United States v. Washington

concurring in the denial of rehearing en banc: *

The opinion in this case speaks for itself. See United States v. Washington, 853 F.3d 946 (9th Cir. 2017). We write to respond to the views of our colleagues who dissent *1019 from the decision of our court not to rehear the case en banc.

In 1854 and 1855, U.S. Superintendent of Indian Affairs and Governor of Washington Territory, Isaac I. Stevens, negotiated a series of virtually identical Treaties with the Indian Tribes that lived around Puget Sound. In return for their agreement to live on reservations, the Tribes were promised equal access to off-reservation fishing “at all usual and accustomed grounds and stations.” The Supreme Court described the importance of the promise:

Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n (“Fishing Vessel”), 443 U.S. 658, 676 , 99 S.Ct. 3055 , 61 L.Ed.2d 823 (1979).

For more than 100 years, the State of Washington deliberately and systematically prevented the Tribes from engaging in the off-reservation fishing promised under the Treaties. The State eventually came to employ surveillance planes, high powered boats, tear gas, billy clubs and guns against tribal members…

Concurrence by Judge W. FLETCHER;

Statement by

ORDER

The panel, as constituted above, has voted unanimously to deny the petition for panel rehearing. Judges Fletcher and Gould have voted to deny the petition for rehearing en banc, and Judge Ezra so recommends.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non re-cused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc, filed August 11, 2016, are DENIED.