Petition for Writ of Certiorari — Washington v. United States

, Fer cm e. 1 J.2

FILED

98 1026 DEC 2 219%

No.

In The

Supreme Court

Of The

United States

October Term, 1998

STATE OF WASHINGTON,

Petitioner,

Vv.

UNITED STATES OF AMERICA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FoR THE NINTH CIRCUIT

PETITION FoR A WRIT OF CERTIORARI

CHRISTINE O. GREGOIRE

Attorney General

Jay D. Geck*

William Berggren Collins

Assistant Attorneys General

P.O. Box 40100

Olympia, WA 98504-0100

Telephone: (360) 586-2697

Attorneys for Petitioner State

of Washington

*Counsel of Record

QUESTIONS PRESENTED

Respondent Indian tribes claim rights to harvest

shellfish outside their reservations based on treaties securing a

“right of taking fish at all usual and accustomed grounds and

stations ...Provided, however, That, [the Indians] shall not take

shell fish from any beds staked or cultivated by citizens.” At

treaty time, Indians harvested a variety of shellfish from natural

beds on tidelands and along shorelines, but there was virtually

no harvest of deep water shellfish, such as crab or shrimp,

found on deep permanently submerged lands. After the

treaties, Washington entered the union on an equal footing with

other states, took title to the beds and shores of its navigable

waters, and sold and leased tidelands to private individuals who

received title to land and embedded shellfish. This case

presents two questions:

|. Whether there is a treaty right to take half of an off

reservation natural resource, such as deep water shellfish.

where Indians did not take that resource at treaty time and

where there was no historic dependence on that resource

that would support an equitable allocation.

No

Whether, consistent with the treaty prohibition against

taking shellfish from any beds staked or cultivated and the

State’s equal footing title and powers, tribes have any right

to take shellfish from private tidelands or cultivated

tidelands.

il

LIST OF PARTIES

The parties to the proceeding below were:

Petitioner: The State of Washington was the defendant/

appellant below.

Respondents Aligned With The State Of Washington: Four

separate groups of private property owners and _ lessees

intervened in the case and were aligned as defendants/

appellants below, including:

l.

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Puget Sound Shellfish Growers Association (“Growers’’),

intervenor defendants/appellants below, consists of

Taylor United, Inc.; Olympia Oyster Company; G.R.

Clam & Oyster Farm; Cedric E. Lindsay; Minterbrook

Oyster Company; Charles and Willa Murray; Skookum

Bay Oyster Company; and J & G Gunstone Clams, Inc.

Larry B. and Shirlee Alexander, Harold E. and Billie B.

Bauer, James and Ann Carter, William J. and Jeanette

Chase, Mrs. Frances A. Fellows, George L. Grader, Earl

D. and Millicent Ann Hunsperger, Edward B. And

Eleanor J. Krenz, H.J. Merrick, Gordon W. Moss, Sewall

L. and Emma M. Reynolds, John D. Riach, Alva Hazel B.

Robb, Irene D. Smith, and Providence Worley.

William and Charmond Adkins, Grace Boyd, Pierce W.

and May H. Davis, Ms. Rosemary Duncan, James E.

Hadley, James C. and Sarah H. Johnston, William and Jo

Ann Kirsh, David A. Mitchell, Mr. Louis Nawrot, Robert

and Sandra Stevenson, and Boon Ho Woo.

“26 Tideland and Upland Private Property Owners of

Washington”, Dan Buehler, Robert L. Davis, Bruce I.

Fielding, Arthur J. Gerdes, Joe Hotts, Keith C. Heutson,

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Commander John C. James, Richard Sayre Koch, Elaine

C. Lefler, Joan Lemonds-Roush, John S. Lewis, Steven

L. Luke, Edwards R. McMillan, Robert F. Newman,

Mark A. Hysether, Arthur I. Price, Ray D. Randall,

Cynthia Rasmussen, Robert G. Shanks, Axel Strakejahn,

Leana Tracy, Stuart W. Turner, George B. Usnick, Lee S.

Vincent, Joan Walker, and William E. Whitney, Jr.

Respondents: The plaintiffs, who were appellees/cross-

appellants below, are The United States of America and the

following Indian tribes: Muckleshoot; Nooksack; Upper

Skagit; Squaxin Island; Lummi; Makah; Tulalip; Swinomish;

Quileute; Puyallup; Hoh; Suquamish; Quinault; Confederated

Tribes & Bands of the Yakima Indian Nation; Nisqually;

Jamestown S’Klallam; Lower Elwha S’Klallam; Port Gamble

S’Klallam; Skokomish; Sauk-Suiattle; and Stillaguamish.

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TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI .....0.00......00.000.... |

OPINIONS AND JUDGMENTS BELOW....0000000000.0.0.c0c00..

FO: DEN inchritditnscitnandeeeeo ee

EAU eee Fr VD ceecsesecesessvscssncsascoaseasesassicacuvinoenes 2

PB ARS EE ss cdncicdnssissoiscedocssacnae ie angst ee 2

A. TR TE so hatch nae e

S, Tapes Oi Wem, | :..c cee ee 4

1. Tribal Harvest Of Shellfish At Treaty Time............ 5

2. Modern Shellfish Harvesting ......0......cccccecccceeeceees 5

C. Private Ownership And Use Of Tidelands.................0.200. 6

cP. CM OE PI oii acts a ache 7

1. The Original Salmon Case Framework

For Reviewing Proof Of Treaty Time

SEMIS SAMI sss dessin toassxteevonrasncsecos pacinedeionis 7

nN

In Paragraph G, The District Court

Maintained Continuing Jurisdiction

To Review Proof Of Treaty Time

NE TOU pict) eee 8

tJ

Trial Court Proceedings For Off-

Reservation Treaty Right To Shellfish .................... 9

4. Ruling By The Ninth Circuit Court

I PRION iiss ss axccarsuackadecinsusncccoe ae ee 10

Vi

REASONS FOR GRANTING THE PETITION ................ 12

A. Granting Tribes A Treaty Right To Deep

Water Shellfish, That Were Not Taken At

Treaty Time, Conflicts With Decisions

Requiring Proof Of Treaty Time Activities .................6. 12

|. The Ninth Circuit’s Opinion Conflicts

In Principle With Prior Decisions Of

This Court Requiring Proof Of Treaty

RO FI vrs ssdeciictisssigdtiteen Rencaemsanasennaainede 13

i)

The Ninth Circuit Decision Directly

Conflicts With Decisions That Deny A

Treaty Right Based On Failure To

Prove Treaty Time Activity ...cccsscessccsssssscesssesssoesses 16

B. Allocating Half Of Deep Water Shellfish To

The Tribes Was Not Equitable And Conflicts

With This Court’s Rulings On Allocation ...............0000+. 19

C. The Ninth Circuit Interpretation Of Treaty

Rights To Take Shellfish From Private

Lands And Cultivated Beds Conflicts

WOR LPCCHRIONNS EY TING CONE vss cnsssccrensncnccssvsersmeassasansncded

1. Rejection Of The Equal Footing Doctrine

Conflicts With Decisions Of This Court................22

to

The Ninth Circuit Failed To Apply

De Novo Review To Determine

SPOR Y TIE icissaicsissciscssssasdsovcessscensecaviieioesee 27

D. This Case Affects Thousands Of People

PE FIG os cniissssesscsissccnsstetaccmaenmneeee 30

PTR PUOTS siscxencusssvsasncesnsesnususpseduavebeasinesesneninineranananeme

— ee ee

Vii

TABLE OF AUTHORITIES

CASES

Choctaw Nation v. United States

Pi Uae Ed! 5 | ee eee:

City of Cincinnati v. Louisville & Nashville R.R. Co.

ARI FE ERA Ao cathe inecineceneiisdcecbls iss maeiacudiies ddgcuation 24

Coyle v. Smith

pr aA SE 2 ( . |) Se nee ee Seen eee ET 24

Crow Tribe v. Repsis

73 F.3d 982 (10th Cir. 1995), cert. denied,

TE Ss PRE eC Riccstnsepnenievavcconscuaiisenudscaaonteamisits 26

Eisenbach v. Hatfield

b WOE, EIR, BO Fe S98 CLOON ) vvnvsnvusscsvstsccsicssnicdcceemninarsatocenes 7

Hawkins v. Bleakly

er te PEE FT ieticsencns ec dancdsineocenianciean 24

Idaho v. Coeur d'Alene Tribe of Idaho

521 U.S. 261, 117 S. Ct. 2028 (1997)... ..22, 23, 26

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Wisconsin

653 F. Supp. 1420 (W.D. Wis. 1987) ccc cccccccsceceeccesees 15

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Wisconsin

758 F. Supp. 1262 (W.D. Wis. 1991) woos 17,18

Martin v. Waddell

MELT EBD ED DF C1 GD vvvcisisicivcrcnecedknctsesseeseeesece nl. 08

Vail

Mille Lacs Band of Chippewa Indians v. Minnesota

124 F.3d 904 (8th Cir. 1997), cert. granted,

POO. FF+E3557 CHES DIGG. Z, TIO) co nccvvesecsnnsecvensnssnevssosennnns

Miller v. Fenton

ee ek ig) ee eC RN MIN INGER TE

Montana v. United States

OT Oh es FE EE ess astisvnseiensencaahlascnscespinnchnen 23,

Nollan v. California Coastal Comm'n

MF RE Te LEE Petathsinetrncuinsciervtaactivianectaavresesncenedetieans

Oliphant v. Suquamish Indian Tribe

BF Wilk EE iri ctagerriciveciansecnaacionapriniaseariven anes

Parravano v. Babbitt

70 F.3d 539 (9th Cir. 1995), cert. denied,

Eee ie WR iets enctesicsatninicn cievvastnistavelealasaadnatsnenes

Pollard v. Hagen

GSE D628 I 2k CN oi apenas

Puget Sound Gillnetters Assn. v. United States

Dist. Ct. for the W. Dist. of Washington

WYER Bb Reg Le de 2. | Re eM een Ann end

Sequim Bay Canning Co. v. Bugge

SP WG. TET Pe Fe ee CRD ieietiacisbvssansccinsanionceastonccins %,

Seufert Brothers Co. v. United States

RE Ee ssa tnengseascipaion tectnicusesomatansionas 14,

Shively v. Bowlby

be ORE Ff |. | REMC Re ISEA RPC ISAC. ANAT BALANE RRL Rai lias

United States v. Bresett

FOR FD BSS CD. A. Fn cscrcrecnstese cscs sensors

iX

United States v. Dion

752 F.2d 1261 (8th Cir. 1985) (en banc),

reversed in part, 476 U.S. 734 (1986) ....cccccccccccscescesseees 16, 17

United States v. Michigan

471 F. Supp. 192 (W.D. Mich. 1979),

aff'd on other grounds,

GIF Fe TF CUE Gils BOLD ciiisssccicenceexssscchicnsaceacendosenceteuies 15

United States v. Texas

Fa ae Pe Ee etiniiccsiadecaiinscndn nee 25

United States v. Top Sky

DE 8 it EE Es FID pasicciestaivdcnniccnesiceccinon, 17

United States v. Washington (Shellfish 1)

873 F. Supp. 1422 (W.D. Wash. 1994)..00000000000... 1,4, 6, 9, 10

United States v. Washington (Shellfish 11)

8°8 F. Supp. 1453 (W.D. Wash. 1995)... cece 1, 29, 30

United States v. Washington (Shellfish (1)

BS 7 FSG GIO CRs Cay. FOGG) vensevaecscrcsescencsasserseoscovessee passim

United States v. Washington (Washington 1)

384 F. Supp. 312 (W.D. Wash. 1974), aff'd,

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

BEF Wises NOL Ths cisiccbispueucreesatdcnsessepiicosiicen Pe Fes to

United States v. Washington (Washington I1)

459 F. Supp. 1020 (W.D. Wash. 1978)... cece 8,9, 15

United States v. Washington

909 F. Supp. 767 (WD. Wash, 1995). ..s-.ccccccsccccecscccecseeseccs. |

United States v. Winans

Pe ee 0 act Rk Mee FS

Ward v. Race Horse

FO Gh a Caisse sasbadantnteiecnbeebietssicetiaicaasstarasennecns 26

Washington v. Washington State Commercial

Passenger Fishing Vessel Association

(Fishing Vessel)

443 U.S. 658 (1979)... 8,11, 13, 14, 19, 20, 21, 27, 28

CONSTITUTIONAL PROVISIONS

Week, COR. AE AY, OS vitenccccaorianeecaeeonaanatn 7

WV IEE, SEE. RG Fa ih 8 icirsesrrete as ecoreseenca nes 7

STATUTES

Be) WEE LOD, COE cccnccbencuningkeaniaenaee 7

LS9S Wash. LOWS, CH. 176 OO D4, Go ciccscsceyscersceresesinvssevavconans 7,8

Lr WORE: SUE, CEE: EPR DR. By hua) cpsecnsenancasevabiicsseveinnessnianies 7

25 Stat. 676, 679

PY 5 MEARS apeich sacte7 AAO RRR MO OPFOR PARNER IAS II 6, 22

Be RSs OM Riek race secdiciaea cleteenscde tema trinateedrienin celta

Treaty of Medicine Creek

Be Fg ELD 5, Weaaetene namo Cee atte se A aalnbas Rane Foheoiies Ser. SF

Treaty of Point Elliott

Ree Pe irre cenit nace racadeioveersutnorabcconevenvetrrenees 2

Treaty of Point No Point

Ee Le Ete Breyton neecacwcanrensy tet easvacdncroisarcnatasiantstuniceriod 2

X1

Treaty with the Makah (Treaty of Neah Bay)

MS <a 2

Treaty with the Qui-nai-elts (Treaty of Olympia)

PR ba uieisnstvnseticsssessepasodousnesvinbescocaneseocecec,. 2

61 Fed. Reg. 279 (Jan. 4, 1996) oo... cecccccsccscsccsscsseeceseeseseccccc 21

61 Fed. Reg. 28786, 28787-88 (June 6, 1996)... 21

62 Fed. Reg. 700, 718 (Jan. 6, 1997) voeccecccccccccccoceeeescecc cc. 21

Felix S. Cohen, Handbook of Federal Indian Law

Ch. 8, § B.1, at 446 (1982 €d.) oo. ceccccccccsccscescesceseeeececcc cc. 12

X11

PETITION FOR WRIT OF CERTIORARI

The State of Washington respectfully petitions this

Court for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in

this case. |

OPINIONS AND JUDGMENTS BELOW

The Ninth Circuit opinion superseding and amending

its original opinion, denying rehearing, and rejecting the

suggestion for rehearing en banc is reported at 157 F.3d 630

(App. at 1-49). The opinions of the district court (W.D. Wash.)

are reported at 873 F. Supp. 1422 (1994) (App. at 51-93),

898 F. Supp. 1453 (1995) (App. at 95-134), and 909 F. Supp.

767 (1995) (App. at 135-148).

JURISDICTION

The Court of Appeals filed its opinion on January 28,

1998. App. at 4. All the parties filed timely petitions for

rehearing. On September 25, 1998, the Court of Appeals

amended its opinion on rehearing and rejected the suggestions

for rehearing en banc. App. at 4. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

' Shellfish growers and other private tideland and upland owners

who intervened in this case have also filed Petitions For A Writ Of

Certiorari. See Puget Sound Shellfish Growers vy. United States of America,

et al., No. 98- ; Larry B. and Shirlee Alexander, et al., and William

and Charmond Adkins, et al. v. United States of America, et al., No. 98-

_____; 26 Tideland and Upland Private Property Owners (“UPOW”) y

United States of America, et al., No. 98-

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case concerns language in five Indian treaties that

secured “the right of taking fish, at all usual and accustomed

grounds and stations . . . Provided, however, That [the Indians]

shall not take shell fish from any beds staked or cultivated by

citizens”. The five treaties are: Treaty of Medicine Creek, 10

Stat. 1132 (1855) (App. at 169-76); Treaty of Point Elliott,

12 Stat. 927 (1859) (App. at 177-86); Treaty of Point No

Point, 12 Stat. 933 (1859) (App. at 187-94); Treaty with the

Makah (Treaty of Neah Bay), 12 Stat. 939 (1859) (App. at 195-

201); and the Treaty with the Qui-nai-elts (Treaty of Olympia),

12 Stat. 971 (1859) (App. at 203-09).’

STATEMENT

Respondent Indian tribes claim treaty rights to take

shellfish from the deep waters and submerged beds of Puget

Sound and the Pacific Ocean, and from the extensive tidelands

of Washington. When Indians executed these treaties in the

1850s, they did not venture into deep waters to take shellfish,

and, although treaty time Indians harvested many shellfish

from natural beds on the tidelands, they agreed to take no

shellfish from any beds that the influx of settlers would “stake

or cultivate”. The Ninth Circuit rulings on the tribal claim

presents important questions of law and equity.

First, the Ninth Circuit decision conflicts with prior

decisions by this Court and other circuits holding that the

species, places, and practices secured by treaty are defined and

> The critical provisions of the treaties are substantially similar.

For ease of reference, we will cite to the Treaty of Medicine Creek, 10 Stat.

1132 (1855) (App. at 169-76).

limited by the customs and practices of treaty-time Indians.

The Ninth Circuit ruled that these treaties now reserve rights

that Indians at treaty time did not exercise or even imagine.

The tribes thus gained an allocation of valuable “deep water

shellfish” fisheries which had developed as recently as the

1980s. The Ninth Circuit has changed rules for treaty

interpretation and declared an absolute right to take half of all

fish. This ruling displaces the people who pioneered these

fisheries and the state’s conservation and economic policies.

Second, the Ninth Circuit ruling affects the property

interests of thousands of tideland owners and lessees. The

Ninth Circuit has ruled that tribes may have rights to take

Shellfish from virtually any tidelands, including most private

shellfish farms and beaches. Since statehood in 1889.

Washington has sold or leased approximately half of its

tidelands for private use, allowing its citizens to develop some

of the finest shellfish farms in the world. The Ninth Circuit

interpretation of the treaty interferes with over a century of

sales, leasing, cultivation, and private use of shellfish beaches.

and places a cloud on thousands of parcels of private property.

A. The Treaties

In 1854 and 1855, the United States negotiated treaties

with Indians in the Washington and Oregon Territories. “The

principal purposes of the treaties were to extinguish Indian

claims to the land in Washington Territory and provide for

peaceful and compatible coexistence of Indians and non-

Indians in the area.” United States v. Washington (Washington

I), 384 F. Supp. 312, 355 (W.D. Wash. 1974), aff'd, 520 F.2d

676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Each

treaty ceded “all [Indian] right, title, and interest in and to the

lands and country occupied by them”. Treaty of Medicine Creek,

art. I, App. at 169. Specific land was set apart as reservations,

and the United States paid annuities and provided education

and training. /d. at art. II, art. 1V; App. at 170, 171. The treaties

also provided for a right outside reservation boundaries:

“The right of taking fish, at all usual and

accustomed grounds and stations, is further secured to

said Indians in common with all citizens of the

Territory, and of erecting temporary houses for the

purpose of curing, together with the privilege of

hunting, gathering roots and berries, and pasturing their

horses on open and unclaimed lands: Provided,

however, That they shall not take shell fish from any

beds staked or cultivated by citizens|.)” Treaty of

Medicine Creek, art. II], App. at 170 (emphasis added).

This “right of taking fish” is qualified. It is limited to “usual

and accustomed grounds and stations’, a phrase that refers to

treaty time places and fishing. Shellfish gathering is further

limited by the Shellfish Proviso which prohibits taking “shell

fish from any beds staked or cultivated by citizens’? Thus, the

tribes’ treaty right includes “taking [shell]fish, at all usual and

accustomed grounds and stations” except for shellfish beds that

are “staked or cultivated by citizens”.

B. Shellfish In Washington

Tribes claimed half of all “shellfish” using a broad term

to describe all marine mollusks, crustaceans, and creatures

otherwise not described as fish or mammal. United States v.

Washington (Shellfish 1), 873 F. Supp. 1422, 1427 (W.D.

Wash. 1994), App. at 52. These shellfish differ from

anadromous fish such as salmon, which hatch in fresh water,

migrate to the ocean where they reach mature size, and then

return to fresh-water in predictable annual runs.

Deep water shellfish include crab, shrimp, sea urchin,

and other animals that live on or in permanently submerged

lands up to hundreds of feet below the line of extreme low tide.

Intertidal shellfish include clams, oysters, mussels, and other

animals on beaches and tideflats that are exposed twice daily

by the tides. Washington has extreme tidal fluctuations and

extensive shorelines, which create thousands of acres of

tidelands and shellfish beds. Shellfish are often immobile,

such as embedded clams, or live on the ocean floor, like crab.

Others swim in deep water, like squid and shrimp.

1. Tribal Harvest Of Shellfish At Treaty Time

Indians at treaty time harvested a wide variety of

intertidal shellfish and made substantial use of the clams,

oysters, and mussels available on extensive tideflats and

shorelines. Minimal numbers of crab, urchins, and “deep

water” animals were occasionally available to Indians using the

shorelines. The evidence presented at trial established that over

ninety-nine percent of crab, urchins, shrimp, and other species

of “deep water shellfish” are taken from deep beds and waters,

where Indians did not, or could not, take shellfish in the 1850s.°

ER at 955-57, 965-73; SSER 31.

be Modern Shellfish Harvesting

On many public tidelands, there are shellfish beds

where tribes take up to half the shellfish, and the general public

also takes shellfish. Some state tidelands are leased for private

uses, including shellfish farming. On private tidelands.

shellfish beds are real property and may be planted or improved

for commercial or non-commercial purpose.

’ The trial court and Ninth Circuit ruled that it did not matter where

different species of shellfish were taken at treaty time (United States v

Washington (Shellfish Il), 157 F.3d 630, 644, App. at 19) and therefore did

not resolve unique exceptions, like the Makah tribe’s proof of treaty time

kelp lines or breath-hold diving for sea urchins. ER at 450: SSER at 793.

Except for minimal treaty time harvests along shallows

and tidelands, deep water shellfish fisheries were discovered

and developed long after treaty time. ER at 400-03, 452,

482-83. Deep water shellfish are now important fisheries. For

example, dungeness crab in deep waters are taken primarily by

modern crab fleets using three-foot steel frame traps weighing

60 to 120 pounds at depths up to 400 feet (and in “sport” crab

seasons open to all). ER at 1127, 1133, 1136. Shrimpers use

steel mesh traps at depths of 200 to 300 feet. Since 1940, annual

crab landings are | to 3 million pounds from Puget Sound and

3 to 20 million pounds from ocean waters. ER at 1137-38.

Since the recent invention of scuba, divers have

discovered fisheries for urchins, scallops, sea cucumbers, and

giant geoduck (pronounced “gooey-duck”) clams. Individual

divers and the state invested money to develop these previously

unused fishery resources. For example, since the late 1960s,

the state has mapped and surveyed all the geoduck beds on its

submerged lands. The state program conserved the resource

and produced over $10 million dollars in annual revenue. ER

at 577-79, 1207-30.

a Private Ownership And Use Of Tidelands

Since treaty time, both the territorial and state

governments have permitted the private occupation of

tidelands. In 1863, the territorial government allowed people

to occupy up to 10 acres of tidelands for planting oysters. In

1864, it permitted exclusive private use of natural oyster beds

in south Puget Sound. See Shellfish 1, 873 F. Supp. at 1433,

App. at 62-63. In 1879, a person could obtain permission to

claim 10 acres of oyster beds. /d. at 1440, App. at 75.

