Indian Law Resources Information

901 F.2d 772

UNITED STATES of America, Plaintiff-Appellee,


Tulalip Tribes of Washington; Lummi Indian Tribe; Muckleshoot Indian Tribe,

and Upper Skagit Tribe, Plaintiffs-Appellees,


SUQUAMISH INDIAN TRIBE, Plaintiff-Appellant,


State of Washington, et al., Defendants.

No. 89-35254.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 6, 1990.

Decided April 19, 1990.

*773 John Henry Browne, Browne, Ressler & Foster, Seattle, Wash., for

plaintiff-appellant (Suquamish Indian Tribe).

Mason D. Morisset, Pirtle, Morisset, Schlosser & Ayer, Seattle, Wash., for

Tulalip Indian Tribe.

Daniel A. Raas, Bellingham, Wash. for Lummi Indian Tribe.

Gregory M. O'Leary, Heller, Ehrman, White & McAuliffe, Seattle, Wash., for

Muckleshoot Tribe.

Edward G. Maloney, Jr., Sedro Woolley, Wash., for Upper Skagit Tribe.

John T. Stahr, Dept. of Justice, Washington, D.C., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of


Before WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Suquamish Indian Tribe of western Washington seeks an adjudication

that it is the successor to the former Duwamish Tribe and entitled to exercise

the fishing rights of the Duwamish. The district court denied relief.


The Suquamish filed this action as a separate proceeding in a continuing case

that relates to the nature and extent of treaty Indian fishing rights in

western Washington. See United States v. Washington, 384 F.Supp. 312

(W.D.Wash.1974) (Boldt decision), aff'd, 520 F.2d 676 (9th Cir.1975). In that

decision, the district court held that tribes that signed the Treaty of Point

Elliott could exercise their treaty protected fishing rights in "usual and

accustomed" places. [FN1] 384 F.Supp. at 343. The tribes *774 were

entitled to take up to 50 percent of the harvested fish from runs passing

through their off-reservation grounds. Id. The Supreme Court substantially

upheld the Boldt decision in Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685, 99 S.Ct. 3055, 3074, 61

L.Ed.2d 823 (1979).

FN1. Isaac Stevens, Territorial Governor, negotiated the Treaty of Point

Elliott, 12 Stat. 927 (signed January 22, 1855; ratified March 8, 1859;

proclaimed April 11, 1859), on behalf of the United States. The tribes

that signed this Treaty relinquished much of their aboriginal land so that

non-Indians could settle in Washington Territory. In exchange for their

land, the tribes received small parcels on which to live and certain

payments. Because fishing was the source of their livelihood, they

reserved the right to take fish at all usual and accustomed grounds in

common with citizens of the Territory.

For additional case history, see United States v. Washington, 759 F.2d

1353, 1355-56 (9th Cir.1985).

In 1975, the Suquamish, not a party to that case, sought a determination of

its usual and accustomed fishing places in western Puget Sound. United States

v. Washington, 459 F.Supp. 1020 (W.D.Wash.1978). The district court found that

the Suquamish, a party to the Treaty of Point Elliott, held usual and

accustomed fishing places in several areas on the west side of Puget Sound.

Id. at 1049.

In May 1985, the Suquamish filed this action to determine their usual and

accustomed fishing places on the eastern side of Puget Sound. At the time of

the Treaty of Point Elliott, they did not fish in those areas, which were the

usual and accustomed fishing places of the Duwamish. [FN2] The Suquamish

argued that they could assert the fishing rights of the Duwamish because they

were the successor in interest to the Duwamish.

FN2. The usual and accustomed fishing grounds of the Duwamish on the

eastern side of Puget Sound included, but were not limited to, Lake

Washington, Lake Union, Lake Sammamish, the Black and Cedar Rivers, and the

lower White or Duwamish River below its junction with the Green River.

The district court in July 1987 referred this question to a special master

over the objection of the Suquamish. The court appointed Robert Cooper, a

retired magistrate, who had served in other United States v. Washington

proceedings. After a two day trial, he filed his report, recommending the

Suquamish request be denied. The district court adopted the report, finding

that the Suquamish did not have the status of successor in interest.

The Suquamish challenge the court's ruling on two grounds, contending that the

court (1) abused its discretion in referring the matter to a special master

under Federal Rule of Civil Procedure 53; and (2) erred in finding that the

Suquamish were not the successors to the Duwamish. The Muckleshoot, who fish

currently in eastern Puget Sound, and the Tulalip, Lummi and Upper Skagit

Tribes join in opposing the contentions of the Suquamish.


