Lead Opinion
Order Amending Opinion And Denying Petition For Rehearing And Rejecting Suggestion For Rehearing En Banc And Amended Opinion
ORDER
The Opinion filed January 28,1998, slip op. 783, and appearing at
1. At slip op. 829, last sentence of the first full paragraph;
2. At slip op. 830, first full paragraph;
“We therefore apply the following analysis to Grower beds where the Growers, or their predecessors, began their enhancement efforts on a natural bed. For such natural beds, the Growers shall demonstrate what portion of their harvest is due to their labor, as opposed to what portion would exist absent the Growers’ enhancement. See Shellfish II.,898 F.Supp. at 1462 . For such enhanced natural beds, the Tribes shall be entitled to fifty percent of the pre-enhaneed sustainable shellfish production from those beds.12/ Of course, this allocation analysis does not apply to artificial beds, that is, to Grower beds that did not support a sustainable commercial density of shellfish prior to cultivation. As the Tribes have acknowledged, the Tribes have no right to harvest such beds.898 F.Supp. at 1460-61 .”
3.At slip op. 834, third full paragraph carrying over to p. 835;
“Of particular concern to the Tribes is the restriction that allows the Growers to control access to natural clams by choosing not to harvest them in favor of the oysters under which the clams are found.” The Tribes describe this restriction as a “gaping loophole” that has the capacity at the Growers’ discretion to deny to them the very rights to natural clams which our holding confirms.
The Growers’ counter with the argument from the record that the process of harvesting natural clams from underneath the oyster beds can seriously disrupt and suffocate their oysters.
Under the circumstances, we believe that the district court’s restrictions do not amount at this time to an abuse of discretion. The district court attempted to fashion a prospective solution to a difficult situation by balancing the parties’ respective interests. The district court’s restrictions safeguard the Tribes’ right of access to the ancient fisheries, but also protect the interests of the Growers and Private Owners. Importantly, in this aspect of the court’s decision the court did not use equity as the basis for its interpretation of the decision, but only as a way to implement its correctly reasoned interpretation of the Proviso. While the Tribes may not be happy with the limits imposed on their harvesting, they are still able to effectuate their allocation under the Treaties and are not excluded from their ancient fisheries.
We are confident that any future practices by the Growers that trench inappropriately upon the Tribes’ rights as confirmed in this opinion will be adequately dealt with by the district court. The district court is the best place to manage any wrinkles that might crop up. The best way to avoid such problems, of course, is for the parties constructively to work together to respect each others’ rights.”
4. At slip op. 839, concurring opinion of Judge Beezer;
With these amendments, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full eourt has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b).
The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.
OPINION
I. OVERVIEW
The State of Washington, groups of private tideland property owners (“Private Owners”), and .commercial shellfish growers (“Growers”) (collectively, “Appellants”) appeal the district court’s judgment following two bench trials in an action brought by numerous Indian Tribes
In 1855, the United States negotiated five Treaties with the Tribes in the Western Washington Territory. The Tribes ceded their aboriginal lands to the United States for settlement, receiving in exchange exclusive title to defined lands, free medical care, schools, occupational training, and annuity payments. The Treaties also reserved to the Tribes the “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory. ... ” In a series of decisions beginning in 1974, federal courts, including the Ninth Circuit and the Supreme Court, held that this
This case concerns the nature and extent of the Tribes’ shellfishing rights under the Treaties. The district court concluded in a thoughtful and well-reasoned opinion that the term “fish,” as used in the Stevens Treaties, includes shellfish. The court then concluded that the Tribes have a right to take one half of the harvestable shellfish of every species found anywhere within their usual and accustomed fishing areas, except as expressly limited by the Shellfish Proviso. The court interpreted the Shellfish Proviso “only to exclude Indians from artificial, or planted shellfish beds; [the parties to the Treaties] neither contemplated nor desired that the Indians would be excluded from natural shellfish beds.” United States v. Washington,
After its decision interpreting the Treaties, the district court held a second trial to determine a plan for implementing the Tribes’ shellfishing rights (“Implementation Plan”). Employing principles of equity, the court refined its definition of “cultivated” under the Proviso and precluded the Tribes from harvesting shellfish on most of the commercial Growers’ property. In addition, the court placed time, place, and manner restrictions on the Tribes’ ability to harvest from privately-owned land. Finally, the court devised a system for the appointment and removal of Special Masters to resolve disputes arising from the Implementation Plan. These consolidated appeals followed.
We have jurisdiction under 12 U.S.C. § 1291, and we affirm in part and reverse in part.
II. HISTORICAL BACKGROUND
A. The Stevens Treaties
The record contains extensive persuasive evidence concerning the Tribes’ reliance on fish and shellfish for commercial, subsistence, and ceremonial purposes. Fishing was “not much less necessary to the existence of the Indians than the atmosphere they breathed.” United States v. Winans,
At the time of the Treaties, a shellfish-cultivation industry had begun to develop at Shoalwater Bay in the Washington Territory. The United States treaty negotiators were familiar with the practices of that industry, which was modeled after the larger, older, and more developed shellfish industry on the East Coast of the United States. Id. at 1434. Shellfish farmers created “cultivated” beds (ones on which shellfish spawn would not naturally set) by removing oysters from their natural beds to areas where they could grow more rapidly, or by placing shells or other material to harden the bottom and thereby facilitate the setting of the oysters. In addition to creating cultivated beds, shellfish farmers frequently “staked” beds of shellfish by storing market-sized shellfish removed from other beds until they could be shipped to market. These staked beds did not natu
Fish, including shellfish, were exceptionally abundant and considered inexhaustible at treaty time. Id. at 1438. Hence, the United States negotiators believed that preserving Indian fishing rights would not interfere with the rights of citizens. The “negotiators were aware of the thriving shellfish industry in fully-developed East Coast cities, and likely assumed based on those examples that development in the Puget Sound and on the western shore would not interfere with the Indians’ exercise of their treaty fishing rights.” Id.
