Skokomish Indian Tribe v. Jamestown S'klallam Tribe , 928 F.3d 783 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-35760
Plaintiff,
D.C. Nos.
and 2:17-sp-01-RSM
2:70-cv-09213-RSM
SKOKOMISH INDIAN TRIBE,
Petitioner-Appellant,
OPINION
v.
STATE OF WASHINGTON,
Defendant-Real Party in Interest,
JAMESTOWN S’KLALLAM TRIBE;
PORT GAMBLE S’KLALLAM
TRIBE; SQUAXIN ISLAND TRIBE,
Respondents-Appellees,
and
MUCKLESHOOT INDIAN TRIBE;
QUILEUTE INDIAN TRIBE; HOH
TRIBE; LUMMI TRIBE; QUINAULT
INDIAN NATION; NISQUALLY
INDIAN TRIBE; SUQUAMISH
INDIAN TRIBE; TULALIP TRIBES;
PUYALLUP TRIBE; UPPER SKAGIT
INDIAN TRIBE; SWINOMISH
INDIAN TRIBAL COMMUNITY,
Real-Parties-in-Interest.
2 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Argued and Submitted October 9, 2018
Seattle, Washington
Filed June 26, 2019
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and C. Ashley Royal, * District Judge.
Opinion by Judge Bea;
Concurrence by Judge Bea;
Partial Concurrence and Partial Dissent by Judge Paez
SUMMARY **
Tribal Matters / Fishing Rights
The panel affirmed the district court’s summary
judgment in favor of respondents concerning the Skokomish
Tribe’s claim that it had “usual and accustomed” (“U&A”)
fishing rights in the Satsop River pursuant to United States
v. State of Washington, 626 F. Supp. 1405 (1984), aff’d, 764
F.2d 670 (9th Cir. 1985) (“1984 Subproceeding”).
*
The Honorable C. Ashley Royal, United States District Judge for
the Middle District of Georgia, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 3
In United States v. Washington, 384 F. Supp. 312 (W.D.
Wash. 1974) (“Boldt Decision”), aff’d and remanded, 520
F.2d 676 (9th Cir. 1975), Judge Boldt issued a permanent
injunction, which granted tribal fishing rights. It outlined the
geography of the U&A locations of all the signatory tribes.
The Boldt Decision set forth rules under which parties could
invoke the court’s continuing jurisdiction in future disputes.
The panel held that the Skokomish Tribe failed to abide
by the Boldt Decision’s pre-filing requirements, which
mandate that parties attempt to resolve their disputes at a
meet and confer before initiating a request for determination.
In particular, the Skokomish Tribe failed to discuss the
“basis for the relief sought” under Paragraph 25(b)(1)(A)
and “whether earlier rulings of the court may have addressed
or resolved the matter in issue” under Paragraph 25(b)(1)(F).
The panel held that a failure to abide by the pre-filing
requirements articulated in Paragraph 25(b) was a failure to
invoke the jurisdiction of this court, and the panel lacked the
ability to proceed to the merits.
The panel noted that if the Skokomish Tribe were to
properly invoke the continuing jurisdiction of the Boldt
Decision, their claims would be met with skepticism. The
panel indicated that the Skokomish Tribe attempted an end-
run around Judge Boldt’s unambiguous determination of its
U&A by arguing that the 1984 Subproceeding, dealing
solely with primary fishing rights, somehow amended its
U&A to include the Satsop River. The panel further noted
that the 1984 Subproceeding had nothing to do with the
boundaries of the Skokomish Tribe’s U&A.
Judge Bea concurred, and indicated that this court should
reevaluate whether Judge Boldt’s injunction has met its
4 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
objectives, and whether the district court retains continuing
jurisdiction.
Judge Paez concurred in part and agreed that the
Skokomish Tribe’s claim over the Satsop River was not
supported by the 1984 Subproceeding’s holding in United
States v. State of Washington, 626 F. Supp. 1405 (W.D.
Wash. 1984), aff’d, 764 F.2d 670 (9th Cir. 1985). Judge
Paez dissented in part and disagreed with the majority’s
conclusion that the court could not reach the merits of the
Skokomish Tribe’s claim because of its failure to comply
with the pre-filing requirements. Judge Paez would hold that
the district court had jurisdiction, and deny the Skokomish
Tribe’s claims on the merits.
COUNSEL
Earle David Lees (argued), Shelton, Washington, for
Petitioner-Appellant.
David Babcock (argued), Kevin Lyon, and Sharon Haensly,
Shelton, Washington, for Respondent-Appellee Squaxin
Island Tribe.
Lauren Patricia Rasmussen (argued), Law Offices of Lauren
P. Rasmussen, Seattle, Washington, for Respondents-
Appellees Jamestown S’Klallam Tribe and Port Gamble
S’Klallam Tribe.
