good morning in may it please the court my name is mark sloan and i represent the macaw tribe i'd like to reserve five minutes for rebuttal i'd like to begin with you're also splitting time yeah i know noting honor the state has decided not to argue at seventeen so you're you've got the whole time for years self to make all the arguments i'd like to begin with just a few words about how we got here the macaw tribe occupies a remote reservation on the northwest tip of the olympic peninsula there are no major salmon producing rivers in the tribes territory as a result the tribe has always relied heavily on ocean fisheries for its subsistence and its economy and it continues to do so today that is why mccall was alarmed when cleveland quote all announced plans to enter the pacific whiting fishery and preempt established macaw harvests in that fishery whiting migrate from south to north in the then asked the district court to define the western extent of call you in court all to usual and accustomed fishing grounds in the pacific ocean which had not previously been adjudicated to determine whether they had a legal right to fish in the offshore waters where the commercial whiting fishery takes place the district court after a twenty three day trial found it was a custom to fish twenty miles offshore treaty times but extended una up to fifty six miles offshore it found coin op fish up to six miles offshore a treaty times but extended its u n a up to forty one miles offshore the court erred in three respects first it relied on evidence of whaling unsealing to extend quoted in quality una's to areas in which they were not accustomed to fish this was inconsistent with the macaw case where the district of olympia correct it was a treaty of me a bit and so how can we use one treaty case just during a different treaty as binding in determining what happens here for several reasons your honor first of all argued in the district court in the district court agreed that the same principles must be determined must be applied to every un a determination regardless of the particular treaty involved grounds all tribes are subject to a common fifty percent ceiling on the treaty fishing right all un is must be based on the same standards so that's the first answer the second answer is that throughout this case the court has looked to the treaties and interpreted them together and it is never suggested that the right of taking fish in one treaty is any broader or narrower than any other treaty so that's the second answer apart from the specific ruling the district court made in this case went more than forty miles offshore to hunt whales and seals but it then limited macaws una to forty miles off shore based on a finding that that's how far mccall went to fish the necessary implication in limiting  macaw to forty miles in the face of that finding is that evidence of whaling in sealing could not be used to determine una this court affirmed this court did not set aside the finding that mccall went more than forty miles to fish to hunt whales and seals in fact the court said it may have gone one hundred miles offshore to hunt whales and seals or to travel but the court limited more cause you in a way to where it went to fish and the traveling issue is interesting because it's similar to some of the arguments you heard this morning una has to be determined based on where a tribe went to fish not where it went to travel not where it went to hunt whales not where it went to hunt seals that's the necessary implication of the really in the caucus they're talking about well here's one hundred miles and they possibly could've gone out there i mean i guess like i knew it was feasible but that there was no honor because the district court specifically found that mccaw got more than forty miles to fish it well it wasn't they may have done it or or we don't know there's a specific finding so when the court then limited macaw to forty miles it necessarily held that evidence could not be used in this court the court didn't say macaws were not going more than forty miles they said they may have gone up to one hundred miles for whales and seals but it didn't look to that evidence it looked to the fishing evidence and  defined macaws una based on the fishing evidence this is the second problem with the district court relying on whaling and sealing evidence is even if the macaw case didn't solve the issue there was no evidence in this case that either party to the treaty intended to expand and put all its traditional fishing grounds to areas where they hunted whales or seals the treaty fishing right is specifically limited to usual unaccustomed grounds we know from the macaw treaty that the treaty drafters distinguished fishing whaling in sealing they added a provision in the macaw treaty to the right of taking fish to encompass the right of whaling or sealing there would have been no need to do that if whaling unsealing were already encompassed within the right of taking fish and in the treaty councils gov stephen spoke repeatedly of securing the right indians right to fish where they always fish as they had always done as usual there was no suggestion that that right would be secured in vast ocean areas were quote unquote all did not fish but hunted whales or seals from the indians perspective there were fundamental and pervasive distinctions between fishing whaling and sealing in quote unquote all societies as with other coastal tribes those were separate occupations they were pursued by different people there were separate ritual societies