165 BRENNAN, J., dissenting in part permitting the total ban was erroneous. The Court again remanded the case, this time for a determination of a means of "fairly apportion [ing]" the steelhead run between the hookand-line sports fishery and the Puyallups' net fishery. 414 U. S., at 48. It was again made explicit that only "offreservation fishing," governed by Art. III of the treaty, was involved. Id., at 45. 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 Wash. 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 naturalrun 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 hatcherybred 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 BRENNAN, J., dissenting in part 433 U.S. us must be determined under Art. II, which in plainest English provides for "exclusive" fishing rights for the Puyallups. Article II cannot be read, in my view, to sanction the apportionment of harvestable fish between the Puyallups and other fishermen. Nor has this Court ever decided whether a State has the power to regulate on-reservation fishing in the interest of conservation. See Mattz v. Arnett, supra, at 485.3 I would therefore reverse. I would remand, as we did in Mattz, for a determination by the state courts in the first instance of what measures, if any, are necessary to regulate the Puyallups' on-reservation fishery for conservation purposes.* 3 Mattz v. Arnett held that the Klamath River Reservation in California had not been extinguished, but intimated no view on the authority of California to regulate fishing on the reservation. 412 U. S., at 485. The Klamath River has an anadromous fishery comparable to that on the Puyallup River, in that fishermen allowed net fishing can prevent all fish in a given run from reaching their spawning grounds. On remand in Mattz, the California Court of Appeal expressed doubt that the State could regulate on-reservation fishing even in the interest of conservation, but did not decide the issue because the Indians' fishing activity was found not to be a sufficient threat to conservation to justify state 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 (1976). 4 The degree of danger to the survival of the anadromous fishery in the Puyallup River posed by the Puyallups' net fishing has been a matter of dispute in this case from the beginning. The parties, even now, disagree about the willingness of the Puyallups to observe sound conservation practices. Compare Brief for Respondent 17-18 with Brief for Petitioners 11-12. The Puyallups apparently now carry on their off-reservation salmon net fishery under the supervision of the Federal District Court for the Western District of Washington. United States v. Washington, 384 F. Supp. 312, 420 (1974); Brief for Petitioners 12. District Judge Boldt in that case found that none of the fishing tribes of western Washington, including the Puyallups, have conducted their off-reservation fisheries in such a way as to endanger any species: "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 165 BRENNAN, J., dissenting in part The Court tries to avoid the force of this analysis by denigrating the holding of the Court of Appeals for the Ninth Circuit. The Court states: "The continued existence of the Puyallup Reservation has been a matter of dispute on which we express no opinion.... [The Ninth Circuit's] decision predates our consideration of DeCoteau v. District County Court, 420 U. S. 425, and Rosebud Sioux Tribe v. Kneip, 430 U. S. 584." Ante, at 173 n. 11. This, to say the least, is a casual disregard of settled principles of res judicata and collateral estoppel. The United States and the State of Washington were parties to the action in the Court of Appeals, and surely we must assume, in the absence of any suggestion to the contrary, that the parties fully litigated their positions respecting reservation status. The Court of Appeals squarely held, contrary to the contention of the State of Washington, that the reservation continued to exist, and review here was denied. Washington v. United States, 419 U. S. 1032 (1974). The Supreme Court of Washington in the case now before us accepted the Ninth Circuit's holding as federal law binding on it. It is inappropriate now for the Court to denigrate the impact of that holding, particularly when the result is to vest authority in the State that lost on just that issue in the Court of Appeals. 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 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. BRENNAN, J., dissenting in part 433 U.S. Sioux Tribe v. Kneip, 430 U. S. 584, 586-587 (1977); DeCoteau v. District County Court, 420 U. S. 425, 432, 444 (1975). Nor does the Court, or indeed any party, contend that somehow the sale of most of the lands included the sale of the exclusive fishing rights the Puyallups were granted by Art. II. The Court's argument seems to be that since the Puyallups do not now "hold Puyallup River fishing grounds for their 'exclusive use'" they have forfeited any claim to enforce their exclusive fishing rights under Art. II. Ante, at 174. This analysis ignores the fact that the Puyallups do not now hold their fishing grounds for their exclusive use precisely because the State has relentlessly sought for many years to prevent their doing so. Indeed, this very suit was begun 14 years ago in an effort to prevent the Puyallups from exercising what they claimed to be their treaty rights on their old reservation. 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 onreservation 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 341.5 5 This decision was handed down a month and a half before the Court of Appeals for the Ninth Circuit decided in United States v. Washing 165 BRENNAN, J., dissenting in part Doubtless 14 years of litigation have made the Court anxious to bring this case to an end, and this explains today's holding-just broad enough to dispose of the Puyallups' substantive claims but so narrowly fact-specific that it will probably have no significant impact on the Puget Sound Indian fishing rights case still pending in the District Court. This suggests that the result would not be the same were the case here for the first time instead of the third. For the language of the treaty is very clear: On-reservation fishing is governed by Art. II. I respectfully dissent. ton, 496 F. 2d 620 (1974), that the Puyallups' reservation continued to exist. On appeal from Judge Boldt's decision, the State challenged certain aspects of the calculation of the allocation under Art. III related to on-reservation catches, but it appears never to have asserted that it had authority to regulate the on-reservation fishery. The Court of Appeals affirmed Judge Boldt's decision in all relevant respects, 520 F. 2d 676, 690 (1975), and nowhere suggested that on-reservation fishing by the Puyallups was to be treated differently from that of any other tribe. The Court of Appeals affirmed Judge Boldt's decision over a year after it found that the Puyallups' reservation had never been extinguished. |