Confederated Tribes and Bands of the Yakama Indian Nation v. Confederated Tribes of the Colville Indian Reservation ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff,
v.
CONFEDERATED TRIBES OF THE
COLVILLE INDIAN RESERVATION,
Respondent-Appellee,
No. 08-35961
and
 D.C. No.
STATE OF OREGON; STATE OF 3:68-cv-00513-KI
WASHINGTON,
Defendants,
v.
CONFEDERATED TRIBES AND BANDS
OF THE YAKAMA INDIAN NATION,
Plaintiff-intervenor-Appellant.

7621
7622 UNITED STATES v. CONFEDERATED TRIBES
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
CONFEDERATED TRIBES OF THE
COLVILLE INDIAN RESERVATION,
Respondent-Appellant,
No. 08-35963
and
STATE OF OREGON; STATE OF  D.C. No.
3:68-cv-00513-KI
WASHINGTON,
OPINION
Defendants,
v.
CONFEDERATED TRIBES AND
BANDS OF THE YAKAMA INDIAN
NATION,
Plaintiff-intervenor-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted
March 2, 2010—Portland, Oregon
Filed May 27, 2010
Before: Richard A. Paez, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tallman
7626 UNITED STATES v. CONFEDERATED TRIBES
COUNSEL
Thomas Zeilman, Esq., (argued) Law Offices of Thomas Zeil-
man, Yakima, Washington, for plaintiff-intervenor-appellant,
Confederated Tribes and Bands of the Yakama Indian Nation.
Robert Lundman, Esq., (argued) United States Department of
Justice, Environment & Natural Resources Division, Wash-
ington, D.C., for plaintiff United States of America.
Donald J. Simon, Esq., (argued) Sonosky Chambers Sachse
Endreson & Perry, Washington, D.C., for respondent-appellee
Confederated Tribes of the Colville Indian Reservation.
OPINION
TALLMAN, Circuit Judge:
This appeal is the latest chapter in the saga of Pacific
Northwest Native American treaty fishing rights; a saga that
has spanned many generations and over forty years of federal
litigation. If history is our guide, it will not be the last chapter
written. After a 2006 remand from this court, the district court
conducted a trial primarily based on expert anthropological
opinions, century-old documents, and reliable hearsay. The
Confederated Tribes and Bands of the Yakama Indian Nation
UNITED STATES v. CONFEDERATED TRIBES 7627
(“Yakama”) appeal, and the Confederated Tribes of the Col-
ville Indian Reservation (“Colville”) cross-appeal on behalf of
their Wenatchi Constituent Tribe (“Wenatchi”), the district
court’s finding that they share joint fishing rights at the
“Wenatshapam Fishery” on Icicle Creek—a tributary to the
Wenatchee River which flows into the Columbia River—
under an 1894 agreement between the United States and the
Yakama. We have jurisdiction pursuant to 28 U.S.C. § 1291.
For over a century—as the result of broken and forgotten
promises—the Wenatchi’s fishing rights at their aboriginal
home and fishing station have been in doubt. We hold that the
district court’s ruling is supported by historical evidence
establishing that it was the intent of the 1894 negotiators to
grant the Wenatchi fishing rights at Wenatshapam, that the
Yakama did not sell all of their fishing rights at Wenatsha-
pam, and that both tribes’ fishing rights are non-exclusive.
We therefore affirm the judgment of the district court.
I
A
Before the arrival of Anglo-American settlers, the
Wenatshapam Fishery was the aboriginal salmon fishing
ground of the Wenatchi.1 More than any other place, the
Wenatshapam Fishery was the hub around which the
Wenatchi’s cycle of life rotated. The center of the Wenatsha-
pam Fishery was the confluence of Icicle Creek and the
Wenatchee River in north central Washington State near the
modern-day town of Leavenworth.
1
The Wenatchi have also been referred to as “Wenatchee” and
“Wenatshapam Indians.” The facts recited in this opinion are adopted
from our prior opinions addressing this dispute or adopted from the district
court’s findings of fact, which we hold to be plausible in light of the
record viewed in its entirety and not clearly erroneous. See Husain v.
Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002).
7628 UNITED STATES v. CONFEDERATED TRIBES
In 1855, the United States began “a hasty effort to clear
land occupied by Indians for development by settlers” in
Washington Territory. United States v. Oregon, 29 F.3d 481,
484 (9th Cir. 1994) (“Oregon I”), as amended, 43 F.3d 1284(9th Cir. 1994). Territorial Governor Isaac Stevens, “under
pressure to extinguish Indian title to all lands, consolidated
small tribes or bands into larger tribal entities for the purposes
of the treaties.” Id. “The Wenatchi Tribe was one of the four-
teen tribes represented at the negotiation of the Yakama
Treaty. The treaty specified that tribes for the purposes of this
treaty, are to be considered as one nation, under the name of
Yakama.”2 United States v. Oregon, 470 F.3d 809, 811 (9th
Cir. 2006) (“Oregon II”) (quoting Treaty with the Yakamas,
June 9, 1855, 12 Stat. 951 (1855) [hereinafter 1855 Treaty])
(internal quotation marks omitted).
Under the 1855 Treaty “the tribes gave up most of their
lands in return for a specific reservation with set boundaries.”
Oregon II, 470 F.3d at 811. The land for the reservation was
subsequently surveyed and “set apart as provided in the trea-
ty.” Id. With regard to fishing rights, Article III of the Treaty
provided,
The exclusive right of taking fish in all the streams,
where running through or bordering said reservation,
is further secured to said confederated tribes and
bands of Indians, as also the right of taking fish at all
usual and accustomed places, in common with citi-
zens of the Territory, and of erecting temporary
buildings for curing them; together with the privilege
of hunting, gathering roots and berries, and pasturing
their horses and cattle upon open and unclaimed
land.
2
The spelling of the name was changed from “Yakima” to “Yakama”
in 1994 to reflect the native pronunciation. “Yakama” is used in this opin-
ion, except where historical accuracy requires that “Yakima” be used.
UNITED STATES v. CONFEDERATED TRIBES 7629
1855 Treaty at 953. In addition, tribal leader Kamiakin—the
spokesman for the fourteen tribes that would constitute the
Yakama Nation—insisted on a reservation at Wenatshapam
“where the Indians take many fish.” This was done at the
request of—among others—the Wenatchi leader Tecolekun.
