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Date: 07-27-2015

Case Style: Tulalip Tribes v. Suquamish Indian Tribe

Case Number: 13-35773

Judge: Richard A. Paez

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington (King County)

Plaintiff's Attorney: Mason D. Morisset (argued) and Rebecca JCH Jackson,
Morisset Schlosser Jozwiak & Somerville, Seattle,
Washington, for Plaintiff-Appellant.

Defendant's Attorney: Howard G. Arnett (argued), Karnopp Peterson, Bend,
Oregon; James Rittenhouse Bellis and Michelle Hansen,
Office of the Reservation Attorney, Suquamish, Washington,
for Defendant-Appellee.

Description: Seattle, WA - Ninth Circuit resolves Indian fishing rights dispute

In this treaty fishing rights case, the Tulalip Tribes (“the
Tulalip”) invoked the district court’s continuing jurisdiction
as provided by the permanent injunction in United States v.
Washington, 384 F. Supp. 312, 419 (W.D. Wash. 1974)
(Decision I), aff’d, 520 F.2d 676 (9th Cir. 1975), by filing a
request for determination of the scope of the Suquamish
Indian Tribe’s (“the Suquamish”) usual and accustomed
fishing grounds and stations (“U&A”). The Tulalip sought a
determination that the Suquamish’s U&A, as determined by
Judge Boldt in 1975, does not include Possession Sound, Port
Gardner Bay, the mouth of the Snohomish River, and the
bays on the west side of Whidbey Island (Admiralty Bay,
Mutiny Bay, Useless Bay, and Cultus Bay). Ruling on crossmotions
for summary judgment, the district court concluded
that Judge Boldt did not intend to exclude the contested areas
from the Suquamish’s U&A and entered judgment
accordingly. Reviewing de novo, we affirm.
TULALIP TRIBES V. SUQUAMISH 4 INDIAN TRIBE
I. Background
There is a lengthy background to the complex litigation
over the treaty fishing rights of the Indian tribes in Western
Washington. The historical background of the treaty
negotiations is detailed in Judge Boldt’s Decision I. We will
not repeat that background, although we do note several key
facts to give context to the issues we address here. Although
Judge Boldt’s rulings resolved many key issues over the
extent of the Indian tribes’ treaty fishing rights, there have
been a number of post-judgment subproceedings seeking
clarification of Judge Boldt’s rulings. This case is one such
subproceeding.
In 1854 and 1855, several Indian tribes entered into
treaties with Isaac Stevens, Washington Territorial Governor,
on behalf of the United States. Decision I, 384 F. Supp. at
330. One of these treaties was the Treaty of Point Elliott,
12 Stat. 927 (signed January 22, 1855; ratified March 8,
1859; proclaimed April 11, 1859) (“the Treaty”), which is the
treaty at issue here. Decision I, 384 F. Supp. at 355. Through
these treaties, the United States “acquire[d] vast Indian
lands.” Id. at 330. As part of the negotiations, the tribes
reserved the right to fish at “all usual and accustomed
grounds and stations,” including those off reservation. Id. at
332.
In 1970, the United States filed a lawsuit against the State
of Washington, among others, on behalf of several Western
Washington Indian tribes, later joined by other tribes as
intervenor plaintiffs. Id. at 327. The plaintiffs sought a
declaratory judgment regarding the tribes’ reserved treaty
fishing rights and an injunction to enforce those rights. Id. at
327–28. In Decision I, Judge Boldt held that tribes that were
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 5
parties to the Treaty, or “Treaty Tribes,” had a “right to take
anadromous fish outside of reservation boundaries . . . limited
. . . by geographical extent of the usual and accustomed
places.” Id. at 407. Judge Boldt also defined the Treaty
Tribes’ U&As throughout his ruling, and in later decisions.1
Judge Boldt took great care to define Treaty Tribes’
U&As. According to Judge Boldt, the words “[u]sual and
accustomed . . . indicate the exclusion of unfamiliar locations
and those used infrequently or at long intervals and
extraordinary occasions.” Id. at 332. He defined a U&A as
“every fishing location where members of a tribe customarily
fished from time to time at and before treaty times, however
distant from the then usual habitat of the tribe, and whether or
not other tribes then also fished in the same waters.” Id.
Conversely, “occasional and incidental trolling” while
traveling through thoroughfares does not constitute a U&A.
Id. at 353. Judge Boldt’s findings “set forth . . . some, but by
no means all, of [the plaintiff tribes’] principal usual and
accustomed fishing places.” Id. at 333. After all, “[a]lthough
there are extensive records and oral history from which many
specific fishing locations can be pinpointed, it would be
impossible to compile a complete inventory of any tribe’s”
U&As. Id. at 353.
In determining the tribes’ U&As, Judge Boldt found
anthropological reports prepared by Dr. Barbara Lane, an
1 In Decision I, the court “retain[ed] jurisdiction . . . for the life of this
decree to take evidence, to make rulings and to issue such orders as may
