Ninth Circuit to take fresh look into tribal fishing rights dispute
Sam Ribakoff
(CN) — The Stillaguamish Tribe told a Ninth Circuit panel on Thursday that it's being held to a higher standard of evidence than other Native American tribes had to meet in the past in its fight with another tribe over fishing rights.
The Stillaguamish claim their people have historically fished their namesake river in what’s now northwestern Washington state as well as the interconnected waters around the area, including Port Susan, Skagit Bay and Camano Island both prior to and at the time they and other tribes signed the Point Elliott Treaty in 1855. Under the treaty, the federal government received thousands of acres of tribal territory in exchange for reservation land and guaranteed hunting and fishing rights.
Washington state and tribes including the Upper Skagit Indian Tribe, argued the Stillaguamish only tangentially relied on marine fishing and lived primarily inland along the Stillaguamish River. The Stillaguamish Tribe countered there is evidence their ancestors fished off the mainland and regularly used marine resources.
A federal judge ruled the Stillaguamish’s territory did not include the marine waters, and the tribe appealed. In 2024, a Ninth Circuit panel found the lower court properly applied the law but did not make sufficient factual findings to enable appellate review. The panel ordered the lower court to conduct “further fact-finding” of the Stillaguamish’s villages, presence and fishing in the contested areas.
Months later, the judge ruled the Stillaguamish had not provided evidence “beyond speculation” to support their claims. The tribe appealed again.
“What Skagit tries to do is ‘other’ Stillaguamish, saying that Stillaguamish alone would have stayed up on their river and would have not used these saltwater resources. But that simply does not reflect the reality of 1855 or the reality of the law of the case,” Stillaguamish Tribe’s attorney Rob Roy Smith, of Kilpatrick Townsend & Stockton LLP, told the Ninth Circuit panel on Thursday.
The tribe did present testimony from anthropologist Barbara Lane and Western Washington University professor Chris Friday, who specializes in the history of Indigenous people and the Pacific Northwest. The pair testified there is evidence of Stillaguamish villages at the delta where the river meets the Puget Sound, Smith said.
Lane’s testimony was based on a private letter written in the 1980s that said it would have been inconceivable that the Stillaguamish would have villages on Port Susan but not fish those waters.
The testimony of experts “has always been enough without additional evidence,” Smith said. If that kind of evidence was deemed speculative “then the expert testimony for the prior 50 years of this case has all been speculative too,” he added.
Smith pointed to the nearby Tulalip Tribes who won an expansion of their customary fishing rights based on similar expert testimony alone. U.S. Circuit Judge Richard Clifton pushed back.
“Well in some instances, but the fact that eyewitness testimony is maybe sufficient in some cases doesn't mean it’s gotta be accepted as sufficient in every case. In this case you have some evidence, and the district court looked at it and decided it wasn’t sufficient to prove what had to be proven,” the George W. Bush appointee said.
There’s still a preponderance of evidence standard that needs to be met, even if evidence on both sides is “sketchy,” he added. But Smith said the lower court has done things differently for other tribes.
“The district court, until this case, has never let the absence of a perfect historical record stop it from finding that there was tribal fishing in the marine waters at and before treaty times,” Smith said. “There’s a relaxed standard of proof that applies here.”
But Emily Haley, senior managing attorney at Swinomish Indian Tribal Community, noted Lane did an extensive report on the Stillaguamish’s territory and fishing practices at the time tribal leaders signed the 1855 treaty, which found they lived and fished on the river and that they didn’t need to leave that area because the river provided them with all they needed.
“Stillaguamish doesn’t talk about that at all. It instead relies on these statements that were made in a personal letter,” Haley said.
The district court was correct in their decision because the Stillaguamish couldn’t provide evidence to meet its burden of proof, she added.
And Upper Skagit's attorney David Hawkins said his clients have limited fishing waters. If the court granted the Stillaguamish claim, it would constitute most if not the entirety of the Upper Skagit’s waters, he said.
“It’s more than just fishing, your honor. It’s the identity of who they are. Where you fish, your village sites, the tribes locations. The incursion into those territories, it’s an attack on their identities as well,” Hawkins said.
U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, acknowledged this is both a complicated and important case and said the panel is taking it seriously.
U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, rounded out the panel.
The area has seen its share of fights over the fishing rights of Indigenous peoples. The Boldt Decision in 1974 affirmed the rights of tribes in Washington state to fish the waters under their treaties with the federal government. In 2017 and 2021, the Ninth Circuit ruled the Lummi Nation’s “usual and accustomed” fishing grounds expanded farther than federal courts had previously recognized, ending a decadeslong legal standoff.
Lane, whose expertise contributed to the Boldt Decision, died in 2013.