On April 8, 1975, after more than 12 years of litigation, including two decisions by this Court,
The Tribe, supported by the United States as amicus curiae, contends in this Court that the doctrine of sovereign immunity requires that the judgment be vacated, and that the state courts of Washington are without jurisdiction to regulate fishing activities on its reservation. The Tribe also argues that the limitation of the steelhead catch imposed by those courts is not, in any event, a necessary conservation measure. We hold that insofar as the claim of sovereign immunity is
The complaint as originally filed by respondent Department of Game of the State of Washington (hereafter respondent),
The trial court entered a temporary restraining order enjoining each of the defendants from netting fish in the Puyallup River, and directing that service be made on each defendant.
In response, a "Return on Temporary Restraining Order and Answer to Complaint" was filed by "the PUYALLUP TRIBE of INDIANS, by and through the Chairman of the Tribal Council, MR. JEROME MATHESON." App. in
Throughout this long litigation the Tribe has continued to participate in the dual capacity of a sovereign entity
In Puyallup I, we addressed the problems of tribal immunity and state-court jurisdiction in a footnote:
Thus, Puyallup I settled an important threshold question in this case—regardless of tribal sovereign immunity, individual defendant-members of the Puyallup Tribe remain amenable to the process of the Washington courts in connection with fishing activities occurring off their reservation. That conclusion was predicated on two separate propositions worthy of restatement here.
First, even though the individual defendants were members of the Tribe and therefore entitled to the benefits of the Treaty of Medicine Creek, that treaty as construed by this Court does not confer the complete individual immunity they claim. The State may qualify the Indians' right to fish "at all usual and accustomed places." Specifically, we held that the "manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." Id., at 398.
Second, whether or not the Tribe itself may be sued in a state court without its consent or that of Congress, a suit to enjoin violations of state law by individual tribal members is permissible. The doctrine of sovereign immunity which was
Although only the Tribe had entered an appearance in this Court in Puyallup I, because of its representation of its individual members, jurisdiction over the individuals existed. And since the state court's jurisdiction over the individual members was settled by Puyallup I, neither in that review nor in Puyallup II was any further consideration given to the status of the Tribe itself as a sovereign. It was after our decision in Puyallup II, when the trial court was required to determine the portion of the steelhead run that could be allocated to net fishing by the members of the Tribe, that the state court first entered an order which, in terms, is directed to the Tribe rather than to the individual defendants. That order places a limit on the number of steelhead which all members of the Tribe may catch with nets, and also directs the Tribe to identify the members engaged in the steelhead fishery and to report the number of fish they catch each week. In the trial court, in the Supreme Court of Washington, and in this Court, the Tribe has attacked that order as an infringement on its sovereign immunity to which neither it nor Congress has consented.
The attack is well founded. Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe. This Court,
On the other hand, the successful assertion of tribal sovereign immunity in this case does not impair the authority of the state court to adjudicate the rights of the individual defendants over whom it properly obtained personal jurisdiction. That court had jurisdiction to decide questions relating to the allocation between the hatchery fish and the natural run, the size of the catch the tribal members may take in their nets, their right to participate in hook-and-line fishing without paying state license fees and without having fish so caught diminish the size of their allowable net catch, and like questions. Only the portions of the state-court order that involve relief against the Tribe itself must be vacated in order to honor the Tribe's valid claim of immunity.
The Tribe vigorously argues that the majority of its members' netting of steelhead takes place inside its reservation,
Article II of the Treaty of Medicine Creek provided that the Puyallup Reservation was to be "set apart, and, so far as necessary, surveyed and marked out for their exclusive use" and that no "white man [was to] be permitted to reside upon the same without permission of the tribe and the superintendent or agent." It is argued that these words amount to a reservation of a right to fish free of state interference. Such an interpretation clashes with the subsequent history of the reservation and the facts of this case. Pursuant to two Acts of Congress, 27 Stat. 633, and c. 1816, 33 Stat. 565, the Puyallups alienated, in fee simple absolute, all but 22 acres of their 18,000 acre reservation. None of the 22 acres abuts on the Puyallup River.
