Opposition — Port of Tacoma v. Puyallup Indian Tribe, 717 F.2d 1251 (1983) (No.81-3480)

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6 Supreme Court, Tm |

FILED

JAN 10 1984

NO. 83-958 ALEXANDER L. STBVAS,

-

CLERK

In The

Supreme Court of *he United States

October Term, 1983

fy

Vv

PORT OF TACOMA,

Petitioner,

Vs.

PUYALLUP INDIAN TRIBE,

Respondent.

ty

VS

On Petition For a Writ of Certiorari to

The United States Court of Appeals For

The Ninth Circuit

Ly

Vw

BRIEF OF THE PUYALLUP INDIAN

TRIBE IN OPPOSITION

ray

Vv

JOHN HOWARD BELL

Law Office, Puyallup Indian Tribe

2002 East 28th Street

Tacoma, Washington 98404

(206) 597-6374

Attorney for Respondent

Puyallup Indian Tribe

COCKLE PRINTING CO., 2311 Douglas St.. Omaha 68102

QUESTIONS PRESENTED

1. Did the district and circuit courts correctly deter-

mine from the evidence presented that the United States

and the Puyallup Indians intended to include the Puyal-

lup River and its bed as part of the Puyallup Indian Res-

ervation?

2. Did the Puyallup Tribe retain its title to riverbed

land which was exposed by an artificial river channel-

ization project?

PARTIES

The Puyallup Indian Tribe and the Port of Tacoma

are the only parties to this case.

Questions Presented

Parties

Table of Contents

Table of Authorities

Opinions Below

2.

1.

ii

TABLE OF CONTENTS

Pages

i

i

ii

1

Statement of the Case 2

1. The Evidence Concerning Reservation Of

The Riverbed 2

The Change In The River’s Course W005

Reasons For Denying The Writ

The Decision Below Is Consistent With This

Court’s Decision In United States v. Montana 7

The Facts Were Thoroughly Examined By

The Two Courts Below And Do Not Warrant

Further Review 10

There Is No Conflict With Any Other Court

Of Appeals Decision 10

There Is No Conflict With Any Ruling Of The

Washington Supreme Court Nor Any State

Law Issue Justifying Certification..wmmn. 12

Petitioner’s Remaining Arguments Are In-

correct And Do Not Merit Review

Am

iii

TABLE OF AUTHORITIES

Cases

Pages

Alaska Pacific Fisheries v. United States,

248 U.S. 78 (1918) 7,8, 11,15

Berenyi v. Immigration Service, 385 U.S. 630

(1967) | 10

Choctaw Nation v. Oklahoma, 397 U.S. 620

(1970) 8

Confederated Salish and Kootenai Tribes v.

Namen, 665 F.2d 951 (9th Cir. 1982), cert.

denied, — U.S. —, 103 S.Ct. 314 (1982) i

Donmelly v. United States, 228 U.S. 243 (1913). 13

Ghione v. Washington, 175 P.2d 955 (Wash.

S.Ct. 1946) 12

Hill v. Newell, 149 P. 951 (Wash.S.Ct. 1915)... 12

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) 13

Montana v. United States, 450 U.S. 544

(1981) 2, 6, 7, 8, 9, 10, 11, 13, 15

Muckleshoot Indian Tribe v. Trans-Canada

Enterprises, Ltd., 713 F.2d 455 (9th Cir.

1983) (petition for cert. pending) 11

Puyallup Tribe v. Washington Department of

Game, 422 P.2d 754 (Wash.S.Ct.° 1967)

(“Puyallup I’) ; 433 U.S. 165 (1977) (“Puy-

allup IIT’) 13

Rogers v. Lodge, — U.S. —, 102 8. Ct. 3272

(1982) 10

Shively v. Bowlby, 152 U.S. 1 (1894) 13

Sioux Tribe v. United States, 316 U.S. 317 (1942) 13

Strom v. Sheldon, 527 P.2d 1382 (Wash.Ct.App.

Div.2 1974)

United States v. Aranson, 696 F.2d 654 (9th

Cir. 1983), cert. denied, — U.S. —, 104 8.Ct.

423 (1983) .-

iv

TABLE OF AUTHORITIES—Continued

Pages

United States v. Shoshone Tribe, 304 U.S. 111

(1938) 13

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) 10

United States v. Washington, 384 F.Supp. 312

(W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th

Cir. 1975), cert. denied, 423 U.S. 1086 (1976),

later substantially aff’d sub nom Washington

v. Passenger Fishing Vessel Ass’n, 443 U.S.

