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United States v. Skokomish Indian Tribe

United States Court of Appeals, Ninth Circuit

June 26, 2019

United States of America, Plaintiff,
v.
State of Washington, Defendant-Real Party in Interest, and Skokomish Indian Tribe, Petitioner-Appellant, Jamestown S'Klallam Tribe; Port Gamble S'Klallam Tribe; Squaxin Island Tribe, Respondents-Appellees, and Muckleshoot Indian Tribe; Quileute Indian Tribe; Hoh Tribe; Lummi Tribe; Quinault Indian Nation; Nisqually Indian Tribe; Suquamish Indian Tribe; Tulalip Tribes; Puyallup Tribe; Upper Skagit Indian Tribe; Swinomish Indian Tribal Community, Real-Parties-in-Interest.

          Argued and Submitted October 9, 2018 Seattle, Washington

          Appeal from the United States District Court for the Western District of Washington D.C. Nos. 2:17-sp-01-RSM, 2:70-cv-09213-RSM Ricardo S. Martinez, Chief Judge, Presiding

          Earle David Lees (argued), Shelton, Washington, for Petitioner-Appellant.

          David Babcock (argued), Kevin Lyon, and Sharon Haensly, Shelton, Washington, for Respondent-Appellee Squaxin Island Tribe.

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

          Joseph V. Panesko, Senior Counsel; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Real Party in Interest State of Washington.

          Before: Richard A. Paez and Carlos T. Bea, Circuit Judges, and C. Ashley Royal, [*] District Judge.

         SUMMARY[**]

         Tribal Matters / Fishing Rights

         The panel affirmed the district court's summary judgment in favor of respondents concerning the Skokomish Tribe's claim that it had "usual and accustomed" ("U&A") fishing rights in the Satsop River pursuant to United States v. State of Washington, 626 F.Supp. 1405 (1984), aff'd, 764 F.2d 670 (9th Cir. 1985) ("1984 Subproceeding").

         In United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974) ("Boldt Decision"), aff'd and remanded, 520 F.2d 676 (9th Cir. 1975), Judge Boldt issued a permanent injunction, which granted tribal fishing rights. It outlined the geography of the U&A locations of all the signatory tribes. The Boldt Decision set forth rules under which parties could invoke the court's continuing jurisdiction in future disputes.

         The panel held that the Skokomish Tribe failed to abide by the Boldt Decision's pre-filing requirements, which mandate that parties attempt to resolve their disputes at a meet and confer before initiating a request for determination. In particular, the Skokomish Tribe failed to discuss the "basis for the relief sought" under Paragraph 25(b)(1)(A) and "whether earlier rulings of the court may have addressed or resolved the matter in issue" under Paragraph 25(b)(1)(F). The panel held that a failure to abide by the pre-filing requirements articulated in Paragraph 25(b) was a failure to invoke the jurisdiction of this court, and the panel lacked the ability to proceed to the merits.

         The panel noted that if the Skokomish Tribe were to properly invoke the continuing jurisdiction of the Boldt Decision, their claims would be met with skepticism. The panel indicated that the Skokomish Tribe attempted an end-run around Judge Boldt's unambiguous determination of its U&A by arguing that the 1984 Subproceeding, dealing solely with primary fishing rights, somehow amended its U&A to include the Satsop River. The panel further noted that the 1984 Subproceeding had nothing to do with the boundaries of the Skokomish Tribe's U&A.

         Judge Bea concurred, and indicated that this court should reevaluate whether Judge Boldt's injunction has met its objectives, and whether the district court retains continuing jurisdiction.

         Judge Paez concurred in part and agreed that the Skokomish Tribe's claim over the Satsop River was not supported by the 1984 Subproceeding's holding in United States v. State of Washington, 626 F.Supp. 1405 (W.D. Wash. 1984), aff'd, 764 F.2d 670 (9th Cir. 1985). Judge Paez dissented in part and disagreed with the majority's conclusion that the court could not reach the merits of the Skokomish Tribe's claim because of its failure to comply with the pre-filing requirements. Judge Paez would hold that the district court had jurisdiction, and deny the Skokomish Tribe's claims on the merits.

          OPINION

          BEA, CIRCUIT JUDGE

         We have called it an "ongoing saga," Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir. 2017); remarked that "[w]e cannot think of a more comprehensive and complex case than this," Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1022 (9th Cir. 2010) (citation omitted); and "puzzled" over why this "Jarndyce and Jarndyce" of an equitable decree "remains in force at all," United States v. Washington, 573 F.3d 701, 709 (9th Cir. 2009) (quoting Charles Dickens, Bleak House 3 (1853)). And yet, here we are. Forty-five years after Judge Boldt issued an injunction in United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974) ("Boldt Decision"), aff'd and remanded, 520 F.2d 676 (9th Cir. 1975), it remains in effect. This case arises under it.

         The Skokomish Tribe claim that it has "usual and accustomed" fishing rights in the Satsop River because of this court's decision in United States v. State of Washington, 626 F.Supp. 1405, 1487 (1984), aff'd, 764 F.2d 670 (9th Cir. 1985) ("1984 Subproceeding"). As it happens, that decision concerned which tribe had primary fishing rights within an already-recognized "usual and accustomed" (U&A) territory; it did not concern the boundaries of the Skokomish's usual and accustomed fishing rights at all.

