Petition for Writ of Certiorari — Colorado v. LaFrankie

Supreme Court U.S

FILED

Supreme Court of the United States

October Term, 1998

SS & a

26 TIDELAND AND UPLAND PRIVATE

PROPERTY OWNERS (“UPOW’”),

Vo tinHNoO

Petiti ne?

UNITED STATES OF AMERICA, et al.

Respondents

S

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

PETITION FOR A WRIT OF CERTIORARI

— y — =

JAMES MartTIN JOHNSON

Counsel of Record

Attorney at Law

1110 S. Capitol Way

Suite 225

Olympia, WA 98501

(360) 357-3104

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-69

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the treaty “right of taking fish ... in

common with all citizens” interpreted by this Court in

Washington v. Washington State Commercial Passenger Fish-

ing Vessel Ass'n, 443 U.S. 658 (1979), allows Indians to

enter privately-owned tidelands and take 50% of shellfish

which are the owners’ property?

2. Whether the circuit court may decline to apply

this Court’s “central principle” that the treaties secure

“no more than is necessary to provide the Indians with a

livelihood — that is to say, a moderate living” and allow

one-half the shellfish from private lands to be taken by

Indian tribes even though each tribe has exceeded that

level as a consequence of casino gambling, and other

income? Washington v. Washington State Commercial Pas-

senger Fishing Vessel Ass'n, supra, at 686.

3. Whether treaty harvest should be taken from

publicly-owned tidelands, which make up nearly half of

the case area tidelands, and not from private lands?

PARTIES TO THE PROCEEDING BELOW

[he parties to the proceeding below were:

Petitioners: 26 Tideland and Upland Private Prop-

erty Owners, representing the United Property Owners of

Washington (UPOW), intervened as defendant/appellant

below. Named representative property owners were Dan

Buehler, Robert L. Davis, Bruce I. Fielding, Arthur J.

Gerdes, Joe Hoots, Keith C. Huetson, Commander John C.

James, Richard Sayre Koch, Elaine C. Lefler, Joan Lem-

onds-Roush, John S. Lewis, Steven L. Luke, Edwards R.

McMillan, Robert F. Newman, Mark A. Hysether, Arthur

[. Price, Ray D. Randall, Cynthia Rasmussen, Robert G.

Shanks, Axel Strakeljahn, Leana Tracy, Stuart W. Turner,

George B. Usnick, Lee S. Vincent, Joan Walker, and Wil-

liam E. Whitney, Jr.

The State of Washington was the original defendant /

appellant.

Three other groups of private property owners were

also intervenor-defendants/appellants below, one indus-

try group and two groups of title insurance policy

holders. These three separate groups are:

a. The Puget Sound Shellfish Growers Associa-

tion (“Growers”) consisting of: Taylor

United, Inc.; Olympia Oyster Company; J & G

Clams, Inc.; G. R. Clam & Oyster Farm; Cedric

E. Lindsay; Minterbrook Oyster Company;

Charles and Willa Murray; Skookum Bay

Oyster.

b. “Alexander group” consisting of Larry B.

and Shirlee Alexander, Harold E. and Billie

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

PARTIES TO THE PROCEEDING

BELOW - Continued

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, Sew-

all L. and Emma M. Reynolds, John D.

Riach, Alva Hazel B. Robb, Irene D. Smith

and Providence Worley.

c. “Adkins group” consisting of William and

Charmond Adkins, Grace Boyd, Pierce W.

and May H. Davis, Rosemary Duncan, James

E. Hadley, James C. and Sarah H. Johnston,

William and Jo Ann Kirsh, David A. Mit-

chell, Louis Nawrot, Robert and Sandra

Stevenson and Boon Ho Woo.

Respondents: The plaintiffs, appellees/cross-appel-

lants below, are the United States and the following

Indian tribes: Muckleshoot, Nooksack, Upper Skagit,

Squaxin Island, Lummi, Makah, Tulalip, Swinomish,

Quileute, Puyallup, Hoh, Suquamish, Quinault, Nis-

qually, Jamestown S’Klallam, Lower Elwha S’Klallam,

Port Gamble S’Klallam, Skokomish, Sauk-Suiattle, and

Stillaguamish.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING BELOW .. i]

OPINIONS AND ORDER BELOW.

UOC WIE Gc hc hacked ae a ee |

STATUTORY PROVISIONS INVOLVED ]

PEPE OEE Oe EEE NPA coc vnc ost beveuces Gn

A

B

6

Nature of the Case and Course of Proceedings

Disposition of the Circuit Court Below.......

Statement of Facts Relevant to Issues Presented

eg IR irae a ee end ae er he The LAN Pace a ate ene

REASONS FOR GRANTING THE WRIT ...........

[.

a“

The Decision of the Ninth Circuit That Private

Property May Be Entered and Taken Conflicts

with the Decisions of this Court and the Sev-

enth and Eighth Circuits ................

[The Circuit Decision Conflicts with Decisions of

the Washington State Supreme Court ..........

The Ninth Circuit Holding Conflicts with His-

torical Understanding and With the Interpreta-

tion of Responsible Officials.................

[he Ninth Circuit Applied the Wrong Standard

of Review In Conflict with Decisions of this

Court and the Eighth and Tenth Circuits.....

The Ninth Circuit’s Opinion Presents Issues of

“Grave Constitutional Dimension” and

“Exceptional Public ON seh cece sees

24

TABLE OF CONTENTS Continued

Page

VI. The Circuit Court Has Disregarded this

Court’s Earlier Decision By Extending the

[reaty Right Even Though The Tribes Have

Achieved A “Moderate Living” 27

CONCLUSION

TABLE OF AUTHORITIES

Page

(

lars Idaho, 445 U.S. 715 (1980) Zi, £0, ai

Andrus v. Utah, 446 U.S. 500 (1980) . 26

intoine v. Washington, 420 U.S. 194 (1975) 14

taw Natio? United Stat 318 U.S. 423 (1943) 3

) i } lersey ( 56 [ 126 (1853) Be’

Nesbitt, 966 F.2d 375 (8th Cir. 1992 de

\ ()) Ban l {Af Superior ( hip} . ‘

I} (lidrl V ( MSI} 760 | 'd 177 (7th ¢ iT 19 >) f

( urt () | Ba | , , 700 F.2d 34]

th Cir. 1983)

AA k ( rat AI [ C eo (19 18

Milli La . Band OF 4 hippe Wu Indians Minne ra

861 F. Supp. 784 (D. Minn. 1994)

Mille La Band v. Minnesota, 952 F.2d 1362 )

Minn } 1ff | 124 t ad Y()4 (Sth Cir 1997 15

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

4 ntal State | ( lel \ ( Pru OT > {

ina, 472 U.S. 237 (1985)

National R.R. Passenger Cort Boston & Main

:

. , es , J _

\ IM California Coastal Community 45 PL.S. GL0

(1987) L5

Yerpaon) ij ; f sch | ATs lAlsfp lamath ]

Uregon Dept of Fish ana VILalife Klamath Indian

yew -

Iribe, 473 U.S. 753 (1985) 5 bidane oe eae hs wa eee

TABLE OF AUTHORITIES - Continued

Page

Pittsburg & Midway Coal Min. Co. v. Yazzie, 909

F.2d 1387 (10th Cir. 1990), cert. denied, 498 U.S.

