United States v. State of Washington ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
No. 08-35794
STATE OF WASHINGTON; SWINOMISH D.C. Nos.
TRIBAL COMMUNITY; LUMMI 2:01-sp-00002-RSM
NATION; UPPER SKAGIT INDIAN 2:70-cv-09213-RSM
TRIBE; THE TULALIP TRIBES; PORT
ORDER DENYING
GAMBLE S’KLALLAM TRIBE;
JAMESTOWN S’KLALLAM TRIBE;  MOTION FOR
CONFEDERATED TRIBES AND CLARIFICATION
BANDS OF THE YAKAMA INDIAN AND AMENDING
NATION, OPINION AND
Defendants-Appellees, AMENDED
OPINION
v.
SAMISH INDIAN TRIBE,
Movant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
September 22, 2009—San Francisco, California
Filed December 11, 2009
Amended January 27, 2010
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
William C. Canby, Jr., Stephen Reinhardt,
Andrew J. Kleinfeld, Kim McLane Wardlaw,
William A. Fletcher, Marsha S. Berzon,
Johnnie B. Rawlinson, Richard R. Clifton and
Consuelo M. Callahan, Circuit Judges.
1629
1630 UNITED STATES v. STATE OF WASHINGTON
Opinion by Judge Canby
1632 UNITED STATES v. STATE OF WASHINGTON
COUNSEL
Elizabeth Ann Peterson, Attorney, Department of Justice,
Washington, D.C., for the plaintiff-appellee.
Mason D. Morisset, Morisset, Schlosser, Jozwiak & McGaw,
Seattle, Washington; James M. Jannetta, Swinomish Indian
Tribal Community, La Conner, Washington; Harold Chesnin,
Office of the Tribal Attorney Upper Skagit Indian Tribe,
Sedro Woolley, Washington; for defendant-appellee Treaty
Tribes.
Craig J. Dorsay, Dorsay & Easton, LLP, Portland, Organ, for
the movant-appellant.
Alexandra K. Smith, Lane Powell, PC, Seattle, Washington,
for the amicus curiae.
ORDER
The opposed motion of the Samish Indian Tribe for clarifi-
cation of the opinion filed in this matter on December 11,
2009, is DENIED.
UNITED STATES v. STATE OF WASHINGTON 1633
****
The opinion filed in this matter on December 11, 2009, slip
op. 16399, is amended as follows:
At slip op. 16410, first full paragraph, line 4: Insert “,
according to Greene III,” after “Samish Tribe’s history
which.”
At slip op. 16410, first full paragraph, line 7: Delete “id.
§ 83.7(a)” and substitute therefor “25 C.F.R. § 83.7(a).”
At slip op. 16410, first full paragraph, line 14: Delete “25
C.F.R. § 83.7(e)” and substitute therefor: “id. § 83.7(e).”
****
No petitions for rehearing, rehearing en banc, or rehearing
before the full court are pending.
No subsequent petitions for rehearing, rehearing en banc, or
rehearing before the full court may be filed.
OPINION
CANBY, Circuit Judge:
INTRODUCTION
This appeal presents one more chapter in the litigation over
Indian treaty fishing rights in the Pacific Northwest. The
appellant Samish Tribe claims to be a successor to a tribe that
entered the Treaty of Point Elliott, 12 Stat. 927 (1855), with
the United States. In 1974, the Samish Tribe intervened in the
foundational treaty rights case of United States v. Washington,
384 F. Supp. 312 (W.D. Wash. 1974) (“Washington I”), aff’d,
1634 UNITED STATES v. STATE OF WASHINGTON
520 F.2d 676 (9th Cir. 1975), in order to establish its entitle-
ment to treaty fishing rights. At that time, the Samish Tribe
had not been recognized by the federal government. The dis-
trict court rejected the Tribe’s claim to treaty rights, finding
that the Samish Tribe had not “lived as a continuous separate,
distinct and cohesive Indian cultural or political community”
and was not “descended from any of the tribal entities that
were signatory to the Treaty of Point Elliott.” United States
v. Washington, 476 F. Supp. 1101, 1106 (W.D. Wash. 1979)
(“Washington II”), aff’d, 641 F.2d 1368 (9th Cir. 1981).
