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

The Makah Tribe sought a determination of its usual and accustomed fishing places under an 1855 treaty. It argues that the district court applied a too stringent standard of proof and improperly substituted its judgment for that of the Special Master. We affirm.

The Makahs are primarily an ocean fishing tribe that has traditionally depended on its ocean catch for both sustenance and trade. See United States v. Washington, 384 F.Supp. 312, 363 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 , 47 L.Ed.2d 97 (1976) (the Boldt Decision). In 1855, the Makahs signed a treaty with the United States which guaranteed the Tribe’s right to fish in its “usual and accustomed grounds and stations.” Treaty of Neah Bay, Jan. 31, 1855, 12 Stat. 939 . The Tribe asserts that, at the time of the treaty, its usual and accustomed fishing grounds extended almost 100 miles out to sea.

Evidence was presented on the Tribe’s dependence on ocean fishing and on its ability to navigate great distances from the Washington coast. A report and brief testimony by Dr. Barbara Lane, an expert witness for the United States, were given substantial credence in this and…