United States v. Washington: the Boldt decision reincarnated.

I. 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.

II. TRIBAL TREATY RIGHTS: PAST AND PRESENT

A. 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 salmon fishery and the area's sparse population prevented either side from considering the other's interference in its share of the resource.(41)

Language was a significant barrier to the negotiations.(42) United States representatives set the terms of the negotiations in English for their own benefit.(43) Because the majority of Indians at the treaty councils did not speak or understand English, the Indians rarely knew what was actually written on the paper laid in front of them.(44) To compensate for this disadvantage, treaty provisions and statements by treaty commissioners were interpreted to the Indians in Chinook jargon and then translated into native languages by Indian interpreters.(45) However, the Chinook jargon was a trade language of limited vocabulary and could not adequately or precisely convey the legal effects of the treaties.(46)

The treaties negotiated between the United States government and the Indian tribes in Washington Territory can be succinctly described as monumental land transactions preserving off-reservation tribal fishing rights in exchange for vast tracts of land. Although the minutes of the treaty negotiations do not reveal any specific discussion of the Shellfish Proviso, the United States was aware that the Indians used and relied on shellfish for subsistence, ceremonial, and commercial purposes.(47) There is no record that the Indians protested the Shellfish Proviso.(48) This indicates that the tribes considered it a minor limitation on their secured treaty right.(49) The tribes were encouraged to rely and did rely on the United States to protect their fishing rights, including shellfishing rights.(50)

2. Posttreaty Litigation

For several decades the size of the fishery allowed all tribes to freely exercise their fishing and shellfish gathering rights in the same manner as they had before the time of the treaty.(51) It was not until after non-Indian population growth and technical advances in canning at the end of the nineteenth century that non-Indians began to dominate the migratory fisheries and exclude the Indians.(52) In 1895, the State of Washington, spurred by population growth, passed legislation allowing private purchase of tidelands, even those containing natural shellfish beds.(53) This contributed to the gradual exclusion of Indians from their historic shellfish beds.(54) Additionally, state fishing regulations in the early twentieth century enacted in the name of conservation were often used to protect the non-Indian fisheries to the detriment of tribal fisheries.(55) Because tribes were often last in line to harvest fish as they returned from the ocean, they could essentially be denied their fishing rights if the state closed the fishery to conserve the species.(56) The tribes, with the United States as their trustee filing the litigation, finally began to fight back in the courts to establish the scope and meaning of their reserved treaty fights.

The first case to define the scope of a Stevens Treaty involved a conflict between Yakama fishers and Taylor, a non-Indian farmer.(57) Taylor built a fence to protect his crops from trampling during fishing season, thus preventing access to historic Columbia River fishing grounds.(58) The court ordered him to allow Indians access to the area, notwithstanding a federal land patent that failed to mention the Indians' treaty right.(59) The territorial court required a liberal interpretation of the treaty rights to give effect to what the Indians would have intended when the treaty was signed.(60) The court also determined that the fight to fish was a fight exercised by the Indians before they signed the treaty.(61)

A landmark case filed to define the extent of tribal fishing fights was United States v. Winans.(62) The State of Washington granted the Winans a license to maintain fish wheels in the Columbia River, to the exclusion of Indian fishers.(63) The controversy was whether the treaty right granting the Indians the right of taking fish at all "usual and accustomed" places, "in common with citizens of the territory," limited tribes to the same access rights as non-Indians.(64) Non-Indian rights could legally be restricted by the actions of a private property owner under state law. The court determined that it would

   construe a treaty with the Indians as "[the] unlettered people" understood
   it, and "as justice and reason demand, in all cases where power is exerted
   by the strong over those to whom they owe care and protection," and
   counterpoise the inequality "by the superior justice which looks only to
   the substance of the right without regard to technical rules."(65)

The treaty secured to the Indians the right to fish at usual and accustomed places, and future ownership of the lands could not extinguish that right.(66)

In Seufert Bros. v. United States,(67) the Court expanded the Winans doctrine. It declined to interpret the treaty language as limiting access to only those "usual and accustomed" fishing grounds expressly mentioned in the treaties.(68) A salmon packing company claimed that Winans only applied to lands ceded in the treaties (lands north of the Columbia River) and sought to exclude Indian fishers from the south side of the river.(69) The Court declined to use technical rules to prevent Indians from accessing the fishing grounds from the north and south sides of the river and followed the doctrine set forth in Winans that treaties should be interpreted as the tribes understood them.(70) In this case, the tribes would have understood the treaties as guaranteeing access to the fishery, regardless of the route.

The State of Washington continued to challenge the extent of tribal treaty rights, leading tribes or individual members back to court. In Tulee v. Washington(71) an Indian fisherman contested his conviction of net fishing without a license. The state argued that its broad powers to conserve the resource allowed it to regulate any off-reservation fishing.(72) The court limited state regulation to time and manner restrictions necessary for the conservation of the fishery.(73) The court stressed its responsibility to see that the terms of the treaty were interpreted according to the meaning understood by tribal representatives at the treaty negotiations.(74) Further, the court's interpretation must be consistent with the obligation of the United States to protect the Indians.(75) Therefore the license fee was improper because it had both regulatory and fee generating objectives and the state's conservation goals could be accomplished in other ways. The license was essentially a fee for exercising the rights retained by the treaty.(76)

More than two decades later, the Puyallup and Nisqually Tribes entered a long legal battle, protesting Washington's prohibition of fixed or set fishing nets, the traditional manner of fishing employed by those Tribes.(77) Because the treaty did not address the manner of fishing, and only guaranteed access in common with other citizens, the Supreme Court determined that the state could regulate "the manner of fishing, the size of the take, the restriction of commercial fishing, and the like ... in the interest of conservation" if the regulation was not discriminatory against the Indians.(78) Time and manner restrictions necessary for the conservation of fish were within the state's regulatory power.(79) The Court left the issue of whether these restrictions were reasonable and necessary to conserve the fish runs to be decided by the state courts.(80)

The Supreme Court reconsidered this issue when Washington, in the interest of conservation, banned steelhead fishing by net on the Puyallup River while allowing hook-and-line fishing.(81) The Court found the regulation to be discriminatory because it essentially prevented tribal harvest while allowing non-Indians to fish.(82) The third case in the series of cases regarding the Puyallup Tribe and fishing fights approved a state court allocation of fishing fights in the Puyallup River.(83)

A similar case, Sohappy v. Smith,(84) evolved in Oregon. Yakama Indians, joined by the federal government, challenged Oregon regulations limiting Columbia River harvests above the Dalles Dam to hook-and-line fishing, closing the river to net fishing used by Indians. Oregon, like Washington, also interpreted the treaty fishing fights as granting Indians the same fights granted to other citizens of the state.(85) After recognizing that a state may regulate the fishery (including time and manner regulations) if it is reasonable and necessary to conserve fish runs, the court pointed out that allocation of the fishery was made between two groups--commercial fishermen and sport fishermen--and determined that the allocation must also include Indians, who were entitled to a fair share of the resource.(86) The court agreed with the Tribes that treaty fishing must be dealt with separately from fishing by others(87) and held that tribes should be able to meaningfully participate in the regulatory rulemaking process.(88)

3. The United States v. Washington Litigation

As previously discussed, the struggle to define the extent of tribal fishing fights in Washington has included allocations of anadromous fish, the fight of access to tribal fisheries, freedom from burdensome and discriminatory state regulations, and recognition that the tribal fight was distinct from and legally different than that of non-Indians.(89) Over the years, litigation has produced a significant body of case law, which attempts to define the extent of the tribal fishery. The principles articulated in what has become known as Phase I(90) and Phase II(91) of this litigation again concerned the interpretation of "the fight to take fish" language of the Stevens Treaties, and set the legal framework for the third phase of the litigation, which dealt explicitly with the Shellfish Proviso.(92)

The conflict over the extent of off-reservation tribal fishing rights came to a head in 1970 when the United States, on its own behalf and as trustee for several western Washington Indian tribes, filed a complaint against the State of Washington.(93) Additional tribes later joined the suit. The State Department of Fisheries, the State Game Commission, their respective directors, and the Washington Reef Net Owners Association were included as defendants.(94) The complexities of the litigation required bifurcation into two separate phases. Phase I decisions allocated the fishery among treaty and nontreaty fishers.(95) Attached to this allocation was the condition that neither party deprive the other of a fair share of the fish.(96) Additionally, courts retained the power to adjust the tribal allocation downward as long as tribes were able to maintain a moderate living standard (i. e., a livelihood).(97) Phase II decisions adapted the previously determined allocation to modern conditions.(98) Hatchery fish became part of the allocation, and states were relieved of the duty to either maintain salmon habitat or prevent others from damaging it.(99) This lengthy, complex litigation ultimately generated a third phase dealing with allocation of Washington's shellfish.(100)

a. Phase I

The conflict described above resulted in an influential district court decision that set the tone for subsequent litigation. The decision, handed down in 1974 by Judge George Boldt, defined the extent of off-reservation tribal fishing rights and has come to be known as "The Boldt Decision."(101) The court determined that every regulation of treaty right fishing must be limited to measures that had been established by the state, "either to the satisfaction of all affected tribes or upon hearing by or under direction of this court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish."(102) The court defined "reasonable" as those conservation measures "appropriate to [their] purpose," and "necessary" as "essential to conservation."(103)

The court found the right to take fish "in common with all citizens"(104) as superior to the privilege of other citizens to fish at the same places subject to any limitation the exercise of treaty fishing rights might require.(105) The court put the burden on state defendants to take appropriate steps to ensure that Indian and non-Indian fishers had an opportunity for equal sharing in the harvest of every species of fish the tribes were able to harvest at treaty time at their usual and accustomed places.(106)

Judge Boldt followed the canon of treaty construction that requires courts to construe ambiguities in favor of the Indians and found that "usual and accustomed" fishing grounds included any grounds customarily used by Indian fishers "from time to time."(107) The court required state defendants to base equal allocation of the fishery on the total number of fish within the jurisdiction of the state that would be available for harvest, absent harvest en route, at the tribes' usual and accustomed fishing grounds.(108) The court also placed a burden on the state to adjust this share from time to time based on the number of fish harvested beyond the jurisdiction of the state,(109) Fish taken for ceremonial uses or subsistence were excluded from the share of fish reserved by treaty.(110) The court favored a cooperative approach between the state and the tribes to come to a consensus on any state regulations imposed on the tribes.(111)

