Opposition Brief — Washington v. United States

‘ Supreme Court, U.S.

FILED

Nos. 98-1026, 98-1028, 98-1039 and 98-105

Jn the Supreme Court of the United Sates -——

OCTOBER TERM, 1998

STATE OF WASHINGTON, PETITIONER

LUINITED STATES OF AMERICA, ET AL.

PUGET SOUND SHELLFISH GROWERS, PETITI!

26 TIDELAND AND UPLAND PRIVATE PROPER

UWNERS, ET AL., PETITIONERS

B. AND SHIRLEE ALEXANDER, I

PETITIONERS

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QUESTIONS PRESENTED

1. Whether the “right of taking fish at all usual and

accustomed grounds and stations * * * in common with all

citizens,” reserved by respondent Indian Tribes in the

Stevens Treaties, entitles the Tribes to take an equitable

measure of the harvestable shellfish of every species found

within their customary fishing areas, except as limited by

the shellfish proviso.

2. Whether the treaty “right of taking fish at all usual and

accustomed grounds and stations * * * in common with all

citizens” entitles the Tribes to harvest shellfish on private

lands and to gain access to private uplands for the purpose of

exercising shellfishing rights in the absence of access by

other means.

3. Whether the court of appeals correctly applied the

“moderate living” doctrine of Washington v. Washington

State Commercial Passenger Fishing Vessel Ass’n, 443 U.S.

658 (1979).

4. Whether the court of appeals correctly interpreted the

shellfish proviso, which excludes the Tribes from taking

shellfish from “beds staked or cultivated by citizens.”

5. Whether the court of appeals correctly refused to apply

the doctrine of laches to bar this suit.

wah reeled aan at ee

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TABLE OF CONTENTS

Page

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I Tica teccecda linseed ienortainbllldbcdehoneniatenenisepmeniiansocosonees ipcensnnnie 2

ESS a SSE SEE BS 5 SARE OS a ge 9

alas eeecaseiipmionabinepiveseesedneeesetonvanes 27

TABLE OF AUTHORITIES

Cases:

ATACS Corp. v. Trans World Communications,

Ine., 166 F.3d G69 (Sd Cir. 1998) .....ccccccoccccccsocscccscssocccsscsseee 24

Antoine v. Washington, 420 U.S. 194 (1975) wee 17. 18

Board of County Comm’rs v. United States, 308

I heehee ittonecpatcopvoninnaenecneoddseoseeeton 25

Cramer v. United States, 261 U.S. 219 (1923) ...........00000.. 25

Crow Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995).

EUR ED i Bi ) c 1). 2)

Ewert v. Bluejacket, 259 U.S. 129 (1922) ce eeseeeeseeee 25

Lac Courte Oreilles Band v. Wisconsin:

mE ES BUD ois ci cbcosaconccasacenserencscsasestenoceses 1s

653 F. Supp. 1420 (W.D. Wisc. 1987) oo... salina 13

Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842) ............ MS

McClanahan vy. Arizona State Tax Comm’n, 411

es sssuoaiieunseunnnses

Mille Lacs Band of Chippe wa Indians V. M nnesota

952 F’. Supp. 1362 (D. Minn.), aff’d, 124 F.3«

904 (8th Cir. 1997), cert. granted, No. 97-1337

June 8, 1998) (argued Dec. 2, 1998) wows. on 1s

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

Montana v. United States, 450 U.S. 544 (1981) ........ 1Y

NRM Corp. v. Hercules, Inc., 758 F.2d 676 (D.(

ene RD es

ITI)

Cases—Continued: Page

Ornelas v. United State 2. 517 U.S. 690 (1996) .................. 24

Pullman-Standard v. Swint, 456 U.S. 2738 (1982) 00.00... 24 :

Puyallup Tribe v. Department of Game, 391 USS. e

LE _, | ERNE See NT FSO mM EE TENT Mee 12

Servicios Comerciales Andinos, S.A. v. General

Elec. Del Caribe, Inc., 145 F.3d 463 (ist Cir.

ROTOR scethdsunseihiénnensedacensebidaktnuamniiinatiabeniaiaaunieiemaaamaatatenne 24

Seufert Bros. Co. v. United States, 249 U.S.

EO nearness 12-13, 16, 18 :

Shively v. Bowlby, 152 U.S..1 (1894) ...cssssesssssssesssessseeessesee 19 ¥

Smith v. Maryland, 59 U.S. (18 How.) 71 (1855) ............. 17

United States v. Dion, 752 F.2d 1261, on remand

to 762 F.2d 674 (8th Cir. 1985), rev'd in part,

Fe Sects. PEN CED peseicn vcteeconlditaeadaeal aanectaadanpicieeesenieence 13

United States v. Michigan, 471 F. Supp. 192

(W.D. Mich. 1979), modified, 653 F.2d 277 (6th

Cir.), cert. denied, 454 U.S. 1124 (1981) .............ccccsseeseees 13

lU'nited States v. Minnesota, 270 U.S. 181 (1926) ............. 25

United States v. Top Sky, 547 F.2d 486 (9th Cir. :

SUPT). ssnciassarreccesntahanndusinshentinaebiniauaaeanesa aap aalabeinedintees 13 |

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

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

Cir. 1975), cert. denied, 423 U.S. 1086 (1976) ............... 6, 12

United States v. Winans, 198 U.S. 371 (1905) .......... 3. Lo. iD.

l’tah Power & Light Co v. United States,

SD Saas Ce CHAD sssssinnesneeprennsiiansibatieinniananianeniiabininniiniaans 25

Ward v. Race Horse, 163 U.S. 504 (1896) .....................0006 ?]

Washington v. Washington State Commercial

Passe) ger F shing Vessel Ass'n, 143 U.S. 658

E aN W UT nical dsuniashisetcssunencesacudincdenGdcdeampmamadsaieemadamaitet cieoeamadns passin

lreaties and rule:

lreaty of Medicine Creek, Dec. 26, 1854, 10 Stat

YP ROBE A IRR

Treaties and rule—Continued: Page

Treaty of Point Elliott, Jan. 22, 1855, 12 Stat.

OST we 2

lreaty of Point No Point, Jan. 26, 1855, 12 Stat

SHIED <sisisssinepnnntensaeshccniiaaphintsauieeheaaseiaandbaaiaabidsabiadeontesniobeesonge y

Treaty with the Makah, Jan. 31, 1855, 12 Stat. 939 ....... 2

Treaty of Olympia, July 1, 1855, 12 Stat. 971 woe 2

PE: Be Ce. ee ek eck es

In the Supreme Court of the Anited States

OCTOBER TERM, 1998

No. 98-1026

STATE OF WASHINGTON, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

No. 98-1028

PUGET SOUND SHELLFISH GROWERS, PETITIONER

v.

LNITED STATES OF AMERICA, ET AL.

No. 98-1039

26 TIDELAND AND UPLAND PRIVATE PROPERTY

OWNERS, ET AL., PETITIONERS

VU.

