Makah Indian Tribe v. Quileute Indian Tribe , 873 F.3d 1157 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAKAH INDIAN TRIBE, No. 15-35824
Plaintiff-Appellant,
D.C. Nos.
and 2:09-sp-00001-
RSM
UNITED STATES OF AMERICA,
Plaintiff, 2:70-cv-09213-
RSM
v.
QUILEUTE INDIAN TRIBE; QUINAULT
INDIAN NATION,
Respondents-Appellees,
HOH INDIAN TRIBE; LUMMI INDIAN
NATION; PORT GAMBLE S’KLALLAM
TRIBE; JAMESTOWN S’KLALLAM
TRIBE; SUQUAMISH INDIAN TRIBE;
TULALIP TRIBE; SWINOMISH INDIAN
TRIBAL COMMUNITY; SKOKOMISH
INDIAN TRIBE; SQUAXIN ISLAND
TRIBE; NISQUALLY INDIAN TRIBE;
UPPER SKAGIT INDIAN TRIBE;
PUYALLUP TRIBE; MUCKLESHOOT
TRIBE; LOWER ELWHA KLALLAM
TRIBE; STILLAGUAMISH TRIBE,
Real Parties in Interest,
and
2 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
STATE OF WASHINGTON,
Defendant.
MAKAH INDIAN TRIBE, No. 15-35827
Plaintiff,
D.C. No.
and 2:09-sp-00001-
RSM
STATE OF WASHINGTON,
Appellant,
OPINION
v.
QUILEUTE INDIAN TRIBE; QUINAULT
INDIAN NATION,
Respondents-Appellees,
HOH INDIAN TRIBE; LUMMI INDIAN
NATION; PORT GAMBLE S’KLALLAM
TRIBE; JAMESTOWN S’KLALLAM
TRIBE; SUQUAMISH INDIAN TRIBE;
TULALIP TRIBE; SWINOMISH INDIAN
TRIBAL COMMUNITY; SKOKOMISH
INDIAN TRIBE; SQUAXIN ISLAND
TRIBE; NISQUALLY INDIAN TRIBE;
UPPER SKAGIT INDIAN TRIBE;
PUYALLUP TRIBE; MUCKLESHOOT
TRIBE; LOWER ELWHA KLALLAM
TRIBE; STILLAGUAMISH TRIBE;
UNITED STATES OF AMERICA,
Real Parties in Interest.
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 3
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted August 30, 2017
Seattle, Washington
Filed October 23, 2017
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Elizabeth E. Foote, *
District Judge.
Opinion by Judge McKeown
SUMMARY **
Fishing Rights
The panel affirmed in part, and reversed in part, the
district court’s judgment concerning the fishing rights in
Western Washington of the Quileute Indian Tribe and the
Quinault Indian Nation under the Treaty of Olympia.
The Treaty of Olympia protects the tribes’ “right of
taking fish at all usual and accustomed grounds and stations”
(“U & A”).
*
The Honorable Elizabeth E. Foote, United States District Judge for
the Western District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
The panel held that evidence of whaling and sealing was
appropriate to establish U & A under the Treaty of Olympia.
The panel also held that the Treaty of Olympia reserved the
Quileute and Quinault’s right to take whales and seals. The
panel further held that the district court properly looked to
the tribes’ evidence of taking whales and seals to establish
the U & A for the Quileute and Quinault, and did not err in
its interpretation of the Treaty of Olympia.
The panel held that the Quileute and Quinault adequately
identified the “grounds and stations” where they engaged in
whaling and sealing, and rejected the State of Washington’s
suggestion that the tribes must identify specific locations.
The panel reversed the district court’s order imposing
longitudinal boundaries where the tribes could fish because
they did not match the district court’s U & A determinations
for the Quileute and Quinault. The panel held that the law
does not dictate any particular approach or remedy that the
court should institute, and directed the district court on
remand to draw boundaries that are fair and consistent with
the court’s findings.
COUNSEL
Mark D. Slonim (argued) and Joshua Osborne-Klein, Ziontz
Chestnut, Seattle, Washington, for Plaintiff-Appellant.
Lauren J. King (argued) and Jeremy R. Larson, Foster
Pepper PLLC, Seattle, Washington; Eric J. Nielsen, Nielsen
Broman & Kock PLLC, Seattle, Washington; John A.
Tondini, Byrnes Keller Cromwell LLP, Seattle, Washington;
for Respondents-Appellees.
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 5
Joseph V. Panesko and Michael S. Grossman, Senior
Counsel; Robert W. Ferguson, Attorney General; Office of
the Attorney General, Olympia, Washington; for Defendant-
Appellant.