In light of the above, the United States negotiated five treaties with Indian Tribes of the Western Washington Territory in 1854 and 1855.
The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens....
Treaty of Medicine Creek, supra, Art. III.
B. Post-Treaty Developments
In the years immediately following the Treaties, the Indians harvested the majority of the shellfish resource. In 1879, however, the territorial legislature passed a law that, for the first time, allowed citizens the exclusive right to use and harvest natural oyster beds. Shellfish I,
Uncontradicted evidence at trial showed that native shellfish populations have declined dramatically and have been replaced to a large extent by foreign species introduced into the area after the Treaties. For example, native littleneck clams have been replaced by the introduced species, manila clams, wdiich comprised over eighty percent of the total clam harvest in the Puget Sound from 1988-90. This litigation-initiated by the Tribes and United States-is the consequence of the increasing competition for, and depletion of, the shellfish resource.
III. PROCEDURAL HISTORY
In 1970, the United States and the Tribes brought suit against the State of Washington seeking an interpretation of the Treaties and an injunction to enforce the Tribes’ fishing rights. See United States v. Washington,
In Washington l, Senior Judge Boldt determined the nature and extent of the Tribes’ off-reservation fishing rights with respect to anadromous fish.
The district court in Washington I reserved jurisdiction to hear future unresolved issues arising out of the Treaties. Under the court’s procedures, the Tribes must bring a request for adjudication of their fishing rights to the court’s attention through the filing of a “Request for Determination.” Washington I,
In 1989, pursuant to the above procedure, sixteen Indian Tribes, later joined by the United States, filed an action in the district court seeking a declaration of the nature and extent of their shellfishing rights.
After announcing its decision in Shellfish I, the court conducted a six-day “implementation trial.” The purpose of the implementation trial was to receive evidence regarding proposed plans to implement Shellfish I. Parties submitted competing plans. On August 28, 1995, the district court announced its Implementation Plan. United States v. Washington,
First, the court ruled that, when the State acts on behalf of its citizens by developing artificial shellfish beds for recreational shell-fishing on state-owned tidelands, it is a “citizen” within the scope of the shellfish proviso, which exempts tribal harvesting from “beds staked or cultivated by citizens.” Id. at 1459-60. The effect of this ruling is to exclude the Tribes from shellfishing in state-created artificial beds.
Second, the court clarified the definition of a “natural shellfish bed” which may not be “staked or cultivated” in the future by the Growers. The court concluded that a “natural shellfish bed” is a “bed which is capable of sustaining a yield of shellfish that will support a commercial livelihood.” Id. at 1461. The court then found that the minimum density of manila clams that will support a commercial livelihood is 0.5 pounds of mature clams per square foot.
Third, the court i-edefined “artificial beds,” which are exempted by the Shellfish Proviso from the reach of the Tribes’ shellfishing rights. The court believed that it would be “very difficult” to determine whether beds on Growers’ properties were “artificial” or “natural” and that the Tribes should not benefit from the Growers’ efforts to enhance the shellfish resource on their own properties. Id. at 1461-62. The court therefore modified the definition of “cultivated” to encompass the “wide range of techniques used by the Growers to enhance production of shellfish
Fourth, the court imposed “time, place, and manner” restrictions on the Tribes’ right to shellfish on private properties. Id. at 1470-73. One such restriction was a blanket ban on upland access across private property absent consent by the owner.
The court also set forth dispute resolution procedures, calling for a panel of four special masters: one selected by the Tribes, one by the Growers, one by the Private Owners, and one by the State. Id. at 1475-76. A single master, drawn from the four, determines each dispute. Under the court’s decision, the masters have the power to award damages against Tribes who violate the Implementation Plan. Id.
In response to motions to reconsider its decision in Shellfish II, the district eourt amended its decision on December 18, 1995. United States v. Washington,
IV. STANDARD OF REVIEW
All parties agree that the meaning of the Treaty language is ultimately a question of law reviewed de novo. United States v. Washington,
We review for an abuse of discretion the district court’s equitable orders. The district court abuses its discretion when its equitable decision is based on an error of law or a clearly erroneous factual finding. Foster v. Skinner,
V. CANONS OF TREATY CONSTRUCTION
“[A]ll Treaties made, ... under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. The goal of treaty interpretation is to determine what the parties meant by the treaty terms. Shoshone Indians v. United States,
The Shellfish Proviso is an exception to the Tribes’ broad fishing rights. “A proviso is strictly construed, and only those subjects expressly restricted are freed from the operation of the statute.” Sutherland on Statutory Construction, § 20.22, at 110 (5th ed.1992).
Courts have uniformly held that treaties must be liberally construed in favor of establishing Indian rights. Confederated Tribes of Chehatis,
VI. DISCUSSION
A. EXCEPT AS LIMITED BY THE SHELLFISH PROVISO, THE RIGHT OF TAKING SHELLFISH UNDER THE TREATIES IS COEXTENSIVE WITH THE RIGHT OF TAKING FISH.
The district court held that the Treaties grant the Tribes a right to take shellfish of every species found anywhere within the Tribes’ usual and accustomed fishing areas, except as expressly limited by the Shellfish Proviso. We agree.
1. The Tribes’ shellfish rights are not limited by species
The State of Washington argues that the Tribes’ right to take shellfish is limited to those species of fish actually harvested by the Tribes prior to the signing of the Treaties.
With all deference to the State, there is no language in the Treaties to support its position: the Treaties make no mention of any species-specific or technology-based restrictions on the Tribes’ rights. The district court aptly noted that, had the Treaty parties intended to limit the harvestable species, the parties would not have chosen the word “fish.” The word “fish” has “perhaps the widest sweep of any word the drafters could have chosen.” Id. Thus, the district court correctly chose not to “deviate from [the Treaties’] plain meaning.” Id.
