UNDERSTANDING TRIBAL TREATY RIGHTS IN WESTERN … - 03 - Fall... · 2021. 1. 5. · UNDERSTANDING TRIBAL TREATY RIGHTS IN WESTERN WASHINGTON MEMBER TRIBES OF THE NORTHWEST INDIAN

UNDERSTANDING TRIBAL TREATY RIGHTS INWESTERN WASHINGTON

MEMBER TRIBES OF THE NORTHWEST INDIAN FISHERIES COMMISSION

On the Edge of the World: Navigating Environmental and Legal Challenges on the Washington Coast

Session 5 - Tribal Issues: Fishing Rights, Culverts and More John Hollowed, Sr.

September 28, 2018 Page 1 of 45

WHAT’S A TREATY?

WHAT’S A TREATY?• A formally concluded and ratified

AGREEMENT between sovereignnations

• Its’ a CONTRACT-a legally binding or valid agreement between two or more parties




Federal LawsUnited States Code Statutes at Large Common Name

33 U.S.C. §§ 1251-1387 86 Stat. 816

16 U.S.C. §§ 1531-1544 87 Stat. 884

42 U.S.C. § 4321 83 Stat. 852

12 Stat. 939

10 Stat. 1132

12 Stat. 971

12 Stat. 927

12 Stat. 933


33 U.S.C. §§ 1251-1387 86 Stat. 816 Clean Water Act (CWA)

16 U.S.C. §§ 1531-1544 87 Stat. 884

42 U.S.C. § 4321 83 Stat. 852

12 Stat. 939

10 Stat. 1132

12 Stat. 971

12 Stat. 927

12 Stat. 933





33 U.S.C. §§ 1251-1387 86 Stat. 816 Clean Water Act CWA)

16 U.S.C. §§ 1531-1544 87 Stat. 884 Endangered Species Act (ESA)

42 U.S.C. § 4321 83 Stat. 852

12 Stat. 939

10 Stat. 1132

12 Stat. 971

12 Stat. 927

12 Stat. 933




42 U.S.C. § 4321 83 Stat. 852 National Environmental Policy Act (NEPA)

12 Stat. 939

10 Stat. 1132

12 Stat. 971

12 Stat. 927

12 Stat. 933




Treaties are also Federal LawsUnited States Code Statutes at

LargeCommon Name



42 U.S.C. § 4321 83 Stat. 852 National Environmental Policy Act (NEPA)

12 Stat. 939 Treaty of Makah

10 Stat. 1132 Treaty of Medicine Creek

12 Stat. 971 Treaty of Olympia

12 Stat. 927 Treaty of Point Elliott

12 Stat. 933 Treaty of Point No Point

TREATIES ARE THE SUPREME LAW OF THE LAND

“The Constitution . . . of the United States and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; And the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” U.S. Constitution Article VI, Cl. 2




TREATY INTERPRETATION• Under canons of treaty construction, treaties

must be interpreted the way tribes would have understood.

• Ambiguities in construction must be resolved in favor of the tribes.

• Rules are rooted in the unique trust relationship between the U.S. and tribes.

Canons of Treaty Construction• The Treaties were written in English, a language the Indians

could neither read nor write. • Because treaty negotiations with Indians were conducted by

“representatives skilled in diplomacy,”• Because negotiators representing the United States were

“assisted by . . . interpreter[s] employed by themselves,” • because the treaties were “drawn up by [the negotiators] and

in their own language,” and • because the “only knowledge of the terms in which the treaty is

framed is that imparted to [the Indians] by the interpreter employed by the United States,” a “treaty must . . . be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”

• Jones v. Meehan, 175 U.S. 1, 11 (1899); Tulee v. Washington, 315 U.S. 681 [1947]; Seufort Bros. Co. v. United States, 249 U.S. 194 [1919]; United States v. Winans, 198 U.S. 371 [1905]. See also Washington v. Yakima Indian Nation, 439 U.S. 463, 484 [1979].




Cont. Canons

• “[W]e will construe a treaty with the Indians as [they] understood it, and as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection, and

• counterpoise the inequality by the superior justice which looks only to the substance of the right, without regard to technical rules.”

• United States v. Winans, 198 U.S. 371, 380 (1905)

Cont. Canons

• “[W]e look beyond the written words to the larger context that frames the Treaty, including the history of the treaty, the negotiations, and the practical construction adopted by the parties.”

• Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999)




Steven’s Treaties

WHAT WAS PROMISED IN THE STEVENS TREATIES?

• U.S. recognizes tribal existence as sovereign nations and rightful owners of the land and resources.

• U.S. gets millions of acres of land and resources for peaceful settlement of non-Indians

• Opening up the Northwest for white settlement was indeed the principal purpose of the United States. But it was most certainly not “the” principal purpose of the Indians. Their principal purpose was to secure a means of supporting themselves once the Treaties took effect.




