A treaty fisherman in Washington. Photo: Northwest Indian Fisheries Commission

Treaty tribes score unusual victory in closely-watched Supreme Court case

A closely-watched treaty rights case has resulted in victory for 21 tribes in Washington state but the nation's highest court was so divided that it was unable to reach a decision.

By a vote of 4 to 4, the justices affirmed a landmark ruling in favor of the tribes. But no explanation was provided as to who was for the tribes and who was against.

"The judgment is affirmed by an equally divided court," was all the one-page order issued on Monday morning said.

The unusual outcome was the result of a late development in the dispute. Just a couple of weeks before oral arguments on April 18, Justice Anthony Kennedy announced that he wasn't going to take part.

The move was unexpected because he had not recused himself during consideration of the petition in Washington v. U.S..

The U.S. Supreme Court deadlocked on Washington v. U.S., a treaty rights case, on June 11, 2018, resulting in victory for 21 tribes in Washington state.

But it turns out that Kennedy participated in an earlier phase of the long-running case, which dates to the 1970s, when he served on the 9th Circuit Court of Appeals.

"The ordinary conflict check conducted in Justice Kennedy’s chambers inadvertently failed to find this conflict," a March 23 letter stated.

With Kennedy out of the picture, the case was left to the eight remaining justices. And some were clearly struggling with the main issue -- whether the state of Washington violated treaties signed in 1854 and 1855 by failing to ensure safe passage for salmon that tribes depend on for their economic, cultural and social livelihood.

"I wonder if that means that we ought to send it back and let the courts who haven't had that opportunity yet have that opportunity," Chief Justice John G. Roberts Jr., said during the hour-long hearing in April.

The dispute, which already resulted in one failed appeal to the Supreme Court more than four decades ago, may indeed live on. But the deadlock means that the tribes have won a key battle in the war.

"The Supreme Court split 4-4 on the culvert case this morning, meaning the earlier 9th Circuit ruling in the case stands," the Northwest Indian Fisheries Commission (NWIFC) said in its initial response to the development.

Yet the fact that the case even made it to the Supreme Court raised alarms. Some in Indian Country felt betrayed when Washington's Attorney General Bob Ferguson, a Democrat, filed the appeal last fall.

"Washington burned down the whole damn orchard. Almost all the way," prominent activist Gyasi Ross, who resides in Washington, wrote last week in Crosscut.

When the Supreme Court granted the state's petition in January, Ferguson said he was open to some sort of settlement regarding the culverts. Fixing them is a massive undertaking that is estimated to cost billions of dollars.

Indianz.Com on SoundCloud: U.S. Supreme Court - Washington v. United States

"The state of Washington wants to protect salmon and has voluntarily spent billions of dollars to achieve that goal," Noah Purcell, who is Washington's Solicitor General, told the Supreme Court in April.

"Our objection is the unworkable treaty right the 9th Circuit announced," he added, referring to the lower court victory secured by the tribes.

Of the 1,000-plus culverts that were blocked when the proceeding began in 2011, the vast majority have been cleared, leaving fewer than 400 to be repaired, according to tribes. The state has even received federal funds to carry out the task

"When the United States promised the tribes federal protection for their preexisting right to take fish, that included more than just the hollow promise of access to fisheries that could be blocked off and emptied of their salmon," Allon Kedem of the Department of Justice, which sided with the tribes, said during oral arguments.

A culvert in Washington state. Photo: Northwest Indian Fisheries Commission

The Supreme Court's action on Monday resolves a third Indian law case of the current term, which began in October. Tribal advocates have called the season unusually busy, due to the large number of petitions presented to the justices.

Despite the unprecedented workload, tribal interests have fared surprisingly well. In Patchak v. Zinke, the court held that Congress can protect tribal homelands from litigation, an outcome that benefits Indian Country's legislative agenda.

In Upper Skagit Indian Tribe v. Lundgren, the justices did not deliver a complete victory for the Upper Skagit Indian Tribe in a property dispute in Washington state. But the court sent a strong message about a prior case in order to resolve questions about tribal sovereign immunity.

The remaining Indian law case on the docket is Royal v. Murphy. At issue is whether Congress disestablished the reservation of the Muscogee (Creek) Nation, thus giving jurisdiction to the state of Oklahoma.

The petition was only granted on May 21 so oral arguments will have to wait until the next October term this fall.

U.S. Supreme Court Decision:
Washington v. U.S. (June 11, 2018)

U.S. Supreme Court Documents:
Oral Argument Transcript | Questions Presented | Docket Sheet: No. 17-269

9th Circuit Court of Appeals Decisions:
US v. Washington (May 19, 2017)
US v. Washington (June 27, 2016)

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