UNITED STATES OF AMERICA, ET AL.

No. 98-1052

LARRY B. AND SHIRLEE ALEXANDER, "TAL.,

PETITIONERS

Uv.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

lO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-49) is

reported at 157 F.3d 630. The opinions of the district court

are reported at 875 F. Supp. 1422 (Pet. App. 51-93), S898

(1)

F. Supp. 1453 (Pet. App. 95-184), and 909 F. Supp. 787 (Pet.

App. 135-148). Additional opinions of the district court (Pet.

App. 153-162) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 28, 1998. The petitions for rehearing were denied

on September 25, 1998. Pet. App. 8-9. The petitions for a

writ of certiorari in Nos. 98-1026 and 98-1039 were filed on

December 22, 1998, and the petitions in Nos. 98-1028 and 98-

1052 were filed on December 28, 1998. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1854 and 1855, respondent Indian Tribes of what is

now western Washington State entered into the Stevens

Treaties,’ under which they relinquished their right to most

of their territory in exchange for periodic monetary pay-

ments, small parcels of land set aside for their exclusive use,

and certain other guarantees, including the preservation of

their aboriginal fishing rights throughout their ceded lands

in Puget Sound. In essentially identical language, each of the

Treaties provided:

The right of taking fish, at all usual and accustomed

grounds and stations, is further secured to said Indians,

] TT . “un yp . ”

' The treaties are known as the “Stevens Treaties” because Isaac

Stevens, the Governor and Superintendent of Indian Affairs for the

Washington Territory, was directly involved in their negotiation. See

Washington v. WaShington State Commercial Passenger Fishing Vessel

Ass'n, 445 U.S. 658, 666 (1979). Each of the Tribes in this litigation (see

Pet. App. 9 n.1) is the successor-in-interest to one or more of those

treaties, which include the Treaty of Medicine Creek, Dec. 26, 1854, 10

Stat. 1132; the Treaty of Point Elliott, January 22, 1855, 12 Stat. 927; the

Treaty of Point No Point, January 26, 1855, 12 Stat. 933; the Treaty with

the Makah, January 31, 1855, 12 Stat. 939; and the Treaty of Olympia, July

1, 1855, 12 Stat. 971. See Pet. App. 169-209.

LY POLAT 8

*

in common with all citizens of the Territory,

Provided, however, That they shall not take shell fish

fronranybeds-staked or cultivated by citizens{.]

Pet. App. 12; see, e.g., id. at 170.

Both the United States and the Tribes viewed protection

of the Tribes’ fishing rights on the ceded lands as an

essential ingredient of the Treaties. See Pet. App. 10-11;

Washington v. Washington State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658, 665-668 (1979) (Fish ing

Vessel). From time immemorial, the Tribes have used and

relied on fish, inclu@ing shellfish, for commercial, sub-

sistence, and ceremonial purposes. See ibid.; see also United

States v. Winans, 198 U.S. 371, 381 (1905) (fishing was “not

much less necessary to the existence of the Indians than the

atmosphere they breathed”). At the time of the Treaties,

the Indians took an enormous variety of fish, including over

LOO species of shellfish. Shellfish were particularly important

ie Tribes because of their dependability and accessibility,

especially when other sources of food became temporarily

scarce. S.E.R. 1033-1034. The Tribes traded shellfish with

other Indians and with non-Indians, supplying most of the

non-Indian settlers’ fish, including clams and oysters. Fish

ing Vessel, 443 U.S. at 666 nn. 7 and 8: E.R. 54-55.

By treaty time, a shellfish cultivation industry had begun

to develop in the Washington Territory. The United States

treaty negotiators were familiar with the practices of that

industry, modeled after the older, larger, and more devel

oped industry on the East Coast.” Pet. App. 11. The

industry was based primarily on the planting or trans

planting of shellfish, primarily oysters, in artificial beds.

|

In the mid-nineteenth century, shellfishing was a major industr

that employed a large number of people. It was regularly covered by th

popular press, and its practices were renerally known to the pubdiie

S.E.R. 116.

Shellfish farmers also commonly stored market-sized shell-

fish in beds that did not naturally contain the kind of

shellfish being stored, and they identified the boundaries of

those man-made storage areas by marking them with stakes

extending above the surface of the water. /bid. The popular

literature, professional treatises, government studies, and

state shellfish laws of the time all confirm a basic fact of the

mid-19th century shellfish industry: natural oyster beds,

then considered “the common property of the people,” id. at

61, were not staked or cultivated, id. at 61-66.

Fish, including shellfish, were exceptionally abundant and

were considered inexhaustible at treaty time. Pet. App. 11.

The United States negotiators thus believed that preserving

the Tribes’ off-reservation fishing rights would not interfere

with the rights of citizens. The negotiators, aware of the

thriving shellfish industry on the East Coast, assumed that

development on Puget Sound also would not interfere with

the Tribes’ exercise of their treaty fishing rights. Jbid. The

treaty negotiators, in keeping with their pledge to preserve

for the Indians their ancient fisheries, wrote those as-

surances into the fishing rights provision of the Stevens

Treaties. See id. at 27.

2. For years following the Treaties, the Indians con-

tinued to harvest a majority of the shellfish resource. During

that period, the Washington territorial government con-

tinued to observe the publie’s general right of taking

shellfish from natural beds and to recognize private owner-

ship rights only in the products of artificial shellfish beds.

After its admission to the Union in 1889, however, Washing-

ton took two courses of action that, in combination, in-

creasingly excluded the Indians from the shellfish resource.

First, the State gradually began selling off its tidelands,

including some of the most productive for shellfish pro-

duction, to private owners. The “vast majority” of those

tidelands are now privately owned. Pet. App. 12. Second,

around the turn of the century, Washington modified state

law to give private property owners exclusive rights to

shellfish found on natural beds. /bid. Thus, even though the

Tribes dominated natural shellfisheries for decades following

the Treaties, non-Indians gradually came to monopolize

them as increasing numbers of those shellfisheries fell into

private hands.

In addition, the shellfish resources of Puget Sound and

their availability for human consumption have diminished as

a result of tideland development and pollution. Native

shellfish have declined dramatically and have been largely

replaced by foreign species introduced into the area after the

Treaties. Pet. App. 12.” This litigation, initiated by the

Tribes and the United States, is the consequence of the

increasing competition for, and depletion of, the shellfish

resource. When this suit was filed, the Tribes’ harvest of

shellfish had diminished to a tiny percentage of the non-

Indian harvest.

