and Submitted August 30, 2017 Seattle, Washington
from the United States District Court for the Western
District of Washington D.C. No. 2:11-sp-00002-RSM Ricardo S.
Martinez, Chief District Judge, Presiding
E.Maynard (argued), Brian R.Matsui, and James R. Sigel,
Morrison & Foerster LLP, Washington, D.C.; Mary Neil,
Reservation Attorney, Lummi Nation, Bellingham, Washington;
Christopher J. Carr and James R. Sigel, Morrison &
Foerster LLP, San Francisco, California; for
Stephen H. Suagee (argued) and Samuel D. Hough, Office of
General Counsel, Lower Elwha Klallam Tribe, Port Angeles,
Washington, for Petitioner-Appellee Lower Elwha Klallam
Rasmussen (argued), Law Offices of Lauren P. Rasmussen,
Seattle, Washington, for Petitioners-Appellees Jamestown
S'Klallam Tribe and Port Gamble S'Klallam Tribe.
D. Morisset and Rebecca JCH Jackson, Morisset Schlosser
Jozwiak & Somerville, Seattle, Washington, for
Real-Party-in-Interest Tulalip Tribes.
G. Arnett and John W. Ogan, Karnopp Petersen, Bend, Oregon;
James Rittenhouse Bellis, Suquamish Tribe, Suquamish,
Washington; for Real-Party-in-Interest Suquamish Indian
Before: Michael Daly Hawkins and M. Margaret McKeown, Circuit
Judges, and Elizabeth E. Foote, [*] District Judge.
panel reversed the district court's summary judgment in
favor of the Lower Elwha Klallam Indian Tribe, and held that
the disputed waters west of Whidbey Island, Washington were
included in the Lummi Nation's right of taking fish at
usual and accustomed grounds and stations ("U &
A") under the 1855 Treaty of Point Elliot.
United States v. Washington, 384 F.Supp. 312 (W.D.
Wash. 1974), Judge Boldt developed a framework for
determining U & As for Indian signatories to the Treaty.
In Finding of Fact 46, Judge Boldt stated that the U & A
for the Lummi Indians "included the marine areas of
Northern Puget Sound from the Fraser River south to the
present environs of Seattle."
determine whether the waters west of Whidbey Island were
included in the Lummi's U & A, the panel followed a
two-step procedure. At step one, the panel held that Fact 46
was ambiguous because it did not clearly include or exclude
the disputed waters. At step two, the panel examined the
record before Judge Boldt to clarify his intent, and
concluded that the district court erred in excluding the
disputed waters from the Lummi's U & A. The panel
held that the district court improperly imposed a heightened
standard in holding that logic or linguistics needed to
"compel the conclusion" that contested waters be
included in a U & A.