Alanna Madden

(CN) — A Ninth Circuit panel affirmed a federal judge's denial of fishing rights to the Lummi Nation in northern Washington state on Monday, preventing the tribe from opening a planned crab fishery in Puget Sound that would affect fishing quotas for other Indigenous tribes in the region.

“Because there is no evidence in that record of historical Lummi fishing east of Whidbey Island, we decline to read the decree to grant the Lummi fishing rights east of Whidbey Island,” wrote Donald Trump-appointed U.S. Circuit Judge Daniel P. Collins in the order, citing the historic fishing rights decree published by U.S. District Judge George Boldt in 1974.

The matter at hand goes back to 2019, when the Swinomish Indian Tribal Community, the Tulalip Tribes and the Upper Skagit Indian Tribe sought an order from the federal courts that would prevent the northern Lummi Nation from opening a crab fishery in waters that the Lummi have not fished since its usual and accustomed fishing places were determined by Judge Boldt.

Known as the “Boldt Decision,” the historic decree reaffirmed Washington state tribes’ treaty rights to fish in historically accustomed places. Boldt’s order, upheld by the Ninth Circuit in 1975 and by the Supreme Court in 1979, settled competing claims to fishing rights across several waterways between Olympia, Washington, and the Canadian border, including the U.S. portion of Puget Sound, the watersheds of the Olympic Peninsula north of Grays Harbor and the areas’ adjacent offshore waters.

The area brought to issue in 2019 involved water east of Whidbey Island in Puget Sound, including Skagit Bay, the Saratoga Passage, Port Susan, Holmes Harbor and Possession Sound.

As recognized by the Boldt Decision, all four tribes have fishing rights under the Treaty of Point Elliott in 1855. But while the Lummi convinced the Ninth Circuit in 2017 of their historical fishing rights west of Whidbey Island, the matter of their rights east of the island was not clear — particularly as that area had been designated as the “usual and accustomed” fishing grounds for the Swinomish, Tulalip and Upper Skagit tribes.

The three tribes contend that if the Lummi fish the area, it would greatly reduce their tribal harvest quota, require partial or total closure of their crab fishing and deprive them of subsistence and other cultural practices. They also argued that none of the evidence Boldt used to issue his decree mentioned Lummi fishing or traveling in the area or any geographic feature in or within the region at issue.

On Sept. 20, 2021, U.S. District Judge Ricardo S. Martinez sided with the challenging tribes, stating that the record before Boldt “does not evidence Lummi travel within the disputed waters, let alone fishing.” At most, Martinez wrote, “the evidence leaves open the possibility of infrequent and extraordinary travel into the openings of the disputed waters.”

Within two weeks of Martinez’s order, the Lummi filed an appeal to the Ninth Circuit while two other tribes — the Jamestown S’Klallam Tribe and the Port Gamble S’Klallam Tribe — asked the court to reconsider and amend its order, arguing it could be construed to imply that tribes other than the Lummi may have fishing rights in certain waters west of Whidbey Island where they fish.

Martinez denied the S’Klallam’s motion for reconsideration, concluding that since the Lummi had already appealed, he no longer had jurisdiction over the matter. The two tribes then appealed both decisions, leading the Ninth Circuit to interpret Boldt’s decree for two appeals regarding the same case.

“The remainder of the dispute before us is easily resolved,” Judge Collins wrote, eventually explaining that the Ninth Circuit had already concluded during the dispute between the Lummi and three challenging tribes that no previous precedent had held that any tribe besides the Lummi traveled and fished west of Whidbey Island.

“Nor, as we have just explained, do our cases stand for the proposition that the mere possibility of travel through disputed waters is sufficient to support a grant of U&A rights there — a principal Judge Boldt directly rejected and we likewise have never accepted,” Collins wrote.

Having clarified both points in the S’Klallam’s favor during Lummi’s appeal, the judge added, the Ninth Circuit deemed the S’Klallam’s appeal as moot.

Representatives for the appealing tribes, including the Lummi Nation, did not immediately respond to a request for comment.

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