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Indian Law Bulletins  |  U.S. Supreme Court  | 1998-1999 Term

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1998 - 1999 U.S. Supreme Court Term

Please alert us to any cases we may have missed from the US Supreme Court.


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Four Indian law cases have been decided by the Supreme Court in the 1998-1999 term.

Amoco Production Co. v. Southern Ute Indian Tribe
526 U.S. 865
Docket No. 98-830

Subjects: Amoco Production Company; Coalbed methane; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Natural gas; Oil and gas rights -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Surface rights; Reserved coal rights -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Reserved natural gas rights -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; United States. Coal Lands Acts of 1909 and 1910; Trust lands -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.

*Issues: In reserving to United States ''coal'' in lands patented under 1909 and 1910 Coal Land Acts, 30 U.S.C. §§ 81, 83-85, while passing surface land and all other minerals (including natural gas) to patentee, did Congress reserve only solid rock fuel commonly known as ''coal,'' but not natural gas in coal formations?

Holding: (from Westlaw) The Supreme Court, Justice Kennedy, held that surface patentees, not tribe holding equitable title to reserved coal in lands patented under Coal Lands Acts of 1909 and 1910, owned CBM gas contained in such coal.
Reversed.

History: Petition for certiorari filed November 18, 1998. Petition for certiorari granted January 29, 1999. Oral Argument heard on April 19, 1999. Decided June 7, 1999.

*Holding below: Southern Ute Indian Tribe v. Amoco Production Co., 151 F.3d 1251, 10th Cir. ''Coal'' as used in 1909 and 1910 Coal Land Acts neither unambiguously includes nor excludes coal bed methane, which is gaseous substance contained in coal, and thus, given principle that all doubts respecting land grants and mineral reservations are construed in favor of government, ''coal'' reserved in such acts to United States, and to Native American tribe as successor in interest to such statutory reservation, includes coal bed methane.

Arizona Dept. Of Revenue v. Blaze Construction Co.
526 U.S. 32
Docket No. 97-1536

Subjects: Contractors -- United States -- On Indian reservations -- Taxation -- Arizona; United States. Bureau of Indian Affairs; Roads -- Design and construction -- On Indian reservations -- Arizona; Preemption of state law -- Arizona; United States. Federal Lands Highway Program; Blaze Construction Co.

*Issues: Is state tax on contractor doing business with United States on Indian reservation preempted when Congress has not expressly provided for such preemption and there is no infringement on tribal sovereignty because no tribal funds are used and no tribe is party to contract?

Holding: (from Westlaw) The Supreme Court, Justice Thomas, held that: (1) federal law did not shield private federal contractor from state taxation of receipts from contract absent constitutional immunity from state taxation or congressional exemption, and (2) performance of contract on Indian reservations did not exempt proceeds from taxation. Reversed and remanded.

History: Petition for certiorari filed March 16, 1998. Petition for certiorari granted May 18, 1998. Oral argument was heard on December 8, 1998. Decided March 2, 1999.

*Holding below: State ex rel. Arizona Dept. of Revenue v. Blaze Const. Co., Inc., 947 P.2d 836, 9th Cir. Arizona's assessment of transaction privilege (contracting) taxes against construction company's gross proceeds from building federally funded roads for U.S. Bureau of Indian Affairs on Indian reservations within Arizona, which provided no regulatory or other services related to improving, maintaining, or using any such reservation roads, interferes with on-reservation road building and improvement activities that are governed by comprehensive federal regulations and is thus impliedly preempted by federal law, notwithstanding state's contention that Indian law preemption analysis does not apply because contracts were let by BIA rather than by tribes and because Congress has neither expressly nor impliedly indicated intent to preempt state taxation of federal contractors on Indian reservations.

El Paso Natural Gas Co. v. Neztsosie
526 U.S. 473
Docket No. 98-6

Subjects: Exhaustion of tribal remedies -- Navajo Nation, Arizona, New Mexico & Utah; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-Indians; El Paso Natural Gas Company; Uranium mines and mining -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Strip mining -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Drinking water -- Contamination -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; United States. Price-Anderson Act of 1957; United States. Atomic Energy Act of 1954; Wrongful death -- Members -- Navajo Nation, Arizona, New Mexico & Utah.

*Issues: (1) When non-Indians have been sued in tribal court solely under tribal-law causes of action that have been preempted by federal law, must those parties exhaust all tribal remedies before federal court may consider preemption issue? (2) When tribal court asserts adjudicatory jurisdiction against non-Indians involving subject over which tribe has no regulatory jurisdiction, must those parties exhaust all tribal remedies before seeking relief in federal court? (3) Did court of appeals improperly reverse, sua sponte, injunction from which enjoined parties had not appealed?

Holding: (from Westlaw) The Supreme Court, Justice Souter, held that: (1) assuming prohibition on modifying judgment in favor of nonappealing party could be subject to exceptions, no exception would be made based on “comity considerations” or interlocutory nature of preliminary injunctions, and (2) District Court was required to determine whether claims by members of Navajo Nation constituted public liability actions arising out of or resulting from nuclear accident so as to be subject to Price-Anderson Act.
Vacated and remanded.

History: Petition for certiorari filed June 26, 1998. Petition for certiorari granted October 13, 1998. Oral Argument heard on March 2, 1999. Decided May 3, 1999.

*Holding below: El Paso Natural Gas Co. v. Neztsosie, 136 F.3d 610, 9th Cir. Price-Anderson Act does not prevent tribal court from determining its original jurisdiction over tort action arising from nuclear incident on reservation, issue that appeals court addresses sua sponte because of important comity considerations involved even though tribal court plaintiffs did not appeal district court's adverse ruling on it; comity requires non-Indian parties to exhaust tribal remedies before tribal court jurisdiction may be addressed by federal district court.