I. Did the District Court Err When it Appointed a Special Master?

A. Appointment

[1] A court may appoint a special master under exceptional conditions.

Fed.R.Civ.P. 53(a). [FN3] We review the court's referral to a special master

for abuse of discretion. Hoptowit v. Ray, 682 F.2d 1237, 1263 (9th Cir.1982).

FN3. Rule 53(b) provides:

A reference to a master shall be the exception and not the rule.... [I]n

actions to be tried without a jury ... a reference shall be made only upon

a showing that some exceptional condition requires it.

The Suquamish contend that the order of referral did not show any

exceptional condition and that there is none. [FN4] We disagree.

FN4. The Suquamish assert that because the question of whether they are

the successor in interest to the Duwamish is novel and without precedent,

an Article III judge should then issue. This assertion is without basis.

We have previously decided if, under the Treaty of Point Elliott, a tribe

is a successor in interest to another. See United States v. Washington,

641 F.2d 1368, 1371-74 (9th Cir.1981). In addition, we do not construe the

Treaty of Point Elliott as the Suquamish contend we must.

[2][3] Masters may be appointed to aid a district court in the enforcement of

its decree. See, e.g., Organization for Reform of Marijuana Laws v. Mullen,

828 F.2d 536, 543 (9th Cir.1987). This proceeding is part of the district

court's continuing jurisdiction to implement its decree in the Boldt decision

under which appointment of *775 a master was to be determined as needed.

See Washington, 384 F.Supp. at 408. Throughout the long history of this

litigation, the district court has referred similar matters to special

masters. [FN5] See, e.g., United States v. Lummi Indian Tribe, 841 F.2d 317,

318 (9th Cir.1988) (special master determined that evidence supported the

Tulalip claim to expand usual and accustomed fishing grounds); United States

v. Washington, 730 F.2d 1314, 1315 (9th Cir.1984); United States v.

Washington, 626 F.Supp. 1405, 1487 (W.D.Wash.1985), aff'd, United States v.

Skokomish Indian Tribe, 764 F.2d 670 (9th Cir.1985); Washington, 459 F.Supp.

at 1041-42, 1068-69. Here, the special master contributed substantial

experience and assistance to the court in fashioning its decree.

FN5. We note that special master Cooper was especially well-prepared to

aid the district court because of his familiarity with this case. During

his tenure as magistrate and later as a special master he has heard

numerous other subproceedings. See, e.g., United States v. Washington, 626

F.Supp. 1405, 1487 (W.D.Wash.1985); Washington, 459 F.Supp. at 1028. His

experience actually antedates that of the present judge.

[4][5] Masters may also be appointed because of the complexity of litigation

and problems associated with compliance with the district court order.

Hoptowit, 682 F.2d at 1263. We cannot think of a more comprehensive and

complex case than this. Since 1974, there have been numerous supplemental

proceedings with voluminous filings. In the proceedings below, this was one of

14 sub-proceedings and over 11,000 papers had been filed with the district

court. [FN6]

FN6. The Suquamish assert that a question may be referred to a special

master only when it is complex or involves special expertise. This

contention is without merit. The district court may refer a matter to a

master when "exceptional conditions" are present in the case, not when the

matter is itself exceptional.

We hold that there were exceptional conditions to justify the appointment of a

special master. There was no abuse of discretion.

B. Compensation

[6] The court determines the compensation of a magistrate. Fed.R.Civ.P.

53(a). The Suquamish Tribe asserts that requiring it to pay for the services

of the special master was an abuse of discretion.

We disagree. In Judge Coyle's Order of February 23, 1989, he divided the

special master's compensation of $1,530 among the five parties, the four

tribes, and the United States. Each was to pay a modest $306. Judge Coyle

found that the $1,500 request was reasonable, and the Suquamish Tribe did not

then object to paying its share. There was no abuse of discretion. [FN7]

FN7. The Suquamish also imply that the district court did not review the

transcript before adopting the report and recommendation of the special

master. Judge Coyle's order stated specifically that he read the

transcript of the proceedings before the special master.

II. May the Suquamish Assert the Fishing Rights of the Duwamish?

A. Proper Legal Standard

The Suquamish allege that they have the right to fish in areas east of Puget

Sound because they are the successor in interest to the Duwamish. [FN8] They

bear the burden of demonstrating successorship. See Lummi Indian Tribe, 841

F.2d at 318. We review de novo the question of what legal standard controls.

