FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TULALIP TRIBES,

Plaintiff-Appellant,

v.

SUQUAMISH INDIAN TRIBE,

Defendant-Appellee,

and

UNITED STATES OF AMERICA;

SWINOMISH TRIBAL COMMUNITY;

JAMESTOWN S’KLALLAM TRIBE;

LOWER ELWHA BAND OF

KLALLAMS; PORT GAMBLE

S’KLALLAM TRIBE; NISQUALLY

INDIAN TRIBE; SKOKOMISH INDIAN

TRIBE; UPPER SKAGIT INDIAN TRIBE;

LUMMI NATION; NOOKSACK INDIAN

TRIBE OF WASHINGTON STATE;

WASHINGTON STATE DEPARTMENT

OF FISH AND WILDLIFE; QUINAULT

INDIAN NATION; STILLAGUAMISH

TRIBE; PUYALLUP TRIBE;

MUCKLESHOOT INDIAN TRIBE;

QUILEUTE INDIAN TRIBE,

Real-parties-in-interest.

No. 13-35773

D.C. Nos.

2:05-sp-00004-

RSM

2:70-cv-09213-

RSM

OPINION
2 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

October 8, 2014—Seattle, Washington

Filed July 27, 2015

Before: Richard A. Paez, Jay S. Bybee,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Paez

SUMMARY*

Indian Law

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.

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

been prepared by court staff for the convenience of the reader.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 3

COUNSEL

Mason D. Morisset (argued) and Rebecca JCH Jackson,

Morisset Schlosser Jozwiak & Somerville, Seattle,

Washington, for Plaintiff-Appellant.

Howard G. Arnett (argued), Karnopp Peterson, Bend,

Oregon; James Rittenhouse Bellis and Michelle Hansen,

Office of the Reservation Attorney, Suquamish, Washington,

for Defendant-Appellee.

OPINION

PAEZ, Circuit Judge:

In this treaty fishing rights case, the Tulalip Tribes (“the

Tulalip”) invoked the district court’s continuing jurisdiction

as provided by the permanent injunction in United States v.

Washington, 384 F. Supp. 312, 419 (W.D. Wash. 1974)

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

request for determination of the scope of the Suquamish

Indian Tribe’s (“the Suquamish”) usual and accustomed

fishing grounds and stations (“U&A”). The Tulalip sought a

determination that the Suquamish’s U&A, as determined by

JudgeBoldt in 1975, does not include Possession Sound, Port

Gardner Bay, the mouth of the Snohomish River, and the

bays on the west side of Whidbey Island (Admiralty Bay,

Mutiny Bay, Useless Bay, and Cultus Bay). Ruling on crossmotions for summary judgment, the district court concluded

that Judge Boldt did not intend to exclude the contested areas

from the Suquamish’s U&A and entered judgment

accordingly. Reviewing de novo, we affirm.
4 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

I. Background

There is a lengthy background to the complex litigation

over the treaty fishing rights of the Indian tribes in Western

Washington. The historical background of the treaty

negotiations is detailed in Judge Boldt’s Decision I. We will

not repeat that background, although we do note several key

facts to give context to the issues we address here. Although

Judge Boldt’s rulings resolved many key issues over the

extent of the Indian tribes’ treaty fishing rights, there have

been a number of post-judgment subproceedings seeking

clarification of Judge Boldt’s rulings. This case is one such

subproceeding.

In 1854 and 1855, several Indian tribes entered into

treaties with Isaac Stevens, Washington Territorial Governor,

on behalf of the United States. Decision I, 384 F. Supp. at

330. One of these treaties was the Treaty of Point Elliott,

12 Stat. 927 (signed January 22, 1855; ratified March 8,

1859; proclaimed April 11, 1859) (“the Treaty”), which is the

treaty at issue here. Decision I, 384 F. Supp. at 355. Through

these treaties, the United States “acquire[d] vast Indian

lands.” Id. at 330. As part of the negotiations, the tribes

reserved the right to fish at “all usual and accustomed

grounds and stations,” including those off reservation. Id. at

332.

