Amicus Curiae Brief — Washington, Petitioner v. United States, et al.

No. 17-269

In the Supreme Court of the United States

__________

STATE OF WASHINGTON,

v.

Petitioner,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

__________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________

BRIEF AMICI CURIAE OF THE NATIONAL

CONGRESS OF AMERICAN

INDIANS, THE NAVAJO NATION, THE UTE

MOUNTAIN UTE TRIBE, AND THE

CONFEDERATED SALISH AND KOOTENAI

TRIBES IN SUPPORT

OF RESPONDENT

__________

JOHN DOSSETT

National Congress of

American Indians

Embassy of Tribal Nations

1516 P Street NW

Washington, DC 20005

(202) 466-7767

Counsel for National

Congress of American

Indians

TROY A. EID

Counsel of Record

JENNIFER H. WEDDLE

HARRIET MCCONNELL

RETFORD

Greenberg Traurig, LLP

1200 17th Street, Suite

2400

Denver, CO 80202

(303) 572-6500

eidt@gtlaw.com

Counsel for Amici Curiae

Additional Counsel Listed on Inside Cover.

ETHEL BRANCH, Attorney

General

PAUL SPRUHAN, Assistant Attorney General

Navajo Nation Department of Justice

P.O. Box 2010

Window Rock, AZ 86515

(928) 871-6210

Counsel for Amicus

Curiae the Navajo Nation

JOHN T. HARRISON, Staff

Attorney,

Tribal Legal Department

Confederated Salish and

Kootenai Tribes of the

Flathead Reservation

P.O. Box 278

Pablo, Montana 598550278

(406) 675-2700, ext. 1185

Counsel for Amicus

Curiae the Confederated

Salish and Kootenai

Tribes

PETER ORTEGO, General

Counsel

Ute Mountain Ute Tribe

P.O. Box 128

Towaoc, CO 81334

(970)-564-5640

Counsel for Amicus

Curiae the Ute Mountain

Ute Tribe

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES...................................... iii

INTERESTS OF THE AMICI CURIAE ..................... 1

SUMMARY OF THE ARGUMENT ............................ 3

ARGUMENT ............................................................... 6

I. WHEN THE UNITED STATES ACTS

AS TRUSTEE FOR INDIAN TRIBES,

IT ENJOYS ALL THE ORDINARY

PROTECTIONS OF THE

GOVERNMENT ACTING IN THE

PUBLIC INTEREST, AND CITY OF

SHERRILL DID NOT CHANGE

THIS...............................................................7

A. Tribes must rely on the United

States, as trustee, to protect their

rights. .......................................................7

B. Equitable defenses, such as waiver

and estoppel, do not generally

apply against the United States,

and nothing in this Court’s

decision in City of Sherrill

suggests otherwise. ................................ 13

II. THE AFFIRMATIVE DEFENSE OF

LACHES WAS NEVER RAISED

BELOW AND IS NOT SUPPORTED

BY FINDINGS OF FACT IN THE

RECORD. ..................................................... 19

ii

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Agua Caliente Band of Cahuilla Indians

v. Coachella Valley Water Dist.,

No. EDCV13883JGBSPX, 2016 WL

2621301 (C.D. Cal. Feb. 23, 2016) ....................... 18

California v. Nevada,

447 U.S. 125 (1980) .............................................. 17

Cayuga Indian Nation of New York, by

Patterson v. Cuomo,

565 F. Supp. 1297 (N.D.N.Y. 1983) ................. 7, 18

U.S. ex rel. Cheyenne River Sioux v. S.

Dakota,

102 F. Supp. 2d 1166 (D.S.D. 2000) ...................... 8

Choctaw Nation of Indians v. United

States,

318 U.S. 423 (1943) .......................................... 3, 12

City of Sherrill v. Oneida Indian Nation

of N.Y.,

544 U.S. 197 (2005) ...................................... passim

Cramer v. United States,

261 U.S. 219 (1923) .......................................... 5, 14

Cty. of Yakima v. Confederated Tribes &

Bands of Yakima Indian Nation,

502 U.S. 251 (1992) .............................................. 13

Heckler v. Cmty. Health Servs. of

Crawford Cty., Inc.,

467 U.S. 51 (1984) .................................. 4, 7, 13, 15

iv

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997) ................................................ 8

Massachusetts v. New York,

271 U.S. 65 (1926) ................................................ 17

Menominee Tribe of Indians v. United

States,

391 U.S. 404 (1968) .............................................. 13

Minnesota v. Mille Lacs Band of

Chippewa Indians,

526 U.S. 172 (1999) ...................................... 3, 5, 19

Montana v. Blackfeet Tribe,

471 U.S. 759 (1985) .............................................. 13

Nevada v. United States,

463 U.S. 110 (1983) .............................................. 11

Ohio v. Kentucky,

410 U.S. 641 (1973) .............................................. 17

Oneida County v. Oneida Indian

Nation,

470 U.S. 226 (1985) .............................................. 12

Oneida Indian Nation of New York v.

State of N.Y.,

691 F.2d 1070 (2d Cir. 1982) ................................. 7

Pan–Am. Petroleum & Transp. Co. v.

