FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAKAH INDIAN TRIBE,

Plaintiff-Appellant,

and

UNITED STATES OF AMERICA,

Plaintiff,

v.

QUILEUTE INDIAN TRIBE; QUINAULT 

INDIAN NATION,

Respondents-Appellees,

HOH INDIAN TRIBE; LUMMI INDIAN 

NATION; PORT GAMBLE S’KLALLAM 

TRIBE; JAMESTOWN S’KLALLAM 

TRIBE; SUQUAMISH INDIAN TRIBE;

TULALIP TRIBE; SWINOMISH INDIAN 

TRIBAL COMMUNITY; SKOKOMISH 

INDIAN TRIBE; SQUAXIN ISLAND 

TRIBE; NISQUALLY INDIAN TRIBE;

UPPER SKAGIT INDIAN TRIBE;

PUYALLUP TRIBE; MUCKLESHOOT 

TRIBE; LOWER ELWHA KLALLAM 

TRIBE; STILLAGUAMISH TRIBE,

Real Parties in Interest,

and

No. 15-35824

D.C. Nos.

2:09-sp-00001-

RSM

2:70-cv-09213-

RSM
2 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

STATE OF WASHINGTON,

Defendant.

MAKAH INDIAN TRIBE,

Plaintiff,

and

STATE OF WASHINGTON,

Appellant,

v.

QUILEUTE INDIAN TRIBE; QUINAULT 

INDIAN NATION,

Respondents-Appellees,

HOH INDIAN TRIBE; LUMMI INDIAN 

NATION; PORT GAMBLE S’KLALLAM 

TRIBE; JAMESTOWN S’KLALLAM 

TRIBE; SUQUAMISH INDIAN TRIBE;

TULALIP TRIBE; SWINOMISH INDIAN 

TRIBAL COMMUNITY; SKOKOMISH 

INDIAN TRIBE; SQUAXIN ISLAND 

TRIBE; NISQUALLY INDIAN TRIBE;

UPPER SKAGIT INDIAN TRIBE;

PUYALLUP TRIBE; MUCKLESHOOT 

TRIBE; LOWER ELWHA KLALLAM 

TRIBE; STILLAGUAMISH TRIBE;

UNITED STATES OF AMERICA,

Real Parties in Interest.

No. 15-35827

D.C. No.

2:09-sp-00001-

RSM

OPINION
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 3

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted August 30, 2017

Seattle, Washington

Filed October 23, 2017

Before: Michael Daly Hawkins and M. Margaret 

McKeown, Circuit Judges, and Elizabeth E. Foote,*

District Judge.

Opinion by Judge McKeown

SUMMARY**

Fishing Rights

The panel affirmed in part, and reversed in part, the 

district court’s judgment concerning the fishing rights in 

Western Washington of the Quileute Indian Tribe and the 

Quinault Indian Nation under the Treaty of Olympia.

The Treaty of Olympia protects the tribes’ “right of 

taking fish at all usual and accustomed grounds and stations” 

(“U & A”).

 * The Honorable Elizabeth E. Foote, United States District Judge for 

the Western District of Louisiana, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

The panel held that evidence of whaling and sealing was 

appropriate to establish U & A under the Treaty of Olympia. 

The panel also held that the Treaty of Olympia reserved the 

Quileute and Quinault’s right to take whales and seals. The 

panel further held that the district court properly looked to 

the tribes’ evidence of taking whales and seals to establish 

the U & A for the Quileute and Quinault, and did not err in 

its interpretation of the Treaty of Olympia.

The panel held that the Quileute and Quinault adequately 

identified the “grounds and stations” where they engaged in 

whaling and sealing, and rejected the State of Washington’s 

suggestion that the tribes must identify specific locations.

The panel reversed the district court’s order imposing 

longitudinal boundaries where the tribes could fish because 

they did not match the district court’s U & A determinations 

for the Quileute and Quinault. The panel held that the law 

does not dictate any particular approach or remedy that the 

court should institute, and directed the district court on 

remand to draw boundaries that are fair and consistent with 

the court’s findings.

COUNSEL

Mark D. Slonim (argued) and Joshua Osborne-Klein, Ziontz 

Chestnut, Seattle, Washington, for Plaintiff-Appellant.

Lauren J. King (argued) and Jeremy R. Larson, Foster 

Pepper PLLC, Seattle, Washington; Eric J. Nielsen, Nielsen 

Broman & Kock PLLC, Seattle, Washington; John A. 

Tondini, Byrnes Keller Cromwell LLP, Seattle, Washington;

for Respondents-Appellees.
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 5

Joseph V. Panesko and Michael S. Grossman, Senior 

Counsel; Robert W. Ferguson, Attorney General; Office of 

the Attorney General, Olympia, Washington; for DefendantAppellant.