In 1970, the United States filed a lawsuit against the State

of Washington, among others, on behalf of several Western

Washington Indian tribes, later joined by other tribes as

intervenor plaintiffs. Id. at 327. The plaintiffs sought a

declaratory judgment regarding the tribes’ reserved treaty

fishing rights and an injunction to enforce those rights. Id. at

327–28. In Decision I, Judge Boldt held that tribes that were
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 5

parties to the Treaty, or “Treaty Tribes,” had a “right to take

anadromous fish outside of reservation boundaries . . . limited

. . . by geographical extent of the usual and accustomed

places.” Id. at 407. Judge Boldt also defined the Treaty

Tribes’ U&As throughout his ruling, and in later decisions.1

Judge Boldt took great care to define Treaty Tribes’

U&As. According to Judge Boldt, the words “[u]sual and

accustomed . . . indicate the exclusion of unfamiliar locations

and those used infrequently or at long intervals and

extraordinary occasions.” Id. at 332. He 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.” Id.

Conversely, “occasional and incidental trolling” while

traveling through thoroughfares does not constitute a U&A. 

Id. at 353. Judge Boldt’s findings “set forth . . . some, but by

no means all, of [the plaintiff tribes’] principal usual and

accustomed fishing places.” Id. at 333. After all, “[a]lthough

there are extensive records and oral history from which many

specific fishing locations can be pinpointed, it would be

impossible to compile a complete inventory of any tribe’s”

U&As. Id. at 353.

In determining the tribes’ U&As, Judge Boldt found

anthropological reports prepared by Dr. Barbara Lane, an

1

In Decision I, the court “retain[ed] jurisdiction . . . for the life of this

decree to take evidence, to make rulings and to issue such orders as may

be just and proper upon the facts and law and in implementation of this

decree.” 384 F. Supp. at 408. To invoke the court’s continuing

jurisdiction, a party must satisfy various procedural prerequisites and then

file and serve a “Request for Determination.” Id. at 419.
6 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

expert witness, to be “highly credible” and “very helpful in

determining by direct evidence or reasonable inferences the

probable location and extent of” U&As. United States v.

Washington, 459 F. Supp. 1020, 1059 (W.D. Wash. 1978)

(Decision II); see also Decision I, 384 F. Supp. at 350

(finding that Dr. Lane’s reports “have been exceptionallywell

researched and reported and are established by a

preponderance of the evidence”).

Neither party to this subproceeding was a party to this

litigation when Judge Boldt issued Decision I; both

intervened afterwards. Decision II, 459 F. Supp. at 1028. 

Appellant, the Tulalip, is a political successor in interest to

various groups of Indians that were parties to the Treaty. Id.

at 1039. Appellee, the Suquamish, was an original party to

the Treaty. Id. at 1040. Because neither tribe was a party to

the Decision I proceedings, Judge Boldt determined their

respective U&As in orders issued after his original order

recognizing off-reservation fishing rights. The court held that

the Suquamish had a right to fish at U&As outside of

reservation boundaries. Id. at 1041. Later, the court declared

that the Suquamish’s U&A includes “the marine 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.” Id. at 1049.

In June 2005, in a separate subproceeding, the Upper

Skagit Tribe filed a Request for Determination that Saratoga

Passage and Skagit Bay are not within the Suquamish’s

U&A. We affirmed the district court’s judgment that neither

Saratoga Passage nor Skagit Bay lie within the Suquamish’s

U&A. Upper Skagit Indian Tribe v. Washington, 590 F.3d

1020, 1026 (9th Cir. 2010).
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 7

Here, the Tulalip requested a determination that the inland

marine waters east of Admiralty Inlet but west of Whidbey

Island (Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus

Bay), as well as Saratoga Passage, Penn Cove, Holmes

Harbor, Possession Sound, Port Susan, Tulalip Bay, and Port

Gardner, do not lie within the Suquamish’s U&A.

