Upper Skagit Tribe v. United States ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UPPER SKAGIT TRIBE, 
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF WASHINGTON,
Defendant,
and No. 07-35061
SUQUAMISH INDIAN TRIBE, D.C. Nos.
Defendant-Appellant,  CV-70-09213-RSM
SP-05-00003-RSM
v.
OPINION
JAMESTOWN S’KLALLAM TRIBE;
LOWER ELWHA KLALLAM TRIBE;
LUMMI INDIAN NATION; NISQUALLY
INDIAN TRIBE; PORT GAMBLE
S’KLALLAM TRIBE; SKOKOMISH
INDIAN TRIBE; TULALIP TRIBE,
Plaintiff-intervenors-Appellees,
SWINOMISH INDIAN TRIBAL
COMMUNITY,
Cross-claimant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
October 21, 2008—Seattle, Washington
10533
10534 UPPER SKAGIT TRIBE v. WASHINGTON
Filed August 6, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld
10536 UPPER SKAGIT TRIBE v. WASHINGTON
COUNSEL
Michelle Hansen, Suquamish Tribe, Office of Tribal Attor-
ney, Suquamish, Washington, for the appellant.
Harold Chesnin, Office of the Tribal Attorney, Seattle, Wash-
ington, and Andrew H. Salter (briefed), Salter Joyce Ziker,
PLLC, for appellee Upper Skagit Indian Tribe.
James M. Jannetta, Office of Tribal Attorney, LaConnor,
Washington, for appellee Swinomish Indian Tribal Commu-
nity.
UPPER SKAGIT TRIBE v. WASHINGTON 10537
Lauren P. Rasmussen (briefed), Law Offices of Lauren P.
Rasmussen, Seattle, Washington, for appellees Port Gamble
S’Klallam and Jamestown S’Klallam Tribes.
Mason D. Morisset (briefed), Morisset, Schlosser, Jozwiak &
McGaw, Seattle, Washington, for appellee The Tulalip
Tribes.
OPINION
KLEINFELD, Circuit Judge:
This case concerns the geographical scope of the Suqua-
mish Indian Tribe’s treaty right fishing grounds in the Puget
Sound.
I. Background.
In 1850s, the United States signed a series of treaties with
the tribes1 of the Pacific Northwest.2 In the treaties, “[t]he
Tribes ceded their aboriginal lands to the United States for
settlement, receiving in exchange exclusive title to defined
lands, free medical care, schools, occupational training, and
annuity payments.”3
1
See United States v. Washington, 384 F. Supp. 312, 355 (W.D. Wash.
1974) (“No formal political structure had been created by the Indians liv-
ing in the Puget Sound area at the time of initial contact with the United
States Government. Governor Stevens . . . deliberately created political
entities for purposes of delegating responsibilities and negotiating treaties.
In creating these entities Governor Stevens named many chiefs and sub-
chiefs.”) [hereinafter Decision I].
2
See, e.g., Treaty of Point No Point (Jan. 26, 1855), 12 Stat. 933 (1859);
Treaty of Point Elliott (Jan. 22, 1855), 12 Stat. 927 (1859). See generally
Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n,
443 U.S. 658, 661-69 (1979).
3
United States v. Washington, 157 F.3d 630, 638 (9th Cir. 1998). For
a general overview of the history of the treaties and the ensuing fishing
rights litigation, see id. at 638-41.
10538 UPPER SKAGIT TRIBE v. WASHINGTON
The treaties also reserved to the Tribes the “right of taking
fish at usual and accustomed grounds and stations . . . .”4 The
term “usual and accustomed grounds and stations” includes
“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.”5
In 1970, the United States initiated the underlying case,
United States v. Washington, against the State of Washington
in order to vindicate the tribes’ treaty right to fish. As part of
his lengthy and detailed opinions, Judge Boldt determined the
various tribes’ usual and accustomed fishing grounds and sta-
tions.6 He stated that he was particularly aided in his determi-
nations by the “authoritative and reliable summaries of
relevant aspects of Indian life” prepared by Dr. Barbara Lane.7
As relevant to this case, Judge Boldt determined that:
The usual and accustomed fishing places of the
Suquamish Tribe include the marine waters of Puget
Sound from the northern tip of Vashon Island to the
Fraser River and including Haro and Rosario Straits,
the streams draining into the western side of this por-
tion of Puget Sound and also Hood Canal.8
This conclusion was based on Dr. Lane’s report. Her report
indicated that the Suquamish customarily fished at the mouths
4
Treaty of Point Elliott, 12 Stat. at 928.
