# Amicus Curiae Brief — Washington v. United States, 138 S. Ct. 1832 (2018) (No. 17-269)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 17-269
nc

In the Supreme Court of the Anited States

STATE OF WASHINGTON,

Petitioner,
v.

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 Troy A. EID

National Congress of Counsel of Record
American Indians JENNIFER H. WEDDLE
Embassy of Tribal Na- HARRIET MCCONNELL
tions RETFORD
1516 P Street NW Greenberg Traurig, LLP
Washington, DC 20005 1200 17th Street, Suite
(202) 466-7767 2400
Counsel for National Denver, CO 80202
Congress of American (303) 572-6500
Indians eidt@gtlaw.com

Counsel for Amici Curiae
Additional Counsel Listed on Inside Cover.

ETHEL BRANCH, Attorney
General
PAUL SPRUHAN, Assis-
tant Attorney General
Navajo Nation De-
partment of Justice
P.O. Box 2010
Window Rock, AZ 86515
(928) 871-6210
Counsel for Amicus
Curtae the Navajo Nation

JOHN T. HARRISON, Staff
Attorney,

Tribal Legal Depart-
ment
Confederated Salish and
Kootenai Tribes of the
Flathead Reservation
P.O. Box 278
Pablo, Montana 59855-
0278
(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

TABLE OF CONTENTS

OR I CTE TD ieniscocusntnininitiesinnianicaiininasions i
OREN GO ART EIPUEE BE iniitciticincrsssnticsneccctvseviasint iii
INTERESTS OF THE AMICI CURIAE ..................... ]
SUMMARY OF THE ARGUMENT .......00.........cccceeeees 3
ET, chitin ninhiiniinsedcnniiicbiitsininiiianienitevinasesnenseds 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

A. Tribes must rely on the United

States, as trustee, to protect their

I sinctsttekibitdenndenlansimiccenegengibianiadinmencecese 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

REG ctiieiteeritecninncnntsimenns 13

Il. THE AFFIRMATIVE DEFENSE OF
LACHES WAS NEVER RAISED
BELOW AND IS NOT SUPPORTED
BY FINDINGS OF FACT IN THE
SP pnlicinsconstisvinnsnsnsicisinininebinautemiasiciarincens 19

CONCLUSION

il

SEE EERE EOE EEE EERE OH

ill

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,
i I adc steictbenctnnindavncaetdovnlenscinineceass 17

Cayuga Indian Nation of New York, by
Patterson v. Cuomo,
565 F. Supp. 1297 (N.D.N.Y. 1983) ........ccc0000-. 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,
I I i sinenllas alban 3, 12

City of Sherrili v. Oneida Indian Nation
of N.Y.,
es eC cvs docecrcccsuéenstcncocsesosesncanas passim

Cramer v. United States,
Ba ic cicccnntdacensasssveimacevanenctenses 5, 14

Cty. of Yakima v. Confederated Tribes &
Bands of Yakima Indian Nation,
a I denna nicascaniicecaneiacsasesdeossoovesio’ 13

Heckler v. Cmty. Health Servs. of
Crawford Cty., Inc.,
re Sy ie a ccrintiinsetisedecetnescestonss 4, 7, 13, 15

iv

Idaho v. Coeur d’Alene Tribe of Idaho,
ee Eade ee Ge Rictenvcevcinnntessaanianiineuuaae 8

Massachusetts v. New York,
op Lis G |, RES RR reper Se SMP 17

Menominee Tribe of Indians v. United
States,
SE TET. GG Coe er seventies teiteninatcsactetianicntademenmiens 13

Minnesota v. Mille Lacs Band of
Chippewa Indians,
gk res perenne eee 3, 5, 19

Montana v. Blackfeet Tribe,
SE Cs Fee i istsercinscinunsacciindiencasinesionan 13

Nevada v. United States,
SB Us FO a icectcvnnescavesisctnscmntsttietanmanbions 11

Ohio v. Kentucky,
BOD TB GOe Ca i vtttcndcevbisscasnesssedistnselsammaaiptaas 17

Oneida County v. Oneida Indian
Nation,
SF0 i Be Ce catintistsziecinpnritcnsatinenmatd 12

Oneida Indian Nation of New York v.
State of N_Y.,
eA Bf ff Ab! nen 7

Pan-—Am. Petroleum & Transp. Co. v.
United States,
SEO Be, Ge Ce Pik ncitasscvinbcseadsssbiakinindacnsmduna 13

Quapaw Tribe of Oklahoma v. Blue Tee
Corp.,
653 F. Supp. 2d 1166 (N.D. Okla.