OPINION
McKEOWN, Circuit Judge:
Who would imagine that more than 150 years after the
Treaty of Olympia (the “Treaty”) was signed between the
United States and the Quileute and Quinault tribes, we would
be asked to determine whether the “right of taking fish”
includes whales and seals? Although scientists tell us sea
mammals are not fish, 1 these appeals ask us to go back to the
1855 treaty negotiation and signing and place ourselves in
the shoes of two signatory tribes—the Quileute Indian Tribe
(the “Quileute”) and the Quinault Indian Nation (the
“Quinault”)—to determine what they intended the Treaty to
cover. In light of the evidence presented during the 23-day
trial, the district court did not clearly err in its finding that
1
Modern popular culture recognizes that whales are mammals, not
fish. An amusing exchange between two of the characters on Seinfeld
provides one illustration:
George: I’m such a huge whale fan. These marine
biologists were showing how they communicate with
each other with these squeaks and squeals, what a fish!
Jerry: It’s a mammal.
George: Whatever.
Seinfeld: The Marine Biologist (NBC television broadcast Feb. 10,
1994).
6 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
the Quileute and Quinault understood that the Treaty’s
preservation of the “right of taking fish” includes whales and
seals. The court’s extensive factual findings supported its
ultimate conclusion that “‘fish’ as used in the Treaty of
Olympia encompasses sea mammals and that evidence of
customary harvest of whales and seals at and before treaty
time may be the basis for the determination of a tribe’s [usual
and accustomed fishing grounds].” We affirm the court’s
judgment on that score. However, we reverse the court’s
delineation of the fishing boundaries because the lines drawn
far exceed the court’s underlying factual findings.
Background
This appeal is one of many stemming from the long-
running litigation over fishing rights in Western
Washington. As we have noted, this litigation has a “lengthy
background.” Tulalip Tribes v. Suquamish Indian Tribe,
794 F.3d 1129, 1131 (9th Cir. 2015). The story began in the
mid-1850s, when Governor Isaac Stevens approached the
tribes of Western Washington with a proposal that the tribes
cede most of their land to the United States but without
giving up certain vital rights. His endeavor was successful:
from December 1854 to January 1856, the United States
entered into a series of similarly-worded treaties with the
Washington tribes. Crucial to this appeal, the tribes
preserved their right to “tak[e] fish” at all “usual and
accustomed grounds and stations.” That right has
engendered a number of disputes between and among tribes
about where each tribe can and cannot fish.
Here we address the Treaty of Olympia, which the
Quileute and Quinault (as well as the Hoh Indian Tribe)
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 7
signed in July 1855. As with the other Stevens Treaties, 2 the
Treaty protects the tribes’ “right of taking fish at all usual
and accustomed grounds and stations” (“U&A”). Treaty of
Olympia, art. III, July 1, 1855–Jan. 25, 1856, 12 Stat. 971,
972. In 1974, Judge Boldt of the Western District of
Washington established standards and procedures for
determining a tribe’s U&A and made U&A determinations
for several tribes. United States v. Washington, 384 F. Supp.
312 (W.D. Wash. 1974) (Decision I), aff’d, 520 F.2d 676
(9th Cir. 1975).
This case is one in the ongoing saga arising from Judge
Boldt’s original decision but presents a slight twist on the
usual facts. Rather than asking whether the Quileute and
Quinault have presented enough evidence to establish U&A
in a particular location, the central issue here is whether
evidence of hunting whales and seals can establish where the
Quileute and Quinault were “taking fish” at and before treaty
time.
Litigation on this issue began in 2009, when the Makah
Indian Tribe (the “Makah”) followed procedures to invoke
the district court’s continuing jurisdiction to determine “the
location of any of a tribe’s usual and accustomed fishing
grounds not specifically determined” in Decision I. The
Makah asked the district court to adjudicate the western
boundary of the Quileute’s U&A and the Quinault’s U&A in
the Pacific Ocean. The court held a 23-day trial—exceeding
2
We refer to the Treaty of Olympia as a “Stevens Treaty,” as it was
one of the similarly-worded treaties entered into by Governor Stevens
between December 1854 and January 1856. In February 1855, Stevens
negotiated with the Quinault a draft that formed the basis for the Treaty
negotiations. On July 1, 1855, Stevens sent Colonel Michael Simmons
in his stead to negotiate the Treaty, which Stevens signed on January 25,
1856.
8 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
the length of Judge Boldt’s original trial leading to Decision
I—and issued extensive findings.
Employing the Indian canon of construction, the court
considered the Quileute and Quinault’s understanding of the
Treaty’s ambiguous use of the word “fish” and found that,
based on the historical and linguistic evidence, the tribes
intended the term “fish” to encompass whales and seals. The
court then looked at the evidence of pre-treaty Quileute and
Quinault whaling and sealing and set the Quileute’s U&A
boundary at 40 miles offshore and the Quinault’s U&A
boundary at 30 miles offshore. Both the Makah and the State
of Washington appeal.
