Amicus Curiae Brief — Washington v. United States

Supreme Court of the Uni oq Pitakesoonx. mem. cum

October Term, 1975

Nos. 75-588, 75-592, 75-705

STATE OF WASHINGTON, et al., Petitioners,

v.

Untrep STaTEs OF AMERICA, QUINAULT TRIBE

oF INDIANS, et be Respondents,

NorTHWEST STEELHEADER COUNCIL OF TROUT

ee Petitioners,

Untrep STATES OF isda ‘AULT TRIBE

OF —- et

WASHINGTON REEF Net Owners ASSOCIATION, et. al.,

Petitioner,

Vv.

Unrrep States oF AMERICA, et al.,

Respondents.

BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONS FOR

WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT—FILED ON BE-

HALF OF PURSE SEINE VESSEL OWNERS ASSOCIATION,

PUGET SOUND GILL NETTERS ASSOCIATION, WASHING-

TON STATE COMMERCIAL PASSENGER FISHING VESSEL

ASSOCIATION, WASHINGTON KELPERS ASSOCIATION,

NORTHWEST FISHERIES ASSOCIATION AND WEST COAST

TROLLERS ASSOCIATION

Paut W. STEERe of

Boc.Le & GATEs

Special Counsel for all

Amici Curiae

Of Counsel:

Office and Post Office Address: RONALD T. ScHAPs

Joserxn T. MzyicH

Bank of California Center Rececaze W’, Pamecer

Seattle, Washington 98164 Jacos A. MIKKELBORG

CRAFTSMAN & MET PREGS c@@BD SEATTLE, WASHINGTON

REE SRE CHR IRENE SUNT ME ENS RONMENT SMT FOLLETT I IIR SRYAT SE FLATT

i

SUBJECT INDEX

Page

Basis for Filing of Amici Curiae Brief......................00.- 1

Ee ir te ee iekettaininctitenstiemeneneineininnincsmmntnaten 1

een TOE TN aia iiataikienih tires 2

1. Neither the District Court Decision Nor the Circuit

Court Decision Are Supportable by the Authori-

ties, Treaty Language, Findings of Fact or Logic.... 2

2. The Interpretation and Application of the Treaty,

As Affirmed by the Court of Appeals, Is Uncon-

EARNERS SA ET Se 10

3. Other Issues Raised By Parties...................0..-s0000e 16

SERRE AE ek eee ON On a 17

TABLES OF AUTHORITY

Table of Cases

Choctow Nation of Indians v. United States,

318 U.S. 423 (1943)..... 9

Department of Game v. The Puyallup Tribe,

I I iincisctcnitaoeckinssimsiteanisincinninaaseal 5, 8-9

Geer v. Connecticut, 161 U.S. 519 (1896).................... 5, 15

Geofray v. Riggs, 133 U.S. 258 (1890) ............ssssoosecssee 10

Martin v. Lessee of Waddell, 16 Pet. 367 (1842).......... 5, ll

McCready v. Commonwealth of Virginia,

Oe I a ces otrnecicanmnn 5

Northwestern Band of Shoshone Indians v. United

eS Fl) Aree 9-10

Puyallup Tribe v. Department of Game,

uma 8

Reid v. Covert, 354 U.S. 1 (1957) -ccccccccsssssscsecscsssssesseeee 10

Smith v. Maryland, 18 Howard 71 (1855)...................00-- 5

Tat a RE, J

ii

Page

Takahashi v. Fish & Game Commission,

Fe 5 SRE PR cane nS 5, 12, 13

Toomer v. Witsell, 334 U.S. 385 (1948)... eee 5, 12

Constitutional Provisions

IU I I ie is saa ebiianiclotanan’ 12

I i d 12

Ir, i a 12,13

Statutes |

ela IS la NINO RTARTA RIO 11, 12

aii i i SS a i 13

Other Authority

ee Crear Tan GR aaah aici nensivncecsccennssevtercrvenen 1

Webster's American Dictionary, 1828 ed......................... 4,7

SIE ORL G+

IN THE

Supreme Court of the United States

October Term, 1975

Nos. 75-588, 75-592, 75-705

STATE OF WASHINGTON, et al., Petitioners,

Vv.

Untrep STATES OF AMERICA, QUINAULT TRIBE

oF INDIANS, et al., Respo

and

NORTHWEST STEELHEADER COUNCIL OF TROUT

UNLIMITED, Petitioners,

Vv.

UNITED STATES OF AMERICA, en TRIBE

oF INDIANS, et al.,

and

WASHINGTON REEF Net OwNERS ASSOCIATION, et. al.,

Petitioner,

v.

UNITED —— OF AMERICA, et al.,

BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONS FOR

WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT—FILED ON BE-

HALF OF PURSE SEINE VESSEL OWNERS ASSOCIATION,

PUGET SOUND GILL NETTERS ASSOCIATION, WASHING-

TON STATE COMMERCIAL PASSENGER FISHING VESSEL

ASSOCIATION, WASHINGTON KELPERS ASSOCIATION,

NORTHWEST FISHERIES ASSOCIATION AND WEST COAST

TROLLERS ASSOCIATION

BASIS FOR FILING OF AMICI CURIAE BRIEF

This amici curiae brief is filed pursuant to Supreme

Court Rule 42 and the unanimous consent of all of the

parties. The written consents have been filed with this

Court.

