Department of Game of Washington v. Puyallup Tribe – Oral Argument – October 10, 1973

Media for Department of Game of Washington v. Puyallup Tribe

Audio Transcription for Opinion Announcement – November 19, 1973 in Department of Game of Washington v. Puyallup Tribe

del

Warren E. Burger:

We will hear arguments next in number 72-481, State of Washington against the Puyallup Tribe.

Mr. Coniff, you may proceed when you are ready.

Joseph L. Coniff, Jr.:

Mr. Chief Justice, members of the Court.

My name is Joseph Laurence Coniff Jr. I am an Assistant Attorney General from the State of Washington and I am here representing the Washington Department of Game.

As I am sure, the Court is aware, this is the second time that this particular matter has been before the Court.

The previous occasion was of course in 1968 and the Court had occasion to render its opinion in this matter in 391 U.S. 392.

This case basically involves a further clarification of the treaty language, Indian Treaty Language pertaining to off reserve claim, off reservation Indian Fishing Rights and I would like to preliminary note to the Court’s information that at the time that this litigation was commenced in 1963, at both the Washington Department of Game and Washington Department of Fisheries were party’s plaintiff and adopted the same position.

However, I have been instructed to advise the Court that the Washington Department of Fisheries has not sought review of the lower court opinion, which is now before you, but that the Washington in Department of Game has authorized and instructed me to file the petition for certiorari, which of course the court has granted.

I should also advise you that the Washington Department of Fisheries position as contrasted to the Washington Department of Games position has predicated upon its reading of this Court’s prior opinion.

The fishery’s position appears to be predicated upon the concept of granting to Indian, Treaty Indians, special Indian only commercial netting seasons for salmon in the fresh water streams of the State of Washington.

It is the position of the Washington Department of Game before this Court that the position of our sister agency is incorrect and is unlawful.

Because a state law prohibits the use of this type of set net or commercial netting gear on the catching of anadromous fish of which both salmon and steelhead are anadromous fish in off reservation waters.

And in reality, the position which has been adapted by the fisheries department and which is closely parallel by the Federal Government’s position in this case before the court is predicated upon the assumption that the state administrative agency director has the authority by regulation to issue a regulation authorizing activity, which the state legislature has prohibited.

And it is game’s position that a fair reading of this Court’s opinion in Puyallup Wan and in particularly the language utilized by Justice Douglas who wrote for unanimous court.

And the concluding paragraph of that opinion which emphasizes the equal protection concepts implicit in the Treaty Fishing Clause Language.

That language is that the right to fish in off reservation waters, at usual and accustomed places outside reservation boundaries is one which might be exercised in common with all of the citizens of the territory.

And Justice Douglas speaking for the court, emphasized the equal protection concepts implicit in that language, and it is game’s position before this Court that the equal protection concepts implicit in the treaty language itself require a reversal of the Lower Court.

In other words gentlemen, the line of demarcation should be the reservation boundaries and that once that an Indian, reservation Indian moves outside of the reservation boundaries into off reservation areas that he is fully subject and amenable to the jurisdiction and enforcement if you will of State Conversation Laws, Rules and Regulations, pertaining to the taking of fish.

And this would include salmon as well as steelhead.

I believe that our position, I mean game’s position is further sustained by the opinion of this Court in the Mescalero Apache decision versus Franklin Jones which is 41 Law week 4451.

This decision I feel is of very critical importance to the legal position which has been taken by the Department of Game, before the court, and that deals with off reservation activities on part of the Indian tribe in the State of New Mexico.

And the facts of the case are, that the Mescalero tribe pursuant to a Federal program constructed a ski enterprise in an off reservation location.

And the argument was that the state of New Mexico could not impose its taxing laws to this particular enterprise and this court citing interestingly enough the Puyallup decision held that the absent Federal law to the contrary, Indians going beyond reservation boundaries have been generally held subject to non-discriminatory state law.

Otherwise applicable to all citizens of the state, See Puyallup Tribe versus the Department of Game and a series of other cases, and I think the following languages in that paragraph is sufficiently important to call it and emphasize it to the court’s attention.

In discussing racehorse, it states that principle, the racehorse principle is as relevant to a states tax law as it is to state criminal laws.

See the case and applies as much to tribal ski resorts as it does to fishing enterprises citing village of Kate v. Igen (ph).

Potter Stewart:

Of course, in the present case we have the particular words of a particular treaty, don’t we General that —

Joseph L. Coniff, Jr.:

Yes.

Potter Stewart:

The right of taking fish in all usual and accustomed grounds or stations as part of this — the said Indians in common with to all citizens of the territory.

Our concern in this case is to try to ascertain the meaning of those particular words and that particular treaty rather than be guided by the general kind of rules to which you have been referring us?

Joseph L. Coniff, Jr.:

Well, I don’t believe Ward v. Racehorse is the kind of general language that you are referring too.

That the facts of Ward v. Racehorse involved a treaty with comparable language, involving I believe it was the Vanic Tribe in the State of Utah and this is of course an older decision of the court, but I believe that it has been revitalized.

And that particular case happen to involve hunting instead of fishing, but I think that the same type of language was involved.

Potter Stewart:

No, that’s not the type of language.

It is really the particular words of a particular treaty is it not?

Joseph L. Coniff, Jr.:

Yes, well that my point is Your Honor the treaty involved in Ward v. Racehorse is so close to the Isaac I. Stevens Treaties that were confronted with in the State of Washington that the court’s revitalization, if you will of the equal footing doctrine of Ward v. Racehorse, I believe to be extremely significant.

And that is why I was pointing out this Court’s reliance, and I believe that revitalization of the Ward v. Racehorse doctrine.

What is the equal footing doctrine? How is it treated in Puyallup 1?

Joseph L. Coniff, Jr.:

It was not treated in Puyallup 1 except, as I understand the final paragraphs of that opinion as authored by Justice Douglas which indicated that the final resolution of the problem, which the court did not reach in that opinion, should include the equal protection concepts implicit in the treaty language in common with the citizens of the territory.