Treaty Square Miles Acres Source

TreatyofMedicineCreek 3,500 2,240,000 http://www.historylink.org/File/20157

Treaty of Point Elliott 10,120 6,477,042 State GIS Layer

Treaty of Neah Bay 319 203,996 State GIS Layer

Treaty of Quinault 2,338 1,496,535 State GIS Layer

Treaty of Point No Point 3,428 2,193,793 State GIS Layer

Treaty of Yakama 16,920 10,828,800

http://www.npaihb.org/member-tribes/yakama-indian-nation/

Total of Ceded Lands 36,625 23,440,166

WHAT DID THE TRIBES GIVE UP

Disclaimer

Tribes/States Square Miles Acres Cumulative

WATreatyCeded Lands 36,625 23,440,166

Indiana 35,870 22,956,800

Maine 30,865 19,753,600

South Carolina 30,111 19,271,040

West Virginia 24,087 15,415,680

Maryland 9,775 6,256,000

Vermont 9,249 5,919,360

New Hampshire 8,969 5,740,160 24,629,120

Massachusetts 7,838 5,016,320 18,888,960 New Jersey 7,419 4,748,160 13,872,640

Hawaii 6,423 4,110,720 9,124,480

Connecticut 4,845 3,100,800 5,013,760

Delaware 1,955 1,251,200 1,912,960

Rhode Island 1,034 661,760 661,760

PUT IT INTO CONTEXT WHAT THE TRIBES GAVE UPhttps://statesymbolsusa.org/symbol-official-item/national-us/uncategorized/states-size




WHAT WAS PROMISED IN THE TREATIES?• In exchange for land, tribes received certain promises

from the U.S., including:

– Blacksmith (Commerce), Teacher (Education), and Doctor (Medicine and Health)

– Reservation homelands for tribal exclusive use and occupancy;

– Protection of their reserved right to take fish, hunt and gather.

• “ …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 ...”

Treaty Negotiations• Governor Stevens assured the Tribes that even

after they ceded huge quantities of land, they would still be able to feed themselves and their families forever. As Governor Stevens stated, “I want that you shall not have simply food and drink now but that you may have them forever.”

• The Indians reasonably understood Governor Stevens to promise not only that they would have access to their usual and accustomed fishing places, but also that there would be fish sufficient to sustain them. They reasonably understood that they would have, in Stevens’ words, “food and drink . . . forever.”




Cont. Treaty Negotiations• During the negotiations, the vital importance of the

fish to the Indians was repeatedly emphasized by both sides, and the Governor’s promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians’ assent.

• 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.

• Even if Governor Stevens had not explicitly promised that “this paper secures your fish,” and that there would be food “forever,” we would infer such a promise. See Winters, Adair, Fishing Vessel.

Treaty Right to fish is a Fundamental Right

• Salmon were a central concern. An adequate supply of salmon was “not much less necessary to the existence of the Indians than the atmosphere they breathed.”.

• United States v. Winans, 198 U.S. 371, 381 (1905).

• Governor Stevens repeatedly assured the Indians that there always would be an adequate supply of fish. “I want that you shall not have simply food and drink now but that you may have them forever.”




TREATY RIGHTS AT RISK

TREATY RIGHTS AT RISK• Salmon populations declining steadily since

Boldt decision, mainly because of lost and damaged spawning and rearing habitat.

• Trend shows no signs of improvement despite ESA listings, decades of effort and huge financial investment.

• Tribal harvest reduced to pre-Boldt levels. Some tribes have lost their fundamental ceremonial and subsistence fisheries.




TREATY RIGHTS AT RISK• Tribal treaty rights being rendered

meaningless by loss of salmon for harvest.• Federal government has an obligation to

exercise trust responsibility to tribes and to recover salmon.

• Through the Treaty Rights at Risk initiative, tribes seek coordinated federal leadership, alignment of federal programs, and a halt to disparate application of salmon conservation measures.

IMPACTS OF DECLINING RESOURCE

• Without fish to harvest, the treaties would be abrogated.

• Tribal cultures, communities, and economies are at grave risk.

• Specifically, the district court found that “[t]he reduced abundance of salmon and the consequent reduction in tribal harvests has damaged tribal economies, has left individual tribal members unable to earn a living by fishing, and has caused cultural and social harm to the Tribes in addition to the economic harm.” The court found, further, that “[m]any members of the Tribes would engage in more commercial and subsistence salmon fisheries if more fish were available.”