Joseph V. Panesko, Senior Counsel; Robert W. Ferguson,
Attorney General; Office of the Attorney General, Olympia,
Washington; for Real Party in Interest State of Washington.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 5
OPINION
BEA, Circuit Judge:
We have called it an “ongoing saga,” Makah Indian
Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir.
2017); remarked that “[w]e cannot think of a more
comprehensive and complex case than this,” Upper Skagit
Indian Tribe v. Washington, 590 F.3d 1020, 1022 (9th Cir.
2010) (citation omitted); and “puzzled” over why this
“Jarndyce and Jarndyce” of an equitable decree “remains in
force at all,” United States v. Washington, 573 F.3d 701, 709
(9th Cir. 2009) (quoting Charles Dickens, Bleak House 3
(1853)). And yet, here we are. Forty-five years after Judge
Boldt issued an injunction in United States v. Washington,
384 F. Supp. 312 (W.D. Wash. 1974) (“Boldt Decision”),
aff’d and remanded, 520 F.2d 676 (9th Cir. 1975), it remains
in effect. This case arises under it.
The Skokomish Tribe claim that it has “usual and
accustomed” fishing rights in the Satsop River because of
this court’s decision in United States v. State of Washington,
626 F. Supp. 1405, 1487 (1984), aff’d, 764 F.2d 670 (9th Cir.
1985) (“1984 Subproceeding”). As it happens, that decision
concerned which tribe had primary fishing rights within an
already-recognized “usual and accustomed” (U&A)
territory; it did not concern the boundaries of the
Skokomish’s usual and accustomed fishing rights at all.
The Squaxin Island Tribe, the Jamestown S’Klallam
Tribe, the Port Gamble S’Klallam Tribe, and the state of
Washington dispute the Skokomish’s Satsop River claim.
On cross-motions for summary judgment, the District Court
for the Western District of Washington sided against the
Skokomish and granted the respondents’ motion for
6 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
summary judgment. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I. Historical Background
Between 1854 and 1856, Isaac Stevens, then Governor
of Washington Territory, executed eleven nearly identical
treaties with Indian tribes in an area that would eventually
become part of the state of Washington. Washington v.
Washington State Commercial Passenger Fishing Vessel
Ass’n, 443 U.S. 658, 666 (1979). Under the Stevens Treaties,
tribes ceded approximately sixty-four million acres of land
to the United States. Vincent Mulier, Recognizing the Full
Scope of the Right to Take Fish Under the Stevens Treaties:
The History of Fishing Rights Litigation in the Pacific
Northwest, 31 Am. Indian L. Rev. 41 (2007). As
consideration for such cession, the tribes secured small
reservations for themselves and the right to take fish “in
common with” non-Native Americans at “usual and
accustomed” off-reservation locations. See, e.g., Treaty with
the S’Klallam, 1855, 12 Stat. 933.
The Skokomish Tribe—along with the Jamestown
S’Klallam, Lower Elwha, and Port Gamble S’Klallam
tribes—signed the Treaty of Point No Point with Governor
Stevens in 1855. Id. 1 The Skokomish Tribe is primarily
1
The Treaty of Point No Point described the area reserved for the
tribes as:
Commencing at the mouth of the Okeho River, on the
Straits of Fuca; thence southeastwardly along the
westerly line of territory claimed by the Makah tribe
of Indians to the summit of the Cascade Range; thence
still southeastwardly and southerly along said summit
to the head of the west branch of the Satsop River,
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 7
comprised of descendants of the Twana Tribe who, prior to
treaty times, controlled the territory encompassed by the
Hood Canal and its associated waterways. As with all of the
Stevens Treaties, the Treaty of Point No Point stated that
“[t]he right of taking fish at usual and accustomed grounds
and stations is further secured to said Indians, in common
with all citizens of the United States. . . .” Id.Unfortunately, “[t]he rapid white settlement in the
Pacific Northwest” after the signing of the Stevens Treaties
immediately interfered with “Indian attempts to fish at off-
reservation sites.” Donald L. Parman, Inconstant Advocacy:
The Erosion of Indian Fishing Rights in the Pacific
Northwest, 53 Pacific Hist. Rev. 163, 166 (1984). In the
century that followed, the state of Washington enacted
legislation and enforced fishing regulations in a manner
detrimental to the tribes’ fishing rights. See, e.g., Wash. Sess.
Laws Ch. 247, Sec. 2 (1907); Init. Measure No. 77, State of
Wash. Voting Pamphlet 5 (Nov. 6, 1934). As a result, the
Indians’ share of the overall catch in off-reservation sites
plummeted. By 1958, for instance, Indian fishing accounted
for 6% of the total salmon catch in the Puget Sound, while
sports fishing accounted for 8.5% and commercial fishing
accounted for 85.5%. United States v. Washington, 853 F.3d
946, 957 (9th Cir. 2017).
