Though tribes, in the past, have criticized the state for moving slowly to fix the culverts -- a massive undertaking that's estimated to cost more than $2 billion -- Loomis believes the two sides can achieve success without waiting for the Supreme Court to issue a decision. In his own statement on Friday, Attorney General Bob Ferguson (D) confirmed that he was open to an agreement. But he said that talks, to date, have not produced a "mutually acceptable resolution." “If we cannot reach a resolution, I have a duty on behalf of the taxpayers of Washington state to present our case to the U.S. Supreme Court," Ferguson said. A dismissal would not be unprecedented. Back in 2011, the Supreme Court took a case involving the Oneida Nation off the docket after the tribe reached an agreement affecting its sovereign immunity in New York state. Though Ferguson is more than ready to proceed, he also said prior meetings with the 21 treaty tribes have resulted in "progress" toward an agreement. Funding for fixing the culverts remains a significant sticking point. Ferguson said the state has been forced to "shoulder the entire financial burden" but the 9th Circuit indicated that isn't entirely true. Between 2011 and 2017, for instance, the state benefited from $22 million in federal funding for "fish passage barrier projects," the court wrote in its landmark decision in the case.
The federal government has been supporting the tribes since the start of the dispute and the Trump administration has not changed position. A brief submitted by the Department of Justice last November rejected the notion that inadequate federal funding somehow undermines the treaties. "Only Congress can abrogate or limit rights reserved under an Indian treaty," government attorneys wrote in the brief, which apparently did not sway the Supreme Court enough to reject the state's petition. The state, the tribes and the federal government will be able to submit additional briefs now that the case has been officially accepted. Oral arguments are expected to take place before the end of June. Outsiders are already paying attention. Seven states, as well as a group of landowners and water users, had urged the Supreme Court to hear the case, characterizing the dispute as one of critical importance. The 9th Circuit decision, according to the states, "subjects Washington’s sovereign management of its culvert system to tribal oversight and federal judicial control for potentially decades." Washington v. U.S. is the second case from Washington to land on the Supreme Court's docket. Last month, the justices agreed to hear Upper Skagit Indian Tribe v. Lundgren, whose outcome will determine whether a property dispute can proceed without the involvement of the Upper Skagit Indian Tribe. Upper Skagit Indian Tribe is unusual in that the petition was granted at the request of the tribe, something that doesn't happen very often, according to a study by Indian law professor Matthew Fletcher. The Supreme Court's term, which began last October, has otherwise been relatively uneventful for tribal interests. Prior to the two Washington cases, the only Indian law case on the docket was Patchak v. Zinke, whose outcome will determine whether Congress can protect tribes from certain kinds of litigation. The culverts dispute is an extension of the long-running U.S. v Washington case. In a historic decision in 1974, the late Judge George Hugo Boldt held that tribes in the state were entitled to half of the entire catch under their treaties. 9th Circuit Court of Appeals Decisions:
US v. Washington (May 19, 2017)
US v. Washington (June 27, 2016)
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