Amicus Curiae Brief — Washington v. United States

MOTION FILED

ti 3 | y) 1998

W ’

Nos. 98-1026; 98-1028; 98-1039; & 98-1052

In the

Supreme Court of the United States

October Term, 1998

A.

a

STATE OF WASHINGTON,

Petitioners,

y

UNITED STATES OF AMERICA, et ai.,

Respondents.

Ss

bd

(Additional parties listed on inside front cover.)

a

8

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

a

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF

PETITIONERS STATE OF WASHINGTON, 26 TIDELAND

AND UPLAND PRIVATE PROPERTY OWNERS, PUGET

SOUND SHELLFISH GROWERS, LARRY B. AND

SHIRLEE ALEXANDER, AND WILLIAM AND

CHARMOND ADKINS

ROBIN L. RIVETT JAMES K. MEE

Pacific Legal Foundation Counsel of Record

10360 Old Placerville Road Pacific Legal Foundation

Suite 100 P.O. Box 235856

Sacramento, California 95827 Honolulu, Hawaii 96823-3514

Telephone: (916) 362-2833 Telephone: (808) 524-0510

Facsimile: (916) 362-2932 Facsimile: (808) 733-3374

Counsel for Amicus Pacific Legal Foundation

PUGET SOUND SHELLFISH GROWERS,

Petitioners,

V

UNITED STATES OF AMERICA, et al.,

Respondents.

"

a 2

26 TIDELAND AND UPLAND

PRIVATE PROPERTY OWNERS,

Petitioners,

V.

UNITED STATES OF AMERICA, et ai.,

Respondents

™

-

LARRY B. AND SHIRLEE ALEXANDER, e7 al., and

WILLIAM AND CHARMOND ADKINS, e ai.,

Petitioners,

V.

UNITED STATES OF AMERICA, e7 ai.,

Respondents

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF

PETITIONERS STATE OF WASHINGTON,

26 TIDELAND AND UPLAND PRIVATE

PROPERTY OWNERS, PUGET SOUND

SHELLFISH GROWERS, LARRY B. AND

SHIRLEE ALEXANDER, AND WILLIAM

AND CHARMOND ADKINS

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves to file the attached brief

amicus curiae.' Consent to file this brief has been granted by

counsel for the United States, the Jamestown, Lower Elwah and

Port Gamble Bands of S’Klallams, Nisqually, Nooksack.

Skokomish, Squaxin Island, Upper Skagit, Sauk-Suiattle, and

Stillaguamish Tribes, the Suquamish Tribe, the Makah Tribe.

the Quileute Tribe, Puget Sound Shellfish Growers, Petitioners

Adkins, 26 Tideland and Upland Private Property Owners

(UPOW), Petitioners Alexander, the Yakama Indian Nation, and

the State of Washington. The letters of consent received have

been lodged with the Clerk of this Court. Requests for consent

to file the amicus curiae brief were made to the other parties, but

as of the date of filing this brief written responses from them

have not been received.

IDENTITY AND INTEREST OF AMICUS CURIAE

Pacific Legal Foundation has participated in numerous cases

before the United States Supreme Court involving the protection

of private property rights. PLF attorneys were counsel of record

in Nollan v. California Coastal Commission, 483 U.S. 825

(1987), and Suitum yv. Tahoe Regional Planning Agency.

520 U.S. 725, 117 S. Ct. 1659 (1997), and PLF participated as

Amicus Curiae in Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987), First English Evangelical

' Pursuant to Supreme Court Rule 37.6, Amicus Curiae affirms

that no counsel for any party in this case authored this brief in

whole or in part and, furthermore, that no person or entity made

a monetary contribution specifically for the preparation or

submission of this brief.

Lutheran Church of Glendale v. County of Los Angeles,

482 U.S. 304 (1987), Lucas vy. South Carolina Coastal Council,

505 U.S. 1003 (1992), and Dolan vy. City of Tigard, 512 U.S.

374 (1994), to name but a few. PLF participated as Amicus

Curiae in this case both in the proceedings before the district

court, as well as on appeal in the Ninth Circuit, and also filed an

amicus brief in this Court in connection with another case

interpreting the treaties at issue here, State of Washington v.

Washington State Commercial Passenger Fishing Vessel

Association, 443 U.S. 658, modified sub nom., United States v.

State of Washington, 444 U.S. 816 (1979).

Amicus seeks to augment Petitioners’ arguments by arguing

that this Court should decide the important question of whether

the claims of the Tribes should be barred by the doctrine of

laches, at least as to the right to take shellfish in private

tidelands.~ Not only do the equities weigh heavily in favor of

thousands of private landowners, but previous decisions of this

Court on laches do not address the unique circumstances of this

case. Moreover, PLF is concerned that the Ninth Circuit's

decision ignores the serious harm its decision will work on

innocent property owners.

-Both the Puget Sound Shellfish Growers and _ the

Alexander/Adkins Petitioners have raised the issue of the

application of laches in their petitions. Puget Sound Shellfish

Growers v. United States, No. 98-1028, Petition at i; Larry B.

and Shirlee Alexander and William and Charmond Adkins v.

United States, No. 98-1052, Petition at 27.

For the foregoing reasons, PLF requests this Court to grant

its motion to file the attached amicus curiae brief.

DATED: March, 1999.

Respectfully submitted.

