# Opposition Brief — Washington v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1060

## Text

Nos. 98-1026, 98-1028, 98-1039. 98-1052
___— ——_— a

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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194.909 YUGUaMUSN Lribe
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P.O Box 498
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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

4 T

{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

4 7 . é 1 ¢ 44

+ | ) 54 (| Y4))

1\

, ¥ ’ y . so 7 10
. 4 730 - vityn th 4345 1] XN iY
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

lan) ~

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

r
re

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

t > a | a + +) . | " _ *
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1072%3A2. Public record. Not legal advice.