# Petition for Writ of Certiorari — Washington v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1060

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1072%3A1. Public record. Not legal advice.