United States v. Washington (18 F. Supp. 3d 1172, 1993)

TABLE OF CONTENTS

ORDER PAGE

Report and Recommendation on Halibut Allocation (3/22/91) 1176

Report and Recommendation (10/3/91) 1181

Proposed Findings of Fact and Conclusions of Law (10/3/91) 1182

Order re Report and Recommendation Filed on October 3,1991 (6/18/92) 1202

Order Denying Motion for Summary Judgment on the Issue of Moderate Living and Denying Application for Protective Order (4/6/93) 1203

Order Dismissing Without Prejudice Phase II and Certain Subproceedings in Phase I (6/23/93) 1205

Order re: Chehalis Indian Reservation Boundaries (7/2/93) Order Modifying Paragraph 25 of Permanent Injunction (8/24/93) 1206

Order Granting Plaintiff Tribes’ Summary Judgment Motion That Shellfish Are Fish (9/2/93) 1216

Order on Five Motions Relating to Treaty Halibut Fishing (12/29/93) 1219

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 1993)

Sub-Proceeding # 91-1

REPORT AND RECOMMENDATION ON HALIBUT ALLOCATION

(Mar. 22, 1991)

JOHN E. WEINBERG, United States Magistrate Judge.

INTRODUCTION

Twelve tribes are authorized to fish for halibut by regulations of the International Pacific Halibut Commission (IPHC). That agency has also set a commercial harvest limit of 102,500 lb. of halibut for 1991 for all twelve of the tribes, but has not prescribed any allocation of that amount among the specific tribes.

Four of those tribes move for a preliminary injunction, which would set a ceiling of 70,100 lb. on the 1991 commercial harvest of halibut by the Makah Tribe. This would leave 32,400 lb. for the “moving tribes” and the other seven tribes. The four moving tribes are the Jamestown Klallam, Lower Elwha, Port Gamble, and Skokomish.

Pending resolution of the motion for a preliminary injunction, the court has closed treaty fishing for halibut. At the time of the closure, the 1991 halibut catches by the respective tribes were:

Weight Percentage

Makah 56,241 lb. 72.6%

Quileute 19,652 25.4

Lower Elwha 1,253 1.6

Lummi 280 0.4

Jamestown Kl. 12 0.0

7 other tribes 0 0.0

TOTAL 77,438 lb. 100.0 CATCH

Halibut are present in far greater numbers in the ocean than in “inside waters.” The Makahs and Quileutes, and certain other tribes, are entitled to fish for halibut in the ocean. All four of the moving tribes may fish only in the inside waters.

It is clear that unrestricted halibut fishing in the ocean by the tribes entitled to fish there will quickly exhaust the entire tribal quota, and prevent the inside tribes from catching any significant number. It has not been established that, in so doing, the ocean tribes would be intercepting any significant number of fish headed for the inside waters. The parties dispute whether halibut migrate in any significant numbers from the ocean to inside waters. It is at least as likely that the ability of the ocean tribes to take the vast majority of the tribal quota arises from the much greater abundance of halibut in their usual and accustomed fishing grounds. If this is the case, the “inside tribes” would be able to take a substantial quantity of halibut only if the court were to cut off fishing by the ocean tribes. The inside tribes could then, perhaps, catch a substantial number of halibut in their relatively barren waters if permitted to continue over a long enough period.

SUMMARY OF CONCLUSION

The court should deny the motion for a preliminary injunction, and vacate its “Order Closing Treaty Halibut Fishery.” The twelve tribes entitle to fish for halibut should be permitted to resume until their total catch reaches the limit set by the IPHC.

THRESHOLD ARGUMENTS BY MAKAHS

The Makahs present two threshold arguments in opposition to the motion. The court should find neither of them persuasive.

First, they challenge the jurisdiction of this court, asserting they have not waived their sovereign immunity as to regulation of their halibut harvest. The parties’ lengthy briefs discuss this issue only sparsely; and they essentially ignored it in oral argument of the motion. The court should not resolve the motion on this basis.

Secondly, they urge that this dispute should be raised, if at all, in another case pending before this court and dealing with the treaty halibut allocation. That case is Makah v. Mosbacher, No. 85-1606M, pending before the Hon. Walter T. McGovern. Their argument in this respect is not persuasive. That ease apparently involves the overall treaty quota for halibut, not the allocation of that quota among the various tribes. The issues are therefore very distinct. Furthermore, no other tribes are parties to that case. Indeed, there are no parties in that case who could frame the issue of the proper allocation among the tribes.

IDENTIFYING THE APPLICABLE STANDARDS

While the motion before the court is labelled a “Motion for Preliminary Injunction,” the unique nature of this case, and its special circumstances, require the court to apply standards which are somewhat different than those applied in ruling upon a conventional motion for a preliminary injunction. The court has recognized this fact, and has acted accordingly, on myriad other occasions during the long history of this case.

First, the classic function of a preliminary injunction is to preserve the status quo, pending a final determination of the merits by the court. But this is not a meaningful or practical objective in this case. As a practical matter, the court’s ruling on this motion Will determine, once and for all, how the 1991 treaty halibut quota is to be allocated among the competing tribes. It is not possible to preserve the 1991 halibut harvest until the day in the hazy future when the court determines the general principles which are to govern allocation among tribes of the treaty share. The court’s ruling on the motion will be a final determination, at least as to the 1991 harvest.

Next, a crucial standard the courts apply in ruling upon a motion for a preliminary injunction is whether the moving party has shown a likelihood of ultimate success on the merits. In the context of this dispute, that standard must be read to require the moving tribes to demonstrate a congruence between the relief they seek for 1991, and the long-term relief the court is likely to award on allocation generally. In other words, to succeed on this motion, plaintiffs must show what general allocation principles the court is eventually likely to decree; and then show that if those general principles were in place and enforced today, they would produce roughly the specific allocation they propose for 1991.

Finally, in ruling upon motions for preliminary injunctions, courts consider the “balance of hardships” between the parties, and any other equitable considerations that arise in the given case. These standards can be meaningfully applied in this case.

LIKELIHOOD OF SUCCESS ON MERITS

What general principles of allocation among competing tribes will the court eventually decree? On the present record, it is impossible to draw any firm conclusions, beyond pure speculation. In their briefing and argument on the pending motion, the parties have advanced many different standards. These include:

The relative quantities of the fish in question taken by the respective tribes at treaty time.

The relative abundance of the fish in each tribe’s usual and accustomed fishing area.

The number of members of each tribe who fish for a particular species.

The dollar investment of each tribe in gear designed to catch a particular type of fish.

The number of tribal members economically dependent upon the harvest of a given type of fish.

The catch history of the respective tribes in recent fisheries.

The relative efforts by each tribe in lobbying regulatory agencies, and in pursuing litigation, to increase the total treaty share.

There are no doubt many more such standards. Depending upon which standard or combination of standards is selected, the resulting allocation among tribes will be markedly different.

