[00:00:01] Speaker 03: Good morning, Your Honor, and may it please the Court. [00:00:04] Speaker 03: I'm Free Blackhorse on behalf of Appellant Stillaguamish Tribe of Indians, and I'd like to acknowledge the elected members of the Stillaguamish Board of Directors that are with us here in the courtroom today. [00:00:15] Speaker 03: And I'd like to reserve five minutes for rebuttal. [00:00:19] Speaker 03: After a five-day bench trial on Stillaguamish's case in chief, during which over 300 exhibits were admitted into evidence, two experts testified [00:00:29] Speaker 03: and hundreds of pages of post-trial briefing were submitted, the District Court granted a Rule 52C motion. [00:00:36] Speaker 03: The District Court issued a conclusory six-page order without any citations to the trial record or to the applicable substantive law or even the legal standards Judge Bolt set forth in Final Decision 1. [00:00:50] Speaker 03: This court should set aside the district's court order and remand primarily for three reasons. [00:00:55] Speaker 03: First, the order fails to satisfy Rule 52 because we don't know from the face of the order if the district court even applied the controlling law of USC Washington or where the legal standards the district court said it applied actually come from. [00:01:10] Speaker 03: Second, the district court applied a brand new legal standard to its findings of fact that profoundly depart from the well-established law of the case [00:01:19] Speaker 03: Thus, the district court's findings of fact rest on erroneous view and misunderstanding of the governing rules of law in USC Washington. [00:01:28] Speaker 03: And third, the district court's findings of fact are both insufficient in scope and detail. [00:01:34] Speaker 03: Now, alternatively, this court should reverse and remand because three of the district court's factual findings are clearly erroneous, and the district court otherwise erred as a matter of law, in concluding that Stillamish's usual and accustomed fishing grounds and stations [00:01:49] Speaker 03: do not include the interconnected marine waters near the mouth of its namesake river. [00:01:54] Speaker 03: Now, Rule 52C requires a district court to apply the controlling law and legal standards. [00:02:00] Speaker 03: And in this case, that controlling law and those legal standards are the evidentiary standards first established by Judge Bolt in final decision one over 50 years ago and elaborated on in the law of the case since that landmark decision. [00:02:16] Speaker 05: Can I ask, I mean, this is a broader question invited by your statement. [00:02:21] Speaker 05: I mean, it has been almost 50 years since that decree was first put into place. [00:02:26] Speaker 05: Is it still appropriate to have federal court superintendents of this issue 50 years later? [00:02:31] Speaker 03: Yes. [00:02:32] Speaker 05: Why do you say that? [00:02:33] Speaker 05: Because I think Judge Martinez has raised questions about it, as have some opinions of this court, too. [00:02:40] Speaker 03: Because the courts continue to maintain continuing jurisdiction over this case if and when the court decides to sunset it and more importantly in this case [00:02:51] Speaker 03: the treaty rights of those treaty tribes are being adjudicated. [00:02:55] Speaker 03: So, you know, the 50 years that the court has, you know, had to, this court has had to review this case and the district court has had to adjudicate those areas is very minimal and compared to what the tribes have waited to do that. [00:03:10] Speaker 03: And Stillaguamish continues to maintain that right as a treaty party to the Treaty of Point Elliott of 1855. [00:03:15] Speaker 03: Now here, in this order, perhaps for the first time in the history of US v. Washington, the district court not once quoted or even accurately summarized the relevant law of the case. [00:03:26] Speaker 02: So what do you think is the relevant law of the case that the judge should have cited? [00:03:33] Speaker 02: What should have been the standard of review? [00:03:37] Speaker 03: The standard of review as to the usual and accustomed fishing grounds and stations. [00:03:42] Speaker 03: So first, it would be important for the judge to note that in the posture on that paragraph 26A case that the district court, Judge Martinez, is stepping into the position occupied by Judge Bolt when the court [00:04:04] Speaker 03: adjudicated those original 14 usual and accustomed fishing ground areas in final decision one. [00:04:09] Speaker 03: And thus, the district court must apply the same evidentiary standards Judge Pol applied in final decision one. [00:04:15] Speaker 02: What standard would that be? [00:04:17] Speaker 03: The usual and accustomed fishing grounds and station standard. [00:04:20] Speaker 02: Okay, now, Judge Martinez, paragraph three, first page says, the only legal issue at trial was whether the historical evidence and expert testimony and all reasonable inferences drawn there from demonstrate by a preponderance of the evidence that Stillaguamish customarily fished the claimed waters. [00:04:38] Speaker 02: So what's wrong with that? [00:04:40] Speaker 03: Well, you need to look at the actual standard that the court applied in its findings of fact. [00:04:44] Speaker 02: So first, there's issues with- Well, as a statement, is this wrong? [00:04:49] Speaker 02: Did Judge Martinez misstate anything in that statement? [00:04:54] Speaker 03: The issue at trial was whether or not those waters are included in still-abomages. [00:05:00] Speaker 02: You began by telling us that Judge Martinez did not recite the proper standard from the case. [00:05:07] Speaker 02: I've just read you what Judge Martinez wrote. [00:05:10] Speaker 02: Is that standard incorrect? [00:05:13] Speaker 03: That standard, generally speaking, is not. [00:05:15] Speaker 03: But when you get into the specific elements, when we talk about the before treaty type standard. [00:05:19] Speaker 02: If you put a citation to bolt one behind that, would you have any argument at all? [00:05:26] Speaker 02: Your first point was he didn't cite the standard. [00:05:29] Speaker 02: It seems to me he has cited the standard, and I can't find fault with it. [00:05:32] Speaker 03: But that's not the only standard that applies. [00:05:34] Speaker 02: OK. [00:05:34] Speaker 02: So what standard is he missing? [00:05:36] Speaker 02: I mean, give me a paragraph, give me a page. [00:05:37] Speaker 02: Tell me where he missed. [00:05:39] Speaker 03: So, for instance, if we look at page five of the order and page six in