UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
United States of America, )
Plaintiff, )
and ) No. 90-35887
Lummi Indian Tribe, )
Intervenor-Appellant, ) D.C. No. 9213-Phase I
v. )
OPINION
State of Washington, )
Defendant-Appellee. )
Appeal from the United States District Court
for the Western District of Washington
Robert E. Coyle,
Chief Judge, Presiding
Argued and Submitted
November 7,
1991-Seattle, Washington
Filed
June 30, 1992
Before: Eugene A. Wright, Procter Hug, Jr., and
Edward Leavy,
Circuit Judges.
Opinion by Judge
Leavy
COUNSEL
Harry L. Johnsen, Office of the Reservation
Attorney, Bellingham, Washington, for the intervenor-appellant.
Phillip E. Katzen, Evergreen Legal Services;
Mason D. Morisset, Pirtle, Morisset, Schlosser & Ayer, Seattle, Washington;
Annette M. Klapstein, Tacoma, Washington; Alvin Ziontz, Ziontz, Chestnut, et
al., Seattle, Washington; John Sledd, Suquamish, Washington, for additional
Indian tribes.
Robert K. Costello and Jay D. Geck, Assistant
Attorneys General, Olympia, Washington, for the
defendant-appellee.
Ronald Friedman, Assistant United States
Attorney, Seattle, Washington; Apphia T. Schley, United States Department of
Justice, Washington, DC, for the amicus.
SUMMARY
Government Law/Native
Americans
Affirming a district court
judgment, the court of appeals held that the eastern boundary of the Lummi
Reservation in Washington State is the line of low tide on the eastern side of
the peninsula containing the Lummi Reservation.
Appellant Lummi Indian Tribe
brought an action concerning the allocation of fish resources of the northwest
United States between Indians and non-Indians: in this instance, the fish in
Bellingham Bay. However, the court could not rule on the proper allocation of
fish until it decided whether part of Bellingham Bay was included in the Lummi
Indian Reservation. According to the Lummi, their reservation includes the
waters of Bellingham west of the line from Point Francis to Treaty Rock under
the 1855 Treaty of Point Elliott and the Executive Order of 1873. The district
court agreed with Washington State that the eastern boundary of the reservation
was the line of low tide on the eastern side of the peninsula containing the
Lummi Reservation.
[1] The rule has long
been that treaties with the Indians must be interpreted as they would have
understood them, and any doubtful expressions in them should be resolved in
their favor. [2] Here, there was no ambiguity in the 1873 Executive Order
describing the eastern boundary of the Lummi Reservation. [3] Here, the
district court correctly observed that while the Romaine court referred
to the testimony of tribal members that Governor Stevens had indicated a
straight line boundary, but this issue was not necessary to the decision, and
the Ninth Circuit did not resolve it.
OPINION
LEAVY, Circuit Judge:
FACTS
This interlocutory appeal is
about the location of the eastern boundary of the Lummi Indian Reservation in
the State of Washington. The State of Washington contends that the eastern
boundary of the reservation is the line of low tide on the eastern side of the
peninsula that contains the Lummi Reservation. The Lummi Indians contend that
the eastern boundary is a straight line from Point Francis to Treaty Rock
because that is what Governor Stevens represented to them in 1855 at the Treaty
of Point Elliott(1) and because the Executive
Order of 1873 is ambiguous. According to the Lummi, the reservation includes the
waters of Bellingham Bay west of that line.
This controversy arises in
the context of continuing efforts to allocate the fish resources of the
northwest United States between Indians and non-Indians: in this instance, the
fish in the waters of Bellingham Bay. The court could not rule on the proper
allocation of fish until it decided whether, according to an Executive Order of
1873, part of Bellingham Bay is included in the Lummi Indian Reservation. If so,
the Lummi Indians would have an exclusive right to fish within the boundaries of
their reservation. Washington v. Washington State Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658, 683-84 (1978).
