Opposition Brief — Lummi Indian Tribe v. Washington

No. 92-1445

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

UNITED STATES OF AMERICA

Plaintiff,

LUMMI INDIAN TRIBE,

Petitioner,

V.

STATE OF WASHINGTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT STATE OF WASHINGTON’S

BRIEF IN OPPOSITION

CHRISTINE O. GREGOIRE

Attorney General

ROBERT K. COSTELLO

Sr. Asst. Atty. General

(Counsel of Record)

JAY D. GECK

Assistant Atty. General

P.O. Box 40100

Olympia, WA 98504-0100

(206) 753-2496

Counsel for Respondent

State of Washington

No. 92-1445

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

5

a UNITED STATES OF AMERICA

e Plaintiff,

: LUMMI INDIAN TRIBE,

7 Petitioner,

Ae

‘ STATE OF WASHINGTON,

4 Respondent.

4 ON PETITION FOR WRIT OF CERTIORARI

2 TO THE UNITED STATES COURT OF APPEALS

& FOR THE NINTH CIRCUIT

r RESPONDENT STATE OF WASHINGTON’S

4 BRIEF IN OPPOSITION

‘

3

a CHRISTINE 0. GREGOIRE

: Attorney General

3 ROBERT K. COSTELLO

as Sr. Asst. Atty. General

(Counsel of Record)

JAY D. GECK

Assistant Atty. General

i P.O. Box 40100

me Olympia, WA 98504-0100

* (206) 753-2496

a Counsel for Respondent

State of Washington

QUESTION PRESENTED

The Petition for Writ of Certiorari

should be denied. However, if granted,

this case presents an additional

question: Does the decision in Montana

v. United States, 450 U.S. 544 (1981)

and the Equal Footing Doctrine

presumption against inclusion of

navigable waters in a pre-statehood

reservation mean that Bellingham Bay is

not included within the boundaries of

the Lummi Indian Reservation?

TABLE OF CONTENTS

Page

: OPINIONS BELOW ..cccccccccece 1

II. NOTICE OF MISSTATEMENT

REQUIRED BY RULE 15.1 ......cccccccee 2

Baa« STATEMENT OF THE CASE ........ 3

IV. REASONS WHY THE PETITION

SHOULD BE DENIED ......cccccccccccace 10

1. The Opinion Below Does

Not Conflict With Rules

of Interpretation for

Indian Treaties or

Executive Orders. ...... 11

2. This Case Does Not

Present the Issues

Described in the Lummi

PORSREM, ccccsrevecvcéa 13

3. The Court of Appeals’

Decision Does Not

Conflict With Alaska

Pacific Fisheries. .... 17

4. The Court of Appeals’

Opinion may be Affirmed

Based on the Equal

Footing Doctrine. ...... 19

ol Ee er. 22

TABLE OF AUTHORITIES

Cases

Page

Alaska-Pacific Fisheries v. United

States

248 U.S. 78 (1918) 17, 19

Icicle Seafoods, Inc. v.

Worthington

475 U.S. 709 (1986) 14

Martin v. Waddell

41 U.S. (16 Pet.) 367 (1842) 19, 20

Montana v. United States

450 U.S. 544 (1981) 20

Oregon Dep’t of Fish & Wildlife

v. Klamath Indian Tribe

473 U.S. 753 (1985) > oe

Aes oe

Quinault Allotee Ass/’n. v.

United States

485 F.2d 1391 (1973) 17

United States v. Aam

887 F.2d 190 (9th Cir. 1989) 20

United States v. Holt State Bank

270 U.S. 49 (1926) 20

United States v. Romaine

455 F. 253 (Sth Cir. 1919) 9, 10,

i>

United States v. Washington

774 F.2d 1470 (9th Cir. 1985) 3

Utah Div. of State Lands v.

United States

482 U.S. 193 (1987)

Washincton v. Yakima Indian

Nation

439 U.S. 463 (1979)

Other Authorities

Cohen’s Handbook of Federal

Indian Law (1982)

20

21

16

a

No. 92 - 1445

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

UNITED STATES OF AMERICA

Plaintiff,

LUMMI INDIAN TRIBE,

Petitioner,

Vv.

