Brief in Opposition to Petition for Writ of Certiorari — Skokomish Tribe of Indians v. France

Office-Supreme Court, U.S, |

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_ Supreme Court, of the United States

- October Term, 1963

No. 703

SKOKOMiISH INDIAN TRIBE,

. a ‘eorporation,

; Petitioner,

Vv.

E. L. France, et al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI |

Joun E. Ryan, Jr.

RayMonpD C. Swanson | ‘ |

_ Ryan, ASKREN, CARLSON, BusH & SWANSON,

-. 545 Henry Building nO

Seattle, Washington ~~.

Counsel for Respondent -

Simpson Logging Company

Of Counsel: :

F. JosErpH DONOHUE

DONOHUE, KAUFMAN & SHAW

Judiciary Square, 503 D St: N.W.

Washington, District of Columbia

METROPOLITAN PRESS AND WESTERN ge SEATTLE, WASHINGTON

.

—

SUBJECT INDEX

| Page

Citations to Opinions Below........ ADE ON

Jurisdiction EE hans SRR A Ee er ED ee 2

Questions Presented Rapier cats PR ator Seer Pore 2;

‘Statutes Involved ........... enim e Pees cee secs casnalngsen

Statement of the Case ........... Rca habe nee sete:

Argument ees te Rye senronsnelvansesensnensoeeen Lees ices rasta 5

TABLE OF CASES

Choctaw Nation v. United States, 318 U.S. 423,

3 St. G72, G7 L.Ed S77 (1063)...........................8, ]0-

- "Graver Mfg. Co. v. Linde, 336'US. 271.

69 S.Ct. 535, 93 L.Ed 672 (1949)... fe 6

Hynes v. Grimes Packing Co., 337 U.S. 86, . =i

69 S.Ct. 968. 93 L.Ed 1231 (1949)... 2... 1... 10

Jones v. Meehan, 175 U.S. 1, 20.$.Ct: 1, io, :

4A L.Ed. 49 { 1899.0... cece eccceeeeceee Gene 10

-Marlin v. Lewallin, 276 U.S. 58,

48 S.Ct. 248, 72 L.Ed 467 (1928)... 10

Moore v. United States, 157 F.(2d) 760

(Gh Cir, 1066) .......0.:...... RTS e eta 7,8

Northern Pacific Railway Co. t. _U United States, de

297 U.S. 355, 33 S.Ct. 368, 57 L-Ed. 44 ( 1913). ....7, 10,

Scufert Bros. € o. v. United States, 249 U.S. 194, |

-39 S.Ct. 203, 63 L.Ed 555 1919)... ties wsiaete. BO

Shoshone Indians v. United States, 324 U.S. 335, .

: 65 S.Ct. 690, 89 L:Ed 985 (1945)... 8, 9-10 —

Shokousieh Tribe v. E. L. France, 320 F.( (2d). 205

(Bah he: FOB) cg DB,

on ol

' “>

Tulee v. State of Washington, 315 U.S. 681,

Page

62 S.Ct. 862, 86 L.Ed 1115 ( 1942 ) D cicceuniie areal 10

United States v. Choctaw Nation, 179 U.S. 494,

- 21 S.Ct. 149, 45 L.Ed 291 (1900)... cee coe 10

United States v. Payne, 264 U.S. 446,

44 S.Ct, 352, ER by) BE, . | | eee as 10

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

58 S.Ct. 794, 82 L.Ed Eee TUPI nicicsctadscacsaccce: Tieton ee 10

United States v. Stotts, 49 F.(2d) 619 (Sth ¢ Cir. 1930). 7

United: States v. Winans, a98 U.S. 371, | <F

25 S.Ct. 662, 49 L. Ed 1089 § 3 Rename: Dhewtemnes ae

Ute Indians v. United States, 330 U.S. 169,

67 S.Ct. 650, 911 L.Ed 823 (1947)....0.002. a 8.

| STATUTES

ein Oo oe ee tee 2

Executive Order dated Eeb. 24° 1874...:..... PARR es, ss

25 Stats. Chapt. 180, page B76 ner napa SOS 2

49 Stats, 1250 ......... FSS MSSviiecnte tb vem Ho sorts 10

ii

IN THE | \

Supreme Court of the United States.