5
Decision I, 384 F. Supp. at 332.
6
Id. at 359-82; see also United States v. Washington, 459 F. Supp. 1020,
1049, 1059-60 (W.D. Wash. 1978) [hereinafter Decision II].
7
Decision I, 384 F. Supp. at 350; see also United States v. Suquamish
Indian Tribe, 901 F.2d 772, 777 & n.13 (9th Cir. 1990) (noting Judge
Boldt’s reliance on Dr. Lane).
8
Decision II, 459 F. Supp. at 1049.
UPPER SKAGIT TRIBE v. WASHINGTON 10539
of the Duwamish and Snohomish Rivers9 in the fall and win-
ter, and in wider areas in the spring and summer. She also
noted that an October 1827 journal entry indicated that the
Suquamish had traveled all the way north to the Fraser River
and Fort Langley in what is now British Columbia.10 Dr. Lane
reported that “the Suquamish regularly travelled through the
San Juan Islands and to the Fraser river . . . . It is likely that
one of the reasons for travel was to harvest fish.”
Almost thirty years after Judge Boldt reviewed Dr. Lane’s
report and made the initial determination of Suquamish’s ter-
ritory, the tribe changed its fishing patterns to include Sara-
toga Passage and Skagit Bay. The Upper Skagit Tribe then
initiated this case by filing a request for determination11 that
the Suquamish were fishing outside of their adjudicated
grounds. Both Upper Skagit and Suquamish moved for sum-
mary judgment. The relevant facts are undisputed and set
forth above; the parties only dispute the inferences to be
drawn from those facts.
The district court granted summary judgment to Upper
Skagit, finding that it had met its burden of demonstrating that
Judge Boldt did not intend to include these areas in Suqua-
mish’s traditional fishing grounds. The court reached this con-
clusion even though it held that Judge Boldt used the term
Puget Sound unambiguously to refer to all the marine areas
inward from the mouth of the Strait of Juan de Fuca. Suqua-
mish timely appeals.
9
Both rivers are on the east side of the Puget Sound. The Duwamish
empties into Elliott Bay near Seattle. The Snohomish empties into Port
Gardner Bay near Everett.
10
The Fraser River empties into the Strait of Georgia near Vancouver.
11
Requests for determination are similar to a complaint. They are the
mechanism by which a party may invoke the continuing jurisdiction of the
court in United States v. Washington. See Decision I, 384 F. Supp. at 419.
Such requests begin new subproceedings in the original case. The judg-
ment at the end of subproceedings are final judgments appealable under
28 U.S.C. § 1291.
10540 UPPER SKAGIT TRIBE v. WASHINGTON
II. Analysis.
We review summary judgment de novo, viewing the evi-
dence and all reasonable inferences in the light most favorable
to the non-moving party.12 Circuit precedent dictates that our
task is to determine whether Judge Boldt intended the Suqua-
mish to have treaty fishing rights in Saratoga Passage and
Skagit Bay, rather than rely on his words alone.13
A. Ambiguity.
[1] Suquamish argues that the court should only clarify
Judge Boldt’s rulings after finding them ambiguous. This con-
tention is foreclosed by our precedent. “[A]n analysis of the
decision is necessary, whether the text is unambiguous or not,
in order to understand [findings] ‘in light of the facts of the
case.’ ”14 Ambiguity thus is not a prerequisite for clarifying
the geographical scope of tribal fishing grounds. Nor, how-
ever, is it irrelevant. Instead, it “is certainly a factor to be con-
sidered” in determining Judge Boldt’s intent.15 We have
previously held Judge Boldt’s use of the term Puget Sound to
be ambiguous.16 But the question in this case is not whether
Judge Boldt generally used Puget Sound ambiguously. The
question is whether he intended this specific use of Puget
Sound to include Saratoga Passage and Skagit Bay. He did.
12
Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007).
13
Muckleshoot Indian Tribe v. Lummi Indian Tribe, 141 F.3d 1355,
1359 (9th Cir. 1998) [hereinafter Muckleshoot I].
