Waterworld

Correction:
We transposed text on the last paragraph on page 512 in Brett Rushforth's essay, Waterworld. The text should have read: "It is a call to take more–not less–seriously the charges by Mt. Pleasant, et al., "to produce and publish scholarship informed by tribal communities" that "refuses to colonize its objects of study," even if the boundaries of inquiry or the conclusions other will draw from our studies remain contested and unpredictable." We regret the error. The online version has been updated.

As controversy swirled around the confirmation of Justice Brett Kavanaugh to the US Supreme Court in October 2018, the sitting Justices quietly declined to review an appeal by the Makah Indian Tribe in a dispute over Pacific fishing rights. The Makahs claimed that a Ninth Circuit Court ruling the previous year infringed on their established rights to take fish, whales, and seals in customary waters, guarantees secured by the 1855 Treaty of Neah Bay and affirmed in several court decisions over nearly half a century. The Makahs' primary opponents in the case were the Quileute Indian Tribe and the Quinault Indian Nation, who asserted their own rights, secured in the 1856 Treaty of Olympia, to fish in waters over which the Makahs claimed exclusive privileges. Because the Ninth Circuit ruling had extended the geographic range of Quileute and Quinault fishing privileges, the Makahs considered it "seriously flawed," asserting that "it directly impacts Makah's own fisheries and creates a recipe for inter-tribal conflict."¹

Like many Native treaty cases, this one hinged on competing interpretations of indigenous and colonial histories: specifically how, over time, each tribal nation understood, used, and fought to control the marine spaces surrounding the Olympic Peninsula. To maintain sole treaty rights over a seascape the size of Delaware, the Makah Tribe cited a key difference between their Treaty of Neah Bay and the Quinaults' and Quileutes' Treaty of Olympia. Although both accords were negotiated with the same territorial governor, Isaac Stevens, within months of one another, and although they offered many of the same assurances, the Makahs had been guaranteed "the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations," whereas the Quileutes and Quinaults were assured merely "the right of taking fish at all usual and accustomed grounds and stations." Because whales and seals were pursued much farther from shore than fish, and whaling and sealing were not specifically mentioned in the Treaty of Olympia, the Makahs argued that federally-assured fishing rights deriving from Olympia should be far more limited, extending five miles offshore rather than forty.² The Ninth Circuit disagreed, siding with the Quileutes and Quinaults to guarantee the broadest and most advantageous reading of their treaty rights.³ When the Makah Tribe petitioned the Supreme Court to review the case in 2018, the court declined review without comment.⁴

The histories that produced these treaties and their divergent interpretations are part of a much larger story that scholars often overlook in their narratives of settler colonialism. The familiar emphasis on territorial dispossession has understandably dominated historical interpretations of Native North American history, and the fight for indigenous sovereignty has often been rooted in restoring control over ancestral homelands. But Native people living on the Atlantic and Pacific coasts, in particular, experienced European colonialism more as an oceanic encounter than as a battle over landed property. Where do their stories fit within broader histories of Euro-American conquest and colonization in North America? What role did the sea play in Native politics, economy, and identity prior to European invasion, and how...