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United States v. Washington (9th Cir. 1998)



This case involved a dispute between the State of Washington (the State), Washington Indian Tribes (the Tribes), private landowners (the Owners), and private shellfish growers (the Growers) over the extent of Indian treaty rights as they apply to shellfish harvest in Washington’s waters. In the 1850s, the United States negotiated five treaties with the Indian tribes in the Western Washington Territory. These treaties reserved the “right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”[2] The Ninth Circuit and the United States Supreme Court have held that this entitles the tribes to fifty percent of all fish in the waters of Washington State.[3] The tribes’ right to take shellfish is limited by the Shellfish Proviso: “Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens.”[4]

The district court concluded that shellfish are included in the treaty fishing rights of the Tribes. It concluded that the Tribes have a right to take fifty percent of the harvestable shellfish of every species found within the Tribes’ usual and accustomed fishing areas, except as specifically excluded by the Shellfish Proviso. The district court interpreted the proviso to exclude Tribes from artificial, or cultivated, beds. It later refined its definition of “cultivated” to preclude the tribes from harvesting shellfish on most of the commercial growers’ property. The court also placed time, place, and manner restrictions on the tribes’ ability to harvest from privately owned land. Finally, the court created a system for appointment and removal of special masters to resolve disputes between the four interested parties.

Indian tribes of the Northwest rely on fish and shellfish for commercial, subsistence, and ceremonial purposes. Treaty negotiators were aware that reserving tribal fishing rights to the Indians was crucial for clearing the way for a land settlement between the tribes and the government. At the time of the treaties, a shellfish industry was developing in the Washington Territory, of which the treaty negotiators for the United States were aware. Shellfish farmers frequently staked beds of shellfish by storing market-sized shellfish removed from other beds until they could be shipped to market. These beds would not normally support the type of shellfish stored on them. The beds’ boundaries were marked for identification purposes with stakes extending above the surface of the water at high tide.

Although shellfish were harvested almost exclusively by the tribes in the years immediately following the signing of the treaties, in 1879 the state legislature passed a law allowing citizens the exclusive right to use and harvest natural oyster beds. After Washington became a state in 1889, it passed legislation allowing private purchase of tidelands, even those containing natural shellfish beds. Evidence at trial showed that native shellfish populations have substantially declined and have been replaced by foreign species.

Previous district, Ninth Circuit, and United States Supreme Court decisions had established the nature and extent of the tribes’ off-reservation fishing rights with respect to anadromous fish. In 1989, 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. Initially, the district court interpreted the applicable treaties to give fifty percent of the shellfish harvest in Washington waters to the tribes. On August 28, 1995, the district court announced an “Implementation Plan” to execute the declaratory judgment. Because the court considered the private property owners and shellfish growers to be innocent purchasers, it invoked its equitable powers to make several rulings.

First, it ruled that when the state develops artificial beds on state-owned land to encourage recreational shellfishing, the state is acting as a “citizen” within the scope of the Shellfish Proviso. Second, the court determined that a natural shellfish bed is a bed capable of yielding a shellfish harvest that will support a commercial livelihood, and that 0.5 pounds of mature clams per square foot constitutes a “commercial livelihood.” Third, it established that the only beds subject to the tribes’ treaty rights were beds created entirely by the natural propagation of the species. Fourth, it imposed time, place, and manner restrictions on the tribes’ rights to shellfish on private properties. Finally, the court established dispute resolution procedures consisting of one special master selected by each of the four interested parties. The district court gave the masters the power to award damages against tribes who violate the Implementation Plan.

In a December 18, 1995 amendment to the Implementation Plan, the court lifted a ban on upland tribal access to shellfish beds without consent of the landowner on the condition that tribes show the absence of another means of access. It also changed its decision regarding allowing the special master to award damages against the tribes. The master could no longer award damages against the tribes themselves, but could award damages against individual tribal members.