Now, I would submit that the question certainly is not foreclosed at this time, particularly in light of this Court’s decision in the Mescalero case and the citation of Ward, and I believe I am certainly not — I am sure when I say equal footing, we all know what I am talking about.

So, I am not going to go back and try to run that one through again unless you want me to.

But, I think it is extremely important and I think it is important when we keep in mind that in 1854 and 55, the Indians who were residents in Washington territory with whom Governor Stevens was ordered to treat were not citizens, and I think that the civil war, obviously has not been fought, the Fourteenth Amendment lay in the unforeseeable future.

It of course was not adapted until 1868.

And so when we look at the actual positions of the parties, the American Commissioner is on the one side and the Indian people on the other.

The Indians were being asked to move to a place where they would have exclusive rights.

They do have exclusive rights within their reservation boundaries and so far as the taking of fishing game is concerned.

This is conceded and as far as I am aware, this has always been the position that my clients have taken.

We have no jurisdiction and no authority to go into within the exterior boundaries of an Indian reservation and enforce any state conversation laws, rules or regulations.

And we do not do so.

So when we —

Is there in fact just as a matter of information of tribal regulation?

Joseph L. Coniff, Jr.:

In some instances, there are.

In some instances, there aren’t.

The larger tribes act for example the Yakima, that Makah, Quinault, some of these larger groups not only have printed regulations but they actually have an enforcement where they have tribal courts, with policemen.

I happen to know the Yakima tribe also has a jail and I do understand that they do arrest people for infractions that they enforce.

Of conservation regulations?

Joseph L. Coniff, Jr.:

I cannot answer you on my own personal knowledge.

I believe that it is true in some instances, generally with some of the larger tribes.

But I would point out to the court that there are over 40 some odd tribes listed in the preambles to the governor, the five governor Isaac I. Stevens Treaties.

And that some of these tribes were in reality small villages in 1855, and so some of the memberships and some of the groups that are claiming these rights within the State of Washington at this time are very small rather, if you will, fragmented organizations without any real cohesive, political or governmental authority.

Joseph L. Coniff, Jr.:

So, when we say the word Indians, you still have to take it a step further in terms of your analysis it’s apples and oranges when you get down to the reality on the riverbank.

I do wanted to — I did want to make a point very clear however for the record that we are not here discussing any attempted entrenchment if you will, of any self government or any on reservation activity on the part of any Indian tribe in the State of Washington.

Well on the other hand, the conservation is not necessarily at stake either is it?

Joseph L. Coniff, Jr.:

Well, I believe that it is.

I believe that the taking, that the use —

Well, is there challenge in this case the power of Washington to forbid commercial fishing if it will lead to the extinction of the fish?

Joseph L. Coniff, Jr.:

If I was here talking about is the extinction of the fish, then I would agree with you.

But to me, the term conversation, I know it’s something more than simply seeing the last two.

It is not really the only issue of who is going to be permitted to take the fish first?

Joseph L. Coniff, Jr.:

Well yes I —

Potter Stewart:

How the catch is going to be divided really?

Joseph L. Coniff, Jr.:

All right, I think I might refer —

The same question.

Joseph L. Coniff, Jr.:

I might refer the court to the appendix in number 247 October term 1967.

This is the complaint at page six, this was the complaint that I drafted when I was at a law school about one year and here I am.

But I wanted to point out what the complaint was asking the courts to do and I do not think we have reached it.

I do not think we have reached the answer yet.

Paragraph five reads, the defendants claim special privileges are immunities from the application of valid conservation laws of the State of Washington to which they are not legally entitled.

By virtue of the claims special privileges or immunities, the defendants are fishing extensively in the Puyallup River and Commencement Bay with set nets and drift nets.

Paragraph six, as a result of the defendants fishery, the anadromous fish runs and the Puyallup River will be virtually extinguished, exterminated if said fishery is permitted to continue and no adequate and speedy remedy and so forth in the prairie.

Let me put it to you this way, let us assume that whatever judgment came out of this court or it came out ultimately Indian fishing was sufficiently limited so that there would be no problems about extinction of the fishing runs as long as sports fishing was eliminated.

Joseph L. Coniff, Jr.:

You would be trading the resource —

And that would not satisfy you.

Joseph L. Coniff, Jr.:

That would not be my client’s position and that is not, I do not believe and I would submit to the court is not a fair reading of the treaty provision and it is not a fair reading of the decision who want that might be applicable or might apply.

I would also add in response to —

Well, assuming that to that X number of fish may safely be caught each year, assume X number.

Joseph L. Coniff, Jr.:

All right.

Now, you say the Indians should not have first, what’s first bracket at that number of fish.

You say that they should be on the same footing with the sports fishing?

Joseph L. Coniff, Jr.:

With all other citizens whether it be sport or commercial, I would like to point out there is no discrimination against Indians to go outside their reservation and engage in either sport fishing activities or commercial fishing activities pursuant to state regulations.

Joseph L. Coniff, Jr.:

So that there is not this discrimination and really, the point, the reason why I went back and read the book —

The question is whether the treaty does give them a special —

Joseph L. Coniff, Jr.:

That is it, it is a quantification question, a question of interpreting the language and attempting to quantify it and I am submitting to the court that if fair reading, a fair interpretation of the treaty language in question would necessarily imply in light of the historical circumstances under which it was executed that Indians were entitled or given a right in 1854 – 55 not to be discriminated against, keeping in mind the date, the historical setting in which these treaties were executed, that Fourteenth Amendment was in the future and if pioneers and settlers pursuant to government policy were being encouraged to move out, move into this territory and let us settle it, let us take it over.

We just settle things with the Nation of Great Britain and we wanted to the Hudson Bay Company was moving out and we wanted to populate this area.

The government obviously had a problem.

