No. 07-35061

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

Upper Skagit Indian Tribe,Plaintiff--Appellee

V.

Suquamish Indian Tribe,Defendant--Appellant

JO_ 18 2007

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Swinomish Indian Tribal Community,Cross-Claimant--Appellee

On Appeal from the United States District Court

Western District of Washington at SeattleThe Honorable Ricardo S. Martinez

(District Court No. 70-9213, Phase I)

(Subproceeding No. 05-3)

RESPONSE BRIEF OF APPELLEE UPPER SKAGIT INDIAN TRIBE

Harold Chesnin; WSBA No. 398David Hawkins, WSBA No. 35370Office of the Tribal Attorney

Upper Skagit Indian Tribe25944 Community Plaza WaySedro Woolley, WA 98284Phone: 360-854-7016/Fax: 360-854-7018

Andrew H. Salter, WSBA No. 11954

Salter Joyce Ziker, PLLC1601 Fifth Avenue, Suite 2040

Seattle, Washington 98101Phone: 206-957-5960/Fax: 206-957-5961

Attorneys for Appellee Upper Skagit Indian Tribe

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CORPORATE DISCLOSURE STATEMENT

(Circuit Rule 26.1)

Appellee Upper Skagit Indian Tribe is a federally recognized Indian Tribe.

It has issued no shares of stock to the public and has no parent company,

subsidiary or affiliate that has done so.

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TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION .................................................................... 1

II. STATEMENT OF ISSUE PRESENTED ................... .. ...................................... 1

III. STATEMENT OF CASE AND PROCEEDINGS BELOW ............................. 1

A. Upper Skagit's Request For Determination ......................................... 3

B. Suquamish's Motion To Dismiss ......................................................... 4

C. Upper Skagit's Motion For Summary Judgment ................................. 5

D. The District Court Grants Upper Skagit's Motion For Summary

Judgment ............................................................................................... 6

IV. STATEMENT OF FACTS ................................................................................ 7

A. Upper Skagit's U&A ............................................................................ 7

B. Suquamish's U&A ................................................................................ 7

C. Suquamish's Previous Attempts To Expand Its U&A Were

Rejected ................................................................................................ 9

V. STANDARD OF REVIEW ................................................................................ 9

VI. SUMMARY OF ARGUMENT ....................................................................... 10

VII. ARGUMENT .................................................................................................. 10

A. The District Court Was Correct In Granting Upper Skagit's

Motion For Summary Judgment ......................................................... 10

1. The Ninth Circuit Clearly Established The Procedure To

Be Used In Ruling Upon A Request For Determination

Seeking Clarification Of The Extent Of A Tribe's U&A ........ 11

2. The District Court Properly Examined The Evidence

Before Judge Boldt To Make This Determination ................... 12

B. Unable To Identify Evidence In The Record Before Judge Boldt

To Support Its Claim To U&A Rights In The Subproceeding

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Areas, Suquamish Unfortunately Misconstrues The District

Court's Reasoning And Ignores This Court's Precedent ................... 17

Co Suquamish Is Estopped From Arguing That The Term "Puget

Sound" Is Unambiguous When It Has Repeatedly Argued The

Opposite Position Before This Court ................................................. 24

VIII. CONCLUSION ............................................................................................. 26

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TABLE OF AUTHORITIES

Morris v. California, 966 F.2d 448 (9 th Cir. 1991),

cert. denied, 121 L. Ed. 2d 57 (1992)

Muckleshoot Indian Tribe, et al. v. Lummi Indian

Tribe, 141 F.3d 1355 (9 thCir. 1998)

Muckleshoot Indian Tribe v. Lummi Indian Nation,

234 F.3d 1099 (9 th Cir. 2000)

Narramore v. U.S., 852 F.2d 485 (9 _ Cir. 1988)

Puyallup Indian Tribe, et al. v. MuckleshootIndianTribe, 235 F.3d429 (9 thCir. 2000)

U.S.v. Lummi Indian Tribe, 235 F.3d 443,449 (9 th

Cir. 2000)

U.S.v. Suquamish Tribe, 901 F.2d 772 (9 thCir.

1990)

U.S.v. Washington, 384 F. Supp. 312 (W.D. Wash.

1974)

U.S.v. Washington, 459 F. Supp. 1020 (W.D.

Wash. 1978)

Memorandum Opinion and Order in U.S. v.

Washington Subproceeding 89-3, December 20,1994.

Washington v. Washington State Commercial

Passenger Fishing Vessel Association, 443 U.S. 658

(1979)

Yanez v. United States, 989 F.2d 323 (9 th Cir. 1993)

Fed. R. App. P. 28(i)

26

10,11,12,13,16,18

11

12

11,12,14,16,24

22,23

4,9

2, 3, 14, 20

3, 7, 8, 20, 21

3,7

25,26

11

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I. STATEMENT OF JURISDICTION

Appellee Upper Skagit Indian Tribe agrees with the Statement of

Jurisdiction set forth in the Opening Brief of Appellant Suquamish Tribe.

H. STATEMENT OF ISSUE PRESENTED

Whether the absence of evidence regarding the Suquamish Tribe's fishing or

travel through Saratoga Passage and Skagit Bay properly led the District Court to

conclude that the Upper Skagit Indian Tribe and the Swinomish Indian Tribal

Community met their burdens of demonstrating that Judge Boldt did not intend to

include these areas in the Suquamish Tribe's usual and accustomed fishing grounds

and stations.

