United States of America, Makah Indian Tribe, Plaintiff-Intervenor/appellant v. State of Washington

EUGENE A. WRIGHT, Circuit Judge:

The Makah Tribe sought a determination of its usual and accustomed fishing places under an 1855 treaty. It argues that the district court applied a too stringent standard of proof and improperly substituted its judgment for that of the Special Master. We affirm.

The Makahs are primarily an ocean fishing tribe that has traditionally depended on its ocean catch for both sustenance and trade. See United States v. Washington, 384 F.Supp. 312, 363 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (the…