This is the appeal in United States v. Washington subproceeding 14-01:
Lower court materials here.
United States v. Washington
Ninth Circuit Dismisses Appeal of Fake Indians and Fake Indian Court
Here are the materials in Koniag Inc v. Kanam:
8 Order Setting Briefing Schedule
Ninth Circuit Decides Tulalip Tribes v. Suquamish Tribe
Here is the opinion. From the syllabus:
The panel affirmed the district court’s summary judgment in a treaty fishing rights case in which the Tulalip Tribes sought a determination of the scope of the Suquamish Indian Tribe’s usual and accustomed fishing grounds and stations.
The Tulalip Tribes invoked the district court’s continuing jurisdiction as provided by a permanent injunction entered in 1974. The panel affirmed the district court’s conclusion that certain contested areas were not excluded from the Suquamish Tribe’s usual and accustomed fishing grounds and stations, as determined by the district court in 1975.
Briefs here.
S’Klallam Tribes Prevail over Lummi in U.S. v. Washington U&A Subproceeding
Here are the materials in United States v. Washington subproceeding 11-2 (W.D. Wash.):
164 Jamestown and Port Gamble Motion
176 Jamestown and Port Gamble Response
186 Jamestown and Port Gamble Reply
This matter is on remand from the Ninth Circuit, materials here.
Upper Skagit Tribe Prevails over Suquamish Tribe in U&A Subproceeding
Here are the materials in United States v. Washington (W.D. Wash., subproceeding 14-01):
37 Suquamish Motion for Summary J
38 Upper Skagit Motion for Summary J
Federal Court Rules in Favor of Squaxin Island in Shellfish Dispute
Here are the materials in United States v. Washington (W.D. Wash., subproceeding 89-3-09):
Materials on Makah Indian Tribe’s Request for Determination Re Quileute and Quinault Usual and Accustomed Fishing Grounds in the Pacific Ocean
There is the potential for an enormous amount of chaos for both US v. Washington and for any Indian tribe with extant treaty rights based on the arguments going on here now. Most notably, several tribes (Quinault, Quileute, and Hoh) are claiming that the Sherrill-based equitable defenses may apply in some way to Indian treaty claims.
I find this personally horrifying and disturbing — that any tribe would claim that Sherrill and its Second Circuit progeny apply to treaty rights. Sherrill is a statute-based claim, and so are the Second Circuit cases that purport to follow its reasoning. Treaty rights are an entirely different genre.
I sincerely hope the U.S. v. Washington tribes will opt-out of federal litigation — with its potential to undercut treaty rights for tribes all over the country — and move toward an inter-tribal treaty. There is at least one proposal on the table, and tribal leaders and tribal constituents should act quickly to adopt it. These inter-tribal disputes are doing nothing now but threatening to make bad law for everyone.
Luckily, Judge Martinez did not hold that equitable defenses apply here, but who knows what will happen in the Ninth Circuit and beyond.
Here are the new materials in subproceeding 09-01 of United States v. Washington (No. 70-9213) (W.D. Wash.):
248 Makah Motion for Summary J on Equitable Defenses
251 Quinault and Quileute Motion for Summary J
267 Quinault and Quileute Response to 248 Motion
274 Makah Reply in Support of 248 Motion
275 Interested Tribes Response to 251 – Equitable Defenses
279 Quileute and Quinault Reply in Support of 251
281 Quileute and Quinault Reply in Support of 251
283 Quileute and Quinault Motion to Define Burden of Proof
284 Interested Tribes Response to 283 — Burden of Proof
285 US Response to 283 — Burden of Proof
286 Upper Skagit Tribe Response to 283 — Burden of Proof
287 Makah Response to 283 — Burden of Proof
288 State of Washington Response to 283 — Burden of Proof
289 Quileute and Quinault Reply to 284 in Support of 283
290 Quileute and Quinault Reply in Support of 283
304 DCT on Motions for Summary J
Materials in a related pending Ninth Circuit matter in subproceeding 09-01 are here.
Ninth Circuit Materials in Hoh/Quinault/Quileute v. Port Gamble/Jamestown/Makah Subproceeding 09-1
Here are the briefs in United States v. Washington subproceeding 09-1:
Quinault & Quileute Tribes Opening Brief
Port Gamble and Jamestown S’Klallam Tribes Answer Brief
Ninth Circuit Materials in Tulalip v. Suquamish Subproceeding 05-4
Ninth Circuit Rules in Favor of Lummi Tribe in Treaty Fishing Dispute
Here is the court’s opinion in United States (Lower Elwha Klallam Indian Tribe) v. Lummi Tribe:
The court’s syllabus:
The panel reversed the district court’s summary judgment entered in favor of the Klallam Tribe in a case involving a fishing territory dispute between two sets of Indian Tribes, brought pursuant to the continuing jurisdiction of the 1974 “Boldt Decree” issued by the U.S. District Court for the Western District of Washington.
The panel held that the issue of whether the waters immediately to the west of northern Whidbey Island were part of the Lummi Tribe’s usual and accustomed fishing grounds had not yet been determined. The panel held, therefore, that the district court erred in concluding that the issue was controlled by law of the case. The panel remanded to the district court for further proceedings.
Judge Rawlinson dissented because she would hold that the district court properly applied the law of the case doctrine where the fishing rights issue was addressed in the prior opinion United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000).
Briefs and other materials here.
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