Washington’s position is also contrary to the law-of-the-case doctrine. In 1974, Judge Boldt rejected an argument similar to Washington’s current position, stating: “The right secured by the treaties to the Plaintiff tribes is not limited as to species of fish, the origin of fish, the purpose or use or the time or manner of taking.... ” Washington I,
Washington relies heavily on the Supreme Court’s statement in Fishing Vessel that “securing” fishing rights is “synonymous with ‘reserving’ rights previously exercised.”
At [Treaty] time, ... the Tribes had the absolute right to harvest any species they desired, consistent with their aboriginal title.... The fact that some species were not taken before treaty time-either because they were inaccessible or the Indians chose not to take them-does not mean that their right to take such fish was limited. Because the “right of taking fish” must be read as a reservation of the Indians’ preexisting rights, and because the right to take any species, without limit, pre-existed the Stevens Treaties, the Court must read the “right of taking fish” without any species limitation.
Shellfish /,
2. The “usual and accustomed grounds and stations” do not vary by species offish
Appellants argue that the district court erred in holding that the right of taking fish within “all usual and accustomed grounds and stations” of a Tribe does not vary by species of fish. They contend that the Tribes’ “usual and accustomed” fishing grounds for shellfish are not coextensive with the usual and accustomed grounds for the taking of other fish, the boundaries of which were determined in Washington I. They suggest that the Tribes must establish their usual and accustomed grounds for each species of fish. We respectfully disagree.
In Washington I, the court found that “every fishing location where members of a tribe customarily fished ... is a usual and accustomed ground or station at which the treaty tribe reserved, and its members presently have, the right to fish.”
Moreover, it would be extremely burdensome and perhaps impossible for the Tribes to prove their usual and accustomed grounds on a species-specific basis. “Little documentation of Indian fishing locations in and around 1855 exists today.”
In light of the above, the district court was correct in concluding that the Tribes’ usual and accustomed grounds for shellfish are coextensive with the Tribes’ usual and accustomed fishing grounds, w’hich have been previously decided by the courts.
3. The Equal Footing Doctrine does not preclude tribal harvesting.
Appellants contend that the “Equal Footing Doctrine” and the “Shively presumption” preclude tribal harvesting on the tidelands. “Under the Equal Footing Doctrine, every new state is entitled to entrance into the Union free of any encumbrance on its land, so that it stands on ‘equal footing’ with the other states.” Shellfish I,
In short, Appellants contend that any treaty right to harvest shellfish would amount to a property interest in the tidelands, and because the Treaties do not clearly specify an intent to grant a property interest in the tidelands, the Treaties cannot be construed as providing rights to harvest shellfish. The district court rejected this argument and interpreted the Treaties “without regard to the Equal Footing Doctrine ra-the Shively presumption.” Id, We agree with the district court’s interpretation.
Appellants rely primarily on two cases, United States v. Holt State Bank,
In the instant case, however, “the Tribes possess the disputed rights [to harvest shellfish] pre-treaty, and the treaty simply effects a reservation of rights.”
It is settled under Washington II that the fishing rights at issue in this case predated the Stevens Treaties, and the Treaties simply effected a reservation of those rights. Similarly, the Supreme Court acknowledged the reservation in Fishing Vessel: The fishing clause speaks oí securing certain fishing rights, a term the Court has previously interpreted as synonymous with ‘reserving’ rights previously exercised.” Fishing Vessel,443 U.S. at 678 ,99 S.Ct. 3055 . Because the Stevens Treaties must be construed as a reservation of rights by the Tribes, not a granting of rights by the United States, the Shively presumption and the Equal Footing Doctrine cannot play a role in the evaluating the existence or scope of the rights.
Id, at 1443-44 (citation omitted). We adopt the district court’s persuasive reasons for rejecting the application of the Shively presumption to defeat the Tribes’ shellfishing rights.
We note that “the Supreme Court has applied the Equal Footing Doctrine in one context only, namely when evaluating a claim of right to lands beneath navigable waters based upon an alleged conveyance or retention of fee simple ownership by the United States prior to statehood.” Id, at 1444 (citing cases); see Montana,
Moreover, application of the Equal Footing Doctrine has already been rejected in the context of the Stevens Treaties fishing rights. First, the Supreme Court in Winans noted:
*646 [I]t is contended that the State acquired, by its admission into the Union “upon an equal footing with the original States," the power to grant rights in or to dispose of the shore lands upon navigable streams, and such power is subject only to the paramount authority of Congress with regard to public navigation and commerce. The United States, therefore, it is contended, could neither grant nor retain rights in the shore or to the lands under water.
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The extinguishment of the Indian title, opening the land for settlement and preparing the way for future States, were appropriate to the objects for which the United States held the Territory. And surely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they possessed as “taking fish at all usual and accustomed places.”
Admission of the State of Washington into the Union upon an equal footing with the original states had no effect upon the treaty rights of the Plaintiff tribes. Such admission imposed upon the State, equally with other states, the obligation to observe and carry out the provisions of treaties of the United States.
Washington I,
4. The Tribes are entitled to harvest shellfish on privately-owned tidelands.
The Private Owners contend that the Tribes’ right to take shellfish does not include the right to take shellfish found on privately-owned tidelands. The Private Owners argue that the Treaties gave the Tribes the same common right to harvest shellfish as that enjoyed by non-Indian citizens, and that this common light was diminished by the conveyance of the property into private ownership. They contend also that the Treaties only allow the Tribes to take the common resources of “public water and public lands,” not to take shellfish on private lands. We reject these contentions.
First, the Supreme Court has consistently rejected arguments to the effect that Indian treaties reserve to the Indians no more fishing rights than those enjoyed by non-Indian citizens. See Winans,
Second, as the Supreme Court explained in Winans, the Tribes were promised “the right of taking fish at all usual and accustomed places” and the right “of erecting temporary buildings for curing them.” 198 U.S, at 381,
Moreover, in Fishing Vessel, the Supreme Court explicitly recognized that the “[TJreaties provide Indians with certain rights-i.e., the right ... to cross private lands-that non-Indians do not have.” Fishing Vessel,
[U]pon proper showing of the need for land access, the Tribes would be entitled under Winans to cross private property in order to exercise their fishing rights. Resolving the issue of Tribal access across private property requires the balancing of competing interests, and the Court empha*647 sizes that land access is not to be granted unless there is a proper showing of the need for such.