pean October Term, 1963

° : No. 703

_SkOKOMisH INDIAN TRIBE,

a corporation,

Petitioner,

&

E. L. France, et al.,

niin |

BRIEF IN OPPOSITION TO PETITION FOR

‘WRIT. OF CERTIORARI

sinabiaeelicaniiane atest a’ sa

Respondent Simpson Logging Company opposes the |

issuance of a writ of certiorari.. The decision herein prop-

erly turned on factual determinations. The Tria! Court,

after thoroughly considering the~evidence. found against —

petitioner's contentions and entered findings accordingly.

hea : * = ‘ s

-The Court of Appeals reviewed the record and found

the findings to be supported hy substantial evidence. -

This is not an appropriate instance for the Supreme Court

to exercise its discretion under Rule 19 by writ of certiorari ~

to review the case further. ee ot"

on

CITATIONS TO, OPINIONS BELOW

The unpublished memorandum opinion of the District o

Court from which the petitioner appealed is contained

in the record herein. The Opinion of the Court of Appeals

2

for the Ninth Circuit is printed as Appendix A to- the

tifion for” W rit of Certiorari and is reported at) 324

(2d) 205 (1963 ).

/ SURISDICTION

In additjon to petitioner's statement, it shoei he noted

that the ‘time for filing all responses to the Petition for

Writ of/ Certiorari was extended to February 24. 1964.

by Joh F. Davis. clerk, U nited States Supreme Court

ction PRESENTED

I> Should the Supreme Court exercise ,its discretion

by was. of a writ of certiorari to review a case where there

have been concurrent findings of fact by the Trial Court

and the Court of Appeals and agreement) by the two

© courts as to proper applic ation of the rules of construction:

_of treatiestethe facts so. determmed?

.2. Does the mere fact that is oe was unfavorable

-to the Indians (petitioner) justify the assumption that

hoth of the courts below meee applied = rules

ow construction? ;

STATUTES INVOLVED

The. pertinent esaby hetween the Indians and ‘the

United States of America was entered in on January 26.

+1855 atified March .§, 1859, and proclaimed April 29.

‘1859 (12 Stats. 933). The Executive Order was signed

bv President U. $. Grant ‘and dated February 24. 1874.

The Washington Enabling Act is found at 25 5 Stats. Chap-

ter 180, Page 676.

=

.