Nearly twenty years later, in connection with separate liti-
gation, the Samish Tribe succeeded in obtaining federal recogni-
tion.1 See Final Determination for Federal Acknowledgment
of the Samish Tribal Organization as an Indian Tribe, 61 Fed.
Reg. 15,825 (Apr. 9, 1996) (“Samish Recognition”); Greene
v. Babbitt, 943 F. Supp. 1278 (W.D. Wash. 1996) (“Greene
III”). The Tulalip Tribes, which possessed treaty fishing rights
and feared their dilution, were denied intervention in the
Samish recognition proceedings on the ground that recogni-
tion could not affect treaty rights. Greene v. United States,
996 F.2d 973 (9th Cir. 1993) (“Greene I”). In 2002, the
Samish Tribe returned to the Washington litigation and
sought, on the basis of its federal recognition, relief under
Federal Rule of Civil Procedure 60(b) from the 1979 judg-
ment in Washington II. The district court denied relief. We
reversed, holding that the intervening federal recognition was
an extraordinary circumstance permitting the reopening of the
1979 decision under Rule 60(b)(6). United States v.
Washington, 394 F.3d 1152, 1161 (9th Cir. 2005)
(“Washington III”).
On remand, the district court again denied Rule 60(b)
1
Federal recognition is now referred to as federal “acknowledgment”
under the regulatory scheme of the Department of the Interior. See 25
C.F.R. pt. 83 (2009). For simplicity, we continue to refer to “recognition,”
which was the phrase in use at the time of Washington I and II.
UNITED STATES v. STATE OF WASHINGTON 1635
relief, and the Samish Tribe again appeals. For reasons we
now set forth, we affirm the judgment of the district court. In
doing so, we resolve a conflict in our precedent between
Washington III, which held that recognition was an extraordi-
nary circumstance justifying the reopening of Washington II,
and our cases holding that federal recognition is an indepen-
dent process that has no effect on treaty rights. See Greene I,
996 F.2d at 977; Greene v. Babbitt, 64 F.3d 1266, 1270-71
(9th Cir. 1995) (“Greene II”). We resolve the conflict in favor
of the Greene proposition: recognition proceedings and the
fact of recognition have no effect on the establishment of
treaty rights at issue in this case.
FACTUAL AND LEGAL BACKGROUND
1. Off-Reservation Treaty Fishing Rights
During the 1850s Governor Stevens of Washington Terri-
tory negotiated a number of treaties with Northwest Indian
tribes. The Treaty of Point Elliott was typical of those treaties
in guaranteeing the signatory tribes “[t]he right of taking fish
at usual and accustomed grounds and stations . . . in common
with all citizens of the Territory.” 12 Stat. at 928. In Washing-
ton I, the seminal case construing this clause, the district court
held that, with small exceptions, the treaty clause reserved to
the Indians the right to take fifty percent of the annual har-
vestable runs of salmon and steelhead trout.2 384 F. Supp. at
343. It further held that fourteen tribes or bands, not including
the present Samish Tribe, were entitled to off-reservation
treaty fishing rights as political successors to tribes that had
signed treaties guaranteeing tribal fishing rights. Id. at 406.
Two of the tribes so entitled, the Stillaguamish and Upper
Skagit Tribes, were not federally recognized. Id. at 378-79.
2
This division of the fishery was ultimately upheld by the Supreme
Court in Washington v. Washington State Comm. Passenger Fishing Ves-
sel Ass’n, 443 U.S. 658 (1979).
1636 UNITED STATES v. STATE OF WASHINGTON
2. Initial Denial of Samish Tribe Treaty Status
Shortly thereafter, the Samish Tribe intervened in the
Washington litigation and sought to establish its entitlement
to treaty fishing rights. At that time, the Samish Tribe was not
federally recognized.3 The district court denied relief. Wash-
ington II, 476 F. Supp. at 1106. The district court found that
the Samish Indians, then numbering between 98 and 150 per-
sons, were a party to the Treaty of Point Elliott. Id. at 1105-
06. They were not named in the Treaty, but were signed for
by the Lummi Tribe representative. Id. at 1106. The court fur-
ther found:
Pursuant to the treaty most of the Samish people ini-
tially moved to the Lummi Reservation. Later others
moved to the Swinomish Reservation. The present-
day Lummi and Swinomish Reservation tribes
include descendants of the 1855 Samish Indians.
