Upper Skagit Tribe v. Washington
| Decision Date | 06 August 2009 |
| Docket Number | No. 07-35061.,07-35061. |
| Citation | 576 F.3d 920 |
| Parties | UPPER SKAGIT TRIBE, Plaintiff-Appellee, and United States of America, Plaintiff, v. State of WASHINGTON, Defendant, and Suquamish Indian Tribe, Defendant-Appellant, v. Jamestown S'Klallam Tribe; Lower Elwha Klallam Tribe; Lummi Indian Nation; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Skokomish Indian Tribe; Tulalip Tribe, Plaintiff-intervenors-Appellees, Swinomish Indian Tribal Community, Cross-claimant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michelle Hansen, Suquamish Tribe, Office of Tribal Attorney, Suquamish, WA, for the appellant.
Harold Chesnin, Office of the Tribal Attorney, Seattle, WA, and Andrew H. Salter (briefed), Salter Joyce Ziker, PLLC, for appellee Upper Skagit Indian Tribe.
James M. Jannetta, Office of Tribal Attorney, LaConnor, WA, for appellee Swinomish Indian Tribal Community.
Lauren P. Rasmussen (briefed), Law Offices of Lauren P. Rasmussen, Seattle, WA, for appellees Port Gamble S'Klallam and Jamestown S'Klallam Tribes.
Mason D. Morisset (briefed), Morisset, Schlosser, Jozwiak & McGaw, Seattle, WA, for appellee The Tulalip Tribes.
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-05-00003-RSM.
Before: DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, and ANDREW J. KLEINFELD, Circuit Judges.
This case concerns the geographical scope of the Suquamish Indian Tribe's treaty right to fishing grounds in the Puget Sound.
In 1850s, the United States signed a series of treaties with the tribes1 of the Pacific Northwest.2 In the treaties, "[t]he 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."3
The treaties also reserved to the Tribes the "right of taking fish at usual and accustomed grounds and stations ...."4 The term "usual and accustomed grounds and stations" includes "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."5
In 1970, the United States initiated the underlying case, United States v. Washington, against the State of Washington in order to vindicate the tribes' treaty right to fish. As part of his lengthy and detailed opinions, Judge Boldt determined the various tribes' usual and accustomed fishing grounds and stations.6 He stated that he was particularly aided in his determinations by the "authoritative and reliable summaries of relevant aspects of Indian life" prepared by Dr. Barbara Lane.7
As relevant to this case, Judge Boldt determined that:
The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River and including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal.8
This conclusion was based on Dr. Lane's report. Her report indicated that the Suquamish customarily fished at the mouths of the Duwamish and Snohomish Rivers9 in the fall and winter, and in wider areas in the spring and summer. She also noted that an October 1827 journal entry indicated that the Suquamish had traveled all the way north to the Fraser River and Fort Langley in what is now British Columbia.10 Dr. Lane reported that
Almost thirty years after Judge Boldt reviewed Dr. Lane's report and made the initial determination of Suquamish's territory, the tribe changed its fishing patterns to include Saratoga Passage and Skagit Bay. The Upper Skagit Tribe then initiated this case by filing a request for determination11 that the Suquamish were fishing outside of their adjudicated grounds. Both Upper Skagit and Suquamish moved for summary judgment. The relevant facts are undisputed and set forth above; the parties only dispute the inferences to be drawn from those facts.
The district court granted summary judgment to Upper Skagit, finding that it had met its burden of demonstrating that Judge Boldt did not intend to include these areas in Suquamish's traditional fishing grounds. The court reached this conclusion even though it held that Judge Boldt used the term Puget Sound unambiguously to refer to all the marine areas inward from the mouth of the Strait of Juan de Fuca. Suquamish timely appeals.