Tensions between the tribes and the state of Washington
intensified in the 1960s. Emboldened by the civil rights
movement, more than fifty tribes organized a series of “fish-
down that branch to the main fork; thence eastwardly
and following the line of lands heretofore ceded to the
United States by the Nisqually and other tribes and
bands of Indians, to the summit of the Black Hills, and
northeastwardly to the portage known as Wilkes’
Portage . . . .
8 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
ins” in 1964. Bradley G. Shreve, From Time Immemorial:
The Fish-In Movement and the Rise of Intertribal Activism,
78 Pacific Hist. Rev. 403, 415 (2009). The “fish-ins”—
which made national news when the actor Marlon Brando
was arrested for fishing with a drift net in the Puyallup
River—were accompanied by a march on the state capital
and a series of protests. Hunter S. Thompson, Marlon
Brando and the Indian Fish-In, National Observer, March 9,
1964. The tribes sought to enforce the Stevens Treaties
guarantee of their “right of taking fish” in their “usually and
accustomed grounds.” 2 The state of Washington argued that
its fishing regulations were a proper exercise of its police
power.
The federal government filed suit on behalf of the tribes
in 1970, and the ensuing litigation culminated in the Boldt
Decision. Issued after nearly four years of litigation, the
Boldt Decision held that the language “in common with”
granted the tribes fifty percent of the harvestable number of
fish in their “usual and accustomed” fishing grounds. Boldt
Decision, 343. 3 It defined “usual and accustomed” as “every
fishing location where members of a tribe customarily fished
from time to time at and before treaty times . . . .” Id. at 332.
Then, relying on considerable historical and anthropological
evidence, it outlined the geography of the usual and
2
As one Indian leader said, “[W]e already have the law on our side
in the form of treaties[;] all we ask the white man to do is live up to those
treaties.” Id.
3
This portion of the decision was later upheld by the Supreme Court
in Washington v. Washington State Commercial Passenger Fishing
Vessel Ass’n, 443 U.S. 658, 686, modified sub nom. Washington v.
United States, 444 U.S. 816 (1979).
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 9
accustomed (U&A) locations of all the signatory tribes. Id.at 332–33.
The U&A of the Skokomish Tribe was announced in six
paragraphs of the Boldt Decision that detailed the lineage,
history, and customs of the tribe. Id. at 376–77. The court
described the geographic boundaries of the Skokomish U&A
as follows:
“The usual and accustomed fishing places of
the Skokomish Indians before, during and
after treaty times included all the waterways
draining into Hood Canal and the Canal
itself.”
Id. at 377. The Skokomish admit there was no ambiguity in
Judge Boldt’s determination.
Relevant here, Judge Boldt also issued a permanent
injunction, articulating rules under which parties could
invoke the court’s continuing jurisdiction in future disputes.
Id. at 419. Under Paragraph 25(a), later modified by an
August 23, 1993 Order (Case No. 70-9213, Dkt. # 13599),
parties are authorized to invoke the continuing jurisdiction
of the court to determine:
(1) Whether or not the actions intended or
effected by any party (including the party
seeking a determination) are in conformity
with [the Boldt Decision];
(2) Whether a proposed state regulation is
reasonable and necessary for conservation;
(3) Whether a tribe is entitled to exercise
powers of self-regulation;
10 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
(4) Disputes concerning the subject matter of
this case which the parties have been unable
to resolve among themselves;
(5) Claims to returns of seized or damaged
fishing gear or its value, as provided for in
this injunction;
(6) The location of any of a tribe’s usual and
accustomed fishing grounds not specifically
determined by [the Boldt Decision]; and
(7) Such other matters as the court may deem
appropriate.
Id. at 1–2. The Boldt Decision also lays out mandatory pre-
filing requirements before initiating a subproceeding:
b) To invoke this court’s continuing
jurisdiction, the party seeking relief shall
initiate a subproceeding in this action by
filing a request for determination.
Subproceedings will be conducted in
accordance with the following procedures:
(1) Before a request for determination
is filed (except for an emergency
matter, addressed below), the party
seeking relief (“requesting party”)
shall meet and confer with all parties
that may be directly affected by the
request (“affected party”) and attempt
to negotiate a settlement of the matter
in issue.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 11
. . . In addition to other matters the
parties may wish to address, the
parties shall discuss at the meeting
(A) the basis for the relief sought by
the requesting party; . . . (F) whether
earlier rulings of the court may have
addressed or resolved the matter in
issue in whole or in part[.]