Id. The court held, however, that “[t]he Intervenor Samish
Tribe is not an entity that is descended from any of the tribal
entities that were signatory to the Treaty of Point Elliott.” Id.
The court noted the Samish’s lack of federal recognition and
further stated:
The Intervenor’s membership roll contains 549 per-
sons many of whom are of only 1/16th degree Indian
blood. Two 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 members of the Intervenor Samish Tribe and
their ancestors do not and have not lived as a contin-
3
Four other federally unrecognized tribes intervened along with the
Samish Tribe: the Duwamish, Snohomish, Snoqualmie, and Steilacoom
Tribes. All were unsuccessful in establishing entitlement to treaty fishing
rights. Washington II, 476 F. Supp. at 1111.
UNITED STATES v. STATE OF WASHINGTON 1637
uous separate, distinct and cohesive Indian cultural
or political community. The present members have
no common bond of residence or association other
than such association as is attributable to the fact of
their voluntary affiliation with the Intervenor entity.
Id. (internal citations omitted). The court accordingly con-
cluded that the Samish Tribe was not “at this time a treaty
tribe in the political sense” within the meaning of Washington
I and did not “presently hold[ ] for itself or its members fish-
ing rights secured by any of the Stevens treaties identified in
[Washington I].” Id. at 1111. The district court also concluded
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. This last conclusion was surprising because it was
wholly inconsistent with the district court’s ruling in Wash-
ington I that two unrecognized tribes were entitled to treaty
fishing rights. 384 F. Supp. at 378-79, 406.
On appeal, we affirmed the denial of treaty rights. United
States v. Washington, 641 F.2d 1368 (9th Cir. 1981). We
pointed out the district court’s error in stating that federal rec-
ognition is a prerequisite to the enjoyment of treaty rights:
“[t]his conclusion is clearly contrary to our prior holding
[affirming Washington I] and is foreclosed by well-settled
precedent.” Id. at 1371. We nevertheless held that the district
court’s factual findings supported the denial of relief:
[T]he district court specifically found that the appel-
lants had not functioned since treaty times as “con-
tinuous separate, distinct and cohesive Indian
cultural or political communit[ies].”
After close scrutiny, we conclude that the evidence
supports this finding of fact. Although the appellants
now have constitutions and formal governments, the
governments have not controlled the lives of the
1638 UNITED STATES v. STATE OF WASHINGTON
members. Nor have the appellants clearly established
the continuous informal cultural influence they con-
cede is required.
Id. at 1373 (internal citation omitted) (second alteration in origi-
nal).4
3. Federal Recognition of the Samish Tribe; Treaty Tribes
Denied Intervention to Oppose Recognition
The Samish Tribe first sought federal recognition in 1972,
but no action was taken on the application. In 1978, the
Department of the Interior adopted rules establishing a pro-
cess for tribes to achieve federal recognition, known in the
regulations as federal “acknowledgment.” Procedures for
Establishing That an American Indian Group Exists as an
Indian Tribe, 43 Fed. Reg. 39,361, 39,363 (Sept. 5, 1978).5
The Samish Tribe then filed a revised application.
On February 5, 1987, the Department of the Interior pub-
lished a “Final Determination That the Samish Indian Tribe
Does Not Exist as an Indian Tribe.” 52 Fed. Reg. 3709. A
major reason for the denial was that the Tribe had failed to
meet two mandatory requirements for recognition: (1) “that a
substantial portion of the petitioning group inhabits a specific
area or lives in a community viewed as American Indian and
distinct from other populations in the area, and that its mem-
bers are descendants of an Indian tribe which historically
inhabited a specific area”; and (2) “that the petitioner has
maintained tribal political influence or other authority over its
members as an autonomous entity throughout history until the
4
One judge (the present writer) dissented from our decision, contending
that the district court’s erroneous conclusion of law requiring federal rec-
ognition tainted its factual findings, id. at 1374-76 (Canby, J. dissenting),
but the majority clearly did not accept that view.
5
The current version of the acknowledgment regulations may be found
at 25 C.F.R. pt. 83 (2009).
UNITED STATES v. STATE OF WASHINGTON 1639
present.” 43 Fed. Reg. at 39,363.6 The Department’s decision
was made on the papers; the regulation did not provide for a
hearing and gave the applicant no right to see the submissions
of others.
