Puyallup Tribe v. Department of Game of Washington – Oral Argument – March 26, 1968

Media for Puyallup Tribe v. Department of Game of Washington

Audio Transcription for Oral Argument – March 25, 1968 in Puyallup Tribe v. Department of Game of Washington

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Earl Warren:

… and 319, The Puyallup Tribe, petitioner versus Department of Game of Washington, et. al., and Eugene Kautz, et. al. versus Department of Game of Washington.

Mr. Coniff, I believe you were arguing, you may continue your argument?

Joseph Lawrence Coniff, Jr.:

Thank you, Mr. Chief Justice, may it please the Court.

Where we left off yesterday, I think I was discussing the impact of the off reservation Indian fisheries as they have developed in recent years upon the salmon and the steelhead resources of the State.

And in this connection, as you may recall, I was referring to certain graphs, which had been admitted into evidence by the trial court which I think demonstrate in graphical form the fundamental nature of the problem in terms of the salmon resource.

The graph which you presently see on the chart reflects —

Earl Warren:

Mr. Coniff, I wonder if before you get to that, if you can tell us just what rights under the fishing rights the Indians have under the Treaty as you see it?

Joseph Lawrence Coniff, Jr.:

As I see it, Your Honor, the Indians have a right not to be discriminated against and by virtue of the language contained in the Treaty.

Now we are relying upon the phrase, “In common with the citizens of the territory” and as I mentioned to Your Honor, yesterday, this phrase “In common with the citizen of the territory” also appears in another context in the Yakima Treaty; that has to do with the right of the Indians to go upon the public road ways.

These are interpretations.

It’s further supported, Your Honor, by the minutes of the Treaty itself, by the minutes of the Treaty of Medicine Creek and the minutes of the Treaty at Camp Walla-Walla, which led to the Treaty negotiated with the confederated tribes and bands that presently are on the Yakima Reservation.

This document was admitted into evidence at the trial court, plaintiff’s Exhibit “45”.

It is a copy of the National Archives Minutes. Referring to page 7.

“It was also thought necessary to allow them to fish at all accustomed places since this could not interfere in any manner with the rights of citizens and was necessary for the Indians to obtain subsistence”.

This document I am referring, the certified copy of the minutes of the Treaty of Medicine Creek, which is —

William J. Brennan, Jr.:

Is that in your Brief, the quote you just read us?

Joseph Lawrence Coniff, Jr.:

No, it is not in my Brief, Your Honor.

William J. Brennan, Jr.:

Do we have that document at all?

Joseph Lawrence Coniff, Jr.:

This document is part of the record which was sent up and it is here.

This is the document I —

William J. Brennan, Jr.:

What page?

Joseph Lawrence Coniff, Jr.:

This is at page 7, Your Honor.

William J. Brennan, Jr.:

Thank you.

Joseph Lawrence Coniff, Jr.:

Referring also to page 5 – may I have one moment – of the same document, “The great father has many white children who come here, some to build mills, some to make farms and some to fish and the great father wishes you to have homes, asked you for your horses and fishing places.

He wishes you to learn to farm and your children to go to a good school and he now wants me to make a bargain with you, etcetera”.

These are the only two references that do exist in the minutes of the Treaty Convention of Medicine Creek.

Earl Warren:

There is nothing about the commercial fishing on those notes?

Joseph Lawrence Coniff, Jr.:

No, Your Honor.

I’ve read you the only two relevant portions that exist in this document.

William J. Brennan, Jr.:

I think we were told yesterday that in fact, the Indians did market some of their catch at that time?

Joseph Lawrence Coniff, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

Is that conceded?

Joseph Lawrence Coniff, Jr.:

I will concede a very limited bartering although I will not — at that time, the fish were extremely plentiful and it was certainly and it did not require any great deal of effort to obtain fish at that time, in aboriginal times or pre-treaty times by either Indian or non-Indian by simply putting in a very simple brush wear in shallow waters, which was the testimony at the trial court by the anthropologist.

The Indians were able to catch fish.

His testimony further was that the Indians did not fish in deep water.

They used spears, deep nets and brush wears in shallow water because they simply didn’t have the technological ability at that time, with the materials that they had at that time, to construct an obstruction if you will to the deep water or the high velocity water streams; in other words, the main channels of the streams.

Their fishing activity occurred primarily in a more shallow tributaries in the various rivers that lead in or feed in into the Puget Sound area.

In this connection, I would like to —

William J. Brennan, Jr.:

You said I think, y6ou concede that —

Joseph Lawrence Coniff, Jr.:

I concede unlimited barter.

William J. Brennan, Jr.:

— with the unlimited form of barter.

Joseph Lawrence Coniff, Jr.:

Unlimited barter and I believe the evidence in the records will substantiate that position but insofar as a large scale commercial enterprise, as we know it today, certainly, I will not concede that.

Potter Stewart:

In answer to the question, the basic question of the Chief Justice as to what your position is as to the meaning of this provision of the Treaty, I want to be sure you — I understood your answer.

You said the — you thought it simply guaranteed that the Indians would not be discriminated against?

Joseph Lawrence Coniff, Jr.:

That is correct.

Remembering, Your Honor, that at that time, the Indians at Puget Sound (Inaudible) 1855 were not citizens and could at that time be legally discriminated against.

And I think that if the Treaty is read or interpreted in light of its historical context or setting, I think that this gives credence to (Voice overlap) the interpretation that I’m reaching.

Potter Stewart:

In other words, the Treaty gives them no more than the Equal Protection Clause of the Fourteenth Amendment now gives the, and I realize that the Fourteenth Amendment was adopted after this Treaty?

Joseph Lawrence Coniff, Jr.:

Yes, that is my contention, Your Honor.

Earl Warren:

Is there any contention that you are administering this law against using the fish nets discriminatorily?

Joseph Lawrence Coniff, Jr.:

There is no evidence in this record and in fact, this is simply not true, Your Honor.

Earl Warren:

Is it being administered all over the State?

Joseph Lawrence Coniff, Jr.:

It is being administered equally to Indians or applied to Indians as well as non-Indians.

In other words, the law is a, assuming it meets other constitutional test of reasonableness and legislative object and so forth, it is applied uniformly to persons regardless of race, creed or color.

Earl Warren:

What size is it — any difference between nets of different sizes?

Joseph Lawrence Coniff, Jr.:

Well, Your Honor, the distinction that has been legislatively drawn by the legislature of the State of Washington is that “Thou shall not place nets; thou shall not operate with operate gear or nets of the type and nature which had already been described in fresh water streams of the State” and as I mentioned yesterday, the reason for outlawing netting and fish wheels, fish traps, all are prohibited.

Dynamiting is prohibited. Poisoning of the river is prohibited by the legislature to protect these fish in their nurseries.

This fish must be able — must be protected from a net fishery because it constitute such a hazard to the maintenance of the run.

As I’ve mentioned, Your Honor, the economic value of the fish is such that if we further would restrict the Puget Sound fishery for sport and commercial and we got more fish to the mouth of the river, we would merely see a greater Indian take.

And, I think this is demonstrated —

Byron R. White:

You really mean that if you’ve got 10 times as many fish at the mouth of the river get there now that there wouldn’t be some feasible way of regulating the Indian fishing at the mouth of the river in order to ensure that enough fish got through and got up the river?

Joseph Lawrence Coniff, Jr.:

My position is, Your Honor, that this is not feasible because, as I mentioned yesterday, I believe in response to Your Honor’s question, the fish at the time that they make the transition from salt to fresh water, tend to mill and halt.

They actually go through a physiological change.

The salmon do in their upstream ascent to the spawning grounds and they will sometimes hold and the evidence on this record and the opinions of the experts that testified in the trial below, clearly indicate that this fish tend to mill and they will hold for three or four weeks.

They further, Your Honor —

Byron R. White:

Yes, but if you said — I would suppose that if you said to the Indians who were fishing there that based on the number of fish that you find at the mouth of the river, if you said – your take should be limited to ex-fisher, ex pound and that’s all.

Each day or some overall limit you could certainly find some way of guaranteeing that enough fish were left to get up the river.

Joseph Lawrence Coniff, Jr.:

Well, Your Honor —

Byron R. White:

You think that’s just impractical?

Joseph Lawrence Coniff, Jr.:

I must respectfully disagree with your statement.

I do believe there are sound biological or management reasons for this State law.

But further, Your Honor, I point out to you, is it alright to – and I don’t mean to be facetious – but would it be permissible to rob a store if you only took $50 as opposed to $500.

The question that I see it from my client’s point of view —

Byron R. White:

Well, yes but that assumes — now you’re going back to your first point that Indians don’t have any right at all that — and if the Court decides that the Indians do have some right beyond that the ordinary inhabitant, then he is not, he’s not stealing $50 or a $1000.

He is exercising the right he is supposed to have?

Joseph Lawrence Coniff, Jr.:

If the Court finds that he has this right then I think, as a matter of constitutional law, that the State has no right to regulate.

Byron R. White:

At all?

Joseph Lawrence Coniff, Jr.:

Because the State would be then in the position ( Voice overlap) of defining the Treaty right.

Byron R. White:

Then this whole case turns upon whether there’s a right or not?

Joseph Lawrence Coniff, Jr.:

Yes.

Byron R. White:

It’s either one way or another, it’s either one way or all the other?

Joseph Lawrence Coniff, Jr.:

As an alternative, I would offer to the Court the rationale utilized by the Court below, but that is not my primary contention.

Byron R. White:

Let’s assume though that there was this special right the Indians had another or shared by the other inhabitants.

You’re suggesting to us that there’s no practical way even if 10 times as many fisher arrived at the mouth of the river as were did it up stream.

There’s no practical way of regulating Indian fishing so as to ensure that enough fish would go on up and still let the Indians catch some fish?

Joseph Lawrence Coniff, Jr.:

Are you assuming — Oh!

May I?

I don’t mean to ask you a question and respond to a question.

I would point out to you the problem of milling and holding.

I would further point out that if the question of how many fish is left to the Indians, I would seriously doubt that sufficient numbers would escape up the stream to the spawning grounds, to perpetuate the run in anyway, anywhere near the — a production level as opposed to merely maintaining these species of fish in existence and by that I mean one or two fish.

William O. Douglas:

I suppose you could do it theoretically get enough game wardens on night and day on every stream?

