the honorable ricardo s. martinez - turtle talk · pdf file01.09.2017 · the...

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SKOKOMISH’S REQUEST FOR DETERMINATION

CONCERNING THE SKOKOMISH (OR TWANA)

TERRITORIAL FISHERY (PROPOSED) -

United States of America, et al. v. State of Washington, et al.

No. C70-9213 / Subproceeding: Pending

Skokomish Legal Department

Skokomish Indian Tribe

N. 80 Tribal Center Road

Skokomish Nation, WA 98584

360.877.2100 (Tel) • 360.877.2104 (Fax)

THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, et al.,

Plaintiff(s),

v.

STATE OF WASHINGTON, et al.,

Defendant(s).

No: C70-9213

Subproceeding: Pending

SKOKOMISH INDIAN TRIBE’S

REQUEST FOR DETERMINATION

CONCERNING THE SKOKOMISH

(OR TWANA) TERRITORIAL

FISHERY

(PROPOSED)

I. INTRODUCTION TO REQUEST FOR DETERMINATION

1.1 Skokomish (or Twana) Territory was legally described by George Gibbs

and this Court as:

extend[ing] from Wilkes’ Portage northwest across to the arm of Hood Canal up to

the old limits of the Tchimakum, thence westerly to the summit of the Coast Range,

thence southerly to the head of the west branch of the Satsop, down that branch to

the main fork, thence east to the summit of the Black Hills, thence north and east

to the place of beginning.

United States v. Washington, 626 F. Supp. 1405, 1489 at Finding No. 353 (W.D. Wash.

March 22, 1984) (George Gibbs was a lawyer, ethnographer and secretary to the 1855

Treaty Commission), aff’d, United States v. Washington, 764 F.2d 670 (9th Cir. 1985).

The Skokomish Indian Tribe retains the Treaty right to take fish within the entirety of

Case 2:70-cv-09213-RSM Document 21470-1 Filed 04/26/17 Page 1 of 46Case 2:17-sp-00001-RSM Document 1-1 Filed 04/27/17 Page 1 of 46

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Skokomish (or Twana) Territory, as well as, its primary right. Id.; United States v.

Washington, 384 F. Supp. 312, 376-377 (W.D. Wash. 1974); United States v. Washington,

C70-9213; 12 Stat. 933 art. IV.

1.2 The Squaxin Island Tribe objects to the Skokomish Indian Tribe opening

those portions of Skokomish (or Twana) Territory lying outside of the Hood Canal

Drainage Basin to fishing and to the exercise of Skokomish’s primary right therein. In

particular, the Skokomish Indian Tribe, as part of the annual management process,

proposed opening the East Fork of the Satsop River to subsistence fishing during the 2017-

2018 season. The Squaxin Island Tribe objected to this proposal. Kevin Lyon, counsel for

the Squaxin Island Tribe, in his April 21, 2017 letter, stated that “Squaxin objects to

Skokomish’s claim for usual and accustomed fishing grounds and stations within the

Medicine Creek Tribes’ ceded area, to Skokomish’s contention that it holds an adjudicated

right to those waters within the Medicine Creek Tribes’ ceded area, or that it holds a

‘primary right’ to fish in those waters.” The Squaxin Island Tribe is relying in part on what

it believes are the “most contemporary interpretations of the ceded areas described by the

Treaty of Medicine Creek and Treaty of Point No Point. . . .” This “most contemporary

interpretation” is in direct conflict with the Skokomish Indian Tribe’s reliance on the

“treaty-time interpretation.” The Squaxin Island Tribe, through its counsel, indicated also

that the Skokomish Indian Tribe “risk[s] sanctions,” if it proceeds forward with opening

the East Fork of the Satsop River “prior to filing a Request for Determination. . . .”

1.3 The Jamestown S’Kallam Tribe and Port Gamble S’Klallam Tribe oppose

the Skokomish Indian Tribe exercising its primary right within those portions of


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Skokomish (or Twana) Territory lying outside of the Hood Canal Drainage Basin,

including the Satsop River and its tributary forks.

1.4 The State of Washington reserved its legal defenses to oppose the opening

of those portions of Skokomish (or Twana) Territory lying outside of the Hood Canal

Drainage Basin to fishing, including the Satsop River and its tributary forks.

1.5 To resolve this dispute, the Skokomish Indian Tribe submits this Request

for Determination which contains “a short and plain statement setting forth the factual and

legal basis of the claim for relief” and “a statement of the relief sought by the requesting

party.” United States v. Washington, C70-9213, Dkt. No. 13599 at ¶ 25(b)(3) (Order

Modifying Paragraph 25 of Permanent Injunction). The Request does not include the

following, which is not required or is prohibited: legal argument or the submission of

evidence. Id.; United States v. Washington, C70-9213, Dkt. No. 20254.

II. PARTIES TO REQUEST

2.1 The Skokomish Indian Tribe is the Requesting Party.

2.2 The Squaxin Island Tribe of the Squaxin Island Reservation (“Squaxin

Island Tribe”), Jamestown S’Klallam Tribe, Port Gamble S’Klallam Tribe, and State of

Washington are the Responding Parties.

III. SHORT AND PLAIN STATEMENT AS TO FACTUAL AND LEGAL BASIS

A. Factual and Litigation Summary

3.1 The Skokomish Indian Tribe is a successor in interest to signatory Tribes to

the Treaty of Point No Point of January 26, 1855 (12 Stat. 933) (Ratified March 8, 1859

and Proclaimed April 29, 1859). United States v. Washington, 384 F. Supp. at 376 at

Finding No. 133.


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3.2 In 1974, Judge Boldt initially determined that, “[t]he usual and accustomed

fishing places of the Skokomish Indians before, during and after treaty times included all

the waterways draining into Hood Canal and the Canal itself.” United States v. Washington,

384 F. Supp. at 377 at Finding No. 137.

3.3 On June 17, 1981, the Skokomish Indian Tribe later filed a Request for

Determination of its claim that its pre-treaty occupancy and control over the Hood Canal

drainage area gave it the primary right to control fishing by any other Indian tribe. United

States v. Washington, 626 F. Supp. at 1468.

3.4 In 1982, the Hood Canal Agreement was executed by the Jamestown

S’Klallam Tribe, Lower Elwha Klallam Tribe, Port Gamble S’Klallam Tribe and the

Skokomish Indian Tribe. (Hood Canal Agreement, Ex. A). Robert E. Cooper, Special

Master, recommended approval of the Hood Canal Agreement on February 22, 1983. Id.

And, Walter E. Craig, District Court Judge, approved the Hood Canal Agreement on March

8, 1983. Id.; United States v. Washington, 626 F. Supp. at 1468. This resolved in part the

dispute with Skokomish’s Treaty partners, but did not resolve the dispute with the

Suquamish Indian Tribe. Id.

3.5 After the approval of the Hood Canal Agreement, Robert E. Cooper, Special

Master, conducted a trial “on May 5 and 6, 1983, and on June 6 and 7, 1983.” (Special

Master’s Report, Ex. B at p. 1). The Skokomish Indian Tribe, the Suquamish Indian Tribe

and the United States of America participated at this trial. During this trial, the Court chose

to determine the Treaty-time boundaries of Skokomish (or Twana) Territory, as well as,

the use, occupancy and control thereof.


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3.6 Following the trial, Robert E. Cooper, Special Master, submitted his Special

Master’s Report, which expressly provided that:

After considering the testimony of the witnesses at trial, the documentary evidence

in this proceeding, relevant evidence introduced in earlier proceedings in this case,

and the argument of counsel, I hereby make the findings of fact set forth in the

attached proposed Findings of Fact, Conclusions of Law, and Order, and

recommend that the court enter those . . .

With respect to the findings of fact that are accompanied by citations to the record,

it is not my intention to indicate that the evidence specifically cited is the only

evidence supporting a particular finding or that other evidence not cited that could

support the finding was not considered.

(Special Master’s Report, Ex. B at p. 2). On March 22, 1984, Walter E. Craig, District

Court Judge, by Order of the Court, “fully adopt[ed] the Report and Recommendation,

Findings of Fact, Conclusions of Law of Special Master Robert E. Cooper, dated January

19, 1984.” Id.; United States v. Washington, 626 F. Supp. at 1486.

3.7 Now within these findings, Skokomish (or Twana) Territory was legally

described by the Court, as drawn from the notes of George Gibbs, as:

extend[ing] from Wilkes’ Portage northwest across to the arm of Hood Canal up to

the old limits of the Tchimakum, thence westerly to the summit of the Coast Range,

thence southerly to the head of the west branch of the Satsop, down that branch to

the main fork, thence east to the summit of the Black Hills, thence north and east

to the place of beginning.

