FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff,

and

LOWER ELWHA KLALLAM INDIAN 

TRIBE; JAMESTOWN S’KLALLAM 

TRIBE; PORT GAMBLE S’KLALLAM 

TRIBE,

Petitioners-Appellees,

v. 

LUMMI NATION,

Respondent-Appellant,

and

STATE OF WASHINGTON,

Defendant, 

SWINOMISH INDIAN TRIBAL 

COMMUNITY; SUQUAMISH TRIBE;

MAKAH INDIAN TRIBE;

STILLAGUAMISH TRIBE; UPPER 

SKAGIT INDIAN TRIBE; NISQUALLY 

INDIAN TRIBE; TULALIP TRIBES;

SQUAXIN ISLAND TRIBE,

Real-Parties-in-Interest.

No. 15-35661

D.C. No.

2:11-sp-00002-RSM

OPINION
2 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted August 30, 2017

Seattle, Washington

Filed December 1, 2017

Before: Michael Daly Hawkins and M. Margaret 

McKeown, Circuit Judges, and Elizabeth E. Foote,*

District Judge.

Opinion by Judge McKeown

SUMMARY**

Fishing Rights

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.

 * The Honorable Elizabeth E. Foote, United States District Judge for 

the Western District of Louisiana, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 3

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.

COUNSEL

Deanne E.Maynard (argued), Brian R.Matsui, and James R. 

Sigel, Morrison & Foerster LLP, Washington, D.C.; Mary 

Neil, Reservation Attorney, Lummi Nation, Bellingham, 

Washington; Christopher J. Carr and James R. Sigel, 

Morrison & Foerster LLP, San Francisco, California; for 

Respondent-Appellant.

Stephen H. Suagee (argued) and Samuel D. Hough, Office 

of General Counsel, Lower Elwha Klallam Tribe, Port 

Angeles, Washington, for Petitioner-Appellee Lower Elwha 

Klallam Tribe.
4 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

Lauren Rasmussen (argued), Law Offices of Lauren P. 

Rasmussen, Seattle, Washington, for Petitioners-Appellees

Jamestown S’Klallam Tribe and Port Gamble S’Klallam 

Tribe.

Mason D. Morisset and Rebecca JCH Jackson, Morisset 

Schlosser Jozwiak & Somerville, Seattle, Washington, for 

Real-Party-in-Interest Tulalip Tribes.

Howard G. Arnett and John W. Ogan, Karnopp Petersen, 

Bend, Oregon; James Rittenhouse Bellis, Suquamish Tribe, 

Suquamish, Washington; for Real-Party-in-Interest 

Suquamish Indian Tribe.

OPINION

McKEOWN, Circuit Judge:

This appeal asks whether the Treaty of Point Elliott (the 

“Treaty”) reserves to the Lummi Nation (the “Lummi”) the 

right to fish in the waters west of Whidbey Island, 

Washington. We previously concluded that the Treaty 

secures the Lummi’s right to fish in Admiralty Inlet because 

the Lummi would have used the Inlet as a passage to travel 

from its home in the San Juan Islands to present-day Seattle. 

The same result holds here because the waters at issue are 

situated directly between the San Juan Islands and Admiralty 

Inlet and also would have served as a passage to Seattle. We 

reverse the district court’s judgment to the contrary. 

Background

The 1855 Treaty of Point Elliott secures the Lummi’s 

“right of taking fish at usual and accustomed grounds and 
LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 5

stations” (“U&A”). Treaty of Point Elliott, art. V, Jan. 22, 

1855, 12 Stat. 927, 928. Over 100 years later, Judge Boldt 

of the Western District of Washington developed a 

framework for determining U&As for Indian signatories to 

the Treaty and other similarly worded treaties. See generally 

United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 

1974) (Decision I), aff’d, 520 F.2d 676 (9th Cir. 1975). 

Litigation over the various tribes’ U&As has been ongoing 

ever since.

Judge Boldt defined a U&A as “every 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 

then also fished in the same waters.” Decision I, 384 F. 