They had to go out and treat with the native populations and part of the deal was to give them exclusive rights.

To give them a place to reside and hopefully to be integrated into society in sometime, but the reservations, — the subject to and when I believe, the reservations were intended to be temporary.

They have not turned out to be that way.

I am not quarreling with that.

I believe that is the law today, but certainly when you compare the exclusive rights to fish and hunt within the reservation which clearly was understood I believe by everyone at that time, I think you keep that fact in mind when you look at the quantum any if you will of the off reservation in common right.

William H. Rehnquist:

Mr. Coniff, was your answer to Justice Stewart and Justice White’s question in the context of off reservation fishing?

Joseph L. Coniff, Jr.:

Yes, yes, I am trying to —

Potter Stewart:

And this involves, as I understand it at least, only steelhead, it does not involve salmon.

Joseph L. Coniff, Jr.:

In my view, the question of treaty interpretation does not depend upon the species of fish.

Potter Stewart:

Well I thought this issue, I thought all of us before us was —

Joseph L. Coniff, Jr.:

No, I would not agree.

I would not agree with that.

Otherwise, you are going to have a bifurcated analysis, a bifurcated law if you will.

Depending upon the way the state legislature decides to classify a fish.

The treaty says the right to fish at usual and accustomed grounds in common.

Byron R. White:

I must confess that I share Justice Stuart’s confusion.

I thought that the salmon issue and the salmon regulation are not before us here?

Joseph L. Coniff, Jr.:

I do not agree with that because I recognize the government is urging upon the court that this is foreclosed.

I am pointing out to the court that the treaty does not say salmon.

The treaty does not say steelhead.

The treaty does not say trout or bass or any other species.

It says the right to fish and I honestly believed that the impact of this Court’s decision would be to establish a common rule, which would apply to all species of fish, which might be subject to commercial netting activities in off reservation waters of the state.

Potter Stewart:

That issue could arise with respect to any kind of a fish but I thought that in fact in this case, what the issue was, was your State Court’s treatment of the steelhead.

Joseph L. Coniff, Jr.:

Well?

Potter Stewart:

That would be, I am mistaken, I am mistaken.

Potter Stewart:

That is the impression I got.

Joseph L. Coniff, Jr.:

That is not my real —

Potter Stewart:

That the real reason before you came here to argue.

Joseph L. Coniff, Jr.:

Perhaps, I did not express myself well enough in my statement of the issues in the brief or in the petition.

But at page 10, the first issue stated in my brief is whether the equal protection concepts in the treaty phrase is common with all the citizens of the territory.

It means that treaty Indians must abide by state conservation laws and regulations when they engage in fishing in off reservation waters and clearly the treaty itself, which is the fundamental predicate from which we are going to legally operate does not make this distinction.

And I believe that the actual impact of any decision of this Court will not be limited to given specie of fish.

Potter Stewart:

Well, where can find the opinion of your State Court?

Joseph L. Coniff, Jr.:

It would be as appendix A to the petition for the writ of certiorari, which was file on September 20th , 1972.

Potter Stewart:

It say your petition?

Joseph L. Coniff, Jr.:

Yes, and it is in appendix which is —

Potter Stewart:

September 2otht.

Joseph L. Coniff, Jr.:

Yes.

Potter Stewart:

And it’s appendix A of that?

Joseph L. Coniff, Jr.:

Yes.

Potter Stewart:

Thank you.

Joseph L. Coniff, Jr.:

Now, I might add in another point here to this question of treaty interpretation which I feel is quite humane and frankly, I feel is important as an interpretive aid to the court in interpreting the content or quantification.

If you will or meaning to be common with language as it might pertain to off reservation fishing and hunting is the rather interesting fact that the in common with language does appear in another context.

In a Governor Steven’s treaty and that is the treaty with the Yakima.

Now the treaty with the Yakima provides in addition to the usual off reservation, usual language on the right in common to fish at usual and accustomed grounds and station, and it also provides the following, as is also the right in common with the citizens of the United States to travel upon all the public highways.

And I would submit to the Court that rather unusual result to obtain if this application of state police power is in a form of traffic rules and regulations on public highways.

If there is a constitutional impediment to the application of the state laws in that regard in the terms of the fishing, the context of fishing but we could really reach the very strange result if we attempted to apply that rationale to this language, which appears in the treaty with the Yakima.

And I frankly do not know what the answer would be to the problem that I supposed, but I am relying upon the language in the Yakima treaty at least as an interpretive aid.

In other words, where the same languages as used by the same author, in this case, Governor Isaac I. Stevens.

Byron R. White:

Is that relevant in the decision of this case or the interpretation of the treaty especially as applied in today to inquire whether and to what extent the state contributes annually to the steelhead run?

Joseph L. Coniff, Jr.:

I did not believe that that is — in my judgment, I did not believe that that would resolve the question for you sir.

Byron R. White:

Well, it may not resolve but is it relevant.

I take it that left to its own devises the steelhead run might not maintain itself at the present level?

Joseph L. Coniff, Jr.:

That is correct.

Byron R. White:

The native steelhead run is only a fraction of what it would be if the state did not annually feed the steelhead in the Puyallup?

Joseph L. Coniff, Jr.:

That is correct.

The studies that the department has undertaken regarding the extent of hatchery contributions to sport catch reach somewhat varying —

Byron R. White:

Isn’t that irrelevant consideration as to what Indian — what in common with others ought to mean in a treaty today?

Joseph L. Coniff, Jr.:

Well, I suppose in that sense it maybe.

I still maintain before the court that what should be relevant but what were the relative circumstances of the parties read the entire instrument as a whole.

Keeping in mind the exclusive nature of the rights, which were to be granted and confirmed to the Indian tribes in terms of their on reservation fishing, and hunting activities, and the contrast in that with the off reservation in common with language, keeping in mind the fact that Indians were not citizens at that time, and keeping in mind that this language does appear in another context in that Article III of the treaty with the Yakima and that should the court reach a result in interpreting in common with to mean exclusive paramount or prior in some sense.