3. In 1970, the United States, on its own behalf and as

trustee for several of the Tribes, sued the State of Wash-

ington in federal district court, seeking declaratory and

injunctive relief under the fishing rights provision of the

Stevens Treaties. Following extensive pretrial proceedings

and a lengthy trial, the district court established the loca-

tions of the Tribes’ “usual and accustomed” fishing grounds

and ruled that the Tribes’ treaty rights entitled them to take

For example, native littleneck clams have been replaced sub-

stantially by an introduced species, manila clams, which constituted more

than 80% of the total clam harvest in Puget Sound during the years 1988-

1990. Pet. App. 12. In addition, the intertidal populations of geoduck

clams and crabs, once abundant enough for commercial fisheries, have

continued to decline. S.E.R. 996, 1009, Today, most of those species, along

with octopus, sea urchins and sea cucumbers, are found in deep waters.

See Wash. Pet. 4-5; S.E.R. 970.

6

up to 50% of the harvestable fish from those grounds.’

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

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

denied, 423 U.S. 1086 (1976). The district court’s ruling met

substantial resistance from the State and spawned numerous

other lawsuits that ultimately reached this Court, where the

district court’s interpretation of the Treaties was affirmed.

See Fishing Vessel, supra.

4. In 1989, sixteen Indian Tribes, later joined by other

Tribes and the United States, followed a procedure estab-

lished in Washington I and sought a declaration of the

nature and scope of their off-reservation shellfishing rights

under the Treaties and injunctive relief to enforce those

rights. Pet. App. 14. Several other groups subsequently

intervened in the action: the Puget Sound Shellfish Growers;

the Alexander group and Adkins group of private tideland

owners; and a group of private property owners affiliated

with the United Property Owners of Washington (UPOW).

After extensive pretrial proceedings, followed by a trial

lasting three weeks, the district court issued its decision.

Pet. App. 51-93. Finding that “shellfish” are “fish” within

the meaning of the Stevens Treaties, the district court con-

cluded that the prior decisions of this Court and the lower

federal courts over the past 90 years interpreting the Tribes’

treaty fishing rights apply fully to shellfish. Accordingly, the

district court ruled that the Treaties entitle the Tribes to

take an equitable portion of the harvestable shellfish of

every species found within the usual and accustomed fishing

4

In its original fishing rights decision, the district court endeavored

to resolve almost every issue of fact and law concerning the Tribes’ “right

of taking fish” at their “usual and accustomed” fishing areas under the

Treaties. See 384 F. Supp. at 328-331. Thus, the trial and decision in-

cluded evidence of tribal fishing for many types of fish, including shellfish,

although the relief requested and granted was limited to anadromous fish.

See id. at 312-423.

~

areas identified in Washington I, except as expressly limited

by the shellfish proviso. Jd. at 51-59.

Turning next to the proviso, the district court “inter-

pretied] the terms ‘staked’ and ‘cultivated’ as the terms

were defined and used in the shellfishing industry at and

before treaty time.” Pet. App. 77. After a thorough review

of the historical evidence relating to that issue, the district

court determined that the treaty negotiators viewed

“natural” beds and “staked or cultivated” beds as mutually

exclusive categories, and it concluded that the proviso was

intended to exclude the Tribes from artificial, but not

natural, shellfish beds. Jd. at 59-79.

The district court then directed the parties to design a

joint implementation plan for the Tribes’ shellfish rights

under the Treaties. After the parties failed to reach con-

sensus on a plan, the court held a second trial. The district

court issued an implementation decision and an implementa-

tion plan that, among other things, imposed specific

restrictions on the Tribes’ ability to harvest shellfish on

private properties and set forth u. te resolution pro-

cedures using a special master. Pet. App. 95-134.

5. The State, together with the intervening commercial

shellfish growers and private property owners, appealed.

The United States and the Tribes cross-appealed from

several rulings made by the district court in its implementa-

tion decision.

The court of appeals first affirmed the district court’s

basic interpretation of the Treaties. It concluded that the

right of taking shellfish is coextensive with the right of

taking other kinds of fish, and that, under the line of

authority culminating in this Court’s decision in Fishing

Vessel, the Tribes may take an equitable portion of shellfish

of every species found anywhere within their customary

fishing areas, except as limited by the shellfish proviso. See

Pet. App. 17-25. The court of appeals then affirmed the

district court’s interpretation of that proviso, holding, among

other things, that petitioners’ contrary interpretation vio-

lates “black-letter canons” of treaty construction and “is

totally inconsistent with the United States’ avowed intention

to preserve for the Indians their ancient fisheries.” Pet.

App. 27-28 (internal quotation marks omitted). Although the

court reviewed for clear error the district court’s findings on

certain predicate facts (such as the practices of the mid-19th

century shellfish industry and the familiarity of the treaty

negotiators with those practices), it “review[ed] de novo

whether the district court reached the proper conclusion as

to the meaning of the [proviso] given those findings,” id. at

16, and then independently determined that the district

court’s interpretation was in fact “correct,” id. at 26.

The court of appeals reversed portions of the district

court’s implementation decision, which the United States

and the Tribes had challenged in their cross-appeals. The

court held, among other things, that the district court had

abused its discretion by applying notions of equity to re-

define the treaty term “cultivated” so as to limit the Tribes’

rights to shellfish from the commercial shellfish Growers’

properties. That interpretation, the court reasoned, would

result in abrogation of the Tribes’ treaty right. Pet. App. 29-

32. Rejecting other arguments of the United States and the

Tribes, however, the court concluded that “only those

Growers’ beds that exist solely by virtue of the natural pro-

pagation of the species are subject to a full fifty-percent

harvest allocation.” Jd. at 34. Thus, where the Growers had

enhanced shellfish production on natural beds, the Tribes are

entitled to a share only of “the pre-enhanced sustainable

shellfish production from those beds.” Jd. at 34-35 & n.12.

That allocation analysis, however, does not apply to the

co

Growers’ artificial beds, which the shellfish proviso wholly

excludes from the Tribes’ treaty rights. Jd. at 35.°

ARGUMENT

Two points of agreement among the parties are essential

to a proper understanding of this case. First, the district

court found that shellfish are “fish” within the meaning of

the Stevens Treaties (see Pet. App. 52, 56-57), and peti-

tioners have acquiesced in that ruling. Second, petitioners

present no claim that the Tribes wish to exercise fishing

rights in geographical areas where they had historically

engaged in no fishing at all. The boundaries of the Tribes’

“usual and accustomed” fishing grounds were set in

Washington I, and all shellfish beds at issue are located

within those boundaries. See Pet. App. 19-20, 57-58. The

question here is whether the Tribes may take certain kinds

of fish—shellfish—in those same geographic areas, along

with the other kinds of fish that they are unquestionably

entitled to take there. See id. at 19; id. at 57-58; see also

Alexander Pet. 18.

As discussed more fully below, the parties’ agreement on

those two matters is largely dispositive of this case. Because

shellfish are “fish,” these petitions present few issues that

are not squarely resolved, in the Tribes’ favor, by this

Court’s existing decisions construing and enforcing the

Stevens Treaties. Petitioners’ basic position is that the

Tribes’ “right of taking fish” under the Treaties must yield in

critical respects to the sale of the “vast majority” (Pet. App.