658 (1979)

Tnited States v. Washington, 694 F.2d 188

(9th Cir. 1982), cert. denied, 103 S.Ct. 3536

(1983) 11

Washington v. Passenger Fishing Vessel Ass’n,

443 U.S. 658 (1979) 3

Wisconsin v. Baker, 698 F.2d 1323 (7th Cir.

1983), cert. denied, — U.S. —, 103 S.Ct.

3537 (1983) 11

au

Treaty and Statutes

Treaty of Medicine Creek, 10 Stat. 1132

(1954)

Executive Order of January 20, 1857, I Kappler

920 passim

Rules of the Supreme Court, Rule 17 11

Federal Rules of Civil Procedure, Rule 19

Other Sources

Cohen’s Handbook of Federal Indian Law

(1982 Ed.) 13

ae Court of "the United States

October Term, 1983

ra"

—T

NO. 83-958

sy.

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PORT OF TACOMA,

Petitioner,

vs.

PUYALLUP INDIAN TRIBE,

Respondent.

ty

Ww

On Petition For a Writ of Certiorari to

The United States Court of Appeals For

The Ninth Circuit

sy

Ww

. BRIEF OF THE PUYALLUP INDIAN

TRIBE IN OPPOSITION

—— , *

Ww

OPINIONS BELOW

The district court’s opinion, findings of fact, and

conclusions of law are reported at 525 F.Supp. 65 (W.D.

‘ Wash. 1981). The opinion of the United States Court of

; Appeals for the Ninth Circuit is reported at 717 F.2d 1251

(1983).

STATEMENT OF THE CASE

The Puyallup Indian Tribe and the Port of Tacoma

here dispute title to 121% acres of undeveloped land on the

Puyallup Indian Reservation. The parcel was part of the

bed of the Puyallup River immediately prior to a United

States Army Corps of Engineers channelization project.

Relocation of the river left the parcel as dry land outside

the river channel.

The district court considered the stipulations made

by the parties, examined more than 50 exhibits, considered

the testimony of the expert witnesses, then made detailed

findings of fact. 525 F.Supp. 65, 70-74. Applying the legal

standards established by this Court in Montana v. United

States, 450 U.S. 544 (1981), the district court' ruled that

(1) both the United States and the Puyallup Indians in-

tended to include the Puyallup River and its bed as part

of the Reservati.. when it was enlarged by Executive

Order and (2) under Washington law the channelization

project did not disturb the Tribe’s title to the former

riverbed land. On the Port’s appeal, the Ninth Circuit

thoroughly reviewed the facts and legal standards and

affirmed the district court’s “well-considered determina-

tion” of both issues. 717 F.2d at 1264.

1. The Evidence Concerning Reservation Of The Riv-

erbed

Petitioner’s Statement of the Case ignores most of

the evidence presented at trial, and the findings of fact

based on that evidence, which addressed the key issue in

the case: the intent of the United States and the Indians

to include the bed of the Puyallup River as part of the

1 Which had jurisdiction under 28 U.S.C. 1362.

ee

Puyallup Reservation when the Reservation was expand-

ed in 1857. The evidence and findings show that the

Puyallup River was at treaty times, as it is now, the center

of the lives of the Puyallup Indians. Salmon, steelhead,

and shellfish formed the bulk of the Puyallups’ diet. The

Indians also traded fresh and dried fish with settlers in

the area and in distant regions. Fish and fishing activities

were at the heart of their spiritual beliefs and social cus-

toms. (525 F.Supp. at 71, Findings 5-7). See also Wash-

ington v. Passenger Fishing Vessel Ass’n, 443 U.S. 658,

664-666 (1979).

Puyallup Indians not only fished from the banks of

the river and from boats, they also harvested fish from

traps and weirs which entailed use of the riverbed itself.

These substantial structures consisted of a series of wood-

en tripods lashed together which were firmly planted in

the bed of the river. They spanned the river from bank

to bank in a variety of locations. (Finding 7.)

The river and its bed were important to the Indians

for other reasons as well. Villages were located for the

most part on the rivers and their tributaries. The Indians

took their personal names and the names for their villages

from the river and tributaries on which they lived. Their

concepts of territory, boundaries, and political unity were

based on the rivers. Thus, Puyallup Indians conceived

of their territory as the Puyallup River and the land for

a certain distance on either side of it. Religious practices

involved the river and its bed. (Findings 5 and 6.)