Joseph Lawrence Coniff, Jr.:

Are you assuming State regulation, Your Honor?

William O. Douglas:

Yes.

Joseph Lawrence Coniff, Jr.:

It would be extremely difficult and force the problem.

In this connection, we do have a serious problem in the State of Washington with regards to the identification of members of these various 38 tribes.

To my knowledge, tribal rolls had been prepared for only the three or four largest tribes and the smaller tribes, the fragmented groups throughout Puget Sound, do not have membership rolls.

This has created serious problems in terms of law enforcement on the part of the game protector.

Earl Warren:

Is there no time of the year when it could be said that at that time, it is reasonable as a spawning season and that during that spawning season only the nets cannot be used rather than to say that that no time throughout the year could they fish there with such nets?

Joseph Lawrence Coniff, Jr.:

Well, Your Honor, I think that the time when anyone wants to fish is when the fish is there.

Earl Warren:

That that might be another thing but I’m speaking about biologically and scientifically, could they not limit it to the spawning season?

And after all, the only time you would really be interested in is the spawning season, isn’t it?

Joseph Lawrence Coniff, Jr.:

Well, in the opinion, to answer your question, Mr. Chief Justice, in the opinion of Dr. Van Cleave, the dean of the College of Fisheries, whose opinion was corroborated by Dr. Hamilton and Professor Donaldson, three eminently qualified biologists who have spent their life in science studying the problems of salmon.

In their opinion, the answer to your question would be no.

They give several reasons for it.

I’ve already mentioned two.

There are others. For example, if you have a net fishery which actually sweeps the spawning area itself, which of course are in these fresh water streams, even the fish that aren’t taken tend to be disturbed, and tend to spawn unsuccessfully.

And there’s data in the record which studies and observations which have been made by trained people to indicate that this is a side effect.

In other words, the fish are harassed at or about the time that they are to engage in the spawning act.

They will tend to spawn unsuccessfully.

In other words, they will spawn prematurely in deep water rather than going and making the nest or the red in the gravel in depositing the eggs and continuing on in that manner.

The —

William O. Douglas:

When does the steelhead season?

Joseph Lawrence Coniff, Jr.:

When is the steelhead season?

William O. Douglas:

I mean, when does the steelhead come in to spawn?

Joseph Lawrence Coniff, Jr.:

In this particular river system, the steelhead —

William O. Douglas:

They’re running right now, aren’t they?

Joseph Lawrence Coniff, Jr.:

Yes, they run December to March.

They are present in the river.

William O. Douglas:

The salmon come in, some come in in May?

Joseph Lawrence Coniff, Jr.:

In the Puyallup system, they run through from approximately July to March, Your Honor.

Joseph Lawrence Coniff, Jr.:

At the various species are — as adults here in the river, not all times in the river you will have the juveniles so that during their fresh water rearing period but we really not — these nets do not affect the downstream or out stream migration of the juveniles, except insofar as the spawning nests are disturbed by people or nets being dragged across them.

They will tend to break up the nest and expose the eggs and they will then — you will have extremely high mortalities at this particular —

William O. Douglas:

You know when the jack salmon run?

Joseph Lawrence Coniff, Jr.:

Your Honor, I’m afraid — in this river system, I —

William O. Douglas:

They run at various periods, don’t they?

Joseph Lawrence Coniff, Jr.:

They run at very various periods, is my recollection.

I just simply — as I recall it, the definition of a jack salmon is that it’s simply an immature salmon or salmon that came back a year too soon after spending his salt water type as a mature.

William O. Douglas:

You should began in the big arguments.

Joseph Lawrence Coniff, Jr.:

I’m aware of it.

Earl Warren:

Is there any limit put on the amount of fish that commercial fishermen can take in the Sound?

Joseph Lawrence Coniff, Jr.:

Yes.

Earl Warren:

How is that regulated?

Joseph Lawrence Coniff, Jr.:

It is regulated with regard to time, area and gear.

And I think in this connection, it could be pointed, it should be pointed out to the Court as an example that in the year 1942 on the Columbia River, they were allowed 274 days open for gill netting in the downstream or lower portions of the Columbia below Booneville Dam.

In 1967 —

Earl Warren:

By 274 days, how many could they catch during that time, all they could?

Joseph Lawrence Coniff, Jr.:

All they could within the area that is open.

Abe Fortas:

Is that fresh water?

Joseph Lawrence Coniff, Jr.:

That is fresh water, Your Honor.

Abe Fortas:

Well, how did they do that?

Joseph Lawrence Coniff, Jr.:

This is the only fresh water fishery for salmon, commercial fishery for salmon in the Pacific Northwest.

The reason —

Abe Fortas:

I don’t understand this, some of or part of your argument.

Statutes are set out in your Brief, aren’t they on pages 8 and 9?

Joseph Lawrence Coniff, Jr.:

Yes, Your Honor.

Abe Fortas:

And the statute prohibits netting in the waters of the State.

That’s a key phrase, isn’t it?

Joseph Lawrence Coniff, Jr.:

Yes, Your Honor.

Abe Fortas:

And that means only fresh waters, is that right?

Joseph Lawrence Coniff, Jr.:

That is correct.

Abe Fortas:

So that — and there must be some provision which I don’t see it here which permits your Department of Fisheries to make exceptions to that, is that right?

Joseph Lawrence Coniff, Jr.:

No, Your Honor.

I think —

Abe Fortas:

So what’s a Columbia River?

How did they permit commercial netting in the Columbia River?

Joseph Lawrence Coniff, Jr.:

This is a 10% to the Columbia River compact, Your Honor, which is essentially joint management of the fishery by the States of Washington and Oregon.

This was ratified by Congress so that you have a concurrent jurisdiction established pursuant to the compact so that this particular (Voice overlap) will not apply.

Abe Fortas:

Alright, now the State does permit commercial netting in salt water?

Joseph Lawrence Coniff, Jr.:

That is correct.

Abe Fortas:

And I suppose the — and you say that there’s a limitation on that in terms of number of days which it might be done, is that right?

Joseph Lawrence Coniff, Jr.:

Yes, Your Honor.

The point I was making by my illustration was that there is — there have been in the last 30 years greater and greater restrictions placed upon both commercial and sport fisheries, particularly commercial.

Abe Fortas:

That might be fine but I suppose the Indians, one of the Indian statement is that they have a right to fish at customary places by the Medicine Creek Treaty and that then the State comes along and says, “You can’t fish at all because can’t — net at all here in fresh water for conservation reasons” but at the same time, the State permits a commercial fisheries to net in the salt water.

Now, both of them result in the reduction of fish population.

And there are regulations and restrictions with respect to commercial fisheries and the question that we’ve been pursuing here as I understand it, is why can’t there be a comparable commercial — comparable regulations with respect to the Indians’ use of nets.

Now, may be they can’t be in terms of fish taken, but can’t there be in terms of some reasonable arrangements with respect to days and what not?

The fish that the commercial fisheries catch, don’t go back and spawn.

May be some of them are on their way back from having spawn but others, I suppose, are on their way to the river to spawn and that matter where the fish is apprehended if it doesn’t get to it spawning place, it doesn’t spawn, is that right?

Joseph Lawrence Coniff, Jr.:

That is correct.

Abe Fortas:

But why — is it your contention that this is evenhanded and that the Indians are not being regulated more drastically than the commercial fisheries?

Joseph Lawrence Coniff, Jr.:

The Indians are being regulated, Your Honor, on the same basis as all other —

Abe Fortas:

Well, that’s what we’re pursuing here because I’m not at all sure, Indians have a right to pursue their fishing at customary places.

Customary place here is at the mouth of the river and when you say you can’t do it at the same time you permit the commercial fisheries to use nets and you subject them to regulation.

The question is — are you taking your interpretation of the Treaty on that basis, are you really giving the Indians equivalent or equal treatment with the non-Indians?

That’s a question and it is somewhat affected by practical consideration whether you could subject the Indians to comparable regulations – that is in terms of days or something like that.

Joseph Lawrence Coniff, Jr.:

But, Your Honor, assuming, of course, that there is a special right that the Indians possessed by virtue of this Treaty language —

Abe Fortas:

No, assuming your construction which is that this is a “right in common”, that is to say that they have a right to fish there, which is subject to regulation by the State, but that the regulation must — within human exacted to you than no more, they even handed in its operation on the Indians on the one hand and on the non-Indians on the other?

Joseph Lawrence Coniff, Jr.:

I would submit, Your Honor, that the record does not establish any discrimination on the part of the State of Washington with regard to entry or use of gear on the part — because of bloodline ancestry.

In fact —

Abe Fortas:

Well, if you had that kind of a public regulation about salmon, that you have about steelhead trout, I can understand that as I understand on steelhead trout, they can be taken only by hook and line by anybody.

Joseph Lawrence Coniff, Jr.:

That’s is correct.

It is last —

Abe Fortas:

And here, what you say is that the Indians can’t net.

Nobody can net in fresh water.

I mean, the Indians can’t net at all per se if they don’t have any particular status with respect to salt water and as practical matter they don’t engage in that kind of commercial fishing.

But you say that the commercial fisheries can net out in salt water and it’s arguable.

I’m not saying anything more than that but I’m suggesting to you that it’s arguable; arguable that that is not the equality of treatment.

Joseph Lawrence Coniff, Jr.:

Well, I would have to respectfully disagree with you, Your Honor.

There are two points that do occur to me as a result of your statement.

The first is, that there in fact are numerous Indians who engage in the salt water fishery and in fact quite recently, the Bureau of Indians Affairs has obtained apparently the necessary appropriations and has purchased purse seine vessels for the Makah Tribes and the Makah Tribe is now going to be as a tribal operation, fishing commercial in the straits Juan de Fuca.

There are, as I mentioned, there are numerous Indians who do engage in the salt water fishery and there was certainly have no provisional limitation upon their ability to do so if they so desired.

I think another point that should be called to the attention of the Court has to do with the value of the fish at the time or at the point of its migration where it’s caught.

Now if you take a fish that’s up near the spawning grounds, you’ve got a fish that is changed substantially in quality, deteriorated in quality from that same bright fish, which would be taken in the salt water.

It has spent a great deal of its bodily energies in making its ascent or upstream migration.

Its flesh, it’s body oils have been expanded.

It’s flesh, rather than being firmed is soft and shrunky.

It is a very low commercial value fish.