The court struck down the state's regulatory program as discriminatory against tribal fishers because it did not give treaty Indians an opportunity to take an equal share of the harvestable fish.(112) Based on the canon of treaty interpretation that requires courts to construe treaties as they would have been understood by the Indians, Judge Boldt found that the tribes would have expected to take up to fifty percent of the harvestable number of fish at usual and accustomed fishing grounds.(113) The court stated that "[t]he protection of the treaty rights of the tribes to take fish at their usual and accustomed places must be an objective of the State's regulatory policy co-equal with the preservation and propagation of fish runs for other users."(114) The court required state regulatory agencies to make specific regulations restricting time, place, species, and gear, and to provide a "full, fair, and public consideration" of the need for prohibiting the harvest of future fish runs.(115)

The court of appeals affirmed the Boldt Decision in 1975(116) and reiterated that regulation of treaty Indian fishing for conservation is allowed only after the state is unable to preserve a run by prohibiting the harvest of fish runs by other citizens.(117) The court reasoned that a fifty-fifty apportionment of the resource reflects the position of the two bargaining parties at the time of the treaty negotiations and fairly accomplishes what the tribal parties would have expected if an allocation of the fishery resource would have been considered at treaty time.(118) is The court of appeals made a minor adjustment to the lower court's decision, holding that the equitable adjustment made from time to time to account for fish taken outside Washington State jurisdiction would no longer take into account fish taken by non-Washington citizens.(119)

The Supreme Court substantially affirmed the principles of the Boldt Decision in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n (Passenger Fishing Vessel),(120) landmark case emphasizing the canons of treaty interpretation and the importance of construing treaties as the Indians would have understood them. The case made its way to the Supreme Court after the Fisheries and Game Departments of Washington defied the district court's orders to promulgate and enforce regulations in compliance with its decree.(121) Passenger Fishing Vessel has since become a cornerstone, underlying the resolution of several treaty fights disputes.

The Court emphasized the canon of treaty interpretation mandating that the parties' intentions control treaty interpretation.(122) Here, the United States had superior negotiating skills and knowledge of the treaty language and therefore had the responsibility to negotiate in good faith.(123) The Court placed great importance on the Indians' understanding of the phrase "in common with" in light of how they would have understood other words in the treaty.(124) Because the salmon runs were predictable in certain locations, the "fight of taking fish" meant more than the fight to try to catch fish.(125) The Court held that treaty and nontreaty fishers have equal rights to fish in the sense that neither party may deprive the other of a fair share of the runs.(126) In addition, non-Indians could not rely on property law concepts to deprive Indians of their share of the runs, and Indians could not use their exclusive right of access to extinguish the rights of other citizens.(127)

The Court introduced a new element into the fifty-fifty allocation established by the district court. It approved the previously-established fifty percent maximum and established the principle that treaty rights secured the percentage of the fish run necessary to provide the Indians with a moderate living, or a livelihood.(128) It reversed the district court's determination that fish taken on the reservation and fish taken for ceremonial uses and subsistence should not be considered in the allocation of the fishery.(129) Thus, the total catch became the measure of each party's right.(130)

b. Phase II

Due to the bifurcated nature of United States v. Washington, the conclusion of Phase I left some key issues unresolved. Two questions of particular contention were whether hatchery fish were included in the tribes' fair share allocation, and whether and to what extent states were responsible for preventing the degradation of fish habitat in order to ensure tribes their moderate living needs. Again, the tribes turned to the courts.(131)

Unlike the "in common with" language that assisted the courts in Phase I, no express language in the Stevens Treaties alluded to either the impact of hatcheries on the treaty right or any modern environmental issues such as how to allocate a depleted resource between interested parties.(132) Therefore, the court relied on canons of treaty interpretation to give effect to the treaties' implicit meaning regarding those issues.(133)

Based on both the circumstances surrounding the treaty negotiations and the rule stated in Passenger Fishing Vessel that the treaties guaranteed the tribes an adequate supply of fish, the district court concluded that all hatchery fish must be included in determining the tribes' treaty share.(134) This ruling satisfied the canon of treaty interpretation that requires the court to give effect to the treaty negotiators' intent.(135)

The court reasoned that the right of taking fish was crucial to the cooperation of the Indians in negotiating the Stevens Treaties. The only express limitation on that right is the requirement to share the resource "in common with" other citizens.(136) Litigation has established several implicit limitations on the right of taking fish, including state regulation that is reasonable and necessary for conservation, the physical availability of fish, and the tribes' moderate living standards.(137) Following Passenger Fishing Vessel's interpretation of Winans, the court concluded that because hatchery-bred fish constituted an increasing percentage of the total harvestable run size, they must be included in the tribes' allocation in order to ensure the tribes a share of the fish.(138)

The district court held that the tribes' fishing rights included the right to have treaty fish protected from environmental degradation, but the court of appeals later rejected this determination.(139) Because the treaty secured the fight to take fish in perpetuity, the district court found that the state had a duty to ensure that the proper habitat existed for the perpetuation of the various species.(140) The district court relied on the principle that neither party to the treaties may act to destroy the fishery.(141) Additionally, the state bore the negative duty under the Supremacy Clause not to violate federal fights, including those secured by treaty, by approving actions that would adversely affect the tribes' treaty right.(142)

B. United States v. Washington, Phase III: The Shellfish Proviso

The third and most recent phase of the treaty fights controversy in Washington involves allocation of the shellfish resource. Although the "right of taking fish, at all usual and accustomed"(143) locations historically raised conflicts between tribes and other users of the anadromous fish resource, this language also includes the right to take shellfish.(44) Similar to the anadromous fish controversy, this secured treaty fight has not gone unchallenged.(145)

1. The Shellfish Proviso and its Legal Implications

The Stevens Treaties, while granting tribes an unlimited right to take fish at all usual and accustomed places, all include a Shellfish Proviso limiting the right to take shellfish.(146) This proviso, which is substantially the same in all the Stevens Treaties, reads as follows: "[P]rovided, however, [t]hat [the Indians] shall not take shell fish from any beds staked or cultivated by citizens."(147) The proviso has been interpreted so that the treaty right to take fish includes the right to take shellfish.(148) Otherwise the proviso would not serve any purpose.(149)

The extent of the shellfish gathering right is not limited to the species of fish the tribes actually took before signing the treaties. When they signed the treaties, the tribes had the right to take any species they desired. The right of taking fish must be interpreted as a retention of tribal rights. Therefore, the fact that some species were not taken at treaty time does not preclude their harvest today.(150) The canons of treaty construction prevent courts from putting any limitation on the right without finding supporting language in the treaty.(151) The only language limiting the Indians' treaty right to fish is the Shellfish Proviso.(152)

2. Competing Interests

The shellfish industry in Washington affects several different groups. Harvesters include Indian and non-Indian commercial harvesters, recreational harvesters, and commercial growers (aquaculturists).(153) Washington is second only to Louisiana in nationwide oyster production.(154) Washington Department of Fisheries data shows that commercial harvest of clams, mussels, and oysters, excluding aquaculture harvests, contributed more than twenty million dollars to the state's economy in 1997.(155) Although the aquaculture industry does not have a substantial impact on the overall economy of Washington, it tends to affect significantly the area in which the industry is located.(156) The average annual value of the recreational harvest of oysters and clams in Puget Sound from 1990 to 1995 is estimated to be between two and three million dollars.(157)

The United States v. Washington controversy began when Indian tribes began to assert their claimed treaty right to harvest shellfish within their "usual and accustomed grounds and stations."(158) Some of these grounds and stations are now privately owned. Property owners and shellfish growers protested tribal access to their land.(159) They claimed interference with their use and enjoyment of the land.(160) The shellfish growers were specifically concerned with the impact of tribal harvests on their profitable shellfish beds.(161) The State of Washington has become involved in creating artificial beds for the recreational enjoyment of its citizens.(162) It asserted that tribal shellfish gathering rights on these beds should be limited to the same rights held by other citizens of the state.(163)

3. "Staked or Cultivated" vs. "Artificial" Shellfish Beds

Because the Shellfish Proviso prohibits taking shellfish from any beds "staked or cultivated" by citizens, the litigation focused on the issue of what constitutes staked or cultivated shellfish beds.(164) In Shellfish I, a group of shellfish growers (the Growers) argued that the terms "staked" and "cultivated" should be interpreted according to their dictionary definitions.(165) Under these definitions, the Growers argued that any shellfish bed surrounded by stakes or somehow improved by shellfish growers would be off-limits to the tribes.(166) A group of property owners (the Owners) went even further, arguing that "staked" should be read in a frontier context as synonymous with "claimed as private property."(167) Under this definition, all beds located on privately owned tideland would therefore be considered staked or cultivated and off-limits to the tribes.

The tribes involved in the litigation (the Tribes) argued that staked and cultivated should be read as the terms were used in the shellfishing industry at treaty time. One source described shellfish beds as "the bank, reef or deposit of oysters in the water, either growing naturally or artificially, original or transplanted."(168) "Staked" was a term commonly used at treaty time to mean the planting of stakes or other markers to identify the boundaries of the beds.(169) "Cultivated" was narrowly defined at treaty time. According to two sources relied upon in Shellfish I, cultivation is the "modification of natural conditions" after oysters have been planted or transplanted in an artificial bed.(170) At treaty time, almost all individual state shellfishing laws prohibited staking or cultivating natural shellfish beds.(171)

4. Initial Shellfish Litigation Decisions

a. Shellfish I

In Shellfish I, the court found the Tribes' interpretation of the Shellfish Proviso most consistent with the United States's purposes in entering into the treaties--to facilitate white settlement through peaceful negotiations and to preserve ancient tribal fishing rights in order to prevent tribes from becoming dependent on the federal government.(172) The Owners' and the Growers' interpretations of the proviso did not conform with the preservation of these fishing rights. In light of the tribes' objective to maintain the means to sustain their livelihood, the court rejected the Growers' and the Owners' proposed definitions of the terms "staked" and "cultivated."(173)