Supp. at 332. Importantly, a U&A cannot be established by 

“occasional and incidental trolling” in marine waters “used 

as thoroughfares for travel.” Id. at 353. As to the Lummi, 

Judge Boldt provided some general background on the 

tribe’s fishing and techniques in Finding of Fact 45, and then 

made a U&A finding in Finding of Fact 46:

45. Prior to the Treaty of Point Elliott, the 

Lummi, Semiahmoo and Samish Indians had 

been engaged in trade in salmon, halibut and 

shellfish both with other Indians and with 

non-Indians. This trade continued after the 

treaty. At the time of the treaty they 

maintained prosperous communities by 

virtue of their ownership of lucrative 

saltwater fisheries. The single most valuable 

fish resource was undoubtedly the sockeye, 

which the Lummis were able to intercept in 

the Straits on the annual migration of the 

sockeye from the ocean to the Fraser River. 

Lummi Indians developed a highly efficient 
6 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

technique, known as reef netting, for taking 

large quantities of salmon in salt water. 

Aboriginal Indian ‘reef netting’ differs from 

present methods and techniques described by 

the same term. The Lummis had reef net sites 

on Orcas Island, San Juan Island, Lummi 

Island and Fidalgo Island, and near Point 

Roberts and Sandy Point. When nature did 

not provide optimum reef conditions the 

Indians artificially created them. Reef 

netting was one of the two most important 

economic activities engaged in by these 

Indians, the other being the sale of dog fish 

oil. These Indians also took spring, silver and 

humpback salmon and steelhead by gill nets 

and harpoons near the mouth of the Nooksack 

River, and steelhead by harpoons and 

basketry traps on Whatcom Creek. They 

trolled the waters of the San Juan Islands for 

various species of salmon.

46. In addition to the reef net locations listed 

above, the usual and accustomed fishing 

places of the Lummi Indians at treaty times 

included the marine areas of Northern Puget 

Sound from the Fraser River south to the 

present environs of Seattle, and particularly 

Bellingham Bay. Freshwater fisheries 

included the river drainage systems, 

especially the Nooksack, emptying into the 

bays from Boundary Bay south to Fidalgo 

Bay.

Id. at 360–61 (emphases added) (citations omitted).
LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 7

These findings formed the foundation of our earlier 

adjudication of parts of the Lummi’s U&A. Notably, we 

held that Admiralty Inlet was included in the Lummi’s U&A 

but the Strait of Juan de Fuca was excluded. See United 

States v. Lummi Indian Tribe, 235 F.3d 443, 445, 451–52 

(9th Cir. 2000) (Lummi I). Admiralty Inlet is due south of 

the waters contested here—the waters west of Whidbey 

Island. The Strait of Juan de Fuca lies further west of both 

of those waters.

This dispute began in 2011. The Lower Elwha Klallam 

Tribe, the Jamestown S’Klallam Tribe, and the Port Gamble 

S’Klallam Tribe (collectively, the “Lower Elwha”) invoked 

the district court’s continuing jurisdiction under Decision I 

to determine whether the Lummi has the right to fish in the 

waters west of Whidbey Island. The district court granted 

summary judgment to the Lower Elwha, reasoning that 

Lummi I had determined that the waters west of Whidbey 

Island are excluded from the Lummi’s U&A.

On appeal, we disagreed with the district court’s 

conclusion that the law of the case doctrine applied. United 

States v. Lummi Nation, 763 F.3d 1180, 1185–88 (9th Cir. 

2014) (Lummi II). Examining the decision in Lummi I, we 

noted that while there were some indications that the 

contested waters were excluded from the Lummi’s U&A, 

there were strong indications pointing the other way too. Id.

at 1186–87. In particular, Lummi I’s geography-based 

reasoning suggested that “the waters immediately west of 

northern Whidbey Island are a part of the Lummi’s U & A.” 

Id. at 1187 (emphasis in original). Thus, we concluded that 

Lummi I had not yet decided the issue explicitly or by 

“necessary implication.” Id. at 1187–88. In other words, the 

law of the case was not the operative standard. Instead, we 

remanded for the district court to apply the usual U&A 

procedures. Id.
8 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

On remand, the district court reached the same 

conclusion as it did before—that the disputed waters are not 

included in the Lummi’s U&A—and again granted summary 

judgment to the Lower Elwha. The court explained that 

“neither logic nor linguistics would compel the conclusion 

that the waters to the west of northern Whidbey Island were 

intended by Judge Boldt to be included in the Lummi U&A.”

The Lummi appealed. Reviewing de novo, we reverse. 

See Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 

1129, 1133 (9th Cir. 2015).

Analysis

This is another chapter in the “ongoing saga” arising 

from Judge Boldt’s original decision. See Makah Indian 

Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir. 

