Opposition Brief — Washington v. United States

Nos. 98-1026, 98-1028, 98-1039. 98-1052

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IN THI

Supreme Court of the United States

OcTroBER TERM, 1998

ESPONDENT INDIAN TRIBES

BRIEF IN OPPOSITION

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DANIEL RAAS MASON D. MORISSET

HARRY JOHNSEN MORISSET, SCHLOSSER.

OFFICE OF THE AYER & JOZWIAK

RESERVATION ATTORNEY Attorney for the Tulalip Tribes

Attorneys for the 1115 Norton Building

Lummi Indian Tribe 801 Second Avenue

. 503 “E” Street Seattle, WA 98104-1509

P.O Box 5746 (206) 386-5200

Bellingham, WA 98227-5746

ANNETTE M. KLAPSTEIN

(360) 647-0234

JOHN HOWARD BELL

RICHARD BERLEY DEBRA S. O’GARA

JOHN ARUM LAW OFFICE OF THE

MARK SLONIM PUYALLUP TRIBE

ZIONTZ, CHESTNUT, Attorneys for the Puyallup Trib

VARNELL, BERLEY & SLONIM 2002 East 28th Street

Attorneys for the Makah Tribe Tacoma, WA 98404

2101 Fourth Avenue (253) 597-6200

Suite 1230

(206) 448-1230

ROBERT L. OTSEA. JR

ALAN STAY

Attorneys for the Muckleshoot

BILL TOBIN Indian Tribe

{ttorney for the Nisqually Trib. 39015 172nd Avenue S.]

1209 Courthouse Square Auburn, WA 98002

P.O. Box 1425 (253) 939-3311

Vashon, WA 98070

(206) 463-3 147

RUTH KENNEDY

GARVEY, SCHUBERT & BARER

KEVIN R. LYON Attorneys for the Quileute T)

RON WHITENER 1191 Second Avenue

ittorneys for th 1 Sth Floor

Squaxin Island Trib Seattle, WA 98101-2

112 East Fourth Aver 106) 464-3939

Suite 200

Olympia, WA 98501-1]

OH()) TRG6-SOOS

KATHRYN NELSON JEFFREY JON BODE

EISENHOWER & CARLSON PLLC Attorney for the Nooksack Tribe

{ttorneys for the Port Gamble, 215 West Holly Street, #G-7

Lower Elwha and Jamestown Bands P.O. Box 6092

of S'Klallams and the Bellingham, WA 98227-6092

Skokomish Tribe (360) 734-4219

1201 Pacific Avenue

1200 Wells Fargo Plaza

lacoma, WA 9840?

(253) §72-4500

HAROLD CHESNIN

MATHEWS, GARLINGTON

MATHEWS & CHESNIN

{ttorney for the

NETTIE ALVAREZ Upper Skagit Tribe

RICHARD RALSTON 219 South Washingtor

RALSTON & ALVAREZ Seattle, WA 98104

{ttorneys for the Hoh Trib (206) 621-7557

1420 Fifth Avenue pS at }

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................ccscesssossscosssssccsrseeeeers i]

BIN, coccensthctsncinssevensoesscsesnnvesccevsencsscesensevaconsoesess

STATEMENT OF THE CASE. .............cccssessecesssssreeeesessseneees 2

I. Factual Background ..............c:ccccccceseesseeeseeeeseseseseeeeeenes 2

II. Course of Proceedings ..............::ccccsssssecessenereseserereeeeees 7

REASONS FOR DENYING THE PETITIONS...............05. 9

I. The Court of Appeals Created No Conflict by Refusing

to Graft Species or Technology-Based Limitations Onto

Express Treaty Language .............::::scsessscsseeeneeneeteenrees 9

I]. Equal Sharing of The Fish Resource Is a “Matter

Decided” and No Conflict Exists...........:::ccceesseeeeeerees 14

III. It Is a “Matter Decided” that the Stevens Treaties

Provide a Right of Access to Private Property and

Override the Presumption of the Equal Footing

Doctrine, and No Conflict Exists............::::::eeeeeeeeeees 16

A. Right of ACCESS ...............sccsccsssssesseeessecsssereeeneenees 16

B. The Equal Footing Doctrine..............:::cseee eee 20

IV. The Court of Appeals Created No Conflict in Its

Interpretation of the Shellfish Proviso...........0:000022

A. The Court of Appeals Correctly Reviewed the

Proviso Meaning De Novo and Subsidiary Facts for

ar rilaek vesasesshcssassuonecesedasessiéssdseenes 22

B. The Proviso Meaning is a Unique, Factbound Issue

Which the Courts Below Decided Correctly.........27

V. This Case Presents No Opportunity To Revisit Well-

Settled Law Regarding Laches.................:cseseeeeeereee: 2

VI. Petitioners’ Overstated Claims of Hardship Do Not

Support a Rewntting of the Treaties............... 29

IIR IIN hs00000..

TABLE OF AUTHORITIES

FEDERAL CASES

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{ntoine v. Washington, 420 U.S. 194 (1975) 19

Board of County Comm'rs v. United States

3O8 U.S. 343 (1939) : ais ee ae

[dw Vation of Indian: } ( nited State

518 U.S. 423 (1943)

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Lac Courte Oreilles -and of Lake Superior Chippewa

Indians v. Wisconsin ("LCO"),

653 F. Supp. 1420 (W.D. Wis. 1987) ............. LZ; 83

7]

Lac Courte Oreilles Band of Lake Superior Chippewa

Indians v. Wisconsin ("LCO"),

758 F. Supp. 1262 (W.D. Wis. 1991) ........... 13

MacNamara v. Korean Air Lines, 863 F.2d 1135

(CA3 1988) 25

McKee v. Gratz, 260 U.S. 127 CE9ZZ) iccsessocceesscresees. 19

Mille Lacs Band of Chippewa Indians v. Minnesota,

124 F.3d 904 (CA8 1997), cert. granted on other

grounds, 118.8. Ct. 2295 (1996) ciccscccrevseconess eb

Mille Lacs Band of Chippewa Indians v. Minnesota,

861 F. Supp. 784 (D.Minn. 1994) ........... 19

Ville Lacs Band of Chippewa Indians v. Minnesota,

952 F. Supp. 1362 (D.Minn. 1997) 19

Miller v. Fenton, 474 U.S. 104 (1985)

nal Union Fire Ins. Co. v. Circle, In

915 F.2d 986 (CAS5 1990)

luda \ [ nited States, 463 | » 110 (19%

th Cent. Airlines, Inc. v. Continental Oil ¢

74 F.2d 582 (CADC 1978

fern B ind: O} Shoshone In ian

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ai Int } Sugquami i] Indian lr Cc,

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

(CA9 1975)...... 12,21

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

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nited States v. Washington, 459 F. Supp. 1020, 1037-38

(W.D. Wash. 1978)....... eat gtseaiteastinte 12

nited States v. Winans, 198 U.S. 37]

(1905) Pe VBR Re ee DAaSSIM

yj ird } Race Horse, 163 U.S S504 (1896)

hington Hosp. v. White, 889 F.2d 1294

(CA3 1989) ...

ington v. Washington State Commercial

Fishing Vessel Ass'n, (Fishing Vessel

443 U.S. 658 (1979)

STATE CASES

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STATUTES, TREATIES AND RULES

ABBREVIATIONS

INTRODUCTION

The four petitions for certiorari present ten questions,

none of which implicates a conflict in authority among the

Courts of Appeals or with a State Supreme Court. A number

of questions rest on incorrect premises, and a number would

require this Court to engage in the heavily factbound

examination of the record already conducted by the courts

below. In all instances, petitioners press arguments that

mark a clear departure from the plain treaty language and

this Court’s precedents. The petitions should be denied.

The courts below held that, in entering into five nearly

identical treaties with the tribes of western Washington (the

Stevens treaties), the United States made a promise that the

tribes would enjoy a permanent, meaningful right to take

shellfish from natural shellfish beds and that this promise

should be honored today. Under the treaties, (1) “The nght

of taking fish, at all usual and accustomed grounds and

stations, is further secured to said Indians, in common with

all citizens,” (ihe fishing nght); (2) “Provided, however, That

they shall not take shell fish from any beds staked or

cultivated by citizens” (the shellfish proviso). Treaty of

Medicine Creek, Art. II], 10 Stat. 1132, 1133 (1854).

The majority of petitioners’ questions concern the scope

of the fishing right. Certiorari on those questions 1s

unwarranted because in seven previous decisions this Court

already has explored the meaning of that nght and the courts

below fully adhered to those decisions. There is no conflict

with any other court.

