# Amicus Curiae Brief — Makah Tribe v. Washington

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1373%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 1034

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1373%3A3. Public record. Not legal advice.