UNITED STATES OF AMERICA, Plaintiff, and LOWER ELWHA KLALLAM INDIAN TRIBE; JAMESTOWN S'KLALLAM TRIBE; PORT GAMBLE S'KLALLAM TRIBE, Petitioners-Appellees,
LUMMI NATION, Respondent-Appellant, and STATE OF WASHINGTON, Defendant
Argued and Submitted April 11, 2014, Seattle, Washington
Appeal from the United States District Court for the Western District of Washington. D.C. Nos. 2:11-sp-00002-RSM, 2:70-cv-09213-RSM. Ricardo S. Martinez, District Judge, Presiding.
The panel reversed the district court's summary judgment entered in favor of the Klallam Tribe in a case involving a fishing territory dispute between two sets of Indian Tribes, brought pursuant to the continuing jurisdiction of the 1974 " Boldt Decree" issued by the U.S. District Court for the Western District of Washington.
The panel held that the issue of whether the waters immediately to the west of northern Whidbey Island were part of the Lummi Tribe's usual and accustomed fishing grounds had not yet been determined. The panel held, therefore, that the district court erred in concluding that the issue was controlled by law of the case. The panel remanded to the district court for further proceedings.
Judge Rawlinson dissented because she would hold that the district court properly applied the law of the case doctrine where the fishing rights issue was addressed in the prior opinion Lower Elwha Band of S'Klallams v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000).
Sam D. Hough and Stephen Hayes Suagee (argued), Office of General Counsel, Lower Elwha Klallam Tribe, Port Angeles, Washington, for Petitioner-Appellee Lower Elwha Klallam Indian Tribe.
Lauren Patricia Rasmussen (argued), Law Offices of Lauren P. Rasmussen, Seattle, Washington, for Petitioner-Appellee Jamestown S'Klallam Tribe and Port Gamble S'Klallam Tribe.
Hyland Hunt and Pratik A. Shah (argued), Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Mary Michelle Neil, Lummi Indian Nation, Office of the Reservation Attorney, Bellingham, Washington; Daniel Alan Raas, Raas, Johnsen & Stuen, P.S., Bellingham, Washington, for Respondent-Appellant.
Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.
BEA, Circuit Judge.
This appeal involves a fishing territory dispute between two sets of Indian tribes: the Lower Elwha S'Klallam Tribe, the Jamestown S'Klallam Tribe, and the Port Gamble S'Klallam Tribe (" the Klallam" ) on the one hand, and the Lummi Nation Tribe (" the Lummi" ) on the other. The appeal arises from a proceeding brought by the Klallam pursuant to the continuing jurisdiction
of a 1974 decree issued by the U.S. District Court for the Western District of Washington (" Boldt Decree" ), and it involves a dispute over the geographic scope of the Lummi's " usual and accustomed fishing grounds" (" U& A" ). We must decide if a prior Ninth Circuit opinion has already decided whether the waters immediately to the west of northern Whidbey Island are a part of the Lummi's U& A such that the question is controlled by law of the case. We conclude that the question has not yet been determined and therefore reverse and remand.
Factual and Procedural Summary
This case arises from a request for determination brought by the Klallam in 2011 to determine the fishing rights of the Lummi under the 1855 Treaty of Point Elliott. The Klallam initiated this subproceeding for a determination of rights, declaratory relief, and to prohibit the Lummi from fishing in certain waters.
On January 22, 1855, the Lummi entered into the Treaty of Point Elliott with the United States. 12 Stat. 927 (1855). This treaty " secured" to the Lummi " [t]he right of taking fish at usual and accustomed grounds and stations." Id. at 928. The " usual and accustomed grounds and stations" is abbreviated throughout this opinion as " U& A."
In 1970 the United States, as trustee for all the treaty tribes including the Klallam and the Lummi, filed suit in the Western District of Washington to obtain an interpretation of the Treaty of Point Elliott and an injunction protecting treaty fishing rights from interference by Washington State. Both the Klallam and the Lummi intervened as plaintiffs. In 1974, Judge Boldt issued extensive findings of fact, conclusions of law, and a permanent injunction. United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974) (" Boldt Decree" ).
The Boldt Decree defined the Treaty of Point Elliott's reference to " usual and accustomed grounds and stations" as meaning " every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters[.]" Id. at 332.
The Boldt Decree discussed the Lummi in particular. Id. at 360-62. Judge Boldt found that the Lummi fished using reef nets " on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point." Id. at 360. In addition, Judge Boldt found that the Lummi " trolled the waters of the San Juan Islands for various species of salmon." Id. Moreover, " [i]n addition to the reef net locations listed above, the [U& A] of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle[.]" Id. at 360.
Judge Boldt also reserved the " continuing jurisdiction" to hear future subproceedings regarding " the location of any of a tribe's [U& A] not specifically determined by" the Boldt Decree. Id. at 419.
1. Subproceeding 89-2
On March 3, 1989, in response to the Lummi's continued fishing of certain disputed waters, the Klallam invoked this continuing jurisdiction of the Western District of Washington to initiate Subproceeding 89-2. In this Subproceeding, the Klallam filed a request for determination that " the [U& A] of the Lummi Tribe does not include ...