Conflict

IT DIDN’T TAKE LONG FOR CONFLICT• US v. Taylor (1887)• US v. Winans, 198 U.S. 371 (1905)• Winters v. US (1908)• US v. Seufert, 249 U.S. 194 (1919)• Tulee v. Washington, 315 U.S. 681 (1942)• Puyallup Tribe v. Dep’t of Game, 391 U.S. 392 (1968)• Sohappy v. Smith (1969)• US v. Oregon (1968)• Dep’t of Game v. Puyallup Tribe, 414 U.S. 44 (1973) • Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165 (1977) • Washington v. Fishing Vessel Assn., 443 U.S. 658 (1979)• Washington v. United States. No. 17-269 (2018)




WA State has taken treaty rights to the Supreme Court 8 times• United States v. Winans, 198 U.S. 371, 381-82 (1905) (implied right of access over private lands).

• Seufert Bros. Co. v. United States, 249 U.S. 194, 198 (1919) (The treaties created a servitude that ran with the land. This decision was significant in that it expanded the hunting and fishing rights outside the territory ceded by the tribes when it was shown that the tribe used the area for hunting and fishing).

• Tulee v. Washington, 315 U.S. 681, 685 (1942) (The state was not allowed to charge fees for Indians to be able to exercise those rights).

• Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 398 (1968) (Puyallup I) (Court said that the treaty did not prevent state regulations that were reasonable and necessary under a fish conservation scheme, provided the regulation was not discriminatory).

• Dep’t of Game v. Puyallup Tribe, 414 U.S. 44, 48 (1973) (Puyallup II) (Court struck down the state restrictions as discriminatory. Court noted that the restrictions for catching steelhead trout with nets had remained, and was a method used only by the Indians, whereas hook and line fishing was allowed but was used only by non-Indians. As such, the effect of the regulation allocated all of the steelhead trout fishing to sport anglers, and none to the tribes).

• Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 177 (1977) (Puyallup III) (Despite the tribe's sovereign immunity, the state could regulate the harvest of steelhead trout in the portion of the river that ran through the Puyallup Reservation as long as the state could base its decision and apportionment on conservation grounds.

• Washington v. Fishing Vessel Assn., 443 U.S. 658 (1979) (Tribes are co-managers of the resource and have rifht to take 50%of the harvestable portion of each run).

• Washington v. United States. No. 17-269 (2018) Affirms the lower court decisions that the State has a duty to protect and restore salmon habitat and they have violated that duty by constructing and maintaining fish blocking road culverts).

THE "FISH WARS"




THE "FISH WARS"

• State refuses to recognize treaty-reserved rights and arrests tribal members fishing off-reservation.

• Decades of strife lead to “Fish Wars” of the 1960s and ’70s.

• Only recourse for tribes was to seek legal remedy.

U.S. V. WASHINGTONBOLDT DECISION, FEB. 12, 1974• Tribes have right to fish in all usual

and accustomed places.• Tribes are co-managers of the

resource and are entitled to 50% of the harvestable fish.

• State can regulate Indian fishing only if it proves a conservation need; non-Indians must be regulated first.




UPHELD BY SUPREME COURT

The state refused to implement Boldt’s ruling until 1979 when the Supreme Court largely upheld the decision.

“…other than some desegregation cases in the South, the civil disobedience by Washington State officials is the single greatest act of defiance of federal law witnessed in this century.”

U.S. V. WASHINGTON PHASE IIORRICK DECISION 1980• Treaty tribes’ share includes hatchery

fish;• Tribes have implicit right to have fish

protected from environmental degradation.




HOH V. BALDRIGE, 1981

• Salmon must be managed river system by river system, run by run to protect the treaty right.

• State and tribes must mutually develop long-term plans with practical rules for management and allocation of salmon.

SHELLFISH CASERAFEEDIE DECISION, 1994

• Shellfish harvesting rights at “usual & accustomed” places are the same as those for salmon.

• Shellfish are “fish” under the treaties.• Includes the right to harvest shellfish

on state/private tidelands.




Culvert Case

District Court Holding• The court found that salmon stocks in the Case Area

have declined “alarmingly” since the Treaties were signed, and “dramatically” since 1985. The court wrote, “A primary cause of this decline is habitat degradation, both in breeding habitat (freshwater) and feeding habitat (freshwater and marine areas) . . . . One cause of the degradation of salmon habitat is . . . culverts which do not allow the free passage of both adult and juvenile salmon upstream and downstream.”

• The “consequent reduction in tribal harvests has damaged tribal economies, has left individual tribal members unable to earn a living by fishing, and has caused cultural and social harm to the Tribes in addition to the economic harm.”




Wrong Answer• At oral argument, Washington even more forthrightly denied

any treaty-based duty. Washington contended that it has the right, consistent with the Treaties, to block every salmon-bearing stream feeding into Puget Sound:

• The Court: Would the State have the right, consistent with the treaty, to dam every salmon stream into Puget Sound?– Answer: Your honor, we would never and could never do

that. . . .• The Court: . . . I’m asking a different question. Would you have

the right to do that under the treaty?– Answer: Your honor, the treaty would not prohibit that[.]

