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WASHINGTON ET AL. v. WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION ET AL.

decided*fn*: July 2, 1979.

WASHINGTON ET AL
v.
WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION ET AL.



CERTIORARI TO THE SUPREME COURT OF WASHINGTON.

Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, and Blackmun, JJ., joined and in Parts I, II, and III of which Stewart, Powell, and Rehnquist, JJ., joined. Powell, J., filed an opinion dissenting in part, in which Stewart and Rehnquist, JJ., joined, post, p. 696.

Author: Stevens

[ 443 U.S. Page 661]

 MR. JUSTICE STEVENS delivered the opinion of the Court.

To extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River in what is now the State of Washington,*fn1 the United States entered into a series of treaties with Indian

[ 443 U.S. Page 662]

     tribes in 1854 and 1855.*fn2 The Indians relinquished their interest in most of the Territory in exchange for monetary payments. In addition, certain relatively small parcels of land were reserved for their exclusive use, and they were afforded other guarantees, including protection of their "right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory." 10 Stat. 1133.

The principal question presented by this litigation concerns the character of that treaty right to take fish. Various other issues are presented, but their disposition depends on the answer to the principal question. Before answering any of these questions, or even stating the issues with more precision, we shall briefly describe the anadromous fisheries of the Pacific Northwest, the treaty negotiations, and the principal components of the litigation complex that led us to grant these three related petitions for certiorari.

I

Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the fresh-water place of their origin to spawn. Different species have different life cycles, some spending several years and traveling great distances in the ocean before returning to spawn and some even returning to spawn on more than one occasion before dying.

[ 443 U.S. Page 663384]

     F.Supp. 312, 384, 405. See Comment, State Power and the Indian Treaty Right to Fish, 59 Calif. L. Rev. 485, 501, and n. 99 (1971). The regular habits of these fish make their "runs" predictable; this predictability in turn makes it possible for both fishermen and regulators to forecast and to control the number of fish that will be caught or "harvested." Indeed, as the terminology associated with it suggests, the management of anadromous fisheries is in many ways more akin to the cultivation of "crops" -- with its relatively high degree of predictability and productive stability, subject mainly to sudden changes in climatic patterns -- than is the management of most other commercial and sport fisheries. 384 F.Supp., at 351, 384.

Regulation of the anadromous fisheries of the Northwest is nonetheless complicated by the different habits of the various species of salmon and trout involved, by the variety of methods of taking the fish, and by the fact that a run of fish may pass through a series of different jurisdictions.*fn3 Another complexity arises from the fact that the State of Washington has attempted to reserve one species, steelhead trout, for sport fishing and therefore conferred regulatory jurisdiction over that species upon its Department of Game, whereas the various species of salmon are primarily harvested by commercial fishermen and are managed by the State's Department of Fisheries. Id., at 383-385, 389-399. Moreover, adequate regulation not only must take into account the potentially

[ 443 U.S. Page 664]

     conflicting interests of sport and commercial fishermen, as well as those of Indian and nontreaty fishermen, but also must recognize that the fish runs may be harmed by harvesting either too many or too few of the fish returning to spawn. Id., at 384, 390.

The anadromous fish constitute a natural resource of great economic value to the State of Washington. Millions of salmon, with an average weight of from 4 or 5 to about 20 pounds, depending on the species, are harvested each year. Over 6,600 nontreaty fishermen and about 800 Indians make their livelihood by commercial fishing; moreover, some 280,000 individuals are licensed to engage in sport fishing in the State.*fn4 Id., at 387. See id., at 399.

II

One hundred and twenty-five years ago when the relevant treaties were signed, anadromous fish were even more important to most of the population of western Washington than they are today. At that time, about three-fourths of the approximately 10,000 inhabitants of the area were Indians. Although in some respects the cultures of the different tribes varied -- some bands of Indians, for example, had little or no tribal organization*fn5 while others, such as the Makah and the Yakima, were highly organized -- all of them shared a vital and unifying dependence on anadromous fish. Id., at 350. See Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 179 (BRENNAN, J., dissenting in part).