12) of tidelands in Washington State to private owners. In

5

Judge Beezer concurred separately to express, among other things,

his concerns over the private shel!fish Growers’ property rights, the law of

the case on the meaning of the fishing rights provision of the Stevens

Treaties, and the appointment of a special master to resolve disputes

under the implementation plan adopted by the lower courts. See Pet.

App. 42-49.

10

Fishing Vessel, however, this Court held (or, more precisely,

reaffirmed) that “[t]he contingency of the future ownership

of the lands * * * was foreseen and provided for” (443 U.S.

at 680 (quoting United States v. Winans, 198 U.S. 371, 381

(1905)) when the Treaties were signed; that the Treaties

provided for that contingency in part by entitling the Tribes

to “cross[]” and “oecupy” private property when exercising

their “right of taking fish” (d. at 680-681 (quoting Winans,

198 U.S. at 381)); that neither side to this dispute “may rely

on the State’s regulatory powers or on property law con-

cepts to defeat” rights under the Treaties (id. at 682); and

that the “equitable measure” of fish the Tribes are entitled

to take under the Treaties “should initially divide the

harvestable portion * * * into approximately equal treaty

and nontreaty shares,” subject to reduction upon a fact-

specific showing that “tribal needs may be satisfied by a

lesser amount” (id. at 685). Those holdings decide virtually

every dispute in this case, except for the meaning of the

shellfish proviso. And, as discussed below, the court of

appeals’ interpretation of that proviso is correct, and its

precedential significance is confined to this case alone. Fur-

ther review is therefore not warranted.

l. a. Petitioners contend (State Pet. 12-18; Growers Pet.

26-28) that the Tribes’ right to take shellfish should be

confined to the species that they took at the time of the

Treaties and further confined to the exact places where

those species were then found. Again, this is not a dispute

about the geographical reach of the Tribes’ “usual and

accustomed grounds” for fishing in general, which have long

been held to include all areas at issue, including “deep water”

areas. See Pet. App. 159; see also id. at 19-20. Instead,

petitioners contend that the Treaties give the Tribes access

to those areas for purposes of taking many kinds of fish (such

as salmon and herring) but not others (in particular, not

certain species of shellfish).

11

As an initial matter, the factual premise of that

claim—that the Tribes traditionally took few shellfish and

never in deep water (see Wash. Pet. 21)—is very much

disputed, although petitioners do not make that clear. At

treaty time, the Tribes had long taken many species of

shellfish, both for their own consumption and for commercial

purposes. See, e.g., Pet. App. 10. Moreover, the Tribes

introduced substantial evidence at trial that their shell-

fishing activities extended to deep water areas, despite the

assumption to the contrary in the State’s petition. See

Tribes C.A. Br. 88-92. Finally, although the State re-

peatedly uses the term “deep water shellfish” (see, e.g., Pet.

21) as though it identified particular species (which, the

State erroneously suggests, the Tribes could never have

taken), many species of shellfish can and often do exist

naturally in both intertidal and deep waters. See note 3,

supra.

Even apart from those threshold factual problems, how-

ever, petitioners’ species-based construction of the Stevens

Treaties is without merit. The Treaties reserve the Tribes’

preexisting and plenary “right of taking fish,” subject only to

the proviso against taking shellfish from beds “staked or

cultivated” by non-Indians. Had the treaty negotiators

intended to limit that general right to the species and har-

vest methods used at treaty time, despite inevitable changes

in fish populations, they would have made that clear, and

they would not have chosen the word “fish,” which has

“perhaps the widest sweep of any word the drafters could

have chosen,” Pet. App. 18, and which “fairly encompasses

every form of aquatic animal life,” id. at 57. Even if the

treaty language were in any respect ambiguous, which it is

not, it is hornbook law that ambiguities in Indian treaties

“are to be resolved in favor of” the Indian signatories, Mc-

Clanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174

(1973), a principle that this Court has repeatedly applied in

12

cases involving interpretation of the Stevens Treaties. See,

e.g., Fishing Vessel, 443 U.S. at 679.

Nor can support for petitioners’ approach be derived from

the judicial decisions upon which they rely. Petitioners focus

on this Court’s observation in Fishing Vessel that “securing”

fishing right’s is “synonymous with ‘reserving’ rights pre-

viously exercised.” 443 U.S. at 678. But, as the Court added

in the next sentence, the “right previously exercised,” on

which this Court placed a “broad gloss” (id. at 679), is

defined as the general right of tribal members “to meet their

subsistence and commercial needs by taking fish from treaty

area waters” (/bid.). That is precisely the right that the

Tribes seek to exercise here, and nothing in Fishing Vessel

suggests that the right should be subdivided and limited on

the basis of species. See also Puyallup Tribe v. Department

of Game, 391 U.S. 392, 398 (1968).° Similarly, petitioners’

position draws no support from Seufert Brothers Co. v.

b

The State also notes that, as quoted in the background section of

Fishing Vessel (see 443 U.S. at 667), the district court had observed in

Washington I that, under their Treaty, “the Yakimas would forever be

able to continue the same off-reservation food gathering and fishing

practices as to time, place, method, species and extent as they had or were

exercising.” 384 F. Supp. at 381. But nothing in Washington I, much less

Fishing Vessel, supports the notion that Indian fishing rights could be

subject to limitations based on species. To the contrary, in a passage of

Washington I that petitioners fail to cite, the district court held that the

Tribes’ treaty right “is not limited as to species of fish, the origin of fish,

the purpose or use or the time or manner of taking,” and that the treaties

“do not prohibit or limit any specific manner, method, or purpose of taking

fish.” 384 F. Supp. at 401, 402. That determination was based on the

district court’s finding that, historically, “Indian fishing was not limited to

any species. They took whatever species were available at the particular

season and location.” Jd. at 350- 352. The district court’s legal conclusions

in Washington I were affirmed in all respects in United States v.

Washington, 520 F.2d 676, 693 (9th Cir. 1975), and were left undisturbed in

Fishing Vessel.

13

United States, 249 U.S. 194 (1919). Cf. Wash. Pet. 18;

Growers Pet. 26-28. The issue in that case was not the

content of the Tribes’ “right of taking fish,” but the

boundaries of the Tribes’ “usual and accustomed” grounds

for exercising that right. The two issues are distinct, and, as

noted, the latter is not presented here.’

Finally, the State contends (Pet. 19-21) that the courts

below improperly applied the apportionment or “moderate

living” standard set forth in Fishing Vessel, and that alloca-

tion of shellfish resources must depend on the “historic

7 The State contends (Pet. 16-17) that the decision below conflicts

with decisions holding that certain other Indian treaties pose no obstacle

to prosecution of individual Indians who violate a federal criminal pro

hibition on the commercial sale of eagle feathers. See United States v.