United States,

273 U.S. 456 (1927) .............................................. 13

Quapaw Tribe of Oklahoma v. Blue Tee

Corp.,

653 F. Supp. 2d 1166 (N.D. Okla.

2009) ..................................................................... 17

v

Rock Island, A. & L.R. Co. v. United

States,

254 U.S. 141 (1920) .............................................. 14

Saginaw Chippewa Indian Tribe of

Michigan v. Granholm,

No. 05-10296-BC, 2008 WL 4808823

(E.D. Mich. Oct. 22, 2008).................................... 18

Seminole Nation v. United States,

316 U.S. 286 (1942) ................................................ 8

U.S. on Behalf of Cheyenne River Sioux

Tribe v. South Dakota,

105 F.3d 1552 (8th Cir. 1997) ................................ 8

United States v. Ahtanum Irrigation

Dist.,

236 F.2d 321 (9th Cir. 1956) ................................ 14

United States v. Jicarilla Apache

Nation,

564 U.S. 162 (2011) ........................................ 11, 14

United States v. Kagama,

118 U.S. 375 (1886) ................................................ 4

United States v. Washington,

157 F.3d 630 (9th Cir. 1998) ................................ 14

Utah Power & Light Co. v. United

States,

243 U.S. 389 (1917) .............................................. 13

Ute Indian Tribe of the Uintah v. Myton,

835 F.3d 1255 (10th Cir. 2016) ............................ 17

White Mountain Apache Tribe v.

Bracker,

448 U.S. 136 (1980) .............................................. 12

vi

State Cases

Davidson v. State,

802 P.2d 1374 (Wash. 1991) .......................... 19, 20

Matter of Hamptons Hosp. & Med. Ctr.

v. Moore,

417 N.E.2d 533 (N.Y. 1981) ................................. 15

Inhabitants of Stoughton v. Baker,

4 Mass. 522 (1808) ............................................... 22

State v. O’Connell,

523 P.2d 872, supplemented, 528

P.2d 988 (Wash. 1974) ......................................... 15

Federal Statutes

Clean Water Act, 33 U.S.C. §1251 et seq.

(1972) ...............................................................10-12

Indian Reorganization Act of 1934, 48

Stat. 984 (25 U.S.C. § 461, et seq.

(transferred to 25 U.S.C. §5101 et

seq.) ......................................................................... 2

Natural Gas Act, 15 U.S.C. § 717f ............................ 12

Treaty of Hellgate, July 16, 1855, 12

Stat. 975 ................................................................. 2

Treaty of Medicine Creek, U.S.Nisqually, art. III, Dec. 26, 1854, 10

Stat. 1133 ............................................................... 3

Major Crimes Act, 48th Cong., 2d Sess.,

16 Cong. Rec. 934 (1885)........................................ 4

vii

Regulations

33 C.F.R. § 323 .......................................................... 10

Other Authorities

Clinton & Hotopp, Judicial Enforcement

of the Federal Restraints on Alienation of Indian Land: The Origins of

the Eastern Land Claims, 31 ME. L.

REV. 17, 46 (1978)) ................................................. 7

Kathyrn Fort, The New Laches:

Creating Title Where None Existed,

16 GEO. MASON L. REV. 357 (2009) ...................... 16

1

INTERESTS OF THE AMICI CURIAE 1

0F

Founded in 1944, the National Congress of American Indians (“NCAI”) is the nation’s oldest and

largest association of Native American and Alaska

Native tribal governments, representing hundreds of

federally recognized Indian tribes and many individuals. NCAI serves as a forum for consensus-based

policy development among its member tribes from

every region of the country. Its mission is to inform

and educate the public, the federal government, and

state governments about treaty rights, tribal selfgovernment, and a broad range of public policy

issues affecting Native nations, tribes and pueblos.

The Navajo Nation (the “Nation”) is the largest

Indian nation in the United States by land holdings.

Spanning 17 million acres in Arizona, New Mexico

and Utah, the Nation is larger than 10 states and

roughly the size of West Virginia, and is home to

more than 300,000 enrolled members. As a sovereign

government, the Nation entered into two ratified

treaties with the United States, in 1850 and 1868,

respectively.

The Ute Mountain Ute Tribe (“UMUT”) is a federally recognized Indian tribe whose reservation

encompasses lands in Colorado, New Mexico and

Utah, totaling approximately 600,000 acres – nearly

the size of Rhode Island. UMUT is a successor to the

1868 Treaty with the Tabeguache, Muache, Capote,

1 This brief was not authored in whole or part by counsel for a

party. No one other than amicus curiae made a monetary

contribution to preparation or submission of this brief. All

parties have consented to the filing of this brief.

2

Weenuche (also Weeminuche), Yampa, Grand River

and Uintah bands of Ute Indians, 15 Stat. 619.

