Document:
Boldt Decision

 
The "Constitution . . . of the United States . . . and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

"In construing any treaty between the United States and an Indian tribe, it must always (as was pointed out by the counsel for the appellees) be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter  [**14]  employed by themselves; that the  [*331]  treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515 [8 L. Ed. 483]; The Kansas Indians, 72 U.S. 737, 5 Wall. 737, 760 [18 L. Ed. 667]; Choctaw Nation v. United States, 119 U.S. 1, 27, 28 [7 S. Ct. 75, 30 L. Ed. 306, 314, 315] . . . . 'The language used in treaties with the Indians should never be construed to their prejudice.' . . . 'How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.'" n7

 
"And we have said we will construe a treaty with the Indians as 'that unlettered people' understood it, and 'as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection,' and counterpoise the inequality 'by the superior justice which looks only to the substance of the right, without regard to technical rules.' [citing Choctaw and Jones]"

 
"Valid treaties of course 'are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States.' Baldwin v. Franks, 120 U.S. 678, 683, 7 S. Ct. 656, 30 L. Ed. 766."

 
5. "The right to resort to the [usual and accustomed] fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. . . . [The] treaty was not a grant of rights to the Indians but a grant of right from them -- a reservation of those not granted." n9
 
"And surely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.'" n10

 
"The power of a state to control and regulate the taking of game cannot be questioned. Geer v. Connecticut, 161 U.S. 519, [16 S. Ct. 600, 40 L. Ed. 793."

 
". . . the sole question which the case presents is whether the treaty made by the United States with the Bannock Indians gave them the right to exercise the hunting privilege, therein (the treaty) referred to within the limits of the state of Wyoming in violation of its laws. If it [the treaty] gave such right, the mere fact that the state had created school districts or election districts, and had provided for pasturage on the lands, could no more efficaciously operate to destroy the right of the Indian to hunt on the lands than could passage of the [state] game law."

 
". . . nor does it [the right to take fish] restrain  [**31]  the state unreasonably, if at all, in the regulation of the right."  [*336] 

 
"Relying upon its broad powers to conserve game and fish within its borders, (2) however, the state asserts that its right to regulate fishing may be exercised at places like the scene of the alleged offense, which, although within the territory originally ceded by the Yakimas, is outside of their reservation."

 
"Moreover, the right  [**35]  to fish at those respective [usual and accustomed] places is not an exclusive one. Rather it is one 'in common with all citizens of the territory.' Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State."

 
"The right to fish 'at all usual and accustomed' places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. [citations] But the manner of fishing, the size  [**36]  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."

 
"The power to tax the exercise of a privilege is the power to control or suppress its enjoyment."

 
"The sole question tendered in the present cases concerns the regulations  [*338]  of the Department of Game concerning steel head trout."

 
"We do not imply that these fishing rights persist down to the very last steel head in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steel head is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steel head from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steel head until it enters their nets."

 
"Surprisingly little judicial attention, we note, has been given to this rather standard treaty language [in the fishing rights clause of Indian treaties]."

 
(a) Competent and responsible leadership.
 
 [*341]  (b) Well organized tribal government reasonably competent  [**48]  to promulgate and apply tribal off reservation fishing regulations that, if strictly enforced, will not adversely affect conservation.
 
(c) Indian personnel trained for and competent to provide effective enforcement of all tribal fishing regulations.
 
(d) Well qualified experts in fishery science and management who are either on the tribal staff or whose services are arranged for and readily available to the tribe.
 
(e) An officially approved tribal membership roll.
 
(f) Provision for tribal membership certification, with individual identification by photograph, in a suitable form that shall be carried on the person of each tribal member when approaching, fishing in or leaving either on or off reservation waters.

 
(a) Provide for full and complete tribal fishing regulations which, before adoption, have been discussed in their proposed final form with Fisheries and Game, and include therein any state regulation which has been established to the satisfaction of the tribe, or upon hearing by or under direction of this court, to be reasonable and necessary for conservation.
 
(b) Permit monitoring of off reservation Indian fishing  [**49]  by Fisheries and Game to the extent reasonable and necessary for conservation.
 
(c) Provide fish catch reports, as to both on and off reservation treaty right fishing, when requested by Fisheries or Game for the purpose of establishing escapement goals and other reasonable and necessary conservation purposes.

 
(a) The number of fish required for spawning escapement and any other requirements established to be reasonable and necessary for conservation, and
 
(b) The number of harvestable fish non-treaty fishermen may take at the tribes' "usual and accustomed grounds and stations" while fishing "in  [**55]  common with" treaty right fishermen.