ROBIN L. RIVETT

Pacific Legal Foundation

10360 Old Placerville Road

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

JAMES Kk. MEE

Counsel of Record

Pacific Legal Foundation

P.O. Box 235856

Honolulu, Hawaii 96823-3514

Telephone: (808) 524-0510

Facsimile: (808) 733-3374

Counsel for Amicus Pacific Legal Foundation

iV

TABLE OF CONTENTS

Page

TABLE OF AL FeRE Ee 6 oh een screscancesanbewss vi

INTEREST OF AMICUS CURIAE .......csccceccesss ]

PER INGN EE re een testes Ce he esas nk ee eters 1

STA TRORIEE GE BEE CARS 66 05 s0 ra vases ercnnsaes 2

A. Summary of Proceedings Below ............. 2

B. History of the Treaties and of the

Shellfishing Industry in Washington .......... 4

SUMMARY OF AMCHUBEEICE occ ccccvesesesevecess 8

PIII as wa ee ed Can acs Case Ree ORK eS 9

I. THE COURT SHOULD GRANT THE

PETITIONS TO DECIDE FOR THE FIRST

TIME THE IMPORTANT QUESTION OF

WHETHER THE DOCTRINE OF LACHES IS

APPLICABLE TO BAR OR LIMIT THE

TRIBES’ 135 YEAR DORMANT CLAIM TO

TAKE SHELLFISH FROM PRIVATE

Bp wt PPP TTT Pee Tey eee 9

Il. THE COURT SHOULD GRANT THE

PETITIONS BECAUSE APPLICATION OF

LACHES IS ESPECIALLY PERTINENT

WHERE THE TRIBES’ PAST AND PRESENT

DECISIONS NOT TO ASSERT THEIR

CLAIMS AGAINST THE UNITED STATES

NOW WORK UNFAIRLY TO SHIFT

LIABILITY FOR SUCH CLAIMS FROM THE

UNITED STATES TO INNOCENT PRIVATE

RPUPtEP APOPEMEED. vnc cde Cav anaadestekivaras> 16

Vv

TABLE OF CONTENTS—Continued

Page

il. WHETHER LACHES IS AVAILABLE TO

BAR LONG-UNASSERTED TRIBAL

USUFRUCTUARY RIGHTS IS A

QUESTION OF NATIONWIDE

ROT oS anu Coes WES S Eee exes 19

(ABC AA Ss Aen eh reser eee tene eae 20

a

v1

TABLE OF AUTHORITIES

Page

Cases

Armstrong v. United States, 364 U.S. 40 (1960) ........ 18

Board of Commissioners of Jackson County v.

United States, 308 U.S. 343 (1939) ........... 8-10, 12

Choctaw Nation v. United States, 318 U.S. 423

SE aN aud vost vs Cade awa ce eee aaa ee acne 19

County of Aitkin v. Mille Lacs Band of Chippewa

PCO DREGE ce ercneasevcdac ye eekeasb eae es 2

County of Oneida v. Oneida Indian Nation of New

York State, 470 U.S. 226 (1985) ......... 1-2, 11-12, 20

Eisenbach v. Hatfield, 2 Wash. 236,

Se ea 4 6 065 6a oOo 0s ticks beeweleee 6

Ewert v. Bluejacket, 259 U.S. 129 (1922) .......... 10-12

Galliher v. Cadwell, 145 U.S. 368 (1892) ......... 12-13

Lewis v. Marshall,30 U.S. (5 Pet.) 470 (1831) ......... 19

Loretto v. Teleprompter Manhattan CATV

Corporation, 458 U.S. 419 (1982) ................ 20

Mitchel v. United States, 34 U.S. (9 Pet.) 71

ea Seer errr ee a oy ee SP eee 13

Navajo Tribe of Indians v. State of New Mexico,

TRF Fd BG CBOE GAs BPE) 00.03 cc bdeeencsedas 15

Pennell v. City of San Jose, 485 U.S. 1 (1988) ......... 18

Sequim Bay Canning Company v. Pugge,

lcd oe Te) er ERE ea 7

Seufert Brothers Company v. United States,

te ee rer eee erent CA, = 14

vil

TABLE OF AUTHORITIES—Continued

Page

State of Minnesota v. Mille Lacs Band of Chippewa

I Parcs cape pds keed ans eee a neans 2

State of Washington v. Washington State

Commercial Passenger Fishing Vessel

Association, 443 U.S. 658 (1979) ........... 4-5, 13-14

Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983) ....... 8-9

Thompson v. Mille Lacs Band of Chippewa

8 Ot a ere 2

United States v. State of Washington,

BSF Fume Cle (oem CH. ISG). cccccccccccces 1, 4, 7-9

United States v. State of Washington, 384 F. Supp.

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

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

| eis egret mec erp Foy a 2

United States v. State of Washington, 506 F. Supp.

187 (W.D. Wash. 1980), aff'd in part, rev’d in

part, 694 F.2d 1374 (9th Cir. 1982), on

rehearing, 759 F.2d 1353 (9th Cir. 1985), cert.

GO Ee Wes POI) ow ccc ces eecccerecees 5

United States v. State of Washington, 873 F. Supp.

cee OR ON en 3

United States v. State of Washington, 898 F. Supp.

1453 (W.D. Wash. 1995) ..............2-.-+ 3-4, 16-17

United States v. Winans, 198 U.S. 371 (1905) ......... 15

Williams v. City of Chicago, 242 U.S. 434 (1917) ....... 13

Vill

TABLE OF AUTHORITIES—Continued

Page

Statutes

r~gI Rk Le Y PAvorre rere re err ee reer or ree 15

Pe Wis OEE 4th as boned Cee ees ae 15, 17-18

eo Ry.) ere re errr erry) en ery 1]

Treaty of Medicine Creek, December 26, 1854,

ip pk ae SS Pree eee ee Tee 3,5, 11-12

Session Laws of the Territory of Washington

Bt) EERE PEPE Eee Tres Poet Se eer 6

WO ROE DOME nn oc va besa ba ee se aas caaees 6

Washington Laws 1895, ch. 178, §54.............006. 6

ft ee ee ey ee eee eee ee re oe 6

Miscellaneous

F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW

be) eee eee eee eae ee ee ee 12, 19

l

INTEREST OF AMICUS CURIAE

The interest of Amicus Curiae Pacific Legal Foundation

(PLF) is set forth in the preceding motion.