This Court has not considered the shellfish proviso

previously, but review of its meaning is unwarranted for two

reasons: first, because there exist no other treaties containing

language about shellfish beds, and the interpretation of the

proviso therefore does not implicate any broader concerns;

and, second, because the courts below reached their

conclusion as to its meaning based on a careful, factbound

examination of the type that this Court typically will not

revisit. Petitioners also complain about the standard of

review utilized by the Court of Appeals in addressing the

proviso’s meaning, but their claims of conflict or error on

this point do not withstand scrutiny.

Finally, the dire harm claimed by petitioners from the

lecisions below is demonstrably overstated and

inquestionably irrelevant to the treaties’ interpretation

Because the Court of Appeals’ decision is consistent with the

previous opinions of this Court, and because no conflict

xists with the decisions of any other court, the petition

hould be denied.

STATEMENT OF THE CASE

|. Factual Background

from time immemorial, the Indian people of weste1

Washington have been a fishing people, “us[{ing] and

rellying] on fish, including shellfish, for subsistence,

eremonial and commercial purposes.” App. 69; see als:

App. 10. The uncontested archaeological and

inthropological record demonstrates “widespread and

ustained use of shell fi: : resources ; [by the tribes] for the last

3,000 years,” PL-587 at 41, with over a thousand

haeological sites fatto continuous use by the tribe

at least 114 species of shellfish. SER 1026-27. At the

time of the treaties, the tnbes “engaged in extensive

hellfishing.” ER 54. Using the same seaworthy canoes the’

ed for other fishing purposes, they took shellfish fron

deep water, and they also took large quantities of interti¢

— and oysters. Long lengths of kelp line joined togetl

r example, yielded a urchins from deep water “in greal

Meanginy” SER 281-82; SER 695.' “Shellfish formed

taple in [the tribes’] diet,” ER 55 (quoting United Stat

lam, 887 F.2d 190, 195 (CA9 1989)), and they were u

religious and cultural reasons, in trade with Indians

medicine, and for mynad

ndaare < avall nd

bhUIiGlIiS, ao LOUOIS and Riis Gaiitl |

rposes. SER 1033-34, 696-9

ine tnbes extensive reliance on. shellfish

to the United States’ treaty negotiators \pn

lerscoring the great commercial importance ot

tis Indians. iSi ac Ste\ ens. tne (yOVerMnor!

Sta r t +

thus incor n t] St

Washington Territory, reported in 1854 that the Indians

“catch most of our fish, supplying not only our people with

clams and oysters, but salmon to those who cure and export

it.” Washington v. Washington State Commercial Passenger

Fishing Vessel Ass'n, (Fishing Vessel) 443 U.S. 658, 666 n.8

(1979) (quotation omitted); ER 55. George Gibbs, the

principal treaty draftsman, likewise recorded in his diaries

that the Indians took a “great variety” of shellfish, and that

“many of these [were] dried for winter stores.” Jd.

In 1854 and 1855, the United States and respondent

tribes entered into the treaties at issue here. The United

States sought to extinguish the Indians’ title to land, while at

the same time protecting the Indians’ access to the fisheries

on which it knew their survival and way of life to depend.

App. 11. Pnor to the negotiations, Governor Stevens

expressed concern that settlers taking up Donation Act land

claims had attempted to bar Indian access to fishing grounds

“The subject of the nght of fisheries is one upon which

legislation is demanded,” Stevens wrote. Fishing Vessel,

443 U.S. at 666 n.9 (quotation omitted) “It never could have

been the intention of Congress that Indians should be

excluded from their ancient fisheries.” Jd. (quotation

omitted); PL-160, ch. 1 at 16.”

For their part, the Indians stated repeatedly during the

negotiations that while they would cede millions of acres of

territory, they had to retain meaningful access to the fisheries

that were their lifeblood. As the district court observed, “‘it is

clear from the treaty minutes that. . . the guarantee of fishing

rights was a sine qua non of the Indians’ participation in the

[reaties. The Indians repeatedly raised concerns that they

would not survive if they did not have access to their ancient

fisheries.” App. 67. The negotiation sessions thus

Settlers’ claims under the Donation Act were to upland areas. The

Alexander petitioners’ contention that large areas of tidelands were

overed by development at treaty times is incorrect. Pet. at 3. Although

there were some mills and other developments on the tidelands, they

covered a miniscule portion of the thousands of miles of shoreline. 1994

['r. at 1707, 1713-14. Given that they knew that abundant shellfish were

taken even in the vicinity of populous cities like New York and Boston,

the treaty commissioners had no reason to believe that the nascent

t:deland development in the Puget Sound posed any threat to the Indians’

e of the “inexhaustible” shellfish resource. App. 72; SER 128-30

4

reaffirmed the American commissioners’ conviction that the

treaties had to preserve for the tribes their ability to continue

their fishing way of life. Not only did the United States’

negotiators recognize that the “Indians viewed a guarantee of

permanent fishing rights as an absolute predicate to entering

into a treaty with the United States,” App. 11, but they also

saw such a guarantee as ensuring against Indian dependence

on the United States for support, a result they explicitly had

been told to avoid. App. 69; ER 699.

Accordingly, Governor Stevens promised the Indians that

under the treaties they would enjoy a permanent, meaningful

right to continue their fishing way of life:

The one significant promise for purposes of this

litigation is the promise by the United States to the

Indians that they would enjoy a permanent night to fish

as they always had. This right was promised as a sacred

entitlement, one which the United States had a moral

obligation to protect. The Indians were repeatedly

assured that they would continue to enjoy the right to

fish as they always had, in the places where they had

always fished. There is no indication in the minutes of

the treaty proceedings that the Indians were ever told

that they would be excluded from any of their ancient

fisheries.

App. 27 (quoting App. 67). Stevens declared that “{t]his

paper secures your fish,” Fishing Vessel, 443 U.S. at 667

n.11 (quotation omitted), and there is no suggestion in the

treaty records that the United States intended, or the Indians

understood, the shellfisheries to be excluded from this

fundamental promise. App. 67-68. As the district court put

it, the Indians did not “believe[] that their need for shellfish

would diminish over time,” App. 70, but instead believed

themselves to be “bargaining for a permanent right.”’ Jd.

The United States negotiators also sought to protect the

non-Indian “shellfish-cultivation industry [that] had begun to

develop at Shoalwater Bay in the Washington Territory” and

that was “modeled after the larger, older, and more

developed shellfish industry on the east coast.” App. 11, 64-

65. This industry was based on the creation of shellfish beds

for storage or growth purposes where natural beds of that

shellfish type did not exist. As the district court found and

kc a, ti na

the Court of Appeals affirmed, these man-made beds were

commonly referred to as “staked” or “cultivated” beds:

Shellfish farmers created “cultivated” beds (ones on

which shellfish spawn would not naturally set) by

removing oysters from their natural beds to areas where

they could grow more rapidly, or by placing shells or

other material to harden the bottom and thereby

facilitate the setting of the oysters. In addition to

creating cultivated beds, shellfish farmers frequently

“staked” beds of shellfish by storing market-sized

shellfish removed from other beds until they could be

shipped to market. These staked beds did not naturally

contain shellfish of the type being stored, and their

boundaries were marked for identification purposes

with stakes extending above the surface of the water at

high tide.

App. 11.

While exclusive rights to staked or cultivated beds a

- created, the public at treaty times vigorously insisted o1

s right of access to natural shellfish beds, and that right w as

Se Gants upheld in court decisions and by statute.

New spaper and magazine articles, industry treatises, letters

and journals written by commercial fishermen and, most

importantly, the writings of the treaty commissioners

themselves, consistently drew the same distinction between

staked or cultivated and natural shellfish beds. As the courts

be low concluded, then, in prohibiting tribal! shellfishing from

“beds staked or cultivated by citizens,” the treaty a

provided protection for the artificial beds that formed t

ealisen, of the growing shellfish industry in the

Washington Territory, while remaining faithful to thei1

promise that the tribes would retain a permanent right of

access to their fisheries, including the natural shellfish beds

[he growers are incorrect in claiming that the law was not unifo!

Growers’ Pet. at 5, 8. Before the treaties only Rhode Island had ever

briefly allowed the staking or cultivating of a natural shellfish bed. but it

rescinded that provision before the treaties. PL-160, ch. 2 at 40-41

Petitioners repeatedly claim that the proviso interpretation set forth |

the courts below rests solely on a technical interpretation of “east

28; Grower Pet. at 5, 8; Alexander Pet

State Pet. at 1{

[he promise was kept for many decades. In the first two

sy after the treaties the Territorial legislature passed

eral statutes regulating the taking of shellfish on four

occasions. SER 870-72. Each of those statutes provided

legal protection for creators of artificial shellfish beds while

maintaining the public’s nght to take shellfish from natural

beds. After Washington’s admission to the Union in 1889 it

passed statutes permitting the sale of tidelands. App. 12.

