Amicus Curiae Brief — Washington v. United States

IN THE | SAN 15 1976

Supreme Court of the United fitatetonnx, m. a

October Term, 1975

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

STATE OF WASHINGTON, et al., Petitioners,

v.

Unrrep States oF AMERICA, QUINAULT TRIBE

or INDIANS, et or Respondents,

NoRTHWEST STEELHEADER COUNCIL OF TROUT

Unuouaten, Petitioners,

v.

Unrtrep STATES OF AMERICA, ‘AULT TRIBE

wee" nia

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

Pau. W. STeere of

Boc.e & GaTEs

Office and Post Office Address: Ronan T. ScHAPs

Bank of California Center W. Prerson

Seattle, Washington 98164 Jacos A, MIKKELBORG

CRAFTSMAN @ MET PRESS c@@BO SEATTLE, WASHINGTON

i

SUBJECT INDEX

Page

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

SE, A Te asst sincitevanesninstacinhnnicininsininabhontinn 1

Diasonins Tit as i iititencinincaienie 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-

I Sc ie a 10

3. Other Issues Raised By Parties......................----0:0++- 16

I cal eee IN, eet Teme Oe pE ey teem 17

TABLES OF AUTHORITY

Table of Cases

Choctow Nation of Indians v. United States,

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

Department of Game v. The Puyallup Tribe,

Me ae I ko teed 5, 8-9

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

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

Martin v. Lessee of Waddell, 16 Pet. 367 (1842).......... 5, 11

McCready v. Commonwealth of Virginia,

Oe Oe ee COE Pins ees ; , re

Northwestern Band of Shoshone Indians v. United

Setar, TENG OT. TE CI anne cccccnescscessccrensiente 9-10

Puyallup Tribe v. Department of Game,

ee f° teas 8

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

Smith v. Maryland, 18 Howard 71 (1855).............:.0:0000-- 5

:

'

é

SORE AERA EE ILENE Me

ii

Page

Takahashi v. Fish & Game Commission,

BS Se et |; SRR ae 5, 12, 13

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

Constitutional Provisions

ran a ends alldebsdieoesat 12

re a ei ntlianstegpniemmewndanincinne 12

U.S. Const. amend. XIV....... EOS EPROP He: 12, 13

Statutes

kasi embunm binges 11, 12

SR ree RTE fe So NF 13

Other Authority

a i caenietenineninians 1

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

SAE. INE AHR FLL TO RENIN LI

IN THE

Supreme Court of the United States

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 al., Respondents,

and

NORTHWEST STEELHEADER COUNCIL OF TROUT

UNLIMITED, Petitioners,

Vv.

UNITED STATES OF AMERICA, QUINAULT TRIBE

oF INDIANS, et al.,

and

WASHINGTON REEF Net OwNneERS ASSOCIATION, et. al.,

Petitioner,

Vv.

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-

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 Indian reef net sites in treaty times. Purse seiners, gill netters, trollers,

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

case below.

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 stations” (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 amounts

of fish that could be harvested were particularly affect-

ed by run-size fluctuations caused by natural condi-

tions and water conditions occurring at the time the

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

oF a 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 be inconvenient to all parties, as

the Indians move about, on the sound particularly,

from one to another locality, according to the sea-

son.’” (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

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:

“1. 1. Belonging equally to more than one, or to many

indefinitely; as life and sense are common to man and

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

+ VDAC OE REIN EIT MOISE ere comer er egy cee

ae | LEE EIRP LE LEI RO

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

LDA ELE TRE POS EM LALO I IE DAG PMG TERS, <A REA RHE ha a OOP SDL RANE ROBE R IE ual OES ae

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

BBN UATE INR GE BY BEE 29° ESM SWISS PALER

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

ee |

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 is significant to note that neither the district court nor

the court of appeals analyzes this result from the stand-

point of equal protection principles which this Court has

recognized as being required in the application of the

specific language and treaties now before this Court.

“, . . [We] add that any ultimate findings on the

conservation issue must also cover the issue of equal

protection implicit in the phrase ‘in common with’”

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

at 403 (1968).

“The case was remanded for determination of . . .

‘the issue of equal protection implicit in the phrase “in

common with’ ’ as used in the Treaty.

soc @

“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 Treaty 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 in 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

=

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 Indians 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

to 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.

ERIN, cr BR NS TR RY eh FARO IER URN DS LPR FS CRBS CIMA DS NHS

11

Salmon off the western coast of the United States run in

mixed stock—salmon caught in the ocean 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-

amunaiis that Enabling Act declares that:

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

ok 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 proclamation.”

(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:

“[W]e hold that commercial shrimping in 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).

FE PEELE OR UGE SBE E ERIC LS LPT

"3

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-

quate 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 tu 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

c.dzens 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

ew AI ELOISE Oy

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,

EIR GREL LMI OEE NILES LR GREE IE ERDAS EDT Gg Ls A FR

LEA DPI A LEAD BODES AVE Se OED

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

BocLe & GATES

Special Counsel for all

Amici Curiae

Of Counsel:

RONALD T. SCHAPsS

JosePu T. Mijicu

RICHARD W. PIERSON

Jacos A. MIKKELBORG