Washington v. Washington State Commercial Passenger Fishing Vessel Association

PETITIONER:Washington
RESPONDENT:Washington State Commercial Passenger Fishing Vessel Association
LOCATION:New York State Education Department

DOCKET NO.: 77-983
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Washington Supreme Court

CITATION: 443 US 658 (1979)
ARGUED: Feb 28, 1979
DECIDED: Jul 02, 1979

ADVOCATES:
Louis F. Claiborne – for United States et al.
Mason D. Morisset – for the Indian Tribes
Philip A. Lacovara – for Associations of Non-Indian Fishermen
Slade Gorton – for State of Washington

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1979 in Washington v. Washington State Commercial Passenger Fishing Vessel Association

Warren E. Burger:

We’ll hear arguments first this morning in Washington and others against Washington State Commercial Passenger Fishing Vessel Association and the consolidated cases.

Mr. Attorney General you may proceed whenever you’re ready.

Slade Gorton:

Mr. Chief Justice and may it please the Court.

Mr. Claiborne has just delivered to the clerk a large map or sets of maps of the case area which may aid in your understanding of this argument into which we have no objections.

The central issue in this litigation —

William J. Brennan, Jr.:

Well, where are they?

Slade Gorton:

The clerk has them Mr. Justice Brennan and would not — Mr. Claiborne just delivered them to him and he didn’t wish to put them on your desks until you stated the desire to have them.

William J. Brennan, Jr.:

I see.

I see that they’re being distributed.

Slade Gorton:

The central issue in this litigation, the issue to which every other question is subsidiary is the meaning of the phrase and I quote, “and common with all citizens” found in each of the treaties with which we are concerned.

Very little of the record and only a few paragraphs of the original District Court decision are relevant to the central issue.

The answer to the subsidiary questions is relatively easy once this Court construes the “and common with” language.

Without a decision on that point, answering the other questions is unlikely to resolve the controversy.

The United States and the tribes seek to fragment the controversy and delay its ultimate resolution.

Byron R. White:

Well, what if we thought that the “and” question has already been answered and it wasn’t open here?

Slade Gorton:

If you felt that the question had already been answered that or that it were final in some respect or another we would not be able to bring it here in this litigation.

Byron R. White:

Well, I take it you’re going to —

Slade Gorton:

The United States —

Byron R. White:

— indicate why you think it’s open here.

Slade Gorton:

Yes.

The United States says it may come up here in connection with some other case later.

The crux of our position is the —

Potter Stewart:

Is the — those aren’t the only words of Article 3?

Slade Gorton:

They are not and I will deal with the usual and accustomed —

Potter Stewart:

Well, and also —

Slade Gorton:

(Voice Overlap) as well.

Potter Stewart:

— the right of taking fish.

Slade Gorton:

Yes.

Potter Stewart:

The right of taking fish.

Slade Gorton:

Yes that the entire phrase speaks of the fish and —

Potter Stewart:

And the right of taking fish.

Slade Gorton:

The right of taking fish usual and accustomed stations and “in common with the citizens of the Territory”.

Potter Stewart:

The District Court in its original opinion and the Court of Appeals in its original affirmance thought that the phrase “in common with all the citizens in the Territory” was the key in critical —

Slade Gorton:

Exactly.

Potter Stewart:

— phrase but it may not be.

Slade Gorton:

The crux of our position here again Mr. Justice Stewart is that the District Court’s decision mandating a 50% allocation of anadromous fish to treaty Indians is without support either in that treaty language or in the circumstances surrounding the execution of the treaties.

Our view is that the treaty language secured before the Indians, the right to participate in a common fishery from which they might otherwise have been excluded.

In other words, the treaties guaranteed in perpetuity an equal opportunity fishery.

But before discussing that discussion of the treaties, let’s reflect for a moment on the actual impact of an equal opportunity fishery on Indians should that be your holding.

Would such a holding deprive treaty Indian fisherman of a reasonable participation in the fishery, not at all.

The contrary in an equal opportunity fishery, Indian participation will continue to be substantial out of all proportion to their share of the population of the Puget Sound region.

In fact the percentage of all commercial fishermen who are Indians is likely to continue to increase and for a number of reasons.

First, the state began to limit the number of licenses to engage in commercial salmon fishing five years ago.

That program has resulted in a reduction in the number of non-Indian commercial fishing licenses.

Indians on the other hand are not required to obtain state licenses.

Indians — in addition to that are not required to pay for those licenses.

Potter Stewart:

Are there any —

Slade Gorton:

Thus the major limitation — excuse me.

Potter Stewart:

How about the seasons, the season limitations on them and catch limits on Indians?

Slade Gorton:

That is the — that’s the crux of the case as to whether or not that type of regulation can be imposed to non-Indians equally with others.

It’s clear that they do not require licenses.

So the major limitation on the number of treaty Indian fisherman at this point leaving aside their catch is their own interest in the business.

Second, Indians are not subject to the financial burdens of either state license fees or landing taxes.

They are nevertheless the beneficiaries of the hatchery programs which are financed by those taxes.

Third, the Indian capability to fish competitively has been increased greatly by federal and tribal financial assistance in the purchase of sophisticated boats and gear.

At the same time the state has been buying up and retiring non-Indian boats and licenses.

The state has also assisted Indian hatchery operations and fish farming enterprises.

Fourth, and we get to the treaty at this point.

The District Court has determined the and I quote from the treaty, “Usual and accustomed grounds and stations” of the Indians are not restricted to small areas near the reservations.

For one tribe or another, those grounds include of Puget Sound which you have there on that map.

Slade Gorton:

All of the United States portion of the Strait of Juan de Fuca and that state’s portion of the Pacific Ocean, two-thirds of the way down the coast.

In summary, they include all of the states marine waters in the case area together with portions of the Pacific Ocean beyond to the state’s jurisdiction.

Every mile of water shown on that map in the United States is a part of the usual in the custom grounds of some Indian tribe under the District Court’s decision.

And we do not object to that characterization.

The District Court is its rationale for the 50% plus allocation extracted a part of an 1855 dictionary definition of the word common.

That rationale has long since been abandoned.

The Ninth Circuit and the respondents have continued the search on successfully for a rational on which they could and will support that rigid allocation.

Most of their substitutes in the original decision itself rest on the characterization of the fishing right as tribal rather than as individual.But all references to treaty fishing rights, in every treaty save one.

Secure those rights specifically to individuals while the other articles of the treaties refer to and to deal with the tribes necessities.

Governor Stevens of course included the “in common with” language, as a matter of fact the “all of the fishery language in treaty drafts which he presented to the tribes.

He explained the provision as expressing his view and we quote from some of the treaty minutes.

He wanted them to fish but that the white should fish also.”

That treaty language does explain, he is apparently the source of the equal protection guarantees for individuals found to be implicit in the treaties by this Court and Puyallup I and Puyallup II.

The treaties do of course secure certain rights to the Indians not possessed by other citizens.

They are contained largely in that usual and accustomed grounds and stations clause.

Mr. Simmons, an Indian agent present at the negotiations explained to the Indians that and again I quote the minutes, “The privilege was giving — was given of going wherever they pleased to fish.”

And this Court in its first decision on the treaties, Winans in 1905 distinguished clearly between the right to fish which the Court characterize and I quote as a mere right not exclusive in which citizens might share from what this Court called the “special means for its exercise, the special right is the right of access”.

The state could regulate the right to fish under circumstances which you’ve set down but it may not exercise the right of access.

Excuse me, regulate the right of access.

The fallacy of the 50% plus allocation is perhaps most graphically illustrated by its own logical result.

There were five treaties affecting the Puget Sound fishery, not one.

There were scores of quasi sovereign Indian bans on Puget Sound whom Governor Stevens consolidated for treaty purposes.

But if the treaties mandate a 50% plus allocation at all, the single treaty with the Makahs, the tribe located where the Strait of Juan de Fuca meets the Pacific Ocean would guarantee that tribe of 50% plus allocation of the fish passing through their grounds.

Next, the grounds of the tribes who would sign to the Treaty of Point No Point, that the point where Puget Sound meets the Strait of Juan de Fuca span the entrance to Lower Puget Sound totally.

They would thus be best be authorize to take 50% of all of the salmon which could escape the Makahs cutting in half all runs destined further grounds of the Indian beneficiaries of three more treaties farther south on the Sound.

By the time the few remaining fish reach the last in line, the Yakamas, theirs is an entitlement to 50% of almost nothing.

And if non-Indians take their 50% at Point No Point, the lower Sound tribes would have literally nothing.

After all, if the Indians are entitled to have a 50% return of fish to their normal and accustomed grounds, the articles in the treaty which give them exclusive fishing rights on their reservations must guarantee a 100% return of fish to those reservations and thus leave nothing for anyone else.

Clearly the treaties don’t mandate a 50% plus allocation.

But what do the treaties mean in that case.

Slade Gorton:

Their language implies an equal opportunity of fishery by the “in common with” language with special Indian rights of access.

So did Governor Stevens’ explanation to the Indians.

So does your finding of implications of equal protection in the Puyallup series.

But there is more.

Let’s look at the jurisdictional status of Puget Sound in the years surrounding 1850 before the treaties were signed.

United States’ sovereignty over what is now Washington State was perfected by an 1846 treaty with Great Britain.

That sovereignty brought with it the common law and the statutes of the United States.

That common law in turn included the concept of a common fishery for the benefit of all except as expressly limited by statute so American citizens had the right to fish in Puget Sound before the execution of the Indian treaties.

The record reveals that they did fish in Puget Sound then.

The treaties didn’t create that right.

Warren E. Burger:

When you say they had a right to — was it a different right from the right of the Indians?

Slade Gorton:

No.

It was the same right.

At that point everyone shared a common fishery.

What the Indians — what the treaties secured for the Indians was the continuation of that right free from interference by the territorial legislature which might very well have passed a law saying that common fishery is for citizens only.

Without the treaties, and without citizenship, the Indians could’ve been excluded from that fishery by the territorial legislature or by private action.

And the tribes admit as much themselves on page 248 of their brief, they state the obvious and I quote from that brief.”

