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TULALIP TRIBES' RESPONSE BRIEF I Mason D 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
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