The Tulalip filed a motion for summary judgment asking

the court to declare that the Suquamish’s U&A is “limited to

the west side of Puget Sound,” and that “the Suquamish tribe

does not have adjudicated usual and accustomed fishing

grounds and stations in the marine waters of Saratoga

Pass[age], Holmes Harbor, Port Susan, Possession Sound, or

Port Gardner, and on the west side of Whidbey Island,

including Useless Bay, Mutiny Bay, and Admiralty Bay.”2

The district court granted the motion as to Skagit Bay,

Saratoga Passage, Penn Cove, Holmes Harbor, and Port

Susan, following our opinion in the Upper Skagit

subproceeding. The court, however, denied the motion as to

Possession Sound, Port Gardner Bay, and the bays on the

west side of Whidbey Island, specifically Admiralty Bay,

Mutiny Bay, Useless Bay, and Cultus Bay, and declared that

the Suquamish U&A included these waters. Upon making

these determinations, which resolved all disputed issues, the

court entered a final judgment.

The Tulalip timely appealed. The Tulalip’s challenge

before us, however, is limited to the district court’s ruling

that, in determining the Suquamish’s U&A, Judge Boldt did

not intend to exclude the mouth of the Snohomish River,

 

2

 The Tulalip’s motion in the district court was styled as a “Motion for

Declaratory Judgment.” The parties, however, do not dispute that the

district court treated the motion as a summary judgment motion.
8 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

Possession Sound, Port Gardner Bay, and the bays on the

west side of Whidbey Island (Admiralty Bay, Mutiny Bay,

Useless Bay, and Cultus Bay).

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. See United

States v. Muckleshoot Indian Tribe, 235 F.3d 429, 432 n.1

(9th Cir. 2000) (Muckleshoot III)

3

(citing Van Cauwenberghe

v. Biard, 486 U.S. 517, 521–22 (1988) for the proposition

that jurisdiction under § 1291 is proper when the district

court’s judgment in a subproceeding is final as to all disputed

issues).

Our review is de novo, as the Tulalip appeal the district

court’s entry of summary judgment. Muckleshoot v. Lummi,

141 F.3d 1355, 1357 (9th Cir. 1998) (Muckleshoot I);

Muckleshoot III, 235 F.3d at 432 (reviewing de novo a

determination on summary judgment regarding Judge Boldt’s

finding of the Muckleshoot Tribe’s U&A).

III. The Suquamish’s U&A

In Upper Skagit, we drew on our prior decisions

interpreting Judge Boldt’s U&A findings for various tribes to

develop a two-step mode of analysis. First, the moving party

bears the burden of offering evidence that a U&A finding was

“ambiguous, or that Judge Boldt intended something other

than [the text’s] apparent meaning.” Upper Skagit, 590 F.3d

at 1023 (citing Muckleshoot I, Muckleshoot Indian Tribe v.

3 As in the prior cases where we have discussed all three Muckleshoot

cases, we name them chronologically, rather than based on the order in

which they appear in this opinion.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 9

Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000)

(Muckleshoot II), and Muckleshoot III). Second, the moving

party bears the burden of showing that “there was no

evidence before Judge Boldt” that would indicate that the

contested area was included or excluded in the U&A of the

nonmoving tribe. Id.

We have determined previously that, for the finding

describing the Suquamish’s U&A, Judge Boldt intended

something different than the language’s apparent meaning,

which neither the Suquamish nor the Tulalip contest. Upper

Skagit, 590 F.3d at 1025 (affirming the district court’s

determination that the Upper Skagit Tribe met its burden on

the first prong). In Upper Skagit, the district court’s

reasoning, which we affirmed, began with a finding that the

apparent meaning of the term “Puget Sound” from the

Suquamish’s U&A included the waters at issue in that

case—Saratoga Passage and Skagit Bay. Id. at 1023. But,

the district court determined that nothing before Judge Boldt

demonstrated that the Suquamish fished in those contested

waters, or traveled through those areas on their way to the

Fraser River area. Id. at 1023–24. Therefore, the district

court reasoned, Judge Boldt must have intended something

other than the language’s apparent meaning in defining the

Suquamish’s U&A. Id. It does not matter that the contested

areas at issue here are slightly different; the finding that

Judge Boldt intended something different than the plain text

of the Suquamish U&A finding remains intact. We adhere to

that determination and do not analyze further prong one of the

Muckleshoot analytical framework.

