UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 UNITED STATES OF AMERICA, v. Plaintiff, FRANKIE GONZALES et al., MAKAH TRIBE S AMICUS BRIEF - UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA Defendants. AMICUS BRIEF OF THE MAKAH TRIBE Magistrate Judge J. Kelley Arnold The Makah Tribe submits this amicus brief to address a question of tribal law raised in Defendant Andrew Noel s December 0, 0, Motion in Limine and separately filed Memorandum in Support (Dkt. Nos., ). Part of Defendant Noel s memorandum requests that the Court exclude testimony that the defendant s conduct failed to conform to the [Makah Tribe s Gray Whale Management] Plan.... Mem. in Supp.. As a basis for this request, Defendant contends that it would be unduly prejudicial to allow testimony that the defendant s conduct failed to conform to the Plan, since the Plan was not in effect on September, 0, the date of the alleged unlawful whale hunt. Mem. in Supp.. To decide this part of Defendant s motion in limine, the Court may need to rule on Defendant s erroneous contention Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 that the Management Plan expired by its terms on December, 0, a contention that raises an issue of Tribal law. Mem. in Supp.. The Tribal Council has officially determined that the Management Plan remained in effect on September, 0, when the Defendants allegedly committed the federal offenses at issue in this case. Based on this determination, Tribal charges have been filed against all five Defendants in this action. If the Court determines it must address this question of Tribal law, it should defer to the Tribe s interpretation of the Management Plan. MAKAH TRIBE S AMICUS BRIEF - BACKGROUND I. Domestic and International Regulation of Whaling and the Tribe s Effort to Resume Treaty Hunting of Gray Whales. The Makah Tribe s Gray Whale Management Plan ( Plan or Management Plan ) was adopted in the context of the Tribe s ongoing effort to exercise its express right to hunt whales secured by the Treaty of Neah Bay. Stat. (Jan., ). The Treaty ceded most of the Tribe s land area on the Olympic Peninsula, and in return the United States promised that: The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States.... Defendant Noel does not explain why the Court needs to rule on this issue. However, Ninth Circuit decisions sharply limit a Tribal member s ability to assert a Treaty rights defense to federal charges where the alleged conduct also violates Tribal law. See United States v. Williams, F.d, -0 (th Cir. 0) (where Indian tribe has enacted wildlife laws similar to the state or federal laws that are being enforced against tribal members, tribal laws create a presumption of validity); United States v. Sohappy, 0 F.d, (th Cir. ) (where tribal law prohibits activity, sales of fish would be prosecutable under the Lacey Act regardless of the validity of the state regulations). Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 Stat. (Jan., ) (emphasis added). The express Treaty whaling right reflects the Tribe s,00-year history of whaling and the centrality of whaling to the Tribe s economy and culture. See generally Metcalf v. Daley, F.d, (th Cir. 00). The Treaty of Neah Bay is the only Indian treaty that expressly secures whaling rights. Notwithstanding the centrality of whaling to the Tribe s identity, it suspended whaling in the late s because of the depletion of whale stocks by non-indian commercial whaling. Metcalf, F.d at. In, when the gray whale was removed from the endangered species list, the Tribe initiated efforts to resume a ceremonial and subsistence hunt. Id. at. During the intervening seven decades, a complex set of international and domestic regulations governing whaling arose, however. This domestic and international regulatory context is central to the proper interpretation and application of the Management Plan. Beginning in, whaling has been subject to international regulation by the International Whaling Commission (IWC), which was established by the International Convention for the Regulation of Whaling (ICRW). The ICRW empowers the IWC to establish international whaling regulations which are compiled in a document known as the Schedule. The ICRW has in turn been implemented domestically through the Whaling Convention Act (WCA), U.S.C. et seq. The WCA prohibits whaling in violation of the ICRW, the Schedule, and any domestic whaling regulations promulgated by the Secretary of Commerce. Id. c; see generally Metcalf, F.d at -. Since its inception, the Schedule has prohibited the hunting of gray whales except when the