Department of Game v. Puyallup Tribe, Inc.
| Citation | 497 P.2d 171,80 Wn.2d 561 |
| Decision Date | 04 May 1972 |
| Docket Number | No. 41822,41822 |
| Parties | DEPARTMENT OF GAME of the State of Washington, Respondent and Cross-Appellant, Department of Fisheries of the State of Washington, Appellant, v. The PUYALLUP TRIBE, INC., a federal organization, et al., Respondents and Cross-Appellants. |
| Court | United States State Supreme Court of Washington |
William M. Gingery, J. L. Coniff, Asst. Attys. Gen., Olympia, for appellant.
John Sennhauser, Malcolm S. McLeod and Wettrick, Toulouse, Lirhus & Hove and Arnold J. Barer, Jerald E. Olson, Seattle, Stan Pitkin, U.S. Atty., Dept. of Justice, Washington, D.C., for respondents.
This appeal arises from a disposition by the trial court of a remand by this court in the case of Department of Game v. Puyallup Tribe, Inc., 70 Wash.2d 245, 422 P.2d 754 (1967). 1
The action was instituted in the Superior Court of Pierce County in 1963 by the Department of Fisheries of the state of Washington (appellant) and the Department of Game of the state of Washington (respondent and cross-appellant), seeking by declaratory judgment to determine whether certain named individuals as members of the Puyallup Indian Tribe and the Puyallup Tribe (respondents and cross-appellants) were immune from the application of state conservation measures under their claimed rights to fish for anadromous fish in the Puyallup River under article 3 of the Treaty of Medicine Creek (10 Stat. 1132), which is 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: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding horses, and shall keep up and confine the latter.
The Department of Fisheries and the Department of Game further sought a permanent injunction restraining the members of the tribe, and the tribe, from violating any fishing laws of this state or conservation regulations promulgated thereunder.
The trial court concluded that the Puyallup Tribe no longer existed as an entity and that its members no longer had any rights under the treaty; that there was no longer a Puyallup Indian Reservation and that the Puyallup Indians had no fishing rights within what had been the reservation; that they were subject to state conservation laws and regulations as were all citizens, and the court permanently enjoined the defendants and all members of the 'Puyallup Tribe' from fishing in the Puyallup River watershed and Commencement Bay in any manner contrary to the laws of the state of Washington, or to the rules and regulations of the departments.
Upon appeal to this court in that case, we held in summary in Department of Game v. Puyallup Tribe, Inc., Supra, at pages 260--262, 422 P.2d at page 763:
In summary: We have rejected the Departments' argument that the Indian treaties are of no force and effect and that the state may repudiate them at will.
We have ruled that the trial court had no jurisdiction to determine whether or not there has been a termination of the Puyallup Indian Tribe, and that the tribe continues to exist, at least so long as it is recognized as such by the appropriate agencies of the United States, or until Congress passes a termination act.
We have agreed with the trial court that there is no longer a Puyallup Indian Reservation, and that the Puyallup Indians no longer have any special or treaty rights to fish thereon because it was once a reservation; however, we hold that they continue to have a right to fish at usual and accustomed grounds and stations and that any regulations of the Departments limiting or restricting those rights must be reasonable and necessary for the preservation of the fishery.
The state has clearly met that test, at least to the extent that it has established that continued use by the defendants of their drift nets and set nets would result in the nearly complete destruction of the anadromous fish runs in the Puyallup River and that a regulation prohibiting the use of such nets was necessary for the preservation of the fishery.
We are, therefore, in accord with the conclusion of the trial court that an injunction should be entered in this case; however, the injunction entered by the trial court is much too broad. It permanently enjoins individual defendants and members of the federal organization known as the 'Puyallup Tribe' from fishing in the Puyallup River watershed and Commencement Bay in any manner that is contrary to the rules and regulations of the Department of Fisheries of the State of Washington and the Department of Game of the State of Washington. It is predicated on the trial court's determination that the defendants have no treaty rights.
The cause must be remanded to the trial court for the entry of a judgment and decree predicated upon the proposition that the defendants do have treaty rights, but that they are subject to conservation regulations which are reasonable and necessary to preserve the fishery.
The essence of this opinion is--and the decree, as reframed, should so reflect: (1) If a defendant proves that he is a member of the Puyallup Tribe; and (2) He is fishing at one of the usual and accustomed fishing places of that tribe; (3) He cannot be restrained or enjoined from doing so, unless he is violating a statute, or regulation of the Departments promulgated thereunder, which has been established to be reasonable and necessary for the conservation of the fishery.
The injunction should be tailored to the particular situation. A specific act or acts should be enjoined on the basis that there has been a violation of a statute or statutes, or a regulation or regulations promulgated thereunder, and that such regulation or regulations are reasonable and necessary for the preservation of the fishery. The findings, conclusions, and judgment in this case should be rewritten to show clearly the basis and the extent of the injunction.