STATE OF WASHINGTON,

Respondent.

BRIEF OF RESPONDENT, STATE OF

WASHINGTON, IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

I. OPINIONS BELOW

The opinion of the court of appeals

(Pet. App. B1-B14) is reported at 969

F.2d 752. The opinion of the district

court with findings of fact and

conclusions of law (Pet. App. A1-Al2) is

not reported.

II. NOTICE OF MISSTAT“GMENT REQUIRED

B 5S.

Rule 15.1 requires the respondent

to address any “perceived misstatements

of fact or law set forth in a petition

which have a bearing on the question of

what issues would properly be before the

Court if certiorari were granted.”

Here, the petition contains significant

misstatements of historic facts. (See

Statement of the Case at 7-9.)

Petitioner’s question asks whether

the court of appeals erred in "failing

to consider the historical context and

the clear Indian intent and

understanding of a Treaty promise when

interpreting” the 1873 Executive Order

at issue in this case. The district

court, however, rejected many of Lummi’s

factual assertions and made findings of

fact showing that the historic context

supports the State of Washington’s

interpretation.

The factual misstatements show that

the Question stated by Petitioner would

not be properly before the Court if

certiorari were granted. See part IV.

B. below. Essentially, the Question

presented by Petitioner invites this

Court to retry this case and ignore

findings of the district court.

III. STATEMENT OF THE CASE

This case arose after Petitioner

excluded non-Indians from fishing in

certain waters of Bellingham Bay. To

determine whether the Tribe owed non-

Indians an equitable adjustment for

imbalance of fish harvests, the trial

court first determined whether the area

of Bellingham Bay was within the Lummi

Indian Reservation. See generally

United States v. Washington, 774 F.2d

Set

1470 (9th Cir. 1985) (describing

equitable adjustment).

The Lummi Reservation was created

pursuant to the Treaty of Point Elliott,

executed January 22, 1855. Article 2 of

the Treaty set aside

“the island called Chah-choo-sen,

situated in the Lummi River at the

point of separation at the mouths

emptying respectively into

Bellingham Bay and the Gulf of

Georgia.”

Pet. App. A2-A3 (Finding No. 2).

An 1859 map of all Indian

reservations in the territory showed the

Lummi Reservation as the island, without

including any portion of the Bay. Pet.

App. A3 (Finding No. 4). Over the

years, numerous other maps were made by

the United States and no map ever

depicted the reservation boundary as a

straight line across the Bay. Pet. App.

A6, AQ (Finding No. 12, Conclusion No.

2). Other evidence in the record showed

a United States and Indian understanding

that the boundary was the shoreline.

Indian agent Michael Simmons, who

had attended the treaty council,

described the boundary in 1859 as the

shoreline, not a straight line across

the Bay. Pet. App. A3-A4 (Finding No.

5). To avoid the costs of survey of the

river boundary on the north? side of

the island, Michael Simmons proposed

changing the north boundary to follow

township lines (which were cheaper to

survey). Pet. App. A3~-A5 (Finding Nos.

5 and 7). In 1873, the Commissioner of

Indian Affairs questioned the legality

of Simmons’ changes to the north

1 The boundary at issue is on the

southeast side of the island.

boundary. Ibid. To eliminate clouds on

title to lands included and excluded per

Simmons’ 1859 proposal, President

Ulysses S. Grant issued an Executive

Order that formally reserved the

"squared off” north boundary. Pet. App.

A1l0O (Conclusion No. 5). There was no

evidence of an Indian impetus for the

1873 Order. Ibid.

The 1873 Executive Order expressly

described the area of the 1859 survey

changes to the north boundary, and then

followed the shoreline of the island

with the following language:

. . thence west along such

township line to low-water

mark on the shore of the Gulf

of Georgia thence Southerly

and easterly along the said

shore with the meanders

thereof across the western

mouth of Lummi river and

around Point Francis thence

northeasterly to the place of

beginning [the eastern mouth

of Lummi River].

