Swinomish Indian Tribal Cmty. v. Lummi Nation

80 F.4th 1056

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,andJamestown 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.

No. 21-35812

No. 21-35874

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 9, 2022 Seattle, Washington

Filed September 11, 2023

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

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-in-Interest 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.

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

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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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:

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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 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 watershed, and the offshore waters adjacent to those areas." Id. at 327-28. Judge Boldt's wide-ranging decree was substantially affirmed by this court, United States v. State of Washington, 520 F.2d 676, 693 (9th Cir. 1975), and ultimately by the Supreme Court, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685-87, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979).³

Judge Boldt recognized, however, that a single decree could not definitively resolve every future dispute over tribal fishing rights anywhere in western Washington. Final Decision I therefore reserved the district court's continuing jurisdiction in two circumstances relevant here. First, any of the parties to the 1974 decree could invoke the district court's continuing jurisdiction to determine "whether or not the actions, intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # I." Final Decision I, 384 F. Supp. at 419. Second, any of the parties could request that the district court determine "the location of any of a tribe's usual and accustomed fishing grounds not specifically determined by Final Decision # I." Id. These two sources of retained jurisdiction appear, respectively, in Paragraphs 25(a)(1) and 25(a)(6) of the current, amended version of Judge Boldt's 1974 permanent injunction.⁴ In effect, Paragraph 25(a)(1) allows the district court to adjudicate present-day disputes about what the 1974 decree really said. Paragraph 25(a)(6) allows the district court to adjudicate disputes about what the 1974 decree left unsaid—that is, historical fishing rights the 1974 decree did not purport to address at all.

In the nearly 50 years since Judge Boldt's 1974 decree, the Indian tribes of Washington State have often invoked the district court's continuing jurisdiction under Paragraph 25 to settle overlapping tribal claims to historical fishing waters. This court, in turn, has often been called upon to review the 1974 decree in the exercise of its appellate jurisdiction over the district court. The task of interpreting the occasionally cryptic terms of a decades-old decree, itself based on a sometimes thin record of anthropological evidence regarding the practices of Indian tribes more than a century earlier, has not always proved to be an easy one. Nonetheless, it remains the task we have today.

B

This appeal involves a dispute among several Indian tribes over the waters east of Whidbey Island, a land formation that stretches approximately 37 miles north-to-south across Puget Sound. The disputed waters include Skagit Bay, directly south of the Swinomish Reservation; the Saratoga Passage between Whidbey Island and Camano Island; Port Susan, a bay separating Camano Island from the mainland; Holmes Harbor, a cove at the southern end of Whidbey Island; and Possession Sound, near the mainland city of Everett.

With respect to the core dispute on appeal, the parties are the Swinomish Indian Tribal Community; the Tulalip Tribes; the Upper Skagit Indian Tribe; and the Lummi Nation.⁵ All four tribes bear respective rights under the...