Samish Indian Tribe v. State of Washington , 394 F.3d 1152 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
STATE OF WASHINGTON; SWINOMISH
TRIBAL COMMUNITY; NISQUALLY
INDIAN TRIBE; PORT GAMBLE
S’KLALLAM TRIBE; LOWER ELWHA No. 03-35145
BAND OF KLALLAMS; JAMESTOWN
S’KLALLAM TRIBE; SKOKOMISH  D.C. No.
CV 70-9213 BJR
INDIAN TRIBE; MAKAH INDIAN
TRIBE; NOOKSACK INDIAN TRIBE OF OPINION
WASHINGTON STATE; UPPER SKAGIT
INDIAN TRIBE; LUMMI NATION,
Defendants-Appellees.
SAMISH INDIAN TRIBE,
Applicant in Intervention-
Appellant.

Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted
May 3, 2004—Seattle, Washington
Filed January 6, 2005
Before: A. Wallace Tashima, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Bea
107
110 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
COUNSEL
Craig J. Dorsay, Portland, Oregon, for appellant Samish
Indian Tribe.
Elizabeth Ann Peterson, U.S. Department of Justice, Environ-
ment & Natural Resources Division, Washington, D.C., for
appellee United States.
Daniel A. Raas, Raas, Johnsen & Stuen, Bellingham, Wash-
ington, for appellees Lummi Nation, Swinomish Indian Tribal
Community, Upper Skagit Indian Tribe, Tulalip Tribe, Suqua-
mish Indian Tribe, Port Gamble S’Klallam Tribe, Lower
Elwha Band of S’Klallams, Jamestown S’Klallam Tribe, and
Puyallup Tribe of Indians.
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 111
OPINION
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 Wash-
ington 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 (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
1
“Federal recognition” is a process by which the United States govern-
ment formally acknowledges a government-to-government relationship
with a historic tribe. See 25 C.F.R. §§ 83.2, 83.12 (2003).
112 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
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 tra-
ditional 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 magis-
trate judge, sitting as a special master. After a five-day hear-
ing, 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 sov-
ereignty over its members or any territory.”
• It is not recognized by the United States as a
tribe.
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 113
• Neither its organization nor its membership has
been recognized by the Congress or the Depart-
ment 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 par-
ticular 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 recog-
nized as Indian political bodies by the United States may pos-
sess 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
2
This conclusion is surprising given that in Washington I the district
court determined that the Stillaguamish Tribe and the Upper Skagit Tribe
were treaty tribes, although neither was federally recognized at the time.
See 384 F. Supp. at 378-79.
114 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
that “[w]e have defined a single necessary and sufficient con-
dition for the exercise of treaty rights by a group of Indians
descended from a treaty signatory: the group must have main-
tained an organized tribal structure.” United States v. Wash-
ington, 641 F.2d 1368, 1372 (9th Cir. 1981) (“Washington
III”). In determining whether this condition exists, we exam-
ine 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 char-
acteristic 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 dis-
trict 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 fish-
ing 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 sug-
gested that future federal recognition might warrant reexami-
nation of the Samish’s treaty fishing rights,4 the Samish
3
In dissent, Judge Canby argued that the district court’s factual findings
could not be so easily severed from its erroneous belief in the necessity
of federal recognition. 641 F.2d at 1374-75 (Canby, J., dissenting). Indeed,
many of the findings simply reflected the Samish’s lack of federal recog-
nition. Id. at 1375. Because the district court’s findings were insufficient
to answer the proper legal inquiry, whether the Samish had “maintained
tribal structures reflecting the degree of organization that existed at the
time of the treaties, with reasonable allowances for adaptation to changing
conditions,” id. at 1374, Judge Canby would have remanded the case for
further findings of fact. Id. at 1375-76.
