TULALIP — A federal appeals court has upheld a lower court’s decision that recognized the Suquamish Tribe’s rights to fish in Port Gardner and other nearby waters.
The result is that the Tulalip Tribes, who had filed the appeal, will have to share those fishing grounds with the Suquamish, who are based across Puget Sound in Port Madison.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled July 27 that the Tulalip Tribes did not provide ample evidence that fishing grounds on the east side of Puget Sound should not be shared with the Suquamish.
A spokesperson for the Tulalip Tribes would only say they were reviewing their options.
The case is one of several that stemmed from the 1979 case U.S. v. State of Washington, also known as the Boldt decision for U.S. District Judge George Hugo Boldt, who heard the case.
In addition to affirming local Native American tribes’ treaty rights to co-manage the fisheries alongside the state, the Boldt decision also identified the usual and accustomed fishing grounds for each local tribe. The litigation referred to those areas as U&As, for short.
Some tribes contested elements in some of the U&A, and several lawsuits since then have sought to clarify the ruling.
The Tulalip Tribes in 2005 asked the court to find that the Suquamish U&A was limited to the western side of Puget Sound.
The district court determined that the Tulalip Tribes needed to show that each named bay or marine area was not part of the Suquamish U&A. For most of the fishing grounds, the court said the tribes had failed to do so.
9th Circuit Court Judge Richard Paez wrote that, in the appeal, the burden of proof was still on the Tulalip Tribes.
Writing for the three-judge panel, he said that the evidence originally presented to Judge Boldt supported the Suquamish position that they fished in the bays and coves in and around Whidbey Island.
“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,” Paez wrote.
“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,” he wrote.
Similar reasoning was applied to Admiralty Bay, Mutiny Bay, Useless Bay and Cultus Bay on the west side of Whidbey Island. The ruling means the Suquamish have fishing rights in those bays, plus in Possession Sound and Port Gardner on the east side.
Port Susan, the Saratoga Passage, Skagit Bay, and Penn Cove and Holmes Harbor on the east side of Whidbey Island remain excluded from the Suquamish fishing grounds.
Chris Winters: 425-374-4165; cwinters@heraldnet.com. Twitter: @Chris_At_Herald.
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