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No. 07-35061

FOR THE NINTH CIRCUIT J(l_/I v,,_-t/L/))

UNITED STATES OF AMERICA, ET AL., ",._r,_[ _'"

Plaintiff

and

UPPER SKAGIT TRIBE AND SWINOMISH INDIAN TRIBAL COMMUNITY

Plaintiffs-Appellees,

V.

STATE OF WASHINGTON, ET AL.,

Defendant

and

SUQUAMISH TRIBE

Defendant-Appellant

On Appeal from the United States District Court

for the Western District of Washington at SeattleHonorable Ricardo S. Martinez

(District Court No. 70-9213)

(Subp. 05-3 - Upper Skagit and Swinomish Tribes v. Suquamish Tribe)

THE TULALIP TRIBES' RESPONSE BRIEF

Mason D. Morisset, WSBA #00273

Rob Roy Smith, WSBA #33798

Morisset, Schlosser, Jozwiak & McGaw

1115 Norton Building, 801 Second Avenue

Seattle, WA 98104-1509

Telephone: (206) 386-5200

Facsimile: (206) 386-7322

Attorneys for Appellee The Tulalip Tribes

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CORPORATE DISCLOSURE STATEMENT

(Circuit Rule 26.1)

The Tulalip Tribes is a federally recognized Indian tribe. It has issued no

shares of stock to the public and has no parent company, subsidiary or affiliate that

has done so.

TABLE OF CONTENTS

STATEMENT OF ISSUE PRESENTED ................................................................. 1

STATEMENT OF CASE AND PROCEEDINGS BELOW .................................... 1

A. Upper Skagit and Swinomish Request for Clarification ................................ 2

B. Suquamish Muddles the Clarification Proceeding ......................... . ............... 3

C. Order on Cross Motions for Summary Judgment ........................................... 7

STATEMENT OF FACTS ....................................................................................... 8

A. Tulalip's Interest in This Appeal .................................................................... 8

B. Suquamish's Usual and Accustomed Fishing Area ........................................ 9

C. Suquamish's Eastward Expansion Was Rejected by This Court in 1990 .... 10

STANDARD OF REVIEW .................................................................................... 12

SUMMARY OF ARGUMENT .............................................................................. 12

ARGUMENT .......................................................................................................... 13

I'. THE EVIDENCE IN RECORD DOES NOT SUPPORT

SUQUAMISH EXPANSIONIST EFFORTS ........................................... 13

II. SUQUAMISH IS NOT ENTITLED TO EXERCISE FISHING

RIGHTS ON THE EAST SIDE OF PUGET SOUND ............................. 16

CONCLUSION ....................................................................................................... 18

TABLE OF AUTHORITIES

Cases

Delta Savings Bankv. United States, 265 F.3d 1017 (9th Cir. 2001) .................... 12

Muckleshoot lndian Tribe v. Lummi lndian Nation

141 F.3d 1355 (9th Cir. 1998) ...................................................... 2, 4, 6

Muckleshoot Tribe v. Lummi Indian Tribe, 234 F.3d 1099 (9th Cir. 2000) ............. 6

Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002) ....................................................... 12

Puyallup Indian Tribe v. Muckleshoot Tribe, 235 F.3d 429 (9th Cir. 2000) ............ 6

Thomas v. Bible, 983 F.2d 152 (9thCir. 1993) ....................................................... 16

United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981)

cert. denied, 454 U.S. 862 (1981) ........................................................ 2

United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) ...................... 16

United States v. Skokomish Tribe, 764 F.2d 670 (9th Cir. 1985) ......................... 2, 4

United States v. Suquamish Tribe, 901 F.2d 772 (9th Cir. 1990) .................... passim

United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) ................. 2, 14

United States v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978) ............ passim

United States v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985), aff'd

United States v. Washington, 841, F.2d 317 (9th Cir. 1988) ......... 9, 15

Washington v. Washington State Comm 'l Passenger Fishing Vessel Assn.

443 U.S. 658 (1979) ............................................................................. 1

Federal Treaties

Treaty of Point Elliot, 12 Stat. 927 ........................................................................... 1

Federal Rules

Fed. R. App. P. 28(i) and the Circuit Advisory Note to Rule 28-4 ........................ 12

Federal Rule of Civil Procedure 56(c) .................................................................... 12

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STATEMENT OF ISSUE PRESENTED

Whether the Suquamish Tribe may unilaterally expand its adjudicated usual

and accustomed treaty fishing area to include marine waters on the east side of

Paget Sound in contravention of this Court's 1990 ruling that Suquamish is "not

entitled to exercise fishing rights on the east side of Puget Sound." United States v.

Suquamish Tribe, 901 F.2d 772, 778 (9th Cir. 1990).

STATEMENT OF CASE AND PROCEEDINGS BELOW

In 1854 and 1855, the United States negotiated treaties with Indian tribes

west of Cascade Mountains and north of the Columbia River to obtain a cession of

Indian title to lands in that region. In these treaties, the tribes reserved numerous

rights, including the preexisting right to take fish at all "usual and accustomed

grounds and stations." See Washington v. Washington State Comm 'l Passenger

Fishing VesselAssn., 443 U.S. 658, 674-75 & n. 2, 21 (1979); see also Treaty of

Point Elliot, 12 Stat. 927. The exercise of these fishing rights remains crucial to

the tribes' livelihood and survival. Id. at 664-67.

