Reply Brief — Confederated Tribes of the Colville Reservation v. Yakima Indian Nation

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Suprome Cort, WB

a FIRpBD

4 MAY 24 1999

No. 94-1567

In THE as

Supreme Court of the United States

OCTOBER TERM, 1994

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION,

Petitioner,

THE YAKIMA INDIAN NATION, THE CONFEDERATED

TRIBES AND BANDS OF THE WARM SPRINGS RESERVA-

TION OF OREGON, THE CONFEDERATED TRIBES OF THE

UMATILLA RESERVATION, THE NEZ PERCE TRIBE OF

IDAHO,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF OF PETITIONER

ALAN C. STAY

Reservation Attorney

CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION

Box 150

Nespelem, Washington 99155

(509) 634-8834

Counsel for Petitioner

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.@. 20001

—es

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TABLE OF CONTENTS

EAU A APEPO FR MOITN | -csdtcsccecsnansemuscene Saseviibessbblistsaignipnasioiseninse

ARGUMENT

CONCLUSION

Page

TABLE OF AUTHORITIES

CASES Page

Menominee Tribe v. United States, 391 U.S. 404

(1968) _ ........ EN ELSON RIE EIN Toe Tt CSTE 5

Messinger v. Anderson, 225 U.S. 436 (1912) -...... 4

Morton v. Ruiz, 415 U.S. 199 (1974) . ee 3

The Confederated Tribes of the Colv ille Reserva a-

tion v. The Yakima Tribes of Indians of the

Yakima Reservation, 204 Ct. Cl. 868, cert. denied,

a Fi ee EE hetinnicadieetccicieaenaial 6

United States v. Creek Nation, 295 ‘US. 103

EOIN; acnschishtjaceteichetbeicheniecpiamriinnighiceecsihaailisedlnd Leathe eae dais 3

United States v. Mitchell, 463 U.S. 206 (1983) _.... 5

United States v. Oregon, 302 F. Supp. 899 (D. Or.

TT: sisnaiceridiciskeneslassiaeiscthalaiccinantidia tmene | oc sciceualacaaaaaal ania 5

United States v. Washington, 641 F.2d 1368 (9th

Cir. 1981), cert. denied, 454 U.S. 1153 (1982) .... 3-4

United States v. Washington, 384 F. Supp. 312

(W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th

Cir. 1975), cert. denied, 423 U.S. 1086 (1976)... 4

Williams v. Lee, 358 U.S. 217 (1959) ........200000.... 4

TREATISES

1B Moore’s Federal Practice (2d ed. 1995) -.......... 4-5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1567

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION,

Petitioner,

Vv.

THE YAKIMA INDIAN NATION, THE CONFEDERATED

TRIBES AND BANDS OF THE WARM SPRINGS RESERVA-

TION OF OREGON, THE CONFEDERATED TRIBES OF THE

UMATILLA RESERVATION, THE NEZ PERCE TRIBE OF

IDAHO,

Respondents.

On Petition for a Writ of Certiorari ts the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF OF PETITIONER

INTRODUCTION

This is a dispute between the major Indian tribes of

the Northwest over the thing most important to them,

fishing rights. The United States has taken no position

in the case. We respectfully suggest that the Court ask

the United States to express its views before deciding

whether to take this case.

Regardless of those views, however, this is a case that

the Court should take. The case is important. The issue

is whether a tribe—having by treaty relinquished its own-

ership of its aboriginal land in return for certain benefits

—sub silentio loses those benefits by settling on a reserva-

tion different from that contemplated in the treaty. There

are many such tribes. No case before this has held,

or implied, that such action destroyed rights guaranteed

by treaty, thus destroying the consideration for the tribe’s

relinquishment of its land. The ruling of the Court of

Appeals is thus both unprecedented, and destructive of

promises made by the United States.

The respondents argue that the case turns on comple”

factual issues. That is not so. The factual issues have

been resolved. A legal issue remains. The Court of Ap-

peals held that each of petitioner’s constituent treaty

tribes had maintained its “identifiable cultural and polit-

ical characteristics”, which allowed “their recognition as

constituent tribes of the Colville Confederacy”. Pet.

at 8a. Moreover, there was no dispute that each tribe

was party to a treaty that reserved its fishing rights.

