Snoqualmie Indian Tribe v. State of Washington

• Court: District Court, W.D. Washington
• Decided: March 18, 2020
• Docket: 3:19-cv-06227
• Status: Unknown

Opinion

1 HONORABLE RONALD B. LEIGHTON 2 3 4

5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 SNOQUALMIE INDIAN TRIBE, CASE NO. 3:19-CV-06227-RBL 9 Plaintiff, ORDER GRANTING DEFENDANT 10 v. STATE OF WASHINGTON’S MOTION TO DISMISS AND 11 STATE OF WASHINGTON, et al., DENYING PENDING MOTIONS AS MOOT 12 Defendant. DKT. ## 17, 26, 28, 29 13

14 INTRODUCTION 15 THIS MATTER is before the Court on Defendants State of Washington, Governor Jay 16 Inslee, and Washington Department of Fish & Wildlife Director Kelly Susewind’s Motion to 17 Dismiss under Rule 12(c). Dkt. # 29. In 1855, members of several Washington tribes signed the 18 Treaty of Point Elliott, which ceded Indian-owned land in exchange for various rights. Plaintiff 19 Snoqualmie Indian Tribe claims it is a signatory to the Treaty and therefore holds hunting and 20 gathering rights under it. Complaint, Dkt. # 1, at 6-8. However, a previous case adjudicating 21 fishing rights found that the Snoqualmie Tribe was not a successor in interest to the Treaty 22 signatories because it had not maintained an organized structure since 1855. See United States v. 23 State of Wash., 476 F. Supp. 1101, 1104 (W.D. Wash. 1979), aff’d, 641 F.2d 1368 (9th Cir. 24 1 1981). The State now moves to dismiss by arguing, among other things, that this prior 2 determination precludes the Snoqualmie’s claims in this case. The Court agrees and GRANTS 3 the State’s Motion. All other pending motions are DENIED AS MOOT. 4 BACKGROUND

5 1. The Snoqualmie Tribe’s Allegations regarding its Rights under the Treaty of Point Elliott 6 The Snoqualmie Tribe is a federally-recognized Native American tribe with a reservation 7 near Snoqualmie, Washington. Complaint, Dkt. # 1, at 2. For generations, the Snoqualmie people 8 have engaged in hunting and gathering to sustain themselves. Id. at 3. The Snoqualmie currently 9 regulate hunting and gathering pursuant to tribal code. Id. at 2. 10 In 1854 and 1855, the United States and a number of tribes executed treaties known as 11 the “Stevens Treaties” in which tribes relinquished their claims to most territory in Washington 12 State but reserved certain rights for themselves. Id. at 3-4. One of these treaties was the Treaty of 13 Point Elliott, Article V of which stated: 14 The right of taking fish at usual and accustomed grounds and stations is further 15 secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of 16 hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by 17 citizens.

18 Id. at 4. 19 The Snoqualmie Tribe alleges that it is a signatory to the Treaty of Point Elliott through 20 several members of the “winter villages” that made up the Tribe in 1855, including Chief Pat 21 Kanim. Id. The Snoqualmie correctly point out that the Bureau of Indian Affairs (BIA) 22 acknowledged the Tribe’s participation in the Treaty of Point Elliott when approving its petition 23 for federal recognition in 1997. See Final Determination To Acknowledge the Snoqualmie Tribal 24 1 Organization, 62 Fed. Reg. 45864-02, 45865 (1997) (“The Snoqualmie tribe was acknowledged 2 by the Treaty of Point Elliott in 1855 and continued to be acknowledged after that point.”). 3 The Washington Department of Fish and Wildlife (WDFW) provides a process by which 4 Native American tribes who are signatories to the Stevens Treaties can obtain traditional area

5 hunting designations from the State. Id. at 5. In 2019, WDFW informed tribes who were 6 signatories to the Stevens Treaties that WDFW intended to update its procedures for evaluating 7 tribes’ asserted hunting and gathering rights, but the Snoqualmie were not contacted. Id. at 5. 8 The Snoqualmie reached out to WDFW with evidence of their treaty status, but WDFW 9 responded with a letter stating that “the Snoqualmie Tribe does not have off-reservation hunting 10 and fishing rights under the Treaty of Point Elliott.” Id. at 6. 11 After another attempt to resolve the issue, the Snoqualmie sued the State on 12 December 20, 2019. Their Complaint seeks a declaration that the Snoqualmie Tribe has 13 “maintained a continuous organized structure” since its members signed the Treaty of Point 14 Elliott in 1855, making the present Tribe a signatory. Id. at 6, 8. The Snoqualmie thus ask that