Accordingly, Article X of the 1855 Treaty set aside a second
reservation, providing,
That there is also reserved and set apart from the
lands ceded by this treaty, for the use and benefit of
the aforesaid confederated tribes and bands, a tract
of land not exceeding in quantity one township of six
miles square, situated at the forks of the Pisquouse
or Wenatshapam River, and known as the
“Wenatshapam Fishery,” which said reservation
shall be surveyed and marked out whenever the Pres-
ident may direct, and be subject to the same provi-
sions and restrictions as other Indian reservations.
Id. at 954.
B
Despite the promise made in Article X of the 1855 Treaty,
“no attempt was made by the United States to survey the six-
square-mile reservation for almost forty years. The Wenatchi
remained at this Wenatshapam Fishery Reservation and fished
there during this time, firmly believing that a survey would be
made and they would be secure in this reservation.” Oregon
II, 470 F.3d at 811.
The Wenatchee Valley remained difficult to reach by set-
tlers for much of the late 1800s, but by 1892, the Great North-
ern Railroad reached the area, laying tracks up the Wenatchee
River and through the Wenatshapam Fishery—which had
never been taken out of the public domain—to Leavenworth,
a townsite developed by the railroad.
7630 UNITED STATES v. CONFEDERATED TRIBES
In July 1892, Yakama Reservation Indian Agent Jay Lynch
contacted the Commissioner of Indian Affairs, D.M. Brow-
ning, inquiring as to whether or not the Wenatshapam Fishery
Reservation had “ever been definitely located and what dispo-
sition ha[d] ever been made of it, if any.” Letter of July 11,
1892, from Jay Lynch to Comm’r of Indian Affairs, reprinted
in S. Exec. Doc. No. 67 at 5 (1894) [hereinafter Senate Doc.
67]. As a result of this letter, the Acting Secretary of the Inte-
rior, William H. Sims, authorized a survey of the reservation
in 1893. Senate Doc. 67 at 6-7. However, before the survey
commenced, Agent Lynch was removed from his post.
The survey went forward, slowly setting out an area at the
confluence of the Wenatchee River and Icicle Creek. Oregon
II, 470 F.3d at 812. This prompted several settlers in the
Wenatchee Valley to complain that “to form a new reserva-
tion across this valley from mountain to mountain, as is pro-
posed, it not only embraces the Great Northern Railway, but
many settlers.” Senate Doc. 67 at 8. Commissioner Browning
responded,
In reply you are advised that the Wenatchee is not
established as a new reservation, but as the fulfill-
ment of a treaty obligation, which had been hereto-
fore overlooked or neglected by the Government
since the ratification of the Yakima treaty in 1869.
It is now as much Indian land as the Yakima Indian
Reservation itself, the only difference being that the
one had distinct boundaries named and described in
the treaty, while the other was referred to as a tract
of land not exceeding in quantity one township of 6
miles square, situated at the forks of the Pisquause
or Wenatchapam River, which the Government stip-
ulated and agreed should be surveyed and marked
out whenever the President might direct. This was
not done until last fall when the President ordered
the survey and the location of this tract, which is
now being made.
UNITED STATES v. CONFEDERATED TRIBES 7631
Id. Commissioner Browning suggested that the settlers peti-
tion the President to enter into negotiations with “the Indians”
for the purchase of the Article X reservation, which they did.
Id.Before the survey could be completed, “the newly
appointed Yakima Indian Agent, Lewis T. Erwin, ordered [the
surveyor] to stop the surveying and [to] destroy all the monu-
ments and trees that had markings. Instead, he directed the
surveyor to survey an area some distance away in the moun-
tains next to a lake, but not near the river.” Oregon II, 470
F.3d at 812. Shortly thereafter, settler James H. Chase, Esq.,
contacted Commissioner Browning. Significantly, he
observed,
I am convinced there are quite a number of Indians
old in years who were born and have always lived on
the Wenatchee River, and on the very land which
they now claim should be the reservation, and who
at the time helped build and owned a part in all the
fisheries on the Wenatchee River . . . .
Senate Doc. 67 at 11. He concluded, “There is no doubt in my
mind but what the intention was to secure the reserve to the
Indians who owned the fisheries and that while the contract
or treaty of 1855 mentioned the Yakimas it really intended to
give the land to the Indians who owned the fisheries . . . .” Id.
at 11-12.
Once former Agent Lynch learned that the proposed loca-
tion of the Wenatshapam Fishery Reservation had now been
moved far above the confluence, he wrote a letter decrying “a
great injustice done to the Yakima Indians by reason of a
recent survey of the boundary line of a reservation . . . known
as the Wenatchapam fishery.” Id. at 20. In the letter he quoted
an “old Indian” who protested,
Does our Great Father at Washington think a salmon
is an eagle that lives on top of a mountain, or does
7632 UNITED STATES v. CONFEDERATED TRIBES
he think a salmon is a deer that lives in the woods
and hills, or does he think a salmon is a mountain
goat that lives among the rocks of the snow covered
mountains?
Tell our Great Father the Indian does not care for the
little trout in the lake, but wants the salmon that lives
in the rocky places in the river where the Indian can
find him. Our fishery is in the river where you saw
it, and was destroyed by white men and the Indians
driven away. We want our fishery in the river where
Governor Stephens gave it to us a long time ago.
Id.
Secretary Sims subsequently authorized Commissioner
Browning to enter into negotiations to purchase the
Wenatshapam reservation, specifically noting, “It seems from
letters submitted with your communication that there are Indi-
ans other than the Yakimas living in the neighborhood of this
reservation who have, or claim, some rights therein. The
rights of such Indians in land or fishing privileges should be
taken into consideration and protected.” Id. at 15.
On October 13, 1893, Commissioner Browning authorized
Agent Erwin to enter into negotiations. Id. He reiterated Sec-
retary Sims’ observation that “Indians other than the Yaki-
mas” were living at Wenatshapam and the Secretary’s express
instruction that “the rights of such Indians in lands or fishing
privileges should be taken into consideration and protected.”
Id. at 16. He also instructed Agent Erwin to take great care in
recording the proceedings, which prompted the agent in 1893
to hire a stenographer to produce a transcript of the negotia-
tions. The district court heavily relied on that transcript in ren-
dering its factual findings supporting the decision we review
here.