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

SE NE ND CID ccrcecsosscasesessccsvessesesccoss

Saginaw Chippewa Indian Tribe of
Michigan v. Granholm,
No. 05-10296-BC, 2008 WL 4808823

(E.D. Mich. Oct. 22, 2008)...................0000.

Seminole Nation v. United States,

SE CETTE eantiicnisceneanencseccosceccecceses

U.S. on Behalf of Cheyenne River Sioux
Tribe v. South Dakota,

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

United States v. Ahtanum Irrigation
Dist

236 F.2d 321 (9th Cir. 1956) .o.c.-ccccccssssssee

United States v. Jicarilla Apache
Nation,

TTI SINE Diantindusncenncstresenssessccceses

United States v. Kagama,

a EP IEEE cnsnkcncesesessecscncsacesscceses

United States v. Washington,

157 F.3d 630 (9th Cir. 1998).........0...........

Utah Power & Light Co. v. United
States

243 U.S. 389 (1917) eeccccccescscssssecscscccsssssesce

Ute /ndian Tribe of the Uintah v. Myton,

635 F.3d 1255 (10th Cir. 2016).................

White Mountain Apache Tribe v.
Bracker

448 US. Ee aricnicenunenvecstessesncscencsees

vi

State Cases

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

Matter of Hamptons Hosp. & Med. Ctr.
v. Moore,
yg FR FF lk Se | 15

Inhabitants of Stoughton v. Baker,
SR a I rites cecinttensenienrssmnscrtineninetinesiianes 22

State v. O’Connell,
523 P.2d 872, supplemented, 528

I SI Clacicnerirsttitttnsdinitennertenientisimnpate 15
Federal Statutes
Clean Water Act, 33 U.S.C. §1251 et seq.

ieee iaccinisliciieseedecmeataiiiaetmnmaismtvapiinidainessenaes 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

i icitcriccecseticsviisschacinasirsictnnaiahricnsitainiiatinidisiianbinisrintaneniinipesatincied 2
Natural Gas Act, 15 U.S.C. § 717f......................00000 12
Treaty of Hellgate, July 16, 1855, 12

a REI in SPP SER oe RARE ens Goer 5 = 2
Treaty of Medicine Creek, U.S.-

Nisqually, art. III, Dec. 26, 1854, 10

Bs Sti wcinsetshesianssieibiiciie bieinsunesiesuiidicesinciinsinaaimiaidoiadibsiad 3

Major Crimes Act, 48th Cong., 2d Sess.,
Te sce aatctedncentresicancetenitincteats 4

Regulations
SI Ut I i cecncicchdqnmiecmneaipndennaipiacbemmetanstnediontonianees 10

Other Authorities

Clinton & Hotopp, Judicial Enforcement
of the Federal Restraints on Aliena-
tion of Indian Land: The Origins of
the Eastern Land Claims, 31 ME. L.
RN Re en ee 7

Kathyrn Fort, The New Laches:
Creating Title Where None Existed,
16 GEO. MASON L. REV. 357 (2009)...................... 16

]

INTERESTS OF THE AMICI CURIAE'

Founded in 1944, the National Congress of Amer-
ican 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 individ-
uals. 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 self-
government, 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 fed-
erally 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,

' 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.

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 Unit-
ed 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 Reserva-
tion, located in northwest Montana.

Respondent Tribes in this case have been con-
fronted with an aggressive invocation of equitable
principles aimed at extinguishing their fundamental
rights — here the notion that mid-level federal bu-
reaucrats 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-ranring assertions that
virtually any form of tribal rigat 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

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 fo-
cused on the proper interpretation of the Treaty of
Medicine Creek, U.S.-Nisqually, art. Ill, 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 liti-
gant 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 obli-
gation 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

governments. See, e.g., United States v. Kagama,
118 U.S. 375, 384 (1886) (upholding Congress’ asser-
tion of federal criminal jurisdiction under the Major
Crimes Act, 48th Cong., 2d Sess., 16 Cong. Rec. 934
(1885)). Tribal-state relations have improved im-
measurably 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 equita-
ble 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 prom-
ulgating nationwide federal regulations and guid-
ance on road construction without reference to local

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 conclu-
sion, 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 deter-
mining 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 Sher-
rill. 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

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,
"4 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

* City of Sherrill applied laches, acquiescence and impossibility.
By contrast, the equitable doctrines raised by the State in this
case are waiver and estoppel.