INTRODUCTION

In this case, the Ninth Circuit has determined that a number

of Indian tribes in Western Washington (Tribes) have extensive

rights to cross privately owned uplands and to enter and harvest

shellfish from privately-owned tidelands. The Ninth Circuit

determined the Tribes reserved these rights under a series of

treaties entered into by the Tribes and the United States in 1854

and 1855 despite the Indian tribes having asserted no claim for

135 years that they possessed such rights, and despite a proviso

in the treaties that the Indians would not have any right to take

shellfish from “any beds staked or cultivated by citizens.”

The decision of the Ninth Circuit substantially and adversely

affects private property rights in the State of Washington. As

noted by Judge Beezer in his concurrence, “[p]roperty rights,

which have been undisturbed for generations, are encumbered

by our decision today.” United States v. State of Washington,

157 F.3d 630, 659 (9th Cir. 1998), Appendix (App.) at 46

(Shellfish Il).

Despite the generations-long delay in making any claim, and

despite the severe disruption of long-held property rights, the

Ninth Circuit held that under this Court's precedents, the

doctrine of laches could not be applied to bar any tribal claims.

However, this Court has never held that the doctrine of laches is

unavailable as a defense to the assertion of all Indian treaty

claims. In fact, this Court expressly declined to address the

question in County of Oneida v. Oneida Indian Nation of New

York State, 470 U.S. 226 (1985) (Oneida), although a strong

dissent by four Justices argued that the doctrine of laches should

be available as a defense where an Indian tribe had waited 175

years before bringing suit to avoid a conveyance of tribal land

for valuable consideration.

2

Whether the doctrine of laches should be applied to bar long

unasserted Indian treaty claims, especially where those are

claims of reserved rights to fish, hunt, or harvest, is a question

of nationwide importance. In recent years, various tribes around

the country have sought to reassert claims to usufructuary rights

in public and private rights and private property. Indeed, a case

involving reassertion of Indian hunting and fishing rights under

an 1837 treaty between the United States and the Chippewa is

presently pending before this Court.’ The Courts should have

the power to apply the doctrine in appropriate circumstances,

especially where, as here, the Tribes failed to assert their claims

for an extended period and the claimed rights severely disrupt

long-held property rights. Accordingly, the Court should grant

the petitions to answer the important question it left open in

Oneida.

STATEMENT OF THE CASE

A. Summary of Proceedings Below

In 1970, the United States and the Tribes filed a complaint

against the State of Washington seeking a declaratory judgment

interpreting the Tribes’ treaty rights to fish for salmon and

steelhead. The district court retained continuing jurisdiction of

future unresolved issues arising out of the fishing provisions of

the treaties. United States v. State of Washington, 384 F. Supp.

312, 327-28 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir.

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

On May 19, 1989, 16 of the Tribes began the subproceeding

now before this Court by filing a “Request for Determination re:

Shellfish.” The Tribes* claim arises out of provisions of five

treaties (Treaties) negotiated with the United States in 1854 and

' State of Minnesota v. Mille Lacs Band of Chippewa Indians,

No. 97-1337, County of Aitkin v. Mille Lacs Band of Chippewa

Indians No. 97-1356, and Thompson v. Mille Lacs Band of Chippewa

Indians, No. 97-1357.

3

1855.° Each of the Treaties contains substantially similar

language stating that the Indians would continue to possess

[t]he right of taking fish, at all usual and accustomed

grounds and stations . . . 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, December 26, 1854, 10 Stat. 1132,

Art. Ill, App. at 170. On the basis of the language above, the

Tribes claimed their fishing rights included a treaty right to

harvest shellfish from all tidelands in Western Washington,

including private and state owned tidelands, together with a right

of access over upland properties to reach such tidelands. The

district court initiuily determined that, under the Treaties, the

Tribes were entitled to 50% of the shellfish harvest in

Washington waters. United States v. State of Washington,

873 F. Supp. 1422 (W.D. Wash. 1994) (Shellfish 1).

The district court then conducted an implementation trial. In

its resulting decision, the court noted that

[t]he Shellfish Growers and Private Property Owners

are, effectively, innocent purchasers who had no notice

of the Tribes’ Treaty fishing right when they acquired

their property. Indeed, many of these Growers and

? Treaty of Medicine Creek, December 26, 1854, 10 Stat. 1132, App.

at 169 ; Treaty of Point Elliott, January 22 1855, 12 Stat. 927, App.

at 177; Treaty of Point No Point, January 26, 1855, 12 Stat. 933, App.

at 187 ; Treaty with the Makah, January 31, 1855, 12 Stat. 939, App.

at 195; and Treaty of Olympia, July 1, 1855, 12 Stat. 971, App.

at 203. These treaties are also collectively referred to as the “Stevens

Treaties,” territorial Governor Isaac Stevens having negotiated the

treaties on behalf of the United States.

4

Owners purchased their land at or before the turn of the

century, and they reasonably believed the land io be free

of encumbrances and servitudes. Their belief was

reinforced by the Tribes* failure to formally assert the

Treaty right until over 100 years after the Stevens

Treaties were signed.