to which they belonged there were separate ceremonies art and oral traditions surrounding each of those activities they use separate gear and separate in different canoes they went hunting for whales and seals the different times and places there is nothing to suggest in the treaty journals or in any other records from the treaties that the indians equated those activities or understood that securing a right to fish and usually a custom grounds meant they were securing a right to fish in places where they didn't fish on what about the linguistic reference yes i think it's pronounced which was then they say when it's translated it means not just fish but also means  sects were not our experts that it was that fish could be used to refer to all fish who but it wasn't those words were not used to refer to whales or seals there was there was no example that the expert could come up with that said that those words were used to refer to whales or seals and in fact dr horton when all the experts testified that there were separate words for whales and seals and separate words for whaling and sealing because those activities were common enough and ordinary enough to have words of their own dr whored just testified that that word could be used in a more wider sense to include all for all food but that can't be the meaning in the treaty if that's the meaning in the treaty then the right of taking fish includes hunting deer and elk which it does not there's a separate treaty provision to cover that it would include that might be limited by the normal interpretation of like kind oceangoing versus land going but but there was no evidence or any testimony that the word had this kind of ocean going connotation to it there were you had specific kinds of fish salmon you had all fish which was another use of the term which didn't include whales or seals and then you had all food you there was no word for all aquatic species there was no word or cultural concept that link those activities and there was no testimony to support that  so let me let me turn to two other issues the second issue that we raised in the case is the use of longitude no wind to define the boundaries and here are the core expressly relied on the macaw case but what and said once we know the outermost distance for these ocean una's will draw boundary at that distance in this case the district court said that quill you hunted first seals up to forty miles offshore so assuming you can count hunting for  that then drew a boundary on a line that's fifty six miles offshore at its southern end that added more than four hundred square miles this just that part of the decision alone added more than four hundred square miles to you and a more than the entire area that's at stake in the two cases you heard just before this one for quote all the court did the same thing it founded that if found that when all hunted whales and seals up to thirty miles offshore but then drew its western boundary along  longitudinal line that is forty one miles off shore at the southern end adding three hundred eighty or three hundred ninety square miles to its una again simply by not drawing straight lines that approximate the coast which was what was done in the macaw case the district court said that there was evidence of fishing in multiple directions to support its result there was no evidence for quite all at all on that point and as to even if you look at the map they produced and we didn't have an opportunity to respond to that map in the district court and we have a lot of problems with it but even if you look at that map it includes knocking about the quill or the the kind of the multi directional radius map even if you look at that map the district court's line adds about two hundred square miles to what that map shows the final issue that we've raised in the briefs concerns the finding with respect to fishing grounds the district court relied on three anthropologists to find that quickly fished twenty miles offshore at treaty times but two of those anthropologists directly contradict the just records finding the first one frac timber worked with the  offshore fisheries he said they never went more than two miles offshore to catch halibut and otherwise fished along rocks and reefs which are three to four miles offshore in the  has a reference to quickly travel twenty to thirty miles west but that was specifically linked in his manuscript to whaling and sealing not fishing the second anthropologist cited was dr saying who did a comparative study of the coastal tribes in the one nine hundred fifty s his report generally corroborates what fracking bird had to say according to saying the indians used only two small halibut banks south of cape flattery one near james island which is a few hundred metres offshore and one year destruction island four miles offshore the other ocean fisheries mentioned by dr saying were all within five or six miles offshore he did refer generally to how the banks eight to twelve miles off shore but those were the h banks off of the macaw area off of cape flattery in any event singh's ultimate finding that eight to or things reference to eight to twelve mile hell of a banks doesn't support the district court's twenty mile finding so the oh i'm sorry i thought because the calendar says twenty you have a reprieve come back rebuttal so ultimately what this came down to was the third anthropologist who didn't leave a report or any manuscript but has handwritten feel notes that were preserved one informant also was also one of dr singh's informants after