Tulalip Tribes v. Suquamish Indian Tribe
2015 U.S. App. LEXIS 13015
9th Cir.2015Background
- The case is a subproceeding under the continuing jurisdiction retained in United States v. Washington, in which Judge Boldt recognized Treaty Tribes’ reserved fishing rights at "usual and accustomed" (U&A) grounds off-reservation.
- The Tulalip Tribes requested a court determination that certain marine areas around Whidbey Island and nearby waters (including Possession Sound, Port Gardner Bay, the mouth of the Snohomish River, and several bays on west Whidbey) are not within the Suquamish Tribe’s U&A as previously defined by Judge Boldt.
- Judge Boldt previously defined the Suquamish U&A to cover marine waters of Puget Sound from Vashon Island to the Fraser River (Decision II), but several post-judgment subproceedings have sought clarification of specific waters.
- The district court granted summary judgment excluding some areas (Saratoga Passage, Skagit Bay, Penn Cove, Holmes Harbor, Port Susan) but held that Possession Sound, Port Gardner, the Snohomish mouth, and the west-Whidbey bays lie within the Suquamish U&A.
- The Tulalip appealed only the district court’s conclusion that Judge Boldt did not intend to exclude the contested eastern (Possession Sound, Port Gardner, Snohomish mouth) and western (Admiralty, Mutiny, Useless, Cultus Bays) waters from Suquamish U&A.
- The Ninth Circuit reviewed de novo on summary judgment and applied the two-step Muckleshoot/Upper Skagit framework: (1) whether Judge Boldt’s language was ambiguous or intended differently; (2) whether there was evidence before Judge Boldt showing inclusion or exclusion of the contested area.
Issues
| Issue | Plaintiff's Argument (Tulalip) | Defendant's Argument (Suquamish) | Held |
|---|---|---|---|
| Whether Judge Boldt intended to exclude the contested waters from Suquamish U&A | Boldt’s geographic language should be read to limit Suquamish U&A to the west side of Puget Sound and exclude the listed eastern and west-Whidbey waters | Judge Boldt did not intend to exclude these waters; his U&A language and the evidence before him support inclusion | Court holds Tulalip failed to meet burden; Boldt did not intend to exclude the contested waters |
| Whether there was no evidence before Judge Boldt that Suquamish fished or traveled in the eastern contested waters (Snohomish mouth, Possession Sound, Port Gardner) | There was no evidence that Suquamish used or traveled to those eastern waters, so they should be excluded | Historical and anthropological evidence (Dr. Lane) shows Suquamish traveled to and fished at large mainland river mouths, including Snohomish, and adjacent marine areas | Court finds evidence before Judge Boldt that Suquamish fished/traveled in eastern contested waters; Tulalip failed prong two |
| Whether there was no evidence before Judge Boldt that Suquamish fished or traveled in the west-Whidbey bays (Admiralty, Mutiny, Useless, Cultus) | These bays are on the east side of Puget Sound and therefore outside Suquamish U&A | Dr. Lane’s reports indicate possible Suquamish use of west Whidbey and that deeper saltwater thoroughfares were used for travel and fishing; Suquamish would have passed/fished there en route to Fraser River | Court finds evidence before Judge Boldt of travel/use; Tulalip did not meet burden to show absence of evidence |
| Whether Upper Skagit precludes Suquamish inclusion of any east-of-Whidbey areas | Tulalip contends Upper Skagit supports exclusion of east-side waters generally | Suquamish and panel distinguish Upper Skagit: that decision concerned different, more northerly waters and did not foreclose inclusion of river mouths or adjacent bays shown in the record | Court distinguishes Upper Skagit and holds it does not control these particular contested waters |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Decision I) (establishing tribes’ reserved fishing rights at "usual and accustomed" grounds and retaining continuing jurisdiction)
- United States v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978) (Decision II) (further defining Suquamish U&A boundaries)
- Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) (articulating two-step framework for assessing whether Judge Boldt intended language differently and whether evidence before Boldt showed use)
- Muckleshoot Indian Tribe v. [Various decisions], 235 F.3d 429 (9th Cir. 2000) (discussing appellate review of subproceedings and framework applied to U&A disputes)
- United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) (addressed tribal succession issues; language about east-side fishing did not decide U&A boundaries in later subproceedings)