Analysis
Evidence of Whaling and Sealing Is Appropriate
to Establish U&A Under the Treaty of Olympia
A. Makah Is Not Law of the Case
The crux of this appeal is whether the term “fish” in the
Treaty includes whales and seals. The Makah seeks to short-
circuit the inquiry by reference to United States v.
Washington (Makah), 730 F.2d 1314 (9th Cir. 1984). In the
Makah’s view, we need not do much analytical heavy-lifting
here because we already ruled in Makah that evidence of
whaling and sealing cannot establish U&A. That reading of
the case obscures what was actually decided and ignores a
linchpin issue—in Makah we considered the Makah’s Treaty
of Neah Bay, not the Treaty of Olympia.
The two treaties have an important textual difference:
unlike the Treaty of Olympia, the Treaty of Neah Bay
secures “[t]he right of taking fish and of whaling or sealing
at usual and accustomed grounds and stations.” Treaty of
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 9
Neah Bay, art. IV, Jan. 31, 1855, U.S.–Makah, 12 Stat. 939,
940 (emphasis added). In addressing the Treaty of Neah
Bay, we concluded that the Makah did not establish that its
U&A extends 100 miles from the shore out to sea. Makah,
730 F.2d at 1318. Given the express protection of the right
to whale and seal, we had no need in Makah to separate out
fishing from whaling and sealing or to address the
significance of different types of evidence. It should be
obvious that Makah is neither controlling nor informative
because the question whether the Treaty of Olympia’s “right
of taking fish” includes whales and seals was not “decided
explicitly or by necessary implication.” United States v.
Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). Just
as obviously, we cannot simply transport analysis of the
Treaty of Neah Bay to the Treaty of Olympia because the
member tribes’ intent is important to, if not dispositive of,
the meaning of particular provisions. See Choctaw Nation
of Indians v. United States, 318 U.S. 423, 432 (1943)
(holding that treaties involving Indian tribes “are to be
construed, so far as possible, in the sense in which the
Indians understood them . . . .”).
In Makah we described the question presented as “what
. . . we find to be the Makahs’ usual and accustomed fishing
areas.” 730 F.2d at 1316. Consistent with that narrow
framing of the issue on appeal, in discussing whether the
Makah had presented sufficient evidence to establish its
U&A out to 100 miles from shore, we explained:
Ocean fishing was essential to the Makahs at
treaty time. The Makahs probably were
capable of traveling to 100 miles from shore
in 1855. They may have canoed that far for
whale and seal or simply to explore. They
did go that distance at the turn of the century,
10 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
although it is not clear how frequently.
About 1900, they fished regularly at areas
about 40 miles out, and probably did so in the
1850’s.
These facts do not show that their usual and
accustomed fishing areas went out 100 miles
in 1855. There is no basis for an inference
that they customarily fished as far as
100 miles from shore at treaty time.
On the contrary, Dr. Lane [an anthropologist]
suggested that the Makahs would travel that
distance only when the catch was insufficient
closer to shore. The earliest evidence of
insufficient catch was Oliver Ides’ statement
about disappearing halibut when he was
young, some 50 years after the treaty. Even
under the less stringent standards of proof of
this case, we cannot conclude that the
Makahs usually and customarily fished
100 miles from shore in 1855.
Id. at 1318.
The first paragraph hones in on the absence in the
Makah’s evidence of regular fishing at 100 miles from
shore. Although members of the Makah “were capable of
traveling to 100 miles from shore” and “[t]hey may have
canoed that far for whale and seal or simply to explore,” at
the turn of the century it was “not clear how frequently” they
fished at that distance. In contrast, we noted that “[a]bout
1900, they fished regularly at areas about 40 miles out, and
probably did so in the 1850’s.” Based on those facts and
inferences, we held that the Makah’s U&A did not extend
100 miles into the ocean.
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 11
The concluding paragraph builds on that analysis, citing
to Dr. Lane’s suggestion that “the Makahs would travel
[100 miles from shore] only when the catch was insufficient
closer to shore.” Because “[t]he earliest evidence of
insufficient catch” came “some 50 years after the treaty,”
there was no basis to say that the Makah often traveled to the
100-mile mark at or before treaty time. The disparity
between the Makah’s evidence with respect to 40 miles
versus 100 miles drove our conclusion that the Makah did
not “usually and customarily fish[] 100 miles from shore in
1855.”