Indian fishermen who are not members of treaty tribes enjoy no special rights.

Their fishing is subject to the same limitation placed on all non-Indian fishermen.”

Now why the nontreaty Indians enjoy no special rights?

If Indians brought exclusive fishing rights to the treaty negotiations and merely relinquished a portion of those rights, nontreaty Indians would still have exclusive rights with their usual and accustomed places today.

But this Court has already affirmed the decision which is consistent with that concession by the tribe — in the tribal brief.

In U.S.–

Potter Stewart:

General Gorton, in that connection in Article — Article II refers to said Indians, what’s the — does this — what does “said” means?

Slade Gorton:

“Said” refers to Indians who are members of the tribes which signed that particular treaty.

You’ll note the structure of the treaty in the articles and in the different verbs which are — the different phrases which are used.

In the beginning of the treaty, the Indians grant their claims to lands to the United States.

Potter Stewart:

The Indians or the tribes doing.

Slade Gorton:

The tribes and they spoken of these tribes.

Potter Stewart:

That’s what I thought.

Slade Gorton:

There is reserved to the tribes out of those grants —

Potter Stewart:

Reservations?

Slade Gorton:

— lands as reservations.

Potter Stewart:

Land reservations?

Slade Gorton:

But what about fisheries?

There is secured to said Indians the right to fish at their usual and accustomed stations “in common with” citizens of the Territory.

Potter Stewart:

But now what — and what do you think “said Indians” mean?

Slade Gorton:

It means the Indians as individuals who were members of the tribes which signed the treaty just as citizens referred to citizens who were part of the corporate body of the United States itself.

William H. Rehnquist:

General Gorton, does the state take any provision as to whether any position rather as to whether the treaty was or was not self executing?

Slade Gorton:

The state has not taken an explicit position on that treaty.

I think it relates to whether or not you can order the State Department of Fisheries to carry out the mandate of the treaty or whether or not that depends on state legislative authorization since we feel and that we’ll say that the state courts would acknowledge that state legislation now gives to the Department of Fisheries the right to manage the fishery consistently with the treaties it (Voice Overlap).

William H. Rehnquist:

Ordinarily a non-self executing treaty requires legislation by Congress not by the states.

Slade Gorton:

There — I was directing it however at the right of the state agency to enforce those treaty obligations as you may interpret them.

From the point of view of securing or guaranteeing the rights outlined in the treaty, we would agree that the treaties are self-executing.

They did not require a legislation by Congress.

Potter Stewart:

What in 1979 do you think “said” mean, “said Indian”?

Slade Gorton:

Exactly what it meant in 1854.

Potter Stewart:

I don’t know because those people are all dead.

Slade Gorton:

Oh, the successors, their descendants.

Potter Stewart:

Present tribal members or any —

Slade Gorton:

Yes.

Potter Stewart:

— descendants of the people who were tribal members in 1855.

There is a difference.

Slade Gorton:

The complexity of who is a tribal member is turgid and perhaps too difficult for me to go into because the Indian tribes by and large set their own membership and the people are often granted membership in various tribes who have an extremely tenuous blood relationship with the Indians who signed the original treaty.

Potter Stewart:

I was wondering about the concession that you quoted to us on the part of the tribes that you said that Indians generally didn’t have any treaty rights at all unless they were present tribal members.

Slade Gorton:

Not — unless they were present tribal members, unless they were members of treaty tribes.

Potter Stewart:

Yes.

Slade Gorton:

Yes.

Potter Stewart:

Present members of treaty tribes.

Slade Gorton:

Correct.

Potter Stewart:

And I wondered whence that concession?

Slade Gorton:

The concession simply recognizes the fact that the special rights of treaty tribes stemmed from the treaty and not some — not from something —

Potter Stewart:

I understood the —

Slade Gorton:

— preceding your (Voice Overlap) —

Potter Stewart:

— that your submission is not the rights of the treaty tribes it — at least under Article III, it’s the rights of Indians, individual Indians, isn’t it?

Slade Gorton:

Yes but by reason of their status, by reason of their membership in certain tribes.

Potter Stewart:

And in 1979, what status, the direct descendants of those who were tribal members of (Voice Overlap) —

Slade Gorton:

Members of the tribe.

Potter Stewart:

— of the tribal members.

Slade Gorton:

Members of the tribes.

I suppose —

Potter Stewart:

Perhaps the members of the treaty tribes?

Slade Gorton:

Present members of the treaty tribes.

There might conceivably someday be a contest as to whether or not a particular Indian was properly a member of a tribe —

Potter Stewart:

Yes.

Slade Gorton:

— but that contest has not yet taken place.

Potter Stewart:

But if his great grandfather was a member of the tribe and he is now works in a filling station in Seattle, he has no rights under the treaty?

Slade Gorton:

Oh, yes he does.

Potter Stewart:

But he’s not now a member of the tribe —

Slade Gorton:

Yes he is.

Potter Stewart:

Well, let’s assume he resigned.

Slade Gorton:

Then he would lose those rights.

There’s not much reason for him to resign.

But only if he took him — affirmatively self — took himself out of the tribe would he find himself in that status.

Many of these treaty Indians do live off the reservation —

Potter Stewart:

Yes, I know.

Slade Gorton:

— and in cities, perhaps the majority of them.

I don’t use this line of reason — excuse me, the Court recognized this distinction between the treaty and nontreaty Indians in U.S.v. McGowan in a long opinion in 2 F. Supp. 426 in 1932 which was simply affirmed by this Court without opinion in 294 U.S.592.

Now, I don’t use this line of reasoning of the status of the non-Indian in 1850 as conclusive proof of our construction of the “in common with” language in the treaties.

The language itself, Governor Stevens’ explanation of it in your Puyallup positions it seems to me lead to that conclusion.

Slade Gorton:

But that line of reasoning based on concepts of sovereignty and what actually was the situation in the mid-19th century argues very powerfully that the United States whose citizens possessed the right to a common fishery in 1850.

And which planned for vast increases in the non-Indian population by the very treaty negotiations themselves did not casually treat away in perpetuity more than half of the fishery resource.

Now would come the logical question.

Even if the 50% plus allocation is not required by the treaties.

Isn’t the lesson of your three Puyallup positions that some specific allocation is required?

Our answer to that is no.

And the distinctions between this case and Puyallup are vital.

The Puyallup cases dealt with a discriminatory fishery.

That is one which you characterized as totally preempted by non-Indians to justify such a disseminary fishery that could be none at all.

The state at least had to prove that its system was absolutely necessary for conservation.

Byron R. White:

You’re referring to a fishery as a commercial fishery?

Slade Gorton:

Yes.

Byron R. White:

In that case there was no commercial (Voice Overlap) —

Slade Gorton:

No, the — well, the entire fishery was preempted by non-Indians by your decision —

Byron R. White:

But commercial fishing was absolutely free.

Slade Gorton:

Commercial fishing was absolutely barred.

No one could engage in a commercial fishery.

Since we could not prove that that regulatory system was absolutely necessary for conservation, it fell.

After Puyallup II however, it seems that the state had two possible courses of action, not one, either an equal opportunity net fishery, commercial fishery for everyone or an allocation between treaty net fishermen and nontreaty sport fisherman.

The state chose the latter and you approved it in Puyallup III and permitted the states to even to regulate an on-reservation fishery to see that the non-Indians got their allocation.

But the marine water —

Potter Stewart:

Those cases involved a — or at least Puyallup I and II involved a sport fishing for steelhead —

Slade Gorton:

Yes.

Potter Stewart:

— and this case involves primarily at least commercial fishing for salmon.

Slade Gorton:

For salmon.

That’s exactly right.

And there is in addition a major distinction between those two.

Steelhead can only be caught in freshwater.

By the time fish get to freshwater, conservation policies are very simple.

The only conceivable conservation policy is one which will get enough fish upstream to spawn.

Slade Gorton:

When one’s dealing with the marine salmon fishery however conservation has necessarily got to be a much broader concept.

If you look at the map on page 348 in the joint appendix which is referred to in the briefs of the tribes, you will note major areas in Puget Sound denominated salmon preserves.

The tribes characterize those as areas which are permanently close to commercial fishing.

That is an error as far as the south Sound preserves their concern that there are frequent commercial fisheries there.

It’s a perfect to characterization along the shores of the Strait of Juan de Fuca and what called areas one and two.

No commercial fishing for salmon is permitted there but a sport fishery is.

That bring those areas precisely into your Puyallup II situation since they are “usual and accustomed grounds and stations”.

We simply cannot ban entirely a commercial fishery there and the District Court has permitted Indian fisheries there.

But the state can permit non-Indian fisheries there.

If conservation is the only way that we can control the fishery and if conservation is only letting enough fish to escape to spawn inevitably the whole commercial fishery is going to get driven out there so that both sides can get their share because it can’t be closed down as to non-Indians until you’ve gotten down to just the number of fish necessary for escapement.

So conservation in a marine area in the commercial field has got to include something else than pure escapement for spawning.

It’s got to include a concept of optimum yield and of a fair distribution of the fishery among all types of fishermen, Indians or non-Indians, (Inaudible), Gillnetters and the like.

Every one of your cases in which you’ve used the word conservation.

Six straight cases from Winans to Puyallup III have all dealt with freshwater fisheries.

This is the first time we are dealing with a marine salt water fishery.

Potter Stewart:

Is there any freshwater fishing involved in this case at all?

Slade Gorton:

Yes.

This “usual and accustomed grounds and stations” go up the streams —

Potter Stewart:

That’s what I thought.

Slade Gorton:

— to their very sources.

Potter Stewart:

And it is (Voice Overlap) —

Slade Gorton:

But the principle focus of the case is on the salt water marine fishery.

Now, (Voice Overlap) —

Potter Stewart:

There’s no indication on this map or any other map of this accustomed — usual and accustomed grounds and stations.

Slade Gorton:

They’re everything.

Potter Stewart:

Well, but you said —

Slade Gorton:

For one —

Potter Stewart:

— going upstream.

Slade Gorton:

Oh, well, that’s right.