14
United States v. Muckleshoot Indian Tribe, 235 F.3d 429, 433 (9th
Cir. 2000) (emphasis added) [hereinafter Muckleshoot III]. See also Muck-
leshoot I, 141 F.3d at 1359 (“Swinomish offered no evidence that suggests
that FF 6 is ambiguous or that the court intended something other than its
apparent meaning when it rendered Decision I.”) (emphasis added).
15
Muckleshoot III, 235 F.3d at 433.
16
Id.; see also United States v. Lummi Indian Tribe, 235 F.3d 443, 451-
52 (9th Cir. 2000).
UPPER SKAGIT TRIBE v. WASHINGTON 10541
[2] Judge Boldt used the term Puget Sound broadly. He
defined it as including the Strait of Juan de Fuca and all salt-
water areas inland. But Judge Boldt’s use of Puget Sound is
ambiguous with regard to the Hood Canal and the Straits of
Georgia and Juan de Fuca — waters at its edges.17 Judge
Boldt had described Puget Sound as distinct from those water-
ways. Upper Skagit did not and cannot, however, point to an
instance where Judge Boldt used Puget Sound in a way that
excluded Saratoga Passage and Skagit Bay, waters at its cen-
ter.
[3] The district court correctly concluded that “in every
instance in 1975 where Judge Boldt did state a definition for
Puget Sound, it is a broad one which necessarily includes both
Saratoga Passage and Skagit Bay.” This clear meaning must
be taken into account in determining Judge Boldt’s intent.18
B. Burden of proof.
Summary judgment is appropriate against “a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”19 Determining
who bears what burden of proof is key to deciding this appeal.
[4] At issue in an original territorial determination is
whether there is sufficient evidence to show that disputed
waters were part of a tribe’s usual and accustomed grounds.20
The tribe claiming territory bears the burden of proof.21 At
issue in a proceeding to clarify a previous territorial determi-
nation is what Judge Boldt intended by his description of a
17
Lummi Indian Tribe, 235 F.3d at 451-52.
18
Muckleshoot III, 235 F.3d at 433.
19
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
20
United States v. Lummi Indian Tribe, 841 F.2d 317, 318 (9th Cir.
1988).
21
Id.10542 UPPER SKAGIT TRIBE v. WASHINGTON
tribe’s territory.22 The tribe claiming Judge Boldt intended
something other than his apparent meaning bears the burden
of proof.23
[5] The burden of proof is especially important given the
evidence relevant to the clarification proceeding. We have
held that the relevant facts are the “evidence that was put
before Judge Boldt.”24 In other words, “the palpable facts are
substantially undisputed.”25 It is only the inferences that can
be drawn from those facts which are disputed. If the evidence
before Judge Boldt equally supports contradictory inferences
about his intent, the party challenging the apparent meaning
of his original determination cannot meet its burden of proof.26
C. Merits.
Suquamish’s adjudicated usual and accustomed grounds
include “the marine waters of Puget Sound from the northern
tip of Vashon Island to the Fraser River.”27 Saratoga Passage
and Skagit Bay are in the Puget Sound between these two
points. Upper Skagit therefore has the burden of proving that
Judge Boldt intended not to include these waters, contrary to
the apparent meaning of his words.
Suquamish has little evidence of a traditional presence in
these two specific locations. The district court erred in finding
that lack of evidence fatal, rather that putting the burden of
proof on Upper Skagit and viewing the inferences from the
22
Muckleshoot III, 235 F.3d at 433.
23
Muckleshoot I, 141 F.3d at 1358-59.
24
United States v. Lummi Indian Tribe, 235 F.3d 443, 450 (9th Cir.
2000).
25
Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985).
26
Lummi Indian Tribe, 235 F.3d at 452 (“This argument fails because
. . . it is just as likely that this area was intended to be included as that it
was not.”) (emphasis added).
27
Decision II, 459 F. Supp. at 1049.
UPPER SKAGIT TRIBE v. WASHINGTON 10543
evidence in the light most favorable to Suquamish. The dis-
trict court also made factual errors in reaching its judgment.