be just and proper upon the facts and law and in implementation of this
decree.” 384 F. Supp. at 408. To invoke the court’s continuing
jurisdiction, a party must satisfy various procedural prerequisites and then
file and serve a “Request for Determination.” Id. at 419.
TULALIP TRIBES V. SUQUAMISH 6 INDIAN TRIBE
expert witness, to be “highly credible” and “very helpful in
determining by direct evidence or reasonable inferences the
probable location and extent of” U&As. United States v.
Washington, 459 F. Supp. 1020, 1059 (W.D. Wash. 1978)
(Decision II); see also Decision I, 384 F. Supp. at 350
(finding that Dr. Lane’s reports “have been exceptionally well
researched and reported and are established by a
preponderance of the evidence”).
Neither party to this subproceeding was a party to this
litigation when Judge Boldt issued Decision I; both
intervened afterwards. Decision II, 459 F. Supp. at 1028.
Appellant, the Tulalip, is a political successor in interest to
various groups of Indians that were parties to the Treaty. Id.
at 1039. Appellee, the Suquamish, was an original party to
the Treaty. Id. at 1040. Because neither tribe was a party to
the Decision I proceedings, Judge Boldt determined their
respective U&As in orders issued after his original order
recognizing off-reservation fishing rights. The court held that
the Suquamish had a right to fish at U&As outside of
reservation boundaries. Id. at 1041. Later, the court declared
that the Suquamish’s U&A includes “the marine waters of
Puget Sound from the northern tip of Vashon Island to the
Fraser River including Haro and Rosario Straits, the streams
draining into the western side of this portion of Puget Sound
and also Hood Canal.” Id. at 1049.
In June 2005, in a separate subproceeding, the Upper
Skagit Tribe filed a Request for Determination that Saratoga
Passage and Skagit Bay are not within the Suquamish’s
U&A. We affirmed the district court’s judgment that neither
Saratoga Passage nor Skagit Bay lie within the Suquamish’s
U&A. Upper Skagit Indian Tribe v. Washington, 590 F.3d
1020, 1026 (9th Cir. 2010).
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 7
Here, the Tulalip requested a determination that the inland
marine waters east of Admiralty Inlet but west of Whidbey
Island (Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus
Bay), as well as Saratoga Passage, Penn Cove, Holmes
Harbor, Possession Sound, Port Susan, Tulalip Bay, and Port
Gardner, do not lie within the Suquamish’s U&A.
The Tulalip filed a motion for summary judgment asking
the court to declare that the Suquamish’s U&A is “limited to
the west side of Puget Sound,” and that “the Suquamish tribe
does not have adjudicated usual and accustomed fishing
grounds and stations in the marine waters of Saratoga
Pass[age], Holmes Harbor, Port Susan, Possession Sound, or
Port Gardner, and on the west side of Whidbey Island,
including Useless Bay, Mutiny Bay, and Admiralty Bay.”2
The district court granted the motion as to Skagit Bay,
Saratoga Passage, Penn Cove, Holmes Harbor, and Port
Susan, following our opinion in the Upper Skagit
subproceeding. The court, however, denied the motion as to
Possession Sound, Port Gardner Bay, and the bays on the
west side of Whidbey Island, specifically Admiralty Bay,
Mutiny Bay, Useless Bay, and Cultus Bay, and declared that
the Suquamish U&A included these waters. Upon making
these determinations, which resolved all disputed issues, the
court entered a final judgment.
The Tulalip timely appealed. The Tulalip’s challenge
before us, however, is limited to the district court’s ruling
that, in determining the Suquamish’s U&A, Judge Boldt did
not intend to exclude the mouth of the Snohomish River,
2 The Tulalip’s motion in the district court was styled as a “Motion for
Declaratory Judgment.” The parties, however, do not dispute that the
district court treated the motion as a summary judgment motion.
TULALIP TRIBES V. SUQUAMISH 8 INDIAN TRIBE
Possession Sound, Port Gardner Bay, and the bays on the
west side of Whidbey Island (Admiralty Bay, Mutiny Bay,
Useless Bay, and Cultus Bay).
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. See United
States v. Muckleshoot Indian Tribe, 235 F.3d 429, 432 n.1
(9th Cir. 2000) (Muckleshoot III)3 (citing Van Cauwenberghe
v. Biard, 486 U.S. 517, 521–22 (1988) for the proposition
that jurisdiction under § 1291 is proper when the district
court’s judgment in a subproceeding is final as to all disputed
issues).
Our review is de novo, as the Tulalip appeal the district
court’s entry of summary judgment. Muckleshoot v. Lummi,
141 F.3d 1355, 1357 (9th Cir. 1998) (Muckleshoot I);
Muckleshoot III, 235 F.3d at 432 (reviewing de novo a
determination on summary judgment regarding Judge Boldt’s
finding of the Muckleshoot Tribe’s U&A).
III. The Suquamish’s U&A
In Upper Skagit, we drew on our prior decisions
interpreting Judge Boldt’s U&A findings for various tribes to
develop a two-step mode of analysis. First, the moving party