This case is not the first Stevens Treaties case to implicate private property rights. The previous fishing rights cases, upheld in Fishing Vessel, noted that the Treaties “include! ] the right to use private tidelands for beach seines, tidal impoundment traps, stake nets and reef nets.” Shellfish I,
The Private Owners also contend that shellfish are different than anadromous fish because they have traditionally been held to be a part of the land. The district court rejected this contention, stating that “the uniform common law at treaty time held that private ownership of a parcel of tideland did not include private rights to the shellfish on that parcel.” Shellfish I,
On appeal, both the Tribes and the Private Owners cite several cases in support of their respective contentions that the right to harvest shellfish from private property was (or was not) permitted at Treaty time. See Smith v. Maryland,
In light of Winans, Fishing Vessel and the Treaties’ language and power as the supreme law of the land, the district court correctly determined that the Tribes have a right to harvest shellfish on private tidelands.
B. THE DISTRICT COURT PROPERLY INTERPRETED THE MEANING OF THE SHELLFISH PROVISO.
The Treaties’ fishing clauses were expressly limited by the Shellfish Proviso, which prohibited the Tribes from taking shellfish from “any beds staked or cultivated by citizens.” The district court “interpreted] the terms ‘staked’ and ‘cultivated’ as
The Growers offered the district court an alternative definition of staked or cultivated that “starts and ends with the treaty-time dictionary.” Id. at 1431. The district court noted that under the Growers’ theory, “any shellfish bed extant today that is surrounded by stakes, or in some fashion improved by human labor, would be off limits to the Indians.” Id. The Private Owners make a similar contention, arguing that “ ‘staked’ should be interpreted in its ‘frontier’ context and thus should be regarded as a synonym for ‘claimed as private property.’ Therefore, all privately-owned tideland, whether or not surrounded by stakes, would be protected by the Shellfish Proviso.” Id, The district court rejected the Growers’ and Private Owners’ definitions, analyzing the Shellfish Proviso in light of: (1) the surrounding treaty words, (2) the record of the treaty negotiations, (3) the historical circumstances that gave rise to the Stevens Treaties, (4) the possible alternative formulations of the Shellfish Proviso, and (5) the post-treaty conduct of both parties. Id, at 1435. In short, the court found that “the Tribes presented compelling evidence that only artificial beds were ‘staked’ or ‘cultivated’ at treaty time.” Id. at 1431-42. Given the deferential standard by which we review the district court’s findings of historical fact and its findings regarding the intentions of the parties’ negotiators, we conclude the district court did not err in interpreting the Proviso and we adopt its analysis as our own. Moreover, we believe that the district court's reasoned analysis of the Proviso is correct. We emphasize three additional points.
First, the Growers’ and Private Owners’ interpretations are not based on the common understanding of the phrase “beds staked or cultivated” within the context of the shellfish-ing industry at treaty time. The district court made a factual finding that the treaty negotiators drew the language of the Shellfish Proviso from terms commonly used in the fledgling shellfishing industry. Although the Growers may have presented evidence to the contrary, none of this evidence leaves us with a “definite and firm conviction” that a mistake has been committed. See Sawyer v. Whitley,
Second, the Growers’ interpretation is totally inconsistent with the “United States’ avowed intention to preserve for the Indians their ancient fisheries.” Id. at 1437. The Growers’ and Private Owners’ interpretations would read the Proviso to effectively eliminate the Tribes’ right to take shellfish under the Treaties. Surely, Governor Stevens would not have intended such a result, especially in light of the historical circumstances surrounding the Treaties’ negotiations. In fact, the benevolent approach taken by the United States treaty negotiators was noted by the Supreme Court in Fishing Vessel:
Governor Stevens made the following statement to the Indians gathered at Point-No-Point to negotiate the treaty beaxing that name: “Are you not my children and also children of the Great Father? What will I not do for my children, and what will you not for yours? Would you not die for them? This paper is such as a man would give to his childx-en and I will tell you why. This paper gives you a home. Does not a father give his children a home? ... This paper secures your fish Does not a father give food to his children?”
The one significant promise for purposes of this litigation is the promise by the United States to the Indians that they*649 would enjoy a permanent right to fish as they always had. This right was promised as a sacred entitlement, one which the United States had a moral obligation to protect. The Indians were repeatedly assured that they would continue to enjoy the right to fish as they always had, in the places where they had always fished. There is no indication in the minutes of the treaty proceedings that the Indians were ever told that they would be excluded from any of their ancient fisheries.
Shellfish I,
Third, the Appellants’ interpretation of the Proviso casts aside black-letter canons of statutory construction and treaty interpretation. The Shellfish Proviso is an exception to the Tribes’ otherwise broad fishing rights. “A proviso is strictly construed, and only those subjects expressly restricted are freed from the operation of the statute.” Sutherland on Statutory Construction, § 20.22, at 110 (5th ed.1992). Moreover, courts have uniformly held that treaties must be liberally construed in favor of the Indians. Confederated Tribes of Chehalis,
C. THE DISTRICT COURT CORRECTLY REJECTED APPELLANTS’ AFFIRMATIVE DEFENSES.
The Growers contend that we should apply the doctrine of laches to defeat the Tribes’ claim to shellfish. The doctrine of laches is defined as “neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to [the] adverse party, operates as [a] bar in [a] court of equity.” Black’s Law Dictionary 875 (6th ed.1990). In urging us to apply laches, the Growers argue that “this is an extraordinary case.... These extraordinary facts call for new law.” Growers’ Open ing Brief at 44.