Dion, 752 F.2d 1261 (8th Cir. 1985) (en bane), on remand to 762 F.2d 674

(8th Cir. 1985), rev'd in part, 476 U.S. 734 (1986); United States v. Top Sky,

547 F.2d 486 (9th Cir. 1976). There is no such conflict. In those cases, the

courts concluded that the Indians neither understood nor intended that

their treaty right would encompass a right to sell eagles commercially, and

that they in fact “deplored” the practice. Top Sky, 547 F.2d at 487-488;

Dion, 752 F.2d at 1264. Here, by contrast, the historical evidence

establishes that the Tribes took virtually all species of fish, including

shellfish, available to them for commercial, subsistence, and other pur-

poses, and that the Indians understood the Stevens Treaties to reserve

their right to take all kinds of fish, including shellfish, at their usual and

accustomed fishing areas. See, e.g., Fishing Vessel, 443 U.S. at 665-668.

Finally, the district court decisions upon which the State relies (Pet. 15)

actually support the legal conclusion that the Tribes’ fishing right is not

limited by species or harvest methods. See United States v. Michigan, 471

F’. Supp. 192, 260 (W.D. Mich. 1979) (holding that the Indians’ right to fish

“is not a static right” and “is not limited as to species of fish, origin of fish,

the purpose of use or the time or manner of taking”), modified, 653 F.2d

277 (6th Cir.), cert. denied, 454 U.S. 1124 (1981); Lac Courte Oreilles Band

v. Wisconsin, 653 F. Supp. 1420, 1430 (W.D. Wisc. 1987) (holding that the

Tribes are not confined to “fishing methods their ancestors relied upon at

treaty time” and concluding that “(t]he method of exercise of the right is

not static” and, therefore, the Tribes may take advantage of improve-

ments in the fishing techniques they used at treaty time).

14

dependence” of the Indians on each species of shellfish. See

also UPOW Pet. 27-29. Again, however, the Tribes reserved

their preexisting, plenary “right of taking fish.” That right

naturally includes the ability to adjust their fishing practices

to accommodate changes in fish populations over time.”

Despite petitioners’ claims to the contrary (e.g., Wash.

Pet. 19-21), the court of appeals followed the allocation

methodology set forth in Fishing Vessel. In that case, the

Court held that “an equitable measure of the common

| fishing] right should initially divide the harvestable portion

into approximately equal treaty and nontreaty shares,

and should then reduce the treaty share if tribal needs may

be satisfied by a lesser amount.” 443 U.S. at 685; see also id.

at 686 n.27 (“[slince the days of Solomon, [a 50-50] division

has been accepted as a fair apportionment of a common

asset”).” The court of appeals’ determination here that tribal

needs cannot be “satisfied by a lesser amount” of naturally

occurring shellfish (Pet. App. 32-33 & n.11) was factbound

and correct.” Indeed, the court’s approach was, if anything,

~

lt is beyond dispute that fish resources in the treaty areas are far

below treaty time levels (see Fishing Vessel, 443 U.S. at 668-669), largely

because of extensive non-Indian fishing and other activities. It also bears

repetition that, at treaty time, the Tribes relied extensively on shellfish

for commercial purposes and for their own consumption.

* By way of example, the Court suggested that a lesser amount

might be appropriate where a tribe “dwindle[s] to just a few members” or

“find[s] other sources of support that lead it to abandon its fisheries.” 443

U.S. at 687.

‘’ The court of appeals properly upheld the district court’s deter-

mination that the Tribes “lag significantly behind other residents of the

State of Washington in their overall standard of living.” Pet. App. 33.

That factbound issue warrants no further review. There is also no merit

to UPOW’s contention (Pet. 28-29) that the district court failed to consider

casino revenues in its analysis. The court of appeals concluded that, even

if it had considered tribal income from casino operations, it would have

15

less generous to the Tribes than they might have hoped,

since the court excluded the Tribes both from any share of

the harvest covered by the shellfish proviso (see infra), and

from any share of the portion of shellfish on natural beds

whose existence is attributable to the efforts of non-Indians.

See id. at 35-34.

b. The private landowner petitioners contend (Alexander

Pet. 12-19: UPOW Pet. 14-19) that, because the Treaties

grant the Tribes the right of taking fish “in common with” all

citizens, they do not authorize the Tribes “to harvest shell-

fish on private tidelands from which the general public Is

lawfully excluded” (Alexander Pet. 19). That claim is also

foreclosed by this Court’s decisions.

In Winans, the Court rejected the argument that “the

Indians acquired no rights but what any inhabitant of the

Territory or State would have,” explaining that such a result

would constitute “an impotent outcome to negotiations and a

convention, which seemed to promise more and give the

word of the Nation for more.” 198 U.S. at 380. More than 70

years later, the State of Washington argued in Fishing

Vessel that the Stevens Treaties guaranteed the Tribes

nothing more than an “equal opportunity” to harvest fish in

competition with the increasing numbers of non-Indians.

See 443 U.S. at 676-677 & n.22. This Court again rejected

that argument, which it considered virtually a “matter

decided” by Winans and other decisions (id. at 679), and

reaffirmed the Tribes’ substantive right to an equal share of

the harvestable fish (?d. at 685):

It is absolutely clear, as Governor Stevens himself said,

that neither he nor the Indians intended that the latter

“should be excluded from their ancient fisheries,” and it

is accordingly inconceivable that either party

concluded that the district court’s findings were not clear error. Pet. App

33 n.11.

16

deliberately agreed to authorize future settlers to crowd

the Indians out of any meaningful use of their ac-

customed places to fish.

Id. at 676 (citation omitted).'' More generally, the Court

held, “[t]he contingency of the future ownership of the lands

was foreseen and provided for” (d. at 680) when the

Stevens Treaties were signed; the Treaties provided for that

contingency both by entitling the Tribes to take a fair share

of the harvestable fish and by granting them access to

private lands for that purpose. Jd. at 680-681."

Petitioners argue that those prior holdings are inappli-

cable because the fish at issue in those cases were anadro-

mous fish rather than shellfish. But that distinction, to the

extent that it has any significance here at all, cuts against

petitioners’ position. Under the line of decisions culminating

in Fishing Vessel, the Tribes’ right of access to private

property indisputably “include[s] the right to use private

tidelands for beach seines, tidal impoundment traps, stake

nets and reef nets” (see Pet. App. 24), as well as a right “of

erecting temporary buildings” for curing the fish (Winans,

198 U.S. at 381; see also Seufert, 249 U.S. at 197-199). By

contrast, the decisions below sharply limit the Tribes’ right

of access to private property within the same “usual and

,

1! Petitioners suggest (Wash. Pet. 7; Alexander Pet. 2; UPOW Pet.

14) that only about 50% of the State’s tidelands are privately owned. That

is simply incorrect. The evidence at trial, much of it provided by the

State’s own witnesses (see, e.g., S.E.R. 337- 338, 572-573; see also id. at

999-1002), confirms the courts below were correct in finding that the “vast

majority” of tidelands are now in private hands. Pet. App. 12, 73.

