Full opinion text
MEMORANDUM OPINION AND ORDER RAFEEDIE, District Judge. I. INTRODUCTION A History of the Case This sub-proceeding, filed by the United States and 16 Indian Tribes, involves the Stevens Treaties which were interpreted in United States v. State of Washington, 384 F.Supp. 312 (W.D.Wash.1974) (hereinafter Washington I); aff'd, 520 F.2d 676 (9th Cir. 1975) (hereinafter Washington II); aff'd in substantial part, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The parties filed this action seeking a declaration of the nature and extent of tribal off-reservation shellfishing rights, and the extent to which such rights may be affected by the following limiting provision (“the Shellfish Proviso”): “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the territory ... Provided, however, that they shall not take shellfish from, any beds staked or cultivated by citizens.” Washington I was decided in 1974. At that time, the Court reserved jurisdiction to hear other unresolved issues arising out of the Stevens Treaties. In Washington I, the issue before the Court was the nature and extent of the treaty Tribes’ off-reservation fishing rights with respect to anadromous fish. That decision established the locations of the Tribes’ usual and accustomed grounds and stations and found that the Tribes were entitled to take 50% of the harvestable fish from those grounds and stations. Subsequently, the Supreme Court substantially affirmed the decision finding that the trial court had correctly adjudicated the nature and extent of the Tribes’ fishing rights. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (hereinafter Fishing Vessel). Thus, the treaty Tribes’ rights with respect to anadromous fish in the Puget Sound area is the law of the land. Finally, on September 2, 1993, consistent with Washington I and Fishing Vessel, this Court ruled that “shellfish” are “fish,” within the meaning of the Treaties. Thus, the treaty Tribes’ right to take shellfish is limited, if at all, only by the Shellfish Proviso in the Treaties or to the extent that the Court finds the Moderate Living Doctrine to be applicable from the evidence and the law. B. The Parties’ Contentions In this action, the tribal plaintiffs seek the following declaratory relief: (1) that they have the right to take 50% of all of the species of harvestable shellfish that may be safely harvested within their usual and accustomed grounds and stations; (2) that the usual and accustomed grounds and stations are those previously adjudicated in Washington I; (3) that the phrase “staked or cultivated by citizens” in the Shellfish Proviso be interpreted to mean only those non-natural beds that have been staked or cultivated; (4) that the right to take shellfish extends to natural clam beds that exist under the artificial shellfish beds; (5) that the Tribes’ authority to regulate the harvest be confirmed; (6) that the Court order co-management of the resource between the Tribe and the State; (7) that the Court enjoin the application and enforcement of specific state statutes which the Tribes claim would be discriminatory in practice; (8) that the Upper Skagit Tribe is the successor to the Nuwha’ha and the Bsigwigwilts and is therefore entitled to take shellfish at the usual and accustomed grounds and stations of the Nuwha’ha and Bsigwigwilts; and (9) that the Yakama Nation has not established any usual and accustomed grounds and stations and thus is not entitled to take shellfish. Because the Court has found that shellfish are fish, only a limited issue is currently before the Court, namely the effect of the Shellfish Proviso and the nature and scope of the remedy to be granted. Opposing the plaintiffs are the State of Washington and the intervenors who contend that the “staked or cultivated” provision protects state and private property from shellfishing by the Tribes. Alternatively, but in a similar vein, the intervening shellfish growers argue that the lands which they own or occupy and upon which they conduct the business of shellfish growing have been “staked or cultivated” within the meaning of the Treaties’ Shellfish Proviso, hence they conclude that those lands should be exempted from tribal shellfishing under the treaties. C. Canons of Interpretation In interpreting the Shellfish Proviso, in general, the Court is bound by both general rules of interpretation, and the specific rules handed down by the Supreme Court which apply when Indian Tribes assert treaty rights. In particular, the Court must use special canons of construction to determine the meaning of Indian treaties, all of which amount to the same proposition: “[AJmbiguities occurring will be resolved from the standpoint of the Indians.” Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908). Similarly, treaties with Indians “are to be construed, so far as possible, in the sense in which the Indians understood them, and ‘in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.’” Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943) (quoting Tulee v. Washington, 315 U.S. 681, 684, 62 S.Ct. 862, 864, 86 L.Ed. 1115 (1942)). These canons of construction, however, do not give the court license to interpret a treaty according to the Indians’ preferences. The Supreme Court has left no doubt that “even Indian treaties cannot be re-written or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.” Choctaw Nation, 318 U.S. at 432, 63 S.Ct. at 678. Such an exercise “would be an intrusion upon the domain committed by the Constitution to the political departments of the government.” Choctaw & Chickasaw Nations v. United States, 179 U.S. 494, 532, 21 S.Ct. 149, 164, 45 L.Ed. 291 (1900). Finally, in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Supreme Court adopted a “reservation of rights” approach in interpreting treaties with Indian Tribes. In Winans, the controversy arose when the settlers, who owned the land fronting the Columbia River, denied Indians access to the river abutting their land and by exercising their rights under state licenses to operate “fish wheels.” The fish wheels, as admitted by the parties, gave the landowner “exclusive possession of the fishing places” by obstructing the Indians’ access to the fishing areas. Id. at 382, 25 S.Ct. at 664. Rejecting the landowner’s arguments, the Supreme Court established a new theory of treaty interpretation: a treaty is not a grant of rights to the Indians, but a grant of rights from them, thereby implicitly containing a reservation of those rights not explicitly granted. Further, the Supreme Court found that such reservations of rights encompassed all the territory subject to the treaty, thereby imposing a “servitude upon every piece of land.” Id. at 381, 25 S.Ct. at 664. Thus, the Court concluded that the starting point for analysis of the treaty is the Indian’s preexisting rights. With respect to general canons of treaty construction, the Court begins with the premise that the parties’ intentions dictate the interpretation of a treaty. Choctaw & Chickasaw Nations, 179 U.S. at 531, 21 S.Ct. at 163. In determining those intentions, the Court must interpret words in a treaty according to their natural and ordinary meanings, when the words are unambiguous. Id. It is only when a court finds a word to be ambiguous that it may resort to extrinsic evidence. Id. In addition, treaties may, when necessary, be interpreted