So that they have a right to catch these fish perhaps superior to all other citizens that they may be able to catch all the fish and the citizens not any.

Then suppose at that point, Your Honor that then these considerations that you have mentioned of the extent of the contribution to the resource by public funds would become relevant and important.

But unless, I believe that you have to first answer or reach the question of some sort of quantification and it is only at that point that you would then begin to judicially inquire into well, — perhaps the native runs would not be as high with absent the contribution of the state.

And I might add that the Federal Government for that matter to the resource in form of fish passage facilities at dams, stream plants, projects, hatchery programs.

I just mentioned the Washington Department of Game, our lowest study shows that on the Puyallup with the lowest contribution in a single year, I believe was 60% running as high as 80% of total catch developed from our hatching program, which for the most part is financed by the sale.

Approximately 80% financed by the sale of fishing licenses of steelhead punch cards.

So, the sportsman himself are — you might say paying for a large part of the resource, but I still maintain that we do not reach this question unless we first have reached the fundamental question of what is it that was secured.

It is my primary argument to you to that level rather than to the level that you have suggested.

Although in my brief, I will admit I do take an alternative position.

There is a recent opinion post to Puyallup and post to Mescalero a copy of which I passed to be you at large with clerk of the court entitled Settler v. Yakima Tribal Council, or excuse me, Yakima Tribe Court was issued by the Federal District Court for the Federal District — the Eastern District of Washington by the honorable George H. Powell on September 26, 1973.

This is the only decision that I am aware of on a federal level, which deals with Puyallup and Mescalero and the issue before the court, it is not obviously in my brief.

As I mentioned the copiously lies.

The issue before the court was whether or not the Yakimas passed a regulation pertaining to off reservation fishing by Yakima Indians on the Columbia River, and then went down on the river and arrested a couple of members of the tribe who were violating those regulations for about 60 miles off the reservation,got them back and try to convict them.

The issue then was whether or not they had jurisdiction.

The Federal District Court for the Eastern District of Washington relying on the Puyallup-Mescalero rationale held that the Yakimas do not have extra territorial jurisdiction.

I know that white light is on and I would like to if I may reserve the two or three moments remaining to me for rebuttal.

Warren E. Burger:

Very well.

Mr. Sachse?

Harry R. Sachse:

Mr. Chief Justice and may it please the Court.

I want to start out by saying that I think the Department of Game’s position is contrary to its own State Court’s finding, contrary to its own Department Fisheries position, tries to take out nothing at all, just out of air on argument that would eradicate the Third Article of the treaty with the Puyallup’s and it would jeopardize almost every Indian treaty in the country.

The idea when a state comes in to the state that it can then ignore whatever treaty had been made by the United States prior to the time that it came into the state because other states did not have treaties with Indians and this would have to be equal footing.

But before I get into that in much detail, I want to say I also think that it’s based on total misunderstanding of this Court’s prior decision in this case.

Mr. Coniff argues that this Court’s prior decision in this case because of the one phrase that in determining whether the regulation is necessary for conservation you should take into account the issue of equal protection, implicit in the phrase in common with means that whatever law is the state passes that labels as conservation laws apply equally to the Indians and non-Indians in the state.

That is the exact position that this Court rejected when it affirmed the decision below in the prior Puyallup case.

Harry R. Sachse:

What had happened there, this was the position that Mr. Coniff had argued in the Lower Court in the State of Washington in 1963, I think it was.

The Supreme Court in the State of Washington in 1967 rejected that position and held that the essence of this opinion is and the decree as reframed just so reflect.

One if a defendant proves that he is a member of the Puyallup tribe and two, he is fishing at one of the usual and accustomed fishing places of that tribe.

Three, he cannot be restrained or enjoined from doing so unless he is in violation of a statute or regulation that the department has promulgated there under which has been established to be reasonable and necessary for the conservation of the fishery.

And when this Court had the case, it made perfectly clear I think that the issue was, the issue was the following that in the treaty, the tribe reserved for itself the right to fishing off reservation, but it limited that right and that it is fishing in common with the people of this state and the court —

Byron R. White:

And of accustomed place?

Harry R. Sachse:

Usual and custom places, that’s right.

There is no issue here that these are —

Byron R. White:

But do you think it also means that the usual and custom manner?

Harry R. Sachse:

I think it means more than that and different from that and I will try to get to that in just —

Byron R. White:

What does Pyallup One say (Inaudible)

Harry R. Sachse:

Puyallup One says that the treaty doesn’t say anything as to the manner.

Sir?

Byron R. White:

Did Puyallup say anything else about it in terms of how the means to likely to fish even if they have the right to fish in the accustomed places, did it say anything about whether they could do fishing on an accustomed way?

Harry R. Sachse:

The Puyallup One decision, the prior decision of this Court?

I think it said that the state is free to regulate the manner of fishing if it can show that it is necessary for conservation and that it does not discriminate against the Indians in doing so.

I think the real point in this case is the point that I want to get to in a minute is whether the regulation of the Department of Game in this case has been shown to be necessary for the conservation of fish.

William H. Rehnquist:

Mr. Sachse, as I read Puyallup I thought at least on page 398, it says that the manner maybe regulated in the interest of conservation.

It doesn’t say that it has to be necessary for a conservation.

Do you find other language in the case that supports your point?

Harry R. Sachse:

Yes sir on page 402 in the footnote, it’s footnote 14, the court said as to a regulation concerning the time and manner of fishing outside the reservation, we say that the power of the state was to be measured by whether it was necessary for the conservation of fish, and the court then contrasted the lesser power of the state to regulate Indian fishing from its general police power and I think that is also [Voice Overlap] in the affirmance of the court below.

William H. Rehnquist:

How would you weigh a statement in the opinion itself if it seemed to conflict with the statement on the footnote?