The court has not as yet placed its imprimatur upon any of the proposed standards. It will be appropriate to do so after a full litigation of sub-proceeding # 86-5. It would be neither fair nor appropriate for the court to adjudicate those standards on a rush basis to rule on a motion in this case. This is especially true because the court has only a limited group of tribes before it. Many others are vitally interested in the determination of the general principles governing allocation of the treaty share.

Without general allocation principles, it is impossible for the court to determine if the proposed limitation of the Makahs to 70% of the tribal share is high, low, or just about right. The moving parties have therefore not shown, and the court cannot determine, whether they are “likely to succeed on the merits,” in the sense that their requested allocation for 1991 conforms to the general allocation principles the court is likely to determine.

BALANCE OF HARDSHIPS

The Makahs have demonstrated that they are able, and likely, to catch more than the 70,100 lb. of halibut which the preliminary injunction would allocate to them. They have thus demonstrated they would suffer an economic detriment if the motion were granted.

The four moving tribes, by contrast, have not demonstrated that they would, or even could, catch the 32,400 lb. the injunction would reserve — or any significant portion of that amount. The Makahs point to the very low catch of halibut by the moving tribes in prior years. In fairness, it is probably true that those low catches were in large part attributable to the very large catches by the Makahs and, to some extent, by other tribes. But even disregarding prior years’ statistics, the moving tribes have not shown they have the necessary fishermen or gear ready to go; nor have they demonstrated in any other way their capability and intention to take a significant amount of halibut if the injunction is granted.

The moving tribes have therefore failed to show that the balance of hardships tips in their favor.

OTHER EQUITABLE CONSIDERATIONS

Despite all of the foregoing, the moving tribes make a generalized argument that it is “clearly” inequitable to permit one tribe, the Makahs, to take more than 70% of the allocation to be shared among twelve tribes. While this argument might have a surface appeal, the facts of the 1991 halibut fishery demonstrate that the requested relief would do little, if anything, to improve the lot of the moving tribes.

What has surprised everyone this year is the success of the Quileutes, who are not a moving tribe and whose catch would not be limited by the requested injunction. The catch statistics for 1991 to date are set forth above. They show that, during a period when there was no regulation or court order in place allocating the total treaty share among the tribes, the percentage shares actually taken were:

Makahs 72.6%

Quileutes 25.4

moving tribes 1.6

Lummi 0.4

remaining tribes 0.0

Setting aside 10,000 lb. for ceremonial and subsistence purposes, 25,062 lb. remain of the treaty commercial quota. If the court denies the preliminary injunction, and the balance of the halibut are caught in roughly the same proportions as the halibut caught to date, the four moving tribes would take another 401 lb. of halibut.

By contrast, the requested preliminary injunction would permit the Makahs to resume their catch until they reach a total of 70,100 lb. The remaining 11,183 lb. of commercial catch would be allocated among the other 11 tribes. If those tribes took that remainder in the same proportions as their fishing to date, the moving tribes would take about 6.0%, or 671 lb.

In other words, entry of the preliminary injunction is likely to provide about 270 lb. of additional halibut to the moving tribes.

Viewed from another perspective, the Makahs seem headed toward a harvest of 74,415 lb. in the absence of a preliminary injunction. Granting the motion would reduce the Makah’s harvest by 4,315 lb. As counsel observed during argument, the real beneficiaries of that reduction would not be the moving tribes, but the Qui-leutes.

In summary, this analysis indicates that granting the requested relief would do little for the moving tribes, while imposing a much greater hardship upon the Makahs.

CONCLUSION

For all of the foregoing reasons, the court should deny the motion for preliminary injunction. It might well be that the allocation principles the court will eventually determine will result in halibut shares different from what these tribes will enjoy on a “catch-as-catch-ean” basis in 1991. But the moving tribes have not established a legal right to preliminary relief allocating the halibut on any other basis.

As counsel for the Tulalips points out, this sub-proceeding is really just a “subset” of sub-proceeding no. 86-5. No. 91-1 focuses only on halibut, and only on the 1991 season; no. 86-5 concerns allocation generally, of all species and all seasons. The court’s ruling on this motion will, as a practical matter, be a final determination as to the 1991 halibut season. If the issues of halibut allocation generally can be raised in this case, they can and should be raised in 86-5.

Accordingly, I recommend the court dismiss this sub-proceeding at this time, without prejudice to any right of the parties to raise these allocation issues in sub-proceeding 86-5.

A proposed order accompanies this Report and Recommendation.

In light of the urgency, of the matter, I haves directed all parties to file any responses to this Report and Recommendation within one week after its filing, or by March 29,1991.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Subproceeding No. 91-1

(April 13, 1991)

ROBERT E. COYLE, District Judge.

On March 22, 1991, United States Magistrate John Weinberg issued his Report and Recommendation on Halibut Allocation wherein he recommended that the court deny the' Motion for Preliminary Injunction filed by the Jamestown Klallam, Lower Elwha Klallam, Port Gamble Klal-lam, Skokomish Tribes (hereinafter referred to as the Moving Tribes). Magistrate Weinberg also recommended that this court dismiss Subproceeding No. 91-1 without prejudice on the ground that it is a “subset” of Subproceeding No. 86-5.

The Moving Tribes have timely filed objections to the Report and Recommendation. The Makah, the Quinault Nation, the Tulalip Tribes, and the State of Washington each have filed pleadings supporting the Report and Recommendation but suggesting certain revisions to it in the court’s order.

The court has reviewed the record herein and concurs in the Report and Recommendation to the extent that it recommends denial of the Motion for Preliminary Injunction for the reasons set forth in the Report and Recommendation. The court does not find the objections of the Moving Tribes or the Quinault Nation persuasive. However, the court does clarify that the terms “treaty entitlement” or “treaty share” are not intended to be dis-positive of the actual entitlement pursuant to the Stevens treaties.

The court does not concur with that portion of the Report and Recommendation recommending dismissal of this sub-proceeding and the incorporation of the halibut allocation issues into Subproceed-ing No. 86-5.

Accordingly, except as set forth herein, the court adopts the Report and Recommendation on Halibut Allocation and orders that the Motion for Preliminary Injunction is denied.

The Order Closing Treaty Halibut Fishery filed on March 15, 1991 is hereby vacated.

REPORT AND RECOMMENDATION

Sub-Proceeding Nos. 83-3 and 83-117(T)C

(Oct. 3, 1991)

JOHN L. WEINBERG, United States Magistrate Judge.

INTRODUCTION

The court has consolidated some of the issues in these two cases, and has referred these consolidated issues to the United States Magistrate Judge. Certain of the consolidated issues have been reserved for later determination. The balance of the consolidated issues have been the subject of pretrial motions and then trial. This Report and Recommendation, and the Proposed Findings of Fact and Conclusions of Law which accompany it, set forth recommendations as to resolution of these issues.

GENERAL SUMMARY OF LITIGATION

Both cases relate to the fishing rights of two tribes which are federally recognized, but which never entered into treaties specifically reserving fishing rights.

