Petition for Writ of Certiorari — Washington v. United States

Supreme Court, U.S.

FILED

No. 981052 DEC 2 2198

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1998

.

LARRY B. AND SHIRLEE ALEXANDER, et al. and

WILLIAM AND CHARMOND ADKINS, et al.

Petitioners,

v.

UNITED STATES OF AMERICA, et al.

Respondents.

e

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

4

PETITION FOR WRIT OF CERTIORARI

+

Howard M. Goodfriend

Counsel of Record

Malcolm L. Edwards

EDWARDS, SIEH, SMITH & GOODFRIEND

701 Fifth Avenue, Suite 7170

Seattle, WA 98104

(206) 624-0974

Attorneys for Petitioners Alexander, et al.

Enc Richter

HENKE & RICHTER

221 First Ave. W., Suite 215

Seattle, WA 98119

(206) 282-2911

Attorneys for Petitioners Adkins, et al.

aBCD Legal Printers. Seattle. Washington

i

QUESTIONS PRESENTED

In 1855, the respondent Indian tribes entered into five

treaties with the United States, agreeing to cede their aboriginal

lands in western Washington Territory for settlement. The

treaties secured to the Tribes the “nght of taking fish at all usual

and accustomed grounds and stations . . . in common with all

citizens of the Territory.” The Tribes’ nght to take shellfish

was limited by a specific proviso: “provided, however, that they

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

citizens.” Since joining the Union in 1889, the State of

Washington, with the consent of the United States and without

objection from the Tribes, has sold approximately half of its

tidelands. These private tidelands are now owned by thousands

of individuals, most of whom also own and occupy the

adjoining upland property.

l Does the treaty “right to take fish . . . in common

with all citizens” grant to western Washington Indian tribes the

right to enter on and harvest shellfish from thousands of parcels

of privately owned tidelands that were conveyed in fee by the

State of Washington?

2. By posting their property to exclude others do

private owners “stake” tidelands within the meaning of the

treaty proviso prohibiting Indian tribes from taking “shell-fish

from any beds staked or cultivated by citizens”?

PARTIES TO THE PROCEEDINGS

Petitioners, intervenor-defendants and appellants below,

consist of two separate groups of private property owners in the

State of Washington:

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

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

and Jeanette Chase, Mrs. Frances A. Fellows,

George L. Grader, Earl D. and Millicent Ann

Hunsperger, Edward B. and Eleanor J. Krenz, H.J.

Merrick, Gordon W. Moss, Sewall L and Emma M.

Reynolds, John D. Riach, Alva Hazel B. Robb,

Irene D. Smith and Providence Worley.

b. William and Charmond Adkins, Grace Boyd, Pierce

W. and May H. Davis, Ms. Rosemary Duncan,

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

William and Jo Ann Kirsh, David A. Mitchell, Mr.

Louis Nawrot, Robert and Sandra Stevenson, and

Boon Ho Woo.

Petitioners are collectively referred to as “Private Owners.”

Respondents, defendants-appellants below, are the State

of Washington, the Puget Sound Shellfish Growers Association

(“Growers”’), consisting of:

Taylor United, Inc.; Olympia Oyster Company;

J&G Gunstone Claims, Inc.; G.R. Clam & Oyster

Farm; Cedric E. Lindsay; Minterbrook Oyster

Company; Charles and Willa Murray; Skookum

Bay Oyster Company, and

26 Tideland and Upland Owners (UPOW),:

Dan Buehler, Robert L. Davis, Bruce I. Fielding,

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

Commander John C. James, Richard Sayre Koch,

Elaine C. Lefler, Joan Lemonds-Roush, John S.

lil

Lewis, Steven L. Luke, Edwards R. McMillan,

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

Price, Ray D. Randall, Cynthia Rasmussen, Robert

G. Shanks, Axel Strakejahn, Leana Tracy, Stuart

W. Turner, George B. Usnick, Lee S. Vincent,

Joan Walker, and William E. Whitney, Jr

Respondents, plaintiffs and appellees/cross-appellants

below, are the United States of America and the following

Indian tribes in western Washington State (“Tribes”):

Muckleshoot Tribe, Noosack Tribe, Upper Skagit

Tribe, Szuaxin Island Tribe, Lummi Indian Tribe,

Makah Tribe, Tualip Tribe, Swinomish Indian

Tribal Community, Quileute Indian Tribe, Puyallup

Tribe, Hoh Indian Tnbe, Suquamish Tnibe,

Suquamish Tnbe, Quinault Indian Nation,

Confederated Tnbes & Bands of the Yakima Indian

Nation, Nisqually Indian Tribe, Jamestown Tribe,

Lower Elwha Klallam Tribe, Port Gamble Bands,

Skokomish Tribe, Sauk-Suiattle Tribe,

Stillaguamish Tribe

iV

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI ............ ]

OPINIONS AND JUDGMENTS BELOW ............ l

SO RENN 2 ee Ah nin tr ene ]

TREATY PROVISIONS INVOLVED ............... l

SLATEMEING OF Bem GAG. on ieee eens 2

A. The Puget Sound Treaties Were Negotiated

By The United States To _ Foster

Development Of Cities, Tidelands And

Farms, And To Forever Settle All Indian

Claims To The Territory.................. 2

B. The Treaty Negotiations Reflect The Tribes’

Understanding That Private Property

Differed From Unclaimed Or Common

Lands, And That The Settlers Marked Their

Property With Stakes To Exclude Others. .... 4

C. The Treaties Were Interpreted In The Years

Following Their Ratification To Allow

Indians Continued Access To Traditional

Salmon Fishing Grounds And To Limit To

Unclaimed Tidelands Their Right To Gather

| re a ee Te ae 5

D. The Lower Court Rulings ................ 6

REASONS FOR GRANTING THE WRIT ........... 10

A. The Court Of Appeals’ Decision Is An

Unprecedented Extension Of Tribal

Usufructuary Rights To Privately Owned

Property That Is Unnecessary To Preserve

The Tribes’ Meaningful Access To

RO Wilskaeree ae e 12

Vv

1. The Treaty Right to Take Fish “In

Common With” Citizens Does Not

Extend To Shellfish On The Private

Cmte SG ces a eee ee oes 12

Access To Privately Owned Tidelands

Is Not Supported By This Court’s

Precedent And Is Not Necessary To

Secure To The Tribes Meaningful

Access To A Stationary Resource

Found On Public And Reservation

Tey 8.4 ee 4 + ee ee 15

B. The Shellfish Proviso, Which Prevents The

Tribes From Taking Shellfish From “Any

Beds Staked Or Cultivated By Citizens,”

