Petition for Writ of Certiorari — Washington v. United States

5 eee INI INDRA MINA WE aN Tw AN Ae a SO ONE Mt (SR re , oa abhi dion anes

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— 4 ‘ .

OCT 20 1975

IN THE i

| SUPREME COURT OF THE UNITED STATES [

‘ OCTOBER TERM, 1975

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| WASHINGTON REEF NET OWNERS ASSOCIATION,

; Petitioner

Vv.

UNITED STATES OF AMERICA, et. al.,

Respondents.

Petition of Washington Reef Net Owners Association

For a Writ of Certiorart

To The United States Court of Appeals

For The Ninth Circuit

ASMUNDSON, RHEA & ATWOOD

David E. Rhea

Suite 5, Bellingham Legal Center

805 Dupont Street

Bellingham, Washington

Counsel for Petitioner

PE OA yy NS YUE NT, BION Pe OS ONS NR

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

WASHINGTON REEF NET OWNERS ASSOCIATION,

Petitioner

Vv.

UNITED STATES OF AMERICA, et. al.,

Respondents.

Petition of Washington Reef Net Owners Association

For a Writ of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

ASMUNDSON, RHEA & ATWOOD

David E. Rhea

Suite 5, Bellingham Legal Center

805 Dupont Street

Bellingham, Washington

Cownsel for Petitioner

INDEX

Page

OPINIONS BELOW 2

JURISDICTION 2

QUESTION PRESENTED FOR REVIEW 2

TREATIES AND STATUES INVOLVED 2

STATEMENT OF THE CASE 2

ARGUMENT 4

CONCLUSION . 12

AUTHORITIES CITED

CASES Page

Cf. United States v. Choctaw Nations, 179 U.S. 494, 9

45 L. Ed. 291, 21S. Ct. 149

Choctaw Nation or Indians v. United States, 119 8

U.S. 1, 30 L. Ed. 306, 7 S. Ct. 75

Choctaw Nation of Indians v. United States, (1942) 8

318 U.S. 423

Cook v. United States, 288 U.S. 102; 77 L. Ed. 641; 8

53 S. Ct. 305

Department of Game v. Puyallup Tribe, 414 U.S.44 3

(1973) (Puyallup IT)

Factor v. Laubenheimer, 290 U.S. 276; 8

78 L. Ed. 315; 54 S. Ct. 191

ii

CASES

Jones v. Meehan, 175 U.S. 1 (1899)

Kansas or Kaw Tribe of Indians v. United States,

80 Ct. Cl. 264, (1934)

Missouri v. Holland, 252 U.S. 416 (1920)

Northwestern Shoshone Indians v. United States,

(1944 324 U.S. 335

Osage Indians v. United States, 279 U.S. 811

Osage Tribe of Indians v. United States, 66 Ct. Cl.

64, (1928)

Puyallup Tribe v. Department of Game

of Washington (Puyallup I), 391 U.S. 392 (1968)

Tulee v. Washington, 315 U.S. 681; 86 L. Ed. 1115

62 S. Ct. 862

United States v. Mille Lac Band, 229 U.S. 498;

57 L. Ed. 1299; 33 8. Ct. 811

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

82 L. Ed. 1213, 58 S. Ct. 794

United States v. Winans, 198 U.S. 371, (1905)

STATUTE AND TREATY

28 USC § 1254 (1)

12 Stat. 927 (Treaty of Point Elliott)

Page

Cea ale Se

mm Dees mere,

OTE LEN ROL LIRR YONI cg

PI ERY

iii

TEXTS AND OTHER PUBLICATIONS

Page

Webster’s American Dictionary of the English 9

Language, 1828 and 1862 Editions

IN THE

‘ SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No

WASHINGTON REEF NET OWNERS ASSOCIATION,

Petitioner

Vv.

UNITED STATES OF AMERICA, et. al.,

Respondents.

Petition of Washington Reef Net Owners Association

For a Writ of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

Petitioners, Washington Reef Net Owners Association,

respectfully request that a Writ of Certiorari be issued

from the United States Supreme Court to review the

judgment and opinion of the United States Court of Ap-

peals for the Ninth Circuit entered June 4, 1975, and the

order denying application for rehearing en banc entered

by said court on July 23, 1975.

AIRE Baty Wrens Pea. .

