(CN) – The Ninth Circuit granted the Lummi Nation of Washington state a victory by expanding the tribe’s marine territory in a decades-old dispute over fishing rights.
The three-judge panel overturned a federal judge's decision excluding the Lummi from fishing in waters west of Whidbey Island, finding the territory was part of the tribe’s usual and accustomed grounds under the 1855 Treaty of Point Elliot.
The underlying dispute stems from a 1974 injunction by U.S. District Judge George Hugo Boldt in U.S. v. Washington. That ruling affirmed certain tribal fishing rights the state had been denying. The Lummi filed numerous challenges to the area Boldt determined was their usual and accustomed, or U&A, fishing grounds.
In 2011, neighboring S’Klallam tribes asked U.S. District Judge Ricardo Martinez to determine whether the Lummi had the right to fish in the waters.
Martinez found the disputed territory was not part of the Lummi’s usual and accustomed fishing area. The Lummi appealed, but Martinez reached the same conclusion on remand.
The Lummi appealed again, and the Ninth Circuit reversed Martinez’s ruling on Friday.
According to the panel, “there is no doubt” the Lummi traveled through waters west of Whidbey Island during their seasonal migrations from the San Juan Islands to Seattle. The opinion, written by U.S. Circuit Judge M. Margaret McKeown, said an anthropologist consulted on the original dispute tied the Lummi’s travel to fishing.
The panel rejected the S’Klallam’s argument that the Lummi only used the waters as thoroughfares to other areas and that fishing was incidental.
The Ninth Circuit has once more tossed the case back to Martinez for further proceedings.
U.S. District Judge Elizabeth Foote, sitting by designation from the Western District of Louisiana, and Circuit Judge Michael Hawkins also sat on the panel.
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