Prohibits Indians From Harvesting Shellfish

On Tidelands Posted By Private Owners To

po, MR ee hee Ee ies 20

1. The Treaty Drafters Did Not Intend

To Limit The Future State’s Ability To

Establish Private Property Rights In

Tidelands Under The Equal Footing

DORR. SS A ee eee 20

2. The Treaty Drafters Used The Term

“Staked” To Prohibit Shellfish

Harvesting On Tidelands Marked And

Claimed Exclusively By Settlers. ..... 23

N

o>)

The Ninth Circuit Improperly Treats

The Meaning Of Treaty Language As

A Question of Historical Fact

Reviewed For Clear Error, Rather

Than A Question Of Law That Is

Reviewed De Novo................ 26

C. The Tribes’ Claim To Enter On Private

Tidelands Is Barred By Laches............ 27

vi

TABLE OF AUTHORITIES

FEDERAL DECISIONS

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

Choctaw Nation of Indians v. United States,

POP A GOP UED «sb ence haspekuhaxs.

Den ex. dem. Russell v. Association of the

Jersey Co., 56 U.S. (15 How.) 426 (1853) ..

Department of Game of Washington Game

v. Puyallup Tribe, 414 U.S. 44 (1973) .....

Eastern Airlines, Inc. v Floyd, 499 U.S. 530

DENN 5 cys 8 ok Ne ee ee

Hardin v. Lordan, 140 U.S. 371 (1891) ......

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

261, 117S. Ct. 2028 (1997) .............

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Voigt, 700 F.2d 341

Se SOEs cc wk ee eae ee

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Wisconsin, 760 F.2d

RTF Cr BND oi eee woes eee ts

McKee v. Gratz, 260 U.S. 127(1922) .......

Mille Lacs Band of Chippewa Indians v.

Minnesota, 952 F. Supp. 1362 (D. Minn.),

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

granted, U.S. ___ (1998) (No. 97-1337) ...

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

Some os hee ee eee

Nollan v. California Coastal Commission,

eS. MEO REPOS hoi i sk Gude

O’Connor v. United States, 479 U.S. 27 (1986)

Vii

Oliphant v. Suquamish Indian Tribe, 435 U.S.

Ere Ce a eS ee ee ee eames 25

Oregon Department of Fish and Wildlife v.

Klamath Indian Tribe, 473 U.S. 753 (1985) ........ 13

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.)

fA Bes rt ee a 3, 21

Port of Seattle v. Oregon & Washington

ieee . 2ee te Oe tae) se ees ee ee 7a

Puyallup Tribe v. Department of Game of

Washington, 391 U.S. 392 (1968) ............. a

Puyallup Tribe v. Department of Game

of Washington, 433 U.S. 165 (1977) ............. 1]

Seufert Brothers Co. v United States, 249

Eo Gein atin ty re Oe aI ate ange 11, 16, 17

Shively v. Bowlby, 152 U.S. 1 (1894) .......... c Pa 5 We -

Tulee v. Washington, 315 U.S. 681 (1941) .......... 1]

United States v. Alaska, 521 U.S. 1,

Seg Mf Sk.) a gaara arene aa

United States v. Choctaw Nation,

Ee Ae Oe LS a aha al Oa PR eae et 24

United States v. Mission Rock Co., 189 U.S.

ES se he BO hea re 3

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

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

(9th Cir. 1975), aff'd sub nom., Washington v.

Washington State Commercial Passenger

Fishing Vessel Association, 443 U.S. 658

Lg: SEES SEE se Pe ee Pe en ee ere 9

t

‘

|

3

Vili

United States v. 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 rehg,

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

78 Sah SE EE kak ek cee He een es 4

United States v. Winans, 198 U.S. 371

PURER ou cae eae ale a 11, 15-17, 22

Utah Division of State Lands v. United

Staten, 462 U.S. 193 (1967)... cee 20, 21

Ward v. Race Horse, 163 U.S. 504 (1896) ........... 23

Washington v. Washington State

Commercial Passenger Fishing

Vessel Association, 443 U.S. 658

Te, Meee) Nal et I we 3, 11, 17, 19, 24, 26

Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100 (1969) .............. 27

Zicherman v. Korean Air Lines Co., Ltd.,

SUS te. Bae CP ice tas es ee 26

WASHINGTON DECISIONS

Eisenbach v. Hatfield, 2 Wash. 236, 26 P.

Se LONER x es chee eke Cea eee ane Saas 7

Sequim Bay Canning Co. v. Bugge, 49

Wok. 127, BEF. Waa paces cannes 8

FEDERAL STATUTES

BOSE © PG os i a ee ee As coe ett ]

Treaty with Chippewas, 7 Stat. 536 (1837) ........... 14

Treaty of Medicine Creek, 10 Stat. 1132 (1855) ........ 1

Treaty of Point Elliott, 12 Stat. 927 (1859) ..... 1, 7, 8, 14

Treaty of Point No Point, 12 Stat. 933 (1859) ......... 1

ix

Treaty of Neah Bay, 12 Stat. 939(1859) ............. 2

Treaty of Olympia, 12 Stat. 971 (1859) .............. 2

WASHINGTON CONSTITUTION

Wem, Gee OF es OE kc fe ep eee eee 7

WASHINGTON STATUTES

WO: LE Te in es 7,8

Wash. Laws 1895, ch. 178, §§ 54 and62 ............. 7

Wash. Laws 1971, Ist Ex. Sess. ch. 217, §2 at 994 ...... 8

TERRITORIAL STATUTES

Session Laws of the Territory of Washington

FOE ee ie Je on eee ee ea aes 6

(This Page Intentionally Left Blank)

l

PETITION FOR WRIT OF CERTIORARI

The petitioners, private owners of tidelands and adjacent

upland property, ask this Court to issue a writ of certiorari to

review the judgment of the Court of Appeals for the Ninth

Circuit described below.

