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Upper Skagit Indian Tribe v. Suquamish Indian Tribe

United States Court of Appeals, Ninth Circuit

September 22, 2017

Upper Skagit Indian Tribe, Plaintiff-Appellee,
v.
Suquamish Indian Tribe, Defendant-Appellant, Jamestown S'Klallam Tribe; Port Gamble S'Klallam Tribe; Tulalip Tribes of Washington, Real-Parties-In-Interest-Appellees, and Puyallup Tribe; Stillaguamish Tribe; Hoh Indian Tribe; Squaxin Island Tribe; Swinomish Indian Tribal Community; Skokomish Indian Tribe; Nisqually Indian Tribe; Lummi Nation; Makah Indian Tribe; State of Washington, Real-Parties-In-Interest.

          Argued and Submitted August 30, 2017

         Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief District Judge, Presiding D.C. Nos. 2:14-sp-00001-RSM, 2:70-cv-09213-RSM

          John W. Ogan (argued) and Howard G. Arnett, Karnopp Petersen, Bend, Oregon; James Rittenhouse Bellis, Suquamish Tribe, Suquamish, Washington; for Defendant-Appellant Suquamish Indian Tribe.

          David Stoller Hawkins (argued), Office of the Tribal Attorney, Upper Skagit Indian Tribe, Sedro Woolley, Washington; Andrew H. Salter, Teton Law Group LLC, Jackson, Wyoming; for Plaintiff-Appellee Upper Skagit Indian Tribe.

          Lauren Patricia Rasmussen (argued), Law Offices of Lauren P. Rasmussen, Seattle, Washington, for Real-Parties-in-Interest-Appellees Jamestown S'Klallam and Port Gamble S'Klallam Tribes.

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

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

         SUMMARY[**]

         Treaty Fishing Rights

         In litigation over the treaty fishing rights of the Indian tribes in Western Washington, the panel affirmed the district court's order granting summary judgment in favor of the Upper Skagit Indian Tribe and determining the geographic scope of the Suquamish Indian Tribe's usual and accustomed fishing grounds and stations.

         Interpreting Judge Boldt's determination, in 1975, of the Suquamish's usual and accustomed fishing grounds and stations, the panel followed the Muckleshoot analytical framework. At step one, the panel followed a prior case determining that Judge Boldt intended something different from the plain text of his findings. At step two, the panel concluded that the Upper Skagit showed that there was no evidence before Judge Boldt that the Suquamish fished or traveled through certain contested areas.

          OPINION

          HAWKINS, CIRCUIT JUDGE

         In this treaty fishing rights case, the Upper Skagit Indian Tribe ("the Upper Skagit") filed a Request for Determination as to the geographic scope of the Suquamish Indian Tribe's ("the Suquamish") usual and accustomed fishing grounds and stations ("U&A") as determined by Judge Boldt in 1975. Specifically, the Upper Skagit sought a determination that the Suquamish's U&A determinations do not include Chuckanut Bay, Samish Bay, and a portion of Padilla Bay where the Upper Skagit has its own court-approved U&A determinations ("the Contested Waters"). On cross-motions for summary judgment, the district court concluded that Judge Boldt did not intend to include the Contested Waters in the Suquamish's U&A determinations and, accordingly, granted summary judgment to the Upper Skagit. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, we affirm.

         I. ...


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