However, even after more than a decade of private

ownership, the State continued to recognize that the public

generally, and treaty Indians in particular, could take

shellfish from natural beds on those tidelands. PL-160, ch. 4

at 39-43; SER 898-900. It was not until more than f nity

years after the treaties that the Washington Supreme Cou

— without any specific consideration ‘of treaty nights, tha

lessee of tidelands could exclude the general public from

sa beds. Sequim Bay Canning Co. v. Bugge, 94 P. 922

Wash. 1908). In the years following, the State sold off the

ast majority” of its tidelands, . App. 73,° and the tribes who

had been promised permanent rights to their fisheries saw

Mere repetition cannot make this so. To the contrary, the “distri

rt ‘interpret([ed] the terms ‘staked’ and ‘cultivated’ as the terms

1ed and used in the shellfishing industry at and before treaty time

Liliit

26 (quoting App. 77). The “compelling and persuasive” evidenc

\pp. 55, the court canvassed regarding the proviso’s meaning includ

t simply the legal framework of the time, but also “evidence of actu

lfish industry practices” on the east coast and in the Washingt

itory, App. 61, including industry treatises, newspaper article

itings of George Gibbs the prince ipal treaty drafter App 60-66

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ihe State would also have this Court believe that the district

assumed” that the treaty negotiators were familiar with th

fishing industry and its terminology. State Pet. 10, 28. However!

district court found the evidence that the United States’ nego

‘re familiar with the shellfish industry (on both coasts) and drew

rms of the proviso from it to be “compelling” and “overwhelming

\pp. 55, 59, 78, and likewise found that the Indians were familiar v

practices at Shoalwater Bay, App. 65-66 These finding

] } | ] Pi : L, ;

ailable. Indeed, petitioners’ own expert conceded that the

‘tiators “borrow[ed] from the oystermen’s terminology” to d

oviso, D-467 at 108

espit ar finding o

their ability to take shellfish deteriorate_as the State enforced

trespass laws against tribal harvest. PL-160, ch. 4. By the

time of this subproceeding, the tribes’ harvest of shellfish

had been reduced to a negligible percentage of the non-

Indian harvest. SER 971. And the effect of the broken

promise is clear. As the district court found and the Court of

Appeals affirmed, “[t]he uncontroverted evidence presented

at trial is that the Tribes lag significantly behind other

residents of the State of W ashington i in their overall standard

of living.” App. 33.

The shellfish and other fish resources have themselves

changed radically since the time of the treaties. Native

oyster populations have diminished by 99%, and have been

replaced by the exotic pacific oyster. SER 1004-05. Native

titttereck-ctams Have also been largely supplanted by the

introduced manila clam. App. 12. The native geoduck

clams that were once available in commercial quantities on

the intertidal beaches of Puget Sound are now found almost

exclusively in deep water as a result of non-Indian

overharvest in the shallow areas. SER 992.

As the treaty negotiators intended, the commercial

shellfish industry in Washington has prospered. Today the

pacific oyster is the dominant species cultivated in

Washington, accounting for about 60% of the annual harvest

value. PL-988, Tbl. 50. Because pacific — do not

reproduce naturally except in some areas of Hood Canal,

— all pacific oyster beds are “artificial” under the

nterpretation of the shellfish proviso consistently advocated

by the tribes and adopted by the courts below, and are thus

ff-limits to tribal harvest. In recent years, numerous

artificial beds of manila clams have also been created by the

Zrowers through seeding or alteration of the substrate, and

the tribes have again disclaimed at 1y rights to those beds. PI

~

5

35, vol. 1, ch. 6 at 13

Il. Course of Proceedings

In 1970 the United States sued Washington to implement

the fishing rights of several Indian tribes. The district court

held, and this Court ultimately affirmed, that the tribes hav

right to take up to half of the anadromous fish found

heir fishing areas. Fishing Vessel, 443 U.S. at 671. 685

[he district court retained jurisdiction to adjudicate the

tribes’ rights to other fish species.

The shellfish subproceeding began in 1989. ER 9. By

pretrial motion, the district court held that under the plain

language of the treaties, and the “elementary canon of

construction that a statute should be interpreted so as not tc

render one part inoperative,” Colautti v. Franklin, 439 US.

379, 392 (1979), the “right of taking fish” includes the night

to take shellfish. App. 56." The court then held an

exhaustive three-week bench trial, after which it issued an

opinion holding that the tribes’ nights of taking shellfish are

co-extensive with their rights to other fish, except to the

extent limited by the shellfish proviso. App. 52-53. The

court concluded, based on evidence it considered

“compelling,” App. 55, 59, and “overwhelming[]” App. 78.

that the proviso limits tribes from taking shellfish only from

those artificial shellfish beds created by citizens where no

natural bed of that species exists.” App. 77.

The district court then issued two orders imposing

stringent limitations on tribal shellfishing in order to protect

the interests of private landowners. The court held that the

tribes may harvest shellfish from private tidelands — even for

subsistence purposes — only five days a year (with some

increase on larger lots), and only after providing landowners

with one-month’s notice and conducting (at their own

expense) scientific surveys establishing the presence of

natural shellfish populations. App. 126-27. The court alsc

prohibited tribal access across privately owned uplands to

reach shellfishing areas unless “{t]ribal members can

demonstrate the absence of access by boat, public road, or

public right of way.” App. 146. All parties appealed.

The Court of Appeals, in an opinion by Judge Trott,

iffirmed the district court’s interpretation of the treaties

[he court also affirmed the stringent limitations placed on

No petitioner challenged this holding in the Court of Appeals, and non

illenges it here

[he court did not say that a cultivated area could “never” have

upported a natural bed. State Pet. at 10. Under the court’s opinion, fot

xample, an artificial bed of pacific oysters can be created on a sit

he native oyster existed long ago

9

tribal shellfishing from private tidelands and on uplands

access. App. 37-40.’ Finally, the Court of Appeals made it

clear that the tribes are permitted a share only of those

shellfish that would be present naturally on the commercial

growers’ beds absent the growers’ efforts; the growers are

entitled to the entire fruits of their labor and investment in

their tidelands. App. 33-35. The court then remanded for a

factual determination of what portion of each growers’ beds

are exempt from tribal harvest because they result from the

growers’ efforts. /d. The district court has referred

remanded issues to another judge for mediation. CR 16608.

REASONS FOR DENYING THE PETITIONS

I. The Court of Appeals Created No Conflict by

Refusing to Graft Species or Technology-Based

Limitations Onto Express Treaty Language.

The State seeks certiorari on the question whether “there

is a treaty right to take half of an off reservation natural

resource, such as deep water shellfish, where Indians did not

take that resource at treaty time.” State Pet. i. The question

rests on an incorrect factual premise, does not implicate any

conflict in authority, and seeks a repudiation of the plain

language of the treaties.

The treaties here reserve to the tribes the right of taking

“fish,” which, as the courts below noted, has “perhaps the

widest sweep of any word the drafters could have chosen.’”

App. 18 (quoting App. 57). The tribes may exercise their

fishing right “at all usual and accustomed grounds and

stations,” and those grounds and stations have already been

adjudicated (in decisions which are long since final) to

include significant expanses of deep water. App. 159. At

treaty times the tribes took virtually every shellfish species

imaginable, including species like geoduck, crab and urchins

that today are found predominantly in deep water,'° and they

While the tribes continue to believe that the restrictions are overly

harsh, they have not sought certiorari.

” See, e.g., SER 1026, 181, 213, 792-97, 1027, 1049, 1053-56, 1096

(archaeological and anthropological evidence that tribes took at least 114

species of shellfish, including cucurwvers, urchins. scallops, crabs,

octopus, and geoduck).

10

took those shellfish from deep and shallow water.'' The

factual premise of the State’s question is therefore incorrect,

and its resolution would not affect the ultimate outcome in

this case.

Moreover, there is no definable “resource, such as deep

water shellfish.” The State’s focus is on species of urchin,

geoduck, crab, cucumber and shrimp. While these species

might be termed “resources,” it is highly inaccurate to imply

that they are exclusively deep water ones. Through time,

advances in technology have enabled both non-Indians and

Indians alike to take those species more efficiently from deep

waters, and documented overharvesting by non-Indians has

reduced the abundance of those species in shallow waters.

While the State denies it, State Pet. at 18 n.9, what it

necessarily seeks is a ruling that the tribes should not be able

to take advantage of technological advances to harvest

shellfish from “deeper” waters | within their usual and

accustomed grounds and stations. '*

See, e.g., SER 281-82, 695, 790-97, 1049-56 (describing deep water

shellfishing techniques including breath-hold diving, kelp- line sinking,

spearing, and dip netting). The State’s claim that the tribes did not take

shellfish from deep water misstates this record, which includes testimony

by the State’s own experts and the contemporaneous observations of non-

Indians, including George Gibbs. Indeed, in the one usual and

accustomed area determination it had to make as part of this proceeding,

the district court found that the Upper Skagit Tribe “took fish, including

shellfish” from numerous marine areas that include deep as well as

shallow water. App. 91-92. (The other respondent tribes have long had

adjudicated fishing areas that encompass deep water.) That finding was

not appealed.