HI. STATEMENT OF CASE AND

PROCEEDINGS BELOW

This is an appeal of a decision issued in subproceeding 05-3 of U.S.v.

Washington, Case No. 70-9213. U.S.v. Washington was originally filed in 1970

by the United States on its own behalf and a:_ trustee for seven Indian Tribes

seeking an injunction against the State of Washington ("State") requiring the State

to protect the Indian share of the anadromous fish runs. Washington v. Washington

State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 674-75

(1979). At various stages of the proceedings, a number of treaty tribes, including

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the Upper Skagit Indian Tribe ("Upper Skagif') and the Suquamish Indian Tribe

("Suquamish"), intervened in the case as plaintiffs.

Over the years, the District Court adjudicated in U.S.v. Washington the

geographic scope of the Tribes' "usual and accustomed grounds and stations"

("U&A"). A U&A was defined as:

[E]very fishing location where members of a tribe customarily fished

from time to time at and before treaty times, however distant from the

then usual habitat of the tribe, and whether or not other tribes thenalso fished in the same waters...

U.S.v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974). I The District

Court also retained continuing jurisdiction to resolve disputes concerning "the

location of any of a tribe's usual and accustomed fishing grounds not specifically

determined" in the collection of Court orders issued in that case. ld. at 419.

In this subproceeding, United States District Judge Ricardo S. Martinez was

asked by Upper Skagit and the Swinomish Indian Tribal Community

("Swinomish") to clarify whether the U&A of Suquamish included Saratoga

Passage and Skagit Bay (the "Subproceeding Areas"), which are located east of

W_ddbey Island and within the adjudicated U&As of Upper Skagit and Swinomish.

The U&A for each of these three Tribes had been determined by the District Court

in the original U.S.v. Washington proceedings and in subsequent proceedings.

i Fishing had to "customarily" occur in an area to qualify as a U&A; "occasional

and incidental" fishing in an area was not sufficient. 384 F. Supp. at 353.

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U.S.v. Washington, 384 F. Supp. at 379; U.S.v. Washington, 459 F. Supp. 1020,

1049 (W.D. Wash. 1978); Memorandum Opinion and Order in U.S.v. Washington

Subproceeding 89-3, December 20, 1994.

Judge Martinez granted Upper Skagit's motion for summary judgment,

along with the companion motion of Swinomish, correctly concluding, based upon

an exhaustive review of the actual evidence before the Court at the time, that Judge

Boldt did not intend to include the Subproceeding Areas in Suquamish's U&A.

That decision, the subject of this appeal, should be affirmed by this Court.

A. Upper Skagit's Request For Determination.

Upper Skagit initiated this subproceeding on June 20, 2005, by filing a

Request for Determination, asking the District Court to clarify Suquamish's U&A.

ER 0001-7. Specifically, Upper Skagit sought a determination that Suquamish's

U&A did not include Saratoga Passage and Skagit Bay. Swinomish subsequently

joined the subproceeding by filing a Cross-Request for Determination.

ER 0008-14.

Upper Skagit's Request for Determination was filed in response to improper

efforts by Suquamish to expand its fishing and shellfishing into waters Upper

Skagit relies on as part of its primary salt water fishing and shellfishing U&A.

This attempted expansion commenced in 2004, almost 30 years after Suquamish's

U&A was originally established in 1975, violating the District Court's original

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determinationof Suquamish's U&A as well as this Court's determination

regardingthe geographic scope of itsU&A in 1990 (confirmingthatSuquamish

only holds "usualand accustomed fishingplacesinseveralareason the west side

ofPuget Sound" and "were not entitledtoexercisefishingrightson theeastsideof

Puget Sound" as successorsininteresttothe rightsof theDuwamish Tribe). U.S.

v.Suquamish Tribe,901 F.2d 772,774,778 (9thCir.1990) (emphasisadded).

B. Suquamish's Motion To Dismiss.

Suquamish moved to dismissUpper Skagit'sRequest forDeterminationfor

lackofsubjectmatterjurisdiction,failuretostatea claimupon which reliefmay be

granted,and resjudicata. Suquamish assertedUpper Skagit was barred from

seeking clarificationof Suquamish's U&A because Upper Skagit improperly

sought to invoke the Court'scontinuingjurisdictionand further,thatresjudicata

precludedUpper Skagitfrom pursuing itsrequest.Notably,Suquamish itselfhad

prcviouslyfiledsimilarrequestsfordetermination,askingthe same DistrictCourt

to clarifythe U&As of othertribes,complaining of "the maddening imprecision

and inconsistencywith which the Court,theparties,thewitnesses,and the exhibits

inthiscasehave used thephrase'PugetSound.'" ER 0031.

The DistrictCourt denied Suquamish's motion on allgrounds,concluding

that "[n]one of the arguments is persuasive." ER 0030-33. Further, the District

Court found that "there is sufficient ambiguity in Judge Boldt's use of the term

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'Puget Sound' in

ER 0031-32.

C.

describing the Suquamish U&A to require clarification."

Upper Skagit's Motion For Summary Judgment.

At the conclusion of extensive discovery, Upper Skagit filed its Second

Motion for Summary Judgment, 2 contending that Judge Boldt did not intend the

Subproceeding Areas to be included in Suquamish's U&A and that the scope of

Suquamish's U&A must be clarified by the District Court under the continuing

jurisdiction of U.S.v. Washington. ER 0069-90. Swinomish filed a companion

motion. ER 0091-112.