15 the Court recognize their hunting and gathering rights under Article V of the Treaty and order the 16 State to treat the Snoqualmie equally with other signatory tribes. Id. at 7-9. 17 2. Judge Boldt’s Determination of the Snoqualmie’s Treaty Status in Washington II

18 This is not the first time a court has evaluated the Snoqualmie’s rights under the Treaty of 19 Point Elliott. In 1974, Judge Boldt issued a decision granting fishing rights to fourteen tribes that 20 were signatories to the Stevens Treaties. See United States v. Washington, 384 F. Supp. 312, 406 21 (W.D. Wash. 1974) (Washington I). The Snoqualmie were not included. Later that year, the 22 Snoqualmie and four other tribes intervened in the case, arguing that they were also signatories 23 to the Stevens Treaties and entitled to fishing rights. United States v. State of Wash., 98 F.3d 24 1 1159, 1161 (9th Cir. 1996) (recounting history of 1970’s proceedings). Judge Boldt referred the 2 matter to Magistrate Judge Robert Cooper, who determined that the five tribes had no rights 3 under the Stevens Treaties because they had not maintained political cohesion since 1855. Id. 4 The Snoqualmie (along with the four other tribes) objected to Judge Cooper’s report and

5 recommendation, and Judge Boldt held a three-day de novo evidentiary hearing. Id. However, 6 Judge Boldt ultimately agreed with Judge Cooper, concluding that the Snoqualmie had “not lived 7 as a continuous separate, distinct and cohesive Indian cultural or political community” and “not 8 maintained an organized tribal structure in a political sense.” United States v. State of Wash., 476 9 F. Supp. 1101, 1109 (W.D. Wash. 1979) (Washington II). Consequently, Judge Boldt held that 10 the Snoqualmie Tribe was “not an entity that is descended from any of the tribal entities that 11 were signatory to the Treaty of Point Elliott” and had no fishing rights as a result. Id. 12 The Snoqualmie appealed, but the Ninth Circuit affirmed the district court’s decision. 13 United States v. Washington, 641 F.2d 1368 (9th Cir. 1981). The court noted that, because Judge 14 Boldt had adopted much of the United States’ proposed findings of fact, it would apply “close

15 scrutiny” to the lower court’s decision. Id. at 1371. Although the Ninth Circuit rejected Judge 16 Boldt’s statement that tribal treaty rights were contingent on federal recognition, it nonetheless 17 held that the record supported the district court’s outcome. Id. at 1372. The court explained that 18 there is “a single necessary and sufficient condition for the exercise of treaty rights by a group of 19 Indians descended from a treaty signatory: the group must have maintained an organized tribal 20 structure.” Id. (citing United States v. State of Wash., 520 F.2d 676, 693 (9th Cir. 1975)). The 21 court held that the Snoqualmie did not meet this requirement, citing a lack of government control 22 of tribal members, absence of “continuous informal cultural influence,” intermarriage with non- 23 Indians, and settlement in non-Indian residential areas. Id. at 1373-74. The tribes appealed to the

24 1 Supreme Court but were denied certiorari. Duwamish, Samish, Snohomish, Snoqualmie & 2 Steilacoom Indian Tribes v. Washington, 454 U.S. 1143 (1982). 3 Although the panel upheld Judge Boldt’s decision in Washington II, Judge Canby wrote 4 in dissent that Judge Boldt’s erroneous belief that federal recognition was necessary for treaty

5 rights had “permeated the entire factual inquiry.” 641 F.2d at 1375. Specifically, Judge Canby 6 explained that Judge Boldt’s factual determinations were designed to meet a “more stringent 7 requirement” derived from the BIA’s federal recognition standard, rather than “the proper 8 requirement that ‘some defining characteristic of the original tribes persist in an evolving tribal 9 community.’” Id. (quoting majority opinion). The dissent therefore concluded that a new factual 10 determination was warranted. Id. 11 3. The Impact of Washington II 12 Judge Boldt’s decision in Washington II and the Ninth Circuit’s affirmation have cast a 13 long shadow. In Greene v. United States, 996 F.2d 973 (9th Cir. 1993), the Tulalip Tribe 14 attempted to intervene in the Samish Tribe’s federal recognition proceedings by arguing that