INTEREST OF AMICI CURIAE

Amici curiae are associations of commercial fishermen,

vessel owners and processors. Their members fish all waters

encompassed by the case area and take all species of sal-

a eee VAAL LET TR HT ET NE IN EME RII TPA TE EI

2

mon which are involved in this case. Combined, their mem-

bers catch over 90% of the commercial salmon taken by

non-Indians in the case area. They employ every method of

commercial fishing except reef nets. These include purse

seining, gill netting, trolling, onshore trolling, or “kelping”,

and commercial operation of sport fishing charter boats.

Their investment in vessels alone is estimated at more than

$150,000,000.00.

Although the economic impact of this decision falls al-

most entirely on amici curiae and its members, they were

not parties and those who sought to intervene were de-

nied the right to do so, and continue to be denied the right

to intervene under the district court's “continuing jurisdic-

tion”.' By comparison, the district court has permitted in-

tervention by every Indian tribe that requested the right

to do so.

Amici curiae were permitted to appear as amici curiae

before the Court of Appeals for the Ninth Circuit.

REASONS FOR SUPPORT

1.

Neither the District Court Decision Nor the Circuit Court

Decision Are Supportable by the Authorities, Treaty

Language, Findings of Fact, or Logic

The different Stevens treaties all utilized approximately

the same language:

1. A group represented by the Washington Reef Netters Owners As-

sociation had been permitted to intervene by another district court judge.

However, its fishing is limited to a small area of northern Puget Sound

and use of stationary gear. Much of that group’s concern is a factual

issue unique to them: whether present reef net sites and gear are different

from Indiar: reef net sites in treaty times. Purse seiners, gill netters, trollers,

“kelpers”, charter-boat operators and processors were not parties to the

case below.

Ry. WARIS OEE INIOEA ASAT eens Ree tote

eT | :

3

“The right of taking fish, at all usual and accus-

tomed grounds and stations, is further secured to said

Indians, in common with all citizens. . . .” (Emphasis

supplied )

Except for these reserved rights, the Indians ceded

sovereignty over all lands and waters outside their reserva-

tions. They reserved no rights to fish other than at their

“usual and accustomed grounds and stations”, agreed that

non-Indians could fish in common with them at their usual

and accustomed fishing grounds and placed no restrictions

on the non-Indians’ use of ceded lands and waters.

The district court expressly found that the Treaty In-

dians understood the restrictive nature of “usual grounds

and — (F.F. 24, R. 1598), and further found that:

. the Indian's harvest of fish was subject to the

vagaries of nature which occasionally imperiled their

food supply and caused near starvation. The ae

of fish that could be harvested — particularly affect-

ed by run-size fluctuations caused by ot condi-

tions and water conditions occurring at the time the

fish were running, e.g., flooding, which limited the

— of Indian fishing gear.” (F.F. at 6, R.

1584

“... George Gibbs noted that:

““As regards the fisheries, they are held in common

and no tribe pretends to claim from another, or from

individuals, seignorage for the right of taking. In fact,

such a claim would wl inconvenient to all parties, as

the Indians move about, on the sound particularly,

from one to another locality, according to the sea-

n. ” (F.F. at p. 10, R. 1588)

.. The Indians were assured by Governor Stevens

and the treaty commissioners that they would be

allowed to fish, but the white man would also be

allowed to fish...” (F.F. 20, p. 16, R. 1594)

. there is no evidence at the time of the treaties

4

that either party intended to restrict the other party's

fishing ...” (F.F. 28, at p. 22, R. 1600)

Conversely, there was no finding whatsoever that there

was any Indian cultural concept or understanding of being

entitled to own or catch any fixed quantum or proportion

of fish.

Notwithstanding, the district court ruled, as a matter

of law, that the words “in common with” gave the Indians

an inheritable right to catch 50% of the harvestable fish.

The only basis for this ruling, other than a reference to

treaty interpretation rules which enjoin liberality, and the

only legal precedent ever cited by the court or the plain-

tiffs for this startling interpretation of the treaty words “in

common with” is a definition of the word “common” from

1828 and 1862 editions of Webster's American Dictionary

of the English Language (F.F. 24, p. 19, R. 1597). The full

language of this definition reads:

“i. 1. Belonging equally to more than one, or to pe |

indefinitely; as life and sense are common to man an

beast; the common privileges of citizens; the common

wants of man. 2. Belonging to the public; having no

separate owner. The right of a highway is common. 3.

General; serving for the use of all . . .” 1828 ed. Web-

sters American Dictionary of the English language.

(Emphasis supplied )

The first point to remember therefore is that the extra-

ordinary innovations in the decisions and orders below

were basically contrived from this dictionary definition

without the benefit of any direct legal precedent.

It is to be noted that plaintiffs (respondents before this

Court) constantly refer to the district court’s decision as

giving the Treaty Indians not 50% of the fish but merely

PERE ee RA BEI NSLEART I ST NM OR R E

5

the opportunity to catch up to 50% of the fish. This is a

distinction with no difference because the court’s decree

provides that the non-Indian fishing activity must be cut

back until the Indian quota is taken. The quotas are de-

termined by counting the fish caught. As the modern non-

Indian fishery is a predominantly marine fishery and as

salmon in the case area are mostly taken while migrating

towards terminal areas, any closure of the marine fishery

means that the salmon are permanently lost to the non-

Indian fishermen.