The evidence, I believe, is in the record which indicates that some of this lower value fish would go down as low as three to five cents of pound for the first price to the fishermen as opposed to salt water in the same value of thirty-five to forty cents of pound.

These are very rough figures.

I’m giving you the exact market quotations but there is, there isn’t can be and it is a substantial difference in the actual economic value of that fish, depending upon the point which it’s taken.

Earl Warren:

Why does the State limit commercial fishing to 280 odd days a year rather than 365?

Joseph Lawrence Coniff, Jr.:

Your Honor, I think this goes back about ten minutes and I know I’m going overtime in terms of my colleagues, I do want to point out that — that was only the first part of my illustration.

In 1942, the States, under the Columbia River Compact, the States of Oregon and Washington allowed 274 days for gill nets in the Lower Columbia.

In 1967, the States of Washington and Oregon allowed 80 days, the same trend is apparent on the Puget Sound fishery, both as it would apply to purse seine or drift gill net type of fisheries.

Earl Warren:

So why did they put the 274 in the first place instead of 365?

Joseph Lawrence Coniff, Jr.:

At that time, Your Honor, the management agencies, the persons who are trained in this field or in this science if you will, made the decision that they had a certain escapement goal to make.

Earl Warren:

They have what?

Joseph Lawrence Coniff, Jr.:

An escapement goal to make of so many fish over Booneville Dam of the various species.

At that time, the runs were in a lot better shape than they are now.

So, therefore, they were able to meet their escapement goal and yet allow this much fishery.

Joseph Lawrence Coniff, Jr.:

In order to meet the same escapement goal for that same number of fish over Booneville Dam on the Columbia, they had to reduce the fishery on the various species in the Columbia on salmon now from 274 days in 1942 to 80 days in 1967 and those figures are not — they are fairly reflective figures in terms of —

Earl Warren:

The reason I asked that question was if you can put an arbitrary date like that on the commercial fishing, why couldn’t you put similar date on the gill nets at the mouth of the river?

Joseph Lawrence Coniff, Jr.:

Well, Your Honor, I keep repeating myself but the problem is that if you allow a fishery there, it will say hypothesize one day a week and the fish that it’s fishing, the stock that it’s fishing is a stock that’s milling as opposed to migrating, which is one reason by the way, Your Honors, that there is a fishery allowed in the lower Columbia for commercial purposes is because it is migration water as opposed to holding water.

This fish do not stop in their migrations.

They don’t begin to stop until they are up either in the mouth of these rivers they’ve already made their salt to fresh transition in their life cycle and they don’t begin to hold up until they begin to get up into the tributaries either above Booneville or up the water limit or one of the other tributaries in the Lower Columbia.

Earl Warren:

Can the commercial fishermen take them in the holding of waters?

Joseph Lawrence Coniff, Jr.:

No, not in the Columbia nor anywhere in the State of Washington.

Earl Warren:

How do they fix out, by months or how?

Joseph Lawrence Coniff, Jr.:

No, by area, by area prohibition and this is what this is (Voice overlap).

Earl Warren:

— allow any fishing at all, any commercial —

Joseph Lawrence Coniff, Jr.:

There is no commercial fishing permitted in fresh water in the State of Washington, with the exception of the Lower Columbia, which is, as I mentioned, under this Columbia River Compact jointly managed by the two States.

I’m way overtime and I don’t want to deprive my colleagues —

Hugo L. Black:

Let me just ask you one question.

Joseph Lawrence Coniff, Jr.:

Yes, sir.

Hugo L. Black:

Was there any issue entered by the Indians based on the thesis of the government’s argument that the Court should canvass and consider in order to determine whether the State laws were bad because they did not regulate the fishing better at the part of these waters that he says they should have regulated back.

Was that canvassed or considered by the Court?

Do we have any basis on which to reach a conclusion about those matters?

It seems to me like they somewhat complicate us.

Joseph Lawrence Coniff, Jr.:

It is a complicated thing, Your Honor.

It’s something that we have – within the State of Washington and I’m sure in Oregon and Idaho also, we’ve delegated this management, responsibilities to persons who are trained in this area or in this field to act.

If they act arbitrarily or capriciously or don’t do their jobs –-

Hugo L. Black:

I’d rather you’d leave out those words.

What I want to know is if there’s anything in this record that would authorize us to reach a conclusion if we desire to do so; that the State laws are bad because they in some way discriminate and that they do not let enough fish come up into the place where the Indians fish.

Is there any mention in the record on which we can draw legitimate conclusions on that matter?

Joseph Lawrence Coniff, Jr.:

My answer would be no, Your Honor.

Thank you.

Earl Warren:

Mr. Johnston?

Mike R. Johnston:

Mr. Chief Justice, may it please the Court.

If I can return a minute to what co-counsel was discussing, the fish are not frangible items.

They are not at all the same.

Mike R. Johnston:

Even within a single stream, the fish are different.

They are possessed of different gene characteristics and they go to different parts of the stream and the difficulty with catching fish with a net at the mouth of the river on fresh water is that the fish mill around and they stay there and you fish over and over again on the same stocks.

The same fish are being fished today, tomorrow or next week, may be two weeks from now depending on how long they stay there.

And so what you would effectively do is you effectively destroy a certain portion of that run and that portion that once it’s destroyed, it may never return again.

In other words, fish A may go three miles upstream, fish B will go four miles upstream, fish C will go five miles upstream.

If you remove fish A, there aren’t anymore fish A’s.

If you catch every fish A, then effectively you destroyed that portion of the run.

Earl Warren:

If you have commercial fishing for 274 days a year and some of those days, the fish are on their way through the Sound up to the rivers to spawn, you’re cutting down the number too that are going up their to spawn, aren’t you?

Mike R. Johnston:

You’re always taking numbers.

That’s the reason for having a resource; it’s the utilizing.

And what you try to do — if you’re trying — the commercial fishing as regulated in such a way — the fishing boat stays in one place and the fish goes, the fish swim by essentially.

Now if the fishing boat stays in one place and the fish are staying in one place, everyday of scooping out the same sparks all the time and you’re destroying, effectively destroying a portion of the run.

They will never, probably never, come back.

Commercial fishing is allowed in Puget Sound, for example —

Earl Warren:

They never come back if you catch them before they get there either, do they?

Mike R. Johnston:

No, that’s right.

Now, a stream can only handle so many spawning fish in theory.

You can over spawn a stream.

Earl Warren:

So you give all that to the commercial fishermen?

Mike R. Johnston:

Well, you don’t give it to the commercial fishermen.

What you’re trying to do is harvest it or take it. Let the commercial fishermen take it, that’s right.

We’re sports fishermen.

Take it.

And it makes no difference.

This bloodline ancestry is not of any concern to us.

The problem is where they catch the fish and how they catch the fish.

That’s the important thing I think in this case.

Earl Warren:

And there is also a question when they catch the fish?

Mike R. Johnston:

And when they catch the fish, that’s correct.

Earl Warren:

You agree with your colleague that there could be no season of the year when this could be done without serious damage to the spawn?

Mike R. Johnston:

That’s correct, Your Honor.

I think the record, I think the testimony in this record of the most imminent biologists that we could find is in uniform and they all say that you cannot fish at the mouth of the river with nets and the reason is that you’re fishing the same fish over and over and over again.

Abe Fortas:

Has the State ever attempted to make any contract or agreement with the Indians here and get federal action so as to supersede the Treaty or substitute an amendment of the Treaty that provide some substitute right for the Indians here, whether or not strictly the — whatever may be the strict construction of the Treaty?

Because if you start of with the conclusion, I’m not saying that I do but that’s what this litigation is about fundamentally, you start off with the conclusions that the Indians have a right here and that that right is being impaired by the regulation.

The fact that the regulation may be highly desirable and I think you made what sounds to me at the moment like a noble almond (ph) case to that effect, but that that kind of irrelevant consideration.

Probably, you start off with the conclusion that the Treaty does confer a right on the Indians and the State is totally depriving the Indians of that right totally, then it’s a very difficult case.

But was there some reference to another situation which the States have provided the Indians with gear and boats so that they could engage in salt water fishing?

Mike R. Johnston:

Counsel was referring, Your Honor, to a program that’s run by the Bureau of Indian Affairs, the Department of Interior where they either subsidize or make outright grants of monies to Indians so that they may engage in commercial fishery, a legal salt water fishery.

In other words, they — long term loans for boats and equipment, a low interest loans so the Indians may (Voice overlap).

Abe Fortas:

That’s not by way of modification of the Treaty?

Mike R. Johnston:

No, sir.

Abe Fortas:

I don’t know whether these Treaties can be modified or superseded by appropriate action on the part of the Tribe and the federal government.

Mike R. Johnston:

Well, the Treaty, Your Honor, can be changed by an act of Congress tomorrow.

Abe Fortas:

That’s right.

Yes, that’s right.

Mike R. Johnston:

That’s without consent from no one.

Abe Fortas:

Has that been attempted?

Mike R. Johnston:

It’s a very difficult thing to pass Indian legislation in Congress, Your Honor.

It’s extremely difficult.

Abe Fortas:

I know, but had there been any effort to obtain an amendment so far as this Treaty is concerned?

Mike R. Johnston:

In the 1963, Your Honor, I think Senator Magnuson introduced to two different resolutions in the Senate: one saying that the Indian Treaty right was no more and no less than an a right to be equal; and the other said that the United States should purchase the Indian’s Treaty right whatever it was.

Hearings were held before the Senate Interior Committee and that was into the matter.

Abe Fortas:

That was referred to in the Briefs?

Mike R. Johnston:

No, they are not, Your Honor.

I do not believe so.

Earl Warren:

But is it your position that the State of Washington has no obligation to — in the event that it breeches the Treaty to these Indians?

Mike R. Johnston:

I’m sorry, Your Honor?

Earl Warren:

I say, is it your position that the State of Washington has no obligations to the Indians whatsoever in the event that it, the State breeches the Treaty?

Mike R. Johnston:

You mean, would we be liable on damages?

Earl Warren:

I said “Any right” that you — any obligation.

Earl Warren:

I don’t say it’s a question of damages but you have any obligation to preserve the rights of the Indians under that Treaty.

Mike R. Johnston:

Well, we have an obligation, I would assume there were law of the land, Your Honor and if the Treaty right is such that the Indians do have the right to fish, we will certainly respect that and we won’t attempt to regulate.