United States v. Washington, 626 F. Supp. at 1489 at Finding No. 353 (George Gibbs was

a lawyer, ethnographer and secretary to the 1855 Treaty Commission). Furthermore,

“Gibbs’ description of Twana territory was based on information gathered from Indians at

and before the treaty councils and at contemporaneous meetings. The court f[ound] it to

be the best available evidence of the treaty-time location of Twana territory.” Id.


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3.8 Skokomish (or Twana) Territory, as described by Gibbs, extends well

beyond just Hood Canal. Hood Canal is embraced or encompassed within Skokomish (or

Twana) Territory, being just one small part of the whole. United States v. Washington, 626

F. Supp. at 1489 at Finding Nos. 353 and 354.

3.9 It was also confirmed “that the areas within the Skokomish (or Twana)

territory described by Gibbs were long used and occupied by the aboriginal Twana people.”

Id. at 1489 at Finding No. 354. The Court, additionally, found that “[t]he people occupying

a territory held the primary right to fish in the territory.” Id. at 1490 at Finding No. 356.

The Court concluded that “[t]he aboriginal primary right of the Twana Indians to take fish

within their territory was fully preserved to the Skokomish Indian Tribe by the Treaty of

Point No Point, 12 Stat. 933 (January 26, 1855), as a ‘right of taking fish’ thereunder.” Id.

at 1491 at Conclusion No. 92.

3.10 In 1985, the United States Court of Appeals for the Ninth Circuit later, in

its opinion reaffirming the District Court’s determination, wrote that:

The record supports the court’s finding that at treaty times, the Twana held the

primary fishing right within their territory, and that this right was acknowledged by

neighboring tribes. The court found that the Twana and their treaty-time neighbors,

including the Suquamish, enjoyed peaceful relations founded on marital,

ceremonial and other cultural ties. The customary behavior of treaty-time Indians

generally reflected these common understandings through restraint from intrusion

on or unauthorized use of others’ territories. The court found, however, that the

Twana had readily available means of deterring unauthorized use of their territory,

such as social disapproval, magical retaliation, and possibly physical force.

United States v. Washington, 764 F.2d at 674, aff’g, 626 F. Supp. 1405.

B. Jurisdiction of the Court

3.11 The Skokomish Indian Tribe has satisfied all pre-filing meet and confer, as

well as, mediation requirements of Paragraph 25(b), as evidence in the Ex Parte Motion


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for Leave to Open a New Subproceeding. United States v. Washington, C70-9213, Dkt.

No. 13599 at ¶ 25(b), ¶ 25(b)(1), ¶ 25(b)(2) (Order Modifying Paragraph 25 of Permanent

Injunction). The Meet and Confer was held on November 4, 2015 and did not result in a

settlement. Mediation was later held on April 28-29, 2016 and it too did not result in a

settlement. There is no possibility of settlement. The Parties cannot agree “whether earlier

rulings of the [C]ourt . . . have addressed or resolved the matter in issue in whole or in part.”

Id.

3.12 The Court, thus, may exercise its continuing jurisdiction pursuant to

Paragraphs 25(a)(1)-25(a)(7) of the Permanent Injunction of March 22, 1974, as revised by

the Order Modifying Paragraph 25 of Permanent Injunction dated August 23, 1993. United

States v. Washington, 384 F. Supp. at 419, affirmed, 520 F.2d 676 (9th Cir. 1975);

Washington v. Wash. State Comm’l Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979);

United States v. Washington, C70-9213, (Main) Dkt. No. 13599.

3.13 This Court has jurisdiction under 28 U.S.C. § 1331. United States v.

Washington, 20 F. Supp.3d 986, 1038 (W.D. Wash. July 8, 2013) (“The Hoh and Quinault

. . . contend that the Court does not have jurisdiction over the waters outside the original

case area, which extended only to the three-mile limit. This is incorrect. The Court’s

subject matter jurisdiction in this case arises from the treaties under 28 U.S.C. § 1331. That

jurisdiction extends to all treaty-based fishing . . . .”); (Findings of Fact and Conclusions

of Law and Memorandum Order, United States v. Washington, Sub. No. 09-01, Dkt. No.

369); see also (Amended Judgment, United States v. Washington, Sub. No. 09-01, Dkt. No.

395). Skokomish (or Twana) Territory was also expressly included within the “case area.”

United States v. Washington, 626 F. Supp. at 1489 at Finding No. 353.


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C. Affirmative Defenses

3.14 Furthermore, the Stevens Treaty Tribes, State of Washington and United

States of America are all bound by the prior adjudications in United States v. Washington,

and by any resulting appeals therefrom. United States v. Washington, C70-9213; United

States v. Washington, C70-9213 Dkt. No. 20722 at p. 5: ll. 6-8 (W.D. Wash. 2014) (“Indeed,

a priori limitations on party participation would jeopardize important due process rights,

as it remains a fundamental principle that all parties to a lawsuit are bound by a judgement

or decree within it.”).

3.15 As such, the Skokomish Indian Tribe asserts the following affirmative

defenses against any challenge of these prior adjudications and appeals: res judicata;

collateral estoppel; and issue preclusion.

D. Reservation of Future Claims

3.16 Nothing in this request shall be interpreted, expressly or impliedly, as to

limit the ability of the Skokomish Indian Tribe from bringing future requests for

determination of additional “usual and accustomed fishing grounds.”

IV. REQUEST FOR RELIEF

WHEREFORE, the Skokomish Indian Tribe requests the Court grant:

(A) An Order confirming the Skokomish Indian Tribe’s right to take fish and to

exercise Skokomish’s primary right within those portions of Skokomish (or

Twana) Territory lying outside of the Hood Canal Drainage Basin; and

(B) A preliminary and permanent injunction prohibiting interference with the

Skokomish Indian Tribe’s right to take fish and to exercise Skokomish’s

primary right within those portions of Skokomish (or Twana) Territory

lying outside of the Hood Canal Drainage Basin; and

(C) Such other and further relief as the Court deems just and equitable.


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360.877.2100 (Tel) • 360.877.2104 (Fax)

Dated this 26th day of April, 2017.

s/Earle David Lees, III, WSBA No. 30017





Email: [email protected]

Tel: 360.877.2100

Fax: 360.877.2104

Attorney for the Skokomish Indian Tribe


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360.877.2100 (Tel) • 360.877.2104 (Fax)

CERTIFICATE OF SERVICE

I hereby certify that on April 26, 2017, I electronically filed the Skokomish Indian

Tribes Request for Determination Concerning the Skokomish (or Twana) Territorial

Fishery (Proposed) with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to all parties which are registered with the CM/ECF system.

Dated this 26th day of January, 2017.

s/Earle David Lees, III, WSBA No. 30017





Email: [email protected]

Tel: 360.877.2100

Fax: 360.877.2104

Attorney for the Skokomish Indian Tribe


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FISHERY (PROPOSED) (Exhibit A)







360.877.2100 (Tel) • 360.877.2104 (Fax)

EXHIBIT A

Hood Canal Agreement

Case 2:70-cv-09213-RSM Document 21470-1 Filed 04/26/17 of 46Case 2:17-sp-00001-RSM Document 1-1 Filed 04/27/17 Page 11 of 46

. .. ,. '~

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• • Special Master Robert Cooper

UNITED WESTERN

l r~n'' ~ 19~ . . . . . '~!w. ~• ~ rnr:r~~r r,t"liiP.T

STATES" DISTRICT Qui't.,; :.:: .. ~=~·1/_~-: ···. ·· .... :.-··~! I DIS.TRICT OF WASft:(~.-~_-'!_\L_ -· . __ .. :-~ ... _. -._

UNITED STATES OF AMERICA, } e t al. , )

) Plaintiffs, )

) v. )

) STATE OF WASH!.NGTON, et al., )

) Defendants. - )

) __________________ ._~~~~------>

CIVIL NO. 9213 - Phase I

HOOD CANAL AGREEMENT BETWEEN SKOKOMISB INDIAN TRIBE, POR~ GAMBLE BAND OF KLALLAM INDIANS, LOWER ELWHA BAND OF KLALLAM INDIANS AND JAMESTOWN BAND OF KLALLAM INDIANS

The Skokomish Indian Tribe, Port Gamble .. Band of Klallam

Indians, Lower Elwha Band of Klallam Indians and Jamestown Band

of Klallam Indians··· fh·erein·ax:ter-·referred ·to as "the Stipulating

Pa~ties"] agree-as f61I~wi~-

I.

1. The purpose of this Hood Canal Agreement is to achieve a

mutually acceptable settlement among the Stipulating Parties of

the following ~itig~tiori:

A. Request fQr Determination Re: Primary Right of

Skokornish Indian Tribe in Hood Canal.Fishery, filed June 17, 1981

(hereinafter "Skokomish Primary Right . ..cas.e".)_.