Id. at 3–4. In other words, before filing a request for
determination (RFD) under the Boldt Decision, the party
seeking to invoke the court’s continuing jurisdiction must
first disclose the “basis for [their] relief” in a “meet and
confer” with all affected parties. Id.
II. Procedural History
a. 1984 Subproceeding
On June 17, 1981, the Skokomish filed an RFD to
establish that its “fishing rights in [the] Hood Canal are
primary to the rights of any other tribe.” It argued that it had
primary rights to the Hood Canal at the time the Treaty of
Point No Point was signed, and that historically, other tribes
fished near the Hood Canal subject to Skokomish approval.
Its RFD was opposed by the Port Gamble Klallam Band, the
Makah Tribe, the Tulalip Tribe, and the Suquamish Tribe. 4
4
On March 8, 1983, the court approved a settlement agreement
between the Skokomish and the Port Gamble Band of Klallam, Lower
Elwha Band of Klallam, and Jamestown Band of Klallam. United States
v. State of Wash., 626 F. Supp. 1405, 1468–69 (W.D. Wash. 1983). This
agreement (the “Hood Canal Agreement”) recognized the Skokomish’s
primary rights to the Hood Canal, but allowed the other signatories to
12 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
The district court referred the RFD to a special master.
The district court’s first order mistakenly ordered the special
master to determine the boundaries of the Skokomish U&A,
but that order was amended by the court. The amended order
(“Amended Order”) clarified that “the request of the tribe
was for determination of the primary right of [the]
Skokomish Indian Tribe in Hood Canal Fishery.” In other
words, the 1984 Subproceeding determined only which tribe
had primary rights in the Hood Canal; it did not disturb the
boundaries of Judge Boldt’s prior U&A determination.
The special master submitted a report and
recommendation with findings of fact, which the district
court adopted in full. 1984 Subproceeding, 1487 n.63. The
findings of fact were primarily based on: 1) information
collected by Dr. Elmendorf between 1935 and 1955, “widely
regarded to be the best ethnography of a case-area tribe”;
2) the work of Dr. T.T. Waterman, an anthropologist who
compiled an “extensive list and map of sites used by Indians”
around 1920; and 3) the journal of George Gibbs, a lawyer,
ethnographer, and secretary to the 1855 Treaty Commission.
Id. at 1487–91. The district court adopted ten findings of fact
in total. Id.Finding of fact #353 excerpted a passage from the 1854–
55 journal of George Gibbs (“Gibbs Journal”). Id. at 1489.
In this entry, Gibbs described Skokomish territory as:
extend[ing] from Wilkes’ Portage northwest
across to the arm of Hood Canal up to the old
limits of the Tchimakum, thence westerly to
the summit of the Coast Range, thence
use the canal under certain conditions. Id. at 1468. The Suquamish did
not sign the agreement and continued to oppose the RFD in district court.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 13
southerly to the head of the west branch of the
Satsop, down that branch to the main fork,
thence east to the summit of the Black Hills,
thence north and east to the place of
beginning.
Id. (emphasis added). The court found this “to be the best
available evidence of the treaty-time location of Twana
[Skokomish] territory.” Id.The court found that taken together, evidence from
Elmendorf, Waterman, and the Gibbs Journal supported its
conclusion that the Skokomish held primary fishing rights
within its U&A. Id. at 1491. When describing the geographic
borders of the territory, the court continually and exclusively
referred to finding of fact #354, which stated:
The court agrees, and upon consideration of
all the relevant evidence in this matter, finds
that the treaty-time territory of the Twana
Indians encompassed all of the waters of
Hood Canal, the rivers and streams draining
into it, and the Hood Canal drainage basin
south of a line extending from Termination
Point on the west shore of Hood Canal
directly to the east shore. . . .
Id. at 1489–90.
That geographic description contained no reference to
the Satsop River.
b. Current Subproceeding
On November 4, 2015, the Skokomish invited all
“directly affected” parties to a meet and confer at the Lucky
14 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
Dog Casino in Skokomish, Washington. The invitation
acknowledged that Judge Boldt had previously determined
that the Skokomish U&A included the Hood Canal and said
nothing about the 1984 Subproceeding. The invitation
announced the intent of the Skokomish to invoke the court’s
jurisdiction under ¶ 25(a)(6) and ¶ 25(a)(7) to (1) determine
that the Skokomish U&A “also includes the entire Satsop
Fishery, which was not specifically determined by [the Boldt
Decision];” and (2) determine that the Skokomish “holds the
primary right to take fish on the entire Satsop Fishery.”
At the meet and confer, the Skokomish presented a report
entitled “Some Anthropological Observations on Data
[P]ertaining to the Relationship Between the Satsop and the
Skokomish Indian Tribes” (“Thompson Report”). No
settlement was reached, and the parties were unable to
resolve their differences through mediation.