That — these maps do not show the upstream, the freshwater usual and accustomed grounds, they do show because all of the salt water are usual and accustomed grounds of one tribe or another, that’s all of that.

Potter Stewart:

But the Pacific Salmon deteriorate in quality as they go upstream, don’t they?

Slade Gorton:

Most of them do, yes.

By the time they’ve got to the spawning beds, they are much less valuable than they are further downstream and —

Potter Stewart:

There is commercial fishing of them by the Indians (Voice Overlap) —

Slade Gorton:

By the Indians, not by non-Inidians.

Potter Stewart:

In freshwater?

Slade Gorton:

Yes.

Potter Stewart:

And that is involved in this case.

Slade Gorton:

Yes.

Potter Stewart:

And their right to fish, that those accustomed —

Slade Gorton:

They have a right to fish —

Potter Stewart:

— grounds and stations must be —

Slade Gorton:

— if those usual and accustomed places —

Potter Stewart:

— very ephemeral, so there are no fish there, wouldn’t it?

Slade Gorton:

Which is — pardon?

Which would be ephemerable if no fish were there, that’s —

Potter Stewart:

What’s the “right to fish” mean?

I know when I go fishing, nobody gives me their own —

Slade Gorton:

That is exactly correct.

And the logical res — there were logical, answer to that is, if the Indians have a usual and accustomed right to fish, where they historically fished, at the very top of the stream, there must be an allocation.

It is clearly — it’s clearly required.

Potter Stewart:

Yes.

Slade Gorton:

It is however not only terrible management policy but has also been abandoned by this Court as long ago as Winans and even by the way the United States manages its marine fishery for this reason.

One of those upstream usual and accustomed grounds and stations may well have only a single one with a few hundred fish coming back to it.

But in marine waters, that run is mixed with many other runs with hundreds of thousands of fish.

If the state has got to return those salmon, plan to return that single run of salmon to that single upstream usual and accustomed ground and place, there will be a tremendous wastage of fish in all of the other — in all of the marine water areas.

Consequently the District Court itself has found marine usual and accustomed grounds and stations for almost all the treaty Indians.

Each of the — one of the treaty groups have tried, Point No Point has now petitioned that the usual and accustomed grounds of each of those tribes are the usual and accustomed grounds of all of them.

We don’t object to that.

That’s good fishery management.

Slade Gorton:

In Winans, you dealt with an exclusive right of access but also there is a cryptic note in that decision.

There was a fish wheel, non-Indian fish wheel at usual station — and accustomed station (Voice Overlap) —

Potter Stewart:

What is a fish wheel?

I’ve —

Slade Gorton:

Fish wheels are — well, a —

Potter Stewart:

Yes, just take your time.

Slade Gorton:

A method of taking fish which is now outlawed —

Potter Stewart:

Some sort of a trap?

Slade Gorton:

— because it catches — yes.

It catches every fish that goes through.

Potter Stewart:

Yes.

Slade Gorton:

It was on privately owned land on an Indian station.

So in dealing with the right to fish as opposed to the right to access, this Court says in Winans, the Solicitor General points the way.

We quote at pages 85 and 86 of our opening brief, the way which the Solicitor General pointed.

He said the Indians could be given more advantageous places or advantageous places upstream or downstream from that fish wheel.

This is what the United States does, it manages its ocean fishery primarily for non-Indians.

And then says that the state must cut-down non-Indian fishing in Puget Sound to account for all of the fish which Washington citizens have taken under federal licenses in the open ocean.

And that’s the reason for the great disparity in the Puget Sound allocations to Indians and non-Indians.

So every one really manages in the way of making that right at — usual and accustomed stations will by a proper management of the fish and pushing the fisheries out into marine waters or further downstream.

Even if — excuse me, it can’t be over emphasized here that the District Court found a permanent and immutable right.

It did not fashion a remedy for alleged discrimination.

The tribes in their amici have attempted to characterize this as a discrimination case and if the sky is the 50% plus allocation is a remedy.

Perhaps the best illustration that’s not the case is the IPSFC fishery, the Straits fishery and Canadian fish.

That fishery on Canadian bound salmon occurs in the Strait of Juan de Fuca and the Northern Puget Sound in the usual and accustomed grounds of fewer than one third of the tribes who are parties to this litigation.

There’s no measured — no significant non-Indian harvest before the fish reach those usual and accustomed grounds.

Even so, the District Court found that those eight tribes were entitled to 50% of the catch, a right, not a remedy.

We feel that the judgment should be reversed and remanded for determination as to whether or not an equal opportunity — fishery exists now or if not, how the state can assure it.

Byron R. White:

You’ve gotten around to my question.

Slade Gorton:

I’m sorry.

Byron R. White:

Why is that issue open here?

Slade Gorton:

That issue was open here for the same reason that the — an issue was open whenever you have denied certiorari in earlier proceedings in the same case and later accept certiorari in connection with later orders in the same case involving the same parties.

Potter Stewart:

So, it is open as a matter of res judicata but the Government doesn’t rely on the — the Solicitor General doesn’t rely on res judicata but rather on more prudential.

Slade Gorton:

The Solicitor General tells you that you should not judge this case on the merits because we’re bad people is essentially what it —

Potter Stewart:

Well, among other things.

Slade Gorton:

— it amounts to.

It’s rather like a father who leaves his wallet on his dresser and finds $20 missing the next morning and accuses his son of stealing it.

The son curses and spits at him and the father later founds it — finds the $20 in his pocket.

Obviously, the son can be punished for contempt but Mr. Claiborne would have you say that the father should not apologize for being wrong in connection with the $20 in the first place.

Thurgood Marshall:

In this case, who is the father, who is the son?

Potter Stewart:

You’re the son.

Slade Gorton:

Yes, exactly.

We are the son.

Thank you very much.

Warren E. Burger:

Thank you —

Slade Gorton:

I’ll reserve —

Warren E. Burger:

— Attorney General.

Slade Gorton:

— the balance of my time.

Warren E. Burger:

Mr. Lacovara.

Philip A. Lacovara:

Mr. Chief Justice may it please the Court.

This case is — the Attorney General has emphasized involves the question whether or not one group of commercial fishermen, Indians in this case is entitled to a Court awarded perpetual guarantee of a competitive preference over nine Indian competitors.

The Attorney General has indicated that that result is wrong and we strongly support that aspect of the state’s position.

Since my time this morning is brief, I must necessarily rely on briefs that I’ve submitted, the salmon colored opening brief and the yellow reply which discuss not only the substantive points, the historical points, questions of collateral treaties but also some of the procedural obstacles that the United States and the tribes have attempted to erect in order to prevent this Court from resolving what every one conceives of — as an extremely important legally, practically, emotionally, culturally, politically question that has been plaguing the northwest and will continue to plague the northwest unless it is definitively set to rest by this Court.

There are four major concepts that I would like to emphasize this morning and they all grow out of the same flaw that the federal courts below have manifested in the results that they have reached.

And the flaw is a failure to recognize and fully appreciate the significance of the fact that non-Indian commercial fisherman also have rights which a federal court of equity must respect here.

There has been no recognition, no appreciation and no implementation of those rights of the non-Indian commercial fishermen.

First point is that the treaties protect to the non-Indian commercial fishermen a right of access to this fishery as well as a protection of the Indian’s right of access to the fishery.

This was to be a nonexclusive fishery from which neither Indians nor non-Indians could be excluded by the other group.

Secondly, —

Warren E. Burger:

And would it be your theory Mr. Lacovara that in that treaty the United States as one party was the surrogate for all other than Indians?

Philip A. Lacovara:

In the treaty it was guaranteeing the rights, the continued fishing rights of the citizens of the territory now the citizens of the State of Washington and the treaty so says the language of Article III of the treaties secures the rights of Indians “in common with” the rights of the citizens, of the territory.

Philip A. Lacovara:

And I think nothing could be more clear from the text of the treaties as well as from the history of the negotiation that there was to be a bilateral commitment that treaty Indians and nontreaty citizens would have continuing access to these fisheries.

Potter Stewart:

Well, you think — is it your submission Mr. Lacovara that Article III doesn’t give to Indians any superior or special rights whatsoever?

Philip A. Lacovara:

It gives them superior rights only to the extent that the Court in Winans for example has said, the state cannot legitimize a complete exclusion of Indians from the fishery through the medium of private ownership of the lands.

What the treaties were to guarantee to the Indians was the right of access that they would not otherwise have had in 1855.

Potter Stewart:

(Inaudible) private property to get to these places, (Voice Overlap) —

Philip A. Lacovara:

Winan so held that it should —

Potter Stewart:

— which citizens would not have.

Philip A. Lacovara:

Which citizens would not have, that’s right.

And in Tu —

Byron R. White:

Do you think the —

Philip A. Lacovara:

In Tulee for example, the Court said, “Indians under the treaty are also immune from licensing right”, regulations also, a protection that citizens would not have.

The reason for that —

Potter Stewart:

So you concede that Indians are given superior and different in other — in rights than citizens by Article III, don’t you or you just have?

Philip A. Lacovara:

No, I think the point Mr. Justice Stewart is that the Indians have certain protections as against state abrogation or interference with those rights.

The treaty —

Potter Stewart:

Which citizens don’t have.

Philip A. Lacovara:

That is correct.

Potter Stewart:

So they do have — Indians do have superior rights and different (Voice Overlap) —

Philip A. Lacovara:

As against the state.

Potter Stewart:

Yes.

Philip A. Lacovara:

Certainly the right that the Indians obtained under the treaty can be qualified by federal legislation.

Potter Stewart:

Right.

Philip A. Lacovara:

The question though is whether or not the right of access which Indians are to be given is one that can be turned from a shield if you will against state interference into a sword which allows the Indians to keep to demand that the state keep non-Indians from fishing side by side.

That we submit is exactly what these treaties were not intended to do and the documents that bear on this stand only a few page in the records and everyone demonstrates that the Indians were being told that with respect to off reservation fishing they could not interfere with the settlers’ equal opportunity to fish.

Potter Stewart:

Well, at the very least Article III makes clear that the rights secured or reserved to the Indians is not an exclusive right.