When Territorial Governor Isaac Stevens and other

federal representatives negotiated the Treaty of Medicine

Creek in 1854 (10 Stat. 1132; Pet. App. A-1 through A-5),

4

they knew that fishing was the most important part of the

Indians’ lives and the Puyallup River the center of the

Puyallups’ territory. When the boundaries of the Reser-

vation were later marked out in an area that removed the

Puyallup Indians from the Puyallup River, the Indians

felt betrayed and went to war to protest. A number of

settlers and Indians were killed. (525 F.Supp. at.72; Find-

ings 9-11.)

Governor Stevens therefore met with the Indians at

Fox Island in 1856 to correct the wrongs and make peace.

The minutes of the Fox Island Council, an exhibit before

the district court, show that the parties discussed modi-

fication .’ the Puyallup Reservation in detail. Both sides

focused their attention on the importance of the Puyallup

River to the Indians. Stevens, for example, said that he

wanted to end the hostilities, to avoid future hostilities,

and, after explicitly referring to the river, that “the Great

Father” would modify the Reservation so as to satisfy the

Indians. The Indians who spoke emphasized the impor-

tance of the river. Ultimately, Stevens recommended mov-

ing and enlarging the Puyallup Reservation so as to in-

clude the mouth and lower portion of the Puyallup River

to satisfy the Indians. Department of the Interior officials

recommended that the President adopt the agreement

reached at Fox Island based on Governor Stevens’ recom-

mendations and the “Indians’ assent.” (Pet. App. A-7.)

The President adopted that recommendation by Executive

Order of January 20, 1857, I Kappler 920 (Pet. A-8), ex-

panding the Reservation pursuant to Article 6 of the

Treaty so as to include the body of land through which

flowed the lower portion of the Puyallup River including

the property involved in this case. In short, the expanded

Reservation was located explicitly because of the presence

5

of the Puyallup River. (525 F.Supp. at 72-73, Findings 12-

16.)

One of the Tribe’s expert witnesses, anthropologist

Dr. Barbara Lane, discussed the importance of the river

to the Indians, the uses they made of the river and its

bed, and the negotiations leading to the expansion of the

Reservation.? Dr. Lane testified that in her opinion it

was the intent of both the federal representatives and the

Indians to include the river and its bed as part of the

Reservation. She based that conclusion on the explicit

discussion of the river at the Fox Island Council, the im-

portance of the river to the Indians, the federal repre-

sentatives’ awareness of that importance, their selection

of the reservation based on the location of the river, the

correspondence from Department of the Interior officials,

and corroboration found in later correspondence among

federal officials and others. (Finding 15.)

The Port of Tacoma offered no documents or testi-

mony whatsoever to dispute the Tribe’s evidence concern-

ing the history of the Puyallup Indians, the uses and im-

portance of the river, or the intent of the parties. 717 F.

2d at 1260, ao. 8.

2. The Change In The River’s Course

a The Puyallup River in its natural state meandered

ts through the Puyallup River Valley, constantly changing

a its course by gradual erosion of the river banks. In the

Dr. Lane is one of the foremost authorities on Indians in

we rence Northwest. The district judge in the leading

rights case in the Northwest noted her expertise,

ated v. Washington, 384 F.Supp. 312, 350 (W.D.

Wash: 1974), aff'd, 520 F.2d 676 (9th r. 1975), cert. de-

nied, 423 U.S. 1086 (1976), later substantially aff'd sub

nom Washin v. Passenger Fishing Vessel Ass’n, 443

U.S. 658 (1 Le the Ninth Circuit here agreed. 717

F.2d at 1260, n. 8.

¢

late 1940’s the United States Army Corps of Engineers re-

located the lower portion of the river in a relatively

straight artificial channel. The property disputed in,this

case was a portion of the riverbed immediately before that

channelization project but became dry land outside the

channel as a result of the project. In the condemnation

action which the United States had instituted to obtain

land for the channelization project, it was recognized that

former riverbed land was owned by the United States in

trust for the Puyallup Indian Tribe. The Port of Tacoma

nevertheless claimed title to the newly exposed land based

on its status as record owner of the land adjacent to this

property. The only use which the Port has made of the

land, however, has been ocvasional leases of the property

to third parties for storage of wood chips, firewood, and

- the like. (525 F.Supp. at 73-74, Findings 4, 18-23; Pet. 3).

sy,

“

REASONS FOR DENYING THE WRIT

The decision below correctly applies the rules reiter-

ated by this Court in Montana v. United States, “50 U.S.

