901 F.2d 772
UNITED STATES of America, Plaintiff-Appellee,
Tulalip Tribes of Washington; Lummi Indian Tribe; Muckleshoot Indian Tribe,
and Upper Skagit Tribe, Plaintiffs-Appellees,
SUQUAMISH INDIAN TRIBE, Plaintiff-Appellant,
State of Washington, et al., Defendants.
United States Court of Appeals,
Argued and Submitted March 6, 1990.
Decided April 19, 1990.
*773 John Henry Browne, Browne, Ressler & Foster, Seattle, Wash., for
plaintiff-appellant (Suquamish Indian Tribe).
Mason D. Morisset, Pirtle, Morisset, Schlosser & Ayer, Seattle, Wash., for
Tulalip Indian Tribe.
Daniel A. Raas, Bellingham, Wash. for Lummi Indian Tribe.
Gregory M. O'Leary, Heller, Ehrman, White & McAuliffe, Seattle, Wash., for
Edward G. Maloney, Jr., Sedro Woolley, Wash., for Upper Skagit Tribe.
John T. Stahr, Dept. of Justice, Washington, D.C., for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of
Before WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
The Suquamish Indian Tribe of western Washington seeks an adjudication
that it is the successor to the former Duwamish Tribe and entitled to exercise
the fishing rights of the Duwamish. The district court denied relief.
The Suquamish filed this action as a separate proceeding in a continuing case
that relates to the nature and extent of treaty Indian fishing rights in
western Washington. See United States v. Washington, 384 F.Supp. 312
(W.D.Wash.1974) (Boldt decision), aff'd, 520 F.2d 676 (9th Cir.1975). In that
decision, the district court held that tribes that signed the Treaty of Point
Elliott could exercise their treaty protected fishing rights in "usual and
accustomed" places. [FN1] 384 F.Supp. at 343. The tribes *774 were
entitled to take up to 50 percent of the harvested fish from runs passing
through their off-reservation grounds. Id. The Supreme Court substantially
upheld the Boldt decision in Washington v. Washington State Commercial
Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685, 99 S.Ct. 3055, 3074, 61
L.Ed.2d 823 (1979).
FN1. Isaac Stevens, Territorial Governor, negotiated the Treaty of Point
Elliott, 12 Stat. 927 (signed January 22, 1855; ratified March 8, 1859;
proclaimed April 11, 1859), on behalf of the United States. The tribes
that signed this Treaty relinquished much of their aboriginal land so that
non-Indians could settle in Washington Territory. In exchange for their
land, the tribes received small parcels on which to live and certain
payments. Because fishing was the source of their livelihood, they
reserved the right to take fish at all usual and accustomed grounds in
common with citizens of the Territory.
For additional case history, see United States v. Washington, 759 F.2d
1353, 1355-56 (9th Cir.1985).
In 1975, the Suquamish, not a party to that case, sought a determination of
its usual and accustomed fishing places in western Puget Sound. United States
v. Washington, 459 F.Supp. 1020 (W.D.Wash.1978). The district court found that
the Suquamish, a party to the Treaty of Point Elliott, held usual and
accustomed fishing places in several areas on the west side of Puget Sound.
Id. at 1049.
In May 1985, the Suquamish filed this action to determine their usual and
accustomed fishing places on the eastern side of Puget Sound. At the time of
the Treaty of Point Elliott, they did not fish in those areas, which were the
usual and accustomed fishing places of the Duwamish. [FN2] The Suquamish
argued that they could assert the fishing rights of the Duwamish because they
were the successor in interest to the Duwamish.
FN2. The usual and accustomed fishing grounds of the Duwamish on the
eastern side of Puget Sound included, but were not limited to, Lake
Washington, Lake Union, Lake Sammamish, the Black and Cedar Rivers, and the
lower White or Duwamish River below its junction with the Green River.
The district court in July 1987 referred this question to a special master
over the objection of the Suquamish. The court appointed Robert Cooper, a
retired magistrate, who had served in other United States v. Washington
proceedings. After a two day trial, he filed his report, recommending the
Suquamish request be denied. The district court adopted the report, finding
that the Suquamish did not have the status of successor in interest.
The Suquamish challenge the court's ruling on two grounds, contending that the
court (1) abused its discretion in referring the matter to a special master
under Federal Rule of Civil Procedure 53; and (2) erred in finding that the
Suquamish were not the successors to the Duwamish. The Muckleshoot, who fish
currently in eastern Puget Sound, and the Tulalip, Lummi and Upper Skagit
Tribes join in opposing the contentions of the Suquamish.