Harry R. Sachse:

I would look at the case as a whole and I would say that this case affirmed the decision below, which held in accordance with several other decisions of this Court that the standard is whether it is necessary for the regulation of fish, and that this Court actually went further with Puyallup.

It said that the Court should show that it is necessary for the regulation of fish and implicit in that is the idea that the regulation should not be discriminatory against the Indians in the sense that it should not make them bear the whole burden of the conservation regulation.

Byron R. White:

You think the treaty would give the — treaty fishing right do you think would cover — would guarantee the right for Indians to fish commercially even though at the time the treaty was assigned that they have never fished commercially?

They have simply did it was a matter of subsistence.

Harry R. Sachse:

Well, to start of with the court in Puyallup One assumed that the Indian did fish commercially.

Byron R. White:

I was asking whether what is your view of the treaty?

Would the treaty guarantee the right of the Indians to fish commercially when they never had fished commercially to time the treaty itself assigned?

Harry R. Sachse:

I think that would be a difficult question.

Harry R. Sachse:

I think the better argument would be — the better answer would be that yes that it did.

What purpose of the —

Byron R. White:

Was it irrelevant question at the time?

Harry R. Sachse:

I do not think so because at the time of this treaty, these Indians did fish commercially and the record when the case was here before statement of an anthropologist to the effect that these Indians were supplying the Hudson Bay Company with their salmon and steelhead at the time of this treaty

Potter Stewart:

Which they caught with nets?

Harry R. Sachse:

Which they caught with nets.

They fished with nets, they fished commercially and I think also, the court has to —

Thurgood Marshall:

With a gill net?

Harry R. Sachse:

Yes sir.

Well let me say this, the record of this case doesn’t show that it was with a gill net.

Indians in that general area did fish with gill nets before the white man came and there is a statement to that effect in the book called the Kroever in the Indians of the Northwest Coast, which describes how they made the nets and how the big nets were.

It is not the gill nets and not an invention of the white man.

I think a good deal of what Mr. Coniff has argued were the same points that where argued in the Wyman’s case in 1905 and that where rejected in that case.

I want to take a minute on that and then I want to get into the questions of this present regulations and what this has to do with the conservation of fish today.

To start of with, when the treaty was made, this treaty like, treaty with Yakamas with all the treaties Northwest Coast did three things: they start with peaceful treaties.

Governor Stevens was sent in to negotiate with the Indians.

In each treaty, there is a clause in which the Indians cede to the United States a very large section of land that they had occupied.

There is a second clause in which the Indians reserve to themselves a very small piece of land on which they were to live.

And there is a third clause in which they reserve to themselves the right of fishing at all their usual and accustomed places in common with the people of the territory and the right, putting up houses and so forth to dry their fish at those places.

And it is quite clear that that third clause was considered necessary for them to be able to maintain themselves if the land they were giving up was large.

The land they were keeping was too small for them to make a living on and the treaty was negotiated in a kind of jargon, it was called a Chinook jargon.

There is also evidence in the first record here that the treaty was translated to the Indians in very simple terms and what it obviously meant to them was that they had to give up the big land.

They had to live on the smaller land but they could continue to fish at the usual places that they could fish but that they were no longer have that exclusive right that the settlers would be able to fish there too.

It is just — there is nothing in it that said they submitted to regulation by the state.

There is noting in it that said we want to be sport fisherman and go out and angle.

They were fishing to feed their families and to trade.

And since that time, they continued to fish that way except when the state has prohibited them from fishing that way.

Now, in United States versus Winans, 1905, Winans was a landowner who had set up a fish wheel to make a large commercial fishery on the Columbia River.

It was under license with, from the state and also under state law no one would have the right to come on his land anyway to fish.

Winans argued that all the treaty means is that Indians must obey all the fishing laws of the state and if they do, they can then continue to fish but they had no special treaty right.

Harry R. Sachse:

And Winans argued this case of Ward versus Racehorse that had been decided seven or eight years before that and that Mr. Coniff relies on.

He said, the treaty may have been fine for the old days but when Washington came into this state, this Indians lost any special right that they had prior to that time.

And this Court strongly rejected both of those arguments in the Winans case.

The Court explained that the right to fish was part of the right and I quote here, “not much less necessary to the Indians than the atmosphere they breathe.”

The Court said that in ceding most of their land, they did not cede their fishing rights, but only limited them to be no longer exclusive.

And that to interpret those rights retained as giving them nothing more than they would have without the treaty would be in the words of the Court an impotent outcome to negotiations and the convention that would seem to promise more and to give the word of the nation for more.

The Court also said, the right was intended to be continuing against the United States and its grantees as well as against the state and its grantees.

In Tully versus Washington in 1942, Justice Black for the Court in the same vain strongly supported the specialness of these Indian fishing rights and the right of their right to fish even without paying for a commercial fishing license.

Still that was argued to the court as a conservation requirement, to have them pay the commercial fishing license.

Justice Black said, even though this method maybe both convenient and its general impact fair, it acts upon the Indians as a charge for exercising the very right their ancestors intended to preserve.

It cannot be reconciled with a fair construction of the treaty.

We therefore hold that the state and hold the state statute invalid as applied in this case.

Now, Justice Douglas in the prior Puyallup case cited both those cases with approval.

He stated that the Court say that he would not say the fishing regulation had to be indispensable for conservation, but they would say it had to be necessary for conservation and they could not discriminate against the Indians and then remanded the case for trial on the issue of whether these regulations were —

Potter Stewart:

The State Supreme Court have done that we affirm, this Court affirms?

Harry R. Sachse:

That is correct, that is correct.

Potter Stewart:

We did not remand it to the State Supreme Court, we affirmed —

Harry R. Sachse:

You affirmed and remanded for a trial on the merits on the question of whether the regulations were necessary for a conservation and not discriminate against the Indians.

Now, I would like to get to that trial.

To start with when the case was remanded, the Department of Fisheries immediately changed its position.

