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MAKAH INDIAN TRIBE v. QUILEUTE INDIAN TRIBE

Nos. 15-35824, 15-35827.

873 F.3d 1157 (2017)

MAKAH INDIAN TRIBE, Plaintiff-Appellant, and United States of America, Plaintiff, v. QUILEUTE INDIAN TRIBE; Quinault Indian Nation, Respondents-Appellees, Hoh Indian Tribe; Lummi Indian Nation; Port Gamble S'klallam Tribe; Jamestown S'klallam Tribe; Suquamish Indian Tribe; Tulalip Tribe; Swinomish Indian Tribal Community; Skokomish Indian Tribe; Squaxin Island Tribe; Nisqually Indian Tribe; Upper Skagit Indian Tribe; Puyallup Tribe; Muckleshoot Tribe; Lower Elwha Klallam Tribe; Stillaguamish Tribe, Real Parties in Interest, and State of Washington, Defendant. Makah Indian Tribe, Plaintiff, and State of Washington, Appellant, v. Quileute Indian Tribe; Quinault Indian Nation, Respondents-Appellees, Hoh Indian Tribe; Lummi Indian Nation; Port Gamble S'klallam Tribe; Jamestown S'klallam Tribe; Suquamish Indian Tribe; Tulalip Tribe; Swinomish Indian Tribal Community; Skokomish Indian Tribe; Squaxin Island Tribe; Nisqually Indian Tribe; Upper Skagit Indian Tribe; Puyallup Tribe; Muckleshoot Tribe; Lower Elwha Klallam Tribe; Stillaguamish Tribe; United States of America, Real Parties in Interest.

United States Court of Appeals, Ninth Circuit.

Filed October 23, 2017.

Attorney(s) appearing for the Case

Mark D. Slonim (argued) and Joshua Osborne-Klein , Ziontz Chestnut, Seattle, Washington, for Plaintiff-Appellant.

Lauren J. King (argued) and Jeremy R. Larson , Foster Pepper PLLC, Seattle, Washington; Eric J. Nielsen , Nielsen Broman & Kock PLLC, Seattle, Washington; John A. Tondini , Byrnes Keller Cromwell LLP, Seattle, Washington; for Respondents-Appellees.

Joseph V. Panesko and Michael S. Grossman , Senior Counsel; Robert W. Ferguson , Attorney General; Office of the Attorney General, Olympia, Washington; for Defendant-Appellant.

Before: Michael Daly Hawkins and M. Margaret McKeown, Circuit Judges, and Elizabeth E. Foote, District Judge.

OPINION

Who would imagine that more than 150 years after the Treaty of Olympia (the "Treaty") was signed between the United States and the Quileute and Quinault tribes, we would be asked to determine whether the "right of taking fish" includes whales and seals? Although scientists tell us sea mammals are not fish...

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