* Although not clear, it is possible that the State is also attempting to

resurrect an argument made below that the courts should define a

separate set of fishing areas for each of the hundreds of species of fish

that are part of the tribal fishing right. That issue is patently

inappropriate for certiorari. The decision of the courts below to adhere to

the plain language of the treaties and hold that each tribe has one set of

usual and accustomed grounds and stations within which it may exercise

its right of taking fish is not in conflict with any other decision. In fact,

as the Ninth Circuit noted, courts in this litigation have always proceeded

on the basis that each tribe’s adjudicated usual and accustomed grounds

and stations apply to all its fishing activity. App. 19-20. Moreover, the

State’s proposal to define hundreds of sets of fishing areas is judicially

unworkable in the extreme. App. 20.

1]

But whether the State is arguing for a technology-based

or a species-based limitation on the tribes’ express fishing

right, the issue it raises is not worthy of certiorari. The Court

of Appeals’ holding is grounded in the plain language of the

treaties. “With all deference to the State, there is no

language in the Treaties to support its position: the Treaties

make no mention of any species-specific or technology-

based restrictions on the Tribes’ righis.” App. 18. While the

State argues that the Court of Appeals’ fidelity to the treaty

language brought it into conflict with this Court’s decisions

in Seufert Bros. Co. v. United States, 249 U.S. 194 (1919),

and Fishing Vessel, and with various other decisions, no

court has ever adopted the State’s position.

Seufert held that the Yakama Tribe had a right to take

fish on the Oregon side of the Columbia River, even though

that area was outside the Yakama Tribe’s ceded territory,

because tribal members had habitually fished there. 249

U.S. at 198-99. That the Court examined where tribal

members had customarily fished is unremarkable, because

the treaties restrict the tribes’ fishing right to their “usual and

accustomed” places. The Court nowhere suggested,

however, that an implicit restriction should also be grafted

onto the treaties limiting the tribes to their traditional fishing

methodology or to species taken at treaty times. Indeed, in

Puyallup Tribe v. Department of Game, 391 U.S. 392

(1968), this Court rejected such a rewriting of the treaties:

[T]he manner in which the fishing may be done and its

purpose, whether or not commercial, are not mentioned

in the Treaty. We would have quite a different case if

the Treaty had preserved the right to fish at the “usual

and accustomed” places in the “usual and accustomed”’

manner. But the treaty is silent as to the mode or

modes of fishing that are guaranteed.

/d. at 398 (italics in original).

Nor does Fishing Vessel contain any intimation that the

tribes are restricted to fishing methodologies used or species

taken at treaty times. The State points to the statement that

the treaty language “‘securing’ certain fishing rights . . . [is]

synonymous with ‘reserving’ rights previously exercised,”

443 U.S. at 678, but ignores the Court’s very next words

describing that previously exercised right as quite simply

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tribes | nght to meet their subsistence and co

‘ds by taking fish from treaty area waters,” id. at 679

me circumscribed right of doing so only in a

inner or only with respect to certain species

he State further alleges a conflict between the d

low and two district court decisions, United Stat

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

Courte Oreilles Band_of Lake-Superior ( hippewa India

Wisconsin (“LCO”"). 653 F supp. 1420, 1426-29 |

Vis. 1987). A conflict with a district court decision is not

basis for certiorari. Rule 10. Moreover, both Michigan

LCO are entirely consistent with the Court of Appeal

lecision here. The court in Michigan looked to the trib:

toric practices only to determine that a fishing n

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13

techniques, methods and gear. It may expand with the

commercial market which it serves, and supply the

species of fish which that market demands, whatever

the origin of the fish.

471 F. Supp. at 260. The LCO court came to the same

conclusion. 653 F. Supp. at 1430.

Finally, the State alleges a conflict with two Court of

Appeals’ decisions. In United States v. Dion, 752 F.2d 126]

(CA8 1985) (en banc), rev'd in part, 476 U.S. 734 (1986).

the court refused to imply a treaty right to sell eagles. That

holding provides no support for rewriting express treaty

language. United States v. Top Sky, 547 F.2d 486 (CA9

1976), is a previous decision of the Ninth Circuit and so

cannot give rise to a circuit split. Moreover, the Top Sk

court only held that a treaty right to hunt would not have

been understood by the treating Indians to extend to the right

of selling eagles because they deplored such a practice. /d

at 487-88. Here, the record contains no suggestion that the

tribes understood their right of taking fish to be saddled with

any technological or species-based limitations, and there is

accordingly no tension between Top Sky and this case. '°

The Court of Appeals’ refusal to graft unstated

restrictions onto express treaty language therefore is not in

conflict with the decision of any court. Moreover, the

holding is manifestly sound. It is faithful to the plain

language of the treaties and a treaty record showing that

neither the United States nor the Indians understood that the

tribes’ fishing rights would be limited to treaty time

practices. The State has not presented a basis for certiorari

' The LCO court later concluded that a commercial lumbering right

hould not be implied in treaties that secured the right to hunt, fish and

gather wild rice, because the tribes had not engaged in that activity at

treaty times. 758 F. Supp. 1262, 1271 (W.D. Wis. 1991) Again, that

holding suggests nothing about the contours of a right explicitly reserved

[he State’s own historian testified that no evidence exists of an intent

to exclude any species from the tribes’ fishing rights. SER 270-7]

14

Il. Equal Sharing of The Fish Resource Is a “Matter

Decided” and No Conflict Exists.

The State claims that the courts below erred in holding

that the tribes are presumptively entitled to an equal share of

a “resource, such as deep water shellfish, . . . where there

was no historic dependence on that resource that would

support an equitable allocation.” State Pet. 1. The State

argues that the district court instead should have calculated

the historic dependence of the tribes on each of the more

than one hundred different species of shellfish (in fact, to be

more precise, that the court should have evaluated the tribes’

dependence on deepwater harvesting of each of those

species), and then done a species-by-species allocation. The

State’s proposed factual tangle again rests on an incorrect

premise and fails to imvlicate any conflict in authority. The

approach taken by the courts below is fully consistent with

this Court’s precedent.

As a threshold matter, the State did not raise this issue in

the district court. There it argued that the tribes’ fifty

percent share should be reduced because the tribes had

attained a moderate living, but it never questioned the

appropriateness of an equal share as the presumptive starting

point in allocating the treaty mght. The State first raised the

issue in the Court of Appeals, and the tribes identified the

State’s failure to preserve the issue in their briefing to that

court. Brief of Indian Tribes at 95. The Court of Appeals

rejected the State’s argument without addressing it, and it 1s

inappropriate for review here. City of Springfield v. Kibb«

480 U.S. 257, 259-60 (1987).

[The State, moreover, continues to ignore the

incontroverted evidence that at treaty times the tribes relied

ipon significant harvests of the various species that the State

characterizes as “deep water shellfish.” See supra at 9-10 &

nn.10, 11. The tribes have demonstrated a “historic

dependence” on those species, and resolution of the question

presented would therefore have no effect on the outcome

below. If the State’s real assertion, on the other hand, is that

the tribal allocation should be reduced because those species

are principally harvested in deep water today, then it 1s

simply restating its technology argument and certiorari

inappropriate for the reasons outlined above

15

-

Even if one overlooks the question’s defects, the State’s

argument for certiorari does not hold up. The State does not

allege a circuit split. It only claims that the courts below

failed to follow the “analytical steps laid out in Fishing

Vessel.” State Pet. 19. But this is not so. The Fishing

Vessel Court engaged in a three-step analysis of the tribes’

right to an allocation. First, it found that the tribes are

entitled to a division of fish. 443 U.S. at 678-79. Second, as

to allocation it held that ‘tan equitable measure of the

common right should initially divide the harvestable portion

... into approximately equal treaty and nontreaty shares.”

Id. at 685."° Third, it stated that the treaty share should be

reduced “if tribal needs may be satisfied by a lesser amount.”

ld. “Thus, [upon proper submissions to the District Court

. In response to changing circumstances,” id. at 686-87,

the tribal share can be modified.’

The district court conducted just that analysis. First, it

concluded that shellfish are “fish” within the meaning of the

treaty right, an issue no longer contested by any petitioner.

ER 52-55; App. 56. The court then made an initial division

of the resource into equal treaty and non-treaty shares. App.

84. It then examined whether any change in circumstances

had occurred such that it should reduce the tribal share.

Because “[t]he uncontroverted evidence presented at trial is

that the Tribes lag significantly behind other residents of the

State of Washington in their overall standard of living,”

App. 85, it declined to do so.'®

The State argues that the district court instead should

have performed a species-by-species allocation based solely

” The Court explained that the logic of a presumptively equal share

given the “in common with” language of the treaties “is manifest.” /d. at

687 n.27. “Since the days of Solomon, such a division has been accepted

as a fair apportionment of a common asset... .” /d.