2017). In Finding of Fact 46, Judge Boldt stated that “the 

usual and accustomed fishing places of the Lummi Indians 

at treaty times included the marine areas of Northern Puget 

Sound from the Fraser River south to the present environs of 

Seattle.” Decision I, 384 F. Supp. at 360. To determine 

whether the waters west of Whidbey Island are included in 

the Lummi’s U&A, we follow a two-step procedure. At step 

one, we decide whether a particular finding of fact is 

ambiguous. See Upper Skagit Indian Tribe v. Washington, 

590 F.3d 1020, 1023 (9th Cir. 2010). All parties agree that 

Finding of Fact 46 is ambiguous because it does not clearly 

include or exclude the disputed waters. At step two, we 

examine the record before Judge Boldt to clarify his intent. 

Id. Given this standard and our prior case law concerning 

the Lummi, we conclude that the district court erred in 

excluding the waters west of Whidbey Island from the 

Lummi’s U&A.
LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 9

We also highlight that the district court improperly 

imposed a heightened standard in holding that logic or 

linguistics need to “compel the conclusion” that contested 

waters be included in a U&A. (Emphasis added). We do 

not countenance such a standard because it imposes a nearly 

insurmountable burden on tribes in view of Decision I’s 

decades-long lookback approach. The better approach is to 

construe Judge Boldt’s language in light of the available 

evidence.

Our analysis harkens back to Lummi I, where we 

examined whether Admiralty Inlet is part of the Lummi’s 

U&A. We began by noting that Judge Boldt’s Decision I

does not mention Admiralty Inlet at all, so “there [we]re no 

linguistic clues to compare.” 235 F.3d at 452. But we 

reasoned that, as a matter of geography, Admiralty Inlet fell 

within the “marine areas of Northern Puget Sound from the 

Fraser River south to the present environs of Seattle.” Id. 

Because “Admiralty Inlet would likely be a passage through 

which the Lummi would have traveled from the San Juan 

Islands in the north to the ‘present environs of Seattle,’” the 

disputed area was deemed part of the Lummi’s U&A. Id.

This case is almost identical. As a linguistic matter, in 

Decision I Judge Boldt does not reference Whidbey Island 

with respect to the Lummi’s or any other tribe’s U&A. 

384 F. Supp. at 348–82.1 The only mention of “Whidbey 

 1 The fact that later U&A decisions for other tribes make explicit 

reference to “the waters off the west coast of Whidbey Island” does not 

change our view. See United States v. Washington, 626 F. Supp. 1405, 

1442–43 (W.D. Wash. 1985); United States v. Washington, 459 F. Supp. 

1020, 1056–57 (W.D. Wash. 1978), aff’d, 645 F.2d 749 (9th Cir. 1981) 

(describing fishing grounds “off of Whidbey Island’s West Beach”). Just 

as we did not infer that Judge Boldt intended to exclude Admiralty Inlet 

from the Lummi’s U&A simply because U&A decisions after Decision 
10 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

Island” in Decision I comes in a section labeled 

“DEPARTMENT OF GAME POLICIES AND 

PRACTICES” and says that “The Game Department permits 

fishing for steelhead in all marine areas within its regulatory 

jurisdiction. Saltwater steelhead fisheries are insignificant. 

Most are located on Whidbey Island at Bush Point and 

Lagoon Point.” Id. at 393, 398 (emphasis added). That 

reference does not indicate whether the waters west of 

Whidbey Island are included in “the marine areas of 

Northern Puget Sound from the Fraser River south to the 

present environs of Seattle.” Id. at 360. Like Admiralty Inlet 

in Lummi I, the disputed area here is “just as likely” to be 

included in “Northern Puget Sound” as it is to be excluded. 