RE SEO shake OES eae TL ee See ete Rare 25

Sequim Bay Canning Co. v. Bugge, 94 Pac. 922

CE, SEE Care ch ote a aang Cet corte eee aU, 22. 22

Seufert Bros. v. United States, 249 U.S. 194 (1918)..... 17

South Dakota v. Yankton Sioux, 118 S. Ct. 789

CRE rake Casas cee ee ue ek eee 21, 26

United States ex rel. Charley v. McGowan, 290 U.S.

EE a ek ee ce ek ea wR Pe ee eee er 17

United States v. Dann, 470 U.S. 39 (1985) ............ 19

United States v. McGowan, 62 F.2d 955 (9th Cir.

| 5 | SER ae em Cone ava renee ar, Gear er ree ree

United States v. Washington, 135 F.3d 618 (9th Cir.

3) re Pe er rer rt yee eer re eee 1, 18

United States v. Washington, 9th Circuit No.

93-35324, November 2, 1993 (unpublished opin-

EDs ied are ae eee ee Ae ae ee ie ames ee

United States v. Washington, 157 F.3d 630 (9th Cir.

REE cack chskgassaeere Sadar ceewe epee 1, 3, 24, 28

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

Wash. 1974), aff'd. 520 F.2d 676 (9th Cir. 1975),

cert. denied, 423 U.S. 1066 (1976) .... 2. e ees ess ‘3

United States v. Washington, 873 F. Supp. 1422

Por Se SOPEE si. cos da aeeeaeay ewer een ees 1, 6, 28

United States v. Washington, 898 F. Supp. 1453

Sones, ON. ee ae ha eee eee ak ood 1, 6

United States v. Washington, 909 F. Supp. 787 (W.D.

PON a Saas eve kaee oh paGen ears eae weer 1, 7

Vill

TABLE OF AUTHORITIES — Continued

Page

lInitted States v. Winans, 198 U.S. 371 (1905) ...... 16, 17

Washington v. Van Vlack, 172 Pac. 563 (Wash. 1918) .... 20

Washington v. Washington State Commercial Pas-

senger Fishing Vessel Ass'n (Fishing Vessel), 443

a CL RAE vx sc Bon besa Raat e ws Ole eee passim

Watt v. Alaska, 451 U.S. 259 (1981) ........... 2.000. 21

Wiegardt v. Brennan, 73 P.2d 1330 (Wash. 1937) ...... 20

Williams v. Lee, 358 U.S. 217 (1959)............ 23

STATUTES & REGULATIONS

ee ais 6G ee ee ee l

C2 U4. Se LAA ov wave Oboe céeens eae hae 28

Donation Land Act, 9 Stat. 937 (1850)............ =.

Indian Claims Commission Act, 60 Stat. 1049

Uk ) Ba te PEs Ay Pere teats CANNON ORIG PL GW Beran Tay Ons 5

Ireaty of Point Elliott, 12 Stat. 927 (1859)............ l

Ireaty of Point No Point, 12 Stat. 933 (1859).........

[reaty with Nisqualli (Treaty of Medicine Creek),

10 Stat: TiRe FOO O1: ka ve oie kh cacwse -ceuky & 20, 3]

[reaty with the Makah (Treaty of Neah Bay), 12

RE. Fear NE bo oes oc Sha eee eee ees l

[Treaty with the Quinault (Treaty of Olympia), 12

ea OTe TI) oo cn Seo ne ae eo ee |

TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES

IB James W. Moore & Jo Desha Lucas, Moore’s

Federal Practice { 0.404[10] (2d ed. rev. 1993)..... 29

Letter, Acting Commissioner to Liston, March 20,

BID (EX. EP TZS) . creer sk ce cect ea teeneneseen 22

Stevens’ letter to Manypenny, December 6, 1853 s

1

PETITION FOR A WRIT OF CERTIORARI

The 26 Tideland and Upland Private Property

Owners (UPOW) petition this Court for a writ of cer-

tiorari to review the judgment of the Court of Appeals for

the Ninth Circuit described below.

OPINIONS AND ORDER BELOW

The Ninth Circuit opinion amending its original

opinion and denying rehearing en banc is reported at 157

F.3d 630, appendix! (“App.”) 1-50. That opinion affirmed

in part and reversed in part the district court for the

Western District of Washington decisions at 873 F. Supp.

1422 (App. 51-94), 898 F. Supp. 1453 (App. 95-134), and

909 F. Supp. 787 (App. 135-148).

JURISDICTION

The Ninth Circuit Court of Appeals filed its opinion

on January 28, 1998, United States v. Washington, 135 F.3d

618 (9th Cir. 1998). On September 25, 1998, the Court of

Appeals amended its opinion, denying the petitions for

rehearing and rejecting the suggestion for rehearing en

banc. App. 1-50. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Treaty with Nisqualli (Treaty of Medicine Creek), 10

Stat. 1132 (1855); Treaty of Point Elliott, 12 Stat. 927

(1859); Treaty of Point No Point, 12 Stat. 933 (1859); Treaty

with the Makah (Treaty of Neah Bay), 12 Stat. 939 (1859)

and the Treaty with the Quinault (Treaty of Olympia), 12

Stat. 971 (1859).

1 There are four separate Petitions being concurrently filed,

relying on the single Appendix to Petitions filed by the State of

Washington.

2

STATEMENT OF THE CASE

Introduction

This case involves a Ninth Circuit interpretation of

the “right to take fish” under Northwest Indian treaties to

authorize the Tribes to enter private properties and take

one-half the clams and oysters of the owners. The Panel?

purports to be faithfully following this Court’s prior

interpretations in this same case.

The UPOW private owners submit that the Ninth

Circuit Court’s construction violates private property

rights under the United States and Washington constitu-

tions and conflicts with the express provisions and intent

of the treaties themselves, as interpreted by this Court.

The treaty articles contain two sets of promises, to

the Indians and to settlers, whom this Court described as

“beneficiaries” of the treaties.

The promise to the Indians was of reservations, pay-

ments, and of fishing rights “in common with all citizens”

and has been fulfilled including enforcement by this

Court in Washington v. Washington State Commercial Pas-

senger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658

(1979). These tribes take far more than 50% of salmon

runs subject to the fishing right today. A proviso to this

same article immediately required Indians to cease taking

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

The United States and the signatory Indians also

made treaty promises to the settlers and citizens; that

they could own their own lands and enjoy peaceful enjoy-

ment. For 140 years these promises were kept — until the

rulings of the court below.

