Opposition Brief — Makah Tribe v. Washington
Supreme Court brief1988
Ask Donna
What actually matters in this document.
Text
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1987
MaAKAH TRIBE, et al.,
Petitioners,
Vv.
STATE OF WASHINGTON, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE
NINTH CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
KENNETH O. EIKENBERRY
Attorney General
Davip E. WaLsH
Deputy Attorney General
TimoTHy R. MALONE
Assistant Attorney General
(Counsel of Record)
Attorneys for Respondents
State of Washington, et al.
Office of the Attorney General
7th Floor
Highways-Licenses Building
Olympia, Washington 98504
Telephone: (206) 753-6245
STATE PRINTING PLANT =<@@B3> 3 OLYMPIA, WASHINGTON
No 87-1390 JOSEPH F. SPANIGL, JR.
- i
QUESTION PRESENTED
Are attorneys’ fees available under 42 U.S.C. § 1988
in litigation between an Indian Tribe and a State when
the purposes and effects of the litigation were:
(1) To determine the nature and extent of a tribal
right, established by federal treaty, to a natural resource;
(2) To establish an allocation of the natural resource
between the competing claims of Tribes and non-Indian
users;
(3) To determine the extent of the limitations on
State regulatory power over the natural resource necessary
to accommodate the treaty right.
TABLE OF CONTENTS
Page
Oe OR ko AS YO 0 i
aa sa csipenasiosinbacuanesiovnsianeen 3
A. The Attorneys’ Fee Request.....................0. 4
B. The Underlying Proceeding ......................0.. 6
REASONS WHY THE PETITION SHOULD
aa koe Snksainckisncuisanshteiuidnecssanednages 9
A. Introduction And Summary ..................:000008 9
B. The Ninth Circuit Opinion Did Not Create
Any New Exception To The Reach Of 42
ac essccecanscsceseomeeensauees 12
i. The Court of Appeals Did Not Establish A
“De Facto” Good Faith Immunity For Gov-
ernment Officials Regarding Awards Of At-
SII sinik ita ckccdaacinbbsaiaensbsncsnvedeionssexentes 17
D. The Holding Of The Lower Court That
The Tribes’ Fourteenth Amendment
Claims Provide No Basis For An Attorneys’
PPO PEE TR SOG occ csccacccennataccecsdsccasncees 18
Tee add cusidawastniionsieeanane 20
iv
TABLE OF AUTHORITIES
FEDERAL CASES
Page
Arizona v. California, 373 U.S. 546 (1963)..... 9, 10, 13
Board of Education v. Pico, 457 U.S. 853 (1982) = 14, 15
Boatowners and Tenants Assn. v. Port of
Seattle, 716 F.2d 669 (9th Cir. 1983) 16
Chapman v. Houston Welfare Rights Organiza-
Caen. | RE TF a oD viskkieechacndeciesictnlioanins 1]
Consolidated Freightways v. Kassel, 730 F.2d
1139 (8th Cir. 1984) cert. den., 469 U.S. 834
IID viseccisscduscecsicaranalssiuceccnscssisathatnalieaeendiasenebaiioes 11, 17
Douglas v. Seacoast Products, 431 U.S. 265
ETD acexacadtniachastclaca caput dh kctncnmeaaasataioaaaetean 10, 11, 16
Hagans v. Lavine, 415 U.S. 528 (1974)... 12, 19, 20
Maher v. Gagne, 448 U.S. 122 (1980)........0..... 12, 19, 20
Maine v. Thiboutot, 448 U.S. 1 (1980)............ 11, 13, 15
Middlesex County Sewerage Authority v. Na-
tional Sea Clammers Assn., 4538 U.S. 1
CSU iis Lcichiustsdcod cok shisiensaninekacseneseniiubiabealatasedanmncoahaid 15
Montana v. United States, 450 U.S. 544 (1981) ~=10, 16
Page
Oneida Indian Nation v. Oneida County, 414
RF SE NIIIED wa Liskenactecna tanadtasdgenonrtaccnoeatenns 16
Pennhurst State School and Hospital ov.
Halderman, 451 U.S. 1 (1981).................... 15
Roe v. Wade, 410 U.S. 113 (1973) .................... 13
State of Washington v. Washington State Com-
mercial Passenger Fishing Vessel Associa-
Sis, S45 UF. GO CRG TOP cssccvnsncaccssesciccecesses. passim
Tennessee v. Garner, 471 U.S. 1 (1985) .......... 14
United States v. Washington .......cccccccccccssecceeeees passim
White Mountain Apache Tribe v. Williams, 810
F.2d 844 (9th Cir. 1987) cert. den.., US.
eS) ey PRR AV OM NMC NT 11, 14, 17
Winters v. United States, 207 U.S. 564 (1908) 9
Wright v. Roanoke Redevelopment and Hous-
ing Authority, US. , 98 L. Ed. 2a
Fen CR iisicesiedidenncitnnabodeontentdniattaieateaae 15
Youngberg v. Romeo, 457 U.S. 307 (1982) ...... 14, 15
vl
FEDERAL STATUTES
Page
SUE TELTImENtad Uh. UBT centakascnnhennucccneneunensenssisntontpumesdanedats 12
eT CREA, TE UD cadacechesenedceechascenenctauecinouadananmiasinal ()
- ie td RR BS) sb: RRR aenanceuuernuenn neesheo 7
Be Sr, hs Rie i céntincsiciaiadstnsiuiendeiasicegdaamncnentions 5, 7, 9, 20
gL a Gl Sn SONI aN nt 2 7, 12, 20
ee Ee. Oe ie dckensacsccnsnceciscnstusieieicienenaeniesiennsians passim
reas We i tacickstinnacsaikstnneveiinnaaeinaiummeemanats 4, 5, 12
UNITED STATES CONSTITUTION
U.S. Constitution Fourteenth Amendment....... passim
SUPREME COURT
OF
UNITED STATES
OCTOBER TERM, 1987
MacKAH TRIBE, et al.,
Petitioners.
Ve
STATE OF WASHINGTON, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE
NINTH CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
The respondents, State of Washington, et al., respect-
fully request that this Court deny the petition for a writ of
certiorari, seeking review of the decision of the Court of
Appeals for the Ninth Circuit entered in this case on
March 31, 1987.
STATEMENT
The principal question raised by the Petition for
Certiorari is whether a Tribe may recover attorneys’ fees,
under 42 U.S.C. § 1988 in a lawsuit between sovereign or
quasi-sovereign entities which sought interpretation of
treaties and an allocation of a natural resource, with
consequent preemption of state regulatory authority to
eeenennmenenniie
determine that allocation. The court below, relying on this
Court's opinion in State of Washington v. Washington
State Commercial Passenger Vessel Association, 443 U.S.
658 (1979) determined that the purpose of the proceedings
in United States v. Washington’ was to determine the
character, nature, and extent of the tribal treaty right to
take fish. The court below concluded that this treaty in-
terpretation proceeding did not qualify as a “claim arising
under 42 U.S.C. § 1983” and, accordingly, did not support
an award of attorneys’ fees under 42 U.S.C. § 1988. Pet.
App. A 10. The Court further determined that there were
no substantial, Fourteenth Amendment-based due process
or equal protection claims in the proceedings sufficient to
provide an independent basis for an award of attorney
fees. Pet. App. A 10-12.
Petitioners challenge both the court’s characteriza-
tion of the underlying case and the conclusion in this
particular proceeding that 42 U.S.C. § 1988 is not applica-
ble.
Petitioners statement of facts is both argumentative
and incomplete. Petitioners focus almost exclusively on a
limited number of conclusions of the district court from
the initial trial, attempting to recharacterize the entire
case with the § 1983 label, a label that was virtually
absent from the case until the renewed motion for attor-
neys’ fees in 1980. The following statement is submitted,
therefore, to put the attorneys’ fee proceeding the correct
chronological perspective, and to provide additional infor-
mation regarding the underlying proceeding itself.
A. The Attorneys’ Fee Request.
This attorneys’ fee proceeding was initiated on Octo-
ber 30, 1980, with the filing of a “renewed motion” for
attorneys’ fees. The request for attorneys’ fees was based
We shall refer to the entirety of the proceedings, which began in
1970 with the filing of a complaint in district court, and which culmi-
nated in Passenger Vessel, by the name of the original filing, L’nited
States v. Washington.
ur
exclusively on 42 U.S.C. § 1988 which had been enacted
over four years earlier on October 19, 1976. This renewed
motion was the first time that 42 U.S.C. § 1988 had been
mentioned in the case. It was also the first time that 42
U.S.C. § 1983 had been mentioned in the case, save for a
very limited reference in only two of the numerous com-
plaints filed by plaintiff-intervenor Tribes in 1971.
The Petitioners requested attorneys’ fees for virtually
all time spent in L/nited States v. Washington, from the
date of the filing of the initial complaint by plaintiff,
United States, on September 18, 1970, through the date of
the filing of the renewed motion in October 1980. The
request included all time spent in the preparation and
trial before the district court, culminating in the memo-
randum opinion at 384 F. Supp. 312 (W.D. WA 1974)
along with the appeal to the Ninth Circuit, 520 F.2d 676
(June 4, 1975), and the initial Petition for Certiorari to
this Court. See 423 U.S. 1086, rehearing denied 424 U.S.
978 (1976). Although these proceedings were concluded
-prior to the enactment of § 1988 in 1976, the Tribes
sought attorneys’ fees for them on the basis that other
proceedings in United States v. Washhington were pend-
ing at the time of the enactment of § 1988.
The fee request included virtually all time spend in a
second major segment of the case, which consisted of a
series of separate proceedings to resolve disputes involving
the application of the treaty allocation right, as deter-
mined in the first segment just described and to establish
the detailed conditions and limits on state enforcement
power over the actual management of the resource. This
became very complicated because of the complexity of
The principal jurisdictional statute in the complaint filed by
plaintiff, United States, was 28 U.S.C. § 1345; CR 1, App. A 1; for
Tribal Intervenors the principal statute was 28 U.S.C. § 1362. The only
two complaints referring to 42 U.S.C. § 1983 were the complaints in in-
tervention filed by two of the smallest Tribes, i.e., by the Hoh Tribe (7-
23-71) CR 77 (App. Al6) and the Upper Skagit Tribe, (10-26-71) CR
147. (App. A24)
technical fisheries management questions and the impact
on the various fishing industries that had developed over
the years. This segment also included proceedings leading
up to and including this Court’s opinion in Washington |
Washington State Commercial Passenger Fishing Vessel
Association, 443 U.S. 658 (1979) (hereafter referred to as
Passenger Vessel).
