Makah Indian Tribe v. Quileute Indian Tribe, et al.

On the same day in 1859, the Senate ratified several treaties between the United States and Indian tribes in western Washington. The Treaty of Neah Bay secured to the Makah Indian Tribe the “right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.” The Treaty of Olympia secured to the Quileute Indian Tribe and Quinault Indian Nation, the southern neighbors of Makah along the Washington coast, the “right of taking fish at all usual and accustomed grounds and stations.” Unlike the Treaty of Neah Bay, the Treaty of Olympia expressed only a “right of taking fish”; it did not reference “whaling or sealing.” In this case, the Ninth Circuit held the “right of taking fish” in the Treaty of Olympia includes a right of whaling and sealing. Then, the Ninth Circuit held Quileute and Quinault’s “usual and accustomed” fishing grounds under the treaty extend beyond the areas in which the Tribes customarily fished to areas in which they hunted “‘marine mammals—including whales and fur seals.’” App. 15a (quoting district court). In the process, the Ninth Circuit extended Quileute and Quinault’s fishing right under the treaty to some 2,400 square miles of ocean—an area almost as large as the State of Delaware—in which the Tribes did not customarily fish at treaty time. The question presented is whether the Ninth Circuit—in conflict with the decisions of this Court and other courts—properly held the Treaty of Olympia confers this expansive “fishing” right.