Minnesota v. Mille Lacs Band of Chippewa Indians
526 U.S. 172
Docket No. 97-1337

Subjects: Hunting rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Fishing rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Treaty rights -- Mille Lacs Band of Chippewa Indians -- Abrogation; Equal footing doctrine; Minnesota.

*Issues: (1) Does treaty provision that gives Indian bands right to hunt and fish ''during the pleasure of the President'' create only temporary rights that are extinguished when state is admitted to Union on equal footing with original 13 states? (2) Does treaty ceding to United States ''all right, title and interest of whatsoever nature'' in previously ceded territory constitute express abrogation of hunting and fishing rights reserved in previous treaty under this court's holding in Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe? (3) Did president act within scope of his congressional authority when he revoked Indians' right to hunt and fish under treaty that guaranteed only those rights ''during the pleasure of the President of the United States''?

Holding: (from Westlaw) The Supreme Court, Justice O'Connor, held that:
(1) Executive Order of 1850 removing Chippewa Indians from lands previously ceded did not terminate Chippewa usufructuary rights under 1837 Treaty;
(2) Mille Lacs Band did not relinquish usufructuary rights when it entered into 1855 Treaty; and
(3) Chippewa Indians' usufructuary rights were not extinguished when Minnesota was admitted to the Union, abrogating Ward v. Race Horse.
Affirmed.

History: Petition for certiorari filed February 17, 1998. Petition for certiorari granted June 8, 1998. Oral Argument heard on December 2, 1998. Decided March 24, 1999.

*Holding below: Minnesota et al. v. Mille Lacs Band of Chippewa Indians et al., 124 F.3d 904, 8th Cir. 1850 executive order that (i) explicitly revoked rights conferred on Indian bands by 1837 treaty to hunt and fish ''during the pleasure of the President'' on land ceded by Indians to United States and (ii) required removal of Indians remaining on ceded lands was ineffectual to revoke rights to hunt and fish because order's removal provision, from which provision revoking rights to hunt and fish is not severable, did not comply with congressional requirements and was thus unauthorized; nor were 1837 treaty rights to hunt and fish revoked by 1855 treaty that established reservation within land ceded by 1837 treaty and, without mentioning hunting and fishing rights, conveyed to United States ''all right, title, and interest . . . in and to any other lands,'' because neither Indians nor United States intended to revoke such rights in 1855 treaty; different ruling is not mandated by Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), in which hunting and fishing rights were exclusive, on-reservation rights that were held to be extinguished on that part of reservation that was relinquished by later treaty; equal footing doctrine, which requires that all states admitted to union after original 13 states be admitted with same rights and sovereignty as original states, does not require conclusion that Indians' 1837 treaty rights to hunt and fish were extinguished by congressional silence regarding such rights upon Minnesota's admission in 1858.

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Petition for Certiorari was granted in one Indian law-related case this term. This case was carried over into the 1999 - 2000 term.

Rice v. Cayetano
Docket No. 98-818

Subjects: Hawaii; Office of Hawaiian Affairs -- Contested elections; Heredity; Citizenship; Hawaiians -- Defined; Native Hawaiians -- Defined; Trusts and trustees -- United States; Suffrage -- Hawaii; United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment.

*Issues: Did court of appeals err in holding that 14th and 15th Amendments permit adoption of explicit racial classification that restricts right to vote in statewide elections for state officials?

History: Petition for certiorari filed November 17, 1998. Petition for review granted March 22, 1999.

*Holding below: Rice v. Cayetano, 146 F.3d 1075, 9th Cir. Neither equal protection clause nor 15th Amendment bars restricting participation in elections for trustees of Office of Hawaiian Affairs--who administer public trust funds set aside for betterment of ''native Hawaiians'' and ''Hawaiians,'' i.e., descendants of aboriginal people who inhabited Hawaii in 1778 and thereafter--to only those voters who meet blood quantum requirement for native Hawaiian or Hawaiian, who constitute only group with stake in trust and funds administered by OHA trustees, who have no general governmental powers and perform no general governmental functions.

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Petition for certiorari was denied in twenty-two Indian law-related cases so far this term.

Absentee Shawnee Tribe of Oklahoma v. Citizen Band Potawatomi Indian Tribe of Oklahoma
Docket No. 98-281

Subjects: Trust lands -- Absentee-Shawnee Tribe of Indians of Oklahoma; Land tenure -- Absentee-Shawnee Tribe of Indians of Oklahoma; Land tenure -- Citizen Potawatomi Nation, Oklahoma; Consent (Law) -- United States; United States. Dept. of the Interior -- Powers and duties.

*Issues: Pursuant to discretionary authority delegated to secretary of interior in 25 U.S.C. § 465 and regulations promulgated thereunder, 25 C.F.R. §§ 151.2(f) and 151.8, can secretary of interior place land in trust for Absentee Shawnee Tribe of Oklahoma, which shares common former reservation area with Potawatomi Tribe within state of Oklahoma, without obtaining consent from Citizen Band Potawatomi Tribe when secretary of interior has determined that language and legislative history of cession acts of both tribes, when considered together with Shoshone Tribe v. United States, 299 U.S. 476 (1937), support conclusion that Congress intended to recognize and confirm rights of Absentee Shawnee in Potawatomi reservation?

History: Petition for certiorari filed August 13, 1998. Petition for certiorari denied October 19, 1998.

*Holding below: Absentee Shawnee v Potowatomi Indian, 142 F.3d 1325, 10th Cir. Bureau of Indian Affairs must obtain consent of Citizen Band Potawatomi Indian Tribe of Oklahoma before placing in trust, for benefit of Absentee Shawnee Tribe of Oklahoma, land within boundaries of former reservation that, though occupied since 1867 by both tribes, had been created exclusively for Potawatomi Indians, whose ownership rights therein have never been abrogated either congressionally or by government conduct indicating intent to legitimize presence of Shawnees.

