I

I No. 07-35061 I FOR THE NINTH CIRCUIT J(l_/I v,,_-t/L/)) I UNITED STATES OF AMERICA, ET AL., ",._r,_[ '" _ I Plaintiff and I UPPER SKAGIT TRIBE AND SWINOMISH INDIAN TRIBAL COMMUNITY Plaintiffs-Appellees, I V. I STATE OF WASHINGTON, ET AL., Defendant I and SUQUAMISH TRIBE I Defendant-Appellant

I On Appeal from the United States District Court for the Western District of Washington at Seattle Honorable Ricardo S. Martinez I (District Court No. 70-9213) (Subp. 05-3 - Upper Skagit and Swinomish Tribes v. Suquamish Tribe) I THE TULALIP TRIBES' RESPONSE BRIEF I Mason D. Morisset, WSBA #00273 I Rob Roy Smith, WSBA #33798 Morisset, Schlosser, Jozwiak & McGaw 1115 Norton Building, 801 Second Avenue I Seattle, WA 98104-1509 Telephone: (206) 386-5200 I Facsimile: (206) 386-7322 Attorneys for Appellee The Tulalip Tribes I I I CORPORATE DISCLOSURE STATEMENT I (Circuit Rule 26.1) I The Tulalip Tribes is a federally recognized Indian tribe. It has issued no I shares of stock to the public and has no parent company, subsidiary or affiliate that has done so. I I I I I I I I I I I TABLE OF CONTENTS

STATEMENT OF ISSUE PRESENTED ...... 1

STATEMENT OF CASE AND PROCEEDINGS BELOW ...... 1

A. Upper Skagit and Swinomish Request for Clarification ...... 2

B. Suquamish Muddles the Clarification Proceeding ...... 3

C. Order on Cross Motions for Summary Judgment ...... 7 STATEMENT OF FACTS ...... 8

A. Tulalip's Interest in This Appeal ...... 8

B. Suquamish's Usual and Accustomed Fishing Area ...... 9

C. Suquamish's Eastward Expansion Was Rejected by This Court in 1990 .... 10 STANDARD OF REVIEW ...... 12

SUMMARY OF ARGUMENT ...... 12 ARGUMENT ...... 13

I'. THE EVIDENCE IN RECORD DOES NOT SUPPORT SUQUAMISH EXPANSIONIST EFFORTS ...... 13

II. SUQUAMISH IS NOT ENTITLED TO EXERCISE FISHING RIGHTS ON THE EAST SIDE OF PUGET SOUND ...... 16 CONCLUSION ...... 18 TABLE OF AUTHORITIES

Cases

Delta Savings Bankv. United States, 265 F.3d 1017 (9th Cir. 2001) ...... 12 Muckleshoot lndian Tribe v. Lummi lndian Nation

141 F.3d 1355 (9th Cir. 1998) ...... 2, 4, 6

Muckleshoot Tribe v. Lummi Indian Tribe, 234 F.3d 1099 (9th Cir. 2000) ...... 6 Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002) ...... 12

Puyallup Indian Tribe v. Muckleshoot Tribe, 235 F.3d 429 (9th Cir. 2000) ...... 6 Thomas v. Bible, 983 F.2d 152 (9thCir. 1993) ...... 16

United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981) cert. denied, 454 U.S. 862 (1981) ...... 2

United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) ...... 16 United States v. Skokomish Tribe, 764 F.2d 670 (9th Cir. 1985) ...... 2, 4

United States v. Suquamish Tribe, 901 F.2d 772 (9th Cir. 1990) ...... passim United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) ...... 2, 14

United States v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978) ...... passim

United States v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985), aff'd United States v. Washington, 841, F.2d 317 (9th Cir. 1988) ...... 9, 15 Washington v. Washington State Comm 'l Passenger Fishing Vessel Assn.

443 U.S. 658 (1979) ...... 1

Federal Treaties

Treaty of Point Elliot, 12 Stat. 927 ...... 1

Federal Rules

Fed. R. App. P. 28(i) and the Circuit Advisory Note to Rule 28-4 ...... 12

Federal Rule of Civil Procedure 56(c) ...... 12 I

I STATEMENT OF ISSUE PRESENTED

I Whether the Suquamish Tribe may unilaterally expand its adjudicated usual I and accustomed treaty fishing area to include marine waters on the east side of I Paget Sound in contravention of this Court's 1990 ruling that Suquamish is "not entitled to exercise fishing rights on the east side of Puget Sound." United States v.

I Suquamish Tribe, 901 F.2d 772, 778 (9th Cir. 1990).

I STATEMENT OF CASE AND PROCEEDINGS BELOW I In 1854 and 1855, the United States negotiated treaties with Indian tribes west of Cascade Mountains and north of the Columbia River to obtain a cession of I Indian title to lands in that region. In these treaties, the tribes reserved numerous

I rights, including the preexisting right to take fish at all "usual and accustomed

I grounds and stations." See Washington v. Washington State Comm 'l Passenger I Fishing VesselAssn., 443 U.S. 658, 674-75 & n. 2, 21 (1979); see also Treaty of Point Elliot, 12 Stat. 927. The exercise of these fishing rights remains crucial to I the tribes' livelihood and survival. Id. at 664-67.