[ 443 U.S. Page 665]

     Religious rites were intended to insure the continual return of the salmon and the trout; the seasonal and geographic variations in the runs of the different species determined the movements of the largely nomadic tribes. 384 F.Supp., at 343, 351, 382; 459 F.Supp. 1020, 1079; 520 F.2d 676, 682. Fish constituted a major part of the Indian diet, was used for commercial purposes,*fn6 and indeed was traded in substantial volume.*fn7 The Indians developed food-preservation techniques

[ 443 U.S. Page 666]

     that enabled them to store fish throughout the year and to transport it over great distances. 384 F.Supp., at 351.*fn8 They used a wide variety of methods to catch fish, including the precursors of all modern netting techniques. Id., at 351, 352, 362, 368, 380. Their usual and accustomed fishing places were numerous and were scattered throughout the area, and included marine as well as fresh-water areas. Id., at 353, 360, 368-369.

All of the treaties were negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and a small group of advisers. Contemporaneous documents make it clear that these people recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-Indian settlers might seek to monopolize their fisheries. Id., at 355, 363.*fn9 There is no evidence of the precise understanding the

[ 443 U.S. Page 667]

     Indians had of any of the specific English terms and phrases in the treaty.*fn10 Id., at 356. It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish at usual and accustomed places, whether on or off the reservations, id., at 355, and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.*fn11

Referring to the negotiations with the Yakima Nation, by far the largest of the Indian tribes, the District Court found:

"At the treaty council the United States negotiators promised, and the Indians understood, that the Yakimas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising. The Yakimas relied on these promises and they formed a material and basic part of the treaty and of the Indians'

[ 443 U.S. Page 668]

     understanding of the meaning of the treaty." Id., at 381 (record citations omitted).

See also id., at 363 (similar finding regarding negotiations with the Makah Tribe).

The Indians understood that non-Indians would also have the right to fish at their off-reservation fishing sites. But this was not understood as a significant limitation on their right to take fish.*fn12 Because of the great abundance of fish and the limited population of the area, it simply was not contemplated that either party would interfere with the other's fishing rights. The parties accordingly did not see the need and did not intend to regulate the taking of fish by either Indians or non-Indians, nor was future regulation foreseen. Id., at 334, 355, 357.

Indeed, for several decades after the treaties were signed, Indians continued to harvest most of the fish taken from the waters of Washington, and they moved freely about the Territory and later the State in search of that resource. Id., at 334. The size of the fishery resource continued to obviate the need during the period to regulate the taking of fish by either Indians or non-Indians. Id., at 352. Not until major economic developments in canning and processing occurred in the last few years of the 19th century did a significant non-Indian fishery develop.*fn13 It was as a consequence of these

[ 443 U.S. Page 669]

     developments, rather than of the treaty, that non-Indians began to dominate the fisheries and eventually to exclude most Indians from participating in it -- a trend that was encouraged by the onset of often discriminatory state regulation in the early decades of the 20th century. Id., at 358, 394, 404, 407; 459 F.Supp., at 1032.*fn14

In sum, it is fair to conclude that when the treaties were negotiated, neither party realized or intended that their agreement would determine whether, and if so how, a resource that had always been thought inexhaustible would be allocated between the native Indians and the incoming settlers when it later became scarce.

III

Unfortunately, that resource has now become scarce, and the meaning of the Indians' treaty right to take fish has accordingly become critical. The United States Court of Appeals for the Ninth Circuit and the Supreme Court of the State of Washington have issued conflicting decisions on its meaning. In addition, their holdings raise important ancillary questions that will appear from a brief review of this extensive litigation.

The federal litigation was commenced in the United States District Court for the Western District of Washington in 1970. The United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington

[ 443 U.S. Page 670]

     seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of the anadromous fish runs. Additional Indian tribes, the State's Fisheries and Game Departments, and one commercial fishing group, were joined as parties at various stages of the proceedings, while various other agencies and groups, including all of the commercial fishing associations that are parties here, participated as amici curiae. 384 F.Supp., at 327, 328, and n. 4; 459 F.Supp., at 1028.

During the extensive pretrial proceedings, four different interpretations of the critical treaty language were advanced. Of those, three proceeded from the assumption that the language required some allocation to the Indians of a share of the runs of fish passing through their traditional fishing areas each year. The tribes themselves contended that the treaties had reserved a pre-existing right to as many fish as their commercial and subsistence needs dictated. The United States argued that the Indians were entitled either to a 50% share of the "harvestable" fish that originated in and returned to the "case area" and passed through their fishing places,*fn15 or to their needs, whichever was less. The Department of Fisheries agreed that the Indians were entitled to "a fair and equitable share" stated in terms of a percentage of the harvestable salmon in the area; ultimately it proposed a share of "one-third."