The Confederated Salish and Kootenai Tribes

(“CSKT”) are a federally recognized tribe governed

pursuant to the Indian Reorganization Act of 1934,

48 Stat. 984 (25 U.S.C. § 461, et seq. (transferred to

25 U.S.C. §5101 et seq.)) with a 10-member council

operating under a Constitution and By-Laws adopted

in accordance with § 16 of that Act. On July 16,

1855, the Salish and Kootenai nations and the United States entered into the Hellgate Treaty, 12 Stat.

975, wherein the CSKT reserved to themselves a

permanent homeland of approximately 1.3 million

acres on what is now the Flathead Indian Reservation, located in northwest Montana.

Respondent Tribes in this case have been confronted with an aggressive invocation of equitable

principles aimed at extinguishing their fundamental

rights – here the notion that mid-level federal bureaucrats with no responsibility for treaty rights

could be deemed to have waived those rights through

actions involving no consideration of them. So too

are tribes across the country having to deal with

increasingly bold and far-ranging assertions that

virtually any form of tribal right can be defeated by

broad reference to equity, in a way that is entirely

inconsistent with fundamental principles of federal

Indian law.

Amici respectfully offer this brief because treaties

reflect solemn commitments between sovereigns.

They are entered into based upon mutual respect

and the shared understanding that each party has a

right to self-governance and self-determination, and

3

are negotiated to serve the best interests of their

people and the public policies of each sovereign.

SUMMARY OF THE ARGUMENT

Much of this litigation has understandably focused on the proper interpretation of the Treaty of

Medicine Creek, U.S.-Nisqually, art. III, Dec. 26,

1854, 10 Stat. 1133 and other treaties at issue in this

case (“Stevens Treaties”). What sets this case apart,

however, is the State’s assertion that the usual

protections provided to the United States as a litigant do not apply when the United States acts as a

trustee for Indian tribes. The State of Washington

(the “State”) cites no authority for departing from the

Court’s longstanding principle that the doctrines of

waiver, estoppel and laches presumptively do not

apply to the United States when it is enforcing

federal law. That principle should be applied with

greater, not lesser, strength when the United States

is enforcing treaties solemnly entered with tribal

governments.

Unlike many other areas of federal law, where

the executive is vested with substantial discretion in

applying and enforcing the law in the public interest,

this Court recognizes a treaty as a contractual obligation that the United States may not abrogate

without a clear expression of intent from Congress.

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 202 (1999); Choctaw Nation of Indians

v. United States, 318 U.S. 423, 431-322 (1943).

From the earliest days of this republic, Indian

tribes have relied on the United States, acting as

their trustee, to assert and protect their treaty and

other statutory rights against encroachment by state

4

governments. See, e.g., United States v. Kagama,

118 U.S. 375, 384 (1886) (upholding Congress’ assertion of federal criminal jurisdiction under the Major

Crimes Act, 48th Cong., 2d Sess., 16 Cong. Rec. 934

(1885)). Tribal-state relations have improved immeasurably since Kagama and other early decisions

of this Court. Yet Indian tribes are still barred by

sovereign immunity from asserting their claims for

treaty violations directly against a state without the

assistance of the United States government. See

Opening Brief at 45 (“Had the State prevailed as to

those defenses, the case would have ended, because

the Tribes would have been unable to overcome the

State’s sovereign immunity without the United

States.”). Although tribes must often rely on the

initiative of the United States to enforce treaty

rights, the equitable defenses – including waiver,

estoppel and laches – typically are unavailable when

states are litigating against the United States.

Heckler v. Cmty. Health Servs. of Crawford Cty., Inc.,

467 U.S. 51, 63 (1984).

The State would upset this balance. Citing City

of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S.

197 (2005), the State proposes an exception: When

the United States acts as trustee for Indian tribes,

then states can broadly invoke a full suite of equitable defenses against the United States government.

Opening Brief at 44-45. Such a sweeping exception

is not supported by City of Sherrill.

More specifically, the State takes the position

that the federal government may waive treaty rights,

or be estopped from asserting them, simply by promulgating nationwide federal regulations and guidance on road construction without reference to local

5

or regional treaty obligations. This Court rejected

that position in Cramer v. United States, 261 U.S.

219, 234 (1923), where federal agents who issued a

lease of Indian land without authority could not

waive the right of the United States to bring an

action subsequently to protect the Indians’ rights.

There is similarly no claim that Respondents waived

or failed to assert their treaty rights in this case. See

Opening Brief 45-52 (“The State Should Be Allowed

to Raise Equitable Defenses Against the Federal

Government”)(emphasis added).

Taking the State’s argument to its logical conclusion, if the advent of federal statutory or regulatory

activity on a national scale constituted equitable

waiver in and of itself, the United States might never

be able to assert a treaty violation on behalf of an

Indian tribe. The State does not explain how this

squares with Congressional power over Indian

affairs. That is to say, the power to abrogate (or

“waive”) Indian treaties is vested exclusively with

Congress and then only in express and unequivocal

terms. Mille Lacs Band of Chippewa Indians, 526

U.S. at 202. Assuming City of Sherrill even applies

here, neither it nor this Court’s subsequent cases

question, let alone challenge, Congressional primacy

in matters regarding Indian tribes, such as determining the proper balance to strike when state

actions adversely affect tribes’ treaty rights.

