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Tulalip Tribes v. Suquamish Indian Tribe

United States Court of Appeals, Ninth Circuit

July 27, 2015

TULALIP TRIBES, Plaintiff-Appellant,
v.
SUQUAMISH INDIAN TRIBE, Defendant-Appellee, and UNITED STATES OF AMERICA; SWINOMISH TRIBAL COMMUNITY; JAMESTOWN S'KLALLAM TRIBE; LOWER ELWHA BAND OF KLALLAMS; PORT GAMBLE S'KLALLAM TRIBE; NISQUALLY INDIAN TRIBE; SKOKOMISH INDIAN TRIBE; UPPER SKAGIT INDIAN TRIBE; LUMMI NATION; NOOKSACK INDIAN TRIBE OF WASHINGTON STATE; WASHINGTON STATE DEPARTMENT OF FISH AND WILDLIFE; QUINAULT INDIAN NATION; STILLAGUAMISH TRIBE; PUYALLUP TRIBE; MUCKLESHOOT INDIAN TRIBE; QUILEUTE INDIAN TRIBE, Real-parties-in-interest

Argued and Submitted October 8, 2014, Seattle, Washington

Appeal from the United States District Court for the Western District of Washington. D.C. Nos. 2:05-sp-00004-RSM, 2:70-cv-09213-RSM. Ricardo S. Martinez, District Judge, Presiding.

SUMMARY [*]

Indian Law

The panel affirmed the district court's summary judgment in a treaty fishing rights case in which the Tulalip Tribes sought a determination of the scope of the Suquamish Indian Tribe's usual and accustomed fishing grounds and stations.

The Tulalip Tribes invoked the district court's continuing jurisdiction as provided by a permanent injunction entered in 1974. The panel affirmed the district court's conclusion that certain contested areas were not excluded from the Suquamish Tribe's usual and accustomed fishing grounds and stations, as determined by the district court in 1975.

Mason D. Morisset (argued) and Rebecca JCH Jackson, Morisset Schlosser Jozwiak & Somerville, Seattle, Washington, for Plaintiff-Appellant.

Howard G. Arnett (argued), Karnopp Peterson, Bend, Oregon; James Rittenhouse Bellis and Michelle Hansen, Office of the Reservation Attorney, Suquamish, Washington, for Defendant-Appellee.

Before: Richard A. Paez, Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Paez.

OPINION

Page 1130

Richard A. PAEZ, Circuit Judge:

In this treaty fishing rights case, the Tulalip Tribes (" the Tulalip" ) invoked the district court's continuing jurisdiction as provided by the permanent injunction in United States v. Washington, 384 F.Supp. 312, 419 (W.D. Wash. 1974) ( Decision I ), aff'd, 520 F.2d 676 (9th Cir. 1975), by filing a request for determination of the scope of the Suquamish Indian Tribe's (" the Suquamish" ) usual and accustomed fishing grounds and stations (" U& A" ). The Tulalip sought a determination that the Suquamish's U& A, as determined by Judge Boldt in 1975, does not include Possession Sound, Port Gardner Bay, the mouth of the Snohomish River, and the bays on the west side of Whidbey Island (Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus Bay). Ruling on cross-motions

Page 1131

for summary judgment, the district court concluded that Judge Boldt did not intend to exclude the contested areas from the Suquamish's U& A and entered judgment accordingly. Reviewing de novo, we affirm.

I. Background

There is a lengthy background to the complex litigation over the treaty fishing rights of the Indian tribes in Western Washington. The historical background of the treaty negotiations is detailed in Judge Boldt's Decision I. We will not repeat that background, although we do note several key facts to give context to the issues we address here. Although Judge Boldt's rulings resolved many key issues over the extent of the Indian tribes' treaty fishing rights, there have been a ...


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