U.S. v. Washington

• Decision Date: 06 January 2005
• Docket Number: No. 03-35145.,03-35145.
• Citation: 394 F.3d 1152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. State of WASHINGTON; Swinomish Tribal Community; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Lower Elwha Band of Klallams; Jamestown S'Klallam Tribe; Skokomish Indian Tribe; Makah Indian Tribe; Nooksack Indian Tribe of Washington State; Upper Skagit Indian Tribe; Lummi Nation, Defendants-Appellees. Samish Indian Tribe, Applicant in Intervention-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

394 F.3d 1152

UNITED STATES of America, Plaintiff-Appellee, v. State of WASHINGTON; Swinomish Tribal Community; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Lower Elwha Band of Klallams; Jamestown S'Klallam Tribe; Skokomish Indian Tribe; Makah Indian Tribe; Nooksack Indian Tribe of Washington State; Upper Skagit Indian Tribe; Lummi Nation, Defendants-Appellees Samish Indian Tribe, Applicant in Intervention-Appellant.

No. 03-35145.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2004.

Filed January 6, 2005.

Craig J. Dorsay, Portland, OR, for appellant Samish Indian Tribe.

Elizabeth Ann Peterson, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for appellee United States.

Daniel A. Raas, Raas, Johnsen & Stuen, Bellingham, WA, for appellees Lummi Nation, Swinomish Indian Tribal Community, Upper Skagit Indian Tribe, Tulalip Tribe, Suquamish Indian Tribe, Port Gamble S'Klallam Tribe, Lower Elwha Band of S'Klallams, Jamestown S'Klallam Tribe, and Puyallup Tribe of Indians.

Appeal from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. CV 70-9213 BJR.

Before: TASHIMA, PAEZ, and BEA, Circuit Judges.

TASHIMA, Circuit Judge:

Appellant Samish Indian Tribe ("the Samish") sought by means of Federal Rule of Civil Procedure 60(b)(6) to reopen United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979) ("Washington II"), aff'd 641 F.2d 1368 (9th Cir.1981), a judgment that denied the Samish treaty fishing rights on the ground that the tribe had not maintained an organized tribal structure. The Samish argued that federal recognition¹ of their tribe in 1996 was an extraordinary circumstance that justified reexamining their treaty fishing rights. The district court denied the motion to reopen, holding that federal recognition is of limited relevance to the Samish's treaty fishing rights, that the 1979 judgment was not erroneous, and that reopening the judgment would be extremely disruptive. We reverse.

BACKGROUND

In 1855, federal representatives in the Territory of Washington induced a number of Indian tribes to relinquish much of their land in return for payments and the right to keep small parcels of land. See generally Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 661-62, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The resulting treaties also preserved the tribes' right to fish "at usual and accustomed grounds." See, e.g., Treaty of Point Elliott, Jan. 22, 1855, 12 Stat. 927, 928.

A century later, however, runs of fish had become scarce and Native Americans took only a small fraction of the fish harvest. In 1970, the United States brought an action against the State of Washington to force it to protect the tribes' shares of anadromous fish runs. The United States brought the action on its own behalf and as trustee for seven Indian tribes. Another seven tribes successfully intervened in the action. United States v. Washington, 384 F.Supp. 312, 327 & nn. 1-2 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975) ("Washington I"). The district court ruled that all 14 tribes had fishing rights under various treaties, including the Treaty of Point Elliott, id. at 359-82, and that treaty tribes had a right to 50 percent of the harvestable fish passing through their traditional off-reservation fishing grounds. Id. at 343.

After the issuance of the decision in Washington I, the Samish intervened to assert fishing rights under the Treaty of Point Elliott. The district judge referred the matter to a magistrate judge, sitting as a special master. After a five-day hearing, the special master found that the Samish were not recognized as an Indian tribe by the United States government and "have not lived as a continuous separate, distinct and cohesive Indian cultural or political community." The special master therefore concluded that the Samish "at this time" were neither a treaty tribe nor a political successor to a treaty tribe and "presently" did not hold treaty fishing rights. The Samish appealed the special master's ruling to the district court, which held a de novo evidentiary hearing. The district court concluded that the Samish were not entitled to treaty fishing rights. Washington II, 476 F.Supp. at 1106.

In arriving at this conclusion, the district court adopted and relied on findings of fact proposed by the United States. Those findings concerned the Samish's lack of an organized tribal structure, and included the following:

• The Samish Tribe "exercises no attributes of sovereignty over its members or any territory."

• It is not recognized by the United States as a tribe.