Philip A. Lacovara:

Yes sir.

And that is one of the linchpins of our submission that what Judge Boldt has done in this case is fundamentally erroneous because as the orders that he had subsequently entered have achieved.

The Indians have successfully insisted that the nontreaty fisherman stay on the beach and watch them from the shore while the Indians have in effect a Court decreed oligopoly, an exclusive preserve in trying to catch this fish for commercial purposes.

There’s absolutely nothing in the treaties where the history of their negotiations to support that kind of exclusivity of the fishery.

Mr. Justice White?

Byron R. White:

I suppose you would indicate — you would say that the state might be able to cancel all commercial fishing for salmon for several years but not Indians.

Philip A. Lacovara:

If it were acting for conservation purposes, it would have the power.

Byron R. White:

Say it is not?

Philip A. Lacovara:

I’m not sure what other aspect of the police power the state would be relying on just willy-nilly to cancel commercial salmon harvesting unless it were to be the conservation power.

One of the —

Byron R. White:

You still don’t meet my question, assume it could, it couldn’t do it with the Indians?

Philip A. Lacovara:

Not —

Byron R. White:

Under the treaty?

Philip A. Lacovara:

That is correct.

Byron R. White:

Yes.

Philip A. Lacovara:

But if the state has the power to eliminate non-commercial fishing for non-conservation purposes, the Court’s decisions in Winans, Tulee and Puyallup indicate that the state cannot do that for Indians.

Thurgood Marshall:

I am not talking about down in Virginia, they stopped fishing because of the poison, remember?

Philip A. Lacovara:

I would assume that the state would have that power even as respects Indians but that extraordinary —

Thurgood Marshall:

The same level as what you did?

Philip A. Lacovara:

Yes, that kind of extraordinary development I think would give rise to police power in the same sense that the Court held that there was an implied police power even as respects Indians under these treaties.

The second point is that when conservation becomes necessary, that conservation can lawfully be imposed.

Regulations of that sort can lawfully be imposed upon the treaty Indians as long as it’s done without discrimination against them.

But by the same token, there is nothing in these treaties or in this Court’s earlier cases to indicate that conservation regulations must be skewed so that they in effect discriminate against the non-Indians.

That however is the effect of the preferential rights that the District Court tolerated on one theory or another with two very dubious circuit judges this last time around has — have in effect allowed.

John Paul Stevens:

Mr. Lacovara, but the — but isn’t it inevitable if there is some discrimination against non-Indians?

For example, the Indians don’t have to get licenses.

Isn’t that part of the — its something we start from and then the question is how much discrimination or whether there’s any at all.

Philip A. Lacovara:

Mr. Justice Stevens, its not so much — how much discrimination but what type that is at issue here.

John Paul Stevens:

Don’t you agree that there is sort of a given that we start with, there is some discrimination in favor of the Indians by virtue of the treaty.

Philip A. Lacovara:

Yes, yes.

There’s no doubt that as to some aspects of treaty fishing.

There are special benefits that were secured.

What we’re coming to though is whether —

Thurgood Marshall:

But it (Voice Overlap) discriminate against the Indians?

Philip A. Lacovara:

I think not.

Thurgood Marshall:

Well, it took a land.

Philip A. Lacovara:

They didn’t take it Mr. Justice.

If you read the full text of the treaty you should find that in addition to these guarantees the tribes were paid what in contemporary terms would be considered many millions of dollars to extinguish claims of occupancy.

And they were guaranteed and were provided with schools, doctors, blacksmiths, carpenters and farmers to teach them other trades other than fishing.

So we — I think it would not be accurate to view these treaties in 1979 as a one sided adhesion contract —

Thurgood Marshall:

What part was that —

Philip A. Lacovara:

— which the Indians had no choice in it.

Thurgood Marshall:

I didn’t think you need to say that it discriminated on either side, I know I just — that’s —

Philip A. Lacovara:

Well, what we’re —

Thurgood Marshall:

That’s not all.

Philip A. Lacovara:

What we’re trying to do Mr. Justice is to eliminate the discrimination which is inherent and this my third point in a 50/50 allocation.

The District Courts below had — did not find that there was discrimination against Indian fishing in the Puyallup sense.

The only reference to discrimination in Judge Boldt’s findings was the question begging assertion that there was discrimination against Indians because the state conservation regulations did not actually permit them to catch 50% of the harvest.

That’s the issue before us whether or not the Indians are entitled to that.

Our submission is that there is not anything of that sort happening here.

The Attorney General referred for example to the phrase of river run of salmon for which it is impossible to conceive of any kind of discrimination because the Indians have and have always had contemporaneous access to those runs alongside the non-Indian fisherman.

So it is impossible to talk about the state or non-Indian fisherman preempting the run in discriminating against Indian rights.

So —

Potter Stewart:

Well Mr. Lacovara, let’s consider for a moment this upstream accustomed places and stations, in Article III it gives the Indians the right of taking fish there.

Philip A. Lacovara:

Yes.

Potter Stewart:

Would you concede that if the State of Washington or any other government should threw its licensing and supervision of fishing adopts such rules, regulations that would be — assure that there were no fish there that that would be a violation of the treaty?

Philip A. Lacovara:

Mr. Justice I think the key inquiry should be as it was in Puyallup II whether or not the rights of those Indians or the successors (Voice Overlap) —

Potter Stewart:

The right to take fish?

Philip A. Lacovara:

The right to take fish at usual and accustomed grounds not necessarily each specific ground.

And the findings of by the District Court in this case established —

Potter Stewart:

Well, do you (Voice Overlap) specific grounds, you’d come to all of them and so —

Philip A. Lacovara:

Yes.

But the judge also found that a treaty times there were ebbs and flows of runs and it was common for the Indians to follow the fish.

And to abandon temporarily if necessary, perhaps permanently a usual and accustomed site and go elsewhere if that’s where the fish were.

Potter Stewart:

Well that

Philip A. Lacovara:

It —

Potter Stewart:

Doesn’t quite answer my question.

Philip A. Lacovara:

Well, what I’m suggesting is that there is no discrimination against Indians.

Potter Stewart:

No, no, I’m talking about if there’s a treaty violation if the State of Washington so operates it conservation rules and regulations as to guarantee that there are no fish at this upstream station and grounds.

Philip A. Lacovara:

My answer would be there is no treaty violation unless —

Potter Stewart:

Because there is a right of taking fish there, guaranteed to the Indians by Article (Voice Overlap) —

Philip A. Lacovara:

To the extent that fish were there and there was no guarantee —

Potter Stewart:

And doesn’t that imply some kind of duty to allocate or to see to it that there are some fish there?

Philip A. Lacovara:

I don’t think it does Mr. Justice but we’re a long way from that.

There is nothing in the treaties that guaranteed that the fish would continue to migrate all the way upstream.

I think we could go as far as saying that there might be discrimination in the conservation system.

If the state impose the structure that prevented fish from reaching any of the usual and accustomed grounds of treaty tribes but I don’t think there’s anything the treaty that guarantees that a run of some size or other must reach every site that a tribe fished at in 1855.

Byron R. White:

But if there were, the District Court certainly violated the treaty.

Philip A. Lacovara:

Yes.

I think that’s implicit in the 50/50 allocation because this system itself creates the prospect, the legal entitlement as the judge has ruled it to have the Makahs take 50% of everything coming through the Strait of Juan de Fuca and the non-Indians take the other half.

So the 50/50 allocation is utterly unresponsive to the problems here and if anything is it — as a gratuitous limitation.

It has a superficial appeal but it’s not based in the treaties or in practice.

Potter Stewart:

Do you think that there — can be implied from the rights given to the Indians by Article III of the — these treaties, any duty whatsoever of any allocation whatsoever of fish to the Indians.

Philip A. Lacovara:

In the absence of discrimination I would say no, discrimination in the Puyallup sense.

The treaties, I think it’s important to emphasize Mr. Justice, were designed to secure access to fishing sites without a guarantee how (Voice Overlap) —

Potter Stewart:

Well, access to fishing sites, (Voice Overlap) —

Philip A. Lacovara:

The fishing sites.

Potter Stewart:

— just a bath where you can fish all day and not catch anything.

Philip A. Lacovara:

That’s correct.

But as every fisherman knows and as the Indians knew.

There was no guarantee that there would be fish flowing by those streams.

The findings say that because the floods changes in the course of tributaries, many of the sites were no longer productive even in treaty times.

So it should’ve been understood that at particular sites, there might not be much fishing.

But that is — with all due respect, a very artificial assumption here, the state has been engaged and — for years has been engaged in programs to plant hatchery fish in streams that would otherwise not receive an adequate flow of fish because of the commercial harvesting by Indians and non-Indians earlier on in the migratory flow.

So its also important to emphasize that the District Court hasn’t found that even a single such site of the type that you’re describing has been completely preempted.

Philip A. Lacovara:

We are a long way at this stage of this case from a finding similar to the one in Puyallup.

My final point was going to be Mr. Justice White that the nontreaty fishermen are entitled to their own day in Court and if there are no procedural obstacles to your hearing or claims on the merits — but my time has expired and I’ll have to rest on my briefs.

Warren E. Burger:

Very well Mr. Lacovara.

Mr. Morisset.

Mason D. Morisset:

Mr. Chief Justice, may it please the Court.

I’m Mason Morisset appearing for the respondent Indian Tribes in this case.

It becomes no shock to you that I disagree with Attorney General Gorton as to, firstly, everything he said concerning the facts, the nature of this case, the nature of the dispute.

The district judge in a related case U.S. versus Oregon, Judge Belloni once said when these arguments were made to him.

These arguments might make some sense and I’m paraphrasing, if we ignore our history, law, facts of the case and the behavior of the states of Oregon and Washington.

Now we cannot ignore the facts of this case.

We cannot ignore that the District Court found that the State of Washington had preempted Indian fishing and as the Ninth Circuit put it in its original decision, its now three years old.

The State of Washington has “rendered the treaty guarantee nugatory”.

To remember what the state has done here is important.

The state began in 1890 by outlawing salmon fishing during certain times of the year.