When all reasonable inferences are drawn in favor of Suqua-
mish, it is at least as likely as not that Judge Boldt intended
to include Saratoga Passage and Skagit Bay in the tribe’s ter-
ritory. Summary judgment therefore should be awarded to
Suquamish because Upper Skagit cannot meet its burden of
proof on undisputed facts.28
i. Factual errors.
The district court emphasized that Dr. Lane’s testimony did
not refer to Area 4 on a map attached to proposed fishing reg-
ulations discussed during the 1975 proceeding. It also stated
that the “fall and winter fishery [at the mouth of the Snoho-
mish River] was described by Dr. Lane as separate and dis-
tinct from the spring and summer travels up to the Fraser
River.” These conclusions are mistaken.
[6] Dr. Lane’s testimony did refer to Area 4. The Suqua-
mish live in Area 4. She testified that the map at page 22 of
her report, documenting sites within Suquamish territory
where they were accustomed to fishing, depicted locations
south of Areas 1 and 2. The only location south of Areas 1
and 2 on the map is Area 4. This error is important because
Saratoga Passage and Skagit Bay are in Area 4. The district
court relied on the purported lack of testimony regarding Area
4 to conclude that Judge Boldt did not intend to include those
locations in Suquamish’s territory.
[7] Dr. Lane also did not separate the fishing at the mouth
of the Snohomish from the trips to the Fraser River by limit-
ing the latter to the spring or summer. The evidence she relied
on shows that the Suquamish were at Fort Langley in October
of 1827. In other words, they visited the Fraser River area in
28
See Braxton-Secret, 769 F.2d at 531 (holding that summary judgement
on intent is permissible if the facts are undisputed).
10544 UPPER SKAGIT TRIBE v. WASHINGTON
the fall as well as in the spring and summer.29 Additionally,
it is reasonable to infer that the Suquamish would return from
a fall trip to the Fraser River by stopping at the mouth of the
Snohomish River to gather fish because they would not be
able to gather enough on the west side of the Sound upon their
return.30
[8] This error is important because the natural route from
the mouth of the Snohomish River (where Dr. Lane reported
that the Suquamish were accustomed to fishing), through the
Rosario Strait (where Judge Boldt recognized a Suquamish
usual and accustomed fishing ground), to the Fraser River
(another Suquamish usual and accustomed fishing ground)
goes directly through Saratoga Passage and Skagit Bay.31
Thus, the facts before Judge Boldt make it at least as likely
as not that he intended to include Saratoga Passage and Skagit
Bay in Suquamish’s treaty fishing grounds.
ii. Inferences favoring Suquamish.
[9] Both the language that Judge Boldt used and the evi-
dence before him, specifically the Lane Report, support an
inference that he intended to include the disputed areas in
29
Dr. Lane testified that a trip from Port Madison to the San Juans
would take one day. It would be no more than another day from the San
Juans to the Fraser River and Fort Langley. The testimony before Judge
Boldt supports the conclusion that the entire trip would take two days.
Judge Craig heard different evidence in 1983. See United States v. Wash-
ington, 626 F. Supp. 1405, 1529 (W.D. Wash. 1985) (noting Dr. Lane’s
testimony that a round trip from the mouth of the Snohomish River to the
Fraser River would have taken two to four weeks). The difference is
immaterial, because a trip that arrived in October would still begin and
end in fall and because Judge Boldt’s intent in 1975 controls.
30
Dr. Lane’s report and testimony show that the Suquamish were depen-
dent on fishing on the east side of the Puget Sound in the fall and winter.
31
Cf. Lummi Indian Tribe, 235 F.3d at 452 (“If one starts at the mouth
of the Fraser River . . . and travels past Orcas and San Juan Islands . . .
it is natural to proceed through Admiralty Inlet . . . .” ).
UPPER SKAGIT TRIBE v. WASHINGTON 10545
Suquamish’s territory. The language Judge Boldt used to
describe Suquamish territory is different from that he used to
describe the territory of most tribes. Judge Boldt routinely
provided specific geographical definitions as to their bounda-
ries, and specifically identified bays, straits, and island areas
that he intended to include. Judge Boldt did not do so in
Suquamish’s determination. He included the entire Puget
Sound from Vashon Island to the Fraser River. That Judge
Boldt did not follow his pattern and delimit Suquamish’s
boundaries suggests that he intended the boundaries not to be
limited.