Several articles of the treaties expressly incorporate

this promise. Article 1 of each was an absolute cession of

all interests in the lands. Article 4 (or 5) was agreement

2 Judge Stephen S. Trott and visiting Judge Donald P. Lay of

the Eighth Circuit; Judge Robert R. Beezer concurred.

3

that Indians have settler “permission” to go on settler

“claimed or occupied” land (since they would have their

own reservation homes). Article 8 (or 9) was an express

Indian agreement “to be friendly with all citizens ... and

pledge . . . to commit no depredations on the property of

such citizens.” These promises laid the foundation for

private ownership of land, eventually including tide-

lands, with constitutional rights and protections. These

protections were ultimately extended to the Indians,

including many who later claimed and owned lands -

and tidelands — in Washington.

Concurring Ninth Circuit Judge Beezer expressed the

conflict that Court has created:

Property rights, which have been undis-

turbed for generations, are encumbered by our

decision today. [citing and quoting Vanhorne’s

Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310, 1

L.Ed. 391 (1795)] . . . Property rights, so funda-

mental to American government, need not be

trampled upon.

United States v. Washington, 157 F.3d at 659, App. 46.

The Ninth Circuit Panel claims to be faithfully imple-

menting prior decisions of this Court in its holding that

the Tribes are entitled to enter private tideland properties

and take half the clams and oysters. The same concurring

judge also stated, incorrectly we believe, that this “tram-

pling” on fundamental property rights was required by

this Court’s prior decisions:

It is, however, the law of this case and of the

Supreme Court that the reserved fishing right

makes no distinctions between migratory fish

and shellfish or between fish runs and static

fishing grounds. The origin of this rule of law is

perplexing.

id. at 657.

We establish below that the Ninth Circuit decision

actually conflicts with the relevant decisions of this Court

4

- and conflicts with decisions of the other two circuits

which have considered similar treaty rights, each holding

that private property rights are not abrogated by the

treaties.

The Circuit decision further conflicts with the deci-

sions of the Washington State Supreme Court, which have

determined that shellfish on private lands are the private

property of the owner, and thus entitled to protection

under the laws and constitution, even from Indian har-

vests.

The Ninth Circuit’s rewrite of the treaty that has

“trampled” on private property rights comes 140 years

after all parties, including responsible government offi-

cials who opined on the subject, believed the contrary.

This Court should grant the Writ and resolve this

apparent conflict between treaty articles (as construed)

and the paramount constitutional protection for private

property rights.

A. Nature of the Case and Course of Proceedings.

1. Early History of the Case.

In 1970, the United States and Western Washington

Indian tribes filed a Complaint against the State of Wash-

ington. They sought a declaratory judgment interpreting

the treaty right to fish for salmon and steelhead. The

district court retained continuing jurisdiction of the liti-

gation. United States v. 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).

This Court later granted certiorari to “interpret this

important treaty provision and thereby to resolve

. what, if any, right the Indians have to a share of the

Ce ” Fishing Vessel, 443 U.S. at 674.

This Court rendered its decision in 443 U.S. 658 and

ordered:

neater aaa reece

5

The judgments of the Court of Appeals for the

Ninth Circuit, the District Court for the Western

District of Washington, and the Supreme Court

of the State of Washington are vacated and the

respective causes are remanded to those courts

for further proceedings not inconsistent with

this opinion, .. .

Fishing Vessel, 443 U.S. at 696.

Note that no private landowners were party to any of

these earlier proceedings, as the claim involved the treaty

“right of taking fish,”, e.g., salmon and steelhead. No

claim of any kind was presented against landowners.

Also, most of these Tribes had previously filed claims for

the taking of the Jands under the Indian Claims Commis-

sion Act, 60 Stat. 1049 (1949), and been paid.

2. The “Shellfish” Subproceeding

On May 19, 1989, sixteen Puget Sound Indian Tribes

began this new subproceeding in United States v. Washing-

ton continuing jurisdiction with the filing of a Request for

Determination re: Shellfish (subproceeding 89-3).

The Tribes then claimed the fishing right 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. (Only later after the United States supported

the Tribes’ claim was it clarified that the Plaintiffs did not

include the substantial federal tideland ownership in this

claim.)

With respect to the lands of private owners, the

Tribes’ belatedly complained of:

[T]he sale and lease of tidelands by the state to

private parties who refused to permit access to

Indians (which refusal was enforced by state

and local law enforcement)... .

Amended Request, pp. 5-6, ¥ H.

6

The subproceeding was filed against the State of

Washington (not against private landowners). The United

States did not sign or file the Request but later supported

it below.

3. Participation of the United Property

Owners of Washington (26 Tideland and

Upland Private Property Owners).

Private Owners of waterfront uplands and private

owners of tidelands in each different treaty area banded

together to form United Property Owners of Washington

(UPOW) to defend their property rights. Most are water-

front home owners or members of residential commu-

nities who share a beach. A few have commercial

shellfish farm licenses.*

These Tideland and Upland Private Property Owners

moved to intervene and for class certification with 26 as

representatives selected by ownership in each treaty area.

They include upland (only) owners who abut public

beaches as well as owners of both the uplands and tide-

lands. CR 12270, CR 12272. Both motions were denied. On

appeal, the Order Denying Intervention was reversed.

United States v. Washington, 9th Circuit No. 93-35324,

November 2, 1993 (unpublished opinion).

Two other groups of private owners with common

title insurance companies and a “Shellfish Growers”

organization also were party.

After a first trial, the court declared the scope of the

Tribes’ rights to take shellfish. United States v. Washington,

873 F. Supp. 1422 (W.D. Wash. 1994), App. 51-94.

After a second trial, the court entered an “Order Re:

Implementation.” United States v. Washington, 898 F. Supp.

> These UPOW members are small operations and not part

of the “Shellfish Growers” association.

7

1453 (W.D. Wash. 1995), App. 95-134. An amended Judg-

ment was entered December 19, 1995. United States v.

Washington, 909 F. Supp. 787 (W.D. Wash. 1995), App.

135-144. All parties appealed to the Ninth Circuit.

B. Disposition of the Circuit Court Below.

The Ninth Circuit Panel broadly held that the Tribes

have treaty fishing rights to take 50% of clams and oys-

ters on all Washington tidelands,* including those in pri-

vate ownership.

Unlike fish, the Panel held the Tribes are not required

to prove treaty “usual and accustomed” areas where they

historically take shellfish. The entire Puget Sound and all

(state) public and private tidelands, are held subject to

these treaty claims.

On private beaches, the Tribes are authorized to enter

to conduct surveys of the clams, then enter these private

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

“time, place, and manner” restrictions. A limited excep-

tion is made for artificially cultivated beaches. App. 38.

Even though all but one tribe has a casino gambling

facility providing employment and wealth, the district

court “declines to apply the Moderate Living Doctrine

....” (App. 85) (referring to this Court’s ruling that the

treaty secures “no more than is necessary to provide

Indians a livelihood — that is to say, a moderate living”

Fishing Vessel, 443 U.S. at 686.) The Ninth Circuit also

affirmed this ruling, 157 F.3d at 652 (App. 33).

As relates to private upland owners, the decision also

allows the Tribes to establish rights to beach access over

private uplands upon a showing other access is not avail-

able (rather than requiring a showing of historical usage

for suck easements). App. 37-38.

4 However, of over 160 miles of federal beach miles, many

remain off-limits to tribal harvest, especially military bases.

8

C. Statement of Facts Relevant to Issues Presented

for Review.

In the interests of brevity and avoiding repetition, the

following includes only historical facts particularly rele-

vant to the private landowners. Additional facts are in

the concurrently filed Petition of the State, Growers, and

Adkins group.

1. Historical and Legal Background.

After President Fillmore signed the act creating the

Washington Territory in 1853, Congress extended the

terms of the Donation Land Act (9 Stat. 937) to this new

territory. That Act allowed settlers to claim 160 acres to

which they would receive title after four years contin-

uous residency. In 1854 the Preemption Land Act was also

extended to Washington Territory. That Act allowed set-

tlers to occupy and claim land before government sur-

veys with first right to buy. By the time of the first treaty

in 1854, over 329,000 acres in Washington had been sur-

veyed and by 1859 over a million and a half acres.

Isaac Stevens was appointed Governor and Terri-

torial Superintendent of Indian Affairs. Because of the

rapid influx of settlers, Governor Stevens proposed

treaties to extinguish the Indian claims:

“{PJrompt measures [should] be taken to

arrange with these Indians terms as to the pur-

chase of their lands, in order that the settle-

ments which are sure to be made in the coming

years in great numbers may meet with no hin-

derance for this cause.”

Stevens’ letter to Manypenny, December 6, 1853.

in May, 1854, George W. Manypenny, Commissioner

of the Indian Office, met with Governor Stevens in Wash-

ington, D.C. to discuss the new Government policy to

————————————Eeee

9

extinguish all Indian land claims and place them on tem-

porary reservations which would be allotted to Indians in

conjunction with measures to educate and “civilize.”

Stevens was instructed to rely upon model Indian

treaties executed under Manypenny’s direction. (Many-

penny ultimately supervised the negotiations of 43

treaties.)> The treaties were executed commencing in

December 1854 (Medicine Creek), followed by the four

others in Western Washington in 1855.

The treaties, as written by the United States, were

read and explained. The Indians then received presents

and signed. Few changes were made as evidence the

uniformity of the treaties here and general consistency

with Manypenny treaties in other parts of the Country.

(The treaty minutes are all exhibits below, Ex. No. D-64.)

2. Treaty Provisions.

Prior court attention has focused on the “fishing”

article of the treaties. In this case, other articles of the

treaties defining settlers’ rights and land ownership are

equally important.®

The first Article of each of the treaties provides:

The said tribes and bands of Indians hereby

cede, relinquish, and convey to the United States

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

and country occupied by them, bounded and

described as follows .. .

E.g., Treaty with Nisqualli, 10 Stat. 1132 (1854), emphasis

added.

5 Of the two treaties considered by this Court in Minnesota

v. Mille Lacs, No. 97-1337, argued December 2, 1998, one, the

1855 Treaty with the Chippewa, was a Manypenny treaty. The

other, the 1837 Treaty with the Chippewa, was not.

6 The whole of each treaty is reprinted in the Appendi»

App. 169-210.

10

In “consideration” of this land cession, a price was

set, and the United States made annual payments over 20

years, in varying amount.” (See, e.g., Article 4.) Each

treaty also contained an article setting aside reservations

(these reservations abutted shellfish beaches). See, e.g.,

Treaty with Nisqualli, 10 Stat. 1132 (1854), Art. 2, App.

170.

Immediately effective (even before ratification), one

article required the Indians to obtain settler consent to

remain on any occupied lands:

In the mean time it shall be lawful for them to

reside upon any land not in the actual claim and

occupation of citizens of the United States, and

upon any land claimed or occupied, if with the

permission of the owner or claimant.

See, e.g., Treaty with the Nisqualli, 10 Stat. 1132 (1854),

Art. 2, App. 170, emphasis added.

The Indians, by signing the treaty, thus agreed that a

settler’s claim or occupation (predicate to later title under

either the Preemption Land Act or Donation Act) was

exclusive. Even the Tribes’ expert admitted that such

settlers’ claims often included tidelands. The tidelands

were the connecting link to water transportation and

communication, and clams were an important food for

settlers.

The article dealing with fishing, gathering and hunt-

ing varied in number but were substantially the same:

The right of taking fish, at all usual and accus-

tomed grounds and stations is further secured

to said Indians in common with all citizens of

the Territory, and of erecting temporary houses

for the purpose of curing, together with the

privilege of hunting, gathering roots and ber-

ries, and pasturing their horses on open and

? As previously noted, the Tribes later brought ICC claims

for under-payment and received payments of full value.

11

unclaimed lands: Provided, however, That they

shall not take shell fish from any beds staked or

cultivated by citizens... .

Treaty with Nisqualli, 10 Stat. 1132 (1854), Art. 3.

Each treaty also had an article in which the Indians

expressly pledged to respect the settlers’ property, Article

8 (or 9), in the following terms:

The aforesaid tribes and bands acknowledge

their dependence on the Government of the

United States, and promise to be friendly with

all citizens thereof, and pledge themselves to com-

mit no depredations on the property of such citizens.

See, e.g., Art. 8, Treaty with Nisqualli, emphasis added.

In Fishing Vessel, 443 U.S. at 661, this Court began its

decision with the treaty purpose “[t]o extinguish the last

group of conflicting claims to lands . . . The Indians

relinquished their interest in most of the Territory in

exchange for monetary payments (and reservations)... . ”

[he dissent expanded:

The primary purpose of the six treaties negoti-

ated by Governor Stevens was to resolve grow-

ing disputes between the settlers claiming title

to land in the Washington Territory under the

Land Donation Act of 1850, 9 Stat 437, and the

Indians . . . ceded their claims to vast tracts of

land, retaining only certain specified areas as

reservations .. . By thus separating the Indians

from the settlers it was hoped that friction could

be minimized.

Fishing Vessel, 443 U.S. at 699.

The treaty was also intended to provide the Indians

with a continuing livelihood especially during a transi-

tion period. This Court majority, speaking of salmon,

held:

[T]he central principle here must be that Indian

treaty rights to a natural resource that once was

12

thoroughly and exclusively exploited by the

Indians secures so much as, but no more than, is

necessary to provide the Indians with a liveli-

hood — that is to say, a moderate living.

Fishing Vessel, 443 U.S. at 686-7.

Several articles within the treaty were to assure their

livelihood, including reservation clearing and farming

instruction. Of the native food sources available to the

Indians, salmon was the most important:

All of them shared a vital and unifying depen-

dence on anadromous fish . . . They were

heavily dependent upon anadromous fish for

their subsistence and for trade with other tribes

and later with the settlers. Anadromous fish was

the great staple of their diet and livelihood.