544 (1981), for determining ownership of land underlying

navigable waters on Indian reservations. The judgment of

the court of appeals does not conflict with any decision of

this Court, of another court of appeals, or of a state court

of last resort. Although similar cases may arise on some

other reseryations, the legal principles which the courts

apply are not in dispute.’ This Court indicated in Montana

+ aan pean Mas with some of those

’ ede it did not r. .e those here, showing in-

to the property even under the

jm Range Foggy

7

(450 U.S. at 556) and petitioner concedes (Pet. 6) that each

case is determined by its particular historical circum-

stances and the actions and statements of the parties. Pe-

titioner here, after failing in two courts below, merely

‘ceks a third opportunity to convince someone that the

local facts of this case support its position. Review by

this Court is not designed for that kind of repetitive

examination of the facts.

1. The Decision Below Is Consistent With This

Court’s Decision In United States v. Montana

Contrary to petitioner’s argument (Pet. 4-8), the deci-

sion below does not conflict with Montana. In order to

overcome the strong presumption against conveyance, a

tribe must show a public exigency justifying the con-

veyance and must show that the parties’ intent to include

the bed “was definitely declared or otherwise made plain

...” 450 U.S. at 552. The courts below scrupulously ob-

served and applied those rules, determining only after a

careful review of the evidence that this case overwhelm-

ingly demonstrates the evistence of facts which this Court

has deemed sufficient to support a finding that a riverbed

was included as part of the reservation.

In Montana, this Court gave Alaska Pacific Fisheries

v. United States, 248 U.S. 78 (1918), as an example of a

set of facts which demonstrated the requisite intent to

include land underlying navigable water 600 feet from

the high tide line, ever though the granting language re-

ferred only to “the body of lands known as Annette is-

lands”, 248 U.S. at 86 (emphasis added). 450 U.S. at 556.

The creation and expansion of the Puyallup Reservation

included all of the factors which were collectively deemed

sufficient to show the required intent in Alaska Pacific

Fisheries: the United States encouraged the Indians to

8

locate on the land; the Indians could not support them-

selves from the uplands alone; the Indians depended on

fish to support themselves; the Indians both sold and

consumed salmon; the purpose of the reservation was

to set aside an area where the Indians could support them-

selves through fishing; the Indians naturally looked upon

the fishing grounds as part of the reservation. 248 U.S.

at 88-90. Moreover, our case has two additional factors

demonstrating the required intent which were not present

in Alaska Pacific Fisheries: explicit discussion by the

negotiators of the importance of the river, and an addi-

tional public exigency — the desire to avoid further war-

fare with the Indians. In short, since this Court considers

Alaska Pacific Fisheries to be a sufficient showing of

the intent to include land underlying navigable water as

part of a reservation, this case a fortiori demonstrates

the required intent.

Far from conflicting with Montana then, this case

fits comfortably into its teaching. Contrary to the Port’s

suggestion (Pet. 5), the Ninth Circuit in this case did not

depart from the burden of proof required by Montana

when it observed that treaties must be interpreted as the

Indians would have understood them. 717 F.2d at 1257.

First, that rule of interpretation is not inconsistent with

Montana: it was applied by this Court in Alaska Pacific

Fisheries, 248 U.S. at 89, the case cited with approval in

Montana. More important, however, that rule did not

determine the outcome here. The Ninth Circuit’s mention

of the rule, and of Choctaw Nation v. Oklahoma, 397 U.S.

620 (1970), appears only in a preliminary discussion of

general legal principles. 717 F.2d at 1257. When it turned

to the facts of this case, Jd. at 1259-1261, the cireuit opinion

emphasized, as this Court required, the strong presump-

9

tion against conveyance (717 F.2d at 1257, quoting from

Montana, 450 U.S. at 552), and that “the mere fact that

the bed of a navigable water lies within the boundaries

{of an Indian reservation] does not make the riverbed

part of the conveyed land .. .” (717 F.2d at 1257, quoting

from Montana, 450 U.S. at 554). Both courts below ap-

plied that very demanding burden of proof and ruled in

favor of the Tribe only after finding that the detailed

evidence “made very plain” the intention to convey the

riverbed and that there was a public exigency justifying

its inclusion. 717 F.2d at 1260. Im short, the rule for

intérpreting treaties was neither necessary to nor the

determining factor in the decision below.

Petitioner speculates that the Unites States would

not have intended to include the riverbed because treaty

language adequately protected the Tribe’s fishing rights.