Earl Warren:

Is your position here on the — as far as that Treaty is concerned, that the Indians have no rights under that Treaty at the present time; that the State could make any regulations that it wants in the interest of conservation, and not withstanding the Treaty?

Mike R. Johnston:

That’s correct, Your Honor.

That’s our position: that the Treaty gave the right to the Indians.

Earl Warren:

Well, isn’t much of what were talking about extraneous if that issue your position?

Mike R. Johnston:

That’s correct, Your Honor.

Earl Warren:

And if there is any — there are any rights that they have a right to protect as against the State of Washington and you lose, don’t you?

Mike R. Johnston:

That’s correct, we lose.

Our position essentially is that the Treaty gave the Indians a right to fish in common with the citizens of the territory.

In 1855, the Indians had effectively had no right.

As a legal matter, they had no right.

There weren’t citizens.

They were just simply people who had been defeated and conquered.

The Treaty was made with them and they gave them a right to fish in common.

It was a grant from the United States to the Indians, not the other way around.

Earl Warren:

Now suppose the State of Washington should decides that it also interfered with spawning, and if there was any fishing at all on these rivers that go through the Indian reservation, could they say that no one could fish there and then justified on the ground that they’re dealing with the Indians same as the other, the public?

Mike R. Johnston:

Not on reservations, Your Honor.

I think reservations have a completely different legal status.

We make no claim whatever to regulate Indian fishing on Indian reservations.

Earl Warren:

They use gill nets there?

Mike R. Johnston:

Yes, as a matter of fact, they do in the State of Washington.

Yes, sir, quite extensive like –

Earl Warren:

You don’t have to regulate that?

Mike R. Johnston:

We do not make any attempt to regulate.

Hugo L. Black:

I gathered from someone yesterday that it was not the entire tribe can be doing this fishing, certain individuals, is that right?

Mike R. Johnston:

That’s correct, Your Honor.

Hugo L. Black:

Does Tribe get anything out of it?

Mike R. Johnston:

Ordinarily, Your Honor, being completely candid, I would say no.

It’s usually –

Hugo L. Black:

What do you have — do you have a personal private contract made by several Indians?

Mike R. Johnston:

Well, I am not so sure it’s quite a contract, Your Honor.

I think in the case of the Puyallup River for example, it’s more the law of the sword.

Hugo L. Black:

More what?

Mike R. Johnston:

More the law of the sword, the strongest Indians get the best fishing places and the weaker Indians —

Hugo L. Black:

Now, how did the entire Tribe have to be a part of this lawsuit?

Mike R. Johnston:

We joined them as defendants, Your Honor.

Hugo L. Black:

Why?

Mike R. Johnston:

Because the right to fish, if there is such a right, is a tribal right.

Hugo L. Black:

But this right is being exercised by Individuals?

Mike R. Johnston:

By individuals, that’s correct.

Hugo L. Black:

Not by the tribe?

Mike R. Johnston:

That’s correct.

Hugo L. Black:

Have they conveyed their rights to these Indians, these two or three Indians?

Mike R. Johnston:

No, it’s a communal right, Your Honor.

It’s a communal right, but it can only be exercised by people acting individually.

Somebody has to go and put the net in the river and each Indian —

Earl Warren:

What you have, as I understand it, is a mere commercial fishing that people [Inaudible] of it, two or three or four Indians?

Mike R. Johnston:

That’s correct, Your Honor.

I think at the time of the trial in this case, we kind of involved all the Indians in the State of Washington who were fishing in what we consider to be an illegal manner and they were only, I think approximately a 174 Indians in the whole State of Washington, there are fishing what we consider to be illegal.

Hugo L. Black:

And how did the others fish?

Mike R. Johnston:

Well, if they fish in a general commercial fishery, we don’t even know that they’re Indians.

In other words —

Hugo L. Black:

Where they do fish, but it’s not commercial.

Mike R. Johnston:

Well, —

Hugo L. Black:

What means do they use?

Mike R. Johnston:

Any lawful means.

Hugo L. Black:

But what law?

Mike R. Johnston:

Well, a net if they’re fishing commercially in the Puget Sound, a hook and line if they are fishing for sport.

Potter Stewart:

Of course on the reservation, they might use means which off the reservation would be illegal.

Mike R. Johnston:

That’s correct.

They used nets on reservations that when they come outside the reservation and use those means and that’s when we get in the situation that we are presently in.

Earl Warren:

Would there be any difference in your position if the Tribe was doing this gill net fishing as a communal matter instead of individuals as we have here?

Mike R. Johnston:

Not at all, Your Honor.

Earl Warren:

Do these individuals have any right under the Treaty, different to that which is the right of the tribe from mixed up about to suing the tribe?

Mike R. Johnston:

Well, we brought the suit against the tribe because we wanted to get the whole issue settled.

If we have sued a single individual, they may well have argued that we fail to join in an indispensable party because the right flows from the United States through the Treaty to the Tribe as an entity, but it’s exercised by the Individual.

William J. Brennan, Jr.:

The tribal right may be exercised by any members of the Tribe?

Mike R. Johnston:

That’s correct.

William J. Brennan, Jr.:

And if he does exercise it, what he gets he keeps for himself.

He doesn’t have to share with other members?

Mike R. Johnston:

That’s correct.

William J. Brennan, Jr.:

Is that right?

Mike R. Johnston:

That’s correct.

Earl Warren:

Does one number of the Tribe has the right to go catch all the fish?

Mike R. Johnston:

I would say if he can, yes, Your Honor.

If he is physically capable of doing that.

Now, some Tribes cooperate a little better with each other than others.

It would be less unfair if I didn’t say that but when speak in terms of a Tribe, it’s not a monolithic entity in the State.

It’s a very loosely organized and loosely defined situation.

For example, we don’t know who an Indian is.

We talked on that some yesterday.

Earl Warren:

Is this case in anyway fight between the several commercial Indians and the fishing [Inaudible] and other commercial fishers in general?

Mike R. Johnston:

No, sir, and it’s not.

It’s a fight merely bet — as we look at it, as we view it, it’s a fight merely between the fish and someone who would tend to destroy the runs.

William J. Brennan, Jr.:

Just tell me what’s the record had a lot about this commercial operations by the three Indians, are they related or something?

Mike R. Johnston:

Yes, Your Honor.

William J. Brennan, Jr.:

How large in operation is that?

Mike R. Johnston:

Before it was enjoined — in Washington you have a fish ticket system.

When you sale a fish commercially, the buyer makes out of ticket.

Mike R. Johnston:

He sends a copy, one copy of that to the State and that it has the poundage and the price paid per pound.

Byron R. White:

Does that work pretty well?

You think you get accurate reports?

Mike R. Johnston:

Yes, as long as it’s legal fishery.

In 1963, the gross receipts that we received from the State were a $124,000.

William J. Brennan, Jr.:

When there was a very large operation, I asked —

Mike R. Johnston:

Yes, Your Honor, it was a large operation.

They had as much gear in the river as physically the river could accommodate.

William J. Brennan, Jr.:

Well, does it compare in proceeds with what the commercial fishermen in the area that set aside for the salt water?

Would they get in the way of proceeds?

Mike R. Johnston:

I would say it was a fairly large operation, yes, Your Honor.

I would say it was a large commercial fishing operation.

William J. Brennan, Jr.:

And is this just three?

Were they —

Mike R. Johnston:

There were three brothers and they would have people working for them of and on tbut —

William J. Brennan, Jr.:

And those three brothers are members of this particular Tribe, was it?

Mike R. Johnston:

Yes, sir, members of the Puyallup Tribe, that’s correct, that’s our standing.

Earl Warren:

Didn’t someone say yesterday that there were about nine million salmon caught up there in a season and that about eighty thousand of them were caught by the Indians?

Mike R. Johnston:

I think that the numbers used yesterday were nine million fish and 818,000 fish caught by the Indians.

I think that, and perhaps I’m not correct that it was pounds instead of numbers of fish – Nine million pounds of fish.

Earl Warren:

I see.

Hugo L. Black:

Is there anything in this record from which we can read decisions that law is being operated in such a way that [Inaudible] fishing with nets that large commercial companies on the outside who are able to fish otherwise than which is being given an unfair advantage over the Indians?

Mike R. Johnston:

No, Your Honor, there is not.

There’s absolutely nothing in this record.

This is not an equal case.

There’s nothing — there’s not one; not a shred of evidence in the case on that.

It matters not who does the fishing; it’s where, when and how.

We cannot as to who.

Hugo L. Black:

These three Indian brothers get at fish while the others are fishing?

Mike R. Johnston:

They certainly can.

Hugo L. Black:

It would have been a law to prevent it?

Mike R. Johnston:

Absolutely not.

Hugo L. Black:

That’s the place where the stream that if they catch too many of them before they go up to the mouth of the river, isn’t it?

Mike R. Johnston:

That there was alluded to yesterday, Justice Black, by a counsel for the United States.

But what we really should do is cut down the fishing in the Sound and let more fish get to the mouth of the River.

Well, it sounds nice but it simply doesn’t work that way.

Hugo L. Black:

Has there been any issue of that kind canvassed to any extent whatever?

Mike R. Johnston:

No, Your Honor.

It’s simply a statement.

It appears in their Brief and it appeared yesterday in oral argument and it simply a statement that first plus sounds logical, but it’s not biologically sound.

Abe Fortas:

Well, is it biologically sound to — would it be biologically sound to set some for the State to fix such certain number of days during which time the Indians may fish?

They use nets in fresh water?

Mike R. Johnston:

No, it’s not biologically sound to use nets in fresh water by anybody —

Abe Fortas:

At any time?

Mike R. Johnston:

At any time, that’s correct.

Abe Fortas:

I suppose cause — upsets the fish?

Mike R. Johnston:

It’s not somewhat, sir.

That does in fact happen but and that also, the fishing in over and over on the same spawning stock and you remove various portions of gene pools.

What you’re trying to do is take the random sample out of the whole run as it passes a certain point and when the run gets to the river and the fish stop, and then you keep fishing over and over again on these same fish, that’s when you get into your extreme difficulty even if you can regulate the numbers that they take or the pounds that they take.

You destroy the individual gene sources and the run is destroyed ultimately.