bears the burden of offering evidence that a U&A finding was
“ambiguous, or that Judge Boldt intended something other
than [the text’s] apparent meaning.” Upper Skagit, 590 F.3d
at 1023 (citing Muckleshoot I, Muckleshoot Indian Tribe v.
3 As in the prior cases where we have discussed all three Muckleshoot
cases, we name them chronologically, rather than based on the order in
which they appear in this opinion.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 9
Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000)
(Muckleshoot II), and Muckleshoot III). Second, the moving
party bears the burden of showing that “there was no
evidence before Judge Boldt” that would indicate that the
contested area was included or excluded in the U&A of the
nonmoving tribe. Id.
We have determined previously that, for the finding
describing the Suquamish’s U&A, Judge Boldt intended
something different than the language’s apparent meaning,
which neither the Suquamish nor the Tulalip contest. Upper
Skagit, 590 F.3d at 1025 (affirming the district court’s
determination that the Upper Skagit Tribe met its burden on
the first prong). In Upper Skagit, the district court’s
reasoning, which we affirmed, began with a finding that the
apparent meaning of the term “Puget Sound” from the
Suquamish’s U&A included the waters at issue in that
case—Saratoga Passage and Skagit Bay. Id. at 1023. But,
the district court determined that nothing before Judge Boldt
demonstrated that the Suquamish fished in those contested
waters, or traveled through those areas on their way to the
Fraser River area. Id. at 1023–24. Therefore, the district
court reasoned, Judge Boldt must have intended something
other than the language’s apparent meaning in defining the
Suquamish’s U&A. Id. It does not matter that the contested
areas at issue here are slightly different; the finding that
Judge Boldt intended something different than the plain text
of the Suquamish U&A finding remains intact. We adhere to
that determination and do not analyze further prong one of the
Muckleshoot analytical framework.
Under prong two, the Tulalip have “the burden to show
that there was no evidence before Judge Boldt that the
Suquamish fished . . . or traveled” through the contested
TULALIP TRIBES V. SUQUAMISH 10 INDIAN TRIBE
areas. See Upper Skagit, 590 F.3d at 1023. All the contested
waters here surround Whidbey Island, which is on the east
side of Puget Sound. In United States v. Suquamish Indian
Tribe, 901 F.2d 772, 778 (9th Cir. 1990), we stated that the
“Suquamish . . . were not entitled to exercise fishing rights on
the east side of Puget Sound.” However, this statement is
from the concluding paragraph of an opinion where we did
not address the boundaries of the Suquamish’s U&A. Rather,
in that case, we affirmed the district court’s finding that the
Suquamish did not merge or consolidate with the Duwamish,4
and therefore was not the successor in interest to the
Duwamish’s fishing rights. Id. at 777–78. Thus, Suquamish
does not control the status of the contested waters in this
subproceeding.
For analysis, we divide the contested areas into two
categories: those east of Whidbey Island (Possession Sound,
Port Gardner Bay, and the mouth of the Snohomish River)
and those west of Whidbey Island (Cultus Bay, Useless Bay,
Mutiny Bay, and Admiralty Bay).
A. Eastern Contested Waters
We have made determinations previously about waters
north of the eastern contested waters, east of Whidbey Island.
In Upper Skagit, we affirmed the district court’s
determination that the Suquamish’s U&A does not include
Skagit Bay and Saratoga Passage. 590 F.3d at 1026. We
stated that “[t]here is no evidence in the record before Judge
4 The Duwamish’s U&A on the eastern side of Puget Sound included
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. Id. at 774 n.2.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 11
Boldt that the Suquamish fished or traveled in the waters on
the eastern side of Whidbey Island.” Id. at 1025.
Evidence that was before Judge Boldt indicates that the
eastern contested waters are distinguishable from those at
issue in Upper Skagit. In particular, the evidence before
Judge Boldt demonstrates that the Suquamish traveled to the
mouth of the Snohomish River and the waters immediately
surrounding it to fish.
Materials from Dr. Lane, namely her reports and trial
testimony, constitute evidence before Judge Boldt that the
Suquamish traveled to the eastern contested waters to fish.
The Suquamish, Dr. Lane explained, “had very limited kinds
of resources within their home territory because almost
uniquely of [the other tribes in this case] they had no large
streams in their territory.” The Suquamish “did in fact go to
the larger rivers on the mainland in order to harvest salmon
because they had no rivers in their own country.” They “were
accustomed to harvest their fall and winter salmon supplies
at the rivers on the east side of Puget Sound. Modern
Suquamish, as well as neighbouring Indians, have attested