On March 9, 2017, the Skokomish distributed a
memorandum to the other tribes indicating its intent to begin
fishing in the Satsop River. The memorandum referred to the
1984 Decision as the “legal basis” of its position that the
Satsop River was “within Skokomish (or Twana) Territory.”
According to the other tribes, this was the first time the
Skokomish referenced the 1984 Subproceeding as the basis
of its claim, having referenced only the Thompson Report at
the meet and confer.
On April 28, 2017, the Skokomish filed an RFD in
district court. Its filing stated that it had satisfied all pre-
filing requirements, and asserted that the district court had
jurisdiction “pursuant to Paragraphs 25(a)(1)–25(a)(7)” of
the Boldt Decision. It asked the court to “confirm[]” its
primary right to take fish within the “Satsop River and its
tributary forks.” According to the Skokomish, the 1984
Subproceeding had awarded it the primary right to fish in the
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 15
Satsop River because it had “fully adopt[ed]” the Gibbs
Journal, which made reference to the Satsop. The Hood
Canal, therefore, was “just one small part of the whole.”
The Squaxin Island Tribe, the Jamestown S’Klallam
Tribe, the Port Gamble S’Klallam Tribe, and the state of
Washington opposed the Skokomish. Both sides moved for
summary judgment. The respondents argued that 1) the
Skokomish failed to follow the pre-filing requirements under
¶ 25(b); 2) the Skokomish RFD was procedurally improper
because it failed to establish jurisdiction under ¶ 25(a); 3) the
RFD was invalid because it violated the Hood Canal
Agreement; and 4) the court had “previously determined,
unambiguously, that the Skokomish U&A is the Hood Canal
and its drainage basin, and therefore it is not entitled to any
ruling that it has primary fishing rights outside of that
established U&A.”
The District Court granted the respondents motion for
summary judgment and denied the Skokomish’s motion for
summary judgment. First, the court held that the Skokomish
had failed to comply with the pre-filing requirements in
¶ 25(b). The court observed that the RFD was “clearly
different than what was actually discussed at the meet and
confer,” defeating “the purpose of any meaningful attempt
to resolve the issue” out of court. See infra, 17–19.
Next, the court considered whether the Skokomish had
failed to invoke the jurisdiction of the court under ¶ 25(a).
The court found that it had “fail[ed] to do so” by “mak[ing]
no effort to identify which” subparagraph provided
jurisdiction. For the sake of argument, however, the court
assumed that the Skokomish had asserted either ¶ 25(a)(1)—
whether the actions of either party are “in conformity with
the Boldt Decision”—or ¶ 25(a)(6)—the “location of any
16 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
tribe’s U&A not specifically determined in the Boldt
Decision.”
As to the Skokomish’s substantive claims, the court did
not agree that the 1984 Subproceeding had granted the
Skokomish U&A rights to the Satsop River. 5 According to
the court, this claim was based on a “blatant[]
misrepresent[ation] [of] the record in the 1984
[S]ubproceeding.” As the Amended Order said, the
Skokomish had sought only a “determination of [its] primary
right . . . in Hood Canal Fishery,” not an expansion of its
U&A. In other words, the 1984 Decision could not have
awarded the Skokomish U&A rights in the Satsop River
because that “subproceeding simply did not adjudicate the
scope of [the] Skokomish U&A.”
III. Discussion
We review the district court’s grant of summary
judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197
(9th Cir. 1996). We must determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
genuine issues of material fact exist and whether the district
court correctly applied the relevant substantive law.
Goodman v. Staples the Office Superstore, LLC, 644 F.3d
817, 822 (9th Cir. 2011).
5
The district court found that the Skokomish’s failure on the merits
was itself a failure to invoke the court’s jurisdiction under ¶ 25(a).
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 17
a. Paragraph 25(a) of the Boldt Decision
The Boldt Decision requires parties to invoke the court’s
continuing jurisdiction under the subsections listed in
¶ 25(a). The Skokomish failed to do so.
After suggesting that it sought to invoke the court’s
jurisdiction subject to ¶ 25(a)(6) and ¶ 25(a)(7) at the meet
and confer, the Skokomish’s RFD asserted jurisdiction
pursuant to every subsection in ¶ 25(a): “¶ 25(a)(1)—
25(a)(7)”. In its brief to the district court, the Skokomish
defended its lack of specificity by arguing that the parties
could not agree “on the applicability of any one subsection.”
Now, it claims that it needs “flexibility to respond to attacks
being brought by multiple parties on differing grounds.”
