873 F.3d 1157
9th Cir.2017Background
- The Quileute and Quinault signed the 1855 Treaty of Olympia reserving the “right of taking fish at all usual and accustomed grounds and stations.”
- The Makah Tribe sought a district-court determination of the Quileute’s and Quinault’s Pacific Ocean U&A (usual and accustomed) boundaries; a 23-day bench trial produced extensive factual findings.
- The district court found that “fish” in the Treaty of Olympia encompassed sea mammals (whales and seals) and awarded U&A offshore zones: 40 miles for the Quileute and 30 miles for the Quinault.
- The Makah and the State of Washington appealed: Makah argued prior precedent (Makah v. Washington) bars using whaling/sealing evidence; the State challenged the sufficiency and geographic method of the boundaries.
- The Ninth Circuit affirmed that the Treaty’s “taking fish” includes whales and seals (relying on linguistic, historical, and post-treaty practice evidence and the Indian canon), but reversed the district court’s use of fixed longitudinal (vertical) western boundary lines as inconsistent with the factual findings and remanded for redrawing boundaries.
Issues
| Issue | Makah/Tribe Argument | State Argument | Held |
|---|---|---|---|
| Whether “fish” in the Treaty of Olympia includes whales and seals | Quileute/Quinault: yes — linguistic, historical, and practice evidence shows tribes understood “fish” broadly to include sea mammals | Makah: prior Makah opinion precludes treating whaling/sealing evidence as establishing U&A | Held: Yes — Treaty ambiguous; Indian‑canon and abundant factual evidence support that Quileute/Quinault understood “fish” to include whales and seals; district court didn’t clearly err |
| Whether United States v. Washington (Makah) controls here | Makah: Makah precedent limits use of whaling/sealing evidence | Quileute/Quinault: Makah involved a different treaty (Neah Bay) that expressly mentioned whaling/sealing; it does not control Olympia | Held: Makah is not controlling because it addressed a different treaty and different issue |
| Whether tribes must identify specific named locations where they hunted whales/seals to prove U&A | State: tribes must show specific named hunting locations (regularly used) | Quileute/Quinault: U&A includes broader “grounds” that can be unspecified areas; historical evidence suffices | Held: Rejected State — “grounds” can be generalized areas; specific named sites are not required given historical evidence scarcity |
| Whether the district court properly drew western boundaries as fixed longitudinal lines | Makah and Quileute/Quinault: longitudinal lines reasonable and consistent with practice | Makah/State: longitudinal lines sweep in ocean beyond proven U&A; coastline curves require different geometry | Held: Reversed — longitudinal vertical lines extended beyond factual findings; remand for boundaries consistent with findings |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (original U&A framework and findings)
- United States v. Washington, 730 F.2d 1314 (9th Cir. 1984) (Makah) (addressed Makah Treaty of Neah Bay and extent of ocean U&A)
- United States v. Washington, 157 F.3d 630 (9th Cir. 1998) (Shellfish) (interpretive guidance on treaty language and reserved rights)
- United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) (law-of-the-case and precedent limits)
- Choctaw Nation of Indians v. United States, 318 U.S. 423 (1943) (treaties construed as Indians understood them)
- County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) (ambiguous treaty provisions interpreted to tribes’ benefit)
- Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (interpret treaties in light of tribe’s understanding)
- United States v. Winans, 198 U.S. 371 (1905) (reserved‑rights doctrine)
- Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017) (may look beyond text to history, negotiations, and practical construction)