OPINION

McKEOWN, Circuit Judge:

Who would imagine that more than 150 years after the 

Treaty of Olympia (the “Treaty”) was signed between the 

United States and the Quileute and Quinault tribes, we would 

be asked to determine whether the “right of taking fish” 

includes whales and seals? Although scientists tell us sea 

mammals are not fish,1 these appeals ask us to go back to the 

1855 treaty negotiation and signing and place ourselves in 

the shoes of two signatory tribes—the Quileute Indian Tribe 

(the “Quileute”) and the Quinault Indian Nation (the 

“Quinault”)—to determine what they intended the Treaty to 

cover. In light of the evidence presented during the 23-day 

trial, the district court did not clearly err in its finding that 

 1 Modern popular culture recognizes that whales are mammals, not 

fish. An amusing exchange between two of the characters on Seinfeld

provides one illustration:

George: I’m such a huge whale fan. These marine 

biologists were showing how they communicate with 

each other with these squeaks and squeals, what a fish!

Jerry: It’s a mammal.

George: Whatever.

Seinfeld: The Marine Biologist (NBC television broadcast Feb. 10, 

1994).
6 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

the Quileute and Quinault understood that the Treaty’s 

preservation of the “right of taking fish” includes whales and 

seals. The court’s extensive factual findings supported its 

ultimate conclusion that “‘fish’ as used in the Treaty of 

Olympia encompasses sea mammals and that evidence of 

customary harvest of whales and seals at and before treaty 

time may be the basis for the determination of a tribe’s [usual 

and accustomed fishing grounds].” We affirm the court’s 

judgment on that score. However, we reverse the court’s 

delineation of the fishing boundaries because the lines drawn 

far exceed the court’s underlying factual findings.

Background

This appeal is one of many stemming from the longrunning litigation over fishing rights in Western 

Washington. As we have noted, this litigation has a “lengthy 

background.” Tulalip Tribes v. Suquamish Indian Tribe, 

794 F.3d 1129, 1131 (9th Cir. 2015). The story began in the 

mid-1850s, when Governor Isaac Stevens approached the 

tribes of Western Washington with a proposal that the tribes 

cede most of their land to the United States but without 

giving up certain vital rights. His endeavor was successful: 

from December 1854 to January 1856, the United States 

entered into a series of similarly-worded treaties with the 

Washington tribes. Crucial to this appeal, the tribes 

preserved their right to “tak[e] fish” at all “usual and 

accustomed grounds and stations.” That right has 

engendered a number of disputes between and among tribes 

about where each tribe can and cannot fish.

Here we address the Treaty of Olympia, which the 

Quileute and Quinault (as well as the Hoh Indian Tribe) 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 7

signed in July 1855. As with the other Stevens Treaties,2 the 

Treaty protects the tribes’ “right of taking fish at all usual 

and accustomed grounds and stations” (“U&A”). Treaty of 

Olympia, art. III, July 1, 1855–Jan. 25, 1856, 12 Stat. 971, 

972. In 1974, Judge Boldt of the Western District of 

Washington established standards and procedures for 

determining a tribe’s U&A and made U&A determinations 

for several tribes. United States v. Washington, 384 F. Supp. 

312 (W.D. Wash. 1974) (Decision I), aff’d, 520 F.2d 676 

(9th Cir. 1975).

This case is one in the ongoing saga arising from Judge 

Boldt’s original decision but presents a slight twist on the 

usual facts. Rather than asking whether the Quileute and 

Quinault have presented enough evidence to establish U&A 

in a particular location, the central issue here is whether 

evidence of hunting whales and seals can establish where the 

Quileute and Quinault were “taking fish” at and before treaty 

time.

Litigation on this issue began in 2009, when the Makah 

Indian Tribe (the “Makah”) followed procedures to invoke 

the district court’s continuing jurisdiction to determine “the 

location of any of a tribe’s usual and accustomed fishing 

grounds not specifically determined” in Decision I. The 

Makah asked the district court to adjudicate the western 

boundary of the Quileute’s U&A and the Quinault’s U&A in 

the Pacific Ocean. The court held a 23-day trial—exceeding 

 2 We refer to the Treaty of Olympia as a “Stevens Treaty,” as it was 

one of the similarly-worded treaties entered into by Governor Stevens 

between December 1854 and January 1856. In February 1855, Stevens 

negotiated with the Quinault a draft that formed the basis for the Treaty 

negotiations. On July 1, 1855, Stevens sent Colonel Michael Simmons 

in his stead to negotiate the Treaty, which Stevens signed on January 25, 

1856.
8 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

the length of Judge Boldt’s original trial leading to Decision 

I—and issued extensive findings. 

Employing the Indian canon of construction, the court 

considered the Quileute and Quinault’s understanding of the 

Treaty’s ambiguous use of the word “fish” and found that, 

based on the historical and linguistic evidence, the tribes 

intended the term “fish” to encompass whales and seals. The 

court then looked at the evidence of pre-treaty Quileute and 

Quinault whaling and sealing and set the Quileute’s U&A 

boundary at 40 miles offshore and the Quinault’s U&A 

boundary at 30 miles offshore. Both the Makah and the State 

of Washington appeal. 