After an evidentiary hearing
on the issue of the boundary, the magistrate judge made findings and
recommendations in favor of the state. The Lummi, other Indian tribes, and the
United States objected to the magistrate judge's findings of fact and
conclusions of law. After hearing the objections and considering the record, the
district court decided in favor of the state. The Lummi Indian Tribe moved for
an order certifying the decision for immediate appeal pursuant to 28 U.S.C.
' 1292(b). The court granted the motion, finding "that the Decision and
Order re Eastern Boundary of the Lummi Indian Reservation involves a controlling
question of law as to which there is a substantial ground for difference of
opinion[.]"
At issue is the
interpretation of an executive order of November 22, 1873, by President
Grant, which provided a legal description of the boundaries of the Lummi
Reservation. The handwritten version of the Executive Order
reads:
Executive Mansion
November 22
1873
It is hereby ordered that the following tract
of country in Washington Territory be withdrawn from sale and set apart for the
use and occupation of the Dwamish and other allied tribes of Indians,
viz.:
Commencing at the eastern mouth of
Lummi River thence up said river to the point where it is intersected by the
line between sections seven and eight of township thirty eight north range two
east of the Willamette meridian thence due north on said section line to the
township line between townships thirty eight and thirty nine thence west along
said township line to the low-water mark on the shore of the Gulf of Georgia
thence southerly and easterly along the said shore with the meanders thereof
across the western mouth of Lummi river and around Point Francis thence
northeasterly to the place of beginning-so much thereof as lies south of the
west Fork of the Lummi river being a part of the island already set apart by the
second article of the treaty with the Dwamish and other allied tribes of Indians
made and concluded January 22, 1857 [sic] [Stats at. Large Vol. 12.
p. 928]
U.S.
Grant.
After reviewing evidence from
both parties supporting their differing interpretations of "and around Point
Francis thence northeasterly to the place of beginning," which describes the
reservation's eastern boundary, the district court decided that the State of
Washington was correct: "the eastern boundary of the reservation follows the low
water mark, just as the western boundary does."
ANALYSIS
Standard of Review
Treaty interpretation is a
mixed question of law and fact. United States v. Lummi Indian Tribe,
841 F.2d 317, 319 (9th Cir. 1988). We review de novo the
interpretation and application of a treaty. Dillon v. United States,
792 F.2d 849, 852 (9th Cir. 1986), cert. denied,
480 U.S. 930 (1987).(2) Where an
executive order relates to a reservation set aside by treaty, the review is also
de novo. Cf. Puyallup Indian Tribe v. Port of Tacoma,
717 F.2d 1251, 1257 n.6 (1983), cert. denied,
465 U.S. 1049 (1984).
We may affirm "on any basis
supported by the record even if the district court did not rely on that basis."
See Shaw v. California Dep't of Alcoholic Beverage Control,
788 F.2d 600, 603 (9th Cir. 1986) (reviewing a dismissal for
failure to state a claim).
Construction of Indian Treaties and
Executive Orders
[1] The rule has long
been that "treaties with the Indians must be interpreted as they would have
understood them, . . . and any doubtful expressions in them
should be resolved in the Indians' favor." Choctaw Nation v. Oklahoma,
397 U.S. 620, 631 (1970); Puyallup Indian Tribe,
717 F.2d at 1257 (quoting Choctaw). We have stated that the
rule applies to executive orders no less than treaties. Puyallup Indian
Tribe, 717 F.2d at 1257 n.6; Moore v. United States,
157 F.2d 760, 762 (9th Cir. 1946), cert. denied,
330 U.S. 827 (1947); United States v. Walker River Irrigation
Dist., 104 F.2d 334, 337 (9th Cir. 1939).
The District Court's
Decision
The district court found that
the 1873 Executive Order was ambiguous in describing the eastern boundary of the
Lummi Reservation. The court resolved the ambiguity it found in favor of the
state:
[T]he fact that the legal description in the
Executive Order is ambigious [sic] does not ipso facto entitle the
Lummis to the most favorable conceivable interpretation when all of the other
evidence strongly supports the selection of the low water mark as the eastern
boundary.
