UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
and
PUYALLUP INDIAN TRIBE; SUQUAMISH
INDIAN TRIBE; SWINOMISH INDIAN
TRIBAL COMMUNITY,
No. 99-35960
Intervenor-Plaintiffs/
D.C. No.
Petitioners-Appellees,
CV-70-09213-BJR
v.
OPINION
MUCKLESHOOT INDIAN TRIBE,
Intervenor-Plaintiff/
Respondent-Appellant,
v.
STATE OF WASHINGTON, et al.,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Barbara J. Rothstein, Chief District Judge, Presiding
Argued and Submitted
September 12, 2000--Seattle, Washington
Filed December 13, 2000
Before: Mary M. Schroeder, Robert R. Beezer, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
_________________________________________________________________
15943
COUNSEL
Annette Klapstein (argued), Law offices of the Puyallup
Indian Tribe, Tacoma, Washington, for intervenor-plaintiff/
petitioner-appellee Puyallup Indian Tribe.
Scott W. Wheat (argued), Office of Tribal Attorney of the
Suquamish Indian Tribe, Suquamish, Washington,
for intervenor-plaintiff/petitioner-appellee Suquamish Indian
Tribe.
Alix Foster, Office of the Tribal Attorney of the Swinomish
Indian Tribal Community, LaConner, Washington, for
intervenor-plaintiff/petitioner-appellee Swinomish Indian
Tribe.
Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak,
Seattle, Washington, for intervenor-plaintiff/appellee Tulalip
Tribes of Washington.
Gregory M. O'Leary (argued), Seattle, Washington, for
intervenor-plaintiff/respondent-appellant Muckleshoot Indian
Tribe.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
This appeal concerns the limits of the Muckleshoot Tribe's
saltwater usual and accustomed fishing area under the Boldt
15946
Decision. Because we agree with the district court that the
Muckleshoot's saltwater usual and accustomed fishing area,
as found by Judge Boldt, was limited to Elliott Bay, we affirm
the grant of summary judgment for the Puyallup, Suquamish,
and Swinomish Tribes.
Background and Procedural History
This case centers on the interpretation of a lengthy and
detailed district court opinion published in 1974 after an
extensive trial involving a voluminous record. In United
States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)
("the Boldt Decision"), aff'd, 520 F.2d 676 (9th Cir. 1975),
Judge Boldt adjudicated the treaty-reserved fishing rights of
several tribes in Washington state, including the parties to this
dispute. Central to this case is Finding of Fact 76 ("Finding
76") of the opinion, which states:
Prior to and during treaty times, the Indian ancestors
of the present day Muckleshoot Indians had the
usual and accustomed fishing places primarily at
locations on the upper Puyallup, the Carbon, Stuck,
White, Green, Cedar, and Black Rivers, the tribu-
taries to these rivers (including Soos Creek, Burns
Creek and Newaukum Creek) and Lake Washington,
and secondarily in the saltwater of Puget Sound.
Villages and their weir sites were often located
together. [FPTO S 3-53; Ex. USA-20, p. 38; Ex.
USA-27b, pp. 7-16; Ex. PL-23, pp. 11-12]
Id. at 367 (emphasis added) (brackets in original). After the
decision was issued, the Muckleshoot Indian Tribe ("the
Muckleshoot") opened commercial fisheries in some of the
areas designated in Finding 76.
Judge Boldt's decision did not explicitly address shellfish
entitlements; rather, it concerned the rights to fin fish. The
individual tribes' entitlements to shellfish, which are not at
15947
issue here, were addressed in a subsequent case, United States
v. Washington, 873 F. Supp. 1422 (W.D. Wash. 1994)
("Washington II"), aff'd in part and rev'd in part, 157 F.3d
630 (9th Cir. 1998).
