United States v. Washington
98 Cal. Daily Op. Serv. 7417, 98 Daily Journal DAR 10299, 157 F.3d 630 (1998)
Rule of Law:
The Stevens Treaties secure to Indian Tribes a right to harvest shellfish of all species from their usual and accustomed fishing grounds, including privately owned tidelands, but this right is limited by the Shellfish Proviso to exclude only truly artificial beds and requires a 'fair share' allocation on enhanced natural beds to prevent unjust enrichment from commercial growers' labor.
Facts:
- In 1855, the United States negotiated five Stevens Treaties with Indian Tribes in the Western Washington Territory.
- The Tribes ceded their aboriginal lands to the United States for settlement.
- The Treaties reserved to the Tribes the “right of taking fish, at all usual and accustomed grounds and stations… in common with all citizens of the Territory,” with a “Shellfish Proviso” stating they “shall not take shellfish from any beds staked or cultivated by citizens.”
- At the time of the Treaties, a shellfish cultivation industry existed where farmers created 'cultivated' beds by moving oysters or hardening the bottom, and 'staked' beds by storing market-sized shellfish.
- After 1895, Washington State sold the vast majority of its tidelands to private owners.
- Native shellfish populations have dramatically declined since treaty times, largely replaced by foreign species introduced into the area.
- Commercial shellfish growers and private tideland owners have invested decades developing and enhancing shellfish production on their beds.
Procedural Posture:
- In 1970, the United States and various Indian Tribes brought suit against the State of Washington in federal district court seeking an interpretation and injunction to enforce the Tribes’ fishing rights.
- The district court in United States v. Washington ('Washington I') determined the nature and extent of the Tribes’ off-reservation anadromous fish rights, finding them entitled to 50% of harvestable fish, and reserved jurisdiction for future issues.
- The Ninth Circuit affirmed 'Washington I' ('Washington II'), and the Supreme Court substantially affirmed that decision ('Fishing Vessel').
- In 1989, sixteen Indian Tribes, later joined by the United States, filed an action in the district court seeking a declaration of their shellfishing rights.
- The district court's decision in United States v. Washington ('Shellfish I') interpreted the Treaties to include shellfish and awarded 50% of the harvestable shellfish to the Tribes, finding the Proviso excluded only artificial beds.
- Following 'Shellfish I', the district court held a six-day 'implementation trial' to determine a plan for implementing the Tribes’ rights.
- On August 28, 1995, the district court announced its Implementation Plan in United States v. Washington ('Shellfish II'), which refined definitions, precluded tribal harvesting on much commercial property, and imposed time, place, and manner restrictions.
- In response to motions for reconsideration, the district court amended its decision on December 18, 1995, in United States v. Washington ('Shellfish III'), revising tribal upland access and limiting special masters’ authority to award damages.
- The State of Washington, private tideland property owners, and commercial shellfish growers (collectively 'Appellants') appealed the district court's judgments, and the United States and Tribes cross-appealed the implementation order.
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Issue:
Does the Stevens Treaties' reservation of fishing rights entitle Indian Tribes to harvest shellfish from all usual and accustomed grounds, including privately owned tidelands and cultivated beds, and if so, how should those rights be implemented in a manner consistent with the Shellfish Proviso and principles of equity?