I. Did the District Court Err When it Appointed a Special Master?
 A court may appoint a special master under exceptional conditions.
Fed.R.Civ.P. 53(a). [FN3] We review the court's referral to a special master
for abuse of discretion. Hoptowit v. Ray, 682 F.2d 1237, 1263 (9th Cir.1982).
FN3. Rule 53(b) provides:
A reference to a master shall be the exception and not the rule.... [I]n
actions to be tried without a jury ... a reference shall be made only upon
a showing that some exceptional condition requires it.
The Suquamish contend that the order of referral did not show any
exceptional condition and that there is none. [FN4] We disagree.
FN4. The Suquamish assert that because the question of whether they are
the successor in interest to the Duwamish is novel and without precedent,
an Article III judge should then issue. This assertion is without basis.
We have previously decided if, under the Treaty of Point Elliott, a tribe
is a successor in interest to another. See United States v. Washington,
641 F.2d 1368, 1371-74 (9th Cir.1981). In addition, we do not construe the
Treaty of Point Elliott as the Suquamish contend we must.
 Masters may be appointed to aid a district court in the enforcement of
its decree. See, e.g., Organization for Reform of Marijuana Laws v. Mullen,
828 F.2d 536, 543 (9th Cir.1987). This proceeding is part of the district
court's continuing jurisdiction to implement its decree in the Boldt decision
under which appointment of *775 a master was to be determined as needed.
See Washington, 384 F.Supp. at 408. Throughout the long history of this
litigation, the district court has referred similar matters to special
masters. [FN5] See, e.g., United States v. Lummi Indian Tribe, 841 F.2d 317,
318 (9th Cir.1988) (special master determined that evidence supported the
Tulalip claim to expand usual and accustomed fishing grounds); United States
v. Washington, 730 F.2d 1314, 1315 (9th Cir.1984); United States v.
Washington, 626 F.Supp. 1405, 1487 (W.D.Wash.1985), aff'd, United States v.
Skokomish Indian Tribe, 764 F.2d 670 (9th Cir.1985); Washington, 459 F.Supp.
at 1041-42, 1068-69. Here, the special master contributed substantial
experience and assistance to the court in fashioning its decree.
FN5. We note that special master Cooper was especially well-prepared to
aid the district court because of his familiarity with this case. During
his tenure as magistrate and later as a special master he has heard
numerous other subproceedings. See, e.g., United States v. Washington, 626
F.Supp. 1405, 1487 (W.D.Wash.1985); Washington, 459 F.Supp. at 1028. His
experience actually antedates that of the present judge.
 Masters may also be appointed because of the complexity of litigation
and problems associated with compliance with the district court order.
Hoptowit, 682 F.2d at 1263. We cannot think of a more comprehensive and
complex case than this. Since 1974, there have been numerous supplemental
proceedings with voluminous filings. In the proceedings below, this was one of
14 sub-proceedings and over 11,000 papers had been filed with the district
FN6. The Suquamish assert that a question may be referred to a special
master only when it is complex or involves special expertise. This
contention is without merit. The district court may refer a matter to a
master when "exceptional conditions" are present in the case, not when the
matter is itself exceptional.
We hold that there were exceptional conditions to justify the appointment of a
special master. There was no abuse of discretion.
 The court determines the compensation of a magistrate. Fed.R.Civ.P.
53(a). The Suquamish Tribe asserts that requiring it to pay for the services
of the special master was an abuse of discretion.
We disagree. In Judge Coyle's Order of February 23, 1989, he divided the
special master's compensation of $1,530 among the five parties, the four
tribes, and the United States. Each was to pay a modest $306. Judge Coyle
found that the $1,500 request was reasonable, and the Suquamish Tribe did not
then object to paying its share. There was no abuse of discretion. [FN7]
FN7. The Suquamish also imply that the district court did not review the
transcript before adopting the report and recommendation of the special
master. Judge Coyle's order stated specifically that he read the
transcript of the proceedings before the special master.
II. May the Suquamish Assert the Fishing Rights of the Duwamish?
A. Proper Legal Standard
The Suquamish allege that they have the right to fish in areas east of Puget
Sound because they are the successor in interest to the Duwamish. [FN8] They
bear the burden of demonstrating successorship. See Lummi Indian Tribe, 841
F.2d at 318. We review de novo the question of what legal standard controls.