UNITED STATES v. CONFEDERATED TRIBES 7633
C
Agent Erwin convened a tribal council at the Yakama Res-
ervation on December 18, 1893, to open negotiations for the
purchase of the Article X reservation. Id. at 24. Four
Wenatchi leaders, including Chief John Harmelt, made the
150 mile journey from Wenatshapam to attend. Agent Erwin
began the negotiations by reading Commissioner Browning’s
letter offering to purchase the land, but promising not to
deprive “the Indians” of the use of the fisheries. Id.
Agent Erwin proposed that the council sell the incorrectly
located mountain reservation and that the Wenatchi take allot-
ments in the Wenatchee Valley where they resided. Id. Impor-
tantly, he stated, “I have something further that I want to say
about the fishery privilege and that is that even if you should
agree to sell, the Department says that you shall have the law-
ful use of the fisheries in common with the white people.” Id.
Chief Harmelt did not initially agree to the sale. He stated,
“I myself alone have heard what you said; and if all the Indi-
ans over at Wenatchee would hear what you said, then they
would decide on this land. I think those people out [ought] to
know about this matter, then let the decision come after-
wards.” Id. at 30 (alteration in original). Chief Harmelt sug-
gested he return to Wenatshapam to inform the Wenatchi of
the proposal. Id. After the Yakama proposed a price of $1.50
per acre, however, Chief Harmelt stated, “I am well satisfied
between you two. Whatever they ask for the land that is my
same price.” Id. at 32.
On December 20, 1893, Special Agent John Lane informed
the council that he would telegraph the Department of the
Interior to see if the price was agreeable, and would recon-
vene the council when he received a reply. He then stated, “If
the Wenatchee Indians are not here then we will send a letter
over there to notify them of the condition of affairs.” Id. The
7634 UNITED STATES v. CONFEDERATED TRIBES
council adjourned. Id. The Wenatchi representatives returned
to their homes.
The agents reconvened the council at the Yakama Reserva-
tion on January 6, 1894, without Wenatchi representatives
present. Id. at 33. The agents rejected the Yakama proposal of
$1.50 per acre and proposed a lump sum of “$10,000 or
$15,000.” Id. Yakama members protested the fact that the
Wenatchi were not present. Charley Skummit said,
I will not sell this piece of land away from the
Wenatchee Indians that owns the land. We all heard
what you said when these Indians said they would
sell; you said you would allot them other lands.
These Wenatchee Indians said they wanted land
where they lived. It was the land of his fathers and
he wanted to stay there . . . . We are having another
council here to-day and I feel that I have no right to
take this land away from the Indians because they
are the right owners of it.
Id. Agent Erwin promised in reply, “Just what we said to
those Wenatchee Indians we will carry out.” Id.
Tom Simpson, speaking for the Yakama, then counter-
offered, “All the headmen agree to finishing this matter up
. . . . We will relinquish all our rights to the Wenatshapam
fishery for $20,000 . . . .” Id. at 34.
D
The 1894 Agreement was ultimately signed by 246 mem-
bers of the Yakama Nation in person, and seven by proxy. Id.
at 3. In relevant part, the agreement provided,
Article I.
The said Indians hereby cede and relinquish to the
United States all their right, title, interest, claim, and
UNITED STATES v. CONFEDERATED TRIBES 7635
demand of whatsoever name or nature of[,] in, and
to all their right of fishery, as set forth in article 10
of said treaty aforesaid, and also all their right, title,
interest, claim, or demand of, in, and to said land
above described, or any corrected description thereof
and known as the Wenatshapam fishery.
Article II.
In consideration of the foregoing cession and
relinquishment the United States hereby agrees to
pay or expend through their Indian Agent, Yakima
Agency, twenty thousand dollars, which said sum is
to be deposited in a United States depository for
their use and benefit as soon as approved by Con-
gress, and subject to their order, the Indians reserv-
ing the right to dispose of said money as they may
decide in general council to be held by them and for
that purpose. After the ratification of this agreement
by Congress and the further consideration that the
Indians known as the Wenatshapam Indians, residing
on the Wenatchee River, State of Washington, shall
have land allotted to them in severalty in the vicinity
of where they now reside, or elsewhere, as they may
select, in accordance with article 4 of the general
allotment law.3
Agreement with the Yakama Nation of Indians in Washing-
ton, Act of Aug. 15, 1894, ch. 290, § 13, 28 Stat. 320, 320-21
(1894) [hereinafter 1894 Agreement].
Despite the promise in the 1894 Agreement to provide
allotments to the members of the Wenatchi still living at the
fishery, “the government again failed to fulfill its promise, as
it never made the allotments available to the Wenatchi.” Ore-
3
“The Wenatshapam Indians referred to in the 1894 Agreement are the
same as the Wenatchi Indians.” Oregon II, 470 F.3d at 813 n.4.
7636 UNITED STATES v. CONFEDERATED TRIBES
gon II, 470 F.3d at 813. “The Wenatchi remained and fished
on their aboriginal lands at the Wenatshapam Fishery until
they were moved by the federal government in 1902 and 1903
to the Colville Reservation.” Id. at 811. Chief Harmelt never
enrolled at the Colville Reservation, located some 150 miles
east of Wenatshapam, although he attended several Wenatchi
enrollment hearings. He continued to reside in the Wenatchee
Valley and advocated for Wenatchi rights at Wenatshapam by
traveling to Washington, D.C., twice before his death.
II
A
“The United States initiated the underlying litigation in
1968 on behalf of certain Indian tribes in Oregon and against
the State of Oregon to define, at least in part, the Indians’
treaty rights to take fish at ‘all usual and accustomed places’
on the Columbia River and its tributaries.” Oregon I, 29 F.3d
at 482-83 (citing Sohappy v. Smith, 302 F. Supp. 899, 903-04
(D. Or. 1969)).
Originally, four tribes asserted treaty fishing rights: The
Yakama Indian Nation, The Confederated Tribes and Bands
of the Warm Springs Reservation of Oregon, The Confeder-
ated Tribes of the Umatilla Reservation, and The Nez Perce
Tribe of Idaho. Id. at 483. In 1969, the district court ruled that
the tribes were entitled to treaty rights providing them a “fair
share” of the Columbia River salmon. Sohappy, 302 F. Supp.
at 911.