This is not the first time that we have characterized
Makah as turning on the extent of the evidence presented. In
an appeal involving the Tulalip Tribes, we noted that the
“[e]vidence of frequent fishing in the disputed areas is
stronger . . . than in the Makah case.” United States v.
Lummi Indian Tribe, 841 F.2d 317, 320 (9th Cir. 1988).
While the Makah’s evidence provided “no basis for an
inference that [the Makah] customarily fished as far as
100 miles from shore at treaty time,” the Tulalip Tribes’
evidence “readily support[ed] an inference that the Tulalips
frequently fished the disputed areas.” Id. This later case
reinforces that Makah did not explicitly or implicitly decide
the question of what role whaling and sealing evidence plays
in a U&A determination, let alone address the Treaty of
Olympia.
B. The Treaty of Olympia Reserves the Quileute
and Quinault’s Right to Take Whales and
Seals
Having put the Makah case in context, we turn to the
interpretation of the Treaty of Olympia. The pertinent
provision reads:
12 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
The right of taking fish at all usual and
accustomed grounds and stations is secured
to said Indians in common with all citizens of
the Territory, and of erecting temporary
houses for the purpose of curing the same;
together with the privilege of hunting,
gathering roots and berries, and pasturing
their horses on all open and unclaimed lands.
Provided, however, That they shall not take
shell-fish from any beds staked or cultivated
by citizens; and provided, also, that they shall
alter all stallions not intended for breeding,
and shall keep up and confine the stallions
themselves.
Treaty of Olympia, supra, 12 Stat. at 972 (emphasis added).
The parties dispute whether the term “fish”—and the
corresponding right to “tak[e] fish”—embraces whales and
seals.
1. Textual Ambiguity
The text of the Treaty of Olympia does not nail down
whether the term “fish” was meant to include or exclude
whales and seals. At the time of signing, “fish” had multiple
connotations of varying breadth. For example, Webster’s
Dictionary simultaneously defined “fish” broadly as “[a]n
animal that lives in water” (which would include whales and
probably seals) and narrowly as a “name for a class of
animals subsisting in water” that “breathe by means of gills,
swim by the aid of fins, and are oviparous” (which would
exclude whales and seals). Webster’s American Dictionary
of the English Language (1828). Other sources also
acknowledged the popular understanding that the word
“fish” could cover sea mammals; for example, the Supreme
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 13
Court wrote that “For all the purposes of common life, the
whale is called a fish, though natural history tells us that he
belongs to another order of animals.” In re Fossat, 69 U.S.
649, 692 (1864).
The context in which the term “fish” is used does nothing
to resolve the ambiguity. Although the Treaty preserves the
“right of taking fish,” the action of “taking” is far-reaching
and offers no meaningful constraint. Tribes may “tak[e]”
whales and seals just as they may “tak[e]” fish. The shellfish
proviso—which prohibits the tribes from “tak[ing] shellfish
from any beds staked or cultivated by citizens”—is similarly
inconclusive, though it tends to point to a broader definition
of fish. See United States v. Washington (Shellfish),
157 F.3d 630, 643 (9th Cir. 1998). We are left uncertain as
to whether the Treaty employs the narrow or broad
definition.
Nevertheless, the parties’ decision to employ capacious
language, and particularly the expansive word “fish,”
provides an indication of the provision’s comprehended
scope. As we have recognized, if “the Treaty parties
intended to limit the harvestable species, the parties would
not have chosen the word ‘fish’” because that word has
“perhaps the widest sweep of any word the drafters could
have chosen.” Id. (citation omitted). Notably, Judge Boldt’s
original determination of the Quileute’s U&A relied on
evidence of harvesting sea mammals. See Decision I, 384 F.
Supp. at 372 (noting that “[a]long the adjacent Pacific Coast
Quileutes caught . . . seal, sea lion, porpoise and whale”).
The Makah does not advance a competing interpretation
of the actual words of the Treaty of Olympia. Instead, it
jumps to language in its own Treaty of Neah Bay, which
explicitly references the right of “whaling [and] sealing” in
addition to the right of “taking fish.” The Makah contends
14 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
that, to avoid the problem of surplusage, the right of “taking
fish” must be construed so as to exclude “whaling [and]
sealing.” That argument is hard to swallow because we are
not even talking about the same treaty.
As the district court observed, the Treaty of Neah Bay is
of limited import because it “w[as] negotiated by different
individuals and in [a] different context[].” 3 Indeed, the
“argument that similar language in two Treaties involving
different parties has precisely the same meaning reveals a
fundamental misunderstanding of basic principles of treaty
construction.” Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U.S. 172, 202 (1999). Rather than comparing
and contrasting language and rights across treaties, courts
“must interpret a treaty right in light of the particular tribe’s
understanding of that right at the time the treaty was made.”