The Growers ask for new law simply because current law precludes their argument. In Swim ¶. Bergland,
UPOW’s argument that the Tribes’ treaty rights were extinguished by the Indian Claims Commission Act, 25 U.S.C. § 70 (repealed 1978), is without merit. Judge Boldt rejected this theory over twenty years ago, see United States v. Washington,
D. THE DISTRICT COURT ABUSED ITS DISCRETION IN LIMITING THE TRIBES’ RIGHT TO HARVEST SHELLFISH FROM CERTAIN AREAS BECAUSE THE DISTRICT COURT’S ORDER REDEFINED THE TERMS OF THE TREATY.
In their cross-appeal, the Tribes and the United States contend that, in its implementation decision (Shellfish II), the district court disregarded its own admonition in its first decision that it lacked authority to rewrite or interpret the terms of the treaties to avoid hardship to any party based on its own notions of the equities. The implementation decision, the Tribes contend, erroneously redefined the terms of the treaties in abrogation of the Tribes’ right to take shellfish. For example, the district court refined its definition of the word “cultivated” in the
We hold that the district court impermissi-bly employed equitable powers to rewrite the Treaties’ terms. However, we also hold that allocating fifty percent of the commercial Growers’ shellfish harvest to the Tribes would unjustly enrich them. Such an allocation would simply not comport with Fishing Vessel ⅛ concept of giving the Tribes a “fair share” of the harvest.
1. The district court improperly limited the Tribes’ right to take shellfish from the Growers’ shellfish beds.
In Shellfish II, the district court declared that “it is incumbent upon this Court to use its equitable powers to effect a balance between the Tribes’ Treaty shellfishing right and the Growers’ and Owners’ interest in the peaceful enjoyment and/or commercial development of their property.” Id. Using these “equitable powers,” the district court formulated a “broader” definition of a “cultivated” shellfish bed that applies only to “the existing beds on property owned or leased by Growers licensed by the State of Washington.” Id. at 1461. The court then deemed natural shellfish beds that have been enhanced by human means “de facto artificial beds” upon whieh the Tribes may not take shellfish.
In support of its use of equitable principles, the district court and Appellants primarily rely on five cases: Yankton Sioux Tribe of Indians v. United States,
None of the above cases, however, involve the use of equitable considerations in interpreting Indian treaties. At best, they condone the use of equity as a tool to calculate damages. The majority in One,ida,
The Tribes, on the other hand, cite persuasive and unambiguous Supreme Court authority. The district court’s re-interpretation violates the Supreme Court’s admonition in United States v. Choctaw Nation,
But in no case has it been adjudged that the courts could by mere interpretation or in deference to its view as to what was right under all the circumstances, incorporate into an Indian treaty something that was inconsistent with the clear import of its words.... We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation, upon any notion of equity or general convenience, or substantial justice,
(emphasis added; quotation and citation omitted). The district court itself recognized in Shellfish I:
In reaching its decision, the Court may not rewrite the Treaties or interpret the Treaties in a way contrary to settled law simply to avoid or minimize any hardship to the public or to the intervenors. Indeed, the Court has no such power. Rather, amelioration from such hardships should be sought from Congress, which has the power to abrogate the treaty....
It does not follow from the above, however, that the district eourt is without the ability to use equity in implementing its Treaty interpretation. As laid out below, we believe the district court should have used its equitable powers only to limit the take of the Tribes-not the location-so as to avoid any unjust enrichment.
2. The district court improperly allocated to the Tribes a fifty-percent share of shellfish from the Growers’ beds.
Appellants contend that Tribes’ allocation of fifty-percent of the shellfish resource exceeded their “fair share.” Appellants suggest that the district court should have considered “equitable factors” and that it improperly applied the “moderate living” analysis suggested by the Supreme Court in Fishing Vessel,
In Fishing Vessel, the Court stated that an equitable measure of the common right should initially divide the harvestable portion of each ran that passes through a “usual and accustomed” place into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount.
[T]he central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than is necessary to provide the Indians with a livelihood-that is to say, a moderate living.... If, for example, a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run that passes through its customary fishing grounds would be manifestly inappro*652 priate because the livelihood of the tribe under those circumstances could not reasonably require an allotment of a large number of fish.
Id. at 686-87,
The district court, however, heard evidence as to the Tribes’ living standards presented by both sides and concluded that Appellants’ experts’ analyses were “flawed.”
The uncontroverted evidence presented at trial is that the Tribes lag significantly behind other residents of the State of Washington in their overall standard of living. For example, approximately one in three Tribal members live below the poverty level; Indians in the State of Washington endure health circumstances characterized by the State as “very poor;” tribal members have per capita incomes that are less than one half the per capita income of non-tribal residents of the State; and tribal members suffer from unemployment rates at least three times greater than that of all non-tribal residents of the State of Washington.
Shellfish I,
However, Fishing Vessel instructs us to give the Tribes a “fair share” and to “fairly apportion” the fish. Fishing Vessel,
Our decision here is consistent with our previous decision in United. States v. Washington,
Our conclusion squares with one of the purposes of the Proviso, which was “to protect the fledgling oyster industryf’s]” efforts to create a harvest where there was none, or where it was insufficient to support a commercial livelihood. Shellfish I,
We therefore apply the following analysis to Grower beds where the Growers, or their predecessors, began their enhancement efforts on a natural bed. For such natural beds, the Growers shall demonstrate what portion of their harvest is due to them labor, as opposed to what portion would exist absent the Growers’ enhancement. See Shellfish II.,
We place the burden of proving pre-en-hancement harvest versus post-enhancement harvest on the Growers-for the Growers are best able to prove such a calculation.
3. The district court erred by concluding that the State of Washington is “citizen.”
The district court determined that the term “citizens” in the Shellfish Proviso, “includes the State of Washington, when the State acts on behalf of the public.” Id. at 1459-60. The court noted that “the five million residents of the State are blameless in this controversy, and the Court believes that the benefits and efficiencies of permitting the State to act on their behalf in growing the State’s shellfish resource far outweigh any interest the tribes have in limiting the artificial bed exclusion to natural persons.” Id. n. 11. The court therefore concluded that “to the extent the State hereafter creates artificial shellfish beds on public property, those beds shall be deemed ‘staked or cultivated by citizens’ and thus excluded under the Shellfish Proviso from the Tribes’ Treaty right.” Id. Because the court once again improperly invoked equitable principles in its interpretation of the Treaty, and there is no support in the law for the proposition that a state can be a “citizen,” we reverse this aspect of the district court’s decision.