235 F.3d at 452.

Turning to the geographic indicators, as we did in Lummi 

I, there is no doubt that the waters west of Whidbey Island 

“would likely be a passage through which the Lummi would 

have traveled from the San Juan Islands in the north to the 

‘present environs of Seattle.’” Id. (quoting Decision I,

384 F. Supp. at 360). The nautical path that we traced in 

Lummi I from the San Juan Islands to Seattle cuts right 

through the waters at issue here. See Lummi I, 235 F.3d at 

452. Indeed, the waters west of Whidbey Island are situated 

just north of Admiralty Inlet, which is included in the 

Lummi’s U&A, and just south of the waters surrounding the 

San Juan Islands (such as Haro and Rosario Straits), which 

are also included in the Lummi’s U&A. As we have already 

observed, “[Lummi I’s] reasoning suggests that the waters 

immediately to the west of northern Whidbey Island would 

 I explicitly reference Admiralty Inlet, we decline to make such an 

inference here concerning the waters west of Whidbey Island. See 

Lummi I, 235 F.3d at 452; Washington, 459 F. Supp. at 1059 (stating that 

the U&A of the Tulalip Tribes includes Admiralty Inlet).
LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 11

be included within the Lummi’s U & A.” Lummi II, 

763 F.3d at 1187.

Importantly, expert anthropologist Dr. Barbara Lane tied 

travel in this corridor to fishing: “The deeper saltwater areas, 

the Sound, the straits, and the open sea, served as public 

thoroughfares, and as such, were used as fishing areas by 

anyone travelling [sic] through such waters.” Tulalip Tribes, 

794 F.3d at 1135. Dr. Lane also reported that “Lummi 

fishermen were accustomed . . . to visit fisheries as distant 

as” the endpoints of the path we carved in Lummi I, and 

“utilized” other fisheries in between. (Emphasis added). 

Judge Boldt lauded Dr. Lane’s work as “exceptionally well 

researched and reported”; Dr. Lane testified extensively at 

trial and Judge Boldt relied heavily on her report in Finding 

of Fact 46 and throughout Decision I. 384 F. Supp. at 350.

The Lower Elwha’s most persuasive argument is that 

general evidence of travel cannot by itself establish U&As. 

Judge Boldt defined “usual and accustomed grounds and 

stations” as “every 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 then also fished in the 

same waters.” Id. at 332. He also specified what was not 

included: “Marine waters were also used as thoroughfares 

for travel by Indians who trolled en route. Such occasional 

and incidental trolling was not considered to make the 

marine waters traveled thereon the usual and accustomed 

fishing grounds of the transiting Indians.” Id. at 353 

(citations omitted). In the Lower Elwha’s view, Judge 

Boldt’s statements stand for the principle that transit through 

an area is insufficient for a U&A finding.

Although the Lower Elwha’s general statement is 

accurate as far as it goes, in Lummi II, we already addressed 
12 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

and rejected this argument in the specific context of the 

Lummi’s U&A. We held that “the Lummi’s use of ‘the 

marine areas of Northern Puget Sound from the Fraser River 

south to the present environs of Seattle’ was more than mere 

‘occasional and incidental trolling.’” Lummi II, 763 F.3d at 

1187. We explained further: “If to ‘proceed through 

Admiralty Inlet’ rendered Admiralty Inlet a part of the 

Lummi U & A, then to proceed from the southern portions 

of the San Juan Islands to Admiralty Inlet would have the 

same effect: to render the path a part of the Lummi U & A, 

just like Admiralty Inlet.” Id. That explanation covers our 

exact situation and fits within our long-accepted framework, 

which requires looking at the evidence “before Judge Boldt 

that the [tribe] fished or traveled in the . . . contested waters.” 

Tulalip Tribes, 794 F.3d at 1135 (emphasis added) (citing 

Upper Skagit, 590 F.3d at 1023).2

We conclude that the waters west of Whidbey Island, 

which lie between the southern portion of the San Juan 

Islands and Admiralty Inlet, are encompassed in the 

Lummi’s U&A. In coming to this conclusion, we need not 

 2 It is true, as the Lower Elwha points out, that the evidence in 

Tulalip Tribes was more than general evidence of travel. For example, 

in addition to evidence that the Suquamish “would have passed through 

the waters west of Whidbey Island, and likely would have fished there 

while traveling,” there was evidence from an expert report that the 

“Suquamish travelled [sic] to Whidbey Island to fish.” 794 F.3d at 1135. 

Nevertheless, Tulalip Tribes appears to indicate that the general evidence 

of travel was “some evidence” that was sufficient to satisfy the necessary 

standard. See id. (“This general evidence, too, constitutes some evidence 

before Judge Boldt . . . .”). And, in any event, the Lower Elwha cannot 

overcome the court’s strong statements in Lummi I and Lummi II that 

counter its position.
LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 13

determine the outer reaches of the Strait of Juan de Fuca for 

purposes of the Lummi’s U&A.

REVERSED AND REMANDED.