In 1974 and 1983, the states of Washington and Idaho
intervened. Oregon I, 29 F.3d at 483. In 1988, the District of
Oregon adopted a “comprehensive fish management plan.” Id.In 1989, the Colville sought to intervene on behalf of five
constituent tribes that they maintained were parties to the
Yakama Treaty of 1855: the Wenatchi, the Entiat, the Chelan,
UNITED STATES v. CONFEDERATED TRIBES 7637
the Columbia, and the Palus. Id. Colville has never “explained
why it waited over twenty years after United States v. Oregon
was initiated and why it did not seek to intervene while the
district court was considering the comprehensive management
plan adopted in 1988.” Id. “After considering voluminous
exhibits, stipulations and evidence presented during a three-
day court trial, the district court denied Colville’s intervention
motion, finding that Colville could not assert treaty fishing
rights reserved to its constituent tribes.” Id. at 482.
In 1994, we affirmed the district court’s denial of Colville’s
motion to intervene and as a result foreclosed the Wenatchi
from exercising 1855 Treaty fishing rights at the Wenatsha-
pam Fishery. See id. at 486. We reasoned, “[r]ights under a
treaty vest with the tribe at the time of the signing of the trea-
ty,” id. at 484 (citing United States v. Washington, 384 F.
Supp. 312 (W.D. Wash. 1974) (Boldt, J.), aff’d, 520 F.2d 676,
692 (9th Cir. 1975) (“Washington I”), cert. denied, 423 U.S.
1086 (1976)), but “Indians later asserting treaty rights must
establish that their group has preserved its tribal status,” Ore-
gon I, 29 F.3d at 484 (citing United States v. Washington, 641
F.2d 1368, 1372-73 (9th Cir. 1981) (“Washington II”), cert.
denied, 454 U.S. 1143 (1982)).
We ruled that the constituent tribes—including the
Wenatchi—had not “maintained political cohesion with the
tribal entities created by the [1855] treaties and receiving fish-
ing rights.” Oregon I, 29 F.3d at 485. We relied upon the dis-
trict court’s factual “findings relating to the history of the
bands who [sought] to trace their cultural and political lineage
to the tribes that signed the 1855 treaty,” and we concluded
that “the tribes, prior to being subsumed in the Colville Con-
federacy, were separate bands who disengaged from the Yak-
ima Nation by refusing to relocate to the reservation
established by the 1855 treaty.” Id. at 486.
We subsequently amended our opinion to note that the
“[f]ailure to move onto [a] reservation is not the determinative
7638 UNITED STATES v. CONFEDERATED TRIBES
factor in deciding whether a group has retained treaty rights.”
United States v. Oregon, 43 F.3d 1284 (9th Cir. 1994).
Instead, we reasoned, “it is only one consideration relevant to
an essentially factual inquiry—i.e., whether a group claiming
treaty rights has maintained sufficient political continuity with
those who signed the treaty that it may fairly be called the
same tribe.” Id.B
Throughout this litigation, whether they were permitted or
not by the terms of any treaty, descendants of the Wenatchi
have fished at their aboriginal Wenatshapam Fishery. In 2003,
the Yakama Nation sought and obtained an injunction pre-
venting these Wenatchi from fishing at Wenatshapam. The
Wenatchi opposed the injunction by arguing that they had the
right to fish at Wenatshapam under the 1894 Agreement. The
district court concluded res judicata prevented the Wenatchi
from asserting this claim. The Wenatchi appealed.
In 2006 we reversed, concluding, “Through unfulfilled
promises and procedural rulings, [the Wenatchi] would, under
[the district court’s] ruling, lose both the land they were guar-
anteed adjacent to the fishery and their fishing rights.” Ore-
gon II, 470 F.3d at 813. We further reasoned,
The 1894 Agreement was not set forth as an amend-
ment to the 1855 Treaty. Rather, it was an agreement
for the sale of the Wenatshapam Fishery that had
been given to the tribes of the Yakama Nation by the
1855 Treaty, with specific benefits being reserved
for the Wenatchi Tribe, which had continued to
reside and fish there.
Id. at 816. We then held, “Colville is not precluded by res
judicata from asserting the claim of the Wenatchi Tribe to
fishing rights at the Wenatshapam Fishery based on the 1894
UNITED STATES v. CONFEDERATED TRIBES 7639
Agreement.” Id. at 818. We remanded for a trial on the merits
to determine fishing rights under that agreement. Id.C
Following a three-day bench trial primarily relying on
expert testimony and the transcript of the 1893 and 1894
negotiations, both parties submitted extensive post-trial brief-
ing. The United States also filed a post-trial brief addressing
only one issue: the government argued that the 1894 Agree-
ment did not in any way limit Yakama from taking fish at
usual and accustomed places under Article III of the 1855
Treaty. The United States took no position on whether the
Wenatshapam Fishery is a usual and accustomed fishing place
of the Yakama, or whether the Wenatchi obtained fishing
rights at Wenatshapam under the 1894 Agreement. The dis-
trict court found,
The events leading up to the 1894 Agreement, and
the negotiations themselves, demonstrate that
Yakama tribal members were concerned about pro-
tecting the Wenatchi right to the fishery. As a result,
the agents promised Yakama that the government
would provide fishing rights and land to the
Wenatchi in exchange for the sale of the Article X
reservation.
United States v. Oregon, No. 68-513-KI, 2008 WL 3834169,
at *12 (D. Or. Aug. 13, 2008). It cited the letter exchange
between the Secretary of the Interior, the Commissioner of
Indian Affairs, Agent Erwin, Special Agent Lane, and the set-
tlers living at Wenatshapam, as well as the statements made
during the negotiations, as evidencing a conscious effort to
protect Wenatchi fishing rights at the Wenatshapam Fishery.
Id.The court found the evidence “establishes an agreement
that the Wenatchi were to have the right to fish at the
7640 UNITED STATES v. CONFEDERATED TRIBES
Wenatshapam Fishery.” Id. at *14. It reasoned that the
Yakama are entitled to usual and accustomed Article III fish-
ing rights at Wenatshapam under the 1855 Treaty, because the
tribe only sold its exclusive on-reservation fishing rights at
that location. Id. at *18. Finally, the court determined that
Wenatchi fishing rights at Wenatshapam are not superior to
those of the Yakama, but are instead of the same character. Id.
at *22. In effect, the district court’s ruling formally recog-
nized that the Wenatchi have the legal right to fish at their
aboriginal home and fishing station.
Yakama now argues that the district court erred in finding
an “implied agreement” to provide the Wenatchi with fishing
rights at Wenatshapam. On cross-appeal, the Wenatchi argue
the district court erred in finding that Yakama has fishing
rights at Wenatshapam, and, in the alternative, erred in failing
to find Wenatchi fishing rights superior to Yakama fishing
rights.
