Puyallup Tribe v. Department of Game of Washington

PETITIONER:Puyallup Tribe
RESPONDENT:Department of Game of Washington
LOCATION:South Boston Court

DOCKET NO.: 247
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 391 US 392 (1968)
ARGUED: Mar 25, 1968 / Mar 26, 1968
DECIDED: May 27, 1968

Facts of the case

Question

  • Oral Argument – March 26, 1968
  • Audio Transcription for Oral Argument – March 26, 1968 in 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

    Earl Warren:

    No. 247 Puyallup Tribe, petitioner, versus Department of Game of Washington et. al., and No. 319 Eugene Kautz, et. al., petitioners versus Department of Game of Washington.

    Mr. Knodel?

    Arthur Knodel:

    Mr. Chief Justice, and members of the Supreme Court.

    This matter is before this Court on a certiorari to the Supreme Court of the State of Washington.

    The subject matter is the Medicine Creek Treaty of 1854.

    This is a Treaty that was entered into between the United States Government and the Puyallup Indians, the Nisqually Indians and others.

    The primary issue that is before the Court as we see them is first of all, can the State of Washington, in the exercise of its police power, pass and enforce such fishing regulations so as to effectively repeal that provision in the Medicine Creek Treaty that guaranteed to these Indians the fishing right.

    The second question is do the Courts of the State of Washington have jurisdiction to determine this matter in such case where they have not obtained the consent of the Indians or the consent of the federal government.

    I think, in order to get a little more to my point, I’m going to take short five, six minutes to cover the backgrounds and facts of the case.

    In this particular case, when the Medicine Creek Treaty was negotiated with the various, the tribes, the Puyallup Tribe and the Nisqually Tribe, the Indians relinquished to the United States Government thousands of acres of land upon which were very valuable timber lands and in turn, the Indians reserved to themselves the right to fish and in addition, they also reserved a small piece of land that they picked as a reservation at the mouth of the Puyallup river and I would like to point out that the picking of the reservation at the point like many other Indians up and down the coast, they selected that not because of accident, but by necessity.

    Now —

    Byron R. White:

    Could you just — in the course of stating these facts, say what rights the Indians relinquished?

    Arthur Knodel:

    Yes, they ceded to the United States Government large —

    Byron R. White:

    Legally, what right did they relinquish?

    Arthur Knodel:

    They relinquished their right to be in this particular area —

    Byron R. White:

    Where did they get that right?

    Arthur Knodel:

    Well, there has been a war between the Indians and the settlers actually and in consideration of everybody living peacefully and giving up this conflict that had been going on, the Indians agreed that they would step out of this large area of land and relinquish it to the United States and they would go on a red reserve or reservation where the United States would guarantee their peaceful existence and out of this reservation, they could then exercise this particular fishing right.

    Byron R. White:

    And so the sources of the rights that we’re talking about in this case are the Treaties, the rights given them under the treaty?

    Arthur Knodel:

    This is correct.

    Under the Treaty, under this Medicine Creek Treaty, I think too provides that they have the right —

    Byron R. White:

    Which you might as well say as like the federal statute?

    Arthur Knodel:

    Yes, it is a federal statute or it’s probably more than that if the Worcester versus Georgia case gave the same effect to Indian Treaties as it did to foreign treaties although I realize that we have a little different situation here considered, but it is a genuine Treaty that was executed by the United States Government.

    Governor Stevens is a man who engineered it for the United States and the Indians, of course signed it.

    President Pierce approved it and Congress, of course, ratified it.

    Earl Warren:

    But they are aborigines to this area, Mr. —

    Arthur Knodel:

    Yes, the Puyallupians, as was testified by the State’s anthropologist, Doctor Tiller, the Indians were on living in this area, Puyallup area, for 500 hundred years before the Medicine Creek Treaty.

    They were using various fishing gear and such.

    I think the important provision of the Treaty is the fish, of course, because this is what the Indians were really bargaining for.

    This is what they were really working for, hold negotiations with this and the record would show, as testified, the minutes, the Treaty itself shows that the fish were the main item of bargain and the reason it was because these Indians had to have a fish to survive.

    Had, this Treaty left out the provision of the right to obtain and abandon the supply of fish, we would not be before this Court because the Indians would’ve starved to death.

    Arthur Knodel:

    I think the best statement —

    William O. Douglas:

    To what extent that the Indians made this a commercial undertaking?

    Arthur Knodel:

    They, in 1854, they —

    William O. Douglas:

    I’m talking about now?

    Arthur Knodel:

    Right now.

    William O. Douglas:

    Do they have trucks that transport the ships, at these fish —

    Arthur Knodel:

    Oh!

    Yes, they –

    William O. Douglas:

    — hauled to the markets?

    Arthur Knodel:

    This is correct.

    They operate, they catch the fish for their own consumption and they sell them on market, that’s correct.

    That’s up to the time we were totally and completely restraining from taking any other fish.

    Earl Warren:

    And what do they seek here?

    Do they seek the unlimited rights to market this fish at anytime of the year or —

    Arthur Knodel:

    No, what we are seeking is this.

    We maintain that under the Medicine Creek Treaty, we were given this Treaty right to fish.

    And what has happened in this case is, the — if I’ll point this out to the Court, I think it will better answer your question.

    There’d been quite a number of impacts upon this fish that was not anticipated originally when the Medicine Creek Treaty was signed.

    The indirect impacts, for example, the Puyallup River has a lot of its spawning grounds destroyed, manmade obstructions had been placed in their and also pollution.

    Then, there has been since this that the Indians could not anticipate and all matters brought about the state is a tremendous commercial and sports fishery upon this group of, this fish run that the Indians depend upon.

    The salmon is a fish that will hatch in river and then it will proceed out to the ocean and then it will return to its spawning grounds and there the Salmon dies, of course, except the steelhead doesn’t.

    What happened in this case to get to your question is this.

    After the salmon leaves the Puyallup River after its — avoided all these ruinous indirect impacts and goes off to sea and then returns from the ocean after it’s been exposed to the various natural hazards, been exposed to the international fisheries, the Japanese, Russian and Canadian Fisheries, and it come down from through here and at that particular point, they come into, I guess you could call it “Washington State waters.”

    What happens is you then have three competing groups for that particular fish.

    You have the Washington State Commercial Group, which is the largest taking group, the sports fish regroup and the Treaty Indian fishing group.

    What has happened in this case now is quite obviously in order to keep this run going, you’ve got to get a certain number of fish up the river to spawn so they can repeat this particular cycle.

    Now, in this particular case, as these fish move down, in the State of Washington, in its program what they call “conservation”, they allowed the fish for the sportsmen and fish for the commercial interest and by the time the fish get down here to what they call the way down in the corner right of mouth of the Puyallup River and going into the mouth of the river, the State of Washington says: “In the interest of conservation, we can’t let the Indians have one single fish because we must take all of the fish” and in this case, what they did, the State cast rules and regulations that prohibited any type of net fishery in this particular river and right in the mouth of the river.

    William J. Brennan, Jr.:

    Well, if you prevail would the effect be to deny both sport fishing and commercial fishing interest?

    Arthur Knodel:

    No, they don’t.

    William J. Brennan, Jr.:

    If you prevail, all that happens is that the regulation which restrict would finally gets down there at the mouth of the river, it would not be enforced was that it?

    Arthur Knodel:

    Yes, but we want — our argument is this.

    Let more fish escape so we have fish.

    Don’t practice conversation on the Indians, conservation for the commercial interest and the sports interest leaving the Indians out.

    Now, the federal court interpreting this very point, our federal points out in the west coast, they applied what they call the indispensable test.

    The State Court in this particular case applied the reasonable necessary test.

    They said obviously, it’s reasonable and necessary that by that time the fish escapes all these various hazards and get down to this particular point, then they have to go up the river.

    In the Umatilla case, Maison versus Umatilla case determined by the Ninth Circuit said, “Before you start regulating this Treaty Indian fishing right, and there they interpret a very similar treaty provision, Medicine Creek Treaty was one of the first of the series of treaties involving similar type of people and similar situation and what they did in that case, they said: “You can’t start on the other end and say, you’re not going to leave any fish for the Indians.

    You’ve got to first of all show that the rules and regulations you are applying are indispensable”.

    In other words, it’s my understanding of the Umatilla case, which makes sense, the Indians had bargained and this was principle essence of that Treaty that we would get an abundant supply of fish.

    Now, the fish we were taking, just so the record is clear, out of these competing group of individuals, the Washington Commercial Group, Washington Sports Group and the Treaty Indian Groups, out of that catch, the total catch, we get 3% to 5%, that’s all we were taking.

    Byron R. White:

    But if I’m wrong in understanding here, this fish go up the river to spawn?

    Arthur Knodel:

    This is correct.

    Byron R. White:

    And that the conversation measures are designed, as I understand it, to bring enough fish to the mouth of that river that by that time they get up to spawning grounds, there’s still enough left to get job done?

    Arthur Knodel:

    This is correct, yes.

    Byron R. White:

    And if there’s some — if the State delivered let’s assume – say the State decided they had deliver a 100 fish to the mouth of that river in order to have enough spawning fish up, when they get up the river.

    Now, if the Indians caught all this 100 fish at that point by — there wouldn’t be any spawners left.

    Now if the State decided, “Well, we won’t let the fishermen down below catch that as many and so we’ll deliver 200 fish to the mouth of the river”.

    The trouble is that the Indians, isn’t the claim anyway that the Indians method of fishing cuts into the spawning stock no matter how many fish arrive at the mouth of the river because you are using net fishing continuously and steadily and it wouldn’t make any difference whether it was a 100 or 500 fish milling around at the mouth of the river, you would still deplete them, Isn’t that the argument?

    Arthur Knodel:

    This is the ultimate argument what the State says “Will happen.”

    I mean, they say ultimately this will happen that all the fish will be caught.

    There had been escapements all along throughout this period of time because of the peculiarity of the river, the Indians can’t be fishing with their nets and these nets are worked on the outgoing type primarily.

    There is some escapement and the point, the answer to that question —

    William O. Douglas:

    Nevertheless, they’re put at the mouth of the river, aren’t they?

    Arthur Knodel:

    Yes, they put into the mouth of the river.

    William O. Douglas:

    And they put them in that all seasons of the year?

    Arthur Knodel:

    Yes, they do.

    However, of course, the salmon, being peculiar will run a different times of the year depending on the species or the races.

    William O. Douglas:

    And, of course, the net is not designed to catch just a salmon, it catches a fish.

    Arthur Knodel:

    This is correct, yes.

    William O. Douglas:

    So these nets, when they’re pulling, contain everything that comes from the ocean though?

    Arthur Knodel:

    Well, they use these gill nets and they do catch this fish.

    For example, the testimony of Dr. Lasator at the trial was that in one particular year, the sports fishermen cut 18,500 steelhead directly behind the Indian fisheries while the Indians took 1,500 steelhead.

    In answering the question, it’s this: I think that what we’re saying we don’t take the position that we should take every fish that comes.

    The Indians — the only thing the Indians are asking is that the Treaty be given its interpretation what it was intended to, namely that we got a right to catch an abundant supply of fish so we can feed and supply the necessities of the tribe.

    Byron R. White:

    Yes, but does that include planning in commercial fishermen for —

    Arthur Knodel:

    This does.

    The Indians sold commercially in 1854.

    As a matter of fact, when the Treaty was entered into, this was the primary — the Indians did got with the sale of fish; they supplied the settlers with fish and this was part of their program.

    As a matter of fact, fish was it.

    Like the Court said in the Winans case, fish was so important to these people and that was important as they — Brief.

    William O. Douglas:

    Of course, that was before refrigeration and before the truck and the automobile in these tremendous cargoes wheel down those highways?

    Arthur Knodel:

    Mr. Justice Douglas, as far as I am concerned, the tribe is the first to admit that we shouldn’t take it all, all the fish that go up the river.