After Washington II, the Muckleshoot sought to open fish-
eries in Area 11 of Puget Sound. Area 11 is a geographically-
defined region of Puget Sound located to the west of the City
of Seattle. Area 11, as a fishing zone, was not defined at the
time of Boldt Decision; it was subsequently established by
state regulation. In response to this action by the Muckle-
shoot, the Puyallup Indian Tribe ("the Puyallup") filed a
Request for Determination in district court. The Request
sought a determination that the Muckleshoot's usual and
accustomed ("U&A") saltwater fishing area, as determined by
Finding 76 of the Boldt Decision, does not include any areas
outside Elliott Bay (now known as Area 10A, like Area 11 a
fishing region created by state regulation). With the court's
permission, the Suquamish Indian Tribe ("the Suquamish")
and the Swinomish Indian Tribal Community ("the Swinom-
ish") filed a Cross-Request for Determination seeking a simi-
lar ruling.
In January 1998, the Muckleshoot filed a Motion to Dis-
miss the Request and the Tribes (the Puyallup, Suquamish,
Swinomish) filed a Motion for Summary Judgment on their
Requests for Determination. On August 5, 1998, the district
court granted the Muckleshoot's motion to dismiss with
respect to the Tribes' claims that the Muckleshoot had no salt-
water fishing rights outside Areas 9, 10, and 11. The court
reasoned that it did not have jurisdiction over areas other than
Areas 9, 10, and 11 because the Muckleshoot had not mani-
fested an intent to conduct saltwater fishing in Areas other
than 9, 10, and 11. The court then denied the Tribes' motion
for summary judgment and ordered an evidentiary hearing on
whether Areas 9, 10, and 11 were part of the Muckleshoot's
U&A under Finding 76 of the Boldt Decision.
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Both parties filed Cross-Motions for Summary Judgment.
On September 10, 1999, the district court held that the Muck-
leshoot's U&A under Finding 76 was limited to Elliott Bay
(Area 10A) and enjoining the Muckleshoot from fishing in
Areas 9, 10, and 11. The Muckleshoot appealed. We have
jurisdiction pursuant to 28 U.S.C. SS 1291 and 1292(a)(1).1
Standard of Review
A grant of summary judgment is reviewed de novo. See,
e.g., Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999), cert.
denied, 120 S. Ct. 375 (1999). This court must determine,
viewing the evidence in the light most favorable to the appel-
lants, whether there are any genuine issues of material fact
and whether the district court correctly applied the substantive
law. See, e.g., Berry v. Valence Tech., Inc., 175 F.3d 699 (9th
Cir. 1999), cert. denied, 120 S. Ct. 528 (1999). The court does
not weigh the evidence or determine the truth of the matter;
rather, the court only decides whether there is a genuine issue
of material fact for trial. See Colacurcio v. City of Kent, 163
F.3d 545, 549 (9th Cir. 1998).
Analysis
I. Ambiguity in Finding 76
This case turns on the interpretation of the phrase "second-
arily in the waters of Puget Sound" as used by Judge Boldt in
Finding 76. The case, therefore, resembles one of statutory
_________________________________________________________________
1 The district court did not certify its judgment as a final order under
Fed. R. Civ. P. 54(b). The matter before the court was a subproceeding
and the court's judgment was final as to the issues in the subproceeding.
See Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988) (stating
that final judgment "ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment") (internal quotation marks
omitted). Jurisdiction under section 1291 is therefore proper. Jurisdiction
also lies under S 1292(a)(1) to review the district court's award of injunc-
tive relief.
15949
construction, with the Boldt Decision serving as the instru-
ment to be interpreted. The Muckleshoot's argument is essen-
tially one of plain meaning. According to the Muckleshoot,
the text of Finding 76 is unambiguous because "Puget Sound"
has a well-understood, common geographical meaning. If
Judge Boldt, who was intimately familiar with the geography
of the region and its relevance to the case, meant to confine
the Muckleshoot's saltwater U&A to inner Elliott Bay, the
Muckleshoot contend Judge Boldt could have expressly done
so in Finding 76.
The Tribes counter that the phrase is ambiguous when
examined in the context of the evidence before Judge Boldt.
Given the evidence that Judge Boldt relied upon and other
Findings of Fact and Law in the opinion, the Tribes argue that
Judge Boldt could not have intended to include the expansive
area claimed by the Muckleshoot as part of their saltwater
U&A. Cf. Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d
1090, 1096 (9th Cir. 1999) ("To determine the plain meaning
of a statutory provision, we examine not only the specific pro-
vision at issue, but also the structure of the statute as a whole,
including its object and policy.").
