Greene v. United States

996 F.2d 973, 1993 WL 219333
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 22, 1993
DocketNo. 91-35569
StatusPublished
Cited by103 cases

This text of 996 F.2d 973 (Greene v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. United States, 996 F.2d 973, 1993 WL 219333 (9th Cir. 1993).

Opinions

EUGENE A. WRIGHT, Circuit Judge:

The Tulalip Tribes seek to intervene in an action between the Samish Tribe and the Department of Interior regarding federal recognition of the Samish. The Tulalip argue that federal acknowledgment of the Samish as an Indian tribe will lead to the dilution of treaty fishing rights. The district court denied intervention, finding that the action did not implicate treaty claims. We agree that the Tulalip have not identified a protect-able interest to warrant intervention. Even if the federal government says that the Samish are an official Indian tribe, whether they may fish as a treaty tribe in common with the Tulalip is another question. We affirm.

I.

The Samish tribe is located in Whatcom County, Washington. Their effort to obtain federal recognition is but part of a continuing battle to regain land and other benefits of tribal heritage, including valuable fishing rights. In 1855, several Indian tribes negotiated the Treaty of Point Elliott with federal representatives in Washington Territory, relinquishing much of their land and reserving the right to fish at all usual and accustomed grounds in common with citizens of the Territory. As the fish became scarce, disputes arose over the allocation of the harvest. District Judge Boldt held that treaty tribes, including the Tulalip, were entitled to take up to 50% of the harvestable fish on runs passing through traditional fishing grounds. United States v. Washington, 384 F.Supp. 312 (WD.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (“Washington I”). Washington State regulates the fisheries under the continuing jurisdiction of the Washington I district court.

After Judge Boldt’s initial decision, the Samish and other Indian groups intervened to assert their own treaty fishing rights. The district court found that they had failed to maintain an organized tribal structure since signing the Treaty of Point Elliott. It rejected their claims as successors to treaty tribes in United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982) (“Washington II"), effectively leaving the Samish without treaty fishing rights.

About that time, the Samish asked that the federal government recognize them as an Indian tribe and they applied for official tribal status under 25 C.F.R. ¶'83 to obtain governmental protection, services and benefits. The Bureau of Indian Affairs denied their repeated petitions. The agency did not rely upon the factual determinations in Washington II but instead conducted an independent inquiry. The Tulalip and other tribes participated as “interested parties” in the BIA proceeding.

The Samish appealed to the district court, alleging due process violations in the agency proceeding. The tribe also asked for judicial recognition of their treaty successor status. On partial summary judgment, the district court ruled that the Samish were barred from relitigating the question of treaty fishing rights because of the res judicata and collateral estoppel effects of Washington II. [976]*976The remaining issues in the second phase of the action concerned alleged defects in the BIA’s administrative process.

The Tulalip renewed a motion to intervene, arguing that their treaty fishing rights were threatened by the Samish attempt to obtain federal recognition. The district court denied intervention. The Tulalip appeal.

As this appeal was pending, other important developments followed. Judge Zilly held that the Samish had been denied due process in the BIA’s evaluation of their acknowledgment petition. The court vacated the agency’s earlier decision and remanded for a formal adjudication under the Administrative Procedure Act. Also, new evidence suggested that Judge Boldt allegedly had suffered from a disabling illness when the Washington II judgment was entered. The Samish moved to set aside that judgment. The district court denied that motion, stating that it should be directed to the ongoing Washington I court. The district court also addressed again the status of the Tulalip, reaffirming that the Tribe was not a party but granting it leave to participate as amicus curiae in the remanded proceedings before the BIA.

II.

A. INTERVENTION AS OF RIGHT

We review de novo a district court’s denial of a motion to intervene as of right. United States v. Oregon, 913 F.2d 576, 587 (9th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991).

Fed.R.Civ.P. 24(a)1 establishes four requirements for intervention as of right: timeliness, an interest relating to the subject of the action, practical impairment of the party’s ability to protect that interest and inadequate representation by the parties to the action. The rule is construed broadly in favor of applicants for intervention. Id.

The district court held that the Tulalip failed to satisfy the second prong of the test, the “interest” requirement. Whether an applicant for intervention demonstrates sufficient interest in an action is a practical, threshold inquiry. No specific legal or equitable interest need be established. Portland Audubon Soc. v. Hodel, 866 F.2d 302, 308 (9th Cir.), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989). Nevertheless, the movant must demonstrate a “significantly protectable interest.” An economic stake in the outcome of the litigation, even if significant, is not enough. Id. at 309.

1. Dilution of Treaty Fishing Allocations

The Tulalip identify two related interests. First, they argue that their treaty fishing allocations are threatened by dilution. They concede that the district court limited the Samish claims to federal recognition. Thus, adjudication of the Samish treaty fishing rights is not an issue in the pending proceeding. Nevertheless, the Tulalip argue that renewed administrative inquiry into the Samish tribal status will raise nearly identical questions. They assert that the BIA will review much of the same factual record that served as the basis for the judicial allocation of fishing rights.

To gain federal acknowledgment, the Samish must establish the requisite social cohesion and community, continuity of political authority and ancestry from a historic tribe. See 25 C.F.R. §§ 83.1 thru 83.7. To assert treaty fishing rights, the Samish must demonstrate that they descended from a treaty signatory and “have maintained an organized tribal structure.” Washington II, 641 F.2d at 1372.

We recognize that the two inquiries are similar. Yet each determination serves a different legal purpose and has an independent legal effect. Federal recognition is not a threshold condition a tribe must establish to fish under the Treaty of Point Elliott.

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996 F.2d 973, 1993 WL 219333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-united-states-ca9-1993.