against the United States on the basis of ordinary
governmental activity by federal officials, see Heck-
ler, 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 EN-
JOYS ALL THE ORDINARY PROTECTIONS
OF THE GOVERNMENT ACTING IN THE
PUBLIC INTEREST, AND CITY OF SHER-
RILL 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 Re-
straints 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

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 architec-
ture: Tribes may not sue state governments directly
under the Eleventh Amendment without states’
consent. Jdaho v. Coeur d'Alene Tribe of Idaho, 521
U.S. 261, 268-69 (1997). Accordingly, tribal govern-
ments must often rely on the United States to bring
suit to protect their rights against state encroach-
ment. 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). *

The State suggests that whenever the federal
government “partners” with a state, or regulates or

5 Prospective injunctive under ex parte Young was not available
in those cases because the relief sought included reimburse-
ment of taxes paid. See Cheyenne River, 105 F.3d at 1170.

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.‘
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.

From a tribal perspective, carving out a categori-
cal 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 com-
pete with a vast array of non-Indian interests when
it comes to accessing the federal government’s litiga-

‘ 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 conse-
quences, 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 ambigu-
ous equitable defense to the equation would further
degrade the federal government's ability to protect
tribal rights.

The State characterizes the activities of the fed-
eral government as “encouraging Washington's
highway construction, directing the State’s culvert
design, and issuing permits for the culverts.” Open-
ing 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 po-
sition that by merely encouraging highway construc-
tion, 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 Wash-
ington 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.” Jd. at 23-24.

Essentially, federal officials issued permits pur-
suant to two federal statutes and their accompanying
regulations. This permitting process is no guaran-
tee, or even an indicator, of compliance with any

1]

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 com-
plied 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, partic-
ularly 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 rela-
tionships. 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 analo-
gy of a faithless private fiduciary cannot be control-
ling 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 Con-
gress and the executive branch. Even though such
cor‘licts 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 govern-
ments, 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 allega-
tions 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 construc-
tion 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 sover-
eignty 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 sug-
gests 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 pur-
pose of its laws or to thwart public policy.” Pan—Am.
Petroleuam & 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. Heck-
ler, 467 U.S. at 63. “This is consistent with the

14

general rule that those who deal with the Govern-
ment are expected to know the law and may not rely
on the conduct of Government agents contrary to
law.” Jd. Or as Justice Holmes observed, “[mjen
must turn square corners when they deal with the
Government.” Jd. (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 sover-
eign 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 tradi-
tionally held that equitable defenses are not availa-
ble 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 un-
der 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 con-
travention 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. /d. at 211. The
Court held that “[t]he wrongs of which OIN com-
plains 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 long-
dormant claims for equitable relief.” Jd. at 216-17.
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 well-
being,” thus providing an alternative avenue of
relief. Id. at 220.

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. /d. at 218 (“As between States,
long acquiescence may have controlling effect on the
exercise of dominion and sovereignty over territo-

®° 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 govern-
ments over those of tribes. See Kathyrn Fort, The A. » 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 defend-
ants 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 any-
where 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
“[bjecause 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 govern-
ment first tried to assert jurisdiction, and that it had
subsequently won two separate judgments regarding
lands in Myton. /d.° See also, Quapaw Tribe of

® 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 Okla-
homa 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’ incremen-
tal 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. /d. at 203.

Il. The affirmative defense of laches was never
raised below and is not supported by find-
ings 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 commenc-
ing 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 appel-
late 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
bane suggests that Respondents and the United

20

States waited more than 100 years to discover that
barrier culverts are a violation of the Stevens Trea-
ties: “Nonetheless, it apparently just occurred to the
Tribes, the United States, and our court that in order
to fulfill nineteenth century federal treaty obliga-
tions, 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.” Jd. 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 constitut-
ing 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.” /d. 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 viola-
tions. Between 2009 and 2011, the State completed
24 barrier culvert projects. Jd. at 162a, { 28. At this
rate it would take a century to replace all the barrier
culverts in the inventory. /d. at 163a. During the
same period, the total number of barrier culverts
increased from 1,158 to 1,236. Jd. 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 sum-
mary judgment, and specifically noted that the
challenged blockages included barrier culverts. /d.
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 viola-
tions: 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. /nhabitants 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.” Jd. 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.” Jd. “For no laches can be
imputed to the government, and against it no time
runs so as to bar its rights.” Jd. The Stevens Trea-
ties may be old but the rights they solemnly memori-
alized 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0776%3A22. Public record. Not legal advice.