Fishing Vessel, 443 U.S. at 664 including n.6.

The record also shows that the Indian language and

“Chinook jargon,” through which the treaties were trans-

lated, had very different words for fish (and each species

of swimming fish) and those words for clams, oysters,

etc. (Two contemporaneous Chinook dictionaries were

G-29 a and c). The words were not even related; “shell-

fish,” as a sub-set of fish in the English language, had no

Indian or Chinook equivalent. Where fish are discussed,

it indicated salmon and steelhead, and shellfish species

are not expressly mentioned in any of the minutes of

these treaties.®

3. The UPOW Upland and Private Property

Owners; Present Day Successors in Interest

to Settlers.

The case area of Puget Sound is different from the

coast along much of the Pacific Ocean. These 2,000+ miles

8 Minutes of the unsuccessful treaty negotiations at Grays

Harbor do include several references to oysters. Richards Rep.

81-82.

13

of shoreline are relatively protected waters and include

hundreds of islands, narrow passages, and quiet coves.

Away from Washington’s cities, secluded and peaceful

beaches now host retirees and families looking to escape

from the increasingly urban Northwest. The use and

enjoyment of tidelands by such private property owners

is vital to their unique quality of life.

“UPOW” consists of such owners described by the

court as “innocent purchasers” because they had no

notice of any treaty claim for the last 140 years. Of the

over 150,000 private ownerships of tidelands or uplands

in the case area, approximately 64,000 are associated with

UPOW. Tr., May 12, 1995, at 838. App. 14.

These private property owners have enjoyed for over

a century the quiet enjoyment of that property, including

the right to invite or exclude others. The Tribes, of course,

had reciprocal rights on their originally “exclusive” reser-

vations (until much was allotted and sold.)

A real estate appraiser with expertise in waterfront

properties concluded that the Tribes’ claim, as construed

by the court below, with loss of control and 50% harvest

diminishes private real property values by up to 40 per-

cent. Tr. Vol. 11 (May 2, 1994), p. 2158 through p. 2166.

For some UPOW owners, their tidelands are an

important source of income and some have commercial

clam farm licenses. The Panel’s 50% shellfish rights make

profitable shellfish harvest unfeasible for such small

operators. Tr. May 12, 1995 at 848.

Each of the UPOW private owners has staking or

other outward indications to identify private ownership.

These range from survey stakes and rocks marking water

boundaries to signs and bulcades indicating private own-

ership. Typically, their homes are easily visible on the

uplands immediately abutting tidelands. No witness

claimed there was any confusion over the present-day

14

ownership. These private owners pay taxes on these tide-

lands and have done so for decades.

Present tideland ownership in Washington is nearly

50:50 private/public. A United States exhibit (U.S. 181)

identified 53% of the tidelands as privately owned and

47% cumulatively as Indian reservation and other federal

(approximately 167 miles) and state (880 miles). UPOW

argued below that any treaty shellfish entitlement should

come from public lands, especially reservation and fed-

eral.

REASONS FOR GRANTING THE WRIT

I. The Decision of the Ninth Circuit That Private Prop-

erty May Be Entered and Taken Conflicts with the

Decisions of this Court and the Seventh and Eighth

Circuits.

In Antoine v. Washington, 420 U.S. 194 (1975), this

Court interpreted an agreement with the Colville Tribe,

providing a similarly phrased “right to hunt and fish in

common with all other persons.” This Court noted that:

A claim of entitlement to hunt on fenced or

posted private land without prior permission of

the owner would raise serious questions not

presented in this case.

420 U.S. at 207-08 n.11.

This case presents just those questions.’ Most treaty

cases have not, because private property rights were the

very reason for the treaties. Indeed, as in Antoine, it has

often been conceded that treaty rights do not abrogate

private property rights. For example, in Oregon Dep't of

Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 755

(1985), this Court noted that the Klamath tribe “agrees

° And related questions raised by the taking of 50% of

clams since they are also private property in Washington.

15

that ceded lands now privately owned may be closed to

tribal hunting and fishing.”

The Ninth Circuit Court decision subordinating pri-

vate property rights also conflicts in principle with this

Court’s holdings that the right to exclude others from

private property is an essential attribute of property own-

ership under the U.S. constitution:

We have repeatedly held that, as to property

reserved by its owner for private use, “the right

to exclude [others is] one of the most essential

sticks in the bundle of rights that are commonly

characterized as property... .

Nollan v. Caltfornia Coastal Community, 483 U.S. 825 (1987)

(citations omitted).

in light of this constitutional property right to

exclude (and the treaty intent to protect it), the Seventh

and Eighth Circuit courts have specifically held that tribal

treaty hunting and fishing rights may not be extended to

private property. The Ninth Circuit decision conflicts

with these circuit decisions.

In one case recently argued before this Court, the

Eighth Circuit upheld a district court decision that a

treaty right generally did not authorize entry on private

property. The district court held:

[E]xercise of the 1837 usufructuary rights should

be limited to lands in the ceded territory that are

not privately owned because no right of access

was included in the privilege.

Mille Lacs Band of Chippewa Indians v. Minnesota, 861

F. Supp. 784, 837 (D. Minn. 1994).

The Eighth Circuit in Mille Lacs Band v. Minnesota, 952

F.2d 1362 (D. Minn.), aff'd 124 F.2d 904, 933-34 (8th Cir.

1997), affirmed and held that Chippewa “treaty rights

. may only be exercised on lands, public or private,

open to the general public for hunting, fishing and gath-

ering by operation of state law.” Certiorari was granted

16

on other questions June 8, 1998, and the case argued

December 2, 1998 (Minnesota v. Mille Lacs Band of Chip-

pewa Indians, No. 97-1337).

Similarly in conflict with the Ninth, the Seventh Cir-

cuit held that a Chippewa treaty right of “hunting, fish-

ing, and gathering the wild rice” does not extend to

privately owned lands. Lac Courtes Oreilles Band v. Wis-

consin, 700 F.2d 341, 365 (7th Cir. 1983), construing the

Treaty with Chippewas, July 29, 1937 (7 Stat. 536). The

Seventh Circuit was even more clear than the Eighth on

that issue: “the exercise of these rights is limited to those

portions of the ceded lands that are not privately

owned.” 700 F.3d at 365.

In a later ruling, the Seventh Circuit not only held

that the reserved rights did not extend to private lands

but rejected the Tribes’ contention that they could exer-

cise those rights on public lands which became private.

[hat tribal argument was held inconsistent with the pur

pose of the treaty, which, like the treaties here, was to

encourage settlement and private ownership:

The ceded territories were ceded for the pur-

pose of eventual settlement. Some may never be

settled but others may be, and that settlement

by going into private hands simply should not

be subject to the reserved usufructuary rights.

Lac Courtes Oreilles Band of Lake Superior Chippewa Indians

v. Wisconsin, 760 F.2d 177, 182 (7th Cir. 1985).