The court focused on what the Indians and the United States intended and understood at treaty time.(174) According to the court, the Indians intended to reserve the right to fish as they always had.(175) Because the record lacked any objections or concerns over exclusion from ancient shellfish fisheries, and because only artificially-planted beds were staked or cultivated at treaty time, the court concluded that it was unlikely that the Indians understood the proviso to exclude them from any natural shellfish beds.(176) According to the court, the United States intended to act in good faith toward the Indians.(177) The federal government intended to clear the way for immediate white settlement and long-term development of the Northwest through peaceful negotiations with the tribes. These negotiations included the promise that Indians would retain their fishing rights.(178) The court found that the treaty negotiators for the United States were familiar with both the East Coast shellfish industry and local industry practice.(179) The East Coast industry followed a set of laws and practices that rarely resulted in staking or cultivating natural oyster beds, and the local industry never staked or cultivated natural beds.(180) Because of this knowledge, and because of the intentions of the United States to act in good faith to preserve the tribal fishery, the court concluded that the United States negotiators would not have understood the Shellfish Proviso to exclude Indians from natural beds.(181)

The court concluded that "staked" or "cultivated" should be interpreted according to their uses at treaty time.(182) Accordingly, only artificial beds could be staked or cultivated, and shellfish growers' beds fell within the restrictions of the Shellfish Proviso.(183) Therefore, these beds were not subject to harvest by the tribes except to the extent that natural clam beds were subjacent to the artificial oyster beds.(184) The court found that natural beds on private owners' tideland property were not "staked or cultivated" and were part of the tribal fishery.(185)

To determine the allocation of shellfishing rights to naturally-occurring clams under artificial oyster beds, the court relied on the historical context of the treaty, the principle that ambiguities must be resolved in favor of the Indians, and the reservation of rights doctrine.(186) The Tribes argued that because natural beds were not within the ambit of the Shellfish Proviso, they were entitled to fifty percent of naturally occurring clams that existed underneath artificial oyster beds.(187) In opposition, the Growers argued that because the clams were "shellfish," and because the natural clams would be harvested from "staked or cultivated" beds, the Shellfish Proviso prohibited their harvest.(188)

To resolve the issue, the court once again looked to common treaty time practices. The court found that it was common at treaty time for Indians and others to legally harvest clams from natural clam beds existing beneath artificial shellfish beds.(189) Therefore, it concluded that the tribes reserved the right to continue to harvest in this manner.(190)

The Growers, the Owners, and the State of Washington advanced another argument against allowing the tribes access to shellfish. They claimed that the tribes did not need to exercise any treaty right to shellfish in order to maintain a "moderate living."(191) As discussed above, the United States Supreme Court held in Passenger Fishing Vessel that the fifty percent allocation established in the Boldt Decision could be reduced "if substantial changes in circumstances had occurred, such as if the tribe [had] dwindled to only a few members, or if the tribe had voluntarily abandoned its fisheries."(192) In Shellfish I, the court found no persuasive evidence showing that such a change had occurred in the tribes' circumstances.(193) It relied on the Tribes' economic expert who produced evidence that tribal members' standard of living fell far below that of other Washington citizens.(194) The court found that the tribes could not maintain a moderate living without exercising their fishing rights, and that the tribes were entitled to fifty percent of the fishery, as established in the Boldt Decision and Passenger Fishing Vessel.(195)

b. Shellfish II

In Shellfish II, the district court attempted to create an implementation plan that would follow the Shellfish I decision.(196) The court applied its equitable powers to create a plan that would balance the treaty right and the shellfish growers' and private landowners' interests. It did so on the grounds that shellfish growers and tideland owners were innocent purchasers when they acquired the property, without notice of the existence of a tribal shellfish right.(197) Significant aspects of the plan included 1) the prohibition of tribal harvest from beds planted on public lands that would not exist without the state's efforts; 2) the shellfish growers' power to deny tribal harvests under certain circumstances; 3) the tribal duty to survey private property to prove the existence of natural beds; 4) the imposition of time, place, and manner restrictions on tribal harvests from private property; and 5) the establishment of a dispute resolution scheme in which each interested party was allowed to designate one person as a special master.(198)

To reach that conclusion, the court first categorized the tribes' shellfishing right as a property interest which is less than a fee simple interest in the land and therefore entitled to less protection than land ownership.(199) Second, it determined that monetary relief to the tribes would not adequately' provide relief for the loss of their fishing rights.(200) Third, it found that the more than one-hundred-year delay in exercising their rights, along with the innocent purchaser status of the shellfish growers and private owners, weighed against absolute injunctive relief for the Tribes.(201) Finally, it determined that the fault for creating the controversy rested with both the state for selling the tidelands and the United States for not objecting to the sale.(202) The court balanced the tribes' interests with the interests of the growers and owners and found that the growers' and the owners' interests in the quiet enjoyment and commercial development of the land outweighed the tribes' unfettered right to shellfish.(203) Accordingly, the court determined that the tribes' shellfishing right should be subject to reasonable time, place, and manner restrictions when shellfish beds occur on shellfish growers' or private owners' property.(204)

The court applied equitable principles of law to find that the State of Washington was a "citizen" for purposes of the Shellfish Proviso.(205) The court determined that inclusion of the Shellfish Proviso in the Stevens Treaties showed treaty negotiators' intent to protect and promote the development of a shellfish industry for the benefit of the public.(206) The court found that the state represented the recreational shell fishing interests of the public when it defended non-Indian citizens' rights not to have their allocation impermissibly reduced.(207) Thus, the court broadened the Shellfish Proviso to include the State of Washington in its definition of citizen when the state created artificial beds to enhance recreational activities for the public.(208) The court based its decision on the equitable argument that allowing a state to act on its citizens' behalf outweighs any tribal interest in having the definition of citizen restricted to natural persons.(209) Therefore, any artificial beds created by the state were considered staked or cultivated and excluded from the tribes' treaty right.(210)

After Shellfish I established that natural beds could not be staked or cultivated, the court in Shellfish II defined a natural shellfish bed as capable of supporting a commercial livelihood.(211) It also established a quantifiable minimum of manila clams per square foot that would satisfy this standard.(212) Beds with clam densities below this minimum would not meet the definition of natural bed.(213) These beds could therefore not be staked or cultivated and were excluded from the tribes' fishery.

The court did not want the tribes to benefit from the shellfish growers' efforts to enhance the shellfish beds. Moreover, it was aware that it would be difficult to determine which shellfish beds would exist if shellfish farmers had never begun their farming activities.(214) It found that only those beds whose existence was entirely due to the natural propagation of the species were subject to the tribes' treaty right.(215) Beds enhanced by the growers' positive efforts, such as netting or seeding existing beds; beds enhanced by growers' preventive efforts, such as predator control; and beds whose existence was due to growers' passive efforts, such as natural migration of shellfish from an artificial bed to a new location, were off-limits to the tribes.(216)

The court proposed an implementation plan to promote cooperative management of the shellfish resource subject to the tribes' treaty rights.(217) One significant aspect of this plan was that oysters planted on public lands that would not exist without the state's efforts were not subject to tribal harvest.(218) Also, under circumstances in which harvest of clams underneath oyster beds would interfere with the oyster crop, and when the grower had chosen not to harvest the clams, the grower could deny tribal harvest of the underlying clams.(219)

Regarding harvest on private land, tribes bore the burden of surveying the tidelands to determine whether natural beds existed.(220) No harvest could take place before a survey was completed, and the harvest was confined to five days per year for property less than two hundred feet wide at beach front, with additional days added for every additional fifty feet of beachfront property.(221) Night harvest was allowed only if necessary, and no upland access to the private tidelands was permitted by the implementation plan, unless approved by the property owner.(222) Additionally, notice was required before harvest occurred.(223)

One other significant aspect of the implementation plan was its dispute resolution scheme.(224) Each party (the Tribes, the State, the Growers, and the Owners) was allowed to designate a person to act as a special master to serve on the dispute resolution panel. A random drawing determined which special master would hear and determine each dispute referred to this selected panel of four.(225) The plan gave the selected special masters the power to order a tribe to pay damages or to implement other appropriate remedies.(226)

c. Shellfish III

The United States and the Tribes moved to alter five aspects of the Implementation Order described in Shellfish II. The appellants argued that 1) the selection process of special masters was flawed, 2) the denial of tribal access across private land was in conflict with Supreme Court precedent, 3) the minimum density figure of manila clams was not supported by evidence, 4) the broad definition of cultivated shellfish beds was unfair, and 5) the section allowing special masters to impose damages against tribes was legally impermissible under the doctrine of tribal sovereign immunity.(227) The Tribes argued that the special master selection process was flawed first, because it tilted the pool of masters three to one against the tribes; second, because it violated Federal Rule of Civil Procedure 53,(228) which calls for selection of the master by the court, not private parties; and third, because it violated the tribes' due process fights by having their disputes resolved before biased decision makers, without judicial review.(229)

The court granted the motion as to the selection process of special masters based on Federal Rule of Civil Procedure 53, and made selection of a special master subject to approval by the court, rather than allowing selection by the parties alone.(230) Regarding denial of tideland access across public property, the court referred to United States v. Winans(231) to justify its holding that tribes were entitled to cross private property to exercise their treaty right, but only after they showed a need for such land access (i.e., no tideland access by boat, public road, or public right-of-way).(232) The court also determined that because of tribal sovereign immunity, tribes were immune from the imposition of damages.(233)

The court denied the motion to amend the minimum density of manila clams necessary to constitute a natural shellfish bed and the definition of a "cultivated bed."(234) In the absence of new evidence, the Tribes' only legal basis for altering or amending the implementation order was manifest unjustness.(235) The court held that there would be no manifest unjustness to the tribes if the density figure remained unadjusted.(236) This same rationale prevented the court from granting the motion as to the definition of a "cultivated bed."(237) The Tribes argued that it was possible to determine the precultivation densities of the beds, but the court rejected this contention, stating that the argument had already been made and rejected in Shellfish II.(238)

d. The Shellfish Cases Reach the Ninth Circuit

In 1997, the State of Washington, the Growers, and the Owners appealed the district court's opinions in Shellfish I and Shellfish II, and the United States and the Tribes cross-appealed the implementation order.(239) within the span of nine months, the Ninth Circuit heard the appeal and then amended its original opinion.(240) Many important issues were addressed and resolved in these two proceedings, including the following: 1) the court rejected the Owners' argument that the Indians were limited to the same harvest rights as other citizens; 2) the court upheld the lower court's finding that at treaty time, only artificial beds were staked or cultivated; 3) the court agreed with the Tribes that it should not apply the doctrine of laches to defeat a tribal claim to shellfish; 4) the court rejected the district court's use of equitable powers to redefine the terms of the treaty; 5) the court recognized a fifty percent allocation of all shellfish on natural beds to the tribes; 6) the court found that the State of Washington could not be considered a "citizen" for purposes of the Shellfish Proviso; 7) the court rejected the lower court's determination of the minimum density of clams necessary to sustain a commercial livelihood; 8) the court approved time, place, and manner restrictions on the tribes' right to harvest shellfish, and supported the limitation on tribal access across private lands; and 9) the court found the method for selecting and disqualifying special masters denied the tribes due process.(241)