Upper Skagit and Swinomish both asserted that Judge Boldt's use of the

term "Puget Sound" in Suquamish's U&A was not intended to encompass the

Subproceeding Areas. More specifically, Upper Skagit argued that (1)there was

no factual evidence in the record before Judge Boldt from which he could have

concluded that Suquamish's U&A included the Subproceeding Areas; (2)had

Judge Boldt intended to include the Subproceeding Areas within Suquamish's

U&A, he would have stated so directly; (3) historic maps and texts demonstrated

that the meaning of "Puget Sound" in 1975 did not include the Subproceeding

Areas; (4)Suquamish's fishing regulations, issued in 1975 contemporaneously

2 Upper Skagit had filed a motion for summary judgment earlier in the proceeding which

the Court determined to be "premature" and struck from the record without prejudice.ER 0033.

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with the District Court's determination of Suquamish's U&A, contradict

Suquamish's recent claim to U&A rights in the Subproceeding Areas; and (5) this

Court previously determined that Suquamish had no u&A rights on the east side of

Puget Sound. ER 0069-90.

Di The District Court Grants Upper Skagit's Motion For Summary

Judgment.

The District Court, after reviewing the record before Judge Boldt and the

evidence submitted by the parties, concluded that the term "Puget Sound" in the

context of Suquamish's U&A did not include the Subproceeding Areas. The

District Court found that, although the term "Puget Sound" included the

Subproceeding Areas in its general usage by Judge Boldt, Judge Boldt intended

something other than this apparent meaning when defining Suquamish's U&A:

Here, the Court finds that in describing the Suquamish U&A as the

marine waters of Puget Sound from Vashon Island up to the Fraser

River, Judge Boldt could not have intended to include Saratoga

Passage or Skagit Bay. Judge Boldt relied heavily on the report and

testimony of Dr. Barbara Lane, and indeed in describing the

Suquamish U&A he used terms and place names taken directly from

her report on the Suquamish fishing and travels. Dr. Lane reported

and testified that the Suquamish traveled by canoe from their territory

(Port Madison) up through the San Juan Islands, and Haro andRosario Straits as far as the Fraser River. Nothing in her testimony or

her report indicated a Suquamish presence in Saratoga Passage or

Skagit Bay, neither as a winter fishing grounds, nor as a route for

travel up to the San Juan lslands.

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ER 0029 (emphasis added). Thus, the District Court concluded that "the

Suquamish U&A does not include Saratoga Passage or Skagit Bay." ld.

IV. STATEMENT OF FACTS

A. Upper Skagit's U&A.

Upper Skagit's salt water U&A was established in Subproceedings 89-33,

some 20 years after Suquam'lsh's U&A was adjudicated. Prior to Suquamish's

improper intrusion into the waters of Upper Skagit's U&A, Upper Skagit has never

had cause to seek a clarification of Suquamish's U&A. For almost 10 years, Upper

Skagit, other tribes, and the State have all collectively reached fisheries

management determinations in the Subproceeding Areas without Suquamish.

Upper Skagit's salt water U&A, proven through a far more rigorous process than

used in 1975, is specific as to location, narrow as to scope, and its infringement by

any tribe causes significant hardship upon Upper Skagit and its fishermen because

of their limited geographic access to salt water fish and shellfish resources.

B. Suquamish's U&A.

In 1975, the District Court issued an order as a result of a dispute over treaty

fishing for herring. U.S.v. Washington, 459 F. Supp. at 1048. The District Court,

rushing to permit a tribal herring fishery, held that Suquamish had made a "prima

3 Memorandum Opinion

December 20, 1994.

and Order in U.S.v. Washington, Subproeeeding 89-3,

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facie"showing thatitsU&A fishinggrounds were in"themarine waters of Puget

Sound from the northern tip of Vashon Island to the Fraser River including Haro

and Rosario Straits, the streams draining into the western side of this portion of

Puget Sound and also Hood Canal." ld. at 1049. This Order was entered on

April 18, 1975. At the April 9, 1975, evidentiary hearing shortly before that Order

was entered, Judge Boldt clarified on the record the de minimus standard he was

using to determine Suquarnish's U&A as a result of the impending opening of the

herring fishery:

The problems relating to the herring fishery were brought to the

Court's attention very late in the game, as it were .... The press of

innumerable other matters in this litigation has kept everyone working

overtime constantly; but we had all hoped that the herring fishery

matter could be brought on with ample time to develop everything

about it and get it settled once and for all in final form subject, of

course, to appeal. That was not possible, as a result of which I have

gone through great pains to expedite a prima facie determination for

the benefit of the Fisheries Department even above the tribal

questions. And it seems to me that all we need to concern ourselveswith at this time or all that we have time to consider as this time is the

matter of prima facie showing with respect to this matter.

ER 0223.

The next day, on April 10, 1975, Judge Boldt confirmed on the record that

the U&A he was designating for Suquamish included only "areas one and two as

designed by the state." ER 0188. The Subproceeding Areas are in area four, not

in areas one and two. ER 0112.

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C. Suquamish's Previous Attempts To Expand Its U&A Were Rejected.

Ten years later, in May 1985, Suquamish filed subproceeding 85-1 seeking

to expand its U&A to the inland waters of the east side of Puget Sound based upon

its asserted status as successor in interest to the aboriginal Duwamish Tribe as well

as its own historic ties to the area, U.S.v. Suquamish Tribe, 901 F.2d at 777. In

that subproceeding, Suquamish relinquished any claim to these waters based upon

alleged historic.Suquamish ties to the east side of Puget Sound area and rested its

claim to U&A in these areas solely upon its status as the successor in interest to the

Duwamish. The Court recognized that "[a]t the time of the Treaty of Point Elliot

they [Suquamish] did not fish in those areas, which were the usual and accustomed

fishing places of the Duwamish." ld. at 774. The Court further concluded that

Suquamish held "usual and accustomed fishing places in several areas in the west

side of Puget Sound," and further were "not entitled to exercise fishing rights on

the east side of Puget Sound" as successors in interest to the Duwamish. Id. at 774,

7'78. The Subproceeding Areas here are indisputably on the east side of Puget

Sound.

