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the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets." 414 U. S., at 49.

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.15 In this manner the treaty fishermen could totally frustrate both the jurisdiction of the Washington courts and the rights of the non-Indian citizens of Washington recognized in the Treaty of Medicine Creek.16 In practical effect, therefore, the petitioner is reasserting the right to exclusive

15 The original complaint in this case alleged that, "[a]s a result of the defendants' fishery, the anadromous fish runs of the Puyallup River will be virtually exterminated if said fishery is permitted to continue." App. in Puyallup I, p. 6.

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).

16 "Article III. 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." 10 Stat. 1133. As to the treaty fishermen,

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control of the steelhead run that was unequivocally rejected in both Puyallup I and Puyallup II. At this stage of this protracted litigation, we are unwilling to re-examine those unanimous decisions or to render their holdings virtually meaningless. We therefore reject petitioner's claim to an exclusive right to take steelhead while passing through its reservation.

III

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 Washington Supreme Court affirmed, 86 Wash. 2d, at 684-687, 548 P. 2d, at 1072-1073. This is precisely what we mandated in Puyallup II, 414 U. S., at 48-49. In the absence of a focused attack on some portion of the Washington courts' factual determinations, we find no ground for disagreeing with them.18

this sentence effects a reservation of a previously exclusive right. But that language also recognizes that the right is to be shared in common with the non-Indian "citizens of the Territory."

17 The courts below also held that the run of hatchery fish introduced into the Puyallup by respondent was not available to the treaty fishermen. The issue was not presented in the petition for certiorari, nor was it argued in petitioner's brief. Respondent did attempt to raise the issue in its untimely cross-petition for certiorari, and by its brief arguing affirmance. Because the question has no bearing on our decision of the questions presented by petitioner, we decline to decide it.

18 But for the direction of relief against the Tribe, the order of the Superior Court is admirably narrow in scope and well suited to effect a

BLACKMUN, J., concurring

433 U.S.

A practical problem is presented by our disposition. The limitation on the size of the net catch applies to all members of the Tribe. The respondent has no interest in how the catch is allocated among the Indians; its concern is with the total number of steelhead netted during each season, with obtaining information to make it possible to recommend a proper allocation in succeeding years, and with enforcement against individuals who may net fish after the allowable limit has been reached. On the other hand, the Tribe has a separate interest in affording equitable treatment to its members and in protecting those members from any mistaken enforcement efforts. For that reason, although it properly resists the authority of the state court to order it to provide information with respect to the status of enrolled members of the Tribe and the size of their catch, it may find that its members' interests are best served by voluntarily providing such information to respondent and to the court in order to minimize the risk of an erroneous enforcement effort. The state courts must continue to accord full respect to the Tribe's right to participate in the proceedings on behalf of its members as it has in the past without treating such participation as qualifying its right to claim immunity as a sovereign.

The judgment is vacated, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with the opinion.

MR. JUSTICE BLACKMUN, concurring.

It is so ordered.

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).

minimum of intrusion upon the treaty fishermen's protected rights. The treaty fishermen are free to fish up to the limit imposed by the court without any restriction as to time, place, or method of fishing.

165

BRENNAN, J., dissenting in part

I am of the view that that doctrine may well merit re-examination in an appropriate case.

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:

"Article II. There is . . . reserved for the present use
and occupation of the said tribes and bands [reservation
land which] shall be set apart, and, so far as necessary,
surveyed and marked out for their exclusive use
"Article III. 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 Terri-
tory
10 Stat. 1132, 1133. (Emphasis supplied.)

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BRENNAN, J., dissenting in part

433 U.S.

As I understand the Court's reading of these provisions, with which I agree, Art. II guarantees exclusive use of the reservation, including exclusive fishing rights, to the Puyallups. Article III concerns fishing rights off the reservation, guaranteeing such rights at all "usual and accustomed grounds and stations," not, however, exclusively but "in common with all the citizens of the Territory."

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. 11.1 Puyallup I held that Washington's power to regulate off-reservation fishing for salmon and steelhead by the Puyallups was limited to regulations necessary in the interest of conservation, id., at 398, and remanded for a determination by the Washington State courts of reasonable and necessary conservation measures, and for an interpretation of the phrase "in common with all the citizens of the Territory" contained in Art. III of the treaty. The Washington Supreme Court's response on remand was to sustain a total ban on all net fishing for steelhead. 80 Wash. 2d 561, 497 P. 2d 171 (1972). In consequence, the case returned here as Puyallup II, which held that the interpretation of Art. III as

1 The question of whether the Puyallups' reservation continued to exist was not reached. 391 U. S., at 394 n. 1.

2 The state court also sustained a regulation permitting some net fishing by the Puyallups for salmon. Review of that holding was not sought here.

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