Whether the Ninth Circuit properly abrogated the long-settled and original understanding of the treaty term 'usual and accustomed grounds and stations'

QUESTION PRESENTED In 1855, the Jamestown S’Klallam Tribe, Port Gamble S’Klallam Tribe, Lower Elwha Indian Tribe, and Lummi Nation all entered treaties with the United States that guaranteed each tribe the “right of taking fish at usual and accustomed grounds and stations.” Under settled principles of treaty interpretation, that phrase means what it meant to the treaty negotiators and signatories. And under undisputed precedent interpreting that phrase, a tribe’s “usual and accustomed” fishing grounds—or “U&A”—include only those areas the tribe regularly and customarily fished at treaty times, not areas the tribe only occasionally or incidentally fished while traveling. Applying those principles, the Ninth Circuit long ago affirmed that the Lummi do not possess any U&A in the Strait of Juan de Fuca, where the S’Klallam and Lower Elwha primarily fish. Yet over the course of four increasingly spurious decisions, the Ninth Circuit gradually abrogated the long-settled and original understanding of the treaty phrase “usual and accustomed,” morphing it first to allow the Lummi to claim U&A based on mere incidental fishing and ultimately to permit the Lummi to claim 300-plus square miles of U&A in the Strait of Juan de Fuca. To avoid the clear contradiction with its previous exclusion of the Strait from the Lummi U&A, the Ninth Circuit essentially redefined the eastern boundary of the Strait by appellate fiat. The question presented is whether the Ninth Circuit—in conflict with decisions of this Court and other courts—properly abrogated the long-settled and original understanding of a central treaty term, ii without any legal or factual basis for doing so, and while redefining the boundary of a major body of water to accommodate its novel treaty interpretation.