years after the treaty and was interviewed by in this field note in one thousand nine hundred eighty nine almost one hundred years after the treaty clinton quote also experts say we don't know where he was referring to he might have been referring to fishing off cape flattery which judge martinez said did not begin until the post treaty period so you have a single ambiguous field noted and dr boksburg quoting can also expert off so emphasized how unreliable field notes are you have a single ambiguous field note in the face of two specific detailed reports that tell you that leads were fishing maybe five to ten miles offshore that we think was clear or the only rational only other thing judge martina said was this was an area but it is never been the rule in this case that it is sufficient to point to abundant fish in an area and say we must a fish there it's not enough for commerce to say fish were abundant in bellingham bay so we went there it's not enough for me to say fish were abundant off of would be island so we went there you need something more than that thank you and now you do have time for m that is an inherently factual issue which is why we had a trial because it was a fact issue the court's factual findings were made after exhaustive review of the longest trial in the forty seven year history of the united states you washington longer than the bull trial it was longer than the bull trial correct substantial evidence supports the district court's factual findings of quote unquote also understanding of their treaty the united states understanding and how far west quote unquote all customarily obtained seafood treaty times the district court properly applied long established legal principles to these facts and set the boundaries accordingly this court should affirm the district court's rulings in all respects i'd like to just get straight into the evidence  on the parties understanding the court found that it was clear from the evidence that all parties to the treaty of the libya understood the treaty fishing right to reserve broadly to the right to take and continue taking seafood including sea mammals from its customary places there was specific evidence that the district court cited to the demonstrated that the united states intended sea mammals to be part of the fishing right just as the court in shellfish found this district court found that in eight hundred fifty five fish meant all aquatic animals and that that was the sense that the united states intended the term to have in the treaty of olympia a fishing provision the district court specifically found that at the tree the treaty of she hails negotiations which were the negotiations that led up to the treaty of olympia that stevens use the term fish to refer to whales at that negotiation stevens also told the tribes as to whales they're yours and not cited in the district court's opinion on page ten it doesn't get much clearer than that there is also specific evidence that the united states did not intend to parcel this right out by species and instead probably promised the tribes a right to continue gathering their food from their usual places we had a unique circumstance at the negotiations where james swan a statler who spoke both english watch those negotiations and said that the tribes there which included nation into members of the tribe were told that the treaty allowed them to quote procure their food as they had always done and that's quoted on page eleven of the district court's opinion stephen statements in the minutes corroborate james wants records he told the tribes he wanted the them to quote take fish where you have always done so that sided on page seventy seven of the district court's opinion for ninety one the court also determined what understood their treaty to mean and that they would of understand the broad understood the broad meaning as well in their own language so  where do we know that the factual findings leave off and which we look at for clear and the legal interpretation which will look at the course or view of the parties understanding of the treaty is reviewed for clear understanding of their treaty it relied in part on the expert linguistic testimony of professor whored who was the only expert of the trial who had experience doing linguistic work with fluent quill used and should not jargon speakers professor who language meaning of the term in eight hundred fifty five the words ken ken and in the language is how they would have interpreted that treaty for fishing right and those words are kin to our use of the word bread  the english language narrowest and it means literally just that bread but at the broad and it means as in earning my daily bread my food or my income can can and similarly at the narrow and mean just salmon but at the broad end they refer to seafood and food generally they actually do refer to all aquatic animals and that is cited by the district court and is available in the record of record three hundred and three forty five to forty seven did not interpret or categorize species the same way that we do in modern day english justice professor horror testified and the district court found turning to the post treaty actions the court also found that they corroborated this broad understanding on both sides of the treaty the cause indian agent in eight hundred seventy nine came to them and said i want you to continue your fisheries of salmon and seal and whale as usual the district court correctly found that there was nothing in the adventure record that indicated that either party