Muckleshoot Tribe v. Lummi Indian Tribe

This appeal brings before us two disputes, (1) between the Muckleshoot Indian Tribe (“Muckleshoot”) and the Swinomish Indian Tribal Community (“Swinomish”) and (2) between the Muckleshoot and the Lummi Indian Nation (“Lummi”), over the interpretation of a decree adjudicating Indian treaty fishing rights in Washington state in respect to salmon and defining the “usual and accustomed fishing places” of the parties to this appeal in respect thereto. United States v. Washington, 384 F.Supp. 312, 360 (W.D.Wash.1974) (Boldt, J.) [hereinafter “Decision /”]; United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978) (Boldt, J.) [hereinafter “Decision //”]. The district court granted summary judgment adopting the interpretations claimed by Muckleshoot. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In September 1986, Muckleshoot, along with other south Puget Sound tribes, invoked *1357 the district court’s continuing jurisdiction under Decision I by filing a request for determination (“RFD”), initiating subproceeding 86-5 to seek “equitable allocation” of the treaty…

concurring in part and dissenting in part.

I would affirm the judgment of the district court. I agree with the majority that the district court properly granted summary judgment against Swinomish. Regrettably, however, I cannot join Part TV of the majority’s opinion, which reverses the district court’s grant of summary judgment against *1361 Lummi. In my view, the district court was correct to consider the testimony of Dr. Barbara Lane in determining the meaning of the phrase “present environs of Seattle.” United States v. Washington, 384 F.Supp. 312, 360 (W.D.Wash.1974) (Boldt, J.). Therefore, I respectfully dissent.

The district court granted summary judgment against Lummi on the ground that Lummi’s fishing locations, as described in Finding of Fact 46 in United States v. Washington, did not include waters in Area 10. Finding of Fact 46 states, in pertinent part:

Id. (emphasis added).

The phrase “present environs of Seattle” derives from Dr. Barbara Lane’s “Anthropological Report on the Identity, Treaty Status, and Fisheries of the Lummi Indian Tribe,” which was heavily relied upon by Judge Boldt in his 1974 decision. In a 1995 deposition, Dr. Lane testified that, in using…