The Samish Tribe then brought an action in district court
challenging the administrative denial of recognition. The
Tulalip Tribes, which had treaty fishing rights, attempted to
intervene on the ground that recognition of the Samish Tribe
would threaten the Tulalips’ treaty fishing rights. See Greene
I, 996 F.2d at 975. The district court ruled that the Samish
Tribe could not, in its challenge to denial of recognition, reli-
tigate Washington II’s denial of treaty fishing rights. See id.
The district court then denied intervention, and the Tulalip
Tribes appealed. See id. at 976.
We upheld the denial of intervention, rejecting the
Tulalips’ argument that the factual inquiries underlying recog-
nition were so similar to the inquiries underlying treaty rights
that recognition was bound to affect treaty rights. We stated:
We recognize that the two inquiries are similar. Yet
each determination serves a different legal purpose
and has an independent legal effect. Federal recogni-
tion is not a threshold condition a tribe must estab-
lish to fish under the Treaty of Point Elliott . . . .
Similarly, the Samish need not assert treaty fishing
rights to gain federal recognition . . . . Even if they
obtain federal tribal status, the Samish would still
have to confront the decisions in Washington I and
II before they could claim fishing rights. Federal rec-
ognition does not self-execute treaty rights claims.
6
These requirements continue in slightly modified form today. See 25
C.F.R. § 83.7(b) & (c) (2009).
1640 UNITED STATES v. STATE OF WASHINGTON
Id. at 976-77.
Meanwhile, the district court had ruled that the Samish had
been denied due process in the administrative proceeding, and
remanded for a formal adjudication under the Administrative
Procedure Act. See Greene v. Lujan, No. C89-645Z, 1992 WL
533059 (W.D. Wash. Feb. 25, 1992). The Secretary of the
Interior appealed that decision. The Tulalip Tribes, as amici
curiae, again argued that recognition of the Samish was barred
by Washington II. We rejected that contention and affirmed
the district court in Greene II. We stated:
Our decision in Greene v. United States, 996 F.2d
973 (9th Cir. 1993), can leave no serious doubt that
our court regards the issues of tribal treaty status and
federal acknowledgment as fundamentally different.
We there held that the Tulalip Tribe was not entitled
to intervene in this very litigation. We did so because
the Tulalip’s interest in preventing the Samish from
gaining treaty fishing rights was not affected by this
litigation, involving federal tribal recognition or, as
it is termed in the applicable regulation, “acknowl-
edgment.”
Greene II, 64 F.3d at 1270. We further observed that we had
denied intervention by the Tulalip Tribes in Greene I “be-
cause we disagreed with their position that Samish success in
the [recognition case] would undermine the finality of the
Washington II decision.” Id. at 1271. After further consider-
ation of the merits, we then upheld the district court’s ruling
that due process entitled the Samish Tribe to a hearing on its
application for recognition. Id. at 1275.
In administrative proceedings that followed, an Administra-
tive Law Judge held that the Samish Tribe was entitled to fed-
eral recognition. The judge included several findings tracing
the Samish Tribe’s history which, according to Greene III,
supported the mandatory recognition criteria that: (1) the
UNITED STATES v. STATE OF WASHINGTON 1641
group “has been identified as an American Indian entity on a
substantially continuous basis since 1900,” 25 C.F.R.
§ 83.7(a); (2) the group “comprises a distinct community and
has existed as a community from historical times until the
present,” id. § 83.7(b); (3) the tribe has “maintained political
influence or authority over its members,” id. § 83.7(c); and
(4) “[t]he petitioner’s membership consists of individuals who
descend from a historical Indian tribe or from historical
Indian tribes which combined and functioned as a single
autonomous political entity,” id. § 83.7(e). See Greene III,
943 F. Supp. at 1283-84. The Assistant Secretary of the Inte-
rior, however, after an ex parte conference with a government
lawyer and expert witness, approved the recognition of the
Samish Tribe but deleted several of the crucial findings of the
Administrative Law Judge underlying the determination that
the Samish had met the regulatory requirements. See id. at
1282-83; Samish Recognition, 61 Fed. Reg. at 15,825.
The Samish Tribe thereupon returned to district court,
objecting to the deletion of the Administrative Law Judge’s
findings. The district court held the ex parte contacts to be
unlawful, and reinstated the disputed findings of the Adminis-
trative Law Judge. Greene III, 943 F. Supp. at 1288-89.7
4. The Samish Tribe Moves to Reopen the Treaty Rights
Denial; Washington III.