Asserting a laches defense against the United

States likewise draws no support from City of Sherrill. Judge O’Scannlain’s suggestion that this case

may be barred by laches, Pet. App. 33a (O’Scannlain,

J., statement regarding denial of rehearing en banc),

is a bridge too far. The defense of laches was never

6

raised below, and it is not supported by any findings

of fact in the record. References to “nineteenth

century” treaties notwithstanding, Pet. App. 18a

(O’Scannlain, J., statement regarding rehearing en

banc), no litigant has set forth the actual elements of

laches and related them to the findings of fact in the

record – many of which deal with current events, see,

e.g., Pet. App. 141a, ¶¶ 3.55-3.64; Pet. App. 145a, ¶

3.79; Pet. App. 157a-58a, ¶¶ 7-8; Pet. App. 162a-64a,

¶¶ 28-29.

To apply laches to this situation would be to

adopt a rule without applying even normal standards

of pleading and proof, much less the heightened

standard normally applied when invoking laches

against the United States. There is nothing in City

of Sherrill, or any ordinary principle of law, that

would support such a conclusion.

ARGUMENT

In City of Sherrill this Court held that equitable

doctrines barred a tribe’s assertion of sovereign

authority over land purchased on the open market

and subject to state and local authority for two

centuries. 544 U.S. 197. 2 The State would bootstrap

City of Sherrill – a case in which the United States

was not a party – to prevent the federal government

from litigating on behalf of tribal treaty claims. This

would allow states to assert equitable defenses

against the federal government, and abrogate the

time-honored rule that waiver will not be applied

1F

2 City of Sherrill applied laches, acquiescence and impossibility.

By contrast, the equitable doctrines raised by the State in this

case are waiver and estoppel.

7

against the United States on the basis of ordinary

governmental activity by federal officials, see Heckler, 467 U.S. at 63. Even assuming City of Sherrill

applies, reading it as the State insists here would

compromise the United States’ statutory obligations

as trustee under the Stevens Treaties while casting

doubt on many others.

I. WHEN THE UNITED STATES ACTS AS

TRUSTEE FOR INDIAN TRIBES, IT ENJOYS ALL THE ORDINARY PROTECTIONS

OF THE GOVERNMENT ACTING IN THE

PUBLIC INTEREST, AND CITY OF SHERRILL DID NOT CHANGE THIS.

A. Tribes must rely on the United States, as

trustee, to protect their rights.

Historically the United States, acting as trustee

for Indian tribes, was primarily responsible for

bringing a legal action when tribal rights were

infringed. Cayuga Indian Nation of New York, by

Patterson v. Cuomo, 565 F. Supp. 1297, 1326

(N.D.N.Y. 1983)(“[D]uring the nation’s early history

lawsuits by tribes were rare.”)(citing Clinton &

Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of

the Eastern Land Claims, 31 ME. L. REV. 17, 46

(1978)); Oneida Indian Nation of New York v. State

of N.Y., 691 F.2d 1070, 1081–82 (2d Cir.

1982)(“Pursuant to its obligations as trustee to

Indian tribes to bring suits on their behalf, the

Executive Branch through the Interior and Justice

Departments has been active in processing and

8

litigating the thousands of claims submitted by

Indian tribes.”).

The federal role as trustee for Indian tribes was

intended to provide a crucial protection against state

governments whose interests frequently conflicted

with those of tribes. “In carrying out its treaty

obligations with the Indian tribes the Government is

something more than a mere contracting party[;] …

it has charged itself with moral obligations of the

highest responsibility and trust.” Seminole Nation v.

United States, 316 U.S. 286, 296 (1942).

Despite tribal capacity-building in recent years,

along with greatly improved state-tribal relations,

this case demonstrates the continuing importance of

the federal government’s trusteeship obligations.

Part of this stems from the Constitutional architecture: Tribes may not sue state governments directly

under the Eleventh Amendment without states’

consent. Idaho v. Coeur d’Alene Tribe of Idaho, 521

U.S. 261, 268–69 (1997). Accordingly, tribal governments must often rely on the United States to bring

suit to protect their rights against state encroachment. See, e.g., U.S. on Behalf of Cheyenne River

Sioux Tribe v. South Dakota, 105 F.3d 1552, 1560

(8th Cir. 1997); U.S. ex rel. Cheyenne River Sioux v.

S. Dakota, 102 F. Supp. 2d 1166, 1171–72 (D.S.D.

2000)(contesting the application of state taxes). 3

2F

The State suggests that whenever the federal

government “partners” with a state, or regulates or

3 Prospective injunctive under ex parte Young was not available

in those cases because the relief sought included reimbursement of taxes paid. See Cheyenne River, 105 F.3d at 1170.

9

provides guidance for certain aspects of highway

construction, the United States should be estopped

from bringing any subsequent actions on behalf of an

Indian tribe, even when the federal officials involved

acted without knowledge or regard for tribal rights

as explicitly protected by treaties and other statutes.