They continued in 1915 to outlaw fishing by gaffing and spearing, traditional Indian methods.

In 1897, the legislative studies closing freshwater fishing to commercial salmon fisher in — on an ad hoc basis and that was continuous from 1900 on.

That had the effect of precluding much Indian fishing.

By 1940, we find the salmon preserve which is — you will examine their map in the joint appendix at page 348 effectively closed most of the Indian areas.

William H. Rehnquist:

But the essential question is what under the treaty the state had the right to do it and what it didn’t, is it not Mr. Morisset?

Mason D. Morisset:

That’s the essential question, yes.

And it’s clear as the District Court found in going to the Solicit — state actions that the total effect of this was to preclude a treaty fishery for all practical purposes.

You have to put together all the things to state did.

I’m only to 1915 and we’ve got quite a few things.

He continued wih the pattern if I know —

Thurgood Marshall:

It’s conceivable that everything it did before 1915 was barred by the treaty and nonetheless the District Court’s order might or might not have — be in accordance with the treaty, is it not?

Mason D. Morisset:

That’s true, be conceivable.

But the judge had to decide, had to make some basis or have some basis for his finding that there in fact had been a preemption of the treaty right and this is what he found that all of these actions had the cumulative effect of ending any treaty right whatsoever.

Given that, he had to move on — yes.

John Paul Stevens:

Is your opponent correct though, the first thing we have to decide is what is the treaty right?

Mason D. Morisset:

Yes.

John Paul Stevens:

What is — what does it mean “in common with”?

And I’m just wondering how do you deal with the argument that say at one point in a river the Makahs get 50% and the non-Indians get 50%, they take it all.

What happens to another Indian tribe upstream or downstream that wants its 50%?

What’s the answer to that problem?

Mason D. Morisset:

First of all the practical matter that virtually can’t happen.

But let’s presume that it does —

John Paul Stevens:

Assume it could happen under the District Court’s findings.

Mason D. Morisset:

Alright.

The answer is very simple.

If the State of Washington does not preempt the fishery, the Indian share the fishery and the Makahs catch all of the Indian opportunity, that ends the state’s obligation vis-à-vis the Indians.

That becomes an intertribal problem for them to work out.

Potter Stewart:

And doesn’t another Indian tribe have a legitimate complaint in that situation?

Mason D. Morisset:

Undoubtedly, against the Makahs —

Potter Stewart:

Well if no —

Mason D. Morisset:

— but not against the State of Wahsington.

Potter Stewart:

(Voice Overlap) under the treaty if the district judge is correct, not just a right against the other tribes, they have a right against the United States, the other signatory to the treaty.

Mason D. Morisset:

That’s right.

They probably do.

That’s not this case knowing it sued the United States —

Potter Stewart:

(Inaudible)

Mason D. Morisset:

— no tribes have sued each other.

Potter Stewart:

(Inaudible) my Brother Stevens suggest that it test the validity of district judge’s construction of the treaty?

Mason D. Morisset:

Well, it may test it vis-à-vis an action against the United States or tribes.

But it simply proves the point to the State of Washington has met its obligations if it has not preempted the Indian share which it would not have under your facts.

Byron R. White:

Yes, but its permitted a certain group of fishermen to take all the fish, they just happen to be Indians but they —

Mason D. Morisset:

Well the —

Byron R. White:

— the state has filed to prevent the exhaustion of the (Inaudible)?

Mason D. Morisset:

The District Court found that the State of Washington had prevented any tribes anywhere basically from taking its share of the fish.

Byron R. White:

Well, suppose it permits one tribe to take them all, take all the Indian share, isn’t it — just as much trouble?

Mason D. Morisset:

No it isn’t on their decision.

Mason D. Morisset:

It is not required to make allocations between the tribes.

Byron R. White:

They are the treaty isn’t it?

They — I know it would be — you’d be consistent with the decree but how about under the treaty?

How about all the other treaties?

Mason D. Morisset:

No, I don’t believe that the State of Washington has an obligation under the treaties to allocate fish among the tribes as a matter for them, between themselves or for them in the United States Government.

The State of Washington doesn’t have that obligation.

Byron R. White:

Is it trouble if it fails to provide fish — the Indian share of the fish but —

Mason D. Morisset:

No, no.

Byron R. White:

But it’s — not in any trouble if it deprives all but one tribe (Voice Overlap) —

Mason D. Morisset:

No, you’re misstating what it’s in trouble of, of what it did.

Its in trouble if it allows the fishery to be preempted by the non-Indian fishermen which is what it has done in this case.

Byron R. White:

But it (Voice Overlap) —

Mason D. Morisset:

That’s when it’s in trouble.

Byron R. White:

But it can be preempted by one tribe without the state being in trouble?

Mason D. Morisset:

That’s right.

Now of course we have a major battle over that between the tribes and the United States Government.

But that’s not the state’s obligation under the treaty.

John Paul Stevens:

Well Mr. Morisset, putting the same problem, a little different framework, let’s put ourselves back in 1854 and 55 and say there are three or four tribes on the same river.

Is it reasonable to assume that in using the word “common” in four or five successive treaties affecting the same run of the fish that the — Governor Stevens intended to give 50% of that run to four or five different groups of Indians.

Mason D. Morisset:

Well, he intended to allow the signatories to any one treaty and there are five major ones and sixth that — as a peripheral interest here to receive as the District Court found.

50% of the harvestable share or an opportunity catch, 50% of the harvestable share of fish reaching their usual and accustomed places.

He did not guarantee that any fish would reach there.

John Paul Stevens:

But is that a reasonable interpretation of the situation at time if there were more than one tribe on one river affected by two successive treaties?

Mason D. Morisset:

Well, maybe I don’t understand your question, Mr. Justice Stevens but certainly the Indians and Governor Stevens knew that there were a lot of Indians from different tribes and bands that would all be fishing together.

And he knew there were other tribes and bands that would be intercepting fish before they got there.

And they simply were talking about what was going to be left when it got to their place understanding that there would probably be preemption by other Indian tribe before it got there or some fishing on those runs.

We’re not talking about that kind of a situation, we’re talking about the situation in which the state to this long history of legislative action has allowed the nontreaty fisherman to essentially preempt the entire fishery.

I’m not talking about the situation where the tribe — one tribe or the other may catch most of the tribal share before it gets to a particular river.

Byron R. White:

Well, the state has obligated than I gather from your point of view to allot — to make sure that some fish, that would reach Indian fishing ground.

Mason D. Morisset:

No, not in the sense that they must guarantee freedom from Acts Of God and freedom from interceptions by other Indian tribes.

Mason D. Morisset:

This is not an affirmative duty to guarantee that fish get back to the rivers or the marine areas which decide the table sometime it claims.(Voice Overlap) —

Byron R. White:

But this isn’t a duty not to — if the reason is that non-Indian fishermen have taken it, the state is in trouble.

Mason D. Morisset:

That’s right because of the history of how they’ve done it.

From — I got up to the salmon preserve area and I could’ve gone on for another 18 points about how the entire regulatory scheme has essentially preempted the fishery to a particular segment of the population namely the high technology motorized vessels.

And that is what the state has done through an entire pattern of laws and regulations that the Court found to be wrong.

Potter Stewart:

Well, I think the state concedes that it has a duty to provide what it calls an equal opportunity of fishery and if in fact these present law don’t, I think it concedes that they should be modified because of that duty.

That’s — that was my understanding of its submission.

Mason D. Morisset:

That’s correct.

Oh, I’m not sure how they’re using the phrase “equal opportunity”.

They seemed to be using it in the old hackneyed version of the same — as every one else which I thought we’d gone through since Winans on through Puyallup and entwined in these various other cases.

If they’re using it in that sense, that in effect is no treaty right at all.

They’re simply back to the beginning point again.

If that’s what the Attorney General means, I disagree with that.

I’d like to move on to discuss the question of — the point “in common with” means and once again to disagree with how the question was put.

We don’t view this as a question of what “in common with” means by itself.

This is among other things a contract and it must be construed as a whole to all its parts and certainly the entirely phrase, the right taking fish which is the first right at certain places which is the second right, as limited by or explained by the phrase “in common with”.

And we think it is a hopeless quagmire to focus solely on “in common with” although we played the game in our briefs to and got into all sorts of esoteric British treaty cases and so on none of which I think anyone could understand.

Potter Stewart:

I’m certain the Indians wouldn’t know anything about it (Voice Overlap) —

Mason D. Morisset:

That’s right.

And I think someone made the point that we probably are viewing Secretary Gibbs who was a lawyer as having a much more erudite education than he probably had.

I mean, he did know about these things.

Those are helpful but I think the important thing for us to get across is that we must construe the treaty as a whole.

It was designed to guarantee that the Indians would continue to make a good livelihood from fishing.

The record is full of evidence and their findings of fact which support that.

Potter Stewart:

Well, let’s I want to agree with you, didn’t then Judge Boldt err in his first decision by thinking almost that he had no discretion that it — that “in common with” meant 50%?

Mason D. Morisset:

No, I don’t think he erred.

I think that it’s a little dangerous to try to pigeon hole this whole process as the state has and try to say this was purely a legal decision or purely an equitable decision.

I think it was admixture and there were elements of both.

I think he exercised more equity in deciding whether or not it was necessary to have an allocation at all which he looked at all the facts.

Once he decided that, he decided more or else as a matter of law —

Potter Stewart:

That “in common with” (Voice Overlap) 50% —

Mason D. Morisset:

— but that’s what it was.

Potter Stewart:

— and then the Court of Appeals in affirming it said, “Well, (Inaudible) “in common” and that means 50%.

Mason D. Morisset:

That’s one of the rationales that he used, yes.

I think all of the facts in the case support that finding.

There was a substantial amount of understanding on the Indian side of equality which I don’t know if that meant 50% but it certainly meant no restrictions on either side.

Byron R. White:

Do you agree with the — what the Attorney General’s reading of your brief that nontreaty Indians are just like the ordinary — like the non-Indians?

Mason D. Morisset:

I don’t ever agree with Mr. Gorton to much.