Hood Canal Agreement - ~. L&w Orrac:~• or WlCKWIRE:,LEWIS. GOLDMARK

8: ScHORR ~oo M£nc.&JU) 8t:tU>llfO

S-f1''-8,Wo\-IN070M Q~'4\4

C2QeJ 02~NI003


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• • B. - Request for Determination: Port Gamble Klallam

Usual and Accustomed Fishing Areas, filed August.!!, 1978

(hereinafter "Port.- Gamble Klallam U and A case").

c. Request for Determination: Lower Elwha Klallam

Usual and Accustomed Fishing Areas, filed August 11, 1978

(hereinafter "Lower Elwha Klallam U and A case").

2. It is the intent of the Stipulating Parties to confirm

and preserve the. ·pre-..:..treatyo historical relationship between the

C~allam and Skokomish ~or Twan~) peoples concerning fishing

rights in the Hood Canal fishery. Because of their close inter-

tribal relationship and the fact that historically the Skokomish

Tribe and the Klallam Bands have been able to share the Hood

Canal fishery resources on a mutually acceptable basis, the

Skokomish Tribe and the Klallam Bands have determined that the

best course for them is to settle any differences between them

regarding fishing . .in.Hood Canal by this Agreement rather than by

further litigation-~

II.

BASIS FOR-SETTLEMENT

3. The Skokomish Indian Tribe filed its request for deter-

21 mination of its primar1 right. :ln the. Hood. Canal fishery on

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determination that its .11 treaty fishing rights in Hood Canal and

all the rivers and streams draining into the Canal are primary to

Hood Canal Agreement - .2 L&w Orrseu OP

Wrcxwu~:e.lBwrs. GoLDMARK & ScHORR

000 M&n~ARD BWU~I.WG SZATTJ.Z, WAUIIIOTOII VI»O.


• • 1 the rights of any other tribe which has or claims to have usual

2 and accustomed fishing places there.n Skokomish Tribe's Request

3 for Deterin1natf6"n-:-Re:- :_Primary :Right ·of Skokomish Indian Tribe in

4 Hood Canal Fishery. The Skokomish Tribe also asserts in this

5 proceeding that its primary right "includes the right to regulate

6 or prohibit fishing by other tribes in Hood Canal and all rivers

7 and streams draining into it." Id. The Port Gamble Klallam

8 Band, the Makah Tribe, the Tulalip Tribes of Washington, and the

9 Suquamish Tribe objected to the Skokomish Tribe's .. primary right

10 request.

11 4. The Skokomish Tribe 1 s primary rig_ht requ~st \Yas ini-

12 tiated to protect the Tribe.• s vi tal interests in the Hood Canal

13 fishery. Since time immemo~iali members of the Skpkomish Tribe

14 and.its aboriginal predecessors have relied for their livelihood

IS

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on the Hood Canal fishery. -To·a·ay tne ·s..kokomish Tribe continues

to be entirely dependent on the Hood Canal .. fishery for its catch

be-cause it has no established usual and accustomed fishing places

outside Hood Canal·· ario. th"e. rivers and streams draining into it.

Historically, subetantial numbers of Clallam Indians have also

fished fn Hood ca:lfi.l·.:·a:rla-~rrt··rtve~r-s-··an:a·· ·s-treams draining into it.

Today the Klallam Bands, and particularly the Port Gamble Band of

Klallam Indians, continue ta.have a strong interest in access to

and protection of .. the Hood ·canal fishery.

s. The Stipulating Parties agr~e ·to the entry of the

following ·-findinqs ·of ·fact ·to s-upport.··this agreement:

Hood Canal Agreeme·nt: - ·3 J.A)It OPtJC&II or WICKWIRE. LEWIS. GOLDM.ARR:

& ScHORR ooo M.r.ncAJ~D Bvu.uuro

Sz.o.TTf..B, WJ..8RUIO'J'Qif Sl8104


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• • A. On and before January 6, 1"855, the date the Treaty

of Point-No-Point was executed by its signatories, the

Skokomish Tribe, through its aboriginal predecessors the

Twana Indians;···exercised legitimate territorial control over

the Hood Canal .fishery, including Hood Canal and all rivers

and streams draining into it. This territorial control was

the product of: (1) the proximity of Hood Canal·and its

drainage basi~·l. to. ~h~ wiJ1te_~ v~llages and summer camping and

fishing grounds of .the ';rw~n~ peq·p·le; ( 2.) .. til~ higb.. frequency

of use of ·the ·Hooa··canal aria the· rivers and streams draining

into it by the Twana India11s; (3) a contemporary conception

among the Coast Salish Indians (of whom the Stipulating

Parties are constituent groups) that Hood Canal and the

rivers and streams draining into it were legitimately in the

possession of the Twana people ana subject to.use by others

only upon invitation and permission given by the Twana; (4)

behavior of the Stipulating Parties consistent with a mutual

reco·qni.ti:on· that the Twanas controlled. the Hood Canal

fishery, including Hood Canal ana·all rivers and streams

draining into it.

B. The Clallam Indians, the aboriginal predeces.sors of

the Stipulating Klallam Bands, and the Twana Indians enjoyed

a strong and cordi~l relationship at and before treaty time.

This relationship was unique .in degree to the two peoples and

Hood Canal Agreement - 4 ~w OPr&cs• or

WJcKWIRE, LEwrs. GoLDMARK &ScHORR

GOO H.t.TJU.a» BUU.OUIO S&a.TT~,W.usaUtcncnc oaa04


••

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• • was founded in· a ··common culture 1 mutual_ respect and adm ira-

tion, and resulting marriage and ritual .ties. The Clallam

villages. were ·situated at the mouths of rivers draining into

the Strait of ·Juan. de· ·Fuca •. Each yea·r sfgnificant numbers of

Clallam Indians would travel from· their villages .to sites on

Hood Canal to fish with the Twana. Most, if not all, of

these Clallam visitors _wer.e-'--mat""fi-a.~=-e:-··relaf.ives of Twana

Indians. The Clallam who fished on Hood.CanaL did so with

the understanding_ that the Hood~~-Can·al fishe·ry was Twana

territory. There is no. evidence.that the Twana people ever

attempted to, or did, exclude Clallam fishermen from the Hood

12 Canal fishery, or that any need to do so ever arose. Because

13 of· their shared culture and the perceiV'ed importance of

14 favorable relations between the Clallam and Twana peoples 1 it

15 is likely that the Twana people welcomed and affirmatively

16 encouraged Clallam· fr.iehas ·and marriage relatives to come to

17 the Hood Canal area for fishing, as well.as for socializing

18 and ritual activities. The ClaLlam reciprocated by inviting

19 Twana people to their villages as guests. and relatives.

20 6. The Stipulating Parties hereby agree.to the introduction

21 and consideration by the Court of the following evidence in sup

~ port of the above-stated flndings:

28 A. Dr. Barbara Lane·,- "Anthropological Report on the

24 Identity, Treaty Status and Fisherie·s of the Skokomish Tribe

25 of Indians," Exhibit USA 231

26

Hood Canal Agreement - 5 LAw 07.1'K-&• or WrcKWI RE, Lewrs. GoUJMARK

&SCHORR ::SOO M&nt&RZI BUU.::IJXO

SEATft.IS, WMUUillfOTOX 98104


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• • B. Dr. ·Barbara Lane, "Skokomish Usual and Accustomed

Fishing Places in Bood.Canal: A Supplemental Report 8

(February, 1981), filed on June 17, 1981, as Exhibit A to

Skokomish Tribe•s Request for Determination herein;

c. Deposition of Dr. William w. Elmendorf

(February 25-26, 1982), taken and lodged herein;

D. Dr. William W. Elmendorf, The Structure of Twana

Culture r .~<?!l~ctF.a.J?n;~ _s_~EP~~~~~~. ~?. ! ... 2.; --~-~~~~r9h Studies,

Volume 28, No. 3 (September 1960} (with comparative notes on

the structure of Yurok culture), attached to the deposition

of Dr. Elmendorf as Exhibit 2;

E. All ·prim·ary· arid secondaty · sourc·es to the extent

refe·rred to in. the foregoing documents.

III.

TERMS OF THE .AGREE~fENT.

In consideration of the ·mutual pr.omises contained in this

Agreement, the Stipulating Parties hereby agree as follows:

7. A. The. Skokom~~b Tribe has. the prilna7;y right to fish

in the Hood Canal fishery. As .tJ.~ed in this Agreement, the term

"Hood Canal fishery 11 includes .. all waters .. o.f the Hood Canal south

of a line drawn between Fo.ulweather Bluf.f. and Ole1e Point, and

all rivers and streams·draining into-Hood Canal. The primary

right of the Skokomish Tribe is an aboriginal right of that tribe

confirmed and· preserved.by the Treaty of.Point-No-Point (12 Stat.