in light of the surrounding historical circumstances. Choctaw Nation v. United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed. 877 (1943). Thus, the Court looks to the historical context surrounding the negotiations of the Stevens Treaties. The Court also finds the following canons of construction instructive: (1) a treaty should not be interpreted so as to render one part inoperative, Colawtti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979); (2) when the parties could have more easily expressed a particular intent by an alternative choice of words, the chosen words can be interpreted NOT to express that intent, Choctaw & Chickasaw Nations v. United States, 179 U.S. 494, 538, 21 S.Ct. 149, 166, 45 L.Ed. 291 (1900); and (3) that the practical construction adopted by the parties, namely post-treaty conduct, may be viewed to help determine the meaning of the treaty. Choctaw Nation v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 677-78, 87 L.Ed. 877 (1943). Following these canons of construction, the Court finds that, when signing the Treaties at issue, the Tribes reserved the right to take shellfish from their usual and accustomed grounds and stations, subject only to the Shellfish Proviso. Furthermore, the words “staked or cultivated” in the proviso are ambiguous, and the Court concludes that the Shellfish Proviso does not apply to natural or native beds and that, under the Shellfish Proviso, artificial beds may be staked or cultivated, notwithstanding their location in private tidal lands. The Court interprets these relevant words in this way because of the reservation of rights by the Tribes, the historical context of the treaties, and the rules favoring the resolution of ambiguities in favor of Indian Tribes; in addition, the Court finds the plaintiffs’ evidence as to the meaning of these words to be much more compelling and persuasive than the evidence opposed to it. D. Interpretation of the Proviso and Allegations of Hardship In this sub-proceeding, the Court was not asked to determine which tidelands of marine areas contain natural beds open to Indian fishing, and which contain artificial beds, those staked or cultivated beds not open to Indian fishing; thus this decision does not resolve those issues. Rather, this decision is meant only to determine the meaning of the Shellfish Proviso in the Stevens Treaties and what effect it has on the tribal right to take shellfish. In reaching its decision, the Court may not rewrite the Treaties or interpret the Treaties in a way contrary to settled law simply to avoid or minimize any hardship to the public or to the intervenors. Indeed, the Court has no such power. Rather, amelioration from such hardships should be sought from Congress, which has the power to abrogate the treaty, or from the State of Washington, which sold the public tidelands without notice to the buyers of the pre-existing tribal fishing rights, and indeed the United States, which permitted such sales to occur without taking steps to secure such fishing rights. II. INTERPRETATION OF TERMS IN THE STEVENS TREATIES The resolution of the parties’ contentions in" this sub-proceeding depends on the interpretation of the Stevens Treaties. The Court had occasion to interpret some of the relevant language in Washington I, and finds those interpretations binding in this action. The language of the Shellfish Proviso however, has not been interpreted by the Court; thus, an extensive discussion of language and the meaning of the language is necessary. A Prior holdings 1. The Right of Taking Fish Includes the Right to Take Shellfish The Court held on September 2,1993, that the “right of taking fish” in the Stevens Treaties includes the right to take shellfish. The Court reached this conclusion without reference to the canons of constructions favoring Indians. Indeed, this interpretation is compelled by the plain language of the Treaties. As previously discussed, the Shellfish Proviso limits the Tribes’ right to take shellfish to those beds not “staked or cultivated” by citizens. This Proviso, plainly read, constitutes an exception to the right of taking shellfish at particular locations. It inevitably follows that shellfish were included in the “right of taking fish” referred to in the first sentence. This interpretation is consistent with the principle that a treaty “should be interpreted so as not to render one part inoperative.” Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979). If the right of taking “fish” did not include shellfish, the entire shellfish proviso would serve no purpose. 2. The Right to Take Fish is not Limited to any Particular Species of Fish Defendant and the intervenors have argued that the “right of taking fish” must be limited to those species of fish the Tribes actually took prior to the signing of the Stevens Treaties. At that time, however, the Tribes had the absolute right to harvest any species they desired, consistent with their aboriginal title. See Lac Court Oreilles Band, Etc. v. Voigt, 700 F.2d 341, 352 (7th Cir.1983). The fact that some species were not taken before treaty time — either because they were inaccessible or the Indians chose not to take them — does not mean that their right to take such fish was limited. Because the “right of taking fish” must be read as a reservation of the Indians’ pre-existing rights, and because the right to take any species, without limit, pre-existed the Stevens Treaties, the Court must read the “right of taking fish” without any species limitation. The effort by the defendants to read a species limitation into the “right of taking fish” must fail in light of the canons of construction favoring Indians. Defendant and the intervenors ask the Court to impose a limit on the “right of taking fish” without pointing to any treaty language in support of that interpretation. This is impermissible under Winters and Choctaw Nation. Moreover, had the parties to the Stevens Treaties intended to so limit the right, they would not have chosen the word “fish,” a word which fairly encompasses every form of aquatic animal life. “Fish” has perhaps the widest sweep of any word the drafters could have chosen, and the Court will not deviate from its plain meaning. S. “All Usual and Accustomed Grounds and Stations” Washington I made a series of determinations as to the meaning and import of the phrase “usual and accustomed grounds and stations,” in the context of adjudicating where the plaintiff Tribes enjoyed the right to fish for salmon and steelhead. No party to this sub-proceeding has challenged these determinations, and the Court finds, as explained below, that they are the usual and accustomed grounds and stations for shell-fishing. At trial, the Tribes presented evidence establishing areas in which they historically sought shellfish. However, before considering this evidence, the Court must resolve a preliminary issue of treaty interpretation: whether the usual and accustomed areas for shellfish can, as a matter of law, differ fi*om the areas adjudicated in Washington I for salmon and steelhead. If the Court determines that they cannot, then the areas established in Washington I control this sub-proceeding as well. The Court finds that, as a matter of treaty interpretation, the Tribes’ usual and accustomed grounds and stations cannot vary with the species of fish. This conclusion is consistent