    We’re not attempting to say that we don’t want to share with anyone.

    This has never been the Indians’ position.

    William O. Douglas:

    You argue that the state couldn’t bar you from using any net at all on the mouth of the river?

    Arthur Knodel:

    I would say that what should happen in this particular case, the Indians should be permitted to set up their regulations, which regulations are, of course, submitted to the federal government and that at that particular time if it develops that the Indians are incapable of handling the problem, Congress is the ultimate where this situation could be remedied.

    Congress could take away this right, but the Umatilla, the one Maison versus Umatilla, decided by the Ninth Circuit used the term “Indispensable.”

    What that case, as far as I can understand, said, “give — it’s indispensable to us that they first give us a portion of the share.”

    I fully realized it’s difficult to say how much amounts to substantial needs, however, in —

    William J. Brennan, Jr.:

    Well, could it amount to so much that only the Indians can have any fish – I suppose it could but —

    Arthur Knodel:

    It could conceivably.

    This is true but again, like everything else, it is certainly subject to certain regulations which could be worked out.

    Now in this particular case, we have the —

    William J. Brennan, Jr.:

    Well, I gather though your position is this, isn’t it that if the Treaty must be interpreted as you said an abundant supply and of abandon supply means that no one else can have any and that’s the consequence of the interpretation of the Treaty?

    Arthur Knodel:

    No, I don’t think that’s the interpretation of the Treaty.

    I think the interpretation of the Treaty is that these people made a living and that’s all the Puyallups are now entitled to even the Nisqually, it’s just a living; and you have 350 members.

    Quite obviously, when you take 3% to 5% —

    William J. Brennan, Jr.:

    What’s the access over their own subsistence?

    How do you measure that?

    You said they’ve been selling fish to settlers way back?

    Arthur Knodel:

    This is correct.

    But see, what we did when we took over —

    William J. Brennan, Jr.:

    But then now, you are not selling in the settlers now.

    Arthur Knodel:

    This is true.

    But you see what society did or more or less what we did to the Indians, we said, “Now you adopt our western civilization.”

    I mean, our schools —

    William J. Brennan, Jr.:

    How are you going to measure this access to know where subsistence occurred?

    Arthur Knodel:

    It would have to be measured by reasonable application, probably through the federal government and the State.

    Now, when you take a look for example, the ideal situation is for example the Canadians have an agreement with the same fishery, the Japanese, the Russians are involved, the State of Oregon and the State of Washington.

    So you see you have more groups, more competing groups but what we are concerned about, we don’t mind the indispensable class and we don’t mind having this matter go to federal courts where the federal courts say, “Well, we think that the abundance as of this particular point, what we don’t want to have is being in a position where the State of Washington says like they’re entitled to enact whatever reasonable legislation is necessary.

    William O. Douglas:

    Well, isn’t the only legislation here are regulations that were stricken was the — I mean, that was sustained was the regulation of prohibiting the use of nets?

    Arthur Knodel:

    This is correct.

    They prohibited the —

    William O. Douglas:

    They can fish so they control, they can catch, they can bait fish —

    Arthur Knodel:

    This is true but the problem you’ve got is that the hook and line system is very inefficient when the fish reach this particular point as was testified to by the State.

    You can’t possibly —

    Byron R. White:

    So the impact is, on the spawning season, they’re going up to the river, isn’t it?

    Arthur Knodel:

    That’s correct, they’re going upward.

    Byron R. White:

    Not on the other side?

    Arthur Knodel:

    Not on the other side, no.

    These fish are exposed to all types of sports fishery of the —

    Byron R. White:

    On their way out?

    Arthur Knodel:

    Well, after we get to be a certain size.

    Byron R. White:

    Sure.

    Earl Warren:

    But do you recognize the right of the State to put seasons on the Indians so far as their commercial fishing is concerned at the mouth of the Puyallup?

    Arthur Knodel:

    It is my position in this case that this is a Treaty and a right it’s federal domain and I think only the federal government can control.

    As a matter of fact, it is my thinking that in order to really save the salmon, it is necessary for the federal government to take a very active part in helping preserve this —

    William J. Brennan, Jr.:

    Well, I gather your answer is that now your insistence is that no state regulation can prevent the Indians from fishing year round, however, much they may cut down on how much fish they may take, is that it?

    Arthur Knodel:

    This would be correct to an extent.

    However, I want to make it clear that we’ve been asking, the thing we haven’t been getting is an adequate number of fish and the State has gradually pecked away at this all the way through and now they finally got it down to the point where they said, “We reject the attitude of the federal courts in this particular area in applying the Maison versus Umatilla case, we’re going to reside that it has to be reasonable and necessary and the reasonable necessary test means, as the lower court indicated, we put it that — the court put in this effect would be an injunction against the Indian fishery.

    Arthur Knodel:

    And the only effective way to catch fish is by the methods that the state, by its regulations, has prohibited.

    Abe Fortas:

    Well, I’ve been having a little difficulty with what I regard as sort of the fundamental setting of this case.

    This case was begun, was it not, by the State agency, an agency of the State of Washington —

    Arthur Knodel:

    That’s correct.

    Abe Fortas:

    — which filed an action for an injunction against the Indians.

    And it seemed that to me, perhaps I’m wrong about this, that the injunction sought was in very broad terms, but the only specific law or regulations of the State of Washington that I recall being presented at least to us and so far as I know, to the lower court’s was the netting regulations, is that right?

    Arthur Knodel:

    They presented, if you look at the State’s Brief, you will notice the —

    Abe Fortas:

    I don’t mean that Brief.

    I’m talking about such litigation.

    Arthur Knodel:

    Right, that they restrained them from, this is correct, net fishery but what I’m saying is —

    Abe Fortas:

    And I have great deal of difficulty in dealing with the case and I’m not sure that I’m right about this being a kind of a case in which we’re asked to consider types of regulations and not specifically described and presented in so many words.

    And so far as I can see, the only specific thing that we have before us this problem about net fishing.

    Am I right or wrong about that?

    In terms of the way this litigation and this case is actually litigated below, is anything before us out of them the use of nets?

    Is anything before us with respect to the amount of fish that the Indians could take otherwise and by nets for example?

    Arthur Knodel:

    The answer is, the entire — the injunction totally restrained and prohibited the use of any nets —

    Abe Fortas:

    That’s right.

    Arthur Knodel:

    — in this area.

    It does not have anything to do with any rules or regulations, but it totally prohibited the use of any nets in this common area of —

    Abe Fortas:

    Alright, now are you telling us that unless the Indians use nets, they can’t catch any fish at all?

    Arthur Knodel:

    This is correct.

    There is a —

    William O. Douglas:

    Lot of people catch fish without nets, I know.

    Arthur Knodel:

    Well, I should, Mr. Justice Douglas —

    Abe Fortas:

    That’s what I understood you to say.

    Arthur Knodel:

    What I’m talking about is this, when you catch with trawl then of course you’ll have — it’s very inefficient because when the fish starts spawning as when you get them, you catch very few.

    And to catch this type of fish, it would impossible for them to survive.

    Traditionally, they have used the net method of fishing.

    I see my — I’d like to reserve —

    Earl Warren:

    May I ask you this?

    Earl Warren:

    Assume that by your net fishing at the mouth of the Puyallup River that the spawning up the river would be destroyed.

    Now, we just assume that as a fact.

    What would happen to the salmon run in the —

    Arthur Knodel:

    That particular run would be wiped out if it were destroyed.

    Earl Warren:

    It would be wiped out and there would be no fishing for anybody because salmon won’t go up another stream from that — where they were born, would they?

    Arthur Knodel:

    This is correct.

    The only problem we have is now at the States doing, we’re taking 3% and 5% of those fish now.

    So it depends where you call a spawning fish like —

    Byron R. White:

    That’s only so if you say if you count all the fish that are caught.

    Abe Fortas:

    And the whole Puget Sound.

    Byron R. White:

    And whole Puget Sound.

    That isn’t the percentage of how many fish you take out of the mouth of that river.

    Arthur Knodel:

    We’re talking about the Puyallup fish run, 3% to 5%.

    Byron R. White:

    I know but that’s counting up wherever they’re taken.

    Arthur Knodel:

    Between the commercial —

    Byron R. White:

    What percentage of the fish that arrives at the mouth of that river on the way up to spawn, do you take?

    We don’t know, do you?

    Arthur Knodel:

    The amount we take, no.

    Byron R. White:

    But anyway, it’s a different figure?

    Arthur Knodel:

    It would be a different figure, this is correct.

    Earl Warren:

    Do they deny the right to commercial fishermen to fish with nets in any season of the year?

    Arthur Knodel:

    This is regulated.

    They vary from time to time.

    Earl Warren:

    But the State does regulate that, does it?

    Arthur Knodel:

    This is correct but their nets come down to within two miles of the Puyallup River.

    Earl Warren:

    Yes, very well.

    Mr. Tanner?

    Jack E. Tanner:

    Mr. Chief Justice, may it please the Court.

    This matter also comes on before this Court on writ of certiorari to the Washington State Supreme Court and as United States says in their Brief, the facts are so bare as to leave no room for accommodation.

    After three weeks of trying the Puyallup case that we could not afford because of the economic situation of my clients, we decided with the State that we would agree to certain facts.

    William O. Douglas:

    You would agree to what?

    Jack E. Tanner:

    Certain facts.

    One, that the particular petitioners were allowed to continue with their method of fishing, it would virtually destroy the fish runs.

    Earl Warren:

    That’s agreed to by all parties?

    Jack E. Tanner:

    Just by me and my clients, Your Honor, and I assume the State.

    Because you see, we disagree with both the —

    William O. Douglas:

    Who is your client?

    Jack E. Tanner:

    There are twelve named individuals, Your Honor.

    William O. Douglas:

    Members of the Tribe?

    Jack E. Tanner:

    Most of them are or some of them are — very difficult —

    Earl Warren:

    Are they commercial fishermen?

    Jack E. Tanner:

    I beg your pardon, sir?

    Earl Warren:

    Are they the commercial fishermen?

    Jack E. Tanner:

    If it could be called commercial fishermen, they are the commercial fishermen.

    They are the ones that fish at the river here, that is directly southwest of — This is the Puyallup, the Nisqually is down here on a torch mountain here.

    Earl Warren:

    Is that spawning area?

    Jack E. Tanner:

    That’s spawning area also, right of what they call the Nisqually.

    I am sure Justice Douglas is familiar with the situation.

    Byron R. White:

    Is this fishery own by the Tribe or the group?

    Jack E. Tanner:

    This is off the reservation, Your Honor.

    Byron R. White:

    Yes.

    Jack E. Tanner:

    Below the reservation.

    Byron R. White:

    I know.

    But is it owned by the Tribe?

    Jack E. Tanner:

    No.

    Byron R. White:

    I mean, is the product of the fishing owned by the Tribe?

    Jack E. Tanner:

    No.

    Byron R. White:

    Just by individuals of the Tribe?

    Jack E. Tanner:

    That’s correct.

    Byron R. White:

    So that other individuals could also form themselves and run and start another commercial fishery there?

    Jack E. Tanner:

    This is a problem.

    Byron R. White:

    Yes or every member of the Tribe could?

    Jack E. Tanner:

    That’s correct.

    Byron R. White:

    And duplicate the same fishing?

    Jack E. Tanner:

    That’s right.

    Earl Warren:

    Did I understand you that there were, among your twelve clients or whatever member you mentioned, some who are not Indians?

    Jack E. Tanner:

    No, all Indians, Your Honor.

    Earl Warren:

    I know but all members of the Tribe?

    William O. Douglas:

    What’s the definition of an Indian by the way?

    Jack E. Tanner:

    This was raised at the trial court or we have had litigation as to what is an Indian as to the State —

    William O. Douglas:

    The member of the Yakima Tribe, you are Indian if you have a 164th.