Under prong two, the Tulalip have “the burden to show

that there was no evidence before Judge Boldt that the

Suquamish fished . . . or traveled” through the contested
10 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

areas. See Upper Skagit, 590 F.3d at 1023. All the contested

waters here surround Whidbey Island, which is on the east

side of Puget Sound. In United States v. Suquamish Indian

Tribe, 901 F.2d 772, 778 (9th Cir. 1990), we stated that the

“Suquamish . . . were not entitled to exercise fishing rights on

the east side of Puget Sound.” However, this statement is

from the concluding paragraph of an opinion where we did

not address the boundaries of the Suquamish’s U&A. Rather,

in that case, we affirmed the district court’s finding that the

Suquamish did not merge or consolidate with the Duwamish,4

and therefore was not the successor in interest to the

Duwamish’s fishing rights. Id. at 777–78. Thus, Suquamish

does not control the status of the contested waters in this

subproceeding.

For analysis, we divide the contested areas into two

categories: those east of Whidbey Island (Possession Sound,

Port Gardner Bay, and the mouth of the Snohomish River)

and those west of Whidbey Island (Cultus Bay, Useless Bay,

Mutiny Bay, and Admiralty Bay).

A. Eastern Contested Waters

We have made determinations previously about waters

north of the eastern contested waters, east of Whidbey Island. 

In Upper Skagit, we affirmed the district court’s

determination that the Suquamish’s U&A does not include

Skagit Bay and Saratoga Passage. 590 F.3d at 1026. We

stated that “[t]here is no evidence in the record before Judge

4 The Duwamish’s U&A on the eastern side of Puget Sound included

Lake Washington, Lake Union, Lake Sammamish, the Black and Cedar

Rivers, and the lower White or Duwamish River below its junction with

the Green River. Id. at 774 n.2.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 11

Boldt that the Suquamish fished or traveled in the waters on

the eastern side of Whidbey Island.” Id. at 1025.

Evidence that was before Judge Boldt indicates that the

eastern contested waters are distinguishable from those at

issue in Upper Skagit. In particular, the evidence before

Judge Boldt demonstrates that the Suquamish traveled to the

mouth of the Snohomish River and the waters immediately

surrounding it to fish.

Materials from Dr. Lane, namely her reports and trial

testimony, constitute evidence before Judge Boldt that the

Suquamish traveled to the eastern contested waters to fish. 

The Suquamish, Dr. Lane explained, “had very limited kinds

of resources within their home territory because almost

uniquely of [the other tribes in this case] they had no large

streams in their territory.” The Suquamish “did in fact go to

the larger rivers on the mainland in order to harvest salmon

because they had no rivers in their own country.” They “were

accustomed to harvest their fall and winter salmon supplies

at the rivers on the east side of Puget Sound. Modern

Suquamish, as well as neighbouring Indians, have attested

that the Suquamish traditionally fished at the mouths of the

Duwamish and Snohomish Rivers as well as in the adjacent

marine areas.” Dr. Lane’s testimony and reports constitute

evidence that the Suquamish traveled to the mouth of the

Snohomish river and the areas immediately surrounding it to

fish. In light of this evidence, the Tulalip failed to meet their

burden to show that there was “no evidence” before Judge

Boldt that the Suquamish fished in or traveled through the

eastern contested areas. See id. at 1023.