It is suggested in Puyallup-II that a distinction between native and propagated steelhead should be made in computing the allocation of fish to off reservation treaty right and to non-treaty right fishing. This appears to present many difficulties and problems which must be considered and determined with all deliberate speed, by  [*345]  agreement or by judicial decision. Discharge of that responsibility appears to be within the jurisdiction of this court by issues all parties have submitted to this court in the Final Pretrial Order  [**61]  in this case. However, under the Puyallup-II mandate to the State Supreme Court it appears appropriate to this court that the state courts hear and determine the matter referred to, at least in the first instance.

 
". . . [Before] [Washington] may regulate the taking and disposition  [**63]  of fish by treaty Indians at their usual and accustomed fishing places:

 
'(a) It must establish preliminary to regulation that the specific proposed regulation is both reasonable and necessary for the conservation of the fish resource. In order to be necessary, such regulations must be the least restrictive which can be imposed consistent with assuring the necessary escapement of fish for conservation purposes; the burden of establishing such facts is on the state.
 
'(b) Its regulatory agencies must deal with the matter of the Indians' treaty fishing as a subject separate and distinct from that of fishing by others. As one method of accomplishing conservation objectives it may lawfully restrict or prohibit non-Indians fishing at the Indians' usual and accustomed fishing places without imposing similar restrictions on treaty Indians.
 
'(c) It must so regulate the taking of fish that the treaty tribes and their members will be accorded an opportunity to take, at their usual and accustomed fishing places, by reasonable means feasible to them, . . . fish [to the extent hereinabove specified.]

* * * *

 
". . . state restriction on treaty  [**64]  referenced fishing must be 'necessary for the conservation of the fish.'  [*346] 
. . . It [the Supreme Court] was not endorsing any particular state management program which is based not only upon that factor but also upon allocation of fish among particular user groups or harvest areas, or classification of fish to particular uses or modes of taking.

The state may regulate fishing by non-Indians to achieve a wide variety of management or 'conservation' objectives. Its selection of regulations to achieve these objectives is limited only by its own organic law and the standards of reasonableness required by the Fourteenth Amendment. But when it is regulating the federal right of Indians to take fish at their usual and accustomed places it does not have the same latitude in prescribing the management objectives and the regulatory means of achieving them. The state may not qualify the federal right by subordinating it to some other state objective or policy. It may use its police power only to the extent necessary to prevent the exercise of that right in a manner that will imperil the continued existence of the fish resource. The measure of the legal propriety of a regulation  [**65]  concerning the time and manner of exercising this 'federal right' is, therefore, 'distinct from the federal constitutional standard concerning the scope of the police power of the State.' [citations] To prove necessity, the state must show there is a need to limit the taking of fish and that the particular regulation sought to be imposed upon the exercise of the treaty right is necessary to the accomplishment of the needed limitation. This applies to regulations restricting the type of gear which Indians may use as much as it does to restrictions on the time at which Indians may fish."

* * * *

"The Supreme Court has said that the right to fish at all usual and accustomed places may not be qualified by the state. Puyallup Tribe et al. v. Department of Game, et al., supra. [citations] I interpret this to mean that the state cannot so manage the fishery that little or no harvestable portion of the run remains to reach the upper portions of the stream where the historic Indian places are mostly located."

 
"There is no reason to believe that a ruling which grants the Indians their full treaty rights will affect the necessary escapement of  [**66]  fish in the least. The only effect will be that some of the fish now taken by sportsmen and commercial fishermen must be shared with the treaty Indians, as our forefathers promised over a hundred years ago."

* * * *

 
"In the case of regulations affecting Indian treaty fishing rights the protection of the treaty right to take fish at the Indians' usual and accustomed places must be an objective of the state's regulatory policy [at least] coequal with the conservation of fish runs for other users. The restrictions on the exercise of the treaty right must be expressed with such particularity that the Indian can know in advance of his actions precisely the extent of the restriction which the state has [shown] to be necessary for conservation. [citations]

This court cannot prescribe in advance all of the details of appropriate and permissible regulation of the Indian fishery, nor do the plaintiffs ask it to. As the Government itself acknowledges, 'proper anadromous fishery management in a changing environment is not susceptible of rigid predetermination. * * * the variables that must be weighed in each given instance make judicial review of state action,  [**67]  through retention of continuing jurisdiction, more appropriate than overly-detailed judicial predetermination.' The requirements of fishery regulation are such that many of the specific restrictions, particularly  [*347]  as to timing and length of seasons, cannot be made until the fish are actually passing through the fishing areas or shortly before such time. Continuing the jurisdiction of this court in the present cases may, as a practical matter, be the only way of assuring the parties an opportunity for timely and effective judicial review of such restrictions should such review become necessary.