Courts must interpret treaties based on the meaning that the treaty parties gave to the treaty terms. “Treaties are constructed more liberally than private agreements, and to ascertain their meaning we may look beyond written words to the history of the treaty, the negotiations and the practical construction adopted by the parties.”[5] The Shellfish Proviso is an exception to the tribes’ fishing rights and must be strictly construed. Treaties must be construed in favor of establishing tribal rights because of the trust relationship between the United States and the Indian tribes.

The tribes’ right to take shellfish is not limited to species harvested by the tribes at the time of the treaties. The treaties do not mention specific species or technology limitations on the tribes’ rights. The Ninth Circuit had previously held that tribal rights to fish are not limited as to species, purpose, or use of the fish, or time or manner of taking the fish.[6] At the time the treaties were negotiated, the tribes had the right to harvest any species they desired. Consequently, the fact that some species were not taken before treaty time did not mean that their right to take those species was prohibited.

Appellants first claimed that the tribes’ “usual and accustomed” fishing grounds for shellfish are not the same as the fishing grounds for other fish. The Ninth Circuit noted that modern courts considering fishing disputes under the treaties have never required species-specific findings of usual and accustomed grounds, because the locations of those grounds had been determined in previous litigation.[7] The court stated that it would be costly and difficult for each tribe to establish its usual and accustomed grounds for every species of fish and shellfish, because little documentation remains to identify historic fishing grounds. Therefore, the Ninth Circuit held that the district court had not erred in concluding that the tribes’ usual and accustomed grounds for shellfish are coextensive with the tribes’ usual and accustomed fishing grounds previously established by the courts.

Second, appellants contended that the Equal Footing Doctrine should be applied to this case. Under the Equal Footing Doctrine, every new state is entitled to enter the Union on an “equal footing” with other states. The outgrowth of this doctrine, the Shively presumption, states that any prestatehood grant of property does not include tidelands unless clearly indicated. Appellants claimed that a treaty right to harvest shellfish amounts to a property interest in the tidelands. However, the court stated that because the treaties did not specifically grant a property interest in the tidelands, the treaties should not be construed as granting rights to harvest shellfish. The Ninth Circuit explained that courts have rejected application of the Equal Footing Doctrine in the Stevens Treaties fishing rights context, and noted that appellants’ Equal Footing arguments here were also inappropriate.

Third, the Owners claimed that the tribes did not have a right to harvest shellfish on privately owned tidelands, because the treaties only gave the tribes the same right to harvest shellfish as non-Indian citizens. The court rejected this argument, noting that it was settled that Indians are not limited to rights in common with other citizens, and that the tribes were “‘given a right in the land.'”[8] Because the treaties reserved the tribes’ right to fish at their usual and accustomed grounds and stations, the tribes had the right to take shellfish from the tidelands within their usual and accustomed grounds, regardless of private or public ownership. Moreover, because the treaties represent the supreme law of the land and reserved the right to take shellfish from private tidelands, “‘neither party to the treaties may rely on the States’ regulatory powers or on property law concepts to defeat the other’s right to a ‘fairly apportioned’ share of each covered run of . . . fish.'”[9]

Fourth, the court held that the district court had correctly interpreted the meaning of the Shellfish Proviso, which prohibited the Tribes from taking shellfish from “any beds staked or cultivated by citizens.”[10] Explaining that the phrase “beds staked or cultivated” was commonly understood within the shellfishing industry at treaty time to refer to artificial beds created by citizens, the court found that the Growers’ interpretation that any bed staked or improved by labor was excluded from the treaties was inconsistent with the government’s intention to preserve tribal rights to fish. The court also stated that adopting appellants’ interpretation would essentially eliminate the reserved tribal right to harvest shellfish, and that the canons of construction and interpretation indicated that provisos should be strictly construed and treaties should be liberally construed in favor of the Indians. The Growers also claimed that the doctrine of laches should defeat the tribes’ claims to shellfish rights because the tribes did not assert their treaty rights for 135 years. However, because treaties occupy a unique position in law, the court held that the doctrine was inapplicable.