Analysis 

Evidence of Whaling and Sealing Is Appropriate 

to Establish U&A Under the Treaty of Olympia 

A. Makah Is Not Law of the Case 

The crux of this appeal is whether the term “fish” in the 

Treaty includes whales and seals. The Makah seeks to shortcircuit the inquiry by reference to United States v. 

Washington (Makah), 730 F.2d 1314 (9th Cir. 1984). In the 

Makah’s view, we need not do much analytical heavy-lifting 

here because we already ruled in Makah that evidence of 

whaling and sealing cannot establish U&A. That reading of 

the case obscures what was actually decided and ignores a 

linchpin issue—in Makah we considered the Makah’s Treaty 

of Neah Bay, not the Treaty of Olympia. 

The two treaties have an important textual difference: 

unlike the Treaty of Olympia, the Treaty of Neah Bay 

secures “[t]he right of taking fish and of whaling or sealing

at usual and accustomed grounds and stations.” Treaty of 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 9

Neah Bay, art. IV, Jan. 31, 1855, U.S.–Makah, 12 Stat. 939, 

940 (emphasis added). In addressing the Treaty of Neah 

Bay, we concluded that the Makah did not establish that its 

U&A extends 100 miles from the shore out to sea. Makah, 

730 F.2d at 1318. Given the express protection of the right 

to whale and seal, we had no need in Makah to separate out 

fishing from whaling and sealing or to address the 

significance of different types of evidence. It should be 

obvious that Makah is neither controlling nor informative 

because the question whether the Treaty of Olympia’s “right 

of taking fish” includes whales and seals was not “decided 

explicitly or by necessary implication.” United States v. 

Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). Just 

as obviously, we cannot simply transport analysis of the 

Treaty of Neah Bay to the Treaty of Olympia because the 

member tribes’ intent is important to, if not dispositive of, 

the meaning of particular provisions. See Choctaw Nation 

of Indians v. United States, 318 U.S. 423, 432 (1943) 

(holding that treaties involving Indian tribes “are to be 

construed, so far as possible, in the sense in which the 

Indians understood them . . . .”).

In Makah we described the question presented as “what 

. . . we find to be the Makahs’ usual and accustomed fishing 

areas.” 730 F.2d at 1316. Consistent with that narrow 

framing of the issue on appeal, in discussing whether the 

Makah had presented sufficient evidence to establish its 

U&A out to 100 miles from shore, we explained:

Ocean fishing was essential to the Makahs at 

treaty time. The Makahs probably were 

capable of traveling to 100 miles from shore 

in 1855. They may have canoed that far for 

whale and seal or simply to explore. They 

did go that distance at the turn of the century, 
10 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

although it is not clear how frequently. 

About 1900, they fished regularly at areas 

about 40 miles out, and probably did so in the 

1850’s.

These facts do not show that their usual and 

accustomed fishing areas went out 100 miles 

in 1855. There is no basis for an inference 

that they customarily fished as far as 

100 miles from shore at treaty time.

On the contrary, Dr. Lane [an anthropologist] 

suggested that the Makahs would travel that 

distance only when the catch was insufficient 

closer to shore. The earliest evidence of 

insufficient catch was Oliver Ides’ statement 

about disappearing halibut when he was 

young, some 50 years after the treaty. Even 

under the less stringent standards of proof of 

this case, we cannot conclude that the 

Makahs usually and customarily fished 

100 miles from shore in 1855.

Id. at 1318.

The first paragraph hones in on the absence in the 

Makah’s evidence of regular fishing at 100 miles from 

shore. Although members of the Makah “were capable of

traveling to 100 miles from shore” and “[t]hey may have

canoed that far for whale and seal or simply to explore,” at 

the turn of the century it was “not clear how frequently” they 

fished at that distance. In contrast, we noted that “[a]bout 

1900, they fished regularly at areas about 40 miles out, and 

probably did so in the 1850’s.” Based on those facts and 

inferences, we held that the Makah’s U&A did not extend 

100 miles into the ocean.
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 11

The concluding paragraph builds on that analysis, citing 

to Dr. Lane’s suggestion that “the Makahs would travel 

[100 miles from shore] only when the catch was insufficient 

closer to shore.” Because “[t]he earliest evidence of 

insufficient catch” came “some 50 years after the treaty,” 

there was no basis to say that the Makah often traveled to the 

100-mile mark at or before treaty time. The disparity 

between the Makah’s evidence with respect to 40 miles 

versus 100 miles drove our conclusion that the Makah did 

not “usually and customarily fish[] 100 miles from shore in 

1855.”

This is not the first time that we have characterized 

Makah as turning on the extent of the evidence presented. In 

an appeal involving the Tulalip Tribes, we noted that the 

“[e]vidence of frequent fishing in the disputed areas is 

stronger . . . than in the Makah case.” United States v. 