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

Court did hold that the Indians had a right to get to a

fishing station on the bank of the Columbia river by

means of a long recognized and established trail on pri-

vate land,!° because the Treaty “fixes in the land such

easements as enable the [fishing] right to be exercised.”

10 The case concerned language from another Stevens

treaty. Treaty with the Yakimas, 12 Stat. 951 (1855).

17

Id. at 381. This Court did not hold that the tribes had a

right across all private lands (which would have included

the whole Columbia River bank). At issue in Winans was

only one identified trail to a particular fishing station.

This Winans “easement” was later described by this

Court:

existing only where there was an habitual and

customary use of the premises, which must have

been so open and notorious during a consider-

able 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.

Seufert Bros. v. United States, 249 U.S. 194, 199 (1918),

emphasis added. The Ninth Circuit decision here that an

upland access may be created without such proof con-

flicts with this analysis.

The Ninth Circuit’s refusal to require proof of treaty

“usual and accustomed” historical usage (App. 38) also

conflicts with another decision of this Court. This Court

in United States ex rel. Charley v. McGowan, 290 U.S. 592

(1933), summarily affirmed a prior decision of the Ninth

Circuit that treaty rights do not exist where usage was

“occasional” rather than “usual” (summarily affirming

United States v. McGow. 62 F.2d 955 (9th Cir. 1933)).

In this Court, the Winans decision relied on below did

hold that Indians could not be totally deprived of salmon

by fish wheels which took the salmon before they reached

the Tribes’ fishery (and could even destroy the run). The

Court required removal of enough fish wheels to allow

part of the Columbia salmon run to return to historic

Indian fishing grounds. Winans, 198 U.S. at 384.

Thus, the Stevens treaties secured the “right to take a

share of each run of fish that passes through tribal fishing

areas.” Fishing Vessel, 443 U.S. at 679. The migratory

nature of salmon meant that, without such protection,

such fish could all be taken before the Indians got the

Ee)

opportunity to share. This is simply not true of clams. For

example, those clams on reservation beaches will surely

not be taken before tribal harvest.

[he circuit court concurring opinion also recognized

this distinction:

[he underpinning of the [Supreme] Court's

interpretation of the Stevens Treaties should not

ipply to shellfish because they are, with the

exception of crustaceans, immobile. There can

be no device that prevents the migration of

immobile shellfish to, through or from the

tribes’ usual and accustomed fishing grounds

United States v. Washington, 135 F.3d at 842.

[here is a separate point of conflict in the Ninth

Circuit holding that the salmon rulings required it to

allocate 50% of all clams, including those on private

property.

Shellfish found in privately owned land have histori-

cally been held by this Court to be the possessions of the

owner of that land:

[T]here is a plain distinction between [embed-

ded shellfish] and game birds or freely moving

tish ... Such birds and fishes are not even in the

possession of man. On the other hand, it seems

not unreasonable to say that mussels, having a

practically fixed habitat and little ability to

move, are as truly in the possession of the

owner.

McKee v. Gratz, 260 U.S. 127, 135-6 (1922) (Holmes, J., re

mussels in Missouri stream bed) [citations omitted]. See,

also, Den v. The Jersey Co., 56 U.S. 426, 432-33 (1853).

[he Washington Supreme Court cases to the same

effect are considered in the next section. They conclude as

has this court that ownership of the land includes owner-

ship of the clams. The Indians ceded all such interests in

these lands in Article 1 of each treaty.

19

These holdings provide another separate ground for

concluding all tribal claims were extinguished under

decisions of this Court because most of these Tribes were

paid in full under the Indian Claims Commission for all

previously uncompensated interests in lands (and other

claims are barred).!!

This Court has held these ICC payments included “a

tull discharge .. . of all claims and demands touching

upon any of the matters involved in the controversy. ... ”

United States v. Dann, 470 U.S. 39 (1985). See, also, Oregon

Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753

(1985). In conflict with this holding the Ninth Circuit held

‘UPOW’s argument that the Tribes’ treaty rights were

extinguished by the Indian Claims Commission Act. . . is

without merit” App. 29.

Il. The Circuit Decision Conflicts with Decisions of

the Washington State Supreme Court.

Shortly after statehood, Washington commenced sell-

ing tidelands to private owners as authorized by its con-

stitution. The amount of tidelands in “common”

ownership and usage began to diminish. This process

was accelerated by the separate lease of state tidelands.

'he question here was raised, and decided by the

Washington State Supreme Court; whether Indians had

common rights which somehow overruled the private

owner or leaseholder’s rights to exclude.

'! E.g., the Medicine Creek Treaty tribes’ judgment is

Squaxin Tribe of Indians, 34 Ind. Cl. Comm. 311 (1974); the Point

Elliott Treaty tribes’ judgment is Upper Skagit Tribe of Indians, 13

Ind. Cl. Comm. 583 (1964); and the Point No Point Treaty tribes’

judgments are Skokomish Tribe of Indians, 12 Ind. Cl. Comm.

211(a) (1963) and S’Klallam Tribe of Indians, 23 Ind. Cl. Comm.

510 (1970).

20

In Sequim Bay Canning Co. v. Bugge, 94 Pac. 922 (Wash.

1908), the Supreme Court of the State answered the ques-

tion dealing with the same Indians who requested the

1905 Indian Affairs Opinion referenced below, p. 23

(which also held the Indians’ rights did not extend to the

private leased lands).

The Washington Supreme Court held that, unlike

swimming fish, shellfish:

live, not merely upon, but actually within, the

land. They therefore, in a very material sense,

belong with the land... . It must follow there-

fore that, if the state has authority to invest one

with the private ownership of the tide lands,

such investiture must carry with it the right to

exercise dominion and ownership over what is

upon the land, and especially over things so

closely related to the soil as clams.

Id. at 131.

The Washington Supreme Court then went on to

uphold a complaint for injunction in favor of private

leaseholders, against Indians who had no right to enter or

to take the private property of the leaseholder.

Later Washington cases to the present have relied on

this venerable precedent. E.g., in Washington v. Van Vlack,

172 Pac. 563 (Wash. 1918), that court again held:

[C]lam beds may become the subject of private

ownership which passes to the grantee by a

conveyance from the state of tide lands in which

the beds are located.

Id. at 564. Twenty years later the Washington State

Supreme Court repeated:

[C]lams, because of their fixed habitation in the

soil, became the subject of private ownership

when title to the clam beds passed from the

State,

Wiegardt v. Brennan, 73 P.2d 1330, 1332 (Wash. 1937).

21

Each decision cites the holding in Sequim Bay which

remains good law in the Supreme Court of Washington,

at least until the Ninth Circuit decision here. A private

holder of the tidelands has a property right in the shell-

fish which will be protected by the Courts and the “in

common” right asserted below did not abrogate or extin-

guish such property right.

The Circuit decision conflicts on both principles.

Ill. The Ninth Circuit Holding Conflicts with Histori-

cal Understanding and With the Interpretation of

Responsible Officials

Chis Court has reiterated the need to “take note of

the contemporary historical context and subsequent con-

gressional and administrative references. .. . ” South

Dakota v. Yankton Sioux, 118 S. Ct. 789 (1998).