The Appellate

Muckleshoot Indian Tribe, et aL

(9 th Cir. 1998).

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V. STANDARD OF REVIEW

Court reviews a grant of summary judgment de novo.

v. Lummi lndian Tribe, 141 F.3d 1355, 1357

VI. SUMMARY OF ARGUMENT

The District Court correctly granted summary judgment to Upper Skagit and

Swinomish, determining that Judge Boldt did not intend to include the

Subproceeding Areas of Saratoga Passage and Skagit Bay within Suquamish's

U&A. This conclusion is reached by examining the record before Judge Boldt, the

transcript of proceedings before Judge Boldt, Judge Boldt's own language in

describing the U&As of Suquamish and of other tribes, and Suquamish's own

description of its U&A issued within months of Judge Boldt's U&A determination.

VII. ARGUMENT

A. The District Court Was Correct In Granting Upper Skagit's Motion

For Summary Judgment.

In addressing the parties' motions for summary judgment, the District Court

determined that "the burden in this subproceeding is on the requesting parties--the

Upper Skagit and the Swinomish Indian Tribal Community--to offer evidence that

[the Suquamish U&A] is ambiguous, or that Judge Boldt 'intended something

other than its apparent meaning.'" ER 0016, ER0123. Upper Skagit and

Swinomish met that burden 4 and the District Court properly concluded that "Judge

4 Pursuant to Fed. R. App. P. 28(i), Upper Skagit adopts by reference the arguments ofSwinomish in the Response Brief of Appellee Swinomish Indian Tribal Community onthe issue of ambiguity.

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Boldt did not intend to include Saratoga Passage or Skagit Bay within the U&A of

the Suquamish." ER 0028.

1. The Ninth Circuit. Clearly Established the Procedure To Be Used

In Ruling Upon A Request For Determination SeekingClarification Of The Extent Of A Tribe's U&A.

In a series of prior decisions, this Court established and defined the

procedure a District Court must follow in addressing requests for determination

such as this. Muckleskoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F.3d

1355 (9 th Cir. 1998) ("Muckleshoot /"); Muckleshoot Indian Tribe v. Lummi Indian

Nation, 234 F.3d 1099 (9 th Cir. 2000) ("Muckleshoot//"); Puyallup Indian Tribe,

et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9 th Cir. 2000)

("Muckleshoot liT'). In those decisions, this Court directed the District Court to

first determine whether the challenged U&A is ambiguous or whether Judge Boldt

intended something other than the apparent meaning of the text of the U&A.

MuckleshootI, 141 F.3d at 1358-59. The District Court must then determine

"what Judge Boldt meant in precise geographic terms," by reviewing the record

before Judge Boldt at the time his U&A determination was rendered.

MuckleshootI, 141 F.3d at 1359 ("[T]he only relevant evidence is that which was

considered by Judge Boldt when he made his finding"); MuckleshootlII, 235 F.3d

at 432-33. The District Court here did just that.

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First, the District Court determined "that there is sufficient ambiguity

surrounding Judge Boldt's use of the term 'Puget Sound' in describing the

Suquamish U&A to require clarification." ER 0016, 003 i-32.

when

Second, the District Court examined the actual evidence before Judge Boldt

he defined Suquamish's U&A to determine if Judge Boldt intended

something other than the apparent meaning of Suquamish's U&A. As this Court

instructed in Muckleshoot 1, "[W]hen interpreting an ambiguous prior judgment,

the reviewing court should 'construe a judgment so as give effect to the intention

of the issuing court.'" 141 F.3d at 1359, quoting Narramore v. U.S., 852 F.2d 485,

490 (9 th Cir. 1988). In this portion of the inquiry, the District Court placed "the

burden.., on the Upper Skagit and the Swinomish to demonstrate that there was

no evidence before Judge Boldt that Suquamish fished on the east side of Whidbey

Island, or traveled through there on their way up to the San Juans and the Fraser

River area." ER 0023. Upper Skagit and Swinomish met that burden. The

District Court then examined and rejected Suquamish's proffer of "evidence" that

their U&A encompassed the Subproceeding Areas.

2. The District Court Properly Examined The Evidence Before

Judge Boldt To Make This Determination.

In its effort to examine the evidence before Judge Boldt in 1975 when

Suquamish's U&A was determined, the District Court extensively reviewed the

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reports and testimony of Dr. Barbara Lane. Dr. Lane, an anthropologist, was the

"expert witness whose anthropological report on historical tribal fishing grounds

was the major item of evidence relied on by Judge Boldt." MuckleshootI, 141

F.3d at 1357. On the basis of that review, the District Court concluded that

Dr. Lane's reports and testimony contained no references to Suquamish fishing or

traveling in the Subproceeding Areas, the waters on the eastern side of Whidbey

Island. ER 0023-26.

