U.S. v. State of Wash.
| Decision Date | 30 June 1992 |
| Docket Number | No. 90-35887,90-35887 |
| Citation | 969 F.2d 752 |
| Parties | UNITED STATES of America, Plaintiff, and Lummi Indian Tribe, Intervenor-Appellant, v. STATE OF WASHINGTON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harry L. Johnsen, Office of Reservation Atty., Bellingham, Wash., for intervenor-appellant.
Phillip E. Katzen, Evergreen Legal Services, Mason D. Morisset, Pirtle, Morisset, Schlosser & Ayer, Seattle, Wash., Annette M. Klapstein, Tacoma, Wash., Alvin Ziontz, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Wash., John Sledd, Suquamish, Wash., for additional Indian tribes.
Robert K. Costello and Jay D. Geck, Asst. Attys. Gen., Olympia, Wash., for defendant-appellee.
Ronald Friedman, Asst. U.S. Atty., Seattle, Wash., Apphia T. Schley, U.S. Dept. of Justice, Washington, D.C., for amicus curiae.
Appeal from the United States District Court for the Western District of Washington.
Before: WRIGHT, HUG and LEAVY, Circuit Judges.
FACTS
This interlocutory appeal is about the location of the eastern boundary of the Lummi Indian Reservation in the State of Washington. The State of Washington contends that the eastern boundary of the reservation is the line of low tide on the eastern side of the peninsula that contains the Lummi Reservation. The Lummi Indians contend that the eastern boundary is a straight line from Point Francis to Treaty Rock because that is what Governor Stevens represented to them in 1855 at the Treaty of Point Elliott 1 and because the Executive Order of 1873 is ambiguous. According to the Lummi, the reservation includes the waters of Bellingham Bay west of that line.
This controversy arises in the context of continuing efforts to allocate the fish resources of the northwest United States between Indians and non-Indians: in this instance, the fish in the waters of Bellingham Bay. The court could not rule on the proper After an evidentiary hearing on the issue of the boundary, the magistrate judge made findings and recommendations in favor of the state. The Lummi, other Indian tribes, and the United States objected to the magistrate judge's findings of fact and conclusions of law. After hearing the objections and considering the record, the district court decided in favor of the state. The Lummi Indian Tribe moved for an order certifying the decision for immediate appeal pursuant to 28 U.S.C. § 1292(b). The court granted the motion, finding "that the Decision and Order re Eastern Boundary of the Lummi Indian Reservation involves a controlling question of law as to which there is a substantial ground for difference of opinion[.]"
allocation of fish until it decided whether, according to an Executive Order of 1873, part of Bellingham Bay is included in the Lummi Indian Reservation. If so, the Lummi Indians would have an exclusive right to fish within the boundaries of their reservation. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 683-84, 99 S.Ct. 3055, 3073-74, 61 L.Ed.2d 823 (1978)
At issue is the interpretation of an executive order of November 22, 1873, by President Grant, which provided a legal description of the boundaries of the Lummi Reservation. The handwritten version of the Executive Order reads:
Executive Mansion
It is hereby ordered that the following tract of country in Washington Territory be withdrawn from sale and set apart for the use and occupation of the Dwamish and other allied tribes of Indians, viz.:
Commencing at the eastern mouth of Lummi River thence up said river to the point where it is intersected by the line between sections seven and eight of township thirty eight north range two east of the Willamette meridian thence due north on said section line to the township line between townships thirty eight and thirty nine thence west along said township line to the low-water mark on the shore of the Gulf of Georgia thence southerly and easterly along the said shore with the meanders thereof across the western mouth of Lummi river and around Point Francis thence northeasterly to the place of beginning--so much thereof as lies south of the west Fork of the Lummi river being a part of the island already set apart by the second article of the treaty with the Dwamish and other allied tribes of Indians made and concluded January 22, 1857 [sic] [
U.S. Grant.