Hood Canal Agreement - 6 ~OI'I'te&SOP

WICKWIRE. LEWIS. GOIDMARK 8c ScHORR

ooo M.'nf•IIID Bvn:.DPIO S11.AT1'1.1:. WASI'I'UlOTOJC 981()4.


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• • 933). (See United _States v. Lower Elwha Tribe, 642 F.2d 1141

(9th Cir.), cert. denied, U.S. ___ , 102 S. Ct. 320 (1981).)

B. Because o.f .the close relationship that exists and

has existed between the Skokomish Tribe and the Klallam Bands and

because they have traditionally fished to.gether in Hood Canal

sharing the fishery respurce.s in a mutually acceptable manner,

the Stipulating Parties further agree that north of Ayock Point

on Hood Canal the Skokomish Tribe and the Klallam Bands may exer

cise their respective ~eaty fishing rights ·without any limita-

tion or control whatsoever by any of the Stipulating Parties,

except as the Stipulating Parties may mutually agree by compact

or otherwise. ~1e Skokomish Tribe specifically agrees that it

will not, under any condition· or for any reason whatsoever, exer-

cise or seek to exercise its primary right on Hood Canal north of

Ayock Point, or on the streams and rivers draining into Hood

Canal north of Ayoc;:k po·int, against any __ of the other Stipulating

Parties without its or their express consent.

8. The partie.s. ag·ree ~h~t the usual and accustomed fishing

grounds of· tlie Port Gamble Band- and· ·tower Etwha· Band as set forth

in the "Corrected Ord-er Re: Request :for Determination of Port

Gamble and Lower Elwha Usual and Accustomed .Fishing Places" filed

October 28, 1981, be revised to:·.exclude the Skokomish River and

all of its tributaries from Kla!Lam usual and accustomed fishing

areas. The intent of the parties is ... that the Klallam usual and

Hood Canal Agreement - 7 Ww~I'Zf2.01"

WICKWIRE. LewiS. OOLDMARK 8: ScHORR

DOO MAY'IfAM> Buu.DatO S-..-.TT&.c,Wunn«nox 08l04


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• • accustomed fishing areas shall include all of Boo.d Canal and the

streams draining into Hood Canal except the Skokomish River and

all of its tributaries, but that fishing in Hood Canal and the

streams draining into Hood Canal shall be subject· to. the primary

right of the Skokomish Tribe as set.£orth in paragraph 7 of this

Agreement. To that end, the parties agree ·that findings of fact

341 .and 342 of the Co.urt' s. October 28, 1981, order be revised to

read as follows:

341. · The usual and accustomea· fishing grounds of .. the Port Gamble -Ba.n.a ·a:t ·:Kla1.lain Indians- include the waters of the Strait of Juan de Fuca, and all. the straams draining into the Strait from the Hoko .. River ·.ea·st to the mouth of aooci ·canai. fri "a'ddi tidn--,. the Port Gamble Klallam·Band has· usual and accustomed fishing righ~s.t~ the.Sekiu .River, but the fishing on this river shall be subject to the· control an regulation of the Makah Indian ·Tr"ib.e. ·Furthermore, the us.ual and accustomed fishing grounds of.the Port Gamble Klallam Band include the waters of .. the San Juan Island archipelago and the waters off the west coast.of Whidbey Island. The usual and accustomed fishing grounds _of the Port Gamble Klallam s-and als.o ·incl-ude Hood Canal and all streams draining into Hood Canal except the Skokomish River ana all of ·its tributaries.

342. The usual and accustomed fishing grounds of the Lower Elwha Band of Klallam Indians include, in addition to those determined in the Order of .April 18, 1975, 459 F. Supp. at 1049, and the Order of March 10, 1976, 459 F ~ Sui?"P· ·at 1066;· the waters of the San Juan·!slarid archi~elago and the waters off the west coast of.Whidbey Island and Hood Canal and all st:ream.s·arainrn.g·into Hood Canal except the Skokomish River and all of its tributaries.

Hood Canal Agreement - 8 ~OI'I'ICBSM'

WICKWIRE. LEWIS. GoLDMARK 8c ScHORR

GOO K£nt.a.RD BV1UJL"f0 SBA.TTs.a. w.,...r,oToll' eot04


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• • 9. The parties recognize ·that the Jamestown Band does not

yet have adjudicated usual and accustomed fishing areas and are

currently fishing pursuant to an interim order. The parties

agree that while fishing pursuant to any interim orders, the

Jamestown Band's treaty fishing rights in Hood Canal and the

streams draining into Hood Canal shall be as .follows:

The usual and accustomed fishing grounds of .. the Jamestown Band of .. Klallam Indians include Hood Canal ana· all streams ·crraining into Hood Canal except the Skokomish River and all of its tributaries.

Nothing in this parag-ra-ph shall- have the effect of waiving .or

qualifying any objection to the· final determination of usual and

accustomed fishing areas of-·the Jamestown Band by any of the

other Stipulating Parties •.

10. Resolutions of. the governing bodies of· tlie Stipulating

Parties are attached hereto in support of this Agreement •.

Dated:

Dated:

Dated: 112- I-~

Hood Canal Agreement - 9

al.rpe Council

·~~\~o~ffibie Klallam Band ·

d~wer:-Jd-1 Klallam Band

LAW 0PPSCU OP

WrcKWIRE. LEwrs. GoLDJU.RK & ScHORR

t:IOO .MI.'nfAIU) BCIU..DUfD s-TTu. w,...J.JCOTOat ool04


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• Dated: 111-;;.- Yt:2 -

Dated:

•

Presented by:

EISENHOWER, CARLSON, REHA, HENRIOT &

Gamble

WICKWIRE, LEWIS, GOLDMARK ·& SCHORR - •

[The United. States will file a. separate stat~ent on the foregoj:nq Agre~en·t. 1· __ . _

Dated:


74JY.;;.~ Attorney for Jamestown Klallam Band

'-0n1CU07

WicKWIRE, Lewrs. GoLDKARK & S.CHORR

000 HA~ BVJLDJJOO S&.oLTTLII, Wl.alltNMOJf eDt04


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;;;;,;>_ ---·· · .. ::l --·· •• , .C ."::)

["''"1 '"" •u·u• w , .. ..,...J

RECOMMENDATION OF SPECIAL MAST

Pursuant to the authority conferred upon me by the Amended

order of Reference to Special Master (Primary Right of Skokomish

Indian Tribe in Hood Canal), entered herein on June 13, 1982, I

have reviewed and hereby recommend that the Court approve the

foregoing Hood Canal Agreement to the extent it concerns the pri

mary ri~ht of the Skokomish Tribe in the Hood Canal fishery in

relation to the Klallam Bands named in the agreement,

The matter referred to in paragraph 8 of the Rood Canal

Agreement (dispute concerning location of Klallam usual and

accustomed fishing places in the Hood Canal fishery) has not been

referred to me and is presently pending before the Court.

Accordingly, I make no recommendation concerning the contents of

that paragraph.

Dated

ORDER

Upon review of the foregoing Hood Canal Agreement and con

sideration of the recommendation of Special Master Robert E.

Cooper concerning that agreement, the Court finds that the

agreement represents a fair and equitable resolution between the



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Skokomish Tribe and the named Klallam Bands of the matters iden-

tified therein, and it is therefore

ORDERED that the foregoing Hood Canal Agreement is approved

and the terms thereof are binding upon the parties to the

agreement; and it is

FURTHER ORDERED that the United States submit an appropriate

form.ot order to effect the revision of findings of fact 341 and

342 of the Court's October 28, 1981 Order, as provided by

paragraph 8 of the foregoing Hood Canal Agreement.