Lummi Indian Tribe, 841 F.2d 317, 320 (9th Cir. 1988). 

While the Makah’s evidence provided “no basis for an 

inference that [the Makah] customarily fished as far as 

100 miles from shore at treaty time,” the Tulalip Tribes’ 

evidence “readily support[ed] an inference that the Tulalips 

frequently fished the disputed areas.” Id. This later case 

reinforces that Makah did not explicitly or implicitly decide 

the question of what role whaling and sealing evidence plays 

in a U&A determination, let alone address the Treaty of 

Olympia.

B. The Treaty of Olympia Reserves the Quileute 

and Quinault’s Right to Take Whales and 

Seals

Having put the Makah case in context, we turn to the 

interpretation of the Treaty of Olympia. The pertinent 

provision reads:
12 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

The right of taking fish at all usual and 

accustomed grounds and stations is secured 

to said Indians in common with all citizens of 

the Territory, and of erecting temporary

houses for the purpose of curing the same; 

together with the privilege of hunting, 

gathering roots and berries, and pasturing 

their horses on all open and unclaimed lands. 

Provided, however, That they shall not take 

shell-fish from any beds staked or cultivated 

by citizens; and provided, also, that they shall 

alter all stallions not intended for breeding, 

and shall keep up and confine the stallions 

themselves.

Treaty of Olympia, supra, 12 Stat. at 972 (emphasis added). 

The parties dispute whether the term “fish”—and the 

corresponding right to “tak[e] fish”—embraces whales and 

seals.

1. Textual Ambiguity

The text of the Treaty of Olympia does not nail down 

whether the term “fish” was meant to include or exclude 

whales and seals. At the time of signing, “fish” had multiple 

connotations of varying breadth. For example, Webster’s 

Dictionary simultaneously defined “fish” broadly as “[a]n 

animal that lives in water” (which would include whales and 

probably seals) and narrowly as a “name for a class of 

animals subsisting in water” that “breathe by means of gills, 

swim by the aid of fins, and are oviparous” (which would 

exclude whales and seals). Webster’s American Dictionary 

of the English Language (1828). Other sources also 

acknowledged the popular understanding that the word 

“fish” could cover sea mammals; for example, the Supreme 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 13

Court wrote that “For all the purposes of common life, the 

whale is called a fish, though natural history tells us that he 

belongs to another order of animals.” In re Fossat, 69 U.S. 

649, 692 (1864).

The context in which the term “fish” is used does nothing 

to resolve the ambiguity. Although the Treaty preserves the 

“right of taking fish,” the action of “taking” is far-reaching 

and offers no meaningful constraint. Tribes may “tak[e]”

whales and seals just as they may “tak[e]” fish. The shellfish 

proviso—which prohibits the tribes from “tak[ing] shellfish 

from any beds staked or cultivated by citizens”—is similarly 

inconclusive, though it tends to point to a broader definition 

of fish. See United States v. Washington (Shellfish), 

157 F.3d 630, 643 (9th Cir. 1998). We are left uncertain as 

to whether the Treaty employs the narrow or broad 

definition.

Nevertheless, the parties’ decision to employ capacious 

language, and particularly the expansive word “fish,” 

provides an indication of the provision’s comprehended 

scope. As we have recognized, if “the Treaty parties 

intended to limit the harvestable species, the parties would 

not have chosen the word ‘fish’” because that word has 

“perhaps the widest sweep of any word the drafters could 

have chosen.” Id. (citation omitted). Notably, Judge Boldt’s 

original determination of the Quileute’s U&A relied on 

evidence of harvesting sea mammals. See Decision I, 384 F. 

Supp. at 372 (noting that “[a]long the adjacent Pacific Coast 

Quileutes caught . . . seal, sea lion, porpoise and whale”).

The Makah does not advance a competing interpretation 

of the actual words of the Treaty of Olympia. Instead, it 

jumps to language in its own Treaty of Neah Bay, which 

explicitly references the right of “whaling [and] sealing” in 

addition to the right of “taking fish.” The Makah contends 
14 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

that, to avoid the problem of surplusage, the right of “taking 

fish” must be construed so as to exclude “whaling [and] 

sealing.” That argument is hard to swallow because we are 

not even talking about the same treaty.

As the district court observed, the Treaty of Neah Bay is 

of limited import because it “w[as] negotiated by different 

individuals and in [a] different context[].”3 Indeed, the 

“argument that similar language in two Treaties involving 

different parties has precisely the same meaning reveals a 

fundamental misunderstanding of basic principles of treaty 

construction.” Minnesota v. Mille Lacs Band of Chippewa 

Indians, 526 U.S. 172, 202 (1999). Rather than comparing 

and contrasting language and rights across treaties, courts 

“must interpret a treaty right in light of the particular tribe’s 

understanding of that right at the time the treaty was made.” 

United States v. Smiskin, 487 F.3d 1260, 1267 (9th Cir. 

