United States v. Muckleshoot Indian Tribe

No. 99-35960 (235 F.3d 429) (9th Cir. December 13, 2000)

ELR Digest

The court upholds the grant of summary judgment to three Native American tribes seeking a determination that the Muckleshoot Tribe's saltwater usual and accustomed (U&A) fishing area was limited to Elliot Bay within Puget Sound in Washington State. In determining the treaty-reserved fishing rights of several Washington tribes, a previous district court held that the Muckleshoot Tribe had U&A saltwater fishing places in Puget Sound. After the initial decision, a state regulation established additional fishing zones in Puget Sound. The Muckleshoot sought to open fisheries in one of these fishing zones, but in opposition, the other tribes sought a determination that the Muckleshoot were limited to the fishing zone off Elliot Bay. The court first holds that the Muckleshoot are limited to the fishing zone off Elliot Bay. In determining what the initial district court decision meant when it stated that the Muckleshoot have U&A saltwater fishing rights in Puget Sound requires an examination of the evidence before that court. This evidence indicates that the Muckleshoot were an upriver tribe that occasionally made trips to Elliot Bay to fish and collect shellfish. Although the Muckleshoot's ancestors may have occasionally conducted saltwater fishing beyond Elliot Bay, these isolated or infrequent excursions do not meet the U&A standard. In addition, none of the evidence offered by the Muckleshoot established that their ancestors had U&A fishing grounds beyond Elliot Bay.

The full text of this opinion is available from ELR (16 pp., ELR Order No. L-306).

Counsel for Appellee
Evelyn S. Ying
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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

[31 ELR 20308]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]