Aitkin County, Minn. v. Mille Lacs Band of Chippewa Indians
Docket No. 97-1356

Subjects: Hunting rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Fishing rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Treaty rights -- Mille Lacs Band of Chippewa Indians -- Abrogation; Equal footing doctrine; Minnesota; Aitkin County (Minn.).

*Issues: (1) Did Eighth Circuit correctly hold--in conflict with decisions of this court--that presidential order may be reviewed and held invalid? (2) Did Eighth Circuit correctly hold that 1855 treaty relinquishment of right, title, and interest did not extinguish hunting and fishing rights in territory? (3) May federal court decline to apply this court's ''moderate living'' doctrine and order that maximum of one-half hunting and fishing be dedicated to Indian band's harvest even though band has become wealthy as consequence of casino gambling?

History: Petition for certiorari filed February 17, 1998. Petition for certiorari denied March 29, 1999.

*Holding below: Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 8th Cir. 1850 executive order that (i) explicitly revoked rights conferred on Indian bands by 1837 treaty to hunt and fish ''during the pleasure of the President'' on land ceded by Indians to United States and (ii) required removal of Indians remaining on ceded lands was ineffectual to revoke rights to hunt and fish because order's removal provision, from which provision revoking rights to hunt and fish is not severable, did not comply with congressional requirements and was thus unauthorized; nor were 1837 treaty rights to hunt and fish revoked by 1855 treaty that established reservation within land ceded by 1837 treaty and, without mentioning hunting and fishing rights, conveyed to United States ''all right, title, and interest . . . in and to any other lands,'' because neither Indians nor United States intended to revoke such rights in 1855 treaty; moderate living doctrine of Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979)--that certain treaty language entitling tribes to presumptive 50 percent share of harvestable fish established maximum that may be reduced if tribal needs may be satisfied by lesser amount, because treaty rights to natural resource secure so much as, but no more than, necessary to provide Indians with ''moderate living''--is inapplicable absent showing that any resource at issue is in ecological danger or that any non-treaty user's right to any resource has been harmed by another party's harvest of that resource; contention that moderate living doctrine establishes right to apportionment of resource whenever holders of treaty right have achieved moderate standard of living through any source or sources of income is without merit.

Alexander v. United States
Docket No. 98-1052

Subjects: Subsistence rights -- Tribes -- Washington (State); Fishing rights -- Tribes -- Washington (State); Shellfish gathering -- Tribes -- Washington (State); Treaty rights -- Off Indian reservations -- Tribes -- Washington (State); Equal footing doctrine; Treaties -- Interpretation and construction.

*Issues: (1) Does treaty ''right to take fish . . . in common with all citizens'' grant to Indian tribes right to enter on and harvest shellfish from thousands of parcels of privately owned tidelands that were conveyed in fee by state of Washington? (2) By posting their property to exclude others, do private owners ''stake'' tidelands within meaning of treaty proviso prohibiting Indian tribes from taking ''shellfish from any beds staked or cultivated by citizens''?

History: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.

*Holding below: United States v. Washington, 157 F.3d 630, 9th Cir. Treaties that reserved to Indian tribes ''right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory . . . Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens,'' confer on tribes right to harvest shellfish of every species found anywhere within tribes' usual and accustomed fishing areas, except as expressly limited by shellfish proviso; tribal fishing rights, including right to take shellfish, in their ''usual and accustomed grounds'' are not diminished by private ownership of those lands; ''staked'' and ''cultivated,'' as used in treaties, are properly construed as defined and used at time of adoption of treaties and prior thereto, and thus were intended to exclude Indians only from artificial or planted shellfish beds, and not from those surrounded by stakes or otherwise claimed as private property.

Bering Strait School District v. United States
Docket No. 98-172

Subjects: United States. Indian Health Care Improvement Act; Bering Strait School District; Alaska Native villages -- Services for -- United States; School districts -- Defined -- United States.

*Issues: When federal statutory right of recovery excludes recovery against ''any State,'' should that exclusion apply to instrumentality created and funded by Alaska legislature for sole purpose of providing constitutionally mandated state educational services?

History: Petition for certiorari filed July 24, 1998. Petition for certiorari denied November 2, 1998.

*Holding below: U.S. ex rel. Norton Sound Health Corp. v. Bering Strait School Dist., 138 F.3d 1281, 9th Cir. Local school district created under state law is not ''state'' within meaning of Indian Health Care Improvement Act, and thus is not exempt from act's requirement that it reimburse United States for health services provided without charge to district's Alaska Native employees.

Clark v. United States
Docket No. 98-876

Subjects: Leadership disputes -- White Earth Band of Chippewa Indians; Contested elections -- White Earth Band of Chippewa Indians; Criminal jurisdiction -- United States; United States. Major Crimes Act; United States. Indian Civil Rights Act.

*Issues: (1) May federal judges extend criminal jurisdiction under Section 241 to tribal elections, absent any express congressional authority for federal prosecution of tribal election fraud, and contrary to both legislative history of Indian Civil Rights Act and this court's commitment to preserving inherent tribal sovereignty by recognizing exclusive right of tribes to decide cases involving purely tribal matters or issues of tribal self-government? (2) When does federal criminal jurisdiction exist to prosecute Indian for committing crime against another Indian in Indian country?

History: Petition for certiorari filed November 25, 1998. Petition for certiorari denied April 5, 1999.

*Holding below: United States v. Wadena, 152 F.3d 831, 8th Cir. Federal government has jurisdiction to prosecute violations of general criminal laws prohibiting mail fraud, money laundering, bribery, and conspiracy committed by Indians against Indians in Indian country; federal government has jurisdiction under 18 U.S.C. § 241, which proscribes conspiracy to oppress another in free exercise of federally guaranteed right, to prosecute conspiracy by defendants to oppress free exercise of election rights, which are guaranteed by Indian Civil Rights Act, 25 U.S.C. § 1302.