particular. [00:05:54] Speaker 03: So, to begin with, with the customarily fish standard, instead of reciting the law of the case from Judge Bolt in final decision one and is elaborated on by Judge Bolt, [00:06:05] Speaker 03: In subsequent UNA proceedings, the district court made up a new standard. [00:06:09] Speaker 03: It says customarily fished means more than may have fished, could have fished, or even fished on a rare occasion. [00:06:15] Speaker 03: That's not the law of the case. [00:06:16] Speaker 03: That's not the standard that's been applied to every other treaty time in this case. [00:06:21] Speaker 03: Now, Judge Bold explained that included within usual grounds custom stations are [00:06:28] Speaker 03: areas that every member of a tribe fished from time to time at and before treaty times, whether or not other tribes fished there, and however far from the then-usual habitat of the tribe. [00:06:39] Speaker 03: Not once does that basic standard even appear in this order. [00:06:44] Speaker 03: And Judge Bolt also explained in Final Decision 1 that excluded from customary fishing areas are locations that are unfamiliar, locations that are used infrequently at long intervals or on extraordinary occasions. [00:06:58] Speaker 03: And I think sub-proceeding 97-1, which is the Muckleshoe clarification from 1997, goes into that further and further illuminates why Judge Martinez's recitation there, again without citations, to any of Judge Bolt's standards or any other law of the case explained why Judge Martinez got it wrong. [00:07:19] Speaker 03: So in 97-1, the court said that phishing that may have occurred from time to time and before treaty times or phishing that may have occasionally occurred [00:07:28] Speaker 03: is sufficient to support a UNA finding. [00:07:30] Speaker 03: What we have here from the district court directly contradicts that. [00:07:35] Speaker 03: We also have an issue when it comes to the evidentiary standard that Judge Martinez applied here. [00:07:41] Speaker 03: The court referred to both a substantial evidence standard without defining exactly what that is, as well as an ordinary preponderance standard. [00:07:50] Speaker 03: It has been the law of the case since final decision one that a relaxed preponderance standard applies, not some undefined substantial evidence standard as the district court used it here. [00:08:01] Speaker 03: And the district court also aired [00:08:04] Speaker 03: in failing to give due consideration to the fragmentary nature of the evidence available in these cases. [00:08:11] Speaker 03: And you can see that when it evaluated the evidence Stillaguamish presented at trial in silos referring to non-travel evidence or villages or presence or general travel evidence. [00:08:28] Speaker 03: Now every other tribe in this case has had the [00:08:31] Speaker 03: benefit of the district court giving the due consideration to the fragmentary nature of the evidence here. [00:08:37] Speaker 03: And the district court did not give that to Stillaguamish in this case, as it was required to. [00:08:42] Speaker 03: Again, it evaluated all of the evidence Stillaguamish presented at trial in silos, as opposed to looking at the inferences that can be drawn from the body of evidence as a whole. [00:08:56] Speaker 03: Now, the district court also aired in its statement regarding the evidentiary significance of treaty time villages. [00:09:04] Speaker 03: The district court statement regarding the location of treaty time villages and territory is erroneous in light of both the law of the case as set forth by Judge Bolt until now. [00:09:16] Speaker 03: So it's the law of the case that the district court presumes or at the very least draws a reasonable inference that a tribe customarily fished in water bodies located within its territory or waters that were adjacent or subadjacent to [00:09:30] Speaker 03: its treaty time villages. [00:09:32] Speaker 03: And this has been the law of the case since final decision one. [00:09:35] Speaker 03: In final decision one, Judge Bolt found that individual Indians had primary use rights in the territories where they resided, and that most groups claimed autumn fishing rights nearest to their winter villages. [00:09:47] Speaker 03: Judge Bolt, again, affirmed and elaborated on this finding in final decision two, where he said that fishing can be presumed based on the location of coastal and river villages. [00:09:59] Speaker 03: Judge Bolt again stuck with this finding in 80-1, and then the district court later in subproceeding 89-3. [00:10:06] Speaker 03: And Judge Bolt's presumption or reasonable inference here makes sense, not only because, of course, tribal people would fish where they lived at and before treaty times, but because these findings are based on the expert opinions of Dr. Lane. [00:10:20] Speaker 05: Is this, is the evidence that you brought forward at trial in any sense new evidence, or is this evidence that was sort of available really over the last 50 years? [00:10:30] Speaker 03: The evidence that Stilagomash presented at trial is new. [00:10:33] Speaker 03: It was not entered in final decision one. [00:10:36] Speaker 05: Now, the... Well, it may not have been entered in that decision, but some of it is fairly dated. [00:10:42] Speaker 05: Frankly, all of it is fairly dated. [00:10:44] Speaker 03: As is most of the evidence considered in these types of cases. [00:10:48] Speaker 05: Right. [00:10:49] Speaker 05: I guess I'm wondering why... Was there any effort by your clients to try to make this case at some point earlier before now, 50 years later? [00:10:57] Speaker 03: At times, but that doesn't affect the posture at which we are here today. [00:11:01] Speaker 03: The court has maintained continuing jurisdiction over this case, and whether or not Stillaguamish decided to adjudicate the remainder of its usual and custom fishing grounds 10 years ago or 50 years ago should not affect the standard that is applied to Stillaguamish today. [00:11:18] Speaker 05: Is there some point at which the continuing jurisdiction should end? [00:11:24] Speaker 03: That issue is not before the court in this case. [00:11:27] Speaker 05: Well, I mean, we have an obligation to make sure we have authority to grant what you're asking. [00:11:33] Speaker 05: And we're talking about a 50 year decree. [00:11:36] Speaker 05: I think the Supreme Court has told us we need to keep an eye on these kinds of injunctions that last so long because federal courts can't be essentially running or can't be serving as state agencies. [00:11:47] Speaker 