• The Court: So, let me make sure I understand your answer. You’re saying, consistent with the treaties that Governor Stevens entered into with the Tribes, you could block every salmon stream in the Sound?– Answer: Your honor, the treaties would not prohibit that[.]

• https://www.fs.fed.us/biology/nsaec/fishxing/yalljump.html

• https://m.youtube.com/watch?v=X7z5anXzm0k




CULVERT CASE

• Phase II of U.S. v. Washington confirmed that for treaty rights to have meaning there must be salmon for tribes to harvest.

• Tribes file suit in 2001 to force state to repair failing, fish-blocking culverts.

• In 2013 Judge Martinez orders state to repair nearly 600 culverts over the next 17 years.

Summary Judgment was granted in August of 2007

• Judge Martinez declared:• “the right of taking fish, secured to the Tribes in the

Stevens Treaties, imposes a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest.

• The Court further declares that the State of Washington currently owns and operates culverts that violate this duty.”

• Order on Cross-Motion for Summary Judgment, Dkt. # 392 at pg. 12.




District Court Remedy• Trial occurred in October of 2009.• The State “declined the formulation of the

injunction on the ground that it had not violated the Treaties and that, therefore, no remedy was appropriate.” United States v. Washington, 827 F.3d 836, 858 (9th Cir. 2016).

• Decision and Permanent Injunction was entered in March of 2013. Memorandum and Decision, Dkt. 752 (March 29, 2013) and Permanent Injunction Regarding Culvert Correction, Dkt. # 753 (March 29, 2013).

Injunction• WSDOT barrier culverts were divided into two

categories with• corresponding deadline.

– High priority – those blocking more than 200 meters of habitat remediated within 17 years. United States v. Washington, 827 F. 3d at 860. Some culverts can be deferred. Id.

– Low priority/Deferred – must be remediated only at the end of the natural life of the existing culvert or in connection with a highway project that would otherwise require replacement. Id.

• Department of Natural Resources, State Parks and Washington State Department of Fish and Wildlife were ordered to correct their barrierculverts by 2016. Id. at 849.




Ninth Circuit• The Ninth Circuit affirmed the district court

and concluded:• “That in building and maintaining barrier

culverts within the Case Area, Washington has violated, and is continuing to violate, its obligations to the Tribes under the Treaties.” Id. at 853. Rehearing and Rehearing en banc were denied. United States v. Washington, 864 F.3d 1017 (9th Cir. 2017).

Cont. Ninth Circuit• The Ninth Circuit panel concluded that when

the parties struck those agreements, they did so with the understanding that they guaranteed the Tribes both access to fishing spots and “also that there would be fish sufficient to sustain them.” 853 F.3d at 964.

• The panel further noted that it would generally “infer a promise that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” Id. at 965. Put another way, a right of taking fish included an implied duty on the part of the State not to degrade the supply of fish.




Other Issues• The Sherrill case does not apply, Washington

and the Tribes have been in a more or less continuous state of conflict over treaty-based fishing rights for over one hundred years.

• The United States cannot, based on laches or estoppel, diminish or render unenforceable otherwise valid Indian treaty rights.

• Washington’s cross request was barred by sovereign immunity.

• Second, it held that Washington did not have standing to assert treaty rights belonging to the Tribes.

Holding• In sum, we conclude that in building and maintaining

barrier culverts Washington has violated, and continues to violate, its obligation to the Tribes under the fishing clause of the Treaties. The United States has not waived the rights of the Tribes under the Treaties, and has not waived its own sovereign immunity by bringing suit on behalf of the Tribes. The district court did not abuse its discretion in enjoining Washington to correct most of its high-priority barrier culverts within seventeen years, and to correct the remainder at the end of their natural life or in the course of a road construction project undertaken for independent reasons. US v. WA, No. 13-35474.

• State filed a Petition for Certiorari on August 17, 2017.




Questions before the SCOTUS• 1. Whether Washington violated the treaty

right “by constructing hundreds of barrier culverts that block salmon from reaching usual and accustomed fishing grounds and that cause many to die before they can reproduce.”

• 2. “Whether Washington can assert an equitable defense against the United States based on the theory that the United States made the State use these culvert designs.”

• 3. “Whether the district court’s injunction is consistent with the court’s equitable discretion.”