Furthermore, the district court held, contrary to estab-

lished law, that fishing by non-Indians is a mere privilege,

not a right, and as such is revocable at will. The signifi-

cance of this questionable premise in the framing of the

court’s decree is that it facilitates the restriction and cur-

tailment of the non-Indian’s fishing rights and his access to

the common fishery in state waters, with total impunity

and, we submit, without regard for constitutional protec-

tions.

The premise that a citizen’s right to fish is a mere privil-

ege is erroneous. Martin v. Lessee of Waddell, 16 Pet. 367

(1842); Smith v. Maryland, 18 Howard 71 (1855); Mc-

Cready v. Commonwealth of Virginia, 94 U.S. 391 (1877);

Geer v. Connecticut, 161 U.S. 519 (1896); Toomer v. Wit-

sell, 334 U.S. 385 (1948); Takahashi v. Fish and Game

Commission, 334 U.S. 410 (1948). See also: Department

of Game v. The Puyallup Tribe, 414 U.S. 44 (1973). Fur-

thermore, there is nothing in the language of the treaties,

the record or the findings of fact to indicate any intent to

treat the non-Indians’ right to fish “in common” as inferior

to the Indians or to permit the Indians to impose or require

6

restrictions on non-Indian fishing activities in the ceded

territory. If anything, the record indicates that such posi-

tions were contrary to the understandings and cultural

concepts of both parties to the treaties.

The district court then held that in addition to the 50%,

the Indians are also entitled to: 1. all the salmon they catch

on their reservations; 2. all they catch for ceremonial pur-

poses; 3. all they catch to eat; 4. all they catch as parti-

cipants in the all-citizen fishery whether on or away from

their usual and accustomed grounds and stations; plus 5.

an “equitable” adjustment for the number of fish caught by

non-Indians outside the jurisdiction of the state of Wash-

ington.

The Court of Appeals for the Ninth Circuit did not rule

on the propriety of the district court's holding that the

words “in common with”, as a matter of law, entitled the

Indians to 50% of all harvestable salmon and steelhead

plus the various additional allotments. The court of ap-

peals instead went off on a theory of its own creation. It

analogized the treaty language to a cotenancy in the fish

and the litigation to a request for a partition. This applica-

tion of “ownership” principles is totally foreign to cultural

concepts and understandings of all parties to the treaties

as established by the district court’s findings of fact. Fur-

thermore, the court of appeals failed to apply the same

theory and standards of accountability to the Indians with

regard to their fishing activities—particularly away from

the usual and accustomed grounds and stations.

Ultimately, the court of appeal’s decision rests upon a

purported affirmance of the district court’s exercise of “dis-

cretion” so as to “best protect the interests of all parties, as

7

well as those of the public”. In fact, the district court did

not, and did not purport to, exercise any discretion—it

ruled as a matter of law, based on a misapplied interpreta-

tion of a definition in an 1828 English language dictionary,

as to the meaning of the treaties. Nor did the district court

at any time consider, balance or protect the interests of the

non-Indians, the public, the State, or the Nation. Aside

from a paternalistic mention in Finding of Fact 29 that

“fishing is also important to some non-Indians” (R. 1601)

the findings of fact and opinion basically ignore the cir-

cumstances of the 99.72% of the citizens in the case area

who are not Indians. Nowhere in the findings of fact or

opinion—which deal at great length with the importance

of salmon to the Indian—is there any analysis of the im-

portance of the salmon to the non-Indian or of the impact

of the mandated closures and restrictions upon the non-

Indian. There is no word that the Pacific salmon is a

treasured public resource, the most valuable fishery in the

United States, of all floating fish; no word that the Pacific

salmon is a subject of intense international competition

with aggressive fishing competitors as Japan, Russia and

Korea, requiring the enterprise of American fishermen and

sensitive international compacts, all exerted in our national

interest.

The granting of a permanent 50% plus ownership in

anadromous fish to tribal members is necessarily arbitrary

and illogical. A quantified ownership bears no relationship

to the number of Indians who actually fish, of all Indians,

or to the number of Indians who fish compared with the

number of non-Indians who fish, or to the number of In-

dians who fish now as compared to in 1855, or to the

importance of fish in their livelihood now as compared to

LER PP PE PH a, iat POEL EI AIS YE IEE OR, PECL LE LIES ELIE OGG tS. Seep eee RI

8

in 1855 or to any other standard. If but one single Indian

remained he would still have a hereditary right to 50%

plus of all fish in his ancestral fishing grounds, whether he

fished or not. The fallacy here lies not in the selection of

any’ particular percentage. It lies in deciding this question

in terms of any permanent percentage, and in interpreting

the language of the Stevens treaty in terms of ownership

concepts which are foreign to the treaty language, estab-

lished law and Indian cultural concepts.

it & stgnificant to note that neither the district court nor

the «owt of appeals analyzes this result from the stand-

poteat of equal protection principles which this Court has

recognized as being required in the application of the

= language and treaties now before this Court.

. [We] add that any ultimate findings on the

conservation issue must also cover the issue of e ual

protection implicit in the phrase ‘in common with”

Puyallup Tribe v. Department of Game, 391 U.S. 392

at 403 (1968).

“The cas. was remanded for determination of .