The potential defenses raised by the respondents,
however, have no bearing on the Skokomish’s required
jurisdictional statement. As the district court pointed out,
“[i]t is Skokomish’s burden, as the filing party, to identify
the basis for jurisdiction.” See also McNutt v. Gen. Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 182 (1936) (“It
is incumbent upon the plaintiff properly to allege the
jurisdictional facts”). The Skokomish’s jurisdictional
statement was equivalent to a plaintiff asserting federal
jurisdiction by claiming that either diversity jurisdiction,
subject matter jurisdiction, or supplemental jurisdiction has
been met. Such general, catch-all statements are not enough;
some degree of further specificity is required.
b. The Boldt Decision’s Pre-Filing Requirements
The Boldt Decision mandates that parties must attempt
to resolve their disputes with opposing parties at a meet and
confer before initiating an RFD. In particular, parties are
required to discuss “the basis for the relief sought” under
18 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
¶ 25(b)(1)(A), and “whether earlier rulings of the court may
have addressed or resolved the matter in issue” under
¶ 25(b)(1)(F). The Skokomish did not abide by this
provision.
The problem is this: the Skokomish’s claim before this
court—that the 1984 Subproceeding recognized its U&A
rights in the Satsop River because it referenced the Gibbs
Journal—was never disclosed at the meet and confer
meeting at the Lucky Dog Casino. Instead, the invitation to
the meet and confer stated that the U&A in the Satsop
Fishery “was not specifically determined by [the Boldt
Decision],” an admission that the Skokomish’s claim had not
been recognized previously, and an admission directly
contrary to the Skokomish’s purported claims under
¶ 25(a)(1). In fact, the invitation never mentioned the 1984
Subproceeding or the Gibbs Journal at all; nor did it
reference ¶ 26(a)(1), which provides jurisdiction to disputes
over previously adjudicated matters. No reference to the
1984 Subproceeding appears in the record until the
Skokomish’s memorandum on March 9, 2017, sent
immediately before the Skokomish filed its RFD. Only then
did the parties learn of the claim the Skokomish raise here.
The Skokomish counter by pointing out that they
discussed the Thompson Report at the meet and confer,
which no party disputes. But while the Thompson Report
contains a buried reference to the Gibbs Journal, it falls well
short of articulating the basis of the Skokomish’s current
claim. If anything, the information presented at the meet and
confer suggested that the Skokomish planned to argue that
the historical evidence in the Thompson Report supported
the establishment of a new U&A. Now, the Skokomish argue
the opposite: that its rights had already been recognized in
the 1984 Subproceeding.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 19
Moreover, the Skokomish were also bound by
¶ 25(b)(1)(F), which required it to disclose whether its claim
rested on “earlier rulings of the court [that] may have
addressed or resolved the matter.” To rely entirely on an
“earlier ruling of the court” without having discussed it at
the meet and confer meeting is a plain violation of the Boldt
Decision’s pre-filing requirements. The district court was
correct to so conclude.
c. U&A in the Satsop River, and the Continuing
Jurisdiction of the Boldt Decision.
A failure to abide by the pre-filing requirements
articulated in ¶ 25(b) is a failure to invoke the jurisdiction of
this court. Thus, while it would be more efficient for us to do
so, we lack the ability to proceed to the merits. 6 Should the
Skokomish (properly) invoke the continuing jurisdiction of
6
To be sure, as the partial concurrence points out, the Boldt
Decision’s pre-filing requirements are court-created rules, not
jurisdictional barriers. See Hamer v. Neighborhood Hous. Servs. of
Chicago, 138 S. Ct. 13, 20 (2017). But that makes no difference here.
Since Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.
1998) (Muckleshoot I) was decided, the Supreme Court has clarified that
even non-jurisdictional requirements “assure relief to [the] party
properly raising them.” Eberhart v. United States, 546 U.S. 12, 19
(2005). Several parties properly objected in this case, and only one
(arguably) waived its objection at oral argument. Therefore, we may not
reach the merits.
Furthermore, the district court reached the Skokomish’s substantive
claims by labeling them as “jurisdictional”—a semantic difference,
perhaps, but a semantic difference with which we disagree. Thus, if we
were to reach those claims, we would have to sua sponte overlook the
pre-filing deficiencies, rebrand the district court’s “jurisdictional”
holding as a ruling on the merits, and then affirm that judgment, too.
Judicial efficiency is an admirable goal, but that is a bit too much
maneuvering to reach the merits.
20 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
the Boldt Decision and file this suit again, however, we note
our deep skepticism of its claims.
At bottom, the Skokomish attempt an end-run around
Judge Boldt’s unambiguous determination of its U&A by
arguing that the 1984 Subproceeding, dealing solely with
primary fishing rights, somehow amended its U&A to
include the Satsop River. Nothing could be further from the
truth. The 1984 Subproceeding had nothing to do with the
boundaries of the Skokomish’s U&A. Amended Order, see
supra 12. It had to do exclusively with the Skokomish’s
primary rights in the Hood Canal, already recognized as
within the U&A of the Skokomish. And even if it did, the
1984 Subproceeding’s holding made no mention of the
Satsop River:
The court agrees, and upon consideration of
all the relevant evidence in this matter, finds
that the treaty-time territory of the Twana
Indians encompassed all of the waters of
Hood Canal, the rivers and streams draining
into it, and the Hood Canal drainage basin
south of a line extending from Termination
Point on the west shore of Hood Canal
directly to the east shore. . . .
