Swinomish Indian Tribal Cmty. v. Lummi Nation

• Docket Number: 21-35812,21-35874
• Decision Date: 11 September 2023
• Parties: SWINOMISH INDIAN TRIBAL COMMUNITY; TULALIP TRIBES; UPPER SKAGIT INDIAN TRIBE, Petitioners-Appellees, v. LUMMI NATION, Respondent-Appellant, STILLAGUAMISH TRIBE OF INDIANS; HOH INDIAN TRIBE; SUQUAMISH INDIAN TRIBE; STATE OF WASHINGTON; JAMESTOWN S'KLALLAM TRIBE; PORT GAMBLE S'KLALLAM TRIBE; SKOKOMISH INDIAN TRIBE; LOWER ELWHA KLALLAM TRIBE; PUYALLUP TRIBE OF INDIANS, Real Parties in Interest. SWINOMISH INDIAN TRIBAL COMMUNITY; TULALIP TRIBES; UPPER SKAGIT INDIAN TRIBE, Petitioners-Appellees, v. LUMMI NATION, Respondent, and JAMESTOWN S'KLALLAM TRIBE PORT GAMBLE S'KLALLAM TRIBE, Real-Party-in-Interest- Appellants, STILLAGUAMISH TRIBE OF INDIANS; HOH INDIAN TRIBE; SUQUAMISH INDIAN TRIBE; STATE OF WASHINGTON; SKOKOMISH INDIAN TRIBE; LOWER ELWHA KLALLAM TRIBE; PUYALLUP TRIBE OF INDIANS, Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

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SWINOMISH INDIAN TRIBAL COMMUNITY; TULALIP TRIBES; UPPER SKAGIT INDIAN TRIBE, Petitioners-Appellees,
v.
LUMMI NATION, Respondent-Appellant,

STILLAGUAMISH TRIBE OF INDIANS; HOH INDIAN TRIBE; SUQUAMISH INDIAN TRIBE; STATE OF WASHINGTON; JAMESTOWN S'KLALLAM TRIBE; PORT GAMBLE S'KLALLAM TRIBE; SKOKOMISH INDIAN TRIBE; LOWER ELWHA KLALLAM TRIBE; PUYALLUP TRIBE OF INDIANS, Real Parties in Interest.

SWINOMISH INDIAN TRIBAL COMMUNITY; TULALIP TRIBES; UPPER SKAGIT INDIAN TRIBE, Petitioners-Appellees,
v.
LUMMI NATION, Respondent,

and JAMESTOWN S'KLALLAM TRIBE PORT GAMBLE S'KLALLAM TRIBE, Real-Party-in-Interest- Appellants, STILLAGUAMISH TRIBE OF INDIANS; HOH INDIAN TRIBE; SUQUAMISH INDIAN TRIBE; STATE OF WASHINGTON; SKOKOMISH INDIAN TRIBE; LOWER ELWHA KLALLAM TRIBE; PUYALLUP TRIBE OF INDIANS, Real Parties in Interest.

Nos. 21-35812, 21-35874

United States Court of Appeals, Ninth Circuit

September 11, 2023

Argued and Submitted November 9, 2022 Seattle, Washington

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Appeal from the United States District Court for the Western District of Washington D.C. No. 2:19-sp-00001-RSM Ricardo S. Martinez, District Judge, Presiding

James R. Sigel (argued), James M. Schurz, Mark D. McPherson, and Camille Framroze; Morrison & Foerster LLP, San Francisco, California; Deanne E. Maynard, Morrison &Foerster LLP, Washington, D.C.; for Respondent-Appellant Lummi Nation.

Emily H. Haley (argued) and James M. Jannetta, Office of the Tribal Attorney, Swinomish Indian Tribal Community, La Conner, Washington; for Petitioner-Appellee Swinomish Indian Tribal Community.

David S. Hawkins (argued), Upper Skagit Indian Tribe, Sedro Wooley, Washington; Arthur W. Harrigan Jr., Tyler L. Farmer, and Bryn R. Pallesen, Harrigan Leyh Farmer & Thomsen LLP, Seattle, Washington; for Petitioner-Appellee Upper Skagit Indian Tribe

Lauren P. Rasmussen (argued), Law Offices of Lauren P. Rasmussen, Seattle, Washington, for Real-Parties-in-Interest Appellants Jamestown S'Klallam and Port Gamble S'Klallam Tribes.

Mason D. Morisset and Thane D. Somerville, Morisset Schlosser Jozwiak & Somerville PC, Seattle, Washington, for Petitioner-Appellee Tulalip Tribes.

Joseph V. Panesko, Assistant Attorney General, Office of the Washington Attorney General, Olympia, Washington, for Real-Party-in-Interest State of Washington.

Craig J. Dorsay, Corin La Pointe-Aitchison, and Lea Ann Easton, Dorsay & Easton LLP, Portland, Oregon, for Real-Party-in-Interest Hoh Indian Tribe.

Rob R. Smith, Kilpatrick Townsend &Stockton LLP, Seattle, Washington, for Real-Party-in-Interest Stillaguamish Tribe of Indians.

Maryanne E. Mohan, Suquamish Tribe, Suquamish, Washington; John W. Ogan, Law Office of John W. Ogan, Sisters, Oregon; for Real-Party-in-Interest Suquamish Indian Tribe.

Earle D. Lees III, Skokomish Indian Tribe, Shelton, Washington, for Real-Party-in-Interest Skokomish Indian Tribe.

Samuel D. Hough, Lower Elwha Klallam Tribe, Port Angeles, Washington; Stephen H. Suagee, Suagee Attorney at Law, Port Angeles, Washington; for Real-Party-inInterest Lower Elwha Klallam Tribe.

