United States v. Washington

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:

“We therefore apply the following analysis to Grower beds where the Growers, or their predecessors, began their enhancement efforts on a natural bed. For such natural beds, the Growers shall demonstrate what portion of their harvest is due to their labor, as opposed to what portion would exist absent the Growers’ enhancement. See Shellfish II., 898 F.Supp. at 1462. For such enhanced natural beds, the Tribes shall be entitled to fifty percent of the…

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 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”), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 ,…