U.S. v. Skokomish Indian Tribe

• Decision Date: 25 June 1985
• Docket Number: No. 84-3894,84-3894
• Parties: UNITED STATES of America, Plaintiff, and Quinault Indian Tribe, et al., Plaintiffs-Intervenors, and The Suquamish Indian Tribe, Plaintiff-Intervenor-Appellant, v. The SKOKOMISH INDIAN TRIBE, Plaintiff-Intervenor-Appellee, v. STATE OF WASHINGTON, et al., Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 670

764 F.2d 670

UNITED STATES of America, Plaintiff,

and

Quinault Indian Tribe, et al., Plaintiffs-Intervenors, and The Suquamish Indian Tribe, Plaintiff-Intervenor-Appellant, v. The SKOKOMISH INDIAN TRIBE, Plaintiff-Intervenor-Appellee, v. STATE OF WASHINGTON, et al., Defendants.

No. 84-3894.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 2, 1985.

Decided June 25, 1985.

Joanne Foster, Browne, Ressler & Foster, Seattle, Wash., for plaintiff-intervenor-appellant.

Gregory M. O'Leary, Wickwire, Lewis, Goldmark & Schorr, Seattle, Wash., for plaintiff-intervenor-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, KENNEDY, and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

In 1855, the United States signed treaties with several Pacific Northwest Indian tribes, including the Skokomish and Suquamish Indian Tribes. The treaties reserved to the signatory tribes their pre-treaty fishing rights in relation to one another.

The district court found that the Twana Tribe (the aboriginal predecessor in interest of the Skokomish) had a primary right to fish the Hood Canal and its watershed area. A primary right is the power to regulate or prohibit fishing by members of other treaty tribes. The Suquamish Tribe seeks reversal of the district court's judgment to avoid such regulation where the adjudicated "usual and accustomed fishing places" of the Suquamish in the Hood Canal area overlap with those of the Skokomish. We affirm the decision of the district court.

I. Res Judicata

In United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) (Boldt I ), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), the district court determined several matters concerning off-reservation treaty-time fishing rights, including that the usual and accustomed fishing places of the Skokomish were the Hood Canal and all the waterways draining into it. 384 F.Supp. at 377. Additionally, the court stated that it would retain continuing jurisdiction to determine, inter alia, "the location of any of a tribe's usual and accustomed fishing grounds not specifically determined by [Boldt I ]," and "such other matters as the court may deem appropriate." Id. at 419.

The district court implemented Boldt I with numerous orders and memorandum decisions. United States v. Washington, 459 F.Supp. 1020 (W.D.Wash.1974-1978) (Boldt II ), various appeals dismissed, 573 F.2d 1117 (9th Cir.1978), 573 F.2d 1118 (9th Cir.1978), 573 F.2d 1121 (9th Cir.1978), aff'd sub nom. Puget Sound Gillnetters Association v. United States District Court, 573 F.2d 1123 (9th Cir.1978), aff'd in part, vacated in part, and remanded sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The Suquamish intervened, and received a determination that the usual and accustomed fishing places of the Suquamish included the Hood Canal. 459 F.Supp. at 1049. The Suquamish contend that since the Skokomish Tribe did not claim that it had a primary right to fish in the Hood Canal basin during the Boldt II proceeding, the claim is now barred by res judicata.

As stated in Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) [T]he doctrine of res judicata provides that when a final judgment has been entered on the merits of a case, "[i]t is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." The final "judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever."

Nevada, 463 U.S. 129-30, 103 S.Ct. at 2918, 77 L.Ed.2d at 524 (citations omitted).

In addition to determining the usual and accustomed fishing places of the Suquamish and other tribes, the court in Boldt II also determined the existence of a primary right in the Lummi Tribe in the Hale Passage, 459 F.Supp. at 1049. Since these findings were made on a prima facie showing, the court provided that if any party requested a reconsideration during the following month, a full evidentiary hearing would be conducted. If no reconsideration was requested, the findings were to become "final and reviewable." Id. Only the Makah Tribe requested reconsideration with respect to the usual and accustomed fishing places of the Lower Elwha Tribe. Id. at n. 7. After finding that there was no dispute respecting common fishing areas, the court determined the two tribes' primary rights in these areas. Id. at 1067.

Since the Boldt II court did entertain the primary right claims of three tribes, presumably the Skokomish could have raised its primary right claim at that time. Nevertheless, in the context of this complex litigation of Indian treaty fishing rights in the Pacific Northwest, which has extended over more than a decade, we do not believe that the Boldt II court's extension of an opportunity to request a full evidentiary hearing in regard to its usual and accustomed fishing place determinations required that the parties also submit their primary right claims.

In Nevada, the Court held that res judicata prevented the United States, on behalf of the Pyramid Lake Indian Reservation, from litigating a water rights claim decided in an earlier decree. For its conclusion that the plaintiffs were asserting the same cause of action, the Court looked to both the district court's and the plaintiffs' intention that the earlier litigation be an adjudication of all the rights in the waters in issue: the plaintiffs through the assertions in their complaint, and the court through its decree ("each of them is hereby forever enjoined and restrained from asserting or claiming any rights in or to the waters...."). 463 U.S. at 132, 103 S.Ct. at 2919, 77 L.Ed.2d at 526 (emphasis added by Court).

In this case, the Skokomish, in Boldt I, and the Suquamish, in Boldt II, had asserted claims for a determination of only their usual and accustomed fishing places. The court did not hold that further treaty fishing claims were barred, stating only that its specific findings, if not objected to, would become final. Also, the court contemplated the possibility of future primary rights litigation in its statement that it would allow three tribes, including the Suquamish, to bring their claims later if they could not resolve their differences among themselves. Finding 7, 459 F.Supp. at 1049.

Additionally, entertaining the primary right claim of the Skokomish is not relitigation of the same cause of action because it would not serve "to sustain or defeat" the court's determination of the usual and accustomed fishing places of the Suquamish. See Nevada, 463 U.S. at 130, 103 S.Ct. at 2918, 77 L.Ed.2d at 524. Stated another way, it would not "partially undo" the earlier decree. Id., 463 U.S. at 113, 103 S.Ct. at 2910, 77 L.Ed.2d at 514. The rights attendant to a determination of the usual and accustomed fishing places of the Suquamish would remain intact. Like many other rights, however, this right is not unlimited in that it may be subject to a superior, in this case, primary, right.

Accordingly, we hold that the Skokomish Tribe is not barred by the doctrine of res judicata from asserting its primary right claim.

II. Primary Right

The district court's factual determinations will not be overturned unless clearly erroneous. Fed.R.Civ.P. 52(a). The United States Supreme Court recently reemphasized the great deference given the district court's findings of fact:

"[A] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently....

This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.

Anderson v. Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518, 528 (1985) (...