United States v. State of Washington, 898 F. Supp. 1453, 1457

(W.D. Wash. 1995) (Shellfish I]), App. at 97.

The decisions of the district court were appealed. Like the

district court, the Ninth Circuit recognized that “the equities do

weigh heavily in favor of the Growers’ argument—the Tribes

waited 135 years to assert their shellfishing rights.” United

States v. State of Washington, 157 F.3d at 649, App. at 28.

Nevertheless, the Ninth Circuit rejected arguments that the

equitable doctrine of laches should be applied to defeat the

Tribes’ claim to shellfish. The Ninth Circuit, while recognizing

“the enormous impact our decision will have on the thousands

of homeowners, Tribal members, and commercial fishermen in

the Puget Sound region,” 157 F.3d at 657, App. at 42, still held

that the Tribes have Treaty rights to take 50% of shellfish on all

Washington tidelands, including those in private ownership. /d.

at 646-47, App. at 45-48.

On private tidelands, the Tribes are authorized to enter to

conduct surveys of the claims and then may enter those private

lands and take 50% of the clams and oysters, subject to “time,

place and manner” restrictions. A limited exception is made for

artificially cultivated beds. /d. at 653, App. at 38.

B. History of the Treaties and of the

Shellfishing Industry in Washington

As noted by this Court in State of Washington v. Washington

State Commercial Passenger Fishing Vessel Association,

443 U.S. 658 (1979), the United States entered into the Treaties

“[t]o extinguish the last group of conflicting claims to lands

lying west of the Cascade Mountains and north of the Columbia

5

River in what is now the State of Washington.” /d. at 661. As

a result, “[t]he Indians relinquished their interest in most of the

Territory in exchange for monetary payments.” /d. at 662.

In return for the absolute conveyance of their aboriginal title

to the United States, the Tribes received annual payments from

the United States. Treaty of Medicine Creek, 10 Stat. 1132 App.

at 169, Art. 4; App. at 171. The Indians also reserved certain

rights including the right to hunt, fish, and gather as set forth

above.

As demonstrated by the record below, Washington has had

a long history of treating tidelands and their shellfish resources

as private property, which was understood both by the Indians

and by the white settlers. As noted in an earlier case interpreting

the Treaties, the Indians traditionally recognized shellfish as

property which could be exclusively possessed:

The record establishes that the Indians recognized

exclusive property interests in land and in sedentary

resources. However, the Indians viewed migratory fish

and animals differently from stationary ones. The right

to take fish existed when, and only when, the fish were

within or passing through a tribe's particular territory.

... Indians considered shellfish, as sedentary creatures.

to be the exclusive province of the tribe within whose

territory they were located.

United States v. State of Washington, 506 F. Supp. 187, 199-200

(W.D. Wash. 1980), aff'd in part, rev'd in part, 694 F.2d 1374

(9th Cir. 1982), on rehearing, 759 F.2d 1353 (9th Cir. 1985).

cert. denied, 474 U.S. 994 (1985). The Indians also understood

the settlers’ concept of private property as the right to exclude

others from land and the resources on it. Exhibit D-064 at 345-

46 (typescript of “Records of the Proceedings of the

Commission to Hold Treaties with the Indian Tribes in

Washington Territory and the Blackfoot Country,” from

December 7, 1854 - June 11, 1855, by E.G. Swindell, Jr.

(Los Angeles, CA 1942)); Exhibit D-473 at 50-51 (Dr. Daniel

6

Boxberger, The Ethnohistory of Western Washington Indians in

the Nineteenth Century with Reference to Shellfish Use and

Control (May 1993)).

After ratification of the Treaties, various settlements

including the Cities of Seattle, Tacoma, Bellingham, and Port

Townsend grew on tidelands containing shellfish beds which had

been used by local tribes. Exhibit D-470 at 19-28. In 1864, the

territorial legislature granted commercial shellfish growers

exclusive rights in natural oyster beds in southern Puget Sound.

App. at 63 n.11; Transcript at 1936-37.

In 1879, the legislature gave citizens the right to claim up to

ten acres of any newly discovered oyster beds. Session Laws of

the Territory of Washington 118-20 (1879). Starting in 1889,

the legislature authorized the sale of tidelands “for commerce,

trade or business.” Washington Laws 1895, ch. 178, §§ 54 and

62: Washington Laws 1889-90 at 431. And in 1891, the

Washington Supreme Court recognized the state’s “full power

to dispose of [tidelands] subject to no restrictions save those

imposed upon the legislature by the constitution.” Eisenbach v.

Hatfield, 2 Wash. 236, 245, 26 P. 539 (1891).

The Tribes understood that they permanently lost access to

shellfish beds when settlers exercised their right to stake or

cultivate such beds. Transcript at 431-34. Indeed, prior to this

case, in the litigation involving the Tribe's right to take anadro-

mous fish, the Tribes and their experts agreed that their rights to

shellfish were subject to termination when staked or cultivaied.

One of the Tribes’ expert witnesses, Dr. Barbara Lane, had

testified that the Indians understood they could lose a “treasured

shellfish bed” because settlers could stake or cultivate such beds

“anywhere.” See Puget Sound Shellfish Growers’ Excerpt of

Record (GER) at 17. And the Suquamish Tribe admitted in its

brief to the Ninth Circuit that “[ujnlike the in common shellfish

right, the in common salmon right is not defeasible by staking or

cultivating.” GER at 2.