State Business Amici• American Forest and Paper Assn and National

Mining Assn • National Mining Assn• Citizen Equal Rights Foundation• Central New York Fair Business Assn• Association of Washington Business (AWB) • National Association of Home Builders (NAHB) • Building Industry Association of Washington • Montana Building Industry Association• Oregon Home Builders Association• Master Builders Association of King and

Snohomish Counties• Washington REALTORS®




State Business Amici• Washington State Farm Bureau • Idaho Farm Bureau Federation• Montana Farm Bureau Federation• Oregon Farm Bureau• Modoc Point Irrigation District• Mosby Family Trust• TPC LLC• Sprague River Water Resource Foundation,

Inc.• Fort Klamath Critical Habitat Landowners, Inc.• Pacific Legal Foundation

State Amici for Washington• State of Idaho• State of Kansas• State of Louisiana• State of Maine• State of Michigan• State of Montana• State of Nebraska• State of Oklahoma• State of Wisconsin• State of Wyoming




Tribal Amici• Confederated Tribes of the Warm Springs• Reservation;• National Congress of American Indians;• Navajo Nation;• Ute Mountain Ute Tribe;• Confederated Salish and Kootenai Tribes;• Washington State and Local Officials;• Pacific Coast Federation of Fishermen’s

Association et al; and• Hon. Daniel J. Evans.

State and Local Government Amici for Tribes

• Dan Evans, Former Governor and Senator• Brian Boyle, Former Commissioner of Public Lands• Dow Constantine, Executive of King County• Phil Anderson, member of the Pacific Salmon

Commission and former director of WDFW• Jim Buck, former member of the Washington State House

of Representatives • Bruce Dammeier, Executive of Pierce County • Robert J. Drewel, former Executive of Snohomish County • Joe Fitzgibbon, Washington State Representative• Karen Fraser, former Washington State Senator • Joe McDermott, Chair of the King County Council • Ralph Munro, former Secretary of State of Washington • Debbie Regala, former Washington State Legislator • Ron Sims, former Executive of King County




Amici Tribes• Warm Springs• Umatilla• Nez Perce• National Congress of American Indians• Navajo Nation• Ute Mountain Ute Tribe• Confederated Salish and Kootenai Tribes

Fishers• Pacific Coast Federation of Fisherman Assn• Alaska Trollers Assn• Institute for Fisheries Resources• Fly Fishers International• NW Sportfishing Industry Assn• NW guides and Anglers Assn• Assn of NW Steelheaders• The Conservation Angler




Law ProfessorsSteven W. Bender, Professor and Associate Dean for Planning and Strategic Initiatives, Seattle University School of Law

Seth Davis, Assistant Professor of Law, University of California, Irvine School of Law

Bethany Berger, Wallace Stevens Professor of Law, University of Connecticut School of Law

Matthew Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State

University College of Law

June Carbone, Robina Chair in Law, Science and Technology, Associate Dean for Research & Planning, University of Minnesota Law School

Kathryn E. Fort, Director, Indian Law Clinic, Michigan State University College of Law

Kirsten Matoy Carlson, Associate Professor of Law, Wayne State University Law School

Eric T. Freyfogle, Swanlund Chair and Professor of Law Emeritus, University of Illinois College of Law

Grant Christensen, Associate Professor of Law, University of North Dakota School of Law

James M. Grijalva, Lloyd & Ruth Friedman Professor of Law, Director, Tribal Environmental Law Project,

University of North Dakota School of Law

Bridget J. Crawford, James D. Hopkins Professor of Law, Elisabeth Haub School of Law at Pace University

Jaqueline P. Hand, Professor of Law, University of Detroit Mercy School of Law

Sanne Knudsen, Stimson Bullitt Endowed Professor of Environmental Law, Associate Dean for Faculty Research & Development, University of Washington School of Law

John P. LaVelle, Professor of Law & Regents’ Lecturer, Director, Law and Indigenous Peoples Program,

University of New Mexico School of Law

Cont. Law ProfessorsMichael Lewyn, Associate Professor of Law and Director of the Institute on Land Use and Sustainable Development, Touro College, Jacob D. FuchsbergLaw Center

Robert Miller, Professor, Sandra Day O’Connor College of Law, Arizona State University

Tom Romero II, Associate Professor of Law & Affiliated Faculty Department of History, University of Denver

Ezra Rosser, Professor of Law, American University Washington College of Law

Colette Routel, Professor of Law, Mitchell Hamline School of Law

Judith Royster, Professor of Law, University of Tulsa College of Law

Joseph William Singer, Bussey Professor of Law, Harvard Law School

Ronald C. Slye, Professor of Law, Seattle University School of Law

Michalyn Steele, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University

Rebecca Tsosie, Regent’s Professor of Law and Faculty Co-Chair, Indigenous Peoples Law and Policy

Program,

James E. Rogers College of Law, University of Arizona

Elizabeth Kronk Warner, Associate Dean of Academic Affairs, Professor of Law, Director, Tribal Law and

Government Center, University of Kansas School of Law

Sandra B. Zellmer, Robert B. Daugherty Professor, Nebraska College of Law

William Wood, Visiting Associate Professor of Law, Southwestern Law School




Recusal• Just before the Tribes’ and United States’

briefs were filed, it was announced that Justice Kennedy would not participate.