In the State of Washington’s brief and at oral argument, it was unable to cite a single case to support its proposition that a State can be “citizen.” We note that it took an act of Congress to enable a corporation to be considered a citizen for purposes of diversity jurisdiction. See 28 U.S.C. § 1332. We therefore reverse that portion of the district court’s decision which deems the State of Washington a “citizen” for purposes of the Shellfish Proviso.
4. The district court committed clear error in finding that 0.5 pounds of mature clams per square foot is the minimum density necessary to establish a natural bed.
In Shellfish II, the district court concluded that “in light of the practices and understandings in the shellfish industry that existed at treaty time, it is clear that a quantitative definition of a natural bed is appropriate.”
No witness gave an opinion as to the density of manila clams necessary for a successful commercial harvest. No document in the record sets forth any analysis of what density is necessary for commercial success. There is a document in the record which purports to show the densities of twelve manila clam beds leased from the State of Washington, but twelve beds is far too small and unrepresentative a sample of commercial beds to support a reliable finding of fact. See, e.g., National Lime Ass’n v. EPA,
In light of the above, we reverse the district court’s finding that the minimum quantity of manila clams that will support a commercial livelihood is 0.5 pounds of mature clams per square foot. We remand to the district court for a new hearing on this issue.
5. The district court did not abuse its discretion by limiting the Tribes’ ability to cross private uplands.
The district court prohibited tribal access across privately owned upland property to reach shellfishing areas unless “specifically requested from and granted by a Special Master,” with permission to be refused unless “tribal members can demonstrate the absence of access by boat, publie road, or public right of way.”
The Supreme Court has already determined that the Tribes are entitled to a right of access aeross private lands to invoke their Treaty fishing rights. Winans,
6. The district court did not abuse its discretion in imposing time, place, and manner restrictions on the Tribes’ ability to harvest shellfish.
The district court also invoked equitable principles to subject the Tribes’ Treaty shellfishing right to reasonable time, place and manner restrictions when the right is exercised on the Growers’ or Owners’ prop
The court imposed the following restrictions on the Tribes’ ability to harvest shellfish: 1) the Tribes’ harvest is limited to five days per year, with some increase on larger lots, for any private beach not controlled by a Grower,
Of particular concern to the Tribes is the restriction that allows the Growers to control access to natural clams by choosing not to harvest them in favor of the oysters under which the clams are found. The Tribes describe this restriction as a “gaping loophole” that has the capacity at the Growers’ discretion to deny to them the very rights to natural clams which our holding confirms.
The Growers counter with the argument from the record that the process of harvesting natural clams from underneath the oyster beds can seriously disrupt and suffocate their oysters.
On reflection, the Tribes’ concerns although certainly not fanciful-are based at this point on speculation as to what might happen in the future. The Growers, for example, represent that “where there are substantial economic benefits to a Grower from harvesting clams, the Grower will do so.” And, “[a]s soon as the Grower does, the trial court’s implementation plan provides that the Tribes have the right to a share of those clams.” The Growers say that they are “commercial farmers-if there is money to be made, the resource assuredly will be exploited.”
Under the circumstances, we believe that the district court’s restrictions do not amount at this time to an abuse of discretion. The district court attempted to fashion a prospective solution to a difficult situation by balancing the parties’ respective interests. The district court’s restrictions safeguard the Tribes’ right of access to the ancient fisheries, but also protect the interests of the Growers and Private Owners. Importantly, in this aspect of the court’s decision the court did not use equity as the basis for its interpretation of the decision, but only as a way to implement its correctly reasoned interpretation of the Proviso. While the Tribes may not be happy with the limits imposed on their harvesting, they are still able to effectuate their allocation under the Treaties and are not excluded from their ancient fisheries.
We are confident that any future practices by the Growers that trench inappropriately upon the Tribes’ rights as confirmed in this opinion will be adequately dealt with by the district court. The district court is the best place to manage any wrinkles that might crop up. The best way to avoid such problems, of course, is for the parties constructively to work together to respect each others’ rights.
We reject the Tribes’ contention that the restrictions are contrary to the Supreme Court’s decision in Puyallup Tribe v. Department of Game,
7. The district court’s procedures for selecting and disqualifying special masters deny due process.
Shellfish III established a panel of four special masters, with one to be randomly selected to hear each dispute.
The Tribes also argue that allowing the parties to appoint and remove the master at will compromises the independence of the special master. Because the district court must approve the appointment of the Masters, see Shellfish III,
8. The district court did not err in authorizing a special master to award damages against Tribal members.
The Tribes argue that Shellfish HI ⅛ provision allowing the special master to award damages against Tribal members is legally flawed. In addition, they contend that Shellfish II erroneously contains a provision allowing damages against the Tribes themselves. In Shellfish III, the district court amended its decision to preclude damage awards against the Tribes because Tribes cannot be sued without their unequivocal consent. See Oklahoma Tax Comm’n v. Potawatomi Indian Tribe,
The Tribes concede that individuals may be bound by orders affecting their “common public rights as citizens” in litigation to which their sovereign is a party. City of Tacoma v. Taxpayers of Tacoma,
Similarly, the Tribes’ argument that claims for trampled shrubs, damaged docks, or littered beaches “would raise no federal question” is also without merit. If the damages arise out of the exercise of fishing rights based on the district court’s interpretation of the Stevens Treaties, the district couiT has the authority to hear such a dispute. Moreover, the dispute would arise from the same “nucleus of operative facts,” affording the
We therefore affirm the special master’s ability to recommend damages against individual Tribal members, but vacate section 6.2’s provision allowing damages against the Tribes.