OPINIONS BELOW

The opinions of the Court of Appeals and of the Dis-

trict Court are included in the appendix attached to the

petition previously filed with this Court by the petition-

er State of Washington and they are herewith, by this

reference, included herein.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on June 4, 1975. A timely petition

for a rehearing en banc was denied on July 23, 1975,

and this petitioner’s application for an extension of time

was filed within ninety days of that date, namely, on

October 20, 1975. This Honorable Court’s jurisdiction is

invoked under 28 USC § 1254(1), an interpretation of the

Treaty of Point Elliott, 12 Stat. 927, being required.

QUESTION PRESENTED FOR REVIEW

Are the present day reefnetters operating in what were,

at treaty times, ‘‘uc -- and accustomed grounds and sta-

tions’’ of the Lummis?

TREATIES AND STATUTES INVOLVED

Interpretation of the Treaty of Point Elliott, above

referred to, is required and, for statutory justification

for bringing this action, 28 USC § 1254(1) above quoted.

STATEMENT OF THE CASE

This action was originally initiated by the United

States of America, acting through the United States Dis-

trict Attorney for the Western District of Washington,

against the State of Washington. Subsequently, many In-

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dian tribes intervened as additional plaintiffs and the

directors of the Washington State Department of Fish-

eries and the Washington State Department of Game

thereafter intervened as additional defendants. The Lum-

mi complaint in intervention, (Vol. 1, p. 75), sought, in

effect, to have the State barred from issuing further

licenses for reefnetting and to ban reefnetting, as it has

been conducted in Puget Sound since 1934, from the areas

presently in use upon the grounds that these were locations

granted irrevocably to the Lummi by the Treaty of Point

Elliott. The reefnetters, through their Association, ap-

plied to participate as a defendant-intervener (Vol. 1, p.

193), which right was ultimately granted to them.

(Judge Boldt originally denied the application but, upon

a motion for reconsideration, Judge Goodwin granted the

intervention.) (Vol. 1, p. 204).

Thereafter, an answer was filed upon behalf of the reef-

netters, (Vol. 1, p. 207), and the various issues between

the Lummis and the reefnetters were set forth in the Final

Pretrial Order, (Vol. IV, p. 766).

In disposing of these issues, the trial court ruled com-

pletely in favor of the plaintiffs, including the Lummis,

such rulings being encompassed in the Final Decision,

Findings of Fact, and Conclusions of Law, (Vol. VII, pp.

1515-1727).

The basis for the jurisdiction of the trial court is the

existence of the Treaty and Statute above cited.

It is submitted, pursuant to the requirements of Rule

19, that a Writ of Certiorari should issue from this Hon-

orable Court because the Court of Appeals decided the

question affecting these petitioners in a way in conflict

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with the prior decisions of this Court in the two Puyallup”

cases, namely, Puyallup Tribe v. Department of Game,

391 U.S. 392 (1968) (Puyallup I) and Department of Game

v. Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II), in

the manner and fashion set forth in the Briefs of petition-

ers State of Washington and Northwest Steelheaders

Council of Trout Unlimited. Furthermore, in deciding

upon a strict formula for application of the Treaty of

Point Elliott, and in holding that t)«se petitioners were

fishing upon the ‘‘usual and accustomed groands and sta-

tions’’ of the Lummis at treaty times, the lower courts have

decided an important question of federal law which has

not been, but should be, settled by this court.

ARGUMENT

In order to determine what were the ‘‘usual and accus-

tomed grounds and stations’’ for the taking of fish utilized

by the Lummis at the time of the Treaty of Point Elliott,

it is essential to determine how ‘‘reefnetting’’ was done

by the Lummis at, and prior to, treaty times. At trial,

the plaintiffs’ principal anthropological witness, Dr. Bar-

bara Lane, beginning at page 15 of USA Exhibit 30, des-

cribed by quotes from Collins how reefnetting was done

in 1888 and 1889. She continues the description by quot-

ing, at page 17 of the said exhibit, from a manuscript

written in 1951 by another anthropologist, Dr. Suttles.

In it, Suttles notes that,

‘‘Usually the reefnet was located in a kelp-

covered reef a short distance offshore. Often

it was opposite a headland that caused a back-

ward sweep of tidal current. The fish entered

with the current. If the location were in kelp

wits

bed, a channel was cleared so that the fish

swam into the channel and into the hidden

net. If there were no kelp, the illusion of a

channel was created by hanging weeds on

lines leading to the net.’’