Byron R. White:

So even if you said you’re going to limit the Indian fishing to ‘X’ pound, that ‘X’ pound may just happen to include too many fish of a certain kind?

Mike R. Johnston:

That’s correct.

Byron R. White:

There’s no way of avoiding that?

Mike R. Johnston:

The only way to avoid it would be to fish out where everyone else fishes.

In other words, fishing transportation what we call “transportation water”.

Byron R. White:

Where the fish are moving?

Mike R. Johnston:

Where the fish are moving, that’s correct.

William J. Brennan, Jr.:

May I ask it, does that $128,000 proceed, does that reflect the price for fish something as we were told earlier?

Depending on where you catch them, you may get only three to five cents pound that you catch some other places you may get $35 cents of pound?

Mike R. Johnston:

That’s correct.

William J. Brennan, Jr.:

And does this reflect sales of the lower price?

Mike R. Johnston:

No, it reflects else of a quality fish.

William J. Brennan, Jr.:

Quality fish?

Mike R. Johnston:

Quality fish, that’s correct, right at the mouth of the river.

Hugo L. Black:

If these Indians were denied their right to fish at the mouth of the river with nets, what other way of fishing is open to them that would be practical?

Mike R. Johnston:

They can take their nets and fish in a salt like everyone else.

Hugo L. Black:

They could take their nets and go at the salt water?

Mike R. Johnston:

That’s correct, Your Honor.

Hugo L. Black:

But what about fishing at the mouth of the stream?

How could they fish there?

Mike R. Johnston:

The only way that they can fish there is with the hook and line and a fishing pole.

Byron R. White:

Like everybody else?

Mike R. Johnston:

Like everybody else.

And —

William J. Brennan, Jr.:

If they take — they take their nets out to the salt water means you have to have —

Mike R. Johnston:

That’s correct.

William J. Brennan, Jr.:

And I gather this Tribe is not one of those as yet.

I think the Tribe has been getting the subsidy that you mentioned and given the equipment, the boats and such, is not this Tribe, isn’t it?

Mike R. Johnston:

That’s correct.

These two Tribes that were dealing with are the Nisqually and the Puyallups.

William J. Brennan, Jr.:

Which is the Tribe that has a subsidy?

Mike R. Johnston:

The Makah Indians and there may will be others too, Your Honor.

William J. Brennan, Jr.:

Are they some distance from where we are?

Mike R. Johnston:

They are in the northwestern tip of the State of Washington.

William J. Brennan, Jr.:

Yes.

Byron R. White:

Now what about the other members of the Tribe who share this right, are they making any effort to fish?

Mike R. Johnston:

I think it depends on the tenacity of individual, frankly.

Byron R. White:

Are you objecting only a — is this commercial fishery just at the mouth of the river or is it also up river?

Mike R. Johnston:

Depending on the river, it goes up the river as far as it’s feasible for the Indians to catch fish.

In other words, they will catch them in any place they can.

Byron R. White:

And how far up the river do they put up nets?

Mike R. Johnston:

In terms of miles under particular stream?

Byron R. White:

Yes, it’s not just at the mouth?

Mike R. Johnston:

No, in the case of the Puyallups, it went up to the time somewhere, which I would guess is about ten miles.

Byron R. White:

So it’s fish that whole run down?

Mike R. Johnston:

That’s correct.

Byron R. White:

And all through this water, fish just sometimes just milling?

Mike R. Johnston:

That’s correct, Your Honor.

And, of course, the primary place to fish is —

Byron R. White:

Is at the mouth?

Mike R. Johnston:

— is at the mouth.

That’s the best place because get the first crack of the resource.

Everybody behind you has to take what’s over from your operation are the fish that escaped your nets.

Earl Warren:

Did I understand that the salmon run in the Sound has decreased remarkably in the last few years?

Mike R. Johnston:

Over the long haul, Your Honor, that’s correct.

In the Puget Sound (Voice overlap).

Pardon?

Earl Warren:

To what extent has it decreased?

Well, if you know —

Mike R. Johnston:

No, I do not know precisely, Your Honor, in terms of fishing days or in terms of how it’s taken but the resource is dwindling and the reason that it’s dwindling is because the environment has slowly but surely being destroyed.

Earl Warren:

So really, though this isn’t the interest of the commercial fishery, doesn’t it to stop the Indians from fishing at round the river within fish to run for your commercial fishing?

Mike R. Johnston:

Oh!

It’s in the interest of maintaining the resource and it’s commercial fishermen benefit from that and that’s correct.

But it’s not — it’s in the Indians own interest themselves.

The Hoko River is a perfect example of what happens when you over fish a stream.

In 1952, they got 10,000 silver salmon in the Hoko River.

It’s a stream that runs through the reservation and we have no control over it and then the runs have gone down to about 3,000 fish a year, that’s their take.

That resource has effectively been destroyed.

Earl Warren:

Is that necessarily from the Indian fishing or might be from 274 days a year commercial fishing?

Mike R. Johnston:

No, sir.

Mike R. Johnston:

Well, there’s not 274 days of commercial fishing left anymore.

Earl Warren:

I know, but why then did they drop the 274 to 80?

Mike R. Johnston:

Because the resource is dwindling.

The total numbers of fish available are coming down.

They’re getting smaller.

Earl Warren:

Did you have the same thing in the Sound which you have here?

Your fish is dwindling because of the method of fishing and the number of fish they take.

Mike R. Johnston:

Your Honor, the reason that the runs are – they are going down over a long period of time.

It’s the difference between 274 days and 80 days was 27 years.

In other words, the fishing time was cut down over a period 27 years.

Here’s another example of what happens.

This is the Yakima River.

It’s a river that runs through an Indian reservation.

The Indians have a perfect legal right to fish there as much as they like in any matter and in any means they’d care to choose.

In 1953, there are approximately a catch of about 2,000 salmon and that was in the escapement and the escapement to spawn of about 6,000 salmon.

The catch goes up and the spawning — the numbers of fish available for spawning have to decrease.

It simply have to decrease because there are only so many fish in the river.

The more you catch, the fewer there are to spawn.

Earl Warren:

I understand that the only legal [Inaudible] is that we have a long commercial fishing season.

They’re bound to catch fish along their way up to spawn.

Mike R. Johnston:

That’s correct.

Earl Warren:

If you stop them, if you don’t stop them from taking those fish when they are their way up to spawn, why don’t you contribute very greatly to the same condition that you say will exist if the Indians are permitted to gill net on the river?

Mike R. Johnston:

Your Honor, these fish are already in the river.

They’re there and that’s where did they take it.

Earl Warren:

I know, I know those —

Mike R. Johnston:

Alright, and it does no good.

It does no good to let 400 fish get to the river, if the Indians are going to take all 400 of them.

It makes no difference whether it’s 400 or a 1000.

They’re going to take them all if you — ordinarily, with that 500 fish get to the river and you let a 1000 get to the river and the Indians take all a 1000, it makes no difference to the spawning, that’s just as barren and just as empty.

Earl Warren:

Mr. Woodworth?

George S. Woodworth:

Mr. Chief Justice, may it please the Court.

I speak of the interest of Oregon in this litigation because Oregon shares with Washington a community of interest, which is particularly referred to the area of the Columbia River drainage.

The Columbia River runs between Oregon and Washington and by virtue of congressional approval of a compact between the States, Oregon and Washington jointly managed the Columbia River, fishing on the Columbia River.

Now, the Columbia River is different from the Puyallup River or the rivers in most of western Washington because the Columbia River is the highway by which the fish reach the up river streams.

So we have a little different problem in the Columbia River that is indicated in the rivers of western Washington.

In that river, there have been built a great number of dams.

It started in 1941 with the completion of Grand Coulee Dam.

Grand Coulee Dam wiped out 1100 miles of salmon spawning streams.

Since that time there have been five dams built below Coulee, each of which has had its impact on the — not only on the ability of the fish to spawn, but on the ability of the fish to reach their spawning beds.

And it’s for this reason because that — the States of Oregon and Washington have used their staffs of experts in the fisheries to attempt to determine how many fish must pass up the river in order to preserve the runs.

I think it’s been spoken up here that in 1911, 50 million pounds of fish were harvested out of the Columbia River.

That was in 1911.

Since and the last figure we have was for 1967 when 9 million pounds were harvested and 1967 was one of the best years we’ve had in the Columbia River in recent years.

In — part of this period, when we’ve kept records, we’ve kept the record of the Indian catch because they report it to the selling agencies.

In 1959, the Indians on the Columbia River caught 39 thousand pounds of salmon.

In 1967, when we think there were probably not more than 75 or may be 80 Indians fishing, they caught 1,300,000 pounds of fish.

The whole purpose of the two agency’s activities on the Columbia River has been to enable enough fish to get upstream, to keep an even balance if we could just keep —

Abe Fortas:

Well, is any difference between the effect of the Indian catch and the non-Indian catch on the Columbia River?

George S. Woodworth:

The non-Indian catch has been materially reduced.

It’s been reduced —

Abe Fortas:

Well, but what difference is it though in the biological cycle of the salmon whether it’s caught by Indian or non-Indian?

George S. Woodworth:

None, Mr. Justice Fortas.

They —

Abe Fortas:

Well, what’s the point you’re making?

George S. Woodworth:

The point I make is that conservation and regulation of fishing is necessary and the Indians ought to be included in that regulation because it’s a matter of concern for all of the people of the community; that enough fish be permitted to reach the spawning ground.

Abe Fortas:

Well, are you — on the Columbia River are they not regulated?

Are they doing something that non-Indians can’t do?

Or is this – or is your point just that Indians are catching more fish?

George S. Woodworth:

Indians are catching more fish because the State of Oregon has been enjoined by the federal court from interfering with the Indian fishing.

Abe Fortas:

Well, are they doing something that non-Indians can’t do, cannot do?

George S. Woodworth:

Yes, Your Honor.

They were fishing in an area, part of their fishing was in an area close to non-Indian fishing.

Abe Fortas:

Now how much of that million odd pounds is counted for by that?

George S. Woodworth:

I would say that — no, I wouldn’t try to answer.

I’d had to guess, Your Honor, but in terms of fishing stations —

Abe Fortas:

Because if I understand it, this case is not being presented anyway on the theory that Indians ought to catch less and non-Indian commercial fisheries ought to catch more.

I mean to say that that’s proposition one why it’s kind of a remote.