1984 Subproceeding, 1489–90. Turning the Gibbs Journal’s
passing reference to the Satsop River into the “express[]
determination” of this court—as the Skokomish ask us to
do—is several bridges too far. We doubt a future court
would conclude otherwise.
AFFIRMED.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 21
BEA, Circuit Judge, concurring:
In the proceedings below, the district court opined that
“[b]ringing disputes such as the instant one . . . bolsters the
idea that perhaps the sun has set on Judge Boldt’s injunction
and this Court’s continuing jurisdiction.” Our colleagues on
this circuit have expressed that sentiment before,
Washington, 573 F.3d at 709, and I echo it here.
“If a durable remedy has been implemented, continued
enforcement of the order is not only unnecessary, but
improper.” Horne v. Flores, 557 U.S. 433, 450 (2009). Judge
Boldt found a permanent injunction necessary to protect “the
anadromous fish resource, the rights of the Indian tribes,”
and to ensure “the lawful exercise of state police power.”
Boldt Decision, 413.
1 Forty-five years later, there is ample reason to believe
that these goals have been achieved. Off-reservation
fishing is effectively managed, Wash. Dep’t of Fish
& Wildlife, 2018–19 Co-Managers’ List of Agreed
Fisheries, https://wdfw.wa.gov/sites/default/files/2019-
03/2018-19agreement.pdf (Apr. 13, 2018), enforcement of
treaty rights is no longer an issue, and the Washington
Supreme Court is no longer an unfriendly place for tribal
litigants, Washington State Dep’t of Licensing v. Cougar
Den, Inc., 139 S. Ct. 1000 (2019). So, then, why are we here?
Elsewhere, tribes adjudicate their fishing rights in state
and federal court without special jurisdictional or pre-filing
requirements. See, e.g., State v. Tinno, 497 P.2d 1386 (Idaho
1
Anadromous fish are fish who “ascend[] rivers from the sea at
certain seasons for breeding,” such as salmon. Anadromous, Merriam-
Webster’s Dictionary (3rd ed. 1961).
22 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
1972); State v. Watters, Jr., 156 P.3d 145 (Or. 2007). Those
adjudications, moreover, involve straightforward
interpretations of treaty language rather than an inquiry into
“what Judge Boldt meant in precise geographic terms by his
use of [certain] phrase[s].” Muckleshoot I, 141 F.3d at 1359.
I do not doubt that litigation would continue in the absence
of the Boldt Decision’s continuing jurisdiction. But such
litigation would at least treat the tribes for what they are:
“separate sovereigns” who have signed treaties with the
United States, Santa Clara Pueblo v. Martinez, 436 U.S. 49,
56 (1978), and who can vindicate their rights without an
“extraordinary” judicial decree, R.R. Comm'n of Tex. v.
Pullman Co., 312 U.S. 496, 500 (1941).
Of course, we need not decide whether Judge Boldt’s
decree should be altered because no party has asked us to.
Here, we merely affirm the district court’s summary
judgment order on the ground that the Skokomish failed to
comply with the Boldt Decision’s pre-filing jurisdictional
requirements. But we should reevaluate Judge Boldt’s
equitable decree soon. The “ultimate objective” of the Boldt
Decision was to “finally settle . . . as many as possible of the
divisive problems of treaty right fishing” that pitted “state,
commercial and sport fishing officials and non-Indian
fishermen on one side and tribal representatives and
members on the other side.” Boldt Decision, 329–30. At
some point, this court should consider whether that objective
has been met.
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 23
PAEZ, Circuit Judge, concurring in part and dissenting in
part:
I agree with my colleagues that the Skokomish’s claim
over the Satsop River is not supported by the 1984
Subproceeding’s holding in United States v. State of Wash.,
626 F. Supp. 1405 (W.D. Wash. 1984), aff’d, 764 F.2d 670(9th Cir. 1985). I disagree, however, with the majority’s
conclusion that we may not reach the merits of the
Skokomish’s claim because of its failure to comply with the
pre-filing requirements.
The majority concedes that the Boldt Decision’s pre-
filing requirements are not jurisdictional barriers per se, but
attempts to recast them as mandatory claim-processing rules
that preclude our review. In doing so, the majority overlooks
the fact that mandatory claim-processing rules “may be
waived or forfeited.” Hamer v. Neighborhood Hous. Servs.
of Chicago, 138 S. Ct. 13, 17 (2017). Defendants did
precisely that. See Oral argument at 27:53–28:35, United
States v. Jamestown S’Klallam Tribe, No. 17-35760 (9th Cir.
Oct. 9, 2018), https://www.ca9.uscourts.gov/media/view_vi
deo.php?pk_vid=0000014318. It is in fact the majority’s
opinion that involves quite a lot of maneuvering, asserting it
has jurisdiction but may not reach the merits, and yet still
commenting on the merits of the Skokomish’s claim. I
would clearly hold that the district court had jurisdiction and
deny the Skokomish’s claim on the merits.
Jurisdiction is “the courts’ statutory or constitutional
power to adjudicate the case.” Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 89 (1998); see also
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). As the
majority describes at length, the Boldt Decision was the
result of lengthy and complex litigation over the fishing
rights of tribes in the state of Washington. United States v.
24 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d,
520 F.2d 676 (9th Cir. 1975) (“Boldt Decision”). The
district court had jurisdiction over the original proceeding
under 28 U.S.C. §§ 1345 (cases involving the United States
as a party), 1331 (cases with a federal question), 1343 (cases
involving civil rights), and 1362 (cases brought by any
Indian tribe). Id. at 328. At least one of these provisions
would provide for district court jurisdiction over—in other
words, power to hear—the Skokomish’s claim if filed as an
entirely new action and not a subproceeding under the Boldt
Decision.
The majority rejects the Skokomish’s attempt to invoke
the court’s continuing jurisdiction under Paragraph 25 of the
Boldt Decision, id. at 419, based on its failure to comply with
pre-filing requirements. This holding, however, overlooks
the fact that the district court nevertheless did exercise its
continuing jurisdiction over the Skokomish’s claim and
denied it on the merits. Compliance with the Boldt
Decision’s Paragraph 25 procedural prerequisites are
obligatory, but they are not a “jurisdictional” restriction on
the district court’s constitutional and statutory power to
adjudicate the claim.
In fact, this would not be the first time that the district
court waived strict compliance with Paragraph 25 pre-filing
procedures. In Muckleshoot Tribe v. Lummi Indian Tribe,
one of the tribal parties argued that the district court erred in
entertaining a summary judgment motion because the
moving tribe failed to initiate a separate subproceeding as
provided in Paragraph 25. 141 F.3d 1355, 1357 (9th Cir.
1998). The district court agreed that the Muckleshoot failed
to follow the pre-filing procedures under Paragraph 25, but
nevertheless waived the technical compliance with
Paragraph 25 since both tribes had notice of the issues for
SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE 25
several years. Id. at 1358. On appeal, we affirmed the
district court’s decision. Id. Critically, we described the
district court’s decision as one “regarding the management
of litigation,” which is reviewed for abuse of discretion. Id.(citing O’Neill v. United States, 50 F.3d 677, 687 (9th Cir.
1995)). We found “no abuse of discretion in the district
court’s decision to entertain [the] Muckleshoot’s motion
without requiring initiation of a new, separate subproceeding
with all the attendant cost and delay.” Id. (emphasis added).
Similarly, the district court’s resolution of the
Skokomish’s claim involved management of the litigation.
The court could have dismissed the Skokomish’s petition for
failure to follow Paragraph 25 pre-filing procedures. Yet,
the court—sensibly—decided to move onto the merits to
conserve time and resources, and dispose of the
Skokomish’s claim rather than forcing the parties to repeat
the pre-filing process. “Wise judicial administration, giving
regard to conservation of judicial resources and
comprehensive disposition of litigation, does not counsel
rigid mechanical solution of such problems.” O’Neill,
50 F.3d at 687 (citing Kerotest Mfg. Co. v. C-O-Two Fire
Equip. Co., 342 U.S. 180, 183–84 (1952)); see also Arbaugh,
546 U.S. at 515. Under the majority’s approach, the district
court and the parties would now be forced to undergo
duplicative litigation. In the interest of judicial economy and
giving due deference to the district court’s decision to rule
on the merits, I would hold that the district court did not
abuse its discretion in exercising jurisdiction over the
Skokomish’s claim and affirm its summary judgment ruling.
Lastly, I cannot join Judge Bea’s separate concurrence
because he provides no substantive basis in the record or
elsewhere for his suggestion that the ultimate objective of
the Boldt Decision has been met. Moreover, these
26 SKOKOMISH TRIBE V. JAMESTOWN S’KLALLAM TRIBE
comments exceed the scope of our review. To my
knowledge, no party has requested the district court to
modify or terminate its continuing jurisdiction. We should
refrain from commenting on the relevance of and necessity
for Judge Boldt’s decree until that issue has been fully vetted
in the district court and is properly before us.