When presented to a surveyor, the

1873 Order was susceptible to only one

interpretation -- the boundary followed

the shoreline on the western boundary,

around Point Francis, and along the

disputed eastern boundary. Pet. App. A7

(Finding Ne. 14). In light of the fact

that "Point Francis” referred to an area

to go "“around,” Pet. App. Al3 (Finding

No. 13), the 1873 Order could not be

interpreted as a straight line bearing

“northeast” from Point Francis. Pet.

App. A9 (Conclusion No. 2).

The historic context described in

the Lummi Petition for Writ of

Certiorari was not found by the district

court. The Lummi allegations about

historic facts are inaccurate in the

following details:

> Lummi asserts that in 1854

Governor Isaac Stevens represented that

tl

the Lummi reservation boundary would be

a “straight” line from the area of Point

Francis to Treaty Rock. Although Lummi

made this contention in the pretrial

order, the district court did not make

such a finding. The trial court entered

tindings which reject Lummi evidence on

this subject. See Pet. App. A10-All

("(T)he interest of tribal members in

exclusive fishing rights in the

contested waters must be considered in

evaluating their testimony.”) Moreover,

other findings of historic fact conflict

with Lummi’s assertion that Stevens

represented a straight line boundary.

Pet. App. A2-A7 (Findings 2, 4, 5, 6, 7,

13, and 14).

2. Contrary to statements in the

Lummi argument, the district court did

not find that "for 138 years the Lummi

treated the eastern boundary as a

| '

straight line between Point Francis and

Treaty Rock.” The record includes

substantial evidence that Lummi tribal

members understood the reservation

boundary to be the shoreline of the

island. ER 79-88; SER 44; SER 76-78.

Other findings conflict with Lummi’s

asserted understanding. Finding No. 5

and 6 (Pet. App. A3-A4). 7

3. Lummi arguments imply that the

case of United States v. Romaine, 255

F. 253 (9th Cir. 1919) found that

Governor Stevens promised a “straight

line” reservation boundary. There was

. Findings Nos. 5 and 6 concern

Michael Simmons and C.C. Finkbonner.

Simmons’ negotiated with the Lummi and

Finkbonner spoke the Lummi language.

Despite their contact with the tribe at

treaty time, these two show that the

Indians believed the reservation

boundary to be the shoreline of the

island. SER 44; ER 79-88.

ET nee

-10-

no such finding in Romajne at either the

trial court or ninth circuit court of

appeals. Instead, the Romaine opinion

addresses uncontested Indian testimony

about the original location of the

eastern mouth of the Lummi river (which

is the "place of beginning” for the 1873

Order). 969 F.2d at 757. Romaine did

not involve a legal or factual dispute

about a straight line or shoreline

boundary between the Point Francis area

and the eastern mouth of the Lummi

River.

Iv. SONS W ON SHOU

BE DENIED

The Question presented by the Lummi

Petition is unique and limited to the

particular language of the Treaty and

1873 Executive Order. The particular

language and historic context of this

case does not implicate the

-ll-

jurisprudence of the Court and therefore

does not merit review. Moreover, to

reach the Lummi issues, this Court would

have to retry the case.

1. ow oes ot

e Vv ers.

The ninth circuit court of appeals

correctly decided that neither the

Treaty nor the Executive Order could be

interpreted as reserving a straight line

boundary across Bellingham Bay. The

court of appeals decision is not new

precedent for interpretation of

Executive Orders because the law has

never allowed courts to disregard plain

language. See Oregon Dep’t. of Fish &

Wildli Vv. a j ibe, 473

U.S. 753, 774 (1985).

Review of the court of appeals

opinion presents only the narrow issue

-12-

of whether the particular 1873 Executive

Order language unambiguously precludes

the straight line boundary claimed by

Lummi. Without an ambiguity susceptible

to a straight line interpretation, the

opinion below is not in conflict with

canons of construction for Indian law.