meat and products of such whales are to be used exclusively for local consumption by the aborigines. Metcalf, F.d at. MAKAH TRIBE S AMICUS BRIEF - Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 Since the 0s, the IWC has regulated aboriginal subsistence whaling through the issuance of whaling quotas. Id. In, following the removal of the gray whale from the endangered species list, the Tribe requested that the United States seek IWC approval of a gray whale quota for use by the Tribe. Metcalf, F.d at. Although the Tribe believed that IWC approval was unnecessary in light of its express Treaty whaling right, it elected to seek such approval to avoid unnecessary conflicts with federal and international law. In March, the Tribe and the United States, through the National Oceanic and Atmospheric Administration (NOAA), entered into a cooperative agreement in which the United States agreed to seek an IWC quota of gray whales for the Tribe s use. Id. In addition, the cooperative agreement provided that within 0 days of the approval of a quota, NOAA would revise its domestic regulations to allow for subsistence whaling by the Tribe, and the Tribe would adopt a management plan and regulations to govern the harvest. Id. Later in, NOAA proposed and adopted domestic regulations that provided for cooperative management of IWC-approved quotas by Native American whaling organizations that have entered into a cooperative agreement with NOAA relating to subsistence whaling. See 0 C.F.R. 0. et seq. Prior to the IWC s annual meeting in October, NOAA and the Tribe entered into a second, substantially similar cooperative agreement. MAKAH TRIBE S AMICUS BRIEF - Exh. ; Metcalf, F.d at -0. At the meeting, the IWC approved by consensus a joint proposal by the United States and Russia for a gray whale quota of whales over five years. Metcalf, F.d at 0. The Following the Metcalf litigation, which is discussed below, NOAA and the Tribe entered into their most recent cooperative agreement in November 0. This agreement expired, as did the cooperative agreement, on December, 0. See Exh.. Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 quota was divided by a bilateral agreement between the two countries, which limited the Makah harvest to five whales per year. Id. Since, the five-year quota has twice been renewed, in 0 and again in 0. II. The Tribe s Gray Whale Management Plan. Following the approval of the quota, the Tribe developed the Management Plan pursuant to the cooperative agreement to regulate the exercise of the Tribe s treaty whaling rights. In January, the Tribal Council enacted Resolution No. - which expressly enacts the Plan into tribal law. Exh.. The Management Plan, which was later amended in May 0 by Resolution No. -0, establishes the Tribe s management intent and Tribal regulations governing ceremonial and subsistence whaling by Tribal members. Exh. ; Exh. at. The Plan creates an overall management and regulatory scheme which includes a process by which a whaling captain must obtain a permit from the Tribal Council prior to engaging in a hunt; a certification process for whaling captains and other members of the whaling crew; time, place and manner restrictions; prohibitions on the commercial use of meat and whale products; monitoring and reporting requirements; and Tribal enforcement. Exh.. The Plan also contains some limits specific to the five-year quota approved by the IWC in and the corresponding bilateral agreement, such as restrictions on the total number of gray whales taken between and 0 and in any calendar year. Exh. at. The only amendment to the Plan in 0 allowed for greater flexibility in the times and areas in which tribal members were permitted to hunt. Exh.. MAKAH TRIBE S AMICUS BRIEF - Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 III. Federal Court Decisions Regarding Makah Whaling. The federal government s approval of the Tribe s request to resume treaty whaling has been challenged in two separate federal court actions. In 00, the Ninth Circuit ruled in Metcalf v. Daley, F.d (th Cir. 00) that NOAA violated the National Environmental Policy Act by entering into the cooperative agreement before preparing an environmental assessment regarding the Makah whaling proposal. In 0, the Ninth Circuit held in Anderson v. Evans, F.d (th Cir. 0) (second amended opinion), that NOAA violated the Marine Mammal Protection Act (MMPA) by allowing the Tribe to engage in whaling without obtaining a waiver of the MMPA s prohibition of taking marine mammals. The court also held that NOAA was required to analyze the Tribe s whaling