129 F. Supp. 3d 1069
W.D. Wash.2015Background
- This is a subproceeding under the Permanent Injunction in United States v. Washington (Final Decision #1) to determine Usual & Accustomed (U & A) fishing grounds of the Quileute Tribe and the Quinault Nation in the Pacific Ocean where Judge Boldt had not fixed boundaries. The Makah initiated the request (2009); a 23‑day bench trial occurred in 2015.
- Central factual disputes concerned historic tribal offshore practices (finfish, whaling, fur sealing), archaeological middens, ethnographies, and marine biology evidence about where species (especially whales and fur seals) were taken.
- Makah and the State contended U & As must be based on treaty‑time finfish harvest locations; Quileute and Quinault contended the treaty term “fish” encompassed marine mammals and that whaling/sealing evidence is relevant.
- Extensive archaeological, ethnographic, historical, linguistic, and biological evidence showed Quileute and Quinault routinely harvested whales and fur seals and fished offshore (Quinault evidence pointed to regular use up to ~30 miles; Quileute evidence supported regular use up to ~20–40 miles for finfish and up to ~40 miles or more for marine mammals and sealing).
- The Court applied the established relaxed evidentiary standards for treaty U & A adjudications (preponderance of credible evidence, with liberal treaty construction for tribes) and considered whether the treaty term “fish” covers marine mammals.
Issues
| Issue | Plaintiff's Argument (Makah / State) | Defendant's Argument (Quileute / Quinault) | Held |
|---|---|---|---|
| Does the treaty phrase “right of taking fish” include marine mammals (whales, fur seals) for purposes of establishing U & As? | “Fish” should be limited to finfish for establishing U & As; marine mammal evidence is not a proper basis. | “Fish” should be read broadly to include all aquatic animals customary to tribes (including sea mammals); whaling/sealing evidence is relevant to U & As. | The Court held “fish” in the Treaty of Olympia includes marine mammals; evidence of customary whaling/sealing at treaty time may be used to establish U & As. |
| What interpretive approach governs the treaty term “fish”? | (Implicit) Rely on ordinary modern meanings and species‑specific evidence. | Apply Indian treaty canons, reserved‑rights doctrine, and interpret ambiguities in favor of tribes; consider tribal languages and contemporaneous usage. | The Court applied liberal Indian treaty construction, reserved‑rights doctrine, and contemporaneous linguistic/contextual evidence to construe “fish” broadly. |
| Western offshore boundary for the Quinault U & A in the Pacific Ocean? | Makah sought limitation consistent with its claims (argued against excessive offshore extent). | Quinault argued for customary offshore range shown by whaling/sealing/fishing evidence. | The Court fixed the Quinault western boundary at 30 miles offshore. |
| Western and northern boundaries for the Quileute U & A in the Pacific Ocean? | Makah opposed expansive Quileute claims north/west (including Tatoosh/Cape Flattery). | Quileute relied on archaeological, ethnographic, linguistic, and marine biology evidence to define customary offshore/northern use. | The Court fixed the Quileute western boundary at 40 miles offshore and the northern boundary by a line drawn westerly from Cape Alava; it rejected a treaty‑time Quileute right at Tatoosh/Cape Flattery. |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Final Decision #1 establishing U & A framework and Permanent Injunction)
- United States v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985) (Makah Pacific Ocean U & A adjudication approach)
- Makah v. United States, 730 F.2d 1314 (9th Cir. 1984) (appellate review of Makah U & A evidence/distance issues)
- Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979) (Indian treaties construed liberally for tribes)
- United States v. Winans, 198 U.S. 371 (1905) (reserved‑rights doctrine: tribes retain pre‑treaty rights not expressly ceded)
- United States v. Washington, 873 F. Supp. 1422 (W.D. Wash. 1994) (Shellfish) (treaty “fish” construed broadly; species‑coextensive U & As)
- United States v. Washington, 157 F.3d 630 (9th Cir. 1998) (affirming broad construction of “fish” and related principles)
- Lummi Indian Tribe v. United States, 841 F.2d 317 (9th Cir. 1988) (recognizing fragmentary nature of treaty‑time evidence and relaxed proof standards)
- Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985) (principles of treaty interpretation and the unique trust relationship)