No rule of interpretation requires a

court to accept any interpretation by a

modern tribe, when a fair reading of the

Executive Order and Treaty reveals no

ambiguity. Klamath, 473 U.S. at 774.

Since there is no ambiguity in the

language in question, the court of

appeals did not depart from the usual

course of judicial proceedings with

regard to canons of construction for

Indian treaties or executive orders.

Furthermore, whether or not the

particular language was ambiguous does

not merit certiorari.

-13-

To reach the historical context and

Lummi allegations of Indian

understanding, the Court would have to

go beyond the unambiguous language of

this Executive Order and examine the

district court’s findings of historic

fact. See Pet. App. Al1-A7.

Lummi, however, ignores the

findings of historical fact made by the

trial court and reargues its evidence of

historic facts. As described in the

Statement of the Case at 7-9, the trial

court findings do not show a "clear

Indian intent and understanding” nor a

"historical context” supporting a

straight line boundary.

This Court has previously ruled

that appellate courts should not insert

new findings of fact that conflict with

—————

-14-

a trial court’s findings. Icicle

Seafoods, Inc. v. Worthington, 475 U.S.

709, 714 (1986). Therefore, even if the

Court looks behind the language of the

1873 Executive Order, it will not find

the case described by Lummi. Instead,

the question would be whether the trial

court should be affirmed based on its

numerous findings of historical fact

confirming that the shoreline is the

boundary of the island reservation.

Therefore, the court should deny

the Petition for Writ of Certiorari

because this case does not present the

issue described by Lummi. The court of

appeals opinion does not conflict with

"clear Indian understanding” because

Lummi never proved that such clear

Indian understanding of a straight line

existed. ’

Similarly, the trial court’s

findings of fact contradict Lummi’s

allegation that in 1854 Governor Isaac

Stevens represented that the reservation

would have a straight line boundary

’ Lummi’s reliance on excerpts from

the appellate record in United States v.

Romaine vastly overstates the relevance

and credibility of the evidence from

that case. The Romajne documents were

inconsistent, vague, and uncredible

evidence of Lummi’s interpretation that

the trial court did not accept. See

Conclusion No. 6 (Pet. App. A10-All).

The evidence was not a transcript

of Indian testimony; Lummi relies on a

lawyer’s summary of a translator’s

description of witnesses such as “George

Tsilano.” It was not clear whether

Tsilano testified about a “straight”

line from Point Francis to mouth of the

river near Treaty Rock. The trial court

also heard evidence that Romaine

witnesses, including Tsilano, were

completely inaccurate in their

contemporaneous descriptions of the

other reservation boundaries.

~~,

-16=<

crossing Bellingham Bay. See Statement

of the Case at 7-8, above.

Nor is there any finding that the

1873 Executive Order language regarding

the reservation’s eastern shoreline was

based in any way on the treaty

negotiation of 19 years before. Pet.

App. A1lO (Conclusion No. 5). Therefore,

the Lummi evidence about the 1855 Treaty

negotiations had very little relevance

to interpretation of the unilateral] 1873

Executive order.*

Indian understanding is important

to interpretation of negotiated

agreements or treaties, but not

unilateral actions. Cohen’s Handbook of

Federal Indian Law, 224 n.60 (1982)

("The rule [about Indian understanding}

would logically apply to agreements,

which like treaties, are bilateral

agreements, but would not seem to apply

to the executive orders and statutes,

neither of which directly involved

negotiations with the tribes.”);

(Footnote continues on next page)

-17=

The particular findings of the

district court in this case do not merit

certiorari.

Lummi’s reliance on the case of

Bas) P ific Fis) tes vy. United

States, 248 U.S. 78 (1918) is misplaced.

In Alaska Pacific Fisheries, this Court

interpreted an Act of Congress reserving

the "body of lands known as Annette

Islands [{plural)” for use by the

Metlakatla Indians. The issue was

whether Congress had reserved the waters

(Footnote continued from previous page)

od Vv

States, 485 F.2d 1391, 1400 n. 14 (Ct.