In 1970, the United States initiated the underlying case, United States v.

Washington, to vindicate the tribes' treaty fishing rights against unauthorized

regulation of treaty fishing by the state of Washington. At various stages of the

proceedings, a number of treaty tribes intervened in the case as plaintiffs. Over the

course of years, the district court adjudicated the geographic scope of the tribes'

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"usual and accustomed grounds and stations," and retained continuing jurisdiction

over the case to hear disputes concerning adjudications and other matters. United

States v. Washington, 384 F. Supp. 312, 419 (W.D. Wash. 1974) (as modified).

This appeal arises out of that continuing jurisdiction and is part of the long

standing practice for bringing claims pursuant to the district court's continuing

jurisdiction in United States v. Washington to clarify ambiguities concerning tribal

fishing areas and resolve intertribal disputes over the scope and location of tribal

fishing areasJ

A. Upper Skagit and Swinomish Request for Clarification

On June 20, 2005, the Upper Skagit Tribe, later joined by the Swinomish

Indian Tribal Community, filed a Request for Determination, the mechanism for

initiating new matters under the district court's continuing jurisdiction, to clarify

the meaning of the phrase "marine waters of Puget Sound" as used in Suquamish's

fishing area determination with respect to certain waters on the east side of Puget

Sound. ER 0001-14.

i See, e.g., UnitedStates v. _ashington, 459 F. Supp. 1020, 1048 (W.D.

Wash. 1978); Muckleshoot Tribe v. Lummilndian Nation, 141 F.3d 1355 (9th Cir.1998); United States v. Skokomish Tribe, 764 F.2d 670 (9th Cir. 1985); United

States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981), cert. denied, 454 U.S.862 (1981).

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The specific waters at issue are the marine waters of Saratoga Passage and

Skagit Bay, 2 although the basis for limiting the scope of Suquamish fishing apply

to all waters east of Whidbey Island. ER 0001-14; ER 91.

B. Suquamish Muddles the Clarification Proceeding

The request for clarification triggered a Suquamish campaign to short-circuit

and subvert the established United States v. Washington thirty-six year old practice

for resolving fishing area clarification disputes.

First, Suquamish filed a motion to dismiss, without filing an answer,

contending that the district court lacked subject matter jurisdiction, and that the

action was barred by res judicata. ER 0334 (Dkt. No. 6). The district court denied

the Suquamish motion to dismiss on September 6, 2005, and correctly concluded

that it has subject matter jurisdiction to clarify the scope of Suquamish's fishing

areas because, while Suquamish's usual and accustomed fishing area determination

"is a final decision that cannot now be altered or amended. It may, however, be

2These waters are to the immediate north of the waters in the related case

United States v. Washington (Tulalip Tribes v. Suquamish Tribe), Ninth Cir.. No.

06-35185, concerning the same tribe, the same ambiguous language, similar

geographic areas, and substantially similar legal questions but, disparate rulings

from the district court. Inexplicably, aider allowing the Upper Skagit ease to get to

the merits, the district court took a 180 degree turn and ruled against Tulalip on

similar procedural arguments raised by Suquamish in the context of Subproeeeding05-4 less than two months later.

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clarified. ''3 ER 0030-33. Importantly, the district court also found "there is

sufficient ambiguity in Judge Boldt's use of the term 'Puget Sound' in describing

the Suquamish" usual and accustomed fishing area determination to require

clarification. 4 ER 0031-32. The district court made clear that, because of the

3Suquamish's opening brief attempts to confuse this issue by claiming thatthe clarification is actually a "re-adjudication" of its original 1975 determination or

that the parties are seeking to defeat Suquamish's treaty rights. This is plainly notthe case, no more than it was when this Court clarified other ambiguous usual and

accustomed determinations of other tribes. Compare Opening Br. at 7, 18-19, 29

with e.g., Muckleshoot Tribe v. Lummi lndian Nation, 141 F.3d 1355, 1359 n.6 (9th

Cir. 1998) ("Muckleshoot's motion did not propose to relitigate issues finally

determined by the decrees but sought only clarification of two findings [concerningthe usual and accustomed fishing places of the Lummi] .... Although

Muckleshoot's preferred interpretation may change the present application of the

specified portions of the decree, the motion did not attempt to change the terms of

the decree or challenge its finality or validity."). Suquamish ignores the fact that

clarification presents a separate claim than the underlying determination. As thisCourt has found in prior appeals, "It]he rights attendant to a determination of the

usual and accustomed fishing places of the Suquamish would remain intact" after

clarification as to the scope of that right. United States v. Skokomish lndian Tribe,

