The World Is Their Oyster? Interpreting the Scope of Native American Off-reservation Shellfish Rights in Washington State

• Publication year: 1999
• Citation: Vol. 23 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 1SUMMER 1999

COMMENTS

The World Is Their Oyster? Interpreting the Scope of Native American Off-Reservation Shellfish Rights in Washington State

Jason W. Anderson(fn*)

I. Introduction

In the mid-nineteenth century, Territorial Governor and Superintendent of Indian Affairs Isaac Stevens led a mission to negotiate treaties with the Native American(fn1) tribes of the Pacific Northwest. The mission resulted in several treaties, collectively known as the Stevens Treaties, including four with the tribes of the Washington Territory in 1854 and 1855.(fn2) While the primary purpose of the Stevens Treaties was to extinguish Indian claims to the lands of the Territory and clear the way for settlement,(fn3) the treaty drafters included language in the treaties reserving to the tribes various off-reservation rights, including the promise that[t]he right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens. . . .(fn4)

The tribes deemed off-reservation rights necessary to their food supply because reservation lands did not contain adequate hunting or fishing grounds.(fn5) Salmon were of great importance to the tribes for ceremonial, subsistence, and commercial purposes.(fn6) The treaty negotiators recognized this need as they drafted the treaties and included language protecting access to off-reservation food sources.(fn7)

Salmon fishing rights remain particularly important to the tribes(fn8) and have been affirmed by the courts.(fn9) After the courts recognized fishing rights, the tribes sought a declaration of their shellfish harvesting rights. The courts interpreted the right to take shellfish, such as oysters, clams, mussels, and crustaceans, as among the rights secured by the treaties by virtue of the presence of the "beds not staked or cultivated by citizens" restriction, known as the "Shellfish Proviso."(fn10)

Several factors contributed to sharp declines in tribal shellfish harvesting in the decades following the treaty signing. For instance, the number of beaches open for harvesting decreased as the State of Washington sold most of its tidelands to private parties and extensive settlement and waterfront development followed.(fn11) Consistent with this activity, state statutes, regulations, and policies limited tribal harvesting both directly and indirectly.(fn12) Thus, off-reservation tribal shellfish harvesting essentially ended relatively soon after the treaties were signed. Then, well over a century later, the tribes asserted in court that the Stevens Treaties secured to them the right to harvest shellfish from all beaches within their usual and accustomed fishing grounds, including those cultivated by shellfish growers or otherwise occupied by private landowners.

The courts essentially upheld the tribes' claims, upsetting the expectations of Washington's tideland owners and commercial shellfish growers, who had never been notified of the tribal rights. The Ninth Circuit Court of Appeals affirmed a district court opinion declaring that the treaties allow tribal members to take up to fifty-percent of the harvestable shellfish from all beaches, including those privately owned.(fn13) In reaching their conclusions, the courts relied on traditional rules of treaty interpretation, which command deference to reasonable treaty interpretations that favor the tribes.(fn14) However, courts should not exercise such deference with indifference to impacts on fundamental rights of non-Indians.

The courts recognized that although a court "cannot use equitable principles in interpreting the Treaties, it can use them in deciding how to implement the Treaties (i.e., how the tribes will be allowed to exercise their previously interpreted rights)."(fn15) However, the courts did not adequately address the extent to which the treaty interpretation rules and precedents they purported to follow allowed them to mitigate the impact of their decision on the innocent parties affected by their rulings. Courts interpreting tribal rights should employ equitable measures that adequately address the impact of their decisions, especially where such measures do not diminish the tribal rights involved. Recognizing a degree of unfairness and potential for hostile encounters, the district court used its powers of equity to create a plan to control potential inconvenience and damage.(fn16) However, because the resulting conclusion had substantial consequences for the property rights of non-Indians, the court should have further extended the reach of its equitable powers and created an implementation plan that preserved these rights, especially because this could be accomplished without affecting the tribal share of shellfish or negating the treaty signers' intent.

This Comment explores the shellfish issue in light of the Stevens Treaties and their historical context, the rules of treaty interpretation, the relevant treaty fishing cases, and the recent court decisions on the shellfish issue. Part II.A explores the magnitude of the debate, the historical background of the case, and identifies the parties involved and their diverging interests. Part II.B describes the traditional methods and rules of treaty interpretation and recognizes their application in this case. Part II.C examines the treaty fishing cases that established much of the precedent that governed the shellfish case. Part II.D outlines the relevant holdings of the district and circuit courts in the shellfish case. Part III.A scrutinizes the courts' holdings in the case, finds that the courts' analyses were cursory and subjective, and concludes that the courts should have considered alternative resolutions that would have offered enhanced protection of the interests of all parties without violating prior case law. Finally, Part III.B concludes the discussion with a solution that could have better served all of the parties while remaining consistent with the law of the case.

II. Background

A. Large Parties, High Stakes

Shellfish are embedded upon tidelands that constitute the front yards of many of Washington's waterfront homeowners and the farmlands and livelihood of its commercial shellfish growers. The shellfish decision presents a unique situation for all of the parties involved, as tribes now have a right to enter private lands and take half of the harvestable shellfish. This aspect of the decision limits the right of shellfish growers and tideland owners to exclude others from their property and the fruits of their labor. Hypothetically, if government decided to grant a right as broad as the courts declared, the grant presumably would be struck down as unduly impairing the right of property owners to exclude others. As the Supreme Court has periodically noted, the right to exclude others is "one of the most essential sticks in the bundle of rights that are commonly characterized as property."(fn17) However, the special nature of these treaties(fn18) and circumstances of the case make such a result possible even though it compels shellfish growers and tideland owners to cope with an intrusion on their property rights of constitutional magnitude-indeed, offensive to fundamental principles of fairness.

The unpleasantness of the Ninth Circuit's decision is augmented by the fact that the notion of a claim of right affecting private property was unasserted and unknown to the tideland owners and shellfish growers for over a century.(fn19) Because the rights involved were broad and fundamental, the parties involved were large and persistent. The primary interested parties in the shellfish case were the State of Washington and Washington's Native American tribes,(fn20) shellfish growers, and tideland owners.

1. Tideland Owners

The district court recognized that tideland owners were "innocent purchasers" with respect to tribal shellfish rights affecting their property.(fn21) Neither the original settlers nor future generations of property owners were aware of any outstanding claims of access to their property for shellfish harvesting. No such claim was ever asserted publicly until the tribes filed their lawsuit. As the district court acknowledged, "the State of Washington . . . sold [to] the public tidelands without notice . . . of the preexisting tribal fishing rights, and . . . the United States . . . permitted such sales to occur without taking steps to secure [the tribal] fishing rights."(fn22) Thus, the scope of these rights was not clearly defined, and since the time of initial settlement, property values, lifestyles, and land development have not reflected the existence of a broad tribal shellfishing right. Many of the homes in residential waterfront communities on Washington's Puget Sound and Hood Canal, for example, are built within feet of seawalls and high tide levels, putting the beach and shellfish beds within steps of the front door.

Some 200,000 of these property owners occupy about half of Washington's 2,000 miles of salt-water shoreline.(fn23) Although some residents harvest shellfish from...