intended or understood anything narrower than seafood a lot of the case also shows that sea mammals are included in the fishing found at the launch of two lines it sat for a quote matched the evidence specifically took off from various fishing locations at numerous villages up and down their coast and that is in the record record  thirty eighteen through twenty seven you can see all of those villages up and down the coast and that they wouldn't just robotically fish somehow without the aid of g p s forty miles from shore but would instead pursue various species of whales and first seals that migrate over the continental shelf north and south just like longitude lines and the court correctly held that fishers did not trace the cork coast and neither should the boundary lines they should instead track what the fishermen were doing  at treaty times the federal regulators followed the same approach in one thousand nine hundred six when setting the same boundary lines for quote unquote off and finally in because reply brief they clarify that their northern boundary is where their forty mile line island and that is sixty miles off of their treaty time territory which did not include vancouver island one difficulty it seems to me is you don't have a district court finding that would put the una in this district court i would say clarified what he meant that those longitude lines fairly encompass what we proved a trial similar to what the district court found in the macaque case because we weren't just claiming forty miles a trial we showed evidence that these species were caught in the range of thirty to sixty miles offshore and if you can if you look at the maps like appendix one which shows are una you can see the shaded area over the continental shelf which where they would generally be pursuing all these species that migrate over the continental shelf so it actually did match with the evidence and the district court as the fact finder is accorded deference in that determination so i'm going to turn now to the argument that should be allowed to fin fish where they've been fish and sea mammal where they see mammal than shellfish were they shellfish treaty times that argument has been made numerous times in various iterations and has been rejected every time by the courts specifically in shellfish the district court in this court said that that argument fundamentally misconstrues the nature of the reserve the right which is a much broader right to catch whatever species come into your area treaty times the ninth circuit expressly said because the right of taking fish must be read as a reservation of the indians preexisting rights and because the right to take any species without limit preexisted the stevens treaties this court must read the right of taking fish without any species limitation and that's one fifty seven thirty six forty four the court further clarified that tribes did not even have to take shellfish treaty times in order to be able to take them throughout their una's now quote treaty time the tribes had the absolute right to harvest any species they desired consistent with their operational title the fact that some species were not taken at treaty times either because they were  whiting the tribe did not need to take shellfish at all i treaty times in order to catch it throughout their u n a and likewise did not need to take in fish at all in order to take it throughout their  instead there una for fin fish is coextensive with their una for all other species and as the district court correctly observed this is something that has been often explained in the forty seven year history of this case address the burden of proof first when we said that tribes should be subjected to the same standards we meant the burden of proof we didn't say that tribes should be subjected to each other's understanding of their treaties and you're right the olympia was not at issue in the macaw ocean fishing case in that case the one hundred mile claim was rejected based on because failure to show the requisite frequency it was not a species distinction and the courts appropriately focused in zeroed in on dr liens expressed statement that although mccall would have been capable of going one hundred miles offshore a treaty time excuse me they were not actually doing not treaty times he said this is not representative of what they were doing they would have little reason to go further than forty miles offshore treaty time she said because stocks were abundant within thirty to forty miles so this is my own expert saying that these hundred mile trips in one thousand nine hundred seventy were not representative of their treaty time behavior and the courts appropriately held that mere capability without more does not support an inference of customary treaty time fishing there are six other points that show that that case was about frequency and not a species distinction first the ninth circuit in its one nine hundred eighty eight let me case stated that my cause one hundred mile claim was  treaty interpretation which would have been unnecessary analysis if you're going to abrogate the preexisting rights to whales and seals third this court in the shellfish case which did do a treaty interpretation held that fish include all aquatic animals and that una's have never varied by species of aquatic animal finally well forth mccaw told this court in its brief in shellfish  five seven three there have never been separate una's adjudicated for different species of fish the macaw ocean fishing place this case cited by the growers is