Important evidence, of course, is the language of the

treaty articles included-per the Commissioner’s instruc-

tions (and model treaty), and the understanding of the

lerritorial Governor, all cited above. These are probative

of the official understanding at the time and reflect the

understanding that all Indian claims to the land were

extinguished in order that settlers would acquire full and

exclusive property rights.

As the “contemporaneous view of the Executive Offi-

cer responsible for administering the statute,” this under-

standing is “entitled to very great respect.” Mountain States

Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 254

(1985). Accord Watt v. Alaska, 451 U.S. 259, 272-273 (1981).

The historical understanding there were no treaty

rights to private lands may also be proven by considering

the later conclusion of public officials, including the

Commissioner of Indian Affairs. These were consistent in

reflecting the understanding that the treaty right did not

abrogate ownership of private tidelands (even including

those leased).

22

The most important is from the Commissioner of

Indian Affairs, since this was the administrative agency

with direct authority over the subject area. The Commis-

sioner in a letter opinion rejected the Indian claim to go

on state tidelands which had been leased:

[A]s the tide lands to which you refer are not

embraced within the boundaries of an Indian

reservation, it is the opinion of this office that

such lands are under the control and jurisdiction

of the State; that the Indians should not be per-

mitted to trespass upon the tideland leased from

the State; that in case they desire special privi-

leges as to the digging of clams from the tide-

lands referred to, it will be necessary for them to

lease the same from the State of Washington.

Indian Commissioner to Liston (Indian Agency), March

20, 1905, at 1-2 (App. 211-213). The Washington Supreme

Court reached the same conclusion in Sequim Bay, supra

(dealing with the same Indians’ claims).

The Indian agent in Washington was later asked a

similar question, and confirmed that owners of land at

the mouth of the Dungeness River were “within their

rights” to exclude Indians from private tidelands. Taylor

to Superintendent Commissioner Wilson (June 16, 1916),

Ex. PL-367.

Coming from the federal agency charged with over-

seeing these Indian affairs, these interpretations are enti-

tled to “considerable deference.” Andrus v. Idaho, 445 U.S.

715, 729 (1980). Accord National R.R. Passenger Corp. v.

Boston & Main Corp., 503 U.S. 407, 417 (1992). Ironically, it

continues to be the United States position that treaty

indians may be excluded from federal beaches.

The pattern of treaty understanding continued into

the Twentieth Century. Many Indians leased and pur-

chased tidelands from the State, Ex. D-473; Ex. PL-341 at

105 (“a number of the original applicants for oyster lands

titles were Indians”). The district court found that “some

23

individual members of the plaintiff tribes purchased tide-

lands. ...” App. 77.12

On May 27, 1936, the Director of Fisheries advised

Indians with respect to digging claims that “[o]ff your

reservation, you are subject to the same laws that govern

the white people.” Ex. PL-400.

A Department of Fisheries Memorandum dated May

22, 1950, notes the Tulalip Indians’ request for permits to

dig clams off-reservation: “they would appreciate this

favor if granted.” Ex. PL-425.

In answer to a U.S. Senator’s inquiry, the State sim-

ilarly responded that a Suquamish Indian could request

permission to dig clams on government tidelands. (Mabe

to Sen. Magnuson (November 3, 1959), Ex. D-141.

The private landowners’ present interpretation is

confirmed by this “practical construction adopted by the

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

431-32 (1943), and conflicts with that of the Circuit Court.

The Circuit not only declined to accord the Indian

Commissioner and other officials’ interpretation any defer-

ence, it completely ignored them. This is probably because

the United States has now taken a different position, to

support the Tribes. Still, the United States’ position was to

the contrary for 140 years and was relied upon.

The conflict between the Circuit and these interpreta-

tions provides an alternative reason to grant the writ. See

Morton v. Ruiz, 415 U.S. 199, 201-202 (1974) (“We granted

certiorari because of the significance of the issue and

because of the vigorous assertion that the judgment of the

Court of Appeals was inconsistent with long-established

policy of the Secretary [of DOI]”); see, also, Williams v. Lee,

358 U.S. 217, 218 (1959) (certiorari granted because lower

court decision “was a doubtful determination of the

important question of state power over Indian affairs”).

'? These Indian private owners are presumably subject to

the impacts of the decision below. See concurring Opinion, App.

45.

24

[V. The Ninth Circuit Applied the Wrong Standard of

Review In Conflict with Decisions of this Court

and the Eighth and Tenth Circuits

he standard of review relied on by the Ninth Circuit

both when upholding the district court interpretation of

treaty intent and that court’s “declining” to apply this

Court’s “moderate living standard” was the same

the wrong — standard

[W]e have previously reviewed a district court

findings of parties’ intent in entering Indian

Ireaties “[u]nder the highly deferential clea

error standard.” See, e.g., Confederated Tribe:

Chehalis Indian Reservation v. Washington, 96 F.2d

34, 343 (9th Cir. 1997), cert. denied, 117 S. Ct

4

14°39 (1997)

We therefore review for clear erro!

of the district court’s findings of historic.

. lA/p7 17370 ’ 07 ; a )

STATES VVQS/ILTi [ I] L5 I sd at 642 Apr

After stating the district court’s findings re: mode1

the Ninth Circuit similarly held

This finding ts not clearly erroneous. (n. 11

1] we [are] not left with “definite and firn

conviction” that the district court’s finding

were erroneous

at 652, emphasis added, App. 33

More important, the standard of review conflicts witl

the correct standard applied in other circuits. In 1990, th

fenth Circuit described at length the correct de novo stan

dard and explained the reasons:

[he Supreme Court has issued a number of

pronouncements to guide lower court inter

pretations of statutes and EOs [Executive

The case cited by the Ninth Circuit Panel here, Chehalis

. . > . } ] ] . 3172 ] ,

was not even a treaty case but dealt with an Executive orde:

reservation

25

Orders] affecting the status of Indian reserva-

tions... . In the above cases the Supreme Court

has applied without comment a de novo standard

of review in determining congressional intent-

. The ascertainment of congressional intent is

a matter of statutory construction, which typ-

ically involves a de novo review. To the extent

that statutory construction turns on a historical

record, however, it involves a mixed question of

law and fact. Where a mixed question “primar

ily involves the consideration of legal principles,

then a de novo review by the appellate court is

appropriate.” Supre v. Ricketts, 792 F.2d 958, 961

(10th Cir. 1986). Such is the case here, where key

district court legal conclusions, e.g., the need for

explicit language mentioning boundary reduc

tion or evidence of cession and compensation

rest on an erroneous view of the law.” Pullman

Standard v. Swint, 456 U.S. 273, 287, 102 S. Ct

1781, 1789, 72 L. Ed. 2d 66 (1982)

ttsburg & Midway Coal Min. Co. v. Yazzie, 909 F.2d 1

1383-1394 (10th Cir. 1990), cert. denied, 498 U.S. ]

(1990). (Footnote omitted.)

