Judicial regrets and the case of the Cushman Dam.

• Author: Rodgers, Jr., William H.

1. INTRODUCTION II. TOWESSNUTE II: SKOKOMISH INDIAN TRIBE V. UNITED STATES A. The Treaty as Something Given B. Misstatement of Treaty Purposes C. The Legal Mis-Treatment of Continuing Nuisances D. Being Judicious E. The Strategy of Redaction III. CONCLUSION IV. APPENDIX: THE OPINIONS THAT ARE NO MORE "the announcement of our benevolence" (1)

1. INTRODUCTION

   Those were the words of the Honorable Frederick Bausman in the 1916 Washington Supreme Court opinion in State v. Towessnute. (2) Justice Bausman went on to say that the Indians were "incompetent occupants of the soft." Their property was "disdained." He said they were savage tribes "whom it was generally tempting and always easy to destroy, and whom we have so often permitted to squander vast areas of fertile land before our eyes." (3)

   It followed, then, for the Honorable Frederick Bausman, that a treaty with the Indians was a "dubious document." A treaty was "the announcement of our benevolence." Any fishing right "given" to them would be a short-term gratuity. Nothing "could be plainer," he wrote, than that "the numbers of white fishers, their advancing population, and their encroaching towns and mills would speedily render the reserved fishing spots worthless." (4)

   The opinion in Towessnute caused great pain and spawned deep regrets. It was soon criticized by Washington Supreme Court Justice Kenneth Mackintosh, who condemned the court for its "ingenious reasons and excuses." (5) U.S. Attorney Francis Garrett said of the Towessnute judgment that "no court in this country has ever gone to the length of this opinion." (6) Towessnute was officially overruled and interred by the Washington Supreme Court in a 1957 case involving the Puyallup Indian, Robert Satiacum. (7)

   Regrets over Towessnute linger. In March of 2005, Washington Supreme Court Chief Justice Gerry L. Alexander responded to a request by attorney Jack W. Fiander of Yakima to withdraw the court's opinion in the post-Towessnute 1927 Indian fishing case of State v. Wallahee. (8) Chief Justice Alexander wrote, "Replacing the withdrawn opinion with a new opinion would require the court to reconsider the merits of the case, which for such an old case would be problematic." (9) The Chief Justice added, "I regret that we are unable to accede to your request. We do, though, appreciate your views and those of Jim Wallahee's descendants and hope that the more recent decisions of this court and the United States Supreme Court that you cite in your letter will help to salve any wounds that may survive from the long ago conviction of Mr. Wallahee." (10)

2. TOWESSNUTE II: SKOKOMISH INDIAN TRIBE V. UNITED STATES

   This slow healing of the Towessnute wounds was rudely halted on March 9, 2005, by an en banc decision of the U.S. Court of Appeals for the Ninth Circuit in Skokoinish Indian Tribe v. United States, (11) popularly known as the Cushman Dam Decision. The tribe had sought $5 billion in damages to rectify one of the most environmentally destructive deeds in the history of western Washington. It was occasioned by the 1930 diversion of the entire North Fork of the Skokomish River out of the watershed. For seventy-five years, the tribe has endured destroyed fisheries, on-reservation flooding, backed-up septic tanks, destruction of orchards, and the silting over of fisheries and shellfish beaches. (12) A 1931 photo gives the picture that should be kept in mind:

   Dewatered North Fork of the Skokomish River below Dam No.2 of the City of Tacoma's Cushman Hydroelectric Project. (13)

   In a six to five majority opinion, (14) Judge Alex Kozinski ruled that the tribe and its individual members had no remedy for damages to rectify these longstanding wrongs. The United States could not be sued under either the Federal Tort Claims Act or the Federal Power Act. (15) Further the City of Tacoma and Tacoma Public Utilities could not be sued under the Treaty of Point No Point or the Civil Rights Act; (16) state law theories of trespass, nuisance, or inverse condemnation; (17) nor under the Federal Power Act. (18) This majority opinion is so retrogressive, combative, and wrong that it is sadly reminiscent of the Towessnute ruling. The Cushman Dam Decision's weaknesses are deftly exposed by the dissent of Judge Marsha S. Berzon (joined by three other judges), so the good news is that this judicial error is strongly on the defensive as it emerges from Judge Alex Kozinski's deeply held serf-deceptions.