FN8. The Duwamish Tribe we refer to here held fishing rights acquired
under the Treaty of Point Elliott. In an earlier proceeding, the district
court found that the modern day Duwamish did not hold the fishing rights
reserved to the Duwamish Tribe that signed the Treaty. United States v.
Washington, 476 F.Supp. 1101, 1104-05 (W.D.Wash.1979). Although no tribe
exercises these rights currently, the Muckleshoots have succeeded to the
fishing rights of the Skopamish, Stkamish and Smulkamish for whom Chief
Seattle signed as Chief of the Duwamish. See Washington, 384 F.Supp. at
365-67. These fishing grounds overlap with some of the usual and
accustomed places of the treaty-time Duwamish.
 When a tribe asserts fishing rights reserved to signatory tribes under the
Treaty of Point Elliott, our decision in United States v. Washington, 641 F.2d
1368 (9th Cir.1981), provides the appropriate *776 legal standard. [FN9]
That a tribe includes descendants of treaty-signatory tribes does not alone
allow it the fishing rights of a treaty tribe. Id. at 1370-71. To acquire the
rights of a treaty-signatory tribe, a contemporary tribe must obtain "treaty
tribe status." Id.
FN9. The Suquamish ignore our decision in Washington. Instead, they
derive four factors from two district court opinions which, they assert,
establish successorship. See Washington, 459 F.Supp. at 1058-60 (Tulalip
successor in interest to Snoqualmie, Snohomish and Skykomish); Washington,
384 F.Supp. at 365-66 (Muckleshoot successor in interest to the Skopamish,
Stkamish and Smulkamish). They contend that these factors apply:
(1) The tribe claiming successorship must be a treaty tribe;
(2) The reservation governed by the tribe claiming successorship must have
been intended by the United States to be a home for the tribe whose fishing
rights are claimed;
(3) Individuals from the tribe whose rights are claimed must have moved to
and settled on the reservation which the United States intended to be a
home for them; and
(4) Significant numbers of the present day membership of the tribe claiming
successorship must be descendants of the tribe whose rights are claimed.
We reject this purported legal standard. In the district court cases upon
which they rely, the tribal claims to successorship were not contested.
In addition, the district court rejected the analogy of the Suquamish to
the Tulalip and Muckleshoot Tribes. It found, and we agree, that there are
significant historical differences among the successorship claims. For
example, unlike the Suquamish, the Tulalip and Muckleshoot Tribes did not
exist at the time of the Point Elliott Treaty. They were made up of small
bands that signed it and who went as such to the Tulalip and Muckleshoot
Reservations. They became known as the Tulalip and Muckleshoot Indians.
Unlike the Suquamish, who are located on the west side of Puget Sound, the
Tulalip and Muckleshoot Tribes were made up of bands from the east side of
 A tribe establishes treaty tribe status from a tribe that signed
the Treaty of Point Elliott by establishing that " 'a group of citizens of
Indian ancestry is descended from a treaty signatory and has maintained an
organized tribal structure.' " Id. (quoting United States v. Washington, 520
F.2d 676, 693 (9th Cir.1975)). An organized tribal structure may be preserved
"if some defining characteristic of the original tribe persists in an evolving
tribal community." [FN10] Washington, 641 F.2d at 1372-73. Changes in tribal
policy and organization attributable to adaptation will not necessarily destroy
treaty tribe status. Id. at 1373.
FN10. Federal recognition by the Department of Interior is not required
for a tribe to obtain treaty tribe status. Washington, 641 F.2d at 1371.
 In Washington, we considered whether modern tribes, alleging they were
the descendants of signatory tribes, could obtain treaty tribe status. We
concluded that they could, if they met the test stated above. When, as here,
one signatory tribe claims the rights of a second signatory tribe, we hold that
treaty tribe status may also be had. We agree, however, with the district
court that an additional requirement must be met to establish treaty tribe
status in this instance. The court must:
look to all indicia of tribal relationship to assess whether there has been a
consolidation or merger of the tribes, or cohesive bands thereof, sufficient to
combine their tribal or political structures. (emphasis added)
Order Adopting Special Master's Report and Recommendation at 18.
We hold that for a signatory tribe to obtain treaty tribe status from another
signatory tribe, it must first show that the two tribes or cohesive bands
thereof consolidated or merged and demonstrate also that together they maintain
an organized tribal structure. [FN11] If the signatory tribe meets that
burden, then it may exercise the treaty rights of both signatory tribes.
