of the right to whale and seal, we had no need in Makah to separate out fishing from whaling and sealing or to address the significance of different types of evidence. It should be obvious that Makah is neither controlling nor informative because the question whether the Treaty of Olympia’s “right of taking fish” includes whales and seals was not “decided explicitly or by necessary implication.” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). Just as obviously, we cannot' simply transport analysis of the Treaty of Neah Bay-to the Treaty of Olympia because the member tribes’ intent is important to, if not dispositive of, the meaning of- particular provisions. See Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 (1943) (<HOLDING>). In Makah we described ..the question
holding that an insurance contract should be construed as a reasonable person in the position of the insured would have understood it and that if the language used in the policy is reasonably susceptible to different constructions it must be given the construction most favorable to the insured holding that statement that merger would give shareholders high value for their shares could be deemed material and noting that such conclusory terms in a commercial context are reasonably understood to rest on a factual basis that justifies them as accurate the absence of which renders them misleading holding that a statute should not be construed so as to invalidate other parts of the same statute holding that a statute must be construed if fairly possible so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score citations omitted holding that treaties involving indian tribes are to be construed so far as possible in the sense in which the indians understood them 