The court relied on the canons of treaty construction to determine the extent of tribal shellfishing rights.(242) The court confirmed, consistent with the Boldt Decision, that the treaty right was not limited to certain species of fish actually harvested by the tribes before they signed the treaties.(243) It relied on United States v. Winans(244) and Shellfish I(245) to conclude that the right of taking fish must be read as a reservation of a preexisting right to take any species without limitation.(246) The court determined that the tribes' "usual and accustomed grounds and stations"(247) did not vary by species of fish, and that the Equal Footing Doctrine, which states that each state should enter the Union free of any encumbrance on its land, had no relevance to the resolution of fishing rights in this instance.(248) The Ninth Circuit did not apply the Equal Footing Doctrine because that doctrine is limited to cases in which the United States had granted property rights before a state entered the Union. Here, the Indians were exercising a right which predated the treaties. The United States did not grant them any fishing rights.(249)

The court followed Winans(250) and Passenger Fishing Vessel(251) in rejecting the Owners' argument that the Indians were entitled only to the same right to harvest shellfish as any other citizen,(252) Additionally, the court affirmed the Winans holding that treaty rights in the land are not extinguished upon conveyance of the land to private landowners.(253) However, it agreed with the lower court that the right to cross private property depends on establishing a need to do so.(254) The reservation of fishing rights includes the right to fish at all "usual and accustomed" grounds, regardless of the public or private nature of their ownership.(255)

To interpret the meaning of the terms "staked" and "cultivated" in the Shellfish Proviso, the court adopted the lower court's analysis and looked to the treaty itself, the record of treaty negotiations, the historical circumstances giving rise to the Stevens Treaties, possible alternative formulations of the Shellfish Proviso, and posttreaty conduct of both parties.(256) The Ninth Circuit deferred to the lower court's finding that at treaty time, only artificial beds were staked or cultivated.(257)

Additionally, the Ninth Circuit agreed that the Growers' contention that the court should adopt the doctrine of laches to defeat the tribes' claim to shellfish should be rejected.(258) The court reasoned that, based on Ninth Circuit and United States Supreme Court precedent, neither laches nor estoppel is available to defeat Indian treaty rights.(259)

The Ninth Circuit, however, found that the district court had abused its discretion when it used its equitable powers to redefine the definition of "cultivated" and when it imposed time, place, and manner restrictions on the tribes' shellfish harvest.(260) According to the Court of Appeals, the cases relied upon by Shellfish II used equitable principles to calculate damages, not to interpret treaties.(261) In contrast, the Tribes relied on United States Supreme Court authority that prohibited the courts from using equitable principles to abrogate any conditions or requirements of a treaty.(262) Consequently, the district court improperly used equitable principles to define cultivated beds.(263)

However, the court also concluded that the tribes' fair share should not include fifty percent of the shellfish growers' enhanced harvest from nonnatural beds.(264) Only those beds existing due to natural propagation of the species were subject to a fifty percent harvest allocation.(265) The court held that this determination was consistent with one purpose of the Shellfish Proviso--to protect and promote the burgeoning shellfish industry.(266) Therefore, the court placed the burden on the growers to differentiate between beds created from scratch, generally enhanced beds, beds enhanced by predator control or rototilling, and beds enhanced by the growers' passive efforts (migration of shellfish from an artificial bed to a new location) from beds occurring naturally.(267) Tribes were entitled to fifty percent of the pre-enhanced shellfish production for natural beds that were enhanced by shellfish growers.(268)

The court also held that the State of Washington is not a "citizen" for purposes of the Shellfish Proviso. The reasoning was based on equitable principles of treaty interpretation as well as a lack of support for the idea that a state may be a "citizen."(269)

Additionally, the court held that the district court erred when it found that the minimum density of manila clams necessary to support a commercial livelihood was one-half pound per square foot. Although the Tribes did not object to the "commercial livelihood" standard, they did object to the minimum density found by the district court.(270) The circuit court rejected this figure on two grounds. First, there was no expert testimony as to the density of manila clams necessary to sustain a commercial livelihood. Second, no document in the record provided analysis of the density necessary to support a commercial livelihood.(271) The court reversed and remanded to the district court for a new hearing on the issue.(272)

The court supported the district court's limitation on tribal access across private lands to crossings approved by a special master upon a showing of no alternative access.(273) It found the lower court was justified in using equitable principles in deciding how to implement established treaty rights.(274) The court also approved imposition of time, place, and manner restrictions on the tribes' treaty right.(275) These restrictions included 1) limiting the harvest to five days per year (with some increase for larger lots); 2) allowing a grower to limit the harvest if a tribe's proposed harvest would interfere with the shellfish grower's fanning operation; 3) prohibiting the harvest of natural clams under areas cultivated for oysters, even when oysters are absent; 4) requiring the tribes to complete a survey of private landowners' property to determine the existence of shellfish populations; and 5) using surveys identical to those used by the state.(276) The court justified these restrictions by underscoring the fact that equitable principles were only used as a way to implement the tribes' established treaty rights and by stating that the tribes were still able to effectuate their treaty allocations.(277)

The court also found that the method for selecting and disqualifying special masters denied the tribes due process.(278) Although two parties to a dispute each have a twenty-live percent chance of having their own special master selected, tribes had a seventy-five percent chance that a master aligned with an adverse party would be selected.(279) The other parties did not have to contend with similar odds because they were not aligned against one another. The Ninth Circuit affirmed the district court's determination in Shellfish III that a special master may award damages against tribal members but not tribes themselves.(280) This was based on the principle, conceded by the Tribes, that "individuals may be bound by orders affecting their `common public rights as citizens' in litigation to which their sovereign is a party."(281) In other words, an individual may be ordered to obey a judgment regarding that individual's tribe.

The Ninth Circuit later amended its first opinion.(282) First, rather than categorizing the growers' beds into beds created from scratch, beds positively enhanced, beds enhanced by using predator control or rototilling, and beds whose existence is due to growers' passive efforts, the court applied its own analysis to all shellfish growers' beds started on a natural bed. The growers still had the responsibility of proving pre-enhancement harvest versus postenhancement harvest.(283) Second, the court addressed time, place, and manner restrictions placed on tribal harvest.(284) Specifically, it examined the Tribes' concern over the growers' ability to control tribal harvest of natural clams by choosing not to harvest the clams in favor of the oysters under which they are found.(285) The Growers argued that if clam harvest would be profitable, they would exploit the resource. The court accepted this argument and determined that the restriction did not amount to an abuse of discretion.(286) It noted that tribes "are still able to effectuate their allocation under the Treaties and are not excluded from their ancient fisheries."(287) The court again approved the use of equitable principles to balance the opposing parties' interests once it had correctly interpreted the Shellfish Proviso.(288)

III. TREATY RIGHTS VS. PROPERTY RIGHTS

United States v. Washington typifies the ongoing conflict between private property fights and tribal treaty rights. Private property owners argue that the tribes retain no greater right of access than any other citizen.(289) Shellfish growers and property owners, as holders of fee simple interests, claim all the sticks in the property rights bundle, including the right to exclude others.(290) This claimed right is in direct opposition to the tribes' treaty right of access to ail "usual and accustomed"(291) fishing grounds when the tribes must cross or enter private land to reach shellfish beds. A property law context gives courts a legal framework within which to work. Once a court determines that tribal rights are indeed property rights, it may resolve the conflict between the two interests by comparing the strengths of the legal rights.

A. Recognition of Treaty Rights as Property Rights

As discussed above, the landmark case identifying tribal rights as property rights is United States v. Winans.(292) As in United States v. Washington, Winans involved a grant of shore land along the Columbia River from the State of Washington to private individuals.(293) The Winans brothers also claimed title to the lands bordering the shore lands under federal land patents and state licenses to maintain and operate fish wheels.(294) The Winans argued that as private property owners, they had the right to deny Indians access to their historic fishing grounds, just as they had the authority to exclude non-Indians from their land.(295) Yakama fishers sought to exercise their treaty right to cross the Winans' land to reach the fishing grounds and the right to occupy the shore lands in order to fish.(296)

The Court held that the Indians "were given a right in the land--the right of crossing it to the river--the right to occupy it to the extent and for the purpose mentioned."(297) The Court relied on the premise that "the treaty was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those not granted."(298) Once the Court determined that the treaty imposed a servitude on the land, it could compare this federal right with that of the private property owners and conclude that the right was "intended to be continuing against the United States and its grantees as well as against the state and its grantees."(299) The Court held that recognizing a lesser right in the Indians would be "an impotent outcome to negotiations ... which seemed to promise more and give the word of the Nation for more."(300) Although the Court recognized that situations might arise requiring modification of treaty rights, it determined that "[o]nly a limitation of them ... was necessary and intended, not a taking away."(301) This reserved property right is recognized as a profit a prendre--the right to go on another's property and remove from it things that were thought to be part of the land, such as timber and fish.(302)

Courts have continued to apply these property law concepts to treaty cases. However, the property interests granted by treaty differ from private property rights. For instance, certain property law concepts such as laches and adverse possession are not available to defeat treaty rights.(303) This suggests that courts afford treaty rights more protection than they give similar property rights held without treaty. In Shellfish II the court balanced the property interests of the private parties with those of the tribes to justify imposition of time, place, and manner restrictions on the fishing right and to broaden the definition of "cultivated."(304) It determined that a profit a prendre does not implicate the same strong legal protection as the fee simple interest in land held by the shellfish growers and property owners.(305) The district court's balancing of the parties' interests, however, could not withstand the Ninth Circuit's scrutiny.(306) The Ninth Circuit rejected the balancing because treaties--although granting property rights--are subject to special canons of interpretation.(307) Courts may not imbue treaties with any restriction that is not within the literal language of the document.(308)

B. Statutory Construction and Canons of Treaty Interpretation

Other tools of treaty interpretation and statutory construction help define the extent of the tribal treaty right at issue in United States v. Washington. First, the treaty must be interpreted according to the canons of treaty construction established by the United States Supreme Court.(309) Second, according to the general rule of proviso construction, the Shellfish Proviso must be narrowly construed: "A proviso is strictly construed, and only those subjects expressly restricted are freed from the operation of the statute."(310)

The canons of treaty construction dictate that "ambiguities occurring [in the treaty] will be resolved from the standpoint of the Indians."(311) The Court has adopted a paternalistic view of the Indians which has fostered another principle of treaty construction: treaties "are to be construed, so far as possible, in the sense in which the Indians understood them, and `in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.'"(312) However, the Court also gives deference to the intentions of the United States in entering into the treaty when they interpret ambiguous terms.(313) But because the United States had superior negotiating skills and knowledge of the language in which the treaties were negotiated, it also had the responsibility to not take advantage of the Indians.(314) "[T]he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians."(315) Intentions of the parties are informed by the context in which the treaties were made. "[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties."(316) A final principle established in Winans is that treaties reserve to Indians all rights that they did not grant away.(317) Therefore, the Shellfish Proviso is simply an exception to broad fishing rights and should be read narrowly.

