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Muckleshoot Indian Tribe v. Tulalip Tribes

United States Court of Appeals, Ninth Circuit

December 18, 2019

Muckleshoot Indian Tribe, Plaintiff-Appellant,
Tulalip Tribes; Suquamish Tribe; Puyallup Tribe; Squaxin Island Tribe, of the Squaxin Island Reservation; Nisqually Tribe; Swinomish Indian Tribal Community; State of Washington; Jamestown S'klallam Tribe; Port Gamble S'klallam Tribe; Skokomish Indian Tribe, Respondents-Appellees, and Hoh Indian Tribe; Lummi Indian Nation; Quileute Indian Tribe; Quinault Indian Nation; Stillaguamish Tribe of Indians; Sauk-Suiattle Indian Tribe, Real-Parties-in-Interest.

          Argued and Submitted October 22, 2019 Seattle, Washington

          Appeal from the United States District Court for the Western District of Washington D.C. No. 2:17-sp-00002-RSM Ricardo S. Martinez, District Judge, Presiding

          David R. West (argued), Donald B. Scaramastra, and Margaret A. Duncan, Garvey Schubert Barer, P.C., Seattle, Washington; Richard Reich, Robert L. Otsea, Jr., Laura Weeks, and Ann E. Tweedy, Office of the Tribal Attorney, Muckleshoot Indian Tribe, Auburn, Washington; for Plaintiff-Appellant.

          Mason D. Morisset, Morisset, Schlosser, Jozwiak, and Somerville, Seattle, Washington, for Respondent-Appellee Tulalip Tribes.

          John W. Ogan (argued), Law Office of John W. Ogan, Sisters, Oregon; James Rittenhouse Bellis, Office of Suquamish Tribal Attorney, Suquamish, Washington; for Respondent-Appellee Suquamish Indian Tribe.

          Samuel J. Stiltner and John Howard Bell, Law Office, Puyallup Tribe, Tacoma, Washington, for Respondent-Appellee Puyallup Tribe.

          Sharon Haensly, David Babcock, and Kevin Lyon, Squaxin Island Legal Department, Shelton, Washington, for Respondent-Appellee Squaxin Island Tribe.

          Jay J. Manning and Meghan E. Gavin, Cascadia Law Group PLLC, Olympia, Washington, for Respondent-Appellee Nisqually Indian Tribe.

          James M. Jannetta and Emily Haley, Office of the Tribal Attorney, La Conner, Washington, for Respondent-Appellee Swinomish Indian Tribal Community.

          Michael S. Grossmann and Joseph V. Panesko, Assistant Attorneys General; Office of the Washington Attorney General, Olympia, Washington; for Respondent-Appellee State of Washington.

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

          Earle David Lees, III, Skokomish Indian Tribe, Shelton, Washington, for Respondent-Appellee Skokomish Indian Tribe.

          Craig J. Dorsay and Lea Ann Easton, Dorsay & Easton LLP, Portland, Oregon, for Real-Party-in-Interest Hoh Indian Tribe.

          Mary Michelle Neil, Lummi Indian Nation, Office of the Reservation Attorney, Bellingham, Washington, for Real-Party-in-Interest Lummi Indian Nation.

          Lauren J. King, Attorney, Foster Pepper PLLC, Seattle, Washington, for Real-Party-in-Interest Quileute Indian Tribe.

          Eric J. Nielsen, Counsel, Nielsen, Broman & Koch PLLC, Seattle, Washington, for Real-Party-in-Interest Quinault Indian Nation.

          Scott Mannakee, Stillaguamish Tribe of Indians, Arlington, Washington; Rob Roy Smith, Kilpatrick Townsend & Stockton, LLP, Seattle, Washington; for Real-Party-in-Interest Stillaguamish Tribe of Indians.

          Jack Warren Fiander and Elmer Jerome Ward, Sauk-Suiattle Indian Tribe, Office of Legal Counsel, Darrington, Washington, for Real-Party-in-Interest Sauk-Suiattle Indian Tribe.

          Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Jed S. Rakoff, [*] District Judge.

         SUMMARY [**]

         Tribal Matters / Fishing Rights

         The panel affirmed the district court's dismissal due to lack of jurisdiction of a subproceeding brought by Muckleshoot Indian Tribe concerning usual and accustomed fishing grounds and stations ("U&As") in western Washington established under the "Stevens Treaties."

         In United States v. Washington (Final Decision #1), 384 F.Supp. 312, 330 (W.D. Wash. 1974), aff'd and remanded, 520 F.2d 676 (9th Cir. 1975), Judge Boldt made detailed findings of facts and conclusions of law defining the U&As, and issued a permanent injunction that retained jurisdiction in implementing the decision's decree.

         In Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1359-60 (9th Cir. 1998) ("Muckleshoot 1"), the Court held that where a tribe's U&As have been "specifically determined" in Final Decision #1, continuing jurisdiction under the permanent injunction resides only in Paragraph 25(a)(1). In Subproceeding 97-1, this Court affirmed District Judge Rothstein's holding that the Muckleshoot's saltwater U&As were limited to Elliot Bay. United States v. Muckleshoot Indian Tribe, 235 F.3d 429, 438 (9th Cir. 2000). In Subproceeding 17-2 at issue in this case, the Muckleshoot sought under Paragraph 25(a)(6) to expand their U&As to certain areas of Puget Sound beyond Elliot Bay.

         The panel noted that in order for a tribe to bring an action under Paragraph 25(a)(6), the U&A at issue must have not been "specifically determined" by Final Decision #1. As a threshold issue, the panel held that the district court properly held that Muckleshoot's saltwater U&As in Puget Sound had already been "specifically determined" in their entirety by Judge Boldt, and accordingly, there was no continuing jurisdiction under Paragraph 25(a)(6) to entertain the present subproceeding. The panel did not reach the other issues raised on appeal.

         Dissenting, Judge Ikuta stated that the majority's opinion frustrated Judge Boldt's rulings in Final Decision #1 that his specific determinations were not comprehensive, and that tribes could invoke the court's continuing jurisdiction to determine additional U&A fishing locations.


          RAKOFF, ...

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