Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime. But are whales and seals fish? That was the question in a recent federal case in Washington involving the Quileute, Quinault, and Makah tribes. In 1855, Washington Governor Isaac Stevens approached the tribes with a proposal to cede most of their land while permitting the tribes to retain their fishing rights. The resulting compact–the Treaty of Olympia, transferred most of the tribal land to the state.    

163 years later, a question remains: does the term “fish” include whales and seals? On this matter, the pertinent provision of the Olympia Treaty provides:

“The right of taking fish at all usual and accustomed grounds and stations is secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing the same; together with the privilege of hunting, gathering roots and berries, and pasturing their horses on all open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens; and provided, also, that they shall alter all stallions not intended for breeding, and keep up and confine the stallions themselves.”

In Makah Indian Tribe v. Quileute Indian Tribe, the United States Court of Appeals for the Ninth Circuit was tasked with choosing which bits of extra-textual evidence to use in decoding this ambiguous passage. On one hand, the Quileute Tribe insisted that the federal government’s previous practice permitting tribal members to hunt seals and whales ought to prevail. On the other hand, the Makah countered that the Olympia Treaty’s language could only be understood when its text was compared to other compacts which were negotiated at roughly the same time.

This is all well and good–but what does the text itself say? Although the compact preserves the right of taking fish, the action of taking is far reaching and offers little, if no, constraints. After all, tribes may take whales and seals just as they may take fish. The parties’ decision to employ the capacious term “fish,” however, provides some indication of the provision’s intended scope. Indeed, if the parties intended to limit the harvestable species, the parties would not have chosen the word ‘fish’ because the noun has the widest sweep of any word the drafters could have chosen.

This initial observation is strengthened by the fact that treaties should be construed whenever possible to comport with the understanding of the Native American tribes that concluded them. This principle is rooted in the unique trust relationship between the United States and the sovereign tribes, who, more often than not, stood in an unfair and unjust bargaining position. But what did the tribes mutually agree to? The original Olympia Treaty, which was recorded in Chinook, Quileute, and Quinault uses the words ‘pish,’ ‘?aa lita?, and Kemken to describe sea animals that the tribes may continue to hunt. Because the tribes in question used every term to refer to fish and sea mammals such as whales and seals and, the federal government continued to permit the tribes to harvest seals and whales from the Pacific Ocean with active encouragement after the treaty was signed, one could reasonably conclude that both animals are covered within the treaty’s scope.   

The Makah tribe, however, contests this reading for two reasons. First, the Makah insist that treaties between Native American tribes and federal or state governments must be interpreted to benefit all tribes – even those who are not parties to the treaty immediately at issue. Under this theory, because permitting the Quileute and Quinault to hunt whales and seals under the Olympia Treaty would diminish the sea mammal population for Makah hunters, that interpretation cannot be accepted. Second, the Makah claim that the Olympia Treaty cannot be read to permit the hunting of seals and mammals because the Treaty of Neah Bay, which was concluded by different parties, at a different venue, at a different time, used more precise language to identify the animals that could or could not be hunted. Here, because the Olympia drafters failed to incorporate the more exacting terminology from the Neah Bay Treaty, the Makah conclude that the parties did not intend to include whales and seals within the treaty’s purview.

Both claims confound the matter. For starters, in interpreting treaties concluded between government entities and Native American tribes, federal courts have never presumed that the compact at issue must be interpreted to benefit tribes that were non-signatories. Indeed, such a requirement would drastically complicate an enterprise that is already challenging enough as it is. And the mere fact that two texts that were composed within a relatively short time period together at different abodes does not mean that the language in one can be probative in exploring the meaning of another. Comparing the Treaty of Neah Bay to the Olympia Treaty to discern the latter’s meaning here might as well be analogous to browsing Don Quixote to discover Shakespeare’s hidden allegories in the fifth quarto of Richard II. Readers would be best advised to keep apples and oranges separate.