Department of Game v. Puyallup Tribe, Inc. ( 1967 )

Hunter, J.

(dissenting) — I dissent. The ultimate holding of the majority is that the Puyallup Indians are subject to regulations reasonable and necessary for the preservation of the fishery. The majority’s modification of the trial court’s injunction when read with this holding is not consistent. The trial court properly applied our existing conservation laws to the Puyallup Indians by its injunction. The power of the state of Washington to regulate fishing for purposes of conservation has been clearly recognized as applying to the Indians equally with others by the United States Supreme Court in the case of Tulee v. Washington, 315 U. S. 681, 684, 86 L. Ed. 1115, 1119, 62 Sup. Ct. 862, 864 (1941). In this case Justice Black for the court stated:

We think the state’s construction of the treaty is too narrow and the appellant’s too broad; that, while the treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here. (Italics mine.)

Our present laws and regulations relating to the use of gear, and the time and place of taking fish are for no other purpose than the reasonable and necessary preservation of the fishery. These laws and regulations accomplish the purpose of the ultimate holding of the majority and therefore should have been imposed on the Indians equally with others as was done by the trial court.

In my opinion the ultimate holding of the majority is consistent with the injunction entered by the trial court, and there is no need for its modification.

Rosellini and Hale, JJ., concur with Hunter, J.