‘the issue of «al protection implicit in the phrase “ in

common with” ’ as used in the Treaty.

* ¢ @

“What formula should be employed is not for us to pro-

pose. There are many variables—the number of nets,

the number of steel head that can be caught with nets,

the places where nets can be placed, the length of the

net season, the frequency during the season when the

nets may be used. On the other side are the number

of hook-and-line licenses that are issuable, the limits

of the catch of each sports fisherman, the duration of

the season for sports fishing, and the like.

“The aim is to accommodate the rights of Indians

under the paw and the rights of other people.”

(Emphasis supplied) Department of Game v. Puy-

9

allup Tribe, 414 U.S. 44 at 45, 48-49 (1973).

This case presents a classic example of adding wholly

new provisions to an Indian treaty to ameliorate a claimed

injustice. This Court has repeatedly held that such inter-

polations are improper. In Choctaw Nation of Indians v.

United States, 318 U.S. 423 (1943), this Court, after ac-

knowledging the liberal view of interpretation relied on

below, went on to say, in reversing the lower court de-

cision which was based upon “findings” of Indian intent:

“But even Indian treaties cannot be re-written or ex-

panded beyond their clear terms to remedy a claimed

injustice or to achieve the asserted understanding of

the parties. (Citing cases) . . .” 318 U.S. at 432.

Also:

“But in no case has it been adjudged that the courts

could by mere interpretation or in deference to its

view as to what was right under all the circumstances,

incorporate into an Indian treaty something that was

inconsistent with the clear import of its words. It has

never been held that the obvious palpable meaning of

the words of an Indian treaty may be disregarded be-

cause, in the opinion of the court, that meaning may in

a particular transaction work what it would regard as

an injustice to the Indians. That would be an intrusion

upon the domain committed by the Constitution to the

political departments of the government . . . to alter,

amend, or add to any treaty by inserting any clause,

whether small or great, important or trivial, would be

on our part an usurpation of power, and not an exer-

cise of judicial functions. It would be to make, and

not to construe, a treaty. Neither can this court supply

| a casus omissus in a treaty, any more than im a law.”

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

532-533 (1900).

Also:

“But the context shows that the Justice meant no

Se ELT

10

more than the language should be construed in ac-

cordance with the tenor of the treaty. That, we think,

is the rule which this court has applied consistently to

Indian treaties. We attempt to determine what the

parties meant by the treaty. We stop short of varying

its terms to meet alleged injustices. Such generosity,

if any may be called for in the relations between the

United States and the Indians, is for Congress.” North-

western Band of Shoshone '»dians v. United States,

324 U.S. 335 at 353 (1945).

2.

The Interpretation and Application of the Treaty, As

Affirmed by the Court of Appeals,

Is Unconstitutional

The Constitution of the United States is of course bind-

ing upon all branches of the government—legislative, ex-

ecutive and judicial. There is no doubt that treaty pro-

visions must comply with or give way to the provisions of

the U.S. Constitution:

“.. . It would not be contended that it [the treaty

power] extends so far as to authorize what the Consti-

tution forbids, or a change in the character of the gov-

ernment or in that of its states. . . .” Geofray v. Riggs,

133 U.S. 258 at 267 (1890).

“. . There is nothing in this language [the Su-

remacy Clause] which intimates that treaties and

aws enacted pursuant to them do not have to comply

with the provisions of the Constitution. . . .” Reid v.

Covert, 354 U.S. 1 at 16 (1957).

The judgment and order in the case before this Court

effectively deny non-Indian fishermen in the State of

Washington constitutionally protected rights. Citizens and

residents outside the State of Washington continue to as-

sert and exercise, on a non-discriminatory basis, their right

to exploit the common fisheries in Washington waters.

PERE LYRE GREGOR EEA IRIEL TEL LENIN ALE EME SEAS:

ll

Salmon off the western coast of the United States run in

mixed stock—salmon caught in the ccean off the State of

Washington are returning to spawning streams in Cali-

fornia, Oregon, Washington and Canada. Conversely, sal-

mon returning to spawning streams in the State of Wash-

ington are caught in ocean waters off the coasts of Alaska,

Oregon, California and Canada by citizens and residents

of those states and that nation. Citizens and residents of

Alaska, Oregon and California continue to enjoy their

right to fish off the coast of Washington and to catch Wash-

ington spawned fish off the coasts of the other states.

On an argument raised for the first time some 120 years

after the signing of the treaties, based upon a unique and |

arbitrary interpretation of treaty language, the citizens

and residents of the State of Washington are now judicially

restricted from equally exercising those same rights. As to

these citizens and residents, there now exists a discrimina-

tory restriction upon their use of the common fishery in

order to make a permanent allocation of over 50% of

the state’s fisheries resources to a small (0.28%) ethnic

minority of the citizens of the state.

This is so in spite of the precept that all citizens of the

state have:

“...a liberty of fishing in the sea, or creeks, or arms

thereof, as a public common of piscary, and (may)

not, without injury to their right, be restrained of it.

... Martin v. Lessee of Waddell, 16 Pet. 367 at 412

(1842).

Nowhere in the Enabling Act of February 22, 1889, 25

Stat. 676, under which Washington became a state, do the

citizens disclaim or surrender their rights to exploit the

|

12

common fisheries, particularly of the marginal seas.? Fur-

emeeen, that Enabling Act declares that:

. the proposed states . . . shall be deemed ad-

oaaak by Congress into the Union under and by vir-

tue of this act on an equal footing with the original

States from and after the date of said proclamaticn.”