On May 8, 1981, Judge Walter Craig ruled that the
Tribes alleged and ultimately prevailed upon the cause of
action under 42 U.S.C. § 1983, and determined that a fee
award under § 1988 was appropriate. 627 F. Supp. 1426
(W.D. WA 1981). Judge Craig determined, however, that
attorneys’ fees should not be awarded in proceedings
which had arisen between the date of the mandate from
this Court and the filing of the renewed motion for fees.
The court concluded that neither party prevailed in pro-
ceedings during that period. 627 F. Supp. 1427.’ Thus the
court granted attorneys’ fees only for periods preceding
this Court’s decision in Passenger Vessel. The quantifica-
tion of the fee award was referred to Special Master. The
district court’s order awarding attorneys’ fees was entered
on April 30, 1985, and the Ninth Circuit reversed on an
opinion filed March 31, 1987, 813 F.2d 1020 (9th Cir.
1987).
B. The Underlying Proceeding.
We would make three points about the underlying
proceedings.
Issues considered included questions of conservation closures for
treaty fishermen, seasonal limitations for Indians and non-Indian
fishermen, resolution of inter-tribal disputes, enforcement actions
against Indian and non-Indian fishermen, the determination of treats
status for some groups of Indians which were non-federally recognized.
the validity of restrictions upon resale of boats which had been pur
chased from licensed fishermen pursuant to a state buy-back program,
and a myriad of separate other proceedings. These separate proceed
ings, occurring from 1974 through 1979, (and thus overlapping some-
what the first segment) involved various groupings and alignments of
parties. At times Tribes opposed each other; at other times they jointly
opposed the United States or the State.
See Petition for Certiorari App. B. Judge Craig also rejected the
applicability of any “bad faith” rationale for an award of attorney fees
First, federal court jurisdiction was never an issue.
The principal parties were limited to sovereign and quasi
sovereign entities, and jurisdiction was premised on 28
U.S.C. § 1345 (for the United States) and § 1362 (for the
Tribes). Because these jurisdictional statutes were
squarely applicable to the type of proceeding sought to be
initiated, the State did not contest jurisdiction. Since the
district court clearly had jurisdiction over both the parties
and the subject matter, it was not necessary at that time
to determine whether the court also had jurisdiction under
28 U.S.C. § 1343(3), which was referred to in only three of
the tribal complaints.
Second, the goal of the litigation was to obtain a
construction of the treaty fishing clause, an allocation of
the resource in accordance with that construction, and the
preemption of the state’s regulatory authority over the
resource in order to implement the allocation.’ The basic
problem confronting the parties and the courts through-
out these proceedings is that the treaty language affords
little, if any, guidance as to how the specific allocation
should be made, and _ precisely how far and in what
respects the state regulatory authority should be preempt
| i f i t 1 tne rve
1 ] rida nerme mphna i Vas a ise dea
\ ere t Lies x \ triba resp i M I I
rvent n dated Apr 176, (CR ed
| i W yr p a | i
hermen ‘ ens he ( 4 he
r any groip, a ent holder
tribe to seek redress in this court. 7he
tons } ; ’ hy ;
This Court }
F } in interpens b nee Ne
ied ornon triba entities Deer
pate. (Emphasis supplied.)
Petitioner attempts to twist our failure to contest jurisdiction
into a state concession that the district court had jurisdiction under §
1343(3). The argument is without merit. There was no need to take on
that issue at that time, and it has become important solely in the
context of an attempt to recharacterize the case as a § 1983 action
ed. The root of this problem was identified by the court in
Passenger Vessel:
In sum, it is fair to conclude that when the treaties
were negotiated, neither party realized or intended
that their agreement would determine whether, and if
so how, a resource that had always been thought
inexhaustible would be allocated between the native
Indians and the incoming settlers when it later be-
came scarce” * * *
Unfortunately, that resource has now become scarce,
and the meaning of the Indians’ treaty right to take fish
has accordingly become critical.
443 U.S. at 669.
Four different interpretations were advanced by the
parties. The United States, the original plaintiff, ulti-
mately sought a 50/50 allocation of the anadromous fish-
ery resource between the State and the Tribes. The
Tribes, however, sought an almost exclusive allocation of
fishery along with a complete preemption of state regula-
tion. The State Departments of Fisheries and Game each
offered a still different interpretation. A major task of the
courts was to select one of the four.’
Third, after the case was filed, 42 U.S.C. § 1983 did
not play any direct or even indirect part in the proceed-
ings, until the renewed motion for attorneys’ fees filed in
1980 . There is no mention of § 1983 in any of the court
opinions or in documents filed by any of the parties, other
than the two complaints previously noted. (A third com-
See complaint filed by plaintiff, United States, prayer for relief
1 (b)(ili) regarding an allocation of resource App. Al0, 11 and 2
through 5 relating to preemption of state authority. CR 1. See also
prayer for relief in tribal intervenor complaints which mirror plaintiff
United States’ position. App. Al2-27; Yakima Tribe CR 75, App. Ai2-
14; Hoh Tribe CR 77, App A17-18; Quileute Tribe CR 82, App. A20-23;
(Complaints filed by Quinnault Tribe CR 85, Makah Tribe CR 84,
Lummi Tribe CR 83, similar to Quileute Tribal Complaint); Upper
Skagit CR 147, App. A25-27; (Complaints filed by Muckleshoot Tribe
CR 81A and Puyallup Tribe CR 568 similar)
“Passenger Vessel, 443 U.S. at 670-671.
plaint did mention § 1343(3) alone.) There is no reference
at all to § 1983 in the exhaustive 254-page brief filed in
this Court by the present petitioners in Passenger Vessel
Instead, the rights referred to were characterized as
property-type rights, with analogies to reserved water
rights found in Arizona v. California, 373 U.S. 546 (1963)
and Winters v. United States, 207 U.S. 564 (1908). At one
point in petitioners’ brief before this Court in Passenger
Vessel, the case was referred to as an in rem proceeding.
Similarly when discussing the issue of limitations on state
regulatory power, no reference to the Fourteenth Amend-
ment ever appeared; for the issue was always character-
ized in terms of preemption of state authority. In short,
the nature of the case, positions of the parties, and issues
addressed were dramatically different from a typical civil
rights action and from the characteriation the petitioners
would now give these proceedings.
REASONS WHY THE PETITION SHOULD BE
DENIED
A. Introduction and Summary.
The petitioners would have this Court believe that
the decision below represents a major departure from the
‘The Department of Fisheries proposed a fair share of the re-
source measured at 30 percent, and the Department of Game argued an
access right only rather than an allocation right. This Court’s summari-
zation of tribal position was consistent with their brief in Passenger
Vessel, p. 56, CR 7973:
The District Court saw its task to be to devise a
remedy which would accommodate the rights of the parties
within the limitation of conservation requirements. The
Department of Game urged that no harvest allocation be
made. The Department of Fisheries, as previously men-
tioned, asked that the tribes be allocated a fixed percent-
age of the harvest. The tribes, on the other hand, argued
that the treaties were intended to preserve the Indian
livelihood in an amount sufficient to satisfy their needs, an
analogy to reserved water rights in Arizona v. California,
373 U.S. 546 (1963).
See excerpts from brief CR 7973 p. 199 (App. B9).
10
settled law regarding the scope of 42 U.S.C. § 1983 and the
availability of attorneys’ fees under 42 U.S.C. § 1988. It is
the position urged by the petitioners, however, which
would constitute such a departure; for the decision of the
court below is consistent with the decisions of this Court
and the other courts of appeal.
The major error in the position of the petitioners is
that they completely overlook—and would have this Court
overlook—the principal purpose and effect of the underly-
ing litigation, which culminated in this Court’s decision in
Passenger Vessel, 443 U.S. 658 (1979). That litigation,
which was commenced by the United States on behalf of
the petitioners, and not by the petitioners themselves, was
brought in order to determine the nature and extent of a
tribal right, established by a federal treaty, to a natural
resource, to determine an allocation of that resource be-
tween the competing claims of the Tribes and non-Indian
users, and to establish the extent to which state regulatory
power, as embodied in specific statutes and administrative
regulations, should be preempted in order to accommo-
date the treaty right and the judicially established alloca-
tions.
If the position of the petitioners is correct, every
controversy between a Tribe and a State over the question -
of whether a treaty impliedly grants rights to a natural
resource would automatically become a § 1983 case. This
would be true whether the natural resource involved is
land under navigable waters, as in Montana v. United
States, 450 U.S. 544 (1981), or water itself, as in Winters
v. United States, 207 U.S. 564 (1908) and Arizona v. Cali-
fornia, 373 U.S. 546 (1963), or a fishery resource, as in this
case.
Further, when a fishery resource is involved, the
controversy is essentially not over ownership of that re-
source, as it would be in the base of a riverbed or tide-
lands, but rather becomes a controversy over the scope of
regulatory power. See Douglas v. Seacoast Products, 431
U.S. 265, 284 (1977), which rejected the concept of prop-
11
erty ownership by anyone in a fishery resource, and iden-
tified the governmental interest in such a resource as
regulatory only. Viewed in the light of Douglas, the con-
troversy involved here sifts down to one over jurisdiction,
and the central question becomes the extent to which an
otherwise unobjectionable state regulatory power becomes
preempted under the Supremacy Clause by reason of a
conflicting federal right. See Consolidated Freightways v.
Kassel, 730 F.2d 1139 (8th Cir. 1984) cert. denied. 469
U.S. 834 (1984) and White Mountain Apache Tribe v.
Williams, 810 F.2d 844 (9th Cir. 1987), cert. denied.
US. 105 S.Ct. 940 (1987), holding that such contro-
versies do not fall within § 1983 and thus do not give rise
to an attorneys’ fee award. That is, this controversy in-
volves not just an allocation of the fisheries resource, but
also the allocation of power among sovereigns or quasi-
sovereigns to determine that allocation of the resource.
Like the federal rights involved in Consolidated
Freightways and White Mountain Apache, the federal
right involved here is not found in any language addressed
to the states. The treaty provision does not in any way
purport to limit state power over individuals, as do, for
example, the provisions of the Fourteenth Amendment,
which are involved in the typical § 1983 case; nor does the
treaty provision purport to place upon the State any
positive obligation to individuals, as did, for example, the
federal statutory provisions involved in Maine ov.
Thiboutot, 448 U.S. 1 (1980).
As pointed out by the court in Consolidated
Freightways:
Section 1983 was enacted for the purpose of “ens-
uring a right of action to enforce the protections of
the Fourteenth Amendment and the federal laws
enacted pursuant thereto.”
