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Home , Lake Washington, Lummi, Muckleshoot, Puget Sound, Swinomish, Tulalip

4. Indian Tribe v. Tribes, 944 F.3d 1179 (9th Cir. 2019)

The Muckleshoot Indian Tribe brought an action seeking to obtain additional usual and accustomed fishing grounds and stations (U&As) in saltwater areas of the . A number of other tribes in the area{{1}} intervened and moved to dismiss the action, arguing that the district court lacked subject matter jurisdiction because the extent of the Muckleshoot’s saltwater U&A in the Puget Sound had already been determined in a previous order: the Boldt Decision.{{2}} The District Court for the Western District of granted the motion, holding the district court lacked subject matter jurisdiction over the action.{{3}} On appeal, the Ninth Circuit affirmed. In the 1850s, , then Governor of the , negotiated eleven treaties with tribes in the region that would become Washington State (the Stevens Treaties).{{4}} Under the Stevens Treaties, each tribe ceded its lands in exchange for a small reservation and the right to take fish “in common with” others at its “usual and accustomed” fishing grounds and stations (U&As).{{5}} In 1970, the United States filed a complaint against the State of Washington seeking to enforce these treaty fishing rights.{{6}} The proceeding culminated with the so-called Boldt Decision, where Judge Boldt defined U&As for “every fishing location where members of a tribe customarily fished from time to time at and before treaty times.”{{7}} Relevant to this proceeding, the Boldt Decision defined the Muckleshoot’s U&A to include “locations on the upper Puyallup, the Carbon, Stuck, White, Green, Cedar, and Black Rivers . . . and , and secondarily in the saltwater of Puget Sound.”{{8}} Because determining the total extent of each tribe’s fishing rights was too herculean a task for a single district court judge, Judge Boldt included a permanent injunction retaining jurisdiction in the district court to implement its decrees in the Boldt Decision.{{9}} Paragraph 25 of the permanent injunction identifies various kinds of “subproceedings” a party may bring within the United States v. Washington framework.{{10}} Relevant here, Paragraph 25(a)(1) permits tribes to ask the court to resolve any ambiguity in the Boldt Decision’s determinations of U&As, while Paragraph 25(a)(6) allows tribes to invoke the court’s continuing jurisdiction to decide “the location of any of a tribe’s usual and accustomed fishing grounds not specifically determined by” the Boldt Decision.{{11}} In this instance, the Muckleshoot relied on Paragraph 25(a)(6) to seek additional U&A’s in the saltwater of Puget Sound. The district court dismissed the Muckleshoot’s action on two grounds. First, it relied on the Ninth Circuit’s decision in Muckleshoot Tribe v. Indian Tribe{{12}} (Muckleshoot I), which held that once a tribe’s U&As have been “specifically determined” in the Boldt Decision, continuing jurisdiction regarding the U&A resides only in Paragraph 25(a)(1), not Paragraph 25(a)(6).{{13}} Since the Boldt Decision spoke to the Muckleshoot’s U&A, the district court determined that the U&A had been “specifically determined.” The court correspondingly held that it lacked jurisdiction under Paragraph 25(a)(6). In so holding, the district court pointed to a previous “subproceeding” from 1997 where the Puyallup, , and Tribes sought a determination that the Muckleshoot lacked