( Section 8 )

The right of all citizens to exploit the common fisheries

in the marginal seas has remained fully effective and rec-

ognized by the Supreme Court. This right is also subject

to the protection of both Art. IV, Section 2 (“The Citizens

of each State shall be entitled to all Privileges and Im-

munities of Citizens of the Several States”) and the Four-

teenth Amendment of the U.S. Constitution, which states:

“Section 1 . . . No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States . . . nor deny to any

person the equal protection of the law”.

Two significant decisions applying the Privileges and

Immunities Clause of Article IV and the Fourteenth

Amendment to rights of commercial fishermen are: Toomer

v. Witsell, 334 U.S. 385 (1948); and Takahashi v. Fish

and Game Commission, 334 U.S. 410 (1948).

In Toomer the Court held: |

“[Wl]e hold that commercial shrimpin og hg the mar-

ginal seas . . . is within the purview of the privileges

and immunities clause . . .” 334 U.S. at 402-403.

In Takahashi, the plaintiff challenged a California

statute which denied plaintiff the right to a commercial

fishing license because, although he was a long-time resi-

dent and had been a commercial fisherman for 27 years, he

2. They disclaimed only title to the lands reserved to the Indians

(Section 4, Second).

13

was “a person ineligible to (United States) citizenship.”

The Court struck down the statute as being an unconsti-

tutional deprivation of rights in violation of the Four-

teenth Amendment. The Fourteenth Amendment means

that all persons lawfully in this country shall abide in any

state on an equality of legal privileges with all citizens

under non-discriminatory laws.

“[Its supposed “ownership” of the fish] is inade-

uate to justify California in excluding any or all

aliens who are lawful residents of the State from mak-

ing a living by fishing . . . while permitting all others

to do so.” 334 U.S. at 421.

It is to be noted that the treaty before the court, by use

of the word “in common with”, itself repudiates the idea

that it was intended to, or could, create discriminatory

classifications.

At least since the adoption of the Fourteenth Amend-

ment in 1865, and certainly since the enactment of the

Indian Citizenship Act (43 Stat. 253), the Indian inhabi-

tants of Washington have not only had the right to fish at

their usual and accustomed places and on their reserva-

tions, but have also had the right to participate freely and

equally with non-Indians in the common fishery on margi-

nal seas. As noted, inhabitants of other states have also

exercised rights to fish in the marginal seas of their states

and in Washington waters, and, as the lower court recog-

nized and found, they catch substantial numbers of salmon

outside of Washington waters and jurisdiction which would

otherwise have been available to inhabitants of this State.

(F.F. 185, p. 102, R. 1680.) Salmon, being an anadromous

fish, is no respector of state boundaries and fishermen

fishing the marginal seas (Indian and non-Indian alike )

14

catch salmon running in mixed stocks which would other-

wise return to a number of different states or to Canada.

(Ex. JX-2a, figures 7 and 8, pp. 00241, 00242 )

Under the lower court’s ruling, the State is required

to enact and enforce discriminatory regulations against

99.72% of the population in the case area. The State is to

be forced to allocate the resources of this 99.72% of its

citizens and expend them to place a monopoly control of

well over 50% of its harvestable fish in the private hands

of a 0.28% ethnic minority of its citizens. In addition, the

State is required to permit this ethnic minority to compete

freely with the other 99.72% of the citizens in exploiting

the fishery at other than Indian’s traditional fishing place,

and if “a tribal member fishes in the all-citizen fishery at a

location which is not a usual and accustomed ground or

station of his tribe, that individual’s catch will not count

toward the tribal off-reservation share.” (Ruling on Post-

Decision Motions, Exhibit A, p. 3.) The lower court holds

11 state statutes and numerous state regulations void as

applied to the Indians, while they must continue to be en-

forced against non-Indian fishermen.

In short, under the lower court’s treaty interpretation

and rulings, which are strained and unnecessary in the first

place, non-Indians in this state are deprived of privileges

and immunities held by other citizens and deprived of the

equal protection of the laws with regard to their access to

and utilization of the common fisheries on the marginal

seas.

A further error in the decision below lies in the persistent

failure to distinguish between the power of the federal

government to prevent a state from interfering with a

OEE RTT a UN NEDO MIU Mate I

15

treaty, and the lack of power to require a state to appro-

priate its resources to implement a federal treaty. Our re-

search discloses no text or case authority that under the

American Constitutional system the federal government,

speaking through a treaty or speaking through a district

court, can order a state to allocate its resources discrimina-

torily to discharge a federal treaty promise, particularly

where, as here, the resource is not owned by the state in a

proprietary sense, but as a custodian for its citizens as a

whole. “. . . [T]he ownership is that of the people in their

united sovereignty. . . .” Geer v. Connecticut, 161 U.S. 519,

529 (1896).

This concept may be tested by example. Of course, the

Washington Departments of Fisheries and Game and the

state's fish management activity rest solely upon the dec-

laration of the citizens of Washington, expressed in legis-

lation, that these are worthwhile activities. The state has

no inherent responsibility to propagate or manage fisher-

ies apart from statute. If the people of Washington through

their legislature were to reconsider the worth of these

measures, repeal these statutes and withdraw appropria-

tions from Fisheries and Game, with the result that Wash-

ington salmon runs were overfished to the point of extinc-

tion, it could not lie within the competence of a federal

district judge to sign an injunction ordering the re-enact-

ment of these laws, appropriation of moneys, and sub-

sequent executive administration of the laws in the way

which that court feels will effectuate his interpretation of

a treaty.