~

3

‘ STATEMENT OF THE CASE

This action was brought to quiet title to a narrow strip

of tidal: land abutting the original Skokomish Indian res-

ervation. The tidal strip is bordered on the land side by

the private property of respondents and on the water

eside b. public navigable water. The strip has no value -

‘except to: the ahytting’ upland respondent owners, whose

owne: ship of the uplands is not in question, as a means

of access to navigable water. The abutting uplands were

legally allotted to Indians, and legally conveyed by them,

with government approval. to and vested in respondents

and their predecessors in title (Fdg. 9).- Theré is no

longer an. Indian or reservation land along any of the

waterfront and, accordingly. petitioner and its members

do uot have anv.access to the strip except Via the Water

Fdgs 10 and ! » + ro

‘Resp: mdent cae: Logging Company As onh con-

_ cerned with a stretch “at tideland -loc: ated, in Section 26

which is a particularly narrow and rocky stretch of tide-

lund =Fdg: 21). Section 26 has.a separate and different

histor having been part of thie, Fisher homestead: and

not ‘part of the original reservation” The Fisher donation

claim was added to the reservation by purchase and ‘it is

this respondent's contention that the tidelands were not

included

Prior to the commencement. of this action in 1948

petitioner and its members did not assert title. 4y any of

the tidelands in controversy. The State of W: ashington ,

hegan selling the tidelands about 1901 to respondents

and their predecessors in tithe who have occupied the

° j 4 ~ e

lands continuously since their acquisition, have. paid taxes

thereon. and have» made extensive improvements upon

portions of the land | Fdgs. 25 through 30, inclusive. aud

37) ) 7 | | |

As noted by both the trial ‘and appe Hate courts, it “was

conceded that neither the treaty nor the executive order

~ expressly included the tidelands at issue-as part of the

reservation. The -petitioner, however” sought to show

that the tide lands were essential to the Indians: livelihood

and hence the parties at the time of the tre atv must have

intended them to he part of the reservation. The con-

- tention mvolved not only the issue of intent. -but also the

underlying issues ct whether the tidal strip c@Jd or ever

did contain usable quantities of shell fish, and whether

the Indians wére: dependent upon or derived tiaterial ~

subsistence thereffom

Fhe Trial Court. afterhearing a wide range of testimony

and evidence. expressly tound against such contentién

of petitioner and made extensive findings of fact. The

Court of Appeals, after a careful review. of the record

in its entirety. stated: |

it is our conclusion that the findings are jot

clearly erroneous, but. on the contrary. are, amply

gp by the ev idence.”

The’ tidal strip has’ never been and is not now a source

of shell fish in wsable quantities _Fdgs. 20, 21 and 315.

.. The low salinity in this particular locale explains why the .

shell fish and marine life of interest to Indians was found |

‘several miles distant from this tidal strip’: Fdgs. 19 and

22). Outside of berries and deer the Indians depended

5

primafily on salmon-caught in the Skokomish River, which

is the only salmon riv er -entering Heod Canal passing a

through the reservation (Fdgs.°14, 15 and 17). The live-

lihood of the ‘Indians was not dependéat in material _

degree upon shell fish or any type of fishing,on or from

the tidelands in issue ‘(Fdg, 18).

Factually, it” ‘ decnitd be noted that this action does not”

involve “fishing rights.” The treaty ‘involved ‘states in -

“Article IV the reol:

“The right Of taking fish at sel and accustomed

grounds and stations is further secured to said Indians,

in common with all citizens of the United States .

No’ oné has challenged pstiony ay rights to exercise

the: 0: ivileges granted [1 Article IV of the treaty, and

“no issue in this case involves that nati This is

solely an ‘action io trv title to a submerged, tida! strip.

This case has heen fully. and competently tried and

reviewedeh, the courts below and should not be reviewed.

again by wav of writ of certiorari.

ARGUMENT

The petitioner under the heading “Questions Presented”

“raises two questions. The first question deals with the

intent of the parties to the treaty and is in essence a ques-

_ tion: of fact. The Trial Court found against petitioner's

contentions and. entered findings accordingly. The Court:

of Appeals reviewed the record and found the findings

to be supported by substantial evidence. -Accordingly”

this.is not an appropriate instance for the Supreme C ‘ourt

to exercise its discretion by writ of certiorari to review

~~

; =

the case further. As stated: by the Supreme Court in

Graver Mfg. Co. U. Linde, 336 U.S. 271 (1949). at page..

275: )

“A court of law, such as this court is, rather than

a-court for correction of errors in fact, cannot under-

take to review concurrent findings of fact by two

courts below in’ the absence vot a very obyious and

_ exceptional showing of error.’

‘The Second question, as stated ‘by petitioner. creates

some’ confusion since in the five cases cited on pages 2

and 3 of its brief there ate five errors, ‘either with -

respect to the cake name or the page citation. Further-

more, it does not actually state a question and two of the

‘ases cited at this point are not mentioned in petitioner's

argument portion of the brief. In any event. it appears

petitioner is questioning whether the Court of Appeals

properly applied the correct rules of construction to the

treaty and the executive order. A reading of the Court

of Appeals’ opinion clearly shows the’ ‘court fully under-

stood the proper rules of construction and, in light of the

findings of fact. correctly applied them in_ reaching its

decision. | | |

e

Next, we will. address ourselves to the “Reasons” stated

bs petitioner for granting ‘certiorari and their argument

in support thereof. In the first and’ second» Reasons it |

is contended there is an inconsistency between the de-

cision. herein and prior decisions of the United States

Supreme Court ‘and the Ninth Circuit Court of Appeals.

Petitioner states “the first issue Sefore. the court. below

concerns the intention of the Indians and the United

States when they held the. treaty conferencé in 1855... .”