III
We review the district court’s interpretation of treaties, stat-
utes, and executive orders de novo. United States v. Idaho,
210 F.3d 1067, 1072 (9th Cir. 2000). “Findings of historical
fact, including the district court’s findings regarding treaty
negotiators’ intentions, are reviewed for clear error.” Id. at
1072-73. “We therefore review for clear error all of the dis-
trict court’s findings of historical fact, including its findings
regarding the treaty negotiators’ intentions. We then review
de novo whether the district court reached the proper conclu-
sion as to the meaning of the [1894 Agreement] given those
findings.” United States v. Washington, 157 F.3d 630, 642
(9th Cir. 1998).
IV
A
As a preliminary matter, we consider whether our analysis
should be limited to the four corners of the 1894 Agreement
UNITED STATES v. CONFEDERATED TRIBES 7641
itself—as Yakama suggests—or whether we should also con-
sider the document introduced in the Senate prior to ratifica-
tion that contains the transcript of the negotiations and the
letters exchanged regarding the agreement. See Senate Doc.
67.
The 1894 Agreement contains two articles relevant to our
inquiry. As we noted in our 2006 opinion,
Both provisions appear to be ambiguous in light of
the context in which the agreement took place, the
statements of the parties concerning the meaning of
the terms of the agreement, and the recognition that
this was an agreement drafted by the Government to
reflect the understanding of the Indians, who had a
lesser familiarity with the legal technicalities
involved.
Oregon II, 470 F.3d at 817.
The Supreme Court has repeatedly instructed us that when
interpreting a treaty or agreement between the United States
and Native Americans, it must always be borne in mind,
that the negotiations for the treaty [were] conducted,
on the part of the United States . . . by representa-
tives skilled in diplomacy . . . , understanding the
modes and forms of creating the various technical
estates known to their law, and assisted by an inter-
preter employed by themselves; that the treaty [was]
drawn up by them and in their own language; that
the Indians, on the other hand . . . [were] wholly
unfamiliar with all the forms of [Anglo-American]
legal expression, and whose only knowledge of the
terms in which the treaty [was] framed [was] that
imparted to them by the interpreter employed by the
United States; and that the treaty must therefore be
construed, not according to the technical meaning of
7642 UNITED STATES v. CONFEDERATED TRIBES
its words to learned lawyers, but in the sense in
which they would naturally be understood by the
Indians.
Jones v. Meehan, 175 U.S. 1, 11 (1899). With regard to trea-
ties negotiated between the United States and the Yakama, we
have observed, “[t]he inadequacy of the treaties is further
exacerbated by the fact that the Indians signing the treaties
generally did not speak English, and the Indian argot into
which the treaty provisions were translated was inadequate to
convey the meaning of the treaties.” Oregon I, 29 F.3d at 484
(citing Washington I, 520 F.2d at 683).
[1] The Supreme Court “has often held that treaties with
the Indians must be interpreted as they would have under-
stood them, and any doubtful expressions in them should be
resolved in the Indians’ favor.” Choctaw Nation v. Oklahoma,
397 U.S. 620, 631 (1970) (internal citation omitted). This
principle has been applied to treaties, agreements, and execu-
tive orders negotiated with Native Americans. See United
States v. Washington, 235 F.3d 438, 442 (9th Cir. 2000) (not-
ing that the “time-honored principle that ambiguities in agree-
ments and treaties with Native Americans are to be resolved
from the native standpoint . . . extends to executive orders”).
[2] In determining the sense in which treaties would natu-
rally be understood by Native Americans, the Supreme Court
has looked “beyond the written words to the larger context
that frames the Treaty, including ‘the history of the treaty, the
negotiations, and the practical construction adopted by the
parties.’ ” Minnesota v. Mille Lacs Band of Chippewa Indi-
ans, 526 U.S. 172, 196 (1999) (quoting Choctaw Nation v.
United States, 318 U.S. 423, 432 (1943)); see also South
Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351-52 (1998)
(considering the “manner in which the transaction was negoti-
ated,” the “negotiations themselves,” and the “tenor of legisla-
tive Reports presented to Congress” (internal quotation marks
omitted)); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587
UNITED STATES v. CONFEDERATED TRIBES 7643
(1977) (considering “the face of the Act, the surrounding cir-
cumstances, and the legislative history” (internal quotation
and citation omitted)).
[3] The 1894 Agreement is silent as to the Wenatchi’s fish-
ing rights. As previously noted, “[b]oth provisions [of the
1894 Agreement] appear to be ambiguous.” Oregon II, 470
F.3d at 817. Given the 1894 Agreement’s ambiguity as to the
fishing rights of the Wenatchi and the Supreme Court’s direc-
tion to construe Native American treaties in the “sense in
which they would naturally be understood by” the Native
Americans, we consider the transcript of the agreement nego-
tiations in order to ascertain how those present at the council
understood the agreement. Jones, 175 U.S. at 11.
B
The district court found that the Native Americans present
at the negotiations understood the 1894 Agreement as provid-
ing the Wenatchi with non-exclusive fishing rights at
Wenatshapam. The record supports that finding.
The Wenatchi and Yakama disagree as to whether the dis-
trict court’s determination is a finding of fact reviewed for
clear error, or a conclusion of law reviewed de novo. A find-
ing as to what a negotiator understood involves the same kind
of factual analysis as a finding of intent—including for exam-
ple the consideration of the events leading up to a negotiation,
statements made during a negotiation, and the overall context
of the negotiation—which is entitled to deferential clear error
review. See Idaho, 210 F.3d at 1072-73. We accordingly
review for clear error the district court’s findings as to the
understanding of the Native Americans present at the negotia-
tions.4
4
We add, however, that even reviewing the record de novo, we would
reach the same conclusion as the district court.
7644 UNITED STATES v. CONFEDERATED TRIBES
[4] The transcript of the 1893 and 1894 negotiations is
helpful in discerning the motivations and understandings of
those present. It is evident from the transcript that, as the dis-
trict court found, the Yakama were concerned about protect-
ing Wenatchi rights over Wenatshapam. Captain Eneas, a
Yakama, said,
I am not going over to my friends house and throw
him off his place and tell him I would get rich and
fat off of his place. It is for the Government to treat
these Wenatchee Indians right. You talk to these
Wenatchee Indians and ask them what they want for
that land, but not the Yakimas.