The “Confederated Tribes of the Che-halis Indian Reservation” (“Chehalis Tribe”) has a reservation at the confluence of the Chehalis River and the Black River. These rivers are part of the Grays Harbor system. The Shoalwater Bay Tribe’s reservation is on Willapa Bay. Each of these reservations was created by an Executive Order, not by treaty. The Chehalis Reservation is within the case area of U.S. v. Washington, but the Shoalwater Bay Reservation is not.

The State initiated sub-proceeding 83-3, seeking a determination of these issues:

— Which tribes can take fish from the Chehalis River?

— Which tribes can take fish from the Grays Harbor system?

— That any fish caught by non-treaty tribes are to be charged fully to the “Tribal 50% share,” not to the non-Tribal share.

The Chehalis and Shoalwater Bay tribes initiated a separate lawsuit, C83-117(T)C, asking the court to declare that:

— Each tribe may fish on its own reservation.

— Each tribe may fish off its reservation, at its usual and accustomed fishing grounds, based upon aboriginal fishing rights.

— Each tribe may fish off its reservation, because the Executive Orders which established the reservations created or preserved such rights.

— Each tribe may fish at all locations where the Quinault Tribe is entitled to fish, as these two plaintiff tribes are “affiliated” tribes with the Qui-naults.

The court has ordered partial consolidation of the two cases, for resolution of only these issues:

— The rights, if any, of these two tribes to fish free of State regulation in the Chehalis River system, the Grays Harbor system, Willapa Bay, the rivers and streams emptying into Willapa Bay, and waters adjacent to Willapa Bay.

— How to allocate the catch of these two tribes

The consolidated issues have been referred to the United States Magistrate Judge. While the matter is pending resolution, the catch of the two tribes is to be allocated half to the treaty share, and half to the non-treaty share.

Not consolidated or referred, and reserved for later determination in each case, are these issues:

— the rights of these two tribes to catch fish in locations other than those listed above.

— equitable adjustment claims

After a flurry of activity when these cases were filed, the parties asked the court to defer action so they could try to negotiate a settlement. These negotiations continued for a number of years, until the court finally required the parties to conclude a settlement, enter a dismissal, or litigate the issues. They were unable to settle it, and unwilling to dismiss it, and therefore proceeded with discovery, pretrial motions and trial.

Certain of the consolidated issues have been reserved for later determination. They include:

— disputes as to the actual boundaries of the two reservations

— whether the State has authority to regulate whatever fishing rights these tribes might have

— how the catches of these two tribes are to be allocated, between the Treaty and the non-Treaty share

The parties filed six dispositive pretrial motions. The court took these under submission, and indicated it would address the issues raised by the motions in recommending rulings on the merits. Trial was conducted October 15 through 25, 1990. Following the preparation of a transcript of the trial, the parties filed extensive post-trial briefs and proposed findings in February of 1991.

SUMMARY OF RECOMMENDATION

As set forth in the accompanying Proposed Findings of Fact and Conclusions of Law, the court should rule that these two tribes have no off-reservation fishing rights different from those of any citizen.

Once the court has made a final ruling on the issues addressed at this stage, it should consider remanding the matter to the United States Magistrate Judge for resolution of the three issues (listed above) which were consolidated but reserved for later determination.

Ultimately, the parties and court must address the issues which have not been consolidated, and which remain in the two original cases.

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Sub-Proceeding Nos. 83-3 and 83-117(T)C

(October 3, 1991)

JOHN L. WEINBERG, United States Magistrate Judge.

On the basis of the testimony and other evidence admitted at trial, and the arguments of counsel, the following findings of fact and conclusions of law are recommended for adoption and approval by the court.

FINDINGS OF FACT

Identity of Tribes

1. The Confederated Tribes of the Chehalis Indian Reservation (“Chehalis Tribe”) is composed of the descendants of Upper Chehalis who settled on the Chehal-is Reservation. Membership in the Che-halis Tribe is drawn from the descendants of the Indians listed on the Chehalis Reservation census roll of January 1, 1939, and descendants of the original allottees of Chehalis Reservation land. Upper Che-halis, Lower Chehalis, Satsop, Cowlitz, or other particular tribal heritage is not a criterion for membership, [Ex. SH/CH-M-243; R. 258-59, 273-76], although the membership of the Chehalis Tribe is largely composed of persons of some degree of Upper Chehalis ancestry. [Ex. USA-M-42 at 1.] Members are not permitted to be enrolled in any other Indian tribe. [Ex. SH/CH-M-243.]

2. The Chehalis Indian Reservation is located near the confluence of the Black and Chehalis Rivers, near the town of Oakville, in Lewis County, Washington. Issues as to the boundary of the Chehalis Reservation are reserved for later determination.

3. The Shoalwater Bay Indian Tribe is composed of the descendants of a small group of Indians of Chinook and Lower Chehalis ancestry who settled on the Shoalwater Reservation. Membership is drawn from the descendants of 11 individuals whose names appear on the voter list for the 1935 Indian Reorganization Act election on the Shoalwater Reservation. [R. 562-63; Ex. SH/CH-M-218.] Chinook or Lower Chehalis ancestry is not a criterion for membership in the Shoalwater Bay Indian Tribe, [Ex. SH/CH-M-76; R. 564], although the membership of the Shoalwater Bay Indian Tribe is largely composed of people of some degree of Lower Chinook and Lower Chehalis ancestry. [Ex. USA-M-42 at 1.] The Shoal-water Bay Constitution also prohibits members from being enrolled in any other Indian tribe. [Ex. SH/CH-M-76.]

4. The Shoalwater Bay Indian Reservation contains approximately 334 acres of land above the ordinary high water mark on the north end of Willapa Bay, in Pacific County, Washington. Whether the reservation boundaries included tidelands or the bed of the bay is reserved for later determination.

5. Neither the Confederated Tribes of the Chehalis Indian Reservation, the Shoalwater Bay Indian Tribe or the aboriginal tribal groups from which their membership is descended are party to the Treaty of Olympia (or Treaty with the Quinault), 12 Stat. 971, or any other ratified treaty with the United States. [Complaint No. 83-117 ¶ 4.5; Ex. USA-M-42 at L]

6. The Court has previously found that the Quinault Nation “is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Quinault Reservation and is composed of the Quinault and Queets Band of Indians, and other fish-eating Indians of the Olympic Peninsula who were allotted on the Quinault Reservation.” United States v. Washington, 384 F.Supp. 312 at 374, FF. 119 (W.D.Wash.1974).

7. The Quinault Nation is a political successor in interest of some of the tribes or bands which were parties to the Treaty of Olympia, Id. It possesses adjudicated off-reservation treaty fishing rights. United States v. Washington, 384 F.Supp. at 374-75, FF. 120, 121; 459 F.Supp. 1020, 1097 (1978), aff'd, 573 F.2d 1123, 1130-32 (9th Cir.1978); 626 F.Supp. 1405, 1492, 1494 (W.D.Wash.1985), aff'd, 761 F.2d 1419 (9th Cir.1985).