After reviewing evidence from both parties supporting their differing interpretations of "and around Point Francis thence northeasterly to the place of beginning," which describes the reservation's eastern boundary, the district court decided that the State of Washington was correct: "the eastern boundary of the reservation follows the low water mark, just as the western boundary does."
Treaty interpretation is a mixed question of law and fact. United States v. Lummi Indian Tribe, 841 F.2d 317, 319 (9th Cir.1988). We review de novo the interpretation and application of a treaty. Dillon v. United States, 792 F.2d 849, 852 (9th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987). 2 Where an executive order relates to a reservation set aside by treaty, the review is also de novo. Cf. Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251, 1257 n. 6 (1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1324, 79 L.Ed.2d 720 (1984).
We may affirm "on any basis supported by the record even if the district court did not rely on that basis." See Shaw v. California Dep't of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986) ().
The rule has long been that "treaties with the Indians must be interpreted as they would have understood them, ... and any doubtful expressions in them should be resolved in the Indians' favor." Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615 (1970); Puyallup Indian Tribe, 717 F.2d at 1257 (quoting Choctaw ). We have stated that the rule applies to executive orders no less than treaties. Puyallup Indian Tribe, 717 F.2d at 1257 n. 6; Moore v. United States, 157 F.2d 760, 762 (9th Cir.1946), cert. denied, 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed. 1277 (1947); United States v. Walker River Irrigation Dist., 104 F.2d 334, 337 (9th Cir.1939).
The district court found that the 1873 Executive Order was ambiguous in describing the eastern boundary of the Lummi Reservation. The court resolved the ambiguity it found in favor of the state:
[T]he fact that the legal description in the Executive Order is ambigious [sic] does not ipso facto entitle the Lummis to the most favorable conceivable interpretation when all of the other evidence strongly supports the selection of the low water mark as the eastern boundary.
Although the district court's decision was reached after hearing evidence, we find no ambiguity in the Executive Order. In addition to stating "and around Point Francis thence northeasterly to the place of beginning" the Executive Order states immediately thereafter [ ."
The latter statement in the Executive Order means that south of the west fork of the Lummi River, the boundaries are to follow those set forth in the treaty. The Executive Order makes clear that the line of low water marks the actual boundary. The treaty says nothing about a straight line boundary from Point Francis to Treaty Rock. Instead, Article II of the Treaty of Point Elliott (Muckl-te-oh, or Mukilteo), dated January 22, 1855, 12 Stat. 927 (1859) states in relevant part:
There is, however, reserved for the present use and occupation of the said tribes and bands the following tracts of land, viz: ... the island called Chah-choo-sen, situated in the Lummi River at the point of separation of the mouths emptying respectively into Bellingham Bay and the Gulf of Georgia.
United States Statutes at Large, 36-37th Congress, 1859-63, Vol. 12, at 928 (emphasis added). The Executive Order specifically incorporates the provision of the Treaty reserving the island and does nothing more than to specify that the boundary around the island "already set apart" shall follow the low water mark. We think this intent is clear from the statement in the Executive Order that the low water mark shall be followed on the shore of the Gulf of Georgia "southerly and easterly along the said shore with the meanders thereof across the western mouth of Lummi river and around Point Francis thence northeasterly to the place of beginning." (Emphasis added).
This interpretation comports with the fact that the Executive Order of 1873 was designed to add land to the reservation to the north of the island of Chah-choo-sen. Therefore, the Executive Order describes the land added to the north specifically and in detail. The description mentions Point Francis in order to include the land known as Portage Island within the reservation boundaries. Once the boundary line has been set around Point Francis to include Portage Island, the Executive Order does not need to be specific because by its terms it is merely describing the remainder of the island already designated for the Lummi in the treaty.
In United States v. Romaine, 255 F. 253 (9th Cir.1919), we had to decide the location of "the point of beginning" referred to in the 1873 Executive Order on the eastern boundary of the Lummi Reservation. The dispute in Romaine arose when
The United States brought suit to quiet the title of the Indians of the Lummi Indian reservation to certain lands alleged to be within the...
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