7

In 1905, the federal Commissioner of Indian Affairs ruled

that the Treaty of Point Elliott did not prevent the State of

Washington from granting a lessee of its tidelands the right to

exclude Indians from taking clams, even though “the clam beds

in question have never been cultivated.” App. at 212. In 1908,

the Washington Supreme Court similarly ruled that these lessees

could enjoin all persons including Indians from taking clams

from the leased tidelands because the clams “live, not merely

upon, but actually, within, the land [and] . . . in a very material

sense, belong with the land.” Sequim Bay Canning Company v.

Bugge, 49 Wash. 127, 131, 94 P. 922 (1908).

Today, there are thousands of owners of uplands who also

own the adjacent tidelands. There are approximately 150,000

private titles potentially affected by the Ninth Circuit's decision.

Transcript of Proceedings, May 12, 1995, at 838, App. at 14.

The allocation of 50% of the harvest to the Tribes has a

severe impact on private tideland property. A real estate

appraiser with expertise in waterfront properties concluded that

property values would be diminished by as much as 40% as a

result. Transcript of Proceedings, Vol. 11, May 2, 1994,

at 2158-66. Additionally, the allocation makes profitable shell-

fish harvest unfeasible for small shellfish growers. Transcript of

Proceedings, May 12, 1995, at 848.

The decision potentially could also have a devastating impact

on Washington’s commercial shellfish industry in general. As

noted by Judge Beezer in his concurrence:

The burden imposed by our opinion cannot be

overstated. The record in this case makes abundantly

clear that since treaty times a vibrant shellfish industry

has developed in the State of Washington along the

saltwater beaches of the Pacific Ocean and along

tidelands adjoining the inland waters of Puget Sound.

8

The tension between grower and Indian under

treaty provisions is clear. One will not grow shellfish on

lands bearing natural shellfish to previde subsistence to

the other without compensation for the damage occurring

to the cultivated shellfish.

Shellfish III, 157 F.3d at 658-59, App. at 44-45.

SUMMARY OF THE ARGUMENT

The Court should grant the petitions to address the

undecided, but important question whether the doctrine of laches

is applicable to bar long-unasserted Indian treaty rights to harvest

shellfish from private tidelands. Thousands of innocent private

property owners will suffer serious harm if the Tribes, after 135

years of inaction, are allowed to reassert shellfishing rights.

In holding that the doctrine of laches was unavailable to bar

such claims, the Ninth Circuit relied upon its prior decision in

Swim vy. Bergland, 696 F.2d 712 (9th Cir. 1983), which in turn

rested on this Court’s decision in Board of Commissioners of

Jackson County v. United States, 308 U.S. 343 (1939) (County

Commissioners). County Commissioners, however, as well as

other decisions of the Court holding that the doctrine of laches

would not apply to bar Indian claims, can be readily distin-

guished from the situation here. Those decisions involved

specific rights, immunities, or restrictions imposed by the United

States upon tribes or tribal members, rather than reserved

usufructuary rights.

Application of laches to such usufructuary rights is an

important question raised by the decision below. Not only has

it not been addressed by the Court, but it has significant

nationwide importance, given the potential for reassertion of

long-dormant usufructuary rights purportedly reserved in many

other Indian treaties.

9

ARGUMENT

I

THE COURT SHOULD GRANT THE PETITIONS TO

DECIDE FOR THE FIRST TIME THE IMPORTANT

QUESTION OF WHETHER THE DOCTRINE OF

LACHES IS APPLICABLE TO BAR OR LIMIT THE

TRIBES’ 135 YEAR DORMANT CLAIM TO TAKE

SHELLFISH FROM PRIVATE TIDELANDS

This case raises an important question never before

addressed by the Court. It is time todo so. In the past the Court

has recognized that laches cannot apply where federal statute or

treaty provisions specifically prohibit an action with regard to

Indian lands, but this case raises a completely new question.

Nevertheless, the Ninth Circuit held that the doctrine of

laches was not available to bar or limit the Tribes’ claims in this

case. While that court conceded that “the equities do weigh

heavily in favor” of application of the doctrine because the

Tribes waited 135 years to assert their shellfishing rights, the

court did not consider application of the doctrine because its

prior opinion in Swim v. Bergland, 696 F.2d at 718, had held

that “[l]aches or estoppel is not available to defeat Indian treaty

rights.” Shellfish II], 157 F.3d at 649, App. at 28. The holding

in-Swum ostensibly rested on this Court’s opinion in Board of

Commissioners of Jackson County v. United States, 308 U.S.

at 350-51.

An examination of County Commissioners demonstrates that

this Court’s holdings in that case are based on a very different

situation of fact and law, one easily distinguishable from the

present case. County Commissioners, as well as similar

Supreme Court cases, all deal with the situation where specific

rights, immunities, or restrictions have been granted or imposed

by the United States upon tribes or tribal members. Thus in

County Commissioners, what was at issue was a specific

provision in the treaty with the Pottawatomies in which the

United States provided that lands held in trust by the United

10

States for these Indians would be exempt from state taxation.

308 U.S. at 348. Thus, this Court could say with authority that

“state notions of laches and state statutes of limitations have no

applicability,” and “the immunity of the sovereign from these

defenses is historic. Unless expressly waived, it is implied in all

federal enactments.” /d. at 351.

The same analysis holds true in other opinions of this Court

where the defense of laches was determined to be inapplicable.

For example, in Ewert v. Bluejacket, 259 U.S. 129 (1922), the

heirs of Charles Bluejacket, a full-blood Quapaw Indian, sought

to have the courts void a deed by him to Paul Ewert. At the time

of the challenged conveyance, Ewert was a special assistant to

the Attorney General of the United States with the obligation to

assist in the institution and prosecution of suits to set aside deeds

to certain allotments in the Quapaw Indian Agency. /d. at 134.