Nowhere in this discussion, or in Dr. Lane's entire testimony, was the

area designated as Area 4 on the map mentioned. Nor were Skagit

Bay and Saratoga Passage ever mentioned in Dr. Lane's testimony

regarding the Suquamish travels and fishing; or in her report. While

she did testify that the Suquamish traveled up to the Fraser River, herreference to the Strait of Juan de Fuca, Haro and Rosario Strait places

their route on the west side of Whidbey Island, from Port Madison

area and up through the San Juan Islands. Her one statement in her

report that the Suquamish traveled "to" Whidbey Island is insufficient

to support a finding that they fished or traveled in the waters on the

eastern side of Whidbey Island.

This absence of evidence regarding Suquamish fishing or travel

through Saratoga Passage and Skagit Bay leads the Court to conclude

that the .Upper Skagit and Swinomish have met their burden ofdemonstrating that Judge Boldt did not intend to include these areas in

the Suquamish U&A.

ER 0026.

Requiring the District Court to examine the record before Judge Boldt to

clarify a U&A makes perfect sense. In order to establish a U&A in the first place,

Judge Boldt required a tribe to present evidence about "every fishing location

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where members of a tribecustomarilyfishedfrom time totime atand beforetreaty

times."U.S.v. Washington,384 F.Supp. at332. U&A rightscould not be granted

ifno such cvidence was presented. The DistrictCourt's review of the record

before Judge Boldt confirms thatSuquamish presentedno evidence to establish

thatit"customarilyfishedfrom Lime totime" intheSubproceedingAreas.

The DistrictCourt correctlylimiteditsreview of the recordto thatwhich

was beforeJudge Boldt atthetime he issuedSuquamish's U&A determination,as

requiredby Muckleshoot III,235 F.3d at432-433 ("The only relevantevidenceis

thatwhich was consideredby Judge Boldt when he made his finding.").The

DistrictCourt'sreview of thatrecordand the evidencepresentedto Judge Boldt

duringthe 1975 heatingconfirmedthattherewas no evidencebeforeJudge Boldt

that Suquamish eitherfishedin or traveledthrough the Subproceeding Areas.

Accordingly,even though the DistrictCourt found the term "Puget Sound" may

have broadly included the Subproceeding Areas, itnecessarilyfound the term,

when used in Suquamish's U&A, must have meant something other than its

apparentmeaning. Indeed,itwould be inconsistentwith Judge Boldt'sintentto

granta tribeU&A rightsin certainareasin the absence of any historicevidence

establishingthatthetribeeveractuallyfishedintheseareas.

In support of itsclaim to U&A rightsbefore the trialcourt in 1975,

Suquamish submitteda reportdatedDecember 15, 1974, entitled"Identity,Treaty

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Status and Fisheries of the Suquamish Tribe of the Port Madison Reservation"

authored by Dr. Barbara Lane. The report was admitted at trial as USA 73.

ER 0257-0311. That exhibit identified Suquamish's fishing areas as adjacent to

the Kitsap Peninsula and "the west side of Puget Sound." ER 0259, 0270, 0280.

As the District Court noted, the report is devoid of any mention of Suquamish

fishing in the Subproceeding Areas. The District Court specifically recognized

that all of the areas where Suquamish traditionally took fish were on the "western

side of Puget Sound." ER 0024-25. No references appear in that report to

Suquamish ever fishing east of Whidbey Island. It was this report and the

testimony of Dr. Lane that Judge Boldt primarily relied upon to determine

Suquamish's U&A.

As the District Court noted, this Court has previously given extreme

deference to the ethnohistorical and anthropological work of Dr. Barbara Lane.

"Both this Court and the Ninth Circuit Court of Appeals have noted on several

occasions that .Judge Boldt relied heavily on the reports and testimony of

anthropologist Dr. Barbara Lane in determining the U&As of various tribes."

ER 0023. See also, Muckleshoot 1, 141 F. 3d at 1359 (Dr. Lane's Report "was

cited and heavily relied upon by Judge Boldt in his decision."); Muckleshoot 111,

235 F. 3d at 437 (Judge Boldt specifically noted that Dr. Lane's testimony prevails

over that of expert Dr. Riley in the event of a conflict). It is undisputed, upon a

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review of both Dr. Lane's written report and her testimony submitted during the

course of Suquamish's 1975 U&A hearing, that Dr. Lane found no evidence that

Suquamish ever fished in the Subproceeding Areas.

The heart of the issue before the District Court was whether the record

contained any documentary or testimonial evidence to support Suquamish's claim

to U&A rights in the Subproceeding Areas. The District Court was correct in

finding that no such evidence exists. Certainly Judge Boldt could not have

intended to permit a Tribe to exercise a right to fish in areas where it had not fished

prior to and at treaty times.

In fact, Judge Boldt himself clearly ruled that Suquamish did not have U&A

rights in the Subproceeding Areas. At the conclusion of the U&A portion of the

heating before him on April 10, 1975, Judge Boldt specifically determined that

Suquamish had U&A rights in "areas one and two as designed by the state."

ER 0188. When Mr. Dysart, counsel for the United States, sought clarification

from Judge Boldt on this issue, Judge Boldt again stated on the record that

Suquamish's U&A was limited to areas one and two. ER 0190-0191. Saratoga

Passage and Skagit Bay are in area four, not in areas one and two. ER 0112.

Thus, this Court has more than just the foregoing evidence that Judge Boldt

intended to exclude the Subproceeding Areas from Suquamish's U&A; it has

Judge Boldt's specific findings on the issue. This is a direct, affirmative, and

161003 005 de310103

unambiguous confirmation that Judge Boldt did not intend Suquamish's U&A to

include the Subproceeding Areas. He said so himself. Nothing could be clearer.