[[1]]The Jamestown S’ Tribe, the Port Gamble S’Klallam Tribe, the Swinomish Tribe, and the Tulalip Tribe jointly filed a motion to dismiss. The Suquamish Tribe, , and the Puyallup Tribe jointly filed a separate motion to dismiss.[[1]] [[2]] United States v. Washington, 384 F. Supp. 312, 327 (W.D. Wash. 1974).[[2]] [[3]] United States v. Washington, (No. C70-9213, 2018), WL 1933718 (W.D. Wash. 2018).[[3]] [[4]] Washingaton v. Wash. State Commercial Passenger Fishing Vessel Ass’n et al., 443 U.S. 658, 666 (1979).[[4]] [[5]] Id.[[5]] [[6]] United States v. Washington, 384 F. Supp. at 327.[[6]] [[7]] Id. at 332.[[7]] [[8]] Id. at 367.[[8]] [[9]] Id. at 408.[[9]] [[10]] Id. at 419.[[10]] [[11]] Id.[[11]] [[12]] 141 F.3d 1355, 1359 (9th Cir. 1998).[[12]] [[13]] The court held that Judge Boldt determined the tribe’s saltwater U&A in the Puget Sound included the area. Id.[[13]] U&As in the saltwater areas of Puget Sound outside of Elliot Bay.{{14}} The judge overseeing that “subproceeding” had already determined the scope and extent of the Muckleshoot’s saltwater U&A in the Puget Sound, a clear demonstration that it no longer needed to be reexamined.{{15}} Additionally, the district court held that the Muckleshoot were collaterally estopped from relitigating the issue raised in the 1997 proceeding. Ordinarily courts of appeal review dismissals for lack of subject matter jurisdiction de novo. However, since the district court found a lack of subject matter jurisdiction based on its interpretation of a prior judicial decree, the Ninth Circuit reviewed this appeal giving deference to the district court’s interpretation. As a result, the Ninth Circuit affirmed, agreeing with the district court that the Boldt Decision determined the entirety of the Muckleshoot’s saltwater U&A in the Puget Sound and that the fact a proceeding had already been held on that issue precluded jurisdiction under Paragraph 25(a)(6). The most reasonable reading of the 1997 subproceeding, according to the panel majority, is that Judge Boldt, “in referring to the Muckleshoot’s fishing rights in Puget Sound, determined in effect that the only part of Puget Sound in which the Muckleshoot had any usual and accustomed fishing was ‘the open waters and shores of Elliott Bay,’” and nothing more.{{16}} Relitigating that issue, therefore, was a needless task. Consequently, the Ninth Circuit never addressed the Muckleshoot’s collateral estoppel argument. Judge Ikuta dissented, arguing that the majority misinterpreted the holding of Muckleshoot I. Muckleshoot I, she pointed out, held that when a tribe claims that a U&A from the Boldt Decision is ambiguous under Paragraph 25(a)(1), a court’s only job is to discern Judge Boldt’s intent and, therefore, may consider only evidence relevant to that determination.{{17}} Further, Muckleshoot I held that when a tribe invokes jurisdiction under Paragraph 25(a)(6) to determine the scope of its U&As in areas not addressed by the Boldt Decision, the tribe can offer new evidence to establish it historically fished in the areas at issue. Muckleshoot I did not determine, however, what happens after a tribe’s U&As are clarified pursuant to Paragraph 25(a)(1). Since the Boldt Decision set out broad saltwater U&As for the Muckleshoot covering the whole Puget Sound, the tribe, in Muckleshoot I, had to proceed under Paragraph 25(a)(1), not Paragraph 25(a)(6), thus preventing the court from making a finding that areas outside of Elliott Bay were not part of the tribe’s U&A. Judge Ikuta argued it was unfair for the district court in this instance to prevent the Muckleshoot from providing evidence the tribe claimed showed that various areas within the Puget Sound outside of Elliott Bay were historically Muckleshoot fishing locations. She asserted that after Muckleshoot I determined that the tribe’s saltwater U&As were limited to Elliott Bay, the tribe was entitled to request a new determination under Paragraph 25(a)(6) regarding areas outside of Elliott Bay. By dismissing the proceeding, the district court had, therefore, determined that the tribe did not have any additional U&As in the Puget Sound outside of Elliott Bay without reviewing all the evidence admissible in Paragraph 25(a)(6) proceedings under Muckleshoot I.

[[14]] United States v. Washington, 19 F. Supp. 3d 1252, 1272 (W.D. Wash. 1997).[[14]] [[15]] Id.[[15]] [[16]] Muckleshoot Indian Tribe v. Tulalip Tribes, 944 F.3d 1179, 1184 (9th Cir. 2019).[[16]] [[17]] Muckleshoot I, 141 F.3d at 1359.[[17]]