And the issues here and the question is whether in areas where Indians are claiming Treaty rights, they are properly claiming Treaty rights to which they are entitled (Voice overlap).

George S. Woodworth:

I agree with the Court.

Abe Fortas:

— whether the fish had been caught by Indians on one hand and non-Indians on the other hand, both of them being subjected to the same regulation?

George S. Woodworth:

I think it’s the position of the State of Oregon, Your Honor, that the Indian fishery should be subject to some modicum of regulation in those areas where the fish are most vulnerable.

As Mr. Coniff and Mr. Johnston have pointed out, when the fish reach the streams in which they propagate, they’re most vulnerable.

They can —

Abe Fortas:

But I want to be sure that Oregon would also — you’re saying that Oregon would also apply that same regulation to non-Indians.

Are you saying that or not?

George S. Woodworth:

Oregon tried to make an arrangement with the Indians a few years ago and had an arrangement that worked for several years.

However, in the —

William O. Douglas:

Why didn’t you talk about the warm —

George S. Woodworth:

Warm springs in the Yakimas, Mr. Justice Douglas, and the Umitillas and to an extent The Nez Perce participated in it, although they went — and this was not a separate Treaty.

This was worked out through the biologists of our State and the interested people in the Indian groups.

Then, a few years ago, as the fishing became harder, some of the Indian groups, with group from the organization, the Warm Springs pattern their fishing programs after State regulation.

William O. Douglas:

You talked about fishing on the reservations or off?

George S. Woodworth:

No.

It should be made clear that our only right, as we see it, is to perform some of regulating duties outside the reservations, the off reservation fishery.

And clearly, I think under the Treaty, reservation fishing is not under any restriction by the State.

It’s up to the Tribes.

Earl Warren:

I wonder if you’re in complete agreement with counsel from Washington.

You said a moment ago, as I understood you that the Indians should be subject to a modicum, a modicum of regulation.

And, counsel for Washington, as I understood them, said that they would – that they have absolutely no rights to be free of regulation?

George S. Woodworth:

Mr. Chief Justice, I’m worried here more or less that the leave of the State of Washington and I wouldn’t want to say anything that would undermine their position in this case.

Earl Warren:

No, but you are here to inform the Court —

George S. Woodworth:

I’m here to inform that Court to that extent —

Earl Warren:

— on a legal matter and you only talked of a biologist since you’ve been here.

You haven’t said anything about the rights of the Indians under the Treaty whether they have none, whether they have some except that you said they should be subject to a modicum of regulation.

George S. Woodworth:

Your Honor, I think it’s my position and the position of the State of Oregon that the Treaty gives the Indians the right to fish at certain stations in the river and this right cannot be denied them.

To what extent the Indians may fish at this usual and accustomed places?

We feel it’s a matter which this Court has passed on a number of times before that it’s a matter in which the States have the right to regulate.

Up to this time, the Court has only said in number of cases and I’m referring now to ward versus Race Horse, Kennedy versus Becker, Tulee against Washington and the Village of Cake versus Eigen.

In all of those cases, the Court has said that the Treaty rights of the Indians as to their off reservation activities are still subject to State regulation.

Now, we’re faced with the questions —

Earl Warren:

Notwithstanding Treaty rights?

George S. Woodworth:

Treaty rights guaranteeing to the Indians places in the case of the Northwest Treaties the right to fish and hunt, the right to fish principally we we’re talking about here at a usual and accustomed place, in common with the citizens of the territory and the minutes of the —

William O. Douglas:

Does the Indian in Oregon need a hunting license to hunt off the reservation?

George S. Woodworth:

I think not, Your Honor.

I think the Tulee’s decision out of this Court which said that Indians couldn’t be required to have a fishing license.

In the State of Oregon, I think it’s been adopted by the State of Washington as indicating that they don’t have to have a hunting license.

William O. Douglas:

Can the Indian hunter kill dear out of season off the reservation?

George S. Woodworth:

Our local federal court has said they can.

We’re enjoined from enforcing our hunting and fishing laws against them and I think the answer is they do.

But hunting doesn’t cut down the resource as unlimited fishing is apt to do and it’s with the fishing industry that we’re principally concerned and we don’t want to and we’re not making a case for the commercial fishermen.

The commercial fishermen have already been inhibited.

Commercial seasons are set on the Columbia River for different runs and generally they are by days.

As an example, in the summers of 1965, well in the whole year, 1965, 1966 and 1967, all commercial and sports fishing for the summer chinook was closed on the Columbia River.

There was none.

No sportsmen talk this rod out, no commercial fishermen took his gear out, but the Indians caught 10,000 chinook salmons that summer.

Earl Warren:

Couldn’t you have a season for the Indians as well as the commercial fishing?

George S. Woodworth:

If there’s to be an Indian fishery, there will be a season for it and it will be set to accommodate the run as it moves up the 200 miles of the river.

It goes in certain stages and so the run is set at the mouth, the season at the mouth of the river is the first of the month.

The season 40 miles up the river is the fifth of the month and it progresses at the river.

Earl Warren:

This, may I ask that was because I understood the counsel to say that it was biologically wrong absolutely to think of seasons on the rivers?

George S. Woodworth:

He’s talking about the rivers in which the salmon finally go to the place from whence they came and repropagate themselves.

This is not true at the Columbia River.

The Columbia River is the freeway —

Earl Warren:

There’s a very tributaries so, isn’t it?

George S. Woodworth:

It is of the tributary and the tributaries are generally closed.

And that is —

Earl Warren:

For the whole year?

George S. Woodworth:

For the whole year.

In other words, Deschutes River and Lake River in that part –

Byron R. White:

Net fishing, commercial fishing [Inaudible]

George S. Woodworth:

Closed to net fishing completely.

Byron R. White:

And what were you at, commercial fishing on the Columbia by the run where it’s a fisher on the boat.

George S. Woodworth:

We’re — Yes, sir.

Byron R. White:

Or a fishing in Puget Sound than —

George S. Woodworth:

It’s fishing in Puget Sound.

And when they get to the Deschutes River or whatever river up, then they reached the comparable stage to the Puyallup or the Nisqually River.

Thank you, gentlemen.

Earl Warren:

Gentlemen, you’re time was expired but Mr. Jones, who is here from Idaho, isn’t not?

You may have five minutes to close, Mr. Jones if you wish and counsel may have additional five minutes if they desire.

T. J. Jones III:

Thank you, Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

There’s only one or two items here that I want to talk about in view of the shortness of the time that I have.

I wanted to point out to the Court that all of our opponents in the Puyallup’s case, this of course does not include Mr. Tanner and his clients, the Nisquallies, here before the Court have suggested that the regulations promulgated by the Secretary of the Interior in July of 1967 offer the best solution to the problem of off reservation Indian fishing.

The States have rejected this offer by the Department of Interior.

This, of course, is not the first time that the three involved States: Washington, Oregon and Idaho have rejected the pro offered federal regulations.

Nearly three years ago, in July 1965, the Department of Interior circulated proposed regulations almost identical to those that were promulgated by the Secretary in July of last year.

These proposed regulations were delivered to the Governors of the three States with the request that the States support the Secretary in the adoption, promulgation and the enforcement of the federal off reservation Indian fishing regulations.

After due consideration, the three States unanimously rejected the proposed federal Indian fishing regulations on the basis that amongst other things that out of the Tenth Amendment of the Constitution of the United States, the power has not delegated to the States by the Constitution and are prohibited to it by the States, prohibited by it to the States, are reserved to the States respectively or to the people.

That by virtue of this Amendment, it is historically been held by this Court that title to wildlife resources insofar as you’re capable of ownership, rests in the States as a trustee thereof for the benefit of all the citizens of the States, Indian and non-Indian.

And therefore, it’s the States took the position that neither the federal government nor the Indians have the power to regulate State resources.

Byron R. White:

Well, on that basis, I suppose you could regulate on the reservation?

T. J. Jones III:

This was only with respect to off reservation, Mr. Justice White.

Byron R. White:

Well, I know your position would certainly carry that the reservations would?

T. J. Jones III:

No, it would not carry to that extent.

We realized that we have no jurisdiction over Indian Country.

Byron R. White:

You don’t treat this point in you Brief?

T. J. Jones III:

No, that’s correct, Your Honor.

William O. Douglas:

Could you leave us supplemental memoranda for us?

T. J. Jones III:

Yes, we have to file memoranda to the Court on that point.

And the States also took the further position that we did not have the power to convey title to the State resources nor do we have any police powers and that the Supreme Court, this very Court, in this regard had never held that we, the States lack the power —

William J. Brennan, Jr.:

But doesn’t the Treaty cut across all this?

If in fact there is a Treaty that gives the Indian an off reservation right, doesn’t that destroy your argument?

T. J. Jones III:

No, I don’t think so, Mr. Justice Brennan.

I feel that we have the right insofar as the off reservation fishing is concerned to enact reasonable and necessary regulations.

William J. Brennan, Jr.:

And that the national government —

T. J. Jones III:

In common.

William J. Brennan, Jr.:

Yes, but that the national government then can’t, by Treaty, affect that regulation, is that it?

T. J. Jones III:

Oh!

Yes, assume naturally that the Treaty is the supreme law of the land.

William J. Brennan, Jr.:

That’s what I’m saying.

And if this Treaty gives this kind of right to the Indians, hasn’t that destroy your argument?

T. J. Jones III:

Well, I think, Your Honor, that we’re faced here with something that actually has eroded over a period of years.

And, again, we go back it seems like always to these cases and we say, “What did the Indians think at this particular time?

What did we mean when we treated with them?

Abe Fortas:

Why don’t you make your own Supreme Court’s decision in the State against Archer?

T. J. Jones III:

I had an idea that would come up, Justice Fortas.

Abe Fortas:

I don’t want to embarrass you but I’d like to hear what you got say about the case?

T. J. Jones III:

Well, I’m sure there’s no justice from the State Supreme Court here so [Attempt to Laughter] I think that actually, our Supreme Court in the Archer case, mistook the intent of this particular Court, the U.S. Supreme Court in the decisions in, for example, Seufert Brothers, Winans and the Tulee case.

Abe Fortas:

But as we stand now, whatever the basis might have been, the Supreme Court of Idaho has held that the State cannot by its hunting regulations in a way affect the rights of the Indians.

T. J. Jones III:

That is correct, Mr. Justice, very correct.