I In 1970, the United States initiated the underlying case, United States v.

I Washington, to vindicate the tribes' treaty fishing rights against unauthorized I regulation of treaty fishing by the state of Washington. At various stages of the proceedings, a number of treaty tribes intervened in the case as plaintiffs. Over the I course of years, the district court adjudicated the geographic scope of the tribes' I I

I "usual and accustomed grounds and stations," and retained continuing jurisdiction

I over the case to hear disputes concerning adjudications and other matters. United I States v. Washington, 384 F. Supp. 312, 419 (W.D. Wash. 1974) (as modified). This appeal arises out of that continuing jurisdiction and is part of the long I standing practice for bringing claims pursuant to the district court's continuing

I jurisdiction in United States v. Washington to clarify ambiguities concerning tribal

I fishing areas and resolve intertribal disputes over the scope and location of tribal I fishing areasJ A. Upper Skagit and Swinomish Request for Clarification

I On June 20, 2005, the Upper Skagit Tribe, later joined by the Swinomish

I Indian Tribal Community, filed a Request for Determination, the mechanism for I initiating new matters under the district court's continuing jurisdiction, to clarify the meaning of the phrase "marine waters of Puget Sound" as used in Suquamish's ! fishing area determination with respect to certain waters on the east side of Puget

I Sound. ER 0001-14. I I

i See, e.g., UnitedStates v. _ashington, 459 F. Supp. 1020, 1048 (W.D. I Wash. 1978); Muckleshoot Tribe v. Lummilndian Nation, 141 F.3d 1355 (9th Cir. 1998); United States v. Skokomish Tribe, 764 F.2d 670 (9th Cir. 1985); United I States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981), cert. denied, 454 U.S. 862 (1981). I I

I The specific waters at issue are the marine waters of Saratoga Passage and

I Skagit Bay, 2 although the basis for limiting the scope of Suquamish fishing apply I to all waters east of Whidbey Island. ER 0001-14; ER 91. B. Suquamish Muddles the Clarification Proceeding

I The request for clarification triggered a Suquamish campaign to short-circuit

I and subvert the established United States v. Washington thirty-six year old practice I for resolving fishing area clarification disputes. I First, Suquamish filed a motion to dismiss, without filing an answer, contending that the district court lacked subject matter jurisdiction, and that the

I action was barred by res judicata. ER 0334 (Dkt. No. 6). The district court denied

I the Suquamish motion to dismiss on September 6, 2005, and correctly concluded I that it has subject matter jurisdiction to clarify the scope of Suquamish's fishing areas because, while Suquamish's usual and accustomed fishing area determination I "is a final decision that cannot now be altered or amended. It may, however, be I I 2These waters are to the immediate north of the waters in the related case I United States v. Washington (Tulalip Tribes v. Suquamish Tribe), Ninth Cir.. No. 06-35185, concerning the same tribe, the same ambiguous language, similar geographic areas, and substantially similar legal questions but, disparate rulings I from the district court. Inexplicably, aider allowing the Upper Skagit ease to get to the merits, the district court took a 180 degree turn and ruled against Tulalip on similar procedural arguments raised by Suquamish in the context of Subproeeeding I 05-4 less than two months later. I !

I clarified. ''3 ER 0030-33. Importantly, the district court also found "there is

I sufficient ambiguity in Judge Boldt's use of the term 'Puget Sound' in describing I the Suquamish" usual and accustomed fishing area determination to require clarification. 4 ER 0031-32. The district court made clear that, because of the I

I 3Suquamish's opening brief attempts to confuse this issue by claiming that the clarification is actually a "re-adjudication" of its original 1975 determination or that the parties are seeking to defeat Suquamish's treaty rights. This is plainly not I the case, no more than it was when this Court clarified other ambiguous usual and accustomed determinations of other tribes. Compare Opening Br. at 7, 18-19, 29 I with e.g., Muckleshoot Tribe v. Lummi lndian Nation, 141 F.3d 1355, 1359 n.6 (9th Cir. 1998) ("Muckleshoot's motion did not propose to relitigate issues finally determined by the decrees but sought only clarification of two findings [concerning I the usual and accustomed fishing places of the Lummi] .... Although Muckleshoot's preferred interpretation may change the present application of the specified portions of the decree, the motion did not attempt to change the terms of I the decree or challenge its finality or validity."). Suquamish ignores the fact that clarification presents a separate claim than the underlying determination. As this I Court has found in prior appeals, "It]he rights attendant to a determination of the usual and accustomed fishing places of the Suquamish would remain intact" after clarification as to the scope of that right. United States v. Skokomish lndian Tribe, I 764 F.2d 670, 671 (9th Cir. 1985). Suquamish's Rule 50 discussion is wholly irrelevant. Opening Br. at 20-22.