with the Court’s prior ruling finding the Tribes’ usual and accustomed grounds and stations for herring as co-extensive with those for salmon and steelhead. See Posh-Trial Decisions, 459 F.Supp. 1020, 1048-50. Indeed, the Court has never focused on a particular species of fish.in determining The Tribes’ usual and accustomed grounds and stations. See e.g., Washington I, 384 F.Supp. at 360, 364, 372; Post-Trial Orders, 626 F.Supp. 1405, 1467, 1528-29. Therefore, the Tribes have the right to take shellfish at those usual and accustomed grounds and stations adjudicated in Washington I, including all bedlands and tidelands under or adjacent to those areas. In addition, however, the Upper Skagit Tribe, seeks to establish its usual and accustomed grounds and stations as those of the Nuwha’ha and the Bsigwigwilts, as well as other' predecessor tribes. See infra Part VII. Other than the evidence put on by the Upper Skagit, the Tribes have stipulated in this sub-proceeding not to present evidence proving usual and accustomed grounds and stations beyond the prior-adjudicated grounds and stations. b. “In Common With All Citizens” The meaning of the term “in common with all citizens” is well-settled. “Both sides have a right, secured by treaty, to take a fan-share of the available fish.” Fishing Vessel, 443 U.S. at 684-85, 99 S.Ct. at 3074. According to the Supreme Court, to determine" this “fair share” a court should “initially divide the harvestable portion of each run ... into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount.” Id at 685, 99 S.Ct. at 3074. The lower boundary — this “lesser amount”— is determined by analyzing the tribes’ “moderate living” needs. See infra Part IV. The important concept here, however, is that the “in common with” language guarantees the Tribes a share of the fish and an “equal opportunity” to catch the fish. See Fishing Vessel, 443 U.S. at 679, 99 S.Ct. at 3071. B. The Shellfish Proviso: “Any Beds Staked or Cultivated by Citizens” 1. Interpretations Proposed by the Parties The intervening growers’ proposed interpretation of the Shellfish . Proviso starts and ends with the treaty-time dictionary. They argue that the Court should interpret “staked” and “cultivated” according to their dictionary definitions; essentially, this would mean that any shellfish bed extant today that is surrounded by stakes, or in some fashion improved by human labor, would be off limits to the Indians. The Tribes do not dispute that, under the definition of the treaty words advanced by the growers, all of the tideland owned or leased by the Growers falls within the Shellfish Proviso. . . - The intervening property owners depart to some extent from this literal approach arguing that “staked”, should be interpreted in its “frontier” context and thus should be regarded as a.synonym for “claimed as private property.” Therefore, all privately-owned tideland, whether or not surrounded by stakes, would be protected by the Shellfish Proviso. The Plaintiff Tribes’ argue first that the terms “staked” and “cultivated” must be interpreted as they were used in the sheUfishing industry at treaty time. This usage of the terms “staked” and “cultivated” by the shellfishing industry has two elements: the doctrinal definition and the empirical definition of the words, which is informed not by a dictionary, but by the actual practices of the shellfishing industry. Thus, while the doctrinal definition of the words might contemplate a broad set of activities, the empirical definition captures that narrower subset of activities that were actually performed at treaty time. As will be shown below, the Tribes presented compelling evidence that only artificial beds were “staked” and “cultivated” at treaty time. 2. “Doctrinal Definition” of Shellfish Proviso Terms Within Shellfishing . Industry a. “BEDS” The intervening growers presented evidence at trial that shellfish “beds,” as that term was used at treaty time, included both natural and artificial shellfish deposits. Ingersoll’s Glossary of Shellfish Terms (“Ingersoll’s”) defines “bed” as “The bank, reef or deposit of oysters in the water, either growing naturally or artificially, original or transplanted.” The Tribes have not disputed Ingersoll’s as the appropriate definition, and the Court will rely upon that definition in its analysis. b. “STAKED” The parties agree that the words “stake” and “staked” were commonly used in the shellfishing industry at treaty time. To “stake” a shellfish bed meant to plant stakes or other markers to indicate the boundaries of the bed. c. “CULTIVATED” Within the shellfishing industry at treaty time, the meaning of the terms “cultivate” and “cultivated” was quite narrow. Ingersoll’s defines “cultivate” as “to raise oysters artificially from spawn, or from transplanted young.” The defendant and the intervenors have presented no evidence to directly contradict Ingersoll’s definition of “cultivate.” The intervening growers have shown that nineteenth-century oyster farmers performed a variety of activities to improve their harvest. Indeed, Moore states in his treatise that “all methods of oyster culture depend for their success upon the modification of the natural conditions in such a manner as to bring about one or several of the following results,” such as the increase in the number of eggs and the increase in the surfaces available for fixation. Reading Ingersoll’s and Moore together, cultivation is the “modification of natural conditions” occurring after the oysters have been planted or transplanted in-an artificial bed. 3. “Empirical Definition” of the Terms “Staked” and “Cultivated” as They Were Used in the Shellfishing Industry At trial, the Tribes presented substantial evidence of the actual use of the terms “staked” and “cultivated” within the shellfish industry. This evidence falls into two categories. , First, the Tribes attempted to reconstruct, state-by-state, the legal landscape governing the shellfish industry. The Tribes argue that at the time the Treaties were negotiated, the shellfishing laws almost universally prohibited the “staking” or “cultivating” of natural shellfish beds. Second, the Tribes presented evidence of actual shellfish industry practices, both on the East Coast and in Shoalwater Bay, Washington. The Tribes maintain that these ■ practices, as might be expected, conformed to the laws governing the industry, thus no actual “staking” or “cultivating” of natural beds occurred at that time. a. Laws Governing Shellfishing Practices As part of an 1876 report, “On the Oyster Industries of the United States,” Lieutenant Paul DeBroca authored a chapter entitled “Oyster Culture,” in which he describes “American ostriculture” as consisting of the “planting of mollusks on those parts of the coast where the submarine soil is best fitted by its nature to fatten them and promote their growth.” In this chapter, DeBroca makes the following critical observation: Whatever may be the locality chosen by the planters, they can in no ease pursue their industry on the natural banks of oysters, the common property of the people, or in any way interfere with the free exercise of navigation. DeBroca defines “natural bank” as a “conglomeration of mollusca presenting a character of continuity, constituting what is usually called an oyster-bed.” DeBroca’s characterization of the legal landscape regarding natural shellfish