Consolidated Freightways 730 F.2d at 1146 [quoting from
Chapman v. Houston Welfare Rights Organization, 441
U.S. 600, at 615 (1979)]
To be sure, Thiboutot extended the scope of § 1983
beyond that suggested by this quotation to include other
12
federal statutory commands to a state, e.g., commmands
to afford certain benefits under the Social Security Act.
But no similar command is involved ‘here.
The petitioners are thus attempting to extend the
parameters of §§ 1983 and 1988 well beyond those estab-
lished by this Court and the lower courts. Nor does their
reliance upon their supposed constitutional claims bring
them within those parameters. Unlike the constitutional
claims involved in Maher v. Gagne, 448 U.S. 122 (1980)
and Hagans v. Lavine, 415 U.S. 528 (1974), the constitu-
tional claim involved here is completely dependent upon
the existence and extent to the treaty right. In the absence
of the treaty right, the constitutional claim simply disap-
pears. And ieliance upon the constitutional claim to gar-
ner attorneys’ fees is just so much bootstrapping.
The major issue involved here, 1.e.., the applicability
of § 1983, would take on much greater importance and
might well, we agree, merit review by this Court, if the
ability of Tribes to have a federal court hear their treaty-
based claims at all were involved. But various other stat-
utes, such as 28 U.S.C. §§ 1331 and 1362, keep the doors
open for such tribal claims. And the belated efforts of the
Tribes to recharacterize this case and thus win attorneys’
fees do not merit review. The decision below ties up a last
loose end in a proceeding that has gone on for almost 18
years. There is no good reason to untie it.
B. The Ninth Circuit Opinion Did Not Create
Any New Exception To The Reach of 42 U.S.C. §
1983.
Petitioners’ principal argument is that the opinion
below substantially narrows the scope of § 1983 by creat-
ing a major new exception to the types of rights that are
enforceable under that statute. Petitioners read the opin-
ion as creating a new “known and well-delineated” test for
both Fourteenth Amendment rights and federal statutory
rights. Petitioners also read the opinion as shutting the
door to virtually any enforcement of treaty rights under §
e
13
1983. Neither reading is correct, for both are entirely too
broad. |
What the decision below does hold, however, and
what the petitioners fail to recognize, is that § 1983 does
not apply to litigation of the unique character involved
here. Indeed, the Tribes’ original characterization of this
litigation, as being akin to the water rights dispute in-
volved in Arizona v. California, 373 U.S. 546 (1963) is
much nearer the mark. See p. 9, supra, note 9 (quoting
from Tribes’ brief in Passenger Vessel). Just as in Arizona
v. California, we here have litigation over a natural re-
source, to determine how that resource should be allocated
between sovereign or quasi-sovereign entities. And as in
Arizona we have here the issue of the extent to which
state authority over that resource may have been pre-
empted by federal law, as well as the issue of the extent to
which a treaty or executive order might allocate part of
the resource to an Indian Tribe.
All of these factors, common to both this litigation
and that in Arizona, make this litigation fundamentally
different in character from the types of claims that fall
within § 1983.
Thus, the decision below was limited in application
and scope to the unique nature of the underlying case.
The petitioners however state:
To illustrate our point: before this Court’s decision in Roe v.
Wade, 410 U.S. 113 (1973) there was no “known and well-delineated”
right under the Fourteenth Amendment to have an abortion; yet the
constitutional claim successfully asserted in Roe was, we would agree,
within the scope of § 1983 and § 1988 would be applicable. The
petitioners, however, would read the decision below as holding other-
wise. To take another example, assume that provision of the Social
Security Act imposed upon the states in obligation to make payments
in some amount to eligible recipients, but the criteria for determining
precisely the amounts of the payments and the qualifications for
eligibility were murky, and required judicial clarification. Litigation by
an individual recipient brought to determine those amounts and these
qualifications would, after Thiboutot, fall within the scope of § 1983.
And contrary to the position of the petitioners, the-decision below does
not suggest otherwise.
14
The opinion of the Court of Appeals contains no
suggestion that its “known and well-delineated” ex-
ception does not apply to statutory and constitu-
tional rights* * * *
Pet. 44.
To be sure, there is no explicit statement in the
opinion to that effect. But the reason for this is obvious.
The court felt none was necessary, as a careful reading of
the opinion will show.
The opinion was not structured or intended to be
applicable to mainstream § 1983 cases dealing with Four-
teenth Amendment-based or specific federal statutorily
created rights.’ Further the text of the opinion itself was
not phrased in a manner that would suggest the broad
impact claimed. The court carefully described the nature
of the proceeding in the background portion of the opin-
ion in order to preclude the type of expansive reading
claimed by petitioners.
Nor has the opinion been read or applied by anyone
as creating the type of broad impact now suggested by
petitioners. Essentially the same argument as made now
was made in the petition for rehearing, with the sugges-
tion for rehearing en banc, in the court below. In obvious
rejection of that argument, not a single judge voted for
rehearing. Furthermore, the opinion which was issued
almost a year ago, has not been cited even once for the
broad holding urged by petitioners.
The correctness of the decision below is actually
reinforced, rather than put into question, by a comparison
between the underlying case here and decisions relied on
by the petitioners.
Board of Education v. Pico, 457 U.S. 853 (1982),
Youngberg v. Romeo, 457 U.S. 307 (1982), and Tennes-
The opinion does not exclude all tribal treaty rights from being
enforceable under § 1983. It specifically states that treaty rights could
be enforceable in certain situations under § 1983, citing White Moun-
tain Apache Tribe v. Williams, 810 F.2d 844, 850 (9th Cir. 1987) cert
denied US., ,105 S.Ct. 940 (1987).
15
see v. Garner, 471 U.S. 1 (1985), for example, all dealt
with individual rights guaranteed under the Fourteenth
Amendment. That Amendment, however uncertain its
contours might be, is expressly directed to the relationship
between the State and its citizens and other persons
within its boundaries: “No State shall * * *; nor shall any
State * * * *” Each of these Fourteenth Amendment
cases thus involved a direct and fundamental relationship
between the plaintiff individual and the governmental
entity. This fundamental relationship established a spe-
cific duty of the governmental entity towards the individ-
ual, and the scope of the rights involved in the extent of
that duty were determined in the context of a specific
transaction between the individual and government enti-
ty.’ In contrast, the treaty language, including the fishing
clause, is not addressed to the State at all. As would be
expected in a treaty between sovereigns, it is cast in terms
of rights and duties vis-a-vis each other.
Similarly, the cases recognizing the enforceability of
certain federal statutes under § 1983 involved fact situa-
tions and issues substantially different from those in-
volved here. Cases such as Maine v. Thiboutot, 448 U.S. 1
(1980); Wright v. Roanoke Redevelopment and Housing
Authority, __ U.S., __ 93 L. Ed. 2d 781 (1987);
Pennhurst State School and Hospital v. Halderman, 451
U.S. 1 (1981); Middlesex County Sewerage Authority v.
National Sea Clammers Assn., 453 U.S. 1 (1981) involved
statutes expressly directed to the states and mandating—
“Board of Education v. Pico, supra involved the relationship
between the individual student and the school board management of
the schocl system. Youngberg v. Romeo, supra involved the relation-
ship between an involuntary committed mentally retarded person and
the institution at which he was housed. 7’ennessee v. Garner, supra
involved the telationship between a suspected felon and a _ police
agency using force to apprehend.
16
or at least claimed to be mandating—the states to confer
some benefit upon individuals. '
In the present case, the treaty language in question
did net purport to require State conferral of benefits, and
did not contain any articulation of state duties and re
sponsibilities.
This is not to suggest that § 1983 has no role at all to
play with respect to treaty provisions or Indian Tribes.
Rather, it is to suggest that, as recognized by the court
below. it has no role to play in what is essentially a type of
quiet title action between sovereigns or quasi-sovereigns.
cf. Montana v. United States, 450 U.S. 544 (1981) and
Oneida Indian Nation v. Oneida County, 414 U.S. 661
(1974).
Analogies between L’nited States v. Washington and
litigation over property rights can, however, be mislead-
ing, despite our own use of those analogies. Douglas v.
Seacoast Products, 431 U.S. 265 (1977) cautions us that
when a fishery or other wildlife resource is involved, the
critical question is jurisdiction, not ownership. As stated
in Douglas:
A State does not stand in the same position as the
owner of a private game preserve and it is pure
fantasy to talk of “owning” wild fish, birds, or ani-
mals. Neither the States nor the Federal Govern-
ment, any more than a hopeful fisherman or hunter,
has title to these creatures until they are reduced to
possession by skillful capture. Ibid.; Geer v. Connect-
icut, 161 US 519, 539-540, * * * * (1896) (Field, J..
dissenting). The “ownership” language of cases such
as those cited by appellant must be understood as no
‘In order to be enforceable under § 1983 the federal right has to
be an individual right, i.e., there must have been a congressional intent
to create a private cause of action in the federal statute. The statute
must identify or refer to a guidelines or standards. Compare
Boatowners and Tenants Assn. v. Port of Seattle, 716 F.2d 669 (9th
Cir. 1983). Note that petitioners characterized the rights in this case as
public rather than private rights in their brief in Passenger Vessel, CR
7973 p. 196 Appendix B&.
17
more than a 19th-century legal fiction expressing
“the importance to its people that a State have
power to preserve and regulate the exploitation of
an important resource.”’ Tommer v. Witsell, 334 US,
at 402. (Emphasis supplied.)
431 U.S. at 284.
Thus, when a fishery resource is involved, what might
first appear to be ownership issues are in reality jurisdic-
tional issues. And the central question in this entire con-
troversy thus takes on its proper form. That question is
essentially a preemption question, undistinguishable from
the question presented in Consolidated Freightways 1
Kassel, 730 F.2d 1139 (8th Cir. 1984) cert. denied 469 U.S.
834 (1984) and White Mountain Apache Tribe v. Wil-
liams, 810 F.2d 844 (9th Cir. 1987), cert. denied _____ U.S.
105 S.Ct. 940 (1987).
For the same reason that § 1983 was held inapplica-
ble in those cases, it is inapplicable here as well.
C. The Court of Appeals Did Not Establish a
“De Facto” Good Faith Immunity For Government
Officials Regarding Awards of Attorneys Fees.
The petitioners’ argument that the court below estab-
lished a de facto good faith immunity for declaratory
judgment and injunction actions is nothing more than
their previous argument in a new guise, and rests upon the
same basic misconception as to the scope of the court's
holding. That holding, as we have seen, is limited by the
unique nature of the underlying litigation, and has no
applicability outside its boundaries. Thus, it does not
apply to cases which are based upon a constitutional or
statutory command to the states and which are, for that
reason, properly within the scope of § 1983.
