Amicus Curiae Brief — Makah Tribe v. Washington

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NO * 87-1390 eyo gen ik, 36 ANiO4 a

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

MAKAH TRIBE, et al.,

Petitioners

vs

STATE OF WASHINGTON, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

BAD RIVER BAND OF LAKE SUPERIOR TRIBE

OF CHIPPEWA INDIANS, ET AL.;}

(additional amici listed on inside cover)

IN SUPPORT OF PETITIONERS

Robert S. Pelcyger

Counsel of Record

Fredericks & Pelcyger

The Canyon Center

1881 9th St., Ste. 216

Boulder, CO 80302

(303) 443-1683

Counsel for Amici

Curiae

April, 1988

ADDITIONAL AMICI

Bay Mills Indian Community;

Benton Utu Utu Gwaitu Paiute Tribe;

Big Lagoon Rancheria;

Big Pine Band of Owens Valley Paiute-

Shoshone;

Cahuilla Band of Mission Indians;

Campo Band of Mission Indians;

Confederated Tribes of the Colville

Reservation;

Confederated Tribes of the Warm Springs

Reservation of Oregon;

Covelo Indian Community;

Gila River Indian Community;

Grand Traverse Band of Ottawa and

Chippewa Indians;

Klamath Tribe;

La Jolla Band of Mission Indians;

Lac Du Flambeau Band of Lake Superior

Chippewa Indians;

Manzanita Band of Mission Indians;

Mescalero Apache Tribe;

Morongo Band of Mission Indians;

Paiute-Shoshone Indians of the Bishop

Community;

Pala Band of Mission Indians;

Pechanga Band of Mission Indians;

Redwood Valley Rancheria;

Robinson Rancheria Citizen's Council;

Rohnerville Rancheria;

San Pasqual Band of Mission Indians;

Santa Ynez Band of Mission Indians;

Santa Ysabel Band of Mission Indians;

Sault Ste. Marie Tribe of Chippewa

Indians;

Sherwood Valley Rancheria;

St. Croix Chippewa Indians of Wisconsin;

Timbisha Shoshone Tribe;

Trinidad Rancheria; and

Viejas Band of Capitan Grande Mission

Indians

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ....ccccccccccsece ii

INTEREST OF THE AMICI CURIAE............ 1

REASONS FOR GRANTING THE WRIiT........... 3

I. THE NINTH CIRCUIT IGNORED

THIS COURT'S TEST FOR

DETERMINING THE ACTIONABILITY

OF CLAIMS UNDER 42 U.S.C.

oh): er ee ae a ee ee 2 ee a 3

II. THE NINTH CIRCUIT

MISAPPREHENDED THE NATURE

OF THE TRIBES* RIGHTS AND

THE STATE'S CORRESPONDING

DUTY; THIS COURT'S DECISION

IN FISHING VESSEL; AND THE

DUTY OF THE COURT ITSELF........... 7

III. THE NINTH CIRCUIT ERRED

IN DENYING ATTORNEYS* FEES

- FOR THE TRIBES* SUCCESSFUL

CONSTITUTIONAL CLAIMS............. 11

CONCLUSION... ccc ccccccccccccccsccccceces 16

(1)

TABLE OF AUTHORITIES

Cases Page(s)

Antoine v. Washington, 420

oe wae! ©. yy) Pe area ae ee 4

Hensley v. Eckerhart, 461 U.S.

G24 CESS) 6c ea waveescrrissrsastweneee 14-15

Lac Courte Oreilles Band of

Lake Superior Chippewa Indians

v. Wisconsin, 663 F.Supp. 682

(ee re ee eee 4

Maine v. Thiboutot, 448 U.S.

ee. |, a ee re a ee ee ree 3, 4

Middlesex County Sewerage Auth.

v. National Sea Clammers Ass'‘n,

yo Pe Ge es Perr ey eee 4, 5

Pennhurst State School and

Hosp. v. Halderman, 451 U.S.

ae ee a a es eck eee Ss, 2

United States v. Washington,

Sie: F268 feae €3Gm CEP. 2987) <6 vere , Poe

United States v. Washington,

384 F.Supp. 312 (W.D. Wash.

1974), aff'd, 520 F.2d 676

(Sth Circ. 1975), cert.

denied, 423 U.S. 1086

Oly, } Fae oe eee 7-8, ib, 4&4, &5

(11)

TABLE OF AUTHORITIES (Cont.)

