Ninth Circuit: Sauk-Suiattle Fishing Rights Expansion Allowed

• The Ninth Circuit Court of Appeals has permitted the Sauk-Suiattle Indian Tribe to pursue expanded fishing rights on the Baker River and in marine waters.
• This decision reverses a lower court's dismissal, instructing it to consider evidence of the tribe's customary fishing in these areas.
• The court denied the tribe's claim for expanded rights on the Skagit River, citing a previous ruling that it was intentionally omitted from their designated grounds.
• The case hinges on the 1974 Boldt decision, which interpreted the 1855 Treaty of Point Elliott and allows tribes to seek expansion of their "usual and accustomed" fishing grounds.
• This ruling indicates that the scope of tribal fishing rights under the Boldt decision remains open to litigation for specific, previously unaddressed waterways.

It doesn’t mean the tribe has treaty rights to fish in marine waters or on the Baker River, it merely means the tribe has the right to proceed in the court to try and prove that it does.

A federal appeals court has granted the Sauk-Suiattle Indian Tribe the opportunity to pursue an expansion of its fishing rights, specifically concerning the Baker River and certain marine waters in Washington State. The Ninth Circuit Court of Appeals issued a 24-page ruling on Monday, overturning a lower court's decision that had dismissed the tribe's claims. This significant development allows the Sauk-Suiattle Tribe to proceed with its lawsuit, which seeks to establish treaty fishing rights in areas not explicitly assigned in a landmark 1974 ruling.

The tribe's request, filed in 2024, aimed to include the Baker River, a 30-mile tributary of the Skagit River, and various marine waters within its designated "usual and accustomed" fishing grounds. However, the Ninth Circuit's decision was not a complete victory for the tribe; it upheld the dismissal of claims related to the Skagit River. Four other tribes—the Swinomish, Suquamish, Tulalip, and Upper Skagit—had intervened in the case, arguing that the 1974 ruling had already comprehensively defined the Sauk-Suiattle’s fishing territories, and the lower court initially agreed, citing a lack of jurisdiction.

At the heart of this legal dispute is the 1974 ruling by U.S. District Judge George Boldt, an Eisenhower appointee. This foundational decision, known as Final Decision I, interpreted the 1855 Treaty of Point Elliott and other treaties, affirming the rights of Washington state indigenous fishing rights to off-reservation fishing at their "usual and accustomed" grounds and stations. The Boldt decision famously allocated half of the harvestable fish to tribal fishermen within these designated areas.

Crucially, the 1974 injunction also included a provision allowing concerned tribes to seek either clarification or expansion of their existing "usual and accustomed" grounds. This clause is central to the Sauk-Suiattle's current efforts to expand its fishing territory. Senior U.S. Circuit Judge Margaret McKeown, a Clinton appointee who authored the recent Ninth Circuit opinion, underscored the historical complexity of such cases, noting that it is difficult to conceive of a more "comprehensive and complex case" than those involving tribal water rights in the region, a sentiment she echoed from remarks made over 35 years ago.

The Ninth Circuit's decision to allow the Sauk-Suiattle Tribe to pursue its claims for the Baker River and marine waters stems from the unique circumstances surrounding these specific areas. While the court affirmed that the Skagit River was intentionally excluded from the Sauk-Suiattle’s usual and accustomed grounds in the 1974 Boldt decision, the same cannot be said for the Baker River. Judge McKeown highlighted that despite decades of extensive litigation concerning tribal water rights in western Washington, claims specifically addressing the Baker River, a southward-flowing tributary of the Skagit, have never been formally presented.

Regarding the Sauk-Suiattle marine waters fishing claims, the appeals court similarly found that the tribe could proceed. Although Judge Boldt's original decision mentioned the Sauk-Suiattle traveling to saltwater, it did not explicitly assign any marine fishing rights to the tribe. The Ninth Circuit has now instructed the lower court to consider evidence presented by the Sauk-Suiattle Tribe to determine whether it customarily fished on the Baker River with sufficient regularity to warrant its inclusion in the tribe's established fishing territories.

This recent Ninth Circuit tribal fishing rights ruling is a procedural victory, not a final determination on the merits of the Sauk-Suiattle's claims. As attorney Jack Fiander, representing the Sauk-Suiattle, emphasized, the decision merely grants the tribe the right to present its case in court to prove its treaty rights to fish in these areas. He likened the ongoing legal process to being "only on chapter three of about seven," indicating a long road ahead for the Sauk-Suiattle Tribe Baker River fishing and marine water claims.

The three-judge panel, which included Senior U.S. Circuit Judge William Fletcher and U.S. Circuit Judge Patrick Bumatay alongside Judge McKeown, has thus signaled that the scope of tribal fishing rights under the 1974 Boldt decision is not entirely settled. This ruling suggests that specific waterways not previously addressed in detail can still be litigated, potentially leading to a Ninth Circuit Sauk-Suiattle fishing rights expansion. Neither the intervening tribes nor the state of Washington provided comments on the decision.

This ruling indicates that the scope of tribal fishing rights under the 1974 Boldt decision is not entirely settled and can still be litigated for specific waterways not previously addressed. Lawyers advising clients involved in natural resource management, environmental law, or land use in Washington State should monitor this case for potential shifts in resource allocation and the interpretation of treaty rights, particularly concerning the Baker River and marine waters.

Source: Original reporting via Courthouse News Service