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Muckleshoot Tribe v. Lummi Indian Tribe

Citation: 28 ELR 21174
No. 96-35341, 141 F.3d 1355/(9th Cir., 04/17/1998)

The court holds that the Swinomish Tribe's usual and accustomed fishing places do not include any waters within Puget Sound salmon management and catch reporting area 10, and a prior decision's description of the Lummi Tribe's usual and accustomed fishing places is ambiguous. The Muckleshoot Tribe sought an interpretation of a prior decision adjudicating Native American treaty fishing rights in Washington and equitable allocation of the treaty share of area 10's salmon harvest. The court first holds that the district court's decision to entertain the Muckleshoot's motion for partial summary judgment without requiring a new and separate subproceeding was not an abuse of discretion. The district court determined that the Swinomish and Lummi Tribes had not stated any practical reason for requiring technical compliance. Because the tribes had notice of the issue for several years, they were not prejudiced by the district court's decision. Moreover, the tribes did not object to the pretrial order that set the schedule for briefing and hearing of the motions.

The court next holds that the prior decision's description of the Swinomish Tribe's usual and accustomed fishing places does not include any portion of area 10. The most southern land point named in the description lies seven miles north of the most northern part of area 10. In addition, the Swinomish offered no evidence that suggests that this finding is ambiguous or that the court that issued the prior decision intended something other than its apparent meaning when the decision was rendered.

The court next holds that the prior decision's description of the Lummi Tribe's usual and accustomed fishing places is ambiguous. The description's use of the phrase "present environs of Seattle" is ambiguous in the sense that it is not precise as to the exact location of the environs of Seattle when the decision was rendered. The district court correctly determined that the only relevant evidence is that which was considered by the judge when he made this finding. The district court erred, however, by considering expert testimony delivered in 1995 as evidence of the judge's intended meaning in 1972. The court next holds that the district court's reliance on the continuing jurisdiction reserved in the prior decision to "determine the location of a tribe's usual and accustomed fishing grounds not specifically determined" by the earlier decision cannot be upheld as an alternative ground for its grant of summary judgment against the Lummi. Although jurisdiction to enter supplemental findings exists under the decree, the district courterred in entering a supplemental finding because the court failed to allow all the parties to present evidence. In addition, the issues presented to the district court did not comprehend new determinations of locations of usual and accustomed fishing grounds, nor does the prior decisions's reservation of continuing jurisdiction over "such other matters as the court may deem appropriate" grant blanket authority to make such supplemental findings. Nevertheless, the court recognizes that there is a genuine controversy that must be resolved. Therefore, the court instructs the district court to determine whether the southern portion of the areas in which the Lummi are currently taking fish conforms with the prior decision.

Counsel for Plaintiff
Gregory M. O'Leary
Law Offices of Gregory M. O'Leary
Exchange Bldg.
821 Second Ave., Seattle WA 98104
(206) 523-6387

Counsel for Defendant
Harry L. Johnsen, Daniel A. Raas
Raas, Johnsen & Stuen
1503 E St., P.O. Box 5746, Bellingham WA 98227
(360) 647-0234

Before Fletcher, J.