Dated /nrrd- -; /9 D '

'

Hood Canal Agreement.- 12

Walter E. Craig United States Distri

~(!ton~"''"' WJCKWIR£, LI!:WIS, GOI.l)N.AI'IK

8.: SoHOI'IJl


Rt. 5, Box 432

WHEREAS, Skokomish Skokomish 17, 1980;

Skokomish Indian Tribe Fisheries Bldg. (206) 877-5213 -Fire Hall (206) 877-5118

SKOKOMISH TRIBAL COUNCIL

RESOLUTION l/82- 'f1

Shelton, WA 98584

the Skokomish Tribal .Council is the governing pody of the Tribe pursuati t to· tl1e Cons ti tuti.on and By-Laws of the Tribe approved by the Secretary of the Interior on March and - ·-·· .--·· - ··

WHEREAS, at the direction of the Skokomish Tribal Council, the Skokomish Tribe 1 ~ att~bn~~ - initiat~~ in t he United States District Court a request for det.ermina·tion of" the Skokomish Tribe's primary treaty right to fish in Hood Canal and all rivers and streams draining into Hood Canal; and ·

WHEREAS, the Port:·- Gariiole ·banci of Klaliarri Indians, the Makah Indian Tribe, the Tulalip Tribes of Washington, and the Suquamish Indian Tribe have all appeared in court and opposed the Skokomish primary right request (and the_ Makah Tribe has subsequently \·li thdrawn its opposition); and

WHEREAS, the Skokomish Tribe has opposed a portion of an order of the court establishing the Port Gamble and Lower Elwba Klallam usual and accustomed fishing_ ~laces in Hood Canal and on rivers and streams draining into HQP~ Canal, and has asked the court to modify its order to exclude from those places the Skokomish . River system and certain other areas; and

-WHEREAS, representatives of the Skokomish Tribe _and the Port Gamble Band_ h_a,ve engaged in negot.iations t.o : settle the disputes concerning the Skokomish primary right and the Port Gamble and Lower Elwha usual and accustomed fishing places, and have proposed adoption of the 11 Hood Canal Agreement Between Skokomish Indian Tribe, Port Gamble Band of Klallam Indians, Lower Elwha Band of Klallam Indians, and Jamestown Band of ~la_l.l.~_Indians" (attached to this resolution); and .... ____ ., ____ _ - - -·- -···---·---

WHEREAS, t he Hood· Canal Agreement provides that, between the Skokomish Tribe and the Klallam bands, the primary_ fishing right of the Skokomish Indian Tribe shall e~t~~~ - thr6~grio~i £he Hood Canal fishery, but that the Skokomish Tribe shall not ~nforce · the primary right against the · Klallam bands north of Ayock Point; and the Hood Canal Agreement also settles the dispute concerning the l0cation or the Por•t ~; :~ : nt> 1 1; nnd Lower El\..rha usua l a nd a ·c cus tomed. fi shing · places b y pro vi di nt:, t ha t t he order esta blishing those places : should be ·modified to exclude the Skokomish River and all of its tributaries from the Klaliam usual and accustomed fishing places; ·and

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'. ·~)r·ERE.As, the Hood t:anallgreement does. not prevent .e Skokomish Tribe from continuing its primary right case against the Tribe's other than the Klallam bands wnich have objected, and the Hood Canal Agreement is .not bindin_g on the Skokomish Tribe unless it .is .. also approved by the Klallam bands; ·and

WHEREAS, the ~kokomish Tribal Council finds that the Hood Canal Agreement is fair and. j~st and .~n t_he best ;ix1teres.ts of the Skokomish lndian Tribe; · ·

NOW THEREFORE BE IT RE~OLVED, that the Skokomish Tribal Council .hereby approves the attached Hood.Canal Agreement Between Skokomish Indian Tribe, Port Gamble Band of Klallam Indians, Lower Elwha Band of Klallam Indains and Jamestown Band. of K.lallam Indians··; ·and ·

BE IT r·URTHER RESOLvED, that the Skokomish Tribal Council hereby directs its Chairperson to excute ~he Hood Canal Agreement on behalf of the Tribe~ and further directs its attor.ne_ys to excute the agr~emeu.t. and to __ present ~ it to the court for ~ppi"oval af..t.e.r....al.l .Klallam bands have approved the agreement •.

I, Lucy Schaefer, Chairwoman~~r the Skokomish Tribal Cnuncil, certify that the above resoluti.on __ .Has... a..dopted at a regular meeting of the Skokomish Trj.bal Council on /tJ-1-~I- , 1Y82, at which a quorum was present by a vote ot ~ for and C5 ag§~nst.

c4~~b~J Lucy s ae_fer, Chai!'0)man SkQkOm:sh Tribal Council

Attest:~~ Diane·· Go.uley;secreary Skokomish Tribal Council

•


f.~··.lt'-\1. D CHARlf:S. SR. · ( 'h,?irmon

JTCJ.Yl> COOKE Sr't''• . .'llll'}'· Treasurer

Alan Charles CcJltn('i/man

OLlVCR CHARLIZS.SR. Cmmdlmon

.... '-· .. ·- • P 0. I:JQX 1370 PORT A:-.!GE! ES. \\'A 95361 ~~un, "sJ.S-171

WHEREAS, ·the 16\\ier ':E1~11a .. ~i~-~-~it; ~~~1· ~s t~~··g~~~ing body of the IrJt.\rer E1wha Band of the Klallarn Tribe in .accordance vd.th its constitution and bylaws, approved by tlie Secretary" of the Interior on April 2s; 1968 ·and in accordance with the Indian Reorganization Act of. June 18, 1934; and ·

WHEREAS, the laV~er Elwba Klailrun Tribe ~ ... ctl.l."::;'~tly .involved in the following litigation: ·· ·· · · - · ··- · · ·

1. Request for Determ:i.i1at~on -Re·: .. I?r.ima.:rY P..ight of Skokailis..l) Indian Tribe in Hood Canal Fishery, filed June 17, 1981.

2. Request fer .. Deteiininatlon: Lower Elwha Klallam Usual-and Accustaned Fishing Areas, .filed August 11, 1978; and

WHERE..l\S, · the Lower Elwha Klall.Bm Camru.n.i ty Council believes it to be in the best interest of the Lower Elwha Klallam. Tribe . tQ settle. these matters by agreement rather than by litigat'ion. · - ·

- _.,- ·--- -·~·----·..,. ... . . ,___ - . ,_- .

Ncr.;, TI1EREFOF..E BE IT R:Eso~VED, that . the Lower Elwha Klallam Cannuni ty Council hereby approves the Hood c;an~ ~e~ent between Skokcmish Indian Trib_e, Port Gamble Band of Klallam Indians, lower Elwha Band of Klallam Indians and Jamestown Band of .Klallam Indians, a copy of which is attached hereto and hereby incorporated by reference. ·

IT IS !IEREBY FORTHER'~LVED~ t'hs.t the. fribal Ch~ o~ Vice 01tirman is hereby authorized and directed to execute the attached Hood Canal Agreement o:&+. behalf of the l.o\\'el" Elwha · Klallam Ccmnuni ty Council.

CERI'IFICATION

'r1le before mentioned resolution was adopted at a regular meeting of the wwer Elwba Dusiness Corrni ttee at whicb time a quorum was present with a vote of _.:!:......,:_.~~.and ... L _ ... ~~ilW.t. d4.st®... this .. day. of s=~ {::l~· \S .. \.:-\ .. ~:D~.

:--r··· 4 1j~11 ·· /' -~ f ;/ ~ .~J-tA.Jve./1 ( ~~ 4!

Gt>ra1d Charles, Sr. C!haitman

~R~ Floyd Cooke Secretary-Treasurer

l!lillEJl .Elill}Hl JJlHHll til!J1ltJl


) • THE r ... .---··- •• RESOWl'ION NO. 82-A..:.40

} PORT ~IE l<I.AI.aiAM )

) BUSlNESS ~TrEE )

) OF '!HE ·-· ) . ·- ·- .BE .IT ~ TO ALL

)

PORI' GAMBlE KI.ALU\M ) . )

<llMJNITY CCXJNCIL ) ... ~ .. -.I. -

WHEREAS, the Port· Gamble· Kl..allam Ind1an Conmuri.i.ty ip organized urrler the Indian Reo~za.tion Act of· ·June 18, 1934; and

II . . ~'- .. ~. i~.:~~tiQQ·~_.:eylaws ado~ ·Au.guSt s, 1939

the Comnunity Council was· designated as the governing body of the Port Gamble Klallam Indian carm..mi ty; and ...

III. WHEREAS, by resolution dated April. 22, 1956 'the Part Gamble KJ..al 1 am

c:armuni.ty Council delegated the authority to conduct the business of the Port Gamble Kl.allam Indian Cormnmity to the Port Garrble Kiallarr.:Business cannittee; and

IV. WHERFAS, the Port Garrble Klallam Tribe is currently involved in

the fol.J..a.ling litigation: ,. ·· ·

1. ReqUeSt for Detenni.nation RE: Primary Right of Skokanish Indian Tribe . .in Ha:>d canal Fishery, filed June 17, 1981.

2. ~t .. fo...:r_ Detell'Cli.nation: .Port Gamble Rlallam Osual and Accustomed Fishing Areas, filed AUgust 11, 197a;· am,

v. WHEREAS, the Port: Ganible Klallam Business comnittee believes it to

be in the best interest of the Port Ganble KJa11am ·Tribe to settle. these matters by agrea-aent rather than by litigation.

NOW, THEREFORE, BE. IT RESOLVED, that the Port Gamble Klallam Business . O:mnittee hereby approves the Hood canal. Agreement_ between Skokanish Indian Tribe, Port Gamble Band of Klallam- Indians;·· r.ower Elwha Ba.nt:l of lUallam ··Indiims and d"amestown Band of lUaJ lam · · Indians, a copy of Which is attached hereto and hereby inoorJ;Orated by reference.

