UNITED STATES V. WASHINGTON, SUBPROCEEDING 09-1

Transcription

1 UNITED STATES V. WASHINGTON, SUBPROCEEDING 09-1

2 United States v. Washington

3 The Quileute Tribe

4 The Quileute Tribe

5 2009: Makah v. Quileute and Quinault Makah filed a request for determination of: Quileute s northern and western ocean treaty fishing boundaries Quinault s western ocean treaty fishing boundary Where did Quileute and Quinault fish in the Pacific Ocean in 1855?

6 9 experts in four fields: Archaeology Biology Anthropology Linguistics 472 admitted exhibits 23-day trial 6

7 Northern fur seal

8 Northern Fur Seal Considered a pelagic species Never come ashore except to breed Would have to travel miles offshore to reliably obtain fur seals 8

9 9

10 Treaty of Olympia, 1856: The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians. Makah s treaty (Treaty of Neah Bay) secures [t]he right of taking fish and of whaling or sealing at usual and accustomed grounds and stations. Does evidence of taking sea mammals count in determining usual and accustomed grounds and stations under the Treaty of Olympia? Isaac Stevens

11 Two legal principles at play 1. Canons of treaty construction Treaty terms must be construed in accordance with the meaning they were understood to have by the tribal representatives at the council. Tulee v. Wash., 315 U.S. 681, (1942). Ambiguities must be resolved in favor of the signatory tribes. Winters v. U.S., 207 U.S. at (1919) Makah argued that the canons do not apply where the signatory tribes understanding could adversely affect other tribes

12 Two legal principles at play 2. Reservation of rights doctrine The treaty was not a grant of rights to the Indians but a grant of right from them a reservation of those not granted. United States v. Winans, 198 U.S. 371, 381 (1905) Abrogation of reserved rights must be explicit the United States treaty drafters had the sophistication and experience to use express language for the abrogation of treaty rights. Mille Lacs, 526 U.S. 172, 195 (2009) they shall not take shellfish from any beds staked or cultivated by citizens

13 Two legal principles at play 2. Reservation of rights doctrine continued Shellfish case: [B]ecause the right to take any species, without limit, preexisted the Stevens Treaties, the Court must read the right of taking fish without any species limitation. U.S. v. Wash., 157 F.3d at 644 (9th Cir. 1998) Makah argued that Quileute and Quinault had different words and implements for different species

14 Negotiating Treaties Through Chinook Jargon ENGLISH Many 1000s of words Translation bottleneck Chinook Jargon Just ~500 words Many highly ambiguous QUILEUTE or QUINAULT 1000s of words Decision I, 384 F. Supp. at 330: the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ.

15 Are sea mammals fish? Meaning of fish in 1855 Chehalis River council James Swan: The Indians, however, were not to be restricted to the reservation, but were to be allowed to procure their food as they had always done. Stevens: They were of course to fish etc as usual. As to whales, they were theirs. Quileute and Quinault had no separate word or phrase for sea mammals /ʔaa litaʔ/; kemken = fish, food

16 Canons: Trial decision 83 pages The use of fish in the 1856 treaty indicates an intended breadth of the subsistence provision that should not be circumscribed on the basis of post hoc understandings and linguistic drift. The linguistic evidence proved that Quileute and Quinault drew no distinctions between groups of aquatic species and would have understood fish to encompass aquatic animals RE the Makah treaty, these treaties were negotiated by different individuals and in different contexts

17 Trial decision 83 pages Reservation of Rights: Except for the shellfish proviso, there is no indication anywhere in the language of the treaty or the evidence surrounding the negotiations of an intent to circumscribe this most important of usufructuary rights

18 Ninth Circuit win: Oct. 2017, 873 F.3d 1157

19 Ninth Circuit Decision: October 2017 Canons Fish as of 1855 is ambiguous and the ambiguity must be resolved in favor of the signatory tribes Implicit in the Indian canon is the recognition that this principle inures to the benefit of the tribes that are parties to the treaty. As a non-signatory party, the Makah cannot usurp application of the Indian canon with respect to the Treaty of Olympia. Makah reads our precedent too broadly to advocate for its seemingly limitless rule that the Indian canon is inapplicable whenever another tribe would be disadvantaged.

20 Ninth Circuit Decision: October 2017 Canons continued: Treaty parties understanding Chinook jargon lacked terminology to convey taxonomic distinctions Quileute and Quinault s corresponding words have an even wider sweep Same result even without a beneficial preference US negotiators said that the treaty would not call[] upon [the tribes] to give up their old modes of living and places of seeking food. Stevens informed the tribes that the treaty secures [their] fish and permits them to take fish where [they] have always done so and in common with the whites. that the tribes had distinct terms available does not undermine what terms were actually utilized and how the Quileute and Quinault would have translated them.

21 Ninth Circuit Decision: October 2017 Reservation of rights doctrine As a practical matter, interpreting fish to cover whales and seals also respects the reserved-rights doctrine. (citing United States v. Winans, 198 U.S. 371, 381 (1905)) Whaling and sealing were part of Quileute and Quinault s pre-existing rights

22 Supreme Court appeal Argues that the Ninth Circuit made mistaken rulings implicating three exceptionally important questions regarding the interpretation of Indian treaties: (1) whether a court s duty to consider the intentions of the parties and the context in which a treaty was made includes the duty to consult the language of contemporaneous treaties that shed light on the drafters intent; (2) whether the asserted Indian understanding of a treaty can override the clearly expressed intent of the parties viewed in a real-world context; and (3) whether the Indian canon applies to favor certain Indian tribes when its application is detrimental to contemporaneously negotiated treaty rights of other tribes.