Abe Fortas:

And you say that the only way you suggest of handling that case is for us to establish a concrete doctrine —

T. J. Jones III:

That would be my fondest desire at the moment.

Abe Fortas:

I gathered that.

William O. Douglas:

You see the problem is not whether they can — the State can interfere with the Treaty right, I would assume that it certainly could not.

The question is, what is the Treaty right?

T. J. Jones III:

I think this is the crux of it, Mr. Justice Douglas.

Thank you.

Arthur Knodel:

Mr. Chief Justice, members of the Supreme Court.

First of all, let me state that I can see nothing inconsistent with the idea of having an adequate, having such ruling that would impose upon the Indians the duty or a restriction to permit a proper escapement to continue this run of salmon because no group wants to maintain that salmon run more than the Indians.

There is nothing –

Byron R. White:

How are you going to do that though the other side says that it’s impractical to put – to devise a set of regulations that —

Arthur Knodel:

I don’t think —

Byron R. White:

— I think that permits a proper escapement when you’re fishing at the mouth of the stream.

Arthur Knodel:

I don’t think this is — the State’s testimony repeatedly showed that they had different — they have a fish biologist showed how they could follow this fish down the straits, the Puyallup run or any other run and then select from that run as they proceed down into the mouth of the Puyallup.

Let me point to the Court and it probably answers this question little more indirectly.

This is the map of the Puget Sound area.

This is the area what they referred to as Commencement Bay.

Commencement Bay is a 52 square mile area and your fishing in approximately commercial fishing ends approximately two miles from the mouth of the Puyallup River.

This red line here is the exterior boundaries of the Puyallup Indian reservation which has never been terminated by any Act of Congress.

The state —

Abe Fortas:

But the Indians — did the Indians still — there is still a reservation in existence except as an abstract conception?

Arthur Knodel:

It is a reservation in this sense.

There was a General Allotment Act.

In that General Allotment Act, the various area was allotted —

Abe Fortas:

To the Indians respectively?

Arthur Knodel:

This is correct.

Abe Fortas:

And if a reservation exists, and it exists conceptually and not in terms of land ownership?

Arthur Knodel:

This is correct.

Much of the land is still owned by the Indians themselves as allotments in the course of the Tribe itself owns the land within.

But anything, this was an Article II granted to the Indians of the Medicine Creek Treaty as their exclusive right.

Arthur Knodel:

They reserved this in which they can live peacefully and which they could fish from.

Now, the fishing right is a communal right that belongs to the Tribe itself and in this particular case, they have never been — the fishing rights never been abandoned by them, it has never been terminated by the federal government just like federal government has never terminated the reservation.

And there is a termination statute which specifically provides that the federal government can terminate a reservation or can terminate a Tribe.

One other thing I wish to bring out is these fish, when they proceed up to Puyallup River, the fishing actually, the Puyallup fishery actually ends just on the other side of what we call the Clarks Pink Bridge with approximately three miles up from the mouth of the Puyallup River, from the mouth of the river.

These fish then proceed up and spawn.

There is no spawning in this area at all, there’s none.

There’s no spawning inside this particular area here.

The fish proceed up to other crate.

The State showed yesterday a rather detailed, it is here, on these tributaries.

The fish will travel, like I say, 40 to 50 miles up and then they will go to these various branches: the White River, the Stock River, the Clark River, numerous rivers that they do.

But one thing I want to submit to the Court is this: that assuming the Court rules that the State does have the right through the exercise of its police power to totally restrict the off reservation fishing or the “in common” fishing, this is not going to resolve the problem.

Because of this, there are in addition to the Puyallup reservation, there are 17 other reservations in the State and as it turned out, the fish, the greatest number of fish always happen to be going into the reservation area, in the area that the Indians have their fishing exclusively and as the State has indicated, “exclusively”.

They concede, everybody agrees here that on a reservation, the Indians have the right to fish unrestricted.

Abe Fortas:

Did they concede that that applies to the Puyallup reservation?

Arthur Knodel:

No, the State takes the position that the Puyallup reservation no longer exists, their position is that.

However, they do recognize for example the Quinault reservation and other reservations.

The State says those exist, but what the State is doing is gradually taking away the fishing rights of the Indians.

Abe Fortas:

So that if they — if the Puyallup Indians wanted to fish upstream on the Puyallup river within what you submit as a reservation, you would had the same problem with which we’re dealing now?

Arthur Knodel:

This is correct.

Under Section III, we were given the right to fish in common with other citizens.

Earl Warren:

Now, what is in the Puyallup reservation, the Indian reservation now?

Is it that not just Indians —

Arthur Knodel:

No, it’s a highly industrialized area.

Earl Warren:

I beg your pardon?

Arthur Knodel:

There’s a lot of different people.

As a matter of fact, my law practice is at (Inaudible) within that area.

Earl Warren:

This property sold and exchanged (Voice overlap)

Arthur Knodel:

It’s sold and exchanged and this is the theory under which the State claims the reservation does not exists because it has been sold or because they’ve been declared citizens.

It’s our contention that this is not the law based on the Seymour case, which this Court ruled was the only Congress could act.

Earl Warren:

How big is that reservation?

Arthur Knodel:

Well, the area as (Voice overlap) afforded in the Medicine Creek Treaty, 1,280 acres.

Earl Warren:

1280?

Arthur Knodel:

Yes, sir, according to the Medicine Creek Treaty.

Earl Warren:

Is that all what’s included within that red line?

Arthur Knodel:

Yes, this is approximately correct.

I believe I — but this is the area (Voice overlap).

Earl Warren:

Looks like it covers a lot of miles to me.

Arthur Knodel:

It’s a 3-mile area that the Indians —

Earl Warren:

I beg your pardon?

Arthur Knodel:

It’s a 3-mile area that the Indians have in fishing from the mouth of the river up to the point up here, it’s approximately 3 miles.

It’s the area the Indian net fishery has been taking place.

They see — the problem I think is this that some place down the line, it’s our contention that this whole field of Indian matter arising out of the Constitution, the Constitution, it’s our position, we’re dealing with Treaty, we’re dealing with Indians, we feel that this is a federal domain and the point is this.

If this Supreme Court makes the finding that the Indians do have a right, that they do have this Treaty right as we believe we have, and then places upon the federal government the position that they assist in these regulations and they work with us.

Now the interesting thing about it, this has been such a conflict on this point that the federal government did not come in to help these Indians until at the State Supreme Court level.

The situation got to the point where they felt they had to intervene.

But here we are, Indians, we’re sitting, we got a Treaty, we’ve got a Treaty with the United States Government, a promise from them and what happens?

The federal government isn’t fighting with the State or they don’t want to get too far involved.

They feel the law is too vague or something.

The State in turn keeps very actively going.

Now if the Court rules that the State can prohibit our fishing right, our Treaty right by regulations, then we are in the ridiculous position that –

William O. Douglas:

Of course, that assumes of what the Treaty right is, is the right to fish with the net at the mouth of this river.

And you haven’t yet explained to me, to my satisfaction, may be I missed it, where you find in the Treaty the words “With nets”.

It says, “At their custom places in common with”.

That doesn’t use the word “Nets”, does it?

Arthur Knodel:

This is correct.

At the trial, the States’ testimony, the testimony was that there was a net fishing by Dr. Tiller.

However, if you look at the — This was also introduced the general accounting, the breakdown.

In 1854, Congress or part of the contribution or by the Bureau of Indian Affairs was an allowance for nets in seines.

It actually provided for that.

Now, I think —

William O. Douglas:

Let’s speak of the Treaty.

The Treaty doesn’t — this provision doesn’t say at their accustomed places with their accustomed way of doing it, do they?

Arthur Knodel:

This is true it doesn’t but by the same token, Your Honor, the —

William O. Douglas:

That is still standard today and they could catch, they could fish with bait, isn’t that true at their accustomed places?

Arthur Knodel:

I’m not sure they would not let them fish with their fish wares or their various —

William O. Douglas:

Ah!

No, but they could fish at their accustomed places with — provided they use a right kind of equipment.

Arthur Knodel:

Provided they use the same equipment that the States says they’re allowed to use.

The only thing is this.

The —

William O. Douglas:

(Voice overlap) It’s very difficult for me to — so far to see a violation of the Treaty in — since the accustomed place is not taken away.

Arthur Knodel:

Oh!

Mr. Justice Douglas, the thing that our argument or complaint is this that when this Treaty was entered into, this fish bargain for this abandoned fish supply.

Now what’s happen is through this indirect impact, the State has brought about a tremendous fishing fleet, a tremendous commercial fishing fleet that makes the fish that we take look very, very small.

We catch a very small portion of the fish, but the States’ old procedure of fishing has increased.

They’ve got new modern boats.

They got all this modern equipment.

They have nets that, as testified at the trial, they can take 2500 fish.

We have purse seines at one time, they could put three purse seines in —

Byron R. White:

You think that this Indian — are your clients the smallest commercial fishermen in the whole area?

Arthur Knodel:

Yes, I would say that.

I would say we’re the smallest.

Byron R. White:

You think a $125,000 annual gross, a 125,000 is the smallest of those commercial fishermen in Puget Sound?

Arthur Knodel:

First, you have many commercial fishermen fishing but this would be relatively small, yes.

Because by the time you stop —

Byron R. White:

But that’s hardly be smaller?

Arthur Knodel:

No, I would say there are smaller.

It depends on the nets —

Byron R. White:

It’s probably the medium size?

Arthur Knodel:

What?

Byron R. White:

It’s medium size fishing?

Arthur Knodel:

Well —

Byron R. White:

Well, that’s alright.

Arthur Knodel:

If you compare to the huge fleets that go out, some of these boats are fantastic, the amount of fish they take.

Abe Fortas:

Suppose we decided that this Treaty did not give the Indians the rights for which you contend, how many Indians would be directly affected?

Do you or somebody here said the only one who is endangered, as I understand it, was kind of fishing don’t to much more than a 100 in number.

Arthur Knodel:

At the trial, it was shown that 70 different families fish —

Abe Fortas:

Off the way?

Arthur Knodel:

Seventy different families —

Abe Fortas:

In this fish in this way?

Arthur Knodel:

Yes, fish commercially in this usual and accustomed ground.

Now —

Abe Fortas:

Are you talking only about the Puyallup now?