• Justice Kennedy participated in United States v. Washington, 759 F.2d 1353 (9th Cir. 1985)(en banc).

Argument• Justice Gorsuch wonder whether the State’s

assertion would, “potentially eliminate the treaty altogether”. Id. at 18. He described the State’s assertion as follows: – “that you have rights to pursue other public

goods and that those can outweigh the treaty effectively…and so any violation of these culverts has to be weighed against the benefits they provide to other person.” Id.

• Justice Gorsuch and Justice Kagan both soughttextual support in the Treaties for the State’sassertion. Id. at 19-25.

• Chief Justice Roberts asked the State which test was not considered by the district court. Id. at 29.




Argument• The State sought reversal or remand. The

State claimed that the test applied and proposed would result in the treaties “regulate virtually every significant human activity off reservation and federal courts…would be the primary regulators.” Transcript, at 3-4.

• State’s proposed a test where the Tribes have to show: “[t]hat a state barrier is causing a large decline in a particular river and that it’s not justified by substantial compelling interest.” Id. at 5.

Cont. Argument• Justice Sotomayor inquired on the State’s

position in the lower courts:– “the Stevens Treaty would not prohibit

Washington from blocking completely every salmon stream into Puget Sound.” Id. At 4-5.

• Justice Sotomayor, Justice Alito, Justice Kagan, and Justice Gorsuch pressed for a specific number that constitute a “large decline.”

• State identified more than 5% but less than 50% then later identified 30%.

• Justice Gorsuch compared to securities law where 5% is a point of reference. Id. At 5- 17.




Cont. Argument• He further explained that the Ninth Circuit, “then

spends the next six pages refuting that argument based on the text of the treaty, the understanding of the parties, this Court’s case law.

• Then six pages later,…the court says: ‘Even if the treaties did not contain such protection explicitly, the court would infer it.’ And then two pages later, we get the infamous sentence in which ‘moderate living’ makes it first appearance. So, at best, we’re talking about something that supports an alternative holding.” Id. at 35-36.

Cont. Argument• Chief Justice Roberts inquired on whether the

Court should remand to the district court.• Justice Ginsburg only asked questions of the

United States. She inquired on whether:– the “in common” language of the treaty

meant anything more than a provision for non-discrimination against Indians, the United States was liable for the culvert design because of federal standards or federal permits, and the US could pay for any part of the repair costs.

• Justice Alito inquired on whether federal dams violate the treaty.




Cont. Argument• Gorsuch: (on the state’s argument that the public interest could effecitvely outweigh the

treaty rights): “Doesn't that potentially eliminate the treaty altogether, and wouldn't it defeat it entirely? The point of a treaty I would have thought would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim.... I would have thought a treaty would have been the supreme law of the land and would have overridden any municipal interests”

• Kagan: (on the same argument): "This is a contract made into federal law in which the Indians gave up a very substantial thing, all their land. And the tribes got something in return, which is the right to take fish. Where does this public interest theory come in in the treaty? I thought this was an agreement. I give you my land. You give me the right to take fish. And – let’s make it even narrower here. I have the right that you will not put up obstructions on these streams such that I can’t take fish.”

• Sotomayor: (likely in reference to the 1905 Winans decision): “[We’ve held that] if you’re going to degradate [the resource] for the benefit of the landowners, as opposed to the people entitled to fish, that you can’t do that because you have to make sure that the Indians receive their fair amount of the catch."

• Breyer: "It seems to me there is no disagreement, perhaps, on the common law tradition that a nuisance could consist of simply blocking fish from coming up a river into your area. And then it seems to me the Indians ought to have at least as much right as a person had under the common law, given the treaty.”

William Jay argued on behalf of the Tribes. • Affirmatively stated that the treaty must include protection

of the fishery and rejected the State’s balancing against public interest argument.

• He urged the Court to affirm the injunction. He explained that: – “we think that the reason an injunction was justified in

this case is because the state has violated the treaty by, one, putting barrier culverts in the streams that prevent salmon and other anadromous fish from getting to the usual accustomed fishing grounds, all of which -- all of which are places where the tribes have a right to fish. And, second, those blockages, those same blockages are what is degrading the fishery in a substantial way.” Id., at 61.




Arguments• Chief Justice Roberts asked whether the moderate

living standard is the standard the Tribes want the Court to adopt.

• If “we were to write an opinion in this case, you would have no objection if it said that there is no moderate living standard at issue here?” Id., at 60.

• Justice Kagan sought clarification on whether the district court considered the moderate living standard. She also inquired on the difference between the obligation under the treaty and the common law principles.

• Justice Alito inquired on whether the Tribes agree that US built dams are in compliance with the Treaty.

• Justice Breyer’s questions highlighted the State’s ability to ask the district court to modify the injunction.