Cases Page(s)

United States v. Washington,

506 F.Supp. 187 (W.D. Wash.

1980) ("Phase II"), aff'd in

part and rev'd in part, 694

F.2d 1374 (9th Cir. 1982),

on rehearing aff'd in part

and vacated in part, 759 F.2d

1353 (9th Cir. 1985), cert.

denied, 474 U.S. 994 (1985)... ccccsccces 9

Puget Sound Gillnetters Ass'n

v. United States District Court,

573 F.2d 1123, 1130 (9th Cir.

1978), aff'd, modified and

remanded sub nom. Washington

v. Washington State Commercial

Passenger Fishing Vessel Ass'n,

443 U.8. GSB CASTS). cacecsiesasasese Passim

Wright v. City of Roanoke

Redevelopment and Hous. Auth.,

479 U.S. .......» 107 &.Ct.

766 CI9ST) acces sreeeeeseaas sone ns 4, 3, 4&8

Statutes

42 U.8.C. SiGGB. cs cacvidacssbacsaere Passim

42 U.8.C.~ BiGGG acc csceorecvteravsees 14, 16

(iii)

NO. 87-1390

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

MAKAH TRIBE, et al.,

Petitioners

Vv.

STATE OF WASHINGTON, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

BAD RIVER BAND OF LAKE SUPERIOR TRIBE

OF CHIPPEWA INDIANS, ET AL.;

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici curiae are 33 federally

recognized Indian tribes.2/ Amici

have a substantial interest in the

resolution of the issues raised by

petitioners in this case. The issues

1/counsel for petitioners and

counsel for respondents have consented

to the filing of the brief of amici in

support of petitioners. The consents

are submitted herewith.

involve the scope of 42 U.S.C. §1983 and

the interrelationship between that

statute and the rights, privileges, and

immunities of American Indian tribes

under federal law.

Some amici tribes are now seeking

attorneys’ fees in federal courts under

42 U.S.C. §§1983 and 1988. All amici

are concerned about the body of law

holding that §§1983 and 1988 are not

available to American Indian tribes to

enforce their rights under federal

treaty, statutory, and common law.

Amici are convinced that their ability

to protect their federal rights from

state deprivation will be severely

limited by the unavailability of

attorneys’ fees under §§1983 and 1988.

The decision of the Ninth Circuit

Court of Appeals particularly prejudices

those tribes whose access to legal

assistance is indispensable but

restricted by their poverty. It also

harms tribes in cases where tribal

enforcement of the rights is essential

because the federal trustee, either

through choice or neglect, fails to

defend the integrity of the trust

confirmed in treaties, statutes and

court decisions. Additionally, federal

resources are increasingly limited.

Finally, cases to vindicate treaty

rights affecting important resources of

an area may take years to complete

because of the extreme sensitivity of

the issues. Such cases are especially

draining on normally scarce tribal

resources.

REASONS FOR GRANTING THE WRIT

Be THE NINTH CIRCUIT IGNORED THIS

COURT'S TEST FOR DETERMINING THE

ACTIONABILITY OF CLAIMS UNDER 42

U.S.C. §1983.

In Maine v. Thiboutot, 448 U.S. l

(1980), this Court held that 42 U.S.C.

§1983, which provides civil remedies for

~

deprivation under the color of state law

of any “rights, privileges, or

immunities secured by the Constitution

and laws,” protects all federal rights.

448 U.S. at 4-8 (emphasis added). The

phrase “and laws" was not to be limited

to a particular subset of laws.2/

Subsequently, this Court decided

Pennhurst State School and Hosp. v.

Halderman, 451 U.S. 1 (1981); Middlesex

County Sewerage Auth. v. National Sea

Clammers Ass‘n, 453 U.S. 1 (1981); and

Wright v. City of Roanoke Redevelopment

and Hous. Auth., 479 U.S. Rae

S.Ct. 766 (1987). These cases suggest

two possible exceptions to the holding

of Thiboutot. First, rights for which

2/O0f course, Indian treaties have

long been recognized to be “the laws” of

the United States. See, e.g., Antoine

v. Washington, 420 U.S. 194, 204 (1975);

see also Lac Courte Oreilles Band of

Lake Superior Chippewa Indians v.

Wisconsin, 663 F.Supp. 682, 688 (W.D.

Wis. 1987) (Indian treaties are federal

laws within the meaning of §1983).