764 F.2d 670, 671 (9th Cir. 1985). Suquamish's Rule 50 discussion is whollyirrelevant. Opening Br. at 20-22.

' Suquamish disingenuously suggests that the district court never found that

the term "Puget Sound" as used in Suquamish's adjudicated usual and accustomed

fishing area is "ambiguous." Opening Br. at 17-18 (claiming the district court

committed reversible error because it "disregard[ed] the initial task of determiningthe existence of an ambiguity"). This claim is plainly refuted by the record. The

district court found that the term "Puget Sound" is "ambiguous" as it appears inSuquamish's adjudicated usual and accustomed fishing area determination in an

Order entered before the legal issues were presented for summary judgment. ER

0030-33. The "ambiguity" claim is also undercut by Suquamish assertions in prior

subproceedings. ER 0322. The district court found that Suquamish's positions on

the main issue in this case were fundamentally inconsistent: "Suquamish have

themselves complained of 'the maddening imprecision and inconsistency with

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"present live controversy between the parties because of ambiguity" in

Suquamish's determination, Suquamish's arguments that the tribal claims were

barred by res judicata were not "persuasive." ER 0032. Suquamish did not seek

reconsideration or an appeal of this order.

Second, after Suquamish's attempt at a Rule 12 dismissal was disposed of,

Suquamish engaged in various efforts to contract and expand the scope of the case.

Suquamish started to meddle with the scope of the clarification proceeding by

targeting Tulalip's participation. Suquamish filed a so-called Fed. R. Civ. P. 21

motion in an unprecedented attempt to silence Tulalip by seeking to "dismiss the

Tulalip Tribes as a party to the action." ER 0345 (Dkt. No. 152). Interestingly,

Suquamish did not move to "dismiss" other tribes who had participated in the

Subproceeding and waited a year and half after Tulalip first participated in the

Subproceeding before attempting the motion. The district court denied the

inappropriately labeled Rule 21 motion on December 5, 2006, confirming the well-

established law of the case that Tulalip could participate fully in the clarification

Subproceeding, and any other part of the case, because it is a party to the

which the Court, the parties, the witnesses, and the exhibits in this case have used

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the phrase 'Puget Sound.'" ER 0031 (Suquamish admitted as part of

Subproceeding 97-1 that "Puget Sound" is "ambiguous and indefinite."). After

arguing for a limited interpretation of"Puget Sound" in one proceeding,

Suquamish cannot now credibly argue for a new expansive usual and accustomedarea construction for itself that swells to include sheltered waters on the east sideof Puget Sound.

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underlying original action. ER 0349 (Dkt. No. 187). Suquamish did not seek

reconsideration or an appeal of this order.

Suquamish next engaged in a battle over the evidence that could be reviewed

by the district court to determine the meaning of the ambiguous phrase in

Suquamish's usual and accustomed fishing area determination. The district court

correctly explained the evidence relevant to the question of clarification of

Suquamish's ambiguous usual and accustomed fishing area determination in its

December 19, 2006 Order. ER 0120-25. The district court cited to this Court's

rulings in three United States v. Washington fishing area clarification cases -

Muckleshoot Tribe v. Lummilndian Tribe, 141 F.3d 1355, 1360 (9th Cir. 1988),

Muckleshoot Tribe v. Lummilndian Tribe, 234 F.3d 1099 (9th Cir. 2000), and

Puyallup Indian Tribe v. Muckleshoot Tribe, 235 F.3d 429 (9th Cir. 2000) - which

together stand for the proposition that relevant evidence in a clarification action is

the evidence that was before Judge Boldt at the time of the determination and

"other evidence" that offers a contemporary understanding of the ambiguous term.

Id. Suquamish did not seek reconsideration or an appeal of this order. 5

Atter not objecting to or seeking reconsideration of this Order at the time,

Suquamish now attempts to sneak through the back door an appeal of the prior

evidentiary ruling of the district court into this appeal of the subsequent summary

judgment order. Opening Br. at 18-26 This is procedurally improper and ignoresthe teaching of this Court from its past consideration of other usual and

accustomed fishing area clarification cases. In all these cases, both the District

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Finally, Suquamish attempted to expand the scope of the case by inviting the

district court, in its summary judgment response brief, to not only clarify the

eastern boundary of Suquamish's adjudicated usual and accustomed fishing area as

requested by the initiating parties, but also take the opportunity to define the

western boundary of Suquamish's adjudicated fishing area. ER 0347 (Dkt. No.

157). The district court rejected this eleventh hour effort by Suquamish to

radically change the scope of the Upper Skagit and Swinomish tribes' case to

surreptitiously expand its fishing area to the west to include parts of the Strait of

Juan de Fuca. ER 0349 (Dkt. No. 187).

C. Order on Cross Motions for Summary Judgment

Each of the tribes filed cross motions for summary judg_nent concerning

whether the adjudicated usual and accustomed fishing area of the Suquamish Tribe

includes marine waters east of Whidbey Island. ER 0045-57 (Suquamish); ER

0068-90 (Upper Skagit); ER 0091-112 (Swinomish). Tulalip joined in the Upper

Skagit and Swinomish motions. ER 0345 (Dkt. No. 148). On January 4, 2007, the

district court granted summary judgment in favor of Upper Skagit and Swinomish,

and denied the Suquamish summary judgment motion. The district court correctly

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Court and the Court of Appeals exercised their jurisdiction to rein in unilateral and

expansive interpretations of adjudicated usual and accustomed fishing areas.