We are aware of two other territorial determinations in
which Judge Boldt used the term Puget Sound without tying
it to some geographical anchor — the territory of the Muckle-
shoot32 and the Lummi33 tribes. In the case of both tribes,
however, Judge Boldt did use some limiting language —
either “secondarily” or “Northern,” respectively. We have
heard appeals regarding both of these determinations. In the
case of the Muckleshoot, we determined that the evidence
before Judge Boldt demonstrated that the phrase “secondarily
in the saltwater of the Puget Sound” was limited to the saltwa-
ter immediately adjacent to Muckleshoot’s freshwater fishery.34
In the case of the Lummi, we determined that the “Northern
Puget Sound” included the west side of Whidbey Island in the
absence of evidence to the contrary.35 We did find that
“Northern Puget Sound” excluded the Strait of Juan de Fuca
32
Decision I, 384 F. Supp. at 367 (“Muckleshoot Indians had usual and
accustomed fishing places primarily at locations on the upper Puyallup,
the Carbon, Struck, White, Green, Cedar and Black rivers . . . and second-
arily in the saltwater of Puget Sound.”) (emphasis added).
33
Id. at 360 (“[T]he usual and accustomed fishing places of the Lummi
Indans at treaty times included the marine areas of the Northern Puget
Sound from the Fraser River south to the present environs of Seattle, and
particularly Bellingham Bay.”) (emphasis added).
34
Muckleshoot III, 235 F.3d at 434-35.
35
Lummi Indian Tribe, 235 F.3d at 452.
10546 UPPER SKAGIT TRIBE v. WASHINGTON
and the Hood Canal because Judge Boldt had used those
terms as distinct from Puget Sound elsewhere in his decision.36
Upper Skagit must show a similar implied limitation.
Upper Skagit notes that Possession Sound was not specifi-
cally included in the determination of Suquamish’s territory,
even though it was in the case of the Tulalip tribe. This
silence, however, does not support an inference against
Suquamish. It is unquestioned that the Suquamish have a right
to fish in Useless Bay, on the west side of Whidbey Island,
even though that Bay is not specifically listed in Suquamish’s
territory and is in Tulalip’s. Additionally, Possession Sound
lies immediately adjacent to the mouth of the Snohomish
River, and was thus described as a traditional Suquamish fish-
ing location in Dr. Lane’s report.
[10] Upper Skagit also emphasizes the fact that Suqua-
mish’s territory does not include an eastern border. We need
not decide whether this argument is correct.37 Determining
whether Judge Boldt intended to include specific marine
waters within the Suquamish’s territory calls for a case by
case examination of the facts to determine whether Judge
Boldt “intended something other than [his] apparent meaning.”38
We conclude that it is at least as likely as not that Judge Boldt
intended to include Saratoga Passage and Skagit Bay because
he had elsewhere identified those waters as being within “the
marine waters of the Puget Sound,”39 and because they lie on
the natural route between two traditional Suquamish fisheries.
36
Id. at 451-52.
37
One plausible border of “the marine waters of Puget Sound from the
northern tip of Vashon Island to the Fraser River” is the land bordering the
marine waters.
38
Muckleshoot I, 141 F.3d at 1359.
39
See Decision II, 459 F. Supp. at 1049 ¶ 6 (“The usual and accustomed
fishing places of the Swinomish Tribal Community include . . . the marine
areas of the northern Puget Sound from the Fraser River south to and
including Whidbey, Camano, Fidalgo, Guemes, Samish, Cypress and the
UPPER SKAGIT TRIBE v. WASHINGTON 10547
[11] Upper Skagit’s third contention is that United States v.
Suquamish Indian Tribe40 controls this case. In Suquamish
Indian Tribe, Suquamish attempted to exercise fishing rights
on the freshwater river systems to the “east of the Puget
Sound” as the successor in interest to the Duwamish tribe.41
We held that the Suquamish had “usual and accustomed fish-
ing places in several areas in the west side of Puget Sound”
and were “not entitled to exercise fishing rights on the east
side of Puget Sound.”42 Such language, however, “must be
read in the light of the facts before [the court].”43 The court
in Suquamish Indian Tribe was only confronted with question
of whether the Suquamish were successors in interest to the
Duwamish.44 The Suquamish had abandoned any independent
claim arising out of its own treaty time practices to the waters
at issue, so our decision necessarily did not address the ques-
tion of whether the Suquamish had an independent entitle-
ment to fish there. Additionally, because Suquamish Indian
Tribe dealt with the rights of the Suquamish to fish in fresh-
water river systems to the “east of the Puget Sound,” the deci-
sion does not speak to whether the Suquamish have fishing
rights in Saratoga Passage or Skagit Bay, waters within the
Puget Sound.