beds is supported by the statutes and case law in force during the mid to late nineteenth-century. For example, a series of laws were enacted in the Washington territory concerning oysters and oyster cultivation after the signing of the Stevens Treaties. Despite the fact that the laws post-date the Treaties, the Court nevertheless considers them important. First, each of these enactments, including the law related to Oyster preservation in Shoalwater Bay, provides separate treatment of natural and planted oyster beds. Second, the legislation, beginning with the 1861 Act to Encourage the Cultivation of Oysters, conforms exactly to DeBroca’s characterization and permits the planting of oysters in areas except where natural oyster beds exist. Finally, these post-treaty enactments, by specifically recognizing property rights in planted oyster beds, imply that there was no common law property rights in planted beds, let alone natural beds, at or before treaty time. Moreover, many laws from other states also demonstrate the general rule of no staking or cultivating of natural beds. This survey of laws and statutes, both from the East Coast and California, is consistent with DeBroca’s characterization of the legal landscape, namely that one could not stake off and appropriate for private use a natural oyster bed at or before treaty time. Indeed, most of the statutes from these areas create new private property rights in planted beds, thereby implying that before passage of the legislation, no such rights existed. b. Actual Shellfishing Practices i. East Coast Practices For the most part, the Court will assume that practices on the East Coast conformed with the laws governing the industry. Furthermore, the Angelí treatise and the DeBroca article indicate that oyster farming, in practice, took place on artificial beds in the nineteenth-century. ii. West Coast and Shoalwater Bay Practices The evidence indicates that the practices at Shoalwater Bay at and before treaty time were similar to those on the East Coast. In his 1854 “Report on a Reconnaissance of the Country Lying Upon Shoalwater Bay and Puget Sound,” George Gibbs made the following remark: The principal trade, so far, has been in oysters, which abound on the flats. They are taken up, during the low tides of summer, from their natural beds, separated, and replanted, as in the States. Similarly, on August 26, 1854, the Pioneer and Democrat, a local newspaper, contained the following description of the shellfishing practice at Shoalwater Bay: The method of propagating oysters is to dig them up with tongs ... When dug up, the oysters are separated from the mass and buried about low-water mark, or even to high-water mark, so that the tide may ebb and flow over them.... In addition, on January 6, 1855, the following appeared: We are credibly informed that there are some thirteen streams emptying into Shoalwater Bay; that there are then at the present time a large community, who are cultivating, in true Chesapeake Bay style, the oyster____ c. How Shellfish Laws and Practices Lead to an “Empirical Definition” The shellfish laws and practices do give rise to an “empirical definition” of “staked” and “cultivated.” The Court can ascertain an “empirical definition” of treaty words by viewing the words as they would have been viewed by the parties who participated in the treaty negotiations. In determining the parties’ understanding of the words, the Court must consider the parties’ actual experience with the words. First of all, there is no doubt that the United States treaty negotiators were generally familiar with the East Coast shellfish industry and its practices. As outlined above, the East Coast shellfish industry followed a set of laws and practices whereby natural oyster beds were almost never “staked” or “cultivated.” -Furthermore, the evidence indicates that both George Gibbs and members of the signatory Tribes were familiar with the shellfishing practices occurring at Shoalwater Bay at treaty time. Indeed, as discussed in the previous section, the practices at Shoalwater Bay were modeled after East Coast practice: oyster farmers cultivated oysters by transplanting them to artificial beds and under no circumstances did they “stake” or “cultivate” natural beds. The “empirical definition” is one possible construction of the terms “staked” and “cultivated.” L Resolution of Meaning of “Any Beds Staked or Cultivated” The Court must interpret the Shellfish Proviso giving due regard to both the canons of construction favoring the Indians and the general principles of treaty interpretation. In this section, the Court analyzes the Shellfish Proviso in light of: (1) the surrounding treaty words, (2) the record of the treaty negotiations, (3) the historical circumstances that gave rise to the Stevens Treaties, (4) the possible alternative formulations of the Shellfish Proviso, and (5) the post-treaty conduct of both parties. Thereafter, the Court will conclude by presenting its understanding of the correct interpretation of the Shellfish Proviso. a. The Shellfish Proviso Viewed in Light of the Record of Treaty Negotiations The perspective and positions of the parties throughout the negotiation process can also shed light on the meaning of the shellfish proviso. To the extent that one party’s statements — or silence — reflect its understanding of the other side’s proposals, evidence of the negotiation process is persuasive evidence of the Shellfish Proviso’s intended meaning. The parties agree that the minutes of the treaty negotiations reflect no specific discussion of the Shellfish Proviso. However, certain statements in the treaty minutes are instructive as to the proper interpretation of the Shellfish Proviso, and the absence of certain statements or discussions reveals the intentions of the treating parties. The most striking aspect of the treaty minutes is the paternal pose struck by the United States negotiators, including Governor Stevens himself. For example, Stevens made the following statement to the Tribes during the negotiations: I think the paper is good and that the Great Father will think so. Are you not my children and also children of the Great Father? What will I not do for my children and what will you not for yours? Would you not die for them? This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? This paper gives you a school? Does not a father send his children to school? It gives you mechanics and a Doctor to teach and cure you. Is that not fatherly? This paper secures your fish. Does not a father give food to his children? Besides fish, you can hunt, gather roots and berries. Besides it says you shall not drink whiskey and does not a father prevent his children from drinking the fire water? There is no dispute that the United States negotiators intended to act in good faith towards the Indians; thus, the Court cannot view the paternal tone as a strategic negotiating tactic, or as a form of sharp dealing. And, indeed, there were specific, tangible promises made by the United States to back up its paternal tone. The one significant promise for purposes of this litigation is the promise by the United States to the Indians that they would enjoy a permanent right to fish as they always had. This right was promised as a sacred entitlement, one which the United States had a moral obligation to protect. The Indians were