that the Suquamish traditionally fished at the mouths of the
Duwamish and Snohomish Rivers as well as in the adjacent
marine areas.” Dr. Lane’s testimony and reports constitute
evidence that the Suquamish traveled to the mouth of the
Snohomish river and the areas immediately surrounding it to
fish. In light of this evidence, the Tulalip failed to meet their
burden to show that there was “no evidence” before Judge
Boldt that the Suquamish fished in or traveled through the
eastern contested areas. See id. at 1023.
The Tulalip argue that we already determined this issue
in Upper Skagit. We disagree. The evidence here relates to
TULALIP TRIBES V. SUQUAMISH 12 INDIAN TRIBE
the mouth of the Snohomish River and its immediate
surroundings, rather than the waters further north or the
waters east of Whidbey Island more generally. Indeed, Dr.
Lane stated several times that the mouths of rivers and the
surrounding areas were unique. First, she testified, as noted
above, that the Suquamish “did in fact go to the larger rivers
on the mainland in order to harvest salmon because they had
no rivers in their own country.” Despite its proximity to
Whidbey Island, the Snohomish River is a large river on the
mainland. Second, Dr. Lane explained that people “would
gather to troll for the salmon as they gathered in the bays just
prior to their entry into the rivers.” This evidence supports
the district court’s determination that Judge Boldt intended to
include Possession Sound and Port Gardner Bay in
Suquamish’s U&A because salmon would swim through the
marine waters just before entering the Snohomish River. By
contrast, Skagit Bay and Saratoga Passage, discussed in
Skagit Bay, were larger bodies of water separate from a river.
Third, Dr. Lane’s opinion about the Suquamish’s harvest “on
the east side of Puget Sound” including “at the mouths of the
Duwamish and Snohomish rivers as well as in the adjacent
marine areas” is distinct from Skagit Bay and Saratoga
Passage because the river mouths are not near those areas.
As the district court concluded, in light of this evidence,
the Tulalip cannot demonstrate that there was “no evidence”
before Judge Boldt that the Suquamish fished or traveled in
the eastern contested waters. See Upper Skagit, 590 F.3d at
1023. We hold that the Tulalip did not satisfy its burden to
show that Judge Boldt intended to exclude the eastern
contested waters from the Suquamish’s U&A.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 13
B. Western Contested Waters
As with the eastern contested waters, the Tulalip must
“show that there was no evidence before Judge Boldt that the
Suquamish fished . . . or traveled through” the western
contested waters. See id.
The Tulalip failed to meet that burden here because the
record contains evidence that the Suquamish fished in these
waters. Dr. Lane explained in a Suquamish-specific report
that the Suquamish territory included “possibly. . . the west
side of Whidbey Island. It is difficult at this time to establish
the precise nature of Suquamish use of the west coast of
Whidbey Island.”5 While Dr. Lane added that “there appears
to be no clear evidence of Suquamish winter villages on the
west side of Whidbey Island,” she reported elsewhere that the
“Suquamish travelled [sic] to Whidbey Island to fish.”
Moreover, there is other evidence supporting the Suquamish’s
use of the western contested waters. Dr. Lane explained
generally that “[t]he deeper saltwater areas, the Sound, the
straits, and the open sea, served as public thoroughfares, and
as such, were used as fishing areas by anyone travelling [sic]
through such waters.” As indicated by the plain text of the
Suquamish’s U&A, the Suquamish traveled from “the marine
waters of Puget Sound from the northern tip of Vashon Island
to the Fraser River.” Decision II, 459 F. Supp. at 1049.
When traveling from Vashon Island to the Fraser River, the
Suquamish would have passed through the waters west of
5 Dr. Lane cited two treaty-time accounts: one from Achilles de Harley,
who mentioned that the “Soquamish” occupied the west side of Whidbey
Island in 1849, and one from George Gibbs, who wrote in 1854 that the
Snohomish and Skagit tribes occupied Whidbey Island, but omitted the
Suquamish.
TULALIP TRIBES V. SUQUAMISH 14 INDIAN TRIBE
Whidbey Island, and likely would have fished there while
traveling. This general evidence, too, constitutes some
evidence before Judge Boldt and supports the district court’s
determination that Judge Boldt did not intend to exclude these
contested bay areas from Suquamish’s U&A.
Therefore, we hold that the Tulalip did not meet its
burden to demonstrate that there was no evidence before
Judge Boldt supporting Suquamish fishing or traveling
through the western contested waters. See Upper Skagit,
590 F.3d at 1023.

Outcome: The Tulalip did not meet its burden to show that the
contested areas in this subproceeding should be excluded
from Suquamish’s U&A. Therefore, we affirm the district
court’s judgment.

AFFIRMED.

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