The Court provided examples of the kinds of changed circumstances it

had in mind, such as a tribe dwindling “to just a few members.” ot

“abandon{[ing] ‘ts fisheries” after finding other sources of support. 443

U.S. at 687. No petition argues that either event has taken place.

Only UPOW asks this Court to review the district court’s

determination regarding the tribes’ current economic condition. UPOW

Pet. 27-29. UPOW’s factbound claim of error is an inappropriate

candidate for certiorari.

16

on the tribes’ historic use of different species. This is

directly at odds with Fishing Vessel’s holding that the

starting point in allocating a common right is an equal

division of the resource. 443 U.S. at 685. Indeed, the

district court has never examined the relative dependence of

the tribes on each of the various species of finfish and the

Fishing Vessel Court did not suggest that it should have.

The Court did note the district court’s equal allocation of

those species to be consistent with other natural resource

cases where, after implying a right to a resource based on

historic usage, the courts have accorded tribes enough of the

resource to ensure their reasonable livelihood. /d. at 685-86.

But the Court never suggested that instead of starting with a

presumptively equal allocation of an express common right a

court should do a variegated species-by-species allocation

analysis. Thus, there is no conflict between Fishing Vessel

and the holding of the courts below. No court has ever

interpreted Fishing Vessel as does the State, and the State has

failed to present a basis for certiorari.

III. It Is a “Matter Decided” that the Stevens Treaties

Provide a Right of Access to Private Property and

Override the Presumption of the Equal Footing

Doctrine, and No Conflict Exists.

Half of petitioners’ questions go to the issue whether,

even setting the shellfish proviso to the side, the tribes may

exercise their right to take shellfish on privately owned

tidelands.'” This, however, is a matter long since decided.

For more than ninety years this Court has held that the

Stevens treaty right of taking fish includes the right of using

private property, and that neither state-law principles nor the

Equal Footing Doctrine can impair that right. In light of this

settled law, petitioners’ claims of conflict ring hollow.

A. Right of Access

UPOW and the Alexander petitioners present the

broadest challenge, arguing that the treaty fishing right does

not provide for a tribal nght of access to privately owned

tidelands to take shellfish. They argue that the Ninth

Circuit’s decision “is an unprecedented imposition of tribal

usufructuary nights on private property.” Alexander Pet. 12.

'” See State q.2; Alexander q.1; Growers q.2; UPOW qq.1, 3.

17

Chis is incorrect. No petitioner appealed the district court’s

decision that the treaty fishing r ght subsumes the right of

taking shellfish, and United States v. Winans, 198 U.S. 37]

1905), squarely held that under the Stevens treaties the

tribes may utilize private property to exercise that night:

[T]he Indians were secured in [the] enjoyment [of their

fishing r right] by a special provision of means for its

exercise. They were given “the night of taking fish at

all usual and accustomed places,” and the right “of

erecting ener ge buildings for curing them.” The

contingency of the future ow nership of the lands

therefore, was foreseen and provided for — in other

words, the Indians were given a right in the land — the

right of crossing it to the river — the right to occupy it to

the extent and for the purpose mentioned.

ld. at 381. Fourteen yeas after Winans, in Seufert, this

Court upheld the rights of the Yakama tribe. without regard

to private land ownership, not only to take fish on the banks

of ‘the Columbia River but to build houses on those banks to

dry and cure their fish. 249 U.S. at 197-99. And sixty years

after that decision. in Fishing Vessel, this Court was

unanimous in the view that the treaty right of taking fish

ncraies the right of using private property for that purpose

ith the dissent arguing that this was a core function of the

eaties:

As was made clear in Winans, the purpose of the

treaties was to assure to Indians the night of access

over private lands so that they could continue to fish at

their usual and accustomed fishing grounds.

443 U.S. at 707; see also id. at 677 n.22. Thus, whereas

petitioners criticize the Court of Appeals for “impos|[ing]

servitudes” on their lands, Alexander Pet. 10. this Court has

long recognized that it is the Stevens treaties themselves that

“impose| ] a servitude upon every piece of land as though

described therein.” Winans, 198 U.S. at 38].

Petitioners seek to distinguish Winans on two grounds

First, they argue that the only private property the tribes can

utilize are “well- established trail[s]” to which they have

established a “prescriptive right” through decades of open

and continuous use. Alexander Pet. at 15-16: UPOW Pet

16-17. However, Winans described the scope of the treaty

18

servitude in much broader terms, stating simply that the

treaty “fixes in the land such easements as enables the right

to be exercised,” 198 U.S. at 384, which is consistent with

the plain language of the treaties preserving to the tribes the

right of access to “all usual and accustomed”’ fishing areas.

Moreover, Winans flatly rejected the notion that under the

treaties the tribes “acquired no rights but such as they would

have without the treaty.” 198 U.S. at 380. To limit the

treaty servitude to nothing more than a prescriptive easement

that any person could establish would be to tum Winans

completely on its head. Finally, Fishing Vessel is directly to

the contrary, interpreting Winans and Seufert to hold that the

tribes have rights “beyond those which other citizens may

enjoy,” 443 U.S. at 681 (quotation omitted), including the

right “to cross private lands,” /d. at 676 n.22. Again, the

dissent agreed, stating that “this right, described in Winans as

a servitude or right over land not owned by the Indians,

entitled the Indians to trespass on any land when necessary

to reach their traditional fishing areas, and is a right not

enjoyed by non-Indian residents of the area.” Jd. at 703.

Petitioners also argue that Winans does not apply

because it involved migratory salmon rather than immobile

shellfish, and a right of access is more necessary to ensure

the tribes a fair share of the former. But Winans did not turn

on the nature of the fish being taken. And petitioners’ claim

that tribes can more easily secure a fair share of shellfish

than salmon without access to private property is both

illogical and does not withstand even a_ superficial

examination of the record, which indicates that the “vast

majority” of tidelands in Washington State are now in

private ownership, App. 73, including those tidelands most

naturally productive of shellfish. SER 999-1002.7°

’ Petitioners are also incorrect in arguing that shellfish fall outside

Winans because they are part of the realty under state law. Shellfish are

in fact personal property, see Edison Oyster Co. v. Pioneer Oyster Co.,

157 P.2d 302, 307 (Wash. 1945), but their precise state law status is

immaterial. Winans rejected the notion that treaty nghts can be impaired

by state law, 198 U.S. at 379, a holding reaffirmed in Fishing Vessel,

where this Court stated that non-Indians “may not rely on property law

concepts” to defeat tribes’ treaty fishing rights. 443 U.S. at 684.

19

[he decisions below therefore adhered to nearly a

century of precedent from this Court. Hence, petitioners can

make only the weakest allegations of a conflict. They note

that in Antoine y. Washington, 420 U.S. 194, 207-08 n.11

(1975), this Court did not reach the question of a tribe’s

hunting rights on private land under an 189] seater But

tha t obviously does not take away from what this Court did

say in Winans and Fishing Vessel about fishin; 1g rights under

the Stevens treaties.

By the same token, that the courts in Lac Courte Oreilles

Band of Lake Superior Chippewa Indians y. Voigt ‘by £ & & ig

OO F.2d 341 (CA7 1983), and 760 F.2d 177 (CA7 1985)

and Mille Lacs Band of Chippewa Indians vy. Minnesota, 124

F.3d 904 (CA8 1997), cert. granted on other grounds, 118 S.

Ct. 2295 (1998), found that, under the treaties before them.

the Chippewa tribes do not have a right to exercise their

rights on Ae property, says nothing about the proper

construction of the Stevens treaties. Those cases simply do

not enunciate a general principle that all Indian treaties

preclude tribal access to private property; they very clearly

f mit their holdings to the treaties considered there.’

Finally, UPOW’s claim that the decision below conflicts

with a line of Washington cases a with Sequim Ba)

: anning Co. v. Bugge, 94 P. 922 (Wash. 1908). is frivolous

UPOW Pet. 20. Those cases merely hold that, under state

law, the owners of private tidelands may exclude others from

harvesting clams from their tidelands. They do not address

the effect of the Stevens treaties on this general rule.’

Indeed, the only reported Washington decision to address the

[he treaty language, and the courts’ findings of fact about the tribe

expectations for using private property, differ considerably. Neither the

LCO nor the Mille Lacs treaties provide the treating tribes with a right to

exercise their usufructuary rights at “all usual and accustomed grounds

and stations.” See LCO, 700 F.2d at 345; Mille Lacs, 124 F.3d at 910

Indeed, in neither LCO nor Mille Lacs ber the plaintiff tribes even claim

a right of access to private property. 700 F.2d at 364 n.14: 952 F Supp

at 1376; 861 F. Supp. at 789 n.2.