Next, the Ninth Circuit court held that the district court had improperly employed equitable principles to limit the tribes’ right to take shellfish to completely natural beds that were untouched by human labor. Instead, the court should have used its equitable powers to limit the tribes’ take, rather than the location of that take, in order to avoid unjust enrichment. The Ninth Circuit agreed that the tribes should not benefit from the shellfish growers’ enhancement efforts and that the tribes were entitled to harvest fifty percent of beds existing solely because of natural propagation of the species. The court also required growers to show what portion of their harvest on an enhanced natural bed results from their labor versus what portion would exist without their efforts. The tribes are entitled to fifty percent of the pre-enhanced sustainable shellfish production from those beds, and have no right to harvest artificial beds.

In a related issue, the Ninth Circuit upheld the decision of the district court to use equitable principles to impose time, place, and manner restrictions on the tribes’ treaty shellfishing rights when those rights are exercised on shellfish growers’ or private landowners’ property. The district court created several equitable restrictions by 1) limiting the harvest to five days per year for any private beach not controlled by a grower; 2) giving a grower the discretion to unilaterally modify the harvest plan if it is incompatible with the grower’s farming operation; 3) allowing the grower to prohibit harvest of natural clams under areas cultivated for oysters, even when no oysters are present; 4) prohibiting harvest on nongrower private tidelands without first surveying to determine the existence of shellfish populations; and 5) limiting the manner and method of such a survey to the type currently in use by the State. The Tribes argued that these restrictions are contrary to the treaties, but the district court explained that the limits imposed on the tribes’ harvest still allow them to attain their allocations without excluding them from their historic fishing grounds.

The Ninth Circuit also concluded that the district court had erred in concluding that the State of Washington is a “citizen” for purposes of the Shellfish Proviso. The court pointed out that no case law supports the idea that a state can be a citizen. Additionally, the district court had erred in fixing the minimum quantity of manila clams that would support a commercial livelihood, because there was insufficient evidence in the record to support such a conclusion.

Finally, the district court addressed the issue of the appointment of special masters to resolve disputes between the parties. The district court prohibited tribal access across privately owned upland property to reach shellfishing grounds unless access is requested from and granted by a special master and tribal members show that they can not reach the grounds by boat, road, or public right of way. On appeal, the Tribes claimed that this was an improper limitation on their fishing rights. Citing its ability to use equitable remedies to fashion relief, the Ninth Circuit stated that it was permissible for the district court to require the tribes to prove the unavailability of other forms of access before allowing them to cross private land.

The Tribes additionally objected to the district court’s decision granting to appellants the right to designate three of the four special masters, and the designating parties’ ability to remove special masters at will and without court approval. The appellate court agreed, noting that the seventy-five percent chance that appellants’ master would be selected violated due process. Accordingly, the Ninth Circuit vacated this portion of the implementation plan. On remand, the Ninth Circuit instructed the district court to reconfigure the appointment of special masters. However, the appellate court affirmed the district court’s judgment that the special masters have authority to award damages against individual tribal members, because individuals’ actions implicate their sovereign’s interests.

[1] For further discussion of United States v. Washington, see Mariel J. Combs, United States v. Washington: The Boldt Decision Reincarnated, 29 Envtl. L. __ (1999).

[2] Treaty of Medicine Creek, Dec. 26, 1854, U.S.-Nisquallys, art. III, 10 Stat. 1132, 1133 (1854).

[3] See Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1978); United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990).

[4] Treaty of Medicine Creek, supra note 298, art. III, at 1133.

[5] Choctaw Nations of Indians v. United States, 318 U.S. 423, 431-32 (1943).

[6] See generally United States v. Washington, 969 F.2d 752 (9th Cir. 1992); United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990); United States v. Washington, 520 F.2d 676 (9th Cir. 1976), .

[7] See United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).

[8] United States v. Washington, 135 F.3d 618, 634 (9th Cir. 1998) (quoting United States v. Winans, 198 U.S. 371, 381 (1905)), amended by 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

[9] Id. at 635 (quoting Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 682 (1979)).

[10] Treaty of Medicine Creek, supra note 298, art III, at 1133.

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