8. Membership in the Quinault Nation is equally open to any individual who has 1/4 or more in the aggregate Quinault, Queets, Quileute, Hoh, Chehalis, Chinook, or Cowlitz ancestry and who is not a member of any other federally recognized tribe. [Ex. QN-M-315; R. 739.] The membership of the Quinault Indian Nation includes a large number of individuals of Chehalis, Chinook, and Cowlitz ancestry. [Ex. QNM-323A; R. 740.] All enrolled Quinault tribal members have the same rights, privileges, and obligations. R. 739. Many members of the Quinault Nation who participate in its off-reservation fishery in Grays Harbor and the Chehalis and Humptulips Rivers possess Chehalis or Chinook ancestry. [R. 740-41.]

Claim to Aboriginal Fishing Rights

9. In 1851, Dr. Anson Dart negotiated treaties dealing with several groups of Chi-nook Indians on the Columbia River and on Willapa Bay. Among those treaties were treaties with the Wahkiakum Chi-nook, the Lower Chinook, and the “Whee-lapa” Chinook. [Ex. W-M-15 (Wheelapa treaty); W-M-16 (Wahkiakum treaty); W-M-ll (Lower Chinook treaty).]

10. The 1851 Dart treaty with the Wheelapa purported to obtain a cession from the last remnants of the Kwalioqua Band of Indians. [Ex. W-M-15.]

11. The 1851 Dart treaties, as written, included certain provisions for a fishing right for the tribes who entered into the treaties. [Ex. W-M-15,16,11.] The treaties negotiated by Dr. Anson Dart were never ratified by the Senate and never became a law of the United States of America. [Tr. 816; Ex. USA-M-42 (Lane Written Direct) at p. 10.]

12. Dart’s understanding was that he had purchased all of the lands of the various “tribes and bands” of Indians surrounding Willapa Bay and extending up the Columbia River for about 60 miles from its mouth. [Ex. USA-M-42, p. 8 (Also Lane Written Direct at p. 8).]

13. The 1851 Dart treaty with the Wheelapa Band of Chinook and Lower Chinook encompassed the area of Southwest Washington including the lands around Willapa Bay. The Wheelapa treaty made provision for a large general reservation encompassing Willapa Bay region and adjacent lands from the Chehalis River south. [Ex. USA-M-42, p. 3 (Also Lane Written Direct at p. 3; W-M-15 (Wheelapa treaty); W-M-112 (S.Rep. No. 503, 62d Cong., 2d Sess., pp. 2-3).]

14. The “Wheelapa Band of Chinook” were survivors of an Athabaskan speaking enclave who occupied headwaters of the Willapa River and Chinook speakers who occupied the lower reaches of the Willapa River. The “Lower Band of Chinook” included those Chinook bands that occupied Willapa Bay and the streams draining into it as well as those on the lower Columbia. [Ex. USA-M-42, p. 8 (Also Lane Written Direct, p. 8); USA-M-48 (Dart to Lea, 11/7/1851).]

15. The unratified Dart treaties with the “Wheelapa Band of Chinook” and “Lower Band of Chinook” contained land cession provisions [Ex. USA-M-46 (Lower Chinook article 1st); USA-M-47 (Wheela-pa Chinook article 1st).] The Wheelapa treaty purported to cede:

The said Wheelapa Band of Indians, hereby cede to the United States, all the land claimed or owned by the said Band. The land intended to be hereby ceded is bounded on the North by lands owned by the Cheehales tribe of Indians, on the East by lands of the Cowlitz Band of Indians, on the South by lands of the Waukikum and Lower Bands of Chinooks, and on the West by the Coast and Shoalwater Bay.

The Lower Chinook treaty purported to cede:

Beginning at the mouth of a certain stream entering Gray’s Bay, on the north side of the Columbia River, which stream forms the western boundary of lands, ceded to the United States by the Waukikum Band of Chinooks; running thence Northerly on said western boundary to lands of the Wheelapa Band of Indians; thence westerly along said lands of the Wheelapa Band, to the Shoalwater Bay; thence Southerly and Easterly following the Coast of the Pacific Ocean and the Northern shore of the Columbia to the place of beginning. The above description is intended to embrace all the lands owned or claimed by said Lower Band of Chinook Indians.

16. In about 1906, Dr. McChesney, working for the Indian Department, was given the task of assembling the rolls of descendants of the Chinook people signatory to the unratified treaties of 1851.

17. On August 24, 1912, Congress appropriated money to compensate the descendants of the signers of the Anson Dart treaties. The 1906 McChesney rolls list the individuals to whom compensation was paid pursuant to the 1912 Act. [Tr. of October 15, 1990, p. 86.] Twenty thousand dollars was paid to the Lower Chinook. Five thousand dollars was paid to the Wheelapa Chinook Indians. Seven thousand dollars was paid to the Wahkiakum Chinook Indians. 87 Stat. 518, 535.

18. A congressional report accompanying the Act of August 24, 1912, reads:

The [Dart] treaties were duly submitted by the President to the Senate for ratification, but they were neither ratified nor rejected. Nevertheless, the Government took possession of both the ceded and reserved lands, and most of them have been disposed of under the public-land laws. The Indians were disposed of all their lands and of all of the rights and privileges granted them by the [Dart] treaties.

[Ex. W-M-112 (S.Rep.508, pp. 2-3).]

19. By appropriating money in the Act of August 24, 1912, to pay the descendants of the Lower Chinook, Willapa, Kwalioqua and Wahkiakum, the Congress confirmed that it had extinguished all aboriginal land title of those Indians. The plaintiff tribes do not hold or possess aboriginal land title of the Lower Chinook, Wheelapa Chinook, Willapa (Kwalioqua), Wahkiakum Chinook, because those rights were taken and the extinguishment was later confirmed by payment under the Act of August 24,1912. The extinguishment of title to those lands extinguished all fishing rights in those areas. See Conclusions of Law 22 through 35.

20. By appropriating payment in the Act of August 24, 1912 to pay to the descendants of the signers of the unratified Dart treaties with the Lower Band of Chi-nook and the Wheelapa Band of Chinook, Congress confirmed that it had taken all lands that would have been ceded by the treaties and had extinguished all aboriginal title and any fishing rights related to those lands. The plaintiff tribes do not hold or possess aboriginal fishing rights in the area that would have been reserved or ceded by the Dart treaties, including Shoalwater Bay and its environs, as described in Findings of Fact 12, 13, and 15, above.

21. Between 1854 and 1863, the Washington Territory Surveyor General surveyed approximately 2,800,000 acres. The survey was to prepare for land sales and dispersal of land for settlement by non-Indians. These lands were primarily in the Puget Sound and Southwest Washington area. The survey included all the townships around Grays Harbor and Shoalwater Bay and much of the Chehalis River valley. [Tr. 983-990.]