Senate Doc. 67 at 25. Joe Stwire, a Yakama, said, “There are
[four] men here from Wenatchee. Whatever the [four] men
from Wenatchee decide, the Yakimas will decide as soon as
we know what they say.” Id. at 26. Thomas Simpson said, “It
is true you all know that I am not fit to talk about the Wenat-
chee lands. My desire is not to throw the Wenatchee out of
this land so that I may fill up myself out of it.” Id. at 28.
[5] In addition, the transcript reveals a desire on the part of
the United States to negotiate not only with the Yakama, but
with the Wenatchi as well. Agent Erwin specifically
addressed Chief Harmelt and asked, “Can we arrive at any
agreement by which your lands are to be allotted to you and
you relinquish your claims in the Wenatshapam fishery for
ten or fifteen thousand dollars?” Id. at 25. The agents also
expressed to both parties—in accordance with their instruc-
tions from Commissioner Browning—that the rights of the
Wenatchi in their land and fishery were to be protected. Agent
Erwin explicitly stated,
There is one thing I want to impress on these Indians
from the Wenatchee, and this is that they are not to
be robbed of an acre of land, but on the contrary, the
Government proposes to give them land where they
UNITED STATES v. CONFEDERATED TRIBES 7645
now are. The selling of this fishery does not interfere
with their rights at all.
Id. at 15. Agent Erwin repeatedly read the letter from Com-
missioner Browning and Secretary Sims providing that the
“rights of such Indians [living near Wenatshapam] in land or
fishing privileges should be taken into consideration and pro-
tected.” Id. Most importantly, Agent Erwin promised, “you
shall have the lawful use of the fisheries in common with the
white people.” Id. at 28.
Finally, the district court correctly observed that after the
agents reconvened the negotiations in January 1894 without
the Wenatchi present, the Yakama were hesitant to consum-
mate an agreement. Charley Skummit said, “We are having
another council here to-day and I feel that I have no right to
take this land away from the [Wenatchi] Indians because they
are the right owners of it.” Id. at 33. When the Yakama were
uncomfortable proceeding without the Wenatchi, Agent
Erwin reassured them, stating, “Just what we said to those
Wenatchee Indians we will carry out.” Id. Only then did the
Yakama agree to sell their rights in the Article X reservation.
[6] In sum, the Yakama instructed the agents, “It is for the
Government to treat these Wenatchee Indians right,” id. at 25,
Agent Erwin promised the Wenatchi, “you shall have the law-
ful use of the fisheries in common with the white people,” id.
at 28, and the Yakama would only agree to the sale after
Agent Erwin reiterated his promises to the Wenatchi. Based
on this record, the district court correctly held that the evi-
dence establishes the Native Americans present at the negotia-
tions understood the 1894 Agreement to provide the Wenatchi
with the right to fish at their aboriginal home and fishing
station—the Wenatshapam Fishery—as consideration for the
Yakama’s sale of the Article X reservation.
[7] Although the written 1894 Agreement is ambiguous as
to the fishing rights of the Wenatchi, agreements “with the
7646 UNITED STATES v. CONFEDERATED TRIBES
Indians must be interpreted as they would have understood
them,” and applying that principle, we must interpret the 1894
Agreement as securing the non-exclusive rights of the
Wenatchi to fish at Wenatshapam.5 Choctaw Nation, 397 U.S.
at 631; see also Iowa Tribe of Indians v. United States, 68 Ct.
Cl. 585, 17 (1929) (“[T]he evidence taken in connection with
the circumstances of the case clearly establishes the existence
of an agreement, the terms of which are not expressed in the
written contract.”).
C
On cross-appeal, the Wenatchi do not challenge the district
court’s conclusion that Wenatshapam can be considered a
“usual and accustomed” fishing station of the Yakama under
Article III of the 1855 Treaty. Instead, the Wenatchi contend
that—from 1855 to 1894—the only fishing rights the Yakama
possessed at Wenatshapam were exclusive on-reservation
fishing rights through Article X of the 1855 Treaty, and that
when the Yakama signed the 1894 Agreement ceding “all
their right of fishery, as set forth in article 10,” they relin-
quished every fishing right they possessed at Wenatshapam.
We disagree.
1
The Wenatchi correctly note that Yakama derives all of its
fishing rights at Wenatshapam from Article III of the 1855
Treaty. Contrary to the Wenatchi’s assertions, however, that
Article reserved to the Yakama two distinct fishing rights at
Wenatshapam.
[8] First, the Yakama had the “exclusive right of taking
5
Because we interpret the negotiations in conjunction with the 1894
Agreement as providing the Wenatchi with fishing rights at Wenatshapam,
we decline to address Colville’s argument that the provision of allotments
in the agreement carried with it an implied promise of fishing rights.
UNITED STATES v. CONFEDERATED TRIBES 7647
fish in all the streams, where running through or bordering”
reservations. 1855 Treaty at 953. This Article III right entitled
the Yakama to exclusive fishing rights at the reservation
established in Article X. Second, the Yakama had the “right
of taking fish at all usual and accustomed places, in common
with citizens of the Territory.” Id. This Article III right enti-
tled the Yakama to an in-common share of fish at all usual
and accustomed fishing stations. The exclusive Article III
fishing right depended on the existence of the Article X reser-
vation, whereas the non-exclusive fishing right existed inde-
pendently of Article X and depended on whether or not
Wenatshapam could be considered a “usual and accustomed”
fishing ground.
[9] Evidence in the record indicates that two 1855 Treaty
signatory tribes—the Wenatchi and the Kittitas—customarily
fished at Wenatshapam both at and before treaty time. It is
well established that,
every fishing location where members of a tribe cus-
tomarily fished from time to time at and before
treaty times, however distant from the then usual
habitat of the tribe, and whether or not other tribes
then also fished in the same waters, is a usual and
accustomed ground or station at which the treaty
tribe reserved, and its members presently have, the
right to take fish.
Washington I, 384 F. Supp. at 332. As the Yakama Nation
communally possesses the fishing rights of the Kittitas, see
Oregon I, 29 F.3d at 484, Wenatshapam can be considered a
usual and accustomed fishing ground of the Yakama for the
purposes of Article III fishing rights.
