Civil No. 9213 -Phase I (Sub proceeding No. 80-1)
United States District Court For The Western District Of Washington, Seattle Division
626 F. Supp. 1405, 1985 U.S. Dist. Decision
December 31, 1985, Decided
Walter E. Craig, United States District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court has reviewed the Special Master‘s Report and Recommendations
re: Tulalip Tribes’ Request for Determination of Usual and Accustomed Fishing
Places, the relevant evidence of record in this case and the argument of
counsel. This Court has adopted and here applies the sequential numbering
system for the findings of fact and conclusions of law that follow.
FINDINGS OF FACT
359. The Tulalip Tribe is composed largely of people who are descendants of one or more of the groups commonly referred to today as the Snohomish, Snoqualmie and Skykomish tribes, although many variants of those names have been used in treaty-time and subsequent writings. These groups used and occupied territories along the Snohomish-Snoqualmie-Skykomish river systems and on adjacent islands including Whidbey Island and Camano Island and were parties to the Treaty of Pt. Elliott, FF 255, 459 F. Supp. 1020, 1039; Exh. USA-92 (T-M-12); Exh. USA-103 (T-M-14); Exh. USA-104 (T-M-13).
360. The fishing areas used by western Washington Indians at treaty times were basically of five kinds: (1) freshwater lakes; (2) freshwater streams and creeks draining into the various inlets; (3) shallow bays and estuaries; (4) the inlets and Puget Sound; and (5) the straits and ocean. Customary use rights varied according to the type of locale and the gear being used. Winter villages were located along the salmon streams, at the heads of inlets near the mouth of such streams, and on protected coves and bays. During the winter season, if people went out for fresh food stores, they used the fishing areas in closest proximity to their villages. During the spring, summer and fall, people moved about to fish at more distant fishing grounds. (Exh. USA-20, p. 16).
361. The freshwater fisheries were controlled by the locally resident population. Certain visitors might have use rights because they were related to local residents. Others might request permission to fish. Such permission was normally extended if amicable relations existed between the local people and the visitors. (Exh. USA-20, pp. 16-17).
362. The situation with regard to saltwater fisheries appears to have been slightly more complicated. Shallow bays where salmon, flounder, and other fish were speared were often gathering places for people from a wider area. This was especially true if shellfish beds were present. In the deeper waters of the bays, huge flotillas of canoes would gather to troll for salmon as they converged in the bays just before their entry into the rivers. People living upriver on a given drainage system would normally come to the saltwater areas at the mouth of the river to obtain fish and shellfish. At some of the major fishing locations people from other drainage systems would also congregate to join in the fishing. (Exh. USA-20, p. 17).
363. The deeper saltwater areas, the sound, the straits, and the open sea, served as public thoroughfares, and as such, were used as fishing areas by anyone traveling through such waters. Exh. USA-20, p. 18; Lane, TR April 9, 1975, 49-50; Lane, TR July 18, 1983, 647-648). These areas appeared to have been open to all with whom the neighboring tribes were not at war. (Exh. G-4, pp. 186-187).
364. Constricted waters like Deception Pass, Swinomish Slough, and Holmes Harbor were likely controlled by the resident groups in whose territories those waters were located. (Exh. USA-74, p. 29; Lane, TR July 18, 1983, 648-649).
365. Both within the straits and off the west coast in the open sea there were halibut banks known to the Indians, used by them, and claimed as private property. Private property rights were also recognized at reefnet locations in the straits and northern Puget Sound. (Exh. USA-20, p. 18).
366. The straits and sound were traditional highways used in common by all Indians of the region and most saltwater fisheries traditionally were free access areas. While it is useful for certain purposes to speak of waters or territory in terms of a particular adjacent tribe, this by no means implies exclusive rights by that group. That these Indians traveled widely and frequently throughout the waters of the sound and straits is commented on by numerous early observers. (Exh. USA-30, p. 25; Lane, TR July 18, 1983, 647-648).
367. There are greater difficulties in specifying or delineating marine areas used by one or another Indian group than is the case with river areas. Similarly, it is easier to specify particular relatively stable locations in marine waters, such as reefnet locations or halibut banks, than it is to delineate trolling areas or areas where herring may have been raked. (Exh. USA-74, p. 27; Lane, TR April 9, 1975, 23).
368. As a general matter, there is very little treaty-time documentation or direct evidence or fishing in open marines, and such occasional references as exist are extremely fragmentary and just happenstance. (Lane, TR July 18, 1983, 646-647). It is only by chance that documents dating from treaty times note the presence of specific Indians at a given freshwater site. (Exh. USA-104 (T-M-13), p. 37). For later periods it is well documented that Indians from both north and south of the Fraser River from places as far away as Port Madison and Seattle went to the Fraser River to engage in the salmon fisheries. (Lane, TR April 9, 1975, 55-56).