Suquamish's concerns with the evidence reviewed are also undercut by its own

efforts to augment the record with the new testimony of a geographer taken duringthe course of the Subproceeding. ER 0383-84. Suquamish cannot have it both

ways.

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concluded that the marine waters of"Saratoga Passage and Skagit Bay, on the

eastern side of Whidbey, are not within the usual and accustomed fishing area [ ]

of the Suquamish Indian Tribe [ ]." ER 0015, ER 0029.

'In so holding, the district court extensively analyzed evidence in the Court's

record to determine whether the phrase "marine waters of Puget Sound" as used in

the Suquamish 1975 usual and accustomed fishing area adjudication included

specific marine waters on the east side of Puget Sound. The court noted that the

evidence in the record was "insufficient to find that [Suquarnish] fished or traveled

in the waters on the eastern side of Whidbey Island" and that there was "nothing"

in the record "that places Suquamish camps" on Whidbey and Camano Islands "or

documents their fishing there." ER 0026-28. Suquamish's appeal followed. ER

0352.

STATEMENT OF FACTS

A. Tulalip's Interest in This Appeal

Tulalip has a vital interest in this case and could be adversely affected by the

outcome. 6 Tulalip intervened as a full party to the ease in 1974. United States v.

Washington, 459 F. Supp. 1020, 1039 (W.D. Wash. 1978). Tulalip has been

6 Tulalip filed "Protective Motion for Clarification and/or Correction of

Party Status on Docket" on June 15, 2007. This motion was necessitated by some

confusion as to party status in this case. As explained in the "Protective Motion"

papers, Tulalip should be considered an Appellee and may fully participate in this

appeal.

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,-tctively involved in this Subproceeding since its initiation in June 2005. See, e.g.,

ER 0335 (Dkt. No. 11), 0336 (Dict. No. 27), 0338 (Dkt. No. 50), 0341 (Dkt. No.

88), and 0345 (Dkt. No. 148). Among other areas, Tulalip holds treaty-secured

fishing rights in the marine waters on the east side of Puget Sound involved in this

dispute. United States v. Washington, 459 F. Supp. 1020, 1060 (W.D. Wash.

1975); United States v. Washington, 626 F. Supp. 1405, 1531 (W.D. Wash. 1985),

a6r'd United States 1,. Washington, 841 F.2d 317 (9th Cir. 1988). Tulalip joined in

the motions for summary judgment filed by the Upper Skagit Tribe and Swinomish

Indian Tribal Community, and participated in other briefing prior to appeal, and

may appropriately be considered an Appellee in the instant appeal.

Tulalip files this response to highlight issues of importance to Tulalip.

Without waiving any argument, Tulalip limits this response to hold Suquamish

accountable to this Court's 1990 ruling that properly limited Suquamish's usual

and accustomed fishing area to the west side of Puget Sound.

B. Suquamish's Usual and Accustomed Fishing Area

In 1975, the district court issued an order as a result of a dispute over fishing

for herring. 7 United States v. Washington, 459 F. Supp. at 1048. The district court

held that Suquamish had made a "prima facie" showing that its fishing places were

in "the marine waters of Puget Sound from the northern tip of Vashon Island to the

7 The case had originally dealt only with salmon.

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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.

This order was entered on April 18, 1975, five months before the court ruled on

Tulalip's request for determination that first established its usual and accustomed

areas. United States v. Washington, 459 F. Supp. at 1039.

C. Suquamish's Eastward Expansion Was Rejected by This Court in 1990

Initially, Suquamish understood the westward orientation of their

adjudicated usual and accustomed fishing area. For instance, Suquamish fishing

regulations in 1975 excluded waters on the east side of Puget Sound. ER 0229-37.

However, Suquamish's fishing practices have expanded with the passage of time,

the orders of the courts notwithstanding.

Ten years after its fishing area was adjudicated, in May 1985, Suquamish

filed Subproceeding 85-1 with the district court seeking to expand their fishing

places to inland waters on the east side of Puget Sound, including: 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.

Suquamish, 901 F.2d at 773 & n.2; ER 0248-52. These waters are south and east

of the subject waters in this case. Suquamish abandoned their claims to inland

waters on the east side of Puget Sound. This portion of their claim was dismissed

in the district court with prejudice. ER 0250.

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Suquamish then lost before this Court on its only remaining claim that it

could fish on the east side of Puget Sound by virtue of its alleged status as political

successor-in-interest to the treaty-time Duwamish. Id. at 777. Reviewing all the

evidence presented in support of Suquamish's claims, this Court noted: "[a]t the

time to the Treaty of Point Elliott they did not fish in those areas, which were the

usual and accustomed fishing places of the Duwamish." Id. at 774. The Court

determined that Suquamish are "not entitled to exercise fishing rights on the east

side of Puget Sound." Id. at 778.

After 1990, Suquamish generally complied with the Ninth Circuit's

interpretation of the extent of their fishing area. This changed in 2003 when

Suquamish actively began to expand its fishing by attempting to fish on the east

side of Puget Sound without regard to the scope of its adjudicated fishing area or

the Court's 1990 ruling. The areas to which Suquamish seek to expand their

fishing are in marine waters that Tulalip and other tribes rely on for fishing.

