Lower Elwha Klallam Tribe, et al v. Lummi Nation

Filing

FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and ELIZABETH E. FOOTE) REVERSED AND REMANDED. Judge: MMM Authoring FILED AND ENTERED JUDGMENT. [10674066]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff,
and
LOWER ELWHA KLALLAM INDIAN
TRIBE; JAMESTOWN S’KLALLAM
TRIBE; PORT GAMBLE S’KLALLAM
TRIBE,
Petitioners-Appellees,
v.
LUMMI NATION,
Respondent-Appellant,
and
STATE OF WASHINGTON,

Defendant,

SWINOMISH INDIAN TRIBAL
COMMUNITY; SUQUAMISH TRIBE;
MAKAH INDIAN TRIBE;
STILLAGUAMISH TRIBE; UPPER
SKAGIT INDIAN TRIBE; NISQUALLY
INDIAN TRIBE; TULALIP TRIBES;
SQUAXIN ISLAND TRIBE,
Real-Parties-in-Interest.

No. 15-35661
D.C. No.
2:11-sp-00002-RSM
OPINION

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LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted August 30, 2017
Seattle, Washington
Filed December 1, 2017
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Elizabeth E. Foote, *
District Judge.
Opinion by Judge McKeown

SUMMARY **
Fishing Rights
The panel reversed the district court’s summary
judgment in favor of the Lower Elwha Klallam Indian Tribe,
and held that the disputed waters west of Whidbey Island,
Washington were included in the Lummi Nation’s right of
taking fish at usual and accustomed grounds and stations
(“U & A”) under the 1855 Treaty of Point Elliot.

The Honorable Elizabeth E. Foote, United States District Judge for
the Western District of Louisiana, sitting by designation.
*

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

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In United States v. Washington, 384 F. Supp. 312 (W.D.
Wash. 1974), Judge Boldt developed a framework for
determining U & As for Indian signatories to the Treaty. In
Finding of Fact 46, Judge Boldt stated that the U & A for the
Lummi Indians “included the marine areas of Northern
Puget Sound from the Fraser River south to the present
environs of Seattle.”
To determine whether the waters west of Whidbey Island
were included in the Lummi’s U & A, the panel followed a
two-step procedure. At step one, the panel held that Fact 46
was ambiguous because it did not clearly include or exclude
the disputed waters. At step two, the panel examined the
record before Judge Boldt to clarify his intent, and concluded
that the district court erred in excluding the disputed waters
from the Lummi’s U & A. The panel held that the district
court improperly imposed a heightened standard in holding
that logic or linguistics needed to “compel the conclusion”
that contested waters be included in a U & A.

COUNSEL
Deanne E.Maynard (argued), Brian R.Matsui, and James R.
Sigel, Morrison & Foerster LLP, Washington, D.C.; Mary
Neil, Reservation Attorney, Lummi Nation, Bellingham,
Washington; Christopher J. Carr and James R. Sigel,
Morrison & Foerster LLP, San Francisco, California; for
Respondent-Appellant.
Stephen H. Suagee (argued) and Samuel D. Hough, Office
of General Counsel, Lower Elwha Klallam Tribe, Port
Angeles, Washington, for Petitioner-Appellee Lower Elwha
Klallam Tribe.

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LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

Lauren Rasmussen (argued), Law Offices of Lauren P.
Rasmussen, Seattle, Washington, for Petitioners-Appellees
Jamestown S’Klallam Tribe and Port Gamble S’Klallam
Tribe.
Mason D. Morisset and Rebecca JCH Jackson, Morisset
Schlosser Jozwiak & Somerville, Seattle, Washington, for
Real-Party-in-Interest Tulalip Tribes.
Howard G. Arnett and John W. Ogan, Karnopp Petersen,
Bend, Oregon; James Rittenhouse Bellis, Suquamish Tribe,
Suquamish, Washington; for Real-Party-in-Interest
Suquamish Indian Tribe.