OPINIONS AND JUDGMENTS BELOW

The Ninth Circuit’s opinion was initially filed on January

28, 1998. The Ninth Circuit amended its opinion and denied

rehearing en banc on September 25, 1998. App. 1, reported at

157 F.3d 630. That opinion affirmed the decision of the district

court for the Western District of Washington reported at 873 F.

Supp. 1422, App. 51, and affirmed in part and reversed in part

the district court’s decision reported at 898 F. Supp. 1453 and

909 F. Supp. 787, App. 95, 135.’

JURISDICTION

The Court of Appeals entered its final judgment on

September 25, 1998. This Court has jurisdiction under 28

U.S.C. § 1254(1).

TREATY PROVISIONS INVOLVED

Treaty of Medicine Creek, 10 Stat. 1132 (1855), App.

169; Treaty of Point Elliott, 12 Stat. 927 (1859), App. 177;

Treaty of Point No Point, 12 Stat. 933 (1859), App. 187;

Treaty of Neah Bay, 12 Stat. 939 (1859), App. 195 and the

Treaty of Olympia, 12 Stat. 971 (1859), App. 203.

‘Appendix citations are to the joint appendix filed by the State of

Washington in this case and the companion cases of Washington v.

United States, No. 98- , Puget Sound Shellfish Growers v.

United States, No. 98- and 26 Tideland and Upland Private

Property Owners (““UPOW”) v. United States,No.98-_—___

nN

STATEMENT OF THE CASE.

This dispute arises from the Tnbes’ asserted right to enter

upon and take shellfish from tidelands conveyed to private

individuals in fee by the State of Washington. Under five

treaties negotiated with the United States in 1855, the

respondent Tribes ceded their aboriginal lands in western

Washington Territory for settlement. The treaties secured to

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

grounds and stations ... . in common with all citizens of the

Territory... .” That mght to take shellfish, however, was

limited by this proviso: “Provided, however, that they shall not

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

The courts below held that the nght to take fish “in common

with” all citizens allows Indians to harvest shellfish on private

tidelands from which the general public is excluded and that this

right is not limited by the treaty language prohibiting Indians

from harvesting shellfish from “any beds staked or cultivated by

citizens.”

Today, 53 percent of the tidelands in the treaty area are

privately owned. The remainder are owned by the State, the

United States, and the Tnbes. Ex. US-181.

A. The Puget Sound Treaties Were Negotiated By The

United States To Foster Development Of Cities,

Tidelands And Farms, And To Forever Settle All

Indian Claims To The Territory.

The treaties at issue were negotiated in late 1854 and

1855 by a treaty commission led by Washington territorial

governor Isaac Stevens. Stevens was eager to conclude treaties

with the Puget Sound Indians because he believed, as did the

3

Indians, that the region would soon be overwhelmed by a tide

of settlers. App. 68, 70; Ex. D-046; see Washington v.

Washington State Commercial Passenger Fishing Vessel

Ass’n, 443 U.S. 658, 661 (1979) (treaties executed “[t]o

extinguish the last group of conflicting claims to land lying west

of the Cascade Mountains and north of the Columbia

River. . .”).

At treaty time, virtually all the commercial life of the

Puget Sound settlements was carried out on the tidelands. The

inland terrain was steep and forested and settlement was

clustered along the shoreline of Puget Sound, in sheltered bays

and inlets. Transcript 239. The bays where settlements grew

were, coincidentally, the places where shellfish naturally thrived.

Transcript 239; Ex. D-036 at 74. Aided by the federal

government, developments of mills, homes and shipyards took

over large areas of these tidelands, prohibiting the harvesting of

shellfish beds. App. 71-72.

In the 1850's, as now, states had the undisputed night to

convey complete ownership in their tidelands and to shellfish

beds located in tidelands. Transcript 305-307; see Shively v.

Bowlby, 152 U.S. 1, 26 (1894); Pollard’s Lessee v. Hagan, 44

U.S. (3 How.) 212 (1845). States regularly conveyed tidelands,

particularly in urban areas such as Sar Francisco Bay, where

California granted the shoreland bed to San Francisco to plat

and sell as part of that city. Ex. D-041; D-467 at 57, discussed

in United States v. Mission Rock Co., 189 U.S. 391, 406-07

(1903). In 1854, Stevens similarly encouraged Washington

settlers to take up claims along the tidelands before planned

donation land surveys, in order to better secure their ability to

4

obtain title from the future state. Ex. D-467 at 95; Transcript

519.

B. The Treaty Negotiations Reflect The Tribes’

Understanding That Private Property Differed From

Unclaimed Or Common Lands, And That The

Settlers Marked Their Property With Stakes To

Exclude Others.

The Tribes had well-developed concepts of property

ownership even before the arrival of settlers. Transcript 454.

In an earlier case interpreting these treaties, the district court

recognized that the Tribes distinguished between the ownership

of land and the sedentary resources it contained, such as

shellfish, and migratory resources such as fin fish or animals:

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 night 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 property of the tribe within

whose territory they were located.

United States v. 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 reh’g, 759 F.2d 1353 (9th Cir. 1985), cert.

denied, 474 U.S. 994 (1985).

The Indians also understood the settlers’ notion of private

property as the nght to exclude others from land and the

resources on it, even from areas that the Tribes traditionally had

used for hunting, gathering or shellfishing. Ex. D-064 at 345-

i iit chs a

5

46, 358, 443; Ex. D-473 at 50-51. One of the largest sawmills

in the territory, established in 1854, excluded Indians from a

traditional shellfish gathering site. Transcript 438.

The treaty Tribes thus understood thai their ancestral

lands were being taken over by settlers. In the treaty

negotiations they sought to secure a permanent and exclusive

home and a steady livelihood. Treaty discussions reflected the

Indians’ understanding that private property, including their

own reservations, would be surveyed and marked by stakes, and

that a deed or paper would be proof of ownership against third

parties. Transcript 272, 453-54; Ex. D-064 at 364, 440-41.

Tu-heh-uk, the Chehalis chief, told Governor Stevens, “I want

a paper showing the bounds of the reserve. So that when a

white man took it, I could show him. I want a place where

whites could not settle.” Ex. D-064 at 358.

C. The Treaties Were Interpreted In The Years

Following Their Ratification To Allow Indians

Continued Access To Traditional Salmon Fishing

Grounds And To Limit To Unclaimed Tidelands

Their Right To Gather Shellfish.