United States v. Smiskin, 487 F.3d 1260, 1267 (9th Cir.
2007).
2. Indian Canon of Construction
Recognizing the ambiguity in the Treaty and
underscoring that the Treaty of Neah Bay does not control
interpretation of the Treaty of Olympia brings us to the
Indian canon of construction. As a general rule, treaties “are
to be construed, so far as possible, in the sense in which the
Indians understood them,” Choctaw Nation, 318 U.S. at 432,
and “ambiguous provisions [should be] interpreted to their
benefit,” Cty. of Oneida v. Oneida Indian Nation, 470 U.S.
226, 247 (1985). That rule applies to “[t]reaty language
3
One difference was that Colonel Simmons, sent by Governor
Stevens to negotiate the Treaty of Olympia in Stevens’s stead, “lacked
the authority to tailor provisions in the way that [] Stevens was able to
do when negotiating the Treaty of Neah Bay.”
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 15
reserving hunting, fishing, and gathering rights.” Cohen’s
Handbook of Federal Indian Law § 18.02, at 1157 (Nell
Jessup Newton ed., 2012). The Makah, however, seeks to
cut off the Quileute and Quinault’s argument from the get-
go, asserting that the Indian canon does not apply here
because “expand[ing] [the Quileute’s and Quinault’s]
traditional fishing grounds adversely affects Makah.” The
Makah’s contraction of the Indian canon is unwarranted.
Implicit in the Indian canon is the recognition that this
principle inures to the benefit of the tribes that are parties to
the treaty. As the Supreme Court has explained, the ultimate
question is “how the [Indian] signatories to the Treaty
understood the agreement because we interpret Indian
treaties to give effect to the terms as the Indians themselves
would have understood them.” Mille Lacs, 526 U.S. at 196
(emphasis added). The canon is “rooted in the unique trust
relationship” between the United States and the sovereign
tribes, who stood in an unequal bargaining position. Cty. of
Oneida, 470 U.S. at 247; Jones v. Meehan, 175 U.S. 1, 11
(1899). As a non-signatory party, the Makah cannot usurp
application of the Indian canon with respect to the Treaty of
Olympia. Such an incursion would undermine tribal
sovereignty and the signatory tribes’ government-to-
government relations. See Tavares v. Whitehouse, 851 F.3d
863, 877 (9th Cir. 2017); Cohen’s, supra, § 2.02, at 117.
The Makah reads our precedent too broadly to advocate
for its seemingly limitless rule that the Indian canon is
inapplicable whenever another tribe would be
disadvantaged. Not surprisingly, the Makah cites authority
involving tribes claiming contradictory rights under the
same statute or treaty; in those circumstances, the Indian
canon is indeterminate because the government owes the
same legal obligations to all interested tribes and “cannot
16 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
favor one tribe over another.” Rancheria v. Jewell, 776 F.3d
706, 713 (9th Cir. 2015); Confederated Tribes of Chehalis
Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir.
1996).
Here, by contrast, we are faced with an interpretive
choice that would favor the signatory tribes on the one hand
and the United States on the other. See Rancheria, 776 F.3d
at 713. That conceptualization of the Indian canon also fits
with Judge Boldt’s recognition that a tribe may establish
U&A in an area “whether or not other tribes then also fished
in the same waters.” Decision I, 384 F. Supp. at 332. To the
extent the Indian canon plays a part in understanding the
Treaty, it is appropriate to invoke it here. We also note that
we would reach the same conclusion without a beneficial
preference, as the evidence alone supports a broad
interpretation of the Treaty language.
3. Intent of Quileute and Quinault
To ascertain the tribes’ understanding, courts “may look
beyond the written words to the history of the treaty, the
negotiations, and the practical construction adopted by the
parties.” Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1511
(2017) (quoting Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 700 (1988)). After a 23-day bench
trial, followed by 83 pages of Findings of Fact and
Conclusions of Law, the district court undertook this task in
a thoughtful and comprehensive manner.
Central to our review is the district court’s ultimate
determination “that the Quinault and Quileute’s usual and
accustomed fishing locations encompass those grounds and
stations where they customarily harvested marine
mammals—including whales and fur seals—at and before
treaty time.” This conclusion rested on the extensive factual
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 17
findings of the treaty negotiators’ intent—including the
finding that the Quileute and Quinault understood the term
“fish” covered whales and seals—and the underlying
findings of historical fact, which were not clearly erroneous.
See Shellfish, 157 F.3d at 642.