repeatedly assured that they would continue to enjoy the right to fish as they always had, in the places where they had always fished. There is no indication in the minutes of the treaty proceedings that the Indians were ever told that they would be excluded from any of their ancient fisheries. The second most striking aspect of the treaty minutes is an absence of protest over the loss of shellfishing rights. It is clear from the treaty minutes that with respect to fishing rights in general, the guarantee of fishing rights was a sine qua non of the Indians’ participation in the Treaties. The Indians repeatedly raised concerns that they would not survive if they did not have access to their ancient fisheries. Juxtaposed with these expressions of concern, and demands for continued fishing rights, is an absolute silence regarding the Shellfish Proviso. The evidence indicates that the Treaties were read and explained section by section to the Indians during the negotiation process. Yet the minutes reveal no instance where the Indians resisted the Shellfish Proviso. Thus, the minutes of the treaty negotiations to some extent undermine the interpretations offered by the Defendant and the intervenors. Whether “staked” is taken literally to mean the planting of stakes in the tideland, or taken figuratively as the claiming of private property, it would provide a means for settlers to exclude the Indians from natural shellfish beds where the Indians had always taken shellfish. This is simply inconsistent with the statements made by the United States and the absence of protest from the Tribes, both of which are reflected in the treaty minutes. If the Shellfish Proviso merely operated to exclude Indians from artificial beds, it would not likely have been a serious point of contention during the negotiation process. As a result, this interpretation is perfectly consistent with the United States’ solemn promise that the Indians would have a permanent right to their ancient fisheries. b. The Shellfish Proviso Viewed in Light of the Historical Circumstances Surrounding the Negotiation of the Stevens Treaties Just as the record of the treaty negotiations is direct evidence of the parties’ intentions, the historical circumstances surrounding the negotiation process are indirect evidence. These circumstances provide the Court with additional information to determine the meaning of the Shellfish Proviso. i. The United States’ Purpose In Entering Stevens Treaties The United States’ motivation for entering into the Stevens Treaties was examined in Washington I, in Fishing Vessel, and by this Court based upon the evidence presented in this sub-proceeding. The United States’ primary purpose was to extinguish the Indians’ title to the lands in Western Washington, thereby clearing the way for settlement by Europeans. It was hoped that, by moving the Indians onto reservations, the Treaties would minimize the friction and permit amicable relations between the settlers and the Indians. Of course, the United States recognized that to achieve its primary purpose, it would have to pay some price. Further complicating matters, however, was the fact that the United States wanted to execute the Treaties as quickly as possible. The United States was aware that the Indians used and relied on fish, including shellfish, for subsistence, ceremonial and commercial purposes; thus it was clearly necessary to preserve the Indians’ fishing rights. In fact, the United States viewed this concession as serving its own interests to some extent: indeed, the treaty negotiators did not want the Indians to become dependent upon the United States for their subsistence and a reservation of fishing rights would insure against this possibility. At the same time, the United States believed that guaranteeing the Indians fishing rights would “not in any manner interfere with the rights of citizens.” Finally, the United States intended to act honorably towards the Indians, and the negotiators believed that it never could have been the intention of Congress that the Indians should be excluded from their ancient fisheries and expressed among themselves the intention to preserve Indian fishing rights. Overall, the Tribes’ interpretation of the Shellfish Proviso is most consistent with the United States’ purposes in entering the Stevens Treaties. The interpretation does not in any way conflict with the historical findings of fact concerning the United States’ purpose in entering the Treaties. The defendant and the intervenors point to the potential conflict arising from enforcing the Tribes’ interpretation of the Shellfish Proviso, and on that basis argue that the Tribes’ interpretation contradicts the United States’ intention to avoid conflict between Indians and settlers. The United States, however, did not intend that the Indians would relinquish their ancient fishing rights on demand by settlers. Further, under the Tribes’ interpretation, there would be no conflict between Indians and settlers, so long as the Indians respected the settlers’ planted oyster beds and the settlers did not stake out natural oyster beds where the Indians took fish. The Defendant’s and intervenors’ proposed interpretations are also generally consistent with the United States’ purposes in entering the Treaties, except in one important respect: neither of these interpretations is consistent with the United States’ avowed intention to preserve for the Indians their ancient fisheries. Whether “staked” is viewed literally or in its frontier sense, it permits the gradual exclusion of Indians from natural shellfish beds, a result clearly unwanted and unintended by the parties to the Treaties. ii. The Tribes’ Purpose In Entering Stevens Treaties The evidence indicates that the Tribes’ purpose in entering the Stevens Treaties was to secure land and livelihood for their members who faced an aggressive wave of European settlement. Tribal leaders and members believed that without recourse to their ancient fisheries, they would perish. Whatever land concessions they made, the Indians viewed a guarantee of permanent fishing rights as an absolute predicate to entering into a treaty with the United States. Under the Tribes’ interpretation the Indians would have a permanent right of access to their ancient fisheries. Conversely, the defendant’s and intervenors’ proposed interpretations of the treaty simply do not recognize that the Indians were bargaining for a permanent right; rather, they seem to rely on the proposition that the Indians believed that their need for shellfish would diminish over time. This supposition, however, lacks any evidentiary support and is contradicted by the overall weight of the evidence. Accordingly, the Tribes’ position is more consistent with this facet of the Treaties’ historical context. Hi The United States’ Vision for the Washington Territory The parties agree that Governor Stevens was not a short-term thinker who was motivated solely by considerations of expediency. Both sides characterize Stevens as a self-conscious historical actor who proceeded cautiously, guided by a vision for the future of the Washington Territory. The parties even agree on some aspects of the substance of Stevens’ vision for the Washington Territory; not surprisingly however, on other aspects, they sharply disagree. The Court must resolve these differences in its attempt