369. Fort Langley was established by the Hudson Bay Company on the Fraser River in what is now British Columbia, Canada, in 1827 as the center of its operations for its trading posts up and down the coast. Its location was chosen because of the enormous salmon supplies which returned to that river. Many of these salmon passed through the Strait of Juan de Fuca and the San Juan Islands. The salmon business was a major part of that fort‘s operation from the outset. Salmon that were collected by the Indians and then traded to the fort were used to provision that fort and all of the fur brigades that the company sent out from the Langley area and from the interior forts and those up the coast. Salmon were even exported from Langley down to Nisqually, which was basically a farming operation, and to England, the Hawaiian Islands and other places. Ft. Langley was the major salmon trading and processing establishment of the Hudson Bay Company. (Lane, TR July 18, 1983, 643-644; Lane, TR April 9, 1975, 54).
370. Fort Victoria was established by the Hudson Bay Company where there was a good port for ships to call. When the company discovered that there were no sockeye in the vicinity, they established a buying station at Cattle Point on the southeastern tip of San Juan Island where the salmon banks are. The sockeye went by the southern end of San Juan Island, and the Indians were able to get them there. (Lane, TR July 18, 1983, 644). There was a huge salmon bank there and Indians from other tribes often came and joined in the fishery (Id. 678-679).
371. The precise details of Indian claims in the San Juan Islands and their accuracy may be impossible to specify with precision at this time. Many different Indian groups moved out into the islands for spring and summer fishing. Apparently at treaty times, few Indians were living in the San Juan Islands on a year-round basis. However, large numbers of Indians maintained fishing villages there. The Songhees and Saanich of Vancouver Island held territories and reefnet locations in the San Juans. Lummi, Samish, Swinomish and Clallam and possibly others regularly resorted to the islands for spring and summer fishing. Information respecting specific areas of use by particular groups at treaty times is incomplete and sometimes conflicting. (Exh. USA-74, p. 27; Snyder TR July 14, 1983, 444-476). Central and northern Puget Sound Tribes outside of the San Juans had also utilized its fisheries resources during the pre-treaty period. The Snohomish Tribe was among a number of tribes who fished and clammed in those areas. (Snyder, July 14, 1983, pp. 456-461, 467).
372. At treaty times the Snohomish, in common with other shoreline people, were accustomed to traveling widely in their canoes and to harvesting such fish as were accessible to them. While it is not feasible to document the marine fisheries of the Snohomish at treaty times, it is clear that Tulalip predecessors traveled widely and frequently throughout most of the waters of Puget Sound, at least those from Seattle northward, as did other Indians of the area. Absence of documentary evidence of traditional fisheries of Tulalip predecessors in open marine waters is similar to that for other tribes. (Lane, Exh. USA-92 (T-M-12), p. 29; Lane, TR July 18, 1983, 646-650).
373. The documentation of the presence of Snohomish Indians at Fort Langley during pre-treaty times is spotty and generally happenstance, but it would indicate that the Snohomish frequently traveled to the Fraser River for trading both salmon and furs. (Lane, TR of April 9, 1975, 55-56; Lane, TR July 15, 1985, 545, 550-551).
374. A round trip to the Fraser River from the mouth of the Snohomish River would normally have taken from two to four weeks (Snyder, TR July 15, 1983, 551-552). During such travels they would have harvested salmon accessible to them. (Lane, TR July 18, 1983, 649-650).
375. It is difficult to establish the range and extent of the usual and accustomed marine fisheries engaged in by Snoqualmie fishermen at treaty times and to ascertain the regularity with which the Snoqualmie may have visited freshwater sites adjacent to their territory for fishing purposes. It seems reasonable that they would have joined with neighboring people, especially if they were inter-married with them, to harvest fish in the larger lakes. (Exh. USA 104 (T-M-13), p. 37).
376. The major salmon runs of Puget Sound area passed through the open waters of the Strait of Juan de Fuca and northward through and alongside the San Juan Islands.
377. It was normal for all of the Indians in western Washington to travel extensively either harvesting resources or visiting in-laws, because they were intermarried widely among different groups. They would visit for social occasions such as potlatches, weddings, feasts of one sort or another, or inter-community ceremonials or celebrations. (Lane, TR April 9, 1975, 48). The widespread intermarriage among the tribes surrounding Puget Sound would indicate that travel through its marine waters occurred frequently and on a regular basis. (Lane, TR July 18, 1983, 634-635, 674, 705; Lane, TR July 30, 1975, 83-84; Lane, TR April 9, 1975, 57-58; Snyder, TR July 14, 1983, 498-499, 574-578; Dover, TR July 30, 1975, 113-115).