The Tulalip argue that we already determined this issue

in Upper Skagit. We disagree. The evidence here relates to
12 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

the mouth of the Snohomish River and its immediate

surroundings, rather than the waters further north or the

waters east of Whidbey Island more generally. Indeed, Dr.

Lane stated several times that the mouths of rivers and the

surrounding areas were unique. First, she testified, as noted

above, that the Suquamish “did in fact go to the larger rivers

on the mainland in order to harvest salmon because they had

no rivers in their own country.” Despite its proximity to

Whidbey Island, the Snohomish River is a large river on the

mainland. Second, Dr. Lane explained that people “would

gather to troll for the salmon as they gathered in the bays just

prior to their entry into the rivers.” This evidence supports

the district court’s determination that Judge Boldt intended to

include Possession Sound and Port Gardner Bay in

Suquamish’s U&A because salmon would swim through the

marine waters just before entering the Snohomish River. By

contrast, Skagit Bay and Saratoga Passage, discussed in

Skagit Bay, were larger bodies of water separate from a river. 

Third, Dr. Lane’s opinion about the Suquamish’s harvest “on

the east side of Puget Sound” including “at the mouths of the

Duwamish and Snohomish rivers as well as in the adjacent

marine areas” is distinct from Skagit Bay and Saratoga

Passage because the river mouths are not near those areas.

As the district court concluded, in light of this evidence,

the Tulalip cannot demonstrate that there was “no evidence”

before Judge Boldt that the Suquamish fished or traveled in

the eastern contested waters. See Upper Skagit, 590 F.3d at

1023. We hold that the Tulalip did not satisfy its burden to

show that Judge Boldt intended to exclude the eastern

contested waters from the Suquamish’s U&A.
TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE 13

B. Western Contested Waters

As with the eastern contested waters, the Tulalip must

“show that there was no evidence before Judge Boldt that the

Suquamish fished . . . or traveled through” the western

contested waters. See id.

The Tulalip failed to meet that burden here because the

record contains evidence that the Suquamish fished in these

waters. Dr. Lane explained in a Suquamish-specific report

that the Suquamish territory included “possibly. . . the west

side of Whidbey Island. It is difficult at this time to establish

the precise nature of Suquamish use of the west coast of

Whidbey Island.”5 While Dr. Lane added that “there appears

to be no clear evidence of Suquamish winter villages on the

west side of Whidbey Island,” she reported elsewhere that the

“Suquamish travelled [sic] to Whidbey Island to fish.” 

Moreover, there is other evidence supporting the Suquamish’s

use of the western contested waters. Dr. Lane explained

generally that “[t]he 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.” As indicated by the plain text of the

Suquamish’s U&A, the Suquamish traveled from “the marine

waters of Puget Sound from the northern tip of Vashon Island

to the Fraser River.” Decision II, 459 F. Supp. at 1049. 

When traveling from Vashon Island to the Fraser River, the

Suquamish would have passed through the waters west of

5 Dr. Lane cited two treaty-time accounts: one from Achilles de Harley,

who mentioned that the “Soquamish” occupied the west side of Whidbey

Island in 1849, and one from George Gibbs, who wrote in 1854 that the

Snohomish and Skagit tribes occupied Whidbey Island, but omitted the

Suquamish.
14 TULALIP TRIBES V. SUQUAMISH INDIAN TRIBE

Whidbey Island, and likely would have fished there while

traveling. This general evidence, too, constitutes some

evidence before Judge Boldt and supports the district court’s

determination that Judge Boldt did not intend to exclude these

contested bay areas from Suquamish’s U&A.

Therefore, we hold that the Tulalip did not meet its

burden to demonstrate that there was no evidence before

Judge Boldt supporting Suquamish fishing or traveling

through the western contested waters. See Upper Skagit,

590 F.3d at 1023.

IV. Conclusion

The Tulalip did not meet its burden to show that the

contested areas in this subproceeding should be excluded

from Suquamish’s U&A. Therefore, we affirm the district

court’s judgment.

AFFIRMED.