80 F.4th 1056
9th Cir.2023Background
- The 1855 Treaty of Point Elliott reserved to tribes the right to take fish at their "usual and accustomed" (U&A) places; Judge Boldt’s 1974 decree (Final Decision I) fixed many tribes’ U&A sites but left some areas ambiguous and reserved Paragraph 25 jurisdiction for later clarification.
- The key disputed phrase in Finding of Fact 46 describes Lummi U&A as "the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay," but does not define geographic breadth.
- Plaintiffs (Swinomish, Tulalip, Upper Skagit) sought a Paragraph 25(a)(1) determination that the Lummi have no U&A fishing rights in sheltered waters east of Whidbey Island (Skagit Bay, Saratoga Passage, Port Susan, Holmes Harbor, Possession Sound).
- District court granted summary judgment to Swinomish/Tulalip/Upper Skagit; Lummi appealed. Jamestown and Port Gamble S’Klallam sought reconsideration and cross-appeal about district-court language—later held moot.
- The Ninth Circuit applied the established two-step Muckleshoot framework (as recently explained in Sauk-Suiattle) to interpret Boldt’s decree and determine whether the 1974 record contains evidence that the Lummi historically fished the disputed east-of-Whidbey waters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Finding 46 grants Lummi U&A rights east of Whidbey Island | Swinomish/Tulalip/Upper Skagit: Finding 46 is ambiguous and the 1974 record contains no evidence Lummi fished those waters more than incidentally | Lummi: Finding 46’s language covers marine waters between Fraser River and Seattle, including east-of-Whidbey areas | Court: Ambiguous; applying two-step test, plaintiffs met burden—no record evidence of historical Lummi U&A east of Whidbey → Lummi has no U&A there |
| Proper interpretive standard for Paragraph 25(a)(1) challenges | Plaintiffs: Apply Muckleshoot two-step inquiry—text first, then ask whether moving party shows "no evidence" in the Boldt record to support the contrary reading | Lummi: urged broader reading of ambiguous language favoring inclusion | Court: Reaffirmed two-step Muckleshoot framework and place burden on moving party at step two; applied it here |
| Sufficiency of Lummi record evidence (Kinley testimony, 19th-c. affidavits, trade inferences) | Plaintiffs: Lummi’s cited materials are speculative, geographically non-specific, or post-treaty; insufficient to show U&A fishing east of Whidbey | Lummi: Pointed to Dr. Lane’s report, tribal answers, affidavits, and later testimony suggesting travel/fishing up to a range between Fraser River and Seattle | Court: Evidence is insufficient/speculative; Dr. Lane’s phrasing described a north–south range and did not identify east-of-Whidbey sites; moving tribes met burden |
| S’Klallam cross-appeal contesting district-court language about western thoroughfare | S’Klallam: District court phrasing could be read to allow other tribes to claim western-route fishing, harming S’Klallam U&A west of Whidbey | Others: No relief sought altering substantive judgment; clarification adequate via appeal disposition | Court: Moot—panel’s opinion already clarifies that neither Lummi III nor other precedent establishes that all tribes fished west of Whidbey; cross-appeal dismissed |
Key Cases Cited
- United States v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Judge Boldt’s Final Decision I establishing many tribes’ U&A findings and reserving paragraph 25 jurisdiction)
- United States v. Washington, 520 F.2d 676 (9th Cir. 1975) (affirming key aspects of Boldt decree)
- Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) (Supreme Court affirmation of Boldt’s treaty-share interpretation)
- United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (articulating and applying the two-step test for Paragraph 25 interpretation)
- Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) (declining to read ambiguous Boldt language to include east-of-Whidbey waters where record lacked evidence)
- United States v. Lummi Nation, 876 F.3d 1004 (9th Cir. 2017) (interpreting Finding 46 for waters west of Whidbey and applying record-focused analysis)
- Upper Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe, 66 F.4th 766 (9th Cir. 2023) (recent restatement of the Muckleshoot two-step framework used to review Boldt findings)