UPPER SKAGIT INDIAN TRIBE, ET AL V. SAUK-SUIATTLE INDIAN TRIBE, No. 21-35985 (9th Cir. 2023)
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The Upper Skagit Indian Tribe (the Upper Skagit tribe) claimed that the usual and accustomed fishing areas of the Sauk-Suiattle Indian Tribe (the Sauk tribe) under a 1974 decision do not include the Skagit River, and therefore that decision did not authorize the Sauk tribe to open salmon fisheries on that river. The dispute, in this case, relates to the meaning of Finding of Fact 131 in Final Decision I, which defines the Sauk tribe’s U&As
The Ninth Circuit affirmed the district court’s summary judgment in favor of the Upper Skagit tribe. The court concluded that the district court intended to omit the Skagit River from the Sauk tribe’s usual and accustomed fishing areas. The panel agreed with the Upper Skagit tribe’s contention that Finding of Fact 131 clearly and unambiguously established Judge Boldt’s intent not to include the Skagit River in the Sauk tribe’s U&As. The panel held that if Judge Boldt intended to include the Skagit River in the U&As of the Sauk tribe, he would have used that specific term, as he did elsewhere. The panel held that the Lane Report, on which Judge Boldt heavily relied, reinforced its conclusion. The panel held that none of the statements undermined its conclusion that Judge Boldt’s intent was clear or showed that he intended to include the Skagit River in the U&As contrary to the plain text of Finding of Fact 131.
Court Description: Tribal Fishing Rights The panel affirmed the district court’s summary judgment in favor of the Upper Skagit Indian Tribe in a case concerning the usual and accustomed fishing areas (“U&As”) of the Sauk-Suiattle Indian Tribe (“the Sauk tribe”) under United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Final Decision I).
In Final Decision I, Judge George Boldt resolved disputes arising from the 1855 Treaty of Point Elliot, in * The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. which tribes in the area covered by the treaty agreed to convey most of their tribal land to the United States, in exchange for retaining their rights of taking fish “at usual and accustomed grounds and stations.” Final Decision I included an injunction retaining jurisdiction to implement the decision.
The dispute in this case relates to the meaning of Finding of Fact 131 in Final Decision I, which defines the Sauk tribe’s U&As. The Sauk tribe’s U&As in Finding of Fact 131 include rivers and creeks that are tributaries to the Skagit River, but does not include the Skagit River itself.
Therefore, fish migrating to the Sauk tribe’s U&As must travel on the Skagit River, which is part of the U&As for the Upper Skagit tribe and the Swinomish Indian Tribal Community. The Sauk tribe contends that the Upper Skagit tribe and the Swinomish tribe should alter their fishing practices so that more fish reach the Sauk tribe’s U&As. At the start of the 2020 fishing season, the Sauk tribe issued a fishing regulation that permitted its tribal members to harvest Coho salmon in two areas that include a portion of the main stem of the Skagit River. The Upper Skagit tribe invoked the continuing jurisdiction of the district court and sought an emergency order requiring the Sauk tribe to close its fishery. The district court concluded that Judge Boldt intentionally omitted the Skagit River from the Sauk tribe’s U&As and therefore the Sauk tribe’s attempts to open fisheries in the mainstream of the Skagit River were not in conformity with Final Decision I.
The panel agreed with the Upper Skagit tribe’s contention that Finding of Fact 131 clearly and unambiguously established Judge Boldt’s intent not to include the Skagit River in the Sauk tribe’s U&As. The panel held that if Judge Boldt intended to include the Skagit River in the U&As of the Sauk tribe, he would have used that specific term, as he did elsewhere. The panel held that the Lane Report, on which Judge Boldt heavily relied, reinforced its conclusion.
The panel rejected the Sauk tribe’s four arguments to support their claim. First, the Sauk Tribe argued that Finding of Fact 131 was ambiguous because it lists rivers and creeks that are tributaries to the Skagit River, raising the inference that Judge Boldt intended to include the Skagit River as well. The panel held that it could not draw such an inference because Judge Boldt expressly included both the Skagit River and its tributaries in his determination of the Swinomish tribe’s U&As. Second, the Sauk tribe pointed to a transcript of the testimony of James Enick (a member of the Sauk tribe), which allegedly indicated that Sauk tribal members must have fished “[u]p and down” the Skagit River. The panel concluded that Enick’s testimony was not evidence showing that Judge Boldt meant to include the Skagit River in the U&As, and therefore did not change the panel’s conclusion that Judge Boldt’s intent was clear. Third, the Sauk tribe argued that the Sauk River and the Cascade River were part of the Sauk tribe’s U&As, and that the most likely path of travel between the Sauk River and Cascade River is the Skagit River. This raised the inference that the Sauk tribe traveled and fished on the Skagit River, and thereby was evidence that Judge Boldt intended to include the Skagit River as part of the Sauk tribe’s U&As. The panel held that the Sauk tribe’s “path of travel” theory did not make Judge Boldt’s intent unclear, or constitute evidence that Judge Boldt intended to include the Skagit River in the Sauk tribe’s U&As. Finally, the Sauk tribe relied on scattered statements in the Final Decision I and the Lane Report as evidence that the Sauk tribe historically fished in the Skagit River. The panel held that none of the statements undermined its conclusion that Judge Boldt’s intent was clear, or showed that he intended to include the Skagit River in the U&As contrary to the plain text of Finding of Fact 131.
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