   On June 3, 2005, in response to the tribe's motion for additional rehearing or rehearing en banc, the Court formally amended its opinion of March 9. (19) It did this by the simple expedient of dropping the seven-paragraph section of the March 9 opinion, entitled "Reserved Water Rights Claim." This change in turn necessitated the excision of the twelve-paragraph rebuttal in Judge Berzon's dissent of March 9. These redacted paragraphs are reproduced as an Appendix to this comment. These opinions are no longer law but they are of immediate historical interest.

   How ironic in this Indian case that there is a departure between what was said first and what was said last. It was at the Walla Walla Treaty Council in 1855 when the Indians first noticed amendments to the record of the proceedings. (20) Things thus said were understood not to be truly said.

   This comment will call attention to Judge Kozinski's 1) characterization of the treaty, 2) his misrepresentation of its purposes, 3) his treatment of continuing nuisances under state law, and 4) the want of judiciousness of his approach to these important matters. It will also address the strategy of redaction that his colleagues on the Ninth Circuit used to restrain the excesses of this opinion. This comment will treat everything said as truly said, but will indicate if the language discussed has been stricken from the amended opinion.

   1. The Treaty as Something Given

      When the Honorable Frederick Bausman gave voice in 1916 to the "announcement of our benevolence" and to the generosity of the treaty rights "given," the offense to the Indians was not in the condescension of the delivery nor in the flippancy of the result. It was in the complete countermand of legal authenticity. In the treaties the tribes were "given" nothing. They retained certain entitlements, and what they retained the United States had not "given." (21)

      This is why Judge Berzon is resoundingly correct when she says that the majority opinion reveals a "fundamental misunderstanding of the very claim it summarily dismisses." (22) "Like the Oneidas," she writes, "the Tribe here is not simply seeking to enforce rights created by the Treaty. Rather, it is claiming to enforce an aboriginal right--the right of taking fish at usual and accustomed grounds and stations--reserved in the Treaty." (23) She goes on to say that there are hard issues hiding in the treaties but that "the majority's simplistic approach misses them all." (24)

      The majority approaches the treaty as if it were trying to discover an implied remedy for damages in the Rivers and Harbors Act. (25) The court actually says that "there are no grounds for inferring that the parties to the Treaty intended to create" a damages remedy nor is there "anything in the language of the Treaty that would support a claim for damages against a non-contracting party." (26) The Natives who know full well to this day what went on in the treaty negotiations will openly laugh at this naivete. It could only have been written by a man from Mars. It is an embarrassment to every conscientious judge who has ever tried to get behind the meaning of these important Northwest historical documents. Frankly, Governor Stevens would have been lucky to get home alive had he told the Nez Perce Chief, Looking Glass: "By the way, if some 'non-contracting' settler dynamites your fisheries, there will be no damages available." In a thousand ways, Governor Stevens assured the Indians that their fisheries were "secure," (27) and no one on earth can believe honestly that Looking Glass, Leschi or any other Indian left the treaty negotiations worrying about the ambiguity in the implied damages remedy.

      There is a difference, of course, between a cause for war between nations and an opportunity for lawsuits in their courts. A damages remedy is not unavailable to the tribes because they never thought of it nor asked for one in the treaty negotiations. The question is whether Congress has made a forum available. This question is answered by the "serf-enforcing" nature of the Stevens treaties. (28) The first enforcement lawsuit was brought against a "non-contracting" party in 1884 and enforcement-by-injunction has been the rule ever since.

      Judge Kozinski embarrasses only himself (and colleagues who joined with him) by explaining Winans as an instance where the treaties "occasionally" are invoked to afford equitable relief against non-contracting parties. (29) This makes sense only if "occasionally" is understood to mean "constantly." The treaties were used to secure injunctions against the Taylors in the 1880s and '90s, the Winans in the 1890s and 1900s, the Seufert Brothers in the 1910s and 1920s, Brookfield Fisheries in the 1930s, and the Kramers in the 1940s, just for starters. (30)

      One would suppose that the implied remedy of the injunction would include the lesser option of money damages. Injunctions can be sold and turned into money damages. (31) Judge Berzon does a good job of explaining that this sensible expectation is confirmed by ample authority that "makes plain that Indian tribes may bring a damages action under federal common law to enforce their rights to use of land." (32)

      Judge Kozinski distinguishes Oneida on the curious ground that the federal common law damages claim for unlawful possession of land rested on "well-established federal common law principles regarding aboriginal possessory rights in land." In the Cushman case, by contrast, the tribe "is seeking to collect damages for...