Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Thursday, April 25, 2024 | Back issues
Courthouse News Service Courthouse News Service

Trial over tribal fishing rights begins in Washington federal court

The dispute hinges on whether the historical record proves the Stillaguamish people fished on the Puget Sound when the federal government and tribes reached a treaty in 1855.

(CN) — The Stillaguamish Tribe of Indians and the state of Washington went to bench trial in federal court Monday in a dispute over the extent of Stillaguamish fishing rights.

Opening arguments in the case previewed the case both sides will make in the coming weeks. The trial hinges on whether the Stillaguamish people relied on the marine resources of the Puget Sound and other waters north of Seattle when they and other tribes reached a lands settlement with the federal government through the Point Elliott Treaty in 1855.

Washington state and some other tribes involved in the suit argue the Stillaguamish only tangentially relied on marine fishing and lived primarily inland along the Stillaguamish River. The Stillaguamish Tribe counters there is evidence their ancestors fished off the mainland and regularly used marine resources.

The Stillaguamish Tribe called as its first witness Chris Friday, a Western Washington University professor specializing in the history of Indigenous people and the Pacific Northwest. During direct examination, Friday testified the archaeological and anthropological archives led him to the conclusion that the Stillaguamish fished in the interconnected waters off the mouth of the Stillaguamish River.

These archives included diaries, field notes and maps from Stillaguamish people and settlers.

Citing historical accounts from the time of the Point Elliott Treaty about the extent of the Stillaguamish territories, Friday testified that members of the Stillaguamish Tribe and even the federal government understood the tribe’s territory to extend to the shoreline.

In trial briefs, the Stillaguamish Tribe contends legal precedent has “held that fishing activity may be ‘presumed’ in a body of water that bordered a tribe’s village locations.”

Referencing artifacts from the area, Friday testified there was evidence of Stillaguamish villages at the delta where the river meets the Puget Sound, including cedar houses several hundred feet in length where multiple families resided, likely on a seasonal basis through the winter and early spring. Friday also said there was evidence that the Stillaguamish fished and gathered shellfish, at least seasonally, including on Camano Island and the immediately surrounding waters.  Another point emphasized in Friday’s testimony was the evidence of exogamy — marriage between members of different tribes who also fished in the area at the time of the Point Elliott Treaty.

The area and treaty are no strangers to questions over the fishing rights of Indigenous peoples. The Boldt Decision in 1974 affirmed the rights of tribes in Washington state to fish the waters under their treaties with the federal government. In 2017 and 2021, the Ninth Circuit ruled the Lummi Nation’s “usual and accustomed” fishing grounds expanded farther than federal courts had previously recognized, settling a decadeslong legal standoff.

The Stillaguamish case is being heard by Chief U.S. District Judge Ricardo Martinez, a George W. Bush appointee in the Western District of Washington. Martinez had previously ruled against the Lummi Nation’s fishing rights before the Ninth Circuit reversed his decision.

In a sample of what is to come in the trial, lawyers for Washington state and the respondent tribes used their opening statements to impugn Friday’s credibility, casting his testimony as storytelling rather than scholarship. They insisted the focus should be on the evidence of actual fishing, not merely the tribe’s presence near the waters at issue.

They also blasted the Stillaguamish for bringing its case so long after other tribes began to seek to exercise fishing rights. The respondents argued Friday decontextualized testimony and research from acclaimed anthropologist Barbara Lane, whose expertise contributed to the Boldt Decision. Lane passed away in 2013.

The Stillaguamish Tribe’s attorney Rob Roy Smith called efforts to cast the Stillaguamish as a tribe centered solely on the river rather than marine fisheries an “erasure of a critical piece Stillaguamish culture and identity.”

“This is a case 167 years in the making,” Smith said. “It’s about the Stillaguamish people finally being able to tell their story about who they are.”

Testimony continues Tuesday. The trial is expected to conclude April 14.

Categories / National, Trials

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.