[12] Finally, Upper Skagit argues that Dr. Lane’s report on
San Juan Islands, and including Bellingham Bay and Hale Passage adja-
cent to Lummi Island.”). It is unquestioned that Saratoga Passage and
Skagit Bay are within these marine areas “includ[ed]” within the “northern
Puget Sound.” See also id. at 1059 (including Saratoga Passage in the
“usual and accustomed marine fishing areas of the Tulalip Tribes of
Washington”) (emphasis added).
40
901 F.2d 772 (9th Cir. 1990).
41
Id. at 774 & n.2, 775 (9th Cir. 1990) (emphasis added).
42
Id. at 774, 778.
43
Muckleshoot III, 235 F.3d at 433 (quoting Julian Petroleum Corp. v.
Courtney Petroleum Co., 22 F.2d 360, 362 (9th Cir. 1927)).
44
Suquamish Indian Tribe, 901 F.2d at 775.
10548 UPPER SKAGIT TRIBE v. WASHINGTON
the Swinomish supports the conclusion that Judge Boldt
intended to exclude Saratoga Passage and Skagit Bay from
Suquamish’s territory. They base this argument on the fact
that Dr. Lane said that certain constricted waterways border-
ing Saratoga Passage and Skagit Bay were controlled by the
Swinomish. This argument is without merit. The fact that one
tribe controls a territory does not imply the absence of fishing
there by another tribe.45 Indeed, the Suquamish have a treaty
reserved fishing right in the Hood Canal, a territory controlled
by the Skokomish.46
[13] We conclude that it is at least as likely as not that
Judge Boldt meant what he said; the Suquamish treaty terri-
tory “include[s] the marine waters of Puget Sound from the
northern tip of Vashon Island to the Fraser River.” This broad,
unlimited fishery is what Dr. Lane described in her report and
testimony. Dr. Lane stated that marine fisheries “are far more
difficult to delimit than fresh waters.” She repeatedly under-
lined that her report did not, and could not, list all of the usual
and accustomed fishing locations of the Suquamish. She
noted that the Suquamish had more limited resources in their
home area than most tribes, and thus had to travel more exten-
sively to fish.
[14] Dr. Lane said that she had no documentary evidence
that the Suquamish fished in the San Juan Islands, but none-
theless found it likely that they did so. Judge Boldt agreed,
deciding in the absence of any specific evidence that the Haro
and Rosario Straits were part of the Suquamish traditional
fishing grounds. This demonstrates a lack of specific evidence
45
See Decision I, 384 F. Supp. at 332 (defining “usual and accustomed”
as including locations “whether or not other tribes then also fished in the
same waters”); cf. United States v. Skokomish Indian Tribe, 764 F.2d 670,
672 (9th Cir. 1985) (holding that a primary right claim could be litigated
separately from a territorial determination).
46
See Decision III, 626 F. Supp. at 1491; see also Decision II, 459 F.
Supp. at 1049 ¶ 7 (recognizing the Swinomish’s right to fish in Hale Pas-
sage, a territory controlled by the Lummi).
UPPER SKAGIT TRIBE v. WASHINGTON 10549
would not have precluded Judge Boldt from including Skagit
Bay and Saratoga Passage in Suquamish’s territory.
III. Conclusion.
We are obligated to discern what a deceased federal district
judge intended when he adjudicated Suquamish’s fishing
grounds more than three decades ago. And that district judge
attempted to determine the location of the tribe’s fishing
grounds more than three quarters of a century earlier, despite
the paucity of any very reliable evidence. Thus we are com-
pelled to make legal determinations based on grossly inade-
quate foundations. But for now there seems to be no
preferable alternative. We therefore REVERSE the judgment
of the district court and REMAND for the entry of summary
judgment in favor of Suquamish. All pending motions are dis-
missed as moot.