‘2 Petitioner UPOW suggests (Pet. 10) that the Treaties themselves

bar the Tribes from entering private lands, citing a prevision of one of the

Treaties giving the Tribe a right “to reside upon any land * * * claimed

or occupied” by non-Indians “if with the permission of the owner or

claimant.” But the right of the Tribes to “reside” on privately owned land

,

is, of course, not at issue here.

17

accustomed” fishing grounds for purposes of taking shellfish.

For example, the Tribes are generally limited to five days of

shellfish harvesting per year (Pet. App. 38); they may not

gain access to privately owned uplands except where they

demonstrate an inability to gain access “by boat, public road,

or public right of way” (id. at 37-38, 146); and they must

comply with a variety of important notice, surveying, and

time-of-day restrictions (7d. at 125-133). The right to make

such minimal incursions on private property is included

within, and pales in comparison to, the much broader rights

of access repeatedly affirmed by this Court.

Petitioners also seek to distinguish shellfish from other

kinds of fish on the theory that the common law deemed

shellfish to be part of the property on which they are located.

That argument is both incorrect on its own terms and irrele-

vant. First, under the overwhelming weight of precedent at

the time of the Treaties, natural shellfish beds were part of

the common fishery and were therefore subject to harvest-

ing by the public. See Pet. App. 25, 61-64; see also Smith v.

Maryland, 59 U.S. (18 How.) 71, 74-75 (1855); Martin v.

Waddell, 41 U.S. (16 Pet.) 367, 413-414 (1842). Moreover,

whatever the status of the common law then or now, this

Court has repeatedly held that non-Indians may not rely on

“property law concepts” to defeat the Tribes’ right of taking

fish under these federal treaties. See, e.g., Fishing Vessel,

443 U.S. at 682. For that reason, UPOW’s reliance (Pet. 19-

21) on several early 20th century Washington Supreme

Court decisions regarding state law property issues is mis-

placed. Indeed, those decisions do not address the federal

rights guaranteed by the Stevens Treaties.

Petitioners’ reliance (e.g., UPOW Pet. 14-15) on Antoine v.

Washington, 420 U.S. 194 (1975), and Oregon Dep't of Fish &

Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), is

equally without merit. In Antoine, this Court did not even

address whether the Indians were entitled to hunt on

18

private land under the agreement at issue there, because

that issue was not presented by the case. 420 U.S. at 207-208

n.ll. In Klamath, the treaty language at issue, unlike the

language of the Stevens Treaties, confirmed that the tribal

usufructuary rights in question were meant to exist only

“within the limits of the reservation.” 473 U.S. at 766; see zd.

at 766-768. Nothing in that decision calls into doubt this

Court’s seven decades of consistent interpretation of the

Stevens Treaties. For similar reasons, there is no merit to

petitioners’ reliance (e.g., Alexander Pet. 14-15) on various

lower court decisions involving other Tribes with different

usufructuary rights under different treaty language. See,

e.g., Lac Court Oreilles Band v. Wisconsin, 760 F.2d 177, 182

(7th Cir. 1985); Mille Lacs Band of Chippewa Indians v.

Minnesota, 952 F. Supp. 13862, 1878 (D. Minn.), aff’d, 124

F.3d 904, 933-934 (8th Cir. 1997), cert. granted, No. 97-1337

(June 8, 1998) (argued Dec. 2, 1998). Indeed, in Mille Lacs

the Tribes at issue did not seek access to private lands that

were not open to members of the public, and in Lac Court

the Tribes similarly did not assert rights of access to private

lands as a general matter.

Relying on Winans and Seufert, petitioners separately

contend (UPOW Pet. 16-17; Alexander Pet. 15-18) that the

Tribes should be required to demonstrate historic use of a

given trail before following it over private lands. Neither

Winans nor Seufert supports that argument. The degree or

type of evidence necessary to establish a right of access was

not at issue in either case. Rather, both cases stand for the

settled proposition that Indians have a right of access over

private property to effectuate their treaty fishing rights.

Although there had been open and notorious use of the

private land at issue in Winans and Seufert, the Court in

each case noted that fact only in passing and did not treat it

as a necessary basis for its holding. See Seufert, 249 U.S. at

197-199; Winans, 198 U.S. at 381-384. To the contrary,

oe se

19

Winans broadly states that the Treaties “fix[] in the land

such easements as enables the [fishing] right to be exer-

cised.” Jd. at 384. Moreover, in Fishing Vessel, the Court

reaffirmed that the Tribes’ right “to cross private lands” was

a right that “non-Indians do not have,” 443 U.S. at 676 n.22, a

characterization that forecloses petitioners’ suggestion that

the right is confined to easements acquired under ordinary

common-law principles through open and notorious use over

time. Indeed, the dissent in Fishing Vessel recognized that

the right is “a ‘servitude’ upon all non-Indian land” (2d. at 701

(Powell, J.)), which “entitle[s] the Indians to trespass on any

land when necessary to reach their traditional fishing areas”

(id. at 703 (Powell, J.)).

Finally, the Tribes’ right of access to privately owned

uplands is substantially limited by the requirement, which

the court of appeals affirmed (Pet. App. 37-38), that the

Tribes first “demonstrate the absence of access by boat,

public road, or public right of way” (id. at 37). Thus, the

extent to which exercise of these treaty rights will actually

result in the Tribes’ access to private uplands is circum-

scribed and uncertain at this time.

c. Petitioners further contend (Wash. Pet. 22-27;

Growers Pet. 20-28; Alexander Pet. 20-23) that construing

the Treaties to permit the Tribes to take shellfish in their

“usual and accustomed” fishing grounds would violate the

“equal footing” doctrine. That argument is also foreclosed

by this Court’s precedents.

Under the equal footing doctrine, the federal government

is presumed to have held tidal and submerged lands under

navigable waters in trust for future States, such that, upon

achieving statehood, each State assumes sovereign title to

those lands on an “equal footing” with the established states.

See Montana v. United States, 450 U.S. 544, 551 (1981); see

also Shively v. Bowlby, 152 U.S. 1 (1894). The court of

appeals found (Pet. App. 20-23) that the doctrine is inappli-

20

cable here because the fishing rights at issue are aboriginal

rights reserved by the Tribes rather than federal rights once

held and then conveyed by the United States, and because

application of the doctrine has focused on actual ownership of

lands, and ownership is not at issue here. Petitioners take

issue with each of those rationales, but the short answer to

their “equal footing” claim is that this Court has already

squarely rejected it, as the court of appeals also explained

(id. at 22).

