U.S. v. Washington, 07-35062.
| Citation | 573 F.3d 701 |
| Decision Date | 13 July 2009 |
| Docket Number | No. 07-35124.,No. 07-35062.,No. 07-35219.,07-35062.,07-35124.,07-35219. |
| Parties | UNITED STATES of America, Plaintiff, and Skokomish Indian Tribe, Plaintiff-Appellant, v. State of WASHINGTON, Defendant, and Port Gamble S'Klallam Tribe; Jamestown S'Klallam Tribe, Defendants-Appellees. United States of America; Skokomish Indian Tribe, Plaintiffs, v. State of Washington, Defendant, and Port Gamble S'Klallam Tribe; Jamestown S'Klallam Tribe, Defendants-Appellees, v. Lower Elwha Klallam Tribe, Plaintiff-intervenor-Appellant. United States of America; Skokomish Indian Tribe, Plaintiffs, and Makah Indian Tribe; Puyallup Tribe; Nisqually Indian Tribe; Lummi Indian Nation, Intervenors-Appellants, v. State of Washington, Defendant, and Port Gamble S'Klallam Tribe; Jamestown S'Klallam Tribe, Defendants-Appellees, v. Swinomish Indian Tribal Community, Plaintiff-intervenor-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Samuel J. Stiltner (briefed), Law Office of Puyallup Indian Tribe, Tacoma, WA, for appellant Puyallup Tribe.
Harold Chesnin (briefed), Office of Tribal Attorney Upper Skagit Indian Tribe, Sedro Woolley, WA, for appellant Upper Skagit Tribe.
Daniel A. Raas (briefed), Raas, Johnsen & Stuen, P.S., Office of Special Counsel, Bellingham, WA, for appellant Lummi Nation.
Bill Tobin (briefed), Office of Tribal Attorney Nisqually Indian Tribe, Vashon, WA, for appellant Nisqually Tribe.
Kevin Lyon (briefed), Office of Tribal Attorney Squaxin Island Indian Tribe, Shelton, WA, for appellant Squaxin Island Tribe.
Eric Nielsen (briefed), Nielsen, Broman & Koch, Seattle, WA, for appellant Quinault Indian Nation.
James M. Jannetta (briefed), Swinomish Indian Tribal Community, LaConner, WA, for appellant Swinomish Indian Tribal Community.
Lauren P. Rasmussen, Law Offices of Lauren P. Rasmussen, PLLC, Seattle, WA, for appellees.
Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District Judge, Presiding. D.C. Nos. CV-70-09213-RSM, SP-05-00002-RSM.
Before DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, and ANDREW J. KLEINFELD, Circuit Judges.
In substance, one Indian tribe seeks against other tribes an equitable apportionment of a shared fishery. Though this case was filed as a proceeding in the still pending 1970 district court case of United States v. Washington,1 neither the United States nor the State of Washington asserts a claim or defends against one.
In the 1850s, the United States signed a series of treaties with the tribes of the Pacific Northwest.2 These treaties were between the tribes and the United States, and did not purport to settle disputes between different tribes.3 "The Tribes ceded their aboriginal lands to the United States for settlement, receiving in exchange exclusive title to defined lands, free medical care, schools, occupational training, and annuity payments."4 What matters for this case is that the treaties also reserved to the tribes the "right of taking fish ... in common with all citizens of the United States."5
In 1970, the United States in United States v. Washington6 sued the state government to enforce the treaties on behalf of the Indians. The complaint sought an injunction to prevent the State of Washington from "enforcing the provisions of state laws or regulations in such manner as to prevent or restrict members of said tribes from taking fish ... without previously having established that the imposition of state regulation is necessary for the conservation of fish."7 No injunction was sought against any tribe by any party.