9. The district court did not err in determining that the Tribes are not entitled to attorney’s fees.
The Tribes request attorney’s fees under 42 U.S.C. § 1988. The Tribes’ request is foreclosed by United States v. Washington,
VII. CONCLUSION
For the reasons discussed above, we AFFIRM IN PART and REVERSE IN PART the district court’s decisions in Shellfish I, Shellfish II, and Shellfish III. We REMAND this case to the district court for proceedings consistent with this opinion. In so doing, we compliment the district court for the clarity of its opinions previously rendered.
We recognize the enormous impact our decision will have on the thousands of homeowners, Tribal members, and commercial fishermen in the Puget Sound region. It must be remembered that we are a court of limited jurisdiction. Moreover, we are bound by the Constitution’s Supremacy Clause which accords special standing to treaties. We do not have the power simply to “rewrite the Treaties or interpret the Treaties in a way contrary to settled law simply to avoid or minimize any hardship” to any of the parties in this case. Shellfish I, 873 F.Supp. at 1429. This case has come a long way since the 1970’s when a “total lack of meaningful communication” led to “deep distrust” between the parties.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
The parties shall bear their own costs of this appeal.
For example, if ten clams per square foot were a density sufficient to support a commercial livelihood at the time that enhancement began, and if a 100 square foot Grower's bed yielded ten clams per square foot prior to the Grower's efforts to enhance the output (1,000 clams), and that same bed now produces fifty clams per square foot as a result of the Grower’s labor (5,000 clams), the Tribes would be entitled to fifty percent of the 1,000 clams or 500 clams.
. The Tribes are the following: the Tulalip, Pu-yallup, Squaxin Island, Makáh, Muckleshoot, Upper Skagit, Nooksack, Nisqually, Lummi, Sko-komish, Port Gamble S'Klallam, Lower Elwha S’Klallam, Jamestown S'Klallam, Suquamish, Swinomish, Hoh, Stillaguamish, Sauk Suiattle, and Guileute. The Yakima Tribe, which participated in the proceedings below, did not appeal the district court's decision that the right to take shellfish is not reserved in its treaty with the United States.
. Each of the Tribes involved in this proceeding is the successor-in-interest to one or more of these treaties: Treaty of Medicine Greek, December 26, 1854, 10 Stat. 1132; Treaty of Point Elliott, January 22, 1855, 12 Stat. 927; Treaty of Point No Point, January 26, 1855, 12 Stat. 933; Treaty with the Makah, January 31, 1855, 12 Stat. 939; Treatv of Olympia, July 1, 1855, 12 Stat. 971.
. Anadromous fish are fish that migrate up rivers from the sea to breed in fresh water (i.e„ salmon).
. The other six cases are: United States v. Winans,
. The action was originally filed against only Washington. The following groups subsequently intervened in the proceeding; the Puget Sound Shellfish Growers, representing commercial shellfish growers; the Alexander group and Adkins group of private tideland owners; and a group of private property owners affiliated with the United Property Owners of Washington ("UPOW"). The district court denied motions to intervene filed by the Inner Sound Crab Association, Dungeness Crab Harvesters Association, and the Washington Harvest Divers Association. That ruling was recently affirmed by this Court. See United States v. Washington,
. The State of Oregon has filed an amicus brief joining Washington in this argument.
. The court declared that only “those beds whose existence is entirely due to the natural propagation of the species” are subject to the Tribes' Treaty rights. This declaration excluded from Tribal harvest: 1) beds created from scratch; 2) beds enhanced by planting, netting or seeding pre-existing shellfish beds; 3) beds enhanced by using predator control or rototilling in or around preexisting beds; and 4) "beds whose existence is due to the Grower's efforts, albeit passively, such as the ‘natural’ migration of shellfish from an artificial bed to a new spot.” Shellfish II,
. The Imperial Irrigation District case provides little support for the Appellants. First, it is currently pending on appeal. Second, it: is stayed pending settlement discussions. See
. UPOW’s expert, Dr. Thomas, relied solely on what he called “tribal household income” and compared it to a moderate living standard by reference to the Bureau of the Census income data for non-Indian households.
. Even if we were to consider Tribal income from casino operations-as the Appellants ask us to do-we would not be left with a "definite and firm conviction” that the district court’s findings were erroneous.
. For example, if ten clams per square foot were a density sufficient to support a commercial livelihood at the time that enhancement began, and if a 100 square foot Grower’s bed yielded ten clams per square foot prior to the Grower's efforts to enhance the output (1,000 clams), and that same bed now produces fifty clams per square foot as a result of the Grower’s labor (5,000 clams), the Tribes would be entitled to fifty percent of the 1,000 clams or 500 clams.
. One way to do this would be to compare a Grower’s bed’s earliest shellfish production figures with the bed’s current output. This could serve as one of the bases by which to calculate the proper allocation amount.
. Because we conclude that the district court clearly erred, we do not address the Tribes' contention that they were unfairly surprised and unable to present evidence on this issue. On remand, the Tribes will have an opportunity to present such evidence.
. This decision amended the court’s decision in Shellfish II, which originally held that the Tribes had no right of private upland access at all.
.The Tribes and the United States also urge us to read into the absence of upland access showing a “reasonableness” requirement. We decline to do so, but we direct the district court, upon remand, to clarify its order with regard to this issue.
Concurrence Opinion
Concurring:
I specially concur in the opinion of the court. I express my views concerning the interpretation of the Stevens Treaties and the appointment of special masters.
I
The Stevens Treaties provide:
The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, that they shall not take shell fish from any beds staked or cultivated by citizens.
Treaty of Medicine Creek, December 26, 1854, 10 Stat. 1132, Art. III (it is undisputed that this clause is substantively identical in all subject treaties).