In 1889, Washington entered the Union “on an equal

footing with the original States’. 25 Stat. 676, 679, App.

at 150. The Washington Constitution asserts ownership of “the

beds and shores of all navigable waters” (Wash. Const. art.

XVII, § 1, App. at 152) and directs the legislature to plat and

sel] tidelands within two miles of each city. Wash. Const. art.

XV, § 1, App. at 151. The Legislature often sold tidelands for

shellfish purposes and “for commerce, trade or business”.

E.g., 1895 Wash. Laws, ch. 178 §§ 54, 62; 1889-90 Wash.

Laws, at 431. The Legislature also authorized leasing tidelands

for shellfish cultivation. E.g., 1899 Wash. Laws, ch. 136.

§§ 1, 3, 5.

Two years after statehood, the Washington Supreme

Court affirmed that the state had “full power to dispose of

[tidelands], subject to no restrictions” Eisenbach v. Hatfield, 2

Wash. 236, 245, 26 P. 539 (1891). The Court also held that the

state could lease tidelands for shellfish cultivation and that the

embedded shellfish were part of the real property under

Washington law. Sequim Bay Canning Co. y. Bugge, 49 Wash.

127, 131, 94 P. 922 (1908). Today, approximately half of

all tidelands are owned or leased by private parties. These

private lands are used for shellfish farming, residences,

industry, and commerce.

D. Course Of Proceedings

b The Original Salmon Case Framework For

Reviewing Proof Of Treaty Time Salmon

Harvests

In 1970, the United States brought suit against

Washington to establish treaty rights to salmon and steelhead

(anadromous fish) runs. In United States v. Washington

(Washington 1), 384 F. Supp. 312 (W.D. Wash. 1974), aff'd,

520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086

(1976), the district court ordered that fifty percent of the

harvestable anadromous fish runs at usual and accustomed

grounds and stations would be allocated to tribes.

The court based its decision on each tribe’s treaty time

salmon fishing. The court held that the “words ‘usual and

accustomed’ were probably used in their restrictive sense, not

intending to include sites where salmon fishing was occasional

or incidental”. Washington 1, 384 F. Supp. at 356. The court

required the tribes to come forward with evidence of what fish

were taken at treaty time and from where. Based on this

evidence, it entered detailed findings of fact for each tribe’s

treaty time fishing to determine where treaty salmon fishing

could continue today. Jd. 359-82.

In Washington v. Washington State Commercial

Passenger Fishing Vessel Association (Fishing Vessel), 443

U.S. 658 (1979), this Court affirmed, but only after reviewing

exhaustive evidence that Indians “previously exercised” (id. at

678) a right to take salmon and “were heavily dependent upon

anadromous fish for their subsistence’? /d. at 665n.6. The

Court also ruled that the fifty percent allocation of anadromous

fish runs was equitable because at treaty time the Indians

“depended heavily on anadromous fish as a source of food,

commerce, and cultural cohesion”. /d. at 686.

2. In Paragraph G, The District Court

Maintained Continuing Jurisdiction To

Review Proof Of Treaty Time Shellfish

Harvests

Washington | was expressly limited to anadromous fish.

384 F. Supp. at 400. The district court maintained continuing

jurisdiction to determine off-reservation rights to shellfish and

nonanadromous fish. United States v. Washington

(Washington Il), 459 F. Supp. 1020 (W.D. Wash. 1978). In

“Paragraph G” of an “Order For Program To Implement

Interim Plan’, the district court required tribes to come

forward with “prima facie evidence” to support an off-

reservation treaty right to nonanadromous fish and shellfish.

To establish this treaty right, the district court required

evidence of the “species taken at treaty times, where (usual

and accustomed grounds), and by what tribes (who are

entitled to exercise treaty entitlement)[.!” Washington I,

459 F. Supp. at 1038 (emphasis added).

3 Trial Court Proceedings For Off-Reservation

Treaty Right To Shellfish

The case at bar began in 1989 when Respondent Tribes

sought a determination, citing Paragraph G, of their treaty right

to harvest shellfish outside reservations. Private parties

intervened because the tribes claim the right to enter their

tidelands and take shellfish they owned. In 1993, the United

States appeared in support of tribal positions.

With regard to deep water shellfish, the court initially

ruled that tribes must come forward with evidence of what

species they took at treaty time and where.’ After trial, how-

ever, the court concluded that evidence of historic use or non-

use was immaterial because at treaty time “the Tribes had the

absolute right to harvest any species they desired, consistent

with their aboriginal title”. Shellfish 1, 873 F. Supp. at 1430,

App. at 57. The court reasoned that “because the right to take

any species, without limit, pre-existed the Stevens Treaties, the

Court must read the ‘right of taking fish’ without any species

limitation”. Shellfish 1, 873 F. Supp. at 1430, App. at 57.

All harvestable shellfish on salmon fishing grounds were

* App. at 161 (Order Clarifying Prior Order Denying Summary

Judgment Re Certain Species And Deep-Water Harvest); App. at 153

(Order Denying Summary Judgment Re Certain Species And Deep-Water

Harvest).

10

allocated 50:50 between treaty tribes and other harvesters.

Id., App. at 58.

The district court accepted tribal arguments that the

Shellfish Proviso did not protect all private land or cultivation,

but protected only completely “artificial beds” created where

there was never a “natural bed”. Jd at 1441, App. at 78.

Tribes could therefore harvest private and cultivated beds if a

natural bed ever existed on that site. The court relied largely

on the tribes’ reconstruction “state-by-state [of the] legal

landscape governing the shellfish industry”. /d.. at 1432, App.

at 61. The court concluded that “the shellfishing laws [of East

Coast states] almost universally prohibited the ‘staking’ or

‘cultivating’ of natural shellfish beds”. Jd. The court assumed

that “United States treaty negotiators were generally familiar

with the East Coast shellfish industry and its practices” and

applied the narrowest legal terms and policies of those eastern

states. Jd. at 1434, App. at 65. The court expressly rejected

any duty to interpret the Shellfish Proviso in light of the Equal

Footing Doctrine which presumes that every new state enters

the Union free of any encumbrances on its tidelands and

submerged lands so it stands on equal footing with the other

states. E.g., Shively v. Bowlby, 152 U.S. 1 (1894); Shellfish I,

873 F. Supp. at 1443-44, App. at 80-81.

4 Ruling By The Ninth Circuit Court Of

Appeals

On appeal, the Ninth Circuit adopted the district court’s

reasoning, that proof of treaty time deep water shellfish

gathering was not required because the tribes reserved rights to

do anything they theoretically had the right to do at treaty time.

United States v. Washington (Shellfish 111), 157 F.3d 630, 644

(9th Cir. 1998), App. at 19-20. Without addressing Paragraph

G, it said that the law of the case was that “courts considering

fishing disputes under the Treaties have never required species-

specific findings of usual and accustomed fishing grounds”

Shellfish Ill, 157 F.3d at 644, App. at 19-20. It applied the fifty

percent allocation to deep water shellfish and did not discuss

the equitable factors for allocation identified in Fishing Vessel

(443 U.S. at 686) except to address briefly the moderate living

factor. Shellfish Ill, 157 F.2d at 652, App. at 33.