Further, to the extent this argument is a thinly dis-
guised attempt to raise bad faith or obdurate behavior as
alternative grounds for an award, it should be rejected
outright. Those grounds were rejected by the district
court in both the initial fee request and in the present
proceeding. See Pet. App. B 4 (Par. 5). Furthermore, the
district court refused to award any attorneys’ fees at all
for proceedings after the mandate of this Court in Passen-
ger Vessel, on the basis that no party could be determined
to have prevailed. See Pet. App. B 5 (Par. 7).
D. The Holding Of The Lower Court That The
Tribes’ Fourteenth Amendment Claims Provide
No Basis For An Attorneys’ Fee Award Is Cor-
rect.
Again the Tribes completely overlook or misread the
basis for the holding of the court below; and they fail to
address at all the lower court’s rationale for rejecting their
Fourteenth Amendment claim. That rationale was simply
this: the Fourteenth Amendment claims were completely
dependent upon the treaty-based claim. Absent a valid
treaty-based claim, the Fourteenth Amendment claim
simply disappears. As stated by the court:
This is not to deny that the underlying proceeding was hard
fought. For the state agencies involved in this litigation were in the
unenviable position of being a stakeholder. The state agencies had the
responsibility to conserve and manage the fishery resource, but were
involved in the middle of disputes between tribal fishermen and non
Indian fishing interests, as well as federal courts and state courts. The
non-Indian fishing industry, which was threatened with severe eco-
nomic disiocation as a result of the district court allocations order, was
vocal and vigorous in its opposition to the federal court determinations.
And on the other side were individual tribal members who were
aggressively testing the limits of the treaty rights claimed by them, not
only in court but in actions on the water which violated then current
state statutes and regulations, thus promptly leading to conflict with
law enforcement authorities. In addition to the competition between
those parties interested in access to the resource, the state agencies
were also caught up in the middle of a dispute between the state and
federal court systems. The principal reason for the State’s attempt to
seek a definitive interpretation of the treaty right by this Court was to
establish once and for all, for all parties and for all court systems, the
full nature and extent of their respective allocation rights in the fishery
resource. The State’s strategy was based on the assumption that once
this Court had spoken, the battles would die down and calm would be
restored. That assumption, fortunately for everyone, has turned out to
be correct.
19
The district court did find * * * that the present
state regulations did discriminate against the Indi-
ans, but only in the sense that the state failed to
recognize the special entitlement the Indians were to
be given. The district court did not hold that the
state discriminated for the sake of discrimination—
the discrimination was due to the failure to recognize
the Indians’ special status. Both sides appealed to the
Ninth Circuit. In our opinion, the Ninth Circuit char-
acterized the relationship between Indians and non-
Indians as a cotenancy, discussed the state regula-
tions which it noted appeared sound and commend-
able, and stated that in treating treaty Indians no
differently than other citizens, the state rendered the
treaty guarantees nugatory. United States v. Wash-
ington, 520 F.2d at 685-86. Nowhere did the court
hold that the state had violated any Fourteenth
Amendment rights. * * * When the Supreme Court
wrote its opinion, equal protection was never men-
tioned. It appears then that the Indians abandoned
their equal protection arguments after the initial
complaints and initial district court decision. See
White Mountain, 798 F.2d at 1215.
Pet. App. B 11.
The Tribes, in short, have never convinced any court
that they have a valid Fourteenth Amendment claim
which is independent of the treaty claim. Nor have they
even tried. In neither their complaints nor in any of their
briefs, including their brief before this court in Passenger
Vessel, did they assert any such independent claim, so far
as we can tell. Their petition certainly does not tell us
where they might have done so.
In Maher v. Gagne, 448 U.S. 122 (1980) and Hagans
v. Lavine, 415 U.S. 528 (1974), there was no such
bootstrapping as petitioners are attempting here. That is,
the constitutional claims and non-constitutional claims
were separate and independent. The court below was thus
correct in rejecting the petitioners’ effort to find a consti-
tutional basis for the attorneys’ fee award. And that rejec-
tion is completely consistent with Maher and Hagans.
20
There is also no merit in petitioners’ suggestions that
the State conceded jurisdiction under § 1343. The State
did not contest jurisdiction because it was solidly based on
$$ 1345 and 1362.
The court below, in short, was correct in observing
that the claimed Fourteenth Amendment claims have
been “dusted off’ and amplified solely for the purpose of
obtaining fees in an action where Fourteenth Amendment
rights of any kind are at best an afterthought.
CONCLUSION
For the reasons given above, the petition for a writ of
certiorari should be denied.
Respectfully submitted,
KENNETH QO. EIKENBERRY
Attorney General
Davip E. WALSH
Deputy Attorney General
TimotHy R. MALONE
Assistant Attorney General
(Counsel of Record)
Attorneys for Respondents
State of Washington, et al
APPENDIX A
Complaint of United States and Excerpts from
various Tribal Complaints in Intervention.
Al
APPENDIX
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NO. 9213
UNITED STATES OF AMERICA,
Plaintiff,
STATE OF WASHINGTON,
Defendant.
COMPLAINT FOR DECLARATORY
JUDGMENT AND INJUNCTION
The United States of America, by Stan Pitkin,
United States Attorney for the Western District of Wash-
ington, acting under authority of The Attorney General
and at the request of the Secretary of the Interior, com-
plains and alleges as follows:
FIRST CLAIM FOR RELIEF
1. This Court has jurisdiction by reason of the fact
that the United States is plaintiff. 28 U.S.C. § 1345.
2. The United States brings this action on its own
behalf and on behalf of the Puyallup Tribe of the
Puyallup Reservation, the Nisqually Indian Community
of the Nisqually Reservation, the Muckleshoot Indian
Tribe of the Muckleshoot Reservation, the Skokomish
Indian Tribe of the Skokomish Reservation, the Makah
Indian Tribe of the Makah Indian Reservation, the
Quileute Tribe of the Quileute Reservation, and the Hoh
Tribe or Band of Indians which are tribes or communities
of Indians recognized as such by the Secretary of the
Interior.
3. The United States has entered into treaties with
the tribes named in paragraph 2 as follows:
A2
The Treaty of Medicine Creek on December 26,
1854, with the Puyallup, Nisqually and other Tribes,
10 Stat. 1132.
The Treaty of Point Elliott on January 22, 1855,
with various tribes and bands including the Indians
who now comprise the Muckleshoot Indian Tribe, 12
Stat. 927.
The Treaty of Point No Point on January 26,
1855, with the Skokomish and other Tribes, 12 Stat.
933.
The Treaty with the Makahs on January 31,
1855, 12 Stat. 939.
The Treaty of Olympia on July 1, 1855 and
Juanuary 25, 1856, with the different tribes and
bands of the Qui-naielt and Quil-leh-ute Indians,
including the Hoh Tribe or Band of Indians, 12 Stat.
971.
Each of said treaties contains a provision securing to the
Indians certain off-reservation fishing rights. The follow-
ing provision from the Treaty of Medicine Creek is typical
of these treaty provisions:
“The right of taking fish, at all usual and accustomed
grounds and stations, is further secured to said Indi-
ans, in common with all citizens of the Territory, and
of erecting temporary houses for the purpose of cur-
ing, * * * Provided, however, that they shall not
take shellfish from any beds staked or cultivated by
coe, * 7° =,
Each of the tribes named has usual and accustomed fish-
ing places within the western portion of the State of
Washington, including, among others, the Nisqually Riv-
er, the Puyallup River and Commencement Bay, the
White River, the Green River, the waters of Hood Canal
and the rivers flowing into said Canal, the Straits of Juan
de Fuca, the Quileute River and its tributaries, and the
Hoh River. Each of the Tribes named has rights secured
by said treaties to take fish, including the species com-
monly known as steelhead, at its usual and accustomed
fishing places.
4. Subsequent to the execution of the treaties and in
reliance thereon, the members of the tribes have contin-
A3
ued to fish for subsistence and commercial purposes at the
usual and accustomed places. Such fishing provided and
still provides an important part of their subsistence and
livelihood.
5. The rights of said tribes of taking fish at all usual
and accustomed places guaranteed by said treaties are
subject to regulation by the defendant only to the extent
necessary for conservation. These rights do not derive
from state authority and must be recognized and pro-
tected by the defendant. The defendant’s authority to
restrict the exercise of such rights is different from and
more limited than its authority to restrict the state-
conferred fishing privileges of persons who are not the .
beneficiaries of such rights. Proper recognition and pro-
tection of the rights require that before restricting their
exercise the defendant must (a) deal with the matter of
the Indians’ treaty fishing rights as a subject separate and
distinct from that of fishing by others, (b) so regulate the
taking of fish that the tribes and their members will be
accorded an opportunity to take, at their usual and accus-
tomed places by reasonable means feasible to them, a fair
and equitable share of all fish which the defendant per-
mits to be taken from any given run, and (c) establish that
it is necessary (as distinguished from merely convenient)
for conservation to impose the specifically prescribed re-
striction on the exercise of the treaty right.
6. The defendant has failed and refused to recognize
and protect the tribes’ treaty rights. It has, with limited
exceptions, failed and refused to deal with fishing by the
beneficiaries of such rights as a separate subject when
formulating regulations to govern the taking of fish in the
waters subject to the defendant’s jurisdiction. It has, with
limited exceptions, denied that such rights invest the
beneficiaries with any privileges and immunities greater
than those which the defendant chooses to accord citizens
generally. It has dealt with Indian treaty rights as though
they were state-conferred privileges, any exercise of which
the state is not only free to, but is required to, regulate to
A4
the same extent and in the same manner as it regulates
fishing by persons not entitled to exercise said rights. In
conformity with this premise, defendant, with limited re-
cent exceptions, contends it has no authority to, and has
refused to, recognize or allow any manner of exercise of
the right, or its exercise during any time, at any place, or
for any purpose the defendant does not allow other per-
sons to take fish. It has failed and refused to attempt to so
regulate fishing in waters subject to its jurisdiction as to
accord the beneficiaries of such right an opportunity to
catch, at their usual and accustomed places and by reason-
able means feasible to them, a fair and equitable portion
of the fish which are available for catching from a particu-
lar run consistent with adequate escapement for spawning
and reproduction. It has not determined what specific
restrictions must necessarily be imposed upon the exercise
of the treaty rights in the interest of conservation and
informed the beneficiaries thereof in advance of the en-
forcement what those restrictions are.
