876 F.3d 1004
9th Cir.2017Background
- The 1855 Treaty of Point Elliott reserved to signatory tribes the "right of taking fish at usual and accustomed grounds and stations." Judge Boldt (Decision I) defined the U&A concept and made findings about Lummi fishing practices and geography.
- Decision I found Lummi U&As included "marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle," described Lummi reef-netting sites, and noted use of San Juan-area waters and passages.
- Earlier appeals: the Ninth Circuit in United States v. Lummi Indian Tribe (Lummi I) held Admiralty Inlet was within the Lummi U&A (as a passage from the San Juans to Seattle) but excluded the Strait of Juan de Fuca.
- Lower Elwha tribes sought a determination that the waters west of Whidbey Island are not within the Lummi U&A; the district court granted summary judgment for Lower Elwha, but the Ninth Circuit in Lummi II remanded, finding the issue not decided by law of the case.
- On remand the district court again excluded the waters; the Ninth Circuit (this opinion) reviews de novo and reverses, holding the waters west of Whidbey Island are part of the Lummi U&A because they form a likely travel/fishing passage between the San Juan Islands and Admiralty Inlet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Treaty reserves to the Lummi the right to fish in waters west of Whidbey Island | Lummi: waters are within U&A because they lie on the historic passage between the San Juans and Seattle and Judge Boldt’s geographic language covers them | Lower Elwha: passage/travel alone is insufficient; Decision I does not explicitly include those waters and law-of-the-case bars relitigation | Reversed: waters west of Whidbey Island are part of the Lummi U&A; prior decisions did not foreclose the question and travel-plus-evidence can establish U&A |
| Proper standard to construe ambiguous Decision I findings | Lummi: construe Judge Boldt’s language in light of evidence before him, not require linguistic compulsion | Lower Elwha: district court required stronger linguistic/logic showing to include waters | Court: rejects heightened "compel" standard; clarifies two-step approach—resolve ambiguity then examine record evidence before Judge Boldt |
| Whether general evidence of travel suffices to establish U&A | Lummi: expert and historical evidence show travel routes were also fishing areas, so travel supports U&A | Lower Elwha: transit and incidental trolling are insufficient to create U&A under Decision I | Court: general travel evidence, when tied to fishing use (as here), can be "some evidence" supporting inclusion; Lummi’s use was more than incidental trolling |
| Whether determination requires fixing outer limits like Strait of Juan de Fuca | Lower Elwha: broad implications caution against expansive reading | Lummi: not necessary to decide outer reaches; focus on contested corridor | Court: includes the west-of-Whidbey waters in U&A and declines to determine the Strait of Juan de Fuca outer limits |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Decision I: framework for determining treaty U&As and foundational findings on tribal fishing)
- United States v. Washington, 520 F.2d 676 (9th Cir. 1975) (affirming Decision I)
- United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) (Lummi I: held Admiralty Inlet within Lummi U&A as a travel/fishing passage)
- United States v. Lummi Nation, 763 F.3d 1180 (9th Cir. 2014) (Lummi II: law-of-the-case did not resolve west-of-Whidbey waters; remanded for U&A analysis)
- Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) (two-step approach to ambiguous Decision I findings)
- Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015) (evidence that travel corridors were also fishing areas can support U&A)