I ' Suquamish disingenuously suggests that the district court never found that the term "Puget Sound" as used in Suquamish's adjudicated usual and accustomed I fishing area is "ambiguous." Opening Br. at 17-18 (claiming the district court committed reversible error because it "disregard[ed] the initial task of determining the existence of an ambiguity"). This claim is plainly refuted by the record. The I district court found that the term "Puget Sound" is "ambiguous" as it appears in Suquamish's adjudicated usual and accustomed fishing area determination in an I Order entered before the legal issues were presented for summary judgment. ER 0030-33. The "ambiguity" claim is also undercut by Suquamish assertions in prior subproceedings. ER 0322. The district court found that Suquamish's positions on I the main issue in this case were fundamentally inconsistent: "Suquamish have I themselves complained of 'the maddening imprecision and inconsistency with I

I "present live controversy between the parties because of ambiguity" in

I Suquamish's determination, Suquamish's arguments that the tribal claims were I barred by res judicata were not "persuasive." ER 0032. Suquamish did not seek reconsideration or an appeal of this order. I Second, after Suquamish's attempt at a Rule 12 dismissal was disposed of,

I Suquamish engaged in various efforts to contract and expand the scope of the case.

I Suquamish started to meddle with the scope of the clarification proceeding by I targeting Tulalip's participation. Suquamish filed a so-called Fed. R. Civ. P. 21 motion in an unprecedented attempt to silence Tulalip by seeking to "dismiss the I Tulalip Tribes as a party to the action." ER 0345 (Dkt. No. 152). Interestingly,

I Suquamish did not move to "dismiss" other tribes who had participated in the I Subproceeding and waited a year and half after Tulalip first participated in the I Subproceeding before attempting the motion. The district court denied the inappropriately labeled Rule 21 motion on December 5, 2006, confirming the well-

I established law of the case that Tulalip could participate fully in the clarification

I Subproceeding, and any other part of the case, because it is a party to the I which the Court, the parties, the witnesses, and the exhibits in this case have used the phrase 'Puget Sound.'" ER 0031 (Suquamish admitted as part of I Subproceeding 97-1 that "Puget Sound" is "ambiguous and indefinite."). After arguing for a limited interpretation of"Puget Sound" in one proceeding, Suquamish cannot now credibly argue for a new expansive usual and accustomed I area construction for itself that swells to include sheltered waters on the east side I of Puget Sound. I

I underlying original action. ER 0349 (Dkt. No. 187). Suquamish did not seek I reconsideration or an appeal of this order. I Suquamish next engaged in a battle over the evidence that could be reviewed by the district court to determine the meaning of the ambiguous phrase in I Suquamish's usual and accustomed fishing area determination. The district court

I correctly explained the evidence relevant to the question of clarification of I Suquamish's ambiguous usual and accustomed fishing area determination in its I December 19, 2006 Order. ER 0120-25. The district court cited to this Court's rulings in three United States v. Washington fishing area clarification cases - i Muckleshoot Tribe v. Lummilndian Tribe, 141 F.3d 1355, 1360 (9th Cir. 1988),

I Muckleshoot Tribe v. Lummilndian Tribe, 234 F.3d 1099 (9th Cir. 2000), and I Puyallup Indian Tribe v. Muckleshoot Tribe, 235 F.3d 429 (9th Cir. 2000) - which together stand for the proposition that relevant evidence in a clarification action is I the evidence that was before Judge Boldt at the time of the determination and

I "other evidence" that offers a contemporary understanding of the ambiguous term.

I Id. Suquamish did not seek reconsideration or an appeal of this order. 5 I Atter not objecting to or seeking reconsideration of this Order at the time, I Suquamish now attempts to sneak through the back door an appeal of the prior evidentiary ruling of the district court into this appeal of the subsequent summary judgment order. Opening Br. at 18-26 This is procedurally improper and ignores I the teaching of this Court from its past consideration of other usual and accustomed fishing area clarification cases. In all these cases, both the District i I

I Finally, Suquamish attempted to expand the scope of the case by inviting the I district court, in its summary judgment response brief, to not only clarify the I eastern boundary of Suquamish's adjudicated usual and accustomed fishing area as requested by the initiating parties, but also take the opportunity to define the

i western boundary of Suquamish's adjudicated fishing area. ER 0347 (Dkt. No.

I 157). The district court rejected this eleventh hour effort by Suquamish to I radically change the scope of the Upper Skagit and Swinomish tribes' case to I surreptitiously expand its fishing area to the west to include parts of the Strait of Juan de Fuca. ER 0349 (Dkt. No. 187).

I C. Order on Cross Motions for Summary Judgment I Each of the tribes filed cross motions for summary judg_nent concerning I whether the adjudicated usual and accustomed fishing area of the Suquamish Tribe includes marine waters east of Whidbey Island. ER 0045-57 (Suquamish); ER I 0068-90 (Upper Skagit); ER 0091-112 (Swinomish). Tulalip joined in the Upper

I Skagit and Swinomish motions. ER 0345 (Dkt. No. 148). On January 4, 2007, the I district court granted summary judgment in favor of Upper Skagit and Swinomish, I and denied the Suquamish summary judgment motion. The district court correctly Court and the Court of Appeals exercised their jurisdiction to rein in unilateral and I expansive interpretations of adjudicated usual and accustomed fishing areas. Suquamish's concerns with the evidence reviewed are also undercut by its own efforts to augment the record with the new testimony of a geographer taken during I the course of the Subproceeding. ER 0383-84. Suquamish cannot have it both ways. I I