We review summary judgment de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party.12 Circuit precedent dictates that our task is to determine whether Judge Boldt intended the Suquamish to have treaty fishing rights in Saratoga Passage and Skagit Bay, rather than rely on his words alone.13
Suquamish argues that the court should only clarify Judge Boldt's rulings after finding them ambiguous. This contention is foreclosed by our precedent. "[A]n analysis of the decision is necessary, whether the text is unambiguous or not, in order to understand [findings] `in light of the facts of the case.'"14 Ambiguity thus is not a prerequisite for clarifying the geographical scope of tribal fishing grounds. Nor, however, is it irrelevant. Instead, it "is certainly a factor to be considered" in determining Judge Boldt's intent.15 We have previously held Judge Boldt's use of the term Puget Sound to be ambiguous.16 But the question in this case is not whether Judge Boldt generally used Puget Sound ambiguously. The question is whether he intended this specific use of Puget Sound to include Saratoga Passage and Skagit Bay. He did.
Judge Boldt used the term Puget Sound broadly. He defined it as including the Strait of Juan de Fuca and all saltwater areas inland. But Judge Boldt's use of Puget Sound is ambiguous with regard to the Hood Canal and the Straits of Georgia and Juan de Fuca—waters at its edges.17 Judge Boldt had described Puget Sound as distinct from those water-ways. Upper Skagit did not and cannot, however, point to an instance where Judge Boldt used Puget Sound in a way that excluded Saratoga Passage and Skagit Bay, waters at its center.
The district court correctly concluded that "in every instance in 1975 where Judge Boldt did state a definition for Puget Sound, it is a broad one which necessarily includes both Saratoga Passage and Skagit Bay." This clear meaning must be taken into account in determining Judge Boldt's intent.18
Summary judgment is appropriate against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."19 Determining who bears what burden of proof is key to deciding this appeal.
At issue in an original territorial determination is whether there is sufficient evidence to show that disputed waters were part of a tribe's usual and accustomed grounds.20 The tribe claiming territory bears the burden of proof.21 At issue in a proceeding to clarify a previous territorial determination is what Judge Boldt intended by his description of a tribe's territory.22 The tribe claiming Judge Boldt intended something other than his apparent meaning bears the burden of proof.23
The burden of proof is especially important given the evidence relevant to the clarification proceeding. We have held that the relevant facts are the "evidence that was put before Judge Boldt."24 In other words, "the palpable facts are substantially undisputed."25 It is only the inferences that can be drawn from those facts which are disputed. If the evidence before Judge Boldt equally supports contradictory inferences about his intent, the party challenging the apparent meaning of his original determination cannot meet its burden of proof.26
Suquamish's adjudicated usual and accustomed grounds include "the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River."27 Saratoga Passage and Skagit Bay are in the Puget Sound between these two points. Upper Skagit therefore has the burden of proving that Judge Boldt intended not to include these waters, contrary to the apparent meaning of his words.
Suquamish has little evidence of a traditional presence in these two specific locations. The district court erred in finding that lack of evidence fatal, rather that putting the burden of proof on Upper Skagit and viewing the inferences from the evidence in the light most favorable to Suquamish. The district court also made factual errors in reaching its judgment. When all reasonable inferences are drawn in favor of Suquamish, it is at least as likely as not that Judge Boldt intended to include Saratoga Passage and Skagit Bay in the tribe's territory. Summary judgment therefore should be awarded to Suquamish because Upper Skagit cannot meet its burden of proof on undisputed facts.28
The district court emphasized that Dr. Lane's testimony did not refer to Area 4 on a map attached to proposed fishing regulations discussed during the 1975 proceeding. It also stated that the "fall and winter fishery [at the mouth of the Snohomish River] was described by Dr. Lane as separate and distinct from the spring and summer travels up to the Fraser River." These conclusions are mistaken.
Dr. Lane's testimony did refer to Area 4. The Suquamish live in Area 4. She testified that the map at page 22 of her report, documenting sites within Suquamish territory where they were accustomed to fishing, depicted locations south of Areas 1...
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Upper Skagit Indian Tribe v. Washington
...the petition for rehearing en banc is denied as moot. This court's opinion filed, August 6, 2009 and published at Upper Skagit Tribe v. Washington, 576 F.3d 920 (9th Cir.2009), is hereby withdrawn. A new opinion is filed concurrently RYMER, Circuit Judge: This case arises out of, and is a s......