More contemporary descriptions of how reefnetting was

done by the Lummis in earlier times appears in Reefnet-

ters exhibits, RN 12, RN 13 and RN 14, all three of which

are affidavits from Indians given in an early trial held

in 1896 and 1897 in the Circuit Court of the United States,

District of Washington, Northern Division, i.e., Seattle,

wherein the United States, upon behalf of various Lummis

sought to restrain the Alaska Packers Association and an

adjoining land owner, Kate Waller, from installing fish-

traps—then legal, but illegal in this state since 1934—

where it interfered with the reefnet operations of the

Lummis at Point Roberts at the northern part of Puget

Sound.

RN 12 is the affidavit of a Lummi, Jack Suniptilino.

On page 1 thereof, he states that he is more than 85 years

old and that he had fished [i.e., reefnetted] at Point Rob-

erts since he was so small and young that he could not

recollect the first time he fished there. He specifically

states,

‘‘We fished on the reef with nets made of

young willow and for anchor ropes we used

ropes made out of cedar withes and bark;’’

RN 13 is the affidavit of one John Elwood—not a

Lummi—who states, at page 1, that the salmon caught

by the Lummis passed over and near Village Point reef

on Lummi Island a distance of about two miles from the

POSADA RIB PS

_— -

Lummis’ reservation, then to Point White Horn and

thence to Point Roberts which is more than thirteen miles

north of the reservation. He further adds,

‘*That the only places in the course of the run

of such salmon where they can be taken by

hand nets such as are now and have been

from time immemorial used by the Indians is

on the reefs over which they cross and at

such places on such reefs where the water

is not to exceed two fathoms in depth; at Vil-

lage Point and at Point Roberts are the only

places in the waters of the lower Puget Sound

or Gulf of Georgia where the Indians can

catch them ;’’

RN 14 is the affidavit of Harry Sewalton, a Lummi,

who states at the top of the fifth page of his affidavit,

‘“*Affiant further says that the said Point

Roberts reef and the reef at Viliage Point on

Lummi Island in Whatcom County, are the

only two reefs in the waters of said county

or in the lower Sound upon which the said

Lummi Indians could take salmon with hand

or lift nets; that at Village Point the reef is

very short and abrupt and it is possible for

said Indians to use at most but few nets

upon such reef;’’

(All underlining in the preceding paragraphs has been

done by this writer.)

Contemporary methods of reefnetting are set forth in

the Transcript of the trial testimony of Jerry Anderson

beginning at page 3685 through line 8, page 3695, (Vol.

ra, poe

XVI). A further description of the equipment used and

the manner of operation appears in RN 1, the pretrial

deposition of reefnetter, John R. Brown, from page 55

through page 69 thereof.

An accurate description of the depths needed for pres-

ent day reefnetting operations appears in Exhibit RN 9,

the direct testimony of Laurence G. Waters. Also in his

trial testimony commencing at page 3729 of the Transcript

and through page 3732, (Vol. XVI).

The location of the present day gears, and their ap-

pearance and operation, is set forth in Exhibit RN 7,

which is an aerial map of Legoe Bay, the present prin-

cipal reefnetting ground. Exhibit RN 8, an overlay, is also

of assistance in showing the locations of the various rows

and the depths.

We are then confronted with the question, how liberally

may Indian treaties be interpreted?

There are various statements in cases such as Jones v.

Meehan, 175 U.S. 1 (1899), and United States v. Winans,

198 U.S. 371, (1905), and Missouri v. Holland, 252 US.

416, (1920), that the treaties should always be liberally

construed for the benefit of the Indians.

There have been other statements, however, from the

United States Supreme Court and other Federal Courts

putting limits to this rule. Kansas or Kaw Tribe of In-

dians v. United States, 80 Ct. Cl. 264, (1934), cert. denied,

296 U.S. 577; Osage Tribe of Indians v. United States,

66 Ct. Cl. 64, (1928), appeal dismissed and cert. denied;

Osage Indians v. United States, 279 U.S. 811, all held

that courts must accept the treaties as written and cannot

alter or amend them.

In Northwestern Shoshone Indians v. United States,

(1944) 324 U.S. 335, at p. 353, Justice Reed, writing the

majority opinion, states,

‘‘We attempt to determine what the parties

meant by the treaty. We stop short of vary-

ing its terms to meet alleged injustices. Such

generosity, if any may be called for in the re-

lations between the United States and the

Indians, is for Congress.’’

Justice Jackson concurring for himself and Justice

Black, states, in the same case at p. 356, while addressing

himself to the question of the liberal interpretation of

Indian treaties,

‘‘Even if both parties to these agreements

were of our own stock, [i.e., non-Indian], we

being a record-keeping people, a court would

still have the gravest difficulty determining

what their motives and intensions and mean-

ings were. Statutes of limitation cut off most

such inquiries, not because a claim_becomes

less just the longer it is denied, but because

another policy intervenes—the policy to leave

in repose matters which can no longer be the

subject of intelligent adjudication.’”’