OPINION
McKEOWN, Circuit Judge:
This appeal asks whether the Treaty of Point Elliott (the
“Treaty”) reserves to the Lummi Nation (the “Lummi”) the
right to fish in the waters west of Whidbey Island,
Washington. We previously concluded that the Treaty
secures the Lummi’s right to fish in Admiralty Inlet because
the Lummi would have used the Inlet as a passage to travel
from its home in the San Juan Islands to present-day Seattle.
The same result holds here because the waters at issue are
situated directly between the San Juan Islands and Admiralty
Inlet and also would have served as a passage to Seattle. We
reverse the district court’s judgment to the contrary.
Background
The 1855 Treaty of Point Elliott secures the Lummi’s
“right of taking fish at usual and accustomed grounds and

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stations” (“U&A”). Treaty of Point Elliott, art. V, Jan. 22,
1855, 12 Stat. 927, 928. Over 100 years later, Judge Boldt
of the Western District of Washington developed a
framework for determining U&As for Indian signatories to
the Treaty and other similarly worded treaties. See generally
United States v. Washington, 384 F. Supp. 312 (W.D. Wash.
1974) (Decision I), aff’d, 520 F.2d 676 (9th Cir. 1975).
Litigation over the various tribes’ U&As has been ongoing
ever since.
Judge Boldt defined a U&A as “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.” Decision I, 384 F.
Supp. at 332. Importantly, a U&A cannot be established by
“occasional and incidental trolling” in marine waters “used
as thoroughfares for travel.” Id. at 353. As to the Lummi,
Judge Boldt provided some general background on the
tribe’s fishing and techniques in Finding of Fact 45, and then
made a U&A finding in Finding of Fact 46:
45. Prior to the Treaty of Point Elliott, the
Lummi, Semiahmoo and Samish Indians had
been engaged in trade in salmon, halibut and
shellfish both with other Indians and with
non-Indians. This trade continued after the
treaty. At the time of the treaty they
maintained prosperous communities by
virtue of their ownership of lucrative
saltwater fisheries. The single most valuable
fish resource was undoubtedly the sockeye,
which the Lummis were able to intercept in
the Straits on the annual migration of the
sockeye from the ocean to the Fraser River.
Lummi Indians developed a highly efficient

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technique, known as reef netting, for taking
large quantities of salmon in salt water.
Aboriginal Indian ‘reef netting’ differs from
present methods and techniques described by
the same term. The Lummis had reef net sites
on Orcas Island, San Juan Island, Lummi
Island and Fidalgo Island, and near Point
Roberts and Sandy Point. When nature did
not provide optimum reef conditions the
Indians artificially created them.
Reef
netting was one of the two most important
economic activities engaged in by these
Indians, the other being the sale of dog fish
oil. These Indians also took spring, silver and
humpback salmon and steelhead by gill nets
and harpoons near the mouth of the Nooksack
River, and steelhead by harpoons and
basketry traps on Whatcom Creek. They
trolled the waters of the San Juan Islands for
various species of salmon.
46. In addition to the reef net locations listed
above, the usual and accustomed fishing
places of the Lummi Indians at treaty times
included the marine areas of Northern Puget
Sound from the Fraser River south to the
present environs of Seattle, and particularly
Bellingham Bay.
Freshwater fisheries
included the river drainage systems,
especially the Nooksack, emptying into the
bays from Boundary Bay south to Fidalgo
Bay.
Id. at 360–61 (emphases added) (citations omitted).

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These findings formed the foundation of our earlier
adjudication of parts of the Lummi’s U&A. Notably, we
held that Admiralty Inlet was included in the Lummi’s U&A
but the Strait of Juan de Fuca was excluded. See United
States v. Lummi Indian Tribe, 235 F.3d 443, 445, 451–52
(9th Cir. 2000) (Lummi I). Admiralty Inlet is due south of
the waters contested here—the waters west of Whidbey
Island. The Strait of Juan de Fuca lies further west of both
of those waters.
This dispute began in 2011. The Lower Elwha Klallam
Tribe, the Jamestown S’Klallam Tribe, and the Port Gamble
S’Klallam Tribe (collectively, the “Lower Elwha”) invoked
the district court’s continuing jurisdiction under Decision I
to determine whether the Lummi has the right to fish in the
waters west of Whidbey Island. The district court granted
summary judgment to the Lower Elwha, reasoning that
Lummi I had determined that the waters west of Whidbey
Island are excluded from the Lummi’s U&A.
On appeal, we disagreed with the district court’s
conclusion that the law of the case doctrine applied. United
States v. Lummi Nation, 763 F.3d 1180, 1185–88 (9th Cir.
2014) (Lummi II). Examining the decision in Lummi I, we
noted that while there were some indications that the
contested waters were excluded from the Lummi’s U&A,
there were strong indications pointing the other way too. Id.
at 1186–87. In particular, Lummi I’s geography-based
reasoning suggested that “the waters immediately west of
northern Whidbey Island are a part of the Lummi’s U & A.”
Id. at 1187 (emphasis in original). Thus, we concluded that
Lummi I had not yet decided the issue explicitly or by
“necessary implication.” Id. at 1187–88. In other words, the
law of the case was not the operative standard. Instead, we
remanded for the district court to apply the usual U&A
procedures. Id.

