U.S. v. State of Or., No. 80-3218

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before KENNEDY and ALARCON; KENNEDY
• Citation: 657 F.2d 1009
• Docket Number: No. 80-3218
• Decision Date: 18 January 1982
• Parties: UNITED STATES of America, Plaintiff, and The Confederated Tribes and Bands of the Warm Springs Reservation of Oregon; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Intervenors, Confederated Tribes and Bands of the Yakima Indian Nation, Appellant, v. STATE OF OREGON, Defendant, and State of Washington, Appellee.

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657 F.2d 1009 UNITED STATES of America, Plaintiff,
and
The Confederated Tribes and Bands of the Warm Springs
Reservation of Oregon; Confederated Tribes of the
Umatilla Indian Reservation; and Nez
Perce Tribe of Idaho, Intervenors,
Confederated Tribes and Bands of the Yakima Indian Nation, Appellant,
v.
STATE OF OREGON, Defendant,
and
State of Washington, Appellee. No. 80-3218. United States Court of Appeals,
Ninth Circuit. Argued and Submitted May 6, 1981.
Decided Sept. 10, 1981.
As Amended Jan. 18, 1982.

Page 1010

James B. Hovis, Hovis, Cockrill & Roy, Yakima, Wash., for appellant.

James M. Johnson, Olympia, Wash., George Dysart, Portland, Or., Maria A. Iizuk, Washington, D. C., for appellee.

Appeal from the United States District Court for the District of Oregon.

Before KENNEDY and ALARCON, Circuit Judges, and HENDERSON, ^* District Judge.

KENNEDY, Circuit Judge:

The primary issue in this appeal is whether the district court had jurisdiction to enjoin the Confederated Tribes and Bands of the Yakima Indian Nation (Yakima Tribe) in an ongoing fishing dispute. The present dispute centers around the annual spring run of Columbia River chinook salmon. In recent years, that run has severely declined. In an attempt to preserve the species, the United States District Court for the District of Oregon enjoined virtually all Yakima

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tribal fishing of the spring chinook. The Tribe argues that this injunction extinguished its treaty fishing rights while failing to protect the spring run. We disagree and affirm.

I. Factual Background

The United States initiated this action in 1968 seeking to establish and protect the treaty fishing rights of all Indian tribes occupying the Columbia River basin. The Yakima Tribe intervened as a party plaintiff soon thereafter. In 1969, the court below entered judgment for the plaintiffs in an opinion reported as Sohappy v. Smith, 302 F.Supp. 899 (D.Or.1969). ¹ That judgment enjoined Oregon, then the only defendant, from enforcing specified fishing regulations. More importantly, it also established a procedure for promulgating future state regulations, and expressly retained continuing jurisdiction in order to expedite enforcement of its decree.

The State of Washington, appellee here, was not an original party. It intervened as of right in 1974, after agreeing to be bound fully by the original decree. Since then, both Washington and the Yakima Tribe have applied successfully to the district court for modifications of the original decree. ²

In 1977, the original parties and the intervenors signed a conservation agreement regarding all anadromous fish spawning above Bonneville Dam. ³ This agreement was designed to be a negotiated alternative to the federal suit. It set escapement goals ⁴ for each species, including the spring chinook, and provided for the establishment of future management techniques. During the plan's five year life, the parties agreed to tender to the Oregon district court any dispute incapable of a negotiated resolution.

The events leading to this appeal began on April 30, 1980, when Washington applied to the Oregon district court for an injunction against any Yakima tribal fishing of spring chinook. ⁵ Washington asserted that such a drastic measure was necessary because precariously low numbers of that salmon were passing Bonneville Dam. These low numbers, in turn, indicated that the safe passage of every salmon was necessary to preserve the species.

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Several traditional Yakima fisheries were affected by the proposed decree. All of the affected fisheries, however, were located in Washington on either the Yakima or the Klitckitat rivers; these rivers feed directly into the Columbia. At least two affected fisheries were located directly on the Yakima tribal reservation.

The district court expedited matters, and on May 5, 1980, after hearing testimony from both sides, it ordered a virtual ban on Yakima fishing. ⁶ The court found that "(t)he 1980 run of spring chinook into the Yakima River is so depressed that all such salmon are necessary for spawning escapement" and that "unless an injunction is issued, immediate and irreparable harm will be suffered to the Klitckitat and Yakima spring chinook runs ...."