IV. ANALYSIS OF THE NINTH CIRCUIT'S DECISION

A. The Ninth Circuit's Failure to Adequately Consider the Historical Context of the Treaty Negotiations and the Canons of Treaty and Statutory Construction

The Stevens Treaties were negotiated between the United States and Northwest Indian tribes in order to facilitate white settlement.(318) The United States was at an advantage because of its superior knowledge of negotiation and treaty language. The tribes sought to secure some vestige of the life they had known before settlement began--a life centered around fishing.(319) This right of fishing was of such importance to the tribes that they exchanged vast amounts of land for a modest sum and the right to continue fishing as they always had. The Ninth Circuit incorrectly interpreted the Shellfish Proviso and its effect on treaty fishing rights because it failed to adequately consider the historical context of the treaty negotiations and the canons of treaty and statutory construction that courts must follow.

First, invoking equitable principles of law to impose time, place, and manner restrictions on tribal access to shellfish beds located on private property was improper. In Winans the Supreme Court established that private property rights may not diminish the prior and superior rights retained by the Indians.(320) Second, the court wrongly interpreted the Shellfish Proviso to exclude the State of Washington from its definition of "citizen."(321) The court must look to the intention of both parties when it interprets treaties.(322) The United States included the proviso in the treaty in an attempt to promote the shellfish industry in Washington and to prevent tribal harvest from artificial beds. The beds created by the state are not analogous to hatchery fish and should not be included in the tribes' fair share.

B. Time, Place, and Manner Restrictions

The Ninth Circuit approved the district court's imposition of time, place, and manner restrictions on the tribes' ability to harvest shellfish.(323) First, the court limited the tribes' harvest to five days per year, with some increase on larger lots, for private beaches not owned by shellfish growers.(324) Additionally, before being granted permission, tribes must make a proper showing to special masters of the need for land access to shellfish beds.(325) Second, it found that a grower may modify a tribal harvest plan if the grower finds it inconsistent with his or her farming operation.(326) The implementation plan also gave growers final authority to determine how a tribal harvest would be conducted.(327) Third, a grower may prevent harvest of natural clams under areas cultivated for oysters, even if no oysters are present.(328) Fourth, the tribes must conduct surveys to determine the existence of shellfish populations before they may harvest on any private owner's property.(329) Fifth, the survey mentioned above must be the kind presently used by the state.(330) This interpretation of the shellfish treaty right and the Shellfish Proviso contradicts United States Supreme Court precedent.

Two Supreme Court cases establish the rule that states may impose time, place, and manner restrictions only in the interest of conserving the resource. Puyallup Tribe v. Department of Game of Washington(331) addressed Washington State's regulations prohibiting the Puyallup and Nisqually Tribes' manner of fishing.(332) The Court found that "the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the state in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians."(333) In Tulee v. State of Washington,(334) a member of the Yakama Tribe was convicted for off-reservation fishing without a license.(335) The Supreme Court found that the state had the power to regulate the time and manner of the Indian's fishing as necessary for conservation of fish.(336) But because the licensing fee was not "indispensable to the effectiveness of a state conservation program," the Court held that it was impermissible for the state to charge Indians a fee for exercising their reserved treaty right.(337)

Under Tulee and Puyallup, time, place, and manner restrictions must be indispensable for conservation to be legally permissible. The Ninth Circuit distinguished Puyallup by holding that it addressed only those restrictions imposed "by the State, not the Federal Courts."(338) It looked to the motivation for imposing restrictions, holding that the state discrimination present in Puyallup was simply not present in the district court's implementation plan.(339) Instead, the plan was to "interpret and to enforce the tribes' rights under the treaties, not to restrict those rights."(340) The Ninth Circuit failed to provide support for looking only to the motivation of the restricting party in order to determine whether a restriction is permissible.(341) Nor did it cite conservation as the force behind the limitations.(342) Instead, the court stated that "It]he district court attempted to fashion a prospective solution to a difficult situation by balancing the parties' respective interests."(343)

Restricting tribal harvests to five days per year on private owners' property, requiring a showing of the need for land access, allowing shellfish growers to modify tribal harvests, allowing shellfish growers to prevent harvest of natural clams under oyster beds, and requiring the tribes to conduct approved surveys to determine the existence of shellfish populations before harvesting on landowners' property all impermissibly restrict the tribes' reserved right to gather shellfish, because these are limitations imposed for reasons other than conservation. Even though Puyallup and Tulee addressed state regulations rather than federal court restrictions, the Ninth Circuit is not relieved from complying with Supreme Court precedent.

C. The Exclusion of State-Created Artificial Beds From Tribes' Treaty Allocation

1. State as a Citizen

The Ninth Circuit determined in United States v. Washington that artificially propagated beds created by the state are not subject to the Shellfish Proviso in the Stevens Treaties.(344) The relevant language from the Shellfish Proviso reads: "Provided, however, [t]hat they shall not take shell fish from any beds staked or cultivated by citizens...."(345) The court rejected the argument that a state could be a citizen for purposes of the proviso "[b]ecause the court ... invoked equitable principles in its interpretation of the Treaty and [because] there is no support in the law for the proposition that a state can be a `citizen.'"(346) In Shellfish II the district court included the state in its definition of citizen because "when the State creates artificial beds, it does so for the benefit of all its citizens, many of whom visit state parks to participate in recreational shellfishing."(347)

The Ninth Circuit correctly determined that courts may not use equitable principles to interpret treaty rights.(348) However, it incorrectly focused its analysis on the word "citizen." The issue here is not whether the State of Washington is a citizen, but whether the parties to the treaty anticipated tribes' access to artificially created shellfish beds. Canons of treaty construction require courts to look beyond the technical language of the treaty to uphold the intentions of the negotiating parties.(349)

The Tribes presented compelling evidence that the language "staked or cultivated" applied only to artificial beds at treaty time.(350) Therefore, the tribes would have had no expectation of a right to harvest shellfish from completely artificial beds. Although ambiguities in treaties should be construed in favor of the Indians,(351) "courts cannot ignore plain language that, viewed in historical context and given a `fair appraisal,' clearly runs counter to a tribe's later claims."(352) When viewed in its historical context, the language "staked or cultivated" was intended by the negotiating parties to mean "artificial."(353) Because the Tribes' argument in favor of access to these artificial beds contradicts the plain language of the Shellfish Proviso, the tribes did not reserve the right to harvest from state-created artificial beds.

2. Hatchery Fish vs. Artificial Propagation of Shellfish

Another argument for allowing tribal access to beds created by the state is based on an analogy between hatchery-bred fish and artificially propagated shellfish. In United States v. Washington(354) the district court approved inclusion of hatchery-reared fish in the tribes' treaty allocation.(355) Because no language in the treaty expressly referred to the hatchery issue, the court relied on the canons of treaty construction to infer the parties' intent regarding this issue.(356)

The court relied on the fact that the fishing right was essential to secure the tribes' assent to the treaty terms. It also focused on the fact that natural fish had become scarce and that the state developed and promoted its artificial propagation program to supplement depleted runs.(357) It underscored the evidence suggesting that hatchery fish were becoming an increasing portion of fish runs, and that exclusion of hatchery fish from tribal shares might eventually "crowd the Indians out of any meaningful use of their accustomed places to fish."(358) Finally, the court rejected the State's argument that it had regulatory and ownership interests in hatchery fish that would prevent the tribes from harvesting artificially propagated fish.(359)

The court relied on the firmly established rule, set out in the Puyallup trilogy,(360) that a state may only regulate treaty fishing to the extent necessary to conserve the resource without discriminating. The state had not made a claim that hatchery fish were excluded from the allocation of fish in order to preserve the resource.(361) The court also rejected the State's claim of ownership of free-swimming fish, a proposition firmly rejected in a 1977 case.(362) The conclusion that hatchery-bred fish were subject to the tribes' treaty allocation was confirmed by the Ninth Circuit in United States v. Washington.(363) The court affirmed based on the following four factors: "1) the lack of State ownership of the fish once released; 2) the lack of any unjust enrichment of the tribes; 3) the fact that hatchery fish and natural fish are not distinguished for other purposes; and 4) the mitigating function of the hatchery fish programs."(364)

The artificial shellfish beds, however, are not analogous to hatcherybred fish. First, artificial shellfish beds are created by the state in order to provide a recreational shellfish resource to its citizens.(365) Second, unlike the broad treaty right to harvest migratory fish, artificial beds and natural beds were distinguished from each other at treaty time.(366) Artificial shellfish were expressly excluded from the treaty right by the Shellfish Proviso.(367) Finally, allowing the tribes a treaty share of the artificial beds results in unjust enrichment because it is not legally justifiable.(368) The tribes did not reserve the right to harvest all shellfish at their usual and accustomed fishing grounds. Instead, according to the Shellfish Proviso, they reserved the right to harvest naturally occurring shellfish. Because the negotiating parties did not intend for the tribes to harvest artificially created shellfish beds, the tribes are not legally entitled to these shellfish.