22. In 1863, Abraham Lincoln issued an Executive order that opened lands in Southwestern Washington for sale or settlement by non-Indians. The opening of lands for sale in 1863 was inconsistent with tribal exclusive'use and occupancy of any remaining Indian tribes and extinguished any remaining aboriginal title in Southwest Washington, including Grays Harbor and Willapa Bay.

23. The Court finds that the United States took the aboriginal title of the Upper and Lower Chehalis, Cowlitz, Chinook, and all other Indians in Southwest Washington by its actions in settling or conveying the lands to non-Indians. That extin-guishment occurred not later than 1863.

24. The plaintiff Confederated Tribes of the Chehalis Indian Reservation, along with individual Indians, brought an action before the Indian Claims Commission to ask for compensation for the extinguishment of the aboriginal title of the Upper and Lower Chehalis Indians. [Ex. W-M-126 (Complaint, ¶ X).]

25. The Indian Claims Commission found that the United States had previously extinguished the aboriginal title of the Upper and Lower Chehalis Indians and made a finding as to the land which those groups had held by aboriginal title. [Ex. W-M-129 (8 Ind. Cl. Com. 436).] The parties to the Chehalis Indian Claims Commission proceeding litigated the area of aboriginal title taken but did not litigate the value of that taking. Instead, the claim was settled on an amount of damages of $754,000. [Ex. SH/CH-M-414 (12 Ind. Cl. Com. 644).]

26. The I.C.C. made a specific finding that a Lower Chehalis Tribe held aboriginal title to a certain area, and an Upper Chehalis Tribe held aboriginal title to an adjacent area. [Ex. W-M-129 (8 Ind. Cl. Com. at 461-62).] The I.C.C. found that after abortive treaty negotiations in 1855, that as of March 3,1855, the United States dealt with all Upper and Lower Chehalis lands as public lands and extinguished the aboriginal title to those lands. [Ex. W-M-129 (8 Ind. Cl. Com. at 462).] In 1964, Congress appropriated money to pay the Chehalis Indian Claims Commission award. P.L. 88-327, 78 Stat. 204 at 213. [Ex. W-M-154.]

27. Congress did not pay the Chehalis Indian Claims Commission award to the plaintiff Confederated Tribes of the Che-halis Indian Reservation nor to the Shoal-water Bay Indian Tribe. Instead Congress charged the Bureau of Indian Affairs with compiling a roll of persons who were descended from the aboriginal Chehalis Indians. 25 U.S.C. § 1151. Congress made the payment to that roll of descendants.

28. The extinguishment of Upper Che-halis and Lower Chehalis aboriginal title found by the I.C.C. included subsidiary Indian groups labelled as the Satsop Tribe, Humptulips Tribes, Hoquiam, Wynoochee, and Wiskah Indians. [Ex. W-M-129 (8 Ind. Cl. Com. at 460).]

29. An individual Indian named Simon Plamondon brought a claim on behalf of the Cowlitz Tribe of Indians. [W-M-138]. The I.C.C. found that a Cowlitz Tribe of Indians once held aboriginal title to lands in Southwestern Washington, and that following the Presidential Proclamation of March 20, 1863, the United States extinguished aboriginal title of the Cowlitz Tribe. [Ex. W-M-138 (25 Ind. Cl. Com. at 441-42).]

30. Upon report of the I.C.C. that it found that aboriginal title of the Cowlitz Tribe had been extinguished without compensation, Congress appropriated funds to pay the award of the I.C.C. [Ex. W-M-154.]

31. Various persons brought a claim to the I.C.C. on behalf of the Chinook Tribe of Indians. The I.C.C. found that a Chi-nook Tribe of Indians once held aboriginal title to lands in Southwestern Washington, but that the United States had extinguished all aboriginal title to the Chinook Tribe. [Ex. SH/CH-M-86.]

82. Upon report of the I.C.C. that it found that aboriginal title of the Chinook Tribe had been extinguished without fair compensation, Congress appropriated funds to pay the award of the I.C.C. [Ex. W-M-154.]

S3. All aboriginal fishing rights of groups to which plaintiff tribes claim suc-cessorship were extinguished with aboriginal title.

34. The conduct of the United States government in appropriating money to pay the I.C.C. awards confirms that the United States government had in fact extinguished the aboriginal title of the Upper Chehalis, Lower Chehalis, Cowlitz and Chinook Indians as found by the I.C.C.

35. The plaintiff tribes cannot claim the aboriginal fishing rights of the Upper Che-halis, Lower Chehalis, Humptulips, Satsop, Hoquiam, Wynoochee, Wiskah, Cowlitz, and Chinook Indians because those aboriginal fishing rights, to the extent they once existed, were extinguished with aboriginal land title.

Claim to Rights Under Treaty with Ouinaults

36. On August 30, 1854, the Acting Commissioner of Indian Affairs notified Governor Isaac I. Stevens of his appointment to negotiate treaties with all tribes in the Washington Territory. United States v. Washington, 384 F.Supp. at 354, FF. 17. [Ex. USA-M-52.]

37. The United States’ principal purposes were to extinguish Indian claims to the land in Washington Territory and provide for peaceful and compatible coexistence of Indians and settlers, and between settlers and the government. 384 F.Supp. at 355, FF. 19. [R. 103-04, 616.]

38. In December, 1854 and January, 1855, Governor Stevens negotiated the Treaties of Medicine Creek, 10 Stat. 1132; Point Elliot, 12 Stat. 927; Point No Point, 12 Stat. 933; and Makah, 12 Stat. 939.

39. On February 24, 1855, Governor Stevens arrived on the Chehalis River to hold a treaty council with all of the remaining Indians of Western Washington of which his treaty commission had knowledge, except for part of the Klickitat and Upper Chinook which were not invited. [Ex. USA-M-42 at 16; USA-M-59 at 1; R. 1083.]

40. On February 27, 1855, the Treaty Council was commenced with, representatives of the Upper Chehalis, Lower Che-halis, Cowlitz, Lower Chinook, Quinault and Queets tribes present. [Ex. USA-M-59 at 1-2.] In the proposed treaty presented by Governor Stevens, the United States sought a voluntary cession of the Indians’ lands. In exchange for the cession the treaty would have reserved to each of the tribes the “right of taking fish at all usual and accustomed grounds and stations” and provided for the establishment of a reservation to be located between Grays Harbor and Cape Flattery. [Ex. USA-M-59 at 20-21.]

41. Representatives of the Chehalis, Chinook, and Cowlitz objected to being placed on a single reservation north of Grays Harbor and refused to sign the treaty. [Ex. USA-M-42 at 17-20; USA-M-59.] They sought reservations in their own territories and the right to continue fishing at their own fisheries. [Ex. USA-M-42 at 18-20; USA-M-59; R. 102-03.] Only the Quinault and Queets, together with Governor Stevens, signed the offered treaty. [Ex. USA-M-59 at 12, 23.] When it became clear that the other tribes were unwilling to sign, Governor Stevens terminated the treaty council and announced that there would be no treaty. [Ex. USA-M-42 at 20; USA-M-59 at 12-19.]