The geographic scope of a tribe's adjudicated fishing area is an essential

component of the treaty fishing right, providing a defined area within which tribal

members may lawfully exercise fishing rights and delineating co-management

responsibilities. It makes little sense to argue that the phrase "marine waters of

Puget Sound," as Suquamish seems to do, can include the gigantic and vast areas

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of Puget Sound (however expansively defined) where there is no evidentiary

support in the case record for such a claim.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Oliver v. Keller, 289

F.3d 623,626 (9th Cir. 2002). The Court's review of cross motions for summary

judgment is governed by the same standard used by the trial court under Federal

Rule of Civil Procedure 56(c). Delta Savings Bank v. United States, 265 F.3d

1017, 1021 (9th Cir. 2001). Summary judgment maybe affirmed on any ground

supported by the record. Keyser v. Sacramento City Unified Sch. Dist., 26.5 F.3d

741,750 (9th Cir. 2001).

SUMMARY OF ARGUMENT

Pursuant to Fed. R. App. P. 280) and the Circuit Advisory Note to Rule

28-4, the Tribe hereby joins and incorporates by reference the responses of the

Upper Skagit and Swinomish tribes. The decision of the district court should be

affirmed. As a matter of law, the Court should find that (1) there is ambiguity in

Suquamish's adjudicated usual and accustomed fishing area and (2) that Judge

Boldt did not intend to include waters east of Whidbey Island as part of

Suquamish's adjudicated fishing area because there was no evidence in the record

before Judge Boldt to support Suquamish fishing in eastern waters. Nowhere in

the recitation of Suquamish adjudicated fishing areas are waters on the east side of

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Puget Sound referenced. The Court should reaffirm its 1990 decision that

Suquamish is not entitled to exercise fishing rights on the east side of Puget Sound.

ARGUMENT

I. THE EVIDENCE IN RECORD DOES NOT SUPPORT

SUQUAMISH EXPANSIONIST EFFORTS

Suquamish should not be permitted to fish outside of the geographic scope

of its adjudicated usual and accustomed fishing area. The evidence in the record

before Judge Boldt at the time of his 1975 decision severely damages Suquamish's

expansionist claims. Tellingly, Suquamish never explains the uncontroverted

evidence in the record, focusing instead on alleged tangential errors of law to try to

reverse the district court's decision.

A review of Exhibit USA-73, Dr. Barbara Lane's Identity, Treaty Status and

Fisheries of the Suquamish Tribe of the Port Madison Reservation (Dec. 15, 1974),

indicates that the Suquamish held "the west side of Puget Sound from near the

mouth of Hood Canal south to Vashon Island." ER 0259 (emphasis added). Dr.

Lane's report states there is "no clear evidence of winter villages on the west side

of Whidbey Island." ER 0260. There is no discussion of the east side of Whidbey

Island at all. ER 0260. Dr. Lane also notes that George A. Paige, the Indian Agent

in charge of the Fort Kitsap reservation, noted in 1856 that the Suquamish "have

been engaged in fishing in the different bays and inlets on the west side of the

Sound .... " ER 0272 (emphasis added). As these passages indicate, Suquamish

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primarily fished the west side of Puget Sound. The maps associated with Dr.

Lane's report also show Suquamish fishing focused solely on the west side of

Puget Sound. ER 0280 (indicating locations where fish were caught); ER 0301

(indicating location of Suquamish place names). None of the maps show locations

on the inland marine waters east of Whidbey Island. Id. The district court

correctly reviewed this evidence and determined that it makes plain that Judge

Boldt did not intend to include waters on the east side of Puget Sound within

Suquamish's adjudicated fishing area. ER 0024-25.

Had Judge Boldt intended to include discernable water bodies on the east

side of Puget Sound, including such areas as Saratoga Passage and Skagit Bay, in

Suquamish's adjudicated usual and accustomed fishing area determination he

would have done so. Judge Boldt's silence is telling. The district court

specifically mentioned bays and passages (rather than open marine waters) when

such discrenable sheltered waters were to be included in other tribe's usual and

accustomed area. See, e.g., United States v. Washington, 384 F. Supp. at 360

("Bellingham Bay"); id. at 371 ("Commencement Bay"); United States v.

Washington, 459 F. Supp. at 1049 ("Bellingham Bay, Chuckanut Bay, Birch Bay,

Semiahmoo Bay, and Semiahmoo Spit and surrounding waters"); id. ("Bellingham

Bay and Hale Passage"). Indeed, the Court need look no further than the Tulalip

Tribes' own adjudicated usual and accustomed fishing areas that are replete with

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specific references to diseernable water bodies in Washington. See, e.g., id. at

1058 ("Holmes Harbor and Saratoga Passage"); United States v. Washington, 626

F. Supp. 1405, 1527 ("Port Susan inlet"). In contrast, only "Haro and Rosario

Straits" and the streams draining into the "western side of Puget Sound" are

singled out in Suquamish's adjudicated usual and accustomed area determination:

ld. at 1049. These areas are remote from the east side of the Sound.