Precedence• While the equally divided per curiam

summary opinion issued by the Supreme Court carries no precedential weight with future Justices, the potential implications of this decision could be significant.




What Now?• Fix the culverts to meet the standards of the

Injunction!– 2016: 825 significant fish blocking culverts– Min. of 455 (90% of habitat)– 2017: 806 – Min. of 461 (90% of habitat)

• Local government culverts

What do others say




Blumm and Steadman• Blumm and Steadman have said: “The Martinez Decision represents the most

significant step forward in the progression of treaty fishing rights litigation since the Supreme Court’s affirmation of Judge Bolt thirty years ago.” (p. 704)

• Seattle Times reporter Lynda Mapes has stated:

The lawsuit is potentially a more powerful tool than the Endangered Species Act (ESA) for a couple of key reasons. First, it could affect streams and rivers everywhere in Washington with a state highway culvert that affects runs for Western Washington tribes. The ESA only protects streams that are home to fish listed for protection. Second, the ESA only requires fish runs to be restored to the point that they are no longer on the brink of extinction. The lawsuit seeks to restore habitat to the point it supports enough salmon to successfully sustain commercial, cultural and subsistence fishing. (Mapes, 2001)

Troutman Sanders, LLP• The Ninth Circuit’s decision could well

require federal and state agencies to ensure that their decisions—e.g., when issuing or reviewing grants, permits, licenses, and approvals for other infrastructure projects that touch streams, rivers, lakes, or ocean—not only protect Tribal access to off-reservation fishing grounds and stations, but also ensure that such actions protect against habitat degradation to ensure a supply of fish sufficient to provide a moderate living to the Tribes.




Cont. Troutman SandersAmici pointed out to the Supreme Court, the EPA has already cited the Ninth Circuit’s decision in considering impacts on the “the right to adequate supply of fish[,]” 81 Fed. Rg. At 92,480, and “treaty-reserved susbsitencfishin rights[,]” 81 Fed. Reg. at 85,423, when reviewing state water quality standards under the CWA.“Tribal fishing rights will soon intersect with “a variety of development, construction, and farming practices, not just in Washington but throughout the Pacific Northwest.” Order, No. 13-35474 (9th Cir. May 19, 2017).

Stoel-Rives LLP

• Every tribe, person, public utility, municipality, state, or developer that has an interest in water rights or projects that impact salmon, should pay attention to the Court’s ruling in the Culverts case — and work with counsel to prepare your strategy for productive engagement to resolve these issues before they lead to expensive bet-the-farm litigation.

• This decision could impact more than just Washington’s culverts, including, potentially, a variety of development, construction, and farming practices throughout the Northwest. Any developer, municipality, irrigation project, or state, relying on federal, state, or local authorizations for activities that alone or cumulatively impact the passage of fish or fish species at a population level should assess the application of this decision, develop a plan to preemptively address any impacts, and build strong partnerships with tribes, to avoid costly and consequential litigation.




Stoel-Rives, LLP• While a cert denial and a per curiam opinion (and a

4-4 tie at that) are not enough to establish a trend, it is enough to indicate that the Supreme Court is open to a broader view of tribal treaty rights than some anticipated.

• One possible explanation for these rulings is the appointment of Justice Gorsuch, who authored 18 legal opinions and heard approximately 60 cases involving Indian law and tribal interests while he served on the United States Court of Appeals for the Tenth Circuit. It is unclear how Justice Gorsuchvoted in the Culverts case but, given his experience and questions at oral argument that indicated he supported the Washington tribes’ position, he is the justice to watch on Indian law issues, at least for now.

Stoel Rives, LLP

• In the Culverts case, the tribes’ initial pleading sought “to enforce a duty upon the State of Washington to refrain from constructing and maintaining Culverts under state roads that degrade fish habitat . . . .” This specific and narrowly focused question can and will be applied to other development, prompting litigation and, optimistically, settlement models that rephrase the status quo to protect tribes’ treaty-reserved rights alongside existing and new development.




Cont. Stoel Rives, LLP• Every tribe, person, public utility,

municipality, state, or developer that has an interest in water rights or projects that impact salmon, should pay attention to the Court’s ruling in the Culverts case — and work with counsel to prepare your strategy for productive engagement to resolve these issues before they lead to expensive bet-the-farm litigation.

Parade of Horribles by the State

• “The treaties would regulate virtually every significant human activity off reservation, and federal courts in the Northwest would be regulating -- essentially would be imposing environmental laws, would be the primary environmental regulators, rather than leaving most decisions to state and federal policymakers, as should be the case.” Washington v. United States, No. 17-269, Oral Arguments, Noah Purcell, Solicitor General, State of Washington, at 4, April 18, 2018.




Cont. the Parade of Horribles• “The treaties become a catch-all environmental

statute that will regulate every significant activity in the Northwest.” Id. at 13-14.