Nor do these cases, or other twentieth-century cases cited by

petitioners, see, e.g., McKee v. Gratz, 260 U.S. 127 (1922). have anv

bearing on the understanding of the treaty terms prevalent in the mid

nineteenth century.

20

tribes’ shellfishing nghts is fully consistent with the decision

below. See Washington v. Courville, 676 P.2d 1011 (Wash.

Ct. App. 1983) (holding that shellfish fall within the right of

taking fish).

B. The Equal Footing Doctrine

Petitioners also argue that, even if the treaty nght of

taking fish includes an entitlement to enter private property

to exercise the right, the entitlement implicitly was abrogated

under the Equal Footing Doctrine upon the admission of the

State of Washington into the Union. Petitioners’ argument

does not present a conflict of authority or any other basis for

certiorari, because in Winans this Court squarely decided the

point, holding that the United States intended the Stevens

treaty fishing nght to bind the future State and to override

the presumption of the Equal Footing Doctrine. That

holding is dispositive here.”*

The United States has always possessed the power to

make pre-statehood conveyances of title “whenever . .

necessary to do so in order to perform international

obligations . . . or to carry out other public purposes

appropriate to the objects for which the United States holds

the Terntory.” Shively v. Bowlby, 152 U.S. 1, 48 (1894). In

Winans, this Court held that in the Stevens treaties the

United States clearly intended to reserve to the tribes the

ability to use private property to effectuate their fishing

rights, and that an appropriate public purpose justified

overcoming the equal footing presumption:

The extinguishment of Indian title, opening the land for

settlement and preparing the way for future States, were

appropriate to the objects for which the United States

held the Territory. And surely it was within the

competency of the Nation to secure to the Indians such

Petitioners scarcely mention this basis for the holding of the court

below. They argue instead that two independent grounds proffered by

the Court of Appeals (that the treaties here involve a reservation rather

than a grant of rights, and that the tribes are not claiming fee simple

ownership of the tidelands) are in conflict with decisions of this Court

and other Courts of Appeals. However, there is no occasion to examine

those alternative grounds, for they make no difference to the outcome of

this case. Winans controls.

2]

a remnant of the great rights they possessed as “taking

fish at all usual and accustomed places.” Nor does it

restrain the State unreasonably, if at all, in the

regulation of the right. It only fixes in the land such

easements as enables the right to be exercised.

198 U.S. at 384. Ever since Winans, the federal courts

(including in the decissons ultimately upheld in Fishing

Vessel, see 384 F. Supp. at 401) have consistently held the

Equal Footing Doctrine not to affect the scope of the tribes’

fishing rights, and state court decisions relying on the

doctrine to that end have consistently been reversed. See.

e.g., Washington v. Tulee, 109 P.2d 280 (Wash. 1941), rev'd

315 U.S. 681 (1942).

Petitioners weakly suggest that Winans is not binding

because this case involves shellfish rather than salmon. But

they do not contest that the right of taking shellfish is part of

the broader right of taking fish, and Winans’ holding that the

United States overrode the equal footing presumption so that

the tribes could exercise their fishing rights is therefore

squarely applicable. Winans admits of no distinctions in this

regard between different types of fisheries, and the facts do

not either. As the district court found (and as petitioners’

own experts testified), the taking of salmon includes the

extensive use of tidelands for “beach seines. tidal

impoundment traps, stake nets and reef nets.” App. 83. See

also 384 F. Supp. at 352, 360-61, 370, 378. Indeed, as the

treaties expressly provide, the fishing right even includes the

right to “erect[] temporary houses for the purpose of curing”

fish. These aspects of salmon fishing affect use of tidelands

in ways similar to the taking of shellfish, particularly given

the stringent limitations imposed below on_ tribal

shellfishing on private tidelands.“” The effect of the Equal

’ To the extent petitioners are arguing that shellfishing can be exempted

trom the Winans holding because the proviso makes the shellfishing right

temporary, they are forced to ignore the findings of the courts below that

the United States intended to guarantee to the tribes, and the tribes

understood they were reserving, a permanent right of access to their

natural shellfish beds, App. 27-28, 69-70, and that the proviso only

precludes the tribes from harvesting shellfish from artificial beds created

by settlers. App. 26, 77-78. For the same reason, the asserted rule of

Ward v. Race Horse, 163 U.S. 504 (1896), and Crow Tribe of Indians \

Repsis, 73 F.3d 982 (CA10 1995), that under the equal footing

Footing Doctrine on the scope of the tribes’ shellfishing

rights is thus a “matter decided,” and presents no basis for a

grant of certiorari.

IV. The Court of Appeals Created No Conflict in Its

Interpretation of the Shellfish Proviso.

A. The Court of Appeals Correctly Reviewed the

Proviso Meaning De Novo and Subsidiary Facts

for Clear Error.

Petitioners argue that the Court of Appeals did not

review de novo the district court’s conclusions regarding the

meaning of the treaty shellfishing proviso and that this

purported error brought it into conflict with the decisions of

other circuits and of this Court. The Court of Appeals,

however, expressly stated that it was conducting de novo

review, App. 16, and its opinion bears that statement out.

The court’s conclusion was “that the district court’s reasoned

analysis of the Proviso is correct,’ App. 26 (emphasis

added), not just that the analysis was not clearly erroneous.

In explaining its decision, moreover, the court emphasized

several points, reasoning that petitioners’ interpretations of

the proviso are “totally inconsistent” with the repeated

promises made by the United States’ negotiators to preserve

the tribes’ access to their fisheries, App. 27, and that

petitioners’ expansive reading of the proviso is flatly at odds

with the “black-letter canon[]” that textual provisos are to be

strictly construed. App. 28. Analysis of this sort is the

hallmark of de novo review, and the premise of petitioners’

argument therefore does not hold up.~

presumption temporary and precarious treaty rights might vanish upen

statehood, has no applicability to this case, even setting aside Winans’

holding that the United States overrode the presumption in the Stevens

treaties. Thus the Repsis court itself distinguished the Stevens treaties

because of Winans’ description of the fishing mght as permanent and

binding on the State. 73 F.3d at 991.

Other portions of the decision below confirm that the Court of

Appeals engaged in de novo review of the meaning of the proviso. Thus,

it showed no deference in reversing the district court on the question

whether the protections afforded to “citizens” by the proviso extend to

the State. App. 35-36.

Petitioners attack the Court of Appeals’ determination

that it should “review for clear error all of the district court’s

findings of historical fact, including its findings regarding

the treaty negotiators’ intentions, [and that it would] then

review de novo whether the district court reached the proper

conclusion as to the meaning of the Shellfish Proviso given

those findings.” App. 16. However, none of the decisions

cited by petitioners contains any statement at odds with this

description of the proper standard of review — indeed, not

one even discusses the standard of review appropriate in

considering a district court’s subsidiary “findings of

historical fact.” There simply is no conflict between the

Court of Appeals’ statement of law on this point and that

found in any other cited decision.

Nor is there any error in the Court of Appeals’ approach.

Petitioners mistakenly assume that whenever an appellate

court reviews a legal conclusion de novo, it should also

review de novo all component parts of that conclusion. This

is incorrect. This Court has repeatedly noted that even if a

trial court conclusion is appropriately classified as one of

law, an appellate court should review for clear error any

subsidiary findings of historical fact.

In Ornelas v. United States, 517 U.S. 690 (1996), for

example, this Court held that “determinations of reasonable

suspicion and probable cause should be reviewed de novo on

appeal,” but “hasten[ed] to point out that a reviewing court

should take care . . . to review findings of historical fact only

for clear error.” /d. at 699. Similarly, in Miller v. Fenton,

474 U.S. 104 (1985), this Court held that while the

voluntariness of a confession is a legal question subject to

plenary federal review on habeas, “subsidiary factual

questions, such as whether a drug has the properties of a

truth serum or whether in fact the police engaged in the

intimidation tactics alleged by the defendant, are entitled to

[the presumption of correctness attaching to factual

determinations]. /d. at 112 (citations omitted). Fed. R. Civ

P. 52(a) simply does not “exclude certain categories of

factual findings from the obligation of a court of appeals to

accept a district court’s findings unless clearly erroneous.”

Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982). This

is no less true where a factual finding serves as a predicate to

a legal conclusion reviewed de novo.

24

The decision below was fully consistent with these

principles. In the district court, petitioners raised a host of

factual allegations regarding the knowledge and intentions of

the individual treaty negotiators. They asserted, for example,

that the American negotiators lacked knowledge of the

shellfish industry and in drafting the proviso would have

looked instead to other “frontier contexts” like mining or

agriculture. App. 59. They further asserted that even if the

negotiators had known about the shellfishing industry, they

would have distinguished between the east and west coast

industries, and that there were no uniform industry practices

regarding the staking or cultivating of beds. See, e.g.,

Growers Pet. 5, 8. They likewise asserted that the Indian

negotiators had no knowledge of shellfishing industry

practices, uniform or not. /d. at 7. These were factual

allegations, and after a three-week trial the district court

rejected them all on the basis of “compelling and persuasive”

evidence to the contrary. App. 55. In reviewing those

claims on appeal, it was entirely appropriate for the Court of

Appeals to show deference to the district court’s findings of

fact regarding them. Rule 52(a) dictated that it do no less.