Opening Brief at 46; Brief of Idaho, et al, at 24. 4

This approach would have the practical effect of

exempting from federal enforcement any tribal right

that relates to federal regulation or policy. Because

it is not clear how much federal involvement is

necessary to create a “partnership” according to the

State’s approach, adopting it here could open the

door more broadly as a defense against the United

States’ ability to litigate not only on behalf of tribal

interests, but conceivably in many other areas,

unrelated to federal Indian law, where a party might

wish to raise waiver against the United States.

3F

From a tribal perspective, carving out a categorical exception to the time-tested principles of equity

whenever the United States acts as trustee for tribes

and their members, presents practical difficulties

and very real hardship. Tribes already must compete with a vast array of non-Indian interests when

it comes to accessing the federal government’s litiga4 Idaho, et al, characterizes this relationship as a “partnership.”

Brief of Idaho, et al. at 24. The argument that the United

States’ role in encouragement and design of state highways was

so pervasive that it should be held responsible for their consequences, taken to logical conclusion, suggests that the United

States is also responsible for routine torts and other causes of

action arising from the existence and design of these highways.

A permittee is clearly in a much different position than a

“partner.”

10

tion resources. And tribal interests will always be

just one component of the broader public interest

standard that Congress and the executive branch

must consider in formulating, implementing and

enforcing national public policy. Adding an ambiguous equitable defense to the equation would further

degrade the federal government’s ability to protect

tribal rights.

The State characterizes the activities of the federal government as “encouraging Washington’s

highway construction, directing the State’s culvert

design, and issuing permits for the culverts.” Opening Brief at 51. There is no allegation that the issue

of treaty rights was ever raised or addressed during

this permitting process, and therefore the district

court made no findings of fact that would support

such a claim.

Yet the State and its supporters still take the position that by merely encouraging highway construction, the United States waives its right to object

whenever a state builds a highway in violation of a

treaty or other applicable federal laws. “[The Washington State Department of Transportation] adhered

to hydraulic culvert designs published by the FHWA

as a condition of federal funding until Washington

itself developed design methods that improved upon

the federal model.” Brief of Idaho, et al, at 23.

“Washington has also received [Clean Water Act]

permits under 33 C.F.R. § 323 with respect to its

culvert construction activities.” Id. at 23-24.

Essentially, federal officials issued permits pursuant to two federal statutes and their accompanying

regulations. This permitting process is no guarantee, or even an indicator, of compliance with any

11

other applicable federal laws. For instance, a permit

under the Clean Water Act, 33 U.S.C. §1251 et seq.

(1972)), does not demonstrate that the State complied with other federal laws or regulations, which

could range from labor-contracting provisions and

union requirements to workplace safety or many

other matters within the United States’ jurisdiction.

Just as a Clean Water Act permit would not bar suit

for entirely unrelated violations of federal law, it

should not bar suit for treaty violations.

A continuing reality of federal Indian law, particularly given Congressional primacy in Indian affairs,

is that the federal government, while acting as

trustee for a tribe, sometimes encounters actual or

perceived conflicts of interest or policy that would be

impermissible in other trust or representative relationships. The United States, for example, has been

permitted to bind a tribe to a water rights settlement

– without the tribe’s participation – when one of the

other primary water claimants was the United

States Bureau of Reclamation. Nevada v. United

States, 463 U.S. 110, 134-35 (1983). But “the analogy of a faithless private fiduciary cannot be controlling for purposes of evaluating the authority of the

United States to represent different interests.”

Nevada, 463 U.S. at 142.

As this Court recently observed, “the Government

has often structured the trust relationship to pursue

its own policy goals.” United States v. Jicarilla

Apache Nation, 564 U.S. 162, 175 (2011). This

reflects the Court’s longstanding deference to Congress and the executive branch. Even though such

conflicts are permitted when the federal government

acts formally as a trustee and a litigant, that is no

12

reason to assume the United States is acting as

trustee, and waiving a known legal right on behalf of

a tribe, whenever it performs its unrelated role in

encouraging state highway construction.

The federal government routinely regulates, in

the public interest, matters that are relevant to

potential disputes between tribal and state governments, including roads and culverts, water quality

(the Clean Water Act, 33 U.S.C. §1251 et seq.

(1972)), pipelines (the Natural Gas Act, 15 U.S. Code

§ 717f). If compliance with distinct federal laws and

regulations becomes a defense to litigation brought

by the United States, the ability of the United States

to safeguard tribal treaty rights would wither, along

with other important statutory protections.

In practice, the State’s proposed legal rule would

make compliance with one or more unrelated federal

laws a valid or at least plausible defense to allegations of treaty violations by state governments. This

would be a sudden and dramatic reversal of the

longstanding principle articulated by this Court that

treaties, to which by definition states are not parties,

must be construed liberally. Choctaw Nation of

Indians v. United States, 318 U.S. 423, 431-322

(1943)(quotation omitted). “The canons of construction applicable in Indian law are rooted in the unique

trust relationship between the United States and the

Indians,” Oneida County v. Oneida Indian Nation,

470 U.S. 226, 247 (1985), and “[a]mbiguities in

federal law have been construed generously in order

to comport with these traditional notions of sovereignty and with the federal policy of encouraging

tribal independence,” White Mountain Apache Tribe

v. Bracker, 448 U.S. 136, 143–44 (1980). “When …

13

faced with these two possible constructions, our

choice between them must be dictated by a principle

deeply rooted in this Court’s Indian jurisprudence:

‘[S]tatutes are to be construed liberally in favor of

the Indians, with ambiguous provisions interpreted

to their benefit.’ Cty. of Yakima v. Confederated

Tribes & Bands of Yakima Indian Nation, 502 U.S.