The Wenatchi’s argument—that from 1855 to 1894, the
only fishing rights that Yakama possessed at Wenatshapam
were exclusive Article III fishing rights dependent on the
existence of the Article X reservation—presupposes that a
7648 UNITED STATES v. CONFEDERATED TRIBES
tribe cannot possess both exclusive fishing rights and in-
common usual and accustomed fishing rights at the same
location, at the same time. When the Yakama entered the
1893 negotiations, the Wenatchi argue, any cession of their
exclusive right to fish at Wenatshapam would have consti-
tuted a cession of all their rights to fish at Wenatshapam, as
they were incapable of reserving a distinct non-exclusive fish-
ing right that could not exist “at the same time” as their exclu-
sive right.
While we recognize that the existence of both exclusive
and non-exclusive fishing rights at the same location, at the
same time, could be construed as redundant or unnecessary,
we cannot conclude that the Yakama’s reservation of an
exclusive Article III right to fish at Wenatshapam renders
inoperable their separate and distinct reservation of a non-
exclusive Article III right to fish at the same location. One
need only consider the present scenario—in which the
Yakama subsequently ceded their exclusive right to fish at
Wenatshapam—in order to ascertain the utility of reserving
such a separate and distinct non-exclusive fishing right.
Ultimately, we need not—and do not—resolve the question
inherent to Wenatchi’s presupposition, because whether or not
Yakama possessed both exclusive and non-exclusive Article
III rights at Wenatshapam “at the same time,” we agree with
the district court’s conclusion that non-exclusive fishing
rights can and do exist on former reservations. Indeed, courts
have observed that a tribe’s fishing rights on a former reserva-
tion “cannot be exclusive when that reservation no longer
exists, but such fishing must be ‘in common with’ non-treaty
right fishermen.” Washington I, 384 F. Supp. at 339. That is,
once an 1855 Treaty tribe sells a reservation—and with it the
exclusive right to fish at that location—it is free to exercise
non-exclusive fishing rights at its usual and accustomed fish-
ing grounds pursuant to Article III, absent an agreement to
extinguish those rights. See id.; see also Mille Lacs Band of
Chippewa Indians, 526 U.S. at 200-01 (holding that non-
UNITED STATES v. CONFEDERATED TRIBES 7649
exclusive usufructuary rights survived the sale of a reserva-
tion where the instrument terminating the reservation was
silent as to those rights).
[10] The cession of a reservation does not change the fact
that the rivers, streams, and lakes on the reservation may have
been where a tribe “customarily fished from time to time at
and before treaty times.” Washington I, 384 F. Supp. at 332.
It follows that while the 1894 Agreement’s provision for the
sale of the Article X reservation may have terminated Yaka-
ma’s right to exclude others from fishing there, the Agree-
ment did not change Yakama’s non-exclusive Article III usual
and accustomed fishing rights at that location unless it
expressly provided for a cession of those rights.
2
[11] No such provision exists in the 1894 Agreement.
Yakama’s cession—with regard to fishing rights—is limited
to its rights under Article X of the 1855 Treaty. Article I of
the 1894 Agreement provides,
The said Indians hereby cede and relinquish to the
United States all their right, title, interest, claim, and
demand of whatsoever name or nature of[,] in, and
to all their right of fishery, as set forth in article 10
of said treaty aforesaid and also all their right, title,
interest, claim, or demand of, in, and to said land
above described, or any corrected description thereof
and known as the Wenatshapam fishery.
1894 Agreement at 320. The Yakama therefore expressly sold
“all their right of fishery, as set forth in article 10” of the
1855 Treaty. Id. (emphasis added). The Agreement does not
implicate or extinguish the Yakama’s non-exclusive Article
III fishing rights under the 1855 Treaty, but rather references
fishing rights derived from Article X. See id. As the only
Yakama fishing rights derived from Article X are exclusive
7650 UNITED STATES v. CONFEDERATED TRIBES
rights under Article III, those are the only rights Yakama
ceded.
Nevertheless, the Wenatchi would have us interpret the lan-
guage ceding Yakama’s “right, title, interest, claim, or
demand of, in, and to said land above described” as impliedly
ceding Yakama’s on-reservation fishing rights. The Wenatchi
argue that such an interpretation would render the qualifying
language “as set forth in article 10 of said treaty aforesaid”
mere surplusage if it were construed as limiting the cession of
fishing rights to on-reservation rights—a disfavored reading.
See United States v. Bendtzen, 542 F.3d 722, 727 (9th Cir.
2008) (“legislative enactments should not be construed to ren-
der their provisions mere surplusage” (citation and internal
quotation omitted)). The Wentachi therefore urge us to view
the language “as set forth in article 10” as a description of the
location of the fishery instead of a limitation on the fishing
rights sold by the Yakama.
We decline to adopt such a strained interpretation. A plain
reading of the language, “and to all their right of fishery, as
set forth in article 10 of said treaty aforesaid,” indicates that
the qualifying language, “as set forth in article 10,” identifies
what “right of fishery” is being ceded, not the location of the
fishery itself. The only right of fishery derived from Article
X is an exclusive right pursuant to Article III. The Wenatchi’s
suggestion that we employ the rule of construction disfavor-
ing surplusage depends on an implied cession of fishing rights
supplementing the plainly worded express cession, which
contravenes our obligation to refrain from interpreting the
agreement “according to the technical meaning of its words to
learned lawyers.” Jones, 175 U.S. at 11.
[12] We must interpret the words of the 1894 Agreement
“in the sense in which they would naturally be understood by
the Indians.” Id. We cannot conclude that the Native Ameri-
cans present throughout the negotiations would somehow dis-
cern an implied cession of exclusive on-reservation fishing
UNITED STATES v. CONFEDERATED TRIBES 7651
rights accompanying their cession of land, therefore rendering
their separate express cession of “all their right of fishery” a
cession of non-exclusive Article III fishing rights at their
usual and accustomed fishing places, despite the qualifying
language, “as set forth in article 10.” We instead reason that
the language, “all their right of fishery, as set forth in article
10,” does not implicate the Yakama’s non-exclusive Article
III rights.
[13] Where a Native American tribe cedes a right through
a treaty or agreement, courts must be mindful that the instru-
ment is “not a grant of rights to the Indians, but a grant of
rights from them—a reservation of those not granted.” United
States v. Winans, 198 U.S. 371, 381 (1905). The 1894 Agree-
ment sold all exclusive fishing rights reserved by the Yakama
through the establishment of the Article X reservation. How-
ever, because the Yakama did not agree to sell their non-
exclusive Article III fishing rights—as evidenced by the tran-
script of the negotiations and the 1894 Agreement itself—the
Yakama reserved them. See id.[14] We accordingly decline to construe the 1894 Agree-
ment as ceding the Yakama’s non-exclusive Article III fishing
rights at Wenatshapam. See Choctaw Nation, 397 U.S. at 631.
