United States v. Washington

Opinion by Judge TROTT; Concurrence by Judge BEEZER.

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 1 (the “Tribes”) and the United States (on the Tribes’ behalf) seeking a declaration of rights to shellfish under the Stevens Treaties (“Treaties”). The United States and the Tribes cross-appeal the district court’s order implementing the Tribes’ rights.

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…

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:

Treaty of Medicine Creek, December 26, 1854, 10 Stat. 1132 , Art. Ill (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 ruled that the Indian Tribes had treaty fishing rights which enti- *645 tied them to harvest up to fifty percent of fish passing through the tribes’ fishing grounds. United States v. Washington, 384 F.Supp. 312 CW-D.Wash.1974) (“Boldt Decision”), aff 'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086 , 96 S.Ct.…