Pet. at 60a. Thus the only issue left was the legal issue

of whether by not settling on the reservations established

in their treaties (and moving closer to their reserved

fishing areas), the treaty tribes lost part of the quid pro

quo under the treaties, the right to fish at their usual and

accustomed places. It is clear from the Court of Appeals

decision that only that issue guided its decision. Pet.

at 10a.

The Court of Appeals has established a rule of law

that has never before been applied, that abrogates decades

of federal practice, that is contrary to the recognition of

the fishing rights of similarly situated tribes (see Pet. at

pp. 5-7), that takes away the quid pro quo for relinguish-

ment of lands by the tribes (and thus exposes the United

States to substantial liability), that is inconsistent with

the holding of the Court of Claims in a suit between the

same tribes, and is plainly wrong.

ARGUMENT

The opposing tribes * wish the Court to ignore that no

court has ever embraced the rule of law that the failure

by a tribe to move to a particular reservation can pro-

vide a basis for the loss of treaty rights.? Where a deci-

sion of a lower court is inconsistent with long established

federal policy dealing with Indian affairs it is appropriate

for this Court to grant review. Morton vy. Ruiz, 415 U.S.

199, 201-02, 212-30 (1974) (decision below “incon-

sistent with long-established policy of the Secretary [of

Interior] and of the Bureau [of Indian Affairs]”).

In gauging the importance of the question presented,

this Court should consider the power exercised by the

United States over the treaty tribes during their move-

ment to the Colville Reservation and the trust responsi-

bility of the United States. See United States v. Creek

Nation, 295 U.S. 103, 109-10 (1935). It was the United

States that allowed or forced the treaty tribes to go

to the Colville Reservation. It was the United States that

assured the treaty tribes that moving to the Colville Res-

ervation and confederation into the Colville Tribes

would not affect their treaty rights. It was the United

States that urged the confederation and later recognized

each of the treaty tribes as a constituent member of the

Colville Tribes. Now, the United States’ courts hold that

the tribes in listening to the United States lost their treaty

rights.* This decision could not be more wrong.

' Only the Warm Springs, Nez Perce and Yakima tribes ( “oppos-

ing tribes”) opposed the Colville Tribes. The states of Oregon,

Washington and Idaho and the Umatilla and Shoshone Bannock

tribes did not.

* The Court of Appeals’ attempt to moderate the impact of its

decision through its amended order (Pet. at 13a) cannot detract

from the fact that no other basis for affirming the District

Court is put forward by the Court of Appeals except for the failure

of the treaty tribes to move to and confederate on those reserva-

tions identified in their treaties. See Pet. at 10a.

% Contrary to the assertion of the Nez Perce tribe (brief at 9),

United States v. Washington, 641 F.2d 1368 (9th Cir. 1981), cert.

The rule developed by the Court of Appeals abrogates

the promises made by the United States and diminishes

the tribes’ status in the federal system. Where, as here,

a “doubtful determination” of an important question of In-

dian law is presented, review by this Court is appropriate.

Williams v. Lee, 358 U.S. 217, 218 (1959).

The Court should also examine the shifting rationale

used by the lower courts to deprive the treaty tribes of

their treaty fishing rights. The District Court concluded

that by merging into the Colville Tribes the treaty rights

were lost. This rationale was rejected by the Court of

Appeals. Pet. at 10a. Rather, the Court of Appeals,

in an initial and then a revised opinion, created a new

rationale: the failure to confederate on the reservation

originally established for the tribes in their treaties abro-

gates their treaty rights. Jd. These shifts do not reflect

a thoughtful deliberation of the important issue of how

treaty status is established and preserved over time. In

a case of such importance regarding the status of Indian

tribes, review is appropriate.

The opposing tribes deny the wide impact of the Court

of Appeals decision. But it will likely impact all fishing

rights cases. For instance, it will impact the law in United

States v. Washington, 384 F. Supp. 312 (W.D. Wash.