I concluded that the marine waters of"Saratoga Passage and Skagit Bay, on the I eastern side of Whidbey, are not within the usual and accustomed fishing area [ ] I of the Suquamish Indian Tribe [ ]." ER 0015, ER 0029. 'In so holding, the district court extensively analyzed evidence in the Court's

I record to determine whether the phrase "marine waters of Puget Sound" as used in

I the Suquamish 1975 usual and accustomed fishing area adjudication included I specific marine waters on the east side of Puget Sound. The court noted that the evidence in the record was "insufficient to find that [Suquarnish] fished or traveled I in the waters on the eastern side of Whidbey Island" and that there was "nothing"

I in the record "that places Suquamish camps" on Whidbey and Camano Islands "or

I documents their fishing there." ER 0026-28. Suquamish's appeal followed. ER i 0352. STATEMENT OF FACTS I A. Tulalip's Interest in This Appeal

I Tulalip has a vital interest in this case and could be adversely affected by the

outcome. 6 Tulalip intervened as a full party to the ease in 1974. United States v.

Washington, 459 F. Supp. 1020, 1039 (W.D. Wash. 1978). Tulalip has been

6 Tulalip filed "Protective Motion for Clarification and/or Correction of Party Status on Docket" on June 15, 2007. This motion was necessitated by some confusion as to party status in this case. As explained in the "Protective Motion" papers, Tulalip should be considered an Appellee and may fully participate in this appeal. I

I ,-tctively involved in this Subproceeding since its initiation in June 2005. See, e.g., I ER 0335 (Dkt. No. 11), 0336 (Dict. No. 27), 0338 (Dkt. No. 50), 0341 (Dkt. No. I 88), and 0345 (Dkt. No. 148). Among other areas, Tulalip holds treaty-secured fishing rights in the marine waters on the east side of Puget Sound involved in this

I dispute. United States v. Washington, 459 F. Supp. 1020, 1060 (W.D. Wash.

I 1975); United States v. Washington, 626 F. Supp. 1405, 1531 (W.D. Wash. 1985), I a6r'd United States 1,. Washington, 841 F.2d 317 (9th Cir. 1988). Tulalip joined in the motions for summary judgment filed by the Upper Skagit Tribe and Swinomish I Indian Tribal Community, and participated in other briefing prior to appeal, and

I may appropriately be considered an Appellee in the instant appeal.

I Tulalip files this response to highlight issues of importance to Tulalip. I Without waiving any argument, Tulalip limits this response to hold Suquamish accountable to this Court's 1990 ruling that properly limited Suquamish's usual I and accustomed fishing area to the west side of Puget Sound.

I B. Suquamish's Usual and Accustomed Fishing Area I In 1975, the district court issued an order as a result of a dispute over fishing for herring. 7 United States v. Washington, 459 F. Supp. at 1048. The district court

held that Suquamish had made a "prima facie" showing that its fishing places were

in "the marine waters of Puget Sound from the northern tip of Vashon Island to the

7 The case had originally dealt only with salmon.

9 Fraser River including Haro and Rosario Straits, the streams draining into the I western side of this portion of Puget Sound and also Hood Canal." Id. at 1049. I This order was entered on April 18, 1975, five months before the court ruled on Tulalip's request for determination that first established its usual and accustomed

I areas. United States v. Washington, 459 F. Supp. at 1039.

I C. Suquamish's Eastward Expansion Was Rejected by This Court in 1990 I Initially, Suquamish understood the westward orientation of their I adjudicated usual and accustomed fishing area. For instance, Suquamish fishing regulations in 1975 excluded waters on the east side of Puget Sound. ER 0229-37.

I However, Suquamish's fishing practices have expanded with the passage of time,

I the orders of the courts notwithstanding. I Ten years after its fishing area was adjudicated, in May 1985, Suquamish filed Subproceeding 85-1 with the district court seeking to expand their fishing I places to inland waters on the east side of Puget Sound, including: Lake

I Washington, Lake Union, Lake Sammamish, the Black and Cedar rivers, and the I lower White (or Duwamish) River below its junction with the Green River. I Suquamish, 901 F.2d at 773 & n.2; ER 0248-52. These waters are south and east of the subject waters in this case. Suquamish abandoned their claims to inland

I waters on the east side of Puget Sound. This portion of their claim was dismissed

I in the district court with prejudice. ER 0250. I 10 I

i Suquamish then lost before this Court on its only remaining claim that it

I could fish on the east side of Puget Sound by virtue of its alleged status as political I successor-in-interest to the treaty-time Duwamish. Id. at 777. Reviewing all the evidence presented in support of Suquamish's claims, this Court noted: "[a]t the

I time to the Treaty of Point Elliott they did not fish in those areas, which were the

I usual and accustomed fishing places of the Duwamish." Id. at 774. The Court I determined that Suquamish are "not entitled to exercise fishing rights on the east side of Puget Sound." Id. at 778. I After 1990, Suquamish generally complied with the Ninth Circuit's

I interpretation of the extent of their fishing area. This changed in 2003 when

I Suquamish actively began to expand its fishing by attempting to fish on the east I side of Puget Sound without regard to the scope of its adjudicated fishing area or the Court's 1990 ruling. The areas to which Suquamish seek to expand their I fishing are in marine waters that Tulalip and other tribes rely on for fishing.