The five treaties negotiated by Stevens and the respondent

Tribes provided for the survey and establishment of tribal

reservations “for their exclusive use,” allowing tribal members

to live on “any land not in the actual claim and occupation of

citizens” for only one year following ratification. See, e.g.,

App. 196 (Treaty of Neah Bay). The Tribes received annuity

payments for their ceded lands, as well as free schooling,

medical care and training in trades. See, e.g., App. 179-82

(Treaty of Point Elliott). Each treaty expressly allowed both the

settlers and the Indians to own private property. The Indians

6

also had the right to fish in common with citizens, and to hunt

and gather on open and unclaimed lands:

The night of taking fish, at all usual and accustomed

grounds and stations, is further secured to said

Indians in common with all citizens of the

Territory, and of erecting temporary houses for the

purpose of curing, together with the privilege of

hunting, gathering roots and berries, and pasturing

their horses on open and unclaimed lands:

Provided, however, That they shall not take shell-

fish from any beds staked or cultivated by citizens,

and that they shall alter all stallions not intended for

breeding horses, and shall keep up and confine the

latter.

See, e.g., App. 170 (Treaty of Medicine Creek).

Spurred by major federal harbor developments and

support for completion of a transcontinental railroad, after

treaty ratification the cities of Seattle, Tacoma, Bellingham and

Port Townsend grew on tidelands containing shellfish beds

which had been used by local tribes. Ex. D-470 at 19-28. In

1864, the territorial Legislature granted to commercial shellfish

growers exclusive nights in natural oyster beds in southern

Puget Sound. App. 63 n.11, Transcript 1936-37. By 1879,

legislation gave citizens the nght to claim up to ten acres of any

newly discovered oyster beds. Session Laws of the Territory of

Washington 118-20 (1879).

On November 1, 1889, Washington entered the Union

“on an equal footing with the original States.” App. 149. In its

constitution, the new state claimed ownership of “the beds and

shores of all navigable waters... .” Wash. Const. art. XVII, §

1, App. 152. The Legislature soon passed laws authorizing the

7

sale of tidelands “for commerce, trade or business.” Wash.

Laws 1895, ch. 178, §§ 54 and 62; Wash. Laws 1889-90 at

431. In its first session the Washington Supreme Court

affirmed 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); see also Port of Seattle v. Oregon &

Washington R.R. Co., 255 U.S. 56, 65 (1921) (recounting

history of tideland development and noting that state was

authorized to sell tracts of tidelands).

Consistent with Governor Stevens’ promises, the treaties

were, from the outset, interpreted as allowing the Indians to

“hunt, fish and gather berries wherever they choose provided

they do not interfere with private claims.” Ex. D-090 (1867

letter from Superintendent of Indian Affairs). Thus, the United

States in 1887 enforced the Tribes’ rights against settlers who

attempted to exclude Indians fishing for salmon or from

traditional shellfishing grounds where the settlers had no

exclusive nights. Ex. CA-001. But tidelands claimed

exclusively by non-Indians were off limits to tribal shellfishing.

The Tribes understood that they permanently lost their access

to shellfish beds when settlers exercised their right to stake or

cultivate such beds. Transcript at 431-34.

In 1905, the Commissioner of Indian Affairs ruled that the

Treaty of Point Elliott, 12 Stat. 927, did not prevent the state of

Washington from granting a lessee of its tidelands the right to

exclude Indians (along with all others) from taking clams, even

though “the clam beds in question have never been cultivated.”

8

App. 212. Three years later, the Washington Supreme Court

similarly held that the same state lessees could enjoin all

persons, including Indians, from taking clams from the leased

tidelands because, unlike fin fish, the clams “live, not merely

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

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

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

The state’s program to plat and sell tidelands continued

from the year after Washington entered the Union, Wash. Laws

1889-90 at 431, until 1971, when the Washington Legislature

repealed the statutes authorizing tideland sales. Wash. Laws

1971, lst Ex. Sess. ch. 217, §2 at 994. Today, thousands of

upland owners on Puget Sound’s inlets and coves own adjacent

tidelands, that are, quite literally, their backyards. The district

court found that these petitioners took title without any notice

of the Tribes’ treaty claims, which were first asserted in 1989:

The 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. Their belief was

reinforced by the Tribes’ failure to formally assert

the Treaty right until over 100 years after the

Stevens Treaties were signed.

App. 97.

9

D. The Lower Court Rulings.

This case was brought in 1989 by the United States and

plaintiff Tribes against the State of Washington as a

subproceeding to the 1970 fishing rights case. See United

States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)

(“Washington I’), aff'd, 520 F.2d 676 (9th Cir. 1975)

(“Washington II’), aff'd sub nom., Washington ¥y.

Washington State Commercial Passenger Fishing Vessel

Ass’n, 443 U.S. 658 (1979) (“Fishing Vessel’). Petitioners,

who are only a few of the thousands of individuals who own

residential property that includes tidelands conveyed to them in

fee, became defendants after seeking intervention. Docket

11623, 13561, 13668.

In bifurcated proceedings, the district court first entered

an order declaring that the treaties secured to the Tribes the

right to take 50 percent of the naturally occurring shellfish on

both public and private tidelands. App. 51-93. In the second

phase, the district court entered an implementation order. App.

95-134. This order authorized the Tribes to determine the

quantity of available shellfish for harvesting by surveying any

Private Owners’ tidelands for shellfish following notice to the

affected owner. App. 125. Private Owners may contest the

Tribes’ survey results by obtaining their own surveys. Disputes

over the harvestable shellfish population are resolved by a

special master. App. 126. The Tribes may then conduct

harvests on Private Owners’ tidelands up to five days per year.

App. 127. Amending its implementation order, the district

court further authorized tribal members to seek permission from

a special master to cross private upland property to exercise

10

shellfishing nghts on tidelands that lack access by boat or public

road or right of way. App. 142-43. The special master is

authorized to assess damages against tribal members who

damage a Private Owner’s property while exercising shellfishing

rights. App. 127, 148.

All parties appealed the district court’s final judgment.

