Attorneys squabble over half-century-old ruling on Native American fishing rights

SEATTLE (CN) — Attorneys in a case involving the fishing rights of Native American tribes in Washington state swam through muddy waters Wednesday, wading through 50 years of litigation over the issue.

The Sauk-Suiattle Indian Tribe in western Washington wants a Ninth Circuit panel to determine its “usual and accustomed fishing places,” a designation it claimed is currently restricted by an improper reading of a 1974 court decision.

Representing the Sauk-Suiattle, attorney Jack Fiander argued to the three-judge panel that U.S. District Judge George Boldt in 1974 made a broad interpretation about the tribe’s right to harvest marine life. But the Swinomish Indian Tribal Community and Upper Skagit Indian Tribe say a lower court last year properly dismissed the case on procedural grounds, which the panel should affirm.

The panel made no decision on Wednesday.

The language Boldt used some five decades ago was a large point of contention. Boldt listed rivers, creeks and tributaries he said comprised the Sauk-Suiattle’s usual and accustomed fishing places. However, it didn’t include all waters in the area — like the Baker River, a tributary of the Skagit River — which Fiander said should be included under Boldt’s broad language.

Attorney Emily Haley, for the Swinomish Indian Tribal Community, pushed back on that argument.

“It included the waters that it listed and excluded everything else,” she said.

A lower court last year appeared to agree with Haley when it dismissed the case.

“The court agrees with the responding tribes that Sauk-Suiattle’s [usual and accustomed fishing places] is unambiguous, specifically determined, and that it excludes any unnamed waters,” it said in the ruling.

U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, appeared skeptical. He noted that Boldt’s decision made no mention of the Baker River. Some waters are named while others aren’t.

Fletcher also questioned Haley on her position about the Sauk-Suiattle having rights to saltwater shellfish, as Fiander argued the tribe would travel and obtain shellfish.

“Judge Boldt listed the places where Sauk has U&A,” Haley said, referring to usual and accustomed fishing places. “He did not include salt waters.”

Representing the Upper Skagit Indian Tribe, attorney David Hawkins pointed to a ruling some 25 years ago he said the Sauk-Suiattle wanted to usurp.

That ruling found that the Sauk-Suiattle’s usual and accustomed fishing places appeared to unambiguously omit the Skagit River. Reviewing the 1974 decision, the court determined Boldt intended to omit it.

“This is not a case of first impression,” Hawkins said moments before referencing baseball legend Yogi Berra. “This is a case of déjà vu all over again.”

Pointing to a report about the history of tribe fishing, Hawkins said it noted frequency was a key factor. The Sauk-Suiattle may historically have traveled to the ocean and traded there, but the report found no indication it occurred regularly.

Fletcher suggested that someone traveling to the ocean would dig for shellfish themselves, not trade for them. Hawkins argued that tribes protected the resources they controlled. Someone couldn’t enter and take shellfish freely.

“There were wars that happened,” he added.

Fiander argued that courts in the past failed to examine a report that would have bolstered his claims. A lower court determined that Boldt would have considered information from such a report. However, Fiander said that information wasn’t available until 1980 — six years after Boldt’s decision.

U.S. Circuit Judge Margaret McKeown, a Clinton appointee, questioned whether that report was in the case’s record.

“That’s what I’m having a little trouble with,” she said.

Fiander emphasized what he characterized as a lower court’s improper determination that Boldt had access to the report, leading McKeown to again note it wasn’t available.

The panel was rounded out by U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee.