U.S. v. State of Wash., 83-3802
| Citation | 730 F.2d 1314 |
| Decision Date | 12 April 1984 |
| Docket Number | No. 83-3802,83-3802 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Makah Indian Tribe, Plaintiff-Intervenor/Appellant, v. STATE OF WASHINGTON, et al., Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
George D. Dysart, Asst. U.S. Atty., Portland, Or., Thomas H. Pacheco, Dept. of Justice, Washington, D.C., F. Henry Habicht, II, Acting Asst. Atty. Gen., Olympia, Wash., for plaintiff-appellee.
Mason Morisset, Samuel J. Stiltner, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Seattle, Wash., for plaintiff-intervenor/appellant.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT and HUG, Circuit Judges, and EAST, * Senior district judge.
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 related proceedings. See, e.g., the Boldt Decision, 384 F.Supp. at 350 (). In addition, testimony of some elderly members of the Tribe described Makah fishing practices of almost a century ago.
Dr. Lane testified that documentation of the outer limits of the Tribe's fishery at treaty times does not exist. The only evidence from the time of the treaty was the Makah chief's statement in the official record of the treaty proceedings: "Tse-Kaw-Wooth--he wanted the sea--that was his country."
Dr. Lane's report established that the Makahs were expert seamen who could navigate at night or for several days, even in fog or beyond sight of land. They navigated by the stars, winds, and ocean swells. This Tribe had extraordinary ability to handle canoes which were seaworthy, sturdy, and fast, designed for ocean fishing, whaling, and seal hunting. The Makahs were equipped to fish far offshore, using kelp lines up to 100 fathoms long.
Dr. Lane's report cited an 1897 account of frequent Makah whaling expeditions out to 100 miles. She reasoned: "If the Makah were pursuing offshore fisheries at those distances in 1897, there is no reason to suppose that they did not have the same capability in 1855."
The three elderly tribal members, born around the turn of the century, testified as to post-treaty fishing or navigational ability. Only one of the three, Oliver Ides, testified about trips "about a hundred miles" out. When he was young, "the halibut started disappearing" so they began trolling for salmon. He also hunted seal in dugout canoes, beyond the sight of land.
The government does not dispute that the Makahs regularly fished 30-40 miles offshore, or that they were able to navigate up to 100 miles out to sea. On the contrary, the government relies on the same evidence as do the Makahs, especially Dr. Lane's conclusion that the Makahs generally fished within 30-40 miles of the shore. She stated:
Treaty time accounts report that the Makah were accustomed to fish thirty or so miles offshore and that they were known to fish in waters eighty to one hundred fathoms deep. It is reliably reported by a number of observers that they were often away for days at a time. It seems reasonable to conclude that the extent of Makah offshore fishing at treaty times was limited primarily by Makah fishing effort rather than by capability. When stocks were abundant within thirty or so miles of shore, there was little In post-treaty years, when altered circumstances made it necessary to go further offshore, as for example in the seal fishery, the Makah demonstrated that they had the capability to do so.
reason for the Makah to fish at greater distances.
This case is a part of the Northwest Indian fishing rights litigation, which is within the continuing jurisdiction of the district court. See the Boldt Decision, 384 F.Supp. at 408, 419. In 1977, the Makah Tribe filed a Request for Determination of its ocean fishing areas. Pursuant to Federal Rule of Civil Procedure 53(b), the request was referred to a Special Master for an evidentiary hearing, report, and recommendation. The Master issued a recommended order, proposed findings of fact, and conclusions of law.
His recommendation set the western boundary of the Makahs' fishing area at longitude 127? W, almost 100 miles offshore. The district court modified the proposed order and set the boundary at longitude 125? 42' W, some 40 miles offshore.
Both the district judge and the Special Master limited the Tribe's present fishing right to the area within the fisheries management jurisdiction of the United States. The Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C. Secs. 1801-1882, established a Fishery Conservation Zone (FCZ), which extends 200 miles from the American shore and in which the United States has exclusive fishery management authority. Id. Secs. 1811, 1812. Because of the Canadian border, the FCZ does not extend 200 miles due west from Washington's Cape Flattery, but angles southwestward from the Strait of Juan de Fuca.
The immediately affected area in this dispute is only the triangle bounded on the east by longitude 125? 44' W, on the south by latitude 48? 2' 15" N, and on the northwest by the boundary of the FCZ. However, the parties dispute the entire area out to longitude 127? W because of its relevance in the event of a change in the international border.
1. What standards of proof determine Indian fishing grounds?
2. What standard of review do we apply to the district court's order and the Special Master's recommendation?
3. In de novo application of law to facts, what do we find to be the Makahs' usual and accustomed fishing areas?
The Boldt Decision established "basic facts and law," including an explanation of the treaty reference to "all usual and accustomed grounds and stations." 384 F.Supp. at 330-32. "Stations" indicates fixed locations, while "grounds" refers to "larger areas which may contain numerous stations and other unspecified locations which ... could not then have been determined with specific precision and cannot now be so determined." Id. at 332. "Usual and accustomed" excludes locations used infrequently. Id.
Judge Boldt held that "every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe ... is a usual and accustomed ground or station ...." Id.
In a compilation of major post-trial substantive orders, Judge Boldt dealt with a Request for Determination of the Tulalip Tribes' usual and accustomed fishing places. United States v. Washington, 459 F.Supp. 1020, 1058-60 (W.D.Wash.1978). He noted the difficulty of the determination:
In determining usual and accustomed fishing places the court cannot follow stringent proof standards because to do so would likely preclude a finding of any such fishing areas. Little documentation of Indian fishing locations in and around 1855 exists today. The anthropological reports of Dr. Barbara Lane, which this court finds highly credible, have been very helpful in determining by direct evidence Id. at 1059. Judge Boldt also considered "the credible testimony of tribal elders who speak from personal experience or data acquired from other sources," bearing in mind the limitations of such...
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