FN8. The Duwamish Tribe we refer to here held fishing rights acquired

under the Treaty of Point Elliott. In an earlier proceeding, the district

court found that the modern day Duwamish did not hold the fishing rights

reserved to the Duwamish Tribe that signed the Treaty. United States v.

Washington, 476 F.Supp. 1101, 1104-05 (W.D.Wash.1979). Although no tribe

exercises these rights currently, the Muckleshoots have succeeded to the

fishing rights of the Skopamish, Stkamish and Smulkamish for whom Chief

Seattle signed as Chief of the Duwamish. See Washington, 384 F.Supp. at

365-67. These fishing grounds overlap with some of the usual and

accustomed places of the treaty-time Duwamish.

[7] When a tribe asserts fishing rights reserved to signatory tribes under the

Treaty of Point Elliott, our decision in United States v. Washington, 641 F.2d

1368 (9th Cir.1981), provides the appropriate *776 legal standard. [FN9]

That a tribe includes descendants of treaty-signatory tribes does not alone

allow it the fishing rights of a treaty tribe. Id. at 1370-71. To acquire the

rights of a treaty-signatory tribe, a contemporary tribe must obtain "treaty

tribe status." Id.

FN9. The Suquamish ignore our decision in Washington. Instead, they

derive four factors from two district court opinions which, they assert,

establish successorship. See Washington, 459 F.Supp. at 1058-60 (Tulalip

successor in interest to Snoqualmie, Snohomish and Skykomish); Washington,

384 F.Supp. at 365-66 (Muckleshoot successor in interest to the Skopamish,

Stkamish and Smulkamish). They contend that these factors apply:

(1) The tribe claiming successorship must be a treaty tribe;

(2) The reservation governed by the tribe claiming successorship must have

been intended by the United States to be a home for the tribe whose fishing

rights are claimed;

(3) Individuals from the tribe whose rights are claimed must have moved to

and settled on the reservation which the United States intended to be a

home for them; and

(4) Significant numbers of the present day membership of the tribe claiming

successorship must be descendants of the tribe whose rights are claimed.

We reject this purported legal standard. In the district court cases upon

which they rely, the tribal claims to successorship were not contested.

In addition, the district court rejected the analogy of the Suquamish to

the Tulalip and Muckleshoot Tribes. It found, and we agree, that there are

significant historical differences among the successorship claims. For

example, unlike the Suquamish, the Tulalip and Muckleshoot Tribes did not

exist at the time of the Point Elliott Treaty. They were made up of small

bands that signed it and who went as such to the Tulalip and Muckleshoot

Reservations. They became known as the Tulalip and Muckleshoot Indians.

Unlike the Suquamish, who are located on the west side of Puget Sound, the

Tulalip and Muckleshoot Tribes were made up of bands from the east side of

the Sound.

[8][9] A tribe establishes treaty tribe status from a tribe that signed

the Treaty of Point Elliott by establishing that " 'a group of citizens of

Indian ancestry is descended from a treaty signatory and has maintained an

organized tribal structure.' " Id. (quoting United States v. Washington, 520

F.2d 676, 693 (9th Cir.1975)). An organized tribal structure may be preserved

"if some defining characteristic of the original tribe persists in an evolving

tribal community." [FN10] Washington, 641 F.2d at 1372-73. Changes in tribal

policy and organization attributable to adaptation will not necessarily destroy

treaty tribe status. Id. at 1373.

FN10. Federal recognition by the Department of Interior is not required

for a tribe to obtain treaty tribe status. Washington, 641 F.2d at 1371.

[10] In Washington, we considered whether modern tribes, alleging they were

the descendants of signatory tribes, could obtain treaty tribe status. We

concluded that they could, if they met the test stated above. When, as here,

one signatory tribe claims the rights of a second signatory tribe, we hold that

treaty tribe status may also be had. We agree, however, with the district

court that an additional requirement must be met to establish treaty tribe

status in this instance. The court must:

look to all indicia of tribal relationship to assess whether there has been a

consolidation or merger of the tribes, or cohesive bands thereof, sufficient to

combine their tribal or political structures. (emphasis added)

Order Adopting Special Master's Report and Recommendation at 18.

We hold that for a signatory tribe to obtain treaty tribe status from another

signatory tribe, it must first show that the two tribes or cohesive bands

thereof consolidated or merged and demonstrate also that together they maintain

an organized tribal structure. [FN11] If the signatory tribe meets that

burden, then it may exercise the treaty rights of both signatory tribes.