42. At the Treaty Council Governor Stevens learned for the first time of the existence of the Quileute and Hoh. [Ex. USA-M42 at 16; USA-M-59 at 1-2; R. 613-14.] Governor Stevens returned to Olympia where, before leaving for treaty negotiations in eastern Washington, he prepared a new treaty draft covering only the Quinault, Quileute, Queets, and Hoh. [Ex. USA-M-42 at 21; R. 106, 115.] The new treaty draft added the Quileute and Hoh as parties. References to the Upper Chehalis, Lower Chehalis, Chinook and Cowlitz, who were not to be party to it, were deleted. The cession area described in the treaty and the amount of money to be paid were amended to reflect the change in parties, and instead of providing for the establishment of a single reservation, it provided for the reservation of a “tract or tracts.” [Ex. USA-M-42 at 22; compare Ex. USA-M-59 at 20-23 to Ex. SH/CH-M-266 (12 Stat. 971).] The change allowing the establishment of more than one reservation likely was made in order to avoid a second failure to conclude a treaty in the event the Quileute and Hoh resisted removal to the Quinault Reservation. In fact, the Quileute and Hoh did refuse to leave their territories and separate reservations were eventually established for them. [Ex. USA-M-42 at 23.]

43. Governor Stevens gave instructions to Michael Simmons to obtain the signatures of the Quinaults and Quileutes on the revised treaty. [Ex. USA-M-60.] Simmons met with the Quinault, Queets, Qui-leute, and Hoh at the Quinault River on July 1, 1855, and obtained their agreement to the Treaty with the Quinault. [Ex. QNM-133 at 4; Ex. USA-M-42 at 22.] Governor Stevens signed the Treaty in Olympia on January 25, 1856, hence its alternate name, the Treaty of Olympia. [Ex. USA-M-42 at 22.]

44. Governor Stevens also instructed Simmons to advise the other groups who had been at the Chehalis River Council in February, 1855 that he would treat with them further in Olympia. Governor Stevens apparently intended to attempt to negotiate a separate treaty with the Che-halis, Chinook, and Cowlitz groups on his return from eastern Washington. [Ex. USA-M-42 at 23-24; USA-M-60; R. 115-16, 1084-85.] Governor Stevens also appears to have considered the possibility that he would be unable to conclude a treaty with these groups and suggested to the Commissioner of Indian Affairs that in such event Congressional action removing them might be necessary. [Ex. USA-M-42 at 24; USA-M-62.] In contrast to his insistence at the Chehalis River Council that the Chehalis, Chinook and Cowlitz remove to a reservation north of Grays Harbor, Governor Stevens instructed Simmons to advise the Upper Chehalis and Cowlitz that they might be incorporated with the Nisqually, and that the Chinooks, Shoalwater Bay and Lower Chehalis might have their own reservation with fishery and potato grounds. [Ex. USA-M-42 at 24; USA-M-60; R. 1056-58.]

45. Before Governor Stevens could return to conduct further treaty negotiations with the Chehalis, Chinook, and Cowlitz, war broke out and occupied his attention. After the war Congress refused to ratify the treaties that Stevens had already negotiated or pay the expenses of the war. Stevens returned to Washington, D.C. to lobby for ratification of the treaties and funds. The civil war and its aftermath followed. In this unsettled period no further arrangements were made to treat with the Chehalis, Chinook, and Cowlitz and a treaty was never concluded with them. [R. 215-17.]

46. The Treaty with the Quinault was ratified in 1859. [Ex. SH/CH-M-266 (12 Stat. 971).] No evidence was presented that the Senate understood the Treaty to deal with any tribes other than the named parties, nor is there any evidence to suggest that Stevens, Simmons or any other officer of the United States involved in the negotiation of the Treaty thought it dealt with the Chehalis, Cowlitz, or Chinook. [R. 623-24.] Similarly, there is no evidence to suggest that the Quinault, Qui-leute, Hoh, or Queets parties to the Treaty thought it dealt with the other tribes who had been at the failed Chehalis River Council. [R. 624.] Moreover, after the negotiation of the Treaty, the Chehalis, Chinook, and Cowlitz thought they were still to be treated with and expressed a desire to treat, [R. 624-25; Ex. W-M-40 at 13], indicating their understanding that the Treaty with the Quinault did not deal with them. [See R. 636.] The general understanding that the Chehalis, Chinook, and Cowlitz were not dealt with through the Treaty with the Quinault is further confirmed by consistent reports of the local agents published in Annual Reports of the Commissioner of Indian Affairs describing these groups as “not treated with,” “not party to any treaty” or the like. [See, e.g., EX. QN-M-53 at 334; QN-M-54 at 233; QN-M-55 at 397, 404; QN-M-56 at 422; QN-M-58 at 536; QN-M-60 at 76-79; QN-M-68 at 278; QN-M-77 at 150.]

47. There is no evidence to suggest that the tribes that were parties to the Stevens treaties understood the treaties to provide for the sharing or transfer of the fishing rights among the tribes party to the treaties. [R. 625, 627-8.] Similarly, there is no evidence to suggest that the United States or the tribes party to the Treaty with the Quinault understood it to provide for the transfer or sharing of fishing rights reserved by the tribal parties with tribes not party to the Treaty. [R. 629.]

48. In 1859 it was decided to protect land for the Upper Chehalis and Satsop at the confluence of the Black and Chehalis Rivers and notice was published that a reservation would be established at that location. [R. 631-32; Ex. USA-M-42 at 36; QN-M-163-64.] A portion of this land was eventually set aside as the Chehalis Reservation. [Ex. USA-M-42 at 36.] Instead of a treaty, the Chehalis Reservation was set apart by Secretarial Order of July 8, 1864, after the Commissioner of Indian Affairs advised the Secretary of the Interi- or that the Chehalis had resisted all suggestions to jointly occupy other reservations. [Ex. USA-M-42 at 38; SH/CH-M-319.] Two years later the Shoalwater Reservation was established by Presidential Executive Order of September 22, 1866. [Ex. USA-M-42 at 39; SH/CH-M-36.] Both Orders are limited to reservations of specifically described lands. They contain no language in any way comparable to the express reservation of off-reservation fishing rights contained in the Stevens treaties.

49. The Treaty with the Quinault does not designate the location of the reservations to be established for the Indian parties. In 1859 after the ratification of the Treaty, Michael Simmons proposed establishment of a reservation encompassing approximately six sections between Point Grenville and the mouth of the Quinault River. [Ex. USA-M-79; QN-M-56 at 419-20.] The reservation was surveyed in 1862. [Ex. USA-M-42 at 26,]

50. In 1871 only the Quinaults were living on the reservation. [Ex. QN-M-68 at 288.] At the time there were only three reservations in southwestern Washington. [Ex. USA-M-42 at 29.] In addition to the three reservation communities there were a number of small bands of Indians who had not moved to any reservation whose tenure was threatened by settlers and land speculators. [Id. at 29-30.]