proposal in a full environmental impact statement (EIS). The Anderson decision precludes NOAA from authorizing Tribal whaling until NOAA prepares an environmental impact statement and the Tribe obtains a waiver of the MMPA take moratorium. Although the decision technically did not become final until 0, it nevertheless prevented the Tribe and NOAA from entering into a further cooperative agreement authorizing Tribal whaling after 0. Because it had no intention of authorizing whaling in the absence of a cooperative agreement, the Tribal Council found it unnecessary to amend the Management Plan. During this time, however, the Council continued to issue annual regulations authorizing the subsistence and incidental harvest of other marine mammals, such as harbor seals and California sea lions. The Tribe s annual regulations for 0 provided: MAKAH TRIBE S AMICUS BRIEF - Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 Exh.. It is prohibited to kill, harvest, or harass any marine mammal except as provided by Tribal regulations. The harvest season is closed unless opened by Tribal regulations. The Tribal Council did not issue any further marine mammal regulations or make additional amendments to the Management Plan once the Anderson decision became final in November 0. Although the Tribe strongly disagreed with Anderson (twice seeking en banc review), the Tribe ultimately accepted that it was bound by the decision and must obtain an administrative waiver of the MMPA s take prohibition. Accordingly, on February, 0, the Tribe submitted a waiver request to NOAA. See 0 Fed. Reg. 0 (Mar., 0). Following the Tribe s waiver request, NOAA initiated the preparation of an EIS to review the environmental impacts of the Tribe request. 0 Fed. Reg. (Aug., 0). Both the waiver request and the EIS are pending before NOAA. IV. Tribal Prosecution of the Five Defendants. Defendants Andrew Noel, Theron Parker, Wayne Johnson, Frankie Gonzalez and William Secor are Tribal members who allegedly hunted a gray whale on September, 0. The Tribe is currently prosecuting them in Tribal court for violations of Tribal law, including the Management Plan. A pre-trial hearing is scheduled for January, 0, where the Court will set a trial date and hear argument on pre-trial motions, which must be filed no later than January. The Tribe has now filed a motion in Tribal court requesting a pre-trial ruling on the applicability of the Management Plan to the Defendants alleged conduct on September, 0. MAKAH TRIBE S AMICUS BRIEF - Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 MAKAH TRIBE S AMICUS BRIEF - ARGUMENT I. The Court Should Defer to the Makah Tribe s Interpretation of the Management Plan. If the Court determines that it must interpret the Management Plan to decide Defendant Noel s motion in limine, it should defer to the Tribe s interpretation of the Management Plan as a matter of Tribal law. There is broad support in federal judicial and agency decisions for deference by the federal government to tribal interpretations of tribal law under the principles of comity and tribal self-governance. The Supreme Court has long recognized, consistent with the Federal Government s longstanding policy of encouraging tribal self-government, that tribal courts are best qualified to interpret and apply tribal law. Iowa Mut. Ins. Co. v. LaPlante, 0 U.S.,, (). This is particularly applicable when federal adjudication of questions of tribal law would impair tribal lawmaking authority over tribal members and reservation affairs. See id. at. Unless the tribal court lacks jurisdiction, proper deference to the tribal court system precludes relitigation of issues raised... and resolved in the Tribal Courts. Id. at. Comity and the tribal self-governance policy require federal courts to defer to tribal resolution of issues when there is concurrent jurisdiction. See Stock West Corp. v. Taylor, F.d, - (th Cir. ) (discussing the need for federal court abstention on the basis of comity and affirming district court s decision to decline hearing case until tribal court had resolved issues of tribal sovereignty). Federal court deference to tribal interpretations of tribal law promotes the federal policy of Indian self-government and improves the adjudication process: [A]n initial exercise of tribal jurisdiction not only would bolster tribal selfgovernment, but also would provide any subsequently reviewing federal court with authoritative interpretation of the [tribal] ordinance. Had the federal district Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 court proceeded further in this case, on the