to recreate Stevens’ vision as part of the overall context in which to interpret the Shellfish Proviso. A Shellfish Industry in the Washington Territory First, the parties agree that Stevens envisioned the development of a thriving oyster farming industry in the Puget Sound. Dr. Richards, an expert for the defendant and intervenors, gave the following testimony at trial: Q. Do you have any opinion as to whether or not Stevens and his treaty commissioners envisioned similar industries [as to those in Shoalwater Bay] developing in the Puget Sound area? A. I’m sure they did. The newspapers, particularly the Pioneer and Democrat, mentioned the possibility of this occurring and in fact reflected some dismay that it had not occurred already. But certainly I think it is safe to say that they envisioned the shellfish industry as well as many other industries appearing in the territory on the Sound. The Tribes’ interpretation is most consistent with this vision. The oyster farming industry, as constituted at treaty time, was built on artificial beds. As previously discussed, transplanting oysters from natural beds and seeding artificial beds were the principal method of oyster culture at treaty time, both on the East Coast and at Shoalwater Bay. Stevens’ vision of the oyster industry most likely conformed to existing practices; indeed, the record is devoid of any evidence that Stevens or any of the United States’ negotiators held any ideas of reforming industry practices. Thus, to protect the fledgling oyster industry, Stevens might have felt it necessary to exempt artificial beds from the Indians’ treaty right to take fish. Under the Tribes’ interpretation, the Shellfish Proviso is narrowly tailored to do just that. Under the competing interpretations, the Shellfish Proviso is not designed specifically to protect the oyster industry; depending on the circumstances, it could either aid or hinder the industry’s development. To the extent it prohibited Indians from taking shellfish from both artificial and natural shellfish beds where settlers were engaging in fruitful harvesting, it would aid the development of the industry. However, both the literal and figurative interpretation of “staked” advanced by defendant and the intervenors protect activities, such as tideland ownership, wholly unrelated to the oyster industry. Under either interpretation, a settler — either by placing stakes or by claiming ownership to a tideland parcel — could preclude Indians and non-Indians from taking shellfish from natural beds located on that parcel. The settler could then fail to harvest the shellfish, and the Indians would be forbidden from fishing there. Under these circumstances, it would not foster, but instead undermine, the development of an oyster industry. Accordingly, the Tribes’ proposed interpretation is preferable because it is wholly consistent with the notion of fostering the shellfish industry. B. Tideland Development in the Washington Territory The parties also agree that the United States negotiators anticipated industrial and urban development in the relevant geographical area, and expected that mills, ports and eventually cities would be erected on the tidelands. Indeed, prior to treaty time, the United States engaged in numerous projects to develop the tidelands, including diking and reclamation of land, and dredging and channelization of watercourses. The effect of development on the Shellfish Proviso is one of the most perplexing issues in this case. The Tribes have not claimed a right to take shellfish from areas where natural beds no longer exist, such as from tideland areas housing factories, the Kingdome, and mills and ports. The Tribes appear to have conceded that the some of the development along the tidelands, but not all, has extinguished their right to take fish from those particular areas. The only type of development that extinguishes the Tribes’ right to take shellfish, however, is that development which also extinguishes the shellfish beds. Thus, in any area, where natural shellfish beds remain — regardless of whether the area is privately owned or leased and regardless of the activity occurring upon the land— the Tribes’ right to take fish remains. What, then, of Isaac Stevens’ vision? Stevens did not perceive a conflict between his vision of tideland development and his desire to preserve the Indians’ aboriginal fishing rights. First, the United States negotiators believed that the supply of fish, including shellfish, was abundant and seemingly inexhaustible. It appeared unlikely that tideland development would prejudice, in a tangible way, the Indians’ right to take fish. Second, the United States negotiators were aware of the thriving shellfish industry in fully-developed East Coast cities, and likely assumed based on those examples that development in the Puget Sound and on the western shore would not interfere with the Indians’ exercise of their treaty fishing rights. Consequently, neither the prospect nor the fact of development counsel against the Tribes’ interpretation of the Shellfish Proviso. C. Role of the Indians in the Washington Territory The State of Washington points out that the Stevens Treaties were negotiated during a period in which the United States adopted an “assimilation policy” towards Indian Tribes. In Washington I, the Court found that, at least with respect to the non-coastal tribes, the United States did envision an assimilation of Indians into western society: It was the intention of the United States Government, in negotiating Treaties with the Indians, to make at least non-coastal tribes agriculturists, although not restrict them to that, to diversify Indian economy, to teach western skills and trades to the Indians and to accomplish a transition of the Indians into western culture. There was no intent, however, to prevent the Indians from using the fisheries for economic gain. Overall, the evidence presented in this case indicates that the United States intended that Indians would, at minimum, interact with settlers in the Washington Territory, if not fully integrate with them. It is clear from the record that the United States intended that the Indians would continue to provide labor and to participate in the regional economy after the Treaties were signed and that the Indians would supply fish, including shellfish, to the settlers. The record in this case does not support the contention that, with respect to the Stevens Treaties, the United States intended to break down tribal affiliations of the Puget Sound Tribes and absorb the tribal members as individuals. D. Private Ownership of Undeveloped Tidelands There is no evidence in the record that Isaac Stevens or any of the negotiators from either side foresaw private ownership of the vast majority of tidelands and beaches of Puget Sound and western Washington. Even if the parties anticipated the massive alienation of tidelands that occurred at the turn of the century, it does not follow that they would have expected private ownership of tidelands to have depleted or subtracted from the public fishery. To the contrary, the uniform common law at treaty time held that private ownership of a parcel of tideland did not include private rights to the shellfish on that parcel. In his 1847 Treatise on the Right of Property in Tide Waters, Joseph Angelí opined that “[tjhere is no doubt, that the