05: So is there a point at which you'd agree that the injunction does need to sunset? [00:11:52] Speaker 03: maybe at some point in the future, but not at any time prior to when Stillogromish brought this adjudication proceeding for its marine UNA. [00:12:09] Speaker 03: And so I think it's notable that the district court has found in every instance that tribes with villages on or near a shoreline at and before treaty times [00:12:18] Speaker 03: the people who live there customarily fished in the adjacent or sub-adjacent waters, that is until this case. [00:12:24] Speaker 03: Or put another way, the district court has never found that a tribe with members living on or near a shoreline at and before treaty times did not fish in the waters adjacent or sub-adjacent to their winter villages or within their territory. [00:12:37] Speaker 03: And that makes sense. [00:12:39] Speaker 03: And the reason we don't have a finding like that is because it would be contrary to the law of the case here. [00:12:44] Speaker 03: So because the district court applied an erroneous view of the evidentiary significance of the location of treaty time villages, as well as the customarily fish standard, the district court's findings of fact are inconsistent with the law of the case and otherwise violate law of the case. [00:13:04] Speaker 03: Put another way, all these findings of fact in this order and the conclusions of law as a result rest on erroneous view of the law. [00:13:11] Speaker 03: And for that reason, this court must set aside those findings of fact [00:13:16] Speaker 03: and reverse. [00:13:18] Speaker 03: Now, the district court also got it wrong when it came to the basic, usual, and accustomed element of at and before treaty times. [00:13:25] Speaker 03: For the first time in the history of USC Washington here, the district court required direct evidence of fishing at treaty times. [00:13:35] Speaker 03: Now, it's always been the law of the case that tribes may rely on direct evidence, reasonable inferences, and indirect evidence from documentary exhibits, expert testimony, and other relevant sources to show the probable location of their UNAs. [00:13:49] Speaker 03: Never before has a tribe been required to bring just direct evidence of fishing at treaty times. [00:13:56] Speaker 03: So here, the district court erroneously narrowed the relevant time period and gives more weight to- Council, where did the district court require only direct evidence? [00:14:06] Speaker 03: when it talks about evidence of phishing. [00:14:10] Speaker 02: But we also don't know... Can you give me a paragraph or a page? [00:14:13] Speaker 02: I'm really not following this. [00:14:21] Speaker 03: I believe that would be on... One moment, Your Honor. [00:14:46] Speaker 03: That would be second paragraph of page three. [00:14:54] Speaker 02: Because on paragraph five on page four, when he criticizes the testimony of Dr. Friday, which is your expert, your principal expert, he says Dr. Friday did not provide any direct evidence, indirect evidence, nor any reasonable inference. [00:15:09] Speaker 02: So the district court has referred to direct evidence, but he's also referred to indirect evidence. [00:15:13] Speaker 02: and referred to inferences of marine fishing activity by the Stilgwamish. [00:15:19] Speaker 02: I don't see what the problem is with that, when you told us that he required direct but wouldn't allow indirect or reasonable inferences. [00:15:25] Speaker 03: Well, and that's the issue here. [00:15:27] Speaker 03: Not only do we have the district court referring to two different evidentiary standards, [00:15:31] Speaker 03: We have the district court interchangeably using the usual and accustomed language set forth by Judge Bolt, but also these more vague, undefined terms like marine fishing activity and its findings of fact. [00:15:42] Speaker 03: And the district court doesn't define what it means. [00:15:45] Speaker 03: Those words are found nowhere in the history of the law of the case. [00:15:48] Speaker 03: So this just needs to be set aside and sent back for further clarification. [00:15:52] Speaker 03: It's very difficult on this order to have meaningful appellate review. [00:15:55] Speaker 02: I understood marine here to refer to areas that were likely to include saltwater. [00:16:01] Speaker 02: Because the original Bolt decision suggested that your clients were fishing on the rivers rather than out in the sound. [00:16:12] Speaker 02: And so when he refers to marine fishing, is that not a reasonable inference here? [00:16:15] Speaker 02: Isn't that what you're asking for? [00:16:17] Speaker 02: You're not looking to extend the area of freshwater fishing. [00:16:22] Speaker 02: You're looking to get into the sound and go all the way to British Columbia. [00:16:28] Speaker 02: Wouldn't that be considered marine fishing? [00:16:30] Speaker 03: Well, Stillaguamish is not looking to extend its UNA all the way up into British Columbia. [00:16:36] Speaker 03: However, again, that's one of the issues with the order, is we have to make assumptions as to what the district court meant when it used these certain terms that otherwise have no history. [00:16:47] Speaker 02: I'm not much of a fisherman. [00:16:49] Speaker 02: But that term, marine fishing, doesn't strike me as particularly surprising. [00:16:54] Speaker 02: That feels like that has a fairly common definition. [00:16:58] Speaker 02: So I guess I'm not sure why the district court is in error here for not having spelled all of this out. [00:17:05] Speaker 03: Because marine fishing activity is, I think, more general, which gets us to the clearly erroneous standard here. [00:17:13] Speaker 03: So let's look at finding impact number nine when it comes to the travel evidence. [00:17:20] Speaker 03: The district court said that when Stillaguamish presented evidence of travel all the way up north to Victoria and all the way down south to Olympia, that didn't include any direct evidence, indirect evidence or reasonable inferences of marine fishing activity. [00:17:35] Speaker 03: If we look at that general language, it seems to be more general and broader than maybe the more restricted usual and accustomed language that Judge Bolt used in final decision one. [00:17:49] Speaker 03: And based on the law of the case and Dr. Lane's opinions alone, that [00:17:55] Speaker 03: language is clearly erroneous here because it is the law of the case that all Indians fished as they traveled. [00:18:01] Speaker 03: Judge Bolt said that in final decision one, we have that in sub proceeding 89.3, as