## Facts

- In the 1850s, several tribes and the United States entered treaties reserving to the tribes the right of taking fish at usual and accustomed grounds, subject to a proviso excluding shellfish beds “staked or cultivated by citizens.”
- Washington later authorized and conducted extensive sales of tidelands to private parties, including areas containing natural shellfish beds.
- Private landowners and commercial growers asserted exclusive harvesting rights on privately owned tidelands and sought to exclude tribal members from shellfish gathering there.
- The United States and tribes sought declaratory and remedial relief establishing that treaty fishing rights include shellfish and defining the scope of the shellfish proviso.
- After a bench trial, the district court ruled that: (1) “fish” includes shellfish; (2) tribes are entitled to up to one-half of harvestable shellfish within usual and accustomed areas, subject to the proviso; and (3) the proviso excludes only artificially created shellfish beds, not natural beds later sold into private ownership.
- The State and intervening private tideland owners/growers appealed the treaty interpretations and aspects of the remedial framework, including treatment of enhanced or partially improved beds and compensation-related provisions.

## Issues

1. Whether “fish” in the treaties includes shellfish taken at usual and accustomed grounds and stations.
2. Whether the shellfish proviso excluding beds “staked or cultivated by citizens” applies to all privately owned tidelands or only to beds made productive by human cultivation.
3. Whether state tideland sales and resulting private property interests can extinguish or limit reserved federal treaty rights.
4. Whether tribes are entitled to up to 50% of harvestable shellfish on qualifying beds and whether the district court’s allocation and implementation orders were within its authority.

## Decision

- The Ninth Circuit largely affirmed the district court’s judgment, with limited modifications and clarifications to remedial details and a limited remand.
- The court held that “fish” in the treaties includes shellfish.
- The court held the shellfish proviso is narrow and excludes tribal harvest only from truly artificial beds created by staking or cultivation, not from natural beds merely because they are privately owned.
- The court held treaty rights were not extinguished by state tideland sales; private purchasers take title subject to reserved treaty rights.
- The court upheld the general rule that tribes may take up to one-half of harvestable shellfish of each species from natural beds within usual and accustomed areas, subject to conservation and public health regulation applied without discrimination.
- The court largely upheld the remedial approach addressing enhanced or mixed beds, permitting measures that protect tribal access to natural production while accounting for the increment attributable to private enhancement efforts.

## Legal Principles

- Indian treaties are construed as the tribes would have understood them at the time of signing; ambiguities are resolved in favor of the tribes.
- Treaty terms concerning “fish” can include shellfish when consistent with historical understanding and customary tribal harvest practices.
- A treaty proviso excluding “staked or cultivated” shellfish beds protects beds made productive by human cultivation; it does not categorically bar treaty harvest from all privately owned tidelands.
- State law and state-created property interests cannot abrogate or curtail federally reserved treaty rights absent clear congressional authorization; private titles acquired from the state remain burdened by treaty rights.
- Treaty harvest rights may be subject to reasonable and necessary conservation and public health regulation that is non-discriminatory as between tribal and non-tribal harvesters.
- Equitable remedial orders may distinguish between natural shellfish production protected by treaty rights and additional production attributable to private enhancement, so long as the treaty entitlement to natural production is preserved.

## Conclusion

The Ninth Circuit confirmed that treaty-reserved fishing rights in western Washington include shellfish, that tribes may take up to one-half of harvestable shellfish from natural beds within usual and accustomed areas, and that the shellfish proviso excludes only genuinely artificial cultivated beds; state tideland sales and private ownership do not eliminate these treaty rights, and implementation may account for private enhancements while preserving the tribal share of natural production.


United States v. Washington, 157 F.3d 630 (9th Cir. 1998)