251, 269 (1992), quoting Montana v. Blackfeet Tribe,

471 U.S. 759,766 (1985). “[T]he intention to abrogate

or modify a treaty is not to be lightly imputed to the

Congress,” Menominee Tribe of Indians v. United

States, 391 U.S. 404, 413 (1968) (quotation omitted).

B. Equitable defenses, such as waiver and

estoppel, do not generally apply against

the United States, and nothing in this

Court’s decision in City of Sherrill suggests otherwise.

When the United States brings suit, it acts not

merely as a private litigant, but as a representative

of the public interest. Utah Power & Light Co. v.

United States, 243 U.S. 389, 409 (1917). As such, it

is not generally subject to equitable defenses such as

waiver. Id. (“As a general rule, laches or neglect of

duty on the part of officers of the government is no

defense to a suit by it to enforce a public right or

protect a public interest.”) “The general principles of

equity are applicable in a suit by the United States . .

. [b]ut they will not be applied to frustrate the purpose of its laws or to thwart public policy.” Pan–Am.

Petroleum & Transp. Co. v. United States, 273 U.S.

456, 506 (1927).

Defendants may not assert estoppel or waiver on

the basis of statements by federal employees. Heckler, 467 U.S. at 63. “This is consistent with the

14

general rule that those who deal with the Government are expected to know the law and may not rely

on the conduct of Government agents contrary to

law.” Id. Or as Justice Holmes observed, “[m]en

must turn square corners when they deal with the

Government.” Id. (quoting Rock Island, A. & L.R.

Co. v. United States, 254 U.S. 141, 143 (1920)). In

bringing suit on behalf of a tribe, the United States

both acts as a trustee and “assert[s] its own sovereign interest.” United States v. Jicarilla Apache

Nation, 564 U.S. 162, 176 (2011). It is acting in the

public interest, not as a private litigant.

For example, in Cramer this Court found that the

United States was not “estopped from maintaining

[a] suit [on behalf of individual Indian landowners]

by reason of any act or declaration of its officers or

agents” because “these Indians with the implied

consent of the government had acquired such rights

of occupancy as entitled them to retain possession as

against the defendants, no officer or agent of the

government had authority to deal with the land upon

any other theory.” Cramer, 261 U.S. at 234.

Adhering to Cramer, the Ninth Circuit has traditionally held that equitable defenses are not available in cases involving Indian treaty rights. Decision

Below, Pet. App. 97a-98a, quoting United States v.

Washington, 157 F.3d 630, 649 (9th Cir. 1998) and

United States v. Ahtanum Irrigation Dist., 236 F.2d

321, 334 (9th Cir. 1956). Although acknowledging

that this line of cases has been limited by City of

Sherrill, the court found it has not been overruled.

Id. at 98a.

States usually apply the very same principle in

their own courts in cases involving state governmen-

15

tal activity. See, e.g., Matter of Hamptons Hosp. &

Med. Ctr. v. Moore, 417 N.E.2d 533 (N.Y. 1981) (“The

doctrine of estoppel is not applicable to the State

acting in a governmental capacity.”). The State of

Washington is no exception. State v. O'Connell, 523

P.2d 872, 891, supplemented, 528 P.2d 988 (Wash.

1974) (“It is the general rule that the courts will not

apply principles of equitable estoppel against the

government or government subdivisions under

certain situations.”)

This Court has never laid out circumstances under which equitable defenses may be raised against

the United States. Heckler, 467 U.S. at 66 (“Thus,

assuming estoppel can ever be appropriately applied

against the Government . . .”); id. at 68 (Rehnquist,

J., concurring) (“I agree with the Court that there is

no need to decide in this case whether there are

circumstances under which the Government may be

estopped.”).

In City of Sherrill, the Oneida Indian Nation

(“OIN”) sued the local municipality to enjoin the

imposition of property taxes on fee land owned by the

tribe. The parcel was part of the tribe’s aboriginal

territory that had been sold 200 years prior in contravention of the Non-Intercourse Act, and recently

reacquired by the tribe on the open market. City of

Sherrill, 544 U.S. at 202. By that point 99 percent of

the population was non-Indian. Id. at 211. The

Court held that “[t]he wrongs of which OIN complains in this action occurred during the early years

of the Republic, … [and that] [i]t is well established

that laches, a doctrine focused on one side's inaction

16

and the other’s legitimate reliance, may bar longdormant claims for equitable relief.” Id. at 216-17. 5

The Court denied relief to the OIN on this basis. The

Court also observed that Congress had adopted “a

mechanism for the acquisition of lands for tribal

communities that takes account of the interests of

others with stakes in the area’s governance and wellbeing,” thus providing an alternative avenue of

relief. Id. at 220.

