Makah Indian Tribe v. Quileute Indian Tribe

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 longrunning

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

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 getgo,

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-togovernment

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.