    Jack E. Tanner:

    Or is that 1/4th.

    William O. Douglas:

    164th.

    Jack E. Tanner:

    I thought it was 1/4th, Your Honor.

    William O. Douglas:

    But a lot of blue-eyed blonds in the Yakima Tribe. [Laughter]

    Jack E. Tanner:

    There’s no question about that which would then raise the question if I was an non-Indian and my wife was a member of an enrolled Indian Tribe, could she then designate her rights to me to catch the fish since she is physically unable to do so?

    Now, the Treaty of Medicine Creek gave the Indians that we’re talking about here some right.

    Now, we feel, it was a contractual matter between the United States and those various Indian Tribes in which Puyallups is one and the Nisqually is another.

    Earl Warren:

    Before you get to that, I just like to know your clients.

    You say some of them are of a tribe and some are not.

    Jack E. Tanner:

    Or in a married —

    Earl Warren:

    How did they acquire their interest in the fish that common to the Indians themselves?

    Jack E. Tanner:

    Well, they are, as parties have agreed, successors-in-interest to those signators to the Treaty of Medicine Creek in which the Nisqually Tribe —

    Earl Warren:

    By purchase?

    Jack E. Tanner:

    No, not by purchase; probably by marriage.

    In fact, one of the petitioners is the son of the oldest living Nisqually.

    There’s only about 33 living Nisquallies, the way I understand it.

    Earl Warren:

    Only 33?

    Jack E. Tanner:

    Only 33; about 33.

    Abe Fortas:

    How many Puyallups are there?

    Abe Fortas:

    How many are there at the Tribe, do you know, Mr. Tanner?

    Jack E. Tanner:

    I think there are between 300 and 400, somewhere in that.

    The term — the number 347 is in my mind for some reason but I think it’s between 300 and 400.

    By —

    Abe Fortas:

    Have you filed a separate Brief?

    Jack E. Tanner:

    I beg your pardon, sir?

    Abe Fortas:

    Have you filed a separate Brief?

    Jack E. Tanner:

    I have.

    One of the problem is there are so few that are now living is because of the injustices and indignity is heaped upon the Indian people.

    Their life expectancy about 42; their educational achievement, Grade IV and this is the reason, gentlemen that at least my clients, and that perhaps they’re right, disagree with the test either reasonable or necessary and the indispensable test by the Umatilla case.

    We feel that the Treaty either gave them a property interest in the fish or gave them nothing.

    And in the answer to the many questions propounded to counsel by this Court, I would say this.

    Yes, the Indians do have a right to take every fish that goes up to that Nisqually River, every single fish.

    Earl Warren:

    Even to the destruction of the species?

    Jack E. Tanner:

    I have no knowledge and I haven’t received no information from the State, either at the trial court level or any place else, Your Honor, where the Indians have ever destroyed a fish run.

    Earl Warren:

    Well, that wasn’t what I asked.

    You said they could take every single fish that goes up there.

    Would you say that even to the fact, even to the degree that would ruin the spawning grounds of the salmon in that area?

    Jack E. Tanner:

    If they so chose to destroy their run for some reason, I would say under the Treaty, they could do it.

    Earl Warren:

    The commercial reason?

    Jack E. Tanner:

    I would think that the commercial reason — you see they’re very limited in the commercial fishery actually.

    They eat them and they sell them and they trade them.

    It keeps them off the welfare.

    Earl Warren:

    To what extent is there commercial trading in these groups?

    Jack E. Tanner:

    The extent of 12 individuals, Your Honor?

    Earl Warren:

    Yes.

    Jack E. Tanner:

    Catching the fish by net, I do not have the figures but I do know —

    Earl Warren:

    How about round figures?

    You must have some idea about how much it amounts to in a year?

    Jack E. Tanner:

    I think, perhaps, sir, I could explain it in this particular situation.

    Jack E. Tanner:

    I do know that when they are allowed to catch the fish, not prohibited from catching any fish, that they stay off a welfare rolls of the State of Washington and are entirely self-sustaining economically.

    And when they are prohibited from catching fish, and many other must then resort to the welfare rolls.

    Byron R. White:

    That’s just these people who — just the Indians who happen to be engaged in this commercial fishing operation?

    Jack E. Tanner:

    That’s correct.

    Earl Warren:

    Your 12?

    Jack E. Tanner:

    They’re 12.

    William J. Brennan, Jr.:

    Tell me Mr. Tanner, I gather — in going and saying they can take everything that comes up the river.

    You mean as well to the exclusion either of sports fishermen or other commercial fishermen further up the river?

    Jack E. Tanner:

    There are very few other fish —

    William J. Brennan, Jr.:

    No, but does your proposition goes so far as the same?

    Jack E. Tanner:

    It does, Your honor.

    William J. Brennan, Jr.:

    So this is solely and exclusively Indian?

    William O. Douglas:

    I suppose you could start on the premise that you have a property right [Inaudible] or rembrant or chair you can destroy if you wanted, correct?

    Jack E. Tanner:

    I would think so.

    I think the Treaty gave them something and those fish bar property rights, obviously.

    Potter Stewart:

    Is there anything in the record or anything of which we might take judicial notice as to first, how many fish were being taken at the time of the Treaty in 1854 by the Indians; second, by what means were they being taken and third, relating back to first; if not how many, then what percentage or proportion of the whole?

    Jack E. Tanner:

    There is nothing in the record at least in this case, Your Honor, but there are histories and there are certain written documents that there is no question from the time of fishing in the State of Washington, the Indians took the fish by much more efficient method than they’re taking now, much more efficient methods: fish baskets, fish wheels, nets —

    Potter Stewart:

    In 1954?

    Jack E. Tanner:

    Of course, because you see it was a matter of survival of taking them and obviously, at that time, there are — the histories are replete with the streams being so filled with fish that you literally walked across the streams on the back of them.

    What had happened with the advent, and the on rush of our highly technical society now and the competition of many foreign countries for fish, the fish are being systematically destroyed and not by the Indians.

    The fish at that time and I can remember, the boy fish being sold for two for quarter in the Puget Sound area have now suddenly become, in many instances, worth $10 a piece.

    And the Indians being at perhaps the lowest scale in our American Society, politically, economically and socially, they are the targets of the moneyed interest to catch the fish commercially, by the big steamships, the latest radar, sonar and other equipment that they very efficient take the fish.

    And this is why, at least my clients are in the position that they are against the indispensable rule set down by Umatilla.

    The indispensable rule, I think I should point out, is a dangerous rule, even though United States through the Department of Justice is in favor of Umatilla Rule.

    This is accommodation and compromise.

    Potter Stewart:

    My thought is — the thought behind my questions was that I don’t know that anybody is taking that position that the records to the 1854 Treaty might be referable in the meats and bounds of either the proportion of the fish that were being taken then or the number of fish that were being taken then or the means that were used to be taken at that time, the time of the Treaty, and I wondered if we have any data on those —

    Jack E. Tanner:

    It’s available, sir, but it’s not in this record.

    I know that it is available.

    I have seen it.

    When we were placed in the position in these cases as the Indians were going to be placed in the position if this Court does not uphold their Treaty right to take all the fish in the position of further litigation because the State of Washington, just as I have determined what is reasonable and necessary is going to determine to the State Courts what is indispensable.

    Jack E. Tanner:

    Once that happens, I think we’re going to be back in this Court under a different issue that’s going about separate, but equal and this Court has denied the separate but equal philosophy in many states in this country, namely in the school cases.

    But that’s what the indispensable rule will lead us if we follow it to its — the end of the river.

    Earl Warren:

    But I understand you say there is nothing in this record which would indicate the extent of your commercial fishing in that area?

    Jack E. Tanner:

    No, I would think that even though the fish must run further down the water line in the lower Puget Sound, subject to the predators, further hazards that the still 1% that the State says, and these are State witnesses, all biologists hired testifying for the State because these Indians can’t afford them, that there must be a 1% escapement, which means if one of the Indians catches one fish off the mouth of Nisqually River, that virtually destroys particular fish run.

    So, our position —

    Earl Warren:

    You mean, there are only a hundred fish come up that river?

    Jack E. Tanner:

    And if you take one of them, sir.

    The state’s position is, obviously, that it would virtually destroy the run because only 99 got up to that river instead of 100.

    So what they are doing under the guise of conservation, you see this is not conservation that we’re talking about here.

    The state has decided politically, not legally, politically that those fish that come back from the ocean that are coming down to the straits and down in the Puget Sound and the lower Puget Sound, are going to be caught by sports fishermen who can afford to be out there and by commercial fishermen.

    They have by –under the guise of conservation eliminated any fish from the Indians.

    Byron R. White:

    But the Indians could fish out of the Sound, don’t they?

    Jack E. Tanner:

    They are unable to fish out of the Sound.

    The reason, there is two reasons for putting a net across the part of the river.

    The two reasons are: it is much more economical to do so, all you have to do is put the net up there, and this is the best place to catch the fish.

    Earl Warren:

    Why couldn’t your commercial fishermen fish the same as other commercial fishermen?

    Jack E. Tanner:

    Because they can’t afford it.

    Earl Warren:

    Well, you mean because their operation is smaller than the others?

    Jack E. Tanner:

    That’s correct.

    Earl Warren:

    But you can’t tell us what those relationships are, can you?

    Jack E. Tanner:

    No, but I think this Court could take judicial notice.

    A purse seiner, for instance, or any other kind of a semi-steamship can catch more fish in one day than the Indians who probably catch them in five years with their limited operation.

    All they do is scoop them up.

    We had an international incident off the coast of Washington, the Russian Fleet.

    Earl Warren:

    You mean outside of the Sound?

    Jack E. Tanner:

    That’s correct.

    On the other side, Olympic waters.

    Earl Warren:

    That’s in the rational waters?

    Jack E. Tanner:

    That’s correct.

    But that is where most of those fishes are coming from out there with Russians.

    Jack E. Tanner:

    They know where they are too just as the Indians know the best place to catch them so do the Russians.

    Earl Warren:

    Well, how about when they get in the Sound, do you have that kind of depredation too?

    Jack E. Tanner:

    No, you have strictly within the domestic waters of America after they clear the Canadian waters and those steamships, with their tremendous gear, follow their fish cur down up to what is called “Brown’s point”, approximately right off in here almost to the mouth of that river and scooping in the mouth.

    That’s where the fish go obviously.

    Byron R. White:

    Now what would happen if the State limited the fishing in the Sound, limited commercial fishing and sports fishing in the Sound and the result would be, as you suggest, that more fish would reach the mouth of the river?

    Jack E. Tanner:

    My answer to that –

    Byron R. White:

    What then would happen to him?

    Jack E. Tanner:

    My answer to that is this: the State cannot do it.

    Byron R. White:

    Do what?

    Jack E. Tanner:

    Limit the commercial fisher in that Sound.

    Byron R. White:

    Why not?

    Jack E. Tanner:

    Because if what we’re talking about a conservation, a real conservation of the Anodramous fish, which has become such an important food supply to people throughout the world, it then it must be controlled back up at the source and the only people that could control it is going to be the federal government.

    If we’re going to compete with Russia, Japan, Canada and probably other countries, for that anodramous fish and that’s exactly what we’re doing, then we must have the federal fishery so then you can see their control is in here and out there.

    Earl Warren:

    Well, other States control the fishing inside of their water ways, don’t they?

    Jack E. Tanner:

    Oregon and Idaho, who are part of this case through amicus briefs, have the same problem.

    The difference is, there probably more of these particular streams in the State of Washington.

    I predict —

    Earl Warren:

    How about San Francisco Bay?

    Don’t they have seasons on salmon?

    The state have seasons on salmon —

    Jack E. Tanner:

    On San Francisco Bay?

    Earl Warren:

    Yes, don’t they —

    Jack E. Tanner:

    One of the rivers, sir —

    Earl Warren:

    Don’t they have it of Sacramento and San Joaquin Valley — in San Joaquin River and the principal ones; one running from the north, one running from the south into the common bay and they control the salmon in there, they control the striped bass and all other fish.