It has so framea its statutes and regualtions as in
many instances to allow all the harvestable fish from given
runs to be taken by those with no treaty rights before such
runs ever reach the usual and accustomed fishing places to
which the treaties apply.
Defendant has by statute and regulation totally
closed many of the usual and accustomed areas of said
tribes to all forms of net fishing while permitting commer-
cial net fishing elsewhere on the same runs of fish.
Defendant has by statute and regulation set aside one
species of fish, the species commonly known as steelhead,
for the exclusive use and benefit of a single category of
persons, namely sportsmen, and has imposed limitations
on the means by which, the purpose for which, and the
numbers of which said species may be taken that are in
derogation of the treaty rights of said tribes.
7. Defendant has not undertaken, or caused to be
undertaken, any studies, research, or experimentation—or
if it has, has not introduced the results thereof into any
A5
hearing or public proceeding at which state fishing laws or
regulations were considered or enacted—of the extent to
which it is necessary for the defendant to restrict the
exercisie of fishing rights secured to Indian tribes by
treaties of the United States.
8. In devising, adopting and promulgating the regula-
tions by which they authorize the taking of fish for com-
mercial or sports purposes by persons subject to the
state’s jurisdiction, and in establishing and carrying out
fishery management policies and programs and determin-
ing conservation objectives, the defendant and its officers
and agents have not given recognition to, or made proper
allowance for, the rights secured to Indian tribes by trea-
ties of the United States.
9. The defendant and various of its officers and
agents claiming to act in their official capacities on behalf
of the defendant, have seized nets and other property of
members of the aforementioned tribes and have harassed,
intimidated, and threatened said members or caused them
to be arrested and prosecuted, for allegedly violating state
laws or regulations pertaining to fishing for, taking of, or
possession of, fish which were taken or sought to be taken
by said members in the lawful exercise of rights secured
by the treaties, and have confiscated or released fish
belonging to said members and taken in the exercise of
said rights, have interfered with obstructed, and at-
tempted to prevent the transportaiton or sale of such fish
so taken by members of said tribes and have otherwise
harassed and interfered with said members in the exercise
of said rights. Defendant, its officers and agents, assert
their intention to continue these actions. In so acting and
threatening to act, the defendant, its officers and agents
are acting wrongfully and in derogation of rights secured
by the treaties.
10. As a result of the said wrongful acts of defendant,
the tribes and their members are being unlawfully de-
prived of their treaty right, privilege, and immunity to fish
at many of their usual and accustomed places and have
A6
suffered, and will continue to suffer, irreparable damage.
The plaintiff, the tribes and members of the tribes, have
no adquate remedy at law because
(a) the damages which have been and will be
sustained are not susceptible of monetary determina-
tion;
(b) the right of the Indians to fish at their usual
and accustomed places conferred by treaty with the
United States is unique and should be specifically
protected; and
(c) in the case of criminal prosecutions threat-
ened by the defendant or its officers or agents pur-
porting to act under the authority of the state stat-
utes, these Indians have no remedy at all except at
the risk of suffering fines, imprisonment and confis-
cation of property, involving a multiplicity of legal
proceedings.
11. An actual controversy exists between the plaintiff
on the one hand and the defendant on the other as to the
nature and extent of the treaty fishing rights of the tribes
named in this complaint and the attempted regulation
thereof by the defendant.
SECOND CLAIM FOR RELIEF
12. Plaintiff restates and re-alleges the allegations of
paragraphs 1 through 11 of this complaint.
13. Statutes of the defendant enacted without regard
to Indian treaty rights make it unlawful to use various
types of appliances including a set net, a weir, or any fixed
appliance within any waters of the state for the purpose of
catching salmon (RCW 75.12.060) or to lay or ust any net
for the purpose of taking fish which the defendant has
classified as game fish, or lay or use any net capable of
taking game fish except as permitted by regulation of the
Department of Fisheries (RCW 77.16.060). Defendant’s
statutes also make it unlawful to spear, gaff or snag
salmon except as may be authorized by the Director of
Fisheries (RCW 75.12.070), to use reef nets except in
limited areas specified by statute (RCW 75.12.160). Other
statutes, including RCW 75.080.080, give the defendant’s
A7
Director of Fisheries broad authority to regulate the tak-
ing of salmon, and give defendant’s Game Commission
broad authority to regulate the taking of steelhead and
other “game fish” (RCW 77.12.040), which authorities
have been exercised without proper regard for Indian
treaty rights, make violation of provisions of defendant’s
fisheries or game codes or regulations punishable as a
crime (RCW 75.08.260, RCW 77.16.020, RCW 77.16.030,
RCW 77.16.040, and provide for seizure and forfeiture of
gear used or held with intent to use unlawfully (RCW
77.12.100)). Nets and other items used or “had or main-
tained for the purpose of” taking game fish contrary to
law or Game Commission rule or regulation are subject to
summary seizure and destruction by game protectors “wi-
thout warrant or process.” (RCW 77.12.130). Among other
restrictions, regulations of the defendant issued by said
Director of Fisheries make it unlawful to fish for or
possess food fish from any waters over which the State of
Washington has jurisidiction except as provided for in
state statutes or in regulations of the State Department of
Fisheries (WAC 220-20-010(1) and (2)). These regulations
also make it unlawful to have an unattended gill net in the
commercial salamon fishery (WAC 220-20-010(5)), or to
place commercial food fish gear in any waters closed to
commercial fishing (WAC 220-20-010(6)), or to attempt to
take food fish by various specified means including
gaffing, snagging, dip netting, spearing, and other, or to
possess food fish so taken (with limited exceptions in
connection with personal use angling) (WAC 220-20-
010(11)), or to fish for or possess food fish taken contrary
to provisions of any special season or emergency closed
period prescribed in Chapter 220-28 of the Washington
Administrative Code (WAC 220-20-010(16)), or to take
salmon “for commercial purposes” i.e., by means other
than angling—within three miles of any river or stream
flowing into Puget Sound (WAC 220-20-015(2)), or within
areas specified in WAC 220-47-020, or to fish for food fish
for personal use by any means other than angling unless
A8
otherwise provided or possess fish so taken (WAC 220-56-
020(2)). Various officers and agents of the defendant have
stated their intention on behalf of the defendant to apply
such laws and regulations to all Indians fishing at their
Tribe’s usual and accustomed places in the exercise of
rights secured by their treaties and have arrested, cited for
prosecution, and seized gear of members of such Tribes
for so fishing in violation of such laws and regulations.
14. Defendant's Director of Fisheries has promul-
gated regulations which give limited recognition to the
treaty fishing rights of some of the Tribes named in
paragraph 2 hereof. (Director of Fisheries Orders No. 866,
875, 885). Said regulations contain limitations and restric-
tions on the exercise of treaty rights that are not reason-
able and necessary for conservation and are not the least
restrictive which can be imposed consistent with assuring
the necessary escapement of fish for conservation pur-
poses. Defendant’s Director of Fisheries has failed and
refused to promulgate regulations to provide recognition
to, or permit exercise of, the treaty fishing rights of some
Indian Tribes having treaty fishing rights, including the
Muckleshoot Indian Tribe and the Skokomish Indian
Tribe.
15. The effective RCW 75.12.060 and 77.16.060 and
the regulations referred to in paced 13 is to close
permanently to the taking of food fish by any means other
than angling, a substantial porition of the area which
contains numerous and important usual and accustomed
fishing places of Tribes, while permitting commercial fish-
ing in other areas on migratory fish runs which pass by
such tribal fishing places. The defendant, its officers and
agents, have failed to recognize and to provide sufficiently
for the exercise of the treaty fishing-rights of the Tribes,
and their members, at their usual and accustomed places
which failure constitutes a denial of the treaty fishing
rights and an unlawful and unreasonable discrimination in
favor of those fishing commercially or for recreation and
pleasure and against the Tribes and their members. Such
A9
action has not been and cannot be justified as necessary
for the conservation of fish.
16. In devising and adopting the rules and regulations
governing the taking of food fish for commercial purposes,
the defendant has failed to give proper recognition or
make adequate provision for the exercise of treaty fishing
rights of Indians at their usual and accustomed places and
has adopted regulations which discriminate against the
taking of fish at the usual and accustomed places of the
previously mentioned Indian Tribes in favor of those who
take fish at other locations. In doing so the defendant is
unlawfully discriminating against the exercise of Indian
treaty fishing rights in the recognition and beneficial use
of such treaty rights. Such discrimination results in irrep-
arable damage to such Tribes and their members.
WHEREFORE, plaintiff prays that the Court:
1. ORDER, ADJUDGE, and DECREE that
(a) Each of the tribes named in this complaint
owns and it may authorize its members to exercise a
right derived from the laws and treaties of the United
States to take fish at its usual and accustomed places,
which right is distinct from any right or privilege of
individuals to take fish derived from common law or
state authority, and the exercise of which is subject to
state control only through such statutes or regula-
tions as have been established to be necessary for the
conservation of the fishery and which do not discrim-
inate against the exercise of such right;
(b) Before defendant may regulate the taking
and disposition of fish by members of said tribes at
usual and accustomed fishing places pursuant to
treaties between said tribes and the United States;
(i) It must establish by hearings prelimi-
nary to regulation that the specific proposed
regulation is both reasonable and necessary for
the conservation of the fish resource. In order to
be necessary, such regulations must be the least
restrictive which can be imposed consistent with
Al0
assuring the necessary escapement of fish for
conservation purposes; the burden of establish-
ing such facts is on the state.
(ii) Its regulatery agencies must deal with
the matter of the Indians’ treaty fishing as a
subject separate and distinct from that of fishing
by others. As one method of accomplishing con-
servation objectives it may lawfully restrict or
prohibit non-Indians fishing at the Indians’
usual and accustomed fishing places without im-
posing similar restrictions on treaty Indians.
(iii) It must so regulate the taking of fish
that, except for unforeseeable circumstances be-
yond its control, the treaty tribes and their
members will be accorded an opportunity to
attempt to take, at their usual and accustomed
fishing places, by reasonable means feasible to
them, a fair and equitable share of all fish which
it permits to be taken from any given run.
2. Declare RCW 75.12.060, RCW 75.12.0070, RCW
77.08.0020, RCW 77.12.130, RCW 77.16.040, RCW
77.16.060, WAC 220.20.010, WAC 220-20-015(2) and WAC
220-47-020 null and void insofar as they deny or restrict
the right of members of the Tribes named in this com-
plaint, acting under tribal authorization, to take fish for
subsistence and commercial purposes at their tribe’s usual
and accustomed fishing places or to possess or dispose of
fish so taken.