The parallels between this case and one of statutory con-
struction should not be overemphasized. There are important
distinctions between interpreting a judicial opinion and a stat-
ute. First, the documents and the evidence the court relied
upon, which are the rough equivalent of legislative history,
play a much larger and more definitive role in interpreting the
judicial text than do the traditional components of legislative
history in statutory interpretation. Finding 76 specifically cites
the supporting documents used as the bases for its conclu-
sions. There is no question, then, that the court relied upon
this information in reaching its decision. Moreover, in refer-
encing the documents cited in Finding 76, Judge Boldt said,
"The court finds that in specific facts, the reports of Dr. Bar-
bara Lane, Exhibits USA-20 to 30 and USA-53, have been
exceptionally well researched and reported and are estab-
15950
lished by a preponderance of the evidence. They are found to
be authoritative and reliable summaries of relevant aspects of
Indian life in the case area at and prior to the time of the trea-
ties . . . ." Washington, 384 F. Supp. at 350.
More importantly, judicial opinions are simply not statutes
and the rules governing the interpretation of the two reflect
this. In general, there are no canons of construction for the
interpretation of opinions, reflecting the fact that textual pre-
cision, while a highly valued judicial quality, is at the very
center of statutory interpretation. See, e.g. , United States v.
Partlow, 159 F.3d 1218, 1219 (9th Cir. 1998) (where the
terms of a statute are unambiguous, its plain meaning must
control).
Opinions, unlike statutes, are not usually written with the
knowledge or expectation that each and every word may be
the subject of searching analysis. Acknowledging this fact,
this court held long ago that the "language of the court must
be read in the light of the facts before it." Julian Petroleum
Co. v. Courtney Petroleum Co., 22 F.2d 360, 362 (9th Cir.
1927); see also Marshall v. Andrew F. Mahony Co. , 56 F.2d
74, 78 (9th Cir. 1932) ("[T]he language of all cases must be
taken and understood in light of the facts of the case in which
the language was employed.").
With these concepts in mind, the parties' debate over
whether the language of Finding 76 is unambiguous is largely
misdirected, inasmuch as an analysis of the decision is neces-
sary, whether the text is unambiguous or not, in order to
understand Finding 76 "in light of the facts of the case." An
unambiguous text is certainly a factor to be considered in this
analysis, but it does not necessarily terminate the inquiry.
Our decision in Muckleshoot Tribe v. Lummi Indian Tribe,
141 F.3d 1355 (9th Cir. 1998), supports this proposition.
There, this court did not merely rely on what appeared to be
unambiguous language, the meaning of "Whidbey Island," in
15951
a previous judicial finding also authored by Judge Boldt.
Rather, the court went beyond the plain language and exam-
ined the evidence, concluding that the Swinomish Tribe "of-
fered no evidence that suggests that [the Finding of Fact] is
ambiguous or that the court intended something other than its
apparent meaning." Id. at 1358 (emphasis added).
[1] As the district court recognized in this case, the Tribes
have brought forth precisely such evidence. We agree with the
district court's conclusion:
[T]he evidence before Judge Boldt establishes, at a
minimum, that the Muckleshoot's predecessors may
have occassionally fished in the open waters of
Elliott Bay near the mouth of the Duwamish and
gathered shellfish on the shores of Elliott Bay. Based
on this evidence, the court concludes that Judge
Boldt intended to include those areas (Department of
Fisheries Area 10A) in the Muckleshoot U&A . . . .
The court finds, however, that there is [sic] no evi-
dence in the record before Judge Boldt, nor is it per-
suaded by extra-record evidence, that Judge Boldt
intended to describe a saltwater U&A any larger than
the open water and shores of Elliott Bay. The court
agrees with the Muckleshoot that Judge Boldt's use
of a broad term like "Puget Sound" is perplexing in
light of the geographic precision he generally used in
describing U&As. And it agrees that, as a resident of
the Puget Sound area, it is fair to assume that he
would not have used the terms "Elliott Bay" and
"Puget Sound" interchangeably. However, there is
no evidence in the record before Judge Boldt that
supports a [saltwater] U&A beyond Elliott Bay.