15 federal recognition of the Samish could undermine the finality of Washington II. The Ninth 16 Circuit rejected this because federal recognition “serves a different legal purpose and has an 17 independent legal effect” and “is not a threshold condition a tribe must establish to fish under the 18 Treaty of Point Elliott.” Id. at 976-77. The Tulalip then tried to argue that the Samish’s petition 19 for recognition was precluded by the factual determination in Washington II, but the Ninth 20 Circuit was similarly unpersuaded that the rights at issue in that case had any impact on 21 recognition proceedings before the BIA. Greene v. Babbitt, 64 F.3d 1266, 1271 (9th Cir. 1995). 22 There have also been several unsuccessful attempts to reopen Judge Boldt’s decision in 23 Washington II. In 1996, the Ninth Circuit rejected a motion by the Duwamish, Snohomish, and

24 1 Steilacoom Tribes to reopen the case based on allegations that Judge Boldt was suffering from 2 Alzheimer’s Disease at the time of his ruling. United States v. State of Wash., 98 F.3d 1159, 3 1163 (9th Cir. 1996) (Washington III). According to the court, the tribes’ evidence that Judge 4 Boldt had been an incompetent factfinder, which consisted only of his death certificate and a

5 Seattle Post-Intelligencer article, did not cast doubt on the 1979 case’s outcome. Id. 6 Then, in 2002, the Samish Tribe moved to reopen Washington II based on the tribe’s 7 successful application for federal recognition. United States v. Washington, 394 F.3d 1152, 1156 8 (9th Cir. 2005). After multiple appeals, an en banc Ninth Circuit panel affirmed the district 9 court’s denial of the motion. United States v. Washington, 593 F.3d 790, 793 (9th Cir. 2010) 10 (Washington IV). In a decision written by Judge Canby, the court concluded that its holding in 11 Greene was a “two-way street: treaty adjudications have no estoppel effect on recognition 12 proceedings, and recognition has no preclusive effect on treaty rights litigation.” Id. at 800. 13 Consequently, although the Samish’s federal recognition was likely based on findings 14 inconsistent with Washington II, that did not justify “undoing the finality of the Washington II

15 factual determinations.” Id. That said, the court pointed out that nothing in its holding “precludes 16 a newly recognized tribe from attempting to intervene in United States v. Washington or other 17 treaty rights litigation to present a claim of treaty rights not yet adjudicated.” Id. at 801. 18 DISCUSSION 19 Although the effects of Judge Boldt’s 1979 decision have been thoroughly litigated, this 20 case presents a new question: does the determination in Washington II that the Snoqualmie have 21 no fishing rights under the Treaty of Point Elliott preclude a finding that the Tribe has hunting 22 and gathering rights? Issue preclusion “bars successive litigation of an issue of fact or law 23 actually litigated and resolved in a valid court determination essential to the prior judgment, even

24 1 if the issue recurs in the context of a different claim.” Garity v. APWU Nat’l Labor Org., 828 2 F.3d 848, 858 n.8 (9th Cir. 2016) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). The 3 doctrine applies if: “(1) the issue necessarily decided at the previous proceeding is identical to 4 the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on

5 the merits; and (3) the party against whom [issue preclusion] is asserted was a party or in privity 6 with a party at the first proceeding.” Id. at 858 n.8. 7 Here, the second and third elements are clearly met; the Snoqualmie are the same tribal 8 entity that intervened in Washington II, and the Ninth Circuit’s decision affirming the district 9 court was a final judgment on the merits. This is no less true simply because the judgment 10 concerned fishing rights. Issue preclusion only requires that the issue decided was essential to a 11 final judgment about something; the relevant issue may be broader than the claim that was 12 adjudicated. See Sturgell, 553 U.S. at 892. Otherwise, issue and claim preclusion would be the 13 same. 14 The parties mainly dispute the first element. The State argues that the Snoqualmie’s