378. An example of inter-marriage was the village at Hat Slough which had people who were of mixed ancestry. This was true of every village in the Puget Sound area. People had relatives in other communities, and throughout the entire case area there was a great deal of exogomy. Although it wasn’t a disgrace to marry someone within your own community, there was a great deal of out-marriage. (Lane, TR July 18, 1983, 634-635).
379. The expert testimony in this case indicates that in some cases
a particular tribe or tribes exercised preemptive territorial fishing control
at the mouths of rivers near the location of its villages as well as over
certain nearby narrow or constricted waterways, bays or channels or at
specific reefnet or beach seine sites and halibut banks. Such control would
limit any other tribe‘s use of those areas to an invitational or permissive
use. (USA-20, pp. 17-18; USA-74, p. 29; Lane, TR July 18, 1983, 648-649,
680-681, 689-690). (The rights stemming from such control are herein referred
to as primary rights.) Examples of such areas are Swinomish Slough, Deception
Pass, Holmes Harbor and Hale Passage off Lummi Island (Id.)
Area by Area Findings
380. There is sufficient specific documentation and evidence to establish usual and accustomed fishing by Tulalip predecessors at the following locations:
(b) Waterman recorded Snohomish place names for locations on the eastern shore of the Puget Sound in the vicinity of Pt. Edwards and Pt. Wells, named Stu-bus and Ile’i-s-tu-bus. (Exh. USA-103 (T-M-14), Appendix 1)). Hudson Bay Company records refer to encounters with Snohomish at Murden Cove at Bainbridge Island (Exh. T-M-26, entry for July 7, 1827).
(c) The entire Port Susan inlet except close to the mouths of the Stillaguamish River (Lane, TR July 18, 1983, 634, 691, 704-705; Lane, TR July 30, 1975, 80, 93).
(d) The waters off the west coast of the Whidbey Island including those
northerly and westerly from the West Beach shoreline from Deception Pass
to Pt. Partridge. (Lane, TR July 18, 1983, 692).
(b) The waters of the San Juan Archipelago, Haro Strait and Rosario Strait and the portion of the Strait of Juan de Fuca northeasterly of a line drawn from Trial Island (in Canada) to Protection Island.
(c) The waters of WDF Area 10.
383. The Tulalip Tribes have entered into, and this court has approved, stipulated settlement agreements with the Suquamish, Muckleshoot, Swinomish, Lower Elwha Clallam, Jamestown Klallam, Port Gamble Klallam, Skokomish, Puyallup, Nisqually and Stillaguamish Tribes (the latter ten of which are hereinafter called "stipulating tribes") concerning fishing in waters initially claimed by the Tulalip Tribes in this proceeding. Pursuant to those agreements the stipulating tribes, with a single limited exception, did not participate in the adversarial proceedings of this dispute and thus had no opportunity to present evidence of their own, to cross-examine Tulalip witnesses or to challenge Tulalip evidence. Some of the evidence offered by the Tulalip Tribes dealt with activities, persons or events in areas which are of concern to the stipulating tribes. It should therefore be stressed that the findings of fact and conclusions of law which are adopted in this proceeding are not to be cited or relied upon in any manner against or to the prejudice of the stipulating tribes in this or any other judicial or other proceeding, provided that this shall not prevent the independent establishment of the same fact or conclusion in a future proceeding.
In the event that any of the foregoing findings of fact should be considered
conclusions of law, they should be so considered.
CONCLUSIONS OF LAW
94. Except for those areas for which the Tulalip Tribes have specifically withdrawn their claims in the settlement agreements previously approved by the court in this proceeding, the claim of the Tulalip Tribes for a determination of its usual and accustomed fishing places in any of the remaining waters claimed in this proceeding is not barred by res judicata. Part C of this court’s Order of September 10, 1975, as amended, 459 F. Supp. at 1060.
95. Either direct evidence or reasonable inferences from documentary exhibits, expert witness reports and other testimony as to the probable location and extent of usual and accustomed treaty fishing areas may be sufficient to support a legal determination of the areas involved. Stringent proof standards are not the applicable limiting basis for such determinations. United States v. Washington, 730 F.2d 1314, 1317-18 (9th Cir. 1984) (approving 459 F. Supp. 1020, 1058-60).
96. Open marine waters that were not transited or resorted to by a tribe on a regular and frequent basis in which fishing was one of the purposes of such use are not usual and accustomed fishing grounds of that tribe within the meaning of the Stevens treaties.