He doesn’t quite understand the —

Byron R. White:

No, would this be too much or not?

Mason D. Morisset:

No, he doesn’t quite understand Federal Indian law.

The one reason we have the entire Claims Commission is that — is because of the problem that treaties were not signed with many Indians and the Courts have generally held that aboriginal claims of what he was really talking about have been extinguished either by conquest or political action of the United States.

And those people don’t have rights because there’s been essentially a taking of them.

And they’ve been paid for them.

And that’s one reason they don’t have rights.

It doesn’t mean —

Byron R. White:

So non —

Mason D. Morisset:

— that they didn’t have them at some point.

Byron R. White:

Well, are there some nontreaty Indians in Washington?

Mason D. Morisset:

There are some in the southwestern part of the state.

Byron R. White:

Do they have any fishing — they’re like —

Mason D. Morisset:

No, they are citizens — as far as (Voice Overlap) —

Byron R. White:

So you would say if there was — if there had been a treaty with only one tribe that had this fishing allocation in it, Judge Boldt would still have been right to have given 50% to that one tribe and none to the other tribes would have any fishing right.

Mason D. Morisset:

That its places only and none of the other tribes would have rights, they would’ve had a claim for taking which is what all these pages and pages of Claims Commission cases are about as well as the land claims.

But there are also — are claims for taking of aboriginal fishing rights.

Now, finally, I’d like to point out the said Indians problem which several justices, Mr. Justice Stewart is concerned about, and ask you to read when you — if you get a chance, the entire treaty I pointed out, its in our big red brief.

You see that said Indians and said tribe and band is used interchangeably.

Article IX which is the (Inaudible) provision jumps all over the place between said tribes and bands and said Indians.

Article II says we reserve as a reservation for said tribes and bands the following the lands, that’s a reservation for the said tribes and bands.

Article V says to help the said Indians remove there, we’re going to pay them so much money.

Mason D. Morisset:

And if you go on through the treaty contrary to what the Attorney General says, you’ll see, said tribes and bands and said Indians being used both ways and I think the only fair discussion of what that means is that they were interchangeable phrases.

And the “said Indians” meant the tribes and bands and tribes and bands meant the “said Indians”.

There’s really no other way to get at what that phrase meant.

My time has expired Mr. Chief Justice.

Potter Stewart:

Would you — you of course say that Article III was a reservation?

Mason D. Morisset:

Yes.

Potter Stewart:

Although by its terms it’s unlike Article II for example, it certainly is not, is it?

Its — doesn’t say its hereby reserved as — as hereby secured —

Mason D. Morisset:

As to —

Potter Stewart:

— which could lead to the argument that it wasn’t a reservation that there was a conveyance of it and then an agreement that nonetheless these rights would be secured.

Mason D. Morisset:

Oh, Article II of the Point Elliot Treaty reserves certain lands —

Potter Stewart:

Because they were — by its terms a reservation.

Article III is not by its terms a reservation.

Mason D. Morisset:

Now let’s see, Article III doesn’t have the —

Potter Stewart:

(Inaudible)

Mason D. Morisset:

In this treaty, it’s a different — I’m sorry, here’s a different article.

Article V in this treaty, it says, secured to said Indians.

Potter Stewart:

I think most of them do, if not all.

Mason D. Morisset:

Right, and I — yes, I think you’re right.

The answer is — I think again there that that’s a use of terms interchangeably and certainly this Court has always said before us, see no good reason to change it that this was a reservation of rights that the Indians had before the treaties.

Mr. Chief Justice.

Warren E. Burger:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

Perhaps I ought to begin by trying to indentify the central issue as wee see it.

This is not unlike previous cases before this Court, a case about whether the Indian right to fish can be regulated by state law.

That point is conceded at the outset.

Potter Stewart:

Is conceded which way?

Louis F. Claiborne:

That it may.

Potter Stewart:

What?

Louis F. Claiborne:

That the state may regulate the Indian fishing right provided that it —

Potter Stewart:

It may have or it may not, both, it can’t require licenses, isn’t that correct?

Louis F. Claiborne:

It may regulate it in the name — in the interest of conservation when that is necessary.

Potter Stewart:

But in certain things it may not apply, certain of it’s — if its conservation laws, it may not apply to the Indians, isn’t that right?

Louis F. Claiborne:

The question Mr. Justice Stewart is yes, which it can and which it cannot that this —

Potter Stewart:

But in any event its all conceited one way or the other, is that your point?

Louis F. Claiborne:

There is no — I mean only to say this, there’s no claim of immunity from state conservation laws.

That is not the issue in the case.

The issue in the case is how those conservation or allocation laws ought to be accommodated to respect the treaty right and that leads us to — look to the treaty right not as to whether it immunizes the Indian fishing right from all state regulation but what the character of it is.

Nor is the case as the state now seeks to make it, the question of whether the Indians can today so effectively compete that they no longer need the protection which the treaties afford them.

If the treaties afford them protection, they’re entitled to it whether or not they presently need it or will for some years to come.

We turn then to the character of the right which is secured by this treaties.

And the issue here seems to be whether it is a mere right of access, a sort of liberty to go off the reservation and go fishing if there’s any fish to find there, a right which it was quite unnecessary to provide for, even then there was no thought that the Indians were confined for the reservation or whether rather the rights secured by these treaties is a property right, a share in the fishery.

John Paul Stevens:

Mr. Claiborne is it correct that it would’ve been totally valueless that — there wasn’t any easement problem, I missed the possible, they’re usual to custom banks or the streams could’ve all been bought up by private owners and without this right, they wouldn’t have had access.

Louis F. Claiborne:

Mr. Justice Stevens, in that respect alone, that is that the peculiarity of the right of access granted by the treaty is said to be as Winans’ held that it includes a right to cross private property a right not otherwise available to citizens.

John Paul Stevens:

And they could be quite vital could it not, it’s not just a matter of wondering around in open land.

Louis F. Claiborne:

It could but when we are speaking of fishing in Puget Sound, that is of course a meaningless aspect of the right.

When we’re talking about the Columbian river as was the case in Winans, the right of access to the riverbanks is important because those rivers or that river could not be fished from the water.

John Paul Stevens:

From the water, right.

Louis F. Claiborne:

They could only be fished from the bank.

But with respect to the treaties governing Puget Sound that aspect, that easement would be for the most part of no value whatever.

John Paul Stevens:

But the treaty itself doesn’t spells out the right to build structures and so forth, so it does seem to be thinking at least in part about access.

Louis F. Claiborne:

Well, the treaties are all of the pattern Mr. Justice Stewart.

No doubt some of them had in mind the situation on the Columbia as did the treaty with the Yakimas and some had in mind the situation in Puget Sound but the language was not varied in accordance with the circumstances.

John Paul Stevens:

I’m referring to the “erecting temporary houses” language which does seem —

Louis F. Claiborne:

Yes.

John Paul Stevens:

— to be thinking in terms of access.

Louis F. Claiborne:

Mr. Justice Stevens, I suggest that that language is of not much value in Puget Sound.

It is of some value along riverbanks.

John Paul Stevens:

(Inaudible) at some place.

Louis F. Claiborne:

Indeed, indeed.

William H. Rehnquist:

When you talk about that thing not being of much value, if you — if the states map at page 348 of areas 1 and 2 on the Strait of Juan de Fuca means anything, there is a very substantial stretch of land where access rights to the strait would mean something, I would think.

Louis F. Claiborne:

But Mr. Justice Stevens those are banks — those areas are fished by both, not from the bank and as long as there is a place where others are public access to the strait, it matters not whether it’s adjacent to the usual and accustomed fishing grounds.

William H. Rehnquist:

That’s strictly both fishing in the strait?

Louis F. Claiborne:

I think that’s so.

Now, as to which it is, whether its on your right of access or whether it’s a share of the fishery —

Potter Stewart:

Well, it’s at least a right of access; Winans holds that.

Louis F. Claiborne:

Of course, of course.

We — and we say —

Potter Stewart:

And there are no alternatives, it’s this or that cause it clearly and concededly is a right of access, isn’t it?

Louis F. Claiborne:

Yes, Mr. Justice Stewart, I meant to suggest that it is more it is a share in the fishery.

It is not a mere right of access.

And as to resolving that question we look first to the language of the treaty itself and as has been sufficiently pointed out, the language of the treaty does not give a right of access to water, it gives a right of taking fish.

That is at least suggestive that we’re talking about a right in a fishery not a means of getting there.

The other word which is in my submission significant on the wording of the treaty itself is the word “secured”.

Now, the — it’s been suggested that that may suggest that there was a grant from the United States rather than the reservation by the Indians.

I’ve had viewed — that question is foreclosed by the decisions of this Court beginning in Winans where that was very expressly held down to the most recent in Puyallup III in which that same view of the Article III language was taken that it was a reservation of former exclusive rights which the Indians enjoyed, which the tribes enjoyed not a grant by the United States of a fishing right to them.

But turning to the word “secured” the significance of that language it seems to us is that it promises the protection, the security of the United States government to assure that the right of taking fish will not in the future be interfered with.

Not an insignificant promise.

It —

Potter Stewart:

You sort of construe that as the — as a guarantee of the right of catching fish —

Louis F. Claiborne:

Well —

Potter Stewart:

— not just to the right of fishing?

Louis F. Claiborne:

I go by stages Mr. Justice Stewart.

Potter Stewart:

Yeah, I must say I would have — that’s alright, I would’ve greatly enjoyed it many times.

I don’t know of any Indian.

Louis F. Claiborne:

We say it’s a guarantee against encroachments or interferences with the right to fish in particularized locations.

Encroachments can come in many guises.

The most obvious is that which the Court constructed — confronted in Winans, that is the ousting of the Indians by the emplacement of a fish wheel or the building of a fence which prevents their access to the site.

But it can come in other ways, one, you’d only think of a dam created downstream which prevented the fish from reaching the usual Indian fishing place.

That it seems to us is the sort of encroachment also which the United States was securing the Indian right to fish against.

Louis F. Claiborne:

And the same is true with respect to state regulations which have precisely that effect.