The Ninth Circuit affirmed the district court’s interpretation of

the treaties and most of the implementation order affecting the

Private Owners. App. 23-25, 26, 38. However, in response to

the Tribes’ contention that Indians should be authorized to

cross private upland property in the absence of “reasonable”

alternative means to access tidelands, the Ninth Circuit directed

the district court on remand to clarify its order regarding tribal

access across the Private Owners’ upland properties. App. 38

n. 16.

REASONS FOR GRANTING THE WRIT

Until this case, neither this Court, nor any of the Courts

of Appeals, had held that an Indian treaty secured to Indian

tribes a right to take resources from private lands. The Ninth

Circuit’s decision imposed servitudes on the very lands that the

Tribes ceded when they entered into these treaties, in conflict

with decisions of the Seventh and Eighth Circuits.

This Court has previously addressed the Stevens Treaties’

“right of taking fish in common with all citizens,” holding that

these treaties reserved to the Tribes 50 percent of the

sustainable catch of salmon that migrated from the ocean to the

Indians’ “usual and accustomed grounds and stations.” Fishing

1]

Vessel, 443 U.S. 658, 685 (1978).* Relying on this Court’s

salmon precedents, the Ninth Circuit held that the right to take

fish “in common with” Washington citizens gives the Tribes the

night to enter on private property and to take 50 percent of the

harvestable shellfish from ihe Private Owners’ tidelands. This

decision ignores the differences between migratory salmon,

which can be monopolized by limitations on tribal access, and

immobile shellfish that may be harvested on public and tribal

lands throughout the territory ceded by these treaties.

Even if the right to take fish “in common with”

Washington citizens could secure to the Tribes a night to take

shellfish from tidelands from which the public is excluded, these

treaties contain an express limitation—a treaty proviso

prohibiting the harvest of shellfish on tideland beds “staked or

cultivated by citizens.” The Ninth Circuit failed to construe this

proviso in light of the strong presumption that the treaties did

not limit the State of Washington’s nght to convey private

ownership interests in its tidelands free of any pre-statehood

reservation of interest. The decision below adopts a technical

definition of the term “staked” that was unknown to the treaty

? These and similarly worded treaties were considered in six cases

before the Fishing Vessel decision. See, United States v. Winans,

198 U.S. 371 (1905); Seufert Bros. Co. v United States, 249 U.S.

194 (1919); Tulee v. Washington, 315 U.S. 681 (1941); Puyallup

Tribe v. Washington, 315 U.S. 681 (1942); Puyallup Tribe v. Dep’t

of Game of Washington, 391 U.S. 392 (1968); Dept. of Game of

Washington Game v. Puyallup Tribe, 414 U.S. 44 (1973); Puyallup

Tribe v. Dep’t of Game of Washington, 433 U.S. 165 (1977).

However, none of these cases considered the Indians’ right to harvest

shellfish from tidelands.

12

Indians, analyzing legal issues of ultimate treaty interpretation

as questions of fact reviewable only for clear error.

This Court should issue the writ and interpret the treaties

in light of their plain meaning, their historical purpose of freeing

the ceded lands from all Indian claims, and the constitutional

presumption that the State of Washington could make its own

laws and policies governing its tidelands free of any pre-

statehood reservation of interest.

A. The Court Of Appeals’ Decision Is An Unprecedented

Extension Of Tribal Usufructuary Rights To Privately

Owned Property That Is Unnecessary To Preserve

The Tribes’ Meaningful Access To Shellfish.

The Ninth Circuit’s holding that the “right of taking fish

in common with” the citizens of Washington allows the Tribes

to harvest shellfish on privately owned tidelands is an

unprecedented imposition of tribal usufructuary nights on

private property. Its opinion conflicts with decisions of other

circuits, cannot be supported by this Court’s decisions

interpreting the treaty right to migratory salmon, and is

unnecessary to preserve to the Tribes meaningful access to an

immobile resource found on public and reservation lands

throughout the treaty territory.

1. The Treaty Right to Take Fish “In Common

With” Citizens Does Not Extend To Shellfish

On The Private Owners’ Lands.

The petitioners’ right to exclude others from their land is

an unquestionable and essential attribute of ownership:

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

13

in the bundle of nights that are commonly

characterized as property... .””

Nollan v. California Coastal Comm’n, 483 U.S. 825, 831

(1987) (citations omitted). The right to take fish “in common

with” Washington citizens does not give Indians the right to

enter tidelands from which the Private Owners exclude others.

This Court has previously noted that it will not lightly

extend tribal usufructuary rights to private property. In

Antoine v. Washington, 420 U.S. 194 (1975), the Court

uiterpreted an 1891 agreement returning unallotted land within

the Colville Indians’ reservation to the public domain. The

agreement provided that “the right to hunt and fish in common

with all other persons on lands not allotted to said Indians shall

not be taken away or in anywise abridged.’” Antoine, 420 U.S.

at 197 n.4 (quoting agreement). This Court held that the nght

to hunt “in common with ali other persons” only prevented the

state of Washington from regulating hunting by tribal members

on public lands, expressing doubt that such a hunting right

could extend to private lands:

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.

Antoine, 420 U.S. at 207-08 n.11; see also Oregon Dept. of

Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 764

(1985) (Klamath tribe “agrees that ceded lands now privately

owned may be closed to tribal hunting and fishing.”’).

Similarly, other Courts of Appeals have properly

recognized that the primary purpose of nineteenth century

14

Indian treaties was the cession of aboriginal lands for non-

Indian settiement, and that consequently privately owned non-

Indian lands are off limits to tribal harvesting. Both the Seventh

and Eighth Circuits have held that the Chippewa may not enter

private land to exercise the treaty night of “hunting, fishing, and

gathering the wild rice, upon the lands, the rivers and the lakes

included in the territory ceded,” Treaty with Chippewas, July

29, 1837, 7 Stat. 536:

The ceded territories were ceded for the purpose 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 Courte Oreilles Band of Lake Superior Chippewa

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

Courte Oreilles Band of Lake Superior Chippewa Indians v.

Voigt, 700 F.2d 341, 365 (7th Cir. 1983) (“The exercise of

these rights is limited to those portions of the ceded lands that

are not privately owned.”); Mille Lacs Band of Chippewa

Indians v. Minnesota, 952 F. Supp. 1362, 1378 (D. Minn.)