         The Squaxin Island Tribe, the Jamestown S'Klallam Tribe, the Port Gamble S'Klallam Tribe, and the state of Washington dispute the Skokomish's Satsop River claim. On cross-motions for summary judgment, the District Court for the Western District of Washington sided against the Skokomish and granted the respondents' motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         I. Historical Background

         Between 1854 and 1856, Isaac Stevens, then Governor of Washington Territory, executed eleven nearly identical treaties with Indian tribes in an area that would eventually become part of the state of Washington. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 666 (1979). Under the Stevens Treaties, tribes ceded approximately sixty-four million acres of land to the United States. Vincent Mulier, Recognizing the Full Scope of the Right to Take Fish Under the Stevens Treaties: The History of Fishing Rights Litigation in the Pacific Northwest, 31 Am. Indian L. Rev. 41 (2007). As consideration for such cession, the tribes secured small reservations for themselves and the right to take fish "in common with" non-Native Americans at "usual and accustomed" off-reservation locations. See, e.g., Treaty with the S'Klallam, 1855, 12 Stat. 933.

         The Skokomish Tribe-along with the Jamestown S'Klallam, Lower Elwha, and Port Gamble S'Klallam tribes-signed the Treaty of Point No Point with Governor Stevens in 1855. Id.[1] The Skokomish Tribe is primarily comprised of descendants of the Twana Tribe who, prior to treaty times, controlled the territory encompassed by the Hood Canal and its associated waterways. As with all of the Stevens Treaties, the Treaty of Point No Point stated that "[t]he right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States. . . ." Id.

         Unfortunately, "[t]he rapid white settlement in the Pacific Northwest" after the signing of the Stevens Treaties immediately interfered with "Indian attempts to fish at off-reservation sites." Donald L. Parman, Inconstant Advocacy: The Erosion of Indian Fishing Rights in the Pacific Northwest, 53 Pacific Hist. Rev. 163, 166 (1984). In the century that followed, the state of Washington enacted legislation and enforced fishing regulations in a manner detrimental to the tribes' fishing rights. See, e.g., Wash. Sess. Laws Ch. 247, Sec. 2 (1907); Init. Measure No. 77, State of Wash. Voting Pamphlet 5 (Nov. 6, 1934). As a result, the Indians' share of the overall catch in off-reservation sites plummeted. By 1958, for instance, Indian fishing accounted for 6% of the total salmon catch in the Puget Sound, while sports fishing accounted for 8.5% and commercial fishing accounted for 85.5%. United States v. Washington, 853 F.3d 946, 957 (9th Cir. 2017).

         Tensions between the tribes and the state of Washington intensified in the 1960s. Emboldened by the civil rights movement, more than fifty tribes organized a series of "fish- ins" in 1964. Bradley G. Shreve, From Time Immemorial: The Fish-In Movement and the Rise of Intertribal Activism, 78 Pacific Hist. Rev. 403, 415 (2009). The "fish-ins"- which made national news when the actor Marlon Brando was arrested for fishing with a drift net in the Puyallup River-were accompanied by a march on the state capital and a series of protests. Hunter S. Thompson, Marlon Brando and the Indian Fish-In, National Observer, March 9, 1964. The tribes sought to enforce the Stevens Treaties guarantee of their "right of taking fish" in their "usually and accustomed grounds."[2] The state of Washington argued that its fishing regulations were a proper exercise of its police power.

         The federal government filed suit on behalf of the tribes in 1970, and the ensuing litigation culminated in the Boldt Decision. Issued after nearly four years of litigation, the Boldt Decision held that the language "in common with" granted the tribes fifty percent of the harvestable number of fish in their "usual and accustomed" fishing grounds. Boldt Decision, 343.[3] It defined "usual and accustomed" as "every fishing location where members of a tribe customarily fished from time to time at and before treaty times . . . ." Id. at 332. Then, relying on considerable historical and anthropological evidence, it outlined the geography of the usual and accustomed (U&A) locations of all the signatory tribes. Id. at 332-33.

         The U&A of the Skokomish Tribe was announced in six paragraphs of the Boldt Decision that detailed the lineage, history, and customs of the tribe. Id. at 376-77. The court described the geographic boundaries of the Skokomish U&A as follows:

"The usual and accustomed fishing places of the Skokomish Indians before, during and after treaty times included all the waterways draining into Hood Canal and the Canal itself."

Id. at 377. The Skokomish admit there was no ambiguity in Judge Boldt's determination.

         Relevant here, Judge Boldt also issued a permanent injunction, articulating rules under which parties could invoke the court's continuing jurisdiction in future disputes. Id. at 419. Under Paragraph 25(a), later modified by an August 23, 1993 Order (Case No. 70-9213, Dkt. # 13599), parties are authorized to invoke the continuing jurisdiction of the court to determine:

(1) Whether or not the actions intended or effected by any party (including the party seeking a determination) are in ...

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