I also do not believe that this court should at this time and on this record attempt to prescribe the specific procedures which the state must follow in adopting regulations applicable to the Indian fishery. The state must recognize that the federal right which the Indians have is distinct from the fishing rights of others over which the state has a broader latitude of regulatory control and that the tribal entities are interested parties to any regulation affecting the treaty fishing right. They, as well as their members to whom the regulations will be directly applicable, are entitled  [**68]  to be heard on the subject and, consistent with the need for dealing with emergency or changing situations on short notice, to be given appropriate notice and opportunity to participate meaningfully in the rule-making process. [and to seek prompt judicial review of regulations assertedly invalid.]

This does not mean that tribal consent is required for restrictions on the exercise of the treaty rights."

* * * *

 
". . . the state's authority to prescribe restrictions within the limitations imposed by the treaties and directly binding upon the Indians is not dependent upon assent of the tribes or of the Secretary of the Interior. But certainly agreements with the tribes or deference to tribal preference or regulation on specific aspects pertaining to the exercise of treaty fishing rights are means which the state [should] adopt in the exercise of its jurisdiction over such fishing rights. Both the state and the tribes should be encouraged [and directed] to pursue such a cooperative approach . . ."

 
"The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, * * *."

 
"As regards the fisheries, they are held in common, and no tribe pretends to claim from another, or from individuals, seignorage for the right of taking. In fact, such a claim would be inconvenient to all parties, as the Indians move about, on the sound particularly, from one to another locality, according  [**86]  to the season." [Ex. USA-20, p. 18; Ex. USA-27b, p. 3; Ex. G-4, p. 186]

 
accustomed: Being familiar by use; habituated; inured . . . usual; often practiced.
 
common: Belonging equally to more than one, or to many indefinitely . . . belonging to the public; having no separate owner . . . general; serving for the use of all.
 
usual: Customary; common; frequent; such as occurs in ordinary practice or in the ordinary course of events. [Ex. PL-86]

 
"* * * the salmon known to the Nisquallies as the skwowl, which I consider identical with the Klutchin of the Clallums, * * * arrives in the bays and estuaries of Puget Sound about the middle of autumn, and towards the first of December commences to run up the larger rivers emptying into the sound. Their ascent of these streams continue through December and January. This arrival of the species in fresh water is not as simultaneous, neither do they arrive in such great numbers at any one time or in 'schools,' as is the case with the skourtz and several other species, but the 'run' being somewhat more 'drawn out' affords a steady moderate supply to the Indians during its continuance."

 
"1. To conserve and, where possible, expand the primary fishery resources;
 
"2. To promote optimum use of the fisheries resource by fishermen (commercial, sport, and Indian), the fishing industry, and general public;
 
"3. To encourage harvesting of the sustainable yield of fish in a manner that provides the greatest return to the economy;
 
"4. To develop public understanding of the fishery resource, its environment, and the philosophy governing exploitation of the resource, and to maintain public respect for the law."

 
"We hold that it is incumbent upon the Department of Game to provide, annually, regulations for a Puyallup Indian net fishery of steelhead when it is determined by the department, upon supporting facts and data, that an Indian net fishery would not be inconsistent with the necessary conservation of the steelhead fishery." [FPTO § 3-441]

 
"What we were considering was whether an Indian  [**229]  net fishery would be inconsistent with the conservation of steelhead. We determined that Indian net fisheries, the establishment of Indian net fisheries would be inconsistent with conservation." [FPTO § 3-441]

 
Hoh Tribe of Indians;
 
Lummi Indian  [**260]  Tribe;
 
Makah Indian Tribe;
 
Muckleshoot Indian Tribe;
 
Nisqually Indian Community of the Nisqually Reservation;
 
Puyallup Tribe of the Puyallup Reservation;
 
Quileute Indian Tribe;
 
Quinault Tribe of Indians;
 
Sauk-Suiattle Indian Tribe;
 
Skokomish Indian Tribe;
 
Squaxin Island Tribe of Indians;
 
Stillaguamish Tribe of Indians;
 
Upper Skagit River Tribe;
 
Confederated Tribes and Bands of the Yakima Indian Nation

 
The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory . . . .

 
(a) The off-reservation catch, other than fish needed for personal food or ceremonies, of the tribe or tribes for which regulation is sought is in excess of 50% of the harvest taking place by all fishermen in the area  [**268]  of the tribe's or tribes' usual and accustomed fishing grounds; and
 
(b) such regulation is necessary for conservation?