Cl. 1973) cert. denied 416 U.S. 961

(1973).

-18-

between the islands, or whether the

waters were available for fishing by the

Alaska Pacific Fisheries Company. The

words “body of lands known as Annette

Islands” could mean either land, or both

land and water.

In contrast, the Treaty with Lummi

Indians reserved the “following tracts

of land, viz: - »« - the island

{singular} Known as Chah-choo-sen.”

When there is one island, there is no

ambiguity about intervening waters. The

words “island known as Chah-choo-sen”

are not susceptible to interpretation as

a straight line boundary crossing

Bellingham Bay.

The court of appeals correctly

concluded that the words of the

Executive Order with a reference to

“island” already set aside by treaty are

not susceptible to the ambiguity argued

-19=-

by Lummi. 969 F.2d at 756. There is no

conflict with the unique case of Alaska

skein Binet.

4. ° ’ oO

may be Affirmed Based on the

Equal Footing Doctrine.

In the seminal decision of Martin

v. Waddell, 41 U.S. (16 Pet.) 367

(1842), this Court explained that the

several states are presumed to have

title to the beds of navigable waters as

an attribute of their sovereignty. The

"Equal Footing Doctrine” presumes

against the conveyance of navigable

waters by the prior sovereign. Grants

of lands along and under navigable

waters are to be construed strictly “and

it will not be presumed that (the prior

sovereign) intended to part with any

portion of the public domain, unless

clear and especial words are used to

~20-

denote it.” Id. at 411 (emphasis

added).

This Court has continually upheld

the strong presumpticn against

pre-statehood conveyance of navigable

waters, even when interpreting pre-

statehood reservations for Indian

purposes. See, United States v. Holt

tate Ba » 270 U.S. 49, 3S (2926) 7

Montana v. United States, 450 U.S. 544,

552 (1981); cf. Utah Div. of State Lands

v. United States, 482 U.S. 193 (1987)

(pre-statehood reservation by United

States).

Neither the 1873 Executive Order

nor the 1855 Treaty contains any clear

and especial words reserving the

disputed part of Bellingham Bay for

exclusive control and ownership by the

Lummi Tribe. Cf. United States v. Aan,

887 F.2d 190 (9th Cir. 1989) (where the

-21-

same treaty article did not reserve

tidelands adjacent to Suquamish

reservation). If certiorari were

granted, this case would present the

question of whether the 1873 Executive

order and 1855 Treaty by implication

defeated the equal footing title of the

future State of Washington to a

substantial portion of Bellingham Bay.

As appellee, Washington is free to

defend its judgment on any ground

properly raised below, whether or not

that ground was relied upon, rejected,

or even considered by the district court

or court of appeals. E.g., Washington

v. Yakima Indian Nation, 439 U.S. 463,

476 n. 20 (1979). Washington argued to

each court below that this case could be

resolved based on the Equal Footing

Doctrine. If certiorari were granted,

the Equal Footing Doctrine would be an

-22-

alternative basis for affirmance of the

district court and court of appeals.

V. ie} USION

Canons of construction do not

require courts to ”ignore plain language

that, viewed in historical context and

given fair appraisal .. . clearly runs

counter to a tribe’s later claims.”

Klamath, 473 U.S. at 774. The court of

appeaecis €1¢4 anot- err -in its

interpretation of the 1873 Executive

Order.

When the trial court’s findings of

historic fact are examined, this case

does not present the question described

in the Lummi Petition. The Lummi

Petition errs by ignoring the prior

trial in this case and petitioning for

certiorari based on a reargument of the

evidence.

-23-

The Petition for Writ of Certiorari

should be denied for the above reasons.

Respectfully submitted,

CHRISTINE O. GREGOIRE

Attorney General

ROBERT K. COSTELLO

Sr. Asst. Atty. General

(Counsel of Record)

JAY D. GECK

Assistant Atty. General

Counsel for Respondent

State of Washington

March 30, 1993