2007).

2. Indian Canon of Construction

Recognizing the ambiguity in the Treaty and 

underscoring that the Treaty of Neah Bay does not control 

interpretation of the Treaty of Olympia brings us to the 

Indian canon of construction. As a general rule, treaties “are 

to be construed, so far as possible, in the sense in which the 

Indians understood them,” Choctaw Nation, 318 U.S. at 432, 

and “ambiguous provisions [should be] interpreted to their 

benefit,” Cty. of Oneida v. Oneida Indian Nation, 470 U.S. 

226, 247 (1985). That rule applies to “[t]reaty language 

 3 One difference was that Colonel Simmons, sent by Governor 

Stevens to negotiate the Treaty of Olympia in Stevens’s stead, “lacked 

the authority to tailor provisions in the way that [] Stevens was able to 

do when negotiating the Treaty of Neah Bay.”
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 15

reserving hunting, fishing, and gathering rights.” Cohen’s 

Handbook of Federal Indian Law § 18.02, at 1157 (Nell 

Jessup Newton ed., 2012). The Makah, however, seeks to 

cut off the Quileute and Quinault’s argument from the getgo, asserting that the Indian canon does not apply here 

because “expand[ing] [the Quileute’s and Quinault’s] 

traditional fishing grounds adversely affects Makah.” The 

Makah’s contraction of the Indian canon is unwarranted.

Implicit in the Indian canon is the recognition that this 

principle inures to the benefit of the tribes that are parties to 

the treaty. As the Supreme Court has explained, the ultimate 

question is “how the [Indian] signatories to the Treaty 

understood the agreement because we interpret Indian 

treaties to give effect to the terms as the Indians themselves 

would have understood them.” Mille Lacs, 526 U.S. at 196 

(emphasis added). The canon is “rooted in the unique trust 

relationship” between the United States and the sovereign 

tribes, who stood in an unequal bargaining position. Cty. of 

Oneida, 470 U.S. at 247; Jones v. Meehan, 175 U.S. 1, 11 

(1899). As a non-signatory party, the Makah cannot usurp 

application of the Indian canon with respect to the Treaty of 

Olympia. Such an incursion would undermine tribal 

sovereignty and the signatory tribes’ government-togovernment relations. See Tavares v. Whitehouse, 851 F.3d 

863, 877 (9th Cir. 2017); Cohen’s, supra, § 2.02, at 117.

The Makah reads our precedent too broadly to advocate 

for its seemingly limitless rule that the Indian canon is 

inapplicable whenever another tribe would be 

disadvantaged. Not surprisingly, the Makah cites authority 

involving tribes claiming contradictory rights under the 

same statute or treaty; in those circumstances, the Indian 

canon is indeterminate because the government owes the 

same legal obligations to all interested tribes and “cannot 
16 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

favor one tribe over another.” Rancheria v. Jewell, 776 F.3d 

706, 713 (9th Cir. 2015); Confederated Tribes of Chehalis 

Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir. 

1996).

Here, by contrast, we are faced with an interpretive 

choice that would favor the signatory tribes on the one hand 

and the United States on the other. See Rancheria, 776 F.3d 

at 713. That conceptualization of the Indian canon also fits 

with Judge Boldt’s recognition that a tribe may establish 

U&A in an area “whether or not other tribes then also fished 

in the same waters.” Decision I, 384 F. Supp. at 332. To the 

extent the Indian canon plays a part in understanding the 

Treaty, it is appropriate to invoke it here. We also note that 

we would reach the same conclusion without a beneficial 

preference, as the evidence alone supports a broad 

interpretation of the Treaty language.

3. Intent of Quileute and Quinault

To ascertain the tribes’ understanding, courts “may look 

beyond the written words to the history of the treaty, the 

negotiations, and the practical construction adopted by the 

parties.” Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1511 

(2017) (quoting Volkswagenwerk Aktiengesellschaft v. 

Schlunk, 486 U.S. 694, 700 (1988)). After a 23-day bench 

trial, followed by 83 pages of Findings of Fact and 

Conclusions of Law, the district court undertook this task in 

a thoughtful and comprehensive manner.

Central to our review is the district court’s ultimate 

determination “that the Quinault and Quileute’s usual and 

accustomed fishing locations encompass those grounds and 

stations where they customarily harvested marine 

mammals—including whales and fur seals—at and before 

treaty time.” This conclusion rested on the extensive factual 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 17

findings of the treaty negotiators’ intent—including the 

finding that the Quileute and Quinault understood the term 

“fish” covered whales and seals—and the underlying 

findings of historical fact, which were not clearly erroneous. 

See Shellfish, 157 F.3d at 642.

