(CN) - Puget Sound's Saratoga Passage and Skagit Bay are not within the Suquamish Tribe's historical fishing grounds in Washington state, the 9th Circuit ruled, upholding a ruling for the Upper Skagit Indian Tribe.
The Upper Skagit Tribe had asked the court to specify whether the disputed areas were part of the Suquamish Tribe's "usual and accustomed grounds and stations" for salmon fishing. Those grounds were outlined in a 1974 decision by the late Judge George Boldt, who determined each local tribe's fishing grounds based largely on the testimony and reports of anthropologist Barbara Lane.
U.S. District Judge Ricardo Martinez ruled that Boldt did not intend to include Saratoga Passage and Skagit Bay, on the eastern side of Whidbey Island, within the Suquamish's fishing area. The tribe allegedly began fishing the area in 2004.
The three-judge appellate panel in Seattle agreed with Judge Martinez, finding no evidence that the Suquamish historically fished or traveled in those waters.
"Accordingly, we agree with the district court that Judge Boldt did not intend for Suquamish's [historical fishing grounds] to include Skagit Bay and Saratoga Passage," Judge Pamela Rymer wrote for the majority.
Rymer added that Lane, on whose work Boldt relied, "provided no evidence that the tribe fished or traveled in Saratoga Passage or Skagit Bay."
Lane's report "listed places where the Suquamish traditionally took fish, but neither Saratoga Passage nor Skagit Bay was among them," Rymer wrote.
The Suquamish had argued that Boldt "unambiguously" included the contested areas within their fishing grounds under the sweeping term "marine areas of northern Puget Sound," an argument picked up by Judge Andrew Kleinfeld in a dissenting opinion.
"In my view, the better reading of 'Puget Sound' is that it means 'Puget Sound,'" Kleinfeld wrote. "We are engaged in the odd activity of deciding what a long deceased judge thought was accurate history about what happened 150 years earlier. We cannot retry the case. The best way to determine what the judge thought is the language he used. He said 'Puget Sound.'"
Judge Boldt had defined "usual and accustomed grounds and stations" as "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."
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