LUMMI RESERVATION - Lummi Nation won a legal battle over fishing rights that have been contested for more than 20 years, but the tribe's right to fish south of the San Juan Islands is still uncertain.
A federal court of appeals on Aug. 19 reversed a lower court decision that had barred the Lummis from fishing west of northern Whidbey Island. The court ruled the boundaries of the "usual and accustomed grounds and stations" for fishing, as described in the 1855 Treaty of Point Elliott, remained unclear. The case could be brought again by the S'Klallam tribes, which were challenging Lummi Nation in the case.
"For the time being, what it means is we won the Court of Appeals case," Lummi Tribal Chairman Tim Ballew said on Aug. 21 on a video posted to Facebook by Lummi Communications. "The bittersweet part is, they ... opened it to the S'Klallam tribes to bring the case back to district court, which they'll most likely do."
Lummi Nation is making plans to reopen the waters west of northern Whidbey Island to its members for halibut fishing.
"Hopefully we can get our fishermen back out there and not get harassed by the state (Department of Fish and Wildlife). That would be the short-term plan," Ballew said. "The long term plan, in my opinion, would be to stay out of court ... because every time we do that, we put our treaty rights at risk."
Tribal fishing rights were solidified in 1974 with the federal Boldt decision, which spelled out for various tribes what the 1855 treaty meant by "usual and accustomed grounds." The boundaries established for Lummi Nation, however, were vague.
A court decision in 2000 clarified the Lummi territory to include northern Puget Sound, from the Fraser River to Seattle, with the exception of the Strait of Juan de Fuca and Hood Canal. No court decision has yet clearly determined whether the strait extends all the way to Whidbey Island or whether the Lummis would have fished west of Whidbey Island because it connects their southern and northern fishing grounds.