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On remand, the district court reached the same
conclusion as it did before—that the disputed waters are not
included in the Lummi’s U&A—and again granted summary
judgment to the Lower Elwha. The court explained that
“neither logic nor linguistics would compel the conclusion
that the waters to the west of northern Whidbey Island were
intended by Judge Boldt to be included in the Lummi U&A.”
The Lummi appealed. Reviewing de novo, we reverse.
See Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d
1129, 1133 (9th Cir. 2015).
Analysis
This is another chapter in the “ongoing saga” arising
from Judge Boldt’s original decision. See Makah Indian
Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir.
2017). In Finding of Fact 46, Judge Boldt stated that “the
usual and accustomed fishing places of the Lummi Indians
at treaty times included the marine areas of Northern Puget
Sound from the Fraser River south to the present environs of
Seattle.” Decision I, 384 F. Supp. at 360. To determine
whether the waters west of Whidbey Island are included in
the Lummi’s U&A, we follow a two-step procedure. At step
one, we decide whether a particular finding of fact is
ambiguous. See Upper Skagit Indian Tribe v. Washington,
590 F.3d 1020, 1023 (9th Cir. 2010). All parties agree that
Finding of Fact 46 is ambiguous because it does not clearly
include or exclude the disputed waters. At step two, we
examine the record before Judge Boldt to clarify his intent.
Id. Given this standard and our prior case law concerning
the Lummi, we conclude that the district court erred in
excluding the waters west of Whidbey Island from the
Lummi’s U&A.

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We also highlight that the district court improperly
imposed a heightened standard in holding that logic or
linguistics need to “compel the conclusion” that contested
waters be included in a U&A. (Emphasis added). We do
not countenance such a standard because it imposes a nearly
insurmountable burden on tribes in view of Decision I’s
decades-long lookback approach. The better approach is to
construe Judge Boldt’s language in light of the available
evidence.
Our analysis harkens back to Lummi I, where we
examined whether Admiralty Inlet is part of the Lummi’s
U&A. We began by noting that Judge Boldt’s Decision I
does not mention Admiralty Inlet at all, so “there [we]re no
linguistic clues to compare.” 235 F.3d at 452. But we
reasoned that, as a matter of geography, Admiralty Inlet fell
within the “marine areas of Northern Puget Sound from the
Fraser River south to the present environs of Seattle.” Id.
Because “Admiralty Inlet would likely be a passage through
which the Lummi would have traveled from the San Juan
Islands in the north to the ‘present environs of Seattle,’” the
disputed area was deemed part of the Lummi’s U&A. Id.
This case is almost identical. As a linguistic matter, in
Decision I Judge Boldt does not reference Whidbey Island
with respect to the Lummi’s or any other tribe’s U&A.
384 F. Supp. at 348–82. 1 The only mention of “Whidbey
The fact that later U&A decisions for other tribes make explicit
reference to “the waters off the west coast of Whidbey Island” does not
change our view. See United States v. Washington, 626 F. Supp. 1405,
1442–43 (W.D. Wash. 1985); United States v. Washington, 459 F. Supp.
1020, 1056–57 (W.D. Wash. 1978), aff’d, 645 F.2d 749 (9th Cir. 1981)
(describing fishing grounds “off of Whidbey Island’s West Beach”). Just
as we did not infer that Judge Boldt intended to exclude Admiralty Inlet
from the Lummi’s U&A simply because U&A decisions after Decision
1

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Island” in Decision I comes in a section labeled
“DEPARTMENT
OF
GAME
POLICIES
AND
PRACTICES” and says that “The Game Department permits
fishing for steelhead in all marine areas within its regulatory
jurisdiction. Saltwater steelhead fisheries are insignificant.
Most are located on Whidbey Island at Bush Point and
Lagoon Point.” Id. at 393, 398 (emphasis added). That
reference does not indicate whether the waters west of
Whidbey Island are included in “the marine areas of
Northern Puget Sound from the Fraser River south to the
present environs of Seattle.” Id. at 360. Like Admiralty Inlet
in Lummi I, the disputed area here is “just as likely” to be
included in “Northern Puget Sound” as it is to be excluded.
235 F.3d at 452.
Turning to the geographic indicators, as we did in Lummi
I, there is no doubt that the waters west of Whidbey Island
“would likely be a passage through which the Lummi would
have traveled from the San Juan Islands in the north to the
‘present environs of Seattle.’” Id. (quoting Decision I,
384 F. Supp. at 360). The nautical path that we traced in
Lummi I from the San Juan Islands to Seattle cuts right
through the waters at issue here. See Lummi I, 235 F.3d at
452. Indeed, the waters west of Whidbey Island are situated
just north of Admiralty Inlet, which is included in the
Lummi’s U&A, and just south of the waters surrounding the
San Juan Islands (such as Haro and Rosario Straits), which
are also included in the Lummi’s U&A. As we have already
observed, “[Lummi I’s] reasoning suggests that the waters
immediately to the west of northern Whidbey Island would
I explicitly reference Admiralty Inlet, we decline to make such an
inference here concerning the waters west of Whidbey Island. See
Lummi I, 235 F.3d at 452; Washington, 459 F. Supp. at 1059 (stating that
the U&A of the Tulalip Tribes includes Admiralty Inlet).