Try as they might to avoid this damning evidence in the record, Suquamish

cannot ignore evidence that locates Suquamish only on the west side of Puget

Sound, miles south and west from the sheltered marine waters on the east side of

Whidbey Island that are the subject of this Subproceeding. Tulalip acknowledges

the attraction of finding that the phrase "marine waters of Puget Sound" means

every drop of salt water from Olympia to Canada. However, simplicity must give

way to the evidence in the record that makes clear the "maddening imprecision"

with which the term "Puget Sound" has been used, as well as the plain fact that

' In Subproceeding 97-1, Suquamish went gone so far as to limit its own

usual and accustomed area in arguments before the court. Suquamish argued: "Incontrast to the facial breadth of Finding 76 [Muckleshoot], the usual and

accustomed findings of other tribes, even those having a predominantly saltwater

focus, contain references to specific place names that anchor their fishing places to

definite parts of the marine waters .... (Suquamish U&A finding referring to

northern tip of Vashon Island, the Fraser River, and Hood Canal)." ER 0316-24.

Suquamish cited their own usual and accustomed determination as an example of

an area limited by geographic anchors. These "anchors," as Suquamish calledthem, do not refer to the east side of Puget Sound.

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there is no evidence in the record that Suquamish fished on the waters east of

Whidbey Island at and before treaty time. The facts demonstrate that Suquamish's

adjudicated usual and accustomed area does not include the east side of Puget

Sound.

I lI. SUQUAMISH IS NOT ENTITLED TO EXERCISE FISHING

i RIGHTS ON THE EAST SIDE OF PUGET SOUND

Suquamish's position in this case is inexplicable. This Court's ruling in

United States v. Suquamish Tribe, 901 F.2d 772 (9th Cir. 1990), cannot be clearer:

Suquamish is "not entitled to exercise fishing rights on the east side of Puget

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Sound." ld. at 778. This ruling rejecting Suquamish expansion represents the law

of the case and provides a basis to affirm the district court's order. Suquamish

never mentions this decision.

The "law of the case" doctrine posits that court decisions should continue to

govern the same issues in subsequent stages in the same case. E.g., United States

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v. Lummilndian Tribe, 235 F.3d 443, 452 (9th Cir. 2000); Thomas v. Bible, 983

F.2d 152, 155 (9th Cir. 1993) (applying doctrine where the issue in question was

resolved either explicitly or by necessary implication in the prior decision). This

Court has already considered, and rejected, Suquamish expansion into waters on

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the; east side of Puget Sound in a case about Suquamish's efforts to "determine

their usual and accustomed fishing places on the eastern side of Puget Sound."

This Court noted, referring to the same usual and accustomed determination of

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Judge Boldt at issue in this appeal, that "[t]he district court found that the

Suquamish, a party to the Treaty of Point Elliott, held usual and accustomed

fishing places in several areas on the west side of Puget Sound." Suquamish Tribe,

901 F.2d at 773 (emphasis added). The Court then drew an important geographical

distinction, recognizing that "[u]nlike the Suquamish, who are located on the west

side of Puget Sound, the Tulalip ... were made up of bands from the east side of

file Sound." Id. at 775 n.9 (emphasis added). This led the Court to the inescapable

conclusion that the Suquamish are "not entitled to exercise fishing rights on the

east side of Puget Sound." Id. at 778.

George Santayana's famous quotation rings true here: "Those who cannot

remember the past are condemned to repeat it." This Court determined, and

Suquamish knew, in 1990, that Suquarnish do not hold treaty-reserved fishing

rights on the east side of Puget Sound. Yet, seventeen years later, this Court is

again confronted with Suquamish expansionist efforts aimed at the east side of

Puget Sound. The Court should take this opportunity to put this issue to rest once

and for all by reaffirming its 1990 decision as the law of the case that Suquamish

are "not entitled to exercise fishing rights on the east side of Puget Sound."

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CONCLUSION

For the foregoing reasons, this Court should affirm the district court's order

and reaffirm its 1990 decision that the Suquamish Tribe has no adjudicated usual

and accustomed fishing rights on the east side of Puget Sound.

DATED this 18th day of June, 2007.

Respectfully Submitted,

M_S & McGAW

_'_Maso/n/_. Morisset,_A #00273

Ro/b'Roy Smith, W/SBA #33798

//_ttorneys for A/p_ellee The Tulalip Tribes

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STATEMENT OF RELATED CASES

There are two related cases pending in this Court: United States v.

Washington (Tulalip Tribes v. Suquamish Tribe), Ninth Cir. No. 06-35185 and

United States v. Washington (Lummi Indian Nation v. Suquamish Tribe), Ninth Cir.

No. 06-35241. These cases involve an appeal of a final order of the district court

in Subproceeding 05-4 of United States v. Washington, dismissing on procedural

grounds the Tulalip Tribes' request for clarification of the geographic scope of the

Suquamish Tribe's adjudicated usual and accustomed fishing area as to certain

marine waters immediately south of the waters at issue in this appeal.