I The geographic scope of a tribe's adjudicated fishing area is an essential

I component of the treaty fishing right, providing a defined area within which tribal I members may lawfully exercise fishing rights and delineating co-management responsibilities. It makes little sense to argue that the phrase "marine waters of

Puget Sound," as Suquamish seems to do, can include the gigantic and vast areas

11 of Puget Sound (however expansively defined) where there is no evidentiary I support in the case record for such a claim. I STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Oliver v. Keller, 289 I F.3d 623,626 (9th Cir. 2002). The Court's review of cross motions for summary

I judgment is governed by the same standard used by the trial court under Federal I Rule of Civil Procedure 56(c). Delta Savings Bank v. United States, 265 F.3d I 1017, 1021 (9th Cir. 2001). Summary judgment maybe affirmed on any ground supported by the record. Keyser v. Sacramento City Unified Sch. Dist., 26.5 F.3d

I 741,750 (9th Cir. 2001).

I SUMMARY OF ARGUMENT I Pursuant to Fed. R. App. P. 280) and the Circuit Advisory Note to Rule I 28-4, the Tribe hereby joins and incorporates by reference the responses of the Upper Skagit and Swinomish tribes. The decision of the district court should be I affirmed. As a matter of law, the Court should find that (1) there is ambiguity in

I Suquamish's adjudicated usual and accustomed fishing area and (2) that Judge I Boldt did not intend to include waters east of Whidbey Island as part of Suquamish's adjudicated fishing area because there was no evidence in the record I before Judge Boldt to support Suquamish fishing in eastern waters. Nowhere in

I the recitation of Suquamish adjudicated fishing areas are waters on the east side of I 12 I Puget Sound referenced. The Court should reaffirm its 1990 decision that

I Suquamish is not entitled to exercise fishing rights on the east side of Puget Sound. I ARGUMENT I. THE EVIDENCE IN RECORD DOES NOT SUPPORT I SUQUAMISH EXPANSIONIST EFFORTS I Suquamish should not be permitted to fish outside of the geographic scope of its adjudicated usual and accustomed fishing area. The evidence in the record I before Judge Boldt at the time of his 1975 decision severely damages Suquamish's

I expansionist claims. Tellingly, Suquamish never explains the uncontroverted I evidence in the record, focusing instead on alleged tangential errors of law to try to I reverse the district court's decision. A review of Exhibit USA-73, Dr. Barbara Lane's Identity, Treaty Status and I Fisheries of the Suquamish Tribe of the Port Madison Reservation (Dec. 15, 1974),

I indicates that the Suquamish held "the west side of Puget Sound from near the I mouth of Hood Canal south to Vashon Island." ER 0259 (emphasis added). Dr. I Lane's report states there is "no clear evidence of winter villages on the west side of Whidbey Island." ER 0260. There is no discussion of the east side of Whidbey

I Island at all. ER 0260. Dr. Lane also notes that George A. Paige, the Indian Agent

I in charge of the Fort Kitsap reservation, noted in 1856 that the Suquamish "have I been engaged in fishing in the different bays and inlets on the west side of the Sound .... " ER 0272 (emphasis added). As these passages indicate, Suquamish I 13 I primarily fished the west side of Puget Sound. The maps associated with Dr.

Lane's report also show Suquamish fishing focused solely on the west side of

Puget Sound. ER 0280 (indicating locations where fish were caught); ER 0301

(indicating location of Suquamish place names). None of the maps show locations on the inland marine waters east of Whidbey Island. Id. The district court correctly reviewed this evidence and determined that it makes plain that Judge

Boldt did not intend to include waters on the east side of Puget Sound within

Suquamish's adjudicated fishing area. ER 0024-25.

Had Judge Boldt intended to include discernable water bodies on the east side of Puget Sound, including such areas as Saratoga Passage and Skagit Bay, in

Suquamish's adjudicated usual and accustomed fishing area determination he would have done so. Judge Boldt's silence is telling. The district court specifically mentioned bays and passages (rather than open marine waters) when such discrenable sheltered waters were to be included in other tribe's usual and accustomed area. See, e.g., United States v. Washington, 384 F. Supp. at 360

("Bellingham Bay"); id. at 371 ("Commencement Bay"); United States v.

Washington, 459 F. Supp. at 1049 ("Bellingham Bay, Chuckanut Bay, Birch Bay,

Semiahmoo Bay, and Semiahmoo Spit and surrounding waters"); id. ("Bellingham

Bay and Hale Passage"). Indeed, the Court need look no further than the Tulalip

Tribes' own adjudicated usual and accustomed fishing areas that are replete with

14 I

I specific references to diseernable water bodies in Washington. See, e.g., id. at

I 1058 ("Holmes Harbor and Saratoga Passage"); United States v. Washington, 626 I F. Supp. 1405, 1527 ("Port Susan inlet"). In contrast, only "Haro and Rosario Straits" and the streams draining into the "western side of Puget Sound" are I singled out in Suquamish's adjudicated usual and accustomed area determination:

I ld. at 1049. These areas are remote from the east side of the Sound.

