United States v. Washington

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. III (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 concluded that the Indian Tribes had treaty fishing rights which entitled them to harvest up to fifty percent of fish passing through the tribes’ fishing grounds. United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) (“Boldt Decision”), affd; 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 ,…

Order Amending Opinion And Denying Petition For Rehearing And Rejecting Suggestion For Rehearing En Banc And Amended Opinion

ORDER

The Opinion filed January 28,1998, slip op. 783, and appearing at 135 F.3d 618 (9th Cir.1998), is amended as follows:

1. At slip op. 829, last sentence of the first full paragraph; 135 F.3d at 640, first full sentence on the page beginning with “All Grower beds ... delete the sentence and replace it with, “The other Grower beds will be subject to the allocation analysis below.”

2. At slip op. 830, first full paragraph; 135 F.3d at 640, third full paragraph beginning with “We therefore apply ... ”; delete the entire paragraph and replace it with a new paragraph and revised footnote as follows:

3.At slip op. 834, third full paragraph carrying over to p. 835; 135 F.3d at 642, third full paragraph beginning with “The Tribes argue ..delete the paragraph and replace it with five paragraphs as follows:

*638 On reflection, the Tribes’ concerns although certainly not fanciful-are based at this point on speculation as to what might happen in the future. The Growers, for example, represent that “where there are substantial economic benefits to a Grower from…