well as 80-1. [00:18:08] Speaker 03: And so based on the law of the case and Dr. Lane's opinions alone, the fact that still a Gramish was traveling at and before treaty times necessarily means they were fishing along the way. [00:18:16] Speaker 03: Now whether or not that travel evidence [00:18:19] Speaker 03: in conjunction with the other evidence that Stillagomish presented at trial satisfies that UNA standard is a slightly different question. [00:18:27] Speaker 03: But based on the language the district court used here, that finding a fact is not clearly erroneous. [00:18:33] Speaker 03: I'd like to reserve the rest of my time. [00:18:34] Speaker 05: OK. [00:18:35] Speaker 05: And we'll give you a little more time. [00:18:36] Speaker 05: This is a complicated case. [00:18:37] Speaker 05: Thank you. [00:19:05] Speaker 01: Good morning. [00:19:07] Speaker 01: May it please the court, David Hawkins, General Counsel for the Upper Skagit Indian Tribe. [00:19:11] Speaker 01: With me today, Mason Morissette, attorney for Tulalip, longest standing attorney in US v. Washington, Emily Haley with the Swinomish, Tyler Farmer, and Ariel Martinez, co-counsel for Upper Skagit. [00:19:26] Speaker 01: The responding tribes have divided the labor in this appeal. [00:19:29] Speaker 01: Upper Skagit will take 10 minutes to address Judge Martinez's correct application of Rule 52 to the proceedings below, and Swinish will use 10 minutes to clarify how the actual facts mandate affirming Judge Martinez's order. [00:19:45] Speaker 01: As this court is aware, at the beginning of this case, Upper Skagit moved for dismissal based on its belief that the court lacks subject matter jurisdiction. [00:19:56] Speaker 01: Judge Martin has appropriately denied its request based on his determination that the finding of March 10th, 1976 obligated him to provide Stillaguamish the opportunity to prove its marine water UNA. [00:20:15] Speaker 01: Accordingly, the court proceeded under its jurisdiction outlined under paragraph 25A6. [00:20:22] Speaker 01: And at the close of their case in chief, [00:20:25] Speaker 01: Having failed to present any historical or expert testimony that demonstrated by a preponderance of the evidence that Stillaguamish customarily fished from time to time in the claimed waters at and before treaty times, Judge Martinez appropriately granted Upper Skagit's 52C motion. [00:20:47] Speaker 05: So I want to ask you the same question I asked Ms. [00:20:49] Speaker 05: Blackhorse, which is, is there any point at which this injunction, this decree, needs to be concluded? [00:20:55] Speaker 01: There is absolutely no point in time, Your Honor. [00:20:58] Speaker 01: Treaties are the law of the land. [00:21:01] Speaker 05: Well, treaties are the law of the land, but an injunction doesn't usually last for 50 years to be implemented in sub-proceedings like this. [00:21:09] Speaker 01: That is correct, but there have been, the precedent as it relates to treaties and laches is applicable here. [00:21:17] Speaker 01: The right for a tribe to enforce its treaty in US v. Washington upon the discovery of new evidence, as it relates to their UNA in particular, cannot terminate. [00:21:29] Speaker 01: That would limit this effect of the treaty. [00:21:32] Speaker 01: And therefore, keeping US v. Washington open in order to effectuate the treaty in that regard is necessary. [00:21:40] Speaker 05: The other elements of US v. Washington also- I mean, the case began as a dispute between [00:21:45] Speaker 01: tribes in the state of washington now it seems that the disputes are really between tribes that's actually not true your honor there are many times when there's issues of fisheries management that come up which is a provision of paragraph twenty five eight four i believe and that allows the quick the tribes in the state to enter into negotiations sometime invoking the court's decision [00:22:07] Speaker 01: or jurisdiction, but frequently just that mere authority allows for those negotiations to occur. [00:22:13] Speaker 01: Were that to be taken away, it's hard to say what would happen as it relates to the management of this critical resource. [00:22:19] Speaker 01: Therefore, the ongoing jurisdiction of US v. Washington is absolutely fundamental to the exercise of the tribe's treaty rights going forward and its capacity to manage that valuable resource upon which it depends. [00:22:35] Speaker 01: I would like to point out, and I have more in regards to the applicable law here, but Your Honor pointed it out for me. [00:22:44] Speaker 01: Judge Martinez articulated it succinctly and to the point. [00:22:49] Speaker 01: The mere fact that he didn't provide a citation is meaningless. [00:22:52] Speaker 01: He recited word for word where it is 38 F sub 412 at 332, 348, and 356. [00:23:03] Speaker 01: The omission of the citation is not fatal to this order. [00:23:07] Speaker 01: as it relates to the findings of fact. [00:23:09] Speaker 01: Let's keep in mind here the burden that they have. [00:23:12] Speaker 01: The Anderson case, fundamental case, as it relates to their burden to overturn a 52C motion. [00:23:19] Speaker 01: That case says that it has to be clearly erroneous. [00:23:24] Speaker 01: If there are two different interpretations of the issues and the judge finds a reasonable one, even if you find that to be not what you would have found, it has to be upheld. [00:23:34] Speaker 01: I guess part of the difficulty here is that the findings of fact are so limited. [00:23:38] Speaker 01: That's not Judge Martinez's fault. [00:23:42] Speaker 01: Quite frankly, he points out in his order why they're limited. [00:23:45] Speaker 01: They're limited because of lack of evidence. [00:23:47] Speaker 01: There was no new relevant evidence presented in this case. [00:23:51] Speaker 01: All of the relevant evidence had already been considered by Judge Bolt. [00:23:55] Speaker 01: All of the evidence, relevant evidence, had been considered by Dr. Barbara Lane. [00:24:00] Speaker 01: When you ask if it's in the record, look at Barbara Lane's report. [00:24:04] Speaker 01: Look at the evidence in final decision one. [00:24:06] Speaker 01: Dr. Snyder, Carroll, all of the evidence that they cite to is contained in Barbara Lane's report and the existing underlying record from final decision one. [00:24:18] Speaker 01: That's why, quite frankly, we think that Tulalip's request to dismiss the action for lack of subject matter is appropriate now. [00:24:28] Speaker 05: Well, there's parts of the, you know, there's certainly parts of the Barbara Lane