Samuel J. Stiltner and Alec Wrolson, Puyallup Tribe of Indians, Tacoma, Washington, for Real-Party-in-Interest Puyallup Tribe of Indians.

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Before: Sandra S. Ikuta and Daniel P. Collins, Circuit Judges, and Sidney A. Fitzwater, ^[*] District Judge.

SUMMARY^[**]

Tribal Fishing Rights

The panel affirmed the district court's grant of summary judgment to the Swinomish Indian Tribal Community, Tulalip Tribes, and Upper Skagit Indian Tribe; dismissed as moot a cross-appeal filed by the Jamestown S'Klallam Tribe and Port Gamble S'Klallam Tribe (collectively, "S'Klallam") from the district court's grant of summary judgment; and dismissed as moot S'Klallam's appeal of the district court's denial of the S'Klallam's motion for reconsideration, in a long-running case regarding Indian fishing rights in certain waters in Washington state.

The current dispute concerns the usual and accustomed fishing places in which the Lummi Nation ("the Lummi")

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have fishing rights under a 1974 decree, issued by District Judge Boldt, over the waters east of Whidbey Island in Puget Sound.

In interpreting Judge Boldt's decree, the panel followed the two-step inquiry recently described in Upper Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe, 66 F.4th 766, 770-71 (9th Cir. 2023). At step one, a court uses the standard tools for interpreting precedent, starting with the text of the applicable Finding of Fact, as well as the record evidence before Judge Boldt and other evidence raised by the moving party that sheds light on Judge Boldt's understanding of the geography at the time. At step two, a court determines whether the moving party has carried the burden of showing that there was no record evidence that favors the non-moving party's contrary interpretation of the Finding of Fact in a way that would undermine the moving party's theory of Judge Boldt's intent.

Applying the two-step inquiry, the panel concluded that the district court correctly held that the Swinomish, Tulalip, and Upper Skagit carried their burden to warrant a ruling, under Paragraph 25(a)(1) of the 1974 Decree, that Judge Boldt's "determination of Lummi's usual and accustomed fishing grounds and stations" did not extend to the disputed waters at issue here.

At step one, the panel held that it was fundamentally ambiguous whether Judge Boldt and the parties in 1974 would have understood the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Bellingham Bay, to include any waters east of Whidbey Island. At step two, the panel held that the Swinomish, Tulalip, and Upper Skagit met their burden to show that there was no evidence in the record before Judge Boldt of

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historical Lummi fishing in the disputed waters beyond what would be merely incidental or occasional. The panel declined to read the decree to grant the Lummi fishing rights east of Whidbey Island.

The S'Klallam filed a cross-appeal to object certain statements in the district court's summary judgment order concerning fishing rights in waters west of Whidbey Island, where the S'Klallam claim fishing rights. The panel held that it had already clarified matters in the S'Klallam's favor in the ordinary course of disposing of the Lummi's appeal, and therefore the S'Klallam's cross-appeal was moot.

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OPINION

COLLINS, CIRCUIT JUDGE:

This is the latest proceeding in a long-running case regarding Indian fishing rights in certain waters in Washington State. The governing law is a 1974 decree issued by Judge George Boldt of the U.S. District Court for the Western District of Washington, which settled various competing tribal rights arising from, inter alia, the 1855 Treaty of Point Elliott. We have interpreted that 1974 decree many times since its issuance, and these appeals call upon us to do so once again.

This proceeding was instituted by three Indian tribes who sought a ruling that the recognized fishing rights of the Lummi Nation ("the Lummi") under the 1974 decree do not extend to certain areas. Specifically, the current dispute centers on a single line in the decree recognizing that "the usual and accustomed fishing places" in which the Lummi have fishing rights "include[] the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay." United States v. State of Washington, 384 F.Supp. 312, 360 (W.D. Wash. 1974) ("Final Decision I"). For the reader's convenience, the Fraser River, Seattle, and Bellingham Bay are shown here:^[1]

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(Image Omitted)

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The question is whether the specific waters in dispute here-namely, the sheltered waters east of Whidbey Island and south of Fidalgo Island-fall within the Lummi's historical fishing territory. For the reader's convenience, the approximate location of the disputed waters is shown here:

(Image Omitted)

The district court ruled against the Lummi, holding that the disputed waters are not part of their historical fishing waters under the 1974 decree. We affirm.

I

A

In 1854 and 1855, Isaac Stevens, Governor of what was then Washington Territory, signed a series of treaties with the Indian tribes of the Pacific Northwest. One of those treaties was the 1855 Treaty of Point Elliott.^[2] Under the treaty's terms, the signatory tribes agreed to "cede, relinquish, and convey to the United States" much of their tribal land. Treaty of Point Elliott, art. I, 12 Stat. 927 (1859). But the tribes retained their "right of taking fish at usual and accustomed grounds and stations," which the Treaty "secured to said Indians in common with all citizens of the Territory." 12 Stat. at 928. The Treaty did not specify, however, the precise location of those "usual and accustomed" fishing waters. Id.

More than a century later, the questions left open by the various Stevens treaties sparked complex litigation in the U.S. District Court for the Western District of Washington between Indian tribes, the State of Washington, various non-Indian fishermen, and the United States. In February 1974, District Judge George Boldt, who presided over that litigation, issued a wide-ranging decree to settle the parties' competing claims to "treaty right fishing" across the various

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waterways between the state capital and the Canadian border, some 135 miles to the north. Final Decision I, 384 F.Supp. at 327. Judge Boldt's decree purported to fix the location of "some," though "by no means all," of the "usual and accustomed fishing places" historically frequented by various Indian tribes in waters "of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area." Id. at 327-28, 333. This area covered more than 100 nautical miles and included "the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor...