9th Cir. Hammers Out Tribal Fishing Rights


     (CN) – A Ninth Circuit panel ruled the Suquamish Indian Tribe aren’t barred from fishing in areas the Tulalip Tribe claims as their own.
     Monday’s decision is the latest in a lengthy dispute going back to a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington that affirmed certain tribal fishing rights the state had been denying.
     Among numerous sub-proceedings, the Tulalip in 2005 requested a permanent injunction to prevent the Suquamish from fishing in waters outside their usual and accustomed grounds, an area determined by the Ninth Circuit in 1990.
     The Suquamish were accused in that case of fishing on the east side of Puget Sound, in violation of court order.
     U.S. District Judge Ricardo Martinez last year clarified “the geographic scope” of the Suquamish fishing grounds in Bolt’s decision. He said Bolt “relied heavily” on the reports of anthropologist Dr. Barbara Lane, who testified about various tribes’ traditional fishing areas in the 1974 case.
     Martinez said it was “nearly certain” Bolt intended to include Possession Sound and waters at the mouth of the Snohomish River as the Suquamish’s usual and accustomed grounds.
     “On the other hand, there is an absence of evidence in her report regarding Suquamish fishing in the waters on the eastern side of Whidbey Island such as Skagit Bay, Saratoga Passage and its connecting bays Penn Cove and Holmes Harbor, and Port Susan,” the July 29, 2013, ruling says. “Therefore the court finds that Judge Bolt did not intend to include these areas in the Suquamish U&A.”
     The Tulalip appealed.
     On Monday, a three-judge panel of the Ninth Circuit affirmed the lower court’s decision, finding The Tulalip “did not meet its burden to demonstrate that there was no evidence before Judge Bolt supporting Suquamish fishing or traveling through the western contested waters.”
     Circuit Judge Richard Paez, writing for the panel, said the panel drew on other litigation between tribes stemming from Bolt’s 1974 decision. To win exclusive fishing rights, the moving tribe must prove the encroaching tribe’s usual and accustomed fishing grounds were ambiguously determined by the court.
     The moving tribe must also show there was no evidence before Bolt that indicated the contested area was included or excluded in the determined fishing area of the encroaching tribe, Paez said.
     The panel found that there was evidence the Suquamish fished or traveled in the eastern and eastern waters contested by the Tulalip.
     “This general evidence, too, constitutes some evidence before Judge Bolt and supports the district court’s determination that Judge Bolt did not intend to exclude these contested bay areas from Suquamish’s U&A,” Paez wrote.
     Tulalip’s attorney, Mason Morisset did not immediately return a request for comment.
     In a statement, Suquamish Tribal Council chairman Leonard Forsman said, “”We appreciate the court’s work on this litigation and look forward to continuing our role as a co-manager of our treaty resources in our usual and accustomed fishing areas.”

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