Opinions:
Majority - Trott, Circuit Judge
Yes, the Stevens Treaties reserve to the Tribes a right to harvest shellfish in their usual and accustomed fishing grounds, including privately owned tidelands and natural beds, but this right is subject to a 'fair share' allocation for enhanced natural beds on commercial growers' property and does not extend to artificial beds, nor can the State of Washington be considered a 'citizen' under the Shellfish Proviso. The district court improperly used equitable powers to redefine treaty terms but properly used them to implement rights and impose reasonable time, place, and manner restrictions. The court affirmed that 'fish' includes all species of shellfish and that 'usual and accustomed grounds' do not vary by species, citing Washington I and Winans. It rejected the application of the Equal Footing Doctrine and the Shively presumption, as the Treaties constitute a reservation of pre-existing tribal rights, not a grant of new land ownership. The right to harvest extends to privately owned tidelands because the Treaties imposed a 'servitude upon every piece of land.' The Shellfish Proviso, excluding 'beds staked or cultivated by citizens,' was properly interpreted by the district court to apply only to truly artificial, planted shellfish beds existing at treaty time, consistent with treaty negotiators' intent and canons of liberal construction in favor of Indians. The court found that equitable defenses like laches are inapplicable to Indian treaty rights. However, the district court abused its discretion by using equitable principles to redefine treaty terms, such as expanding 'cultivated' to include 'de facto artificial beds.' Courts cannot use equity to rewrite treaty terms (United States v. Choctaw Nation), only to implement them. Thus, while the Tribes have rights to natural beds, awarding them 50% of commercially enhanced natural beds would unjustly enrich them. For enhanced natural beds, Tribes are entitled to 50% of the pre-enhanced sustainable shellfish production, with the burden on growers to prove this distinction. Purely artificial beds, which did not support a sustainable commercial density of shellfish prior to cultivation, remain fully exempt. The district court erred in deeming the State of Washington a 'citizen' under the Proviso, lacking legal precedent. It also clearly erred in setting a specific minimum density for natural clam beds due to insufficient evidence, remanding this for a new hearing. However, the district court did not abuse its discretion in imposing reasonable time, place, and manner restrictions or requiring a showing of no alternative access before crossing private uplands, as these were permissible equitable measures for implementing the treaty rights, not interpreting them. The court found the district court’s special master selection process (allowing Appellants to designate three of four masters) violated due process and remanded for reconfiguration. Finally, special masters can award damages against individual Tribal members but not against the Tribes themselves, consistent with sovereign immunity. Attorney's fees were denied based on existing precedent.
Concurring - Beezer, Circuit Judge
I concur with the majority's opinion but express significant concerns regarding the interpretation of the Stevens Treaties and the appointment of special masters. While acknowledging the broad interpretation of 'fish' and 'usual and accustomed grounds' as settled law, I find it perplexing how these principles, developed for migratory fish, apply to static shellfish. This broad application imposes a heavy burden on the vibrant Washington shellfish industry. I am particularly concerned about the majority's decision to place the burden of proving 'pre-enhancement harvest versus post-enhancement harvest' on the Growers. The record indicates this may be 'very difficult — if not impossible' to prove, effectively shifting the burden from the party asserting the treaty right (the Tribes) and guaranteeing ongoing disputes. The 'gaping loophole' allowing Growers to avoid harvesting natural clams under oysters, thereby denying Tribal access, further highlights this tension. I emphasize that property rights, fundamental to American government, are being encumbered. I suggest that tribal shellfish shares could potentially be fulfilled from reservation land, government land, or private tidelands acquired by the tribe, rather than solely from existing commercial beds. The survival of Washington's shellfish industry depends on growers' ability for exclusive use of tidelands, which existing case law interpretation makes difficult. I reiterate that the Supreme Court should clarify the Shellfish Proviso and distinctions between migratory fish and shellfish. Regarding special masters, I agree the selection process violates due process due to lack of impartiality. I further argue that general referral to special masters for disputes like trespass and property questions is inappropriate under Fed.R.Civ.P. 53(a) without a finding of complexity or exceptional circumstances, which the district court did not make. I would remand for specific findings supporting the necessity for a master and for the appointment of an independent master, such as a magistrate judge.
Analysis:
This decision significantly clarifies the extent of Indian Tribes' treaty-reserved shellfish rights in Washington, affirming their broad scope over species and location, including private tidelands, while introducing an important 'fair share' limitation for commercially enhanced natural beds. The ruling reinforces the principle that courts cannot use equity to rewrite treaty terms but can use it for practical implementation. Future cases will need to grapple with the practical difficulties of determining 'pre-enhanced sustainable shellfish production' and balancing tribal access rights with private property interests, likely requiring careful ongoing judicial oversight and cooperation between parties. The decision's rejection of the Equal Footing Doctrine for harvesting rights underscores the unique and supreme nature of Indian treaty rights over state property law concepts.