15 claims are barred because, although the Washington line of cases concern fishing rights and not 16 hunting and gathering, the decisive question of tribal continuity since treaty execution precedes 17 the possibility of any treaty rights. The Snoqualmie resist this conclusion, emphasizing that 18 Washington II did not extend beyond fishing rights. The Snoqualmie also assert that the factual 19 issues in Washington II were different than the current case because of Judge Boldt’s erroneous 20 focus on federal recognition. Finally, if issue preclusion would normally apply, the Snoqualmie 21 contend that the Court should make an exception here and allow their claims to go forward. 22 23

24 1 1. Identity of Issues 2 Despite the Snoqualmie’s novel claims, the factual issue that determined the Tribe’s 3 fishing rights in Washington II is the same gateway question that the Court would face here when 4 determining hunting and gathering rights under the Treaty of Point Elliott. The type of rights

5 sought is a distinction without a difference. The Ninth Circuit’s decision affirming Washington II 6 unequivocally addressed the “single condition” necessary for determining whether a “group 7 asserting treaty rights [is the same] as the group named in the treaty[:]” maintenance of an 8 organized tribal structure. 641 F.3d at 1372. The Snoqualmie do not explain how the factual 9 issues necessary to determine signatory status with respect to fishing rights could differ from 10 those required to determine hunting and gathering rights, all of which are described in the same 11 article of the Treaty. This is because they do not differ; as the Ninth Circuit recognized, both 12 issues hinge on the same question of identity between the original signatories and the present-day 13 tribe. See id. at 1372. 14 The Snoqualmie insist that Judge Boldt and subsequent courts explicitly limited the

15 Washington line of cases to fishing rights. See, e.g., Goldmark, 994 F. Supp. 2d at 1174 (noting 16 that “the scope of the hunting and gathering provision has not been previously litigated in federal 17 court”); Skokmish Indian Tribe v. Forsman, 738 Fed. Appx. 406, 408 (9th Cir. 2018) (“No 18 plausible reading” of the U.S. v. Washington litigation “supports the conclusion that [it] decided 19 anything other than treaty fishing rights.”). But while Washington II does not determine the 20 scope of hunting and gathering rights, this says nothing about whether tribes that lack fishing 21 rights because they lack successorship to any treaty signatories could nonetheless have other 22 treaty rights. The Ninth Circuit’s broad holding implicitly answers that question in the negative. 23

24 1 641 F.3d at 1372. As for Judge Boldt’s statements, his focus on fishing rights does not change 2 the implications of his factual finding. 3 Finally, the Snoqualmie’s argument that this case raises new factual issues because Judge 4 Boldt focused on federal recognition simply repeats the position from Judge Canby’s dissent. See

5 id. at 1375. If this could carry the day, the Snoqualmie and the other four intervening tribes from 6 Washington II may possess all the rights from the Stevens Treaties, including fishing. But 7 unfortunately for the Snoqualmie, Judge Canby’s dissent was only a dissent; the majority 8 addressed Judge Boldt’s erroneous focus on recognition but still affirmed his factual 9 determination based on the record. Id. at 1373. Because that determination is imperative for all 10 treaty rights, including hunting and gathering, the requirements for issue preclusion are met. 11 2. Exceptions to Issue Preclusion 12 If issue preclusion applies, the Snoqualmie argue that the Tribe’s federal recognition in 13 1997 justifies an exception. They specifically point to two exceptions described in Section 28 of 14 the Restatement (Second) of Judgments: one that applies if the “issue is one of law” and there has

15 been an “an intervening change in the applicable legal context,” and a second that is relevant 16 when there are “differences in the quality or extensiveness of the procedures followed in the two 17 courts.” Courts may, for example, circumvent issue preclusion if the decisive legal principle in 18 the former case was overturned. See Segal v. Am. Tel. & Tel. Co., 606 F.2d 842, 845 (9th Cir. 19 1979). The second exception is used more rarely, but one court applied it where the relevant 20 issue was previously decided in small claims court, which lacks many procedural protections. 21 Clusiau v. Clusiau Enterprises, Inc., 225 Ariz. 247, 251 (Ct. App. 2010). On the other hand, the 22 mere fact that the issue was previously decided in state rather than federal court does not 23

24 1 demonstrate inadequate procedures. See Gilbert v. Constitution State Serv., Co., 101 F. Supp. 2d 2 782, 787 (S.D. Iowa 2000). 3 Here, these exceptions can only apply if: (1) the Ninth Circuit used the wrong standard in 4 affirming Washington II, or (2) the Snoqualmie can demonstrate qualitative defects in the