B. Unable To Identify Evidence In The Record Before Judge Boldt To

Support Its Claim To U&A Rights In The Subproceeding Areas,Suquamish Unfortunately Misconstrues The District Court's Reasoning

And Ignores This Court's Precedent.

First, Suquamish contends in its brief that Judge Boldt's definition of"Puget

Sound" "concisely and unambiguously defined the geographic extent of

Suquamish's U&A." Yet Suquamish's argument ignores the text of the U&A itself

and ignores the District Court's repeated determinations regarding the ambiguity in

Suquamish's U&A. While perhaps concise, the text of Suquamish's U&A

certainly is not unambiguous. Indeed, as the District Court recognized, the issue is

not whether the term "Puget Sound" is ambiguous, but rather whether ambiguity

exists in how that term was used within Suquamish's U&A. It was that ambiguity

that was determined to require clarification by the Court. ER 0016, ER 0031-32.

Second, Suquamish suggests that once the District Court determined that

Judge Boldt defined "Puget Sound" as including the Subproceeding Areas, the

inquiry must cease. This argument is prem!sed upon a misreading of the test

established by this Court for understanding Judge Boldt's intent when interpreting

a U&A determination, as set forth in Muckleshootl, 141 F.3d at 1359. The

question is whether the U&A is ambiguous or if Judge Boldt intended something

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other than the apparent meaning of the U&A. The District Court's finding that the

term "Puget Sound" itself was not ambiguous does not terminate the inquiry. The

actual evidence before Judge Boldt must then be examined, as the District Court

did here, to determine if Judge Boldt intended something different than the

apparent meaning of the U&A. Certainly, absent evidence in the record that

Suquamish actually fished in the Subproceeding Areas prior to and at treaty times,

no U&A rights could have been granted to that area consistent with Judge Boldt's

own definition of the evidence required to establish U&A fights in the first place.

Third, Suquamish repeatedly contends that the District Court improperly

permitted Upper Skagit and Swinomish to "relitigate" Suquamish's U&A. On this

point, Suquamish is also mistaken. In their requests for determination in this

subproceeding, Upper Skagit and Swinomish did not seek to relitigate issues

finally determined by Judge Boldt, but instead sought clarification of Suquamish's

U&A. This is a distinction clearly recognized by this Court in previous U.S.v.

Washington subproceedings. See, e.g., Muckleshootl, 141 F.3d at 1359 fla. 6

("Muckleshoot's motion did not propose to relitigate issues finally determined by

the decrees but sought only clarification of two findings ... the motion did not

attempt to change the terms of the decree or challenge its finality or validity.")

Similarly here, Upper Skagit and Swinomish did not challenge the finality or

validity of Suquamish's U&A, but simply asked that its scope be clarified by the

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District Court in response to Suquamish's recent improper attempts to expand its

U&A by infringing on the U&As of the requesting tribes. Upper Skagit and

Swinomish did not ask the District Court to rewrite Suquamish's U&A. Instead,

their requests for determination asked the District Court, consistent with Ninth

Circuit precedents, to divine the intention of Judge Boldt when Suquamish's U&A

was adjudicated.

Fourth, Suquamish contends that Judge Boldt "understood the broad

g_graphic extent of the term 'Puget Sound,'" and intentionally established a broad

marine U&A in Puget Sound for Suquamish that included the Subproceeding

Areas. Yet this argument ignores the fact that, in defining U&As of other tribes

that included portions of Puget Sound, Judge Boldt routinely provided specific

geographical definitions as to their boundaries, and specifically identified bays,

straits, and island areas that he intended to include. For example:

• The U&A for the Lummi Tribe was defined as "the marine areas of

Northern Puget Sound from the Fraser River south to the present

environs of Seattle, and particularly Bellingham Bay. Freshwater

fisheries include the river drainage systems, especially the Nooksack,

emptying in the bays from Boundary Bay south to Fidalgo Bay." U.S.v.

Washington, 384 F. Supp. at 360.

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• The U&A of the Puyallup Tribe was defined as "the marine areas around

Vashon Island and adjacent portions of Puget Sound, Commencement

Bay, the Puyallup River, and the tributary rivers and creeks." ld. at 371.

• The U&A of the Nooksack Tribe was defined as "the Nooksack River

and its tributaries, Bellingham Bay, Chuckanut Bay, Birch Bay,

Semiahmoo Bay, and Semiahmoo Spit and surrounding marine waters."

U.S.v.. Washington, 459 F. Supp. at 1049.

• The U&A of Swinomish was defined as "the Skagit River and its

tributaries, the Samish River and its tributaries, and the marine areas of

Northern Puget Sound from the Fraser River south to and including

Whidb3,, Camano, Fidalgo, Guemes, Samish, Cyprus, and the San Juan

Islands, and including Bellingham Bay and Hale Passage adjacent to

Lummi Island." ld. at 1049.

• The U&A of Tulalip Tribes was defined as "[b]eginning at Admiralty

Head on Whidbey Island and proceeding south, those-waters described as

Admiralty Bay and Admiralty Inlet, then southeasterly to include the

remainder of Admiralty Inlet including Mutiny and Useless Bay, then

northeasterly to include Possession Sound and Port Gardner Bay, then

northwesterly to include the waters of Port Susan up to a line drawn true

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west of Kyak Point and Holmes Harbor and Saratoga Passage up to a line

drawn true west of Camano on Camano Island." ld. at 1059 (emphasis

added).