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be included within the Lummi’s U & A.”
763 F.3d at 1187.

Lummi II,

Importantly, expert anthropologist Dr. Barbara Lane tied
travel in this corridor to fishing: “The deeper saltwater areas,
the Sound, the straits, and the open sea, served as public
thoroughfares, and as such, were used as fishing areas by
anyone travelling [sic] through such waters.” Tulalip Tribes,
794 F.3d at 1135. Dr. Lane also reported that “Lummi
fishermen were accustomed . . . to visit fisheries as distant
as” the endpoints of the path we carved in Lummi I, and
“utilized” other fisheries in between. (Emphasis added).
Judge Boldt lauded Dr. Lane’s work as “exceptionally well
researched and reported”; Dr. Lane testified extensively at
trial and Judge Boldt relied heavily on her report in Finding
of Fact 46 and throughout Decision I. 384 F. Supp. at 350.
The Lower Elwha’s most persuasive argument is that
general evidence of travel cannot by itself establish U&As.
Judge Boldt defined “usual and accustomed grounds and
stations” as “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.” Id. at 332. He also specified what was not
included: “Marine waters were also used as thoroughfares
for travel by Indians who trolled en route. Such occasional
and incidental trolling was not considered to make the
marine waters traveled thereon the usual and accustomed
fishing grounds of the transiting Indians.” Id. at 353
(citations omitted). In the Lower Elwha’s view, Judge
Boldt’s statements stand for the principle that transit through
an area is insufficient for a U&A finding.
Although the Lower Elwha’s general statement is
accurate as far as it goes, in Lummi II, we already addressed

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and rejected this argument in the specific context of the
Lummi’s U&A. We held that “the Lummi’s use of ‘the
marine areas of Northern Puget Sound from the Fraser River
south to the present environs of Seattle’ was more than mere
‘occasional and incidental trolling.’” Lummi II, 763 F.3d at
1187. We explained further: “If to ‘proceed through
Admiralty Inlet’ rendered Admiralty Inlet a part of the
Lummi U & A, then to proceed from the southern portions
of the San Juan Islands to Admiralty Inlet would have the
same effect: to render the path a part of the Lummi U & A,
just like Admiralty Inlet.” Id. That explanation covers our
exact situation and fits within our long-accepted framework,
which requires looking at the evidence “before Judge Boldt
that the [tribe] fished or traveled in the . . . contested waters.”
Tulalip Tribes, 794 F.3d at 1135 (emphasis added) (citing
Upper Skagit, 590 F.3d at 1023). 2
We conclude that the waters west of Whidbey Island,
which lie between the southern portion of the San Juan
Islands and Admiralty Inlet, are encompassed in the
Lummi’s U&A. In coming to this conclusion, we need not

It is true, as the Lower Elwha points out, that the evidence in
Tulalip Tribes was more than general evidence of travel. For example,
in addition to evidence that the Suquamish “would have passed through
the waters west of Whidbey Island, and likely would have fished there
while traveling,” there was evidence from an expert report that the
“Suquamish travelled [sic] to Whidbey Island to fish.” 794 F.3d at 1135.
Nevertheless, Tulalip Tribes appears to indicate that the general evidence
of travel was “some evidence” that was sufficient to satisfy the necessary
standard. See id. (“This general evidence, too, constitutes some evidence
before Judge Boldt . . . .”). And, in any event, the Lower Elwha cannot
overcome the court’s strong statements in Lummi I and Lummi II that
counter its position.
2

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determine the outer reaches of the Strait of Juan de Fuca for
purposes of the Lummi’s U&A.
REVERSED AND REMANDED.