## Facts

- The Puyallup Tribe possessed treaty rights under the Treaty of Medicine Creek to take fish at “usual and accustomed” grounds “in common with” other citizens.
- Washington sought to apply state fishing regulations to tribal members fishing off-reservation in the Puyallup River.
- Steelhead were taken primarily by tribal members using set nets and gill nets, often for commercial purposes, and by non-Indian sports fishermen using hook-and-line.
- Washington Department of Game Regulation 73 imposed a complete prohibition on net fishing for steelhead while allowing hook-and-line sport fishing to continue.
- After an earlier Supreme Court decision recognized state authority to regulate treaty fishing for conservation if nondiscriminatory, the Washington Supreme Court upheld Regulation 73 as a necessary, nondiscriminatory conservation measure.
- The Tribe and the State sought Supreme Court review of the net-fishing ban’s validity under the treaty and the prior federal decision.

## Issues

1. Whether Washington could, as a conservation measure, completely prohibit net fishing for steelhead while continuing to allow non-Indian hook-and-line sport fishing, consistent with the Tribe’s treaty fishing rights.
2. Whether the treaty right to “take fish” protects commercial net fishing by tribal members.
3. Whether conservation regulation that effectively eliminates the Tribe’s principal fishing method constitutes discrimination forbidden by the treaty.

## Decision

- The Supreme Court reversed the Washington Supreme Court and remanded.
- The Court held that the treaty protects commercial net fishing by Puyallup Indians, subject to valid conservation regulation.
- A total ban on net fishing that leaves sport fishing permissible discriminated against the Tribe where nets were the Tribe’s primary method and hook-and-line was the sports method.
- So long as steelhead fishing is permitted, the State must craft an arrangement that accommodates treaty net-fishing rights and sport-fishing interests, rather than placing the conservation burden solely on tribal fishermen.

## Legal Principles

- A State may regulate treaty-protected fishing only when the regulation is reasonable and necessary for conservation and does not discriminate against Indians.
- Treaty protection for the “right of taking fish” includes commercial fishing, not merely subsistence or ceremonial harvest, subject to conservation limits.
- A method-specific restriction can be discriminatory in operation even if framed as a general rule, where it effectively targets Indians’ customary means of exercising treaty rights.
- When conservation requires reducing harvest, the State must allocate restrictions in a way consistent with treaty equality “in common with” other citizens, requiring practical accommodation rather than exclusion.

## Conclusion

The Court invalidated Washington’s complete ban on tribal net fishing for steelhead because it functioned as discriminatory conservation regulation while sport fishing continued, and it required on remand a conservation scheme that protects fish runs while providing a fair accommodation for the Tribe’s treaty fishing rights.


Dep’t of Game of Wash. v. Puyallup Tribe, 414 U.S. 44 (1973)