: 7

This is a factual question which has been thoroughly,

reviewed by both courts below. Any apparent inconsist-

ency in results between this and other cases is fully ex- |

plained by the difference in facts. Accordingly, the de-°

cision herein does not have the far-reaching effect asserted

by petitioner, but rather is only of major importance to

meee litigants. As stated in United States v. Stotts, 49

F (2d) 619, 621 | 1930) (a case cited by petitioner in

Appendix D): a |

“Each - treaty: and proclamation must’ rest upon

- its own provisions.’

~The principal cases apparently relied upon by petitioner

in support. of Reasons. and 2 are. Moore v. United States,

157 F.(2d) 760 7 1946); Northern Pacific Railway Co. t.

United. States, 227 U. §. 355 (1913), and T’nited States v.

Winans, 198 U.S. 371 (1905). The first two cases were

specifically and clearly ‘distinguished by the Court of

Appeals. in its opinion on the basis of, the facts involved.

(See pages 30 and 31 of the Petition for Writ of Cer-

tiorari herein.) The Winans case is properly distinguish-

able on the same basis. There.. fishing rights were in-

“ valved and the Indian was being deprived of his right”

to take fish at the usual and accustomed places. This is’

far different from the facts involved herein, as noted in -

the Statement of the Case.

Appendix D used by potitionsr in support of reason :

No. 1 is inconclusive and misleading. The appendix is

not part of the record, having been presented for the

> 8 -

first time in the petition, and should not be considered

hy the court unless a, full and comprehensive analysis is

made of-all of the treaties and reservations in the Pacific: .

_ Northwest bordering tidal water: If such an approach

truly has merit, the table “Appendix D) should have —

been prepared. and presented at the:time of trial.

avs | a :

In.any event, it should be noted that Appendix D only.

refers to three cases outside’ of the present one. In two

"of the cases the description specifically included the low

water mark and the’ third decision was based on the °

phrase. “sufficient ‘for his wants.” together with a ‘factlal

pattern of use and: need for the tidelands. . This latter

case, Moore v. United States, 157 F.(2d)- 760 (9th Cir.

1946 j, was specifically distinguished by the Court of

| Appeals in this case. (See page’ 30° of€ thé Petition for

Writ of Certiorari: ) . x

The and and 4th ‘Reasons stated by petitioner relate to .

the rules of treaty construction. The petitioner has cited

several cases in this regard, but has failed to direct the

‘court's attention to more recent United States Supreme ..

Court decisions which clarify and set forth the-rules of con-

‘striction. These cases, namely, Choctaw Nation v. United

States, 318 U. S. 423 (1943); Ute Indians v. United States, :

"330 U. S. 169 (1947), and Shoshone Indians v.’ United —

States, 324 U. S, 335 (1945), were cited by the Court of

Appeals. ‘In Sts opinion, the Court of Appeals specifically:

quoted the ‘following : portion of the Supreme Court's $

opinion in i the Choctaw Nation ‘case, supra:

:

a

9

“Of course, ‘treaties are “construed more ‘tiberall»

than private agreements, and to ascertain their mean-

ing we may Pook beyond the written words to the.

history of the treaty, the negotiations, andthe prac-

tical construction. adopted by the parties. (Citing

cases.) Especially is this true in interpréting treaties

~ and agreemerits with the Indians; they are to be

- construed, so far as possible, in the sense in which

the Indians understood them, and ‘in a spirit’ which

generously recognizes the full obligation of this~na-

. tion to protect the interest$ of a dependent people.

(Citing cases.) But even Indian. treaties cannot. be

rewritten or expanded - hevongl their clear.ternis to

remegly a claimed injiistice or to*"achieve the asserted

understanding “ the parties. (Citing cases:) (Em-

. phasis supplied. )” (320 F.( 2d) at page 207 and page

20 of Petition for Writ of C ertiorari—Appendix A.)

and the following portiow of the Supreme Court's opinion. |

‘in’ the Shoshone Indians case, supra:

“Petitioners suggest that in. the. construction of

Indian treaties ave, as a‘ self-respecting ition, hesi-

tate to construe language, which is selected by us

as guardian to the Indians, to our ward’s prejudice.