    They have seasons for them and they have actually outlawed all commercial fishing in there.

    I would think they can do that in that State, why can’t they do it to others.

    Jack E. Tanner:

    No.

    Earl Warren:

    You say, the only reason I asked that is because you said that the state could not do that?

    Jack E. Tanner:

    As a practical matter, I do not believe the State can do the job.

    I do not think one —

    Earl Warren:

    Well, we’re not talking about a practical matter.

    We’re talking about legally if you are just saying that that it’s your experience that they can’t do it practically, that’s one thing but I thought we’re trying to determine here whether they could do it legally.

    Jack E. Tanner:

    Legally, they can.

    Earl Warren:

    ‘Well, if they could do it legally, could they bind the Indians?

    Jack E. Tanner:

    Except at the usual, accustomed fishing ground; and that’s the river.

    Abe Fortas:

    Well, don’t you have a problem though here because the language of the Treaty itself and the Indians have been guaranteed the right of taking fish in all usual and accustomed grounds and stations in common with all citizens of the territory.

    I suppose you have to argue that “in common with all citizens of the territory” did not subject you to the same regulations that are applicable to all other citizens of the territory.

    Jack E. Tanner:

    That’s correct.

    Abe Fortas:

    You take that position?

    Jack E. Tanner:

    That’s correct.

    Abe Fortas:

    And this is a regulation that we’re here talking about, a regulation which is applicable to everybody by its terms and your complaint is, that it has a different impact on the Indians.

    But what is there in the Treaty that recognizes that particular right of the Indians to have fishing rights that are more favorable than those of the other citizens of the territory.

    I’m asking you a very elementary and fundamental question, but this is not like some of the other Indian situations in the language of this Treaty.

    Jack E. Tanner:

    That’s correct.

    Abe Fortas:

    It’s not like some of the other —

    Jack E. Tanner:

    Many of the northwest Treaties has come to point out before having similar or —

    Abe Fortas:

    I know that.

    Jack E. Tanner:

    — language.

    Now, this particular Treaty became a part of the law of the land of the Sixth Amendment obviously, making the treaties the supreme law of the land.

    The treaty — with this particular Treaty, was signed before Washington was a state.

    The person who’ve signed for the federal government, which is the territorial government of the State of Washington and the Indian agent acting on behalf of the United States.

    The State of Washington was not a state at that time.

    There has been nothing you say that at least we can discover the petitioners that abolished the rights of the Indians to fish.

    Abe Fortas:

    I’m — let’s assume you’ve got all the rights that are specified in these Treaty.

    Jack E. Tanner:

    Alright.

    Abe Fortas:

    Now, what I want to know is what is there in this Treaty that commits the United States to assure to you rights, privileges or prerogatives that are superior to those of other people of the former territory, now the state?

    Jack E. Tanner:

    I can remember – I think it was this Court that said “Great nations keep their word”.

    Abe Fortas:

    In other words, what’s the word —

    Jack E. Tanner:

    And at that time of the treaty, sir.

    Abe Fortas:

    — that’s what I’m trying to find out: what is the word?

    Jack E. Tanner:

    The word is, that you shall have the right in 1854 to take the fish, to usual and accustomed fishing states or grounds. (Voice overlap)

    They had it at that time.

    Abe Fortas:

    But in the common —

    Earl Warren:

    It says in common with all citizens of the territory, does it?

    Jack E. Tanner:

    It seems to me that this Court in the Winans case, the course is 195 and those cases always said that it was a grant from the Indians — federal government the right of those to fish in comity, not a grant from the federal government of the Indians that the State without its police but this Court has said that that grant was from the federal — from the Indians to the federal government.

    You know it was obviously why they did it, sir, to keep those Indians from killing white settlers

    Earl Warren:

    The government says in its memorandum that the Indians, who have been guaranteed by federal Treaties “the right of taking fish at all usual and accustomed grounds and stations in common with all citizens of the territory” —

    Jack E. Tanner:

    Yes, and the —

    Earl Warren:

    They guaranteed them that right “in common with all citizens of the territory.

    ”Now, what does that mean?

    Jack E. Tanner:

    Now the federal government did not care give the Indians answer.

    The Indian that guaranteed to federal government that, that they would let the settlers fish.

    Earl Warren:

    What language were you referring to?

    Jack E. Tanner:

    Same language.

    Earl Warren:

    That’s your interpretation of this language.

    Jack E. Tanner:

    This is my interpretation of what this Court’s did in the Winans case.

    Abe Fortas:

    What this Treaty said, as I understand it is that, the Indians are going to stay on the reservation, but they can fish anywhere, they have fished, they’ve been accustomed to fishing even if those other places are in private possession, or you have to go with private lands, private property to get to them, but that your fishing rights in those other places are in common with the other inhabitants of the territory.

    Now, that’s why I read this Treaty and if you disagree with that, I’d like you to tell me.

    In other words, the Indians, in return for this tremendous transfer, this transfer of tremendous acrage —

    Jack E. Tanner:

    I think they got paid for it years ago.

    Abe Fortas:

    Well, that’s different matter though.

    First, we have to find out what Treaty says.

    I know there are lots of other considerations, but this Treaty says, “Indians are going to stay on the reservation except that they may fish wherever they’ve been accustomed to fish in common with other people in the territory and you can even go across privately owned land to do that.”

    Now, what you’re saying here is, as I understand that is that, in common with the other people of the territory does not mean that you can be subjected to rules, regulations, and statutes of the State of Washington anyway, applicable to everybody else in the state, is that right?

    Jack E. Tanner:

    That’s correct.

    Abe Fortas:

    And there is where I have difficulty because I — so far as the Treaty is concerned, because I see nothing in the language of the Treaty that would support that?

    Jack E. Tanner:

    I think, sir, that the language of the Treaty, which is subject to interpretation apparently, is that the Indians gave those settlers the right to fish with them.

    Now, if I have that property right and I’m going to give that property right to you, I would think that I would reserve the privileges of immunities that I might not give to you.

    If you’re giving it to me, you might reserve certain privileges of immunities.

    But our position is, that the Indians gave the settlers the right to fish with the Indians.

    William O. Douglas:

    The right to fish with nets?

    Jack E. Tanner:

    I don’t know, sir, the answer to that question; 1854, I don’t know.

    Byron R. White:

    Well, if you’re saying you — that the Indians retained their pre-existing right to fish and just this Treaty you have the effect of letting the settlers fish with them, then what do you rely on to protect this retained right to fish from state regulation?

    Jack E. Tanner:

    I’m sorry, sir, I don’t understand your question.

    Byron R. White:

    You mean, you still have to say why that retains right to fish is immune from state regulation?

    You can’t have a bull, you can’t say it was a federal right guaranteed by the Treaty that’s immune — and therefore immune from state regulation and then also say it wasn’t a federal right at all if we always had it.

    Jack E. Tanner:

    I think it’s inherent in the Treaty.

    Byron R. White:

    Inherent?

    Jack E. Tanner:

    In the Treaty, they’re to retain this right, until that right is extinguished or terminated in the proper manner.

    For instance, the state knew of the Treaty with the Indians at the time it became a state.

    I do not think that the fact that the State of Washington, then reached statehood, extinguished anything as far as the Indians were concerned, has the right to fish.

    Byron R. White:

    Do you think the Treaty also includes a promise by the United States not to interfere with this so called “Retained right” or to let the state interfere with it?

    Well, somehow, you got to keep the state out of — from regulating this right whatever it is?

    Jack E. Tanner:

    As to my understanding with that Treaty, and my position, Your Honor, is this: at the time that the Treaty was made with the Indians right up to the present time, gentlemen, it’s my position that the United States dealing with the Indians or the successors-in-interest of the signators to that Treaty, the United States did guarantee to the Indians those rights and they did guarantee that the State could not terminate that treaty because you see this is exactly what their practice or doing.

    If the State is allowed to impose one single regulation or standard upon the conduct of Indian fishing then that Treaty is terminated.

    Hugo L. Black:

    What part of the Treaty?

    What language of the Treaty?

    What words of the Treaty?

    Jack E. Tanner:

    The whole Treaty, sir.

    Hugo L. Black:

    Well, I’m just –

    Jack E. Tanner:

    Because the basic –

    Hugo L. Black:

    I’m just been reading it and I can’t find any which seems to say —

    Jack E. Tanner:

    Section 3, sir.

    I think Section 3.

    At least under these particular cases are the pertinent sections that the Indians were basically interested here.

    At least, no similarly situated in the northwest as the Nisqually Indians are basing their dignity as Indian people upon the word of the United States to uphold these Treaties, especially Section 3 because that’s all they have left.

    Hugo L. Black:

    Like my brother Fortas though when I get to Section 3, it says “Further — said Indians in common with all the citizens of the territory”.

    What does that “in common with all the citizens of the territory” mean?

    Jack E. Tanner:

    My interpretation, Your Honor, is that the Indians gave it to the settlers the right to fish with them.

    Hugo L. Black:

    The Indians gave the settlers the right to fish with them?

    Jack E. Tanner:

    That’s correct.

    Hugo L. Black:

    In common?

    Jack E. Tanner:

    That’s correct.

    Hugo L. Black:

    And that they reserve to themselves the right to determine how the fishing should be done by everybody in the state or territory?

    Jack E. Tanner:

    I would think so, sir.

    Earl Warren:

    You what?

    Jack E. Tanner:

    I would think so.

    Earl Warren:

    That’s the basis of your argument?

    Jack E. Tanner:

    That’s correct.

    Earl Warren:

    Mr. Martin?

    John S. Martin, Jr.:

    Mr. Chief Justice, and may it please the Court.

    I think at the outset that it should be made clear that we are concerned here with two separate cases: one in which there was a fairly extensive record, that is the Puyallup case; and there is Nisqually case, which was based on a somewhat stipulated record.

    And although there are approximately 400 Indians, who would be affected directly by this case, the principles that this Court will announce in this case will affect more than 15,000 other Indians in the Pacific Northwest who have similarly guaranteed rights to fish at their usual and accustomed ground in accordance with other Treaties between their Tribe and the United States.

    William O. Douglas:

    But some of those, as I remember, some of those don’t have don’t have this phrase, “In common with other citizens?”

    John S. Martin, Jr.:

    I think there are a great number of them do.

    I think there may be some particular reservation rights, which say don’t, but there are primarily the Treaties do contain.

    Our language, which is in all respects identical with this.

    As we view the case, we cannot support the position taken by Mr. Tanner here that the Indians are totally free.

    William O. Douglas:

    Is that true what you have just said about the coast Indians, the Puyallup, (Inaudible) —

    John S. Martin, Jr.:

    Well, we have set forth –

    William O. Douglas:

    — their Treaties?

    John S. Martin, Jr.:

    — in a footnote to our original memorandum, which was submitted at the time this case was on petition for certiorari, we have set forth the Treaties involved and they are set forth at footnote 3 of our memorandum at that time.

    Now, my best recollection is that all those Treaties contain language which is if not identical quite similar —

    William O. Douglas:

    I can find out now, thank you.

    John S. Martin, Jr.:

    — to that which we have here.

    As I was saying, I don’t think that we can support the position which is taken by Mr. Tanner that there is no right in the State in any instance to regulate fishing by the Indians.

    However, I think that it is a complicated problem. I think that we have to start certainly with the language of the Treaty itself and also with the cases which have been decided by this Court.

    Now this Court has never decisively ruled on the particular issue presented by this case, but it has in a number of case and that particularly the Winans case, recognized that when these Treaties were made, the Indians did enjoy and were guaranteed a somewhat special right even though it was to be a right in common, it was a somewhat special right which was of a different nature than that which the ordinary citizen of the territory would enjoy.

    And I think really the problem which this case presents is one of determining where the burden of conservation should be placed in a particular case.