51. Superintendent Milroy in his 1872 annual report proposed the enlargement of the Quinault Reservation. [Ex. USA-M-42 at 26-28; QN-M-69 at 339-41.] Milroy proposed that the Quileute, Hoh, and Queets, together with other Indians could be collected on the enlarged reservation. [Ex. QN-M-69 at 341.] The Quinault Reservation was enlarged in accordance with Milroy’s recommendation by Executive Order of November 4, 1873. [Ex. SH/CHM-401; QN-M-183.]

52. In the same 1872 annual report proposing enlargement of the Quinault Reservation, Superintendent Milroy also proposed a program for the improvement of the Chehalis Reservation. [Ex. QN-M-69 at 334-35.] It does not appear that the United States intended to relocate people already located on the Chehalis and Shoal-water Bay Reservations to the Quinault Reservation in connection with the 1873 Executive Order. [R. 632-33.]

53. No evidence was presented that the 1873 Executive Order enlarging the Qui-nault Indian Reservation was intended to grant treaty rights to the Chehalis, Chi-nook, or Cowlitz. The evidence presented is to the contrary. The Chehalis, Chinook, and Cowlitz received no treaty annuities. [R. 634.] Moreover, because the Chehalis were not party to a treaty providing for allotment of land to individuals, allotment of the Chehalis Reservation was accomplished through an 1886 Executive Order restoring much of it to the public domain so that patents could be issued under the Indian Homestead Acts. [Ex. USA-M-42 at 42-44.]

54. Census data collected in 1878 show 103 Indians belonging to the Shoalwater Bay Reservation, [Ex. USA-M-87], 205 Indians belonging to the Chehalis Indian Reservation, [Ex. USA-M-89], and 164 Indians belonging to Lower Chehalis and Grays Harbor Indians, [Ex. USA-M-88.] The latter people remained living around Grays Harbor and the lower waters of the streams draining into it and refused to move to a reservation. [Ex. QN-M-74 at 141.] Over time many of the Grays Harbor and Lower Chehalis moved to the Quinault Reservation and assimilated into the Quinault Nation. [Ex. SH/CH-M-316 at 20-21.] Some moved to the Chehalis Reservation, some to the Shoalwater Reservation, and an indefinite number remained scattered around the Harbor. [Id.; R. 161-64.]

55. In 1905, allotment of the Quinault Reservation commenced. [Ex. USA-M-42 at 30.] In June of that year the allotting agent was instructed to take applications for allotment from Quinaults, Quileutes, Queets, Hohs, and members of those tribes which the Central Office had been advised were occupying the Reservation. [Id.; Ex. SH/CH-M-171; R. 637.] In October, the allotment instructions were amended and clarified to restrict allotment at Qui-nault to Indians having no rights in land on another reservation. [Ex. SH/CH-M-263; USA-M-42 at 31.] Later instructions in 1906 specifically provide that Qui-leute and Hoh Indians located on the Qui-leute and Hoh Reservation are not entitled to an allotment at Quinault. [Ex. SH7CH-M-263.]

56. Shoalwater Bay Indians were allotted at Quinault based on the erroneous impression that they were resident on the Quinault Reservation. [R. 639-41.] Indians of the Chehalis, Hoh, and Quileute Reservations, however, were not allotted. [R. 641; Ex. SH/CH-M-263.]

57. Legislation was introduced in 1910, (SB 5269), to authorize allotment of surplus land of the Quinault Reservation remaining after allotment of the Indian residents to Quileute, Hoh, and Ozette Indians desiring allotments at Quinault, rather than at the Reservations set aside for their own tribes. [Ex. USA-M-42 at 31; QNM-229.]

58. Subsequently, the Secretary of the Interior proposed an amendment to this legislation to also authorize allotments of surplus Quinault Reservation land to members of “other tribes of Indians in Washington, who are affiliated with the Qui-naielt and Quileute Tribes in the treaty of July first, eighteen hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six_” [Ex. QN-M-252.] The Secretary of the Interior advised the Chairman of the House Committee on Indian Affairs that the amendment was designed principally to provide for allotment of certain unallotted Clallam and Squaxin Island Indians who the Secretary stated “were at one time affiliated with the Indians on the Quinault Reservation.” [Ex. SH7CH-M-259.9; QN-M-260.]

59. At the time, both the Squaxin and Clallam had been lobbying for land. [R. 643-45.] The Squaxin and Clallam Tribes are respectively parties to the Treaties of Medicine Creek and Point No Point and each reserved its own right to fish at Squaxin and Clallam usual and accustomed fishing places under those treaties. [R. 646.] See United States v. Washington, 384 F.Supp. at 348-49, 377-78, 459 F.Supp. at 1039-41. The Secretary’s description of the Squaxin and Clallam as “affiliated” with the Indians of the Quinault Reservation and his use of the term in the proposed amendment to the allotment bill is not readily explained. [R. 646.]

60. SB 5269 was enacted with the amendment proposed by the Secretary of the Interior added in the House. [Ex. QN-M-333 at 3937; R. 646; SH/CH-M-46, Act of March 4, 1911, 36 Stat. 1345.] The Act provides in its entirety:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the Secretary of the Interior be, and he is hereby, authorized and directed to make allotments on the Qui-naielt Reservation, Washington, under the provisions of the allotment laws of the United States, to all members of the Hoh, Quileute, Ozette or other tribes of Indians in Washington, who are affiliated with the Quinaielt and Quileute tribes in the treaty of July first, eighteen hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six, and who may elect to take allotments on the Quinaielt Reservation rather than on the reservations set aside for these tribes, Provided. That the allotments authorized herein shall be made from the surplus lands on the Quinaielt Reservation after the allotments to the Indians thereon have been completed.

[Ex. SH/CH-M-46, Act of March 4, 1911, 36 Stat. 1345.]

61. The intent of the Act was to authorize Indians whose reservation contained insufficient land for allotment to take allotments from the “surplus land” at Quinault that remained after the allotment of Reservation residents. [Id.; Ex. QNM-235; QN-M-258; QN-M-252; SH/CHM-259.9; QN-M-333; R. 684-85.] The legislative history and correspondence relating to the Act of March 4, 1911, do not discuss the Shoalwater Bay or Chehalis Tribes, nor do they discuss the transfer or sharing of treaty fishing rights. [R. 646-47, 684-85.]

62. In 1931, the Supreme Court construed the Act of March 4, 1911, to permit the allotment of Chehalis, Chinook, and Cowlitz Indians from the surplus lands of the Quinault Reservation, if they were without allotment elsewhere. Halbert v. United States, 283 U.S. 753, 760, 51 S.Ct. 615, 75 L.Ed. 1389 (1931). However, only Chehalis who did not have land at the Chehalis Reservation received allotments at Quinault. [R. 647.]

