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UNITED STATES v. WASHINGTON

November 28, 1978

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants


George H. Boldt, Sr. United States District Judge.


The opinion of the court was delivered by: BOLDT

The court has fully reviewed and carefully considered all the evidence of the parties submitted in connection with the above entitled matter including the testimony of the witnesses presented at a hearing held November 29, 1976. The request of the Makah tribe for an additional hearing is hereby denied. None of the evidence offered changes the court's prior conclusion that the Hoko River was an area of joint occupation between the Makah and Lower Elwha. Accordingly, the court's prior ruling on this issue should not be modified.

 The court has fully considered all proposed findings of fact and conclusions of law and those which have not been adopted are rejected as repetitious, argumentative, inaccurate or contrary to the rulings of the court, either in whole or in part. Every finding of fact that may be a conclusion of law is adopted as such.

 FINDINGS OF FACT

 1. The Makah's Motion for Reconsideration was granted to allow the Makah Tribe to present newly discovered archeological evidence relating to the question of control of fishing on the Hoko River. The issues as defined by the Makah Tribe did not include a consideration of rivers other than the Hoko River (Tr. Nov. 29, 1976, p. 81; Makah Memorandum in Support of Relief from Final Order, August 17, 1976, pp. 1-3), and the Lower Elwha Tribe duly preserved its objections to evidence relating to other rivers east of the Hoko River. (Tr. Nov. 29, 1976, pp. 2, 75).

 2. Anthropological evidence was presented by Dr. Barbara Lane for the Lower Elwha Tribe and Mr. Dale Croes for the Makah Tribe. The testimony of each has been thoroughly studied and considered by the court. In considering the credibility of each, the court took into consideration the fact that Mr. Croes has limited experience as an ethnohistorian, and has spent the previous five years emersed in archeological field work at the Hoko and Ozette Rivers. (Tr. Nov. 29, 1976, p. 7). Dr. Lane has had extensive contact and experience with ethnohistorical research and archeology. (Tr. Nov. 29, 1976, p. 126). The court finds that on the question at issue in this proceeding, namely control over treaty-time fishing on the Hoko River, the testimony of Dr. Lane is more credible and convincing than that of Mr. Croes.

 4. Basket remnants found in archeological digs are not conclusive of what people were responsible for making the baskets. (Tr. Nov. 29, 1976, pp. 26, 88). Even if one can establish that a particular basket technology can be considered predominately of one Indian type or another, that fact does not demonstrate that a particular group was in fact the dominant resident of a particular area. (Tr. Nov. 29, 1976, p. 91; "An Early 'Wet' Site on the Mouth of the Hoko River Site" (48CA213) p. 224).

 5. There is not a uniform basketry technology with all Salish people. Basket technology varied from the Fraser River to Puget Sound. (Tr. Nov. 29, 1976, pp. 144-145). There have been no wet site excavations done within Clallam territory and therefore it is difficult to compare the baskets found at the Hoko River with the baskets generally made by Clallam people. It is not appropriate to compare such baskets with such general Salish basketry given the difference between the baskets involved. (Id.)

 6. At treaty times the Clallam Indians had a village, which may have been a permanent village, at the Hoko River (Ex. USA 91 (Lane Report on Lower Elwha), pp. 4-7; Aug. 6, 1975, p. 155). In 1854, a year prior to the treaty, Gibbs listed the Hoko as the site of the Clallam village. (Ex. USA 91, supra pp. 5-7). Waterman, writing on the Clallams indicated that the Clallams had a fishing site at the Hoko River. The Hoko River is named in the Treaty of Point No Point as the location of a Clallam village. There is evidence that the Makah people also utilized the Hoko River as a seasonal fishing village. (Tr. Nov. 29, 1976, p. 87).

 7. The archeological evidence did not establish whether the Makah fished with Lower Elwha permission on rivers east of the Hoko River. (Tr. Nov. 29, 1976, p. 83). Similarly, the archeological evidence did not establish or assist in the determination of whether the Makah controlled the Hoko River fishing. (Tr. Nov. 29, 1976, p. 100). The archeological evidence showed that the Makah "occupied" the Hoko River in prehistoric times (Id.) but did not necessarily show occupancy at treaty times. (Tr. Nov. 29, 1976, p. 122).

 8. Ethnohistorical evidence presented was the same as that presented at the July 30, and August 6, 1975, hearings. A re-evaluation of this extant evidence was undertaken by the Makah. (Tr. Nov. 29, 1976, pp. 76-78, 83). Dr. Lane provided an extensive examination of all the information presented. (Tr. Nov. 29, 1976, pp. 126-127, 129, 130, 152-157). Fishing on the Hoko River was exercised jointly by the Lower Elwha and Makah tribes. (Tr. Nov. 29, 1976, pp. 131-132). On the rivers east of the Hoko River fishing was controlled by the Lower Elwha. (Tr. Nov. 29, 1976, p. 152).

 CONCLUSIONS OF LAW

 There having been no testimony or other evidence presented to this court which would support a modification of this court's March 10, 1976, order, that order is affirmed in all respects and particulars. The court's March 10, 1976, findings of fact and conclusions of law are hereby incorporated by reference and made ...


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