~

CN

Congress has provided special remedies

exclusive of other remedies are not

within §1983. Sea Clammers. Second,

rights which are not judicially

enforceable are not actionable under

§1983. Judicial enforcement of rights

is impossible where there is no private

cause of action to enforce obligations

under the statute in question,

Pennhurst, or where the statute supplies

no standards of enforcement or

performance binding upcn the state,

Wright.

None of these narrow exceptions

apply to the tribal rights vindicated in

this case.2/ First, there is no

applicable exclusive remedial scheme.

Second, the Tribes' treaty rights are

judicially enforceable. The Tribes'

3/"Tt is not disputed that the

Indians [have] rights under the[ir]

treat[ies]." United States v. |

Washington, 813 F.2d 1020, 1023 (9th

Cat. &9eri.s

win

rights of action under their treaties

are beyond question. Moreover,

standards of enforcement or performance

are superfluous where the basic issue is

the viability and scope of tribal treaty

rights, and where the duty of third

parties is one of non-performance; that

is, a duty of absolute non-interference

with the treaty rights as defined by the

treaty and judicial decisions.

Accordingly, under this analysis,

the Tribes‘ rights should have been held

actionable under §1983. Instead, as

Petitioners point out , 27

the Ninth

Circuit overlooked all of the

controlling cases of this Court, and

rendered §1983 unavailable to Indian

tribes seeking to vindicate treaty

rights.

4/See Pet. Br. at 38-39.

II. THE NINTH CIRCUIT MISAPPREHENDED

THE NATURE OF THE TRIBES’ RIGHTS

AND THE STATE'S CORRESPONDING DUTY;

THIS COURT'S DECISION IN FISHING

VESSEL; AND THE DUTY OF THE COURT

ITSELF.

The Ninth Circuit erroneously

characterized the Tribes’ claims as

rights of fish quantification, or

apportionment. The court then found

that apportionment rights, as

articulated in Washington v. Washington

State Commercial Passenger Fishing

Vessel Ass'n, 443 U.S. 658 (1979)

("Fishing Vessel"), lacked sufficient

specificity to support a finding that

the state had breached an obligation

actionable under 42 U.S.C. §1983.

United States v. Washington, 813 F.2d at

1023. This analysis was incorrect for

three reasons.

First, the viability of the Tribes'

treaty rights was initially at issue in

United States v. Washington, 384 F.Supp.

312 (W.D. Wash. 1974), aff'd, 520 F.2d

676 (9th Cir. 1975), cert. denied, 423

U.S. 1086 (1976) ("Phase I"). In Phase

I, the Tribes first confirmed that their

rights, express in the treaties, to take

fish were special rights different from

those of other state citizens and

defined by reference to the special

interests of the Tribes. However, in

denying attorneys' fees, the Ninth

Circuit completely ignored Phase I, and

narrowly focused on the collateral

apportionment rights addressed in

Fishing Vessel.

Second, even if the question of the

actionability of the rights under §1983

is informed by the decision in Fishing

Vessel, that case was not merely or even

principally an apportionment case. It

was first and foremost a case confirming

the viability of the Tribes’ special

rights to take fish. This Court

rejected the State's argument that such

Special tribal rights were illusory or

unconstitutional. Accordingly, the bulk

of the decision in Fishing Vessel

addressed the conflict between the

State's position and the plain language

and previous judicial interpretations of

the treaties. See 443 U.S. at 674-685.

Apportionment rights were merely a

corollary of this central holding.’

Third, apportionment presents

issues that go to the scope of the

2/The Ninth Circuit's

mischaracterization of Fishing Vessel as

solely an apportionment case is further

evidenced by the fact that Fishing

Vessel did not fully resolve the

apportionment issues. This Court

reserved the hatchery apportionment

issues for further proceedings. The.

hatchery issues were subsequently

addressed in United States v.

Washington, 506 F.Supp. 187 (W.D. Wash.

1980) (“Phase II"), aff'd in part and

rev'd in part, 694 F.2d 1374 (9th Cir.

1982), on rehearing aff'd in part and

vacated in part, 759 F.2d 1353 (9th Cir.

1985), cert. denied, 474 U.S. 994 (1985).

treaty rights involved and not to

standards of performance in the sense

used by this Court in Wright. Rather, a

decision on apportionment is an exercise

of a court's traditional power to define

the extent of a pre-existing federal

right with which a state may not

interfere. Legislative standards of

performance are irrelevant to issues of

the scope of a federal right to be free

from state interference.

Accordingly, the Ninth Circuit

erred in characterizing the Tribes'

action as principally one of

apportionment rights, and in treating

apportionment rights as presenting

issues of standards of state performance

rather than issues of the scope of the

Tribes' right to be insulated from state

interference.