The Tulalip U&A is perhaps the most telling. The Court's specific

identification of Possession Sound is critical, for Possession Sound lies, like the

Subproceeding Areas, east of Whidbey Island. Indeed, Possession Sound lies just

south of the Subproceeding Areas. That Judge Boldt considered Possession Sound

a distinct body of water deserving of specific identification is a strong indicator

that he would have similarly considered the Subproceeding Areas as distinct bodies

of water deserving of specific identification, and as areas outside of "Puget

Sound." Moreover, in the same Tulalip U&A decision, Judge Boldt specifically

referenced "Saratoga Passage," a designation he declined to use for Suquamish.

In the proceedings below, Suquamish asserted that Saratoga Passage and

Skagit Bay were part of its U&A even though they .were never specifically

identified by Judge Boldt in his description of Suquamish's U&A. However, even

a cursory review of the U&A descriptions of other Puget Sound tribes confirms

that the U&As were routinely defined and bounded by the inclusion of specifically

identified geographic anchors. Specific areas of a tribe's U&A were defined by

inclusion and not by omission, as Suquamish asserted below.

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If Judge Boldt's use of the term "Puget Sound" was intended to include all

straits and bays such as the Subproceeding Areas at issue here, those straits and

bays would have been specifically called out in Suquamish's U&A, just as Judge

Boldt saw fit to do in defining the U&A of the Tulalip Tribes and other tribes. It is

of' great significance, then, that they were not. Only Haro and Rosario Straits were

specifically called out as included in Suquamish's U&A. Had Judge Boldt

intended to include Skagit Bay and Saratoga Passage, he would have and could

have specifically defined them. It is undisputed that he did not. It is also

undisputed that Suquamish did not seek reconsideration of its U&A to include

those areas.

In U.S.v. Lummi Indian Tribe, the Court was asked to adjudicate a request

for determination concerning the U&A of the Lummi Tribe. In its opinion, this

Court concluded that Judge Boldt's definition of the Lummi Tribe's U&A, which

included a reference to Puget Sourid, was ambiguous "because it does not delineate

the western boundary" of the U&A. 235 F.3d 443, 449 (9 th Cir. 2000). In this

case, Suquamish's U&A is similarly ambiguous because the eastern boundary of

its U&A in Puget Sound is not delineated. This Court also determined that if

Judge Boldt had intended to include certain specific areas in the Lummi's U&A, he

would have specifically named them. That he did not was deemed significant.

• Id. at 451-452. Essentially, Suquamish is attempting to take fish and shellfish at

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locations that were not identified by Judge Boldt, and the Dis .tTict Court was

correct in finding that the boundaries of Suquamish's U&A do not include the

Subproceeding Areas.

Finally, Suquamish challenges the District Court's consideration of

Suquamish's own fishing regulations, issued within months of Judge Boldt's U&A

determination for the Tribe. The District Court demonstrated throughout the

proceedings its strict adherence to the evidentiary standards established by this

Court in Muckleshoot I & 11. It refused to consider extrinsic evidence offered by

the parties in an effort to assist the Court in determining Judge Boldt's intent. The

District Court's consideration of Suquamish fishing regulations was for the sole

purpose of confirming that Suquamish themselves interpreted their U&A just as the

District Court did; the Subproceeding Areas were not included within the U&A.

ER 0028, ER 0229-0240. As the District Court correctly noted, "While the

Suquamish correctly argue that it would be improper to use these fishing

regulations as evidence of Judge Boldt's intent, it is not improper to use them as

evidence of the Suquamish Tribe's understanding of their own U&A at that time."

ER 0028. The District Court did not rely upon these regulations as evidence of

Judge Boldt's intent. This Court, too, should consider Suquamish fishing

regulation as an admission by Suquamish that the District Court's determination

excluding the Subproceeding Areas from Suquamish's U&A is correct.

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C. Suquamish Is Estopped From Arguing That The Term "Puget Sound"

Is Unambiguous When It Has Repeatedly Argued The OppositePosition Before This Court.

Suquamish repeatedly contends that its U&A is "unambiguous," in part

because Judge Boldt's definition of Puget Sound was "geographically specific."

See, e.g,. Appellant's Opening Brief at 6. Not only is Suquamish mistaken for the

reasons set forth above, but the doctrine of judicial estoppel bars Suquamish from

taking diametrically opposed positions in different but related matters before this

Court.

Suquamish contended before the District Court that "Puget Sound itself is

unambiguous" and "serves as a clear and distinct reference." However, Suquamish

cannot credibly make that argument in this subprocecding because it argued

exactly the opposite position to the District Court and to the Ninth Circuit in

Muckleshoot III, 235 F.3d at 432, where it contended that reference to "Puget

Sound" was ambiguous ("The Tribes counter that the phrase ['secondarily in the

saltwaters of Puget Sound'] is ambiguous when examined in the context of the

evidence before Judge Boldt"). In that case, Suquamish and other Tribes had filed

a request for determination in which they contended that the U&A of the

Muckleshoot Tribe did not include areas beyond Elliott Bay. The District Court

agreed and the Ninth Circuit affirmed.

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24

In the brief Suquamish submitted to this Court in that case, it specifically

asserted:

Analysis of the body of his U & A findings shows that Judge Boldt

sought to blunt the obvious ambiguity of "Puget Sound" and other

generic place names through careful citation of supporting evidence in

the record and reference to specific geographic "anchors."...

The geographical scope of the phrase "secondarily in the saltwater of

Puget Sound" is ambiguous on its face, particularly in the absence of

any geographically-limiting language ....

