Federal Court Concludes U.S. v. Washington 11-02 Subproceeding [Lummi + S’Klallam Tribes]

Here are the new materials in United States v. Washington (W.D. Wash.) [subproceeding 11-02]:

238 Jamestown and Port Gamble S’Klallam Tribes Motion

240 Lummi Response

244 Lower Elwha Response

247 Jamestown and Port Gamble Reply

252 Lower Elwha Motion

254 Lummi Response

255 Jamestown and Port Gamble Response

260 Lower Elwha Reply

262 Jamestown and Port Gamble Surreply

264 DCT Order

Ninth Circuit materials here and here.

Previous lower court court materials here.

Ninth Circuit Rules in Favor of Lummi over Klallam Tribes in U&A Litigation

Here is the opinion in Lower Elwha Klallam Tribe v. Lummi Nation.

From the syllabus:

The panel reversed the district court’s summary judgment in favor of the Lower Elwha Klallam Indian Tribe, and held that the disputed waters west of Whidbey Island, Washington were included in the Lummi Nation’s right of taking fish at usual and accustomed grounds and stations (“U & A”) under the 1855 Treaty of Point Elliot.

In United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), Judge Boldt developed a framework for determining U & As for Indian signatories to the Treaty. In Finding of Fact 46, Judge Boldt stated that the U & A for the Lummi Indians “included the marine areas of Northern Puget Sound from the Fraser River south to the present
environs of Seattle.” 

To determine whether the waters west of Whidbey Island were included in the Lummi’s U & A, the panel followed a two-step procedure. At step one, the panel held that Fact 46 was ambiguous because it did not clearly include or exclude the disputed waters. At step two, the panel examined the record before Judge Boldt to clarify his intent, and concluded that the district court erred in excluding the disputed waters
from the Lummi’s U & A. The panel held that the district court improperly imposed a heightened standard in holding that logic or linguistics needed to “compel the conclusion” that contested waters be included in a U & A.

Briefs here.