(Chippewa “treaty rights . . . may only be exercised on lands,

public or private, open to the general public for hunting, fishing

and gathering by operation of state law.”),aff'd, 124 F.3d 904,

933-34 (8th Cir. 1997), cert. granted U.S. __ (1998) (No.

97-1337).

The western Washington Tribes ceded all their “right, title

and interest in and to the lands and country occupied by them”

as did the Chippewa of Minnesota and Wisconsin. See, e.g.

App. 178 (Treaty of Point Elliott, art. II). The future State’s

15

right to convey tidelands to the exclusive possession of the

Private Owners is as absolute as the United States’ ability to

patent exclusive title in the land ceded by the Chippewa. See

Argument at § B.1, infra. The Ninth Circuit holding that the

“right of taking fish . . . in common with all citizens” gives the

Tribes the authority to enter on and harvest shellfish from

thousands of privately owned parcels of property in Washington

State conflicts with the decisions of other circuits that have

properly recognized that extending tribal treaty rights to private

lands is contrary to the very purpose of the Indian treaties.

2. Access To Privately Owned Tidelands Is Not

Supported By This Court’s Precedent And Is

Not Necessary To Secure To The Tribes

Meaningful Access To A Stationary Resource

Found On Public And Reservation Tidelands.

This Court has imposed a narrow easement on private

lands to enable Indians to exercise off-reservation salmon

fishing rights only where necessary to secure meaningful access

to a migratory resource, and only where the easement is

analogous to a prescriptive right to access a usual and

accustomed fishing site. The courts below misread this Court’s

precedent in imposing an unlimited extension of tribal

usufructuary rights to thousands of individual Washington

property owners.

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

Court held that treaty Indians had a right to use a well-

established trail over private land to their ancient fishing station

16

on the bank of the Columbia River.’ The Court held that the

treaty “fixes in the land such easements as enable the [fishing]

right to be exercised.” Winans, 198 U.S. at 384. But the

Winans holding did not grant the Indians a right to access all

private land from which fish might be taken. The “usual and

accustomed place” at issue in Winans was an obvious trail to an

established fishing station in frequent and customary Indian use

from treaty times to the date the land was patented. A Winans

easement, as later described by this Court, must be “habitual,”

“customary,” and “open and notorious.” Consistent with well-

established property principles, it exists:

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.

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

The decisions below conflict with Winans and Seufert by

granting tribal access to thousands of properties without any

showing that the Tribes made historically open and consistent

use of access easements on those properties. Rather than

limiting tribal easements to those private uplands where “any

person, not blind to the conditions of the property, must have

*The case concemed similar language (“the right of taking fish at all

usual and accustomed places’’) from a treaty negotiated by Governor

Stevens with an inland tribe that fished at a site described by the

Solicitor General as “a famous one . . . one of the best, if not the best

place on the Columbia River.” Winans, 198 U.S. at 371 (Argument of

United States).

17

known of them,” Seufert, 249 U.S. at 199, the courts below

imposed an access easement of necessity on any upland

property wherever “tribal members can demonstrate the absence

of access by boat, public road, or public right of way.” App.

142-43. This blanket easement over both tidelands and uplands,

without any proof of historic use, is unsupported by this Court’s

precedents or by any principle of property law or treaty

interpretation.

The unique nature of the migratory salmon resource was

of critical importance in the relief granted by the Court in

Winans and Seufert. Access alone was insufficient to give

meaning to the night to fish “in common with” non-Indians

whose fish wheels took all of the salmon as they migrated

upriver. Winans, 198 U.S. ai 372 (Argument of United States).

Access to their ancient fishing site and removal of the fish

wheels was thus nece.. >ry to assure the Indians “a share of the

fish” and to “protect them from total exclusion from the

fishery.” Fishing Vessel, 443 U.S. at 681.

The migratory nature of the salmon resource underlies

this Court’s holding that these treaties reserve to the Tribes

salmon “taken from runs of fish that pass through the Indians’

usual and accustomed fishing grounds.” Fishing Vessel, 443

U.S. at 689. Shellfish, however, are not migratory. In contrast

to the free-swimming salmon at issue in this Court’s previous

cases concerning these treaties, shellfish found in privately

owned land are immobile, and have historically been regarded

as in the possession of the owner of the land where they are

found:

18

[There is a plain distinction between [embedded

shellfish] and game birds or freely moving fish... .

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 of the

land in which they are sunk as would be a

prehistoric boat discovered under ground or

unknown property at the bottom of a canal.

McKee v. Gratz, 260 U.S. 127, 135-36 (1922) (Holmes, J.)

(mussels in Missouri stream bed) (citations omitted); see also

Den ex. dem. Russell v. Association of the Jersey Co., 56 U.S.

(15 How.) 426, 432-33 (1853).

Judge Beezer’s opinion concurring in the decision below

properly recognized that Winans and Fishing Vessel are based

on the mobility of salmon, which must travel from the ocean

upriver to their spawning grounds. Because shellfish are fixed

in the tidelands, however, excluding Indians from Washington’s

private tidelands does not deprive the Tribes their treaty share:

The underpinning of the [Supreme] Court’s

interpretation of the Stevens Treaties should not

apply 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.

App. 44 (Beezer, J., concurring). Each of the treaty Tribes’

“usual and accustomed” fishing grounds, which together

comprise all of Puget Sound, contain large areas of publicly held

tidelands. It is in those tidelands that the Tribes have a treaty

right to an equitable allocation of shellfish. The servitude

19

imposed upon Washington tideland owners by the courts below

is not necessary to preserve the Tribes’ night to “a fairly

apportioned share” of the resource. Fishing Vessel, 493 U.S.

at 682.

The mechanistic application of Fishing Vessel’s analysis

to allocate 50 percent of stationary shellfish between the owners

of private tidelands and the Tribes moreover resulted in the

improper imposition on these private individuals of an extensive

regulatory framework and dispute resolution process originally

developed to preserve the Tribes’ interest in each run of

migrating salmon. App. 125-28. Such burdens, imposed not on

sovereign entities responsible for common resources but on

private landowners, will require continuing judicial intervention

in the lives of thousands of Washington residents.

