United States v. Washington: the Boldt decision reincarnated.

• Author: Combs, Mariel J.
• Position: Native American shellfishing rights

1. INTRODUCTION

   In 1854 and 1855 Northwest Indian tribes faced a formidable decision. They could either resist the rising tide of white settlement at the risk of losing everything, or they could cooperate with the United States government and negotiate to preserve some vestige of their way of life.(1) Tribes in the Washington Territory agreed to cede millions of acres of land to the United States. In exchange, the tribes reserved exclusive rights to small tracts of land and "the right of taking fish at all usual and accustomed grounds and stations ... provided however, that they [would not] take shellfish from any beds staked or cultivated by citizens."(2)

   The right to fish was crucial to tribal cooperation. Years later the United States Supreme Court recognized this right as "not much less necessary to the existence of the Indians than the atmosphere they breathed."(3) Although tribal acquiescence was critical to settlement of the Northwest, the State of Washington has often overlooked tribal interests in favor of the interest of others competing for the same fishery. The conflict explored in this Chapter(4) involves the rights to harvest shellfish and includes Washington Indian tribes, the State of Washington, private owners of coastal property, and shellfish growers.

   In the interest of economic development, the State of Washington leased or sold much of the state's tidelands to private owners and shellfish growers.(5) Many of these shellfish growers and property owners purchased their land at or before the turn of the century and believed the land to be free from encumbrances and servitudes.(6) This belief was reinforced by the tribes' failure to assert their treaty right to shellfish for over one hundred years.(7) Tribes have recently begun to exert their shellfishing rights. They wish to harvest shellfish in their "usual and accustomed" fishing grounds, including areas now privately owned. Some of these owners are commercial shellfish growers who fear that tribal harvests will interfere with their operations.(8) Some are private property owners who simply want to retain their right to exclude others from their land.(9) Tribes also wish to assert a right to state-created beds because these beds are located in areas included in the tribes' historical fishing grounds.(10) The State of Washington opposes this argument, claiming that artificial beds are excluded from the tribes' treaty right.(11)

   Because "shellfish" are "fish" within the meaning of the treaties,(12) and because there is no language in the treaties restricting harvest by species or by technology,(13) treaty rights to shellfish must be informed by the substantial body of case law addressing tribal rights to anadromous fish.(14) Courts must look to case precedent, canons of treaty interpretation, and canons of statutory construction to analyze the extent of the tribes' shellfishing right. Two United States Supreme Court cases are particularly important in this analysis. United States v. Winans(15) established that tribes reserved their fishing rights by treaty and that those rights are prior and superior to private property owners' rights.(16) Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n (Passenger Fishing Vessel)(17) established that tribes are entitled to a fifty percent allocation of the fishery resource in most circumstances.(18)

   The Court developed canons of treaty interpretation in these cases. Because of the superior bargaining position enjoyed by the United States during treaty negotiations, the canons instruct a court to construe treaties as the Indians would have understood them and to resolve ambiguities in favor of the Indians.(19) The treaties' interpretations will also depend, to a lesser extent, on the intentions of the United States in entering into the treaties.(20) Additionally, courts must adhere to the general canon of statutory construction requiring that provisos, such as the Shellfish Proviso, be narrowly construed.(21) Thus, treaty parties are freed from their obligations only when expressly stated in the proviso.

   The Ninth Circuit attempted to apply these canons of treaty interpretation and statutory construction in United States v. Washington.(22) The State of Washington, groups of private tideland property owners (the Owners), and shellfish growers (the Growers) appealed the district court's allocation of Washington's shellfish resources among these three parties and sixteen Indian tribes.(23) The Owners argued that the right to harvest shellfish did not extend to privately owned tidelands.(24) The Growers claimed that the Shellfish Proviso prohibited harvest from any bed surrounded by stakes or somehow improved by human labor.(25) The tribal parties to the litigation (the Tribes) appealed the district court's conclusion that the State of Washington was a "citizen" for purposes of the Shellfish Proviso because this conclusion prevented them from harvesting state-created shellfish beds.(26) The Ninth Circuit held that the tribes were entitled to fifty percent of naturally occurring shellfish on private owners' and shellfish growers' land, but it imposed time, place, and manner restrictions on tribal harvests.(27) The court gave shellfish growers the duty to determine the percentage of natural beds on their tidelands, and therefore, the percentage tribes may harvest.(28) It rejected the idea that Washington is a "citizen" for purposes of the Shellfish Proviso, taking a literal view of the treaty language prohibiting tribal harvest on beds "staked or cultivated by citizens."(29)

