Puyallup Tribe v. Department of Game of Washington

United States Supreme Court

391 U.S. 392

Puyallup Tribe  v.  Department of Game of Washington et al.

Certiorari to the Supreme Court of Washington

No. 247.  Argued: March 25-26, 1968 --- Decided: May 27, 1968 ^[1]

Respondents brought these actions in the state court seeking declaratory relief concerning rights which petitioner Indians asserted by virtue of Article III of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians and certain conservation measures adopted by the State of Washington with respect to its territorial waters. Under that provision of the treaty the "right of taking fish at all usual and accustomed grounds and stations, is... secured to said Indians, in common with all citizens of the Territory...." The fish to which the Treaty rights in these cases related are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup and Nisqually Rivers. To catch these fish for their own use and for commercial purposes, the Indians have used set nets which Washington undertook to regulate. The State Supreme Court held that these fishing rights can be regulated by the State and remanded the causes to the trial court to determine if the regulations were reasonable and necessary.

Held:

1. The State may in the interest of conservation regulate fishing by the Indians "in common with" the fishing by others. Pp. 397-401.

2. Whether the use of set nets at locations where the Indians placed them is permissible is a question not reached on the record. Pp. 401-403.

No. 247, 70 Wash. 2d 245, 422 P. 2d 754; No. 319, 70 Wash. 2d 275, 422 P. 2d 771, affirmed.

Arthur Knodel argued the cause and filed briefs for petitioner in No. 247. Jack E. Tanner argued the cause and filed a brief for petitioners in No. 319.

Joseph L. Coniff, Special Assistant Attorney General of Washington, and Mike R. Johnston, Assistant Attorney General, argued the cause for respondents in both cases. With them on the briefs was John J. O'Connell, Attorney General.

John S. Martin, Jr., argued the cause for the United States, as amicus curiae, urging reversal in both cases. With him on the brief were Solicitor General Griswold, Assistant Attorney General Martz, Louis F. Claiborne, Roger P. Marquis, and Edmund B. Clark.

George S. Woodworth, Assistant Attorney General, argued the cause for the State of Oregon, as amicus curiae, urging affirmance in both cases. With him on the brief were Robert Y. Thornton, Attorney General, and Roy C. Atchison and Henry S.. Kane, Assistant Attorneys General. T.J. Jones III argued the cause for the State of Idaho Fish and Game Department, as amicus curiae, urging affirmance in both cases. With him on the brief was Allan G. Shepard, Attorney General of Idaho.

Briefs of amici curiae, urging reversal in No. 247, were filed by Arthur Lazarus, Jr., for the Association on American Indian Affairs, Inc., by Albert J. Ahern for the National Congress of American Indians, and by James B. Hovis for the Confederated Bands and Tribes of the Yakima Indian Nation.

Notes

1. Together with No. 319, Kautz et al. v. Department of Game of Washington et al., also on certiorari to the same court.