Coeur D'Alene Tribe v. Missouri ex rel. Nixon
Docket No. 98-1848

Subjects: Jurisdiction -- United States; United States. Indian Gaming Regulatory Act; Preemption of state law -- Missouri; Sovereign immunity -- Coeur D'Alene Reservation, Idaho; UniStar Entertainment, Inc.; Gambling -- Law and legislation -- Missouri; Internet gambling -- Law and legislation -- Missouri; Indian gaming -- Coeur D'Alene Reservation, Idaho.

*Issues: (1) Can plaintiff use Fed.R.Civ.P. 41(a) to bypass requirements of 28 U.S.C. § 1292(b) and Fed.R.Civ.P. 54(b) and manufacture interlocutory appeal over nonfinal order that dismisses fewer than all of defendants, by voluntarily dismissing without prejudice remaining defendants and refiling its claims against those voluntarily dismissed defendants in new lawsuit? (2) When defendant removes to federal court state court claim that raises substantial federal question, does federal jurisdiction attach to entire claim or can district court split claim for bifurcated adjudication between federal and state court?

History: Petition for certiorari denied June 24, 1999.

*Holding below: State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 8th Cir. Plaintiff's voluntary dismissal without prejudice of unresolved claim against remaining defendant under Fed.R.Civ.P. 41(a)(1)(i) rendered previous order finally dismissing other defendants immediately appealable; Indian Gaming Regulatory Act preempts state law challenge to Indian tribe's Internet gaming activities only if district court determines that tribe's activities are being conducted ''on Indian lands.''

Cowboy Auto Sales, Inc. v. Halwood
Docket No. 98-858

Subjects: Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-Indians; Full faith and credit.

*Issues: (1) Did New Mexico court of appeals wrongly conclude that Navajo Nation Chinle District Court in Arizona possesses jurisdiction to impose punitive damages on nonmember, non-Indian, New Mexico citizen? (2) Does judicial review encompass power claimed by New Mexico court of appeals to interpret 28 U.S.C. § 1738 and art. IV, § 1 of Constitution to alter its grant of legislative jurisdiction to hold that Navajo Nation Indian reservation is separate territory of United States that requires extension of full faith and credit to Navajo tribal court judgment from Arizona?

History: Petition for certiorari filed November 23, 1998. Petition for certiorari denied February 22, 1999.

*Holding below: Comity and law of case doctrines bar appellate review of trial court's denial of motion to dismiss action to enforce tribal court judgment and its decision to enforce judgment in its entirety.

Evehema v. Indian Health Services
Docket No. 98-6365

Subjects: Elders -- Hopi Tribe of Arizona; Elders -- Village of Hotevilla, Third Mesa, Hopi Reservation; Sewage disposal plants -- Design and construction -- Hopi Tribe of Arizona; Sewage lagoons -- Design and construction -- Hopi Tribe of Arizona; Sovereign immunity -- Hopi Tribe of Arizona; United States. National Environmental Policy Act of 1969; Environmental impact statements.

*Issues: Not available

History: Petition for certiorari denied January 19, 1999.

*Holding below: Village of Hotvela Traditional Elders v. Indian Health Services, 141 F.3d 1182, 9th Cir.

Keweenaw Bay Indian Community v. United States
Docket No. 98-50

Subjects: Intergovernmental agreements -- Keweenaw Bay Indian Community, Michigan; Law -- Keweenaw Bay Indian Community, Michigan; Intergovernmental agreements -- Michigan; Law -- Michigan; Gambling on Indian reservations -- Michigan; Indian gaming -- Keweenaw Bay Indian Community, Michigan; United States. Indian Gaming Regulatory Act; Gambling -- On trust lands -- Michigan.

*Issues: Does compact between state and Indian tribe that expressly defines locations where Indian gaming may be conducted ''regulate'' that gaming for purposes of 2719 of IGRA, which otherwise would require concurrence by state's governor in ''best interest'' determination by secretary of interior?

History: Petition for certiorari filed June 30, 1998. Petition for certiorari denied October 13, 1998.

*Holding below: Keweenaw Bay Indian v. USA, 136 F.3d 469, 6th Cir. Indian gaming that has been authorized by valid tribal-state compact pursuant to 2710 of Indian Gaming Regulatory Act is also subject to 2719 of IGRA, which generally prohibits ''gaming regulated by'' IGRA on off-reservation lands acquired in trust by United States for benefit of tribe after IGRA's enactment unless secretary of interior determines that gaming on such land would be in best interest of tribe and not detrimental to surrounding community and state's governor concurs in secretary's determination.

Kiowa Tribe of Oklahoma v. Hoover
Docket No. 97-2018

Subjects: Promissory notes; Business enterprises -- Off Indian reservations -- Oklahoma; Sovereign immunity -- Kiowa Indian Tribe of Oklahoma; Jurisdiction -- Oklahoma; Debtor and creditor -- Oklahoma.

*Issues: Is federally recognized Indian tribe that has not waived its sovereign immunity to suit subject to jurisdiction of state court because commerce from which this suit arises took place, in part, outside tribal territory?

History: Petition for certiorari filed June 15, 1998. Judgment vacated October 5, 1998.

*Holding below: Hoover v. Kiowa Tribe of Okl., 957 P.2d 81, 10th Cir. Federally recognized Indian tribe's sovereign immunity does not bar suit against it in state court stemming from its economic activity outside Indian country with non-tribal member.

Leland, Mich. v. Grand Traverse Band of Ottawa and Chippewa Indians
Docket No. 98-485

Subjects: Michigan. Dept. of Natural Resources; Fishing rights -- Off Indian reservations -- Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Treaty rights -- Off Indian reservations -- Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Marinas -- Leland (Mich.); Marinas -- Northport (Mich.); Access rights -- Off Indian reservations -- Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Treaties -- Interpretation and construction.