I Try as they might to avoid this damning evidence in the record, Suquamish I cannot ignore evidence that locates Suquamish only on the west side of Puget Sound, miles south and west from the sheltered marine waters on the east side of I Whidbey Island that are the subject of this Subproceeding. Tulalip acknowledges

I the attraction of finding that the phrase "marine waters of Puget Sound" means

I every drop of salt water from Olympia to Canada. However, simplicity must give I way to the evidence in the record that makes clear the "maddening imprecision" with which the term "Puget Sound" has been used, as well as the plain fact that I

I ' In Subproceeding 97-1, Suquamish went gone so far as to limit its own usual and accustomed area in arguments before the court. Suquamish argued: "In I contrast to the facial breadth of Finding 76 [Muckleshoot], the usual and accustomed findings of other tribes, even those having a predominantly saltwater focus, contain references to specific place names that anchor their fishing places to I definite parts of the marine waters .... (Suquamish U&A finding referring to northern tip of Vashon Island, the Fraser River, and Hood Canal)." ER 0316-24. Suquamish cited their own usual and accustomed determination as an example of an area limited by geographic anchors. These "anchors," as Suquamish called them, do not refer to the east side of Puget Sound.

15 there is no evidence in the record that Suquamish fished on the waters east of

Whidbey Island at and before treaty time. The facts demonstrate that Suquamish's

adjudicated usual and accustomed area does not include the east side of Puget

Sound.

I lI. SUQUAMISH IS NOT ENTITLED TO EXERCISE FISHING

i RIGHTS ON THE EAST SIDE OF PUGET SOUND Suquamish's position in this case is inexplicable. This Court's ruling in

United States v. Suquamish Tribe, 901 F.2d 772 (9th Cir. 1990), cannot be clearer:

Suquamish is "not entitled to exercise fishing rights on the east side of Puget

I Sound." ld. at 778. This ruling rejecting Suquamish expansion represents the law I of the case and provides a basis to affirm the district court's order. Suquamish never mentions this decision.

I The "law of the case" doctrine posits that court decisions should continue to

I govern the same issues in subsequent stages in the same case. E.g., United States I v. Lummilndian Tribe, 235 F.3d 443, 452 (9th Cir. 2000); Thomas v. Bible, 983 I F.2d 152, 155 (9th Cir. 1993) (applying doctrine where the issue in question was resolved either explicitly or by necessary implication in the prior decision). This

I Court has already considered, and rejected, Suquamish expansion into waters on

I the; east side of Puget Sound in a case about Suquamish's efforts to "determine I their usual and accustomed fishing places on the eastern side of Puget Sound." This Court noted, referring to the same usual and accustomed determination of I 16 I I

I Judge Boldt at issue in this appeal, that "[t]he district court found that the

I Suquamish, a party to the Treaty of Point Elliott, held usual and accustomed I fishing places in several areas on the west side of Puget Sound." Suquamish Tribe, 901 F.2d at 773 (emphasis added). The Court then drew an important geographical I distinction, recognizing that "[u]nlike the Suquamish, who are located on the west

I side of Puget Sound, the Tulalip ... were made up of bands from the east side of

I file Sound." Id. at 775 n.9 (emphasis added). This led the Court to the inescapable I conclusion that the Suquamish are "not entitled to exercise fishing rights on the east side of Puget Sound." Id. at 778. I George Santayana's famous quotation rings true here: "Those who cannot

I remember the past are condemned to repeat it." This Court determined, and I Suquamish knew, in 1990, that Suquarnish do not hold treaty-reserved fishing I rights on the east side of Puget Sound. Yet, seventeen years later, this Court is again confronted with Suquamish expansionist efforts aimed at the east side of

I Puget Sound. The Court should take this opportunity to put this issue to rest once

I and for all by reaffirming its 1990 decision as the law of the case that Suquamish I are "not entitled to exercise fishing rights on the east side of Puget Sound." I I I 17 I I CONCLUSION

I For the foregoing reasons, this Court should affirm the district court's order I and reaffirm its 1990 decision that the Suquamish Tribe has no adjudicated usual and accustomed fishing rights on the east side of Puget Sound. I DATED this 18th day of June, 2007.

I Respectfully Submitted, I I M_S & McGAW _'_Maso/n/_. Morisset,_A #00273 I Ro/b'Roy Smith, W/SBA #33798 I //_ttorneys for A/p_ellee The Tulalip Tribes I I I I I I I I 18 I I

I STATEMENT OF RELATED CASES i There are two related cases pending in this Court: United States v.