Apart from the inadequacy of the fishing rights clauses

to provide,all of the legal protection which ownership

provides, petitioner produced no evidence whatsoever, nor

does any exist, that the federal representatives intended

to exclude the bed for that reason, or in fact that they

even thought of the two concepts as related. The Tribe,

by contrast, adduced a wealth of evidence that the United

States did intend to include the bed, for both fishing ani

non-fishing related reasons. It would be a cruel trick to

assume without any supporting evidence, as petitioner

asks us to do, that treaty language designed to protect

the Indians sub silentio overruled the extensive evidence

of intent to include the bed. That result would be par-

ticularly illogical here where the Tribe was more vitally

concerned about its river than perhaps any other tribe

with which the United States dealt. In any case, all of these

matters which reflect on the parties’ intent were fully

10

considered by both courts below and do not merit reex-

amination here.‘

2. The Facts Were Thoroughly Examined By The

Two Courts Below And Do Not Warrant Further Review

Since determination of the parties’ intent, the key is-

sue in this case, is a factual question, United States v.

United States Gypsum Co., 438 U.S. 422, 446 (1978), cer-

tiorari here is even less appropriate in light of “this

Court’s repeated pronouncements that it ‘cannot under-

take to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional

showing of error.’” Berenyi v. Immigration Service, 385

U.S. 630, 635 (1967) (citation omitted). The two-court

rule has been applied in a wide variety of circumstances,

including cases such as this one where the primary factual

issue was the intent of one or more parties. Rogers v.

Lodge, — U.S. —, 102 S.Ct. 3272 (1982). Petitioner has

suggested no such compelling reason for abandoning this

Court’s policy.

3. There Is No Conflict With Any Other Court of

Appeals Decision

The decision below is consistent with the pattern of

cases decided by the lower courts since Montana. The de-

4 Petitioner's reference to this Court's discussion in Mon-

11

cisions have applied the rules announced by this Court

to a variety of factual settings. In those cases where the

requisite showing of intent has been made, the courts have

ruled in favor of the tribes. Confederated Salish 4 Koo-

tenat Tribes v. Namen, 665 F.2d 951 (9th Cir. 1982), cert.

demed, — U.S. —, 103 S.Ct. 314 (1982); United States v.

Washington, 694 F.2d 188 (9th Cir. 1982), cert. denied, 103

S.Ct. 3536 (1983); Muckleshoot Indian Tribe v. Trans-

Canada Enterprises, Ltd., 713 F.2d 455 (9th Cir. 1983) (pe-

tition for cert. pending). Where that intent has not been

adequately demonstrated, the rulings have gone against

the tribes. United States v. Aranson, 696 F.2d 654 (9th

Cir. 1982), cert. denied, — U.S. —, 104 S.Ct. 423 (1983) ;

Wisconsin v. Baker, 698 F.2d 1323 (7th Cir. 1983), cert.

denied, — U.S. —, 103 S.Ct. 3587 (1983). me

The decision below does not conflict with United

States v. Aranson, supra, (Pet. 7), and even if there were

such a conflict, Supreme Cowrt Rule 17.1(a) would not

counsel a grant of certiorari because the decisions come

from the same circuit. Aranson and this case together

indeed demonstrate the Ninth Circuit’s adherence to the

standards set forth in Montana rather than any conflict.

The tribe involved in dAranson was simply not “so de-

pendent on the river that Congress would have intended

to ... convey the river bed.” 696 F.2d at 666. The Aran-

som panel noted, however, that under facts paralleling

those of Alaska Pacific Fisheries, a tribe can prevail in its

claim of ownership and cited the district court’s opinon

12

in this case as an example. Jd. at 665-666. The Court of

Appeals in this case in turn cited Aranson with approval.

717 F.2d at 1261. There is thus no conflict between the

decisions.

4. There Is No Conflict With Any Ruling Of the

Washington Supreme Court Nor Any State Law Issue

Justifying Certification

Petitioner argues that under Washington law the land

exposed by an artificial rechannelization project “accretes

to the adjoining uplands”, relying on one state court of

appeals case, Strom v. Sheldon, 527 P.2d 1382 (Div. 2 1974)

(Pet. 9). The Ninth Circuit correctly held that the state

court of appeals decision dealt with a different factual

situation and a different legal principle than our case

presents. 717 F.2d at 1262-1263. The Washington Su-

preme Court has consistently held that a government re-

channelization project constitutes avulsion which does not

change property boundaries. Ghione v. Washington, 175

P.2d 955 (1946); Hill v. Newell, 149 P. 951 (1915). The

state court of appeals could not and did not purport to

overrule those state supreme court decisions and create

a “radical abandonment of well-settled principles govern-

ing real estate boundaries.” 717 F.2d at 1263.