The Ninth Circuit also affirmed that the Shellfish

Proviso refers only to beds cultivated or planted by private

citizens where no natural bed existed. Jd. at 647-49, App. at

25-28. The Ninth Circuit deferred to the district court’s

conclusion that the Shellfish Proviso incorporated East Coast

shellfish law of the 1850s. “Given the deferential standard by

which we review the district court’s findings of historical fact

and its findings regarding the intentions of the parties’

negotiators, we conclude the district court did not err in

interpreting the Proviso and we adopt its analysis as our own”

Id. at 648, App. at 26. It adopted the district court’s reasoning

that the Equal Footing Doctrine does not apply to reserved

treaty rights and applies only to fee simple ownership of

tidelands. /d. at 645, App. at 20-23.

Finally, the Ninth Circuit ruled that tribes were not

entitled to fifty percent of a grower’s total crop, only fifty

percent of what the natural harvest of the bed would have been

in the absence of cultivation and enhancement. The shellfish

growers, however, had the burden to “demonstrate what portion

of their harvest is due to their labor, as opposed to what portion

would exist absent the Growers’ enhancement” Jd. at 652-53,

App. at 34.

Judge Beezer concurred in the decision reluctantly,

feeling bound by law of the case. Judge Beezer believed that

the claimed treaty shellfish rights “strainfed] even the

12

deferential canons of Indian treaty interpretations”. Shellfish Ill,

157 F.3d at 657, App. at 43. He felt bound by Supreme Court

precedent, which he labeled “perplexing”. /d.

REASONS FOR GRANTING THE PETITION

The Court should grant review because the Ninth

Circuit's decision conflicts with fundamental rules of treaty

interpretation established by this Court and followed by other

courts. These rules for treaty interpretation have implications

in this case, for ocean fisheries of the Pacific Ocean, and for

any other treaty claim to natural resources. Moreover, as the

Ninth Circuit recognized, the decision has an “enormous

impact” on “thousands of homeowners, Tribal members, and

commercial fishermen in the Puget Sound region” and the

Washington coast. Shellfish II], 157 F.3d at 657, App. at 42.

A. Granting Tribes A Treaty Right To Deep Water

Shellfish, That Were Not Taken At Treaty Time,

Conflicts With Decisions Requiring Proof Of Treaty

Time Activities

For nearly a century, in this Court and among the

circuits, the species, places, and activities secured by treaty

rights have depended on proof of treaty time activity.” This

doctrine is at the heart of Indian Law jurisprudence and ensures

that judicial definition of treaty rights matches what Indian

signatories contemplated. Further, this doctrine ensures that

* Felix S. Cohen, Handbook of Federal Indian Law ch. 8, § B.1,

at 446 (1982 ed.) (“Courts have generally taken the approach that the ‘right

to fish’ includes the right to harvest those species of fish that were taken by

the indians at the time the treaty was negotiated, as shown by historical and

anthropological evidence.”).

the preemption of state powers is tailored to meet the treaty

time purposes of the federal! government.

The Ninth Circuit decision conflicts with this

fundamental principle. It adopts the district court’s erroneous

ruling that Indian aboriginal title was a collection of

theoretically unlimited rights and that treaties, therefore.

secured rights not previously exercised or even imagined:

“The fact that some species were not taken before treaty

time—either because they were inaccessible or the

Indians chose not to take them—does not mean that

their right to take such fish was limited.” Shellfish III,

157 F.3d at 644 (emphasis added) (quoting 873 F.

Supp. at 1430), App. at 19.

Based on this analysis, the Ninth Circuit concluded that the

tribes had a treaty right to take deep water shellfish, even

though evidence presented at trial showed that Indians had no

customary shellfish harvests from deep water at treaty time.

That conclusion is wrong and conflicts with decisions of this

Court and other circuit and district courts.

1. The Ninth Circuit’s Opinion Conflicts In

Principle With Prior Decisions Of This Court

Requiring Proof Of Treaty Time Activity

In Fishing Vessel, this Court considered the treaty right

to take salmon and other anadromous fish under these same

treaties. The Court did not define the scope of the treaty rights

based on the platonic notions about aboriginal title. Instead.

the Court focused on rights “previously exercised” by the

signatory Indians, stating:

“The fishing clause speaks of ‘securing’ certain fishing

rights, a term the Court has previously interpreted as

synonymous with ‘reserving’ rights previous exercised”.

Fishing Vessel, 443 U.S. at 678.

14

The central holding of Fishing Vessel, that the treaties secure

more than an opportunity to fish in common with other

citizens, was grounded in the Indian understanding that they

could continue specific treaty time fishing activities. The

Court relied on the fact that the tribes “were heavily dependent

upon anadromous fish for their subsistence and for trade with

other tribes and later with the settlers’. Fishing Vessel, 443

U.S. at 665 n.6. The Court also pointed to records of the

negotiations to establish that the Indians understood that the

treaties secured specific places and species being used by the

signatory Indians.

“{T]he United States negotiators promised, and the

Indians understood, that the Yakimas would forever be

able to continue the same off-reservation food

gathering and fishing practices as to time,

place, method, species and extent as they had or

were exercising.” /d. at 667 (emphasis added) (quoting

trial court).

Fishing Vessel followed the Court’s prior rulings that

historic practices define the exact activity secured by treaty. In

Seufert Brothers Co. v. United States, 249 U.S. 194 (1919), the

question was whether Yakima Indians had a treaty right to fish

on the Oregon side of the Columbia River. Once again, the

Court did not base its decision on the theoretical ability of the

tribe to fish on the Oregon side. The Court defined the treaty

right by using well-known historic fishing activities. Jd. at

198-99. “During all the years since the treaty was signed the

[Yakima Indians] have been accustomed habitually to resort for

fishing fon the Oregon side]. This shows clearly that their

understanding of the treaty was that they had the right to

resort to these fishing grounds[.}” Fishing Vessel, 249 U.S.

at 198-99.

15

The district courts have looked to evidence of treaty

time activity in interpreting other treaties that grant off-

reservation treaty hunting and fishing. For example, in United

States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), aff'd

on other grounds, 653 F.2d 277 (6th Cir. 1981), the issue was

the tribe’s right to engage in subsistence and commercial

fishing. According to the court, for the “right to exist in the

first instance, it must be shown that the Indians were in fact

using the resource”. /d. at 213. “[T]he factual predicate for the

reserved fishing mght is the documented historic, ethno-

historic, anthropologic, and archaeologic evidence proving that

commercial and subsistence fishing was of significance to the

Indians during treaty times.” Jd The court then entered

detailed findings of fact regarding treaty time fishing activity.

Id. at 219-225; see also Lac Courte Oreilles Band of Lake

Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420.

1426-29 (W.D. Wis. 1987) (making exhaustive findings about

off-reservation hunting, fishing, and gathering activities).

The prior decisions in this case also adhere to the

principle that a tribe must establish treaty time activity. In

Washington I, the original decision adjudicating salmon rights,

the district court entere’ *=tailed findings of which species of

anadromous fish were taken, from where, and by which tribe.

Washington |, 384 F. Supp. at 359-82. In Paragraph G, the

district court explicitly required the same “prima facie

evidence” of the “species taken at treaty times, where (usual

and accustomed grounds), and by what tribes”, before a tribe

could exercise an off-reservation right to take different

shellfish. Washington Il, 459 F. Supp. at 1037-38. Thus, the

Ninth Circuit was simply wrong in its view that the law of the

case did not require “species specific findings of usual and

16

accustomed fishing grounds”. Shellfish Ill, 157 F.3d at 644,

App. at 19-20.°

y 3 The Ninth Circuit Decision Directly Conflicts

With Decisions That Deny A Treaty Right

Based On Failure To Prove Treaty Time

Activity

The Ninth Circuit's decision that the treaty secures rights

not previously exercised directly conflicts with circuit court

and district court decisions that deny treaty rights to a tribe that

fails to prove the specific right was exercised at treaty time.