public have a right to take shellfish on the shore, though the right of soil in the shore happens to be private property.” Therefore, the treating parties did not view development as vacating the public’s, nor the Indians,’ right to fish. c. The Shellfish Proviso Viewed in Light of Post-treaty Conduct by Both Parties The parties’ post-treaty conduct is particularly instructive as to the meaning ascribed to the Shellfish Proviso by the parties themselves. A party’s conduct manifests its interpretation of particular language and is, therefore, evidence of their intentions. i. Conduct of the United States The State of Washington and the intervenors point to four aspects of the United States’ conduct which, they argue, support either a literal interpretation of “staked” or an interpretation of “staked” as meaning “claimed as private property.” These four aspects involve development by the United States, actions of the territorial legislature, the failure of the United States to object to the land policy of the State of Washington, and a 1905 decision of the Commissioner of Indian Affairs. A. Development by the United States The evidence is undisputed that the United States participated in the building of forts and navigation channels. Indeed, the Tribes’ expert admitted that the United States expected that there would be extensive development of the tidelands. As discussed above, however, it appears that the anticipation of development on the tidelands was a phenomenon entirely unrelated to the crafting of the Shellfish Proviso. The evidence and reasoning supporting that proposition leads to a similar conclusion with respect to the United States’ post-treaty conduct: because the United States viewed shellfish resources as exceptionally abundant, and because the United States was aware of thriving shellfishing operations in fully developed cities, it presumably did not view its participation in post-treaty tideland development as a derogation of the Indians’ .right to take fish. This conduct, then, does not weigh in favor of the defendant’s and intervenor’s proposed interpretation. B. Actions of the Territorial Legislature The State of Washington and the intervenors also point to the actions of the United States Territorial Government in the period between the signing of the Treaties and Washington’s admission to the Union. The evidence indicates that the United States territorial legislature granted a parcel of tideland in the Totten Inlet to private owners in 1864. Furthermore, it was the territorial legislature, not the State of Washington, that first allowed citizens the exclusive use of natural oyster beds in 1879. Evidence of the actions of the territorial legislature does tend to support the interpretations of “staked” and “cultivated” offered by the defendant and the intervenors. The Court considers it significant, however, that neither of these dispositions occurred until ten years after the signing of the Treaties; furthermore, the 1879 Act, which represents the first substantial step in privatizing the tidelands, did not occur until 25 years after the Treaties had been signed. Accordingly, the weight of this evidence in support of the defendant’s and the intervenors’ interpretation is reduced by the passage of time between the signing of the Treaties and these actions of the territorial legislature. C. The Failure of the United States To Object to the Land Policy of the State of Washington The third aspect of the United States’ post-treaty conduct cited by the State and the intervenors is the United States’ silence while Washington executed its policy of alienating tideland parcels to private owners. Washington became a state in 1889, and in 1895 it passed legislation (the “Bush” and “Callow” Acts) for the private purchase of tidelands, even when those tidelands contained natural shellfish beds. There is no evidence that the United States intervened on behalf of the Indians, by threat of litigation or otherwise, when the legislation was passed in 1895. This evidence, like the acts of the territorial legislature, tends to support the interpretation offered by the State and the intervenors. Again, however, the probativeness of this evidence is considerably weakened by its remoteness in time from the execution of the Treaties. The passage of the Bush and Callow Acts, and the United States’ subsequent inaction, did not occur until forty years after the Stevens Treaties were signed. It should further be noted that neither the Territory nor the State of Washington could terminate pre-existing federal treaty rights by simply selling the land in which those rights existed. D. 1905 Decision by the Commissioner of Indian Affairs Finally, Defendant and the intervenors argue that a 1905 letter-opinion by the Commissioner of Indian Affairs reflects a broad interpretation of the Shellfish Proviso by the United States. In 1905, Harry Liston, the Superintendent of the Puyallup Indian Agency, wrote a letter to the Commissioner of Indian Affairs relaying a complaint from the S’Klallam Indians seeking advice. The S’Klallams complained of their recent exclusion from their usual and accustomed clam digging areas by three men claiming to have leases to the tidelands. In response, the Commissioner responded that it is the opinion of this office that such lands are under the control and jurisdiction of the State; that the Indians should not be permitted to trespass upon the tide lands leased from the State; that in case they desire special privileges as to the digging of clams from the tidelands referred to, it will be necessary for them to lease the same from the State of Washington ... However, if there are tide lands used in common by the citizens of that region, the Indians, under said article IV, have the right to take fish, clams, etc. from such lands. This correspondence has no relevance to the appropriate interpretation of the Shellfish Proviso. It is absolutely clear from the underlined portion of the Commissioner’s letter that he based his opinion on the belief that the Indians’ treaty could only be exercised on “in common” lands; his letter makes no mention of the Shellfish Proviso as a basis upon which Indians could be excluded from the leased tidelands. Moreover, this opinion was voiced nearly a half century after the Stevens Treaties were signed. In sum, the United States’ relevant post-treaty conduct does not strongly support the interpretation advanced by the State of Washington and the intervenors. Granted, the cited conduct points to gradual erosion of the Indians’ fishing rights; however, the fact that these rights became decimated over time does not imply that they did not exist in the first instance. ii. Conduct of the Signatory Tribes The State and the intervenors also rely on the Indian response to the Bush and Callow acts to support their interpretation. The evidence indicates that some individual members of the plaintiff Tribes purchased tidelands under the Bush and Callow Acts. Furthermore, the record contains only one instance of Indian protest regarding the alienation of tidelands by the Territorial Government and the State of Washington. That one example, cited by Plaintiffs expert, Dr. White, is the complaint of the S’Kllalam tribe that precipitated the 1905 letter opinion by the Commissioner of Indian Affairs. The purchase of tideland by individual Indians, however, has