Under the Ninth Circuit’s decision, the Indians have the

right not just to take a fair share of shellfish “in common with”

Washington citizens, but the exceptional authority to harvest

shellfish on private tidelands from which the general public is

lawfully excluded. The imposition of such a servitude on

thousands of privately owned properties on the basis of a treaty

right to fish “in common with all citizens of the Territory,”

raises an important issue of federal law that should be

definitively resolved by this Court.

20

B. The Shellfish Proviso, Which Prevents The Tribes

From Taking Shellfish From “Any Beds Staked Or

Cultivated By Citizens,” Prohibits Indians From

Harvesting Shellfish On Tidelands Posted By Private

Owners To Exclude Others.

The Private Owners stake and post their tidelands to mark

their boundaries and exclude others. In the Shellfish Proviso,

the treaty drafters expressly authorized the future state to limit

the Indians’ ability to enter on and harvest shellfish from “any

beds staked or cultivated by citizens.” The Ninth Circuit erred

in refusing to construe this proviso in light of the established

constitutional presumption against pre-statehood reservations

of property interests under the equal footing doctrine.

Moreover, the Ninth Circuit eschewed both the plain language

of the treaties and the Indians’ understanding that land was

staked in order to mark boundaries and exclude others by

holding that the term “staked” had a narrow and technical

definition, limited to the marking of artificial shellf»sh beds to

temporarily store shellfish, based on shellfishing practices then

prevalent only on the East Coast.

1. The Treaty Drafters Did Not Intend To Limit

The Future State’s Ability To Establish Private

Property Rights In Tidelands Under The Equal

Footing Doctrine.

State control and title to the soil underlying navigable

waters is one of the essential attributes of state sovereignty.

See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, __

117 S. Ct. 2028, 2041 (1997); Utah Div. of State Lands v.

United States, 482 U.S. 193, 195 (1987); Montana v. United

States, 450 U.S. 544, 552 (1981). Tidelands “were not granted

21

by the Constitution to the United States, but were reserved to

the States respectively . .. The new States have the same rights,

sovereignty, and jurisdiction over this subject as the original

States.” Pollard’s Lessee v. Hagen, 44 U.S. (3 How.) 212,

230 (1845). Each state entering the Union has the right “to

dispose of the title to any part of said soils in such manner as

she might deem proper, subject only to the paramount nght of

navigation over the waters... .” Shively v. Bowlby, 152 U.S.

1, 30 (1894).* There is a “strong presumption” against pre-

statehood grants of submerged lands. A court “must not infer

such a conveyance ‘unless the intention was definitely declared

or otherwise made plain,’ or was rendered in ‘clear and especial

words,’ or ‘unless the claim confirmed in terms embraces the

land under the waters of the stream.”” Montana, 450 US. at

552 (citations omitted); accord Utah Div. of State Lands, 482

“Canvassing the diverse state law regulating private and public

rights in tidelands during the nineteenth century, the Shively Court

noted:

[E]ach State has dealt with the Jands under the tide waters

within its borders according to its own views of justice and

policy, reserving its own control over such lands, or

granting rights therein to individuals or corporations,

whether owners of the adjoining upland or not, as it

considered for the best interests of the public.

Shively v. Bowlby, 152 U.S. 1, 26 (1894); see Port of Seattle v.

Oregon & Washington R.R. Co., 255 U.S. 56, 65 (1921) (reviewing

Washington State’s nineteenth century tideland law and development

and noting that private ownership and development of tidelands was a

valid means of economic growth).

be

U.S. at 197-98; United States v. Alaska, 521 U.S.1, _, 117

S.Ct. 1888, 1906 (1997).

The Ninth Circuit improperly rejected the presumption

that the United States did not intend to reserve interests in the

tidelands of the future State, reasoning that the equal footing

doctrine applies only to fee interest conveyances. But in

enunciating the equal footing doctrine, the Shively Court noted

that the State’s “title to the shore and lands under water”

consists of the entire bundle of rights that makes up fee simple

title, including the nght to “dispose of the usufruct of such

lands, as is frequently done by leasing oyster beds in them, and

granting fisheries in particular localities... .” Shively, 152

U.S. at 46 (quoting Hardin v. Lordan, 140 U.S. 371, 381-82

(1891)). Winans, which the courts below relied on in holding

that “application of the Equal Footing Doctrine has already been

rejected in the context of the Stevens Treaties fishing nghts,”

App. 22, 82, analyzed the Yakima’s reserved easement to

access their ancient fishing stations in light of the presumption

against a reservation of title to Columbia River shorelands.

Winans, 198 U.S. at 382-84.

The Tribes’ claim to easements to enter upon and harvest

shellfish from the property conveyed by the State to thousands

of tideland owners, most of whom are not parties to the action,

imposes the very “broad and vague servitude on all patented

lands” that the Solicitor General disclaimed in seeking a specific

easement over a specific parcel of land in Winans. 198 U.S. at

373 (Argument of United States).

The equal footing doctrine’s presumption against a

conveyance or reservation of any portion of the future state’s

23

title is especially strong where the nght asserted to survive

statehood is defeasible and not permanent:

[W]here there are nghts created by congress during

the existence of a territory, which are of such a

nature as to imply their perpetuity, and the

consequent purpose of Congress to continue them

in the State, after its admission, such continuation

will, as a matter of construction, be upheld,

although the enabling act does not expressly so

direct. Here the nature of the right created gives

rise to no such implication of continuance, since by

its terms, it shows that the burden imposed on the

Territory was essentially perishable and intended to

be of a limited duration.

Ward v. Race Horse, 163 U.S. 504, 515 (1896). The Shellfish

Proviso expressly terminates a tribe’s treaty nght to take

shellfish on lands that are “staked or cultivated.” As in Race

Horse, the Tribes’ reserved interests in tidelands are similarly

“perishable” and cannot attach to tidelands conveyed in fee by

the State of Washington to private owners following statehood.

The Ninth Circuit’s rejection of the presumption against a pre-

statehood reservation of interest in Washington’s tidelands

conflicts with established precedent and should be reversed.

2. The Treaty Drafters Used The Term “Staked”

To Prohibit Shellfish Harvesting On Tidelands

Marked And Claimed Exclusively By Settlers.

The Ninth Circuit ignored settled rules of treaty

interpretation in refusing to define the term “staked” in light of

its commonly understood meaning and the purposes of these

treaties. Interpretation of treaty language is a question of law

that “begins with the text of the treaty and the context in which

24

the words are used.” Eastern Airlines, Inc. v Floyd, 499 U.S.