4F

City of Sherrill did not address whether laches or

other equitable defenses could be raised against the

United States. Instead it looked to the doctrines of

laches, acquiescence, and impossibility to resolve a

dispute over taxing authority. Not only was there a

200 year passage of time, but the population and

character of the land was transformed. In deciding

City of Sherrill, the Court drew on a line of cases

involving the application of equity to sovereign

boundary disputes. Id. at 218 (“As between States,

long acquiescence may have controlling effect on the

exercise of dominion and sovereignty over territo5 Amici take the position that City of Sherrill was inconsistent

with a large body of law that finds that the defense of laches

has no application to land claims (which do not sound in equity)

and to Indian land claims in particular, and that City of

Sherrill inappropriately applies an ill-defined “disruption”

standard that blindly prioritizes the interest of state governments over those of tribes. See Kathyrn Fort, The New Laches:

Creating Title Where None Existed, 16 GEO. MASON L. REV. 357

(2009). It is not necessary, however, to revisit that issue here.

As already noted, the United States was not even a party to

City of Sherrill. Moreover, the decision itself is a thin reed for

the State’s invitation to alter the longstanding balance of power

between the federal government and the states in federal court

litigation.

17

ry.”), citing Ohio v. Kentucky, 410 U.S. 641, 651

(1973), Massachusetts v. New York, 271 U.S. 65, 95

(1926), California v. Nevada, 447 U.S. 125, 131

(1980).

No such disputes are present here. The defendants in the cases briefed by the parties in City of

Sherrill did not generalize beyond these border

disputes. No decision addressed more generic federal

statutes or regulations, such as those involving

highway construction projects. Extrapolating City of

Sherrill as a basis for finding waiver against the

United States government is not supported anywhere in the record of the Court’s decision or the

record on which it was based.

The development of this doctrine in the lower

courts since City of Sherrill is instructive. It appears

no court has applied City of Sherrill to bar any

claims other than those involving jurisdictional

disputes over land. For example, the Tenth Circuit

rejected a claim by the Town of Myton, Utah that

“[b]ecause the Tribe waited so long to assert claims

against it . . . the town has long since and fairly come

to expect that it contains no tribal lands qualifying

as Indian country.” Ute Indian Tribe of the Uintah v.

Myton, 835 F.3d 1255, 1263 (10th Cir.

2016)(Gorsuch, J.). Instead the court observed that

the lands had reverted to the tribe in 1945, that the

tribe had promptly filed suit when the local government first tried to assert jurisdiction, and that it had

subsequently won two separate judgments regarding

lands in Myton. Id. 6 See also, Quapaw Tribe of

5F

6 Both the Tenth Circuit and the Central District of California

have also held, after City of Sherrill, that laches cannot apply to

18

Oklahoma v. Blue Tee Corp., 653 F. Supp. 2d 1166,

1192 (N.D. Okla. 2009) (“[I]n Sherrill, the OIN was

attempting to displace local and state governments

by asserting its own sovereign authority over land

which it had not inhabited for almost 200 years. By

contrast, the Tribe is asserting claims under Oklahoma law concerning an alleged public nuisance on

tribal land.”); Saginaw Chippewa Indian Tribe of

Michigan v. Granholm, No. 05-10296-BC, 2008 WL

4808823, at *22–23 (E.D. Mich. Oct. 22, 2008) (“First,

quite apparent is the fact that Defendants’ incremental assumption of governmental responsibilities

occurred sometime after the treaties in 1855 and

1864. Clearly, the challenged conduct is not the same

sort of distinct ancient wrong arising from the early

days of the Republic that was at issue in either

Sherrill or Cayuga.”).

The same considerations that underlie this

Court’s reluctance to apply equitable defenses to bar

the United States are still relevant today. That a

treaty may be old does not render its obligations less

important. Neither the executive nor the states may

alter or waive Indian treaty obligations. This Court

has said, “Congress may abrogate Indian treaty

lands actually held in trust by the United States. Myton, 835

F.3d at 1263. (“For one thing, the lands that reverted to

the Tribe in 1945 are owned by the United States and held in

trust for the benefit of the Tribe. And given this, it is far from

clear whether the doctrine of laches could be used to determine

the fate of this territory, for laches is a line of defense that

usually may not be asserted against the United States.”); Agua

Caliente Band of Cahuilla Indians v. Coachella Valley Water

Dist., No. EDCV13883JGBSPX, 2016 WL 2621301, at *3 (C.D.

Cal. Feb. 23, 2016).

19

rights, but it must clearly express its intent to do so.”

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 202 (1999). If statutory language that

“makes no mention of Indian treaty rights” will not

be interpreted to abrogate those rights, then surely a

Clean Water Act permit that “makes no mention of

Indian treaty rights” cannot do so either. Id. at 203.

II. The affirmative defense of laches was never

raised below and is not supported by findings of fact in the record.