In 2002, armed with its federal recognition, the Samish
Tribe filed a motion in district court to reopen Washington II.
See Washington III, 394 F.3d at 1156. The motion was filed
pursuant to Federal Rule of Civil Procedure 60(b), which pro-
7
The Treaty Tribes contend that the Samish Tribe misled the district
court into mistaking the text of the disputed findings of the Administrative
Law Judge. We are satisfied, however, that the district court here was cor-
rect in holding that the district court in Greene III reinstated the actual
findings of the Administrative Law Judge, not some inaccurate description
thereof.
1642 UNITED STATES v. STATE OF WASHINGTON
vides that a court may relieve a party from a final judgment
for certain specified reasons or, in a catchall provision, for
“any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). Several tribes that currently hold treaty fishing
rights (“the Treaty Tribes”) opposed the motion. Washington
III, 394 F.3d at 1156. The district court denied relief.
The Samish appealed, and we reversed. We recognized that
the catchall provision of Rule 60(b) “ ‘has been used spar-
ingly as an equitable remedy to prevent manifest injustice’
and ‘is to be utilized only where extraordinary circumstances
prevented a party from taking timely action to prevent or cor-
rect an erroneous judgment.’ ” Id. at 1157 (quoting United
States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049
(9th Cir. 1993)). We held that, in light of the circumstances
of the earlier denial of treaty rights for the Samish Tribe, its
subsequent federal recognition was an “extraordinary circum-
stance” justifying Rule 60(b) relief. Id. at 1161. The key point
was not the recognition itself, but the factual findings underly-
ing the recognition, notably the findings that the Samish Tribe
“ ‘has been continuously identified throughout history as
Indian or aboriginal, has existed as a distinct community since
first sustained European contact, has maintained political
influence within itself as an autonomous entity and that 80
percent of its members are descendants of the historical
Samish tribe.’ ” Id. at 1160 (quoting 61 Fed. Reg. 15825,
15826).
We noted that, if the Samish Tribe had been recognized at
the time it first sought an adjudication of treaty rights, it “al-
most certainly” would have succeeded. Id. at 1159. We fur-
ther stated:
In light of the government’s “excessive delays and
. . . misconduct” in withholding of recognition from
the Samish, a circumstance beyond their control; the
government’s position in Washington II that federal
recognition was necessary and that future federal
UNITED STATES v. STATE OF WASHINGTON 1643
recognition might justify revisiting the treaty rights
issue; and the district court’s erroneous conclusion
that nonrecognition was decisive and wholesale
adoption of the United States’ boiler-plate findings
of fact in Washington II, we conclude that the
Samish were effectively prevented from proving
their tribal status “in a proper fashion.”
Id. (alteration in original). We also noted:
Although we have previously held that federal rec-
ognition is not necessary for the exercise of treaty
fishing rights by a signatory tribe, we have never
held that federal recognition is not a sufficient condi-
tion for the exercise of those rights. Indeed, our pre-
cedent leads us to the inevitable conclusion that
federal recognition is a sufficient condition for the
exercise of treaty rights.
Id. at 1157-58. The reason, we said, was that treaty rights
require that a signatory group has maintained an organized
tribal structure from treaty times to the present, and recogni-
tion requires that a group be a distinct community that has
existed from historical times to the present and maintained
political influence or authority over its members during that
time. Id. at 1158. Because the Samish were parties to the
treaty, recognition of the Samish Tribe established that they
were successors to the treaty status. Id. at 1160.
Finally, we ruled that the district court’s concerns for the
finality of judgments did not justify denial of the Samish’s
motion to reopen Washington II: “Unlike a judgment between
private parties, the allocation of natural resources between
treaty tribes and others cannot help but be an ongoing ven-
ture.” Id. at 1162. We accordingly reversed the district court’s
order and remanded for further proceedings consistent with
our opinion. Id.
1644 UNITED STATES v. STATE OF WASHINGTON
5. The District Court’s Decision on Remand, Now Under
Review
On remand after our decision in Washington III, the district
court again denied the Samish Tribe’s motion to reopen
Washington II. It recited at length the findings of Washington
II that the present Samish Tribe had not maintained an orga-
nized tribal structure and was not a successor to the Samish
Tribe that had secured treaty rights in 1855. The district court
also noted that reopening on the ground of the intervening
recognition of the Samish Tribe would conflict with the
Greene cases in which we denied intervention of treaty tribes
in the Samish recognition proceedings because recognition
would have no effect on treaty rights. The district court reiter-
ated its original view that considerations of finality supported
denial because reopening would be hugely disruptive to the
regime of treaty fishing that had been established in the wake
of Washington II.8
The Samish Tribe again appealed.