The United States asks us to hold that shellfish beds, unharvested in the nineteenth century, were “usual and accustomed” tribal fishing grounds in 1854. This argument strains even the deferential canons of Indian treaty interpretation. It is, however, the law of this case and of the Supreme Court that the reserved fishing right makes no distinctions between migratory fish and shellfish or between fish runs and static fishing grounds. The origin of. this rule of law is perplexing.
In 1974, Judge Boldt concluded that the Indian Tribes had treaty fishing rights which entitled them to harvest up to fifty percent of fish passing through the tribes’ fishing grounds. United States v. Washington,
Fishing Vessel held that tribes have a right to equal amounts of fish “taken from runs of fish that pass through the Indians’ usual and accustomed fishing grounds.” Fishing Vessel,
The underpinning of the Court’s interpretation of the Stevens Treaties should not apply to shellfish because they are, with the exception of crustaceans, immobile. There can be no device that prevents the migration of immobile shellfish to, through or from the tribes’ usual and accustomed fishing grounds.
The burden imposed by our opinion cannot be overstated. The record in this case makes abundantly clear that since treaty times a vibrant shellfish industry has developed in the State of Washington along the saltwater beaches of the Pacific Ocean and along tidelands adjoining the inland waters of Puget Sound.
The labors of a modem day shellfish producer are vividly recounted in The Seattle Times, May 1,1997, p. R-l, as follows:
After all, one of the first skills he found necessary was the patience to stare for 1Ü hours at a time at a leathery, slithering geoduck neck sticking out of a plastic bucket full of sand—waiting to catch the unlovely bivalve in its private, and very erratic, act of spawning. Complicating the task is the fact that geoducks must spawn before hatchery breeders, such as Dah-man, can tell the males from the females.
“It’s maddening stuff. These geoducks can make a long day of it for you,” says Dahman. His tattered logger’s clothing and irreverent rants about biologists and bureaucrats belie the mix of genetics, mechanical engineering, global marketing and money going into this venture.
“The idea here is to grow geoducks where we’ve never been able to grow anything before. We’re still crawling at all this.”
For Dahman, the first baby steps will come this fall when he harvests the initial crop of hatchery-reared geoducks planted on his south Puget Sound tidelands outside of Shelton four years ago.
Dahman Shellfish and its neighbor, Taylor United, one of the state’s biggest shellfish growers, are believed to be the first in the U.S. commercially raising geoducks—a forerunner, predict aquaculture experts, to eventually breeding such edible if weird-looking creatures as sea cucumbers and sea urchins in the lab.
Citizens—as well as tribal members and the state—have long set aside suitable tidelands acquired by purchase, by inclusion in reservation boundaries or by dedications adjoining state lands to the cultivation of clams, oysters and other species of shellfish. The opinion we file today will open these tidelands to the harvest of commercially valuable shellfish by the Tribes in common with the citizens as a matter of treaty right.
It is now clear that the Tribes are granted access to tidelands which contain cultivated shellfish produced by the Growers. The details of how mueh and when the Tribes may harvest shellfish from such lands remains unresolved. We assign the Growers “the burden of proving pre-enhancement harvest versus post-enhancement harvest.” The district court will be faced with the application of this scheme. Our suggestion shifts the law that the party asserting a treaty right must prove that right. See, e.g., United
The tension between grower and Indian under treaty provisions is clear. One will not grow shellfish on lands bearing natural shellfish to provide subsistence to the other without compensation for the damage occurring to the cultivated shellfish. The majority asks the parties to “constructively ... work together to respect each others’ rights.” I fear the time for that has passed. The fact that the Tribes are concerned about the Growers’ “gaping loophole” to deny them access to naturally occurring shellfish by never allowing their beds to be free of oyster crops evidences the tension between the parties. Burden of proof and access issues that remain unresolved in the opinion we file today guarantee continuing disputes between the tribes and the citizens of Washington State.
Property rights, which have been undisturbed for generations, are encumbered by our decision today. In Vanhome’s Lessee v. Donnnce,
From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social compact, and, by the late Constitution of Pennsylvania, was made a fundamental law.
Property rights, so fundamental to American government, need not be trampled upon. Exclusive use of private tidelands by commercial growers should not deprive the Tribes of their treaty share of shellfish; the Tribes could be allocated half of the naturally occurring shellfish without disturbing the hard-earned and long-held property rights of private growers. Shares of the shellfish taken, of course, need not be determined by the place where the shellfish are taken.
Survival of Washington’s shellfish industry depends upon the growers’ ability to dedicate tidelands to exclusive use. This cannot be done under existing case law interpretation of the Stevens Treaties. We are, however, bound, by the authority of the Supreme Court and the law of the case, to that interpretation. Exclusive use of tidelands will be possible if the Supreme Court recognizes the shellfish proviso with respect to “cultivation” and makes clear the distinctions between migratory fish and shellfish; between fish runs and static fishing grounds; and between natural shellfish and cultivated shellfish.
II
The district court held that, upon proper showing and subject to time, place and manner restrictions, the Tribes are entitled to cross private property in order to exercise their shellfishing rights. United States v. Washington,
Fed.R.Civ.P. 53(a), which governs the appointment of special masters, states in pertinent part, “[t]he court in which any action is pending may appoint a special master therein.” Reference to a master “shall be the exception and not the rule” and shall be made “upon a showing that some exceptional condition requires it.” Burlington Northern v. Dep't of Revenue,
Referral to a special master is reviewed for an abuse of discretion. Burlington Northern,
Neutrality of the special master is also a paramount concern. In the Stevens Treaty cases, prior referrals have been to a magistrate judge, not a master selected by the parties. See, e.g., United States v. Washington,
I would hold that the special master selection process adopted by the district eourt violates due process. I would remand to the district court to make findings supporting the necessity for a master; to appoint an independent special master and to give special consideration to the appointment of a magistrate judge.
. Fishing Vessel makes this point clear. The Court held that “fish taken by treaty fisherman off the reservations and at locations other than ‘usual and accustomed' sites ... [are] to be counted as part, of the Indians' [treaty] share." Fishing Vessel,