D
[15] The Wenatchi argue that, should we conclude the
Yakama retain non-exclusive fishing rights at Wenatshapam,
Wenatchi fishing rights should be “primary” rights. “A pri-
mary right is the power to regulate or prohibit fishing by
members of other treaty tribes.” United States v. Skokomish
Indian Tribe, 764 F.2d 670, 671 (9th Cir. 1985). We have
held that when two tribes claim “usual and accustomed” fish-
ing rights at the same location under two separate treaties
signed with the United States at a common “treaty time,” the
tribe that controlled the fishing ground at treaty time—to the
exclusion of other tribes—enjoys primary rights there. United
7652 UNITED STATES v. CONFEDERATED TRIBES
States v. Lower Elwha Tribe, 642 F.2d 1141, 1143 (9th Cir.
1981). We conclude the Wenatchi do not have primary rights
at Wenatshapam because we find the “primary” rights analy-
sis contained in Skokomish Indian Tribe and Lower Elwha
inapplicable to the present dispute.
[16] Our cases addressing primary fishing rights have ana-
lyzed pre-treaty “control” over a fishing ground because the
treaties in those cases were intended to preserve fishing rights
as they existed at and before “treaty time.” See Skokomish
Indian Tribe, 764 F.2d at 671 (“The treaties reserved to the
signatory tribes their pre-treaty fishing rights in relation to
one another.”); Lower Elwha, 642 F.2d at 1144 (“[T]he tribes
reasonably understood themselves to be retaining no more and
no less of a right vis-a-vis one another than they possessed
prior to the treaty.”). Thus, if one tribe had the right to
exclude another tribe from fishing at a particular fishing
ground at “treaty time,” the applicable treaty reserved that
“primary” right. Skokomish Indian Tribe, 764 F.2d at 673;
Lower Elwha, 642 F.2d at 1144.
[17] Importantly, Lower Elwha determined fishing rights
arising under two treaties signed at virtually the same time.
642 F.2d at 1142. The Elwha Indians signed the Treaty of
Point No Point on January 26, 1855, and the Makah Indians
signed the Treaty with the Makah five days later on January
31, 1855. Id. When both tribes claimed the same location as
a usual and accustomed fishing station under treaties signed
at the same “treaty time,” we considered four factors to deter-
mine which tribe controlled the location “at treaty time.”6 Id.6
Four factors were presented by an expert witness to determine
“whether a tribe legitimately controlled an area: (1) proximity of the area
to tribal population centers, (2) frequency of use and relative importance
to the tribe, (3) contemporary conceptions of control or territory, and (4)
evidence of behavior consistent with control.” Lower Elwha, 642 F.2d at1143 n.4. We subsequently noted that our opinion in Lower Elwha did not
consider these factors “a rigid formula or test, but rather, indicated they
were useful as an analytical tool.” Skokomish Indian Tribe, 764 F.2d at
673.
UNITED STATES v. CONFEDERATED TRIBES 7653
In Skokomish Indian Tribe, we applied the same analysis to
determine fishing rights between two tribes that also signed
treaties with the United States in 1855. 764 F.2d at 673. Here,
however, the Wenatchi’s fishing rights exist pursuant to the
1894 Agreement and the Yakama’s rights exist pursuant to
the 1855 Treaty. Thus, unlike in Lower Elwha and Skokomish
Indian Tribe, we are presented with a treaty and an agreement
signed almost forty years apart. As a result, there is no com-
mon “treaty time” at which to determine control over
Wenatshapam.
[18] Moreover, the 1894 Agreement did not reserve the
pre-1855 Treaty fishing rights of the Wenatchi, but instead
granted them new fishing rights independent of the 1855
Treaty. See Oregon II, 470 F.3d at 816 (“The 1894 Agree-
ment was not set forth as an amendment to the 1855 Treaty.”).
While the Wenatchi’s traditional presence at Wenatshapam
undoubtedly played a large part in the decisions of the
Yakama and the United States to convey these rights, the con-
veyance itself was not a preservation of fishing rights as they
existed in 1855. Whether or not the Wenatchi can establish
that they controlled Wenatshapam in 1855, they do not have
1855 Treaty fishing rights. See Oregon I, 29 F.3d at 486. We
therefore conclude the Wenatchi do not have primary fishing
rights at Wenatshapam.7
7
We note that, were the Wenatchi able to establish they controlled
Wenatshapam at “treaty time,” applying the primary rights analysis would
potentially prejudice their present fishing rights. We have held that the
Wenatchi do not possess 1855 Treaty fishing rights, and that the “treaty
time” fishing rights of all 1855 Treaty signatories—including the
Wenatchi—vested in the Yakama Nation at the time of signing the treaty.
See Oregon I, 29 F.3d at 486. If the Wenatchi were able to demonstrate
that they controlled Wenatshapam in 1855, their primary rights would the-
oretically be vested in the Yakama Nation through the 1855 Treaty. See
id.; Lower Elwha, 642 F.2d at 1143. The Yakama could then exclude the
Wenatchi from fishing at Wenatshapam using the very rights gained as a
result of the Wenatchi’s aboriginal control of the fishery. See Oregon I,
29 F.3d at 486. The possibility of such an inequitable result further per-
suades us that the primary rights analysis is inapplicable to the present dis-
pute.
7654 UNITED STATES v. CONFEDERATED TRIBES
V
[19] In sum, both the Yakama and the Wenatchi retain
non-exclusive federal fishing rights at Wenatshapam. Article
III of the 1855 Treaty reserves to the Yakama the right of tak-
ing fish at Wenatshapam “in common with citizens of the Ter-
ritory.” 1855 Treaty at 953. In 1894, as consideration for
Yakama’s sale of the Article X reservation, the United States
promised—and conveyed to—the Wenatchi the right of tak-
ing fish at Wenatshapam “in common with the white people”
and assured them of their right to fish at Wenatshapam “in
common with the white people of the State.” Senate Doc. 67
at 28. We accordingly construe the 1855 Treaty and the 1894
Agreement as conferring on the parties similar non-exclusive
fishing rights at Wenatshapam that they share “in common
with” non-treaty and non-agreement fishermen.
AFFIRMED.