By June Williams, Courthouse News Service
SEATTLE (CN) – Native American tribes fighting over fishing rights in Washington asked the 9th Circuit to intervene in separate proceedings last week.
The cases stems from a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington that affirmed certain tribal fishing rights the state had been denying.
Among numerous subproceedings, the Tulalip back in 2005 requested a permanent injunction to prevent the Suquamish from fishing in waters outside their usual and accustomed, or U & A, grounds, an area determined by the 9th Circuit in 1990. The Suquamish were accused in that case of fishing on the east side of Puget Sound, in violation of court order.
U.S. District Judge Ricardo Martinez last year clarified “the geographic scope” of the Suquamish fishing grounds in Bolt’s decision. He said Bolt “relied heavily” on the reports of anthropologist Dr. Barbara Lane, who testified about various tribes’ traditional fishing areas in the 1974 case.
Martinez said it was “nearly certain” Bolt intended to include Possession Sound and waters at the mouth of the Snohomish River in the Suquamish U & A.
“On the other hand, there is an absence of evidence in her [Lane’s] report regarding Suquamish fishing in the waters on the eastern side of Whidbey Island such as Skagit Bay, Saratoga Passage and its connecting bays Penn Cove and Holmes Harbor, and Port Susan,” the July 29, 2013, ruling says. “Therefore the court finds that Judge Boldt did not intend to include these areas in the Suquamish U&A.”
The Tulalip appealed the decision to the 9th Circuit. After a three-judge panel’s Aug. 8 hearing in the Tulalip dispute, it heard the appeal by the Quileute and Quinault tribes of a similar decision by favoring the Makah tribe.
The Makah filed their Bolt subproceeding in 2009 to determine the boundaries of U & A fishing areas for the Quileute and Quinault tribes. The Ho tribe opposed the Makah’s motion as an interested party. In the complaint, the Makah argued the tribes intend to harvest Pacific whiting outside their traditional fishing grounds, which would affect the Makah’s catch. Pacific whiting travel from south to north, so the Quileute and Quinault would harvest the fish before the Makah.
Martinez let the case to proceed to trial by granting the Makah partial summary judgment last year. The Quileute and Quinault objected, arguing they waived sovereign immunity in the 1974 case only for determining their fishing rights in Washington. They claimed the court did not have authority over waters outside the 3-mile limit from the shore.
Martinez found that “incorrect” on July 8, 2013, saying the court’s jurisdiction extends to all treaty-based fishing and not limited to Washington waters.
The Quinault and Quileute’s claims of sovereign immunity also failed.
“The tribes came to Court in 1970 asking the court to determine and enforce their treaty rights, and they subjected themselves to the court’s jurisdiction for all purposes relating to the exercise of their treaty rights,” he wrote. “The Quinault and Quileute objections to the Makah motion for partial summary judgment on jurisdiction are thus without merit.”
Ho intervened in the appeals by both tribes.
With the 9th Circuit hearing the Tulalip case first Wednesday, Mason Morisset, representing the Tulalip, said Judge Bolt never “called out the specific waters we’re dealing with here.”
The lower court erred in finding the Suquamish regularly fished the east side of Whidbey Island in the past, he added.
Although the Suquamish fishing grounds extended north to Canad’s Fraser River, the tribe “would have to go out of their way” to fish on eastern Whidbey Island, Morisset said.
“In this case, there’s no evidence that the Suquamish went out of their way,” he said.
Judge Consuelo Callahan asked Morisset about the findings by an anthropologist that the Suquamish “traveled widely in the Puget Sound area.”
Morisett said this was true of “all the tribes,” and “it’s not evidence to make a general statement.”
The Suquamish may have traveled to the eastern parts of Whidbey Island and done some fishing, “but that doesn’t rise to the level of a usual and accustomed fishing place,” the attorney added.
Though Morisset called it “very telling” that the Suquamish did not contest Judge Bolt’s definition of their territory for 30 years, Callahan said “that doesn’t negate that they may have a right to do it.”
Howard Arnett, representing the Suquamish, said the tribe regularly fished in East Puget Sound based on historical reports.
“The testimony is clear,” he said. “They went there often. They went there frequently and they fished along the way – enough to establish that the entire area is a U & A.”
The Quileute, Quinault and Ho tribes dispute the finding they waived sovereign immunity, their attorney, Lauren King, said. The tribes agreed to court determination of fishing rights only in Washington State waters, she added.
With Callahan asking why the court shouldn’t “rule here that if you’re in for a penny then you’re in for a pound,” King said it would contravene Supreme Court precedent. “The Supreme Court said if you’re in for a penny, you’re in for a penny,” King said.
Callahan countered that “every single one” of the fishing rights cases involved interpretation of the same treaty.
King did not get far with her explanation that the tribes waived sovereign immunity only for one part of the treaty involving Washington fishing rights.
“If it involved all things in the treaty, we’d be here talking about hunting, about making war on other tribes,” King said.
But Callahan said the tribes’ approach seems to be “we waive sovereign immunity piece by piece until we don’t like what a court does.”
The Makah, represented by Marc Slonim, repeated their position that sovereign immunity was not an issue.
“Sovereign immunity is not a defense as to how an issue will get decided,” Slonim said.
He argued that the determination of the Quileute and Quinault traditional fishing grounds is “no different” from all of the other tribal determinations under the original U.S. v Washington case.
Callahan asked if the subject matter of this case was “inextricably linked” with U.S. v Washington.
“Absolutely,” Slonim replied.
The heart of the original case was the determination of usual and accustomed fishing grounds, the attorney added.
“You have to know where usual and accustomed fishing grounds are to adjudicate the treaty rights,” Slonim said. “The United States has said explicitly that the place these issues should be resolved is in U.S. v. Washington.”
Washington Assistant Attorney General Joseph Panesko also weighed in on the tribes
claim of sovereign immunity, saying it was “patently false” to claim the state has no regulatory authority over the waters in dispute.
He called the tribes “disingenuous” for claiming they never waived immunity over the waters. He said if they succeed in arguing Judge Bolt’s decision doesn’t affect the ocean waters, the state wouldn’t be bound by an injunction in the case.
“The state would be cleared to start regulating all tribal harvests of crab and a few other resources that the state does manage beyond the three mile line,” Panesko said. “The state could require regulatory permits, impose excise taxes on fish that tribal members bring in from beyond that 3-mile line – ”
Laughter broke out in the courtroom as Callahan translated.
“You’re saying be careful what you ask for,” she said.
Judges Jay Bybee and Richard Paez joined on the panel.