testimony that I think support your position, but there are other parts that, you know, just weren't discussed in the order below that seem more supportive of the other side, right? [00:24:41] Speaker 05: I mean, I'll read you one, right? [00:24:43] Speaker 05: This is, [00:24:43] Speaker 05: from Dr. Lane that the Port Susan area was a saltwater area. [00:24:48] Speaker 05: There's documentation from the earlier part of this century that says that those were inhabited by Stillaguamish people and were called Stillaguamish villages. [00:24:56] Speaker 05: I'm sure you have a response to that as well as others, but it's not set forth in the findings. [00:25:01] Speaker 01: It's not set forth in the findings because it's not determinative here. [00:25:07] Speaker 01: Even though Barbara Lane said that, what does her final report say? [00:25:12] Speaker 01: Her final reports limit them to the river. [00:25:14] Speaker 01: So the very fact that she was aware of that information but then found that they were a riverine tribe demonstrates the significance or lack of significance of that statement. [00:25:25] Speaker 05: Well, how about Dr. Riley, right? [00:25:26] Speaker 05: There's indication of the Siligwamish utilizing Kamano Island. [00:25:32] Speaker 01: Dr. Riley's information was also known by Dr. Barbara Lane. [00:25:36] Speaker 01: This is not new information. [00:25:38] Speaker 01: That information was provided for and Judge Boat was aware of it. [00:25:42] Speaker 01: He considered it and again limited it to the river. [00:25:45] Speaker 01: Was there any new information though in any of this? [00:25:48] Speaker 01: I suppose the shell middens could be considered new information, but the shell middens, Judge Martinez addressed and found them to be utterly insignificant and without any evidentiary bearing on the issue as to whether or not there was fishing activity in the waters at issue. [00:26:05] Speaker 05: Is there any prior order in this decree that goes over some of these? [00:26:09] Speaker 05: And there's many other ones I could have read out. [00:26:12] Speaker 05: that indicates presence of the still-agglomish people, particularly in the areas of Warm Beach, Port Susan, Lower Skagit Bay. [00:26:21] Speaker 05: Is there any prior order that goes through this evidence that I'm raising? [00:26:24] Speaker 05: I mean, you say it was presented to Judge Bolt. [00:26:27] Speaker 05: That may well be, but is there any judicial decision that lays all of this out? [00:26:32] Speaker 01: I don't know off the top of my head where there's a specific order that lays it out, addresses each piece of the evidence that you're reciting. [00:26:40] Speaker 01: But the fact that that evidence was submitted and Judge Bolt limited their fishery to a river is indicia that it was. [00:26:48] Speaker 05: Right, but it seems that Judge Bolt also indicated that some of these things weren't necessarily set in stone because they could be brought back before him in a sub proceeding, kind of like the one we have here. [00:27:01] Speaker 01: I think there's a difference. [00:27:04] Speaker 01: When there's ambiguity in a tribe's UNA, then the jurisdiction is that a tribe has the ability to come forward and say, there's ambiguity here. [00:27:14] Speaker 01: We want to clarify that ambiguity. [00:27:16] Speaker 01: If the court finds their ambiguity, then additional evidence can be looked at in order to ascertain Judge Bolton's intent. [00:27:22] Speaker 01: That's not what's happening here. [00:27:24] Speaker 01: They're not claiming that there was ambiguity in the original finding. [00:27:28] Speaker 01: They're saying, we're claiming a new area. [00:27:32] Speaker 01: And that new area requires new evidence. [00:27:35] Speaker 01: They did not present new evidence. [00:27:37] Speaker 01: That's why under 25A6, [00:27:41] Speaker 01: the fact that the all of the evidence previously the significance that has been previously determined now a six is no longer applicable because a six only applies when as it relates to something that has not been previously determined and here at the evidence at issue has been determined yet another date the order on review reads that way though i mean that i understand the position that i'm not sure that judge martinez [00:28:07] Speaker 05: Just judging from the order, conceptualize this as saying there's a lot of old evidence, I'm going to park that off to one side, all I'm looking at is anything that's new and hasn't ever been considered in these proceedings. [00:28:18] Speaker 01: Your Honor, I would agree 100%. [00:28:20] Speaker 01: I think that that's a subject matter jurisdiction argument. [00:28:25] Speaker 01: What Judge Martinez focused on was the actual evidence itself and the evidentiary significance of that evidence. [00:28:33] Speaker 01: And upon his review of that evidence, determined it did not meet the standard to prove UNA. [00:28:38] Speaker 01: And he did that in alignment with Anderson. [00:28:41] Speaker 01: This is important. [00:28:42] Speaker 01: He gave the other side the opportunity to present findings of facts, conclusions of law. [00:28:47] Speaker 01: He did not adopt those, just like the district judge in Anderson didn't adopt those. [00:28:51] Speaker 01: Why not? [00:28:52] Speaker 01: to establish that he carefully considered the evidence himself and drafted the findings of fact, just as a district judge in Anderson did. [00:29:02] Speaker 01: Your Honor, I see I'm out of time. [00:29:03] Speaker 01: I'm happy to entertain more questions. [00:29:07] Speaker 05: Why don't we go ahead and hear from your co-counsel. [00:29:09] Speaker 05: Thank you. [00:29:09] Speaker 05: Thank you. [00:29:26] Speaker 04: Good morning, Your Honors, and may it please the court. [00:29:40] Speaker 04: I'm Emily Haley on behalf of the Appellees, and with me today is Dave Bruce, our outside counsel for the Swinomish Indian tribal community. [00:29:51] Speaker 04: Still a Guamish [00:29:53] Speaker 04: means river people. [00:29:56] Speaker 04: But in this case, Stillaguamish claims it was actually a saltwater tribe that occupied miles and miles of marine shorelines and fished throughout the Salish Sea, traveling along the way. [00:30:08] Speaker 04: This is false, a fantasy. [00:30:11] Speaker 04: There's no evidence to support it and plenty to refute it. [00:30:16] Speaker 04: And this is all because Stillaguamish now wants to fish places it didn't live, it didn't travel, [00:30:22] Speaker 04: and it didn't fish at treaty time. [00:30:25] Speaker 04: The district court rejected Stillaguamish's