    I think you have to the outset concede that neither the Indians in 1854 or the representatives of the federal government that time anticipated that things would develop to a point where it would be necessary to impose conservation restrictions on the amount of fish that could be taken.

    John S. Martin, Jr.:

    But I think a good starting point to determine how the burden of that conservation is to be apportioned has to be the conditions that existed at the time the Treaty was entered into.

    Now, there is testimony in the record in the Puyallup case by Doctor Teller, who was an anthropologist and it appears at pages 184, 185 of the record, in which he sets forth and stated that at the time this Treaty was entered into, there was no commercial fishing of any significance in this area except that of the Indians.

    The Indians did fish and they fish not only for their own subsistence but also for fish which they then bartered with people down the coast and with settlers down the coast and with the Hudson Bay Company.

    Indeed, in the archives there is a letter of Governor Stevens to the Commissioner of Indians Affairs, talking about this provision in this particular Treaty and unfortunately, we have not set it out in our Brief but I can, I’m sure, obtain copies and would submit them to the Court.

    For I think it’s significant what Governor Stevens who would negotiated this Treaty with the Indians had to say about the nature of the fishing and the rights of that time.

    I’m talking about the Indians of Puget Sound is that they form a very considerable proportion of the trade of the Sound.

    Many are good laborers and are employed in families, vessels, lumber yards, lumber mills and on farms.

    They catch most of our fish, supplying not only our people with clams and oysters but salmon to those who pure and export it what they call small patches of potatoes, their principal food is fish and roots and berries.

    Then it goes out to say, the provisions as to reserves, as to taking of fish, pasturing animals and gathering roots and berries had strict reference to their conditions as above.

    So it’s clear that at the time that this particular Treaty was entered into, the Indians were engaged in commercial fishing.

    They were in fact the only people in this area engaged in commercial fishing and they — this provision was inserted in the Treaty to protect their right, to continue to engage in commercial fishing.

    William O. Douglas:

    Certainly, the folklore in that part of the country is that many a sports fishermen would have come home empty handed if they haven’t been able to buy this fish from an Indian.

    John S. Martin, Jr.:

    [Attempt to Laughter] I’m sure that’s true, I’m still true today.

    I think that the next important thing to turn to is what has caused the change and condition which now requires the imposition of conservation laws.

    I think the clear answer today is that a large commercial fishery has grown out in the Puget Sound and in the higher State of Washington and it is the taking of these fish by the commercial fishermen, not the taking of fish by the Indians which requires the imposition of conservation measures.

    One of the exhibits, I understand at the Court below was a Washington State of Department of Fisheries Report, the 73rd Annual Report and this is the year 1963, which I take it was the most recent available at that time and in that report, there are statistics as to the number of fish taken by the commercial fisheries and the number of fish taken by the Indians an it is clear from that report, for example on the State of Washington as a whole, there were in the year 1963 9,311,763 salmon taken.

    Of that total fish, 815,000 were taken by Indians. Similarly with regards to Puget Sound, that area alone again the total fish taken was 7,608,434 where the Indians again took less than 10% of that, taking 658,394.

    So it seems that the need for conservation has arisen.

    Earl Warren:

    How large is the Indian Commercial Fishing there?

    You gave us a number of fish, 800,000, what does that represent in dollars, do you have any idea?

    John S. Martin, Jr.:

    I’m sorry, Mr. Chief Justice, I don’t know what that would work out in a dollar value.

    Hugo L. Black:

    Would you mind telling me exactly, under this Treaty, what’s the government’s position, the Indians have the right to do here now and what, how the State of Washington regulated them, if at all?

    John S. Martin, Jr.:

    Yes, Mr. Justice Black.

    I think that it is clear from the Treaty, again starting with the proposition that nobody recognized at that time that there is going to be a conservation problem, but I do think that clear invocation of the Treaty was that this was supposed to be a shared right, the right to fish.

    And I think a clear implication from that fact is that neither the Indian nor the other settlers would have the power either to take all of the fish or to destroy the resource by excessive fishing.

    Hugo L. Black:

    In that you disagree with Mr. Tanner?

    John S. Martin, Jr.:

    And that I disagree with Mr. Tanner.

    However, I do think that the thing that has to be recognized in which the court below has not recognized is that the Indians did have a particular right to fish at their usual and accustomed ground and it seems for us unreasonable for the court to say that we have decided because there is a large scale commercial fishery.

    We have decided there must be conservation and so we will prohibit all kinds of fishing or commercial fishing at the usual and accustomed ground to be Indian.

    It seems to me that type of attitude does not recognize that the Indians had a right.

    John S. Martin, Jr.:

    This is where they’ve always fish, this was where they continued to fish.

    It seems to me unreasonable to say that if we guarantee the Indians the right to fish at their usual accustomed ground, we were carving out an exception which said, “Of course, if the other settlers fish out in the Sound and take all of the fish, then we’ll have to apply our conservation laws to you and your fishing will have to be eliminated.

    Abe Fortas:

    What you’re saying, if I understand Mr. Martin as statutes and regulations at the State of Washington although in terms they are applicable to Indians and non-Indians, in fact, there is an Indian effect.

    Their impact on the Indians is much more severe than it is on the other services, who have a right in common with the Indians?

    John S. Martin, Jr.:

    That is correct.

    I don’t think you can look at this extreme and isolation to say we’re excluding everybody so we can exclude the Indians.

    I think you have to look at the total fishery and this happens to be the usual and accustomed ground for the Indians and this is where we guaranteed them the right to fish.

    Hugo L. Black:

    Did you mean by that now that Washington has no power to regulate their power to fish at the usual and accustomed ground?

    John S. Martin, Jr.:

    No, I do not, Mr. Justice Black.

    Hugo L. Black:

    You mean that they have no power to prevent their fishing commercially there –

    John S. Martin, Jr.:

    I think –

    Hugo L. Black:

    But hey do have power to permit other people to fish?

    John S. Martin, Jr.:

    I think, Mr. Justice Black, that what you have to come to here is a view that overlooks the entire fishery and it says that when the entire fishery presents a need for conservation because so many fish were being taken by that fishery, then I think some accommodation has to be made as to who should bear.

    Hugo L. Black:

    But what can Washington do?

    John S. Martin, Jr.:

    Well, I think what Washington can do and I think perhaps we took out of the context of this particular situation, if we would dealing with –

    Hugo L. Black:

    I wanted it in the context of this situation [Inaudible]

    John S. Martin, Jr.:

    Alright I will try it in the context of this situation.

    It seems to me in this case, since the thing that is causing a need for conservation is the large scale commercial fishery which is going on out here in Puget Sound.

    Hugo L. Black:

    You mean not at the Indian’s usual place?

    John S. Martin, Jr.:

    That’s right.

    That’s not causing a need for conservation.

    The Indians haven’t been doing it.

    It’s been going on out in the Sound.

    It seems to me that before the state can come and regulate the Indians, they have to show that they have made that fishery, which is taking the fish it seems that there is where the conservation should be applied.

    Byron R. White:

    If there’s some real dispute on the record in this now Mr. Martin quite candidly, even if there if there were twice as many fish that reach the mouth of that river, you have no basis in this record for saying that the Indians fishery would not endanger the run?

    John S. Martin, Jr.:

    Well, I think that that’s right.

    You could —

    Byron R. White:

    Well, is there anything in the record that shows that?

    John S. Martin, Jr.:

    Well, there is no thing in the record –

    Byron R. White:

    There’s nothing in the record that indicates that even if you regulate it, the commercial fishing out of the Sound that the Indian fishery would have any less impact on the number of fish that get up to the stream?

    John S. Martin, Jr.:

    Well, I agree with you that that is a possibility (Voice overlap) but it seems to me —

    Byron R. White:

    [Inaudible]

    John S. Martin, Jr.:

    Well, it seems to me, Mr. Justice White that — let’s put it the other way.

    Suppose the state were to curtail all fishing in Puget Sound so that all the fish got back to their breed rivers.

    Byron R. White:

    To the mouth of the river?

    John S. Martin, Jr.:

    To the mouth of the river.

    It seems to me at that point, it would be reasonable for the state to apply to the Indians as well as the other citizens of the state.

    whatever necessary restriction had to be imposed to allow reasonable escapement, but I think what’s happened here is that the State hasn’t taken the position of trying to make some reasonable accommodation to the right of the Indian, but it instead said, we are going to make you bear entire brunt of conservation.

    And I don’t think that that attitude adequately conforms to the rights that were guaranteed to these Indians when they signed the Treaty.

    And I think that this is clear also in the testimony in the case.

    Doctor Hamilton, who has his PhD in zoology and fisheries, testified as a witness to this trial and he said that it is, in effect in his testimony on these pages at 178 and 179 of the appendix in no. 247, the effect of his testimony was that as far as conservation is concerned, whether you restrict fishing in the Sound or at the river, it’s basically a political question for what is important is that fish get through.

    It is not better conservation to allow all the fishing in the Sound and then totally prohibit the fishing in the river.

    That would seem from the other expert testimony in the record, that really might be conservation if you were to prohibit all commercial fishing until the fish got to their particular river because each river’s dock has it’s own particular breed.

    And it’s really not until they get to the actual river itself, that you know how the stock for that river is going to form and what the need may be to conserve at that point?

    But the state has taken the position that they’re going to allow this commercial fishery to exist in the Puget Sound.

    Hugo L. Black:

    And then what do they say, they will prevent the Indians from doing it?

    Is it merely to fish with the nets?

    John S. Martin, Jr.:

    Well, to put it that way, Mr. Justice Black, merely to fish with the net I think avoids the issue because to fish with the net is the only way you can fish commercially as I understand it.

    Hugo L. Black:

    Is that what Washington is claiming?

    John S. Martin, Jr.:

    Excuse me?

    Hugo L. Black:

    Is that what Washington is claiming?

    John S. Martin, Jr.:

    That’s what they’re claiming.

    Hugo L. Black:

    — fishing with a net?

    John S. Martin, Jr.:

    Exactly.

    Hugo L. Black:

    You want us to tell Washington that it can’t?

    If it will go ahead and do something outside at other part, it can prevent that fishing with the net?

    John S. Martin, Jr.:

    Well, I think that the Court should tell the State of Washington is that the Indians have a peculiar and a federally guaranteed right to fish at their usual and accustomed ground which may be regulated by the state.

    Hugo L. Black:

    That’s the usual and accustom ground?

    John S. Martin, Jr.:

    Oh!

    Yes.

    John S. Martin, Jr.:

    I don’t think there’s any question —

    Hugo L. Black:

    So in the context of it.

    They’ve got a right to fish with the net at this place —

    John S. Martin, Jr.:

    That is correct.

    Hugo L. Black:

    — until Washington does something to regulate fishing outside?

    John S. Martin, Jr.:

    That is correct.

    William O. Douglas:

    What do you do with the words, “In common with”?

    John S. Martin, Jr.:

    Well, I think that in common with Mr. Justice Douglas has to be looked at in the context of the entire fishery.

    The Indians are not asking in effect or perhaps how you take that back in view of Mr. Tanner’s statement but we would say that the Indians are not entitled to all the fish of the fish run in either of the Puyallup or Nisqually river, but if the non-Indian fishermen want to fish in Puget Sound rather than in the river, it seems to me the —

    William O. Douglas:

    They put a net across the mouth of the river too?

    John S. Martin, Jr.:

    Well, I think nobody has the right to destroy the fish run and we are certainly not arguing for that.

    William O. Douglas:

    Could they — are they on with the same parity with the Indians in —

    John S. Martin, Jr.:

    Well, I think —

    William O. Douglas:

    — challenging a net regulation of the State of Washington?

    John S. Martin, Jr.:

    No, they are not in the same parity with the Indians because I don’t think they have any peculiar right.

    William O. Douglas:

    Well, what do you do with “In common with”?