• Neither its organization nor its membership has been recognized by the Congress or the Department of the Interior for Indian affairs purposes.

• The Secretary of the Interior has not prepared an official membership roll for the tribe.

• "There is no requirement of specific minimum blood quantum either as to Samish blood in particular or Indian blood in general."

• Many tribe members "are of only 1/16th degree Indian blood" and "[t]wo have only 1/32nd Samish blood."

• "The tribe does not prohibit dual membership and at least one member is an officer of the Lummi tribe."

• The Samish members "do not and have not lived as a continuous separate, distinct and cohesive Indian cultural or political community."

Id. After making these findings about the Samish, the district court stated as a conclusion of law that "[o]nly tribes recognized as Indian political bodies by the United States may possess and exercise the tribal fishing rights secured and protected by the treaties of the United States." Id. at 1111.² The district court therefore concluded that "at this time" the Samish was not a treaty tribe and "presently" did not hold treaty fishing rights. Id.

We affirmed the district court in a divided decision, noting that "[w]e have defined a single necessary and sufficient condition for the exercise of treaty rights by a group of Indians descended from a treaty signatory: the group must have maintained an organized tribal structure." United States v. Washington, 641 F.2d 1368, 1372 (9th Cir.1981) ("Washington III"). In determining whether this condition exists, we examine the organizational structure of the tribe at the time of the treaty signing with allowances for inevitable adaptation and assimilation: "tribal status is preserved if some defining characteristic of the original tribe persists in an evolving tribal community." Id. at 1372-73. Although the district court had erred in concluding that a tribe must be federally recognized in order to exercise treaty fishing rights, we held that the district court's findings of fact were not clearly erroneous and they provided some support for the conclusion that the Samish had not maintained an organized tribal structure.³ Id. at 1373-74.

Because the Samish's inability to exercise their treaty fishing rights hinged on their status as an unrecognized tribe, and because the United States, tribes that opposed the Samish's exercise of treaty fishing rights, and the district court all suggested that future federal recognition might warrant reexamination of the Samish's treaty fishing rights,⁴ the Samish continued their pursuit of federal recognition. The Samish had first sought federal recognition in 1972, three years after a Bureau of Indian Affairs ("BIA") employee removed the Samish from a list used to determine whether a tribe was federally recognized. See Greene v. Babbitt, 943 F.Supp. 1278, 1281, 1284 (W.D.Wash.1996).⁵ The Department of the Interior took no action on the Samish's application until 1979, and in 1987 the BIA issued a final decision denying tribal recognition of the Samish. See Final Determination That the Samish Indian Tribe Does Not Exist as an Indian Tribe, 52 Fed.Reg. 3709 (Feb. 5, 1987).

The Samish then filed an action challenging the BIA's denial of federal recognition. The Tulalip Tribe sought to intervene in that proceeding, arguing that federal recognition of the Samish would lead to a dilution of the Tulalip's fishing rights. The district court denied the Tulalip's intervention motion and, in an interlocutory appeal, we affirmed the denial. Greene v. United States, 996 F.2d 973, 975 (9th Cir.1993). We held that although the federal recognition and treaty fishing rights inquiries were similar, "each determination serves a different legal purpose and has an independent legal effect." Id. at 976. We noted that even if the Samish achieved federal recognition, the tribe would need to challenge the decision in Washington II before it could exercise fishing rights. Id. at 977.⁶

On the merits of the Samish's challenge to the denial of federal recognition, the district court vacated the BIA's decision and remanded the case for a formal adjudication under the Administrative Procedures Act. Greene v. Lujan, No. C89-645Z, 1992 WL 533059, at *9 (W.D.Wash. Feb.25, 1992), aff'd, Greene v. Babbitt, 64 F.3d 1266 (9th Cir.1995). After an eight-day hearing, an Administrative Law Judge ("ALJ") found that the Samish met all of the criteria necessary for federal recognition. The BIA rejected some of the ALJ's findings and conclusions, but ruled in favor of Samish recognition. See Final Determination for Federal Acknowledgment of the Samish Tribal Organization as an Indian Tribe, 61 Fed.Reg. 15,825 (Apr. 9, 1996). The district court reinstated the deleted findings and conclusions, however, and affirmed the recognition decision. Greene v. Babbitt, 943 F.Supp. at 1288-89. The district court also noted that the Samish's "long journey for recognition has been made more difficult by excessive delays and governmental misconduct." Id. at 1281.

On August 23, 2002, the Samish filed with the district court a Rule 60(b)(6) motion to be relieved of the judgment in Washington II. The United States and nine...