claims, and this court should affirm for three reasons. [00:30:33] Speaker 04: First, as Judge Bybee noted, Judge Martinez determined that Stillaguamish was an upriver tribe with upriver fisheries. [00:30:46] Speaker 04: Evidence of customary fishing is required, and Stillaguamish did not come forward with any such evidence, and its expert repeatedly conceded that no such evidence exists. [00:30:58] Speaker 04: And third, Stillaguamish has not met its heavy burden to demonstrate that the findings were clear error, that additional findings are required, or that the court misunderstood or misapplied the law. [00:31:12] Speaker 04: Turning to the first point, Stillaguamish was an upriver tribe with upriver fisheries. [00:31:18] Speaker 04: And we know that because every single primary source, secondary source, and expert other than Dr. Friday tells us that. [00:31:25] Speaker 05: I don't know that the record was that conclusive. [00:31:27] Speaker 05: I think Stillaguamish put forward some evidence, particularly on the parts of this territory that we're talking about. [00:31:34] Speaker 05: They're more on the eastern side. [00:31:37] Speaker 05: So what's the response to all that evidence? [00:31:40] Speaker 05: the evidence with respect to warm each year on our warm beach and and kimono islands i mean there there's lots of statements by experts on the quite old that indicates there may have well have been villages or other presence there [00:31:53] Speaker 04: So the evidences to Warm Beach is Dorsey's affidavit. [00:31:58] Speaker 04: He identified two small village or other sites that were south of the Stillaguamish River. [00:32:06] Speaker 04: Lane and Snyder, then Pick, rely on that affidavit to make statements that Stillaguamish occupied Warm Beach. [00:32:15] Speaker 04: But there was significant evidence introduced at trial that contradicted that. [00:32:20] Speaker 04: We have Hancock and Wilson. [00:32:22] Speaker 04: who traveled through the area immediately prior to the treaty and did not notice those villages, did not see those villages. [00:32:29] Speaker 04: We have ICC findings that all of the locations in Dorsey's affidavit significantly post-dated the treaty. [00:32:36] Speaker 05: But none of this, I mean, none of this is discussed in the order that's on review. [00:32:44] Speaker 04: Not specifically, Your Honor, but if you look at finding of fact six, it addresses the evidence related to Quadsac. [00:32:51] Speaker 04: And Dr. Friday testified that the primary basis for his opinion that Stillawamish customarily fished the disputed waters at treaty time was his opinion that Stillawamish occupied the Quadsac area and the marine shorelines adjacent to there, namely Southern Skagit Bay, Kameno Island, and Port Susan. [00:33:16] Speaker 04: What the district court found on that is that based on all of the evidence that came forward about territory, about villages, that that was inconclusive, meaning that he considered it and he found that it was inconclusive. [00:33:28] Speaker 04: It did not, Siligwamish did not meet his burden to demonstrate that it actually occupied those areas. [00:33:38] Speaker 05: I guess the question in all of this, you know, we don't expect district courts to write encyclopedias and this is a really complicated, long-standing lawsuit. [00:33:47] Speaker 05: On the other hand, there are lots of statements by experts and in documents indicating villages and presence and even fishing in some of these disputed areas. [00:33:56] Speaker 05: And this is a massive record and not much of this is laid out in a decision on review. [00:34:04] Speaker 04: So I'll respond to that in two points, Your Honor. [00:34:07] Speaker 04: First, with respect to kind of whether the findings are sufficient. [00:34:10] Speaker 04: The findings are brief, but they are sufficient under Rule 52C. [00:34:15] Speaker 04: What's required under Rule 52C is that the court make the basis for its decision clear and that it address each of the key factual issues. [00:34:25] Speaker 04: And the court did that here. [00:34:27] Speaker 04: In finding five, it found that there was no direct, indirect, or reasonable inference of phishing. [00:34:33] Speaker 04: It found that there was no evidence to support Dr. Friday's speculation that Stillaguamish was like the coastal tribes and would have fished the disputed waters. [00:34:43] Speaker 04: In finding six, he found that all of the evidence related to occupancy of marine shorelines was inconclusive. [00:34:51] Speaker 04: In finding seven, he found that the midden evidence was irrelevant because there was no evidence as to when those middens were created or who created them. [00:34:59] Speaker 05: What do you do? [00:35:00] Speaker 05: I mean, here's just another one. [00:35:02] Speaker 05: Dr. Walker, do you have an opinion as to whether the Stillaguamish people fished in Port Susan at treaty times? [00:35:08] Speaker 05: Answer, I think they fished in Port Susan, yes. [00:35:11] Speaker 05: I mean, I'm sure you have a response to that, but those are the kind of things I'm seeing in the record and trying to make sense of. [00:35:17] Speaker 04: Yes. [00:35:18] Speaker 04: I mean, there certainly are statements from various people saying that Stillaguamish may have fished in Port Susan. [00:35:26] Speaker 04: There's statements to that effect from Lane, from Snyder, from Walker, from Riley. [00:35:31] Speaker 04: None of those statements are based on any underlying evidence actually documenting that there was fishing there. [00:35:37] Speaker 04: And all of those statements contradict Stillaguamish's own experts, Dr. Lane and Dr. Snyder, who studied the Stillaguamish in great depth in order to testify in front of the ICC and in order to testify in the original [00:35:54] Speaker 04: trial in this case, and both of those experts concluded that Stillaguamish was an isolated upriver tribe with upriver fisheries, that it was not oriented to the salt whatsoever, and that it had no need to leave its river because the river met all of its needs. [00:36:11] Speaker 04: And so while there are isolated statements in the record, they're not sufficient to overcome [00:36:18] Speaker 04: the formal and specific opinions of Dr. Lane and Dr. Snyder when they were asked specifically to look at Stillaguamish territory and specifically to look at Stillaguamish fishing practices at treaty time. [00:36:31] Speaker 02: Dr. Lane has a report that's accepted in 1974, is that right, in the bolt one decision? [00:36:37] Speaker 02: That's correct. [00:36:38] Speaker 02: And then