 
(a) What specific elements must the state show to satisfy the requirement that the state prove in advance that its regulations are necessary for conservation?
 
(b) What specific elements must a tribe show to satisfy the qualifications that its fishing regulations will not adversely affect conservation?

 
1. Defendants shall:
 
a. fully and fairly recognize each of the plaintiff tribes as a tribe holding all rights described and declared as to it in Final Decision #I and accord to each the tribal rights and powers recognized as to it in that decision;
 
b. fully observe and to the best of their ability carry out the provisions and purposes of the treaties cited in paragraph 1 of the Findings of Fact;
 
c. conform their regulatory action and enforcement to each and all of the standards set forth in Final Decision #I;
 
d. recognize the fishing rights in the case area of any treaty tribe not a party to this case to the full extent declared in Final Decision #I as to the plaintiff tribes and perform all acts and duties set forth in this injunction with respect to such additional treaty tribe upon the agreement of defendants or determination by the court that the tribe is a treaty tribe.  [**286] 

 
a. the  [**287]  tribe or tribes affected or this court determines that state assistance  [*415]  in the enforcement of such provisions is necessary for conservation; or
 
b. the tribe has entered into an agreement under which the state may apply the provisions contained in such tribal regulation against the persons exercising the treaty fishing rights of such tribe.

 
a. until June 1, 1974, for plaintiff tribes other than the Sauk-Suiattle, Upper Skagit  [**288]  and Stillaguamish Tribes, any identification which has been issued or authorized pursuant to the provisions of 25 C.F.R. § 256.3;
 
b. for any of the Sauk-Suiattle, Upper Skagit or Stillaguamish Tribes until the membership roll and organizational structure of said tribe is approved by the Secretary of the Interior or his delegate, but not beyond one year from the date of this injunction, any identification card signed by the tribe's tribal chairman certifying the person's membership in the tribe; and
 
c. in all the cases after the dates specified in a and b above, only identification which includes the name, tribal affiliation, enrollment number (where applicable), and a photograph of the holder and is certified by an authorized representative of the tribe or the Bureau of Indian Affairs.

 
a. the specific statute or regulation is required to prevent demonstrable harm to the actual conservation of fish, i.e., it is essential to the perpetuation of a particular run or species of fish;
 
b. the measure is appropriate to its purpose;
 
c. existing tribal regulation or enforcement is inadequate to prevent demonstrable harm to the actual conservation of fish;
 
d. the conservation required cannot be achieved to the full extent necessary, consistent with the principle of equal sharing between treaty and non-treaty fishermen expressed in paragraph 14 of this injunction, by restriction of fishing by non-treaty fishermen or by other less restrictive alternative means or methods.

 
a. unexpected conditions or circumstances;
 
b. run size predictions, which, in spite of defendants' best efforts to achieve accuracy, were incorrect;
 
c. emergency regulations adopted in accordance with the provisions of this injunction;
 
d. historical fisheries of particular importance to Indians;
 
 [*417]  e. alteration or destruction of usual and accustomed fishing places, or environmental conditions, which limit the present day opportunity of treaty fishermen to take fish at such places;
 
f. measures shown by the state to be reasonable and necessary to assure as nearly as possible that there is as full a harvest as possible consistent with Final Decision # I.

 
a. provide all plaintiff tribes a complete list of gear so seized;
 
b. return such gear to the owner or his delegate on or before July 1, 1974; or if the ownership is unknown or in dispute as of July 1, 1974, return such gear to the tribe whose reservation is nearest the place of seizure or as otherwise directed by order of the court; and
 
c. on or before July 1, 1974, provide this court and all plaintiffs a full accounting as to each such item of gear and the disposition thereof.

 
a. the claim arises from an act of the defendants after September 18, 1967;
 
b. he notifies the state Attorney General in writing of his claim on or before May 31, 1974 or within 30 days after the return of gear under paragraph 23 for claims for diminution of value; and
 
c. his notice describes in such detail as is possible under the circumstances, the time, place and manner of seizure or damage, the identity of the offending persons and the size, character and value of the gear.

 
a. whether or not the actions, intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision #I or this injunction;
 
b. whether a proposed state regulation is reasonable and necessary for conservation;
 
c. whether a tribe is entitled to exercise powers of self-regulation;
 
d. disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves;
 
e. claims to returns of seized or damaged fishing gear or its value, as provided for in this injunction;
 
f. the location of any of a tribe's usual and accustomed fishing grounds not specifically determined by Final Decision  [**301]  #I; and
 
g. such other matters as the court may deem appropriate.