Employing a deferential standard of review with respect

to subsidiary factual findings is also fully consistent with this

Court’s decisions. Contrary to petitioners’ repeated claims,

for example, this Court in Fishing Vessel did not engage in a

plenary review of disputed facts as to the knowledge and

intentions of the Stevens treaty negotiators. Rather, it cited

extensively to the district court’s findings on those points

and conducted its treaty interpretation on the basis of those

findings. See; e.g., 443 U.S. at 664-69, 676-77 (citing to the

district court’s findings for the proposition _ that

“fcjontemporaneous documents make it clear that [the

negotiators] recognized the vital importance of the fisheries

to the Indians and wanted to protect them from the risk that

non-Indian settlers might seek to monopolize their fisheries”

(emphasis added)).~°

The Alexander petitioners cite to three other decisions of this Court,

Alexander Pet. 27, but again there is no tension with the decision below

None of those decisions contains any standard of review discussion. Nor

do there appear to have been any disputed issues of historical fact on

which the lower courts had been required to make findings.

[he Growers, meanwhile, cite to four court of appeals

none of those cases,

decisions to allege a conflict. In

however, had the respective district courts resolved any

disputed issues of historical fact, so these decisions provide

no guidance as to the standard of review that the circuits

would employ in such a situation.“’ Moreover. highly

analogous cases from those circuits demonstrate that they

vould take the same approach as did the court below. Thus.

while petitioners insist that treaties are just like statutes, they

are in fact a combination of contract and statute, and both

contractual and_ statutory principles of interpretation are

ipplied to them.*” See O’Connor v. United States. 479 US

27, 33 (1986); Fishing Vessel, 443 U.S. at 675.

[he universal rule with respect to contracts is that, where

there are disputed issues of historical fact pertinent to

determining the intent of the contracting parties, the trial

court's resolution of those issues is reviewed for clear error

see, e.g., National Union Fire Ins. Co. v. Circle. Inc.. 915

F.2d 986, 989 (CAS 1990) ( “{I]f the interpretation of the

contract turns on the consideration of extrinsic evidence.

such as evidence of the intent of the parties, the standard o!

review is clearly erroneous.” (emphasis added)):

Scarborough y. Ridgeway, 726 F.2d 132. 135 (CA4 1984)

(“There are factual questions involving the interpretation of

in agreement to which the not-clearly erroneous standard

such as the intent of the parties in employin;

documentary

applies

imbiguous language where the oral and

rr. 7 “or > > > mM lry . nde oy matiar

| wo of the cases involved appeals from summary judgment moti:

Department of Navy, 911 F.2d 797

linbDow Navigation, Inc., \

CADC 1990); MacNamara v. Korean Air Lines. 863 F.2d 1135

CA3 1988). The other two involved appeals from motions to

ice of process where there were no factual issues relating to treaty

nterpretation presented. Tabion v. Mufti, 73 F.3d 535, 537 (CA4 1996)

Areimerman v. Casa Veerkamp, S.A. de CV , 22 F.3d 634. 636-37 (CA:

1994). While the courts of appeals in several of the

me discussion of the treaty negotiating records, there does

j

ore

aes)

have been any dispute as to the contents of those recor

qguas

er

cases engaged

no mnNe a

AIUL aAUUCd

ri

ite would not c

Interpreting a treaty just like a statute

.<

ye the ont

nang Lic yu

in any event. Where there is a factual controversy as to a leg

ntent the rule remains the same: the district court conclus

I W [O e

subject is a factual determination subject to revie

Hu nier \ [ nderwo. »d 17 l | S »22 )2 y

26

evidence is conflicting.”); Washington Hosp. v. White, 889

F.2d 1294 (CA3 1989) (same); North Cent. Airlines, Inc. v.

Continental Oil Co., 574 F.2d 582, 586-87 (CADC 1978)

(same). The Ninth Circuit decision honored that rule here,

and there is no conflict on which to base a grant of certiorari.

The Growers complain that deferring to subsidiary

factual findings puts an appellate court in the position of

automatically deferring on the ultimate issue of treaty

meaning. This is not so. The Growers confuse a district

court’s findings regarding the treaty negotiators’ knowledge

and desires with the ultimate question of the United States’

and the tribes’ intent. In some cases the evidence regarding

the former might be equivocal, and where the district court

might draw one conclusion from that indeterminacy, an

appellate court might as a legal matter draw another. In

other cases, however, the findings might be so strong as to

point reasonably only in one direction. This is such a case.

The district court found that the American treaty

negotiators were familiar with the terms and practices of the

shellfish industry as they prevailed on both the east coast and

in the Washington Territory (indeed, George Gibbs’ writings

explicitly equate the two). App. 64-66, 71. It further found

that the treating Indians had knowledge of those terms and

practices by virtue of their exposure to them at Shoalwater

Bay. App. 65-66. And it found that the choice of the term

“beds staked or cultivated” in the shellfish proviso was no

accident, but that “staked” and “cultivated” beds were widely

understood to refer to beds of shellfish created by citizens

where natural shellfish beds of that type did not exist. App.

77-78. These findings do strongly suggest the conclusion

that the treaty prohibits tribal shellfishing only from artificial

beds, but that the evidence here is so strong does not mean

that a less deferential standard of review should be

employed, any more than a different standard of review

would be called for where a trial court determines that a

confession was involuntary based on factual findings that a

defendant had been tortured before confessing.

To the contrary, the weight of the evidence provides yet

another reason for denying certiorari. The district court

repeatedly described the proof in support of the tribes’

interpretation of the proviso as “compelling and persuasive,”

App. 55, and the Court of Appeals was clearly of the same

onan ae aa

view. App. 26. A ruling that the court below should engage

in a plenary review of all factual matters would be highly

unlikely to have any effect on the ultimate outcome.

B. The Proviso Meaning is a Unique, Factbound

Issue Which the Courts Below Decided Correctly.

Petitioners argue to varying degrees that this Court

should review the merits of the holdings below that the

shellfish proviso prohibits tribal harvesting only from

artificial shellfish beds. But that determination gives rise to

no conflict and will have no impact beyond this case. There

are no other Indian treaties containing language about

shellfish beds.

The interpretation of the proviso language, moreover, is a

heavily record-based inquiry. To reach their conclusions. the

courts below engaged in a searching and detailed analysis of

how the words of the proviso were understood and used at

treaty times and how the parties acted subsequent to the

treaties. They examined sources including industry treatises,

newspaper and magazine articles, court decisions.

legislation, the letters and journals of oystermen, the treaty

records, and the writings of the treaty negotiators

themselves, all of which consistently distinguished staked or

cultivated from natural beds of shellfish, and they considered

substantial expert testimony on the subject.

In short, the lower courts did as this Court instructed in

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

and interpreted the treaty language “in light of the common

notions of the day and the assumptions of those who drafted

[it]. Jd. at 206. They addressed the arguments raised by

petitioners here, finding them insufficient to overcome the

“compelling” App. 55, 59, and “overwhelming[]” evidence

in support of the tribes’ interpretation of the proviso. App

78.°” Petitioners’ requests that this Court engage in the same

Petitioner’s claims of error do not withstand even the slightest

scrutiny. For example, they claim that the courts below should have

limited their analysis to dictionary definitions, even though treaty-time

dictionaries do not define staked or cultivated shellfish beds, and even

though their own expert conceded that the negotiators drew the proviso’s

terms from the shellfish industry. App. 26; D-467 at 108. See Eastern

Airlines, Inc. v. Floyd, 499 U.S. 530. 537 (1991) (unanimous)

(“dictionary definitions may be too general for purposes of treaty

— ee ty ee

28

heavily record-based and factbound inquiry already

conducted by the two courts below betray a fundamental

misunderstanding of this Court’s role and do not present a

basis for certiorari.

\V. This Case Presents No Opportunity To Revisit Well-

Settled Law Regarding Laches.

Following an unbroken line of precedent, the courts

below held that the doctrine of “laches or estoppel is not

available to defeat Indian treaty rights” in a case such as this.

App. 28 (quoting Swim v. Bergland, 696 F.2d 712, 718 (CA9

1983), and citing Board of County Comm'rs v. United States,

308 U.S. 343, 350-51 (1939}). The Growers and the

property owners challenge this holding (the State does not

raise the argument), but allege no circuit split. Certiorari

should be denied on this basis alone.