The general context and tenor of the negotiations is a 

helpful starting point. Governor Stevens was appointed to

negotiate with the tribes to extinguish their claims to 

Washington land and allow for peaceful cohabitation of 

Indians and non-Indians. During negotiations, the Indians’ 

main concern was reserving their “freedom to move about to 

gather food at their usual and accustomed fishing places” 

because harvesting fish was necessary for survival. Stevens 

and the other treaty commissioners made assurances 

throughout the process that the Indians would be able to 

continue their fishing activities and nowhere indicated that 

the Indians’ existing activities would be restricted or 

impaired by the treaties.

Stevens’s first attempt to reach an agreement with the 

Quinault in February 1855 at Chehalis River failed for 

reasons unrelated to this dispute. But in July 1855, the

Quileute and Quinault (as well as the Hoh Indian Tribe) 

entered into the Treaty of Olympia, which protects the tribes’

“right of taking fish.”

The minutes from the failed negotiations offer some 

insight into key negotiating points, as the draft treaty from 

Chehalis River formed the basis for the negotiations of the 

Treaty of Olympia.4 Like Indians in other Stevens Treaty 

 4 The value of the minutes is somewhat diminished because the 

Quileute was not officially represented at this council; the tribe did, 

however, send along members to watch.
18 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

negotiations, the Indians at Chehalis River sought to 

preserve their entire subsistence cycle and worried that they 

would not be able to feed themselves if they ceded too much 

land. The commissioners explained that the treaty would 

confine where the tribes would live but would “not call[] 

upon [them] to give up their old modes of living and places 

of seeking food.” Stevens informed the tribes that the treaty 

“secures [their] fish” and permits them to “take fish where 

[they] have always done so and in common with the whites.”

Multiple aspects of the Treaty of Olympia negotiations 

shed light on the Quileute and Quinault’s understanding of 

the scope of “fish.” Although minutes from the negotiations 

do not exist today, the district court relied on ethnology 

studies and expert reconstructions of what likely happened 

at the negotiations. Because the commissioners and tribes 

did not speak the same languages, they used a limited trade 

medium of communication called Chinook jargon for 

translation. Colonel Shaw, the treaty commission’s official 

interpreter, translated provisions and remarks from English 

to Chinook jargon, then Indian interpreters translated the 

Chinook jargon into the tribes’ native languages.

One linguistic clue provides powerful evidence that the 

Quileute and Quinault assigned a broad meaning to the use 

of “fish.” The district court found, based on linguist 

Professor Hoard’s testimony, that “[t]he negotiators most 

likely used the Chinook word ‘pish,’” which translates into 

English as “fish.” The court credited Professor Hoard’s 

explanation that the negotiators would have opted for a 

broad cover term because Chinook language had general 

terms referring to large groups (like “fish”) and specific 

terms referring to individual species (like “whales,” “seals,” 

and “salmon”) but no intermediate terms referring to 

taxonomies (like “finfish” and “sea mammals”).
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 19

The Quileute’s and Quinault’s corresponding words for 

“pish” have even wider sweep. Like Chinook jargon, the 

Quileute and Quinault languages have no intermediate terms 

for taxonomies. As Professor Hoard explained, the Quileute 

would likely have used “?aàlita?,” which translates as “fish, 

food, salmon.” Similarly, the Quinault’s term “Kémken” is 

defined alternatively as “salmon,” “fish,” and “food.” 

Because the Quileute and Quinault traditionally harvested 

whales and seals for food at and before treaty time, these 

pieces of linguistic evidence strongly support the district 

court’s finding that the tribes “would have understood that 

the treaty reserved to them the right to take aquatic animals, 

including . . . sea mammals, as they had customarily done.”

The Makah counters that the Chinook, Quileute, and 

Quinault languages had separate words for “fish,” “whales,” 

and “seals” as well as for “fishing,” “whaling,” and 

“sealing.” But the mere existence of different words does 

not preclude some overlap in meaning. Such reasoning is as 

faulty as concluding that “tennis” and “volleyball” are not 

“sports” because “tennis,” “volleyball,” and “sports” are 

different words. Nor does the Makah’s identification of 

practical and cultural differences in the real-world 

occupations of fishing, whaling, and sealing bridge that gap. 

Additionally, that the tribes had distinct terms available does 

not undermine what terms were actually utilized and how the 

Quileute and Quinault would have translated them. Because 

the Makah does not dispute that “pish” was used during 

negotiations and that “pish” can mean something as broad as 

“food” in the Quileute and Quinault languages, it has not 

shown that the district court’s findings were erroneous, let 

alone clearly erroneous.

The district court made extensive findings regarding 

fishing and subsistence activities at the time of the treaty. 
20 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

For both the Quileute and the Quinault, “fishing constituted 

the principle economic and subsistence activity . . . at and 

before treaty time.” As to the Quinault, “whale, seal, otter, 

deer, bear, elk, sea-gulls, ducks, geese,” and “a variety of 

shellfish” were among the wide range of animals harvested. 

Among other witnesses, Dr. Ronald Olson, an ethnologist, 

described in detail offshore fishing, whaling, and fur sealing. 