[2] Although the
district court's decision was reached after hearing evidence, we find no
ambiguity in the Executive Order. In addition to stating "and around Point
Francis thence northeasterly to the place of beginning" the Executive Order
states immediately thereafter "-so much thereof as lies south of the west Fork
of the Lummi river being a part of the island already set apart by the second
article of the treaty with the Dwamish and other allied tribes of Indians made
and concluded January 22, 1857 [sic] [Stats at. Large Vol. 12
p. 928]."
The latter statement in the
Executive Order means that south of the west fork of the Lummi River, the
boundaries are to follow those set forth in the treaty. The Executive Order
makes clear that the line of low water marks the actual boundary. The treaty
says nothing about a straight line boundary from Point Francis to Treaty Rock.
Instead, Article II of the Treaty of Point Elliott (Muckl-te-oh, or
Mukilteo), dated January 22, 1855, 12 Stat. 927 (1859) states in
relevant part:
There is, however, reserved for the present use
and occupation of the said tribes and bands the following tracts of
land, viz: . . . the island called Chah-choo-sen,
situated in the Lummi River at the point of separation of the mouths emptying
respectively into Bellingham Bay and the Gulf of Georgia.
United States Statutes at Large, 36-37th
Congress, 1859-63, Vol. 12, at 928 (emphasis added). The Executive
Order specifically incorporates the provision of the Treaty reserving the island
and does nothing more than to specify that the boundary around the island
"already set apart" shall follow the low water mark. We think this intent is
clear from the statement in the Executive Order that the low water mark shall be
followed on the shore of the Gulf of Georgia "southerly and easterly along the
said shore with the meanders thereof across the western mouth of Lummi river
and around Point Francis thence northeasterly to the place of
beginning." (Emphasis added).
This interpretation comports
with the fact that the Executive Order of 1873 was designed to add land to the
reservation to the north of the island of Cha-choo-sen. Therefore, the Executive
Order describes the land added to the north specifically and in detail. The
description mentions Point Francis in order to include the land known as Portage
Island within the reservation boundaries. Once the boundary line has been set
around Point Francis to include Portage Island, the Executive Order does not
need to be specific because by its terms it is merely describing the remainder
of the island already designated for the Lummi in the treaty.
The Romaine
Decision
In United States v.
Romaine, 255 F. 253 (9th Cir. 1919), we had to decide the
location of "the point of beginning" referred to in the 1873 Executive Order on
the eastern boundary of the Lummi Reservation. The dispute in Romaine
arose when
The United States brought suit to quiet the
title of the Indians of the Lummi Indian reservation to certain lands alleged to
be within the boundaries of the reservation, but which had been sold to the
defendants as tidelands by the state of Washington.
Id. at 253. The court quoted the
language of the Treaty of Point Elliott and the 1873 Executive Order,
id. at 253-54, and said:
The controversy involves the question of the
true location of the mouth of the East fork of the Lummi river, later called the
Nooksack. The appellant [the Lummi tribe] contends that the mouth of the river
at the time of the treaty was at or near a point marked by a conspicuous rock
called by the Indians "Treaty Rock." The appellees [the non-Indian settlers]
contend that the mouth of the river was at a point now marked by two cottonwood
trees, nearly opposite the old church, about a mile and a half or two miles
westerly from Treaty Rock.
Id. at 254.
For two reasons, this court
reversed the district court's decision in favor of the appellees, who were the
non-Indian purchasers of the tidelands in question. First, we found that
hydrographic maps(3) prepared by the United
States Coast and Geodetic Survey "should be taken as absolutely establishing the
truth of all that they purport to show." Id. These maps showed the
mouth of the Lummi, or Nooksack River, near the location of Treaty Rock.
Id. They did not show any river mouth to the west of Treaty Rock.(4)
Second, we accepted the
testimony of several Lummi Indians, including one 100-year old, George Tsilano.
Tsilano was 38 years old at the time of the 1855 treaty, and he testified,
along with other Lummi who were present at the treaty negotiations, that "the
eastern boundary line was from Point Francis to [Treaty Rock]." Id.
at 256.