little if any probative value, as to the meaning of the Shellfish Proviso. No evidence exists that these individuals’ actions were taken pursuant to their understanding of the Shellfish Proviso; rather, the evidence indicates that these individuals were simply responding to a massive land rush and taking all possible steps to safeguard their access to fish and their personal self-interests. Thus, the proffered evidence of the Tribes’ post-treaty conduct does not weigh heavily in favor of the defendant’s and intervenors’ proposed interpretations. d. Conclusion The Court interprets the terms “staked” and “cultivated” as the terms were defined and used in the shellfishing industry at and before treaty time. At treaty time, the term “cultivate” was defined in the shellfish context by Ingersoll as an activity occurring only on artificial beds. In addition, consistent with the virtually uniform body of state statutes and common law, the activities of “staking” and “cultivating” occurred only on artificial beds. When the parties used these terms in the Shellfish Proviso, they intended only to exclude Indians from artificial, or planted, shellfish beds; they neither contemplated nor desired that the Indians would be excluded from natural shellfish beds. Therefore, the words “any beds staked or cultivated by citizens,” describe artificial shellfish beds created by private citizens. Moreover, at treaty time,, artificial beds contained shellfish deposited for either growing or storage purposes, and were surrounded by stakes or other markers to the extent that they did not interfere with navigation. Thus, clearly, as has been explained, the intervenor growers’ farms, which are artificial beds as herein described, are “staked or cultivated,” as that clause has been interpreted by the Court. Such beds are not subject to fishing by the Tribes, except to the extent that natural clam beds may be subjacent to the staked or cultivated shellfish beds, as explained below. Finally, it is also clear that the intervenor private property owners’ natural beds are not “staked or cultivated;” thus natural beds, if any, located on privately owned tidelands, are part of the tribal fishery. In the preceding sections, the Court evaluated the evidence in accordance with the principles of treaty interpretation established by the Supreme Court. The analysis in those preceding sections overwhelmingly supports the Tribes’ proposed interpretation of the Shellfish Proviso. First, and most importantly, in interpreting the Shellfish Proviso, the Court must focus on what the Indians intended: the record unequivocally reflects the Indians insistence on reserving the right to fish as they always had, and the record is devoid of any objections or concern over their exclusion from ancient shellfish fisheries. Second, the focus must be on what the Indians understood. Indeed, because only artificially planted beds were “staked” or “cultivated” at Shoalwater Bay, it is unlikely that the Indians would have understood these words to exclude them from natural shellfish beds. Finally, the focus is on what the United States intended and understood: the interpretation offered by the Tribes is consistent with both the United States’ short-term goals and its long-term visions for the Washington Territory. 5. Right of Tribes to Take Naturally-Occurring Clams from Underneath Staked or Cultivated Oyster Beds The Tribes argue that they also have the right to take 50% of the harvestable naturally occurring clams from the beds that exist underneath many artificial oyster beds. The intervenors, on the other hand, argue that these clam beds fall directly within the ambit of the Shellfish Proviso because the clam beds are “shellfish,” and the natural clams will be harvested from beds that are “staked or cultivated,” even when using the Tribes’ interpretation of the Shellfish Proviso. Consistent with its interpretation of the other provisions of the Treaties, the Court relies on, inter aha, the historical context of the treaty, the principal that ambiguities must be resolved in the favor of the Indians, and the “reservation of rights” doctrine in order to decide whether clams from natural beds beneath artificial oyster beds may be harvested. The Court finds that plaintiffs’ evidence is more persuasive and demonstrates that, at treaty time, the exclusive rights gained by one who had staked or cultivated an (artificial) oyster bed did not extend to the natural clam beds found beneath. It apparently was a common practice for Indians and other citizens to harvest clams legally from natural clam beds existing beneath artificial shellfish beds; thus it is likely that the Indians understood that this practice would continue, notwithstanding the existence of the Stevens Treaties. III. THE “SHTVELY PRESUMPTION” AND THE EQUAL FOOTING DOCTRINE The State of Washington and the intervenors urge the Court to construe the Stevens Treaties in light of the “Equal Footing Doctrine” and the “Shively presumption.” Under the Equal Footing Doctrine, every new state is entitled to entrance into the Union free of any encumbrance on its land, so that it stands on “equal footing” with the other states. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). The “Shively presumption” is an outgrowth of this doctrine, and holds that any pre-statehood grant of property does not include tidelands unless the grant clearly indicated that tidelands were included. See United, States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1925). In sum, their argument under the Equal Footing Doctrine is that any treaty right to harvest shellfish would amount to a property interest in the tidelands and since the treaty does not clearly specify an intent to grant a property interest in the tidelands, under the Shively presumption, the treaty cannot be construed as providing a right to harvest shellfish, or, alternatively, that the Shellfish Proviso must be broadly construed. For the reasons set out below, the Court rejects this argument and interprets the Stevens Treaties without regard to the Equal Footing Doctrine or the Shively presumption. First, the Equal Footing Doctrine cannot be applied to rights reserved by the Tribes. It is clear that in Holt State Bank and Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Supreme Court viewed the disputed fee title rights to lands underlying navigable waters as reserved by the United States before the subject treaty was made. Both cases frame the issue in terms of whether the United States “conveyed” or “disposed of’ its fee title rights. See Holt State Bank, 270 U.S. 49, 57, 46 S.Ct. 197, 200 (1925); Montana v. United States, 450 U.S. 544, 550-51, 101 S.Ct. 1245, 1250-51, 67 L.Ed.2d 493 (1981). In Holt State Bank, the Court found “there was nothing in [the Treaties] which even approaches a grant of rights in lands underlying navigable waters.” Holt State Bank, 270 U.S. at 58, 46 S.Ct. at 200. In Montana, the Court held that the treaty “did not by its terms formally convey any land to the Indians at all.” Montana, 450 U.S. at 553, 101 S.Ct. at 1248. Implicit in these conclusions is a finding that, prior to the respective Treaties, the United States held fee title to the beds of Mud Lake and the Big Horn River. The reasoning in Holt State Bank and Montana is consistent with the concept of “aboriginal title” or “Indian title,” first articu