United States of America, Tulalip Tribe, Plaintiff-Intervenor-Appellee v. Lummi Indian Tribe, Plaintiff-Intervenor-Appellant

The Lummi Indian Tribe appeals from a judgment holding that in 1855 certain waters in the northern part of Puget Sound were usual and accustomed fishing grounds of the Tulalip Tribes. We affirm.

I

The United States and various tribes, including predecessors to the Lummi and Tulalip Tribes, entered into the Treaty of Elliott Point in 1855. Article V of the Treaty reserves to signatory tribes “[t]he right of taking fish at usual and accustomed grounds and stations ... in common with all citizens of the Territory....” 12 Stat. 927 , 928.

In 1975 we affirmed the decision of United States District Judge Boldt that Treaty tribes may take up to 50% of available harvest at their traditional grounds and stations. United States v. State of Washington, 520 F.2d 676, 683 (9th Cir.1975), aff'g 384 F.Supp. 312 (W.D.Wash.1974) (“The Boldt Decision”), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 , 47 L.Ed.2d 97 (1976). Determination of usual and accustomed fishing grounds of the many tribes involved was left to subsequent proceedings.

Predecessors to the Tulalip Tribes (“Tu-lalips”) historically inhabited lands north and east of the Seattle metropolitan area. Predecessors to the Lummi Tribe…