The general context and tenor of the negotiations is a
helpful starting point. Governor Stevens was appointed to
negotiate with the tribes to extinguish their claims to
Washington land and allow for peaceful cohabitation of
Indians and non-Indians. During negotiations, the Indians’
main concern was reserving their “freedom to move about to
gather food at their usual and accustomed fishing places”
because harvesting fish was necessary for survival. Stevens
and the other treaty commissioners made assurances
throughout the process that the Indians would be able to
continue their fishing activities and nowhere indicated that
the Indians’ existing activities would be restricted or
impaired by the treaties.
Stevens’s first attempt to reach an agreement with the
Quinault in February 1855 at Chehalis River failed for
reasons unrelated to this dispute. But in July 1855, the
Quileute and Quinault (as well as the Hoh Indian Tribe)
entered into the Treaty of Olympia, which protects the tribes’
“right of taking fish.”
The minutes from the failed negotiations offer some
insight into key negotiating points, as the draft treaty from
Chehalis River formed the basis for the negotiations of the
Treaty of Olympia. 4 Like Indians in other Stevens Treaty
4
The value of the minutes is somewhat diminished because the
Quileute was not officially represented at this council; the tribe did,
however, send along members to watch.
18 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
negotiations, the Indians at Chehalis River sought to
preserve their entire subsistence cycle and worried that they
would not be able to feed themselves if they ceded too much
land. The commissioners explained that the treaty would
confine where the tribes would live but would “not call[]
upon [them] to give up their old modes of living and places
of seeking food.” Stevens informed the tribes that the treaty
“secures [their] fish” and permits them to “take fish where
[they] have always done so and in common with the whites.”
Multiple aspects of the Treaty of Olympia negotiations
shed light on the Quileute and Quinault’s understanding of
the scope of “fish.” Although minutes from the negotiations
do not exist today, the district court relied on ethnology
studies and expert reconstructions of what likely happened
at the negotiations. Because the commissioners and tribes
did not speak the same languages, they used a limited trade
medium of communication called Chinook jargon for
translation. Colonel Shaw, the treaty commission’s official
interpreter, translated provisions and remarks from English
to Chinook jargon, then Indian interpreters translated the
Chinook jargon into the tribes’ native languages.
One linguistic clue provides powerful evidence that the
Quileute and Quinault assigned a broad meaning to the use
of “fish.” The district court found, based on linguist
Professor Hoard’s testimony, that “[t]he negotiators most
likely used the Chinook word ‘pish,’” which translates into
English as “fish.” The court credited Professor Hoard’s
explanation that the negotiators would have opted for a
broad cover term because Chinook language had general
terms referring to large groups (like “fish”) and specific
terms referring to individual species (like “whales,” “seals,”
and “salmon”) but no intermediate terms referring to
taxonomies (like “finfish” and “sea mammals”).
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 19
The Quileute’s and Quinault’s corresponding words for
“pish” have even wider sweep. Like Chinook jargon, the
Quileute and Quinault languages have no intermediate terms
for taxonomies. As Professor Hoard explained, the Quileute
would likely have used “?aàlita?,” which translates as “fish,
food, salmon.” Similarly, the Quinault’s term “Kémken” is
defined alternatively as “salmon,” “fish,” and “food.”
Because the Quileute and Quinault traditionally harvested
whales and seals for food at and before treaty time, these
pieces of linguistic evidence strongly support the district
court’s finding that the tribes “would have understood that
the treaty reserved to them the right to take aquatic animals,
including . . . sea mammals, as they had customarily done.”
The Makah counters that the Chinook, Quileute, and
Quinault languages had separate words for “fish,” “whales,”
and “seals” as well as for “fishing,” “whaling,” and
“sealing.” But the mere existence of different words does
not preclude some overlap in meaning. Such reasoning is as
faulty as concluding that “tennis” and “volleyball” are not
“sports” because “tennis,” “volleyball,” and “sports” are
different words. Nor does the Makah’s identification of
practical and cultural differences in the real-world
occupations of fishing, whaling, and sealing bridge that gap.
Additionally, that the tribes had distinct terms available does
not undermine what terms were actually utilized and how the
Quileute and Quinault would have translated them. Because
the Makah does not dispute that “pish” was used during
negotiations and that “pish” can mean something as broad as
“food” in the Quileute and Quinault languages, it has not
shown that the district court’s findings were erroneous, let
alone clearly erroneous.
The district court made extensive findings regarding
fishing and subsistence activities at the time of the treaty.
20 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
For both the Quileute and the Quinault, “fishing constituted
the principle economic and subsistence activity . . . at and
before treaty time.” As to the Quinault, “whale, seal, otter,
deer, bear, elk, sea-gulls, ducks, geese,” and “a variety of
shellfish” were among the wide range of animals harvested.
Among other witnesses, Dr. Ronald Olson, an ethnologist,
described in detail offshore fishing, whaling, and fur sealing.