1974), affd 520 F.2d 676 (9th Cir. 1975), cert. denied,

423 U.S. 1086 (1976) because that case is one of con-

tinuing jurisdiction. A court with continuing jurisdiction

has the power to reconsider its prior decision at any time.

Messinger v. Anderson, 225 U.S. 436, 443-45 (1912).

A clear change in the law may well compel a lower court

with continuing jurisdiction to reconsider its previous and

now inconsistent rulings. 1B Moore’s Federal Practice,

denied, 454 U.S. 1132 (1982), the unrecognized tribe case, does not

address the issue before the Court. That case concerned five tribes

never recognized by the United States in any treaty or other

action.

{ 0.404[1] (2d ed. 1995). In addition, numerous other

modern federally recognized Indian tribes are configured

like the Colville Tribes; confederations of several tribes

brought together by historical necessity or the United

States. These tribes will be impacted by the Court of

Appeals decision.

Finally, the Court should consider the potential of

United States liability should the decision of the Court

of Appeals be allowed to stand. See, e.g., United States

v. Mitchell, 463 U.S. 206, 211 n.7 (1983) (the potential

of substantial United States liability is a basis for grant-

ing review by the Supreme Court). The Court of Ap-

peals’ decision abrogates rights which vested in 1855

when the tribes gave up their land in return for other

rights including fishing rights. The uncompensated taking

of those fishing rights opens the United States to a Fifth

Amendment claim. See Menominee Tribe vy. United

States, 391 U.S. 404, 407, 413 (1968).

The Yakima Tribe * reminds the Court of the unusual

role of the United States in this proceeding. Yakima

Brief at 13. The Colville Tribes suggest that this Court

pay particular attention to how the United States has ap-

proached this case. In 1968, the United States incorrectly

advised the District Court that no additional tribes had

treaty rights in the case area. United States v. Oregon,

302 F. Supp. 899, 904 (D.Or. 1969). The Shoshone

Bannock Tribe was later granted the right to intervene

in United States v. Oregon because it had treaty fishing

rights.

The United States’ failure in 1968 to name the Col-

ville Tribes is explained because at that time the United

*It bears repeating that the holding of the Court of Appeals

finds the fishing rights in question residing in a tribe (Yakima

Nation) that never came into existence, Pet. at 21. The Yakima

Tribe opposing the Colville Tribes here is, like the Colville Tribes,

a modern federally recognized tribe composed of the tribes that

moved to its reservation.

States was in the process of trying to terminate the Col-

ville Tribes. The Colville Tribes did not fully overcome

the effort to terminate until after the 1969 ruling. In

1968, the United States would have had no interest in

asserting rights on behalf of a tribe that was about to be

terminated.

The United States took the unusual step in this pro-

ceeding of allowing the tribes to wage the battle of treaty

Status as between themselves. The United States took no

position against the Colville Tribes assuming, one would

suppose, the fight would be fought within the confines of

existing law. Of course, no one anticipated that the Court

of Appeals would create a new and substantially different

standard upon which to base a determination of treaty

status in a proceeding where the United States was silent.

Finally, the Yakima Tribe seeks to diminish both the

relevance and the importance of the Court of Claims deci-

sion in The Confederated Tribes of the Colville Reserva-

tion v. The Yakima Tribes of Indians of the Yakima

Reservation, 204 Ct. Cl. 868, cert. denied, 419 US.

967 (1974) (“Claims Case”). But, it is clear that the

Claims Case held the Colville Tribes are the modern

Indian political entity that represents the aboriginal

Chelan, Columbia, Wenatchi, Entiat and Palus tribes. /d.

at 870. All the opposing tribes accept the fact that the

only issue before the courts below was the treaty status

of the Colville Tribes. See Nez Perce Brief at 5-6 (joined

in by the Yakima. See Yakima Brief at 4-6). That is

the exact issue resolved by the Court of Claims in 1974

and is binding in this case. There is no basis to require

the Colville Tribes to litigate their treaty status again in

this proceeding.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,