Supreme Court hears arguments on tribal fishing rights

Supreme Court hears arguments on tribal fishing rights

The US Supreme Court heard oral arguments Wednesday morning in two cases: the first concerns tribal fishing rights, and the second asks whether certain costs are compensable losses under the Mandatory Victim Restitution Act.

The first case, Washington v. US [docket], concerns northwest Indian tribes’ rights to fishing as guaranteed in several treaties. The treaties promise the northwest Indian tribes “the right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens.” The US Court of Appeals for the Ninth Circuit held “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes,” even though the Supreme Court had previously held that the guarantee to the tribes was that they would receive “a fair share of the available fish.” Thus, one question [SCOTUSblog report] before the court is whether the treaties guarantee the right to a share of all available fish that travel through the Indian tribal territory, or only an equal opportunity to fish in those areas.

At the heart of the argument [transcript, PDF] are the various obstructions and barriers the state put up at different portions of rivers throughout the state. Each party argues differently about whether the barriers protect the tribes’ rights to the fish in the fisheries. Washington argues the state’s barriers do not hinder the tribes’ rights under the treaties, and that the respondents “need to show that state barriers are causing a large decline in a particular river and that it’s not justified by substantial public interest.” The respondents, the federal government and the Indian tribes, argue against the state’s barriers, saying “the state can enact non-discriminatory measures that are aimed at protecting the resource” but not obstructions that prevent the tribes from their entitled share of fish.

The second case before the court was Lagos v. US [docket], which asks [question presented, PDF] the court whether the Mandatory Victims Restitution Act (MVRA) [materials] “covers costs that were ‘neither required nor requested’ by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.”

The MVRA says, “courts must order the defendant to ‘reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.'” The federal district and circuit courts are divided over the interpretation of this portion of the MVRA.

In this case, the petitioner argues [transcript, PDF] he should not have to pay the $5 million GE Capital, the respondent, spent in its own private investigation concerning the Petitioner’s fraud because that money was spent outside of the government’s investigation. The petitioner relies on the statute’s text, saying the costs for “hiring four law firms, a consulting firm, and forensic experts for a private investigation in bankruptcy litigation” are not covered under the statute. The US argues that Congress intended the statute to compensate victims for monies spent on internal investigations, especially in cases of fraud, since most fraud is detected through internal investigations.