Our construction of the Treaty of Medicine Creek in Puyallup I makes it perfectly clear that although the State may not deny the Indians their right to fish "at all usual and accustomed" places, the treaty right is to be exercised "in common with all citizens of the Territory." We squarely held that "the right to fish at those respective places is not an exclusive one." 391 U. S., at 398. Rather, the exercise of that right was subject to reasonable regulation by the State pursuant to its power to conserve an important natural resource.
In Puyallup II we directed the Washington State courts to devise a formula pursuant to which the steelhead catch could be "fairly apportioned" between Indian net fishing and non-Indian sport fishing. No such fair apportionment could be effective if the Indians retained the power to take an unlimited number of anadromous fish within the reservation. Speaking for the Court, Mr. Justice Douglas plainly stated that the power of the State is adequate to assure the survival of the steelhead:
The resource being regulated is indigenous to the Puyallup River. Virtually all adult steelhead in the river have returned after being spawned or planted by respondent upstream from the boundaries of the original Puyallup Reservation, which encompass the lowest seven miles of the river. Though it would be decidedly unwise, if Puyallup treaty fishermen were allowed untrammeled on-reservation fishing rights, they could interdict completely the migrating fish run and "pursue the last living [Puyallup River] steelhead until it enters their nets." Ibid.
Finally, petitioner states that the courts below have failed to apply a standard of conservation necessity in fashioning relief. We disagree. The trial court, on remand from our decision in Puyallup II, conducted a two-week trial which was dominated by expert testimony for both parties. From the testimony and accompanying exhibits the court determined the number of steelhead in the river and how many could be taken without diminishing the number in future years; the court then allocated 45% of the annual natural steelhead run available for taking to the treaty fishermen's net fishery.
The judgment is vacated, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with the opinion.
It is so ordered.
MR. JUSTICE BLACKMUN, concurring.
I join the Court's opinion. I entertain doubts, however, about the continuing vitality in this day of the doctrine of tribal immunity as it was enunciated in United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting in part.
While I agree with the Court's resolution of the rather tangled sovereign immunity question in Part I of the opinion, I cannot agree with the Court's interpretation of the substantive rights of the Puyallup Indians under the Treaty of Medicine Creek.
When white settlers first began arriving in the western part of what is now Washington State, the Puyallup Indians, along with other tribes surrounding Puget Sound, were heavily dependent for their livelihoods on runs of salmon and steelhead that came up the rivers in great numbers to spawn. In the 1850's the first territorial Governor, Isaac I. Stevens, entered into a number of virtually identical treaties with representatives of these western Washington tribes to confine the Indians to reservation lands, and to open up the rest of the region to white settlers. One of these treaties was the Treaty of Medicine Creek, negotiated in 1854 by Governor Stevens with the Puyallups, the neighboring Nisqually Tribe, and other bands. That treaty gave the Puyallups a reservation at the southern end of Commencement Bay at the mouth of the Puyallup River.
The provisions for the Indians' all-important fishing rights stated:
The two questions presented are, first, what fishing rights do the Puyallup Indians have now, over 100 years after the signing of the treaty?; and, second, to what extent is the State of Washington empowered to limit those rights? We do not write on a clean slate as to either question in light of Puyallup I, 391 U.S. 392, decided in 1968, and Puyallup II, 414 U.S. 44. decided in 1973.
Puyallup I presented no question of the "extent of . . . reservation rights," but only the question of the power of the State "to enjoin violations of state [fishing regulations] by individual tribal members fishing off the reservation." 391 U. S., at 394, 397 n. 11.