‘All doubts,’ say petitioners, ‘must be resolved in their

{the Indians’) favor.’ Mr. Justice McLean, concurring’

in Worcester v. Georgia, 6 Pet. 515, at.582, said, “The

language used in treaties with the Iiidians should

never be construed to their prejudice. But the con-

text shows that the Justice meant no more than that

‘the language should be construed in accordance with

the tenor of the treaty.!6 That, we think, is the rule

which the court has applied constantly to Indian

treatics. We attempt to determine what the parties

meant by the treaty. We stop short of varving its

- terms to meet alleged injustices. Such generosity, if

‘any may: be called for in the relations between the

.

10

United States and the Indians, is for the a

(320 F.(2d)- 205 at 207 and 208, and page 2h «

Petition for Writ of Certiorari—Appendix A. )

“16. This is the meaning of the other cases which were cited ‘by

petitioners’ upon this point, Jones v. Meehan, 175 U. S. 1, 40-12, United

States v. Winans, 198 U. S. 371, 380; Marlin U. Lewallin, 276 U. S. 58, ©

. 64, United States v. Payne, -264 U. §S..446, 448-49: Nasthern Pacifi.

R. Co. t. United States, 227 U. S. 355, 366: Scufert Bros. Co. v. United

States, 249 U. S. 194, 198; United States v. Shoshone Tribe, 304 WU. S.

. AM, 116; see also Tulee v. Washington,-315 U. S. 681, 684.”

“17. United States v.-Choctaw Nation, 179 U.S. 494, 534- 36

Choctaw Nation v. United States, 318 U. §. 423, 432.”

(Note: The above footnotes have been taken from the Supreme Court's _

epinion, 324 U. S. 335 at page 353, and inserted at the appro-

priate place in the Court of Appeals’ opinion. )

In reading the above portion ot the Supreme Court's

opinion in the Shoshone case. stipra, the footnote citations

thereto should be noted since thev-include a majority o!

_ the cases cited by petitioner in this connéction: The only

more ‘recent case cited is Hynes v. Grimes Packing Co.,

337 U. S. 86 (1949), a case which is not relevant hef.

The Hynes case involved an Indian reservation in Alaska -

which was created pursuant to the Act of Congress.

of May 1, 1936 (49. Stat. 1250) wherein certain. tide-

lands and coastal waters extending 3,000 feet from the .

shoreline at mean low tide were. specifically granted.

The questior was whether the phrase “public lands” used

in the Act prohibited the granting of tidelands and coastal

waters.

t appears cléar that in the case now ’ before this court

the Court of Appeals fully recognized the proper rules

of construction tobe applied to treaties. However, the

petitioner attempts to evade this by referring again to

ulder declarations bv the Supreme Court and ignoring the

more recent ones which clarifs the rules of construction.

Certainiv, petitioner is in- error and is unwarranted i

_

1]

-makiig the following statement:

“Another reason that ‘certiorari should be granted

is that the Circuit Court has erroneously applied the

~ rules of treaty construction and has completely ignored

prior cases determined by the Supreme Court...”

(Page 6 of the Petition tor Writ of Certiorari.) (Em-’

phasis’ supplied. :

Petitioner seems to 1 reason that, since the decision was

. unfavorable to the Indians, the rides of constructionanust

have been erroneously applied. tn doing so, petitiorier

continues to ignore the importance of the tacts as deter-

mined by the-court.

~Wher one considers the findings of fact (made by the

Trial Court awd approved by the Court of Appeals, it be-.

~comes clear that the rules of construction were correcth

‘applied.. As stated bv the Court of Appeals:

““The use of the tidelands by -the Indian tribe, as

disclosed by the evidence, does not support appel-

lant’s contention that the tidelands were essential to .

the Indians’ livelihood and that the Indians accord-

ingly must have understood they. were to have the

tidelands.” {Emphasis supplied.) (320.F.( 2d) 205

- at page 210 and pages 25-26 of the Petition for Writ

of Certiorarim—. Appendix A.)

An illustration of petitioner's completely ignoring the

importance of the facts, as determined by the court, 1s the

following unwarranted conclusion stated on page 6 of

the Petition for Writ of Certiorari:

“The court below has. judicially legislated that.

if a necessary and imperative adjunct to the aboriginal

subsistence is not precisely described by metes and

bounds, it is not a part of the reserve and all doubt

«a . ; 12

must be resolved in favor of the State end against

the Indian.” es

First, the wthence eats established that the tidelands

in question were not “a necessary and imperative adjunct

to the aboriginal subsistence” for many reasons, not ‘the.