97. The determination of any area as a usual and accustomed fishing ground or station of a particular tribe must consider all of the factors relevant to (1) use of that area as a usual or regular fishing area, (2) any treaty-time exercise or recognition of paramount or preemptive fisheries control (primary right control) by a particular tribe, and (3) the petitioning tribe‘s (or its predecessors’) regular and frequent treaty-time use of that area for fishing purposes. United States v. Washington, 384 F. Supp. at 332, 459 F. Supp. at 1059.
98. The only areas so considered in this determination are those described in the Tulalip Tribes‘ written closing argument as follows:
99. The record of this case adequately supports a determination that Indian custom and practice at the time of the treaties recognized a right of Tulalip predecessor groups to fish in common with other tribes in the open marine waters of the Puget Sound Area to the extent specified in the findings herein.
100. (a) Subject to the limitations elsewhere expressed in these findings and conclusions the Tulalip Tribes’ in-common fishing right area includes the open marine waters northerly from a true east-west line passing through the Pt. Vashon light (the present southern boundary of WDF Area 10) to the Canadian border and westward into that portion of the United States‘ waters of the Strait of Juan de Fuca that is easterly of a line extending northwesterly from the northernmost tip of Protection Island to Trial Island (in Canada).
(b) Excluded from this Tulalip in-common fishing right area are the following areas:2
101. The freshwater areas described in Finding of Fact No. 382 herein are usual and accustomed fishing grounds of the Tulalip Tribes, subject to the limitations specified therein, the settlement agreements referred to in Finding No. 383 and this court‘s orders approving those agreements.i. Any waters included in the reservation of another tribe.
ii. That portion of WDF Area 8 northeasterly of a line drawn between Strawberry Point on Whidbey Island and Brown Point on Camano Island, including Swinomish Channel (a.k.a. Swinomish Slough), Deception Pass, Hale Passage (off Lummi Island) and WDF Area 7D, provided, that with respect to any other area of the types referred to in Finding of Fact No. 379 that heretofore has been, or may hereafter be, found by this court, or agreed to by the affected tribes, to be a primary right area of another tribe, the Tulalip fishing right is subordinate to the primary right of such other tribe.
iii. Those areas within which the Tulalip Tribes has contracted not to claim a non-permissive fishing right in the stipulated agreements identified in Finding of Fact No. 383 herein. The areas specifically withdrawn from the Tulalip Tribes’ claim pursuant to those negotiated settlements are:
1. The portions of WDF Areas 6 and 6B southerly and westerly of a line drawn from Point Wilson westerly to McCurdy Point, thence westerly to the northernmost tip of Protection Island and thence northwesterly to Trial Island and all of WDF Area 6D.
2. WDF Areas 7B and 7C.
3. Those portions of WDF Area 10 easterly of a line drawn from Alki Point to West Point thence to Meadow Point (all in Seattle) and all of WDF Areas 10 A, 10 C, 10D, 10F and 10G (formerly 10B);
4. All waters south of a true east-west line passing through the Pt. Vashon light;
5. Those portions of WDF Area 10 westerly of a line drawn from Point Monroe on Bainbridge Island to Point Jefferson on the Kitsap Peninsula and all of WDF Area 10E;
6. Those portions of WDF Area 9 south and west of a line drawn from Foulweather Bluff to Kinney Point, on the southernmost tip of Marrowstone Island, and south and west of a line drawn from Marrowstone Point, on the northernmost tip of Marrowstone Island, to Point Wilson, including Kilisut Harbor, and all of WDF Area 9A;
7. All waters southwesterly of the northern boundary of WDF Area 12; and
8. All freshwaters draining into the waters described in this part 7(b) iii.
iv. Any other area to which a particular tribe or tribes hereafter establishes that it historically exercised paramount or preemptive fisheries control (primary right control) at treaty time.
102. None of the Findings of Fact or Conclusions of Law contained herein shall be binding on the stipulating tribes named in Finding of Fact No. 383, supra, or have any presumptive, persuasive, prima facie or other force or effect against any such stipulating tribes in this or any other judicial or other proceeding. The findings and conclusions herein, and the judgment thereon, do not affect the terms or enforcement of the settlement agreements previously approved by this court or the orders approving them and do not form any basis or cause for modifying, vacating or terminating those agreements or orders.
In the event that any of the foregoing conclusions of law should be
more properly considered findings of fact, they should be so considered.
DATED this 31st day of December, 1985.
Walter E. Craig
United States District Judge
[SEE ATTACHMENTS IN ORIGINAL]
1 As used throughout these findings and conclusions all references to "WDF Areas" means the Washington Department of Fisheries’ Puget Sound Commercial Salmon Management and Catch Reporting Areas, as those areas are delineated as of June 23, 1985, in WAC 220-22-030. These are shown on the maps appended hereto as Appendices A and B.
2 The area remaining after these exclusions is shown on the map appended hereto as Appendix C.