At the time of the conveyance a federal statute provided that

[n]o person employed in Indian affairs shall have any

interest Or concern in any trade with the Indians, except

for, and on account of, the United States.

/d. at 135. This Court upheld the lower court's voiding of the

deed because of the specific statutory prohibition and further

held that the doctrine of laches was not applicable where there

is a specific federal statutory prohibition on aliewation of Indian

title:

[T]he equitable doctrine of laches, developed and

designed to protect goodfaith transactions against those

who have slept upon their rights, with knowledge and

ample opportunity to assert them, cannot properly have

application to give vitality to a void deed and to bar the

rights of Indian wards in lands subject to statutory

restrictions.

Id. at 138.

Similarly, in Oneida it was again Indian title which had been

conveyed despite express federal statutory prohibitions. The

1]

Oneida Indian Nation sought to recover damages for the use and

occupation of 100,000 acres of its tribal lands which it had

conveyed to the State of New York in 1795. The conveyance

occurred despite the provisions of the federal Trade and

Intercourse Act of 1793, which provided in pertinent part that

no purchase or grant of lands, or of any title or claim

thereto, from any Indians or nation or tribe of Indians,

within the bounds of the United States, shall be of any

validity in law or equity, unless the same be made by a

treaty or convention entered into pursuant to the

constitution . . . [and] in the presence, and with the

approbation of the commissioner or commissioners of

the United States.

1 Stat. 330, § 8 (1793).

The Court stated that it would not consider application of the

equitable doctrine of laches for two reasons. First, Oneida had

been brought as an action at law for damages. Second, like

Ewert, it involved questions of conveyance and extinguishment

of Indian title in violation of specific federal statutory law.

470 U.S. at 244 n.16. Nevertheless, the four dissenting Justices

in Oneida believed that where claims had been allowed to

languish for 180 years, a federal common law concept of laches

should be applicable to bar even claims of improper alienation

of Indian title.

Unlike Oneida, the case before this Court has been

maintained as an equitable action in which the Tribes have

sought to enjoin the alleged interference with their reserved

fishing rights under the Treaties. It also does not involve

questions of improper alienation of Indian title, because that title

was validly conveyed to the United States under the Treaties.

Each one of the Treaties expressly provides that the Tribes shail

cede, relinquish, and convey to the United States, all

their right, title, and interest in and to the lands and

country occupied by them.

Treaty of Medicine Creek, 10 Stat. 1132, App. at 169. Instead,

this case involves the equitable interpretation and enforcement

of the Tribes’ reserved shellfishing rights. Thus, the situation is

the paradigm of issue left open in Oneida and is in need of

resolution by this Court.

In the present case, not only do we have a lapse of 135 years

before the Tribes took any action to claim fishing rights in

private shellfish lands, the interest they seek to vindicate is much

more ephemeral than those previously at issue in the Court’s

jurisdiction.’ Further, prior to this litigation the Tribes had never

engaged in any action that would have put a reasonable person

on notice of their claim. This Court has defined laches as

follows:

[T]he question of laches turns not simply upon the

number of years which have elapsed between the

accruing of . . .rights, whatever they were, and .. .

assertion of them, but also upon the nature and evidence

of those rights, the changes in value, and other

circumstances occurring during that lapse of years. The

cases are many in which this defense has been invoked

and considered. It is true, that by reason of their

differences of fact no one case becomes an exact

precedent for another, yet a uniform principle pervades

them all. They proceed on the assumption that the party

to whom laches is imputed has knowledge of his rights,

and an ample opportunity to establish them in the proper

‘In other words, in cases like County Commissioners, E-wert, and

Oneida, the existence and extent of the mght or prohibition can easily

be determined by review of the applicable federal statutory provision

Here, as a practical matter, one can only be put on notice of the

claimed nght by actual and repeated exercise by the Tnbes, which did

not occur. Also, unlike Indian title, fishing and hunting nghts on

ceded land are not part of a Tribe's reserved sovereignty, but instead

are lesser nghts subject to regulation by the States. (7, F. Cohen,

HANDBOOK OF FEDERAL INDIAN LAW (1942) at 335

13 oan

forum; that by reason of his delay the adverse party has

good reason to believe that the alleged rights are

worthless, or have been abandoned, and that because of

the changing condition or relations during this period of

delay it would be an injustice to the latter to permit him

now to assert them.

Galliher v. Cadwell, 145 U.S. 368, 371-72 (1892) (emphasis

added).

Whether Indian rights have effectively been abandoned is an

important question that this Court has considered in a number of

its cases. In Mitchel v. United States, 34 U.S. (9 Pet). 711, 746

(1835), this Court stated:

Indian possession or occupation was considered with

reference to their habits and modes of life; their hunting-

grounds were as much in their actual possession as the

cleared fields of the whites; and their rights to its

exclusive enjoyment in their own way, and for their own

purposes were as much respected, until they abandoned

them, made a cession to the government, or an

authorized sale to individuals. In either case their right

became extinct.

Similarly, in Williams v. City of Chicago, 242 U.S. 434, 437

(1917), this Court stated:

If in any view [the Pottawatomie Nation] ever held

possession of the property here in question, we know

historically that this was abandoned long ago and that for

more than a half century [the tribe] has not even

pretended to occupy either the shores or waters of Lake

Michigan within the confines of Illinois.

This Court has also engaged in a similar analysis when

previously construing fishing rights under the Stevens Treaties.