FN11. A tribe must also show that it "descended from a treaty signatory."

Washington, 641 F.2d at 1371. In this instance, however, the district

court previously determined that the Suquamish and Duwamish were treaty

signatories and that the contemporary Suquamish descended from the treaty

time Suquamish.

The district court properly required the Suquamish to show that the Duwamish

had merged or consolidated with them.

B. Factual Findings

[11] The district court's determination that the Duwamish Tribe had not merged

*777 with the Suquamish Tribe is a factual matter which we review for clear

error. See Washington, 641 F.2d at 1371.

[12] The Suquamish argue that they have presented sufficient evidence to

establish that they are the successors in interest to the Duwamish. They

presented evidence which, they argued, established that the United States

intended to consolidate the two tribes. They relied on (1) a report by George

Gibbs that the United States intended originally for the two tribes to be

consolidated on the Port Madison Reservation, [FN12] (2) the reference to Chief

Seattle as Chief of both the Duwamish and the Suquamish in the Treaty of Point

Elliott, and (3) the grant of nine allotments by the United States to Duwamish

Indians on the Port Madison Reservation, which was on the west side of Puget


FN12. George Gibbs was a lawyer-enthnologist who served as Secretary to

the 1855 Treaty Commission.

Despite the Gibbs report, the court found that no evidence showed that the

United States ever acted to relocate the Duwamish to Port Madison. It found

that the reference to Chief Seattle as Chief of the two tribes did not reflect

the political organization of the tribes or that the United States intended to

consolidate the two. It found that the grant of allotments to Duwamish persons

reflected the government's willingness to provide allotments to those with some

Duwamish blood, but that the Suquamish presented no evidence that the approval

of these allotments reflected a consolidation of the two tribes by the United

States or a tribal decision to merge. The court's findings are not clearly


Next, the Suquamish presented evidence that individual Duwamish moved to

and settled at the Port Madison Reservation. They had no evidence, however,

that a band or group moved there. The court found that those who moved to Port

Madison would retain personal rights to return to their natal territory to

fish, but that they could not transfer their rights to persons or tribes. See

Washington, 641 F.2d at 1373 (fishing rights communal). Thus, it found that

the relocation of individual Duwamish to Port Madison would not have been

perceived as a transfer of fishing rights to the Suquamish and that there was

no basis to infer from the movement of some Duwamish that consolidation took

place. These findings are not clearly erroneous.

Finally, the Suquamish presented evidence that 73.9% of its current members

have some Duwamish ancestry. The district court found that it could not infer

from this percentage that the two tribes had merged or consolidated. It noted

that most Suquamish had only a very small percentage of Duwamish blood, which

could easily be attributed to the tendency of the Suquamish to intermarry, and

that the compilation did not compare the relative percentage of Duwamish

ancestry among other tribes in the region. The district court did not clearly


Having reviewed the evidence, the district court found that:

1) the Duwamish and Suquamish Tribes were independent tribes when they signed

the Point Elliott Treaty;

2) the Duwamish objected to being moved from their traditional home east of

Puget Sound to the Port Madison Reservation west of it, and that there was

animosity between the Suquamish and Duwamish;

3) in the years following the Treaty, the Duwamish did not intend to join or

unite with the Suquamish and resisted efforts of the United States to unite


4) the United States continued to deal with the Duwamish as a distinct tribe;


5) the Duwamish did not merge or consolidate with the Suquamish.

Having reviewed the record, we find that these factual findings are supported

by Dr. Barbara Lane's testimony. [FN13] The district *778 court did not

clearly err when it found that the Suquamish did not merge with the Duwamish.

FN13. Lane is an anthropologist upon whom Judge Boldt relied heavily in

making his initial decision and who testified as an expert witness for both

the Suquamish and the Muckleshoot in this proceeding. She gave no opinion

on the successor in interest question. However, the Suquamish relied on a

report she prepared about the history of the Duwamish at the Muckleshoot

and Port Madison Reservations. Because of limitations in the scope of the

report, the court found that it did not provide a basis for evaluating the

distribution of the Duwamish as a whole after the Treaty of Point Elliott.

Having reviewed the report, we agree.


The district court properly appointed a special master. It applied the

correct legal standard in United States v. Washington, 641 F.2d 1368 (9th

Cir.1981), to determine if the Suquamish were the successors in interest to the

Duwamish. It did not clearly err in finding and concluding that the Suquamish

did not merge with the Duwamish and were not entitled to exercise fishing

rights on the east side of Puget Sound.