Laches is an affirmative defense that must be

pleaded and proven. “A defendant asserting the

doctrine of laches must affirmatively establish: (1)

knowledge by plaintiff of facts constituting a cause of

action or a reasonable opportunity to discover such

facts; (2) unreasonable delay by plaintiff in commencing an action; and (3) damage to defendant resulting

from the delay in bringing the action.” Davidson v.

State, 802 P.2d 1374, 1381 (Wash. 1991).

The State raised defenses of waiver and estoppel,

but it did not allege laches. Pet. App. 274a (“The

affirmative defenses laid out in paragraphs 6.1

through 6.8 of Washington’s answer are based on the

doctrines of waiver or estoppel.”). There was a

seven-day bench trial, with extensive findings of fact

by the district court, Pet. App. 128a, but the judge

made no findings of fact that would allow an appellate court to rule in favor of the State on this ground.

It was well within the State’s power to plead an

affirmative defense of laches and endeavor to prove

it, but this was not done.

In contrast, the statement regarding rehearing en

banc suggests that Respondents and the United

20

States waited more than 100 years to discover that

barrier culverts are a violation of the Stevens Treaties: “Nonetheless, it apparently just occurred to the

Tribes, the United States, and our court that in order

to fulfill nineteenth century federal treaty obligations, the State of Washington must now be required

to remove physical barriers which might impede the

passage of salmon.” Pet. App. 18a (emphasis in

original). “Given the United States’ involvement in

designing the culverts and its long acquiescence in

their existence, one might suppose that an equitable

doctrine such as laches would bar suit by the United

States.” Id. at 33a.

The relevant findings of fact in the record below

also do not support a defense of laches. Neither the

stream blockages, nor the substantial degradation of

the fishery that the blockages have caused, dates

back to the time of the Stevens Treaties. It would

have been the State’s responsibility, as the party

asserting laches, to prove when the “facts constituting a cause of action,” Davidson, 802 P.2d at 1381,

occurred, and it has not done so. There is no proof in

the record that a cause of action for the United

States and the Tribes happened sufficiently long ago

for laches to become an issue.

The recent drops in the salmon harvest attest to

the timeliness of the suit. According to the district

court, “Salmon abundance has declined precipitously

from treaty times, but particularly in the last few

decades.” Pet. App. 157a, ¶ 7. Harvests of salmon

have declined dramatically since 1985,” Pet. App.

175a, ¶ 8. “The Tribes are at present unable to

harvest sufficient salmon to meet their needs and

provide a livelihood for those tribal members who

21

desire to fish salmon for a living.” Id. at 158a, ¶ 13

(emphasis added).

An additional consideration is the reality on the

ground. The number of barrier culverts continues to

grow faster than the State is repairing or replacing

culverts, creating a continual stream of fresh violations. Between 2009 and 2011, the State completed

24 barrier culvert projects. Id. at 162a, ¶ 28. At this

rate it would take a century to replace all the barrier

culverts in the inventory. Id. at 163a. During the

same period, the total number of barrier culverts

increased from 1,158 to 1,236. Id. at 163a-64a, ¶ 29.

Allegations relating to culverts were raised at the

very beginning of this case, in the 1970s, when the

district court chose to bifurcate those issues and

delay “phase II” discovery until after “phase I” was

complete. Joint App. 800a; 802a. After discovery,

the United States and Respondents moved for summary judgment, and specifically noted that the

challenged blockages included barrier culverts. Id.

806a. Since the state highway system was completed

in 1968, id. at 179a-180a, 398a, little time had

passed. Furthermore, even the culverts on the oldest

roads have often been subject to continuing violations: culverts wear out and are ordinarily replaced

every 30 to 80 years and many state highways have

been enlarged and widened. Joint App. 134a; 154a.

Finally, and despite what the State asserts here,

there is nothing inherently unreasonable about

requiring even aging culverts to be rebuilt so that

fish may pass through and reproduce. The Supreme

Judicial Court of Massachusetts considered the

application of laches to an “ancient dam” that

blocked the passage of fish in 1808 – and rejected it

22

as a defense against the government. Inhabitants of

Stoughton v. Baker, 4 Mass. 522, 526 (1808). The

court required the dam owners to reimburse the

public for the cost of repairing the dam, finding that

“every owner of a water-mill or dam holds it on the

condition, or perhaps under the limitation, that a

sufficient and reasonable passage-way shall be

allowed for the fish.” Id. at 528. “This limitation,

being for the benefit of the public, is not extinguished

by any inattention or neglect, in compelling the

owner to comply with it.” Id. “For no laches can be

imputed to the government, and against it no time

runs so as to bar its rights.” Id. The Stevens Treaties may be old but the rights they solemnly memorialized are perpetual and very much alive.

***

CONCLUSION

The Court should affirm the decision below.

Respectfully submitted,

By:

s/ Troy A. Eid

TROY A. EID

Counsel of Record

JENNIFER H. WEDDLE

HARRIET MCCONNELL RETFORD

Greenberg Traurig, LLP

1200 17th Street, Suite 2400

Denver, CO 80202

(303) 572-6500

eidt@gtlaw.com

23

Counsel for Amici Curiae