The Tribe has appealed the grant of the preliminary injunction. ⁷ 28 U.S.C. § 1292(a)(1) (1976). A preliminary injunction, however, "will normally be reversed only if the lower court abused its discretion or based its decision upon erroneous legal premises." Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). See also Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981); Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 314 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). In order to meet this standard, the Tribe contends that: the Tribe is immune from suit; the court below lacked subject matter jurisdiction; the injunction unduly interfered with the Tribe's treaty rights; and the relief granted was inconsistent with the 1969 decree. Since many of the issues presented by these claims may be resolved by examining the tribal immunity issue, we address it first.

II. Sovereign Immunity

As a general proposition, Indian tribes are immune from suit in state or federal court. ⁸ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978); Puyallup Tribe, Inc. v.

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Department of Game of Washington, 433 U.S. 165, 171-73, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977) (Puyallup III ); California ex rel. Cal. Dep't of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979). Indian tribes enjoy immunity because they are sovereigns pre-dating the constitution, and immunity is thought necessary to preserve autonomous tribal existence. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-13, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); Turner v. United States, 248 U.S. 354, 357-58, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919). ⁹ The immunity, however, is not absolute. Like other sovereign powers possessed by Indian tribes, it exists only at the sufferance of Congress and is subject to complete defeasance. United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978); see also Montana v. United States, 450 U.S. 544, 560-563, 101 S.Ct. 1245, 1256-1257, 67 L.Ed.2d 493 (1981); Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1066 (1st Cir. 1979). Consequently, all parties agree that tribal immunity may be pierced by congressional act. Martinez, 436 U.S. at 58, 98 S.Ct. at 1676; Hamilton v. Nakai, 453 F.2d 152, 158-59 (9th Cir.), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972).

The Tribe, however, asserts that Congress alone has the power to overcome tribal immunity. It argues that since no act of Congress has expressly waived Yakima immunity, or granted Indian tribes the power to waive immunity generally, the Yakima Tribe may not be sued. We believe this view is contrary to both precedent and policy.

Some courts have expressed doubts on the ability of Indian tribes to waive immunity, ¹⁰ but the Supreme Court has expressed clearly its position. In Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919), Mr. Justice Brandeis found tribal immunity, stating that "(w)ithout authorization from Congress, the (tribe) could not ... have been sued in any court; at least (not) without its consent." Id. at 358, 39 S.Ct. at 110. The Court carried this idea forward in Puyallup III. In finding immunity, the Court relied on the fact that the non-Indian party did not prove "that either the Tribe or Congress ha(d) waived its claim of immunity or consented to the entry of an order against it." 433 U.S. at 173, 97 S.Ct. at 2621. See also id. at 171, 172, 97 S.Ct. at 2620, 2621; Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 396-97 n.11, 88 S.Ct. 1725, 1727-1728, 20 L.Ed.2d 689 (1968) (Puyallup I ). If Indian tribes could not waive immunity, the italicized language above would be surplusage. We think it is more than that.

We thus hold that Indian tribes may consent to suit without explicit Congressional authority. At least three other circuits have so held. See Merrion v. Jicarilla Apache Tribe, 617 F.2d 537, 540 (10th Cir. 1980) (en banc), cert. granted on other issues, 449 U.S. 820, 101 S.Ct. 71, 66 L.Ed.2d 21 (1980), restored to calendar, --- U.S. ----, 101 S.Ct. 3156, 69 L.Ed.2d 1003 (1981); Fontenelle v. Omaha Tribe of Neb., 430 F.2d 143, 147 (8th Cir. 1970); Maryland Cas. Co. v. Citizens Nat'l Bank of W. Hollywood, 361 F.2d 517, 520-21 (5th Cir.), cert. denied, 385 U.S. 918, 87 S.Ct. 227, 17 L.Ed.2d 143 (1966). ¹¹.

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Clear policy considerations also militate in favor of the tribe's power to consent to suit. As the Yakima Tribe itself argues, its treaty with the government secures to it certain powers of self-determination. To hold that the ability to waive immunity is not among those powers would be contrary to that right. See Bottomly, 599 F.2d at 1066. ¹² Further, non-Indian interests might prudently avoid contracts with Tribes that would otherwise prove beneficial to the Indians, with the result that Tribes wishing to engage in business would be needlessly impeded. See, e. g., Parker Drilling Co. v. Metlakatla Indian Community, 451 F.Supp. 1127, 1136 (D.Alas.1978). Accordingly, since tribes may consent to suit, the issue here is whether the Yakima Tribe has manifested its consent to this suit.

The parties have advanced two theories of consent. Under the first, it is asserted that the Tribe's intervention constitutes consent. The second posits that the Tribe consented by agreeing in 1977 to submit all disputes over fishing to the Oregon district court. Both theories are sound.

Intervenors under Fed.R.Civ.P. 24(a)(2), such as the Yakima Tribe, enter the suit with the...