I Washington (Tulalip Tribes v. Suquamish Tribe), Ninth Cir. No. 06-35185 and I United States v. Washington (Lummi Indian Nation v. Suquamish Tribe), Ninth Cir. I No. 06-35241. These cases involve an appeal of a final order of the district court in Subproceeding 05-4 of United States v. Washington, dismissing on procedural I grounds the Tulalip Tribes' request for clarification of the geographic scope of the

I Suquamish Tribe's adjudicated usual and accustomed fishing area as to certain I marine waters immediately south of the waters at issue in this appeal. I I I I I I I I I 19 I I I Form 8. Certificateof CompliancePursuantto Fed. R. App. P. 32(a)(7)(C) and Circuit I Rule 32-1 for Case Number 07-35061

(see next page) Form Must Be Signed By Attorney or Unrepresented IAUgantand attached I to the back ef each copy of the brief

I I ce_y that:(check appropriateoption(s))

, Pmsuantto Fed. IL App. P. 32 (aXT)(C) and Ninth Circuit Rule 32-1, the attached I Q opening/answering/reply/cross-appealbriefis I PropoRionatelyspaced,has a typefaceof 14 pointsor more and contains 4,553 words (opening,answering,andthesecondandthirdbriefsfiledincross-appealsmust notexceed 14,000 I words;replybriefsmust not exceed7,000 words), orb I Q Monospaced, has 10.5 or fewer characters per inch and contains words or lines of text (opening, answering, and the second and third briefs filed in cross-appeals I must not exceed 14,000 words or 1,300 lines of text; reply briefs I must not exceed 7,000 words or 650 lines of text).

, i Theattachedbriefis not subjectto the type-volumelimitationsof Fed.ILApp.P. 32(aX7)(B) I because

This briefcompliesw_ Fed IL App. P. 32(aX1)-(7)and is a principalbriefof no morethan I 30 pages or a replybriefof no morethan15 pages;

Q This briefcomplieswitha pageorsize-vohunelimitationestablishedbyseparatecourtorder dated and is

Q Proportionatelyspaced,has a typefaceof 14pointsormoreand contains Wor_, or_

Q Monospaced, has 10.5 or fewer characters per inch and contains 9ages or words or lines of text.

2O I

I 3. Briefsin CapitalCases

I O 1hisbriefisbeingfiledina capitalca_ pursuantto_ type-volumelmeationssetfo_ at C_uitRule32-4and is I Q Ptopottionmlyspaced,hasatypda_ of 14pointsormoreandcontains wok (opening,a_w_ng, andthosecondandthirdbriefsfiledin¢_ss-appcalsmustnot I . ox_d 21,000words;replybriefsmustnotoxc_ 9,800words) I or= 0 Monospaced, has i0.5 or fewer characters per inch and I contains words or lines of text (opening, answering,a--_he second _d briefs filed in cross-

I appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

I _4. AmicusSriefi

I [2 Pursuantto Fed.R.App.P.29(d)and95 Cir.R.32-1,theattachedamicusbridis

or less, i or=.proportionallyspaced,hasatypefaceof 14pointsormoreandcontains7000woads

I Q Monospaced,has10.5orfeworcharacterspotinchandcontainsnotmorethaneither7000 i .WOADSor650linesoftext, or = I 12 Notsubjecttothe(yp_volm¢limitationsbecauseitisan amicusbridofnom_ than15

I pagesandcomplieswithF_t.R,App.P.3_

I June18,2007

I Dato SignaturoofAttomeyor UmpresentodLitigant

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I CERTIFICATE OF FILING AND SERVICE I I hereby certify that on the 18th day of June, 2007, I filed the original and

I fifteen copies of Appellee Tulalip Tribes' Response Brief with the Ninth Circuit

I Court of Appeals via Priority Overnight Mail to:

Clerk of the Court i Ms. Cathy A. Catterson U.S. Court of Appeals for the Ninth Circuit I P.O. Box 193939 95 Seventh Street i San Francisco, CA 94119-3939 ! I further certify that on the 18th day of June, 2007, I served two copies of the foregoing document on the parties listed below by U.S. First-Class Mail: I Harold Chesnin, Esq. Lauren P. Rasmussen, Esq. Andrew H. Salter, Esq. David Hawkins, Esq. Gendler & Mann, LLP Salter Joyce Ziker PLLC I Office of the Tribal 1424 Fourth Ave., Ste. Suite 2040 Attorney 1015 1601 Fifth Avenue I Upper Skagit Indian Tribe Seattle, WA 98101-2217 Seattle, WA 98101 25944 Community Plaza Counsel for the Port Co-Counsel for the Upper Way Gamble and Jamestown Skagit Tribe I Sedro Woolley, WA 98284 S'Klallam lndian Tribes Co-Counsel for the Upper I Skagit Tribe I I