    John S. Martin, Jr.:

    Well, what I would do in common with is this, sir.

    I think that —

    William O. Douglas:

    Apart from forgetting it.

    John S. Martin, Jr.:

    Oh! I don’t for a minute forget it.

    But I think you do what you can isolate the stream where the Indians have always enjoyed their right to fish where we guaranteed that they would continue to have the right to fish.

    I don’t think you can say that the Indians, at the time they signed that Treaty, felt that they were going to — their right to fish in that river was going to be extinguished by non-Indians taking every fish in the Sound.

    Suppose you had a commercial fishery, which could drop a net in Puget Sound and take every fish before it got back to the river, I think the Indians would have a right to sue to enjoin that fishing because yes, it’s common but it’s common in the sense of I think, perhaps, you look at the sense of two people.

    The Indians want to fish where they have always fished at their usual and accustomed ground.

    The non-Indian, who is regulated, and the State speaks for that question, he can fish either in common with the Indian in that river or he can go into the Sound and take his fish there, his share.

    There’s to be a sharing of the fish, but nobody it seems to me should be allowed to take — neither sides should be allowed to take all and I don’t think you can defeat the Indian’s right to fish in the river.

    William O. Douglas:

    The Treaty doesn’t govern or specify the method of fishing, does it, just the place?

    John S. Martin, Jr.:

    That’s correct.

    But I think that the —

    William O. Douglas:

    If we had a Treaty saying the nice things promises from 1854 on it to eternity, then you should be unable to fish at least accustomed place with the net and we’d have [Inaudible] case.

    John S. Martin, Jr.:

    Yes, we would but at the same time, I don’t think you can ignore reality and say that the Indian had the right to hunt, you could then prohibit the Indian from using a bow and arrow or knife or a gun and say that he can run after the dear and throw rocks at them.

    I think that these people at the time were engaged in commercial fishing.

    They weren’t just spears.

    To answer Mr. Justice Stewart’s question, there is, I don’t know if there is anything comparable with regard to the Puget Sound fishery, but there is a Department of Interior of Publication on a history and development of the fisheries of the Columbia River and it indicates at about the same — during with the same period that they were using wares and together with fish baskets which had the same effect as the net fishery would have.

    Potter Stewart:

    Is there any showing of how many fish roughly taken at the time of the Treaty?

    John S. Martin, Jr.:

    Well, I think that in numbers, no.

    In percentages, it was almost a hundred percent were being taken by the Indians.

    Potter Stewart:

    Well, a hundred percent of the fish that were taken they were being taken by the Indians —

    John S. Martin, Jr.:

    That’s right.

    Potter Stewart:

    That’s not the question, I mean, that wasn’t my question.

    John S. Martin, Jr.:

    Oh!

    I think, as I said in answer to your question that there are none as far as I know.

    I have not seen any gross number.

    Potter Stewart:

    Then I suppose one approach to this question could be that the Indians were given the right under the 1854 Treaty to take the quantity of fish they were then taking by the methods that they were then using.

    I don’t know that anybody has approached it that way and perhaps, I that would be (Voice overlap).

    John S. Martin, Jr.:

    I think that’s one approach that can be taken.

    I think that at the same time, we — it would not be fair to say to the Indians that you are going to be limited to the methods that existed at that time whereas other people be allowed to fish by other methods because among other things, just a commercial value with everybody had a fish at the – where the Indians had been fishing then you have a limited supply of fish and I suppose fish would be more valuable per fish than if you have big vessels going out with huge nets pulling in thousands of fish where then few hundred fish the Indians might have caught don’t have the same type of value.

    I don’t think that it’s fair to say that everybody else can progress, but the Indian fishery has to suffer.

    Abe Fortas:

    Mr. Martin, may I direct your attention to a little different thing?

    What is the effect or possible effect of the regulation by the Secretary of the Interior?

    I noticed reference to regulation adopted by the Secretary which I take it has not been implemented?

    John S. Martin, Jr.:

    That’s correct.

    The Secretary is attempting to — there have been a number of problems in this field partly because there had been no definitive guidelines as to just what the authority of the State to regulate Indian fishing rights were.

    The State of Idaho, like for example, has taken the position that they have no right.

    This Treaty guarantees the Indians an absolute right to fish and the Supreme Court in the State and so there was a problem existing which hopefully will be solved by this Court’s decision in these cases.

    But the Secretary, in trying to work out some of these difficulties, the Secretary, I think, recognized among other things that no existing Indians should be permitted to fish in such a way that will destroy the runs.

    Even assuming that non-Indians didn’t have the right, there is an obligation on the Secretary’s part to conserve this asset, even if it’s an Indian asset for future generations of Indians.

    These regulations had been adopted in an attempt to provide some method of regulation.

    I think it’s clear that if the Congress were to decide or legislate in this area that the fact that there are Treaty rights to be protected, would give them under Missouri versus Holland a rationale, the right to enact legislation.

    I think the Secretary has somewhat — his regulations might come within the same type of power.

    John S. Martin, Jr.:

    I admit they create certain problems, but among other things, he is also trying to develop system that will, insofar as their – the Indians that would be treated differently when fishing at the usual and accustomed ground, there would be some method of identifying the Indians; identification of Indian gear, some method of determining who are Treaty Indians.

    Abe Fortas:

    Alright, would he have power in your opinion to supersede the regulations and laws of the State of Washington for this purpose not only with respect to the Indians, but also with respect to fishing regulations generally in the Sound?

    John S. Martin, Jr.:

    Well, I think, in all fairness, the only thing I can say is that presents a fairly difficult question.

    I think he would definitely have the power if Congress were to enact a statute giving him that power.

    The question is whether on his general power to regulate Indian to fish could be construed that broadly.

    Abe Fortas:

    What you’re saying is that the regulation at the issue has no possible help to us in this case?

    John S. Martin, Jr.:

    Well, I think it presents certain problems from the standpoint of his power but I do think that the extent of his right to regulate, in my mind, doesn’t differ significantly from the extent of the State to do so.

    In other words, the Indians have a right, which is protected from either the federal government or the state government.

    As to what type of action should be taken to enforce the regulation, whether it should be done through the state or the federal government used to be a different question.

    I think the question that this Court has to reach in this case is what is the extent of the Indian right?

    Abe Fortas:

    Well, the next thing I want to ask you relating to that is just exactly what does the government mean by the proposal in its Brief?

    What do you think as practical matter or as a specific matter ought to be the mandate of this Court?

    John S. Martin, Jr.:

    I think that both the government and all the parties to this case would be happy if this Court could work out a simple test that deals with when the Indians or how far the Indian rights will be protected.

    But I don’t think it lends itself to that type of solution.

    I think the indispensable test that Mr. Knodel has talked about seems to me to imply that everybody is fishing but the Indians must be excluded before you —

    Abe Fortas:

    Your term “Brought up”, I don’t want to be rude but as I read the government’s Brief, it seemed to me that you insist to the extent of saying that this Court ought to do the right thing.

    Now, what I’d like to (Voice overlap)

    John S. Martin, Jr.:

    Well, I don’t —

    Abe Fortas:

    — is do you have a more specific idea?

    John S. Martin, Jr.:

    Yes, but my suggestion is that it seems to me that this Court should recognize the Indians haven’t guaranteed a special right to fish at the usual and accustomed ground which may be reasonably regulated by the State, but only if the States can show that they have exercised their regulation throughout the fishery and that the Indians are only being asked to bear a proportion of the conservation regulation which is —

    Abe Fortas:

    But what would you do in this case?

    John S. Martin, Jr.:

    In this case?

    I would —

    Abe Fortas:

    Would you reverse and —

    John S. Martin, Jr.:

    I would reverse the case on the ground that the State has not shown, and this is all of the expert testimony of the State in this case is premised on the assumption that the Indians have no right to fish in these rivers that has to be protected.

    So, I would reverse this case and vacate the injunction because I don’t think that the state has shown in this case a need to limit that the Indian fishery is what’s causing the depletion of the fish.

    When the Indians are taking 10% of the fish, it seems to me hard to say to them it is your fishing that has to stop.

    That’s what I would do in this case.

    Potter Stewart:

    Let’s say you could do that, I suppose, without reference to the Treaty.

    You could do that under the equal protection clause.

    John S. Martin, Jr.:

    Well, no.

    I suppose that on the equal protection — the thing that has to protected to the Indians —

    Potter Stewart:

    If the State was discriminating against an unidentifiable group of people, either ethnic or otherwise, that’s an ordinary equal protection clause problem.

    John S. Martin, Jr.:

    Well, it would be except (Voice overlap).

    Potter Stewart:

    — meaning of a treaty, I’m having a send of (Voice overlap)

    John S. Martin, Jr.:

    No, I think there’s a difference, Mr. Justice Stewart, because what you don’t have in your equal protection argument is the Indians’ right to fish at this place.

    Certainly, I suppose it wouldn’t violate the equal protection to say the Indians, you as everyone else have to go fish in the Sound, but I think it does violate the Treaty to say to the Indians: “You, as everyone else, have to go to fish in the Sound” because the Indians in the Treaty, which we guaranteed, that they would have the right to fish at these locations and I think that’s the —

    Potter Stewart:

    But I think, Mr. Martin, implicit in your position, I might not right, is the concession that if the State could show that the prohibition of any fishing by these Indians was necessary for the legitimate purposes of conservation then they could prohibit the Indians from doing so?

    John S. Martin, Jr.:

    It necessary becomes a very difficult word.

    I think —

    Potter Stewart:

    But that’s not the premise?

    John S. Martin, Jr.:

    Yes, I do but I think that it has to be in the context of showing that the Indians are bearing only —

    Potter Stewart:

    Their fair share —

    John S. Martin, Jr.:

    — their fair share of any regulation.

    Not that you have a commercial fishery being allowed which takes nine — about a million fish and you’re not allowing the Indians to take any of it.

    I think that’s the problem in this case and that’s why the judgment here should be reversed.

    Earl Warren:

    Would you mind being a little more specific on this question?

    Assume, for the sake of argument, that the fish that the Indians were taking commercially were destroying the spawning grounds of the fish in those two rivers and that to do that would destroy the fish run in the south.

    What power, if any, would the State of Washington have to remedy that situation?

    John S. Martin, Jr.:

    Well, I think, Mr. Chief Justice, it has to be looked up in the terms of how many fish are you letting back to the river?

    Are you letting enough fish get back to the river to give the Indians a reasonable share of the fish and plus enough for spawning purposes or are you saying to the Indians that every fish that we let get back to the river has to go through?

    It seems to me that it’s unfair in the second case, you say to the Indians, “You have to bear the brunt of conservation”.

    It seems to me that if the State can show that they’re allowing a reasonable amount of fish to get back to the river for Indian fishery and they’re allowing the Indians to use reasonable methods to catch their fish here or the fish, then they can provide regulations which would prevent so that the Indians could not merely just, as Mr. Justice White was talking before, just taking double the amount of fish.

    I think that’s right.

    Byron R. White:

    If it took a hundred fish to get through up the river to maintain the run and only one hundred fish were reaching the mouth of the river, the Indians, by catching any fish, would be destroying the run.

    But if 900 or a 1000 fish which they had at the river, you would be agreeable to say that the Indian right to fish could be limited instead that a 100 got through?

    John S. Martin, Jr.:

    Certainly.

    Byron R. White:

    But at least, instead of being able to catch none, they could catch 900?

    John S. Martin, Jr.:

    That’s right.

    I think that’s —

    Abe Fortas:

    Well, your position goes a little further than that because you say that too that unless the State so regulates that entire fishery that enough fish come to the mouth of the rivers to permit the Indians to catch a “Reasonable number” and to permit perpetuation of the run then the State cannot impose any regulation on the Indians?

    John S. Martin, Jr.:

    Well, I think that implicit in your question, If I understand it, Mr. Justice Fortas, is the assumption.