*Issues: (1) Does Sixth Circuit's decision conflict with decisions of this court because court of appeals rewrote treaty provisions to expand implied right to fish to include right to moor commercial fishing vessels in marinas constructed by third parties more than 130 years after treaty was signed? (2) Did court of appeals correctly expand implied off-reservation treaty rights to grant tribal members right to occupy public and private lands not owned by tribe or its members? (3) Should this court resolve conflict between Sixth and Ninth Circuits and address important federal question of whether attorneys' fees may be awarded pursuant to 42 U.S.C. § 1988 in cases in which federal court is interpreting treaties to determine scope of reserved rights?

History: Petition for certiorari filed September 9, 1998. Petition for certiorari denied December 7, 1998.

*Holding below: Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Mich. Dep't of Natural Resources, 141 F.3d 635, 6th Cir. Rights retained by Grand Traverse Band of Ottawa and Chippewa Indians in 1836 and 1855 treaties with United States included access to its traditional fishing grounds, including those located within areas of municipally owned marinas, in form of easement of access over land surrounding such traditional fishing grounds, even were land to have been privately owned; accordingly, because such marinas fall squarely within this easement and treaties do not limit means by which fish must be taken or restrict treaty fishers to using technology that existed at time treaties were signed, rights to fish include not only right of ingress and egress but also right of transient anchoring of commercial vessels at municipalities' marinas.District court did not abuse its discretion when it awarded attorneys' fees under 42 U.S.C. § 1988 to tribal band whose 42 U.S.C. § 1983 claims--that its equal protection and due process rights were violated by enforcement of commercial use prohibitions for marinas contained in agreements with state natural resources department--were either rejected or unaddressed; although court granted summary judgment to municipalities on band's equal protection claim and declined to rule on due process claim because such claim needed further briefing (and was ultimately dismissed by tribe voluntarily because summary judgment in its favor on treaty-based claims provided sufficient remedy), unaddressed due process claim was substantial to extent it claimed deprivation of procedural due process by municipal defendants, and claim was reasonably related to, and based on same common core of operative facts as, band's treaty-based claims, namely that band's fishers were being unreasonably deprived of their right to commercially harvest fish from traditional fishing areas by municipalities' wrongful refusal to allow band to moor its commercial fishing vessels at marinas.

Loveness v. Ariz. Department of Revenue
Docket No. 98-1034

Subjects: Taxation -- Arizona -- Contractors -- On Indian reservations; Income tax -- Arizona -- Non-Indians; Preemption of state law -- Arizona; Arizona. Dept. of Revenue.

*Issues: (1) Did Cotton Petroleum Corp. v. New Mexico overrule White Mountain Apache Tribe v. Bracker, which found federal Indian timber laws to preempt state gross income and excise taxes on non-Indian loggers for tribal timber enterprises? (2) Does off-reservation domicile of non-Indian logger, which did not prevent federal preemption of state gross income taxes in Bracker, defeat preemption of net income taxes on same logger under same federal regulatory scheme?

History: Petition for certiorari filed December 22, 1998. Petition for certiorari denied March 1, 1999.

*Holding below: Loveness v. State ex rel. Arizona Dept. of Revenue, 963 P.2d 303, 9th Cir. State tax court's summary judgment in favor of Arizona Department of Revenue on taxpayers' refund claim for portion of their state income taxes attributable to services they performed on Indian reservation outside Arizona is affirmed, notwithstanding taxpayers' argument that assessment of such tax was invalid under supremacy clause because it was preempted by comprehensive federal regulation of on-reservation logging, as in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Bracker is distinguishable because motor carrier registration tax and use fuel tax challenged in that case were activity taxes that are cost of doing business and are unrelated to income or profit relating to activity in question, whereas resident income tax at issue here is undifferentiated tax that is directly related to ability of taxpayer to pay it and unrelated to particular function or source of gross income; following modification of Bracker by Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), typical indirect effects on federal regulatory scheme or tribal interests, as here, are insufficient to require preemption of state tax.

Maricopa-Stanfield Irrigation and Drainage District v. United States
Docket No. 98-1115

Subjects: Resource allocation -- Colorado River (Colo.-Mexico); Water rights -- Tribes -- Colorado River (Colo.-Mexico); Boulder Canyon Project (U.S.); United States. Dept. of the Interior -- Powers and duties.

*Issues: (1) When secretary of interior, under Section 5 of Boulder Canyon Project Act, allocates Colorado River water from CAP to individual Indian tribes, municipal and industrial users, and non-Indian agricultural users, in that order of priority, and contracts with non-Indian agricultural users for specified percentages of total supply remaining after senior allocations have been satisfied: (a) may secretary subsequently increase allocation to Indian user, thereby reducing water available under junior users' contracts, without liability to those users, and (b) may secretary do so without liability if reallocation is directed by Congress at secretary's request? (2) Does contract clause providing that United States ''assumes no responsibility with respect to the quantity of water available for delivery'' excuse government from liability when government determines to reallocate water to another user? (3) Does water allocated ''to the Central Arizona Project'' in statutory settlement of non-Indian CAP users' claims to other water used to settle Indian claims against United States inure to benefit of non-Indian users under secretary's CAP allocations and implementing contracts? (4) Is Ninth Circuit's application of ''unmistakability doctrine'' to absolve government from liability when Congress reallocates previously contracted-for water to another user consistent with United States v. Winstar Corp., 518 U.S. 839 (1996)?

History: Petition for certiorari filed January 12, 1999. Petition for certiorari denied May 24, 1999.

*Holding below: Maricopa-Stanfield Irr. and Drainage Dist. v. U.S., 158 F.3d 428, 9th Cir. Ak-Chin Settlement Act, which directed secretary of interior to deliver permanent supply of Colorado River water to Ak-Chin Indian Community in quantity that exceeded terms of settlement and directed secretary to allocate excess Ak-Chin water to Central Arizona Project on interim basis, did not otherwise limit secretary's discretion in allocating excess Ak-Chin water, did not surrender congressional prerogative to order reallocation, and did not give non-Indian agricultural users, to which secretary had apportioned right to purchase CAP water after Indian tribes and municipal and industrial users had purchased their apportionments, protected property interest in excess Ak-Chin water that could have been impaired when Congress subsequently reallocated such excess water to another tribe in San Carlos Apache Tribe Water Rights Settlement Act.