~

III. THE NINTH CIRCUIT ERRED IN DENYING

ATTORNEYS’ FEES FOR THE TRIBES’

SUCCESSFUL CONSTITUTIONAL CLAIMS.

Amici adopt the position of

Petitioners that the decision of the

Ninth Circuit, holding that the Tribes’

properly pled and successful

constitutional claims were nevertheless

insubstantial and therefore fail to

Support a fee award, is in fundamental

conflict with the principles of §1983

and decisions of this Court. 2

Contrary to the opinion of the Ninth

Circuit, the instant §1983 case presents

a Classic situation warranting an award

of reasonable attorneys’ fees. Not only

were the constitutional claims

successful in the district court,’

6/pet. Br. at 51-58.

7/See Phase I, 384 F.Supp. at

401-04. Merely because these holdings

were not appealed by the State does not

render them "insubstantial" for purposes

of a fee award.

ee

but, as this Court noted, “[b]ecause of

the widespread defiance of the District

Court's orders, this litigation has

assumed unusual significance.” Fishing

Vessel, 443 U.S. at 674.

In 1978, following Phase I, the

district court was forced to invoke

broad contempt powers to enforce its

orders because of the “total

intransigence” of defendants acting

under color of state law. Puget Sound

Gillnetters Ass'n v. United States

District Court, 573 F.2d 1123, 1130 (9th

Cir. 1978), aff'd, modified and remanded

sub nom. in Fishing Vessel. As the

Ninth Circuit stated in upholding the

Gistrict court's enforcement action:

The state's extraordinary

machinations in resisting the

decree have forced the district

court to take over a large share of

the management of the state's

fishery in order to enforce its

decrees. Except for some

desegregation cases the district

-l12=-

court has faced the most concerted

official and private efforts to

frustrate a decree of a federal

court witnessed in this century.

573 F.2d at 1126 (citations omitted),

quoted in Fishing Vessel, 443 U.S. at

696 n.36.

Moreover, in denying attorneys'

fees, the Ninth Circuit erred by

ignoring a significant component of the

Tribes’ constitutional rights. The

court focused on the rights to

procedural due process (e.qg., right to a

hearing before nets are destroyed or

8/

removed), and equal protection,

which were but two facets of the Tribes’

constitutional rights in this

litigation. The case also confirms the

implicit substantive rights that were

violated by the State.

8/See United States v.

Washington, 813 F.2d at 1024.

a hy

Phase I confirmed that the Tribes’

rights to take fish were analogous to

property rights. 520 F.2d at 685.

Violations by the State of the rights

thus essentially amounted to a

regulatory taking without compensation.

This aspect of the Tribes‘ rights was

upheld by this Court in Fishing Vessel,

443 U.S. at 684-685, but was completely

ignored by the Ninth Circuit in its

decision below.

Under the circumstances of this

case, where significant constitutional

rights were at stake and were

successfully vindicated against

deep-seated resistance, there can be no

clearer example of a situation where

fees are warranted. To avoid a fee

award, as the court below did, too

narrowly interprets the congressional

policies behind §§1983 and 1988. See

Hensley v. Eckerhart, 461 U.S. 424

alsa

(1983). The purpose of these sections,

to ensure effective access to the

judicial process to vindicate

deprivations of procedural and

substantive constitutional rights,

applies with full force to this case.

This case, which was brought to remedy

widespread official discrimination

against treaty fishermen, and to halt

deprivations of many aspects of their

2/ and which, after a

rights,

successful judgment, was met with “the

most concerted official and private

efforts to frustrate a decree of a

federal court witnessed in this

century, is precisely the type of

9/See Phase I, 384 F.Supp. at 388

(Findings Nos. 193-196).

10/phase I, 573 F.2d at 1126,

quoted in Fishing Vessel, 443 U.S. at

696 n.36.

=

action to which §§1983 and 1988 were

intended to apply.

CONCLUSION

Congress and this Court have long

secured tribal rights from deprivation

by the states. To meaningfully

vindicate the rights, the remedies of 42

U.S.C. §§1983 and 1988 must be

available. Accordingly, the petition

for writ of certiorari should be granted.

Respectfully submitted,

Robert S. Pelcyger

Counsel of Record

Fredericks & Pelcyger

The Canyon Center

1881 9th St., Ste. 216

Boulder, CO 80302

(303) 443-1683

Counsel for Amici Curiae

April, 1988

stiin