(Emphasis supplied.)

In Choctaw Nation of Indians v. United States, (1942)

318 U.S. 423, at p. 431, Justice Murphy stated,

‘‘Of course treaties are construed more lib-

erally than private agreements, -and to ascer-

tain their meaning we may look beyond the

written words to the history of the treaty,

the negotiations, and the practical construc-

=

tion adopted by the parties. Factor v. Lauw-

benheimer, 290 U.S. 276, 294, 295, 78 L. Ed.

315, 324, 325, 54 S. Ct. 191; Cook v. United

States, 288 U.S. 102, 112, 77 L. Ed. 641, 646,

53 S. Ct. 305. Especially is this true in inter-

preting treaties and agreements with the In-

dians; they are to be construed, so far as t

possible, in the same sense in which the In- ;

dians understood them, and ‘in a spirit which

generously recognizes the full obligation of

this nation to protect the interests of a

dependent people.’ Tulee v. Washington, 315

U.S. 681, 684, 685, 86 L. Ed. 1115, 1119, 1120,

62 S. Ct. 862. See also United States v.

Shoshone Tribe, 304 U.S. 111, 116, 82 L. Ed.

1213, 1218, 58 S. Ct. 794; Choctaw Nation v.

United States, 119 U.S. 1, 28, 30 L. Ed. 306,

315, 7 S. Ct. 75. But even Indian treaties

cannot be re-written or expanded beyond their

clear terms to remedy a claimed wyustice

or to achieve the asserted understanding of )

the parties. Cf. United States v. Choctaw ’

Nations, 179 U.S. 494, 531, 533, 45 L. Ed. 3

291, 305, 306, 21 S. Ct. 149; United States v.

Mule Lac Band, 229 U.S. 498, 500, 57 L.

Hd. 1299, 1302, 33 S. Ct. 811.’’ (Emphasis sup-

plied.)

We must then abide by the plain, clear meaning of the

key words already quoted above—‘‘at all usual and ac-

customed grounds and stations’’ and ‘‘in common with

all other citizens of the Territory.’’

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Next we must consider, what is the meaning to be given

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the treaty words, ‘‘usual and accustomed fishing grounds

and stations’’.

As the court points out in his Finding of Fact No. 24,

beginning at p. 19 of the Findings of Fact, (Vol. VII, p.

1597) the meanings intended by the treaty commissioners

were those appearing in the dictionaries then extant.

Further, we are in full agreement with that portion of

Finding No. 24 which appears at the top of p. 20 of the

Findings of Fact that the words ‘‘usual and accustomed’’

were probably used in their restrictive sense, not intend-

ing to include areas where use was occasional or inci-

dental.

Let us requote then the meanings for the two words

‘‘ysual’’ and ‘‘accustomed’’ as they appeared in the 1828

and 1862 editions of Webster’s American Dictionary of

the English Language set forth in the Finding:

‘‘usual Customary; common; frequent,

such as occurs in ordinary prac-

tice or in the ordinary course

of events.

accustomed: Being familiar by use; habit-

uated; inured . . . usual; often

practiced.’’

Applying the meanings, as thus established, to the

question of whether or not the Reefnetters, as they pres-

ently are functioning, are invading Indian Treaty rights

—which is the essence of the dispute betw *n the Lummis

and the Reefnetters—we cannot but conciude that in no

wise are the areas of Legoe Bay now used for reefnetting

either ‘‘accustomed’’ or ‘‘usual’’ ‘‘fishing grounds or sta-

tions’’ of the Lummis at Treaty times. The very prim-

a

itive equipment the Lummis were using at that time,

plus the shallow depths and limited locations in which they

were compelled to function, totally excludes any argu-

ment that reefnetting, as now conducted with several

eight ton anchors per vessel, heavy steel cables, substantial

depths, and strong tidal problems, is any wise upon

‘*grounds or stations’’ utilized by the Lummis at Treaty

times. In other words, a totally new and entirely dif-

ferent fishing ground has been developed by present day

reefnetters in the operations as they are now carried on.

The foregoing conclusion is bolstered further by the

last sentence in the court’s Finding No. 24, to-wit,

‘*The restrictive sense of the terms ‘‘usual

and accustomed’’ could have been conveyed

in Chinook Jargon.’’