IT IS HEREBY FURrHER RESOLVED, that the Tribal Chainlan or Vice CbaiJ:man is hereby authorized .and dh'ect:ed to .execute the attached Hood Canal Agreenent on behalf of the Port Garcble Klallam 'Business ctmnittee.

C E R T I F. :L'C K T I 0 N

WE HEREBY CERnFY that on this date there was a neeting held of the Port Ganble Klallam Business Comtlittee. on-1:he ·Port Gafilble~ tna.i..aii' :Resert~a:tion, at which tine a qoorum was present;

WE FURrHER CERriFY that tba above n.uiibered resolution, was at said neeting, introduced, evaluated;·- and was passed by a vote of· 4 FOR, and __JL_.AGAINST,

Da~-~js ~-~ :Y of ~ __ ·::.: ----_·: .... '--.-1.·9·8--·~~--~~~/!~~-O~ n:., .. ~ J: u", <A c::: _ ~ ~'-- .t

R:>nald G. Charles, Cha.frnan _. . _ __ ... ___ e , s~ tary ~ BUSINESS CDMITr.E:E. . . · •.. · ~T SINFSS. ct:l9l'Ml:l'TEE


. ' . ·- ·----------

tAMESTOWN K~LLAM TRIBE 150 South 5th·:.:..· Si.iite 2 • Sequim, WA ·98382

Phone: (206}683-1109- (Fisheries) (206) 683·1001

Resolution #62-82

WHEREAS, THE Jamestawn.Klallam Tribal Council is the gove~ng body of the Jamestown Klallam Tribe in a.cco-rdanc~ with its constitution and by-laws adopted November 14, 197 S; and

WHEREAS, ·'mE ·Janr:stown Klallam Iridian Tribe has been Federally acknowledged by the Secretary of the Interior on February 10, 1981; and

WHEREAS·;· !HE·:rames~awn·g~~~am J'gJ)~.L .CounCil is responsible. for health, safety, and welfare of tlie Jamestown Klallam Indian Tribe; and

. .. ·~ ·-. . .= .... ~ .

WHEREAS, ·nm JamestOwri.Klallam ·Tribe is ~ently involved in the following litigation: . · · . -.. ..· _ ··... - .

..

1. Request for Determination R_?; Primary Right of Skokanish Indian in Hood Canal Fishery, filed June 17, 1981. ~- ...

\~, 'IHE James£ownK1aiiam-Triba1 cOurtii -believes it to be in the best interest of the Jamestat\n Klallam Tribe to. settle these matters. by agree.11e11t rather than by litigation. · ·

lliEREFORE, BE· IT RESOLVED," that. the :Jamest~ Klall~ Tribal Council hereby approyes the Hqgd_ Canal Agreerrent betweert· Skokomish Indian Tribe, Port Gamble Band of Klallam Indi.ans;···Lower Elwha Bani of Klallam Indians ·and Jamestown Band of Kallam Irrlians, a ·copy_· of ·~ch ~s attached hereto ani hereby incorporated by reference. · · · ·

BE IT RlR'IHER RESoWED~-'triat the Tribal chunTian or Vice-Chainna.n is hereby authorized and directed to execute the attached Hood Canal Agreement on behalf of t.~e Jamestown Klallam Tribal Council.

CERTIFICATION

'Ihe forego~ reso:J-Y:.t;:i.pp W9$ .adopted at a meeting of the Jamestown Klallam Tribal Council, held Septembe~, J_ 9SZ, at the Jamestowrt Klallam Tribal Office in Sequim, Washington, at which tip'le a quonnn was present and approved by a vote of 3 FOR and (!J AGAINST. . . . .. _. .. . . . . .. ............-.. ... --- .... . .... --··-·· .

. 1~~ Ha:mette Adams, secretary


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FISHERY (PROPOSED) (Exhibit B)







360.877.2100 (Tel) • 360.877.2104 (Fax)

EXHIBIT B

Special Master’s Report


RECEIVED

.Speoial MasterRobert E. Cooper

JAN g01C)8EI

AT SFATTLE

UERK U S DISTRICT COURY'

IYESTERN DISTRICT Of IYASIIINGTON

BY DEPUTY

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

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UNITED STATES OF AMERICAAet al. ,

Plaintiffs,

STATE OF WASHINGTON, et al. ,

Defendants.

In Re Skokomish Indian Tribe'sReguest for Determination ofPrimary Right in Hood CanalF ishery ~

))) NO. 9213 — Phase I)))))))))))))

)

SPECIAL MASTERAS REPORTAND RECOMMENDATION RESKOKOMISH INDIAN TRIBE'SREQUEST FOR DETERMINATIONOF PRIMARY RIGHT IN HOODCANAL FISHERY

1&

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As special master appointed to hear the above-entitled

matter pursuant to the court's order of March 11A 1982A I con-

ducted a trial on the issues raised by the reguest for deter-mination on May 5 and 6, 1983, and on June 6 and 7, 1983. The

parties participating at trial were the Skokomish Indian Tribe,as proponent of the request for determination, the Suguamish

Indian Tribe, as an objecting party, and the United States, which

took no position on the request. Following conclusion of the

Special Master's Report a Recommendation — 1


trial, a transcript of the hearing was prepared and counsel for1

the respective participating parties submitted closing argument2

by memoranda.3

After considering the testimony of the witnesses at trial,the documentary evidence of record in this proceeding, relevant

5

evidence introduced in earlier proceedings in this case, and the6

7argument of counsel, I hereby make the f indings of fact set forth

8in the attached proposed Findings of Fact, Conclusions of Law,

and Order, and recommend that the court enter those Findings of9

10Fact, Conclusions of Law, and Order as the final adjudication of

the Skokomish Indian Tribe's request for determination. With

12respect to the f indings of fact that are accompanied by citations

13to the record, it is not my intention to indicate that the evi-

14dence specif ically cited is the only evidence supporting a par-

15ticular f inding or that other evidence not cited that could

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support the finding was not considered.

DATED this ~ day of January, 1984.

Robert E. Cooper, itedStates Nagistrate (Retired)Special Naster

Presented by

23Gregory . O'L ryWickwire, Lewis, Goldmark

5 Schorr500 Naynard BuildingSeattle, Washington 98104

SKOK3:FS

Special Naster's Report & Recommendation — 2


Special MasterRobert E. Cooper

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

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13

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UNITED STATES OF AMERICA,et al. ,

Plaintiffs,

STATE OF WASHINGTON, et al. ,

Defendants.

In Re Skokomish Indian Tribe'sRequest for Determination ofPrimary Right in Hood CanalF ishery.

)

)) NO. 9213 — Phase I)

) FINDINGS OF FACT,) CONCLUSIONS OF LAW, AND) ORDER))))

))

))

))

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Upon review of the Special Master's f indings and Report and

Recommendat. ion Re Skokomish Indian Tribe's Request for Determina-

tion of Primary Right in the Hood Canal Fishery, the evidence

received with respect to that matter, the other relevant evidence

of record in the case, and the argument of counsel for the

respective parties, the court hereby enters the following fin-dings of fact, conclusions of law, and order.

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Findings of Fact, Conclusions a order — 1


FINDINGS OF FACT

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34S. In this proceeding to determine whether the Skokomish

Indian Tribe, as successor in interest to the aboriginal Twana

Indians (384 F. Supp. at 376), holds the primary right to take

fish in the waters of Hood Canal and in the rivers and streams

draining into it, the court heard and closely considered the

testimony of three professional anthropologists, Dr. Barbara

Lane, Dr. William W. Elmendorf, and Dr. Jay Hiller. Dr. Lane and

Dr. Elmendorf testified in behalf of the Skokomish Indian Tribe.Both concluded that. at treaty times the Twana Indians controlled

the territory comprised of, and held the primary right to take

fish in, the Hood Canal drainage basin and the waters of Hood

Canal south of the Port Gamble area. Dr. Hiller testified in

behalf of the Suquamish Tribe, which opposed the Skokomish

Tribe 's request for determination. He concluded that at treatytimes the Twana Indians held the primary right only within

several hundred yards of their winter villages. As on numerous

previous occasions in this case, the court finds that Dr. Lane's

testimony and reports in this proceeding were based on excep-

tionally thorough historical and ethnographic research and are

highly reliable. Dr. Elmendorf, who testified by deposition, is

the acknowledged authority on the Twana Indians. (Tr. of

Hearing, pp. 54-55, 98. ) His monograph, The Structure of Twang

Culture (1960) (Ex. 2 to Ex, SK-SM-1), is based on data collected

25between 1935 and 1955 from knowledgeable Indian informants born

F indings of Fact. , Conclusions s Order — 2


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shortly af ter negotiation of the treaties and is widely regarded

t, o be the best ethnography of a case-area tribe. The court finds

that Dr. Elmendorf's testimony and his scholarly monograph are

highly reliable. By comparison to that of Dr. Lane and

Dr. Elmendorf, Dr. Miller's research related to the issues in

this proceeding has been of very short durat ion. His testimony

and report are based largely on informant testimony gathered in

1982 from current members of tribes participating in this pro-

ceeding and directly conflict in important respects with the

findings of George Gibbs, secretary to the 1855 western

Washington Treaty Commission, and the other two anthropologists,whose studi. es were more comprehensive than Dr. Miller's. For

these reasons, where there are variances between the conclusions

of Drs. Lane and Elmendorf and those of Dr. Miller, the former

are more credible and are accepted.