In United States v. Dion, 752 F.2d 1261 (8th Cir. 1985)

(en banc), reversed in part, 476 U.S. 734 (1986)’, the United

States prosecuted a tribal member for violating the Eagle

Protection Act and the Endangered Species Act by killing and

selling bald and golden eagles. The court recognized that the

tribe’s treaty right to hunt existed and was “not much less

necessary to the existence of the Indians than the atmosphere

they breathed”. /d. at 1264. Nevertheless, the Eighth Circuit

ruled there was no treaty right to hunt eagles for commercial

purposes because the defendant:

’ For example, the district court’s jurisdiction was invoked

pursuant to Paragraph G to determine the treaty right to nonanadromous

herring. After considering anthropological evidence the district court

concluded that some tribes had established a right to the herring fishery

while others had not. Order On Requests For Determination Re Herring

Fisheries, dated March 28, 1975 (App. at 163-67).

" The issue before this Court in Dion was whether the Eagle

Protection Act abrogated a treaty right to hunt eagles for religious purposes,

an activity that occurred at treaty time. The Court concluded that the treaty

was abrogated. The tribal member did not contest the court of appeals’

ruling that there was no treaty right to hunt eagles for commercial purposes,

and that issue was not before this Court. Dion, 476 U.S. at 736 n.2.

“[P]resented no historical evidence of a Yankton Sioux

practice of selling parts or carcasses of eagles. ... We

find that the Yankton Sioux would not have understood

the treaty as reserving in them a right to sell eagles... .

Accordingly, the defendants do not have a treaty right

to sell such birds.” Dion, 752 F.2d at 1264; see also id.

at 1265 n.11.

The Ninth Circuit’s decision also conflicts with United

States v. Top Sky, 547 F.2d 486, 487-88 (9th Cir. 1976). This

case also concerned a federal prosecution of a tribal member

for selling eagle feathers. The tribes had a treaty right to “hunt

on the unoccupied lands of the United States” but, after an

evidentiary hearing, the trial court concluded that there was no

“historical evidence in the presented case that discloses a

pattern of sale of eagle parts’. /d. at 487. The Ninth Circuit

concluded that “it would be contrary to the expectations of the

Indians to interpret the ‘right to hunt’ to include the right to sell

eagles commercially”. /d. at 488.°

In the extensive Seventh Circuit litigation by the Lac

Courte Oreilles Indians, the court recognized that treaty time

Indians “exploited virtually every resource in the ceded

territory, including numerous species of trees”. Lac Courte

Oreilles Band of Lake Superior Chippewa Indians y.

Wisconsin, 758 F. Supp. 1262, 1269 (W.D. Wis. 1991). The

tribes argued that such use of trees at treaty time meant that the

* In United States v. Bresett, 761 F. Supp. 658 (D. Minn. 1991), the

United States prosecuted a tribal member for selling migratory bird feathers

in violation of the Migratory Bird Act. The court ruled in favor of the

defendant but did not follow the analysis adopted by the Ninth Circuit in

this case. Instead, the court distinguished Dion and Top Sky based on the

“direct and circumstantial evidence” that the sale of migratory bird feathers

was a treaty time activity.

18

treaty secured commercial timber cutting. The court relied on

the principle that treaty time use defines treaty rights:

“Ascertaining what the Chippewa were actually doing

at the time of the treaties is a prerequisite to

determining what they would have understood they

were reserving.” Lac Courte Oreilles Band, 758 F.

Supp. at 1270.

6s

[E]vidence did not show that the Chippewa exploited a

timber resource, either for their own use or for

commercial purposes. . . . There is no evidence to

suggest that at that time the Chippewa would have had

the equipment, knowledge and skills necessary to take

timber from the forest, or that they would have even

contemplated doing so.” /d. at 1270-71.

The decisions by this Court, circuit courts, and district

courts demonstrate that treaty meaning and_ Indian

understanding is shown by examining actual treaty time

hunting, fishing, or gathering.’ Here, the lack of treaty time

harvest of deep water shellfish confirms that Indians had no

contemplation that the treaty secured nights in off-reservation

shellfish beds that would be discovered a century later.

The Court should grant certiorari to review the Ninth

Circuit’s ruling that treaty time fishing is irrelevant to

determining the particular locations and types of shellfish that

were “usual and accustomed” and secured by treaty right.

" The state has continually emphasized that Indians need not use

1855 technology, but that 1855 fishing does define what places and fish

were used by treaty Indians, and therefore what is secured by these treaties.

19

B. Allocating Half Of Deep Water Shellfish To The

Tribes Was Not Equitable And Conflicts With This

Court’s Rulings On Aliocation

The second reason for certiorari is that the Ninth

Circuit’s ruling creates a rule of automatic 50:50 allocation and

conflicts with this Court’s guidance on the equities that support

allocation of natural resources to treaty Indians. If the Ninth

Circuit had followed the analytical steps laid out in Fishing

Vessel, it would have reversed the 50:50 allocation of deep

water shellfish because Indians did not take or depend upon

those shellfish resources at treaty time. '°

Allocation was one of the major issues in Fishing

Vessel. The district court and Ninth Circuit had based the

50:50 salmon allocation on an analogy to a co-tenancy. Judge

Kennedy concurred to criticize the rationale for allocation.

Puget Sound Gillnetters Ass'n v. United States Dist. Ct. for the

W. Dist. of Washington, 573 F.2d 1123, 1136 (9th Cir. 1978)

(J. Kennedy, concurring) (“Cotenancy is not synonymous with

entitlement to equal shares. Nor does the right of a cotenant to

partition provide guidance for an equitable division of fish.”).

On certiorari, this Court responded to this criticism and ruled

that allocation was an equitable remedy and that a showing of

historic dependence must precede allocation.

Where there is a treaty right, neither treaty nor non-

treaty fishers “may deprive the other of a ‘fair share’ of the

10

Allocation also may be an issue for intertidal shellfish, although

the question of when tribes have rights on “beds staked or cultivated”

should be determined first to identify what intertidal shellfish resource is

being allocated. If the resource is identified, then allocation of intertidal

resources can apply the Fishing Vessel equities. Because Indians

historically harvested intertidal shellfish, the primary equitable factor would

be whether reasonable livelihood or “moderate living” needs are met.

[resource]. Fishing Vessel, 443 U.S. at 684. To set a fair

share, a judge must begin by “determining [whether] at the

time of the treaties the resource involved was necessary to the

Indians’ welfare”. Jd. at 685. If the resource involved was

necessary to treaty time Indians, then the court can exercise its

equitable discretion to “devise some apportionme _ that

assure[s] that the Indians’ reasonable livelihood needs [are]

met”. Jd.

Fishing Vessel shows that historic dependence is the

threshold question for any allocation, and that any allocation

should not exceed reasonable livelihood needs:

“[The trial court] first concluded that at the time

the treaties were signed, the Indians, who comprised

three-fourths of the territorial population, depended

heavily on anadromous fish [salmon] as a source of

food, commerce, and cultural cohesion. . . . Only

then did it determine that the Indians’ present-day

subsistence and commercial needs should be met,

subject, of course, to the 50% ceiling.” Jd. at 686

(emphasis added).

The Ninth Circuit here returned to a simplistic ruling

that shellfish must be divided 50:50, reasoning that shellfish

are part of the same treaty provision that secures salmon rights.

The Ninth Circuit did not consider whether treaty time Indians

depended on deep water shellfish resources “as a source of

food, commerce, and cultural cohesion”. /d. In stark contrast

to this Court’s reliance on treaty time dependence to justify the

salmon allocations, the Ninth Circuit said that it did not matter

that the deep water shellfish were “not taken before treaty

time”. Shellfish I], 157 F.3d at 644, App. at 19.

The equities for deep water shellfish are quite different

from salmon. At treaty time, and immediately thereafter, the

Indians dominated the salmon fishery. “Not until major

economic developments in canning and processing occurred in

the last few years of the 19th century did a significant non-

Indian fishery develop.” Fishing Vessel, 443 U.S. at 668. The

opposite is true in this case. The tribes did not take deep water

shellfish at treaty time, and these resources were subsequently

developed by the state and any interested fisher. No Indians

were displaced."