DISCUSSION
In ruling on remand that considerations of finality required
it to deny reopening of Washington II, the district court
clearly violated the mandate of Washington III. The consider-
ations of finality cited by the district court had all been con-
sidered and rejected by our court in Washington III, as had
our decisions in the Greene cases. We do not condone devia-
8
The district court also added two new grounds for denial of reopening.
The first was untimeliness, reflected in the delay between the federal rec-
ognition of the Samish Tribe in 1996 and its motion to reopen filed in
2002. The second ground was inequitable conduct by the Samish Tribe in
misstating and manipulating the findings of the Administrative Law Judge
during the district court’s review of the reinstatement proceedings. Our
disposition of this appeal makes it unnecessary for us to address these rul-
ings.
UNITED STATES v. STATE OF WASHINGTON 1645
tion from our mandates because of a disagreement with this
court’s reasoning.
That having been said, this appeal presents us with a clear
conflict in our precedent that gave difficulty to the district
court here and would give difficulty to other district courts in
the future if we did not address it. For that reason, we voted
to convene this en banc court to resolve this appeal in the first
instance.9
The nature and severity of the conflict in our precedent
should be apparent from our perhaps-too-lengthy recital
above of the history of this litigation. On the one hand, we
have Greene I and II, which denied treaty tribes the right to
intervene in the Samish Tribe’s recognition proceedings
because recognition could have no effect on treaty rights. On
the other hand, we have Washington III, which ruled that the
fact of recognition of the Samish Tribe was an extraordinary
circumstance that justified reopening Washington II. Wash-
ington III further opined that recognition of the Samish Tribe
was a sufficient condition for the establishment of treaty fish-
ing rights.
Each of these two conflicting lines of authority has some-
thing to be said for it, but the two cannot coexist. We con-
9
This appeal was initially argued to a three-judge panel, but the conflict
in our precedent led us to rehear the matter en banc without awaiting a
three-judge decision. See Atonio v. Wards Cove Packing Co., 810 F.2d
1477, 1478-79 (9th Cir. 1987) (en banc). This step was necessary because,
even if the panel could have revisited Washington III under one of the
exceptions to law of the case, see Jeffries v. Wood, 114 F.3d 1484, 1489
(9th Cir. 1997) (en banc), it still would have been bound by that published
opinion as the law of the circuit, see, e.g., Old Person v. Brown, 312 F.3d
1036, 1039 (9th Cir. 2002) (“[W]e have no discretion to depart from pre-
cedential aspects of our prior decision in Old Person I, under the general
law-of-the-circuit rule.”).
1646 UNITED STATES v. STATE OF WASHINGTON
clude that Washington III must yield, and we overrule that
decision.10 We address the conflicting decisions in turn.
Washington III
[1] A primary reason why Washington III decided to permit
reopening of Washington II was that the Samish Tribe had
been effectively prevented from proving its tribal treaty status
“ ‘in a proper fashion.’ ” 394 F.3d at 1159 (citation omitted).
Contributing to that view was the litigating posture of the
United States in Washington II, which asserted that federal
recognition was essential to the establishment of treaty rights
and that, if the Samish were later recognized, the treaty rights
issue might be revisited. See id. Those conclusions of Wash-
ington III, however, were inconsistent with this court’s earlier
ruling in the appeal of Washington II.
[2] This court in affirming Washington II flatly rejected the
ruling of the district court that federal recognition was
required for treaty status. 641 F.2d at 1371 (“This conclusion
is clearly contrary to our prior holding and is foreclosed by
well-settled precedent.”). We held, however, that the crucial
finding of fact justifying the denial of treaty rights was the
district court’s finding “that the [Samish] had not functioned
since treaty times as ‘continuous separate, distinct and cohe-
sive cultural or political communit[ies].’ ” Id. at 1373 (cita-
tion omitted) (second alteration in original). As the district
court in the present case pointed out, this factual finding had
been made by a special master after a five-day trial, and had
been made again by the district judge de novo after an eviden-
10
The decision of Washington III does not bind us as the law of the case.