• That would mean that dams the federal government built and licensed across the Northwest violate the Treaties. Washington v. United States, No. 17-269, Reply Brief for the Petitioner.

• “That untenable standard makes it impossible to measure compliance, would likely render illegal many past actions that impacted salmon (such as federal dams), and would make virtually any significant future land use decision in the Pacific Northwest subject to court oversight to determine treaty compliance.” Washington v. United States,No. 17-269, Brief for the Petitioner at 1-2.

Cont. Parade of Horribles• “The Ninth Circuit’s reasoning is not limited

to fishing rights; it can be extended to embed into federal law fixed-quantity hunting, gathering, pasturing, and similar rights that by the same reasoning must be secured to tribes through environmental and other land use requirements.” Id. at 3.

• It imposes a wide-ranging and free-floating “environmental servitude” on all the actions of the States and regulated communities. Br. Am. Cur. of Idaho et al. at 14. See Pet. App. 19a.




Cont. Parade of Horribles• “Those consequences, we explain, are already

in evidence in draconian federal regulations that destroy States rights and interfere with economic activity in the name of securing for Tribes subsistence fishing harvests.” Id. at 6.

• "The decision below will therefore have implications for every land-use or development decision that could affect salmon habitat. That includes almost all development decisions, for as the Washington State Conservation Commission (WSCC) has explained, “[r]iparianzones are impacted by all types of land use practices.” Carol J. Smith, Washington State Conservation Commission, Salmon Habitat Limiting Factors in Washington State 127 (2005).

Cont. Parade of Horribles• "The decision below will therefore have implications for every land-

use or development decision that could affect salmon habitat. That includes almost all development decisions,

• For example, the WSCC has determined that “[r]iparian functions are impaired by * * * direct removal of riparian vegetation, roads and dikes located adjacent to the stream channel, road crossings, agricultural/livestock crossings, unrestricted livestock grazing in the riparian zone, and development in the riparian corridor.” Ibid.

• In addition, salmon can be harmed by “[h]uman-caused alterations in basin hydrology” resulting from “changes in soils, decreases in the amount of forest cover, wetlands, and riparian vegetation, and increases in impervious surfaces, sedimentation, and roads.” Id. at 174.




Cont. Parade of Horribles• “Applied to water rights, the Ninth Circuit’s

decision would extend beyond the narrow reserved-water-rights doctrine enunciated by this Court. It would instead establish a much broader implied water right that is appurtenant not to a tribe’s reservation but to all usual and accustomed fishing grounds.” Id. at 25-26.

• “Both the decision below, and Adair II, reflect a view held by the Ninth Circuit that this Court’s federal reserved water right doctrine permits courts to infer implied servitudes over ceded, allotted or sold lands when the servitudes may be construed as being supportive of non-exclusive treaty fishing rights.” Id. at 23.

Cont. Parade of Horribles• Stevens treaties’ fishing clause to prohibit

States or presumably other local governmental entities from taking land use or other regulatory actions, or to compel such entities to undo past actions, that may adversely affect the amount of the harvestable fish – i.e., imposing an “environmental servitude.” Washington v. United States, No. 17-269, Brief of Amici Curiae States of Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Montana, Nebraska, Oklahoma, Wisconsin, and Wyoming in Support of Petitioner at 3.




Cont. Parade of Horribles• Commentary on the Ninth Circuit’s decision

leaves no doubt about its implications with respect to, inter alia, dams, water diversions increasing stream temperatures, timber harvests, grazing practices and sediment-producing construction projects. Id. at 19.

PREVIOUS ATTORNEY GENERAL ROB MCKENNA• The most important Washington lawsuit you

have never heard of

• McKenna argues there is legal engineering going on that could place the tribes in a position to co-govern much of the state.

• “It’s because it’s a way to restore sovereign control over lands they used to own. I appreciate that objective. I understand why they are pursuing it. But it’s not what the treaties were about. And it’s not something that the State of Washington or its local governments can accept.”




Cont. McKenna• McKenna says that Washington state tribes

want to establish that their treaty rights to fish give them a role and a right to any decision that affects the fish population. Such authority could touch many governing decisions from water rights and permits, to land use policy, etc.

Supreme Court Decision-9 words

• “The judgment is affirmed by an equally divided Court.”




Audio and Transcripts

• https://www.oyez.org/cases/1978/77-983• Supreme Court Docket is at:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-269.html.

• https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-269_o75q.pdf

“Great Nations, Like Great Men, Keep Their Word.”

— Justice Hugo Blackon Indian Treaties




Documents

UNDERSTANDING TRIBAL TREATY RIGHTS IN WESTERN … - 03 - Fall... · 2021. 1. 5. · UNDERSTANDING TRIBAL TREATY RIGHTS IN WESTERN WASHINGTON MEMBER TRIBES OF THE NORTHWEST INDIAN