Washington v. Washington State Commercial Passenger Fishing Vessel Association Washington v. United States Puget Sound Gillnetters Association v. United States District Court For Western District of Washington

• Decision Date: 02 July 1979
• Docket Number: 78-119 and 78-139,Nos. 77-983,s. 77-983
• Citation: 99 S.Ct. 3055,443 U.S. 658,61 L.Ed.2d 823
• Parties: State of WASHINGTON et al., Petitioners, v. WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION et al. State of WASHINGTON et al., Petitioners, v. UNITED STATES et al. PUGET SOUND GILLNETTERS ASSOCIATION et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF WASHINGTON (United States et al., Real Parties in Interest)
• Court: U.S. Supreme Court

443 U.S. 658

99 S.Ct. 3055

61 L.Ed.2d 823

State of WASHINGTON et al., Petitioners,

v WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL

ASSOCIATION et al.

State of WASHINGTON et al., Petitioners,

v. UNITED STATES et al.

PUGET SOUND GILLNETTERS ASSOCIATION et al., Petitioners,

v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT

OF WASHINGTON (United States et al., Real Parties

in Interest).

Nos. 77-983, 78-119 and 78-139.

Argued Feb. 28, 1979.

Decided July 2, 1979.

Syllabus

In 1854 and 1855, the United States entered into a series of treaties with certain Indian tribes whereby the Indians relinquished their interest in certain lands in what is now the State of Washington in exchange for monetary payments, certain relatively small parcels of land reserved for their exclusive use, and other guarantees, including protection of their "right of taking fish at usual and accustomed grounds and stations . . . in common with all citizens of the Territory." The principal question in this extensive litigation concerns the character of the treaty right to take fish. In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington in Federal District Court, seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of runs of anadromous fish. At various stages of the proceedings, additional tribes, the State Departments of Fisheries and Game, and a commercial fishing group were joined as parties. The District Court held that under the treaties, the Indians are currently entitled to a 45% to 50% share of the harvestable fish passing through their recognized tribal fishing grounds in the case area, to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. With a slight modification of one of the adjustments, the Court of Appeals affirmed, and this Court denied certiorari. Pursuant to the District Court's injunction, the Department of Fisheries promulgated regulations protecting the Indians' treaty rights, but the State Supreme Court, in two cases (consolidated here in No. 77-983), ruled that the Fisheries Department could not comply with the federal injunction, holding, inter alia, that, as a matter of federal law, the treaties did not give the Indians a right to a share of the fish runs. The District Court then entered a series of orders enabling it directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceedings was affirmed by the Court of Appeals. That court, in a separate opinion, also held that regulations of the International Pacific Salmon Fisheries Commission (IPSFC) posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation.

Held :

1. The language of the treaties securing a "right of taking fish . . . in common with all citizens of the Territory" was not intended merely to guarantee the Indians access to usual and accustomed fishing sites and an "equal opportunity" for individual Indians, along with non-Indians, to try to catch fish, but instead secures to the Indian tribes a right to harvest a share of each run of anadromous fish that passes through tribal fishing areas. This conclusion is mandated by a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and, particularly, this Court's prior decisions construing the treaties. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089; Puyallup Tribe v. Washington Game Dept., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (Puyallup I ); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (Puyallup II ); Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (Puyallup III ). Pp. 674-685.

2. An equitable measure of the common right to take fish should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Cf. Puyallup III, supra. Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, is in most respects unobjectionable, the District Court erred in excluding fish taken by the Indians on their reservations from their share of the runs, and in excluding fish caught for the Indians' ceremonial and subsistence needs. Pp. 685-689.

3. The Convention of May 26, 1930, whereby Canada and the United States agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen, subject to regulations proposed by the IPSFC for approval by both countries, does not pre-empt the Indians' fishing rights under the treaties with respect to Fraser River salmon runs passing through certain "usual and accustomed" places of treaty tribes. Pp. 689-692.

4. Any state-law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause and the State Game and Fisheries Departments, as parties to this litigation, may be ordered to prepare a set of rules that will implement the court's interpretation of the parties' rights even if state law withholds from them the power to do so. Cf. Puyallup III, supra. Whether or not the Game and Fisheries Departments may be ordered actually to promulgate regulations having effect as a matter of state law, the District Court may assume direct supervision of the fisheries if state recalcitrance or state-law barriers should be continued. If the spirit of cooperation motivating the State Attorney General's representation to this Court that definitive resolution of the basic federal question of construction of the treaties will allow state compliance with federal-court orders is not confirmed by the conduct of state officials, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of appropriate federal law enforcement agents in carrying out those steps. Pp. 3078-3080.

No. 78-119, 573 F.2d 1118, affirmed, and 573 F.2d 1123, vacated and remanded; No. 77-983, 88 Wash.2d 677, 565 P.2d 1151 (first case), and 89 Wash.2d 276, 571 P.2d 1373 (second case), vacated and remanded; No. 78-139, 573 F.2d 1123, vacated and remanded.

Slade Gorton, Atty. Gen., for State of Washington.

Philip A. Lacovara, Washington, D.C., for Associations of Non-Indian Fishermen.

Mason D. Morisset, Seattle, Wash., for the Indian Tribes.

Louis F. Claiborne, Washington, D.C., for United States et al.

Mr. Justice STEVENS delivered the opinion of the Court.

To extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River in what is now the State of Washington,¹ the United States entered into a series of treaties with Indian tribes in 1854 and 1855.² The Indians relinquished their interest in most of the Territory in exchange for monetary payments. In addition, certain relatively small parcels of land were reserved for their exclusive use, and they were afforded other guarantees, including protection of their "right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory." 10 Stat. 1133.

The principal question presented by this litigation concerns the character of that treaty right to take fish. Various other issues are presented, but their disposition depends on the answer to the principal question. Before answering any of these questions, or even stating the issues with more precision, we shall briefly describe the anadromous fisheries of the Pacific Northwest, the treaty negotiations, and the principal components of the litigation complex that led us to grant these three related petitions for certiorari.

I

Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the fresh-water place of their origin to spawn. Different species have different life cycles, some spending several years and traveling great distances in the ocean before returning to spawn and some even returning to spawn on more than one occasion before dying. 384 F.Supp. 312, 384, 405. See Comment, State Power and the Indian Treaty Right to Fish, 59 Calif.L.Rev. 485, 501, and n. 99 (1971). The regular habits of these fish make their "runs" predictable; this predictability in turn makes it possible for both fishermen and regulators to forecast and to control the number of fish that will be caught or "harvested." Indeed, as the terminology associated with it suggests, the management of anadromous fisheries is in many ways more akin to the cultivation of "crops"—with its relatively high degree of predictability and productive stability, subject mainly to sudden changes in climatic patterns—than is the management of most other commercial and sport fisheries. 384 F.Supp., at 351, 384.

Regulation of the anadromous fisheries of the Northwest is nonetheless complicated by the different habits of the various species of salmon and trout involved, by the variety of methods of taking the fish, and by the fact that a run of fish may pass through a series of different jurisdictions.³ Another complexity arises from the fact that the State of Washington has attempted to reserve one species, steelhead trout, for sport fishing and therefore conferred regulatory jurisdiction over that species upon its Department of Game, whereas the various species of salmon are primarily harvested by commercial fishermen and are managed by the State's Department of Fisheries. Id., at 383-385, 389-399. Moreover, adequate regulation not only must take into...