Native American fishing rights are at issue in Washington v. United States, argued in April 18, and covered by ISCOTUS now here. In the “Stevens Treaties,” a series of agreements made in the 1850s between the federal government and Indian Tribes in what are now the states of Idaho, Montana, Oregon, and Washington, the Tribes relinquished most of their territory, but retained in perpetuity “the right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory.”

In this case, the Tribes, joined by the United States, are seeking “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat.” The Tribes argue that culverts violate the treaties because they prevent salmon from accessing tribal fishing grounds, thus degrading fisheries and interfering with the Tribes’ “right of taking fish.” The district court found for the Tribes, which the Ninth Circuit affirmed, reiterating that the treaties guaranteed that “the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” The petitioner, the state of Washington, argues that while treaties do guarantee the Tribes the right to access fishing grounds, they do not guarantee the Tribes a standard of living of living from fishing.

At argument, the Court focused primarily on the appropriate standard to determine when the state violates the treaties. Noah Purcell, the Solicitor General of Washington, argued that a barrier would violate the treaties only if it causes “a large decline in a particular river and that it’s not justified by substantial compelling interests.” When Justices Alito and Kagan pressed Mr. Purcell to clarify this standard, he explained that “a decline of half the salmon would certainly easily qualify” but a decline between 1 and 5 percent would not qualify. Justice Gorsuch also pressed Mr. Purcell on his assertion that barriers would not violate the treaty if justified by a substantial compelling interest. “I don’t see anything in the treaty…that says: Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you’re taking…before this Court.”

Allon Kedem argued on behalf of the United States, and William M. Jay, argued on behalf of the Tribes. Both were also asked to clarify the appropriate standard of salmon degradation that would constitute a treaty violation. Mr. Kedem did not provide a specific number, but stated that “substantial degradation” is “harm that is both durable and appreciable, meaning the type of thing that shows up year after year, despite normal fluctuations.” Mr. Jay said that substantial degradation does not mean “a hard and fast number” but is “something that you would determine, factually, in the context of one fish species versus another.”

Reviewing the arguments for SCOTUSblog, Miriam Seifter writes that while the Court “is unlikely to devote its opinion to correcting factual findings”, it “does seem poised to announce some standard for violations of the treaties.”

Also on Wednesday, April 18, the Court heard arguments in Lagos v. United States, which presents the question of whether, under the Mandatory Victims Restitution Act (MVRA), a criminal defendant can be ordered to pay costs to the victim that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and which no official government action prompted. The case involves the MVRA’s requirement that 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.” 18 U.S.C. 3663A(b)(4).

The Fifth Circuit, and other courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were “neither required nor requested” by the government, but the D.C. Circuit has disagreed.

Daniel Geyser, a Dallas attorney, argued on behalf of the defendant, the former owner and CEO of a holding company that owned USA Dry Van Logistics LLC, a trucking company. Lagos induced GE Capital to loan his company tens of millions of dollars by modifying Dry Van’s records, leading GE Capital to incur almost $5 million in debt.

Geyser argued that the MVRA’s language “does not include the cost of hiring four law firms, a consulting firm and forensic experts for a private investigation in bankruptcy litigation.” Unlike other restitution provisions, the MVRA does not provide make whole relief, he argued. Geyser further argued that GE Capital incurred expenses before the government’s investigation, and therefore they did not qualify as expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

Michael Huston, Assistant to the Solicitor General, argued on behalf of the United States, taking the position that the statute is not limited to participation in the government’s investigation. Several justices appeared to disagree, however. Chief Justice John Roberts, for example, stated that the statute refers to only one investigation and that must be the government’s. And Justice Breyer told Huston that he has “a big problem” with the statute’s language because it does not clarify whether a victim should receive restitution for costs incurred during a company’s investigation before a police investigation begins.

On Tuesday, April 17, the Supreme Court heard arguments in Lamar, Archer & Cofrin, LLP v. Appling, in which the Court will decide if an oral statement regarding a single asset is a statement “respecting the debtor’s financial condition,” as described in the United States Bankruptcy Code. Danielle D’Onfro of SCOTUSblog reports that the justices asked few questions of the parties in this case, but when they did, they primarily focused on what types of statements, such as “I’m above water,” “I own a genuine Vermeer,” and “I have a bank account with a billion dollars in it,” can be considered actual statements about one’s “financial condition.” D’Onfro believes the ruling will not “clarify much beyond a few words in Section 523,” and the case “may be in the running for the narrowest decision of the term.” To read more about the case, check out the Jurist’s article, here.

ISCOTUS Fellows Bridget Flynn, Elisabeth Hieber, and Matthew Webber, all Chicago-Kent Class of 2019, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.