Reversal by 9th in Tribal Fishing Rights Dispute

     (CN) – Refusing to resolve a decades-old dispute over tribal fishing rights, the 9th Circuit found Tuesday that questions remain about the Lummi Nations’ territory.
     The fight stems from 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. The Lummi filed numerous challenges to the area Bolt determined was their usual and accustomed, or U & A, fishing grounds.
     More recent proceedings involve a petition by the S’Klallam tribes to have the Lummi held in contempt for fishing in the eastern portion of the Strait of Juan de Fuca. The area had previously been ruled off-limits for the Lummi. U.S. District Judge Ricardo Martinez sided with the S’Klallam in 2011 and said the issue “has been finally determined and may not be re-litigated.”
     The Lummi appealed to the 9th Circuit, which reversed 2-1 Tuesday.
     Noting that prior decisions in the case failed to explicitly define the disputed area, the majority said Martinez erred in finding the Lummi’s usual and accustomed fishing grounds had been determined
     “We hold that no prior decision in this case has yet explicitly or by necessary implication determined whether the waters immediately west of northern Whidbey Island are a part of the Lummi’s U&A,” Judge Carlos Bea wrote for the court.
     Geographical definitions of Lummi territory have been confused throughout the litigation, the court found, noting that one subproceeding, United States v. Lummi Indian Tribe, suggested “just the opposite” definition of previously determined fishing grounds.
     “Thus, each of Lummi Indian Tribe’s two holdings implies a different result,” Bea wrote. “Therefore, we conclude that Lummi Indian Tribe is ambiguous regarding whether the waters immediately to the west of northern Whidbey Island are included within the Lummi U&A, and accordingly that this issue has not yet been decided explicitly or by necessary implication.”
     Judge Johnnie Rawlinson’s dissent cites the 9th Circuit’s previous review of litigation in the case to determine if Lummi territory included certain waters west of Whidbey Island.
     “It stands to reason that any other portion of the waters west of Whidbey Island that were not included in our description remain excluded from the Lummi U&A,” Rawlinson wrote.
     “I continue in the belief that our prior conclusion is correct, and that the law of the case doctrine precludes further expansion of the Lummi U&A,” she added. “I would affirm the District Court.”

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