3. Declare that the defendant, its officers, agents, and
employees may not apply the provisions of RCW
75.08.260, RCW 77.12.100, 77.16.020, and 77.16.030 in
such manner as to prevent or restrict members of the
tribes named in paragraph 2 hereof from taking fish for
subsistence and commercial purposes at their tribe’s usual
and accustomed fishing places or to possess or dispose of
fish so taken without previously having established that
the imposition of such specific restriction is necessary for
en eee
ene eet tench eee 6
All
the conservation of fish and does not discriminate against
the taking of fish pursuant to such treaty right.
4. Enjoin the defendant, its officers, agents and em-
ployees from enforcing the provisions of RCW 75.12.060,
RCW 75.12.070, RCW 77.08.020, RCW 77.12.130, RCW
77.16.040, 77.16.060, WAC 220-20-010, WAC 220-20-
015(2) and WAC 220-47-020 in such manner as to prevent
or restrict members of the said tribes from taking fish at
their usual and accustomed places in accordance with
tribal authorization pursuant to the treaties between those
tribes and the United States.
5. Enjoin the defendant, its officers, agents and em-
ployees from enforcing the provisions of state laws or
regulations in such manner as to prevent or restrict mem-
bers of said tribes from taking fish at their usual and
accustomed places in accordance with tribal authorization
pursuant to the treaties between said tribes and the
United States without previously having established that
the imposition of state regulation is necessary for the
conservation of fish and does not discriminate against the
taking of fish pursuant to such treaty right.
6. Grant such further and additional relief as the
plaintiff may be entitled to.
7. Award plaintiff the costs of this action.
8. Retain jurisdic:ion of this cause for the purpose of
enforcing or supplementing the judgment of this Court.
DATED this 18th day of September, 1970, at Seattle,
Washington.
/s/ STAN PITKIN
United States Attorney
Western District of Washington
Al2
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NO. 9213
UNITED STATES OF AMERICA,
Plaintiff,
STATE OF WASHINGTON
Defendant.
Permission of intervene having been granted, the
Confederated Tribes and Bands of the Yakima Indian
Nation complain and allege as follows:
FIRST CLAIM FOR RELIEF
1. This Court has jurisdiction by reason of the fact
that the United States is plaintiff. 28 U.S.C. 1345.
9. This Court has jurisdiction by reason of the exist-
ence of a federal question. This case involves, the interpre-
tation of plaintiff’s rights under a treaty with plaintiff and
the United States (Treaty with the Yakimas 12 Stat 951)
28 U.S.C. 1331.
WHEREFORE, Plaintiff prays that the court:
1. ORDER. ADJUDGE, AND DECREE that
(a) The Yakima Tribe owns and it may autho-
rize its members to exercise a right derived from the
laws and treaties of the United States to take fish at
A13
its usual and accustomed places, which right is dis-
tinct from any right or privilege of individuals to take
fish derived from common law or state authority, and
the exercise of which is subject to state control only
through such statutes or regulations as have been
established to be necessary for the conservation of
the fishery and which do not discriminate against the
exercise of such right;
(b) Before defendant may regulate the taking
and disposition of fish by members of the Yakima
Tribe at usual and accustomed fishing places
pursuant to treaties between said tribes and the
United States:
(i) It must establish by hearings preliminry
to regulation that the specific proposed regula-
tion is both reasonable and necessary for the
conservation of the fish resource. In order to be
necessary, such regulations must be the least
restrictive which can be imposed consistent with
assuring the necessary escapement of fish for
conservation purposes; the burden of establish-
ing such facts is on the state.
(ii) Its regulatory agencies must deal with
the matter of the Indians’ treaty fishing as a
subject separate and distinct from that of fishing
by others. As one method of accomplishing con-
servation objectives it may lawfully restrict or
prohibit non-Indians fishing at the Indians’
usual and accustomed fishing places without im-
posing similar restrictions on treaty Indians.
(iii) It must so regulate the taking of fish
that, except for unforeseeable circumstances be-
yond its control, the treaty tribes and their
members will be accorded an opportunity to
attempt to take, at their usual and accustomed
fishing places by reasonable means feasible to
them, a fair and equitable share of all fish which
it permits to be taken from any given run.
Al4
2. Declare RCW 75.12.060, RCW 75.12.070, RCW
77.08.020, RCW 77.12.130, RCW 77.16.040, RCW
77.16.060, WAC 220-20-010, WAC 220-20-015(2) and
WAC 220-47-020 null and void insofar as they deny or
restrict the right of members of the Yakima Tribe, acting
under tribal authorization, to take fish for subsistence and
commercial purposes at their tribe’s usual and accustomed
fishing places or to possess or dispose of fish so taken.
3. Declare that the defendant, its officers, agents, and
employees may not apply the provisions of RCW
75.08.260, RCW 77.12.100, RCW 77.16.020, and 77.16.030
in such manner as to prevent or restrict members of the
tribes named in paragraph 2 hereof from taking fish for
subsistence and commercial purposes at their tribe’s usual
and accustomed fishing places or to possess or dispose of
fish so taken without previously having established that
the imposition of such specific restriction is necessary for
the conservation of fish and does not discriminate against
the taking of fish pursuant to such treaty rights.
4. Enjoin the defendant, its officers, agents and em-
ployees from enforcing the provisions of RCW 75.12.060,
RCW 75.12.070, RCW 77.08.020, RCW 77.12.130, RCW
77.16.040, RCW 77.16.060 WAC 220-20-010, WAC 220-20-
010, WAC 220-20-015(2) and WAC 220-47-020 in such
manner as to prevent or restrict members of the said
tribes from taking fish at their usual and accustomed
places in accordance with tribal authorization pursuant to
the treaties between those tribes and United States.
5. Enjoin the defendant, its officers, agents and em-
ployees from enforcing the provisions of state laws or
regulations in such manner as to prevent or restrict mem-
bers of the Yakima Tribe from taking fish at their usual
and accustomed places in accordance with tribal authoni-
zation pursuant to the treaties between Yakima Tribe and
the United States without previously having established
that the imposition of state regulation is necessary for the
conservation of fish and does not discriminate against the
taking of fish pursuant to such treaty right.
en ah
a ee TE te
Al5
6. Grant such further and additional relief as the
plaintiff may be entitled to.
7. Award plaintiff the costs of this action.
8. Retain jurisdiction of this cause for the purpose of
enforcing or supplementing the judgment of this Court.
DATED this 16th day of July, 1971, at Yakima,
Washington.
/s/ James B. Hovis
Yakima Tribal Attorney
Al6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NO. 9213
UNITED STATES OF AMERICA,
Plaintiff,
Hou TRIBE OF INDIANS,
Plaintiff-Intervenors,
STATE OF WASHINGTON,
Defendant.
COMES NOW the Hoh Tribe of Indians as Plaintiff-
Intervenors and alleges as follows:
JURISDICTION
1. This Court has jurisdiction of this action by virtue
of 25 U.S.C., Sections 1331, 1337, 13843(3), 1343(4) and
1362. This action is for declaratory relief in a civil action
pursuant to 28 U.S.C., Sections 2201 and 2202, and for
injunctive relief with respect to the enforcement of certain
statutes, regulations, orders, practices, and policies of the
State of Washington and its officers and agents, including
Thor C. Tollefson, Director of the Department of Fisher-
ies, and Carl Crouse, Director of the Department of Game,
and the members of the State of Washington Game Com-
mission, restrict prohibiting and otherwise qualifying the
rights of plaintiff Hoh Indian Tribe to take fish within
Indian country and at their usual and accustomed places
off their reservation. This action is brought under the
Constitution, laws and treaties of the United States., in-
cluding the Commerce Clause, Article I, Section 8, Clause
3, of the Constitution; the Supremacy Clause, Article VI,
Clause 2, of the Constitution; Amendments I and IV to
the Constitution, and the Due Process and Equal Protec-
Al7
tion Clauses of Amendment XIV to the constitution; 18
U.S.C. Sections 1151 through 1153; 42 U.S.C. Section
1983; Public Law 280 (Act of August 15, 1953, 67 Stat.,
588 et seq., as amended); The Treaty of Olympia, July 1,
1855, and January 25, 1856.
This action seeks to redress the deprivation under
color of the laws, statutes, ordinances, regulations, cus-
toms and usages of the State of Washington relating to
fishing including, but not limited to, Revised Code of
Washington (RCW), Chapters 75 and 77 and Washington
Administrative Code (WAC), Chapter 220 and the orders,
regulations, and policies promulgated pursuant to them of
rights, privileges, and immunities secured to plaintiff, Hoh
Indian Tribe, by the United States Constitution.
* * * *
WHEREFORE, Plaintiff prays that this Court:
1. ORDER, ADJUDGE and DECREE that
(a) The Hoh Tribe owns and it may authorize its
members to exercise a right derived from the laws of
the United States and the Treaty of Olympia to take
fish at its usual and accustomed places, which right is
distinct from any right or privilege of individuals to
take fish derived from common law or state authori-
ty.
(b) The matter of Indian treaty fishing must be
dealt with as a subject separate and distinct from
fishing by others. As ene method of accomplishing
conservation objectives, it may lawfully restrict or
prohibit non-Indians fishing at the Indians’ usual
and accustomed fishing places without imposing sim-
ilar restrictions on treaty Indians. _
2. Declare RCW 75.12.060, RCW 75.12.070, RCW
77.08.020, RCW 77.12.1380, RCW 77.16.040, 77.16.060,
WAC 220-20-010, WAC 220-20-015(2) and WAC 220-47-
020 null and void insofar as they deny or restrict the right
of members of the Hoh Tribe, acting under tribal authori-
|
Al18
zation, to take fish for subsistence or commercial purposes
at the tribe’s usual and accustomed fishing places, or to
possess and dispose of fish so taken.
3. Enjoin the defendant, its officers, agents and em-
ployees from enforcing the provisions of RCW 75.12.060,
RCW 75.12.070, RCW 77.08.020, RCW 77.12.130, RCW
77.16.040, RCW 77.16.060, WAC 220-20-010, WAC 220-
20-015(2) and WAC 220-47-020 in such manner as to
prevent or restrict members of the hoh Tribe from taking
fish at their usual and accustomed places in accordance
with tribal authorization pursuant to the Treaty of Olym-
pia.
4. Grant such further and additional relief as the Hoh
Tribe may be entitled to.
5. Award the Hoh Tribe its costs and disbursements
herein.
6. Retain jurisdiction of this cause for the purpose of
establishing any necessary rules or regulations and for
enforcing or supplementing the judgment of this Court.