The judgment and decree appealed from is set aside, and the cause is remanded for the purposes indicated in this opinion.
The United States Supreme Court granted certiorari in this case, Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968), and unanimously affirmed this court on May 27, 1968, with the following conclusion, at pages 401--403, 88 S.Ct. at page 1730:
Whether the prohibition of the use of set nets in these fresh waters was a 'reasonable and necessary' (70 Wash.2d, at 261, 422 P.2d, at 764) conservation measure was left for determination by the trial court when the Supreme Court, deeming the injunction in No. 247 too broad, remanded the case for further findings. When the case was argued here, much was said about the Pros and the Cons of that issue. Since the state court has given us no authoritative answer to the question, we leave it unanswered and only add that any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase 'in common with.'
(Footnotes omitted.)
The remand trial in the Superior Court commenced on September 21, 1970.
In the meantime, the Department of Fisheries took action which they considered was consistent with our decision in Puyallup and with the decision of the United States Supreme Court, by limiting the commercial net fishery in the East Bay Pass area of Puget Sound to permit a larger escapement of salmon for the Puyallup River, and adopted regulations to permit a Puyallup Indian Fishery in the Puyallup River. These respective regulations were the following:
(121) WAC 220--47--040 and WAC 220--47--060 as last amended are superseded in part by the following emergency regulation:
It shall be unlawful to take, fish for and possess salmon taken with purse seine and gill net gear in that portion of Puget Sound Salmon Fishing Area 6 lying between lines projected from Point Robinson Light to Des Moines Light and from Browns Point Light to Piner Point on Maury Island from 9:00 a.m. September 18 until further notice.
Section 3. This Order shall take effect as required by R.C.W. 34.04.040.
Dated this 18th day of September, 1970.
WAC 220--47--115--PUYALLUP RIVER--INDIAN FISHERY.
It shall be unlawful to take, fish for or possess salmon taken for commercial purposes in waters of the Puyallup River and its tributaries, except that it shall be lawful for enrolled members of the Puyallup Indian tribe to take, fish for and possess salmon taken for commercial purposes with gill net and set net gear in that portion of the Puyallup River lying between the City of Puyallup and the 11th Street Bridge, in Tacoma, during the period September 21 through October 23, 1970, subject to the following regulations:
(1) It shall be unlawful to engage in this fishery during weekly closures from 6:00 p.m. Wednesday to 6:00 p.m. Sunday.
(2) It shall be unlawful to engage in this fishery with any set net extending more than 1/3 the width of the river.
(3) It shall be unlawful to engage in this fishery with gill net gear containing mesh larger than 6 1/2 inches stretch measure.
(4) It shall be unlawful for any person fishing pursuant to these regulations to fish for salmon with net gear in any manner, time or place contrary to these regulations.
Evidence introduced by the Department of Fisheries at the trial on remand, was in justification of the action of the department as being within the ambit of conservation of the salmon fishery as related to the run in the Puyallup River for the year 1970.
The Department of Game failed to recognize any right of the Puyallup Indians under the Medicine Creek Treaty, other than their right to fish in the same manner and in...
To continue reading
Request your trial
-
United States v. State of Washington, Civ. No. 9213—Phase I.
...Attorney represented the Puyallup Tribe pursuant to 25 U.S.C. § 175 and private counsel represented certain members thereof. (80 Wash.2d 561, 497 P.2d 171, 173). 23. The first time that the question of a possible distinction between naturally propagated and artificially propagated fish with......
-
United States v. State of Wash.
...fishing) was necessary for conservation purposes and whether it was nondiscriminatory. The State courts upheld the regulation, 80 Wash.2d 561, 497 P.2d 171 (1972), but the Supreme Court struck it down as discriminatory "because all Indian net fishing is barred and only hook-and-line fishing......
-
Department of Game v. Puyallup Tribe, Inc.
...by the Department of Fisheries were reasonable and consistent with the necessary conservation standards. Department of Game v. Puyallup Tribe, Inc., 80 Wash.2d 561, 497 P.2d 171 (1972). In regard to steelhead, we stated that while the Indians may have a right to a net fishery, nevertheless ......
-
Fritz v. Gorton
...scope of review which results as a concomitant of an action for declaratory judgment. As stated in Department of Game v. Puyallup Tribe, Inc., 80 Wash.2d 561, 576, 497 P.2d 171, 180 (1972), rev'd on other grounds, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 We must remember that this case was......
-
Pacific Northwest Indian Treaty Fishing Rights
...provided new fishing regulations were made annually for the tribes. Department of Game v. Puyallup Tribe, 80 Wash. 2d 561, 571, 575, 497 P.2d 171, 177, 180 (1970). 48. 414 U.S. 44 (1973). 49. Id. at 48. 50. "The aim is to accommodate the rights of the Indians under the Treaty and the rights......