It is “clearly established” that a three-judge panel decision that is the law
of the case for subsequent three-judge panels “does not bind the en banc
court.” Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d
987, 995 (9th Cir. 2003) (en banc).
UNITED STATES v. STATE OF WASHINGTON 1647
tiary hearing. On appeal, “[a]fter close scrutiny, we con-
clude[d] that the evidence supports this finding of fact.” Id.11
Nor was there any reason why the Samish Tribe lacked
incentive to present in Washington II all of its evidence sup-
porting its right to successor treaty status. The Stillaguamish
and Upper Skagit Tribes had been found to have treaty rights
in Washington I, despite their unrecognized status. There was
no reason for the Samish Tribe to hold back any evidence at
that time, nor do they now offer any underlying evidence that
was subsequently brought to light and could not have been
known at the time of Washington II.
[3] Instead, the Samish Tribe now seeks reopening under
Rule 60(b) on the ground that an administrative body has
come to a conclusion inconsistent with the factual finding
finally adjudicated by this court in Washington II. We have
been directed to no authority upholding relief from judgment
under Rule 60(b) on such a ground.
[4] There are good reasons why reopening under Rule
60(b)(6) is permitted only on a showing of “extraordinary cir-
cumstances.” Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 864 (1988). In United States v. Alpine Land &
Reservoir Co., for example, we denied Rule 60(b)(6) relief
from a complex decree adjudicating water rights to a river.
984 F.2d at 1050. We stated that “[p]articipants in water adju-
dications are entitled to rely on the finality of decrees as much
as, if not more than, parties to other types of civil judgments.”
Id. Similar considerations of finality loom especially large in
11
In 1993, three of the tribes, not including the Samish Tribe, that had
been denied treaty rights in Washington II sought relief from the judgment
on the ground that the district judge may have been impaired by
Alzheimer’s disease at the time of the decision. In denying relief on
grounds of finality and insufficient evidence to support the claim, we
noted that the magistrate judge and this court had both examined the evi-
dence in Washington II and found that it supported the ruling. United
States v. Washington, 98 F.3d 1159, 1163-64 (9th Cir. 1996).
1648 UNITED STATES v. STATE OF WASHINGTON
this case, in which a detailed regime for regulating and divid-
ing fishing rights has been created in reliance on the frame-
work of Washington I. The district court has twice made
compilations of substantive orders entered in the wake of
Washington I. See United States v. Washington, 459 F. Supp.
1020 (W.D. Wash. 1978); United States v. Washington, 626
F. Supp. 1405 (W.D. Wash. 1985). By 1985, seventy-two sub-
stantive orders had been entered. Although such a complex
regime does not preclude a new entrant who presents a new
case for recognition of treaty rights, it certainly cautions
against relitigating rights that were established or denied in
decisions upon which many subsequent actions have been
based.
The potential disruption and possible injury to existing
treaty rights that might follow from reopening the denial of
the Samish Tribe’s treaty claims in Washington II is not con-
fined to mere across-the-board dilution of the shares of total
harvest of all treaty tribes. The treaties guarantee the right to
take fish at “usual and accustomed . . . stations” of each treaty
tribe. The claims of the Samish Tribe necessarily compete
with those of treaty tribes held to be successors of the treaty
Samish, who now fish at the customary stations of the Samish
at treaty times. The impact of new claims asserted as Samish
claims will have a particularly severe impact on such treaty
tribes.12
[5] For all of these reasons, we conclude that the Samish
Tribe is not entitled to reopening of Washington II because of
12
In an effort to minimize disruption, the Samish Tribe at one point
asserted that it “would agree to exercise treaty fishing rights under the
orders in the case that apply to these three tribes [who are successors to
Samish treaty rights], and under the regulatory authority and framework
of the three tribes.” Washington III, 394 F.3d at 1161. This concession,
however, was withdrawn on remand following Washington III. In any
event, it would potentially disturb treaty fishing of the tribes now exercis-
ing Samish treaty rights to have the newly recognized Samish Tribe join
them.