530, 534 (1991). Indian treaties are “construed, not according

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

the sense which they would naturally be understood by the

Indians.” Fishing Vessel, 443 U.S. at 676; see United States

v. Choctaw Nation, 179 U.S. 494, 531 (1900) (“If the words be

clear and explicit, leaving no room for doubt what the parties

intended, they must be interpreted according to their natural and

ordinary significance.”). Where the language of the treaty is

susceptible to more than one meaning the courts employ canons

of construction to discern the intent of the parties, determining

the meaning of treaty terms according to the treaty’s history, the

negotiations, and “the practical construction adopted by the

parties.” Choctaw Nation of Indians v. United States, 318

U.S. 423, 431-32 (1943).

In crafting the Shellfish Proviso, the treaty drafters

removed two types of tidelands from Indian shellfishing

claims—those that were either “staked” or “cultivated.” Each

reference to staking in the treaty negotiations referred to the

common practice of marking boundaries to claim land as one’s

own. See e.g. Ex. D-064 at 371 (If the Cowlitz moved, they

“wanted a white man to stake it out and put down corner

Stakes.”). At treaty time, the verb “to stake” was defined as “to

mark the limits of, by stakes driven, as of a piece of land...”

Ex. D-083. The Tribes’ nght to enter tidelands to harvest

shellfish thus could be terminated by “staking”—marking the

boundaries of tidelands to exclude others.

Instead of interpreting the term “staked” in accordance

with its common meaning at the time of frontier settlement, the

25

courts below held that a “staked” bed was limited to tidelands

upon which harvested shellfish were temporarily stored awaiting

export. App. 26, 60, 64-66. It based this interpretation on

nineteenth century practices in the Chesapeake Bay, where

private shellfish could be stored on public tidelands so long as

they were marked and not commingled with any substantial

quantity of natural shellfish. App. 64-66. Rather than applying

a definition that reflects “the common notions of the day and the

assumptions of those who draft the treaty,” Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 206 (1978), the courts

below adopted a definition of the term “staked” that was

unknown beyond the confines of the mid-nineteenth century

East Coast shellfishing industry and that limited, rather than

fostered, the future state’s ability to convey fee title to its

tidelands.

In light of the undisputed historical record, the Tribes did

not claim, nor did the courts below hold, that the treaty night to

shellfish limited in any manner the future State’s ability to

convey tidelands into private ownership:

The Tribes have not claimed a right to take shellfish

from areas where natural beds no longer exist, such

as from tideland areas housing factories, the

Kingdome, and mills and ports. The Tribes appear

to have conceded that some of the development

along the tidelands, but not all, has extinguished

their night to take fish from those particular areas.

App. 72. But by holding that the treaties nonetheless allowed

the Tribes to harvest shellfish on private tidelands where natural

beds have not been extinguished by development, the courts

below treated the settlers’ occupation and development of

26

tidelands as an historical anomaly, rather than as the right that

was bargained for and secured as the principal purpose of the

treaties.

3. The Ninth Circuit Improperly Treats The

Meaning Of Treaty Language As A Question of

Historical Fact Reviewed For Clear Error,

Rather Than A Question Of Law That Is

Reviewed De Novo.

The Ninth Circuit relied on East Coast oystering practices

to define the word “staked” in part because it failed to conduct

a de novo review of this largely undisputed historical record,

reviewing the trial court’s determination of the treaty parties’

intentions instead under the deferential standard of clear error:

Given the deferential standard by which we review

the district court’s findings of historical fact and its

findings regarding the intentions of the parties’

negotiators, we conclude the district court did not

err in interpreting the Proviso and we adopt its

analysis as our own.

App. 26.

Interpretation of treaty language is a question of law even

if treaty meaning turns on historical issues of legislative intent

and purpose. The Ninth Circuit’s deferential review of district

court “findings” in this case was improper and conflicts with this

Court’s precedents. For instance, in Fishing Vessel this Court

independently reviewed the historical record to determine the

meaning of the Tribes’ right to fish in common with citizens of

Washington territory. 443 U.S. at 675, 679. This Court’s more

recent cases similarly engage in a de novo interpretation of

treaty terms in light of the negotiating and drafting history as

well as the post-ratification conduct of the signatory parties.

27

See Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217,

221-28 (1996); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530,

535-52 (1991); O’Connor v. United States, 479 U.S. 27, 32-33

(1986).

Issues of historical purpose and legislative intent do not

turn on the accuracy of witness’ recollections or credibility. Cf

Zenith Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100,

123 (1969) (deference to district court on factual issues based

on its “superior position to apprise and weigh the evidence’).

Instead, to the extent they enable courts to determine the

ultimate meaning of the treaty, these questions of historical

intent lie at the heart of the role of the appellate court to define

the controlling precedent that affects the nghts of future

litigants. The Ninth Circuit’s decision erodes the primacy of the

appellate court’s duty to interpret the law. If left intact, the

decision reduces the appellate court’s task in treaty

interpretation to reviewing for clear error a lower court’s

“findings” on fundamental questions of legislative and historical

intent.

C. The Tribes’ Claim To Enter On Private Tidelands Is

Barred By Laches.

The Private Owners’ lands have been off limits to Indians,

and any other persons seeking to enter upon them, since

conveyed to them by the State. The Tribes’ treaty nghts, first

asserted in 1989, conflict with the Private Owners’ long-settied

property rights. The Private Owners join in the argument of the

Growers in their separate petition for certiorari, Puget Sound

Shellfish Growers v. United States, No. 98- , that the

Tribes’ claims are barred by the doctrine of laches.

28

RESPECTFULLY SUBMITTED this 21st day of

December, 1998.

HOWARD M. GOODFRIEND

Counsel of Record

MALCOLM L. EDWARDS

EDWARDS, SIEH, SMITH

& GOODFRIEND, P:S.

7170 Columbia Center

701 Fifth Avenue

Seattle, WA 98104

(206) 624-0974

Attorneys for Petitioners

Alexander, et all.

ERIC RICHTER

HENKE & RICHTER

221 First Ave. W., Suite 215

Seattle, WA 98119

(206) 282-2911

Attorneys for Petitioners

Adkins et al.