Menominee Indian Tribe of Wisconsin v. Thompson
Docket No. 98-1306

Subjects: Treaty rights -- Menominee Indian Tribe of Wisconsin -- Extinguishment; Hunting rights -- Off Indian reservations -- Menominee Indian Tribe of Wisconsin; Fishing rights -- Off Indian reservations -- Menominee Indian Tribe of Wisconsin; Treaties -- Interpretation and construction.

*Issues: (1) In suit involving interpretation of Indian treaties, did dismissal of pleadings based on treaty language alone deprive tribe of right to develop factual record of historical circumstances and understanding of parties under rules of treaty construction developed by court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, modified sub nom. Washington v. United States, 444 U.S. 816 (1979), Jones v. Meehan, 175 U.S. 1 (1899), and numerous other cases? (2) Are lower courts' holdings that later treaty extinguished Menominees' rights contrary to court's construction of same treaty in Wisconsin v. Lane, 245 U.S. 427 (1918)?

History: Petition for certiorari filed February 16, 1999 Petition for certiorari denied April 19, 1999.

*Holding below: Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 7th Cir. Menominee Indian Tribe treaties at issue were referred to in complaint, district court took judicial notice of them, dismissal of case was based on their clear and unambiguous language, and thus tribe's claims of hunting and fishing rights on off-reservation lands were properly dismissed on motion for judgment on pleadings; tribe's contention that court considered materials external to pleadings in deciding motion to dismiss, thus converting motion to dismiss into motion for summary judgment that was decided, in violation of Fed.R. Civ.P. 12(c), without allowing tribe opportunity to present additional evidence supporting its allegations, is meritless; tribe's right to hunt and fish on certain Wisconsin land granted in 1831 treaty was extinguished by 1848 treaty in which tribe ceded all of its rights to all of its Wisconsin land and agreed to move to Minnesota; alternatively, usufructuary rights on non-reservation land granted in 1831 treaty were extinguished when expiration conditions specified in that treaty were fulfilled by 1834, viz., land was surveyed and offered for sale.

Native Village of Eyak v. Daley
Docket No. 98-1437

Subjects: Alaska. Outercontinental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Aboriginal rights -- Alaska Native villages; Hunting rights -- Alaska Native villages; Fishing rights -- Alaska Native villages; Native Village of Eyak (Cordova); Native Village of Port Graham; Native Village of Tatitlek; Native Village of Nanwalek (aka English Bay); Native Village of Chanega (aka Chenega); United States. Dept. of Commerce.

*Issues: Does ''federal paramountcy doctrine'' bar Alaska Native Tribes from holding aboriginal title to their hunting and fishing grounds on OCS even though Congress, which has sole power to extinguish aboriginal title, has expressly preserved such rights in every major piece of legislation applicable to OCS?

History: Petition for certiorari filed March 8, 1999. Petition for certiorari denied June 14, 1999.

*Holding below: Native Village of Eyak v. Trawler Diane Marie Inc., 154 F.3d 1090, 9th Cir. Alaskan Native villages' claim of unextinguished aboriginal title, including exclusive hunting and fishing rights, to portion of Outer Continental Shelf is barred by federal paramountcy doctrine, under which United States has paramount rights in and power over lands, minerals, and other things of value underlying waters adjacent to coastal states.

Puget Sound Shellfish Growers v. United States
Docket No. 98-1028

Subjects: Treaties -- Tribes -- United States; Submerged lands; Shellfish -- Harvest -- Puget Sound Watershed (Wash.); Fishing rights -- Tribes -- Puget Sound Watershed (Wash.); Gathering rights -- Tribes -- Puget Sound Watershed (Wash.); Subsistence rights -- Tribes -- Puget Sound Watershed (Wash.); Treaties -- Interpretation and construction. Equal footing doctrine.

*Issues: (1) Did Ninth Circuit err in holding, in conflict with decisions of other circuits and this court, that district court's ruling on intended meaning of treaty language is question of fact reviewed for clear error? (2) Did Ninth Circuit err in holding that equal footing doctrine had no application to tribes' claim that they received easements in millions of acres of land under Puget Sound's navigable waters, when other circuits and this court have held that equal footing doctrine obligates court to apply strong presumption that United States did not make pre-statehood grant of rights in such lands in derogation of future state's sovereignty? (3) Should this court decide open and important question and apply equitable doctrine of laches, as suggested by four justices in County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985), in case in which tribes delayed 135 years before claiming treaty right to enter and take shellfish from privately owned shellfish farms?

History: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.

*Holding below: United States v. Washington, 157 F.3d 630, 9th Cir. In reviewing district court's interpretation of language of Indian treaty, appeals court reviews for clear error all findings of historical fact, reviews de novo whether district court reached proper conclusion as to meaning of treaty given those findings, and reviews for abuse of discretion district court's equitable orders; treaties that reserved to Indian tribes ''right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory . . . Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens,'' confer on tribes right to harvest shellfish of every species found anywhere within tribes' usual and accustomed fishing areas, except as expressly limited by shellfish proviso; equal footing doctrine, under which every new state is entitled to be admitted to union free of any encumbrance on its land, and corollary created by Shively v. Bowlby, 152 U.S. 1 (1894), that any pre-statehood grant of property does not include tidelands unless grant clearly indicates that tidelands were included, do not apply to tribal rights to harvest shellfish in tidelands that predated treaties and that were merely reserved to tribes by treaties; tribal fishing rights, including right to take shellfish, in their ''usual and accustomed grounds'' are not diminished by private ownership of those lands; although equities weigh heavily in favor of private parties' contention that tribal shellfishing rights claims unasserted for 135 years are barred by laches, laches are not available to defeat Indian treaty rights.