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Form 8. Certificateof CompliancePursuantto Fed. R. App. P. 32(a)(7)(C) and CircuitRule 32-1 for Case Number 07-35061

(see next page) Form Must Be Signed By Attorney or Unrepresented IAUgantand attached

to the back ef each copy of the brief

I ce_y that:(check appropriateoption(s))

,

QPmsuantto Fed. IL App. P. 32 (aXT)(C) and Ninth Circuit Rule 32-1, the attached

opening/answering/reply/cross-appealbriefis

PropoRionatelyspaced,has a typefaceof 14 pointsor more and contains 4,553 words

(opening,answering,andthesecondandthirdbriefsfiledincross-appealsmust notexceed 14,000

words;replybriefsmust not exceed7,000 words),orb

Q Monospaced, has 10.5 or fewer characters per inch and

contains words or lines of text (opening,

answering, and the second and third briefs filed in cross-appeals

must not exceed 14,000 words or 1,300 lines of text; reply briefs

must not exceed 7,000 words or 650 lines of text).

,i

Theattachedbriefis not subjectto the type-volumelimitationsof Fed.IL App.P. 32(aX7)(B)because

Q

This briefcompliesw_ Fed IL App. P. 32(aX1)-(7)and is a principalbriefof no morethan

30 pages or a replybriefof no morethan15 pages;

This briefcomplieswitha pageorsize-vohunelimitationestablishedby separatecourtorderdated and is

Q

Wor_,

or_

Q Monospaced,

contains

text.

Proportionatelyspaced,has a typefaceof 14pointsormoreand contains

has 10.5

9ages

or fewer characters per inch and

or words or lines of

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I 3. Briefsin CapitalCases

I O 1hisbriefisbeingfiledina capitalca_ pursuantto_ type-volumelmeationssetfo_ at

C_uitRule32-4and is

I Q Ptopottionmlyspaced,hasatypda_ of 14pointsormoreandcontains

wok (opening,a_w_ng, andthosecondandthirdbriefsfiledin¢_ss-appcalsmustnot

I . ox_d 21,000words;replybriefsmustnotoxc_ 9,800words)

I or=0 Monospaced, has i0.5 or fewer characters per inch and

I contains words or lines of text (opening,

answering,a--_he second _d briefs filed in cross-

I appeals must not exceed 75 pages or 1,950 lines of text;reply briefs must not exceed 35 pages or 910 lines of text).

I _4. AmicusSriefi

I [2 Pursuantto Fed.R.App.P.29(d)and95 Cir.R.32-1,theattachedamicusbridis

i .proportionallyspaced,hasatypefaceof 14pointsormoreandcontains7000woadsor less,or=

I Q Monospaced,has10.5orfeworcharacterspotinchandcontainsnotmorethaneither7000

.WOADSor650linesoftext,ior =

I12 Notsubjecttothe(yp_volm¢limitationsbecauseit isan amicusbridofnom_ than15

I pagesandcomplieswithF_t.R,App.P.3_

I June18,2007

I Dato SignaturoofAttomeyorUmpresentodLitigant

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on the 18th day of June, 2007, I filed the original and

fifteen copies of Appellee Tulalip Tribes' Response Brief with the Ninth Circuit

Court of Appeals via Priority Overnight Mail to:

Clerk of the Court

Ms. Cathy A. Catterson

U.S. Court of Appeals for the Ninth CircuitP.O. Box 193939

95 Seventh Street

San Francisco, CA 94119-3939

I further certify that on the 18th day of June, 2007, I served two copies of the

foregoing document on the parties listed below by U.S. First-Class Mail:

Harold Chesnin, Esq.

David Hawkins, Esq.Office of the Tribal

Attorney

Upper Skagit Indian Tribe

25944 Community Plaza

Way

Sedro Woolley, WA 98284

Co-Counsel for the Upper

Skagit Tribe

Lauren P. Rasmussen, Esq.

Gendler & Mann, LLP1424 Fourth Ave., Ste.1015

Seattle, WA 98101-2217

Counsel for the PortGamble and Jamestown

S'Klallam lndian Tribes

Andrew H. Salter, Esq.

Salter Joyce Ziker PLLCSuite 2040

1601 Fifth Avenue

Seattle, WA 98101

Co-Counsel for the UpperSkagit Tribe

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Alix Foster, Esq.James JannettaSwinomish Indian Tribal

CommunityP. O. Box 817

LaConner, WA 98257

Counsel for the Swinomish

Indian Tribal Community

Cluistopher Pickrell, Esq.

Assistant U.S. Attorney700 Stewart St., Suite 5220

Seattle, WA 98101-1271

Co-Counsel for UnitedStates

Erie J. Nielsen, Esq.Nielsen, Broman & Koch1908 E. Madison Street

Seattle, WA 98102

Co-counsel for the QuinaultIndian Nation

Gregory O'Leary315 5thAvenue S, Suite100

Seattle, WA 98104

Co-counsel for theMuckleshoot Indian Tribe

Peter C. Monson, Esq.

