Upper Skagit Indian Tribe v. Suquamish Indian Tribe, 2017 U.S. App. LEXIS 18438

Background

This dispute concerns whether Judge Boldt’s 1975 determination of the Suquamish Tribe’s “usual and accustomed” (U&A) fishing grounds included Chuckanut Bay, Samish Bay, and part of Padilla Bay (the “Contested Waters”), where the Upper Skagit has its own court-approved U&A.
In Decision I, Judge Boldt defined U&A broadly but excluded incidental trolling used only as travel; thereafter the Suquamish sought additional U&A recognition in Decision II and submitted Dr. Barbara Lane’s anthropological reports and testimony as primary evidence.
The Suquamish submitted a Claim Map divided into Areas One–Four; Judge Boldt’s written Order described the Suquamish U&A as marine waters from Vashon Island to the Fraser River (including Haro and Rosario Straits and Hood Canal) but did not expressly mention the Contested Waters in Area Three.
Upper Skagit filed a Request for Determination (2014) seeking a declaration that the Contested Waters are not included in the Suquamish U&A; the district court granted summary judgment to Upper Skagit, finding no evidence before Judge Boldt that Suquamish fished or traveled through the Contested Waters.
On appeal, the Ninth Circuit applied the two-step Muckleshoot framework: (1) whether Judge Boldt intended something other than the text’s apparent meaning (court treated step one as resolved by prior precedent), and (2) whether there was evidence before Judge Boldt that Suquamish fished/traveled in the contested areas. The court affirmed the district court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Judge Boldt intended to include the Contested Waters in the Suquamish U&A	Upper Skagit: Boldt did not intend to include Chuckanut, Samish, and part of Padilla Bay because the record lacks evidence Suquamish used those waters	Suquamish: The full 1975 record, lack of tribal objections, Joint Regulations, and references to travel through adjacent passages show Boldt intended inclusion	Held for Upper Skagit: No evidence before Boldt that Suquamish fished/traveled in Contested Waters; Boldt likely did not intend inclusion
Whether Dr. Lane’s reports/testimony support inclusion of Contested Waters	Upper Skagit: Dr. Lane’s Suquamish-specific testimony identifies fisheries on the western side of Puget Sound and near Duwamish/Snohomish—not the Contested Waters	Suquamish: General testimony that tribes fished while travelling to Fraser River and references to Hale(s) Passage imply inclusion	Held for Upper Skagit: Dr. Lane’s testimony contained no specific or sufficient general evidence placing Suquamish fishing/travel in the Contested Waters
Whether Judge Boldt’s failure to name the Contested Waters is dispositive	Upper Skagit: Omission supports non-inclusion given absence of evidentiary support	Suquamish: Omission is not dispositive; prior decisions show Boldt’s text sometimes omitted locations later held included	Held: Omission supports non-inclusion here when combined with lack of evidentiary support
Whether preclusion or post-1975 evidence (regulations or agreements) control	Upper Skagit: Prior subproceeding different waters; post-1975 regulations are not evidence of Boldt’s intent	Suquamish: Joint Regulations and extrajudicial agreements show contemporaneous understanding of scope	Held: Claim preclusion inapplicable; post-1975 regulations and private agreements are not evidence of Judge Boldt’s 1975 intent

Key Cases Cited

United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Judge Boldt’s initial U&A definitions and Decision I)
United States v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978) (Decision II; Suquamish prima facie U&A findings and Dr. Lane testimony)
Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015) (applied Muckleshoot framework and examined Dr. Lane evidence for waters west of Whidbey)
Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) (held Boldt did not intend to include Saratoga Passage and Skagit Bay in Suquamish U&A)
Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998) (establishes multi-step framework for reviewing Boldt U&A findings)
Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000) (framework and use of additional evidence to determine Boldt’s intent)
United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (scope-of-U&A principles and limitations on altering Boldt findings)
United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) (assessing absence of Dr. Lane testimony as evidence against inclusion)