And one such regulation was the one that this Court confronted in Puyallup II in which albeit the Indians like everyone else was free to catch steelhead by hook and line downstream.

They were prevented from doing it in their usual and accustomed way at their usual and accustomed place by nets upstream.

And the Court said, “This — preventing the fish from reaching them in harvestable numbers is an interference with their treaty right”.

That is precisely what this case is about.

Now the fact that the treaty language itself suggests —

Byron R. White:

Well, Mr.– excuse me, Mr.– the Solicitor General, the accustomed fishing ground for these tribes, I take this — the — from this — the Attorney General’s statement is the entire Puget Sound.

Louis F. Claiborne:

This — if one puts together the separate accustomed fishing grounds of —

Byron R. White:

Yes, but the state doesn’t suggest that any tribe is precluded from fishing anywhere in Puget Sound, do you?

Louis F. Claiborne:

The tribe as the statement has suggested that I suggest is —

Byron R. White:

What about the treaty, do you think the treaty gives any particular tribe the right to fish anywhere in Puget Sound?

Louis F. Claiborne:

No.

I — Mr. Justice White I —

Byron R. White:

Well, why doesn’t it?

Louis F. Claiborne:

Because the individual treaties give individual tribes particularized locations and beyond that area, they are not protected by the treaty.

Byron R. White:

Well, are they protected in the treaty — by the treaty from — is there — are — does the treaty give them a right that you speak of to take fish in Puget Sound?

Louis F. Claiborne:

It gives some tribes of protected right to fish in some parts of Puget Sound.

It gives other tribes rights elsewhere and it — and so on.

The — it is not —

Byron R. White:

So if a — I suppose then you could think of a tribe that if it were found fishing in the straits.

Louis F. Claiborne:

Exactly so.

Byron R. White:

That — some of them might have the right to do that or some might not have a treaty right to do it.

Louis F. Claiborne:

Yes.

And indeed the district judge very particularly identified the usual and accustomed fishing grounds of each of the tribes, not only those conferred by each treaty but each of the tribes covered by the five treaties.

And they overlap but they don’t all cover the entire area by any means.

And the tribes of — such as the Nisqually and the Puyallup at the bottom of the Puget Sound had no rights in the strait nor even in the upper part of the Sound.

It may happen and perhaps the district judge was over generous in defining usual and accustomed places that the — when you add all of these rights together you cover the entire area.

But the state makes no objection to that.

The reason they do not as if they want to be able to say these Indians can compete quite adequately with us in effect everywhere.

Byron R. White:

So you would say that the state would still be violating the treaty if said, “The only place we’re going to allow fishing is out here in this particular four-mile square area of Puget Sound.

Byron R. White:

We’re going to allow six Indians and six white commercial fishermen.

We call it (Voice Overlap) —

Louis F. Claiborne:

Yes Mr. Justice White, I would say that —

Byron R. White:

And they can — that each of them can take as many as they want as long as they leave enough for conservation.

Louis F. Claiborne:

I would say that the tribes of the Lower Sound had been promised, had been secured or the right which they reserved and which was always there to fish in their rivers, at the mouths of their rivers and nearby.

Potter Stewart:

A right to take fish though.

Louis F. Claiborne:

A right to take fish there —

Potter Stewart:

(Inaudible)

Louis F. Claiborne:

But — in Mr. Justice White’s example, they’d be prevented from attempting to take fish and that in less that were essentials of conservation which your example does not suggest —

Byron R. White:

Well, into your agreement under —

Louis F. Claiborne:

It would be about instruments treaty?

Byron R. White:

Do you agree with your — let’s see, with the counsel that the state would be in no travel if it permitted one tribe to take the fish.

Louis F. Claiborne:

Mr. Justice White I think I have to differ with him —

Byron R. White:

I’m only thinking —

Louis F. Claiborne:

— on that point.

It seems to me that, there’s two ways of looking at it, he needs of course an accident of history that there were five treaties rather than one, its simply the fact that Governor Stevens couldn’t bring the Indians into one location at one time.

But nevertheless, we are faced with five different treaties in immediate sequence but still one before the other.

I think perhaps the proper way to look at it is to say that the 50% share which we say is simply a limit on the Indian right.

Not the definition of the right, it’s the consequence of the “in common with” language.

That 50% share applied only to so much of the run as in those days after Indian fishing further out reached that location.

In that way when — or confines the Makah, the head of the strait to a proportion that must allow a reasonable share to reach those at the end of the ladder of (Inaudible) the Nisqually.

Now, the district judge did not attempt to make those allocations and as it happens, the Indian tribes of the area or in a cooperative spirit, they have formed the fisheries commission of their own.

And they themselves are police or these allocation problems to the extent that they exist and they exist to a very minor extent because the capability of any given tribe to catch a numbers of fish that would prejudice their neighbors is not yet at least serious.

It may also bee that Governor Stevens overpromised and we must accumulate for that today.

No one suggests that one should add 50% shares so as to the non-Indians a lesser less than of the total.

Byron R. White:

Well, maybe it was the District Court who overpromised?

Louis F. Claiborne:

Mr. Justice White, the District Court merely said that the total Indian share are ought not exceed 50%.

Now, if I may turn to the consequence of this being a reservation of a right rather than the grant by the United States.

It seems to me that helps us in determining what is really — the next question is assuming the Indians have a share in this fishery, what sort of share.

John Paul Stevens:

Mr. Claiborne, I can’t get to it at your — I don’t know where pits in but I understood you to say that you did not rely on the word common as creating the 50% figure but rather that the describe the — ultimately it leads to an allocation of 50%.

John Paul Stevens:

— how do we get it?

What is the justification for 50% under your view of the treaty?

Louis F. Claiborne:

Mr. Justice Stevens, I obviously misspoke.

I meant to say that the in common which — “in common with” language is precisely how we get to the 50% language but in this sense that what was promised to the tribes was the right to fish as they used to without — basically without limit for commercial and other purpose.

So much as was necessary to satisfy their reasonable needs.But they were required to share the fisheries with non-Indians and that of course is indicated by the words in common.

We say it may be right indeed probably is right to read that “in common with” language as placing a 50% limit on the Indian share.

They may satisfy their needs but no more than 50%.

William H. Rehnquist:

Well, but that assumes that the Indians had a 100% before the treaty.

Louis F. Claiborne:

And that is precisely what this Court explicitly said in its most recent decision in Puyallup.

This former exclusive rights of the tribes are — must now be shared with non-Indians for — because the treaty —

William H. Rehnquist:

Exclusive —

Louis F. Claiborne:

They gave that much away in the treaty.

William H. Rehnquist:

Exclusive rights in all the waterways out to the three mile limit?

Louis F. Claiborne:

I’m only quoting this Court’s decision in Puyallup which of course involved the river, well (Inaudible).

John Paul Stevens:

I don’t remember that quote.

Louis F. Claiborne:

Well — Mr. Justice Stevens I believe it occurs — on page 176 of the 433rd volume of the United States reports —

John Paul Stevens:

(Inaudible)

Louis F. Claiborne:

433 U.S.page 176, footnote 16 in referring to Article III which is quoted this being Article III of — I believe the treaty of Medicine Creek but at all events, same language is this.

Well, after the quotation of the treaty, the opinion goes on to say as to the treaty fishermen, this sentence, the sentence securing “in common with” affixed a reservation of a previously exclusive right.

Now that is — in our submission the exactly accurate characterization.

It’s a reservation and it’s a right which was previously exclusive to the tribes of the area.They might have retained their exclusive right.

They were persuaded to share it.

When one looks at it from that certain point, it is not surprising that one may be entitled to conclude that they didn’t give away at least more than half of the right which they previously enjoyed alone.

William H. Rehnquist:

What did the tribes give up in the Treaty of Medicine Creek?

Louis F. Claiborne:

They gave up most of their land and —

William H. Rehnquist:

And was that the whole State of Washington?

Louis F. Claiborne:

It was all of the State of Washington, west of the Cascade Mountains.

These particular tribes that were concerned with in this case and they received some payment but primarily and as Dr. Lane who as an anthropologist wrote a report fully accepted by the district judge accurately summarized those treaty negotiations.

The Indians were talking not about the usual things about farm implements and or even about money.They kept on talking about their fish.That was their concern.

And it was well-known to both Governor Stevens and Mr. Gibbs that they had to be satisfied that they would keep fisheries.

Louis F. Claiborne:

Governor Stevens said in so many words this paper secures your fish.

That is the text on which we rely.

Warren E. Burger:

Mr. Claiborne, going back to that footnote, suppose there was no footnote in the opinion?

The observation you read?

Does that concept reflect anything more than the historical fact that before the white men came the Indians had exclusive possession unless there were some Eskimos or some other people around there.

Louis F. Claiborne:

They —

Warren E. Burger:

They had exclusive rights until others came along and began to compete with them, did they not?

Louis F. Claiborne:

Mr. Chief Justice, to some extent the historical assumption is — must be qualified by the fact that there were indeed other people already who had come there, the donation act in 1850 had invited settlers to come into the Oregon territory which included all of Washington and much else.

Warren E. Burger:

The period was once an exclusive right whether — then put in another time frame, the date of the treaty, that’s another problem.

But at one time it was an exclusive right.

Louis F. Claiborne:

Exactly so Mr. Chief Justice and — but what is in the bottom to — is that the Government of the United States recognized that the Indian title, the Indian occupancy was exclusive and ought to be ended by a treaty.

It is not as though by gradual process, the white men had pushed of the Indian side.

It was a deliberate determination on the part of the United States to buy what was — for the purposes of the treaty recognized to be an Indian claim of exclusive occupancy of both land and rivers and of course the fish that migrated there.

As I say the Indians might have reserved their right altogether as indeed they did in Alaska or as this Court found that they had in Alaska.

Whether they reserved 90% of it, 60% of it, 10% of it are — cannot invoke any questions of discrimination or equal protection or fairness.

They were entitled to keep it all.

They conceded the right of others to fish them or at worst that ought to be viewed as conceding a half of their previously exclusive fishery.