FN11. A tribe must also show that it "descended from a treaty signatory."
Washington, 641 F.2d at 1371. In this instance, however, the district
court previously determined that the Suquamish and Duwamish were treaty
signatories and that the contemporary Suquamish descended from the treaty
The district court properly required the Suquamish to show that the Duwamish
had merged or consolidated with them.
B. Factual Findings
 The district court's determination that the Duwamish Tribe had not merged
*777 with the Suquamish Tribe is a factual matter which we review for clear
error. See Washington, 641 F.2d at 1371.
 The Suquamish argue that they have presented sufficient evidence to
establish that they are the successors in interest to the Duwamish. They
presented evidence which, they argued, established that the United States
intended to consolidate the two tribes. They relied on (1) a report by George
Gibbs that the United States intended originally for the two tribes to be
consolidated on the Port Madison Reservation, [FN12] (2) the reference to Chief
Seattle as Chief of both the Duwamish and the Suquamish in the Treaty of Point
Elliott, and (3) the grant of nine allotments by the United States to Duwamish
Indians on the Port Madison Reservation, which was on the west side of Puget
FN12. George Gibbs was a lawyer-enthnologist who served as Secretary to
the 1855 Treaty Commission.
Despite the Gibbs report, the court found that no evidence showed that the
United States ever acted to relocate the Duwamish to Port Madison. It found
that the reference to Chief Seattle as Chief of the two tribes did not reflect
the political organization of the tribes or that the United States intended to
consolidate the two. It found that the grant of allotments to Duwamish persons
reflected the government's willingness to provide allotments to those with some
Duwamish blood, but that the Suquamish presented no evidence that the approval
of these allotments reflected a consolidation of the two tribes by the United
States or a tribal decision to merge. The court's findings are not clearly
Next, the Suquamish presented evidence that individual Duwamish moved to
and settled at the Port Madison Reservation. They had no evidence, however,
that a band or group moved there. The court found that those who moved to Port
Madison would retain personal rights to return to their natal territory to
fish, but that they could not transfer their rights to persons or tribes. See
Washington, 641 F.2d at 1373 (fishing rights communal). Thus, it found that
the relocation of individual Duwamish to Port Madison would not have been
perceived as a transfer of fishing rights to the Suquamish and that there was
no basis to infer from the movement of some Duwamish that consolidation took
place. These findings are not clearly erroneous.
Finally, the Suquamish presented evidence that 73.9% of its current members
have some Duwamish ancestry. The district court found that it could not infer
from this percentage that the two tribes had merged or consolidated. It noted
that most Suquamish had only a very small percentage of Duwamish blood, which
could easily be attributed to the tendency of the Suquamish to intermarry, and
that the compilation did not compare the relative percentage of Duwamish
ancestry among other tribes in the region. The district court did not clearly
Having reviewed the evidence, the district court found that:
1) the Duwamish and Suquamish Tribes were independent tribes when they signed
the Point Elliott Treaty;
2) the Duwamish objected to being moved from their traditional home east of
Puget Sound to the Port Madison Reservation west of it, and that there was
animosity between the Suquamish and Duwamish;
3) in the years following the Treaty, the Duwamish did not intend to join or
unite with the Suquamish and resisted efforts of the United States to unite
4) the United States continued to deal with the Duwamish as a distinct tribe;
5) the Duwamish did not merge or consolidate with the Suquamish.
Having reviewed the record, we find that these factual findings are supported
by Dr. Barbara Lane's testimony. [FN13] The district *778 court did not
clearly err when it found that the Suquamish did not merge with the Duwamish.
FN13. Lane is an anthropologist upon whom Judge Boldt relied heavily in
making his initial decision and who testified as an expert witness for both
the Suquamish and the Muckleshoot in this proceeding. She gave no opinion
on the successor in interest question. However, the Suquamish relied on a
report she prepared about the history of the Duwamish at the Muckleshoot
and Port Madison Reservations. Because of limitations in the scope of the
report, the court found that it did not provide a basis for evaluating the
distribution of the Duwamish as a whole after the Treaty of Point Elliott.
Having reviewed the report, we agree.
The district court properly appointed a special master. It applied the
correct legal standard in United States v. Washington, 641 F.2d 1368 (9th
Cir.1981), to determine if the Suquamish were the successors in interest to the
Duwamish. It did not clearly err in finding and concluding that the Suquamish
did not merge with the Duwamish and were not entitled to exercise fishing
rights on the east side of Puget Sound.