Arthur Knodel:

I’m talking about the Puyallups, yes.

Now, the one thing it affects all of them but this is something everybody losses sight of.

Is this fishing by the Puyallups has been under considerable harassment, after the Satiacum case came down in 1953, up to that point, the State was continuously arresting and taking Indians.

Satiacum was arrested in 1953.

The State of Washington, by a split decision, determined that Satiacum was released and then the Indians proceeded to fish more.

This is true.

They had fished prior to that time but it was a continuous harassment by the State.

Then what happened was, since then, as the records will show, the State has been openly watching and doing everything possible, gathering it’s facts, it’s data to come back in and select another time and another day to come back and move in.

This has made the fishing such a difficult position for these Indian people that it’s been difficult for them to possibly work on it.

We’ve also had the problem that the federal government has been rather weak in this particular field because they haven’t really known exactly what they should be doing, but I think once the Court determines that this is a right, that the right is there and it’s certainly our contention that this is the federal area and this will be taken cared of in the State of Washing — Oregon will go ahead and resolve this problem.

Hugo L. Black:

Are you asking us to overturn the findings and conclusion of the Court that there is no such tribe now within the meaning of the Treaty and as a matter of fact, it’s gone — nearly all of them gone then they married?

Arthur Knodel:

No.

Hugo L. Black:

Just 50 people?

Are —

Arthur Knodel:

No.

Hugo L. Black:

— you asking us to — what are we going to do with that finding?

Arthur Knodel:

No, I’m not asking that they overrule that because the State Supreme Court made a finding there was tribe, were organized and recognized by the federal government as there’s 350 members of the Puyallup Indian Tribe?

Hugo L. Black:

Three hundred and fifty?

Arthur Knodel:

Yes.

Hugo L. Black:

That live there?

Arthur Knodel:

They don’t all live at —

Hugo L. Black:

How many live there?

Arthur Knodel:

Within the area?

Hugo L. Black:

Yes.

Arthur Knodel:

Now I would be guessing. I would say —

Hugo L. Black:

Are there more than a dozen?

Arthur Knodel:

Oh!

Yes, definitely.

I would say there would be probably a 125 to 150.

They’re quite a few.

Yes, about a 125.

Byron R. White:

How many fish?

Arthur Knodel:

As I indicated that 70 participate.

It’s true, it’s definitely true that three of them have been doing the major fishing.

Earl Warren:

But may I ask you, Mr. Knodel, if under the Treaty, you make any distinction between the rights — the communal rights of the Tribe and the rights of an individual, who is a Puyallup Indian, to go out and engage in commercial fishing?

Arthur Knodel:

I don’t know whether I understand the question —

Earl Warren:

Do you mean that these individuals who are commercial fishermen, because they are Puyallup Indians, have the right to exercise all of the rights that the Tribe, as a communal group, can exercise under the Treaty?

By that, I tell you why I asked a question.

You said a moment ago that this never went through the reservation?

Arthur Knodel:

Yes.

Earl Warren:

And that on the reservation, they could do anything they want insofar as fishing is concerned?

I suppose there, they would do what is communal rights.

The Tribe could control it.

Do you mean that that would also give the rights to individuals to go out as individuals to compete with other commercial fishermen for their own particular benefit, not for the benefit of the Tribe and may be in opposition to the views of the Tribe so far as the use of the river is concerned?

Arthur Knodel:

It is tribal position that this is a communal right.

The on reservation fishing, the usual and accustomed fishing, this is subject to control by the tribe.

And if the tribe determines to cut down or whatever the tribe determines to do, the tribe has that right because it is a tribal right.

Arthur Knodel:

It doesn’t belong to any individual.

Earl Warren:

But did the tribe get any benefit from this commercial fishing?

Arthur Knodel:

They have not.

Earl Warren:

But why are they interested in there?

Arthur Knodel:

They are interested because they have certain tribal people that are fishing, that are interested in this particular fishing right and these are part of the tribe and if these men are restrained or prohibited from fishing, then of course, we have the problem that the other members loss their right too.

Byron R. White:

There could be some other members of the tribe who could exercise the tribal rights just like these three and duplicate this whole operation?

Arthur Knodel:

This is correct.

But —

Byron R. White:

And the tribe hasn’t regulated this?

Arthur Knodel:

Again, like I say —

Byron R. White:

The tribe hasn’t regulated this fishery as a matter of fact?

Arthur Knodel:

The tribe has its regulations.

Yes, there are regulations or that —

Earl Warren:

As to the fishing?

Arthur Knodel:

As to the fishing, yes.

Earl Warren:

What restrictions did they put on it?

Arthur Knodel:

There’s certain length of nets and so various different items.

Now, we’ve had one problem with that which I — is it so much alright for me to continue?

Earl Warren:

Yes, you may answer the question.

Arthur Knodel:

The problem we’ve had is this.

The Puyallup Tribe prepared these regulations, the governing tribal counsel.

These regulations were submitted to the Bureau of Indian Affairs and at that time they were submitted to the Bureau of Indian Affairs, which was a good member years ago, a problem developed because of all the uncertainty in this particular field.

As to the usual and accustomed fishing and the State’s position that they have the right to regulate, federal government had no right in this area, then as a result, no action was taken.

Now, anything the Tribe does, we have to do through because we are more or less created or Treaty as with the United States Government.

We’ve got to do through the Bureau of Indian Affairs.

Now, what’s happened, the Bureau of Indian Affairs, the federal government has just been slow to get around to this problem if they just haven’t caught up, I guess.

Now, there’s starting to and you will notice how they came in on passing these regulations, these other regulations they submitted and also they entered this case when we got to the State Supreme Court.

So, what I’m saying, now that the federal government has taken the position or this Court clears the air and says, “Well, this is a Treaty right and if the Indians do have a right to fish, this is a federal government area.

You’re going to have the federal government come into this and assist these Tribes in proper and decent conservation.

You’re going to have on the reservations anyhow so this is just as good a place to start as any”.

Hugo L. Black:

May I ask you this?

Arthur Knodel:

Yes, sir.

Hugo L. Black:

Do you claim that if this Tribe has disappeared as a tribe that they still have this fishing right?

Arthur Knodel:

I’m sorry, I —

Hugo L. Black:

Do you claim that if this Tribe has disappeared as the Court says they have, they still have any fishing right?

I gather from the findings of the Court, while you can identify a small handful of people live one place or another as being a bloodline descent from these Indians, they’ve just disappeared.

They’ve mixed with the white people, they’ve gone to the schools and integrated with them and they do not maintain any kind of tribal relationship.

Do you claim that if that is the situation, they still have rights under this Treaty?

Arthur Knodel:

I claim that the federal government has recognized these people as a Tribe since 1854.

They’ve always had a form of government, the federal —

Hugo L. Black:

They have a form of government now?

Arthur Knodel:

They have a consul, who is a very active consul.

They are present in the court now.

Hugo L. Black:

They have a what?

Arthur Knodel:

They have an active consul, five consul men.

Hugo L. Black:

Well, the Court says they have no form of government, they have no policemen, they have no organization.

Arthur Knodel:

They have no police —

Hugo L. Black:

They say they are a part of the City of Tacoma, is that right?

Arthur Knodel:

Part of the area is part of the City of Tacoma.

Hugo L. Black:

What you have is a State — is a situation.

Congress, of course, alone has the right to settle this thing politically.

What you seem to have is a situation where the Indians have all disappeared, except a few who wants some fishing rights; that the others have gone.

They are not any in existence as such.

They just live like other people.

They’ve mixed and mingled with the common people.

Arthur Knodel:

Well, of course, our taking is that this is a property right as much as similar to the land.

Hugo L. Black:

How many, how many of them do you claim have an interest now?

It may be that someone more to prove there that they are members of the Tribe because of some have imagined the money advantage, but what is the real existence of the so-called “Tribe”?

Arthur Knodel:

Well, in 1929, the Puyallups recurred a tribal roll —

Hugo L. Black:

Yes, I’m aware about that in fact.

Arthur Knodel:

— and in order to prepare, hearings were had to bring the various people up to, you know, to determine whether they were members of the Tribe and after they had arrived at that decision, this roll was completed and in the by-laws it states that no one – “that in order to be a member of the Tribe, you would have to be born within radius of 20 miles from the Indian hospital”, which is right in the heart of the, right next [Inaudible]

Earl Warren:

And that roll was approved by the federal government that recognized as a Tribe?

Arthur Knodel:

This is correct.

That roll was accepted and recognized the Tribe.

It is very easy for us to establish who is a member —

Hugo L. Black:

Is that stated that in your Brief, contrary to what the Court found?

Arthur Knodel:

Well, the point is, the matter that it didn’t get into the Brief because the Supreme Court of the State of Washington ruled there was a Tribe.

So the matters that came up before this Court is the question of what right does the State of Washington have to regulate the usual and accustomed fishing grounds and the fishing rights of the Puyallup Indians.

This is the matter before the Court so I didn’t submit anything on this particular matter.

Earl Warren:

Has this Tribe, so called “Tribe”, been at that time out of this fishing by these three men?

Arthur Knodel:

They individually, the Tribe itself as a Tribe, I mean, they exercise it as individuals, the members of that Tribe themselves.

Any member of that Tribe wants to exercise this fishing right can go ahead and do it.

Now, Mr. Satiacum —

Hugo L. Black:

Have they gotten any thing out of this fishing done by these commercial people?

Arthur Knodel:

No, they haven’t.

They haven’t.

Hugo L. Black:

You don’t deny, do you that the Indians if they wish to, small groups such as a 100 to a 150 which seems to be the most they have, that they have a right if they want to get out in open with other the people like other people and be free of that tribal rule?

You claim they don’t have that right?

Arthur Knodel:

They have that right.

This is true, but again, like I say, we take this position that this is kind of a property right that stays like a piece of real estate —

Hugo L. Black:

They have that right to get out and mix with the other people.

They have some kind of property right in this land on which they don’t live and which they are not interested to get some money for somebody exercise some fishing rights, is that it?

Arthur Knodel:

Well, the only answer I can give is the United States Government has recognized them as a Tribe and part of the Treaty.

Hugo L. Black:

But it used to be a Tribe?

Arthur Knodel:

And part of the Treaty was that they did have this fishing right.

This was the terms of the Treaty.

Thank you sir.

Earl Warren:

We will recess now.