D. Equitable Principles of Law

The Ninth Circuit approved the district court's use of equitable principles to limit the tribes' take on shellfish grower's property to avoid any unjust enrichment.(369) Specifically, the Ninth Circuit 1) approved granting growers the authority to modify tribal harvest plans if the plan is inconsistent with farming operations, 2) gave growers the power to decide how the harvest will be conducted, and 3) allowed the growers to prevent the harvest of natural clams occurring under oyster beds.(370) Although the Ninth Circuit has rejected the use of equitable principles in interpreting the extent of rights reserved by treaty, it has approved use of equitable principles to determine how the tribes will be allowed to exercise their previously determined rights.(371) Although some of the above restrictions comply with this rule, the Ninth Circuit erred in allowing the limitations that limit the extent of the rights, not just the means of exercising them.

Passenger Fishing Vessel instructed courts to give tribes a "fair share" and to "fairly apportion" the fish.(372) Therefore, only entirely natural beds on growers' property are subject to a full fifty percent harvest allocation. For the remainder, the growers must show what part of their harvest derives from their labor compared with the portion existing without enhancement.(373) The tribes are entitled to fifty percent of the "pre-enhanced sustainable shellfish production from those beds."(374)

The issue is whether equitable principles of law justify the restrictions the court placed on the tribes. Canons of treaty interpretation help determine how equitable principles of law may be applied to established treaty rights. One canon of interpretation requires giving effect to the intentions of the negotiating parties.(375) The United States intended to promote the shellfish industry when it included the Shellfish Proviso in the treaty.(376) The tribes intended to secure their continued right to fish at usual and accustomed fishing grounds.(377)

The Shellfish issue differs from the right to fish for anadromous species, because the treaties were aimed at encouraging the development of a non-Indian shellfish industry. Growers are in the best position to determine the impacts a tribal harvest may have on oyster production. The growers must still allow the tribes to harvest fifty percent of naturally occurring shellfish from any natural beds on their property. Therefore, the court's harvest scheme complies with the rule that restricts the use of equitable principles to determine how tribes will exercise their previously determined rights.(378)

However, giving shellfish growers the fight to deny tribal access to clams naturally occurring under oyster beds affects the right itself, not the manner of upholding that fight. It is an abuse of discretion to use equitable principles of law to determine the extent of tribal treaty rights.(379) Growers argue that "where there are substantial economic benefits to a grower from harvesting clams, the grower will do so.' And, `[a]s soon as the grower does, the trial court's implementation plan provides that the tribes have the right to a share of those clams.'"(380) This gives growers the power to determine, based on economic gain, the tribes' fishing rights. The fact that oysters are significantly more profitable to harvest than clams makes the potential impact on the treaty right greater.(381) The Ninth Circuit should not have given the growers the authority to determine the extent of the tribes' treaty right.

E. Implementing the Implementation Plan

The implementation plan set out in Shellfish II(382) and modified by both Shellfish III(383) and United States v. Washington is intrinsically flawed. The overall goal of the plan is to "provide a framework, principles, and course of action for effective cooperative management of the shellfish resource subject to Treaty harvest."(384) It is intended to allow all shellfishers the "opportunity to harvest their respective shares in an orderly manner, consistent with resource protection."(385) The plan contradicts its stated goals because it 1) provides for interminable oversight by a group of special masters, contrary to cooperative management of the resource; 2) allows growers to identify the extent of natural beds existing on their property; and 3) pushes the tribes toward harvesting on state-created beds, to the detriment of other non-Indian shellfishers who may not have access to other harvest areas.

One "central objective of a modern system of civil procedure" is to end litigation by giving finality to judgments.(386) In contrast, the implementation plan provides for the use of special masters to resolve disputes which may arise between the four groups.(387) This translates into permanent federal court supervision. This approach contradicts the goals of both finality and cooperative management of the resource because it presumes that the interested parties will be unable to come to a consensus based on the court's judgment. Further, it does not encourage serious negotiations between parties because it places the ultimate responsibility of problem resolution on special masters, not party representatives.(388) To follow through with both the plan's stated goal of cooperative management and the overall judicial goal of finality of judgments, the Ninth Circuit should have placed responsibility for resolution of the issues with party representatives, emphasizing compliance with the implementation plan, while continuing to retain jurisdiction to resolve cases or controversies between the parties in the future.

The plan gives shellfish growers the upper hand because it places the burden on the growers to determine the extent of the natural shellfish beds existing on their property.(389) Because growers have an economic interest in underestimating the prevalence of these beds, the court's placement of the "burden" runs the risk of depriving the tribes of their shellfishing right. Instead, a neutral party should establish the extent of naturally occurring beds by conducting independent surveys and reviewing of growers' records. However, in the interest of flexibility to accommodate the shellfish industry, and to promote cooperation between parties, shellfish growers should continue to have notice of tribal plans to harvest beds on their property.(390)

The complexities in harvesting from growers' or owners' tidelands encourage tribes to shift their focus to state-created beds. This creates a disincentive to the state to continue cultivation because it will enhance tribal commercial use rather than general recreational use. Although fairness and ease of implementation are often at odds with one another, if the Ninth Circuit limits time, place, and manner restrictions to those necessary for conservation of the resource, utilizes equitable principles of law to allow tribes to efficiently collect their full treaty share, and provides for notice to growers of the tribes' harvest plans, then the tribes will easily be able to exercise their reserved right to shellfish in a manner that accommodates the interests of the other parties.

V. CONCLUSION

Based on the canons of treaty interpretation and statutory construction, as well as historical precedent establishing the extent of tribal treaty rights, the Ninth Circuit erred in its application of the Shellfish Proviso to the Northwest Indians tribes' treaty rights secured by the Stevens Treaties. First, the imposition of time, place, and manner restrictions on the tribes' right to access their historic fishing grounds was incorrect because it was not done in the name of conservation, but merely to equitably allocate the resource. Second, the Ninth Circuit improperly determined that the Shellfish Proviso did not apply to the State of Washington. Third, the court improperly gave shellfish growers the power to determine the extent of the tribes' treaty rights on their property. Finally, the implementation plan will lead to recurring conflicts and will therefore require permanent federal court supervision, contrary to the goal of final resolution of issues.

(1) Many Indians were open to negotiating with the United States. By the mid-1800s the Indian population had dramatically declined by almost 80%, largely as a result of white-transmitted diseases like smallpox. Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO. L. REV. 407, 426 (1998) (citing OFFICE OF INDIAN AFFAIRS, U.S. DEP'T OF THE INTERIOR, REPORT ON SOURCE, NATURE AND EXTENT OF THE FISHING, HUNTING, AND MISCELLANEOUS RELATED RIGHTS OF CERTAIN INDIAN TRIBES IN WASHINGTON AND OREGON 35 (1942)).

(2) See Treaty of Medicine Creek, Dec. 26, 1854, U.S.-Nisquallys, art. III, 10 Stat. 1132, 1133 [hereinafter Treaty of Medicine Creek]. The treaties became known as the Stevens Treaties, named for the participation of Isaac Stevens, Washington Territory's first Governor and Superintendent of Indian Affairs. Treaties falling into this group include the Treaty of Medicine Creek, supra; the Treaty of Point Elliot, Jan. 22, 1855, 12 Stat. 927; the Treaty of Point No Point, Jan. 26, 1855, U.S.-Wyandotts, 12 Stat. 933; and the Treaty with the Makah, Jan. 31, 1855, U.S.-Makah, 12 Stat. 939. The treaty provision limiting the tribes' shellfish harvests is referred to as the Shellfish Proviso.

(3) United States v. Winans, 198 U.S. 371, 381 (1905).

(4) United States v. Washington, 873 F. Supp. 1422 (W.D. Wash. 1994) (Shellfish I), amended, 898 F. Supp. 1453, 1457 (W.D. Wash. 1995) (Shellfish II), amended, 909 F. Supp. 787 (W.D. Wash. 1998) (Shellfish III), aff'd in part, rev'd in part, 135 F.3d 618 (9th Cir.), amended and superseded on denial of reh'g, 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(5) Shellfish I, 873 F. Supp. at 1439.

(6) Shellfish II, 898 F. Supp. at 1457.

(7) Id.

(8) Shellfish I, 873 F. Supp. at 1428.

(9) Id.

(10) Id. at 1427-28.

(11) See id. at 1422-23.

(12) See id. at 1427.

(13) See United States v. Washington, 157 F.3d 630, 643 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(14) Anadromous fish are those that hatch in fresh water but move to the oceans as juveniles for growth, feeding, and maturation (e.g., salmon). DAVID H. MILNE, MARINE LIFE AND THE SEA 197 (1995).

(15) 198 U.S. 371 (1905).

(16) Id. at 382-83.

(17) 443 U.S. 658 (1979).

(18) Id. at 686.

(19) See Shellfish I, 873 F. Supp. 1422, 1428 (W.D. Wash. 1994) (citing Choctaw Nation of Indians v. United States, 318 U.S. 423, 432 (1943)).

(20) See discussion infra Part III.B.

(21) NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION [sections] 20.22, at 110 (5th ed. 1992).

(22) 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(23) Id. at 638.

(24) Id. at 646.

(25) Id. at 648.

(26) Id. at 641.

(27) Id. at 652.

(28) Id. at 653.

(29) See Treaty of Medicine Creek, supra note 2, art. III, at 1133 (emphasis added).

(30) See United States v. Winans, 198 U.S. 371 (1905).

(31) Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 661 (1979).

(32) See id. at 662.

(33) United States v. Washington, 384 F. Supp. 312, 354 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975).

(34) Id.

(35) Blumm & Swift, supra note 1, at 428.

(36) The United States adopted a paternal role in its treaty negotiations with the tribes, and the tribes accepted this relationship. Out of politeness, the Indians referred to the President of the United States as the "Great Father." See id. at 427.

(37) United States v. Washington, 384 F. Supp. at 355.

(38) Id.

(39) Treaty of Medicine Creek, supra note 2, art. III, at 1133.

(40) The court in United States v. Washington stated:

   There is nothing in the written records of the treaty councils or other
   accounts of discussions with the Indians to indicate that the Indians were
   told that their existing fishing activities or tribal control over them
   would in any way be restricted or impaired by the treaty. The most that
   could be implied ... is that the Indians may have been told or understood
   that non-Indians would be allowed to take fish at the Indian fishing
   locations along with the Indians.

384 F. Supp. at 357.

(41) Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 668 (1979). At treaty time approximately 75% of the Washington Territory's 10,000 inhabitants were Indian, making up the majority of fishers. See United States v. Washington, 384 F. Supp. at 352.

(42) See 384 F. Supp. at 356.

(43) See VINE DELORIA, JR. & CLIFFORD M. LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 47 (1983).

