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United States v. Lummi Nation

United States Court of Appeals, Ninth Circuit

December 1, 2017

United States Of America, Plaintiff,
v.
Lummi Nation, Respondent-Appellant, and Lower Elwha Klallam Indian Tribe; Jamestown S'Klallam Tribe; Port Gamble S'Klallam Tribe, Petitioners-Appellees, and State of Washington, Defendant, Swinomish Indian Tribal Community; Suquamish Tribe; Makah Indian Tribe; Stillaguamish Tribe; Upper Skagit Indian Tribe; Nisqually Indian Tribe; Tulalip Tribes; Squaxin Island Tribe, Real-Parties-in-Interest.

          Argued and Submitted August 30, 2017 Seattle, Washington

         Appeal 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

          Deanne 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 Respondent-Appellant.

          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 Tribe.

          Lauren Rasmussen (argued), Law Offices of Lauren P. Rasmussen, Seattle, Washington, for Petitioners-Appellees Jamestown S'Klallam Tribe and Port Gamble S'Klallam Tribe.

          Mason D. Morisset and Rebecca JCH Jackson, Morisset Schlosser Jozwiak & Somerville, Seattle, Washington, for Real-Party-in-Interest Tulalip Tribes.

          Howard G. Arnett and John W. Ogan, Karnopp Petersen, Bend, Oregon; James Rittenhouse Bellis, Suquamish Tribe, Suquamish, Washington; for Real-Party-in-Interest Suquamish Indian Tribe.

          Before: Michael Daly Hawkins and M. Margaret McKeown, Circuit Judges, and Elizabeth E. Foote, [*] District Judge.

         SUMMARY[**]

         Fishing Rights

         The 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.

         In 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."

         To 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.

          OPINION

          ...


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