Dept of Justice ENRD1961 Stout Street, 8thFloor

Denver, CO 80294

Co-Counsel for UnitesStates

Fawn R. Sharp, Esq.Office of the Reservation

AttorneyQuinault Indian NationP. O. Box 189

Taholah, WA 98587

Co-Counsel for the

Quinault Indian Nation

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Dr. Howard F. Horton

Dept. ofFish & WildlifeOSU- 104 Nash Hall

Corvallis, OR 97331-3803

District Court Technical

Advisor

Kevin R. Lyon, Esq.

Kelly S. Croman, Esq.

Squaxin Island Legal

Dept..SE 3711 Old Olympic

HwyShelton, WA 98584

Co-Counsel for the

Squaxin Island Tribe

Lori E. Nies, Esq.Skokomish Indian Tribe

N. 80 Tribal Center Rd.

Skokomish Nation, WA98584

Co-Counsel for theSkokomish Indian Nation

Phillip E. Katzen, Esq.

Cory J. Albright, Esq.

David C. LaSarte-Meeks,

Esq.

John Sledd, Esq.

Kanji & Katzen, PLLC

1(}0 S King St., Ste. 560Seattle, WA 98104

Counsel for the Hoh,

Suquamish, Jamestown,Lower Elwha, & Port

Gamble Bands of S'Klallam,

Nisqually, Sauk-Suiattle,

Skokomish, Squaxin Island,

Stillaquamish, and Upper

Skagit Tribes

Daniel A. Raas, Esq.

Harry L. Johnsen, Esq.Raas Johnsen & Stuen, P.S.

1503 E St., P. O. Box 5746

Bellingham, WA 98227-5746

Counsel for the LummiIndian Nation

Charles R. Hostnik, Esq.Anderson, Bums & Hostnik6915 Lakewood Drive West

Suite A 1

Tacoma, WA 98467

Co-counsel for the LowerElwha Klallam Tribe

Sam Stiltner, Esq.

John Howard Bell, Esq.Law Office

Puyallup Tribe3009 Portland Ave.

Tacoma, WA 98404

Counsel for the PuyallupTribe

Mary M. Neil, Esq.Lummi Indian Nation

Office of the Reservation

Attorney2616 Kwina Road

Bellingham, WA 98226

Co-Counsel for the LummiIndian Nation

Tim Weaver, Esq.Tim Weaver Law Office

P. O. Box 487

Yakima, WA 98907

Counsel for theConfederated Tribes and

Bands of the YakamaIndian Nation

David R. West, Esq.

Seth J. Bemtsen, Esq.

Ruth Kennedy, Esq.

Garvey Schubert & Barer1191 Second Ave., 18th F1.

Seattle, WA 98101-2939

Co-Counsel for the

Quileute Tribe

Bill Tobin, Esq.P. O. Box 1425

Vashon, WA 98070

Counsel for the NisquallyIndian Tribe

Edward J. Wurtz, Esq.Nooksack Indian Tribe

5048 Mt. Baker HighwayP.O. Box 157

Deming, WA 98244-0157

Counsel for the NooksackIndian Tribe

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Robert L. Otsea, Jr., Esq.

Alan C. Stay, Esq.Richard Reich, Esq.Office of the Tribal

Attorney39015 172 "a Avenue S.E.

Auburn, WA 98002

Counsel for theMuckleshoot Tribe

Robert K. Costello, AAG

Attorney General's OfficeP. O. Box 40100

Olympia, WA 98504-0100

Counsel for the Department

offish and Wildlife

Joseph E. Shorin, Sr.Washington AttorneyGeneral's Office

Fish & Wildlife Division

P.O. Box 40100

Olympia, WA 98504-0100

Co-counsel for the State ofWashington

Robert C. Troyer, Esq.

Hogan & Hartson, LLP1200 17th St., Suite 1500

Denver, CO 80202Co-counsel for Co-counsel

for the Lower ElwhaKlallam Tribe

Fronda Woods, Esq.

Attorney General's OfficeP O Box 40100

Olympia, WA 98504-0100

Counsel for the

Department of Fish and

Wildlife

Paul L. Anderson, Esq.P.L.L.C.

P. O. BOX 48102

Seattle, WA 98166

Counsel for the

Washington TrollersAssociation

Marc Slonim, Esq.

John Arum, Esq.Richard Berley, Esq.

Brian Gruber, Esq.

Ziontz Chestnut, et al.2101 Fourth Ave., Ste1230

Seattle, WA 98121

Counsel for the MakahTribe

Robert F. Kehoe, Esq.1900 W. Niekerson StreetSuite #320

Seattle, WA 98119-1650

Counsel for the PurseSeine Vessel Owners

Association and GaryWestman

Michael S. Grossmann,

Esq.

Attorney General's OfficeP. O. Box 40100

Olympia WA 98504-0100

Co-counsel for the State ofWashington

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Michelle Hansen, Esq.P. O. Box 498

Suquamish, WA 98392Counsel for the SuquamishTribe

I declare the above to be true and correct under penalty of perjury. Executed

June 18, 2007, at Seattle, Washington. //_f/_ ...

LL6"ehwaKim, Paralegal

_lgpt_T Dfivc_WPD(X_b'_007_g'J4001JU Upper Skallit.SuquIndsh Appcll 05-3W_spame 003.docIk:¢_111/07

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