(44) Id.

(45) United States v. Washington, 384 F. Supp. at 356.

(46) Id. The Chinook jargon was composed of a three-hundred-word vocabulary that did not include terms capable of conveying many of the treaty terms. Id. at 330.

(47) Shellfish I, 873 F. Supp. 1422, 1435-36 (W.D. Wash. 1994).

(48) Id. at 1436.

(49) Id. at 1435.

(50) See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 667 (1979). Governor Stevens spoke to the tribes during the negotiation of the Point No Point treaty, proclaiming,

   Are you not my children and also children of the Great Father? What will I
   not do for my children, and what will you not for yours? Would you not die
   for them? This paper is such as a man would give to his children and I will
   tell you why. This paper gives you a home. Does not a father give his
   children a home? ... This paper secures your fish. Does not a father give
   food to his children?

Id.

(51) United States v. Washington, 384 F. Supp. at 334.

(52) See Blumm & Swift, supra note 1, at 433-34.

(53) Shellfish I, 873 F. Supp. at 1440.

(54) See generally id. at 1440-41.

(55) Passenger Fishing Vessel, 443 U.S. at 669.

(56) Peter Monson, United States v. Washington (Phase II): The Indian Fishing Conflict Moves Upstream, 12 ENVTL. L. 469, 480 (1982).

(57) United States v. Taylor, 13 P. 333 (Wash. Terr. 1887).

(58) Id. at 333-34.

(59) Id. at 335.

(60) Id.

(61) Id.

(62) 198 U.S. 371 (1905).

(63) Id. at 371-72.

(64) Id.

(65) Id. at 380-81 (quoting Choctaw Nation v. United States, 119 U.S. 1, 28 (1886).

(66) Id. at 381.

(67) 249 U.S. 194 (1919).

(68) Id. at 198-99.

(69) Id. at 198.

(70) Id.

(71) 315 U.S. 681 (1942).

(72) Id. at 683.

(73) Id.

(74) Id.

(75) Id. at 684-85.

(76) Id. at 685.

(77) See, e.g., Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977); Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973); Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968).

(78) Puyallup Tribe v. Department of Game, 391 U.S. at 398.

(79) Id. at 399.

(80) Id. at 401-02.

(81) Department of Game v. Puyallup Tribe, 414 U.S. at 44.

(82) Id. at 48.

(83) Puyallup Tribe, Inc. v. Department of Game, 433 U.S. at 165.

(84) 302 F. Supp. 899 (D. Or. 1969).

(85) Id. at 904-05.

(86) Id. at 910-11.

(87) Id. at 907.

(88) Id. at 912.

(89) See supra Part II.A.2.

(90) See infra Part II.A.3.a.

(91) See infra Part II.A.3.b.

(92) See generally United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (applying Phase I and Phase II philosophy within Stevens Treaty legal framework), aff'd, 520 F.2d 676 (9th Cir. 1975).

(93) Id. at 327.

(94) Id.

(95) Id. at 359-82.

(96) Id.

(97) See infra Part II.A.3.a.

(98) See infra Part II.A.3.b.

(99) See infra Part II.A.3.b.

(100) See infra Part II.B.

(101) United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975).

(102) Id. at 342.

(103) Id.

(104) Treaty of Medicine Creek, supra note 2, art. III, at 1133.

(105) United States v. Washington, 384 F. Supp. at 332.

(106) Id. at 344.

(107) Id. at 331-32.

(108) Id. at 344.

(109) Id.

(110) Id. at 343.

(111) Id. at 347.

(112) Id. at 403.

(113) See id. at 331, 343.

(114) Id. at 403.

(115) Id.

(116) United States v. Washington, 520 F.2d 676 (9th Cir. 1975), aff'g 384 F. Supp. (W.D. Wash. 1974).

(117) Id. at 686.

(118) Id. at 688.

(119) Id. at 689.

(120) 443 U.S. 658 (1979).

(121) The state court ordered the Fisheries Department to abandon its efforts to comply with the Boldt Decision while the Game Department simply refused to comply. See id. at 673.

(122) Id. at 675.

(123) See Id. at 676.

(124) Id. at 678.

(125) Id. "[The Indians] would be unlikely to perceive a `reservation' of that [fishing] right as merely the chance, shared with millions of other citizens, occasionally to dip their nets into territorial waters." Id. at 679.

(126) Id. at 684-85.

(127) Id. at 683-84.

(128) Id. at 686.

(129) Id. at 687-88.

(130) Id. at 688.

(131) See United States v. Washington, 506 F. Supp. 187 (W.D. Wash. 1980), aff'd in part, rev'd in part, 694 F.2d 1374 (9th Cir. 1982), vacated, 759 F.2d 1353 (9th Cir. 1985).

(132) Id. at 195.

(133) Id.

(134) Id. at 197.

(135) Id.

(136) Id. at 198.

(137) The moderate living standard provides for a downward adjustment of the fifty-fifty allocation. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686-87 (1979). Neither the tribes nor non-Indians may deplete the resource. United States v. Washington, 384 F. Supp. 312, 401-02 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975).

(138) United States v. Washington, 506 F. Supp. at 200.

(139) See United States v. Washington, 694 F.2d 1374 (9th Cir. 1982); see also United States v. Washington, 759 F.2d 1353 (9th Cir. 1985).

(140) United States v. Washington, 506 F. Supp. at 203.

(141) Id. at 204.

(142) Id. at 206-07. The Ninth Circuit considered the lower court's decision in 1982. United States v. Washington, 694 F.2d at 1374. It held that hatchery fish were subject to the treaty share allocation based on "the lack of any basis for State Ownership of the fish once released, the competition between hatchery and natural fish for the same resources in a given stream, and the mitigation function of the hatcheries." Id. at 1379. Upon rehearing, the court vacated the earlier Ninth Circuit opinion and declined to directly address the environmental question, holding that to do so would be contrary to the exercise of sound judicial discretion. 759 F.2d at 1353. The court looked favorably upon the lower court's use of the canons of treaty interpretation to resolve the hatchery fish issue. Id. at 1358. It recited the canons that call for promotion of the treaties' central purposes; construction of treaties as they were originally understood by the tribal representatives, rather than according to legal technicalities; resolution of ambiguities in favor of the Indians; and interpretation of the treaties in the Indians' favor. Id. (citing United States v. Washington, 506 F. Supp. at 195).

The court relied on several factors to support the Tribes' position that they should be entitled to share in the hatchery fish. These equitable factors included "1) the lack of State ownership of the fish once released; 2) the lack of any unjust enrichment of the tribes; 3) the fact that hatchery fish and natural fish are not distinguished for other purposes; and 4) the mitigating function of the hatchery fish programs." United States v. Washington, 759 F.2d at 1359.

(143) See Treaty of Medicine Creek, supra note 2, art. III, at 1133.

(144) Shellfish I, 873 F. Supp. 1422, 1430 (W.D. Wash. 1994).

(145) See generally id.; Shellfish II, 898 F. Supp. 1453 (W.D. Wash. 1995); Shellfish III, 909 F. Supp. 787 (W.D. Wash. 1995); United States v. Washington, 135 F.3d 618 (9th Cir.), amended by 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(146) See, e.g., Treaty of Medicine Creek, supra note 2, art. III, at 1133.

(147) Id.

(148) Shellfish I, 873 F. Supp. at 1430.

(149) Id.

(150) Id.

(151) Id. at 1429.

(152) Id. at 1430-31.

(153) Id. at 1422; Shellfish II, 898 F. Supp. 1453, 1453 (W.D. Wash. 1995); United States v. Washington, 135 F.3d 618 (9th Cir. 1998), cert denied, 119 S. Ct. 1376 (1999).

(154) Clyde L. Mackenzie, Jr., History of Oystering in the United States and Canada, Featuring the Eight Greatest Oyster Estuaries, MARINE FISHERIES REV. 1969, at 1, 70.

(155) WASHINGTON DEP'T OF FISHERIES, PRELIMINARY 1996-1997 SPECIES COMPARISON REPORT 2 (1998).

(156) In 1990 the total employment impact of shellfish aquaculture accounted for only about 0.1% of total state employment, generating approximately 2130 jobs. The industry accounted for $59.6 million, less than 0.1% of the Gross State Product. However, aquaculture operations depend on unpolluted water and are usually located in rural coastal communities, providing a valuable source of jobs in economically depressed communities. DIANA CANZONERI, THE ECONOMIC VALUE OF SHELLFISH AQUACULTURE IN PUGET SOUND: A CASE STUDY PREPARED FOR PEOPLE FOR PUGET SOUND 15-16 (1996).

(157) Id. at 17.

(158) See supra Part I; Shellfish II, 898 F. Supp. at 1457.

(159) 898 F. Supp. at 1457.

(160) Id.

(161) Id. at 1459.

(162) Id. at 1460.

(163) Id.

(164) Shellfish I, 873 F. Supp. 1422, 1422 (W.D. Wash. 1994).

(165) Id. at 1431.

(166) Id.

(167) Id.

(168) Id. at 1432.

(169) Id.

(170) Id.

(171) Id.

(172) Id. at 1436-37.

(173) Id. at 1437.

(174) Id.

(175) Id. at 1435.

(176) Id. at 1442.

(177) Id. at 1435.

(178) Id. at 1435-36.

(179) Id. at 1434.

(180) Id. at 1432-34.

(181) Id. at 1442.

(182) Id. at 1441.

(183) Id.

(184) Id.

(185) Id.

(186) Id. at 1442.

(187) Id.

(188) Id.

(189) Id.

(190) Id.

(191) Id. at 1445.

(192) Id. (citing Passenger Fishing Vessel, 443 U.S. at 685-87).

(193) Id.

(194) Id. at 1446.

(195) Id. at 1445.

(196) Shellfish II, 898 F. Supp. 1453, 1457 (W.D. Wash. 1995).

(197) Id.

(198) See id. at 1463-76.

(199) Id. at 1458.

(200) Id. at 1458-59.

(201) Id. at 1459.

(202) Id.

(203) Id.

(204) Id.

(205) Id. at 1459-60.

(206) Id.

(207) Id.

(208) Id.

(209) See id. at 1460.

(210) Id.

(211) Id. at 1461.

(212) See id. The court put the minimum density of manila clams necessary to support a commercial livelihood at a half pound per square foot. Id.

(213) Id.

(214) Id.

(215) Id.

(216) Id. at 1462.