— Jeast of which is that the Indians’ existence depended i.

primarily upou fishing in the Skokomish River.. Further.

to the extent that the Indians depended on Hood Canal.

they were not restricted to the reservation or the abutting

tidelands, but rather, by Article IV of the treaty, they,

“were guaranteed their right io take fish at their usual

and accustomed grounds and statioris throughout Hoed

Canal in common with all citizens of the United States

Second. the court did not resolve doubts in favor of the

state, but rather based its opinion stricth: on the evidence :

nresented. This is clearly shown bv the following sum-

mary portion of the Trial Court’s memorandum opinion.

which was quoted with approval hy the Court of Appeals:

“allowing in full measure for the inequalities of

understanding and position of the parties negotiatiny

the treaty and giving full effect to the miles of treaty

construction favoring the primitive Indians. on the

- catire record in the present case, this court is fully

satisfied that not anv onggof the parties negotiating

the treaty of 1853 lad the slizhtest thought or inten

tion that the treatv or the executive order to follow

would vest ownership to the tidelands in question

in the Skokomish or*in any other Indian ‘tribe. On

the contrary. the record of negotiations. the language

and substance. of the treatv. the specific terms of

the executive order. and all pertinent circumstances

shown by the evidence negative understanding or

--intent to such effect by anv of the parties negotiating -

“the treatv or concerned with or by the order. Con-

sidering the absence of support for anv such eon-

“

; 13

tention, the long delay in any mention:or assertion

thereof is not surprising.” (320 F.(2d) 205 at page

212 and page 29 of the Petition for Writ of Certiorari

—Appendix A. )

-

. Petitior, er tries to avoid the above. by making the fol-

lowing sts teem on pages 10 ind 11 of the petition;

| “Tt id to us, an untenable constriction to. place

upon tis treaty to say that the means of ingress and

egress from the land to the water is cut off by an

invisi}le line imposed by the treaty.”

| . ¥ as

Even if the Indians owned the tidelands. they cut off

any access by land when thev'sold the abutting upland

allotments to the appellees or.their predecessors in title

with the government's approval. Such action. is. more

consistent with the following: (1) the Indians did not

consider themselves as the owners of the tidelands in

question, ant! 2) said tidelands were not of importance:

tothe Indians.

Not only did pe titioner fail to meet its burden of proof,

but the courts below found the evidence to be to the

contrary. The’ basic question of intention was a factual

issue to he determined bv the court in light of all of the

surrounding circumstances. This has been thoroughly con-

sidered and determined by the Triat Court and reviewed

bv the Court of Appeals. Accordingly, this case doe ¢ not

- need to. be reviewed by the United States Supreme Court

by Writ of Certiorari.

; ~As_ pointed out in the quotations used by the Court of

Appeals. the court will attempt to determine what the

partics meant by the treaty. but will stop short of varving

; 14

its terms to meet alleged injustices. The latter is a niatter

for Congress. If, in fact, the petitioner tribe was not

adequately provided for by the treaty and executive order,

this matter can presumably be rectified by the’ Indian

Claims Commission, before whom the petitioner tribe

presently has a claim pending. As the Trial Court properly

raised in its memorandum, opinion:

“The defendants in the instan: case purchased aud

substantially improved their properties in complete

good faith and without- the slightest knowledge.

actual or constructive, of the title claim now so be-

- latedlv asserted. Whatever public atonement for earls.

day wrongs may be due the Skokomish Indians

granting the relief sought in the present case is not

justified by the evidence presented or bi the law

applicable thereto.” (320 F.( 2d) 205 at 213 and n:ige

' 32 of the Petition for Writ of C saath scm

ye

The petition for a writ of certiorari herein should be

denied. oe

Respecttully submitted,

Joun E. Ryan, Jr.

RayMonp C. Swanson

Counsel for Respondent “9

_> Simpson Logging Company

F. JosePx DONOHUE

_ of Counsel

February 21, 1964