The Ninth Circuit's mechanical application of the 50:50

allocation already reaches beyond this case. United States

regulatory agencies cite the Ninth Circuit decision to justify an

automatic fifty percent allocation of ocean fisheries to tribes,

without any equitable analysis as required by Fishing Vessel.

See 62 Fed. Reg. 700, 718 (Jan. 6, 1997) (1997 Ocean Whiting

allocation rejects Pacific Fishery Management Council’s

recommendation and allocates fifty percent to tribes notwith-

standing lack of historic use); 61 Fed. Reg. 28786, 28787-88

(June 6, 1996); 61 Fed. Reg. 279 (Jan. 4, 1996) (dividing all

ground fish); see also Parravano v. Babbitt, 70 F.3d 539 (9th

Cir. 1995), cert. denied, 518 U.S. 1016 (1996) (federal rules

allocating salmon runs 50:50 to tribe with no off-reservation

fishing nights).

As human population and demands outpace natural

resources, other courts and agencies will face tribal requests for

allocations. Certiorari is needed to provide important guidance

and to resolve the conflict between the Ninth Circuit’s

mechanical allocation and Fishing Vessel’s equitable

allocation.

'' Repeated tribal assertions that broadly proclaim the importance

of “shellfish” hide the distinction between heavy treaty time use of

intertidal shellfish and the minimal treaty time use or complete non-use of

the deep water shellfish fisheries.

€. The Ninth Circuit Interpretation Of Treaty Rights

To Take Shellfish From Private Lands And

Cultivated Beds Conflicts With Decisions By This

Court

The United States obtained a complete cession of all

Indian “right, title, and interest” in the lands that would become

Washington, at the same time creating an off-reservation

shellfish harvesting right limited by the Shellfish Proviso — that

Indians shall not “take shell fish” from “any bed” that is

“staked or cultivated’. There are two conflicts that justify a

Writ to review the tension between the tribes’ cession and their

claimed right to take shellfish on private lands or from

cultivated tidelands. First, the Ninth Circuit decision conflicts

with decisions of this Court by failing to interpret the treaty in

light of the Equal Footing Doctrine. Second, the Ninth Circuit

determined the legal meaning of this treaty right by deferring to

findings by the trial court about the negotiators’ intentions,

failing to fulfill its appellate function to declare the legal

meaning of the treaty.

l. Rejection Of The Equal Footing Doctrine

Conflicts With Decisions Of This Court

The federalism framework presumes that all states enter

the Union on an equal footing with the same fundamental

powers as other states. Congress explicitly provided that

Washington was “on an equal footing with the original States”.

25 Stat. at 679, App. at 150.

The Equal Footing Doctrine presumes that during the

territorial period, the federal government preserves the future

state’s title and sovereignty over tidelands and fisheries. See

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.

Ct. 2028, 2041 (1997) (“The principle which underlies the

Equal Footing Doctrine and the strong presumption of state

23

ownership is that navigable waters uniquely implicate

sovereign interests.”). Like the Tenth and Eleventh

Amendments, the Equal Footing Doctrine preserves the dual

sovereignty of federalism. Only a clear and deliberate act by

the federal government deprives a state of its title or

sovereignty over tidelands and fisheries:

“{A] court deciding a question of title to the bed of a

navigable water must, therefore, begin with a strong

presumption against conveyance by the United States

...and must not infer such a conveyance ‘unless the

intention was definitely declared or otherwise made

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

552 (1981).

See also Martin v. Waddell, 41 U.S. (16 Pet.) 367, 411 (1842)

(“the grant to an individual of an exclusive fishery . . . will not

be presumed . . . unless clear and especial words are used to

denote it”); Pollard v. Hagen, 44 U.S. (3 How.) 212, 230

(1845) (a pre-statehood transfer of the bed of navigable waters

would deprive a future state of “a numerous and important

class of police powers”).

The tribal shellfish right creates rights to cross both

tidelands and uplands (subject to judicial conditions). It

impairs the property interests of thousands of tideland and

upland owners. See Nollan v. California Coastal Comm'n, 483

U.S. 825 (1987) (property includes right to determine who

crosses private beach); Sequim Bay Canning Co., 49 Wash. at

131 (embedded shellfish are part of real property under

Washington law). The Ninth Circuit, however, refused to

consider how the treaty right should be examined in light of the

Equal Footing Doctrine:

“*[T]he Supreme Court has applied the Equal Footing

Doctrine in one context only, namely when evaluating a

24

claim of right to lands beneath navigable waters based

upon an alleged conveyance or retention of fee simple

ownership by the United States prior to statehood.’”

Shellfish 1, 157 F.3d at 645 (quoting the district court),

App. at 21-22.

The Ninth Circuit’s narrow focus on conveyances of fee simple

ownership shows that the panel misunderstood the Equal

Footing Doctrine and the dual sovereignty of federalism."

Thus, this case presents the important question of whether the

Equal Footing Doctrine applies to treaty rights that would

create permanent easements in tidelands depriving the future

state of its full power to convey those lands and determine

future uses.

The Ninth Circuit ruling conflicts in principle with this

Court’s ruling that applied the Equal Footing Doctrine to

analyze rights created by these very treaties. In United States

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

these treaties fixed “easements” to “usual and accustomed”

fishing sites.'’ After concluding that Indians would have

'* The Ninth Circuit is simply wrong when it describes the doctrine

as limited to questions of conveyance of fee simple. See, e.g., City of

Cincinnati v. Louisville & Nashville R.R. Co., 223 U.S. 390 (1912) (under

Equal Footing Doctrine, federal government cannot deny Ohio power of

eminent domain); Coyle v. Smith, 221 U.S. 559 (1911) (Oklahoma must be

given power to locate its seat of government); Hawkins v. Bleakly, 243 U.S.

210 (1917) (lowa must receive power to determine right to jury trial).

The “easement” affirmed in Winans is further explained by the

subsequent case of Seufert Brothers Co. v. United States, 249 U.S. 194

(1919). Seufert confirms that the “servitude” memorialized by treaty is not

an undefined right of convenience for Indians to enter any private land that

leads to any fishing site. The easement “exist{ed] only where there was an

habitual and customary use of the premises, which must have been so open

and notorious during a considerable portion of each year, that any person

... must have known of them”. /d. at 199.

understood that the treaties secured continued access on well

known paths to the Columbia River, this Court addressed

whether “the state acquired by its admission into the Union

‘upon an equal footing with the original states,’ the power to

grant rights in or to dispose of the shore lands upon navigable

streams” Winans, 198 U.S. at 382. The Court held that

creating an easement on that path was within Congressional

powers and the treaty memorialized the easement in a manner

sufficient to overcome equal footing presumptions. /d. (citing

Shively v. Bowlby, 152 U.S. 1 (1894)).

The case at bar, in contrast, presents facts not addressed

by Winans. Here, the Shellfish Proviso negates the implication

that permanent easements are created and demonstrates that the

future state’s equal footing was not diminished.

The Ninth Circuit offered an alternative reason to avoid

equal footing requirements:

“*Because the Stevens Treaties must be construed as a

reservation of rights by the Tribes, not a granting of

rights by the United States, the Shively presumption and

the Equal Footing Doctrine cannot play a role in the

evaluating the existence or scope of the rights.”

Shellfish Il, 157 F.3d at 645 (quoting district court),

App. at 21.

This Court has rejected an analogous argument that the

Equal Footing Doctrine can be defeated by a new state

reserving rights. In United States v. Texas, 339 U.S. 707

(1950), Texas contended that it had been an independent

country before statehood and had granted only specific rights to

the United States. Texas argued that it “reserved” title to its

“marginal seas’. The Court, however, held that the equal

footing framework mandated that the federal government must

hoid that marginal sea for national purposes. The equal footing

26

framework could not be avoided by a prestatehood reservation.