As to the Quileute, Judge Boldt recognized the significant
role of oceanic resources and found that before and at treaty
time, the Quileute harvested diverse resources, specifically
singling out seal, sea lion, porpoise, and whale, among
others. Supporting the link between food and whales, the
district court related testimony that “[t]he Indians did not
want all fish or all whale but liked to get something of
everything which they wanted to eat.” Multiple witnesses
contributed to the detailed findings on Quileute offshore
fishing, whaling, and fur sealing.
Evidence of post-treaty activities further supports the
view that the Quileute and Quinault (and possibly even the
commissioners) understood the Treaty to protect whaling
and sealing. No party contests the district court’s finding
that “[d]uring the post-treaty period, the[] tribes continued to
harvest whales and seals from the Pacific Ocean” with active
encouragement from government agents. Although the
government’s acquiescence does not definitively show that
the parties believed the right was preserved by the Treaty,
the district court rightly noted that this important fact tends
to suggest that “both sides believed the right to harvest sea
mammals to have been reserved to the tribes.”
During the Chehalis River negotiations, neither the tribes
nor the commissioners used the term “fish” in a manner
inconsistent with its inclusion of whales and seals. The
district court identified only two times where the tribes
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 21
mentioned sea mammals explicitly—in both instances, the
Indians asked for beached whales. Stevens answered one
request for beached whales by stating that the tribes “should
have the right to fish in common with the whites, and get
roots and berries.” Stevens replied to the other request with:
“[The tribes] of course were to fish etc. as usual. As to
whales they were theirs, but wrecks belonged to the owners
. . . .” Neither statement is clear as to whether Stevens
understood fish and whales to be synonymous or
overlapping, but we do not read his statements as drawing an
incompatible distinction between the two. The broader
understanding finds further support in a book by James
Swan, who attended the negotiations and later wrote that
“[t]he Indians, however, were not to be restricted to the
reservation, but were to be allowed to procure their food as
they had always done.”
As a practical matter, interpreting “fish” to cover whales
and seals also respects the reserved-rights doctrine, which
recognizes that treaties reserving fishing rights on previously
owned tribal lands do not constitute “a grant of rights to the
Indians, but a grant of right from them—a reservation of
those not granted.” United States v. Winans, 198 U.S. 371,
381 (1905); Cohen’s, supra, § 18.02, at 1156–57. In other
words, absent a clear written indication, courts are reluctant
to conclude that a tribe has forfeited previously held rights
“because the United States treaty drafters had the
sophistication and experience to use express language for the
abrogation of treaty rights.” Mille Lacs, 526 U.S. at 195.
That doctrine favors reading the “right of taking fish” to
include the Quileute’s and Quinault’s established historical
whaling and sealing, particularly because there are
independent indications that “fish” was understood that
expansively. See Shellfish, 157 F.3d at 644 (employing the
reserved-rights doctrine to assist in understanding the scope
22 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
of a treaty provision that could otherwise be read to
encompass the right at issue). That practical point further
solidifies that the Quileute and Quinault understood the
“taking fish” provision to cover whales and seals.
Based on the considerable evidence submitted
throughout the lengthy trial, the district court’s finding that
the Quileute and Quinault intended the Treaty’s “right of
taking fish” to include whales and seals was neither illogical,
implausible, nor contrary to the record. We conclude that
the district court properly looked to the tribes’ evidence of
taking whales and seals to establish the U&A for the
Quileute and the Quinault and did not err in its interpretation
of the Treaty of Olympia. We do not address or offer
commentary on whether the same result would obtain for the
“right of taking fish” in other Stevens Treaties.
The Quileute and Quinault Have Identified the
“Grounds and Stations” Where They Engaged in
Whaling and Sealing
The State of Washington raises a separate argument, not
joined by the Makah, namely whether the Treaty of
Olympia’s “grounds and stations” language mandates that
the Quileute and Quinault provide evidence of “specific
location[s] that the[y] regularly and customarily hunted
whales or seals.” (Emphasis added). This argument falls into
the sea.