In Washington v. Washington State Commercial Passenger

Fishing Vessel Association, 443 U.S. 658, the Court noted that

a Tribe's right to an allocation of anadromous fish could be

14

reduced if “it should find other sources of support that lead it to

abandon its fisheries.” /d. at 687. And in Seufert Brothers

Company vy. United States, 249 U.S. 194 (1919), this Court

emphasized the fact that the tribe had continuously asserted a

right of access to a traditional fishing area. There, the United

States sought to restrain interference with Y akima Nation tribal

members’ rights to fish in a specific locality on the Oregon bank

of the Columbia River, and the right to get access to this area

through private property. This Court noted that “[dJuring all the

years since the treaty was signed [the Indians] have been

accustomed habitually to resort for fishing to the [Oregon side

of the river].” /d. at 198. In upholding the lower court’s ruling

for the Indians, this Court stressed that the only “servitude” that

existed was where there had been a “habitual” and “open and

notorious” use of the property by the Indians:

The suggestion, so impressively urged, that this

construction “imposes a servitude upon the Oregon soil,”

is not alarming from the point of view of the public, and

private owners not only had notice of these Indian

customary rights by the reservation of them in the treaty,

but the “servitude” is one existing 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, not

negligently or wilfully blind to the conditions of the

property he was purchasing, must have known of them.

Id. at 199 (emphasis added).

Like Seufert, the Ninth Circuit's decision here has effectively

created a servitude on privately owned land but, unlike this

Court in Seufert, the Ninth Circuit failed to adequately address

the history of use which would indicate whether the rights had

been abandoned by the Tribes, much less whether there had

been the “habitual,” “customary,” and “open and notorious” use

since treaty time required by Seufert. As a result, a floating

easement, uncertain in extent and nature, now exists on tens of

;

a ca i aia nea

15

thousands of acres of private property, a servitude that no private

landowner could have known existed prior to the lower courts’

rulings.“

Additionally, the Tribes took no action for 135 years to assert

a Claim to these rights, despite longstanding knowledge that both

federal and state officials, as well as the state courts, had

declared that no such rights existed. The Tribes’ delay is further

compounded by the fact that they may well have had a remedy

at law for compensation from the United States, either under the

Indian Claims Commission Act (ICCA), 25 U.S.C. § 70 for

claims arising up to 1946 or under 28 U.S.C. § 1505 for post-

1946 claims.” For example, many of the actions complained of

by the Tribes actually were implemented by acts of the territorial

legislature permitting private claims and ownership of natural

Shellfish beds. In 1905, the federal Commission of Indian

Affairs declared that the State of Washington had the right to

exclude Indians from taking clams from tidelands. The ICCA

applies to all treaty claims including fishing and hunting rights.

See Navajo Tribe of Indians v. State of New Mexico, 809 F.2d

1455, 1464-67 (10th Cir. 1987).

PLF submits that given the long inaction of the Tribes which

signaled abandonment of any rights, the reasonable reliance of

thousands of private property owners who have purchased,

occupied, and used tidelands for generations, and the serious

* Also cf. Solicitor General Hoyt’s statement in United States v.

Winans, 198 U.S. 371 (1905), that “[wJe are not seeking to impress

a broad and vague servitude on all patented lands along the

Columbia, but only a clear and limited one on this particular small

tract.” 198 U.S. at 373.

> The United States Court of Federal Claims shall have jurisdiction of

any claims “against the United States accruing after August 13, 1946,

in favor of any tribe, band, or other identifiable group of

American Indians . . . whenever such claim is one arising under the

Constitution, laws or treaties of the United States or Executive orders

of the President.” 28 U.S.C. § 1505

16

damage that will be done to private property rights, this case

presents the appropriate situation for this Court to address

whether the doctrine of laches should be applied.

THE COURT SHOULD GRANT THE PETITIONS

BECAUSE APPLICATION OF LACHES IS

ESPECIALLY PERTINENT WHERE THE TRIBES’

PAST AND PRESENT DECISIONS NOT TO ASSERT

THEIR CLAIMS AGAINST THE UNITED STATES

NOW WORK UNFAIRLY TO SHIFT LIABILITY FOR

SUCH CLAIMS FROM THE UNITED STATES TO

INNOCENT PRIVATE LAND OWNERS

This case raises a serious question that should be addressed

by this Court. Should laches apply to tribal claims that seek a

remedy not against culpable governmental entities, but instead

against innocent private property owners? In this case, both the

district court and the Ninth Circuit recognized that thousands of

private property owners are the innocent parties who will suffer

the brunt of the impact of the courts’ decision. The district court

specifically found that

Shellfish Growers and Private Property Owners are,

effectively, innocent purchasers who had no notice of the

Tribes’ Treaty fishing right when they acquired their

property. Indeed, many of these Growers and Owners

purchased their land at or before the turn of the century.

and they reasonably believed the land to be free of

encumbrances and servitudes.

Shellfish II, 898 F. Supp. at 1457. The reasonable belief of

private property owners was reinforced by the Tribes’ long-

Standing failure to take any action to assert a claim to shellfish

on this land: “Their belief was reinforced by the Tribes’ failure

to formally assert the Treaty right until over 100 years after the

Stevens Treaties were signed.” /d. The district court found that

fault, if any, for creation of the situation lay with the State of

Washington and the United States, not with private owners:

17

“Fault for creating this controversy lies squarely with the State

of Washington and the United States, for selling the tidelands

and not objecting to the sale, respectively.” /d. at 1459.