349. Hood Canal is a long, narrow body of saltwater lying

within a well-defined drainage bordered by the Olympic Mountains

on the west and the crest of the Kitsap Peninsula on the east.It is more fully described by Dr. Elmendorf as

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an L-shaped, salt-water inlet west of PugetSound . . . . The main arm of this inletextends about 45 miles south —southwest fromits entrance on the west side of AdmiraltyInlet, then makes an acut. e angle and extendssome 15 miles east-northeast to its head. Itstidal shoreline, measured in one-mile steps,is 181 + miles in length and its width variesfrom one to four miles. The only large tribu-tary inlets are Dabop and Quilcene Bays,opening together on the west, side of the canalabout twenty miles from its mouth.

Findings of Fact, Conclusions 6 Order — 3


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(Ex. 2 to Ex. SK-SN-1, p. 20. ) The principal rivers flowing

into Hood Canal from north to south are the Quilcene,

Dosewallips, Duckabush, Hamma Hamma, and Skokomish. Numerous

other smaller streams flow into the canal around its periphery.

The court f inds that largely due to its elongated conf igurat ion,Hood Canal is a unique body of saltwater in the case area. It isgenerally distinguishable from the open waters of Puget. Sound in

that it terminates in a cul-de-sac within a single drainage,

while Puget Sound links a number of otherwise separate drainages

and provides an avenue of transportation between them.

350. At. and before treaty times, the Twana Indians occupied

nine winter villages situated in the Hood Canal drainage basin.E ight of these villages were saltwater communit ies located at or

near the mouths of streams flowing into Hood Canal. No other

aboriginal Indian group occupied a village located within the

Hood Canal drainage south of the Port Gamble area. The aborigi-nal neighbors of the Twana Indians, who spoke languages distinctfrom Twana, included the Klallam Indians to the northwest along

the Strait of Juan de Fuca, the tiny Chemakum (or Tchimakum)

group to the north at the mouth of Hood Canal, the Suquamish

Indians to the east across Kitsap Peninsula on Puget Sound, the

Squaxin Indians overland on the Sound to the south and southeast,and the Satsop Indians to the southwest. The Twana had varying

degrees of contact, including in most instances marriage, ceremo-

nial and other cultural ties, with these neighbors, and at treaty

Findings of Fact, conclusions 0 order — 4


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times were most closely associated with the Klallam Indians. The

Olympic Nountains, which form the western perimeter of the Hood

Canal drainage, impeded significant contact between the Twana and

the Indian peoples occupying the western slope of the Olympic

Peninsula. (Ex. 2 to Ex. SK-SM-1, pp. 255-262, 283-298; Ex.SK-SN-3; Tr. of Hearing, pp. 20-36. )

351. All areas of Hood Canal, and the rivers and streams

draining into it, were easily accessible by canoe to the treaty-time Twana people residing in the nine winter villages. (Ex.SK-SN-1, pp. 3 1-32, 88-89. ) For approximately seven months each

year, beginning in March and concluding in October, the Twana

residents of the saltwater communities left their winter villagesand dispersed around the canal shoreline and streams flowing intothe canal to engage in food-gathering activities. Many Twana

families visited a customary round of camping places in the Hood

Canal drainage and along the canal shoreline. Congregations of

Twana moved along the canal shores, generally from south to north

as the summer season progressed, to fish and to obtain other

resources in and along the canal. The waters of Hood Canal were

used freguently to move Twana personnel, their belongings and

accumulated food stores from beach to beach around the canal, and

to and from summer camping sites and the winter villages. (Ex.SK-SM-1, pp. 27-31, 88-89; Ex. 2 to SK-SM-1, pp. 260-62; Tr. ofHearing, pp. 1 54-55. ) The Twana named numerous sites along the

canal south of the -Port Gamble -area and on streams draining into



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that part of the canal. (Ex. 2 to Ex. SK-SM-1, pp. 32-55, and

Ex. SK-SM-3. ) The main arm of Hood Canal was a "central direc-

tional axis for all of Twana territory [, I" (Ex. 2 to Ex.

SK-SN-1, p. 24) and Twana terms denoting direction were relat. ive

to the direction of the canal or other water courses flowing into

it. (Id. pp. 21-25. ) By using these directional terms in com-binationn

with site names, the Twana were able to identify all

points on the canal shoreline. (Ex. SK-SN-1, pp. 46-47. ) The

Twana name for Hood Canal itself was "the Twana's saltwater. "

(Ex. 2 to Ex. SK-SN-1, pp. 20, 266. ) The court finds that, south

of the Port Gamble area, the waters of Hood Canal, its shoreline,

and the rivers and streams draining into it were intensively used

by, and of great importance to, the treaty-time Twana people.

352. At and before treaty times, the Twana engaged in a

variety of fishing and hunting activities in and around Hood

Canal and the streams flowing into it. These activities included

river and stream fishing for salmon and other species; saltwater

fishing in the canal by trolling, spearing and other methods;

clamdigging and other shellfish gathering on the tidal zone of

the canal; herring-roe harvesting in canal waters; and water-fowl

hunting and marine-mammal hunting and trapping on the waters and

tide flats of the canal. {Ex. SK-SM-1, pp. 32-35; Ex. 2 to Ex.

SK-SM-1, pp. 56-84. ) The Twana assigned some of these activi-

tiess,

such as water-fowl and marine-mammal hunting, to spe-

cial ists who possessed "guardian spirit oower" gi sing them

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Findings of Fact, Conclusions & Order — 6


unusual prowess in the activity. (Ex. SK-SN-1, p. 37. ) Although

river fishing was the most important source of fish for the

Twana, all of the other fishing and marine hunting activitiesnoted above were also important to them. (384 F. Supp. at 377;

Ex. SK-SN-1, pp. 32-38; Ex. USA 23, p. 8. )

353. In his 1854-55 journal, George Gibbs, a lawyer, ethno-

grapher and secretary to the 1855 Treaty Commission, described

Skokomish (or Twana) territory as:

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extend[ing) from Wilkes ' Portage northwestacross to the arm of Hood Canal up to the oldlimits of the Tchimakum, thence westerly tothe summit of the Coast Range, thencesoutherly to the head of the west branch ofthe Satsop, down that branch to the main fork,thence east to the summit of the Black Hills,thence north and east to the place ofbeginning.

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(Tr. at Hearing, p. 29-30. ) Gibbs' description of Twana terri-tory embraces Hood Canal and its drainage bas in northward along

the canal to the point on the west shore now known as Termination

Point, which was the southern limit of the Tchimakum shown on a

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map prepared by G ibis in 1856. (Ex. SK-SN-4; see also Ex.

SK-SM-5 for contemporary names. ) Gibbs' description of Twana

territory was based on information gathered from Indians at and

before the treaty councils and at contemporaneous meetings. The

court finds it to be t.he best available evidence of the treaty-t ime location of Twana territory.

