Native Fishing Rights Headed to Trial

     SEATTLE (CN) – The Makah Tribe can pursue its claim against the Quileute and Quinault tribes over disputed fishing grounds in a bench trial in March, a federal judge ruled.
     All three tribes live on the Olympic Peninsula.
     The case stems from a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington, which affirmed certain tribal fishing rights the state had been denying. The Makah filed a subproceeding in 2009 to determine the usual and accustomed fishing ground of the Quileute and Quinault, claiming the tribes were fishing beyond their boundaries and taking the Makahs’ catch.
     The Quileute and Quinault asked U.S. District Judge Ricardo Martinez for summary judgment, claiming the Makahs’ claim is barred by certain equitable defenses. The Makah also sought partial summary judgment, saying the equitable defenses do not prevent determination of the fishing territory.
     Martinez rejected the equitable defenses of laches, judicial estoppel and acquiescence and found the defenses “do not preclude a determination of the usual and accustomed fishing grounds and stations of the Quileute Indian Tribe and Quinault Indian Nation in the Pacific Ocean.”
     The Quileute and Quinault may not use laches as a defense – an unreasonable delay by the plaintiff – because the Makah had been trying to work out a solution to the dispute for years.
     “Far from sleeping on their rights, the Makah actively worked with the Quinault and Quileute since the 1980’s to obtain amicably negotiated solutions to conflicts over their respective ocean fisheries, all the while preserving their right to seek adjudication in this Court should informal methods of dispute resolution reach an impasse,” Judge Martinez wrote in his Feb. 18 order.
     The two tribes also failed to show judicial estoppel because the Makah never took a clearly inconsistent position from its earlier positions. The test for acquiescence is similar to laches, and Martinez again ruled against the Quileute and Quinault.
     “It remains the case that allowing for equitable defenses could very well have the unfortunate consequence of compelling treaty tribes to flood the Court with requests for immediate adjudication of disputes for fear of losing fishing rights through prescription. At the same time, the efforts of tribes to informally resolve intertribal grievances without Court intervention would be sorely undermined,” Martinez wrote.
     The Quileute and Quinault also asked the court to define the burden of proof. The tribes wanted the court to place the burden of proof on the Makah, which Martinez denied. He deferred ruling on the precise standard of proof the Quileute and Quinault will have to meet pending hearing at the bench trial.
     The trial is to start March 2.

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