Pointing to the dissertt in County of Oneida v. Oneida

Indian Nation, 470 U.S. 226 (1985), the Growers claim that

uncertainty exists as to whether a tribe, proceeding by itself,

may be subject to the bar of laches. Not only has the alleged

uncertainty failed to create any circuit split, but in this case

the United States has sued along with the tribes for

vindication of the tribes’ treaty rights. It is clear beyond

cavi! (and petitioners make no claim to the contrary) that the

interpretation”). They argue that the proviso prohibits tribal harvesting

from “any beds,” as if the overwhelming evidence as to the meaning of

the “staked or cultivated” modifier does not matter. They claim that the

courts below relied on a technical interpretation of east coast shellfish

law, when those courts canvassed a wide variety of non-technical

materials showing that the American public in general, and the treaty

negotiators in particular, were familiar with the terms and practices of the

shellfish industry, and that the treating Indians understood those practices

by virtue of their exposure to them at Shoalwater Bay. App. 26, 59-78.

They argue that the courts should have deferred to a 1905 letter from the

Commissioner of Indian Affairs, even though that letter does not discuss

the proviso, had its reasoning rejected by Winans 45 days after it was

written, and is in conflict with a Commissioner's opinion written closer

in time to the treaties. ER 1161-63; App. 76-77. Finally, they argue that

the holdings below render the proviso duplicative of the treaties’ “usual

and accustomed” limitation, when in fact the tribes’ usual and

accustomed grounds and stations are broad areas within which there exist

many locations containing only artificial shellfish beds, which the tribes

could harvest were it not for the proviso.

—

29

doctrine of laches does not apply to the United States acting

in its capacity as trustee for the tribes. Nevada v. United

States, 463 U.S. 110, 141-42 (1983); Board of County

Comm'rs, 308 U.S. at 351; United States vy. Minnesota, 270

U.S. 181, 196 (1926); cf United States vy. California 507

U.S. 746, 757 (1993). The position advocated by the

Growers therefore has no relevance to the outcome of this

case. The writ should be denied.

VI. Petitioners’ Overstated Claims of Hardship Do Not

Support a Rewriting of the Treaties.

Throughout their arguments, petitioners claim that the

decisions of the courts below are highly unfair and will wield

a devastating impact on them. While clearly designed to

engender sympathy, these claims are both factually

overblown and an inappropriate basis for certiorari.

First, it is impossible to square petitioners’ claims of

hardship with the holdings below. Thus, while the

Alexander and UPOW petitioners allege that unfettered tribal

access to their properties will cause them great

inconvenience and emotional harm, they nowhere

acknowledge the stringent limitations that the courts below

imposed on such access in response to their concerns. The

tribes may harvest shellfish from private tidelands only five

days out of every year (with slight increases for large

properties), and they may do so only after having given the

owner at least a month’s notice and after having conducted

expensive surveys definitively quantifying the natural

shellfish presence on those tidelands. App. 37-40, 126-27,

146. As a practical matter, then, the tribes who could once

resort to their fisheries at will may now do so only under the

most restrictive of conditions.

The Growers, meanwhile, complain that the decisions

below will rob them of the “fruits of their labor.” This is

pure hyperbole. Under the Court of Appeals’ decision the

growers will never lose a single clam or oyster produced by

dint of their effort or investment. The holding below

unequivocally limits the tribes only to a share of those

shellfish that would naturally exist without the growers’

labor. App. 33-35.

The impact on the growers from having to share nature’s

shellfish has not been finally determined, as the Ninth

30

Circuit remanded to the district court the question of the

natural productivity of the growers’ beds. The tribes have

already conceded, however, that virtually all of the growers’

oyster and mussel! beds are artificial, App. 106, exempting

approximately 66% of the total value of the shellfish

commercially harvested from Washington tidelands from

any tribal share. PL-988, Tbl. 50. The remaining 34% of the

commercial harvest is largely in the form of clams, and here

again it is clear that much of the growers’ production results

from their efforts. The total tribal share of the natural

production will therefore likely be very small compared to

the growers’ overall harvest.

Petitioners, of course, make no mention of the hardship

and poverty suffered by the tribes because of years of

exclusion from their fisheries. Even more fundamentally,

petitioners’ allegations of harm cannot serve as a basis for

interpreting what the treaties mean. It is a cardinal rule that

“even Indian treaties cannot be rewritten or expanded

beyond their clear terms to remedy a claimed injustice.”

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

432 (1943). See also Northwestern Bands of Shoshone

Indians v. United States, 324 U.S. 335, 353 (1945). This rule

is often applied to the detriment of Indian tribes; it applies

with equal force when non-Indians seek to rewrite treaty

terms to avoid a claimed injustice. This Court is simply not

in the business of recrafting treaty promises that only

Congress may amend, and petitioners’ overstated claims of

harm therefore do not create a basis for certiorari.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted,

RIYAZ A. KANJI PHILLIP E. KATZEN

WILLIAMS AND CONNOLLY Counsel of Record

725 12th Street N.W. COLUMBIA LEGAL SERVICES

Washington, D.C. 20005 101 Yesler Way, Suite 301

(202) 434-5000 Seattle, WA 98104

(206) 464-0838

Attorneys for Respondents the Jamestown, Lower Elwha and Port

Gamble Bands of S’Klallams, Nisqually, Nooksack, Sauk-Suiattle,

Skokomish, Squaxin Island, Stillaguamish and Upper Skagit Tribes

(Additional Attorneys and Respondents Continued)

DANIEL RAAS

HARRY JOHNSEN

OFFICE OF THE

RESERVATION ATTORNEY

Attorneys for the Lummi Indian Tribe

1503 “E” Street

P.O Box 5746

Bellingham, WA 98227-5746

(360) 647-0234

RICHARD BERLEY

JOHN ARUM

MARK SLONIM

ZIONTZ, CHESTNUT, VARNELL,

BERLEY & SLONIM

Attorneys for the Makah Tribe

2101 Fourth Avenue

Suite 1230

Seattle, WA 98121-2331

(206) 448-1230

BILL TOBIN

Attorney for the Nisqually Tribe

1209 Courthouse Square

P.O. Box 1425

Vashon, WA 98070

(206) 463-3147

KEVIN R. LYON

RON WHITENER

Attorneys for the

Squaxin Island Tribe

112 East Fourth Avenue

Suite 200

Olympia, WA 98501-1103

(360) 786-5005

MASON D. MORISSET

MORISSET, SCHLOSSER,

AYER & JOZWIAK

Attorney for the Tulalip Tribes

1115 Norton Building

801 Second Avenue

Seattle, WA 98104- 2 5u9

(206) 386-5200

ANNETTE M. KLAPSTEIN

JOHN HOWARD BELL

DEBRA S. O’GARA

LAW OFFICE OF THE

PUYALLUP TRIBE

Attorneys for the Puyallup Tribe

2002 East 28th Street

Tacoma, WA 98404

(253) 597-6200

ROBERT L. OTSEA, JR.

ALAN STAY

Attorneys for the Muckleshoot

Indian Tribe

39015 172nd Avenue S.E.

Auburn, WA 98002

(253) 939-3311

RUTH KENNEDY

GARVEY, SCHUBERT

& BARER

Attorneys for the Quileute Tribe

1191 Second Avenue

18th Floor

Seattle, WA 98101-2939

(206) 464-3939

32

KATHRYN NELSON

EISENHOWER & CARLSON PLLC

Attorneys for the Port Gamble,

Lower Elwha and Jamestown Bands

of S’Klallams and the

Skokomish Tribe

1201 Pacific Avenue

1200 Wells Fargo Plaza

Tacoma, WA 98402

(253) 572-4500

NETTIE ALVAREZ

RICHARD RALSTON

RALSTON & ALVAREZ

Attorneys for the Hoh Tribe

1420 Fifth Avenue

Suite 2200

Seattle, WA 98101

(206) 224-2882

ALLAN E. OLSON

ALIX FOSTER

Attorneys for the

Swinomish Indian Community

P.O. Box 817

LaConner, WA 98257

(360) 466-3163

EDWARD G. MALONEY

Attorney for the Upper Skagit Tribe

2284 Community Plaza

Sedro Woolley, WA 98284

(360) 856-5501

JEFFREY JON BODE

Attorney for the Nooksack Tribe

215 West Holly Street, #G-7

P.O. Box 6092

Bellingham, WA 98227-6092

(360) 734-4219

HAROLD CHESNIN

MATHEWS, GARLINGTON-

MATHEWS & CHESNIN

Attorney for the

Upper Skagit Tribe

219 South Washington

Seattle, WA 98104

(206) 621-7557

JOHN SLEDD

Attorney for the

Suquamish Tribe

P.O. Box 498

Suquamish, WA 98392

(360) 598-3311

RICHARD REICH

Attorney for the

Quinault Indian Nation

P.O. Box 189

1214 Aalis

Taholah, WA 98587

(360) 276-8211