As discussed above, this Court held in Winans, as it would

reaffirm in Fishing Vessel decades later, that the Treaties

entitle the Tribes to “cross[],” “occupy,” and indeed “erect ]

temporary buildings” on private land for the purpose of

exercising their traditional fishing rights, and that the

Treaties “impose[] a servitude upon every piece of land,”

public or private, for the exercise of those rights. 198 U.S. at

381. The Court specifically repudiated a challenge based on

the equal footing doctrine, explaining that “surely it was

within the competency of the Nation to secure to the Indians

such a remnant of the great rights they possessed as ‘taking

fish at all usual and accustomed places.’” Jd. at 384. There

can thus be no challenge here to the “servitudes” the Tribes

enjoy on private land in their “usual and accustomed” fishing

places. And it makes little sense to suggest that the equal

footing doctrine draws distinctions among the kinds of fish

the Tribes may harvest in those same places.”

'S Petitioners seek to escape the precedential significance of Winans

by suggesting (e.g. Wash. Pet. 25) that, under the shellfish proviso, the

Tribes’ right to take shellfish is more temporary than their right to take

other kinds of fish. That argument, however, depends on a challenge to

the case-specific determination by both courts below (Pet. App. 27-28, 69-

73) that the proviso was written to secure continued protection for the

Tribes’ traditional right to take shellfish from natural beds. See infra.

That determination distinguishes this case from Crow Tribe v. Repsis, 73

F.3d 982 (10th Cir. 1995), cert. denied, 517 U.S. 1221 (1996), in which the

21

Z. The only significant issue in this case that is not

controlled by existing legal precedent is the meaning of the

shellfish proviso, which bars the Tribes from taking shellfish

from “any beds staked or cultivated by citizens.” The court

of appeals’ interpretation of that proviso was correct, and

the precedential significance of that interpretation is limited

to this case, because no similar language appears in any

other treaty of which we are aware. Further review is

therefore not warranted.

a. After conducting an exhaustive evaluation of the pro-

viso’s drafting history and purpose (Pet. App. 58-78), the

district court interpreted the proviso to exclude the Tribes

from artificial shellfish beds but not from natural beds. Jd. at

77- 78. The court found, among other things, that natural

shellfish beds at treaty time were reserved by law for public

use (id. at 61-64), that they “were almost never ‘staked’ or

‘cultivated’” (id. at 65), that the treaty negotiators were

familiar with industry practices in both the East Coast and

in Washington Territory (id. at 65-66), and that they under-

stood “natural” beds and “staked or cultivated” beds to be

mutually exclusive categories (id. at 77-78). See also pp. 3-4,

supra (describing historical practice of “staking” and

“cultivating”). The court of appeals upheld that conclusion,

reasoning that the district court’s extensive analysis was

“correct” (id. at 26); that a construction of the proviso

excluding the Tribes from natural shellfish beds on private

property would “effectively eliminate the Tribes’ right to

take shellfish under the Treaties” (id. at 27); that such a

construction would thus “provid[e] ‘an impotent outcome to

treaty right at issue was designed to be temporary. See also Ward vy.

Race Horse, 163 U.S. 504, 515 (1896) (addressing “temporary and pre-

carious” rights). Indeed, the Repsis court itself cited that factor as its

basis for distinguishing the rights at issue in that case from the fishing

rights reserved in the Stevens Treaties. See 73 F.3d at 991.

22

negotiations and a convention which seemed to promise

more, and to give the word of the nation for more’” (id. at

27-28 (quoting Winans, 198 U.S. at 380)); and that it would

“cast|] aside black-letter canons” of treaty interpretation (7d.

at 28).

The Growers (Pet. 18-19) and private landowners (see,

e.g., Alexander Pet. 23-26) argue that the court of appeals

construed the phrase “any beds staked or cultivated” too

narrowly. The relevant question, however, is what the

treaty parties intended by the language they borrowed from

shellfish industry usage at the time of the Treaties. The

evidence introduced at trial concerning that language’s

meaning within the industry was not, as petitioners re-

peatedly suggest, confined only to the “intricacies of east

coast state law” (Growers Pet. 19; see also Wash. Pet. 28;

Alexander Pet. 25), but also included west coast practices as

well, industry treatises, articles in the popular press, and the

writings of the treaty negotiators themselves. Pet. App. 60-

71. In addition, the lower courts considered the post-treaty

conduct of the parties and correctly concluded that nothing

in the post-treaty materials proffered by petitioners out-

weighs the “compelling evidence” (id. at 59) that the negotia-

tors intended to exclude only artificial shellfish beds from

the Tribes’ shellfishing rights (id. at 74-75).""

4 UPOW claims (Pet. 22) that its interpretation of the shellfish

proviso draws support from a letter written in 1905 by the Commissioner

of Indian Affairs, who opined that lessees of tidelands containing natural

clam beds could exclude treaty Indians from them. Pet. App. 211-213. As

the district court correctly observed, the letter “has no relevance to the

appropriate interpretation of the Shellfish Proviso,” because the Com-

missioner based his determination not on the language of the proviso, but

on an interpretation of the “in common with all citizens” clause of the

Treaties. /d. at 76. That interpretation was rejected in Winans 45 days

after the letter was written. See 198 U.S. at 379-382.

23

b. Petitioners argue that the court of appeals created a

“conflict” with other circuits by deferring to some of the

district court’s predicate findings on the meaning of the

shellfish proviso. See Growers Pet. 11-18; Wash. Pet. 27-29;

Alexander Pet. 26-27. There is no such conflict, and the

matter does not warrant this Court’s review.

As an initial matter, the extent to which the court of

appeals “deferred” to any of the district court’s findings is

unclear. Although the court did state that a “deferential

standard” was appropriate f-. “the district court’s findings

of historical fact and its findings regarding the intentions of

the parties’ negotiators,” it iadependently held that “the

district court’s reasoned analysis of the Proviso is correct”: it

“adopted [the district court’s] analysis as [its] own”; and it

further explained that petitioners’ interpretation of the

shellfish proviso violates principles of treaty construction

and “is totally inconsistent with the United States’ avowed

intention to preserve for the Indians their ancient fisheries.”

Pet. App. 26, 27 (emphasis added, internal quotation marks

omitted). The court thus made clear that its holding did not

turn on deference to the district court’s subsidiary findings.

For that reason alone, this case would be an inappropriate

vehicle for addressing any question about the proper stan-

dard of review for appellate courts in resolving predicate

factual disputes relating to treaty interpretation.

Moreover, there is no conflict between any aspect of the

opinion below and the decisions from other courts of appeals

upon which petitioners rely. See, e.g., Growers Pet. 13-14.

In none of those cases did the appellate court address any

UPOW is also incorrect in asserting (Pet. 22) that the United States

excludes treaty Indians from federal beaches (which in any event are not

at issue in this lawsuit). The Tribes and the federal government have

historically been able to work out arrangements for tribal shellfishing on

federal tidelands. See, e.g., S.E.R. 489-493.

24

dispute relating to the standard of review. Indeed, the inter-

pretive issue in those cases did not rest on any facts in dis-

pute, and they therefore did not involve any question of

appellate deference to findings of fact. Rather, the decisions

stand only for the undisputed proposition, which the court of

appeals in this case explicitly endorsed (Pet. App. 16), that a

treaty’s ultimate meaning is subject to de novo review.

