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Makah Indian Tribe v. Quileute Indian Tribe

United States Court of Appeals, Ninth Circuit

October 23, 2017

Makah Indian Tribe, Plaintiff-Appellant,
Quileute Indian Tribe; Quinault Indian Nation, Respondents-Appellees, and United States of America, Plaintiff, 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 State of Washington, Defendant. MAKAH INDIAN TRIBE, Plaintiff, and STATE OF WASHINGTON, Appellant,

          Argued and Submitted August 30, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington D.C. Nos. 2:09-sp-00001-RSM, 2:70-cv-09213-RSM Ricardo S. Martinez, Chief District Judge, Presiding

          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.

          Joseph V. Panesko and Michael S. Grossman, Senior Counsel; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Defendant-Appellant.

          Before: Michael Daly Hawkins and M. Margaret McKeown, Circuit Judges, and Elizabeth E. Foote, [*] District Judge.

         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 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.



         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 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.


         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) 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 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.


         I. 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 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 ...

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