Santee Sioux Tribe of Nebraska v. United States
Docket No. 98-1839

Subjects: United States. Indian Gaming Regulatory Act; Indian gaming -- Class III -- Santee Sioux Nation, Nebraska; Gambling -- Law and legislation -- Nebraska; Gambling -- Law and legislation -- United States; Intergovernmental agreements -- Nebraska; Intergovernmental agreements -- Santee Sioux Nation, Nebraska.

*Issues: (1) Do scope of IGRA gaming provisions incorporate entire corpus of state law and regulations for purposes of tribal-state compact negotiations? (2) Are Class III gaming provisions of IGRA valid in light of holding in Seminole Tribe of Florida v. Florida, that compact enforcement provision of IGRA is unconstitutional?

History: Petition for certiorari filed May 14, 1998. Petition for certiorari denied October 5, 1998.

*Holding below: U.S. v. Santee Sioux Tribe of Nebraska, 135 F.3d 558, 8th Cir. Attorney general has authority under Indian Gaming Regulatory Act to bring action to enforce civil closure orders issued by National Indian Gaming Commission against casinos on reservation property, and federal district courts have authority to enforce such orders by injunction; language of IGRA that makes ''all State laws'' pertaining to gambling applicable in Indian country encompasses state's civil and criminal statutory and case law, and necessarily includes state civil case law authorizing injunctive relief to effectuate closure of gambling establishments determined under state law to be public nuisances; given conclusion that, under IGRA, state is not required to negotiate for gambling that is illegal under state law, court need not address tribal contention that holding in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), that Congress was not empowered to authorize lawsuits by tribes against states that fail to negotiate in good faith for tribal-state compact, renders all provisions of IGRA relating to compacting unconstitutional.

Stoner v. United States
Docket No. 98-68

Subjects: Trials (Embezzlement) ; Limitation of actions; Evidence (Law) -- United States; Ponca Tribe of Indians of Oklahoma -- Members; Ponca Tribe of Indians of Oklahoma -- Officials and employees.

*Issues: For statute of limitations purposes, must indictment charging conspiracy under §371 allege at least one specific overt act occurring within limitations period established by §3282?

History: Petition for certiorari filed July 6, 1998. Petition for certiorari denied November 2, 1998.

*Holding below: U.S. v. Stoner, 139 F.3d 1343, 10th Cir. District court's ruling, announced in connection with conviction of defendant on charge of conspiracy related to embezzlement of funds from Indian tribe, that indictment charging conspiracy under 18 U.S.C. §371 need not allege specific overt act occurring within limitations period established by 18 U.S.C. §3282 is affirmed by evenly divided court.

Thompson v. Mille Lacs Band of Chippewa Indians
Docket No. 98-1357

Subjects: Hunting rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Fishing rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Treaty rights -- Mille Lacs Band of Chippewa Indians -- Abrogation; Equal footing doctrine; Minnesota; Treaties -- Interpretation and construction.

*Issues: (1) Was ''privilege of hunting, fishing, and gathering the wild rice upon the lands, the rivers and the lakes included in the ceded territory . . . during the pleasure of the President'' contained in 1837 treaty with Chippewa Indians revoked by executive actions, including 1850 presidential order that states that ''the privileges granted temporarily to the Chippewa Indians, by the Fifth Article of the Treaty . . . of July 1837 . . . are hereby revoked''? (2) Was privilege relinquished by 1855 treaty, when Chippewa agreed to ''relinquish and convey to United States any and all right, title, or interest . . . in, and to any other lands in the territory of Minnesota or elsewhere''? (3) Were Chippewa subject to state regulation for all off-reservation hunting and fishing activities by virtue of Nelson Act, 25 Stat. 642 (1889), and General Allotment Act, 24 Stat. 388 (1887)? (4) Is lower courts' characterization of privilege as immunity from state regulation rather than revocable license or other interest ''in or to land'' contrary to Oregon Department of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985)? (5) Does lower courts' determination that privilege operates as immunity from state regulation unconstitutionally usurp state police powers in conflict with principles of federalism embodied in Tenth Amendment and equal footing doctrine? (6) Is present litigation against state barred by Indian Claims Commission Act, which provided for exclusive forum and statute of limitations, and under which monetary award was granted to Chippewa for claims under 1837 treaty?

History: Petition for certiorari filed February 17, 1998. Petition for certiorari denied April 5, 1999.

*Holding below: Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 8th Cir. 1850 executive order that (i) explicitly revoked rights conferred on Indian bands by 1837 treaty to hunt and fish ''during the pleasure of the President'' on land ceded by Indians to United States and (ii) required removal of Indians remaining on ceded lands was ineffectual to revoke rights to hunt and fish because order's removal provision, from which provision revoking rights to hunt and fish is not severable, did not comply with congressional requirements and was thus unauthorized; nor were 1837 treaty rights to hunt and fish revoked by 1855 treaty that established reservation within land ceded by 1837 treaty and, without mentioning hunting and fishing rights, conveyed to United States ''all right, title, and interest . . . in and to any other lands,'' because neither Indians nor United States intended to revoke such rights in 1855 treaty; prior litigation before Indian Claims Commission that awarded Indians over $9 million to satisfy their claim that amount originally paid by United States for land ceded in 1837 treaty was grossly inadequate did not collaterally estop this declaratory judgment action by Indians to protect hunting and fishing rights, which were neither litigated nor necessary to outcome of ICC litigation; contention that value of hunting and fishing rights, which were never mentioned in ICC litigation, was subsumed in ICC award, which was based on highest and best use of land, is meritless; equal footing doctrine, which requires that all states admitted to union after original 13 states be admitted with same rights and sovereignty as original states, does not require conclusion that Indians' 1837 treaty rights to hunt and fish were extinguished by congressional silence regarding such rights upon Minnesota's admission in 1858; claim that Nelson Act established state regulation over Indian hunting and fishing rights is without merit.