Fisheries had argued that you couldn’t have a net fishery for any fish in the Puyallup River. Fisheries changed this and they argued on this basis.

They said you cannot have a fishery where the fish spawn and you cannot have a fishery where the fish are milling about in the same fish will be fished over and over.

And was that language that the Court quoted that you cannot have this fishery where the fish were milling about over and over.

Well, the Department of Fisheries did a reasonable thing.

They said, we will prohibit the fishery at the mouth of the river where the fish mill over and over and over and we will prohibit the fishery 20 miles upstream where the fish are actually spawning and where people are walking around there with nets would be destructive to the fish.

But in the middle area, we will permit a limited net fishery for salmon.

There is still a dispute between the tribe and the Department of Fisheries as to how big that fishery ought to be but —

Potter Stewart:

And that is for salmon and that is not before here?

Harry R. Sachse:

That is for salmon, it is not before the Court but it does indicate that —

Potter Stewart:

The Department of Fisheries changed its mind?

Harry R. Sachse:

That net fishing can properly be manage in that river.

Potter Stewart:

Well, at least for salmon.

Harry R. Sachse:

At least for salmon.

Potter Stewart:

Yes.

Harry R. Sachse:

There at least a dozen statements in the record that there is no significant difference in the management of nets and so forth or salmon or steelhead that steelhead very much like salmon in all their habits.

There are statements that steelhead run is a smaller run.

Potter Stewart:

The population, the size of population might be quite different in any other stream?

Harry R. Sachse:

That is right, that is right.

Potter Stewart:

Between the two species?

Harry R. Sachse:

That is right.

Now, the size of the steelhead population in this stream has been sufficient every year in recent years.

William H. Rehnquist:

Mr. Sachse, are you asking us to make a review of State Court’s findings on facts?

Harry R. Sachse:

No.

What I am asking you to do is to affirm the State Trial Court’s finding of the facts and to reverse State Supreme Court’s reversing the Trial Court’s finding.

William H. Rehnquist:

Well, what test do we apply here when the Supreme Court of Washington has reversed on a factual ground the Superior —

Harry R. Sachse:

They haven’t reversed on factual ground.

They have reversed on misunderstanding of the law and I think I can show it to you very soon.

William H. Rehnquist:

Well, if it’s a misunderstanding of the law, why is it necessary for you to get into all the testimony below as to whether, you know, the milling and that sort of thing if it is strictly a point of law?

Harry R. Sachse:

Well, I just want the Court to understand that we are not proposing something that it is detrimental to the fish in that area or that has to do with conservation.

That what we are talking about is whether the state has the right to appropriate the fish first for sports fisherman and to totally exclude the traditional Indian fishing —

Byron R. White:

(Inaudible) to what they just did for one year?

Harry R. Sachse:

No I am not because the Supreme Court of the State of Washington set up a standard that has assured that every year since then, that the Indian fishing will also be prohibited and that has occurred in each year since then and — let me show you this language.

Byron R. White:

(Voice overlap) that they set up indicated, I hope to standard, they have set up for future years would be based on what is necessary of conservation.

I guess it is.

I guess it would be if you said that they had the supply sports fisherman?

Harry R. Sachse:

Let me give you two.

I think I can answer this graphically for you.

The findings of fact of the Trial Court were the 15 to 18,000 fish were being taken per year by sports fisherman.

Potter Stewart:

And we are talking about steelhead, are we not?

Harry R. Sachse:

Steelheads, steelheads, I’m talking only about steelheads.

Potter Stewart:

Exclusively, are we not?

Harry R. Sachse:

Yes.

Potter Stewart:

I thought so.

Harry R. Sachse:

Steelhead.

Potter Stewart:

At least that is what you are talking about?

Harry R. Sachse:

That is what I am talking about.

And the most succinct statements in the opinion of the Trail Court says in view of the large number of steelhead caught in the Puyallup river, it would seem that the department is not in a position to say the Indians can be entirely excluded from the exercise of any special right.

Okay, now, the Supreme Court of Washington referred —

Byron R. White:

Such as a commercial fishery?

Harry R. Sachse:

Sir?

Byron R. White:

Such as a commercial fishery?

Harry R. Sachse:

As a commercial fishery or fishery for their own?

Yes, such as commercial fishery.

The Washington Supreme Court reversed that.

They did not reverse the find.

They did not argue with the findings that 13 to 18,000 fish are being taken each year by sports fisherman.

Now what they said is, the catch of the steelheads for fishery alone in the Puyallup River leaves no more than a sufficient number of steelhead for escapement necessary for the conservation of the steelhead fishery in the river.

And so, they reversed the Lower Court, upheld with prohibition for fishing for steelheads with net and said that until that each year this should be reviewed and when there are enough left over after the sport fisherman are through, the Indians can come in and if the Department of Games says that there are enough, Indians can fish for those.

Potter Stewart:

Now, where do you find that language?

I am looking at the petition for certiorari of the Department of Game, filed September 21, the appendix.

Is it around page five?

Harry R. Sachse:

I think I have the citation to it in my brief.

It is at page 573.

Potter Stewart:

Alright, 573, well this is the same patronation here.

Page 573 A?

Well, that is not where it is, I think that —

Harry R. Sachse:

It is finding — it is point number four page 573, it is in this –

Potter Stewart:

I see it now.

But the holding was, wasn’t it and only as Justice White has suggested back on page 571 under finding four, second paragraph.

We are satisfied from the record in the present case, however that a regulation authorizing an Indian net fishery for steelhead for the year 1970 in the Puyallup River would have been destructive to the conservation of this steelhead fishery.

Potter Stewart:

And the Department of Games contention that there should be no commercial fishery in the Puyallup River for steelhead should be sustained as for that year.

That is the holding —

Harry R. Sachse:

That is the holding in the case.

Potter Stewart:

That is it.