not such a case there the district court determined that mccaw customar indicates that that was included species in fishing you in age of terminations finally macaws own una would not extend the full forty miles offshore or include the whole southwest portion without evidence of seeing the animals because mccaw presented evidence of how that banks discreet how the banks located in the north west area una so turning back to the shellfish case the court there made another important finding that's relevant here which is at that time the court reviewed to twenty seven year history of the united states few washington and held that courts have never required tribes to adjudicate species specific u species and then turning to the determination of the overall area it was a broad determination that quote unquote not caught aquatic species throughout their area out to forty and thirty miles off shore they did this from numerous coastal villages that stretch from north to south along the full range of their homelands which again you can see accepted record three zero one eight two two seven the court's decision on pages thirteen to fifty seven meticulously details the numerous species quote unquote harvested from near shore all the way to waters over the continental shelf where whales and seals migrate north to south and were regularly harvest it is a basic principle of treaty construction that you must examine the historical record and negotiations unique to that treaty and not on the basis of reference to another treaty so here the macaw case if it was about their that mining was not upset by this court in focusing on evidence of fishing dr lane's report supported that finding she said mccaw fish thirty to forty miles offshore but we couldn't determine the outer limits of whaling and sealing and she provided evidence of extensive days it sea whaling unsealing and post evidence of macaws going forty fifty and a hundred miles offshore the problem here is the district court instead of accepting what the mccall court said we tried that case and decided it would have decided it on another basis sufficiency the evidence that wasn't the basis for the decision the ninth circuit did not characterize it that way in the lonny case it distinguish the evidence of whaling from evidence of fishing in  court said is that that evidence doesn't give you fishing una and it has never been done in this case the shellfish case is the opposite of this case in the shellfish case the plain language of the treaty told you that shellfish were fish and that was in the shellfish proviso you have a right of taking fish provided you can't take them from certain areas what the district court in this court both emphasized was the plain language of the treaty told the shellfish or fish here we have plain language in the macaw treaty that tells us wheeling unsealing is not fishing and there is nothing in the records of the council or other records relating to the quilly treaty that tells us anything different there is a lot of statements about harvesting fish as usual but that's not what cool you cannot want they don't want to secure their traditional fishing grounds in the rivers and in near shore waters they want fishing grounds far off shore where they'd never fish that's never been done in this case and if it's done here we'll be back with mummy saying even if we can't prove una off of the west coast it would be island with fishing maybe we went sealing there or sequoia mish saying we went up to bellingham bay for seals or south sound tribe saying we went for their north we've spent forty six years adjudicating travel una's and we're going to start all over if there's a new basis for  not it doesn't control interpretation of the call you treaty that's not what we're saying what we're saying is if you want to know what the treaty drafters understood by the right of taking fish and specifically whether included whaling or sealing the macaw treaty is the best evidence we have that it didn't include whaling or sealing but the because of that but the macaw treaty is a different treaty to i mean it actually has it's it has the terms in there so it just seems like it's you know this the exact same treaty commission on the american side was present at neah day and it's a hail us when the first attempt to negotiate the treaty even libya was made to those members were again present when the treaty was actually signed or agreed to b and governor stevens the third member in the leader actually signed the treaty so we have the same personnel one month later negotiating the treaty and if you know want to know their intent about whaling in sealing it seems to me what they did in the macaw treaty is the best evidence we have of that and there's other evidence that people distinguish fish in whales stevens did it we've got an eight hundred forty nine court case where the court says congress is less interested in whaling than fishing the distinctions between fishing and whaling were not uncommon at the time of the treaty and then on the indian side we have overwhelming evidence that these are different activities that willing and stealing were not fishing they were important occupations and they were different and we don't have anything from the treaty journals or any other evidence that suggests that the indians thought by reserving a right to fish in their usual the custom grounds they were suddenly providing for a vast other cases again excellent arguments and very good anything and we appreciate that by all parties here and words you're in for the morning