Courtesy Stefan Freelan
The Elwha, Jamestown and Port Gamble S’Klallam contend that, historically, the Lummi did not routinely fish in a disputed area near Whidbey Island, and they cite testimony from noted anthropologists to back that contention.

Lummi, S’Klallam Nations In Court Over 30-year-long Dispute Over Fishing Territory

Richard Walker

The Lummi and S’Klallams were among the Indigenous Peoples who fished a vast inland sea off northwest Washington, bounded by Haro Strait to the west, Rosario Strait to the east, Georgia Strait to the north, and the Strait of Juan de Fuca and Puget Sound to the south.

In the middle are the San Juan Islands, which the Lummi believe is their place of origin. To the south is the Olympic Peninsula, the place of origin of the Elwha, Jamestown and Port Gamble S’Klallam peoples.

Fishing rights were expanded by relationships between families. For example, someone who was Skagit might be married to someone who was Snohomish, giving family members the right to fish and harvest in each other’s territories. And so on.

Both sides are in U.S. District Court, in their third decade of legal battles to determine who has the treaty right to fish those waters. District and appellate court decisions have seesawed in favor of the S’Klallams and the Lummi Nation.

The Elwha, Jamestown and Port Gamble S’Klallam contend that, historically, the Lummi did not routinely fish in a disputed area near Whidbey Island, and they cite testimony from noted anthropologists to back that contention. But the Lummi Nation contends the S’Klallams have excluded testimony that proves the Lummi routinely fished in the disputed area, and cite reports that “establish the Lummi’s claim through anthropological evidence and kinship ties and intermarriage with Whidbey Island people.”

Dispute dates to 1980s

The Lummi Nation is a signatory to the Treaty of Point Elliott, the S’Klallams are signatories to the Treaty of Point No Point, both signed in 1855. In both treaties, indigenous nations reserved their right to fish in their usual and accustomed areas.

In 1974, in U.S. v. Washington, U.S. District Court Judge George Boldt upheld treaty fishing rights and defined the treaty reference to “usual and accustomed grounds and stations” as meaning “every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters.”

Boldt found that Lummi historically fished using reef nets “on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point”; “trolled the waters of the San Juan Islands for various species of salmon”; and fished the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle[.]”

On March 3, 1989, the S’Klallams asked the court for a determination that Lummi’s usual and accustomed area, or U&A, “does not include the Strait of Juan de Fuca, Admiralty Inlet and/or the mouth of Hood Canal,” the heart of S’Klallam’s fishing area. On February 15, 1990, U.S. District Court Judge Robert E. Coyle determined that Boldt would not have intended those areas to be included in the Lummi Nation’s U&A, but Coyle never entered final judgment. U.S. District Court Judge Barbara Rothstein upheld Coyle’s decision on September 4, 1998, ruling that even though he didn’t finalize it, it was still the law in the case.

On September 25, 1998, the Lummi Nation appealed to the 9th Circuit Court of Appeals, which ruled that Coyle’s decision was not final. The appellate court determined that while Boldt did not intend to include the disputed waters in Lummi Nation’s U&A – he “viewed Puget Sound and the Strait of Juan de Fuca as two distinct regions”: Puget Sound, where the Lummi fished, and the Strait of Juan de Fuca and Hood Canal, where other tribes fished. But the court also concluded that Boldt intended for Admiralty Inlet – “[t]he waters to the west of Whidbey Island, separating that island from the Olympic Peninsula[,]” – to be included in Lummi’s U&A, because, Admiralty Inlet would likely be a passage through which the Lummi would have traveled from the San Juan Islands in the north to the “present environs of Seattle.”

On October 11, 2012, Martinez granted the S’Klallams request for determination the Lummi Nation’s U&A “does not include the eastern portion of the Strait of Juan de Fuca or the waters west of Whidbey Island, an area more specifically described as the marine waters east of a line running from Trial Island near Victoria, British Columbia, to Point Wilson at the westerly opening of Admiralty Inlet, bounded on the east by Admiralty Inlet and Whidbey Island, and bounded on the north by Rosario Strait, the San Juan Islands, and Haro Strait.”

The Lummi Nation moved for reconsideration on the ground that the District Court’s decision was overbroad, because it interpreted the Lummi’s U&A as not including waters off the southern coast of the San Juan Islands. On February 15, 2013, Martinez denied Lummi’s motion but clarified his ruling to state that the “nearshore waters immediately to the south of San Juan Island and Lopez Island” would be “within [Lummi’s] U&A as defined by Judge Boldt.” He also held that “Lummi fishing boats may therefore pass through the waters west of Whidbey Island on their way to fishing grounds in Admiralty Inlet, but they may not fish until they arrive there.”

The Lummi Nation appealed Martinez’s original decision and denial of their motion for reconsideration. On August 19, 2014, the 9th Circuit Court of Appeals reversed Martinez’s decision and returned the issue to District Court for further proceedings.

Among the questions the court must answer: What is the eastern boundary of the Strait of Juan de Fuca? The Lummi argue that the boundary is west of the western shores of northern Whidbey Island, meaning it could fish near that island’s shores. The S’Klallam argue that the shore is the boundary, meaning Lummi could not.

Lummi Chairman Tim Ballew said he’d prefer to settle the issue in a Nation-to-Nation conference, rather than in court.

“Our elders and past leaders have told us it is best to stay out of the federal court system,” Ballew said in response to the 9th Circuit Court’s decision. “I agree with them. If we can do so, that would be the best interest for all Treaty Tribes … I think it would be in our best interest to find a resolution tribe to tribe. I would welcome a discussion with the leadership from the S’Klallam Tribes to discuss how we collectively protect our fishery.”

The S’Klallams’ attorney, Lauren P. Rasmussen, said past efforts at mediation have failed. “We always prefer to resolve [disputes] out of court,” she said. “But in 26 years, we have not been able to do so.”

The case is No. 2:11-sp-00002, United States of America, Plaintiff, and Lower Elwha Klallam Tribe, Jamestown S’Klallam Tribe, Port Gamble S’Klallam Tribe, Petitioners-Appellees, v. Lummi Nation, Respondent-Appellant, and State of Washington, Defendant.

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