United States of America, and Makah Indian Tribe, Plaintiff-Intervenor/appellant v. Lower Elwha Tribe, Plaintiff-Intervenor/appellee v. State of Washington

642 F.2d 1141 UNITED STATES of America et al., Plaintiffs, and Makah Indian Tribe, Plaintiff-Intervenor/Appellant, v. LOWER ELWHA TRIBE, Plaintiff-Intervenor/Appellee, v. STATE OF WASHINGTON et al., Defendants. No. 79-4066. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 11, 1980. Decided March 23, 1981. Al J. Ziontz, Seattle, Wash., argued, Moshe J. Genauer, Mason D. Morisset, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Seattle, Wash., on brief, for Makah Indian Tribe. Phillip E. Katzen, Seattle, Wash., for Lower Elwha Tribe. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT and CANBY, Circuit Judges, and PATEL, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 In 1855 the United States signed treaties with several Pacific Northwest Indian tribes, including the parties to this appeal. The tribes agreed to live on reservations but reserved "(t)he right of taking fish at usual and accustomed grounds and stations ... in common with all citizens of the United States." 1 2 Earlier in this litigation, the Supreme Court rejected the contention that the treaties merely gave Indians an equal opportunity to…