The State’s suggestion that the tribes must identify
specific named locations directly conflicts with Judge
Boldt’s description of “grounds and stations.” Judge Boldt
defined “stations” as “fixed locations such as the site of a
fish wier or a fishing platform or some other narrowly
limited area” and “grounds” as “larger areas which may
contain numerous stations and other unspecified locations
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 23
which . . . could not then have been determined with specific
precision and cannot now be so determined.” Decision I,
384 F. Supp. at 332.
While “stations” concerns particular locations and
landmarks, “grounds” is not so limited. By definition,
“grounds” includes “unspecified locations which . . . could
not then have been determined,” vitiating the State’s
assertion that the tribes must come forward with specific
named locations. The State’s claim also runs headlong into
the practical reality that documentation of Indian fishing in
1855 is scarce, and requiring extensive and precise proof
would be “extremely burdensome and perhaps impossible,”
especially deep in the ocean. Shellfish, 157 F.3d at 644. The
district court appropriately examined the substantial
evidence of ocean whaling and sealing proffered by the
Quileute and Quinault to determine that their usual and
accustomed “grounds and stations” respectively extend
40 miles offshore and 30 miles offshore. 5
The Longitudinal Lines Do Not Match the District
Court’s Findings
Having made U&A determinations for the Quileute and
Quinault, the district court endeavored to draw precise
boundaries where the tribes could fish. The parties agreed
as to the northern boundaries but “dispute how the parties
believe the Western boundary for the Quileute and Quinault
should be demarcated as the line proceeds south.” The court
5
Because no party challenges the adequacy of the submitted
whaling and sealing evidence, there is no basis to overturn the district
court’s 40- and 30-mile findings. Nor do we need to reach the Makah’s
and the State’s separate contention that the evidence was insufficient to
establish that the Quileute’s customary finfishing extended 20 miles
offshore.
24 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
decided to use longitudinal lines because it had done so in a
prior proceeding with respect to the Makah’s boundaries.
The court started at the northernmost point of the Quileute’s
U&A, drew a line 40 miles west, and used that longitudinal
position as the western boundary for the entire area. The
court did the same with 30 miles for the Quinault. The map
below depicts the final result.
The Makah takes issue with the court’s use of a straight
vertical line because the coastline trends eastward as one
moves south. The Makah calculates the coast-to-longitude
distance at the southernmost point as 56 miles for the
Quileute and 41 miles for the Quinault. In other words, the
Quileute’s and Quinault’s southernmost boundaries
respectively extend 16 miles and 11 miles beyond the court’s
finding of usual and accustomed fishing, and their total areas
respectively sweep in an extra 413 square miles (16.9% of
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 25
the total 2,450 square miles) and 387 square miles (17.4% of
the total 2,228 miles). The result would be different, for
example, had the boundary lines been drawn parallel to the
coastline.
These significant disparities underscore the deficiencies
in the court’s longitudinal boundaries. The language of the
Treaty of Olympia and countless judicial opinions spell out
that the proceedings are designed to evaluate where the
tribes were engaged in usual and accustomed fishing in
1855. After the court made that determination here, it
effectively nullified parts of that same determination by
creating a boundary containing large swaths of ocean where
the Quileute and Quinault did not present sufficient evidence
to establish U&A. Of course, practical difficulties mean that
courts need not achieve mathematical exactitude in
fashioning the boundaries. Nevertheless, the error rate here
is too high and sweeps in areas that extend beyond the
court’s factual findings. In our view, there are other
solutions that better approximate the court’s findings.
The court’s stated reason for invoking longitudinal lines
was that the approach “is the status quo method of
delineating U & A ocean boundaries by this Court” and
“equity and fairness demand the same methodology for
delineating the boundary at issue here.” Although
longitudinal lines were used to mark the Makah’s western
boundaries in a separate case, nothing in that case suggests
that longitudinal lines are the required methodology. See
United States v. Washington, 626 F. Supp. 1405, 1467 (W.D.
Wash. 1985). Notably, the court drew longitudinal
boundaries there “[o]n the basis of all evidence submitted
and reasonable inferences drawn therefrom . . . .” Id. In
denying a motion for reconsideration of the vertical
boundaries, the court stated that the lines appropriately
26 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE
reflected “with some certainty the extent of the area which
the Court intends to encompass within its determination of a
tribe’s treaty-secured fishing area.” United States v.
Washington, No. 70-9213, Dkt. # 8763, Mem. Op. on Mot.
for Recons., at 2 (W.D. Wash. Jan. 27, 1983). As shown in
the map below, the lines tracked the coastline (and thus the
court’s findings) in a way that avoids the problem presented
by this case.
A different approach is warranted here to account for the
dissimilarities between the cases. Although the Quileute and
Quinault assert that the longitudinal lines also are
appropriate because they are supported by the evidence, the
boundaries do not reflect the district court’s findings. The
Quileute and Quinault cannot vastly expand their U&A
determinations without accompanying findings by the
district court. Nor is the evidentiary gap solved by the
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 27
court’s general statement that “tribal fishermen did not only
fish due west of their villages, but moved in all directions
from the coastline.”
Accordingly, we reverse the district court’s order
imposing longitudinal boundaries. Because the law does not
dictate any particular approach or remedy that the court
should institute, we leave it to the court on remand to draw
boundaries that are fair and consistent with the court’s
findings.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Each party shall bear its own costs on appeal.