It cannot be argued that the decision and orders below

do not constitute a reallocation of this resource. The court

16

orders that the tribes be given preferential rights up to

50% of the harvestable fish, plus reservation and sub-

sistence catches and an “equitable adjustment,” and orders

that the state and its administrative officers withdraw these

fish from the non-Indian fishermen.

This analysis would apply even if it were conceded that

the Stevens treaties have the meaning ascribed to them in

Final Decision #1. Indeed, if the plaintiff tribes and the

court below were correct in their interpretation of the

treaty language, the solution could still not constitutionally

lie in the direction of issuing orders to the state of Wash-

ington mandating the state to give the Indians this public

state resource. The remedy for an alleged broken federal

promise is federal compensation.

3.

Other Issues Raised By Parties

Amici curiae will not discuss in detail other issues raised

by petitioners because the ramifications of these issues

and the need for review by this Court is well stated in the

petitions. However, we suggest that two of the issues pre-

sented by this case are of unusual public significance and

particularly merit review.

First, the unsettling impact of the decision below upon

the treaties between Canada and the United States regu-

lating the Fraser River sockeye and pink salmon fisheries,

and upon the operations of the International Pacific Sal-

mon Fisheries Commissions, is of great public importance.

Second, the unsettling effect of the newly created dual

sovereignty between the State of Washington and the

numerous Indian Tribes with respect to the salmon fishery,

17

together with the district court’s continuing role as the

supreme fisheries administrator, presents a problem of most

serious and continuing concern. Both issues transcend in

their public importance the bare question of treaty fishing

rights.

CONCLUSION

It is believed that this is one of the most important

Indian treaty cases to be presented to this Court. A full

review by this Court is necessary not only to correct errors

on substantive issues but also to re-establish rights of non-

Indian citizens and to re-establish the State of Washington

in its proper role in the management and conservancy of a

sensitive public resource. Amici curiae urge this Court to

grant certiorari on all three petitions. We respectfully urge

the Court to order the parties to supplement the record

with all of the proceedings before the district court since

its initial decision so that the issues and ramifications can

be fully understood.

We also respectfully request that amici curiae be per-

mitted to present a brief on the merits following the grant

of certiorari.

Respectfully submitted,

Pau W. STEERE of

Boc_Le & GATES

Special Counsel for all

Amici Curiae

Of Counsel:

RONALD T. ScHAPs

JosepH T. Mijicx

RICHARD W. PIERSON

Jacos A. MIKKELBORG

— eee

PDO DAS Sh Died Free 0a 2AM. ‘ ~~ T

In the Supreme Court of the )

Anited States |

OCTOBER TERM, 1975

afi )

Eas

No. 588

PRE ART LAD Be OTN

STATE OF WASHINGTON, THOR C. TOLLEFSON,

Director, Washington State Department

of Fisheries, CARL CROUSE, Director,

Department of Game, and WASHINGTON

STATE GAME COMMISSION,

Petitioners,

Vv.

UNITED STATES OF AMERICA, QUINAULT TRIBE

OF INDIANS, MUCKLESHOOT INDIAN TRIBE,

SQUAXIN ISLAND TRIBE OF INDIANS, SAUK-

SUIATTLE INDIAN TRIBE, SKOKOMISH INDIAN

TRIBE, STILLAGUAMISH TRIBE OF INDIANS,

QUINAULT TRIBE OF INDIANS on behalf of

the QUEETS BAND OF INDIANS, MAKAH INDIAN

TRIBE, LUMMI INDIAN TRIBE, HOH TRIBE OF

INDIANS, CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, UPPER

SKAGIT RIVER TRIBE, AND QUILEUTE

INDIAN TRIBE,

Respondents.

PETITION FOR RECONSIDERATION OF

DENIAL OF CERTIORARI

SLADE GORTON

Attorney General

EARL MC GIMPSEY

Assistant Attorney General

Office & Post EDWARD B. MACKIE

Office Address: Deputy Attorney General

Temple of Justice Counsel for Petitioners

Olympia, Washington 98504

(206) 753-6207

eae ESSELTE LET oe f AOE INS BEATER ON ROE ALIS MEO AND

INDE X

Page

ARGUMENT . . . . . . . . * . 7 . 3

CORGEUGLGN + & 6 * 6 0 ee ee 8 10

TABLE OF AUTHORITIES

Table of Cases

Dept. of Game v. Puyallup

Tribe (Puyallup II),

414 U.8. 44 . «© «© 0 © 0 @ Sy & §

Puyallup Tribe v. Dept. of

Game (Puyallup I), 391

Un 392 . . . . . . * . . 3 ;

f

Tulee v. Washington, 314 U.S. f

681 . - . . . . . . . . . 3 t

United States v. Winans, 198 :

Dies 371 * . . . . * . . . 3 '

UNITED STATES STATUTES AT LARGE

ce eee BOee 6 eee a ee 9

keek tk ;

4

iz

fF

In the Supreme Court of the

United States

OCTOBER TERM, 1975

No. 588

STATE OF WASHINGTON, THOR C. TOLLEFSON,

Director, Washington State Department

of Fisheries, CARL CROUSE, Director,

Department of Game, and WASHINGTON

STATE GAME COMMISSION,

Petitioners,

Vv.