Harry R. Sachse:

That is the holding of the Supreme Court of State of Washington in this case, but the Supreme Court clearly established, the Supreme Court in the State of Washington clearly established a priority for sports fishermen in deciding whether an Indian fishery can be allowed in the Puyallup River and they have established that priority in section four of the —

Potter Stewart:

You think, it’s all and it’s all there, that is what you are quarreling about?

Harry R. Sachse:

That is what we are quarreling about and we are also, I think you can see why we are quarreling about it because the Department of Game of the State of Washington still contests the right of the Indians to have any fishery there —

Byron R. White:

When you concede — you do not attack the finding that if you take into consideration a number of fish that are caught in the sporting business that to allow commercial fishery will endanger the run.

As long as you accept that many fishes taken by the sporting industry, then the Supreme Court is quite right in saying that commercial fishery can’t be allowed.

You do not contest that, do you?

Harry R. Sachse:

I do not know about that.

The evidence doesn’t show one way or another as —

Byron R. White:

That is what the court found —

Potter Stewart:

As the matter of fact, as a fact.

Harry R. Sachse:

Well, the court found that —

Byron R. White:

As a fact and let us assume you accept that.

Now, your real argument is that this sports industry should not be able to take that many fish, if it means cutting the Indians out of commercial fishery?

Harry R. Sachse:

That is correct.

My real argument is that this treaty provided the Indians with an off reservation fishing right beyond the simple fishing of other people in the state.

That the treaty should be interpreted in terms of its meaning and context, which was that these people would be able to some extent support themselves and feed themselves from these fishing rights.

Potter Stewart:

And that the treaty makes it incumbent upon the state to cut down the volume of sport fishery.

Harry R. Sachse:

That is correct.

Potter Stewart:

So long as the fact remains as they are, is that it?

Harry R. Sachse:

That is right, that they can’t take the entire harvestable fishery here and devote it entirely to a sports fishery —

Potter Stewart:

And then say there’s not enough left over —

Harry R. Sachse:

(Voice overlap) who fish here?

Potter Stewart:

Right.

Byron R. White:

I suppose you would concede that Washington could if we agreed with you, cease putting steelhead in the river?

Harry R. Sachse:

I have no quarrel with that at all.

I wish to point out also that the Federal Government has a large fishery development program in connection with Indians and Indian reservations and then just in general and that the Federal Government also plants fish in the rivers.

Harry R. Sachse:

Though not in the Puyallup and if the state wanted to stop planting the fish in the Puyallup, the Federal Government very likely would stop planting —

Byron R. White:

Then I suppose Mr. Sachse that what would be — what is obvious necessary to conserve conservation or to conserve the runs might be considerately be different than what’s necessary when the fish is putting in 61% of the fish that are caught?

Harry R. Sachse:

To this extent that it makes the larger run, it makes the larger harvestable amount and to take that harvest full amount and give a preference to sports fisherman for that harvest amount in an area where the Indians have traditionally fished and where they relied on fishing; part of their life (voice overlap)

Byron R. White:

Is there anything in the record to indicate what size of a commercial fishery the Indians are talking about or desire to conduct?

Harry R. Sachse:

Not — there is nothing in — as to second part, desire to conduct, there is evidence as to a few years when the Indian owned salmon.

When the Indians had a large —

Byron R. White:

Have they ever had a —

Harry R. Sachse:

There is no evidence as to size of commercial fishery on —

Byron R. White:

They never had a commercial steelhead fishery you say?

Harry R. Sachse:

As far as I know they fished steelhead mainly for their own sustenance and there is no —

Byron R. White:

There has never been a commercial steelhead fisheries?

Harry R. Sachse:

No I cannot say that because there are on the — when all of the reservation grants since there is a commercial steelhead fishery and sports fishery, they are conducted together by the trial —

Byron R. White:

Well, in the hearing of the — in order to find that the Indians couldn’t give up to run a sport fishery, there must have been some evidence put in by the Indians as to what kind of a sport fishery —

Harry R. Sachse:

Well —

Byron R. White:

— commercial fishery they were talking about?

Harry R. Sachse:

Let me say this that the Indians traditional and to this day do not make much of a distinction between steelhead and salmon.

There is steelhead and salmon guarderia, it is salmony guarderia, the big fish like salmon and the fish the same way, and there are commercial markets for steelhead too.

But there is no solid evidence as to what the Indians would want if for instance, they were allowed to fish legally for these fish.

Now, I actually say this.

We are not asking this Court to determine how many fish the Indians should get or how many fish the sports fisherman should get.

There is another case underway.

The District Court, the Federal District Court in the State of Washington call it United States versus Washington where the attempt is somehow to quantify the fishing rights of the Indians.

It deals primarily with salmon, but it also can deal with the steelhead issue and there is a very big record there.

But what does seem to clear to us is that in 19 — for the 1970 regulation, for every regulation since then based on this conclusion of the Supreme Court of Washington that the sports fisherman have to come first.

That the Indians are being deprived of their share of the fishing for steelhead —

William H. Rehnquist:

You do not claim any discrimination against the Indians here, do you?

Harry R. Sachse:

I claim a discrimination against their treaty rights.

William H. Rehnquist:

Well —

Potter Stewart:

(Voice overlap) treaty rights, denial of their treaty rights?

Harry R. Sachse:

A denial of their treaty rights.

William H. Rehnquist:

But the denial of their treaty rights —

Harry R. Sachse:

But there is a discrimination too.

I do claim it and I want to make this clear that the Indians fish in the rivers and there’s — I do not want to get into the record on this, part of the reason is that they do not have the money to go out and fish deep-sea fishing and the state has evidence that its costs $122.00 per fish to catch a steelhead as a sports fish.

I mean, they do not have that kind of money and they have always fished near where they lived in the river where they can fish on rather occasional basis often after they come back from whatever — what other job they might have and it is a discrimination —

William H. Rehnquist:

But it is not as if the State of Washington were saying to a white man that you can fish commercially, but the Indians can’t.

The regulation applies across the boarder.