DATED this 20th day of January, 1971, at Hoquiam,
Washington. -
/by/ LESTER STRITMATTER
Attorneys for Plaintiff-Intervenor
Hoh Tribe of Indians
Alg
Aas cnsishcoeaes ulna
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NORTHERN DIVISION
NO. 9213
~
r
UNITED- STATES OF AMERICA
Plaintiff,
QUILEUTE INDIAN TRIBE
Intervenor,
v.
STATE OF WASHINGTON; THOR C. TOLLEFSON, individually
and as director fo the State of Washington Department of
Fisheries, CAarL N. Crousk, individually and as director of
the State of Washington Department of Game; and Wasn-
INGTON STATE GAME COMMISSION,
Defendants.
COMPLAINT FOR DECLARATORY JUDGMENT
AND INJUNCTION
Permission to intervene having been granted, the
Quileute Indian Tribe by and through its attorneys,
Ziontz, Pirtle & Morisset, complains and alleges as fol-
lows:
FIRST CLAIM FOR RELIEF
1. This court has jurisdiction for the reason that this
action is brought by the Quileute Indian Tribe of the
Quileute Indian Reservation, a federally-chartered Indian
Tribe with a governing body recognized by the Secretary
of the Interior and the Bureau of Indian Affairs, concern-
ing matters arising under a treaty of the United States. 28
U.S.C. § 1362.
A20
WHEREFORE, intervenor prays that the court or-
der, adjudge and decree that:
1. The Quileute Indian Tribe owns, and it may autho-
rize its members to exercise, a right derived from the laws
and treaties of the United States to take fish at all usual
and accustomed places, which right is distinct from any
right or privilege of non-Indians and non-members of the
Quileute Indian Tribe; that such right is distinct from any
right or privilege of non-members of the Tribe to take fish
which may be derived from common law, State authority
or any other source.
| 2. The defendant may not interfere with the Quileute
‘Indian Tribe’s exercise of its fishing rights derived from
treaty unless such interference is necessary to insure the
maintenance of the species of fish in the specific waters
where such a Quileute fishery is conducted, and where
such preservation cannot be achieved by strict regulation
or prohibition of fishing by non-Indians and where such
prevention will not be achieved by Tribal regulation.
3. All of the following provisions of the Washington
State Fisheries and Game Code and regulations promul-
gated thereunder are inapplicable and null and void as to
members of the Quileute Indian Tribe when fishing in
usual and accustomed fishing places of the Quileute In-
dian Tribe:
RCW 77.12.080: (arrest without warrant for violation
of law, i or regulation pertaining to game)
RCW 77.12.090: (search of vehicles for game fish
without warrant) .
RCW 77.12.100: (seizure and forfeiture of game fish
and gear)
RCW 77.12.120: (seizure and contraband game)
RCW 77.12.130: (authorizing seizure and abatement
of nets for game fish)
RCW 77.16.030: (unlawful to have possession of game
fish during closed season)
A21
RCW 77.16.040: (unlawful to sell game fish)
RCW 77.16.060: (unlawful to use nets to take game
fish)
RCW 77.15.240: (general penalty—misdemeanor—90
days)
RCW 75.08.160: (right of entry on any lands or
waters—no trespass)
RCW 75.08.170: (right to search without warrant)
RCW 75.08.180: (search warrants)
RCW 75.08.190: (arrest without warrant)
RCW 75.08.210: (duty to make requiried reports)
RCW 75.08.260: (gross misdemeanor to violate fisher-
ies code)
RCW 75.12.060: (outlawing nets and weirs)
RCW 75.12.070: (prohibiting taking of fish by gaff
hook)
RCW 75.12.230: (outlawing transportation of salmon
caught in prohibited waters or by prohibited gear)
RCW 75.12.280: (outlawing monofilament gill nets)
RCW 75.16: (outlawing taking of fish for propagation
or scientific purposes)
RCW 75.36.010: (authorizing seizure without warrant
of fish, gear and boats)
RCW 75.36.020: (forfeiture of seized articles)
WAC 220-20-010, (1) - (16): (requiring all fishing
practices to be in conformity to state regulation and pro-
hibiting certain fishing techniques and practices)
WAC 220-20-015, (1) - (9): (setting requirements for
fishing for salmon)
WAC 220-20-020, (1) - (6): (prohibiting certain fish-
ing practices with respect to food fish other than salmon)
WAC 220-20-025: (prohibiting certain pratices with
respect to clams, crabs and shellfish)
WAC 220-20-030: (purporting to specifically restrict
Indian fishing)
WAC 220-28-010: (establishing emergency closed
periods)
A22
WAC 220-47-020, (4), (12): (establishing a salmon
preserve and prohibiting commercial fishing at such pre-
serves in places which are the usual and accustomed
fishing grounds of intervenor)
WAC 220-47-030: (prohibiting use of certain gear for
catching of salmon on Puget Sound)
WAC 220-47-040: (establishing reasons and dates for
use of purse seine fishing techniques for salmon in Puget
Sound)
WAC 220-47-060: (establishing closures for gillnet
salmon fishing in Puget Sound)
WAC 220-48-070: (establishing bottom fishing areas)
_ WAC 220-48-080: (establishing limitations on gear
use for bottom fishing)
WAC 220-48-090: (establishing certain closed waters
for bottom fishing)
WAC 220-48-100: (establishing seasons for bottom
fishing with gear other than otter trawl)
WAC 220-48-120: (establishing restrictions on use of
gear for herring and candlefish fishing)
WAC 220-48-130: (prohibiting herring or candlefish
fishing except with gear authorized by regulation)
WAC 220-48-140: (establishing seasons for herring
and candlefish)
WAC 220-48-150: (establishing restrictions on perch
fishing)
WAC 220-48-170, 180, 190, 200: (establishing restric-
tions on anchovy and pilchard fishing)
WAC 220-48-210, 220, 230, 240: (establishing restric-
tions on smelt fishing)
WAC 220-56-020: (establishing restrictions on fishing
for personal use)
WAC 220-56-023: (prohibiting salmon fishing for per-
sonal use without possession of a required card)
WAC 220-56-030: (establishing possession limits for
food fish)
WAC 220-56-050: (establishing general regulations
for handling of food fish)
aa
A23
Further, that the defendant be forever restrained
from enforcing its criminal penalties against members of
the Quileute Indian Tribe, including fines, jail, seizure,
confiscation and forfeiture of gear, vessels and fish, when
the tribe or its members are fishing at usual and accus-
tomed grounds and stations.
4. Defendant be confined to civil remedies in any
case where it seeks to interfere with the tribe’s fishing
rights and in any such case, the burden should be upon
the defendants to show that any interference proposed by
it is the least restrictive consistent with the necessary
escapement for preservation of the species.
5. Intervenor tribe has exclusive jurisdiction to per-
mit and regulate fishing by all persons within the bound-
aries of its reservation.
6. Defendants have a duty to regulate fishing which
is under their jurisdiction so as to prevent interference
with it by others who are not members of the Quileute
Indian Tribe.
7. The right of the Quileute Indian Tribe to promul-
gate and enforce its own Tribal fishing regulations which
should be applicable to its members with respect to exer-
cise of their treaty rights is affirmed.
DATED this 3rd day of May, 1971.
/s/ Auvin J. Zionrz
Attorneys for Intervenor
3101 Seattle-First National Bank Bldg
Seattle, Washington 98104
Telephone: MAin 3-1255
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NO. 9213
UNITED STATES OF AMERICA,
Plaintiff,
Upper SKAGIT RiveR TRIBE,
Plaintiff Intervenor,
v.
STATE OF WASHINGTON, THOR C. TOoLLEFSON, individually,
and as Director of the State of Washington Deparment of
Fisheries; CarL Crouse, individually, and as Director of
the State of Washington Department of Game; -JAMEs
AGEN, CLAUDE Bekins, Artuus S. Corrin, Epson Dow,
ELMER G. GERKEN, and Haroip PeBRies, individually
and as members of the State of Washington Game
Gommission,
Defendants.
Plaintiff-Intervenors allege:
JURISDICTION
1. This court has jurisdiction of this action undér 28
USC 13381, 1337, 1348(3), 1343(4), and 1362. his is a civil
action for declaratory relief, pursuant to 28 USC 2201 and
2202. and injunctive relief with respect to the enforeement
of certain statutes, regulations, orders, practices, and poli-
cies of the State of Washington and its officers and agents,
including Thor C. Tollefson, Director of the Department
ot Fisheries, and Car] Crouse, Director of the Department
of Game, and the members of the State of Washington
Game Commission, restricting, prohibiting, and otherwise
qualifying the rights of Plaintiffs and the members of
Plaintiff tribes to take fish wihin Indian country and at
their usual and accustomed places off their reservations. It
ee
A25
is brought under the Constitution, laws, and treaties of
the United States including the Commerce Clause, Article
I. Section 8, Clause 3, of the Constitution; the Supremacy
Clause, Article VI, Clause 2, of the Constitution; Amend-
ments I and IV to the Constitution; and the Due Process
and Equal Protection Clauses of Amendment XIV to the
Constitution; 18 USC 1151 through 1153; 42 USC 1983;
Public Law 280 (Act of Aug. 15, 1953, 67 Stat. 588 et. seq.,
as amended); the Treaty of Point Elliott, January 22,
1855, 12 Stat. 927; as related to Plaintiff-Intervenors,
Upper Skagit River Tribe this action seeks to have a
decision made as to the interpretation of the said Treaty
of Point Elliott as relating to the Plaintiff Intervenor and
to the authority of the State of Washington through their
respective agencies and employees to regulate fishing and
how such regulations, orders or policies as set forth or
promulgated by the State of Washington agencies or em-
ployees would affect the rights, privileges and immunities
secured to the Plaintiff-Intervenors by the United States
Constitution or by the Treaty as above set forth.
Plaintiff-Intervenors contend that any state statutes
and regulations initiated or executed by the State of
Washinton is unconstitutional as applied to the Plaintiff-
Intervenors.
WHEREFORE, Plaintiffs pray that this Court:
1. Assume jurisdiction of this case determine that
this matter may be heard as a class action.