26 Tideland and Upland Private Property Owners v. United States
Docket No. 98-1039

Subject: Subsistence rights -- Tribes -- Washington (State); Fishing rights -- Tribes -- Washington (State); Shellfish gathering -- Tribes -- Washington (State); Treaty rights -- Off Indian reservations -- Tribes -- Washington (State); Equal footing doctrine; Treaties -- Interpretation and construction.

*Issues: (1) Does treaty ''right of taking fish . . . in common with all citizens'' interpreted in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n allow Indians to enter privately owned tidelands and take 50 percent of shellfish that are owners' property? (2) May circuit court decline to apply this court's ''central principle'' that treaties secure ''no more than is necessary to provide the Indians with a livelihood--that is to say, a moderate living'' and allow half of shellfish from private lands to be taken by Indian tribes even though each tribe has exceeded that level as consequence of casino gambling, and other income? (3) Should treaty harvest be taken from publicly owned tidelands, which make up nearly half of case area tidelands, and not from private lands?

History: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.

*Holding below: United States v. Washington, 157 F.3d 630, 9th Cir. Treaties that reserved to Indian tribes ''right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory . . . Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens,'' confer on tribes right to harvest shellfish of every species found anywhere within tribes' usual and accustomed fishing areas, except as expressly limited by shellfish proviso; tribal fishing rights, including right to take shellfish, in their ''usual and accustomed grounds'' are not diminished by private ownership of those lands; although district court properly invoked moderate living analysis of Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), under which Indian treaty rights to natural resources should secure so much as, but no more than, necessary to provide Indians with livelihood, only those commercial shellfish growers' beds that exist solely by virtue of natural propagation are subject to full 50 percent harvest allocation awarded to tribes by district court, while other natural beds whose production has been enhanced by growers are subject to allocation analysis that limits tribal harvest to 50 percent of pre-enhanced sustainable shellfish production.

Von Murdock v. United States
Docket No. 97-1575

Subjects: United States. Ute Partition and Termination Act; Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah -- Mixed descent; Hunting rights -- Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Fishing rights -- Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Equality before the law.

*Issues: In contravention of this court's precedent and in conflict with another circuit court of appeals, did Tenth Circuit err in holding that ''Indian termination legislation,'' now largely repealed, may nevertheless be read to dismember Indian tribe and deprive tribal descendants of ancestral treaty rights in violation of their rights of association and equal protection?

History: Petition for certiorari filed March 23, 1998. Petition for certiorari denied October 5, 1998.

*Holding below: U.S. v. Von Murdock, 132 F.3d 534, 10th Cir. Ute Termination Act specifically ended tribal membership of mixed-bloods once they received their share of tribal assets, and also recognized tribe's right thereafter to determine new members; act's distinction between full-bloods and mixed-bloods is not improper racial classification and does not violate due process or equal protection under Fifth Amendment; nor does act violate First Amendment by preventing defendant, child of mixed-blood Utes accused of unlawfully hunting on tribal land, from expressing his right to identify with tribe and to vote in tribal elections; accordingly, defendant, whose parents, mixed-blood Utes, were not members of tribe when he was born in 1968 and who has not subsequently met tribe's requirements for membership, did not inherit tribal right of user in Ute tribe's hunting and fishing rights; nor is defendant's contention that he enjoys such rights by virtue of membership in Uintah Band, which joined other bands to form Ute tribe, persuasive, inasmuch as Uintah Band ceased to exist separately outside Ute Tribe in 1937, after which jurisdiction over what was formerly Uintah Band's territory was to be exercised by Ute Tribe and rights formerly vested in Uintah Band were to be defined by Ute constitution and exercised by Ute Tribe; even if Uintah Band continues to maintain its own identity, it does so, under Ute constitution, only within context of Ute tribe; district court's denial of defendant's motion to dismiss charge against him alleging violation of 18 USC 1165, which bans hunting on land belonging to Indian tribe without lawful authority or permission, is therefore affirmed.

Washington v. United States
Docket No. 98-1026

Subjects: Subsistence rights -- Tribes -- Washington (State); Fishing rights -- Tribes -- Washington (State); Shellfish gathering -- Tribes -- Washington (State); Treaty rights -- Off Indian reservations -- Tribes -- Washington (State); Equal footing doctrine; Treaties -- Interpretation and construction.

*Issues: (1) Is there treaty right to take half of off-reservation natural resource, such as deep water shellfish, when Indians did not take that resource at treaty time and when there was no historic dependence on that resource that would support equitable allocation? (2) Consistent with treaty prohibition against taking shellfish from any beds staked or cultivated and state's equal footing title and powers, do tribes have any right to take shellfish from private tidelands or cultivated tidelands?

History: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.

*Holding below: United States v. Washington, 157 F.3d 630, 9th Cir. Treaties that reserved to Indian tribes ''right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory . . . Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens,'' confer on tribes right to harvest shellfish of every species found anywhere within tribes' usual and accustomed fishing areas, except as expressly limited by shellfish proviso; equal footing doctrine, under which every new state is entitled to be admitted to union free of any encumbrance on its land, and corollary created by Shively v. Bowlby, 152 U.S. 1 (1894), that any pre-statehood grant of property does not include tidelands unless grant clearly indicates that tidelands were included, do not apply to tribal rights to harvest shellfish in tidelands that predated treaties and that were merely reserved to tribes by treaties; tribal fishing rights, including right to take shellfish, in their ''usual and accustomed grounds'' are not diminished by private ownership of those lands; ''staked'' and ''cultivated,'' as used in treaties, are properly construed as defined and used at time of adoption of treaties and prior thereto, and thus were intended to exclude Indians only from artificial or planted shellfish beds, and not from those surrounded by stakes or otherwise claimed as private property.

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