Harry R. Sachse:

It’s like this.

If all the black people lived in a particular neighborhood and the white people lived in a different neighborhood and the court said in this black neighborhood nobody can work in his yard.

In this neighborhood, nobody can work, nobody can have a business and the other neighborhood you can.

I think you could find there is a discrimination there.

That the fishing has been prohibited in the place where the Indians fish and it is deliberate, it is deliberate.

William H. Rehnquist:

But it is not just the place, it is a manner of fishing that has been prohibited, isn’t it?

Harry R. Sachse:

That is correct.

It is the manner of fishing that this Indians used to fish, and there is no showing that it’s necessary for conservation to prohibit that.

It can be regulated and handled very well, it is being handled on Indian reservations and on this river with salmons.

Potter Stewart:

May I?

See if I understand basically what this.

This is a petition and a cross petition.

These are cause petitions, aren’t they?

Harry R. Sachse:

Correct, two petitions.

Potter Stewart:

And your brothers in the other side I gather say that the, you tell me if I am wrong because I am far from sure that I do understand this that, but the Game Commission of the State of Washington says that the Washington Supreme Court was Department of Game of the State of Washington says that the Washington Supreme Court was just wrong in basic principle and that Judge Hayle is dissenting opinion was basically correct.

Would you understand that?

Harry R. Sachse:

Yes sir.

Potter Stewart:

You say, you say on the other hand that the Supreme Court of Washington was basically correct, but that they erred in giving sole priority to game fishing and in their approach that if and only if they were enough left over after the game fisherman got all the fish they wanted, only then could the Indians do any commercial fishing and that was wrong, that was the only thing that was wrong about that opinion?

Harry R. Sachse:

That is exactly correct.

And we also say that the remedy here has to be looked to carefully because the Indians have been deprived for a long time of these rights.

Potter Stewart:

But their only holding was with respect to 1970, wasn’t it?

Harry R. Sachse:

The holding was with respect to 1979 (Voice Overlap).

Potter Stewart:

But you said they applied the wrong test (Voice Overlap) all right.

Warren E. Burger:

Thank you Mr. Sachse.

Warren E. Burger:

Mr Attorney General, you got about three minutes left.

Joseph L. Coniff, Jr.:

Thank you Your Honor, (Inaudible) Mr. Chief Justice.

First point I’d like to make is that steelhead as a game fish may only be taken with broken line in waters in the State of Washington.

There is no salt water or marine commercial fishery for the species and no sport fishery to any substantial extent at all occurs in salt water.

Therefore, the only place where steelhead maybe taken under state law is by hook and line in fresh water streams at the very same locations that this Indians are claiming rights to put commercial fish.

Potter Stewart:

Your own State Supreme Court didn’t feel bound by that, did it?

Joseph L. Coniff, Jr.:

No, I am merely advising the Court that that is a fact.

That is where the fishery occurs, that is the sport fishing occurs.

Potter Stewart:

Well, what you are saying it is the law that the steelhead maybe only taken by line, that is not a fact, that is a law?

Joseph L. Coniff, Jr.:

Okay, in the past up until now, that’s where it has occurred.

There is no commercial marine fishery.

These are not commercial fish.

There is no commercial market for steelhead in the State of Washington.

They are a game fish and I wanted to make that point.

Second point is I wanted to just simply briefly re emphasize Mescalero-Ward versus Racehorse as a part of the reading of the equal protection concepts implicit in the treaty language.

Potter Stewart:

You think Judge Hayle’s dissenting opinion was correct, is that right?

Joseph L. Coniff, Jr.:

Yes, that is correct and I agree with the statements made by counsel the way the issues are delineated before the Court.

Potter Stewart:

Right, okay.

Byron R. White:

Well what did Supreme Court say?

Joseph L. Coniff, Jr.:

I do not believe that — they are okay.

The basic way that they where wrong is that they are allowing the director of the Department of Fisheries to set special Indian only seasons for commercial harvest of fish in off reservation waters contrary to the treaty language.

Byron R. White:

Even though they never do that exhaustively (Inaudible)

Joseph L. Coniff, Jr.:

I am sorry, I do not understand you.

Byron R. White:

(Inaudible)

Joseph L. Coniff, Jr.:

The Department of Fisheries has not the Department of Game.

Byron R. White:

Have they set special season?

Joseph L. Coniff, Jr.:

Yes, they have in a number of fishes.

Potter Stewart:

Not the steelhead?

Joseph L. Coniff, Jr.:

Not the steelheads.

Steelheads are under game jurisdiction, the salmon are under the fisheries jurisdiction bound under state law.

Potter Stewart:

Right.

Byron R. White:

And how about (Inaudible)

Joseph L. Coniff, Jr.:

With respect to steelhead it had imposed an additional burden upon the Washington Department of Game in that, it has to demonstrate annually that it is quote —

Byron R. White:

You don’t have to do that every year?

Potter Stewart:

You succeeded in carrying that burden every year beginning 1970?

Joseph L. Coniff, Jr.:

Under all series of Court challenges and that leads me to the final point I would like to leave —

Byron R. White:

(Inaudible) is because you have to say that you must satisfy the sports issue?

Joseph L. Coniff, Jr.:

Under the language of opinion that it indicates that the sport fishery, being a very efficient fishery, broken line is opposed to a net would be satisfying.

And then if it can be demonstrated, there is a surplus at that point; it is then incumbent under the state of the law, under the opinion below to establish this special commercial season on game fish of steelhead in the State of Washington.

I want to point out that there is no discrimination under state law in off reservation areas.

There is and there has been a great deal of civil unrest in the state, a great deal of confrontations, riverbank, shoot outs if you will.

Our Game Department Headquarters have even been taken over.

Offices are ransacked and so forth and I really point out that in light of these facts and in light of the fact that there are a number of pending cases including US versus Washington that there is a definite need for clarification beyond that given us by the Supreme Court of the State of Washington.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.