immunity they claim. The State may qualify the Indians' right to fish "at all usual and accustomed places." Specifically, we held that the

manner of fishing, the size of the take, the restriction [97 S.Ct. 2621] 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.

Id. at 398.

Second, whether or not the Tribe itself may be sued in a state court without its consent or that of Congress, a suit to enjoin violations of state law by individual tribal members is permissible. The...

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