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United States v. Washington
235 F.3d 438 (9th Cir. 2000)

In a supplemental proceeding to Judge Boldt's opinion in United States v. Washington (Boldt Decision),[1] as part of the ongoing litigation over Indian fishing rights in the Pacific Northwest, the Ninth Circuit held that fish caught by the Chehalis Indian Tribe would be attributed to Washington's share of the harvest rather than against the treaty Tribes' share.[2]

In 1859, the United States ratified the Treaty of Olympia[3] with the Hoh, Quileute, and Quinault Tribes. The treaty created a reservation for the Quinaults, and under Article III, the tribes were guaranteed "[t]he right of taking fish at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory."[4] The Chehalis did not sign the Treaty of Olympia, but in 1864 the Secretary of Interior issued an executive order creating a reservation for the Tribe on the Chehalis River.[5] In 1974, the Boldt Decision allocated fishing rights between the State of Washington and the treaty tribes. The Supreme Court affirmed Judge Boldt's equitable allocation in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel).[6] In 1983, Washington initiated this suit to determine allocation of fish caught by the Chehalis Tribe on its reservation (Chehalis harvest). Washington sought to attribute the Chehalis harvest to the Tribes that signed the Treaty of Olympia, rather than to the State, contending the harvest should be counted against the treaty Tribes' share because they were caught under federally-secured fishing rights. The Quinault Indian Nation countered that the Chehalis harvest should be counted against the State's share because the Chehalis were not a party to the Treaty of Olympia. The State moved for summary judgment, but the district court deferred its order until a separate ruling of Chehalis off-reservation fishing rights was completed in 1996.[7]

In an unpublished decision, the District Court for the Western District of Washington granted summary judgment to the Quinault.[8] The district court relied on the portion of the Boldt Decision that enjoined Washington from treating any off-reservation harvests as treaty fishing, unless the court determined a treaty tribe took the harvest.[9] The district court extended this logic to on-reservation activity and concluded that because the Chehalis were not fishing under treaty rights, it was not appropriate to attribute the Chehalis harvest against the treaty Tribes; rather, the Chehalis harvest should be attributed against the State. The Ninth Circuit affirmed.

After noting that the Chehalis Tribe was not a party to the Boldt Decision and that it was one of only two tribes in Washington with a reservation created by Executive Order,[10] the Ninth Circuit adopted the principle that "no catch by non-treaty Indians should be attributed to the treaty tribes."[11] The court cited its earlier interpretation of the phrase "other citizens," noting that treaty tribes are treated differently from non-treaty tribes in fishing litigation.[12] The Ninth Circuit held that the Chehalis harvest could not be attributed to the treaty tribes.

The Ninth Circuit recognized that to apply the Chehalis harvest against the treaty tribes "would diminish the value of those treaty rights, which were secured prior to the creation of the Chehalis reservation."[13] The court applied the liberal canons of Indian treaty construction, which require that ambiguities be resolved in favor of the Indians.[14] Noting that these canons of construction apply to executive orders, the Ninth Circuit rejected Washington's argument that this would effectively diminish the rights of the treaty tribes.[15]


[1] 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975).

[2] United States v. Washington, 235 F.3d 438, 439 (9th Cir. 2000).

[3] Treaty of Olympia, Apr. 11, 1859, 12 Stat. 971, 2 Kappler 719.

[4] Id.

[5] Secretarial Order creating the Chehalis Indian Reservation, July 8, 1864, reprinted in 1 Kappler, Indian Affairs: Laws and Treaties 901, 903 (1904).

[6] 443 U.S. 658 (1979). "Both sides have a right, secured by treaty, to take a fair share of the available fish." Id. at 684-65.

[7] See Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir. 1996) (rejecting the Chehalis Tribe's claim to off-reservation fishing rights because the Chehalis were not entitled to any fishing rights under the Treaty of Olympia).

[8] United States v. Washington, 235 F.3d 438, 440 (9th Cir. 2000).

[9] Id. at 441 (citing United States v. Washington, 459 F. Supp. 1020, 1037 (W.D. Wash. 1978)).

[10] 235 F.3d at 440.

[11] Id. at 441.

[12] Id. (citing United States v. Washington, 520 F.2d 676, 682 (9th Cir. 1975)).

[13] Id. at 441-42.

[14] Id. at 442 (citing Winters v. United States, 207 U.S. 564, 576 (1908)).

[15] Id. (citing Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir. 1995); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970)).

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