5. ‘Petitioner’s Remaining Arguments Are Incorrect

And Do Not Merit Review

Argument number 2 (Pet. 9) fails for several reasons.

First, the Puyallup Reservation is a treaty reservation.

Treaty of Medicine Creek, Article 2. (Pet. App. A-2.) The

Executive Order which expanded the Reservation to add

the river and its bed was issued pursuant to Article

6 of the Treaty. (Pet. App. A-3.) Moreover, even if it

were considered an executive order reservation, the

13

Tribe’s title vis-a-vis the petitioner would be just as ef-

fective as a treaty or statutorily-created reservation,

Donnelly v. United States, 228 U.S. 243, 256 (1913); Co-

hen’s Handbook of Federal Indian Law (1982 Ed.), p. 493,

which is in turn “as sacred and securely safeguarded as is

fee simple absolute title.” United States v. Shoshone

Tribe, 304 U.S. 111, 117 (1938). The cases upon which pe-

titioner relies (Hynes v. Grimes Packing Co., 337 U.S. 86

(1949) and Stouge Tribe v. United States, 316 U.S. 317

(1942)) limit only the right of compensation when the

United States rescinds the grant of a reservation. No such

rescission or claim for compensation is involved here, and

even if one were, it would have no bearing on the issue

the petitioner contests: whether the executive order con-

veyed title in 1857.

Neither does petitioner’s reference (Pet. 8) to Puyal-

lup Tribe v. Washington Department of Game, 433 U.S.

165 (1977) (“Puyallup III”) merit this Court’s review.

As the Ninth Circuit noted, the language of that decision

demonstrated this Court’s awareness that riverbed owner-

ship was not an issue and was not decided. 717 F.2d at

1261, n. 10. Further, it was not an issue at any other stage

of that litigation, either in this Court or in the state courts.

The “uncontradicted findings” mentioned in footnote 12,

433 U.S. at 174, referred to the state court decision in

Puyallup I which likewise never addressed the issue of

riverbed ownership 422 P.2d 754, 759 (Wash. 8.Ct. 1967).

The state court was discussing, in the referenced passage,

land sales made by allottees who, as a matter of law, Mon-

tana, supra, 450 U.S. at 551; Shively v. Bowlby, 152 U.S.

1, 48 (1894), as well as under the facts of this Reserva-

tion, did not have the riverbed as part of their allotments

mars

14

and therefore could not have sold it. Moreover, petitioner

conceded in the district court that allotments on the Res-

ervation did not include the riverbed (which of course

means that any sale of an allotment did not include the

bed) and that neither the Tribe nor the United States

has ever conveyed the riverbed. 525 F.Supp. at 76, Con-

clusion of Law 16; Pre-Trial Order, Uncontested Facts

29 and 30.°

As the Ninth Circuit noted, the courts have already

disposed of petitioner’s argument that the Puyallup Tribe

was created following the Indian Reorganization Act. (Pet.

9.) 717 F.2d at 1261, n. 10. In addition, the Tribe could

easily have presented the factual material which would

have verified once again that it has continuously existed

since the Reservation was created. We had no idea that

that would be necessary, however, because the Port did

not raise the argument as a “Disputed Fact,” “Issue of

Fact,” or “Issue of Law” in the pre-trial order.

Argument number 5 (Pet. 10) makes no attempt to

refute the Ninth Circuit’s careful analysis which con-

cluded that joinder of the State of Washington was not

required by F.R.C.P. 19. 717 F. 2d at 1254-1256. It is not

ad 29. .... There is nothing to indicate that either the

United States or the Tribe intended to include the bed in

any allotments. ....

: s

ee ae, le ee ae ae ew one ee ee. 8

15

clear why petitioner seeks that joinder since it would only

gain another adversary. In any case, petitioner does not

suggest, even if its argument were correct, why certiorari

would be appropriate.

4

vw

CONCLUSION

The decision of the two courts below is a factual de-

termination based on the legal standards promulgated by

‘this Court in Montana and Alaska Pacific Fisheries. The

petition for writ of certiorari should be denied.

Respectfully submitted,

Joun Howarp Bei

Attorney for Respondent

Puyallup Indian Tribe

January, 1984