Nevertheless, the United States appears in this action as a

Plaintiff, ostensibly acting on behalf of the Tribes. The United

States has taken this position despite the fact that it also

possesses tidelands suitable for shellfishing,° and despite the fact

the district court determined that it, and not private landowners,

was in part responsible for any violation of the Tribes’ treaty

shellfishing rights. Shellfish I/, 898 F. Supp. at 1459. More-

over, the United States only supported the Tribes’ claim once it

was clarified that the Tribes were not including federal

tidelands.’

Alignment of the United States as a Plaintiff, rather than as

a Defendant, raises important issues relevant to the laches

question. As noted above, the Tribes possessed the right to

assert claims for monetary compensation against the United

States under the ICCA, as well as under 28 U.S.C. § 1505. The

selective decision by the Tribes not to assert claims against the

United States obviated the need for the United States to raise an

obvious federal defense to the assertion of such claims: that the

Tribes’ remedy is not a suit for specific enforcement but, rather,

an action for compensation either before the Indian Claims

° PLF notes that if shellfishing claims are barred as to private lands,

that does not necessarily mean that all shellfishing nghts under the

Treaties cease. At the present time, 53% of the tidelands are privately

owned and 47% are either present reservation lands or public lands

within the control of either the State of Washington or the United

States. Exhibit US-181.

’ As noted in the petition of 26 Tideland and Upland Private Property

Owners (UPOW), the Tribes initially asserted their claim against all

private and public tidelands. Later, after the United States supported

the Tribes’ claim, the Tribes clarified that they were not including

federal tideland ownership within their clam. UPOW petition at 5-6.

18

Commission under the ICCA or a suit in the Court of Federal

Claims under 28 U.S.C. § 1505.

Second, the decision by the Tribes not to assert claims

against the United States and the United States” corresponding

support of the Tribes in this action served to shift the burden to

private landowners to “compensate” the Tribes for any wrong-

doing of the United States. In other words, not only has the

question of federal monetary compensation been avoided, under

the lower courts’ decisions, the potential obligation of the United

States to make all of its own tidelands available for tribal

shellfishing has now been transferred to, and is borne instead by,

private landowners as well as the State of Washington.

The resulting situation is much akin to the “off-budget”

transfers questioned by Justice Scalia in Pennell v. City of

San Jose, 485 U.S. 1, 22 (1988). In that case, Justice Scalia

noted there would be little public support if a measure requiring

landlords to subsidize “hardship tenants” were instead structured

to provide monetary subsidies to those tenants from public

funds. The unfairness is even more evident here. It is impos-

sible to conceive that Congress through legislation could dictate

the result the United States and the Tribes have achieved

indirectly here: requiring private shoreline owners to open their

lands and make their shellfish resources available to the Tribes

in order to preserve the federal government's own tideiand

property from those same treaty obligations. Such a direct

measure also would pose serious constitutional questions since

it would be an obvious example of “forcing some people alone

to bear public burdens which, in all fairness and justice, should

be borne by the public as a whole.” Armstrong v. United States,

364 U.S. 40, 49 (1960). The question of whether to apply laches

is especially pertinent under these circumstances. Accordingly,

the Court should grant the petitions.

i cn i

19

iil

WHETHER LACHES IS AVAILABLE TO BAR LONG-

UNASSERTED TRIBAL USUFRUCTUARY RIGHTS IS

A QUESTION OF NATIONWIDE IMPORTANCE

While they vary as to their specific provisions, many Indian

treaties provide that the Indians reserve certain hunting and

fishing rights in lands ceded to the United States. See, e.g.,

F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW (1942) at 285

n.171 (listing such treaties entered into between 1789 and 1864).

In many cases these rights have not been exercised, especially

where such lands were subsequently acquired and utilized by

settlers and have been treated as private property for generations.

The loss of property rights suffered by innocent Puget Sound

property owners as a result of a retroactive treaty interpretation

by the courts below creates a precedent that could be used to

cause similar suffering by property owners in many other parts

of the country as well.

The Court has long recognized that claims, especially those

affecting property rights, should be asserted within a reasonable

time. “The best interests of society require that causes of action

should not be deferred an unreasonable time. This remark is

peculiarly applicable to land titles.” Lewis v. Marshall, 30 U.S.

(5 Pet.) 470, 472 (1831). While “it is well established that

treaties should be construed liberally in favor of the Indians,”

Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943),

this should not work to reward those who have slept on their

treaty rights.

A question of nationwide importance has accordingly been

raised by the petitions. The question is whether laches is

available to bar long-unasserted tribal usufructuary rights that if

upheld will cause innocent landowners to lose significant private

property rights. The Court should grant the petitions and

address this question.

20

CONCLUSION

For the foregoing reasons, this Court should grant the

petitions to consider the laches issue left open in Oneida. The

need for such consideration here is great. The damage that will

be done to private property rights if the Ninth Circuit's decision

is allowed to stand will be tremendous. Rights which thousands

of property owners for generations believed in good faith they

possessed will be nullified, including the right to exclude others

traditionally held by this Court to be “one of the most essential

Sticks in the bundle of rights that are commonly characterized as

property.” Loretto v. Teleprompter Manhattan CATV Corpora-

tion, 458 U.S. 419, 433 (1982).

DATED: March, 1999.

Respectfully submitted,

ROBIN L. RIVETT JAMES K. MEE

Pacific Legal Foundation Counsel of Record

10360 Old Placerville Road, Pacific Legal Foundation

Suite 100 P.O. Box 235856

Sacramento, California 95827 Honolulu, Hawaii 96823-3514

Telephone: (916) 362-2833 Telephone: (808) 524-0510

Facsimile: (916) 362-2932 Facsimile: (808) 733-3374

Counsel for Amicus Pacific Legal Foundation