In concluding that the
eastern mouth of the Lummi River had been near Treaty Rock in 1855, we
stated:
It is to be observed that in all the evidence
produced by the appellees, no information is furnished as to the location of the
mouth of the river at any time prior to the year 1868. The appellants, on the
other hand, have produced evidence of its position in the year 1855, the year in
which the treaty was made. That evidence, uncontradicted and unimpeached, and
sustained as it is by the hydrographic maps which the court below, erroneously
as we think, discredited, together with the proof of the general
understanding of the Indians that the treaty fixed the eastern line of their
reservation on a line running from Point Francis to Treaty Rock, is
sufficient to sustain the contention of the appellant that the eastern mouth of
the river was in 1855 at or near Treaty Rock.
Id. at 259 (emphasis
added).
The appellees in
Romaine had also argued that a reservation to Indians of land on
tidewater in Washington Territory was presumed to extend only to the high-water
mark. Id. We responded:
The intention to reserve to the Indians the
possession of the land to low-water mark is made evident by the terms of the
[1873 Executive Order], for one of the courses on the west side of the island
runs 'to the low-water mark on the shore of the Gulf of Georgia, then southerly
and easterly along the said shore with the meanders thereof, across the western
mouth of Lummi river, and around Point Francis.' The next course is 'thence
northeasterly to the place of beginning.' There was no occasion to mention
low-water mark on the east side of the island, for if, as we have found, the
place of beginning was in fact at Treaty Rock, the last line of the description
includes within the boundaries all the lands here in
controversy.
Id. at 259-60 (emphasis
added).
[3] Romaine,
however, is not precedent for this case, because the issues there were the
ownership of tidelands on a portion of the eastern boundary and where the place
of beginning referred to in the Executive Order was in 1855, not the location of
the entire eastern boundary. Consequently, Romaine does not discuss
what the incorporation of the second article of the treaty meant in the
Executive Order because there was no need to resolve that issue. The district
court correctly observed that "While the [Romaine] court referred to
the testimony of tribal members that Governor Stevens had indicated a straight
line boundary, 255 F. at 256-257, 259-260, this issue was not
necessary to the decision and the Ninth Circuit did not resolve it."
(Emphasis added.) Until today, we have not resolved the question of the entire
eastern boundary from Point Francis to Treaty Rock.
Although we do so on other
grounds, the decision of the district court is AFFIRMED.
1. The Treaty of Point Elliott is part of the Stevens treaties, which established the rights of certain Pacific Northwest Indians to take fish. The treaties were negotiated by Isaac Stevens, the Governor of Washington Territory and Superintendent of Indian Affairs, between the United States and the Indians in the 1850's. Washington v. Washington State Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 666-69, 674-79 (1979).
2. The
parties cite United States v. Washington, 730 F.2d 1314,
1317-18 (9th Cir. 1984) for the standard of review, which they claim is
"clearly erroneous." However, that case did not involve the interpretation of a
treaty or of an executive order pursuant to a treaty. It dealt instead
exclusively with evidence ("historical facts") presented to determine where the
Makah Indian Tribes' "usual and accustomed fishing grounds and stations" under
the 1855 Stevens treaty were located. At the time the Makah case arose, the 1855
treaty reference to "usual and accustomed grounds and stations" had already been
interpreted. United States v. Lummi Indian Tribe,
841 F.2d 317, 318 (9th Cir. 1988) (quoting United States v.
Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974)
(the Boldt decision)).
Here, in contrast, we must interpret the Executive Order and its phrase "and around Point Francis thence northeasterly to the place of beginning[.]" Thus United States v. Washington, 730 F.2d 1314, does not provide the standard of review.
3. Hydrography is the determination of depths of water. Reporter's Transcript of August 3, 1987 (RT 1), at 26-27.
4. The evidence showed that in 1889, the river cut through its south bank near the cottonwoods and flowed south, instead of east, into Bellingham Bay. Romaine, 255 F. at 253. This change accounted for the difference in the location of the eastern mouth of the river, and for the different interpretations of the Executive Order.