5 proceedings surrounding Judge Boldt’s decision. Neither of these are the case. There is no 6 indication that the standard requiring maintenance of an organized tribal structure has been 7 overruled or altered since the decision upholding Washington II. Rather, courts have continued to 8 apply it. See, e.g., Robinson v. Salazar, 838 F. Supp. 2d 1006, 1033 (E.D. Cal. 2012); United 9 States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698, 706 (9th Cir. 2010). 10 The Snoqualmie also suggest that their federal recognition in 1997 creates a new legal context, 11 but this is incorrect. Nothing about federal recognition constitutes a “change or development in 12 the controlling legal principles” for determining treaty status. Commissioner of Internal Revenue 13 v. Sunnen, 333 U.S. 591 (1948). 14 Federal recognition does, of course, cast different light on the determination in

15 Washington II that the Snoqualmie have not maintained an organized tribal structure since 1855. 16 The BIA’s Proposed Finding, which was largely adopted in the Final Determination regarding 17 recognition, concluded that the Snoqualmie maintained a distinct political and cultural 18 community from 1855 onward. Proposed Finding for Federal Acknowledgment of the 19 Snoqualmie Indian Tribe, 58 Fed. Reg. 27162-01, 27163 (1993); see also Final Determination, 20 62 Fed. Reg. at 45865. 21 But the fact that the BIA reached a different conclusion about the Snoqualmie’s political 22 continuity does not mean the proceedings in Washington II were inadequate. As multiple courts 23 have observed, the five intervening tribes had an opportunity to argue their positions and present

24 1 evidence during hearings before Magistrate Judge Cooper, a three-day de novo hearing before 2 Judge Boldt, and finally a hearing before the Ninth Circuit. See Washington III, 98 F.3d 1159 at 3 1161; Washington IV, 593 F.3d at 799. The Snoqualmie do not identify any specific facts that 4 were not and could not have been presented in those prior proceedings. Indeed, as was true for

5 the Samish, the Snoqualmie Tribe had every “incentive to present in Washington II all of its 6 evidence supporting its right to successor treaty status.” Washington IV, 593 F.3d at 799. 7 While the inconsistency between Washington II and the BIA’s findings is disconcerting, 8 that alone is not enough to dispense with issue preclusion. The Snoqualmie point out that Judge 9 Boldt made several comments in his decision suggesting that it was temporally-limited and could 10 change with a successful application for federal recognition. See Washington II, 476 F. Supp. at 11 1111 (concluding that the tribes were not political successors to the treaty signatories “at this 12 time”). The Tribe also interprets the Ninth Circuit’s observation in Washington IV that “a newly 13 recognized tribe [is not precluded from] present[ing] a claim of treaty rights not yet adjudicated” 14 as suggesting that issue preclusion should not apply if a tribe seeks a treaty right other than

15 fishing. 593 F.3d at 801. But Judge Boldt’s statements limiting his holding were premised on his 16 belief that recognition status was dispositive. The reviewing panel that disabused him of that 17 notion did not mention temporal limitations. And while the Ninth Circuit’s statement in 18 Washington IV invites litigation from tribes that have not sought treaty rights in the past, it does 19 not apply to tribes like the Snoqualmie that have adjudicated the essential issue for determining 20 treaty status. 21 The Ninth Circuit has made it clear that “treaty litigation and recognition proceedings 22 [are] ‘fundamentally different’ and [have] no effect on one another.” Id. at 800 (quoting Greene, 23 64 F.3d at 1270). While this statement was made in the context of reopening Washington II, its

24 1 logic applies equally to issue preclusion. Judge Boldt’s decision, as affirmed by the Ninth 2 Circuit, was a final judgment concluding that the Snoqualmie are not political successors to the 3 Treaty of Point Elliott signatories. That issue is dispositive for all claims in this case. 4 CONCLUSION

5 Because the factual issue at the heart of the Snoqualmie’s claims has been resolved 6 against them in a previous proceeding, this case must be DISMISSED with prejudice. The 7 State’s Motion is GRANTED, and all other pending motions are DENIED AS MOOT. 8 IT IS SO ORDERED. 9 10 Dated this 18th day of March, 2020. 11 A

12 Ronald B. Leighton 13 United States District Judge 14 15 16

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