391 U.S. 392
88 S.Ct. 1725
20 L.Ed.2d 689
The PUYALLUP TRIBE, etc., Petitioner,
DEPARTMENT OF GAME OF WASHINGTON et al. Nugent KAUTZ et al., Petitioners, v. DEPARTMENT OF GAME OF WASHINGTON et al.
Nos. 247, 319.
Argued March 25 and 26, 1968.
Decided May 27, 1968.
Rehearing Denied Oct. 14, 1968.
See 89 S.Ct. 64.
Arthur R. Knodel and Jack E. Tanner, Tacoma, Wash., for petitioners.
Joseph L. Coniff, Jr., and Mike Richard Johnston, Olympia, Wash., for respondents.
George S. Woodworth, Portland, Ore., for State of Oregon, as amicus curiae.
Mr. T. J. Jones III, Boise, Idaho, for Idaho Fish and Game Dept. as amicus curiae.
Mr. Justice DOUGLAS delivered the opinion of the Court.
These cases present a question of public importance which involves in the first place a construction of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians in 1854 (10 Stat. 1132) and secondly the constitutionality of certain conservation measures adopted by the State of Washington allegedly impinging on those treaty rights.
These suits were brought by respondents in the state court against the Indians for declaratory relief and for an injunction. The trial court held for respondents and with exceptions not relevant to our problem the Supreme Court affirmed in part and remanded for further findings on the conservation aspect of the problem. Department of Game v. Puyallup Tribe, 70 Wash.2d 245, 422 P.2d 754; Department of Game v. Kautz, 70 Wash.2d 275, 422 P.2d 771. We granted the petitions for certiorari and consolidated the cases for oral argument. 389 U.S. 1013, 88 S.Ct. 584, 19 L.Ed.2d 659.
While the Treaty of Medicine Creek created a reservation for these Indians, no question as to the extent of those reservation rights, if any, is involved here. Our question concerns the fishing rights protected by Article III, which so far as relevant reads 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 * * *.'
The fish to which the Treaty rights pertain in these cases are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup River and the Nisqually River. The steelhead is a trout; the salmon are of four species—chinook, silver, chum, and pink. They come in from the ocean, pass through the salt water of Puget Sound, enter the fresh waters at the mouths of rivers, and go up these rivers to spawn. The adult salmon die after spawning, but not necessarily the steelhead. In time the fry return to the ocean and start the cycle anew.
People fish for these species far offshore. As respects fishing within its territorial waters, Washington specifies the time when fishing may take place, the areas open to fishing, and the gear that may be used.
Fishing licenses are prescribed. Steelhead may be taken only by hook and not commercially. Salmon may be taken commercially with nets of a certain type in certain areas. Set nets or fixed appliances are barred in 'any waters' of the State for the taking of salmon or steelhead. So is 'monofilament gill net webbing.'
Nearly every river in the State has a salmon preserve at its mouth; and Commencement Bay at the mouth of the Puyallup River is one of those preserves.
The Puyallup Indians use set nets to fish in Commencement Bay and at the mouth of the Puyallup River and in areas upstream. The Nisqually Indians use set nets in the fresh waters of the Nisqually River. These Indians fish not only for their own needs but commercially as well, supplying the markets with a large volume of salmon. The nets used are concededly illegal if the laws and regulations of the State of Washington are valid; and it is to that question that we now turn.
The 'right of taking fish at all usual and accustomed places, in common with' citizens of the Territory under a treaty with the Yakimas was involved in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. The lands bordering the Columbia River at those places were acquired by private owners who under license from the State acquired the right to fish there and sought to exclude the Indians by reason of their ownership. The Court held that the right to fish at these places was a 'continuing' one that could not be destroyed by a change in ownership of the land bordering the river. 198 U.S., at 381, 25 S.Ct., at 664. To construe the treaty as giving the Indians 'no rights but such as they would have without the treaty' (198 U.S., at 380, 25 S.Ct., at 664) would be 'an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the Nation for more.' Ibid. In Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555, the Court construed the same provision liberally so as to include all 'accustomed places' even though the Indians shared those places with other Indians and with white men, rejecting a strict, technical construction not in keeping with the justice of the case.
It is in that spirit that we approach these cases in determining the scope of the treaty rights which the Puyallups and Nisqually obtained.
The treaty right is in terms the rights to fish 'at all usual and accustomed places.' We assume that fishing by nets was customary at the time of the Treaty; and we also assume that there were commercial aspects to that fishing as there are at present. But the manner in which the fishing may be done and its purpose, whether or not commercial, are not memtioned in the Treaty. We would have quite a diferent case if the Treaty had preserved the right to fish at the 'usual and accustomed places' in the 'usual and accustomed' manner. But the Treaty is silent as to the mode or modes of fishing that are guaranteed. Moreover, the right to fish at those respective places is not an exclusive one. Rather, it is one 'in common with all citizens of the Territory.' Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State. The right to fish 'at all usual and accustomed' places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. Act of June 2, 1924, 43 Stat. 253, as superseded by § 201(b) of the Nationality Act of 1940, 8 U.S.C. § 1401(a)(2). But 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.
In Tulee v. State of Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115, we had before us for construction a like treaty with the Yakima Indians which guaranteed the right to fish 'at all usual and accustomed places, in common with citizens' of Washington Territory. 12 Stat. 951. Tulee, a member of the tribe, was fishing without a license off the Yakima Indian Reservation; the State convicted him for failure to obtain a license. We reversed, saying:
'(W)hile the treaty leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.' Id., at 684, 62 S.Ct. at 864.
In other words, the 'right' to fish outside the reservation was a treaty 'right' that could not be qualified or conditioned by the State. But 'the time and manner of fishing * * * necessary for the concervation of fish,' not being defined or established by the treaty, were within the reach of state power.
The overriding police power of the State, expressed in nondiscriminatory measures for conserving fish resources, is preserved. In United States v. Winans, supra, a forerunner of the Tulee case, the Court said:
'(S)urely it was within the competency competency of the nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the state unreasonably, if at all, in the regulation of the right.' 198 U.S., at 384, 25 S.Ct., at 665.
Another forerunner of Tulee was Kennedy v. Becker, 241 U.S. 556, 36 S.Ct. 705, 60 L.Ed. 1166, which also involved a nonexclusive grant of fishing rights to Indians. Indians were charged with the spearing of fish contrary to New York law, their defense being the fishing rights granted by a treaty. The Court, in sustaining the judgments of conviction, said:
'We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to reserve sovereign prerogative, or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather are we of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject, nevertheless, to that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the state over the lands where the privilege was exercised.' 241 U.S., at 563—564, 36 S.Ct., at 707—708.
The use of purse seines and other nets in the salt waters is permitted for commercial purposes under terms and conditions prescribed by the State; and their use in these areas is open to all, Indians as well as others. The use of set nets in fresh water streams or at their mounths is barred not only to Indians but to all others. An expert for the State testified that the reason for that prohibition was conservation:
'The salmon are milling and delaying, and especially in times of law water or early arrival of the run or for any number of reasons, the delay may be considerable.
'Once again the fish are available to the net again and again. This is the main reason for the preserve, so that the milling stock will not be completely taken.
'Then further, this is a point in the bay at the river mouth where you very definitely have a funnelling effect.
The entire run is funneled into a smaller area and it is very vulnerable.'
Fishing by hook and line is allowed in these areas because when salmon are 'milling near the river mouth,' they are not 'feeding and they don't strike very well, so the hook and line fishery will take but a small percentage of the available stock no matter how hard they fish.'
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.'