Finally, petitioners are plainly mistaken if they are con-

tending, as they sometimes appear to be (e.g. Wash. Pet. 27),

that appellate courts may never apply deferential review to

any predicate finding of fact made by a district court in the

course of treaty interpretation. Many kinds of legal

determinations—from the construction of contracts to the

voluntariness of confessions—rest in part on predicate

factual findings, and it is undeniably appropriate for courts

of appeals to review those findings deferentially. See, e.g.,

Ornelas v. United States, 517 U.S. 690, 699 (1996): Miller v.

Fenton, 474 U.S. 104, 112 (1985); Fed. R. Civ. P. 52(a).”

Here, the parties disputed a variety of factual matters

relevant to the meaning of the shellfish proviso, including

highly fact-specific issues concerning the practices of the

mid-19th century shellfish industry and the familiarity of

individual treaty negotiators with those practices and the

terms used to describe them. See, e.g., Pet. App. 61-66. A

court of appeals commits no error in deferring to a district

court’s findings on such issues. Indeed, in construing the

9 As this Court noted in Fishing Vessel, “[a] treaty, including one

between the United States and an Indian tribe, is essentially a contract

between two sovereign nations.” 443 U.S. at 675. In interpreting

contracts, courts routinely treat the parties’ intent as an issue of fact

subject to deferential review. See, e.g., ATACS Corp. v. Trans World

Communications, Inc., 155 F.3d 659, 665 (3d Cir. 1998): Servicios

C'ome reiale s Andinos, howe. § v. Gene ral Ele c. Del Caribe ‘ ine., 145 F.3d 463,

169 (1st Cir. 1998); NRM Corp. v. Hercules, Inc., 758 F.2d 676, 682 (D.C.

Cir. 1985); ef. Pullman-Standard vy. Swint, 456 U.S. 273, 287-288 (1982).

rete ee

25

fishing rights clause of the Stevens Treaties, this Court in

Fishing Vessel deferred to, and relied on, the district court’s

factual findings regarding the understanding of the Indians

and the United States at the time of treaty negotiations. See

443 U.S. at 666-668, 674-685.

3. The Growers (Pet. 28-30) and the Alexander peti-

tioners (Pet. 27) contend that laches defeats the Tribes’

assertion of shellfishing rights. That claim is without merit.

Petitioners cite no decision of any court that is inconsistent

with the disposition of their laches claim below (see Pet.

App. 28). To the contrary, this Court has consistently re-

jected the application of laches against a Tribe or the United

States when either brings suit to enforce Indian or federal

rights. See, e.g., Board of County Comm’rs v. United States,

308 U.S. 3438, 350-351 (1939) (defenses based on delay in

bringing claims such as laches are inapplicable to enforce

Indian rights); United States v. Minnesota, 270 U.S. 181, 196

(1926); Cramer v. United States, 261 U.S. 219, 234 (1923):

Ewert v. Bluejacket, 259 U.S. 129, 138 (1922); Utah Power

& Light Co. v. United States, 243 U.S. 389, 408-409 (1917).

Indeed, neither the Growers nor the Alexander petitioners

present any claim that laches bars the United States from

bringing this suit in its sovereign capacity on behalf of the

Tribes. For that reason alone, their laches claim is not

properly presented, for it is entirely unclear how it would

benefit petitioners if laches were applied to the Tribes’

claims alone.

In any event, even if it were otherwise appropriate to con-

sider the doctrine of laches in this context, petitioners’ re-

liance on that doctrine would still fail on the facts of this

case. The Tribes did not, as the Growers suggest (Pet. 29),

“long ignore[]” their treaty rights. At treaty time, and for

many years thereafter, “the Indians harvested the majority

of the shellfish resource.” Pet. App. 12.; see also Fishing

Vessel, 443 U.S. at 675. As a result of increasing population

26

pressures as well as state laws and policies, including

Washington’s sale of the “vast majority” (Pet. App. 12) of its

tidelands into private ownership, the Tribes were gradually

displaced from the shellfish fishery, until it became neces-

sary to institute this lawsuit. The Tribes do not seek com-

pensation for any period of exclusion from treaty lands.

Thus, any delay in the filing of this lawsuit has in fact inured

to the benefit of the Growers."

4. The Growers contend (Pet. 5-6, 9, 29) that the court of

appeals’ decision imperils their investments in their shellfish

farms. That contention is immaterial to the meaning of these

Treaties and in any event is highly overstated as a factual

matter. First, the decision below confines the Tribes to a

share only of those shellfish that exist “solely by virtue of

the natural propagation of the species” (Pet. App. 34), and

denies them all rights to any portion of the shellfish harvest

that is attributable to the Growers’ efforts (id. at 34-35).

Similarly, the Growers are entitled to all shellfish on artifi-

cial beds, which are wholly excluded from treaty rights

under the shellfish proviso. Therefore, because nearly all of

the Growers’ oysters and mussel beds are artificial, nearly

all such beds are reserved to them.

Oysters and mussels constitute approximately 66% of the

total value of shellfish commercially harvested from the

Washington tidelands. See PL-988, Table 50. Thus, even if

the existence of all other shellfish were attributed solely to

natural, unaided propagation—an (incorrect) assumption

that would obviously benefit the Growers—the maximum

proportion of the shellfish value to which the tribes might be

16 Petitioner UPOW contends in passing (Pet. 19) that “all tribal

claims were extinguished * * because most of these Tribes were paid

in full under the Indian Claims Commission for all previously uncompen-

sated interests in lands.” As the court of appeals determined (Pet. App.

29), that claim is without merit. See also Gov’t C.A. Br. 80-83.

ERSTE GO aes eo rn Me

Babi ae cate Vilas princi Se ES

27

entitled from the Growers’ properties is half of 34%, or 17%.

Again, even that latter figure greatly overstates the impact

that honoring the Tribes’ treaty rights will have on the

Growers, since many clams are the product of enhanced

production techniques and are therefore excluded from the

Tribes’ treaty rights.

* * * * *

This Court granted certiorari in Fishing Vessel—even

though there, as here, “the principal issue involved [wa]s

virtually a ‘matter decided’ by our previous holdings” (443

U.S. at 679)—only “[blecause of * * * widespread defiance

of the District Court’s orders” and an ongoing and irrecon-

cilable “conflict between the [Washington] state and federal

courts” concerning the matters at issue (id. at 674). Here

there is no such conflict, and there are no practical exigen-

cies that would require this Court’s intervention. On the

basis of an enormous factual record, the lower courts have

succeeded in bringing this case to a correct and fair re-

solution, under which the Tribes retain the fishing rights

they were promised and non-Indians retain both a fair share

of all naturally occurring shellfish and an absolute entitle-

ment to every single shellfish whose existence is attributable

to their efforts. No further review is warranted.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

PETER C. MONSON

DAVID C, SHILTON

EVELYN S. YING

Attorneys

MARCH 1999