SWINOMISH INDIAN TRIBAL CMTY., ET AL V. LUMMI NATION, No. 21-35812 (9th Cir. 2023)
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This is the latest proceeding in a long-running case regarding Indian fishing rights in certain waters in Washington State. 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. 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.” (“Final Decision I”). 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.
The Ninth Circuit 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. 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.
Court Description: 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 Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.
The current dispute concerns the usual and accustomed fishing places in which the Lummi Nation (“the Lummi”) 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 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.
This opinion or order relates to an opinion or order originally issued on September 11, 2023.
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