UNITED STATES OF AMERICA, QUINAULT TRIBE

OF INDIANS, MUCKLESHOOT INDIAN TRIBE,

SQUAXIN ISLAND TRIBE OF INDIANS, SAUK-

SUIATTLE INDIAN TRIBE, SKOKOMISH INDIAN

TRIBE, STILLAGUAMISH TRIBE OF INDIANS,

QUINAULT TRIBE OF INDIANS on behalf of

the QUEETS BAND OF INDIANS, MAKAH INDIAN

TRIBE, LUMMI INDIAN TRIBE, HOH TRIBE OF

INDIANS, CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, UPPER

SKAGIT RIVER TRIBE, AND QUILEUTE

INDIAN TRIBE,

LLIN PE

Respondents.

PETITION FOR RECONSIDERATION OF

DENIAL OF CERTIORARI

The petitioners State of Washington,

%

3

Thor C. Tollefson, Director of the Wash- f

ington State Department of Fisheries,

Carl Crouse, Director, Department of Game, i

1

Ucn ne RORC NCO NREL RROREN NE ENN SENNA ONTETTII ST T

‘*

and the Washington State Game Commission,

respectfully request a reconsideration pur-

suant to Supreme Court Rule 58(2) of this

Court's denial of certiorari.

The United States government request-

ed an extension of time for the filing of

$

S

¥

*

its brief in opposition to the writ of

certiorari, but the United States' brief

was not filed within the deadline estab-

lished by the order granting the extension.

The government's brief was filed immediately

2 SRLS OLE LONI TOPE N S 2

preceding the Court's consideration of the

petition, thus eliminating an opportunity

for a response. No delay is created by the

filing of this request for reconsideration

because during the pendency of the appel- i

late process the District Court has con- 4

tinued to exercise jurisdiction in managing

© PTR OL ERAT

the fishery resource of the state in ac-

teen gene

cordance with its judgment and decree.

The United States government's brief was EK

prepared by attorneys who did not

2 ’

participate in the trial of the action

nor in the continuing jurisdiction, and

in their brief created impressions, which

are rebuttable, and may have induced the

Court to deny the petition for certiorari.

ARGUMENT

The State of Washington has histori-

cally responded in a positive manner to the

judicial interpretations which have expand-

ed fishing clauses in Indian treaties.

These cases, United States v. Winans, 198

U.S. 371; Tulee v. Washington, 314 U.S.

681; Puyallup Tribe v. Dept. of Game

(Puyallup I), 391 U.S. 392; and Dept. of

Game v. Puyallup Tribe (Puyallup II), 414

U.S. 44, have all recognized the authority

of the state to regulate off-reservation

Indian fishing, an authority seriously

undermined by the instant proceeding.

Following this Court's ruling in Puyallup

I, the Department of Fisheries established

"i aa

. _ ——

POEL EINE RA RSE TS LER 7 REALE RAS SEPT REESE EL NET LE LOT I BI IES LCL AIA

special fishing seasons for Indians? and

following Puyallup II, the Department of

Game also established special Indian-only

fishing seasons. “ Both such activities

occurred prior to the United States Dis-

trict Court opinion in the instant pro-

ceeding. The United States' brief raises

the impression that without the protection

of the Court decree the Indian harvest of

fish in the area would be negligible.

In fact the record indicates that members

of the plaintiff tribes harvested 29.3%

of the Chinook salmon, 30.4% of the Coho,

23.6% of the Pink salmon and 46.6% of the

Chum salmon harvested within the state of

1 Finding of Fact 20 re efforts taken by the

Department of Fisheries to augment the volume

of fish available to Indians and establishment

of special Indian fisheries.

2 Tr. pp. 1478-82.

Ss a |

Washingtoi. produced from rivers and streams

whereon their fisheries were located.

With reference to the foregoing, we

should turn to the statement in the

United States' brief that the Department

of Fisheries urged that one-third of the ;

fish harvest be allocated to treaty In-

dians. This Court in Puyallup II, supra,

EERIE ORIN

November, 1973, while construing the

Treaty of Medicine Creek, which is one

of the treaties in this proceeding, did f

not construe the term "in common" to

mean a fifty percent allocation of fish

but rather stated:

"What formula should be em-

ployed is not for us to pro-

pose. There are many

variables--the number of nets,

the number of steelhead that

can be caught with nets, the

places where the nets can be

Placed, the length of the net

3 Finding of Fact 186, p. 1681, Ex. F6, Ex.

F7, Ex. F28; page 331.1 to page 341.21) These

percentages were calculated fram Ex. F7. The

catches do not include fish caught by Indian :

fishermen in the all-citizen commercial and ?

sport seasons. |

5 '

5 RRS NT EI MGS RATES PE NES PA RENT ES ESET AE IRN I LINO TERE PATI EEN ER

season, the frequency during

the season when nets may be

used. On the other hand there

are the number of hook and

line licenses that are is-

suable, the limits of the

catch of each sports fisher- :

man, the duration of the 3

season for sport fishing, and

the like."