other hand, it would have interpreted the disputed ordinance and ruled on tribal jurisdiction before tribal authorities themselves had a chance to declare what tribal law means. Burlington Northern R.R. Co. v. Crow Tribal Council, 0 F.d, (th Cir. ) (emphasis added). MAKAH TRIBE S AMICUS BRIEF - Moreover, deference to the tribal interpretation allows the federal court to benefit from the tribe s expertise in matters of its own law. Nat l Farmers Union Ins. Cos. v. Crow Tribe, U.S., (). Other federal courts and federal agencies have adopted a policy of deference to tribal legal determinations. In the Eighth Circuit, the courts defer to the tribal courts interpretation of tribal law. Prescott v. Little Six, Inc., F.d, (th Cir. 0) (reversing district court for failure to defer to tribal court s interpretation of tribal law). It has also been the longstanding policy of the Bureau of Indian Affairs, as determined by decisions of the Interior Board of Indian Appeals, to defer to a tribe s reasonable interpretation of its own Constitution and laws. Shakopee Mdewakanton Sioux Community, I.B.I.A., () (reversing BIA disapproval of tribe s adoption ordinance based on tribe s arguments to the Board of Indian Appeals); see also LaRocque, I.B.I.A., () (affirming BIA reliance on and deference to tribal court s advisory opinion on the constitutional question at issue); Prairie Island Indian Community, I.B.I.A., () ( tribe has the right initially to interpret its own governing documents and BIA must defer to such interpretation). Furthermore, where two reasonable interpretations of tribal law are possible, deference must be given to the tribe s interpretations of its own laws. Shakopee, I.B.I.A. at -. Both Stock West and Burlington Northern R.R. are civil cases where the federal court declined jurisdiction so the tribal court could first hear the case. In the present criminal proceeding, there is no question about this Court s Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page 0 of 0 In sum, this Court should defer to the Makah Tribal Court s pending ruling on the applicability of the Management Plan to the Defendant s conduct on September, 0. Such deference would further the federal government s policy of promoting tribal self-governance and the development of tribal court systems, while also allowing the Court to benefit from the Tribe s expertise in matters of its own law. II. The Management Plan Was Valid Tribal Law on September, 0. If this Court finds it necessary to rule on Defendant s motion before the Tribal Court issues a decision, the Court should consider and defer to the Tribal Council s interpretation of the Management Plan. It is the Council s view that the Management Plan has continuously been in effect, with the exception of certain time-limited provisions, since it was first enact[ed]... into tribal law by Resolution No. - in January. Exh. at. Resolution - recognized that the Plan s rules and regulations for the conduct of ceremonial and subsistence whaling were consistent with the cooperative agreement with NOAA, the IWC quota, and the traditional practices and customary law of the Makah Tribe. Id. at -. The Tribal Council did not adopt the Plan as a mere guideline or recommendation. Rather, the Plan was enacted as a legally binding obligation of its members, thereby codifying centuries of Makah whaling traditions and custom. Neither Resolution - nor the Plan itself provides that the Plan would expire after 0. This is in contrast to the cooperative agreement, which specifically terminated after December, 0. Exh.. Thus, as a matter of Tribal law, the Plan remains in effect until it jurisdiction. However, the reasoning in these cases supports deferring to the Tribe on the interpretation of its Management Plan a question of Tribal law which is integral to both the federal and tribal prosecutions. MAKAH TRIBE S AMICUS BRIEF - 0 Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 is rescinded or superseded by further Council resolution. The inclusion of the dates to 0 in the title of the Plan does not render, as Defendant argues, the Plan a nullity after 0. Rather, this merely acknowledges that certain elements of the Plan were intended to be consistent with the IWC quota covering that same time period. For example, in Part III, the harvest limit of gray whales over five years, with nor more than whales in any calendar year, was required by the terms of the IWC quota and the bilateral agreement. Exh. at. However, the other provisions of the Plan are not time-limited and remain binding tribal law to this day. The Tribe s intent for