Nos. 98-1026, 98-1028, 98-1039 and 98-1052
In the Supreme Court of the United States
OCTOBER TERM, 1998
STATE OF WASHINGTON, PETITIONER
v.
UNITED STATES OF AMERICA, ET AL.
PUGET SOUND SHELLFISH GROWERS, PETITIONER
v.
UNITED STATES OF AMERICA, ET AL.
26 TIDELAND AND UPLAND PRIVATE PROPERTY OWNERS, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
LARRY B. AND SHIRLEE ALEXANDER, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
__________
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
PETER C. MONSON
DAVID C. SHILTON
EVELYN S. YING
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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.
In the Supreme Court of the United 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.
UNITED STATES OF AMERICA, ET AL.
No. 98-1039
26 TIDELAND AND UPLAND PRIVATE PROPERTY OWNERS, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
No. 98-1052
LARRY B. AND SHIRLEE ALEXANDER, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO 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 873 F. Supp.
1422 (Pet. App. 51-93), 898 F. Supp. 1453 (Pet. App. 95-134), 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,1 under which they relinquished
their right to most of their territory in exchange for periodic monetary
payments, 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, in common with all citizens of the Territory,
* * *: Provided, however, That they shall not take shell fish from any beds
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) (Fishing Vessel). From time immemorial,
the Tribes have used and relied on fish, including shellfish, for commercial,
subsistence, 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 100 species of shellfish. Shellfish were particularly important
to the 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. Fishing
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 developed industry on the East Coast.2 Pet. App. 11. The industry was
based primarily on the planting or transplanting of shellfish, primarily
oysters, in artificial beds. Shellfish farmers also commonly stored market-sized
shellfish 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. Ibid.
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. Ibid. The treaty negotiators, in keeping with their
pledge to preserve for the Indians their ancient fisheries, wrote those
assurances into the fishing rights provision of the Stevens Treaties. See
id. at 27.
2. For years following the Treaties, the Indians continued to harvest a
majority of the shellfish resource. During that period, the Washington territorial
government continued to observe the public's general right of taking shellfish
from natural beds and to recognize private ownership rights only in the
products of artificial shellfish beds. After its admission to the Union
in 1889, however, Washington took two courses of action that, in combination,
increasingly excluded the Indians from the shellfish resource. First, the
State gradually began selling off its tidelands, including some of the most
productive for shellfish production, 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. Ibid. 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. 12.3 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 Washington 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 locations of the Tribes' "usual
and accustomed" fishing grounds and ruled that the Tribes' treaty rights
entitled them to take up to 50% of the harvestable fish from those grounds.4
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 established 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 concluded 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 areas identified in Washington I, except
as expressly limited by the shellfish proviso. Id. at 51-59.
Turning next to the proviso, the district court "interpret[ed] 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. Id. 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 consensus on a plan, the court held a second trial. The
district court issued an implementation decision and an implementation plan
that, among other things, imposed specific restrictions on the Tribes' ability
to harvest shellfish on private properties and set forth dispute resolution
procedures 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 implementation
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 violates "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 redefine 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 propagation of the species are
subject to a full fifty-percent harvest allocation." Id. 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." Id. at 34-35 & n.12. That
allocation analysis, however, does not apply to the Growers' artificial
beds, which the shellfish proviso wholly excludes from the Tribes' treaty
rights. Id. at 35.5
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
petitioners 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 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 "occupy"
private property when exercising their "right of taking fish"
(id. 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 concepts 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.
Further review is therefore not warranted.
1. 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).
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
shellfishing 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 repeatedly 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, however, 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 harvest 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, McClanahan v. Arizona State Tax Comm'n, 411 U.S.
164, 174 (1973), a principle that this Court has repeatedly applied in 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 rights is "synonymous with
'reserving' rights previously 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" (ibid.). 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).6 Similarly, petitioners' position draws no support
from Seufert Brothers Co. v. 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.7
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 allocation of shellfish resources must depend
on the "historic 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.8
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 ("[s]ince the days of Solomon,
[a 50-50] division has been accepted as a fair apportionment of a common
asset").9 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.10 Indeed,
the court's approach was, if anything, 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 33-34.
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 shellfish 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 (id. 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 deliberately agreed to authorize future settlers to crowd the Indians
out of any meaningful use of their accustomed places to fish.
Id. at 676 (citation omitted).11 More generally, the Court held, "[t]he
contingency of the future ownership of the lands * * * was foreseen and
provided for" (id. 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. Id. at 680-681.12
Petitioners argue that those prior holdings are inapplicable because the
fish at issue in those cases were anadromous 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 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 (id. 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 irrelevant. 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 harvesting 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 misplaced. 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 private land under the agreement at issue there, because that issue was
not presented by the case. 420 U.S. at 207-208 n.11. 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 id.
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. 1362, 1378 (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,
Winans broadly states that the Treaties "fix[] in the land such easements
as enables the [fishing] right to be exercised." Id. 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" (id. 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 circumscribed 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 inapplicable 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.'" Id. 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.13
2. 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 proviso'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. Id. 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 understood "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 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 (id. 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
repeatedly 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 outweighs the "compelling
evidence" (id. at 59) that the negotiators intended to exclude only
artificial shellfish beds from the Tribes' shellfishing rights (id. at 74-75).14
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 for "the
district court's findings of historical fact and its findings regarding
the intentions of the parties' negotiators," it independently 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 standard 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 dispute relating to the standard of review. Indeed, the
interpretive issue in those cases did not rest on any facts in dispute,
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 contending, 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).15 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 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 petitioners (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 rejected 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. 343, 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 consider the doctrine
of laches in this context, petitioners' reliance 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 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
necessary to institute this lawsuit. The Tribes do not seek compensation
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.16
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 artificial 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 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 "[b]ecause of *
* * widespread defiance of the District Court's orders" and an ongoing
and irreconcilable "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 exigencies 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
resolution, 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 entitlement 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
1 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, 443 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.
2 In the mid-nineteenth century, shellfishing was a major industry that
employed a large number of people. It was regularly covered by the popular
press, and its practices were generally known to the public. S.E.R. 116.
3 For example, native littleneck clams have been replaced substantially
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.
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
included 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.
5 Judge Beezer concurred separately to express, among other things, his
concerns over the private shellfish 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.
6 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." Id. 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.
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 prohibition
on the commercial sale of eagle feathers. See United States v. Dion, 752
F.2d 1261 (8th Cir. 1985) (en banc), 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 purposes, 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 improvements in the fishing techniques they used at
treaty time).
8 It 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.
9 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.
10 The court of appeals properly upheld the district court's determination
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 concluded
that the district court's findings were not clear error. Pet. App. 33 n.11.
11 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.
12 Petitioner UPOW suggests (Pet. 10) that the Treaties themselves bar the
Tribes from entering private lands, citing a provision 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.
13 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 treaty right at issue was designed
to be temporary. See also Ward v. Race Horse, 163 U.S. 504, 515 (1896) (addressing
"temporary and precarious" 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.
14 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 Commissioner
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. Id.
at 76. That interpretation was rejected in Winans 45 days after the letter
was written. See 198 U.S. at 379-382.
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.
15 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 Comerciales Andinos, S.A.
v. General Elec. Del Caribe, Inc., 145 F.3d 463, 469 (1st Cir. 1998); NRM
Corp. v. Hercules, Inc., 758 F.2d 676, 682 (D.C. Cir. 1985); cf. Pullman-Standard
v. Swint, 456 U.S. 273, 287-288 (1982).
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 uncompensated 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.