This conclusion is based on our analysis of the information
before Judge Boldt. The Muckleshoot's arguments to the con-
trary are unpersuasive.
15952
II. The Evidence Before Judge Boldt
A. Evidence Referenced by Judge Boldt
[2] As the district court recognized, the most relevant evi-
dence in determining what Judge Boldt intended by the phrase
"secondarily in the saltwater of Puget Sound" consists of the
four documents referenced in Finding 76. The first document,
the final pretrial order, uses language nearly identical to that
in Finding 76 and is, therefore, not very helpful.
The second document, Exhibit USA-20, p. 38, is a portion
of Dr. Lane's "Conclusions Based on Available Documents
and Ethnographic Data." This report, which describes the
fishing practices of the Muckleshoot's ancestors, who signed
the treaty Judge Boldt was interpreting, concludes that "[t]he
principle fisheries of the ancestors of the Muckleshoot both
prior to and during treaty times included Green River, White
River, Stuck River, Cedar River, and tributary creeks."
The third document, Exhibit USA-27b, pp. 7-16, provides
an extensive discussion of the fishing practices of the Muckle-
shoot's ancestors. The relevant portion of the discussion
states:
The traditional fisheries of the [ancestors of the]
Muckleshoot included but were not limited to Puyal-
lup and Carbon Rivers and tributary creeks; the
Stuck, White, Green and Cedar rivers and tributary
creeks; and Lake Washington. In addition there was
some trolling for salmon in salt waters when families
descended the rivers to get shell fish supplies on the
beaches of the Sound.
The last document listed in Finding 76 is Exhibit PL-23,
pp. 11-12, a portion of a report of Dr. Carroll Riley. The
report describes the area where the Muckleshoot's ancestors
lived and, like the other documents, concludes that the ances-
15953
tor tribes relied primarily on freshwater fishing:"[T]he Indi-
ans in this area obtained the greatest part of their subsistence
from fish caught in the White and Green Rivers . . .. They
occasionally made the trip down river to Elliott Bay on fish-
ing and clamming expeditions."
[3] These documents indicate that the Muckleshoot's
ancestors were almost entirely an upriver people who primar-
ily relied on freshwater fishing for their livelihoods. Insofar
as they conducted saltwater fishing, the referenced documents
contain no evidence indicating that such fishing occurred with
regularity anywhere beyond Elliott Bay.
[4] This conclusion is buttressed by other evidence before
Judge Boldt. The reports that Judge Boldt relied upon make
a general distinction between downriver predecessor tribes,
also referred to as saltwater tribes, and upriver tribes. The pre-
decessor tribes to the Muckleshoot were considered to be
upriver tribes. In an excerpt from the anthropological report
of Dr. Lane, the Muckleshoot's ancestors are described as
having "lived in treaty times in about twenty villages on the
Duwamish and upper Puyallup drainage systems." These
ancestors, according to Dr. Lane, were " `upriver' people in
contrast to those people living directly on the bays and lower
reaches of the river."
The Muckleshoot's ancestors may have occasionally con-
ducted saltwater fishing beyond Elliott Bay. But it is impor-
tant to remember that Judge Boldt was deciding the "usual
and accustomed" fishing grounds under the provisions of the
Treaties. Isolated or infrequent excursions beyond Elliott Bay
do not meet the "usual and accustomed" standard.2 The docu-
_________________________________________________________________
2 Explaining the scope of "usual and accustomed," Judge Boldt said:
Although there is no evidence of the precise understanding the
Indians had of the treaty language, the treaty commissioners
probably used the term [ ] `usual and accustomed' . . . in [its]
15954
ments listed in Finding 76 do not indicate the existence of
saltwater fishing beyond Elliott Bay that was more than "inci-
dental" or "occasional."
B. The Muckleshoot's Arguments
The Muckleshoot's argument that their ancestors conducted
saltwater fishing beyond Elliott Bay rests on four pieces of
evidence: (1) Dr. Lane's reports; (2) Dr. Carroll Riley's
report; (3) excerpts from a book by the anthropologist Marian
Smith; and (4) testimony of Puyallup tribal members given
before the Indian Claims Commission ("ICC") in the 1950s.
