9th Circuit panel rules Samish should have treaty fishing rights

SEATTLE — A federal appeals court panel today helped clear the way for the Samish Indian Nation to acquire a share of the state salmon catch — 30 years after the tribe was excluded from a historic decision on treaty fishing rights.

In the 2-1 ruling, the 9th U.S. Circuit Court of Appeals panel found that the tribe was unfairly denied federal recognition at the time of U.S. District Judge George Boldt's 1974 ruling allocating tribal fishing rights. The lack of recognition helped preclude the San Juan Islands-area tribe from obtaining the fishing rights, the court found.

The Samish had been recognized by the federal government as a treaty tribe under the 1855 Treaty of Point Elliott. Those rights evaporated in 1969 when the Samish, and several other tribes, were dropped from a list of tribes prepared by a Bureau of Indian Affairs clerk.

The Samish regained federal recognition in 1996 after an extensive court battle, but their treaty rights to fish were never restored. They sued in 2002 to regain their fishing rights, but U.S. District Judge Barbara Rothstein rejected their case, saying that the tribe could have obtained treaty rights by other means. She also said granting the rights so late in the game could require changing scores of orders and management plans, thereby affecting other treaty tribes, as well as federal and state governments.

Today's decision overturned Rothstein's ruling.

"The Samish would almost certainly have won the right to exercise its treaty fishing rights had the tribe been federally recognized," Judge A. Wallace Tashima wrote for the majority.

Samish lawyer Craig Dorsay of Portland, Ore., said the ruling was an important victory for the tribe, which numbers about 1,000, but that its full impact remained to be seen.

"It looks like a wonderful decision for the Samish," he said. "The court finally heard the tribe's story. They decided the tribe has struggled long enough."

The case was remanded to U.S. District Court, which was expected to grant the tribe the right to intervene in United States v. Washington, the case that resulted in Boldt's decision. The next step would be to determine the scope of the tribe's historical fishing grounds, Dorsay said.

"This is certainly a large part of what the tribe needed to accomplish, but it's not there yet," Dorsay said.

The state and 10 tribes opposed the Samish in the case. A lawyer for the tribes did not immediately return a call seeking comment.