Set me, we say they did not buy a future in which they might be ousted or nearly ousted from their traditional fisheries simply because the white man of — in greater numbers and with superior technology would crowd out the Indian.

Now it’s perfectly true that at the time there was no knowledge of — the future need for conservation restrictions.

But what was anticipated even then or must have been is first that the Indian might be fenced out of his fishing place cause that had happened.

White men had come and fenced out an Indian even before the treaties.

And so the language which protects their fishing places through the easement —

Potter Stewart:

In Winans?

Louis F. Claiborne:

Winans.

Potter Stewart:

What do you suppose Justice McKenna meant on his opinion for the Court in Winans, in that one sentence to which our attentions had been called, kind of almost biblical language and that there may be an adjustment and accommodation of them, with them as the — relative rights and obligations under the treaties.

The Solicitor General concedes and points out the way.

Have you looked at the (Inaudible) brief in that case?

Louis F. Claiborne:

I have Mr. Justice Stewart and it gives me an occasion to correct an impression which is perhaps been left with the Court, I’m sure inadvertently by the Attorney General.

That is the Solicitor General was suggesting that they go fish elsewhere.

Now, that is precisely what he was combating.

Potter Stewart:

What he say — you say he was not doing that.

Louis F. Claiborne:

He was not doing that.

In fact he —

Potter Stewart:

What was he doing?

Louis F. Claiborne:

— devoted most of his brief to the proposition that the Indians had been promised a right to fish there not elsewhere whether there were other places was not ahead of that.

And I cite or quote language from page 16 of the brief filed by Solicitor General in what was Number 180 of the October term 1904.

There is — there was a general allegation in the answer he says that there were fisheries at places where the title was still in the Government.

But that suggestion was left vague and there was no proof on the subject.

In any event the Indians have rights here or they have not.

They cannot be shunted off to inferior places on the theory that it is a legitimate defense to say they — that will do — they will do well enough at other points.

Besides that —

Potter Stewart:

Well, (Voice Overlap) has to be in something.

You’re telling us what it doesn’t mean.So what does it mean?

Louis F. Claiborne:

He did suggest and if I can turn to his precise suggestion, they were four fish wheels in the case which monopolized that at least the location was where the wheels were.

He says, it sets — it seems that four wheels in the space of a mile and a half are inordinate.

If they ought to be maintained at all, there should be some restriction as to their number and method and daily hours of operation, restriction on the Winan Brothers in order to give the fish and the Indians a chance.

Certainly the wheels should not be permitted to create and maintain a monopoly until all the fish are gone.

One at least of these wheels has been placed at a particular spot which was obviously a most advantageous place for the Indians to fish because there was a great rock there from which their platform or stage in projected so that they could use their deep nets for the longest possible time without being given back — up the bank, a bluff by rising water.

I skipped a little and then — referring now to the Indians on the other hand, they cannot claim to have an exclusive right and enjoying their right “in common with” citizen and under the modified injunction “in common with” defendants, it may be just to restrict in reasonable ways there times and modes of access to the property and hours for fishing.

It is not fair under the present conditions that they should enjoy without restriction their ancient right of camping and curing in temporary houses on the defendant’s property.

If it is unfair, a decree can indicate the proper limitation.

It may be that there ought to be some composition of that right or some arrangement by the defendants or the United States or both.

That’s as far as the suggestion goes.

But it clearly is a suggestion that fishing at that place ought to be in some manner divided in terms of ours or it would owe us for the Indians to fish, ours for the wheels to offer it.

Now we say that that is the most obvious abuse that involved in Winans but to do this, it is equally impermissible to prevent not the Indians from reaching the fishing places but the fish from reaching them which empties the right to fish at those locations of any substance.

And that is what the structure of the regulations which are — which had been annulled in this case accomplished to prevent a fair or equal share of the fish which through this funnel of the strait and then the Sound eventually reach the majority of the fishing sites, the traditional sites which are in the Sound, at the mouths of the rivers.

To fish out — to allow the fishery to be fished out before the fish get to the places is as much a violation of the treaty as to prevent the Indians from reaching it at all.

leave to them.

Warren E. Burger:

Mr. Attorney General you have three minutes left.

Slade Gorton:

Mr. Chief Justice Stewart, Mr. Claiborne in reading from the Solicitor General’s instructions said that he skipped a little bit, here’s what he skipped.

Slade Gorton:

In any case, it is true that if they can fish to advantage elsewhere than at the particular points where the wheels are, they should be allowed to fish without undue restriction up and down the river and above them below the wheels throughout the entire waterfront.

That’s exactly what my point to you was as you asked these questions about the empty right, the right to fish in the bathtub beforehand.

They’ve also answered that question as the United States has always carried on its own activities.

When the United States builds or licenses a dam, (Inaudible) or otherwise, it destroys those usual and accustomed places and makes them bathtubs and gives them places elsewhere to make up for them.

My example about the management —

Potter Stewart:

Is that (Voice Overlap) by negotiation and agreement?

Slade Gorton:

I can’t answer that —

Potter Stewart:

I don’t know.

Slade Gorton:

— that question specifically.

But what I’m saying is that that’s exactly what the state proposes to do in managing the fishery properly.

Of course, if we must let those fish get all the way up to the source, into the source of the river so that a hundred fish would get back to a usual and accustomed station and weighs to ten thousand fish and other runs, we should be permitted to say to the Indians, if we give you a better right elsewhere in the marine waters and you have the capabilities of exercising your right better there, that is appropriate management.

As I say, it’s exactly what the United States does.

Potter Stewart:

Maybe you would have the right to negotiate and agree with that and maybe you wouldn’t have the right to do it unilaterally.

Slade Gorton:

In any event, I’ve — my — the thrust of argument is that in Winans that’s what you said by asking than to follow —

Potter Stewart:

Yes.

Slade Gorton:

— the Solicitor General could be done is what happens when dams are done.

You are correct.

If we can’t do that, if we must return those hundred of fish to the headwaters then there must be an allocation.

Potter Stewart:

Well, Mr. Claiborne’s concluding point was as I understood him that the Winan’s right of Indian access to this usual and accustomed spots is one part of the Article III guarantee and another part of it is that there will be fish there when the Indians get there, sort of the — their freedom with the fish — to have some fish to get there (Voice Overlap) —

Slade Gorton:

Or —

Potter Stewart:

— then that must imply some duty of allocation.

Slade Gorton:

It clearly does.

Or the Indians can be given an at least equally advantageous place.

That’s what the Solicitor General suggested in 1905.

Its what the United States did when it built the dams and its what an equal opportunity fishery properly administered will actually do.

Potter Stewart:

(Inaudible)

Thurgood Marshall:

That’s not what the Solicitor General said today.

Slade Gorton:

It certainly was not.

Thurgood Marshall:

Well, that’s only about what he said today, aren’t we?

Slade Gorton:

Mr. Justice Stevens, it is correct.

Slade Gorton:

Your footnote 16 was correctly read.

Remember however that every previous case dealt with a river fishery where perhaps ownership of the bed of the river might be included and that in none of those earlier cases was that characterization of a reservation versus being secured remotely necessary to the decision of the case.

They were all correctly stated.

I believe that conceptually there is no question but that the non-Indians citizens of the territory of Washington have the right to fish in Puget Sound before the treaties.

John Paul Stevens:

Mr. Gorton, may I ask one last question, under your version of the treaty, your understanding of the treaty, assume there is a six thousand Indians and six hundred thousand white people who’d want to fish on the river.

Is it your view that they’re entitled to 1000 for the fish?

Slade Gorton:

No.

Under — even under your —

John Paul Stevens:

But are they entitled to a sort of (Inaudible) once you beat this, say you went on the 50% point, what do they end up when they all through with those?

Slade Gorton:

They are entitled to an equal opportunity of fishery and whether or not they’ve been given an equal opportunity —

John Paul Stevens:

(Inaudible)

Slade Gorton:

No, they’ve not.

Whether — I don’t think.

Whether they have an equal opportunity of fishery involves a consideration of many questions.

In Puyallup II you listed some of those questions.

The number of nets, the number of fishermen is one thing.

More Indians fish than non-Indians.

So purely per capita, we would not necessarily recognize an equal opportunity to fish for Indians.

It might be one factor which was considered but it would be only one factor among many.

I tried to point out that if the result of this Court’s decisions right now is an equal opportunity of fishery, the Indian share will be infinitely larger than the non-Indian share.

John Paul Stevens:

That’s because you’ve (Voice Overlap) the number of non-Indian licenses.

Slade Gorton:

Pardon?

John Paul Stevens:

Supposing you took off the limit on the number of non-Indian licenses?

Slade Gorton:

That might very well at some point, a large — to bring us to a violation of the treaty because we were preempting the non-Indian — the Indian fishery as we were in Puyallup II.

We cannot make it an empty right.

Potter Stewart:

Right.

Slade Gorton:

But we are not required to allocate 50% plus or any fixed number or any —

John Paul Stevens:

Or any other percentage (Voice Overlap) —

Slade Gorton:

Or any other fixed number which is just set in concrete from now to the end of time.

Potter Stewart:

But when you say you cannot make it an empty right, that does imply a duty at some point to assure the presence of fish.

Slade Gorton:

Yes, or assure —

Potter Stewart:

Whether in thier allocation or otherwise.

Slade Gorton:

Or assure their presence where the fish are where they can effectively compete.

Potter Stewart:

Right.

Slade Gorton:

Thank you.

Warren E. Burger:

Mr. Attorney General you read and I take it you were reading from your own brief, part of the quote from the 1904 —

Slade Gorton:

Solicitor General’s brief, yes sir, its —

Warren E. Burger:

On what page so that we don’t have —

Slade Gorton:

Pardon?

Warren E. Burger:

— to go back to the original.

Slade Gorton:

Page — the bottom of page 85 and the top of page 86 of my — of our brief, our initial brief and it was from that quote that the Solicit — the — Mr. Claiborne was reading to —

Potter Stewart:

Right.

Slade Gorton:

— but he skipped the lines which I just read to you.

Potter Stewart:

Have you told us who skipped it?

Warren E. Burger:

Thank you gentlemen.

The case is submitted.