As to the Quileute, Judge Boldt recognized the significant 

role of oceanic resources and found that before and at treaty 

time, the Quileute harvested diverse resources, specifically 

singling out seal, sea lion, porpoise, and whale, among 

others. Supporting the link between food and whales, the 

district court related testimony that “[t]he Indians did not 

want all fish or all whale but liked to get something of 

everything which they wanted to eat.” Multiple witnesses 

contributed to the detailed findings on Quileute offshore 

fishing, whaling, and fur sealing.

Evidence of post-treaty activities further supports the 

view that the Quileute and Quinault (and possibly even the 

commissioners) understood the Treaty to protect whaling 

and sealing. No party contests the district court’s finding 

that “[d]uring the post-treaty period, the[] tribes continued to 

harvest whales and seals from the Pacific Ocean” with active 

encouragement from government agents. Although the 

government’s acquiescence does not definitively show that 

the parties believed the right was preserved by the Treaty, 

the district court rightly noted that this important fact tends 

to suggest that “both sides believed the right to harvest sea 

mammals to have been reserved to the tribes.”

During the Chehalis River negotiations, neither the tribes 

nor the commissioners used the term “fish” in a manner 

inconsistent with its inclusion of whales and seals. The 

district court identified only two times where the tribes 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 21

mentioned sea mammals explicitly—in both instances, the 

Indians asked for beached whales. Stevens answered one 

request for beached whales by stating that the tribes “should 

have the right to fish in common with the whites, and get 

roots and berries.” Stevens replied to the other request with: 

“[The tribes] of course were to fish etc. as usual. As to 

whales they were theirs, but wrecks belonged to the owners 

. . . .” Neither statement is clear as to whether Stevens 

understood fish and whales to be synonymous or 

overlapping, but we do not read his statements as drawing an 

incompatible distinction between the two. The broader 

understanding finds further support in a book by James 

Swan, who attended the negotiations and later wrote that 

“[t]he Indians, however, were not to be restricted to the 

reservation, but were to be allowed to procure their food as 

they had always done.”

As a practical matter, interpreting “fish” to cover whales 

and seals also respects the reserved-rights doctrine, which 

recognizes that treaties reserving fishing rights on previously 

owned tribal lands do not constitute “a grant of rights to the 

Indians, but a grant of right from them—a reservation of 

those not granted.” United States v. Winans, 198 U.S. 371, 

381 (1905); Cohen’s, supra, § 18.02, at 1156–57. In other 

words, absent a clear written indication, courts are reluctant 

to conclude that a tribe has forfeited previously held rights 

“because the United States treaty drafters had the 

sophistication and experience to use express language for the 

abrogation of treaty rights.” Mille Lacs, 526 U.S. at 195. 

That doctrine favors reading the “right of taking fish” to 

include the Quileute’s and Quinault’s established historical 

whaling and sealing, particularly because there are 

independent indications that “fish” was understood that 

expansively. See Shellfish, 157 F.3d at 644 (employing the 

reserved-rights doctrine to assist in understanding the scope 
22 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

of a treaty provision that could otherwise be read to 

encompass the right at issue). That practical point further 

solidifies that the Quileute and Quinault understood the 

“taking fish” provision to cover whales and seals. 

Based on the considerable evidence submitted 

throughout the lengthy trial, the district court’s finding that 

the Quileute and Quinault intended the Treaty’s “right of 

taking fish” to include whales and seals was neither illogical, 

implausible, nor contrary to the record. We conclude that 

the district court properly looked to the tribes’ evidence of 

taking whales and seals to establish the U&A for the 

Quileute and the Quinault and did not err in its interpretation 

of the Treaty of Olympia. We do not address or offer 

commentary on whether the same result would obtain for the 

“right of taking fish” in other Stevens Treaties.

The Quileute and Quinault Have Identified the 

“Grounds and Stations” Where They Engaged in 

Whaling and Sealing

The State of Washington raises a separate argument, not 

joined by the Makah, namely whether the Treaty of 

Olympia’s “grounds and stations” language mandates that 

the Quileute and Quinault provide evidence of “specific 

location[s] that the[y] regularly and customarily hunted 

whales or seals.” (Emphasis added). This argument falls into 

the sea.

The State’s suggestion that the tribes must identify 

specific named locations directly conflicts with Judge 

Boldt’s description of “grounds and stations.” Judge Boldt 

defined “stations” as “fixed locations such as the site of a 

fish wier or a fishing platform or some other narrowly 

limited area” and “grounds” as “larger areas which may 

contain numerous stations and other unspecified locations 
 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 23 

which . . . could not then have been determined with specific 

precision and cannot now be so determined.” Decision I, 

384 F. Supp. at 332. 

While “stations” concerns particular locations and 

landmarks, “grounds” is not so limited. By definition, 

“grounds” includes “unspecified locations which . . . could 

not then have been determined,” vitiating the State’s 

assertion that the tribes must come forward with specific 

named locations. The State’s claim also runs headlong into 

the practical reality that documentation of Indian fishing in 

1855 is scarce, and requiring extensive and precise proof 

would be “extremely burdensome and perhaps impossible,” 