[he Eighth Circuit has also held that the appropria

standard of review is de novo:

Mixed questions of law and fact that require the

consideration of legal concepts and involve the

exercise of judgment about the values underly

ing legal principles are reviewable de novo.

[citations omitted] Because our decision is pre-

dominantly one of determining whether the

established facts fall within the relevant legal

definition, albeit a constitutional definition, we

apply a de novo standard of review. Id. at

1201-03.

Fails v. Nesbitt, 966 F.2d 375, 377 (8th Cir. 1992).

The importance of the standard applied cannot be

I + - IA/slAl; > _ , oa hie

overstated. Oregon Vep t risn é& Wildlife 7 Klamath

2¢

_

5

U.S. 753 (1985), would have been differently decided since

the district court made the same kind of findings as here.

[his Court’s recent review in Yankton Sioux, supra, reflects

the same de novo review standard.

V. The Ninth Circuit’s Opinion Presents Issues of

“Grave Constitutional Dimension” and “Excep-

tional Public Importance.”

The Ninth Circuit decision holds that a treaty fishing

provision extinguishes the private property rights to

exclude others - and allows the taking of 50% of the

resources. To implement this, the court has approved a

complicated scheme for management under the continu-

ing jurisdiction of the federal district court.

The court’s decision carves out an area of over 2,000

miles of tidelands and over two million acres in which

not only private property rights are largely suspended

but state conservation law is displaced by injunction. On

private beaches, the Tribes manage their commercial har-

vest to take 50% - first “surveying” the clams, then

regulating the harvesters.

On the public beaches, including parks on which oys-

ters and clams are planted for recreational use, tribal

commercial clamming will take 50% of the harvest

extending through closed seasons (and violating limits).

Adding to this perceived inequity, state license fees and

taxes pay the state’s costs to plant, and conserve this

resource.

The geographic magnitude alone is a compelling rea-

son to grant the writ. In Andrus v. Utah, 446 U.S. 500, 506

(1980), for example, this Court explained that it granted

certiorari “[b]ecause the dispute between the parties

involves a significant issue regarding the disposition of

vast amounts of public lands.” The area involved in that

case comprised some 571,000 acres, id. at 506, n. 6; consid-

erably less than the over 2 million (2,000,000) acres of

ow

tidelands involved in this case. See, also, Andrus v. Idaho,

445 U.S. 715, 722 (1980) (Certiorari granted to resolve

status of “some 2.4 million acres of desert land within

Idaho.” This was a comparable area.)

In addition to the geographic scope of this case, its

jurisdictional significance makes it especially important.

State and tribal authority over the lands and waters is

dramatically changed. Within this area, 20 different tribes

authorize thousands of members shellfish gathering of

half the natural resources, displacing state police power.’*

Finally, the decision forces conservation back into the

Nineteenth Century by approving such practices as com-

mercial clamming on parks and small residential beaches.

It is very doubtful that other citizens’ 50% share will

ictually be harvestable after concentrated commercial

harvest has finished. If error is made in “survey” deter-

mination of clam populations, these natural resources,

and their shared use, enjoyment and conservation by all

citizens, will suffer because of this double harvest. That is

a matter of exceptional public importance.

VI. The Circuit Court Has Disregarded this Court’s

Earlier Decision By Extending the Treaty Right

Even Though The Tribes Have Achieved A “Mode-

rate Living.”

[This Court held:

[T]he central principle here must be that Indian

treaty rights to a natural resource that once was

thoroughly and exclusively exploited by the

Indians secures so much as, but no mere than, is

necessary to provide Indians with a livelihood

that is to say, a moderate living.

Fishing Vessel, 443 U.S. at 686-687, emphasis added

14 The court even approved tribal regulation of health

matters for tribal commercial clamming (over UPOW's

objection).

28

The district court “decline[d] to apply the Moderate

Living Doctrine” (App. 85) based on conclusory state-

ments about Indian financial status statewide (relying on

a source 20 years out of date). United States v. Washington,

873 F. Supp. at 1446, App. 86. The Circuit Court affirmed,

applying the wrong “clearly erroneous” standard. The

circuit court indicated in a footnote that even if the

Tribes’ casinos were considered, it would make no differ-

ence. (157 F.3d at 652, App. 33). The actual data, including

casino profits, were dramatically to the contrary.

An Economic Expert Professor applied a definition

of “moderate income” from federal law, 42 U.S.C.

§ 5302(20)(A), and provided empirical measures of the

economic resources of the Tribes. Under this federal defi-

nition, the record shows that each tribe already possesses

economic resources that exceed that required for a “mod-

erate living.”

For example, as of trial, the 1992 annual “net win” of

one tribal casino (Tulalip) was $12 million. Testimony of

Gambling Commission Tolton (December 17, 1993) p. 53.

This casino net win alone, if distributed per capita to that

tribe’s households,'!° would have added $23,730 per

household, resulting in average tribal income exceeding

that of other residents (the standard under the federal

statutory definition cited above).

All but one of these Tribes now have casino gambling

compacts and operate gambling casinos.!© There has been

15 The Indian Gambling Regulatory Act at 25 U.S.C.

§ 2710(b)(3) and (d)(A)(ii) authorizes per capita distribution of

casino profits.

16 Federal Register notices of compact approval are found

at 58 Fed. Reg. 9212 (Lower Elwha) and 60 Fed. Reg. 15194

(Jamestown), 16764 (Suquamish, Swinomish and Tulalip), 18704

(Nooksack and Port Gamble), 19822 (Squaxin), 26810 (Upper

Skagit), 43512 (Muckleshoot), 46490 (Skokomish), 52409

(Quileute), and 65064 (Lummi).

29

rapid growth in popularity and profitability of these

Indian casinos documented below by state public records

of casino revenues.

These Tribes have not, do not, and will not rely on

shellfish to obtain a moderate living. Their livelihood is

being fulfilled by “other sources of support.” Fishing

Vessel, 443 U.S. at 687. Since the moderate living has been

exceeded, extending tribal claims to privately-owned

resources on private lands is not justified.

The contrary conclusion of the court below is clearly

in error. The reason for granting the writ, however, is the

court’s refusal to follow this Court’s decision and man-

date.

It is often stated that the decision of an appellate

court on an issue of law becomes the law of the

case on remand. .. . In this situation the aistrict

court owes obedience to the mandate of the

Supreme Court or the court of appeals and must

carry it into effect according to its terms. It can

be compelled to do so by mandamus, or by a

second appeal.

IB James W. Moore & Jo Desha Lucas, Moore’s Federal

Practice J 0.404[10], at II-58-II-60 (2d ed. rev. 1993).

30

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be granted.

Respectfully submitted,

James MartIN JOHNSON

Counsel of Record

1110 S. Capitol Way

Suite 225

Olympia, WA 98501

(360) 357-3104

Counsel for Petitioners 26

Tideland and Upland Private

Property Owners (UPOW)