The Indians, in other words, were intending only to con-

vey an interest in what they were then presently enjoy-

ing, i.e., the use of ‘‘but few (See Exhibit RN 14, p. 5)

locations at Village point (which is at the north end of

Legoe Bay) and the others at Point Roberts—an area not

in dispute in the present suit.

That present day reefnetters are in no wise utilizing

areas used by the Lummis at Treaty times is reinforced

further by much other of the testimony or exhibits:

(a) Dr. Barbara Lane concedes, in the Transcript

of her testimony at p. 2156, 1s. 12-15, (Vol. X, p. 2156),

that she is unable to state whether the present reefnet

locations are in locations which would have been used

by the Lummi Indians.

(b) Exhibit RN 7 shows that the area now utilized

—

for present day reefnetting is large and extensive. Yet

the affidavit of Harry Sewalton, Exhibit RN 14, in the

first paragraph of p. 5, states,

‘‘At Village Point [which is at the northern

end of Legoe Bay] the reef is very short and

abrupt and it is possible for said Indians to

use at most but few nets upon such reef;’’.

(Underlining supplied.)

(c) The affidavit of John Elwood, Exhibit RN 13,

from the same federal court action states, in speaking

of the use by the Lummis of their nets,

‘*(nets] such as are now and have been from

time immemorial used by the Indians are on

the reef over which they cross and at such

places on such reefs where the water is not to

exceed two fathoms in depth.’’ (Underlining

supplied. )

(d) The affidavit of Jack Sumptilino, Exhibit RN

12, in referring to the material used for nets and anchor

ropes states,

‘*We fished on the reef with nets made of

young willow and for anchor ropes we used

ropes made out of cedar withes and bark;”’

(e) Even Lummi witness, Herman Olsen, states at

p. 2955 of the Transcript of his testimony, (Vol. XIII,

p. 2955), that the cedar ropes were only twenty feet long.

He repeats this statement on the succeeding page of his

testimony, 2956.

(f) Such ropes were, therefore, not only far too

short to have enabled them to fish at the depths shown

in the testimony of Laurence G. Waters, (Vol. XVI, pp.

AAO ETE LEAN HR EAM

—_ A AER " APO We ED ESTO jeder

3729-3732), but they would not have had the strength of

the three-quarter inch steel cables nor the one and one-

eighth inch synthetic lines now used for anchor lines., Tr.

pp. 3699, 3700, (Vol. XVI, pp. 3699-3700). They could

not have sustained thirty-two tons of anchors such as

are now used in front, (1. 2, p. 3704, Vol. XVI). Four

experienced reefnetters, Jerry Anderson, Warren C. Gran-

ger, John R. Brown and Glenn Schuler, stated positively

and unequivocably, (Vol. XVI, pp. 3695, 3698; Vol. XVI,

p. 3739; Vol. XVI, p. 3763; Vol. XVI, pp. 3768, 3769), that

in their opinions pre-Treaty reefnet boats owned by the

Lummis could not possibly have fished in the areas now

used with the lines and anchors then available because of

the extreme tidal conditions which sometimes prevail and

the depths in which the operations are conducted.

Obviously and unquestionably, therefore, in view of

the foregoing points, present day reefnetting is being

conducted in an area which would never have been capable

of use by pre-Treaty Lummis and which is not, therefore,

within an area which may ever have been a ‘‘usual or

accustomed ground or station’’. Present day reefnetters

are clearly operating outside the area referred to, and

included in, the provisions of the Treaty; the Treaty does

not apply to them nor should it be the basis for restrict-

ing their activities as they have been conducted in the

past under state sanction and control.

CONCLUSION

Present day reefnetters are in no wise operating upon

the ‘‘usual and accustomed grounds and stations’’ of the

Lummis as the latter existed when the Treaty of Point

Elliott was negotiated. The primitive fishing equipment

pit vm oe weak a ll - ss

co RRR R EON PROT Hen SS MRI ID sli mn oS

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available to the Lummis at the time of the treaty negoti-

ations were wholly incapable of fishing in the grounds

now used by the present day reefnetters. The latter are

but utilizing—and wholly without discrimination in any

way toward the Lummis—a new fishing area developed

by them in recent decades, which location is situated wholly

outside of any marine area used by pre-treaty Indians.

Respectfully submitted,

ASMUNDSON, RHEA & ATWOOD

By

DAVID E. RHEA

Of Attorneys for Petitioner

Suite 5, Bellingham Legal Center

805 Dupont Street

Bellingham, Washington 98225

(206) 733-3370