Puyallup Tribe v. Department of Game of Wash.

Background

Local plaintiffs sued tribal members in state court to stop the Puyallup and Nisqually Indians from using set nets and other methods to take salmon and steelhead at their usual fishing grounds. The Treaty of Medicine Creek secured the Indians the right to take fish “at all usual and accustomed places” in common with other citizens. The tribes fish both for their own needs and commercially, and Washington law prescribes fishing seasons, areas, permitted gear, and licenses while banning certain gear and preserves river mouths for conservation.

Reasoning

The Court considered whether the treaty’s fishing right prevents the State from regulating how fishing is done. It held that the treaty protects the right to fish at usual places but does not define the manner of fishing, so the State may adopt nondiscriminatory conservation measures that regulate time, manner, gear, and commercial taking. The opinion relied on earlier decisions recognizing a continuing treaty right yet preserving state power to regulate for conservation. The Court reiterated that a state may not levy fees that act as a charge for exercising the treaty right, and it left unresolved whether the specific ban on set nets in the challenged waters was necessary for conservation.

Real world impact

Tribal members keep their treaty right to fish at customary locations, but they remain subject to equal, conservation-focused state rules about gear, areas, and timing. Whether particular methods like set nets can be banned depends on factual findings about conservation necessity, which the trial court must make. The Supreme Court affirmed the lower rulings while leaving specific conservation fact questions to be decided below, so some limits are not yet final.