later in 1983 in a subsequent decision? [00:36:40] Speaker 02: That's correct. [00:36:41] Speaker 02: Okay, and Snyder, is that also in the original, is that in bolt one? [00:36:45] Speaker 04: Yes, she does give a deposition in Bolt 1. [00:36:50] Speaker 02: Okay. [00:36:51] Speaker 02: And now, for example, the evidence in the Dorsey affidavit, the Dorsey affidavit, I believe is dated 1926? [00:36:58] Speaker 04: That's correct, Your Honor. [00:36:59] Speaker 02: And was that evidence available to Dr. Lane, Dr. Snyder, when they testified originally in Bolt 1? [00:37:04] Speaker 04: Yes, it was. [00:37:07] Speaker 04: So the Dorsey affidavit is actually appended to Dr. Lane's report on the stillaguamish, specific to the stillaguamish. [00:37:16] Speaker 04: That's USA 28. [00:37:20] Speaker 04: And the citation for that is 6SER 1236 to 1265. [00:37:27] Speaker 02: So the Dorsey evidence was not new. [00:37:30] Speaker 02: This was before judgment. [00:37:30] Speaker 02: It was not new. [00:37:32] Speaker 04: It was not new. [00:37:33] Speaker 04: It was also the primary basis for Sally Snyder's opinions and testimony and maps in the ICC related to Stillawamish territory. [00:37:44] Speaker 04: She used the Dorsey affidavit as well as some information from other informants [00:37:49] Speaker 04: to essentially try to identify all of the treaty time sites for the Stillaguamish and map that out. [00:37:57] Speaker 04: The only two that were near marine waters were the two Dorsey sites identified south of the Stillaguamish River in Port Susan. [00:38:05] Speaker 04: She didn't identify any Stillaguamish villages, no-use sites anywhere in Skagit Bay, Deception Pass, Comano Island. [00:38:13] Speaker 04: Holmes Harbor, Penn Cove, any of the other disputed waters? [00:38:20] Speaker 02: I went through Dr. Friday's, much of Dr. Friday's testimony was lengthy, and I found references to the following. [00:38:26] Speaker 02: So Esther Ross, that was a 1952 proceeding. [00:38:29] Speaker 02: Esther Ross from a 1973 proceeding. [00:38:31] Speaker 02: Sally Oxstein, that was 27 before the Court of Claims. [00:38:35] Speaker 02: Dr. Carol Rigby was an ICC proceeding, 58. [00:38:38] Speaker 02: and 56. [00:38:41] Speaker 02: We've already talked Dorsey. [00:38:42] Speaker 02: There were other things. [00:38:43] Speaker 02: So many of these things are old. [00:38:45] Speaker 02: Did Dr. Friday come up with anything that had not been previously discovered? [00:38:49] Speaker 02: No, Your Honor. [00:38:50] Speaker 02: And so all of this has previously been before, was available to both one and to the experts there, particularly Dr. Lane. [00:39:00] Speaker 04: Absolutely, Your Honor. [00:39:01] Speaker 04: Absolutely. [00:39:02] Speaker 04: There was no new evidence presented in this case, with the possible exception of the midden evidence, which [00:39:08] Speaker 04: the district court found was irrelevant because it was not tied to a tribe and was not tied to any particular date. [00:39:14] Speaker 05: But does any of this, does this matter if it's new or old? [00:39:17] Speaker 05: Because the way I read Judge Martinez's interpretation of the Bolt decision was that Judge Bolt did not believe his decision had specifically determined the entirety of Sila Guamish's UNA. [00:39:31] Speaker 04: That is true. [00:39:32] Speaker 04: The district court [00:39:34] Speaker 04: You know, the respondents filed motions to dismiss for lack of jurisdiction on grounds that Judge Bolt had specifically determined the Stillawamish's UNA and limited them to the river. [00:39:43] Speaker 04: Those motions were denied. [00:39:45] Speaker 04: Tulalip has, you know, our position on that has not changed. [00:39:49] Speaker 05: Tulalip has briefed it, but we're... So you think Judge Martinez was just sort of wrong right out of the gates and considering evidence that was or could have been presented earlier? [00:40:00] Speaker 04: I do think that that's right, Your Honor, because all of the evidence was already in front of Lane, in front of Snyder. [00:40:09] Speaker 04: The Ross testimony, you know, Esther Ross testified in the original trial in this case. [00:40:15] Speaker 04: So all of that was before Judge Bolt. [00:40:17] Speaker 04: All of the information that Lane relied on was in front of Judge Bolt. [00:40:22] Speaker 04: He considered all of that information and ultimately concluded that the tribe was limited to the river. [00:40:28] Speaker 04: And in this case, there's no new evidence that would lead to a different conclusion. [00:40:33] Speaker 04: And in fact, it didn't lead to a different conclusion because Judge Martinez found that the evidence was insufficient. [00:40:42] Speaker 00: question. [00:40:42] Speaker 00: I realize we may have exceeded your time, but Judge Press doesn't object. [00:40:51] Speaker 00: I would like to pose a question. [00:40:54] Speaker 00: It's a practical question. [00:40:58] Speaker 00: In a case such as this, where the court has exercised continuing jurisdiction and had a great many sub proceedings, [00:41:12] Speaker 00: If a judge wanted to review the full record before making a decision in this case, would the judge have to review not just what was cited by the parties in their briefs, would they have to review all of the sub proceedings that have followed both? [00:41:38] Speaker 04: If I'm understanding your question correctly, Judge Gold, I do not think that somebody would need to look into the record in every single sub-proceeding because most of those sub-proceedings relate to particular tribes, UNAs, and particular evidence and reasonable inferences that can be drawn. [00:42:01] Speaker 04: What does carry over from sub-proceeding to sub-proceeding is the legal principles and the law of the case. [00:42:08] Speaker 04: And I think that the law of the case has been, at least as it relates to this case, has been fairly well set out in the briefing. [00:42:16] Speaker 00: Okay, thank you counsel. [00:42:21] Speaker 05: Thank you very much for your argument this morning. [00:42:23] Speaker 04: Thank you. [00:42:35] Speaker 03: So as this court noted, the determination of a tribe's usual and accustomed fishing grounds and stations in a manner consistent with the standards set forth by Judge Bolt in final decision one and the law of case requires analysis of a complex mixture of facts and legal standards. [00:42:53] Speaker 03: In 1990, in the Suquamish case, this court noted that it actually could not think of a more comprehensive and complex case than this one. [00:43:01] Speaker 03: And all the questions