None of these establishes that the Muckleshoot's ancestors
had U&A fishing grounds beyond Elliott Bay.
1. Dr. Lane's Reports
a. Exhibit USA-27b
The Muckleshoot contend that Exhibit USA-27b is the key
document for the purpose of ascertaining the intended scope
of the phrase "secondarily in the saltwater of Puget Sound."
The Muckleshoot first argue that the report's statement that
_________________________________________________________________
common parlance, and the meaning of [it] as found in a contem-
poraneous dictionary most likely would be what was intended by
the government representatives. The 1828 and 1862 editions of
Webster's American Dictionary of the English Language define
the term as follows:
accustomed: Being familiar by use; habituated, inured . . .
usual; often practiced . . .
usual: Customary; common; frequent; such as occurs in ordi-
nary practice or in the ordinary course of events.
. . . The words `usual and accustomed' were probably used in
their restrictive sense, not intending to include areas where use
was occasional or incidental.
Washington, 384 F. Supp. at 356.
15955
"there was some trolling for salmon in salt water when fami-
lies descended the rivers to get the shell fish supplies on the
beaches of the sound" is regional in scope and broader than
Elliott Bay. Judge Boldt adapted the phrase "on the beaches
of Puget Sound," the Muckleshoot contend, to mean "in the
saltwater of Puget Sound" to conform with the description of
the trolling in Dr. Lane's report and to emphasize the inclu-
sion of waters in Puget Sound and not merely the beaches.
The Muckleshoot also argue that the phrase "the beaches of
Puget Sound" has a plain meaning which is broader than
Elliott Bay and that Dr. Lane did not mention Elliott Bay at
all in her description of the Muckleshoot's saltwater U&A.
Addressing the last point first, the lack of a discussion of
Elliott Bay in Dr. Lane's report works against the Muckle-
shoot's argument, not for it. Dr. Lane's report lists the saltwa-
ter U&As for those tribes that she believed engaged in
significant saltwater fishing. The only tribes for which there
is no mention of specific saltwater fisheries are three upriver
tribes, including the Muckleshoot. This feature of the report
suggests two conclusions -- (1) the phrase "on the beaches of
Puget Sound" was used because there was no established (i.e.
U&A) saltwater fishing location anywhere and (2) the omis-
sion of "Puget Sound" from Dr. Lane's findings in Exhibit
USA-20, which lists the principal fisheries of the Muckle-
shoot's ancestors, was not inadvertent or inconsequential.
Rather, it suggests that Puget Sound was not a principal salt-
water fishing ground.
More importantly, all references in Dr. Lane's report on
Muckleshoot saltwater fishing only pertain to saltwater fish-
eries in the Duwamish drainage system. The Duwamish emp-
ties only into Elliott Bay. Nowhere in Dr. Lane's report is
there a reference to the Muckleshoot's ancestors fishing on a
drainage system that empties anywhere outside Elliott Bay.
The only other reference to saltwater in Dr. Lane's report
is the statement, in Exhibit USA-27b and listed in Finding 76,
15956
"In addition, there was some trolling for salmon in salt water
when families descended upon the rivers to get shell fish sup-
plies on the beaches of the sound." This statement does not
establish that the Muckleshoot's ancestors had any saltwater
U&A outside Elliott Bay. The rivers that the families "de-
scended upon" are those referenced in the preceding sentence
-- the Puyallup, Carbon, Stuck, White, Green, and Cedar. At
the time of the treaty, the White, Green, and Cedar rivers
flowed into the then-existent Black River which became the
Duwamish River and emptied into Elliott Bay. This is consis-
tent with Dr. Lane's use of the term "Duwamish drainage sys-
tem" throughout her report. The "beaches of Puget Sound"
that the Muckleshoot's ancestors would reach after descend-
ing the White, Green, and Cedar rivers were the beaches of
Elliott Bay and those beaches alone.