As part of his lengthy and detailed opinions in that (and technically still this) case,8 Judge Boldt described the treaty fishing right as "a reserved right, which is linked to the marine and freshwater areas where the Indians fished during treaty times, and which exists in part to provide a volume of fish which is sufficient to the fair needs of the tribes."9 A tribe has treaty rights at "every fishing location where members of a tribe customarily fished ... whether or not other tribes then also fished in the same waters."10 The district court has then and subsequently denoted more than 20 tribes' usual and accustomed fishing grounds.11 The adjudicated fishing areas of several tribes overlap.
Judge Boldt determined that the treaties entitled the tribes to roughly 50% of the resources within traditional tribal fisheries. The Supreme Court ultimately affirmed this decision.12 Both the trial court and the Supreme Court disclaimed any responsibility for intertribal allocation of the Indian 50% when the same fishery was shared by multiple tribes. "The court left it to the individual tribes involved to agree among themselves on how best to divide the Indian share of runs that pass through the usual and accustomed grounds of more than one tribe...."13
Pursuant to the request of the United States in its initial complaint against the State of Washington,14 the district court retained jurisdiction over "this case 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 in implementation of this decree."15 Judge Boldt set forth the grounds for invoking that jurisdiction:
25. (a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:
(1) Whether or not the actions, intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # I or this injunction;
...
(4) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves; ... [and]
(7) Such other matters as the court may deem appropriate.16
Decision I had previously defined the subject matter of the case as the application of the tribes' treaty rights to anadromous fish in Washington waters.17
To invoke the court's continuing jurisdiction, parties must file "requests for determination,"18 which are functionally the same as a complaint, but get two file numbers, the original 1970 number of the treaty case, and an "SP" number to indicate a new subproceeding within that case. This bit of administrative trivia matters, as we shall see, to jurisdiction over the tribes. After Decision I, when requests for determination concerning nonanadromous fish and other matters outside the defined subject matter of the case were filed, the court decided that equity favored the consolidation of "matters related to, but not included within, Final Decision # 1."19 It thus expanded the subject matter of the case. Later, the district court concluded it had jurisdiction over intertribal allocations.20
In 1981, the Skokomish Indian Tribe requested a determination that it had the primary right to fish in the Hood Canal. The claim for a "primary right" in these cases entails "the power to regulate or prohibit fishing by members of other treaty tribes" with fishing rights in the same territory.21 Primary right adjudication depends on the historical relationship between tribes at the time of the treaties.22
Several tribes with pending claims of a right to fish in the Hood Canal objected to Skokomish's claim.23 Skokomish settled its claims with the Lower Elwha Klallam, Port Gamble S'Klallam, and Jamestown S'Klallam tribes. These "stipulating parties" entered the Hood Canal Agreement which resolved Skokomish's primary rights claim as well as the territorial claims of Port Gamble and Lower Elwha.24 The Hood Canal Agreement created a joint fishery north of Ayock Point in the Hood Canal where all of the parties 25
After the Hood Canal Agreement, the stipulating parties managed their joint fishery together through the Point No Point Treaty Council. They entered into successive Off-Reservation Fisheries Management Compacts. The 1999 Compact was the last agreement. This scheme for resolution of disputes among the tribes eventually dissolved. Skokomish and the Lower Elwha Klallam Tribe withdrew from the Point No Point Treaty Council in 2003 and 2004, respectively. The tribes could no longer reach an agreement on the intertribal allocation of the joint fishery north of Ayock Point.
Skokomish unilaterally issued a harvest plan for 2004-05, allocating to itself certain percentages of the Indian share.26 Port Gamble and Jamestown filed a request for determination that Skokomish violated the Hood Canal Agreement.27 Skokomish filed a counter-request28 seeking an equitable allocation of the joint fishery in order to prevent a "race fishery" from interfering with its ability to manage its fishery and meet tribal needs. Its request acknowledged that it was harvesting the same amount of fish as before. The district court bifurcated the two claims. This appeal concerns Skokomish's counter-request for an equitable allocation, which Lower Elwha supported.
The district court granted the Port Gamble and Jamestown Tribes' motion to dismiss. The district court held that ...
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