2. Declare that:
a. Plaintiff tribes are entitled to sufficient fish from
the waters within and adjoining their reservations and
passing by their usual and accustomed fishing stations in
order for such tribes and their members to derive their
subsistence, sustain their livelihood and continue their
wav of life. culture. and religion now and in the future:
A26
b. Plaintiffs have a right to fish free from the prohibi-
tions, restrictions, and regulations of the State of Wash-
ington upon Plaintiffs’ reservations which reservations
include all lands reserved by such tribes in treaties exe-
cuted by them and the United States even though such
lands subsequently may have been patented or rights of
way granted across them, whether or not Indian title to
such lands has been extinguished, and including Indian
allotments held in trust outside the boundaries of reserva-
tions which were obtained in exchange for reservations
land and to which the Indian title has not yet been
extinguished.
c. Plaintiffs have a right to fish at usual and accus-
tomed grounds and stations outside their reservations as
reserved in their treaties with the United States, subject
to no qualification or limitation by the State of Washing-
~ ton except in the extreme circumstances when the regula-
tion is shown by the state to the satisfaction of a court of
competent jurisdiction to be necessary for conservation of
fish which conservation cannot be achieved by restriction,
regulation, or prohibition of fishing by non-Indians and
will not be achieved by tribal regulation;
d. Defendants have a duty to exercise the police
power of the State of Washington, to regulate fishing by
non-Indians, which is under their jurisdiction, and to
institute programs of conservation and propagation, so as
to insure that Plaintiffs’ treaty rights are protected and
that there is available to Plaintiffs sufficient fish for
subsistence, the maintainance of a livelihood, and the
exercise of their traditional culture and religion;
e. Defendants’ continued trespasses, seizures, harass-
ment, intimidation, threats, and other interferences with
the lawful exercise by Plaintiffs of their rights under their
treaties with the United States violates Plaintiffs’ civil
rights.
3. Enjoin Defendants, their officers and agents, and
all persons in concert or participation with them, from:
A27
a. Enforcing or attempting to enforce any state stat-
ute regulation, or order purporting to prohibit, regulate,
restrict, authorize, or license fishing by any person in
waters adjacent to or passing through lands within the
boundaries of Plaintiffs’ reservations as reserved in the
treaties entered into by Plaintiffs’ tribes with the United
States even though such lands subsequently may have
been patented or rights of way granted across them,
whether or not Indian titles to such lands has been extin-
guished, or allotments or lands outside such reservations
which were exchange for allotments within the reservation
condemned or otherwise taken, the Indian title to which
allotments or lands has not been extinguished, except
when such endorsement is pursuant to a request by or
agreement with a tribe having jurisdiction over the land in
question or individual Indians holding allotments or other
lands outside the reservation;
b. Attempting to apply or enforce any statute, regula-
tion or order which is declared by this court to be contrary
to the treaties between the tribes and the United States or
their purposes, or violative of any provision of the United
States Constitution;
c. Considering, developing, drafting, enacting, or pro-
mulgating statutes, regulations, or orders intended to reg-
ulate fishing by non-Indians under Defendants’ jurisdic-
tion without including members of Plaintiffs’ Tribes upon
decision making bodies and boards.
4. Retain jurisdiction of this case to enforce compli-
ance with the orders of this court;
5. Award Plaintiffs their costs in this action;
6. Grant such other relief as may be proper.
DATED this Ist day of October, 1971.
/s/ WiiwiiaM A, Strives, IR.
IN THE
Supreme Court of the United States
October Term, 1978
STATE OF WASHINGTON, ct al.,
Petitioners,
v.
Wasnincton State Commenctat PAsseNGER FISHING VESSEL
ASSOCIATION AND WASHINGTON KELPERS ASSOCIATION,
Respondents.
State oF WASHINGTON, ct al.,
Petitioners,
v.
Unirep States oF AmMenica, ct al.,
Respondents,
Pucet Sounp GiLtNetrens AssociaTion, et al.,
Petitioners,
Vv.
Unrrep States District Court FOR THE
Western District oF WasHINGTON,
Respondent.
BRIEF OF RESPONDENT INDIAN TRIBES
(Excerpts)
Bl
121
In contrast, the only issue now before the Court is the
extent of the tribes’ reserved property rights. Clearly, it is
B3
122
not inconsistent with the status of Indian tribes, or with
non-treaty constitutional liberties*” that they should pos-
sess the treaty fishing rights declared by the District Court.
Indeed, many of the cases discussing the canons of con
struction deal with questions of Indian tribal property
rights. See e.g., United States v. Winters, 207 U.S. 564
(1908): United States v. Winans, 198 U.S. 371 (1905);
Alaska Pacific Fisheries v. United States, 248 U.S. 78
(1918): Tulee v. Washington, 315 U.S. 681 (1942); An-
toine v. Washington, 420 U.S. 194 (1975); McClanahan v.
Arizona State Tax Commission, 411 U.S. 164 (1973);
Choate v. Trapp, 224 U.S. 665 (1912). Not only is there
no tension between this reservation of rights and their sta-
tus as tribes. but it appears from the evidence that this
is the primary consideration upon which the tribes insisted
in exchange for ceding their vast holdings.
310. The equal protection argument raised bv the State and Asso
ciations is without merit. See Part VII, infra
186
As Washington points out, if the Court con-
cludes that the treaties reserve to the tribes rights which
are separate and distinct from those of non-treaty citizens,
“such a conclusion would remove the impediment . . . to
the exercise of necessary regulatory power by the Depart-
ment of Fisheries.” State Br. at 99. Thus, there will be no
continuing need for injunctions like the ones at issue. The
District Court's injunctions of September 27, 1977 and
June 6. 1978, have become necessary only because of the
unfortunate hiatus in State enforcement power.
The Court of Appeals upheld the September 27 injunc-
tion concluding,
The fishers’ interest is . . . derivative of the State’s
interest; the fishers are in privity with the state and
are bound by actions affecting its sovereign interests
to which it is a party.
573 F.2d at 1132. If this Court reaches the argument, it
must agree that the court was correct. The State has vig-
orously litigated this case, not as a reluctant representative,
but in its sovereign capacity on behalf of citizens, and as
the consistent representative of its licensees, the non-treaty
fishermen. In addition, the District Court’s orders can be
sustained by the All Writs Act, 28 U.S.C. §1651, for they
are necessary to protect and effectuate the court’s judg-
ments.
1. The State has fully litigated the extent of its
sovereign interest in the fishery, and _ this
binds its fishermen.
The United States and the Indian tribes have prosecuted
this action against the State of Washington to vindicate
their treaty rights and prevent state-authorized preemp-
Bd
187
tion of those rights by the non-treaty fishermen. Although
the State Departments of Fisheries and Game have inter-
vened, the State of Washington remains the principal de-
fendant. Washington has vigorously defended its sovereign
interest in regulating and preserving the fishery for ex-
ploitation by its citizens. Cf., Baldwin v. Fish & Game
Comm n of Montana, 436 U.S. 371 (1978) (Burger, C. J.,
concurring ).
This Court recently confirmed the continuing vitality of
parens patriae in Hawaii v. Standard Oil Co., 4035 U.S. 251
(1972), holding that a state appropriately represents and
binds its citizens in litigation where the sovereign interests
of the state are implicated.*” The Supreme Court of Wash-
ington has also recognized the parens patriae doctrine as it
relates to Washington’s sovereign interest in its fish re-
sources. Washington Kelpers Assoc. v. State, 81 Wn.2d 410,
502 P.2d 1170 (1972), Cf., State ex rel. Bacich v. Huse,
187 Wash. 75, 59 P.2d 1101 (1936). Moreover, the State
legislature has declared that “preservation of the salmon
industry and the salmon resources of the State of Wash-
ington is vital to the State’s economy. RCW 75.18.0035.
Washington thus acted in its governmental capacity, in
422. The states act as parens patriac in protecting their citizens’ inter-
ests in clean water, e.g., New York v. New Jersey, 256 U.S. 296 (1921),
Missouri v. Illinois, 180 U.S. 208 (1901); sufficient water, e.g., Kansas
v. Colorado, 206 U.S. 46 (1907); clean air, e.g., Georgia v. Tennessee
Copper Co., 206 U.S. 230 (1907); free trade, e.g., Hawaii v. Standard
Oil Co., 405 U.S. 251 (1972), Pennsylvania v. West Virginia, 262 U.S.
553 (1923); and preservation of fish, City of Tacoma v. Taxpayers of
Tacoma, 357 U.S. 320 (1958).
B6
+ ib ht
188
defense of its sovereign interests, in this litigation.“
Clearly when Washington protects its interest in the fishery
it also represents the interests of its citizens in the fishery.
Under these circumstances, when a State is a party as
parens patriae, any judgment rendered against the State
binds all citizens of the state. City of Tacoma v. Taxpayers
of Tacoma, 357 U.S. 320 (1958); New Jersey v. New York,
345 U.S. 369 (1953); Wyoming v. Colorado, 286 U.S. 494.
(1932 ) #4
423. Members of this Court have expressed in several ways the re-
lation of the State to fish resources within its boundaries. Whether the
State’s interest in the right to harvest fish and in the fish themselves is
described as “common ownership,” Geer v. Connecticut, 161 U.S. 519,
529 (1896), or as a “power to preserve and regulate the exploitation
of an important resource,” Douglas v. Seacoast Products, 431 U.S. 265,
284 (1977), it is clear that the State’s sovereign interests are implicated.
424. The parens patriae role is particularly appropriate in the instant
case where the litigation focused on the portion of the harvestable fish
resource which may be made available to state citizens collectively. In
defending this litigation, Washington did not act on behalf of any single
citizen group. Rather, the State defended its sovereign interests in the
fishery and attempted to maximize the portion of the resource available
for exploitation by its citizens.
B7
196
2. The District Court acted properly, pursuant
to the All Writs Act, in enjoining non-parties
from interfering with its judgment.
The State and its non-treaty licensees have consistently
resisted the decrees, orders and injunctions entered by the
District Court, see 573 F.2d 1123, 1126 (9th Cir. 1978),
App. A-2-3, Petition in No. 78-119, and United States v.
Olander, 584 F.2d 876 (9th Cir- 1978), cert. pending. This
section will discuss the breadth of the District Court's
power to protect the federal rights which it has enunciated,
the similarity of this and numerous schocl desegregation
cases, and an alternate legal theory under which the Dis-
trict Court may protect the peaceful enjoyment of property
partitioned by the court.
B8
199
Finally, the District Court acted in rem in partitioning
the right to take fish, and it retains jurisdiction over the res
to the extent necessary to prevent interference with the
partition. United States v. Washington is an in rem action
to divide the property right in the taking of fish. 520 F.2d
at 687-88, Joint App. 50; 573 F.2d at 1126, 1128, App. A-2,
4, 7, Petition in No. 78-119. The label “in rem” properly
applies to a wide variety of actions where the court, in
order to give effect to its jurisdiction, must control the
property. See 1A Pt. 2 Moore's Federal Practice, §0.214
(1978).
=,"
oe ret cee tt MAES
B9
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.