Of the remaining rivers, the Stuck flowed south from the
White River and into the Puyallup and the Carbon River was
a tributary of the upper Puyallup. At treaty time, the lower
Puyallup was within the territory of the Puyallup Tribe and
the Muckleshoot's ancestors could not have descended all the
way down the Puyallup River without entering Puyallup terri-
tory. Because these fishing grounds "on the beaches of Puget
Sound" are within the exclusive territory of the present-day
Puyallup Reservation, the Muckleshoot cannot claim them as
part of their U&A territory.3 Thus the only referenced rivers
that are not part of the Duwamish drainage system cannot
yield the Muckleshoot saltwater U&A rights.4
_________________________________________________________________
3 "An exclusive right of fishing was reserved by the tribes within the
area and boundary waters of their reservations." Washington, 384 F. Supp.
at 332.
4 The Muckleshoot contend that it is relevant that the Puyallup Reserva-
tion did not exist before the treaties. This point is irrelevant to Judge
Boldt's determination that exclusive fishing rights exist on present-day
reservations.
15957
b. Seasonal Fishing
Dr. Lane's report, cited as Exhibit USA-27a, explains that
the villages of the Muckleshoot's ancestors "were only occu-
pied by the entire village group during the winter season. At
other times of the year, portions of the population de-camped
in different directions to secure food and other supplies."
Judge Boldt recognized this when he wrote, "[M]ost groups
claimed autumn fishing use rights in the waters near to their
winter villages. Spring and summer fishing areas were often
more distantly located and often were shared with other
groups from other villages." Washington, 384 F. Supp. at 353.
The facts before Judge Boldt show that the Muckleshoot's
ancestors did not regularly fish outside Elliott Bay, even dur-
ing the spring and summer fishing seasons.
First, the above statements contained in Exhibit USA-27b
were not specifically referenced in Finding 76, so their rele-
vance should not be overemphasized. More importantly, the
evidence cited by the Muckleshoot does not establish that any
seasonal saltwater fishing areas beyond Elliott Bay were used
by their ancestors with enough regularity to establish them as
U&A grounds. See also Washington, 384 F. Supp. at 351
(Finding 14) ("Marine waters were also used as thoroughfares
for travel by Indians who trolled en route. Such occasional
and incidental trolling was not considered to make the marine
waters traveled thereon the usual and accustomed fishing
grounds of the traveling Indians.") (internal exhibit references
omitted).
c. Specific Sites Listed in Dr. Lane's Report
The Muckleshoot claim that Appendix 2 to Dr. Lane's
report, which contains excerpts from T.T. Waterman's manu-
script describing field work done from 1917 through 1920,
contains information on sites beyond Elliott Bay where the
Muckleshoot's ancestors fished. But the excerpts in Appendix
2 can only be understood with reference to Waterman's find-
15958
ings in Appendix 1. In his listing of "Duwamish Villages on
the eastern side of the Sound," Waterman lumped together
both upriver and downriver (or saltwater) tribes. Dr. Lane,
however, made a distinction between the two groups, finding
that the downriver tribes were not ancestors of the Muckle-
shoot. Thus, it cannot be said that the sites listed in Appendix
2 were fishing grounds of the Muckleshoot's ancestors.
Moreover, Appendix 1 contains a list, selected by Dr. Lane
from Waterman's manuscripts, of place names used by treaty-
time bands, including the ancestors of tribes other than the
Muckleshoot. The list does not include any saltwater sites.
Finally, Appendix 1 contains a map of Muckleshoot fishing
cities. This map only includes sites on rivers; there are no salt-
water sites marked. Given this background, that Appendix 2
does not specifically identify the Muckleshoot ancestor sites,
and that the evidence contained in Appendix 2 is only briefly
mentioned in Dr. Lane's reports, the Muckleshoot have failed
to demonstrate that the evidence established treaty-time salt-
water U&As beyond Elliott Bay.
The Muckleshoot also claim that another appendix to Dr.
Lane's report, a statement by the anthropologist Marian Smith
that people from the upper Puyallup valley made "special
trips to the Sound in the neighborhood of what is now
Redondo Beach" to catch devil fish, supports their reading of
Finding 76. The excerpt states that the devil fish, i.e. octopi,
were not fished. Rather, "[t]hey were picked up while asleep
along the shore . . . ." Consequently, the excerpt does not
establish a basis for a saltwater U&A at Redondo Beach even
if the Muckleshoot's ancestors engaged in this form of collec-
tion.