• the borders of Puget Sound are amorphous and, thus, itsboundaries cannot be ascertained from the face of the finding ....

c. "Puget Sound"

The ambiguity inherent in this term is apparent in light of the

maddening imprecision and inconsistency with which the Court, the

parties, the witnesses, and the exhibits in this case have used the

phrase "Puget Sound."...

Without any precise geographical boundaries to "Puget Sound," the

phrase "secondarily in the saltwater of Puget Sound" is ambiguous onits face.

ER 0316, 0318-0323. Having argued repeatedly to this Court that Puget Sound is

an ambiguous term without specific boundaries or "geographic anchors,"

Suquamish is barred under the doctrine of judicial estoppel from taking a directly

inconsistent position in this case. See, Yanez v. United States, 989 F.2d 323, 326

(9 th Cir: 1993); Morris v. California, 966 F.2d 448, 452 (9 th Cir. 1991), cert.

denied, 121 L. Ed. 2d 57 (1992).

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25

VIII. CONCLUSION

This Court should affirm the District Court's grant of summary judgment in

favor of both Upper Skagit and Swinomish. The District Court applied the correct

standards as previously articulated by this Court in limiting its inquiry to the record

before Judge Boldt at the time Suquamish's U&A was determined in 1975. Upon

a review of that record, the District Court came to the inescapable conclusion that

Judge Boldt could not have intended to grant U&A rights to .Suquamish in the

Subproceeding Areas, since there was no evidence in the record before Judge Boldt

to support such a finding. The District Court's decision should be affirmed.

RESPECTFULLY SUBMITTED this 15th day of June, 2007.

OFFICE OF THE TRIBAL ATTORNEYUPPER SKAGIT INDIAN TRIBE

Harold Chesnin, WSB No.David Hawkins, WSB No. 35370

SALTER JOYCE ZIKER, PLLC

Andrew H. Salter, WSB No. 11954Attorneys for Upper Skagit Indian Tribe

261003 005 de310103

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Appellee Upper Skagit Indian Tribe

states that the following cases related to this case are pending in this Court: United

States of America, et al., and The Tulalip Tribes, Plaintiff-Appellant v. State of

Washington, et al., Defendants, and Suquamish Tribe, Defendant-Appellee, Ninth

Circuit Appeal No. 06-35185, and United States of America, et al., Plaintiffs v.

State of Washington, et al., Defendants, and Suquamish Indian Tribe, Defendant-

Appellee, Lummi Nation, Real-Party-in-Interest�Appellant, Ninth Circuit Appeal

No. 06-35241.

DATED this 15th day of June, 2007.

Andrew H. Salter

Attorney for Upper Skagit Indian Tribe

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on June 15, 2007, I filed the original and 15 copies of

the RESPONSE BRIEF OF APPELLEE UPPER SKAGIT INDIAN TRIBE

along with five copies of APPELLEE UPPER SKAGIT INDIAN TRIBE'S

SUPPLEMENTAL EXCERPTS OF RECORD with the Ninth Circuit Court of

Appeals via Federal Express to:

Cathy A. CattersonOffice of the Clerk

U.S. Court of Appeals95 Seventh Street

San Francisco, CA 94103-1518

I further certify that on June 15, 2007, I served two copies of the foregoing

documents on the parties listed below by postage pre-paid U.S. first class mail:

MicheUe Hansen, Esq.

Suquamish Tribe

Office of Tribal AttorneyP.O. Box 498

Suquamish, WA 98392

Attorneys for Suquamish Indian Tribe

Alix Foster, Esq.

James Janetta, Esq.

Office of Tribal Attorney

Swinomish Indian Tribal CommunityP.O. Box 817, 11404 Moorage Way

LaConner, WA 98257

Attorneys for Swinomish Indian Tribal

Community

11003 005 de310103

Mason D. Morisset, Esq.

Rob Roy Smith, Esq.

Morisset, Schlosser, Jozwiak & McGaw1115 Norton Building

801 Second Avenue

Seattle, WA 98104-1509

Attorneys for Tulalip Tribe

Daniel A. Raas, Esq.

Harry L. Johnson, Esq.Raas Johnsen & Steven P.S.

1503 E Street

P. O. Box 5746

Bellingham, WA 98227-5746

Attorneys for Lummi Indian Nation

Lauren P. Rasmussen, Esq.Gendler & Mann LLP

1424 Fourth Avenue, Suite 1015

Seattle, WA 98101-2217

Attorneys for Port Gamble S'Klallamand Jamestown S'Klallam Tribes

Gregory M. O'Leary, Esq.315 FitCh Avenue South

Suite 1000

Seattle, WA 98104

Attorneys for Muckleshoot Indian Tribe

Bill Tobin, Esq.P. O. Box 1425

Vashon, WA 98050

Attorneys for Nisqually Indian Tribe

Samuel Stiltner, Esq.

Law Office, Puyallup Tribe3009 Portland Avenue

Tacoma, WA 98404

Attorneys for Puyallup Tribe

Loft Nies, Esq.Skokomish Indian Nation

North 80 Tribal Center Road

Skokomish Nation, WA 98584

Attorneys for Skokomish Indian Nation

Charles R. Hostnik, Esq.

Robert Troyer, Esq.

Hogan & Hartson LLP1200 17th Street

Suite 1500

Denver, CO 80202

Attorneys for LowerTribe

Elwha Klallam

I declare under penalty of perjury under the laws of the State of Washington

that flae foregoing is true and correct.

DATED at Seattle, Washington, this 15th day of June, 2007.

Andrew H. Salter

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