POTION OTE ER

After considering multiple factors the

Department of Fisheries suggested that

one-third of the harvestable fish from

those watersheds in which Indians have

usual and accustomed fishing grounds and

stations should be available for the In-

dian fishery. That proposal for a quanti-

fication; i.e., the one-third, included

the entire catch by Indians whether on

or off-reservation. The quantification

by the Court is thus substantially more

than simply an increase of 16% or 17%.

It should be noted and reemphasized that €

the trial court determination was that:

(1) The Indians are entitled to an

unlimited catch on the reservation and

after the state is advised of the

6

ON ..aaaeaeaeaeaeE |

magnitude of that intended catch it must

subtract those fish to be harvested on

reservation from the total fish available

for harvest in the marine environment.

(2) Indians are entitled to parti-

cipate in the all-citizen fishery outside :

of their usual and accustomed grounds and f

stg

any catches made in such areas count as

part of the all-citizen 50% and are not

included in the Indians' share of the

harvest.

REE ERE ODS IE RAE SF

(3) The Indians are entitled to 50%

Pe

rites AE

of the fish to be harvested outside of

their reservations.

The following page graphically indi-

cates the nature of the court's allocation

of the fish resource. We emphasize that

IDM ATE NT ENP RES ARM HE 0

the portion entitled ceremonial catch,

personal use and reservation catch is ex-

pandable at the Indians' discretion, and

Mia Ses Sess ah bs Dn a

thus this portion of the total graph can

either contract or expand at their option.

~~. Rene Ra BF

7

i

i

| Fe yee ee

N3WYSHSI4

NOW VS 40 Y38WNN

Tae =

NVIQNI

p62

o

2 Axons

” Le

© Min bdyyy

NOIL3YDSIG :

SNVIGNI LV

ITBVONVdx3 f

3YVHS ©

SIHL

HOLVD LYOds @~

WIduaWWOD

N3ZIL19

NOWWOD Ny

SvV3uv O3NO01SNDOV

1u0dS GNV IvNSsN 3a01SiNO

OS9°€82 HILVD NVIGNI S3QNIONI

SLSSAYVH SNVICNI SSLON3C

|

|

— IEEE RAO RTE ERAN. DES EEN Oe AI A SI HMSO APIE OO

aa

SPQ EIEN Ae Ee

ASA TRON BRM CR LOGY BE WAG BND IAEA ED 0

The United States' brief implies that

the decisions by the Ninth Circuit and the

District Court do not present a problem

with reference to the International Pacific

Salmon Fisheries Commission jointly created

by the United States and Canada for the

regulation and control of the Fraser River

salmon runs. The Court of Appeals was re-

M

i

be

is

quested to, but did not, directly rule on

the question of the effect of the 1937

Convention (50 Stat. 1355) and implementing

tom aRteggerer Semen

legislation on the Indian treaties. The

Court did conclude that although the Con-

vention waters subject to the regulation

of the International Commission are beyond

CMO met ame tg:

the jurisdiction of the State of Washington,

nevertheless Indians are entitled to addi-

ee a a

tional adjustments to their share of the

harvest within the State's jurisdiction

+ reg jae

Se ans

to reflect harvests in Convention waters.

The United States government has supported i

the United States District Court's

9 :

Sire EEN ALOR RAR MEH Me RIEHL TAMER CAT IMAGES ES PAPAIN BART T ETD ERM RENE

interference with the ability of the

State of Washington to carry out as an

agent of the International Pacific Salmon

Fisheries Commission the enforcement of

regulations adopted by that international

body. The state was not contending before

the Ninth Circuit that the International

Salmon Commission had preempted Indian

treaty rights, but rather that insofar

as the state acts as an agent of the

International Commission which establishes

pO OOPS 819 OMNI HOF ARERR “ae BE

the regulations over the area in question,

the state pursuant to the Congressional

authorization can directly enforce the

Commission's regulations.

ORIEN ee en” DCH UE

CONCLUSION

The petitioners respectfully submit

that this Court should reconsider its

RECTION

denial of certiorari and entertain juris-

diction. There are serious jurisdictional

concepts vis-a-vis the state and Indian

tribes not addressed by the briefs filed

10

in opposition to certiorari. The serious

impact upon the management and harvesting 4

of a major resource of the State of Wash-

ington; i.e., the fishery, and the fact

that the decision is inconsistent with j

prior decisions of this Court present :

strong compelling reasons for this Court

to reconsider and to grant certiorari

in this proceeding.

DATED this 18th day of February, 1976.

Respectfully submitted,

SLADE GORTON

Attorney General

EARL MC GIMPSEY

Assistant Attorney General

EDWARD B. MACKIE

Deputy Attorney General

Counsel for Petitioners

11

This petition for reconsideration is

submitted in good faith, not for delay,

and is necessitated by the unauthorized

late filing of the United States' brief

immediately preceding consideration by

the Court of the petition for certiorari.

EDWARD B. MACKIE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

12 |

I hereby certify that on this 18th

day of February, 1976, three copies of

the Petition for Reconsideration of

Denial of Certiorari were mailed, postage

paid, to Robert H. Bork, Solicitor

General, Justice Building, Constitution

Avenue between 9th & 10th St., NW,

Washington, D.C. 20530, counsel for

respondents. I further certify that

all parties required to be served have

been served.

EDWARD B. MACKIE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

13