63. No band or group of Quinault, Qui-leute, Hoh, or Queets parties to the Treaty with the Quinault merged into or consolidated with the Confederated Tribes of the Chehalis Indian Reservation or the Shoal-water Bay Indian Tribe. [R. 647-48.]

64. The Quinault Indian Nation, Hoh Indian Tribe, and Quileute Indian Tribe are the only Indian tribes recognized by the United States as possessing off-reservation fishing rights reserved pursuant to Article 8 of the Treaty with the Quinault, 12 Stat. 971. [Ex. QN-M-329 at 12.] Both the United States and Quinault Nation take the position that the plaintiff tribes do not possess any fishing rights pursuant to that treaty. [Id.]

Claims Based on Executive Orders

65. During the Indian Wars of 1856, a subagent, Sidney Ford, wrote Governor Stevens a letter describing his efforts to keep the Chehalis peaceful and located around Ford’s Prairie. [Tr. 850-51; WM-40 (10/10/1856 Letter Ford to Stevens, p. 13).] Ford recommended a reservation at that location. On November 30, 1856, Ford wrote Stevens again urging a reservation at the Chehalis River for the Upper Chehalis Indians. Ford recommended a separate reservation for Lower Chehalis Indians and Indians on Shoalwater Bay. [Tr. 851-52; W-M-42.] Both letters demonstrate the Indian agent’s concern with whiskey traffic and promoting farming amongst Indians. Sidney Ford renewed these recommendations in 1857. [Ex. QNM-53 (Report of Sidney Ford 6/30/1857); Tr. 853-54.] By 1857, however, Stevens indicated that he had no instructions to make any treaties with the Cowlitz and Chehalis Indians. [W-M-45 (Stevens to Pomroy 1/31/1857).]

66. After Stevens left Washington Territory in 1857, the Indians remained in the area of the Chehalis River. In 1859, Michael Simmons published a notice in the newspaper advising the public that the government would reserve lands on the Chehalis River for an Indian reservation. [Lane Written Direct, p. 36.] The large reservation described in 1859 was not made. While proposing a reservation at Chehalis River, Simmons made it clear that the reservation would not be suited for Chinook and Lower Chehalis Indians who had previously lived near the seashore. [Ex. SH/CH-M-257 (Letter Simmons to Geary 7/1/1860).] No lands were reserved in 1860.

67. In June 1862, the new Superintendent of Indian Affairs for Washington Territory, Hale, began an effort to deal with the non-treaty Upper Chehalis Indians. On July 3, 1862, Hale wrote to Commissioner of Indian Affairs Dole and reported that the Chehalis would not consolidate with the Nisquallys. He did report that they would enter into a treaty and take a reservation of about four sections of land at the confluence of the Black and Chehal-is Rivers. Hale urged the Commissioner of Indian Affairs to authorize a treaty with those Indians. [Tr. 857-58; W-M-59 (6/3/1862, Letter Hale to Dole); SH/CHM-264.5 (7/3/1862 Letter Hale to Dole).]

68. Hale did not get an immediate response from Commissioner of Indian Affairs Dole and in March of 1863, he reported that he was locating Upper Chehalis Indians at the confluence of the Black and Chehalis Rivers. [Tr. 860-61; W-M-63 (3/30/1863 Letter Hale to Dole).] In 1863, however, Hale substantially changed the nature of his recommendation and recommended no treaty or treaty promises. He wrote:

For the lands necessarily taken from them the government should evince its magnanimity in making ample provision for their protection and welfare. I do not, therefore, propose to have any treaty made either with the Chehalis or Colville or any other Indians within the bounds of this superintendency who have yet been made parties to any treaty. What may be done for these Indians in the way of providing an agent to take care of and employees to instruct them ... will be more kindly received by them, and considered as presents and favors, to be given or withheld at pleasure, instead of a consideration which they have the right to expect and demand. In this way, too, we shall avoid the violation of treaty stipulations. Some such courses I have thus indicated will, I believe, be more satisfactory to the Indians themselves, and will in the end be more safe and economical to the department.

[Ex. QN-M-59, p. 442 (9/1/1863 Report Hale to Dole).]

69. Hale arranged for a survey and description of his proposed Chehalis Indian Reservation. [Ex. QN-M-59, p. 443.] The description was forwarded to Commissioner of Indian Affairs Dole. On May 17, 1864, Commissioner Dole recommended to the Secretary of Interior that he reserve lands recommended by Superintendent Hale. [Ex. SH/CH-M-335 (5/17/1864 Letter Dole to Secretary of Interior).] The recommendation of Commissioner of Indian Affairs Dole clearly referred to the recommendations and proposals that had been approved by Superintendent Hale.

70. In reserving lands for the Chehalis Indian Reservation, the Secretary of Interior had no intention to impliedly create a treaty right.

71. In reserving lands for the Chehalis Indian Reservation, the overwhelming motivation was to secure lands for the Indians before the lands were settled by non-Indians. That the United States recognized the validity of non-Indian settlements is demonstrated by the fact that the United States paid for the private land claim of D. Mounts, which was within the six sections of land reserved for the Chehalis Indian Reservation. [1 Kapler 903 (7/8/1864 Secretarial Order).] The year before the order reserving lands for the Chehalis Reservation, Superintendent Hale reported that he had surveyed boundaries for a reservation.

But the most serious defect of all is, that no official information of the recognition and approval of any of the Indian reservations by the President or the Department [of Interior] has been given to the Commissioner of the General Land Office, so as to enable him to instruct the proper officers here to reserve the same from entry [by non-Indians], The difficulty became very manifest when the lands were offered for public sale. ... Unless different instructions on this point are given by the Commissioner, the difficulty may be very soon revived, as parties are not infrequently applying to enter lands which are included within the bounds of our Indian reservation.

[Ex. QN-M-59 (9/1/1863 Report Superintendent Hale to Commissioner Dole).] The express motivation for the July 8, 1864 Secretarial Order reserving lands for the Chehalis Indians was to reserve the lands from entry by non-Indians. The order addressed the problem of landless Indians and showed no intention to deal with tribal off-reservation rights.

72.In recommending the Chehalis Indian Reservation to the Secretary of Interior, Commissioner Dole expressly stated that “it will also be necessary, doubtless, to make some provision for them after they shall have been assured of the quiet and permanent possession of the proposed reservation for a future home. But this may subsequently receive the attention of the Department. These Indians are represented to be a very hopeful condition. They wish to abandon a roving life; to establish themselves in houses and cultivate their lands; to educate their children, and live peaceably with all.” [1 Kapler 902; SH/CHHM-315 (5/17/1863 Letter Commissioner Dole to Secretary of Interi- or).] That the lands would be cleared and farmed and that the United States had not made all provisions demonstrates that there was no United States intent to create or reserve any off-reservation fishing right by implication.

73. Indians of Southwest Washington had relied upon fish long before the arrival of non-Indians. The location for the Che-halis Indian Reservation had referred to the proximity of fish in the Chehalis River. The fact that the Un