Before proceedings began on remand, the Court of Appeals for the Ninth Circuit decided a separate case in which the State of Washington challenged "the continued existence of the Puyallup Indian Reservation and as a consequence, the right of the Puyallup Tribe of Indians to fish, free from state interference, on that part of the Puyallup River lying within the Reservation." Relying on Mattz v. Arnett, 412 U.S. 481 (1973), the Court of Appeals held "that the Puyallup Indian reservation continues to exist." United States v. Washington, 496 F.2d 620, 621 (1974) (emphasis supplied). The Washington Supreme Court, referring to the "recently established, continuing existence of the Puyallup Reservation," accepted the holding of the Court of Appeals, but nevertheless concluded that the State was not foreclosed from exercising regulatory authority within the reservation. 86 Wn.2d 664, 668-669, 548 P.2d 1058, 1063-1064 (1976). The court construed Art. III of the treaty to require that the Puyallups be allocated 45% of the harvestable natural-run steelhead for their net fishery, and that the remaining 55% be allocated to the hook-and-line sports fishery. The court further held that none of the harvestable hatchery-bred steelhead should be allocated to the Puyallups' net fishery. Thus, despite its acceptance of the Court of Appeals' holding that the reservation still existed, the Washington Supreme Court applied Art. III of the treaty—limited by its terms to off-reservation fishing—to on-reservation fishing governed by Art. II.
Unlike either Puyallup I or Puyallup II, the case before
The Court also questions whether on-reservation fishing is at issue in this case, relying on the fact that the Puyallups have alienated almost all of their land, and that only 22 acres of the reservation now remain in trust status. Ante, at 174. The Court does not go so far as to deny the existence of the reservation, and, of course, selling reservation land to non-Indians can be "completely consistent with continued reservation status," Mattz v. Arnett, supra, at 497; Rosebud
Today's decision, ironically, is at odds with the position taken by the State in another case involving Indian fishing rights in Puget Sound. There the State agreed that on-reservation fishing is not subject to regulation by the State. In United States v. Washington, 384 F.Supp. 312, 332 (WD Wash. 1974), aff'd, 520 F.2d 676 (CA9 1975), cert. denied, 423 U.S. 1086 (1976), District Judge Boldt, construed the language of Art. II of the Treaty of Medicine Creek and that of virtually identical treaties entered into by Governor Stevens with other western Washington tribes to mean that "[a]n exclusive right of fishing was reserved by the tribes within the area and boundary waters of their reservations, wherein tribal members might make their homes if they chose to do so." (Footnote omitted; emphasis in original.) This proposition was apparently so self-evident to the parties, including the State of Washington, that "[a]ll parties in this case agree[d] that on reservation fishing is not subject to state regulation . . . ." 384 F. Supp., at 341.
I respectfully dissent.
Briefs of amici curiae were filed by Mason D. Morisset, Alan C. Stay, and Michael Taylor for the Colville Indian Tribe et al.; and by Joseph T. Mijich for the Purse Seine Vessel Owners Assn. et al.
In Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup II), the Court held that a complete ban on net fishing for steelhead trout by the Indians was precluded by the treaty, and remanded for a determination of the number of catchable fish that should be apportioned to an Indian net fishery.
In this Court Ramona Bennett is a copetitioner with the Tribe. She appears in her capacity as chairwoman of the Puyallup Tribal Council. Accordingly, we treat this case as though the Tribe itself is the only petitioner in this Court and hereafter use the term "petitioner" to refer to the Tribe.
The ability of the on-reservation activity to completely destroy the resource in question has not been a factor in other cases which have rejected regulation, Arnett v. Five Gill Nets, 48 Cal.App.3d 454, 463-464, 121 Cal.Rptr. 906, 912-913 (1975), cert. denied, 425 U.S. 907 (on remand from this Court, Mattz v. Arnett, supra, where the on-reservation fishing regulation question was reserved, 412 U. S., at 485); People v. Jondreau, 384 Mich. 539, 185 N.W.2d 375 (1971); State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953), cert. denied, 347 U.S. 937; State v. McConville, 65 Idaho 46, 139 P.2d 485 (1943).
"With a single possible exception testified to by a highly interested witness . . . and not otherwise substantiated, notwithstanding three years of exhaustive trial preparation, neither Game nor Fisheries has discovered and produced any credible evidence showing any instance, remote or recent, when a definitely identified member of any plaintiff tribe exercised his off reservation treaty rights by any conduct or means detrimental to the perpetuation of any species of anadromous fish." 384 F. Supp., at 338 n. 26.