Makah Tribe
Makah Tribe

Dispute Regarding the Usual and Accustomed Fishing areas of the Quileute Tribe and Quinault Nation

May 18th, 2018 by Brittany Olson

Makah has been engaged in a subproceeding in United States v. Washington to determine the usual and accustomed fishing areas of the Quileute Tribe and the Quinault Nation in the Pacific Ocean.  Makah initiated the litigation after Quileute and Quinault notified Makah that they would enter the Pacific whiting fishery and attempt to harvest whiting before they reached Makah’s fishing area.

In 2015, U.S. District Court Judge Ricardo Martinez issued an order on motions for partial summary judgment, which provided background on the dispute and rejected Quileute and Quinault’s various efforts to have the case dismissed.

Judge Martinez then held a lengthy trial on Quileute and Quinault’s U&A.  Following the trial, Judge Martinez issued an order determining that Quileute’s U&A extended 40 nautical miles offshore, and Quinault’s U&A extended 30 nautical miles offshore.  These distances were much farther offshore than the distances that Quileute and Quinault traveled to fish at treaty times (according to Judge Martinez’s findings, 20 and 6 miles offshore, respectively).  They were based, instead, on evidence of whaling and sealing, and added some 2,400 square miles to Quileute and Quinault’s traditional fishing grounds.  Judge Martinez also found that Quileute’s northern boundary extended to Cape Alava.

Judge Martinez adopted longitudinal lines for Quileute and Quinault’s western boundaries that extended well beyond the 40 and 30 nautical mile distances at which he found they hunted whales or seals, further expanding their traditional fishing grounds.

Makah appealed Judge Martinez’s rulings to the Ninth Circuit Court of Appeals, which upheld Judge Martinez’s use of evidence of whaling and sealing to establish Quileute and Quinault’s fishing areas, but also found that Judge Martinez had incorrectly drawn the western boundaries for Quileute and Quinault’s fishing areas.  On remand from the Ninth Circuit, Judge Martinez redrew the boundaries for Quileute and Quinault to more closely reflect his findings regarding Quileute and Quinault’s U&A.

Makah is petitioning the Supreme Court to review of the Ninth Circuit’s decision that whaling and sealing can be used to define customary fishing grounds.  Quileute and Quinault are appealing Judge Martinez’s redrawn western boundaries for their usual and accustomed grounds.

Additional background information regarding the Tribe’s petition to the Supreme Court, the principal court orders already entered in the case, and a map depicting the disputed areas are provided at the following links:

Makah’s Petition for Certiorari — Background Information

District Court Order on Motions for Partial Summary Judgment

District Court’s Findings of Fact and Conclusions of Law and Memorandum Order

 Ninth Circuit Opinion

District Court’s Amended Order on Boundaries

Map Depicting Disputed Area

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