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I Alix Foster, Esq. Gregory O'Leary Dr. Howard F. Horton James Jannetta 315 5thAvenue S, Suite Dept. ofFish & Wildlife I Swinomish Indian Tribal 100 OSU- 104 Nash Hall Community Seattle, WA 98104 Corvallis, OR 97331- P. O. Box 817 Co-counsel for the 3803 I LaConner, WA 98257 Muckleshoot Indian Tribe District Court Technical Counsel for the Swinomish Advisor I Indian Tribal Community Cluistopher Pickrell, Esq. Peter C. Monson, Esq. Kevin R. Lyon, Esq. I Assistant U.S. Attorney Dept of Justice ENRD Kelly S. Croman, Esq. 700 Stewart St., Suite 5220 1961 Stout Street, 8thFloor Squaxin Island Legal Seattle, WA 98101-1271 Denver, CO 80294 Dept.. I Co-Counsel for United Co-Counsel for Unites SE 3711 Old Olympic States States Hwy ! Shelton, WA 98584 Co-Counsel for the I Squaxin Island Tribe Erie J. Nielsen, Esq. Fawn R. Sharp, Esq. Lori E. Nies, Esq. I Nielsen, Broman & Koch Office of the Reservation Skokomish Indian Tribe 1908 E. Madison Street Attorney N. 80 Tribal Center Rd. Seattle, WA 98102 Quinault Indian Nation Skokomish Nation, WA I Co-counsel for the Quinault P. O. Box 189 98584 Indian Nation Taholah, WA 98587 Co-Counsel for the I Co-Counsel for the Skokomish Indian Nation Quinault Indian Nation I I i I I I 23 I Phillip E. Katzen, Esq. Sam Stiltner, Esq. David R. West, Esq. Cory J. Albright, Esq. John Howard Bell, Esq. Seth J. Bemtsen, Esq. David C. LaSarte-Meeks, Law Office Ruth Kennedy, Esq. Esq. Puyallup Tribe Garvey Schubert & Barer John Sledd, Esq. 3009 Portland Ave. 1191 Second Ave., 18th F1. Kanji & Katzen, PLLC Tacoma, WA 98404 Seattle, WA 98101-2939 1(}0 S King St., Ste. 560 Counsel for the Puyallup Co-Counsel for the Seattle, WA 98104 Tribe Quileute Tribe Counsel for the Hoh, Suquamish, Jamestown, Lower Elwha, & Port Gamble Bands of S'Klallam, Nisqually, Sauk-Suiattle, Skokomish, Squaxin Island, Stillaquamish, and Upper Skagit Tribes

Daniel A. Raas, Esq. Mary M. Neil, Esq. Bill Tobin, Esq. Harry L. Johnsen, Esq. Lummi Indian Nation P. O. Box 1425 Raas Johnsen & Stuen, P.S. Office of the Reservation Vashon, WA 98070 1503 E St., P. O. Box 5746 Attorney Counsel for the Nisqually Bellingham, WA 98227- 2616 Kwina Road Indian Tribe 5746 Bellingham, WA 98226 Counsel for the Lummi Co-Counsel for the Lummi Indian Nation Indian Nation

Charles R. Hostnik, Esq. Tim Weaver, Esq. Edward J. Wurtz, Esq. Anderson, Bums & Hostnik Tim Weaver Law Office Nooksack Indian Tribe 6915 Lakewood Drive West P. O. Box 487 5048 Mt. Baker Highway Suite A 1 Yakima, WA 98907 P.O. Box 157 Tacoma, WA 98467 Counsel for the Deming, WA 98244-0157 Co-counsel for the Lower Confederated Tribes and Counsel for the Nooksack Elwha Klallam Tribe Bands of the Yakama Indian Tribe Indian Nation

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I Robert L. Otsea, Jr., Esq. Robert C. Troyer, Esq. Marc Slonim, Esq. Alan C. Stay, Esq. Hogan & Hartson, LLP John Arum, Esq. Richard Reich, Esq. 1200 17th St., Suite 1500 Richard Berley, Esq. I Office of the Tribal Denver, CO 80202 Brian Gruber, Esq. Attorney Co-counsel for Co-counsel Ziontz Chestnut, et al. I 39015 172 "a Avenue S.E. for the Lower Elwha 2101 Fourth Ave., Ste Auburn, WA 98002 Klallam Tribe 1230 Counsel for the Seattle, WA 98121 I Muckleshoot Tribe Counsel for the Makah Tribe

Robert K. Costello, AAG Fronda Woods, Esq. Robert F. Kehoe, Esq. Attorney General's Office Attorney General's Office 1900 W. Niekerson Street P. O. Box 40100 P O Box 40100 Suite #320 Olympia, WA 98504-0100 Olympia, WA 98504-0100 Seattle, WA 98119-1650 Counsel for the Department Counsel for the Counsel for the Purse offish and Wildlife Department of Fish and Seine Vessel Owners Wildlife Association and Gary Westman

Joseph E. Shorin, Sr. Paul L. Anderson, Esq. Michael S. Grossmann, Washington Attorney P.L.L.C. Esq. General's Office P. O. BOX 48102 Attorney General's Office Fish & Wildlife Division Seattle, WA 98166 P. O. Box 40100 P.O. Box 40100 Counsel for the Olympia WA 98504-0100 Olympia, WA 98504-0100 Washington Trollers Co-counsel for the State of Co-counsel for the State of Association Washington Washington

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I Michelle Hansen, Esq. P. O. Box 498 I Suquamish, WA 98392 Counsel for the Suquamish I Tribe I I declare the above to be true and correct under penalty of perjury. Executed

I June 18, 2007, at Seattle, Washington. //_f/_ ... I LL6"ehwaKim, Paralegal

_lgpt_T Dfivc_WPD(X_b'_007_g'J4001JU Upper Skallit.SuquIndsh Appcll 05-3W_spame 003.doc I Ik:¢_111/07 I ! I I I I I I I

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