    Let us say that something would happen, let’s say we had a bad fish run, there was no fishing allowed on the — completely eliminate all fishing on the Sound and still only 100 fish got through because that’s all the fish they were.

    It seems to me in that case, that the State can say the Indians are prohibited also (Voice overlap) because it’s a reasonable apportionment of the burden.

    Abe Fortas:

    But taking Mr. Justice White’s question to you, you say not merely that the State can regulate the number that the Indians take and the state must let the Indians take everything, take fish above the number necessary to maintain the run.

    You do say that, but you also say that it’s a duty of the State as a condition precedent to imposing this obligation on the Indians, so to regulate the entire fishery, as to make certain in ordinary circumstances that enough fish will come into the mouth of the river so that the Indians — so that Indians could let some through to perpetuate the run and also they Indians would have a reasonable number for themselves.

    John S. Martin, Jr.:

    That’s correct.

    Abe Fortas:

    And you have to find reasonable —

    John S. Martin, Jr.:

    Well, I think that there’s no question that that is a difficult concept.

    I do think that the –

    Byron R. White:

    [inaudible]

    John S. Martin, Jr.:

    Well, that is not here.

    There’s been no determination.

    There’s been no factual showing.

    There are, for examples statistics set forth in the Department of State Fisheries report that go back and gives a history of what’s been taken out in – years.

    William J. Brennan, Jr.:

    Yes, but let me see, Mr. Martin.

    Now, do I understand you, in answering Mr. Justice Fortas, to say this, using Justice White’s hypothetical that a determination must be made by someone on what is reasonable as the Indians’ share, if that turns out to be a 1000 coming up the river, a 100 hundred going for spawning fish and the 900 really being the Indian share, then up river, commercial and sports fishing and everything else has so to be regulated that there will come into the mouth of the river at least a 1000 fish, is that it?

    John S. Martin, Jr.:

    That’s correct.

    Earl Warren:

    Could we treat it in jsut another way instead of treating it in numbers of fish; that we treat it according to the times of the year that they go up there to spawn and would the State of Washington have the right to establish seasons at which all fish could go up there because they’re going up to spawn and in that way limit the number that are caught?

    John S. Martin, Jr.:

    I would suppose that if it was a regulation that limited all fishing for a period, to let fish get through, that would be reasonable because the Indians are not being asked to bear any greater share of the burden than anyone else.

    I mean I think that’s right, but I think is what you –end up coming to look at it —

    Byron R. White:

    But that isn’t what Washington is doing, is it?

    John S. Martin, Jr.:

    No, not as I understand it.

    I think there are seasons that you know, there are number of regulations and I’m really can’t speak unto Mr. Justice White as to what it is but it seems to me what they’ve done here is totally prohibited the Indians from fishing the way the — if not exactly, certainly similarly to the way they were fishing as far back as to the time of this Treaty and have imposed the burden on the Indians when I think that burden can only be apportioned to the Indians in proportion to the amount of fishing that they’re doing.

    Earl Warren:

    Would Washington have the right to condemn this right of the Indians in order to let the fish run continue?

    John S. Martin, Jr.:

    I would think that that is a possibility.

    I haven’t really given much thought to the problem.

    It has been done, I think, in regard to dams and the building the dams that there have been – the dams have —

    William O. Douglas:

    That was Silalo Indian case and river.

    John S. Martin, Jr.:

    Yes, I know it has been done in that context whether for this purpose – there has been a somewhat different problem but –

    Abe Fortas:

    Well, what I’m wondering is whether we’re getting into somewhat the same situation we have in Wisconsin case.

    I think you are about to get to that Menominee case —

    John S. Martin, Jr.:

    No, Mr. Claiborne is arguing — is the Menominee.

    Abe Fortas:

    Where the State said the federal government ought to relieve them of the burden of taking care of the Indian rights and the federal government said, “Well, they are entitled to rights” certainly but the State is required to accept the burden.

    Now, are we in one of those kind of binds here?

    John S. Martin, Jr.:

    No, I think we are.

    I don’t think we are arguing at all here at least that the federal government — the state has no power.

    I think what we are saying here is that the State does have a power to regulate this, but the right does exists.

    It’s a federal right, but it subjects the Indians insofar as they exceed that federal right is subject to regulation by the state.

    I think that’s somewhat similar position in the Menominee case.

    Hugo L. Black:

    Mr. Martin, I regret to ask you another question [Inaudible] I have been waiting to ask you this?

    It seems to me like the way you argue this and I can’t tell exactly how you argued, I have to admit it, I can’t tell exactly what the state of that – the Department of Justice wants us to do except that you say that the Indians should have a right to take these fish and to somebody it’s just a regulation outside, so that enough fish will get there for them to use their – get their fish.

    Now if that’s the case, whose duty is it to regulate that, is it the government?

    And if it’s the government, why does not the Attorney General has that power and authority to file a suit to get that regulated as a violation of the Treaty.

    I gather from what you are saying it’s a violation of the Treaty because they are not letting enough fish come down for the Indians to get.

    John S. Martin, Jr.:

    I think that if that was the case, — that’s not the case before this Court.

    Hugo L. Black:

    Well, I understood you to say you wanted us to tell Washington (Voice overlap) that they can’t do that thing until somebody regulates that on the outside so that the fish get there?

    John S. Martin, Jr.:

    I think what I’ve trying to urge, Mr. Justice Black, is that the State of Washington cannot attempt to regulate the Indian fishing rights until they have take that actually?

    Hugo L. Black:

    But you are saying is that they are regulating in such a way that it violates the Treaty?

    John S. Martin, Jr.:

    That’s right.

    That is discriminating the Indians.

    Hugo L. Black:

    Alright.

    Now, that it violates the Treaty, whose duty is it to try to get that straighten out?

    Can we do it by vague interpretations and vague statements about what’s reasonable and right?

    John S. Martin, Jr.:

    It seems to me that you are faced with having to do that because the state has come in and asked to enjoin these Indians from exercising their Treaty rights and this Court, I think, is empowered to say to the Court that “No, what you’ve told them they can’t do is a federally exercised right which you can’t prohibit.”

    Now, I think that you were right that for example were complaining that so much fishing was being allowed out in the Sound that no fish can get back to the river, perhaps they would have a right to bring a suit and perhaps the Secretary –

    Hugo L. Black:

    Does the government have a right to bring one?

    Does the Attorney General have the right to bring one on the part of the Indians?

    John S. Martin, Jr.:

    Well, I think it may be possible being Secretary of Interior in view of his wide jurisdiction and they might have such a right.

    Hugo L. Black:

    But why couldn’t be done?

    Hugo L. Black:

    Why should it be thrown into our lap in this vague fashion?

    John S. Martin, Jr.:

    It seems I didn’t throw it there.

    Hugo L. Black:

    I understand you didn’t [Laughter] but it seems to –

    John S. Martin, Jr.:

    But it seems to me that when the State went into court and sought an injunction, it was at that point, it was a long toss, but that’s when they start throwing it in your lap and the State has done something which they cannot do because they interfered —

    Hugo L. Black:

    That is by failing to regulate sufficiently at one place, they’ve taken it out of their power to regulate the Indians at another?

    John S. Martin, Jr.:

    That’s right.

    That’s exactly our contention.

    Joseph Lawrence Coniff, Jr.:

    Mr. Chief Justice —

    Earl Warren:

    Mr. Coniff?

    Joseph Lawrence Coniff, Jr.:

    Mr. Chief Justice and members of the Court, I’d like to begin by responding to opposing counsel’s statement regarding the initiation or the complaint rather that gave rise to this litigation.

    At the time that this complaint was drafted and filed pursuant to the Uniform Declaratory Judgments Act, injunctive relief was sought on behalf, on the part of the Department of Fisheries, the Department of Game in the State of Washington.

    The theory of the case is simply that we are asking for a declaration of what rights, privileges or immunities, if any, that these petitioners possessed by virtue of the “Usual and accustomed language in their complaint”.

    As I’m sure the Court has aware at this time, salmon fishing is one of the most important natural resources that we have and we are fortunate enough to have in the Pacific Northwest.

    Salmon fishing not only supports one of our major industries, commercial fishing but also attracts unnumbered thousands of sports fishermen who angle for these fish.

    All of he conservation measures which are enacted into law by the legislature of the State of Washington or by virtue of regulations promulgated pursuant to the State Administrative Procedures Act are directed towards the goal of returning a sufficient number of adult salmon to the spawning beds.

    State regulation of non-Indians fishing has frankly achieved this goal by virtue of these comprehensive regulations which are placed upon the time, the manner, the fishing as well as the areas in which either commercial or sports fishing may occur.

    In recent years and by recent years, I’ve specified the year 1953, various Indian Tribes in the State of Washington in addition to the Nisquallies and the Puyallups have begun to move off from their reservations unto the various rivers and streams of the State and engage in commercial net fisheries.

    The usual type of gear which has been employed and which in fact was employed, as the record shows in the Puyallup case, is what is called “monofilament set nets”.

    Now monofilament netting is outlawed by State law because it’s invisible type of plastic material which is invisible to the fish.

    The fish can’t see it.

    They can’t thereby avoid becoming entangled in the mesh.

    The — when I use the term set net, a set net is simply a net with measures I’ve just described, which is attached to the shore, to the bank and then allowed with the lead line to keep the net mesh going to the bottom of the river or float line on the top and it’s allowed to drift or it’s attached to the bank and it drifts out into the channel.

    The facts in the record of this case shows, and I did have these exhibits brought out for the Court’s information.

    This map of which is plaintiff’s No. 14 gives you a rough idea of the area in question.

    The area of fishing activity which I’ve just described on the Puyallup occurs here in Commencement Bay and basically up to the town of (Inaudible).

    The drift net, they would drift net and set at this area extensively and probably the largest concentration, the greatest number and the longest nets involved were actually at the mouth of the river and out in the Commencement Bay.

    The evidence in the record establishes that at all times, when fish were running or ascending this stream that great amounts of gear, as much gear as it was physically possible to put in, were set, were put in and this gear was operated on a 24 hour a day, 7 days a week basis.

    Byron R. White:

    How did they — if placed here out of those nets, they have to pull that in?

    Joseph Lawrence Coniff, Jr.:

    They run the nets usually they have dingies or small boats, motorboats, they go out and simply pick the net up and pull the fish out in throw it and replace the net and what it’s called running the net.

    Byron R. White:

    Do you understand that these fisheries run for the benefit of all of the tribe or just for the benefit of the people who do, own it and do the work?

    Joseph Lawrence Coniff, Jr.:

    The fishery in reality has not benefited the members of the Tribe to any great extent.

    The evidence in this record shows that Three Brothers primarily benefited of the Puyallup River Fishery, the three (Inaudible) brothers.

    The evidence shows that in 1963 they did a gross and reported sales of salmon alone within the State of Washington of $128,000.

    The evidence further shows that none of this money was returned or given to the Tribe; there was no Tribal taxation.

    The evidence further shows in this record that there was no law enforcement.

    There was conservation or regulation of any sort other than the agreed or the practical limitation if you will of the person who is engaging in this particular fishery.

    Byron R. White:

    Other Indians could do the same thing, I suppose?

    Joseph Lawrence Coniff, Jr.:

    Yes, I wanted to advert to this, the scope of the problem.

    The scope of the problem is statewide.

    The scope of the problem is a three states wide.

    We have over 30 some Treaty tribes in the State of Washington and they’re found –

    Earl Warren:

    Over 30 what?

    Joseph Lawrence Coniff, Jr.:

    30, I don’t have the exact figure.

    Earl Warren:

    No, what was the —

    Joseph Lawrence Coniff, Jr.:

    I think it’s 38.

    Earl Warren:

    38 what?

    Joseph Lawrence Coniff, Jr.:

    Treaty Indian Tribes.

    Earl Warren:

    Oh!

    I see, yes.

    Joseph Lawrence Coniff, Jr.:

    Treaty Tribes.

