1998-99 Term
Supreme Court Cases Related to Indian Law
Four Indian law-related cases were granted. Also, one case was vacated and remanded.
Petition for certiorari was denied in 22 Indian law-related cases.
Cert Granted
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.
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.
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.
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.
Michigan v. U.S.
524 U.S. 923 (Mem)
Docket No. 97-14
Subjects: United States. General Allotment
Act (1887); Real property tax -- Michigan; Real property -- Saginaw
Chippewa Indian Tribe of Michigan; Indian land transfers -- Saginaw
Chippewa Indian Tribe of Michigan; Ad valorem tax -- Michigan.
*Issues: May state continue to impose ad valorem
property taxes upon parcel even though it was originally allotted
under provisions of treaty rather than under General Allotment Act?
History: Petition for certiorari filed June 30, 1997. Vacated and remanded on June 15, 1998.
*Holding below: U.S.
on Behalf of Saginaw Chippewa Indian Tribe v. State of Mich.,
106
F.3d 130, 6th Cir. Treaties under which United States conveyed
to individual reservation Indians land that was alienable without
any restrictions do not demonstrate, without more, ''unmistakably
clear'' congressional intent to permit states to tax such land,
and thus such land is not subject to ad valorem property taxes;
although provisions of 1887 General Allotment Act make clear that
land conveyed in fee simple under act is subject to ad valorem taxation,
such provisions do not govern land grants that, as in this case,
were not made pursuant to act or were made before it was enacted.
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Cert Denied
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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