United States v. Confederated Tribes of Colville Indian Reservation

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.

Harry R. Sachse, 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 at

1143 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.