the Plan to have ongoing legal effect is evidenced in the provision allowing amendments of the Plan from time to time. Exh. at 0. The sole amendment to the Plan was made in 0, which maintained the Plan as Tribal law. Exh.. The Tribal Council confirmed this interpretation of the Management Plan when it adopted Resolution No. -0 on September, 0. Exh.. Summarizing the and 0 resolutions enacting and amending the Plan, the Council stated its current understanding and intent that the provisions of the Management Plan remain effective as tribal law until formally repealed or amended by further Council resolution. Exh. at. Contrary to Defendant s argument, the resolution is not an ex post facto application of the Plan to the five defendants, nor is it a readopt[ion] of the Plan into Tribal law. Mem. in Supp. -. The Council, as the Tribe s ultimate decisionmaker with respect to the exercise of Treaty whaling rights, was merely setting forth its official interpretation that the Management Plan has been in effect as a matter of Tribal law since it was first enacted in. But for the Anderson decision, the Council certainly would have amended the Plan to establish whaling quotas for the period 0 through 0. However, the Council s failure to set quotas for these years cannot be construed as a decision to eliminate all restrictions on whaling. MAKAH TRIBE S AMICUS BRIEF - Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 The Defendant s assertion that the Plan expired by its terms on December, 0 is contrary to the entire context of the Council s efforts to regulate the exercise of Treaty whaling so as to avoid unnecessary conflicts with domestic and international law. To this end, the Tribe entered into a cooperative agreement with NOAA, obtained IWC approval of an aboriginal subsistence whaling quota, and developed a comprehensive and detailed management plan prior to authorizing any whaling. Although the Tribe disagrees with the Anderson decision, the Council nevertheless elected to obtain a waiver of the MMPA take moratorium before permitting further whaling. As stated in the Tribe s 0 marine mammal regulations, the Council s intent has always been to prohibit the taking of marine mammals except as provided for in Tribal regulations. Exh.. Under Defendant s theory, Tribal law allows any member of the Tribe to hunt a whale at any time, in any place, in any manner, and without the authorization of the Tribal Council. Such a result is at odds with the Tribe s traditions and customary law, the Council s intent in when it first enact[ed] the Plan into tribal law, the Council s 0 marine mammal regulations, the Council s 0 decision to pursue a waiver of the MMPA, and the Council s recent confirmation of its intent and understanding that the Plan remains legally binding. Because the Defendant s argument would lead to the absurd result that the Tribal law allows unlimited whaling despite the Tribal Council s long-established policy of regulating whaling so as to avoid conflicts with federal and international law, it should be rejected. MAKAH TRIBE S AMICUS BRIEF - CONCLUSION For the reasons above, the Tribe asks that this Court defer to a timely determination by the Tribal Court on the issue of whether the Management Plan was in effect on September, Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 0. In the alternative, the Court should defer to the Tribal Council s interpretation of Tribal law. Respectfully submitted, this th day of January, 0. MAKAH TRIBE S AMICUS BRIEF - /s/ John B. Arum John B. Arum, WSBA # Brian C. Gruber, WSBA # 0 Fourth Avenue, Suite 0 () -0/() -0 (fax) Fourth Ave, Suite 0 Tel. 0; Fax 0

Case :0-cr-0-JKA Document - Filed 0//0 Page of 0 MAKAH TRIBE S AMICUS BRIEF - CERTIFICATE OF SERVICE I hereby certify that on the th day of January, 0, I electronically filed the foregoing AMICUS BRIEF OF THE MAKAH TRIBE with the Clerk of the Court using the CMF/ECF system which will send notification of such filing to: Carl H Blackstone Phil I Brennan Jack Warren Fiander Roger A Hunko Jerome Kuh James D Oesterle Paula Tuckfield Olson Linda R Sullivan Carl.Blackstone@usdoj.gov, dru.mercer@usdoj.gov, ecf-crm.usawaw@usdoj.gov pbrennanlaw@cablespeed.com towtnuklaw@msn.com, jdfiander@msn.com hunko@msn.com, mcdonaldo@wavecable.com jerome_kuh@fd.org, amy_strickling@fd.org jim.oesterle@usdoj.gov, anna.chang@usdoj.gov, ECF- CRM.USAWAW@usdoj.gov paulao@burgessfitzer.com linda_sullivan@fd.org, delia_bonaparte@fd.org /s/ John B. Arum John B. Arum, WSBA # Brian C. Gruber, WSBA # 0 Fourth Avenue, Suite 0 () -0/() -0 (fax) Fourth Ave, Suite 0 Tel. 0; Fax 0