## Facts

- The Puyallup and Nisqually Tribes reserved, by treaty, the “right of taking fish at all usual and accustomed grounds and stations … in common with” other citizens.
- Washington imposed fishing regulations (including restrictions affecting set nets, seasons, and locations) aimed at conserving salmon and steelhead runs in the Puyallup and Nisqually Rivers.
- Tribal members traditionally used set nets at their usual and accustomed places and fished for subsistence and commercial sale.
- State officials sought declaratory relief in state court to define the scope of treaty fishing rights and the validity of the conservation measures.
- The Washington Supreme Court held the treaty right was subject to state conservation regulation and remanded for determinations whether particular regulations were reasonable and necessary.
- The U.S. Supreme Court granted review in two consolidated matters involving similar treaty-based claims.

## Issues

1. Whether a State may regulate treaty-reserved Indian fishing at usual and accustomed grounds and stations when the treaty guarantees the right “in common with” others.
2. If state regulation is permissible, what limits apply to ensure conservation measures do not unlawfully burden treaty rights.
3. Whether restrictions on tribal use of set nets at specific locations were valid on the record presented.

## Decision

- The Court affirmed the state court judgment.
- The Court held that the State may regulate treaty fishing for conservation purposes, applying regulation to Indians and non-Indians alike.
- The Court stated that permissible regulation must be tied to conservation and cannot operate to nullify the treaty right through discriminatory or excessive burden.
- The Court did not decide the validity of the specific set-net restrictions on the existing record and left those determinations for further proceedings.

## Legal Principles

- Indian treaty fishing rights are federal rights that preempt conflicting state law, but they are not immune from conservation regulation.
- Treaty language securing fishing “in common with” others supports state authority to impose conservation measures on all fishers, including tribal fishers.
- Conservation regulation of treaty fishing is valid only if it is reasonable and necessary to conserve the fishery.
- Conservation regulation must be non-discriminatory; it may not restrict the Indians’ fishing opportunity more than necessary relative to other citizens.
- Determinations about the validity of particular gear or location restrictions require an adequate factual record assessing conservation necessity and regulatory fairness.

## Conclusion

The Court held that Washington may regulate treaty-reserved Indian fishing only within a narrow conservation rationale and only through non-discriminatory, reasonable, and necessary measures; because the record was insufficient to evaluate the set-net restrictions, the Court left that issue for further factual development consistent with these limits.


Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S. 392 (1968)