    Earl Warren:

    Yes.

    Joseph Lawrence Coniff, Jr.:

    The Treaties are found at page 33 in footnote no. 5 in the State’s Brief or respondent’s Brief.

    These Tribes, at the time the Treaties were negotiated were quite scattered.

    The usual and accustomed areas of these Tribes encompass almost every fish producing river and stream in Puget Sound and out of the straits of one of the few and down the coast and also in the Columbia.

    So that we are talking here, gentlemen, about an extremely significant lawsuit in terms of the resource and in terms of the amounts of money that are involved because as, I’m sure the Court is aware, fish have become quite valuable.

    There is a good market for fish at this time.

    It is this type of unregulated net fishing at the mouths of these, of the rivers of Washington which is endangering the salmon and steelhead resource.

    The position of the State of Washington today is that we must have the power to regulate off reservation Indian net fishing if we are going to be able to accomplish our management goals of conservation of the salmon resource.

    In this connection, I would call the Court’s attention to certain other exhibits which were introduced and admitted into evidence in lower court.

    This is plaintiff’s as Exhibit No. “33” and portrays on a bar scale the catch versus the escapement of silver salmon, which is one of the species, one of the five species of salmon which are found in this river system.

    Joseph Lawrence Coniff, Jr.:

    As can be seen, the blue representing the amount of escapement as the red indicating the Puyallup fishery commencing in 1953.

    You see the red lines moving up to these points, to the high points then you see the blue lines representing the escapement going down.

    This same trend has been observed or has been plotted by the way from the data fish tickets, the data of the Department of Fisheries.

    It was the uniform opinion of probably the –

    Abe Fortas:

    I don’t understand that.

    Is that the number of fish that come to the mouth of the river, the total bar show the number of fish that come to the mouth of the river?

    Joseph Lawrence Coniff, Jr.:

    That is correct, sir.

    Abe Fortas:

    And the number of fish taken by the Indians and then number of fish that escaped, is that right?

    Joseph Lawrence Coniff, Jr.:

    Yes, the red bar, Your Honor, represents the Puyallup Indian catch.

    The green bar represents the Muckleshot or White River Indian catch.

    The Muckleshoot Indian reservation is on a tributary to the Puyallup.

    If I would refer back in these exhibits, Your Honor, this is not the scale but here is the Muckleshoot Indian Reservation.

    Here is the area where the Puyallups were fishing and one of the impacts or one of the aspect — the impact of the Puyallup fishery at the mouth of the river was to have a serious decline in the legal reservation fishery which the Muckleshoot Indian Tribe.

    Abe Fortas:

    But the government’s point is that you just turn letting enough fish get to the mouth of the Puyallup.

    That’s a very rough and inaccurate statement of him, but that will suffice to insight you to respond?

    Joseph Lawrence Coniff, Jr.:

    Well, Your Honor, [Attempt to Laughter] I think it is sufficient to stir me up.

    I think there are several points that I would like to make.

    I know my colleagues, of course, are going to be touching on some of this.

    The use of the phrase in this clause of the Treaty, “In Common with other citizens” appears in only one other context in any of the Treaties that I’ve read at — they were executed in the Pacific Northwest.

    It occurs in Article III of the Treaty with the Yakima where this phrase, “In common with the citizens of the territory” appears.

    And in that connection, it is used to assure the rights of the Tribes and bands signatory to that Treaty to travel upon that public highways in common with the citizens of the territory.

    I submit to this Court that should you interpret the usual and accustomed language of the Treaty in a manner to grant to the Indians or to secure to them an immunity from State law that you should in good conscience likewise grant them the same right with regard to their use of the public roadways within the area which they ceded by virtue of the Treaty.

    Abe Fortas:

    That didn’t quite add because add because your adversary say that the State of Washington is giving the Indians one horse and one rabbit deal that instead of the right being shared in common with other citizens by reason of the manner of regulation, the inadequate regulation of commercial fisheries, you are not giving the Indians anything like a share in common.

    That’s the position as I understand it in saying that nominally, because you say, yes, of course, you can fish there along with non-Indians, but that that what you’ve done is to deprive that right of any substance by failing to make sure that that an adequate supply of fish reach the mouth of the river?

    Joseph Lawrence Coniff, Jr.:

    I think there is implicit in here in your statement, Your Honor, an assumption which I will not grant you for purposes of this argument and certainly, I do not so grant it in my Brief, that is that there is a special right that an Indian has, that a non-Indian does not have, some sort of a qualified privilege or an immunity from another wise valid State conservation law or regulation outside reservation boundaries.

    I think it is clear in the Briefs and on the record but we are not here talking about any attempt by the State to assert jurisdiction within the boundaries of Indian reservation.

    Byron R. White:

    But does your case stand and fall at this point?

    Joseph Lawrence Coniff, Jr.:

    On the —

    Byron R. White:

    If you loss on this and that the Court holds that Indians do have some special right to fish in these locations which other citizens don’t have, is the case over as far as you are concerned?

    Joseph Lawrence Coniff, Jr.:

    No, Your Honor, it is not.

    Joseph Lawrence Coniff, Jr.:

    Alternatively and I stress the alternatively, we take the position that the Court below did adopt the proper standard or guideline by which the Indian could be afforded some special rights subject to State regulation, subject to limitations and yet, leave the State with the power necessary to accomplish the conservation goals.

    William J. Brennan, Jr.:

    Yes, but even if you’re right that the Indian has a special right, I’m sure the State doesn’t argue that nevertheless you can favor the commercial sports fishermen over the Indian or do you argue?

    Joseph Lawrence Coniff, Jr.:

    No, Your Honor.

    Perhaps, I misunderstood your question, but there —

    William J. Brennan, Jr.:

    If they have no special right, nevertheless, may you so regulate these fisheries as Mr. Justice Fortas said to give a rabbit to the Indians and horse to the commercial fishermen, can you?

    Joseph Lawrence Coniff, Jr.:

    No.

    Well, at the present time, Your Honor, the very issue, the fundamental issue before this Court is do the Indians have a special right —

    William J. Brennan, Jr.:

    No.

    You said before your position is they don’t have one.

    Joseph Lawrence Coniff, Jr.:

    That’s correct.

    William J. Brennan, Jr.:

    But I’m asking you even if we agreed that they do not, you’re certainly not suggesting the regulation can take the form which discriminates against the Indians in favor of the other commercial fishermen, are you?

    Joseph Lawrence Coniff, Jr.:

    No, no, not at all.

    I think I understand your question.

    There is no discrimination against any member of Indian (Voice overlap)

    William J. Brennan, Jr.:

    Well, I hope you touch on that before you get finished?

    Joseph Lawrence Coniff, Jr.:

    — with regard to their entry into —

    Byron R. White:

    You simply just don’t permit anybody to use nets in these locations?

    Joseph Lawrence Coniff, Jr.:

    That is correct.

    Byron R. White:

    Indians wanted to go out in the Bay and fish like that with the people they could?

    Joseph Lawrence Coniff, Jr.:

    That is correct.

    There is no limitation or no limitation or bar to their entry into what I term “The legal fishery”.

    William O. Douglas:

    It isn’t the most of the commercial fishery — the fisheries, aren’t they located out in the ocean?

    Joseph Lawrence Coniff, Jr.:

    They are in the Puget Sound.

    There’s a purse seines and gill net commercial fisheries, there is an offshore trawl.

    Also, I suppose we should include the charter boats.

    They take substantial numbers of fish and then of course, your individual sportsman.

    William O. Douglas:

    But where is the bulk of the commercial fishing, is it in the ocean?

    Joseph Lawrence Coniff, Jr.:

    The bulk of the commercial occurs in my head within the boundaries of the State of Washington.

    The offshore trawl is, I don’t know, I don’t have the data, it’s in the record, I just don’t simply recall it but I don’t know the respective percentage it would take, is it from Puget Sound District to offshore trawl.

    Those would be your two major user groups.

    Byron R. White:

    Well, there are substantial numbers of commercial fish taken in Puget Sound?

    Joseph Lawrence Coniff, Jr.:

    Yes, Your Honor, the very substantial numbers taken by —

    Byron R. White:

    If you forbade all commercial fishing in Puget Sound, a great many more fish would reach the river as I take it?

    Joseph Lawrence Coniff, Jr.:

    That is correct.

    It’s a question of who is going to take them.

    There are biological reasons which were testified to by three very qualified fishery biology experts, the Dean, Doctor Richard Van Cleave, the Dean of the College of Fisheries in the University of Washington, Professor Laureen Donaldson, Dr. James Arthur, Roy Hamilton, Senior Biologist from Portland, they testified that any net fishery, regardless of who is operating this gear is not biologically sound.

    Hugo L. Black:

    That’s in any net fishing?

    Joseph Lawrence Coniff, Jr.:

    Yes.

    Hugo L. Black:

    Now, may I ask you a question then?

    Joseph Lawrence Coniff, Jr.:

    Yes, sir.

    Hugo L. Black:

    Why is in the issue raised in this case that we have to pass on at all except one, whether as you charge, they have been doing net fishing, rather as you charge that violates a valid law of the State of Washington and whether as the injunction commanded they stop doing that fishing, what else do we have except that?

    Joseph Lawrence Coniff, Jr.:

    I agree with your statement of the case, Your Honor.

    The defense of course has raised, is predicated upon what the government contends as its interpretation of the Treaty, occurred — I don’t mean to burden you with a stare decisis argument but we are relying upon prior decisions of this Court —

    Hugo L. Black:

    But the question would be, as I see it in from your pleading in the injunction, whether your law against net fishing is a bad law and whether that from that standpoint whether you’re barred from enforcing that law against them because of that special treaty?

    Joseph Lawrence Coniff, Jr.:

    That’s correct.

    Hugo L. Black:

    And that’s it.

    Joseph Lawrence Coniff, Jr.:

    That’s it.

    It’s —

    Earl Warren:

    Do you —

    Joseph Lawrence Coniff, Jr.:

    So it took three weeks to try the case but that’s the issue.

    Earl Warren:

    Do you allow a net fishing in other parts of the sound?

    Joseph Lawrence Coniff, Jr.:

    In Puget Sound.

    Now, at the Commencement Bay area, and I refer back to this map again, this area here, which isn’t really sharks go out here, is closed to commercial fishing.

    It’s closed to commercial fishing.

    Your commercial fishery commences further out in the Sound.

    Byron R. White:

    They use nets there?

    Joseph Lawrence Coniff, Jr.:

    Yes, out in the salt water.

    The reason for the closure is that the mouth of these rivers is that the fish tend to mill.

    They will hold and await for fresh it to begin their with upward migration up to the spawning ground.

    So that if you permit a net fishery as this point in their migration, your fishing the same stocks over and over again.

    Byron R. White:

    But let’s use the figures we used a while ago.

    Assume that 100 fish have to get up to the river to maintain the run and if a 1000 reached the mouth of the river, if you permitted net fishing by day and no net fishing by night or vice versa, that a lot of fish get through, wouldn’t there?

    Joseph Lawrence Coniff, Jr.:

    Not necessarily, Your Honor, because the fish to ten to hold (Voice overlap).

    Byron R. White:

    Some of them go on up in the stream sometime?

    Joseph Lawrence Coniff, Jr.:

    The fish will hold sometime as long as three and four weeks at the mouth of the river and also the fish will hold in their migration up to the spawning area.

    They’ll get to a pocket or a hole in the river —

    Byron R. White:

    Stay there.

    Joseph Lawrence Coniff, Jr.:

    And they are not ripe yet, they are not ready to perform the spawning act and therefore, they will simply hold until their basic bodily mechanisms get ready for the ultimate —

    Byron R. White:

    You think no matter how many fish reach the mouth of the river that if you permit net fishing, you’re going to exhaust the stock?

    Joseph Lawrence Coniff, Jr.:

    Yes.

    Earl Warren:

    We will recess now.