Only the Game Department thought the treaties provided no assurance to the Indians that they could take some portion

[ 443 U.S. Page 671]

     of each run of fish. That agency instead argued that the treaties gave the Indians no fishing rights not enjoyed by nontreaty fishermen except the two rights previously recognized by decisions of this Court -- the right of access over private lands to their usual and accustomed fishing grounds, see Seufert Bros. Co. v. United States, 249 U.S. 194; United States v. Winans, 198 U.S. 371, and an exemption from the payment of license fees. See Tulee v. Washington, 315 U.S. 681.

The District Court agreed with the parties who advocated an allocation to the Indians, and it essentially agreed with the United States as to what that allocation should be. It held that the Indians were then entitled to a 45% to 50% share of the harvestable fish that will at some point pass through recognized tribal fishing grounds in the case area.*fn16 The share was to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. Fish caught by Indians for ceremonial and subsistence purposes as well as fish caught within a reservation were excluded from the calculation of the tribes' share.*fn17 In addition, in order to compensate for fish caught outside of the case area, i. e., beyond the State's jurisdiction, the court made an "equitable adjustment" to increase the allocation to the Indians. The court left it to the individual tribes involved to agree among themselves on how best to divide the Indian share of runs that pass through the usual and accustomed grounds of more than one tribe, and it postponed until a later date the proper accounting for hatchery-bred fish. 384 F.Supp., at 416-417; 459 F.Supp., at 1129.

[ 443 U.S. Page 672]

     With a slight modification,*fn18 the Court of Appeals for the Ninth Circuit affirmed, 520 F.2d 676, and we denied certiorari, 423 U.S. 1086.*fn19

The injunction entered by the District Court required the Department of Fisheries (Fisheries) to adopt regulations protecting the Indians' treaty rights. 384 F.Supp., at 416-417. After the new regulations were promulgated, however, they were immediately challenged by private citizens in suits commenced in the Washington state courts. The State Supreme Court, in two cases that are here in consolidated form in No. 77-983, ultimately held that Fisheries could not comply with the federal injunction. Puget Sound Gillnetters Assn. v. Moos, 88 Wash. 2d 677, 565 P. 2d 1151 (1977); Fishing Vessel Assn. v. Tollefson, 89 Wash. 2d 276, 571 P. 2d 1373 (1977).

As a matter of federal law, the state court first accepted the Game Department's and rejected the District Court's interpretation of the treaties and held that they did not give the Indians a right to a share of the fish runs, and second concluded that recognizing special rights for the Indians would violate the Equal Protection Clause of the Fourteenth Amendment. The opinions might also be read to hold, as a matter of state

[ 443 U.S. Page 673]

     law, that Fisheries had no authority to issue the regulations because they had a purpose other than conservation of the resource. In this Court, however, the Attorney General of the State disclaims the adequacy and independence of the state-law ground and argues that the state-law authority of Fisheries is dependent on the answers to the two federal-law questions discussed above. Brief for State of Washington 99. See n. 34, infra. We defer to that interpretation, subject, of course, to later clarification by the State Supreme Court. Because we are also satisfied that the constitutional holding is without merit,*fn20 our review of the state court's judgment will be limited to the treaty issue.

When Fisheries was ordered by the state courts to abandon its attempt to promulgate and enforce regulations in compliance with the federal court's decree -- and when the Game Department simply refused to comply -- the District Court entered a series of orders enabling it, with the aid of the United States Attorney for the Western District of Washington and various federal law enforcement agencies, directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. 459 F.Supp. 1020. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceeding was affirmed by the United States Court of Appeals

[ 443 U.S. Page 674]

     for the Ninth Circuit. 573 F.2d 1123. That court, in a separate opinion, 573 F.2d 1118, also held that regulations of the International Pacific Salmon Fisheries Commission posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation. Subsequently, the District Court entered an enforcement order regarding the salmon fisheries for the 1978 and subsequent seasons, which, prior to our issuance of a writ of certiorari to review the case, was pending on appeal in the Court of Appeals. App. 486-490.

Because of the widespread defiance of the District Court's orders, this litigation has assumed unusual significance. We granted certiorari in the state and federal cases to interpret this important treaty provision and thereby to resolve the conflict between the state and federal courts regarding what, if any, right the Indians have to a share of the fish, to address the implications of international regulation of the fisheries in the area, and to remove any doubts about the federal court's power to enforce its orders. 439 U.S. 909.

IV

The treaties secure a "right of taking fish." The pertinent ...


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