UNITED STATES v. STATE OF WASHINGTON 1649
their subsequent federal recognition. Reopening on this
ground is inconsistent with the considerations of finality that
have led the Supreme Court and this court to confine the
reach of Rule 60(b)(6). The Samish Tribe had a factual deter-
mination finally adjudicated against it in Washington II. The
fact that a subsequent administrative ruling for another pur-
pose may have made underlying inconsistent findings is no
reason for undoing the finality of the Washington II factual
determinations.
Nothing we have said precludes a newly recognized tribe
from attempting to intervene in United States v. Washington
or other treaty rights litigation to present a claim of treaty
rights not yet adjudicated. Such a tribe will have to proceed,
however, by introducing its factual evidence anew; it cannot
rely on a preclusive effect arising from the mere fact of recog-
nition. In Greene II, we denied any estoppel effect of Wash-
ington II on the Samish Tribe’s recognition proceeding,
because treaty litigation and recognition proceedings were
“fundamentally different” and had no effect on one another.
Greene II, 64 F.3d at 1270. Our ruling was part of a two-way
street: treaty adjudications have no estoppel effect on recogni-
tion proceedings, and recognition has no preclusive effect on
treaty rights litigation.13 Indeed, to enforce the assurance in
Greene II that treaty rights were “not affected” by recognition
proceedings, the fact of recognition cannot be given even pre-
sumptive weight in subsequent treaty litigation. To rule other-
wise would not allow an orderly means of protecting the
rights of existing treaty tribes on the one hand, and groups
seeking recognition on the other.
13
Collateral estoppel would not apply in any event against an entity that
was not a party or in privity with a party to the prior litigation. See Collins
v. D.R. Horton, Inc., 505 F.3d 874, 882 n.8 (9th Cir. 2007). Moreover,
offensive collateral estoppel is a discretionary doctrine, see id. at 882, and
the circumstances here justify denying its effect.
1650 UNITED STATES v. STATE OF WASHINGTON
Greene I and II
The nature of recognition proceedings in general and the
Samish recognition proceeding in particular make us espe-
cially reluctant to reopen an adjudicated treaty decision on the
strength of the subsequent recognition of the Samish Tribe.
As we have already recited, we denied the Tulalip Tribes
intervention in the Samish recognition proceedings on the
ground that the “Tulalip’s interest in preventing the Samish
from gaining treaty fishing rights was not affected by this liti-
gation, involving federal tribal recognition . . . .” Greene II,
64 F.3d at 1270. We explained that, in Greene I, we had “de-
nied the Tulalip the right to intervene in this [recognition] liti-
gation because we disagreed with their position that Samish
success in the case at bar would undermine the finality of the
Washington II decision.” Id. at 1271. After these assurances,
it is surely improper for us to accord the recognition decision
the effect of reopening Washington II.
[6] There are good reasons for adhering to the rule that
treaty tribes are not entitled to intervene in recognition deci-
sions to protect against possible future assertions of treaty
rights by the newly recognized tribe, whether or not that tribe
has previously been the subject of a treaty rights decision.
Recognition, or “acknowledgment,” serves a host of purposes
for the group that succeeds in achieving it. It establishes a
“government-to-government relationship” between the recog-
nized tribe and the United States. 25 C.F.R. § 83.2. It is a
“prerequisite to the protection, services, and benefits of the
Federal government available to Indian tribes by virtue of
their status as tribes.” Id. “Federal recognition brings its own
obvious rewards, not the least of which is the eligibility of
federal money for tribal programs, social services and eco-
nomic development.” Greene I, 996 F.2d at 978.
[7] It interjects unnecessary and distracting considerations
into recognition proceedings if treaty tribes find it necessary
or are permitted to intervene to protect against future assertion
UNITED STATES v. STATE OF WASHINGTON 1651
of treaty rights by the tribe seeking recognition. Such inter-
vention has the potential to interfere unnecessarily with a
tribe’s establishing its entitlement to recognition because of
the speculative possibility that some administrative finding
might have an impact on future treaty ligitation. The best way
of avoiding such difficulties, we conclude, is to deny inter-
vention by tribes seeking to protect their treaty rights, and to
deny any effect of recognition in any subsequent treaty litiga-
tion. That is the course we adopt.
CONCLUSION
[8] The judgment of the district court denying the Rule
60(b) motion of the Samish Tribe for relief from the judgment
in Washington II is affirmed. The conflict between Washing-
ton III and Greene I and II is resolved in favor of Greene I
and II; Washington III is overruled.
AFFIRMED.