2. Dr. Riley's Report (Exhibit PL-23)
Dr. Riley's report, which was cited in Finding 76, says that
the Muckleshoot's treaty-time ancestors "occasionally made
the trip down-river to Elliott Bay on fishing and clamming
15959
expeditions." The Muckleshoot argue that this statement
means that Judge Boldt implicitly rejected limiting the saltwa-
ter U&A to Elliott Bay and chose instead a much broader
area. If Judge Boldt had intended to define the U&A as Elliott
Bay, the Muckleshoot contend, then he could have done so
very simply and Dr. Riley's report would have provided the
evidentiary basis for such a finding.
The Muckleshoot are correct when they contend that Judge
Boldt specifically said that Dr. Lane's testimony prevails over
Dr. Riley's in the event of a conflict between the two. See
Washington, 384 F. Supp. at 350. Contrary to the Muckle-
shoot's assertion, however, there is no conflict between Dr.
Lane and Dr. Riley on this matter. As discussed above, Dr
Lane's reference to the "beaches of Puget Sound " does not
encompass, based on the evidence, an area beyond Elliott
Bay. Even if it did, it would be odd for Judge Boldt to have
included a contrary reference, the testimony of Dr. Riley, in
Finding 76 for the purpose of implicitly rejecting it.
3. ICC Testimony
The Muckleshoot point to the findings of fact made by the
ICC in 1966 in a case involving the Puyallup Tribe. The ICC
found that the testimony before it "tend[ed ] to show" that the
"islands in southern Puget Sound" were used jointly by a
number of treaty-time tribes, including the ancestors of the
Muckleshoot. The Muckleshoot maintain that this finding
supports a broad reading of "saltwater of Puget Sound" in
Judge Boldt's decision. This is incorrect.
In a post-trial substantive order, Judge Boldt said that an
ICC finding in a case involving land claims of the Nooksack
Tribe5 "in no way dealt with asserted Indian treaty fishing
rights." United States v. Washington, 459 F. Supp. 1020, 1042
_________________________________________________________________
5 The ICC finding relied upon by Muckleshoot also involves a dispute
related solely to land claims and not involving fishing.
15960
(W.D. Wash. 1978). The evidence in the ICC report is insuffi-
cient to support a broad reading of Dr. Lane's phrase "the
beaches of Puget Sound" or Finding 76's phrase "the saltwa-
ter of Puget Sound." Even assuming fishing did take place,
there is nothing in the ICC finding to indicate that it met the
requirements of "usual and accustomed."
4. Excerpts from Marian Smith's Book
The Muckleshoot argue that excerpts, introduced at the
underlying trial, from Marian Smith's book, The Puyallup-
Nisqually, also establish that the Muckleshoot's ancestors
lived and fished in Puget Sound beyond Elliott Bay. Accord-
ing to Smith, people from the village at the forks of the White
and Green rivers came to the area around present-day
Redondo Beach to gather shellfish. These Indians included
the treaty-time ancestors of the Muckleshoot. See Washing-
ton, 384 F. Supp. at 366 ("Indians from the Green and White
River areas . . . and some Indians from the upriver portions
of the Puyallup River . . . were removed and consolidated on
the Muckleshoot Reservation.")
This evidence is also insufficient to establish a saltwater
U&A beyond Elliott Bay. Smith's account does not establish
that the Muckleshoot's ancestors trolled the waters of
Redondo Beach. As discussed above, Smith's findings were
that these people collected devil fish on the "shores" of
Redondo Beach. This finding is not inconsistent with a deter-
mination by Judge Boldt that the Muckleshoot's ancestors did
not engage in U&A saltwater fishing beyond Elliott Bay.
Conclusion
The district court's grant of summary judgment is
AFFIRMED.
Appellant Muckleshoot Indian Tribe's Motion for Judicial
Notice of Maps and Intervenor-Plaintiffs/Petitioners-
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Appellees Puyallup Indian Tribe's, Suquamish Indian Tribe's
and Swinomish Indian Tribal Community's Motion to Strike
are denied as moot.
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