(217) Id. at 1463.

(218) Id. at 1465.

(219) Id. at 1471.

(220) Id. at 1472.

(221) Id. at 1473.

(222) Id.

(223) Id. at 1472-73.

(224) Id. at 1475.

(225) Id.

(226) Id. at 1476.

(227) Shellfish III, 909 F. Supp. 787, 789 (W.D. Wash. 1995).

(228) FED. R. CIV. P. 53(a).

(229) 909 F. Supp. at 790.

(230) Id. at 790-91, 793-94.

(231) 198 U.S. 371, 384 (1905).

(232) Shellfish III, 909 F. Supp. at 792.

(233) Id. at 793. This sovereign immunity, however, does not extend to individual tribal members, who may be subject to damages. Id.

(234) Id. at 792.

(235) Id.

(236) Id.

(237) Id at 792-93.

(238) Id.

(239) United States v. Washington, 135 F.3d 618, 626 (9th Cir.), amended by 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(240) The original opinion was filed January 28, 1998. It was amended September 25, 1998. 157 F.3d at 631.

(241) See United States v. Washington, 135 F.3d at 634-40.

(242) See id. at 630.

(243) Id. at 630-31.

(244) 198 U.S. 371, 380 (1905).

(245) 873 F. Supp. 1422, 1430 (W.D. Wash. 1994).

(246) United States v. Washington, 135 F.3d at 631.

(247) Id.

(248) Id. at 631-33.

(249) Id.

(250) 198 U.S. at 380.

(251) 443 U.S. at 676-77.

(252) United States v. Washington, 135 F.3d at 633-34.

(253) Id.

(254) Id. at 634.

(255) Id. at 635.

(256) Id.

(257) Id.

(258) Id. at 636-37.

(259) Id. at 636 (citing Swim v. Bergland, 696 F.2d 712, 718 (9th Cir. 1983)).

(260) Id. at 637-38.

(261) See id. at 638.

(262) Id. "[I]n no case has it been adjudged that the courts could by mere interpretation or in deference to its view as to what was right under all the circumstances, incorporate into an Indian treaty something that was inconsistent with the clear import of its words." Id. (citing United States v. Choctaw Nation, 179 U.S. 494, 532-33 (1900)).

(263) Id.

(264) Id. at 639-40.

(265) Id.

(266) Id. at 640.

(267) Id.

(268) Id.

(269) Id. at 640-41.

(270) Id. at 641.

(271) Id.

(272) Id.

(273) Id.

(274) Id. at 642.

(275) Id.

(276) Id.

(277) Id.

(278) Id. at 643.

(279) Id.

(280) Id. at 643-44.

(281) Id. at 643 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 341 (1958)).

(282) See United States v. Washington, 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(283) Id. at 653 (reasoning that the growers are best able to prove such a calculation).

(284) Id. at 654-56.

(285) Id. at 655.

(286) Id.

(287) Id.

(288) See id.

(289) See id. at 646-47.

(290) See id.

(291) Id. at 644, 646.

(292) 198 U.S. 371 (1905).

(293) Id. at 379.

(294) Id.

(295) Id.

(296) Id. at 381.

(297) Id.

(298) Id.

(299) Id. at 381-82.

(300) Id. at 380.

(301) Id. at 381.

(302) JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 788 (3d ed. 1993); see also Blumm & Swift, supra note 1, at 445 nn. 183-84.

(303) See Shellfish I, 873 F. Supp. 1422, 1446 (W.D. Wash. 1994).

(304) Shellfish II, 898 F. Supp. 1453, 1457 (W.D. Wash. 1995).

(305) Id. at 1458.

(306) See United States v. Washington, 157 F.3d 630, 650-51 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999); see also discussion infra Part IV.E.

(307) 157 F.3d at 651.

(308) Id.

(309) The Court created these rules of judicial interpretation to facilitate the settlement of Indian legal disputes. These rules of construction attempt to eliminate the historical disparities in bargaining power between the United States and the Indian tribes. For example, treaties were written by whites in English. The Stevens Treaties were interpreted to the Indians in Chinook jargon, a simple language that did not adequately express the legal effects of the treaties. This language was then translated into native languages by Indian interpreters. Indians were not accustomed to the type of written negotiations used by the United States. Typically an oral promise made between tribes, accompanied by a ceremony incorporating gift giving, was sufficient to seal a bargain. See DELORIA & LYTLE, supra note 43, at 47-49.

(310) 157 F.3d at 649 (quoting SINGER, supra note 21, [sections] 20.22, at 110).

(311) Winters v. United States, 207 U.S. 564, 576 (1908). This was a water rights case in which the Court looked to the probable expectations of the parties to the treaty negotiations, rather than the literal words of the treaty, in order to interpret its meaning. Id. at 575-78.

(312) Choctaw Nation of Indians v. United States, 318 U.S. 423, 432 (1943) (quoting Tulee v. Washington, 315 U,S. 581, 684-85 (1942)).

(313) See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675 (1979) (intention of parties control attempt to interpret treaties); Shoshone Indians v. United States, 324 U.S. 335, 353 (1945) (goal of treaty interpretation is to determine what the parties meant by the terms of the treaty).

(314) Passenger Fishing Vessel, 443 U.S. at 675-76.

(315) Id. at 676 (quoting Jones v. Meehan, 175 U.S. 1, 11 (1899)) (alteration in original).

(316) Choctaw Nation of Indians v. United States, 318 U.S. at 431-32.

(317) United States v. Winans, 198 U.S. 371, 381 (1905).

(318) Passenger Fishing Vessel, 443 U.S. at 661-62.

(319) The right to resort to the fishing places in controversy was part of a larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were "not much less necessary to the existence of the Indians than the atmosphere they breathed." United States v. Winans, 198 U.S. at 381.

(320) Id.

(321) United States v. Washington, 157 F.3d 630, 653 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(322) Passenger Fishing Vessel, 443 U.S. at 676.

(323) See United States v. Washington, 157 F.3d at 654-56.

(324) Shellfish II, 898 F. Supp. 1453, 1473 (W.D. Wash. 1994).

(325) Shellfish III, 909 F. Supp. 787, 797 (W.D. Wash. 1998).

(326) Shellfish II, 898 F. Supp. at 1473 (W.D. Wash. 1995).

(327) Id. at 1470.

(328) Id. at 1471.

(329) Id. at 1472.

(330) Id.

(331) 391 U.S. 392 (1968) (two tribes used set nets to harvest anadromous fish).

(332) Id. at 393-95.

(333) Id. at 398.

(334) 315 U.S. 681 (1942).

(335) Id.

(336) Id. at 684.

(337) Id. at 684-85.

(338) United States v. Washington, 157 F.3d at 655.

(339) Id.

(340) Id. at 655-56.

(341) Id.

(342) Id.

(343) Id. at 655.

(344) Id. at 653.

(345) See Treaty of Medicine Creek, supra note 2, art. III, at 1133 (emphasis added).

(346) United States v. Washington, 157 F.3d at 653.

(347) 898 F. Supp. 1453, 1459-60 (W.D. Wash. 1995).

(348) 157 F.3d at 653.

(349) Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979).

(350) 157 F.3d at 648.

(351) Winters v. United States, 207 U.S. 564, 576 (1908).

(352) Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 773-74 (1985) (citation omitted) (holding that the exclusive right to hunt, fish, and gather roots, berries, and seeds on lands reserved to the Klamath Tribe by the 1864 Treaty did not survive as a special right free of state regulation in lands ceded in a 1901 Agreement).

(353) 157 F.3d at 648.

(354) 506 F. Supp. 187 (W.D. Wash. 1980), aff'd in part, rev'd in part, 694 F.2d 1374 (9th Cir. 1982), vacated, 759 F.2d 1353 (9th Cir. 1985). For a look at the projected impact of this case on fisheries management in the Northwest see Monson, supra note 56, at 469-83.

(355) 506 F. Supp. at 195-202.

(356) Id. at 195, 197.

(357) Id. at 198.

(358) Id. at 197-98 (quoting Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676-77 (1979)).

(359) Id. at 201-02.

(360) See Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977); Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973); Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968).

(361) 506 F. Supp. at 201.

(362) Douglas v. Seacoast Prod., Inc., 431 U.S. 265, 286-88 (1977).

(363) 759 F. 2d 1353 (9th Cir. 1985).

(364) Id. at 1359.

(365) See Shellfish II, 898 F. Supp. 1453, 1460 (W.D. Wash. 1995) (indicating

that the State creates artificial beds for the benefit of citizens who visit state parks to participate in recreational shellfishing).

(366) See Treaty of Medicine Creek, supra note 2, art. III, at 1133.

(367) Id.

(368) See BLACK'S LAW DICTIONARY 648 (6th ed. 1996) (defining "unjust enrichment" as "[a] benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense").

(369) United States v. Washington, 157 F.3d at 651.

(370) Id.

(371) Id. at 654.

(372) 443 U.S. at 682, 686.

(373) 157 F.3d at 652-53.

(374) Id. at 653.

(375) Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32 (1942).

(376) See Shellfish I, 873 F. Supp. 1422, 1436-38 (W.D. Wash. 1994).

(377) See id. at 1437.

(378) See United States v. Washington, 157 F.3d at 651.

(379) See id. at 649-51.

(380) Id. at 638.

(381) See WASHINGTON DEP'T OF FISHERIES, supra note 155, at 2. The 1997 average prices per pound for all species of clams (excluding geoduc which are deep water clams) ranged from $0.19 per pound to $1.76 per pound, while the prices per pound for Olympia and Pacific oysters (species traditionally cultured in Washington) are $237.46 and $3.12 per pound, respectively. Id.

(382) 898 F. Supp. 1453 (W.D. Wash. 1995).

(383) 909 F. Supp. 787 (W.D. Wash. 1995).

(384) Shellfish II, 898 F. Supp. at 1463.

(385) Id.

(386) RICHARD L. MARCUS ET AL., CIVIL PROCEDURE: A MODERN APPROACH 1091 (2d ed. 1995).

(387) United States v. Washington, 157 F.3d at 655.

(388) Id. at 642.

(389) Id. at 653.

(390) See Shellfish II, 898 F. Supp. at 1470.

MARIEL J. COMBS, Student, Northwestern School of Law of Lewis & Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected 2000; B.S. 1995, Biology, Lewis & Clark College. I would like to thank Ed Goodman for his thoughtful and invaluable guidance.3