See also Idaho, 117 S. Ct. at 2041 (state sovereignty and title

over submerged lands “arises from the equal footing doctrine

and is ‘conferred not by Congress but by the Constitution

itself”) (quoting Oregon v. Corvallis Sand & Gravel Co., 429

U.S. 363, 374 (1977)).

Nor is the Ninth Circuit ruling consistent with the

decision of Montana v. United States. To decide if the Crow

Tribe reserved an interest in the riverbed crossing its reserved

lands, this Court applied the Equal Footing Doctrine.

The Ninth Circuit ruling reflects confusion among

circuit courts about how the Equal Footing Doctrine applies to

analysis of treaty rights. In Crow Tribe v. Repsis, 73 F.3d 982,

991 (10th Cir. 1995), cert. denied, 517 U.S. 1221 (1996), the

court held that because treaty rights in that case were of a

temporary nature, they could not overcome equal footing

presumptions and the state therefore had full power to regulate

tribal hunting after statehood. See also Ward v. Race Horse,

163 U.S. 504, 515 (1896). In contrast, the Eighth Circuit labels

the Equal Footing Doctrine as a “defense” and applies a

stringent test to determine it Congress intended to abrogate

treaty rights at statehood. Mille Lacs Band of Chippewa

Indians v. Minnesota, 124 F.3d 904, 927, 929 (8th Cir. 1997),

cert. granted, No. 97-1337 (argued Dec. 2, 1998).

Washington’s conservation and economic policies,

which designed tideland ownerships and _ encouraged

cultivation, have been preempted’ without judicial

determination that the federal government clearly intended to

deny Washington its equal footing rights. Rather than

preserving the rights of the future state, the Ninth Circuit

makes the Shellfish Proviso a federal mandate that the future

state never allow privatization or cultivation of tidelands

inconsistent with the laws and policies of select 1850s states.

Washington is thus denied the fundamental power over use and

development of shellfish beds that every other state received at

statehood. The Shellfish Proviso thus presents an important

issue of the federalism framework.

2. The Ninth Circuit Failed To Apply De Novo

Review To Determine Treaty Meaning

The Ninth Circuit ruled that its interpretation of the

treaty was controlled by “the district court’s findings of histor-

ical fact and its findings regarding the intentions of the parties’

negotiators” Shellfish Ill, 157 F.3d at 648, App. at 26. It limit-

ed its review of those findings to “clear error’. /d., App. at 27.

This Court has explained that where the status of an

issue as “fact” or “law” is uncertain, a number of

considerations are applied to determine if the appellate court is

in a better position to address an issue de novo. Miller v.

Fenton, 474 U.S. 104, 112-17 (1985). For example, Miller

holds that the voluntariness of a confession is a legal inquiry,

despite the factual uniqueness of each confession, because the

issue has “a uniquely legal dimension” that examines the

compatibility of the confession with the legal system and

constitutional presumptions of innocence. /d.

The meaning of treaties is even more a question of law

where an appellate court must apply its power to fully review

all material information to ascertain meaning. See, e.g.,

Fishing Vessel, 443 U.S. at 674-85. Treaty meaning is not a

factual determination for a jury. Treaty meaning resolves

questions of law and sets the rule of law for all future litigants

through stare decisis.

The Ninth Circuit breaks with this precedent by

confusing the trial court’s “finding” that treaty negotiators

knew of East Coast shellfish law with the ultimate question of

law about treaty meaning. Although treaty meaning is often

described in terms of the intentions of the parties, this Court

has always determined treaty meaning with a thorough and

searching review of the record. E.g., Fishing Vessel.

The absence of thorough de novo review precluded the

appeals court from weighing crucial information. First, the

constitutional framework of equal footing that the future state

should receive unencumbered title and sovereign power over

tidelands is a “common notion” of the negotiators. See

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978)

(using “common notions” of the negotiators).

Second, the appeals court should have put minimal

weight on technical East Coast legal meanings of “staked” or

“cultivated” In the prior salmon case, Washington argued that

the fishing right should be interpreted based on intricacies of

East Coast common law because there was a lawyer on Isaac

Stevens’ staff. This Court called the state’s argument a “highly

dubious assumption’. Fishing Vessel, 443 U.S. at 677 n.23. A

“treaty must . . . be construed, not according to the technical

meaning of its words to learned lawyers, but in the sense in

which they would naturally be understood by the Indians”. /d.

at 676 (quoting Jones v. Meehan, 175 U.S. 1, 11 (1899)).

Third, the appeals court should have considered the

logical context of the Shellfish Proviso. The proviso limits

“usual and accustomed” Indian shellfish gathering. However,

if the proviso applies only where there was no natural shellfish

bed, that site would not be “usual and accustomed”. By adding

the implied restriction against staking or cultivating a natural

bed, the court rewrote the treaty “beyond [its] clear terms to

remedy a claimed injustice”. Choctaw Nation v. United States,

318 U.S. 423, 432 (1943). Here, the “claimed injustice” is the

denial of Indian access to natural shellfish beds. That limit on

29

Indian use, however, fits the general cession, the influx of

settlers, the subsequent private development, and the plain

language.

Most significantly, de novo review would have also

considered the 135 years of practical construction by the

United States, the Indians, the territorial government, the state,

and the citizens. The “practical construction adopted by the

parties” is an important tool for determining treaty meaning.

Choctaw Nation, 318 U.S. at 431-32. As the trial court

determined, the state sold and leased tidelands with “no notice”

that natural beds were somehow subject to permanent tribal

claims. Shellfish II, 898 F. Supp. at 1457, App. at 97. The

1905 Commissioner of Indian Affairs assumed that sales and

privatization were consistent with the proviso. App. at 211-13.

Practical construction is especially appropriate here, because

the Ninth Circuit’s legalistic interpretation makes little sense.

It is “difficult — if not impossible” to determine where natural

shellfish beds existed prior to cultivation and enhancement by

the myriad owners or lessees. /d. at 1462, App. at 107.'*

Thus, this question of treaty rights to shellfish presents

important issues about how an appellate court should determine

the meaning of treaty language de novo by using material

information in a well developed record.

'* The trial court realized this too late and tried to alter its initial

ruling so that any cultivation or enhancement of any bed (natural or not)

meant that a bed was “de facto artificial” and therefore protected by the

Shellfish Proviso. Shellfish 1, 898 F. Supp. at 1462, App. at 107. The

Ninth Circuit, however, rejected that modification. Shellfish II], 157 F.3d at

650 , App. at 30.

D. This Case Affects Thousands Of People And

Properties

The Ninth Circuit ruling that these tribes may take half

of all shellfish resources in deep waters of Washington State

displaces the people that discovered, developed, and relied on

those resources for their businesses. Half their fishing

opportunity is given to tribes that invested neither money nor

time to find and develop these fisheries. State economic and

conservation laws that were once efficiently crafted for the

public interest must be adjusted to plan, negotiate, and share

each fishery with the separate tribes. Shellfish II, 898 F. Supp.

at 1463-69, App. 108-120.

Further, tens of thousands of owners and lessees occupy

about half of Washington’s two thousand miles of salt water

shoreline. The Ninth Circuit’s interpretation requires perma-

nent masters to determine locations of natural beds and set

‘ribal shares where there has been a century of private use, and

to hear claims when tribal harvesters damage private property.

Certiorari should be granted to determine whether these treaties

require judicial supervision of permanent, involuntary co-ten-

ancies between tribes and these thousands of property owners.

CONCLUSION

For all the above reasons, this Court should grant the

Petition For Writ Of Certiorari.

Respectfully submitted,

CHRISTINE O. GREGOIRE

ae ( .

P.O. Box 40100 Attorney General

Olympia, WA 98504-0100

lelephone: (360) 753-6245 Jay D. Geck*

William Berggren Collins

Attorneys for State of Washington Assistant Attorneys General

December 22, 1998 *Counsel of Record