Opinion
No. 92-35150.
Decided December 28, 1994.
Appeal from the United States District Court for the District of Oregon.
Before: BROWNING, SCHROEDER, and HALL, Circuit Judges.
ORDER
The opinion filed June 23, 1994, 29 F.3d 481, is amended as follows: Insert the following footnote at 29 F.3d page 485, just after the sentence reading "The five tribes with which we are concerned did not move to the Yakima Reservation, but carried out a nomadic existence and subsequently negotiated independent treaties with the government in 1879."
Failure to move onto the reservation is not the determinative factor in deciding whether a group has retained treaty rights. Rather, it is only one consideration relevant to an essentially factual inquiry — i.e., whether a group claiming treaty rights has maintained sufficient political continuity with those who signed the treaty that it may fairly be called the same tribe. See Washington II, 641 F.2d at 1372-73.
Delete the following two sentences from 29 F.3d page 485: "The crucial factor which supported our analysis regarding the Muckleshoots, and which distinguishes them from the tribes before us, was that the Muckleshoot Tribe had continuously asserted treaty fishing rights and had always been recognized as the entity possessing these rights. Thus, the continuity of the tribal entity possessing the treaty rights was determinative."