especially deep in the ocean. Shellfish, 157 F.3d at 644. The 

district court appropriately examined the substantial 

evidence of ocean whaling and sealing proffered by the 

Quileute and Quinault to determine that their usual and 

accustomed “grounds and stations” respectively extend 

40 miles offshore and 30 miles offshore. 5

The Longitudinal Lines Do Not Match the District 

Court’s Findings

Having made U&A determinations for the Quileute and 

Quinault, the district court endeavored to draw precise 

boundaries where the tribes could fish. The parties agreed 

as to the northern boundaries but “dispute how the parties 

believe the Western boundary for the Quileute and Quinault 

should be demarcated as the line proceeds south.” The court 

 5 Because no party challenges the adequacy of the submitted 

whaling and sealing evidence, there is no basis to overturn the district 

court’s 40- and 30-mile findings. Nor do we need to reach the Makah’s 

and the State’s separate contention that the evidence was insufficient to 

establish that the Quileute’s customary finfishing extended 20 miles 

offshore.
24 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

decided to use longitudinal lines because it had done so in a 

prior proceeding with respect to the Makah’s boundaries. 

The court started at the northernmost point of the Quileute’s 

U&A, drew a line 40 miles west, and used that longitudinal 

position as the western boundary for the entire area. The 

court did the same with 30 miles for the Quinault. The map 

below depicts the final result.

The Makah takes issue with the court’s use of a straight 

vertical line because the coastline trends eastward as one 

moves south. The Makah calculates the coast-to-longitude 

distance at the southernmost point as 56 miles for the 

Quileute and 41 miles for the Quinault. In other words, the 

Quileute’s and Quinault’s southernmost boundaries 

respectively extend 16 miles and 11 miles beyond the court’s 

finding of usual and accustomed fishing, and their total areas 

respectively sweep in an extra 413 square miles (16.9% of 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 25

the total 2,450 square miles) and 387 square miles (17.4% of 

the total 2,228 miles). The result would be different, for 

example, had the boundary lines been drawn parallel to the 

coastline.

These significant disparities underscore the deficiencies 

in the court’s longitudinal boundaries. The language of the 

Treaty of Olympia and countless judicial opinions spell out 

that the proceedings are designed to evaluate where the 

tribes were engaged in usual and accustomed fishing in 

1855. After the court made that determination here, it 

effectively nullified parts of that same determination by 

creating a boundary containing large swaths of ocean where 

the Quileute and Quinault did not present sufficient evidence 

to establish U&A. Of course, practical difficulties mean that 

courts need not achieve mathematical exactitude in 

fashioning the boundaries. Nevertheless, the error rate here 

is too high and sweeps in areas that extend beyond the 

court’s factual findings. In our view, there are other 

solutions that better approximate the court’s findings.

The court’s stated reason for invoking longitudinal lines 

was that the approach “is the status quo method of 

delineating U & A ocean boundaries by this Court” and 

“equity and fairness demand the same methodology for 

delineating the boundary at issue here.” Although 

longitudinal lines were used to mark the Makah’s western 

boundaries in a separate case, nothing in that case suggests 

that longitudinal lines are the required methodology. See 

United States v. Washington, 626 F. Supp. 1405, 1467 (W.D. 

Wash. 1985). Notably, the court drew longitudinal 

boundaries there “[o]n the basis of all evidence submitted 

and reasonable inferences drawn therefrom . . . .” Id. In 

denying a motion for reconsideration of the vertical 

boundaries, the court stated that the lines appropriately 
26 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE

reflected “with some certainty the extent of the area which 

the Court intends to encompass within its determination of a 

tribe’s treaty-secured fishing area.” United States v. 

Washington, No. 70-9213, Dkt. # 8763, Mem. Op. on Mot. 

for Recons., at 2 (W.D. Wash. Jan. 27, 1983). As shown in 

the map below, the lines tracked the coastline (and thus the 

court’s findings) in a way that avoids the problem presented 

by this case.

A different approach is warranted here to account for the 

dissimilarities between the cases. Although the Quileute and 

Quinault assert that the longitudinal lines also are 

appropriate because they are supported by the evidence, the 

boundaries do not reflect the district court’s findings. The 

Quileute and Quinault cannot vastly expand their U&A 

determinations without accompanying findings by the 

district court. Nor is the evidentiary gap solved by the 
MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE 27

court’s general statement that “tribal fishermen did not only 

fish due west of their villages, but moved in all directions 

from the coastline.”

Accordingly, we reverse the district court’s order 

imposing longitudinal boundaries. Because the law does not 

dictate any particular approach or remedy that the court 

should institute, we leave it to the court on remand to draw 

boundaries that are fair and consistent with the court’s 

findings.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.

Each party shall bear its own costs on appeal.