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) - Page 1
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
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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 2
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)
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’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 3
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)
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 4
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)
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 5
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)
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 6
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)
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 7
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)
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 8
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)
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 9
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)
Dated this 26th day of April, 2017.
s/Earle David Lees, III, WSBA No. 30017
Skokomish Legal Department
Skokomish Indian Tribe
N. 80 Tribal Center Road
Skokomish Nation, WA 98584
Email: [email protected]
Tel: 360.877.2100
Fax: 360.877.2104
Attorney for the Skokomish Indian Tribe
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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
TERRITORIAL FISHERY (PROPOSED) - Page 10
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)
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
Skokomish Legal Department
Skokomish Indian Tribe
N. 80 Tribal Center Road
Skokomish Nation, WA 98584
Email: [email protected]
Tel: 360.877.2100
Fax: 360.877.2104
Attorney for the Skokomish Indian Tribe
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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
FISHERY (PROPOSED) (Exhibit A)
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)
EXHIBIT A
Hood Canal Agreement
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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.
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• • 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
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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:
Hood Canal Agreement - 10
74JY.;;.~ Attorney for Jamestown Klallam Band
'-0n1CU07
WicKWIRE, Lewrs. GoLDKARK & S.CHORR
000 HA~ BVJLDJJOO S&.oLTTLII, Wl.alltNMOJf eDt04
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["''"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
Hood Canal Agreement - 11
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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 '
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Hood Canal Agreement.- 12
Walter E. Craig United States Distri
~(!ton~"''"' WJCKWIR£, LI!:WIS, GOI.l)N.AI'IK
8.: SoHOI'IJl
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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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.. ..: ... ~ 1 ~
'. ·~)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
•
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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
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) • 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
Case 2:70-cv-09213-RSM Document 21470-1 Filed 04/26/17 Page 27 of 46Case 2:17-sp-00001-RSM Document 1-1 Filed 04/27/17 Page 27 of 46
. ' . ·- ·----------
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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SKOKOMISH’S REQUEST FOR DETERMINATION
CONCERNING THE SKOKOMISH (OR TWANA)
FISHERY (PROPOSED) (Exhibit B)
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)
EXHIBIT B
Special Master’s Report
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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
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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
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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
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Special MasterRobert E. Cooper
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
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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
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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
Findings of Fact, Conclusions 5 Order — 5
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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
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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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Findings of Fact, Conclusions 6 Order — 8
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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
Findings of Fact, Conclusions 6 Order — 9
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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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Findings of Fact, Conclusions 5 Order — 11
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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
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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.
Findings of Fact, Conclusions 6 Order — 13
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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
24
SK3:P7
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Findings of Fact, Conclusions & Order — 14
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