the court [00:43:03] Speaker 03: just asked to my colleagues are great questions. [00:43:09] Speaker 03: We don't have any findings from the district court on any of these questions. [00:43:13] Speaker 03: So for this reason, it needs to be sent back. [00:43:16] Speaker 03: So for instance, the questions about Dr. Lane. [00:43:19] Speaker 03: This might be the first order in the history of USC Washington that doesn't mention Dr. Lane. [00:43:25] Speaker 03: And it appears what my colleagues are advancing is that Lane was right about every other treaty tribe except for Stillawamish. [00:43:33] Speaker 03: She said what she said in subproceeding 80-1 and in the other places the court noted. [00:43:42] Speaker 03: And after she submitted her initial report on Stilagwamish in final decision one, she didn't stop researching there. [00:43:51] Speaker 03: You see the court relying on Dr. Lane's opinions in final decision one, final decision two, subproceeding 80-1, all the way to the Shellfish case. [00:44:01] Speaker 03: Her work was not static. [00:44:03] Speaker 03: And the testimony that she offered in final decision one, and in particular 80-1, occurred after she issued that initial report on Stella Gwamish. [00:44:14] Speaker 02: The difficulty that I have with reading Dr. Friday's testimony is that this is a historian talking about historians. [00:44:22] Speaker 02: talking about facts. [00:44:24] Speaker 02: It's kind of a double hearsay problem. [00:44:27] Speaker 02: We don't have Dr. Lane in front of us telling us about her original research and her original documents. [00:44:31] Speaker 02: We have Dr. Friday here, who's compiled all of this evidence from various historians and various reporters over a previous nearly 100 years now. [00:44:42] Speaker 02: Again, the Dorsey affidavit, I think it's 1926, so 98 years ago. [00:44:48] Speaker 02: And he's compiling that, but a lot of this evidence looks like it's already been considered. [00:44:53] Speaker 02: So was there anything new that Dr. Friday contributed to this other than compiling old evidence in a new way? [00:45:00] Speaker 03: Yes, Your Honor. [00:45:01] Speaker 03: So for instance, Dr. Friday discovered some new field notes and accounts from [00:45:09] Speaker 03: Indian agents, among other things, and Dr. Friday is an ethno-historian, and he relied on the same kind of ethnographic, anthropological expert and his... What did the field notes go to? [00:45:21] Speaker 02: What did that show? [00:45:23] Speaker 03: Presence and villages as to Kamino Island. [00:45:30] Speaker 03: And then perhaps as to fishing based on intermarriage in Holmes Harbor. [00:45:36] Speaker 03: And I think another thing that the district court, if you'll allow me. [00:45:39] Speaker 02: This is the Sam Bowich. [00:45:41] Speaker 03: Evidence and perhaps and I don't and I don't know that for sure but enough I could just mention one more thing You know, please go ahead Thank you And another thing the district court critically did not address was the testimony of dr Walker Which was actually to lay lips expert in this case who unequivocally testified that at and before treaty times still a Guamish regularly fishport Susan and parts of lower Saratoga passage and [00:46:05] Speaker 05: I mean, I take it your position is that until this case there has not actually been a definitive accounting of your client's boundaries. [00:46:14] Speaker 05: I mean, that was what Judge Martinez seemed to indicate in one of his earlier orders here where he decided that there wasn't going to be a sort of rule where their rights were frozen and he couldn't then decide. [00:46:25] Speaker 05: He went on to consider this evidence even though it was older evidence that did exist before. [00:46:33] Speaker 03: Correct. [00:46:34] Speaker 03: And we don't know what Dr. Lane came across. [00:46:36] Speaker 03: I mean, there are the documents that she cites both in her general reports as well as her report on Stillaguamish. [00:46:42] Speaker 03: But as to stuff she discovered later, because again, her work wasn't static. [00:46:46] Speaker 03: She didn't stop in 1974 and 1975. [00:46:50] Speaker 03: We don't know. [00:46:52] Speaker 03: And as to the continuing jurisdiction, that's an issue that needs to be decided by the district court after a hearing with all the parties, including the state. [00:47:00] Speaker 00: Council, Judge Gould, if I may ask you a question, the same, it's basically the same question that I asked your friend on the other side of the case. [00:47:12] Speaker 00: In a case like this, when a district court has sub proceedings that have been authorized by the initial opinion and [00:47:24] Speaker 00: US v Washington. [00:47:28] Speaker 00: What does the record in the case encompass in every subproceed? [00:47:36] Speaker 00: So in your subproceeding here, when this subproceeding involving the still of Guamish, [00:47:43] Speaker 00: Would the full record include not just the record that was before Judge Boldt, but the record in all sub proceedings held since then? [00:47:59] Speaker 03: Yes, Your Honor, as relevant. [00:48:03] Speaker 03: And again, that's because the same evidentiary standards and law of the case have been applied to every other tribe, must be applied equally to Stillagwamish. [00:48:13] Speaker 00: And so as a practical matter, I don't know how many sub proceedings there have been, but I know in the last 25 years that I've sat on a great many panels that were hearing sub proceedings. [00:48:30] Speaker 00: So how is a practical matter? [00:48:33] Speaker 00: Is a judge supposed to be aware of all the sub proceedings that have been held and the evidence in them? [00:48:45] Speaker 03: Yes, well there is the record of the case, and the parties can bring the relevant evidence to the attention of the court. [00:49:02] Speaker 03: And again, the district court draws upon those findings of fact. [00:49:07] Speaker 03: And the court most recently explained that in sub proceeding 091. [00:49:12] Speaker 03: This court is not acknowledged again and again. [00:49:14] Speaker 03: This is a complex and comprehensive case. [00:49:17] Speaker 03: And that's just how it is. [00:49:18] Speaker 00: Thank you, counsel. [00:49:22] Speaker 05: That's probably an appropriate way in which to end the argument. [00:49:25] Speaker 05: And I want to thank all counsel and all parties who have submitted briefs for the helpful information that have been provided to the court. [00:49:33] Speaker 05: We're going to take a 10-minute recess, and we will resume with the third case after that.