   Based on case law, canons of treaty interpretation, and statutory construction, the Ninth Circuit erred in its allocation of Washington's shellfish resources. First, the court improperly imposed time, place, and manner restrictions on the tribes' right to access their historic fishing grounds. Second, it incorrectly gave shellfish growers the authority to determine the extent of the treaty right on their property. Finally, it incorrectly determined that the Shellfish Proviso did not apply to the State of Washington.

   This Chapter explores the Ninth Circuit's resolution of the nature and extent of tribal shell fishing rights as limited by the Shellfish Proviso. Part II begins by exploring the historical context of treaty fishing rights in general and shellfishing rights in particular. It examines posttreaty litigation leading up to United States v. Washington and explores the short but complicated history of the shellfish controversy. Part III discusses the conflict between private property rights and treaty rights and identifies the canons of treaty interpretation and statutory construction that courts must use to resolve the issue. Part IV takes a closer look at the Ninth Circuit's holding in United States v. Washington and concludes that the court ignored the canon of treaty construction requiring it to give effect to the treaty parties' intentions when it allocated fifty percent of the state-created shellfish harvest to the tribes. The Ninth Circuit dismissed the mandate that courts may not limit tribes' access to fisheries on private owners' land.(30) Additionally, the court improperly employed equitable principles of law to determine the extent of the tribal shellfishing right. The court abused its discretion when it imposed shellfishing restrictions that actually impair the tribes' ability to harvest their treaty allocation. The court's flawed analysis has produced a complex implementation plan that creates unnecessary hardship for all parties involved. If the court had appropriately applied the canons of construction, the parties would have a clearer understanding of their rights and obligations under the treaty, and the court could have developed a less complicated, more effective implementation plan.

2. TRIBAL TREATY RIGHTS: PAST AND PRESENT

   1. Historical Perspective

      1. The Stevens Treaties

         In order to facilitate white settlement, the United States government sought to peacefully extinguish Indian claims to land in the region west of the Cascade Mountains and north of the Columbia River.(31) Legal title to the land was an essential component of this plan.(32) Isaac Stevens, the first Governor and Superintendent of Indian Affairs of Washington Territory, first identified the need to make treaties with Northwest Indian tribes.(33) The Commissioner of Indian Affairs appointed Stevens to unite the many different bands in Washington Territory into tribes and to negotiate treaties with them.(34) George Gibbs, a lawyer and ethnologist, assisted Stevens in organizing the tribes into political bodies specifically for the purpose of negotiating these treaties and in naming chiefs and subchiefs who were more receptive to white settlement.(35) This strategic unification of bands gave the government an edge in each negotiation.

         Both sides emphasized the tribes' dependence on fishing.(36) Although the federal government strove to assimilate Indians into western culture by encouraging them to farm, it did not intend to prevent the tribes from economically benefiting from fishing.(37) The tribes, dependent on fishing as a way of life, insisted on retaining access to their fishing grounds.(38) In exchange for the relinquishment of claims to vast tracts of land and a modest monetary payment, the tribes retained "[t]he right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory ... [p]rovided, however, [t]hat they [would] not take shellfish from any beds staked or cultivated by citizens."(39) Considering the tribes' dependence on the fishery, it is unlikely that the tribes would have signed the treaties absent such an express guarantee of fishing rights. The tribes understood that non-Indians would have the right to fish at their off-reservation fishing sites, but there is no evidence that they considered this a significant limitation.(40) The abundance of the...