354. Gibbs' description of Twana territory is also corro-

borated by other evidence in this proceeding, including the work

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F indings of Fact, Conclusions 6 Order — 7


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of Dr. T.T. Waterman and Dr. Elmendorf. Waterman, an anthropolo-

gist working with Indian informants around 1920, compiled an

extensive list and map of sites used by Indians in the western

Washington area, including the Suquamish, Klallam and Twana

Indians. His data conf irm that the areas within the Skokomish

(or Twana) territory described by Gibbs were long used and

occupied by the aboriginal Twana people. (Tr. of Hearing, pp.43-49. ) Dr. Elmendorf, who did not have access to Gibbs' 1856

journal or to Waterman's site information, concluded that the

aboriginal Twana territory encompassed, with minor variances, the

same area described by Gibbs in his 1854-55 journal. (Ex.SK-SM-1, pp. 22-23, 92-93. ) The accuracy of Dr. Elmendorf's listof Twana sites (Ex. 2 to Ex. SK-SM-1, pp. 32-55) is also corro-borated by Waterman's earlier- list. Dr. Lane found that the

crass-checking made possible by these independent sources of data

presented a particularly reliable basis for determining the loca-tion of treaty-time Twana territory. (Tr. of Hearing, pp.45-48. ) The court agrees, and upon consideration of all the

relevant evidence in this matter, finds that the treaty-timeterritory of the Twana Indians encompassed all of the waters ofHood Canal, the rivers and streams draining into it& and the Hood

Canal drainage basin south of a line extending from Termination

Point on the west shore of Hood Canal directly to the east shore,as depicted on Exhibit A hereto. (See also Ex. G 17(h) . )

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355. The court finds that the foregoing description of

Twana territory is also consistent with the customary Indian

understanding of territory at treaty t, imes. The treaty-time

Twana and their neighbors, like other aboriginal peoples in

western Washington, bounded their territories at the divides bet-

ween drainage basins. (Ex. SK-SM-1, pp. 94-95; Tr. of Hearing,

pp. 17-21. ) This pattern reflected the predominant Indian con-

ception that territories were centered on the water bodies or.

courses upon which people relied for subsistence. Territory was

most clearly defined, and the sense of ownership strongest, along

the waters at its center and was generally less sharply defined

at the peripheries. (Ex. 2 to Ex. SK-SM-1, pp. 20-25, 286-287;

SK-SM-1, p. 93. ) As distinguished from waters lying within

single drainage basins, the open waters of Puget Sound usually

were not sub ject to territor ial claims. (Tr. of Hearing, pp,

123-125, 142. ) The court f inds that Twana territory, as

described by Gibbs, conforms to the general pattern: Hood Canal

formed its centerpiece, and the canal, its shoreline and the

streams draining into it were the areas most intensely felt. to be

owned by the Twana people. By contrast, the boundaries of Twana

territory at the crest of the drainage basin were not precisely

defined, although the drainage basin as a whole was considered

Twana country. (Ex. 2 to Ex. SK-SM-1, pp. 266-270. )

356. The Twana and their neighbors, like other treaty-timeIndians in the case area, recognized a hierarchy of primary and



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secondary or permiss ive use rights, including f ishing rights.{Tr. of Hearing, pp. 14-1S; f inding 12 herein. ) The people

occupy ing a territory held the primary right to f ish in the

territory. Women who married into a community outside theirnatal territory retained secondary fishing rights in that terri-tory. Marriage relatives could also acquire such secondary

rights in the natal territories of their spouses. The secondary

or permissive fishing rights were ineffective, however, unless

holders of the primary fishing right first invited or otherwise

permitted persons with secondary rights to fish in the territory.The holders of the primary fishing right exercised the preroga-

tivee

to exclude some or all secondary users from their terri-torial fishing grounds for any reason they deemed adequate. (Tr.of Hearing, pp. 162-63. ) The court finds that at and before

treaty times, the Twana Indians held the primary fishing rightwithin their territory, and this right was acknowledged by neigh-

boring peoples. (Tr. of Bearing, pp. 68-69, 144-146, 159-162. )

To the extent that Klallam and Suquamish people fished in Twana

territory at treaty times, the court finds they did so by virtueof secondary rights or as invited guests. {Tr. of Hearing, pp.

66-67; Ex. SK-SM-2; Ex. SK-SM-1, pp. 22, 44-46, 57. ) The court

further finds that the Suquamish Tribe's evidence of fishing

activity by Suquamish people in the Hood Canal area around the

turn of the 20th Century, even if fully credited, would not sup-

port a finding that, at treaty times, the Suquamish Tribe's

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F indings of Fact, Conclusions a Order — 10


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f orebears f ished in Twana territory as other than persons holding

secondary rights subject to the Twanas ' primary right.357. The Twana and their treaty-time neighbors, including

the Klallam and the Suquamish, enjoyed peaceful relations founded

on marital, ceremonial and other cultural ties. (Tr. of Hearing,

pp. 16-18, 1411 Ex. SK SN 1, pp. 56-613 Ex. 2 to Ex. SK SN l„pp.283, 465. ) Because of these peaceful relations, it was unne-

cessary for the Twana to defend their territory or the f ishing

places within it from unauthorized use by non-Twana neighbors and

there is no evidence that such unauthorized use occurred. There

was a common understanding among the Twana and their neighbors

concerning the respective location of their territories and the

nature of fishing rights in those territories. (Tr. of Hearing,

pp. 184-46; Ex. SK-SM-1, pp. 40-42, 57-58. ) The customary beha-

vior of Indian people in the area at and before treaty times

generally reflected these common understandings through restraintfrom intrusion on or unauthorized use of others' territories.(Tr. of Hearing, pp. 17-18, 60, 162; Ex. SU-SN-22 at pp. 54-55. )

The court finds that the treaty-time Twanas' control of theirterritory inhered primarily in the network of shared customary

understandings concerning territory. However, the court alsofinds that. Twana had readi. ly available means to deter

unauthorized use of their territory and fishing areas within it.These included social disapproval and magical retaliation againstwould-be intruders, both of which deterrents were taken very

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seriously in the aboriginal societies of western Washington.

(Ex. SK-SM-1, pp. 54-57. ) It is also highly likely that had the

other deterrents proved inadequate, the Twana would have

responded with physical force to extreme or obvious intrusions

upon their fishing territory. (Ex. SK-SM-1, pp. 118-119.)CONCLUSIONS OF LAW

91. The court has previously held that the usual and

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accustomed fishing places of the Skokomish Indian Tribe encompass

Hood Canal and the rivers and streams draining into it. (384

F. Supp. at 377. ) The court has also det. ermined that the usual

and accustomed fishing places of the Port Gamble and Lower Elwha

bands of Klallam Indians include the waters of Hood Canal and allrivers and streams draining into it, except the Skokomish River,(order of May 24, 1983, revised findings 341 and 342), and that

the Suquamish Tribe's usual and accustomed fishing places include

Hood Canal. (Orders of March 28, 1975, and April 18, 1975,finding 5, 459 F. Supp. at 1049. ) The court has not previously

determined which tribe, if any, has the primary fishing rightwithin Hood Canal or its surrounding drainage basin. The earlierdeterminations establishing that more than one tribe has usual

and accustomed fishing places within the Hood Canal region do not

preclude a later determination that one of the tribes holds the

primary right within that area. United States v. Lower Elwha

Tribe, 642 F.2d 1141 {9th Cir. ), cert. denied, 454 U. S. 862

(1981).

Findings of Fact, Conclusions s Order — 12


92. The aboriginal primary right of the Twana Indians to

2take f ish within their territory was fully preserved to the

Skokomish Indian Tribe by the Treaty of Point No Point, 12 Stat.993 (January 26, 1855), as a "right of taking fish" thereunder.

Nembers of tribes other than the Skokomish Tribe may not exercise

treaty f ishing rights by f ishing at usual and accustomed places

7of those tribes within the territory described in finding 354,

above, south of the line shown on Exhibit A hereto, without the

prior express consent of the Skokomish Indian Tribe. Subject to

10the limitations contained in the following paragraph, the

Skokomish Indian Tribe possesses the right to preclude or other-

wise regulate Indian treaty fishing by members of tribes other

than the Skokomish Tribe within the area described in

finding 354, above.

1593. By order of Narch 8, 1983, the court approved the Hood

16Canal Agreement Between Skokomish Indian Tribe, Port Gamble Band

of Klallam Indians, Lower Elwha Band of Klallam Indians and

Jamestown Band of Klallam Indians. This stipulation and order

contains the consent of the Skokomish Indian Tribe to fishing

within certain parts of its territory, or primary right area, by

the members of the named Klallam bands, subject to conditions

stated therein. That stipulation and order shall continue to

govern treaty f ishing by members of the Kla liam bands in the

areas described in it.



ORDER

On the basis of the evidence of record in the case, and the

foregoing findings of fact and conclusions of law, it is hereby

ordered, adjudged and decreed that:1. The Skokomish Indian Tribe holds the

primary right to take fish in Hood Canal andon all rivers and streams draining into HoodCanal south of the line displayed on Exhibit Ahereto commencing on the west shore of HoodCanal at Termination Point and following thecourse of the Hood Canal Floating Bridge tothe east shore of the canal.

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2. No tribe or member of a tribe shallexercise treaty fishing rights within the areaof Hood Canal or on rivers or streams draininginto Hood Canal subject to the primary rightof the Skokomish Indian Tribe without theprior express consent of the Skokomish IndianTribe or as otherwise provided by the HoodCanal Agreement Between Skokomish IndianTribe, Port Gamble Band of Klallam Indians,Lower Elwha Band of Klallam Indians andJamestown Band of Klallam Indians and Orderherein of March 8, 1983.

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3. This order constitutes a f inal deci-sion pursuant to 28 U. S.C. 5 1291 on theSkokomish Tribe's request for determination ofits primary right.

DATED this de of 1984.

21UNITED STATES DISTRICT JUDGE

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Findings of Fact, Conclusions & Order — 14


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