4
For example, the government argued that “should [the Samish] succeed
in obtaining ‘acknowledgment’ of their current status as [an] ‘Indian
tribe[ ]’ in the pending administrative proceedings, this might justify an
application to re-open the present judgment against them.” Brief for
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 115
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 fed-
erally recognized. See Greene v. Babbitt, 943 F. Supp. 1278,
1281, 1284 (W.D. Wash. 1996).5 The Department of the Inte-
rior took no action on the Samish’s application until 1979,
and in 1987 the BIA issued a final decision denying tribal rec-
ognition 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 determina-
tion 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 chal-
lenge the decision in Washington II before it could exercise
fishing rights. Id. at 977.6
United States in Opposition to Petition for a Writ of Certiorari, Duwamish
Tribe v. Washington, 454 U.S. 1143 (1982) (No. 81-509). Likewise, rather
than ruling that the Samish no longer held treaty fishing rights, the district
court ruled that the Samish “presently” did not hold such rights. Washing-
ton II, 476 F. Supp. at 1111.
5
Until the Department of the Interior adopted acknowledgment regula-
tions in 1978, see 25 C.F.R. §§ 83.1-83.13 (2003), the federal government
decided on an ad hoc basis which groups of Indians would be recognized
as tribes. See Barbara N. Coen, Tribal Status Decision Making: A Federal
Perspective on Acknowledgment, 37 New Eng. L. Rev. 491, 491 (2003).
6
In dissent, Judge Reinhardt argued that if the Samish qualified for fed-
eral recognition, they necessarily also qualified for treaty fishing rights.
116 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
On the merits of the Samish’s challenge to the denial of
federal recognition, the district court vacated the BIA’s deci-
sion 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 neces-
sary 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 Acknowl-
edgment 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 tribes whose treaty
fishing rights were confirmed in United States v. Washington
(“the Opposition Tribes”) opposed the Samish’s motion. The
district court held that federal recognition was not an extraor-
dinary circumstance, reasoning that “a tribe’s recognition, or
nonrecognition, has no impact on whether it may exercise
treaty rights.” United States v. Washington, No. CV 70-
09213, Subproceeding No. 01-2, slip op. at 13, 16 (W.D.
Wash. Dec. 19, 2002). The district court also noted that the
Samish had not alleged that the Washington II proceeding was
996 F.2d at 981 (Reinhardt, J., dissenting). Judge Reinhardt also noted
that, as a practical matter, federal recognition “will undoubtedly carry
great weight in any judicial reconsideration of Samish entitlement to treaty
fishing rights.” Id. at 982.
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 117
fundamentally unfair or that the Samish had been prevented
from adducing evidence in support of its claim. The interest
in finality was an equally compelling factor that weighed
against reopening, given “the unmistakable conclusion that, at
this stage, their addition would wreak havoc on hard-wrought
management agreements and plans.” Id. at 17.
The Samish filed a motion for reconsideration of the dis-
trict court’s ruling. In the motion, the Samish included a pro-
posal that addressed the possible disruptions that its
intervention in Washington I might cause. The district court
denied the motion, reaffirming its conclusion that federal rec-
ognition is not an extraordinary circumstance and that the
interest in finality remained an overriding concern. This
appeal followed. We have jurisdiction over this appeal pursu-
ant to 28 U.S.C. § 1291.
STANDARD OF REVIEW
We review the denial of a Rule 60(b) motion for an abuse
of discretion. G.C. & K.B. Invs., Inc. v. Wilson, 326 F.3d
1096, 1108 (9th Cir. 2003). Under the abuse of discretion
standard, we must affirm the judgment below unless (1) we
“have a definite and firm conviction that the district court
committed a clear error of judgment in the conclusion it
reached upon weighing the relevant factors,” (2) the district
court applied the wrong law, or (3) the district court rested its
decision on clearly erroneous findings of material fact. SEC
v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001).
ANALYSIS
I. Did the District Court Abuse Its Discretion By Ruling
that Federal Recognition of the Samish Was Not an
Extraordinary Circumstance?
The Samish contend that the district court abused its discre-
tion by ruling that federal recognition was not an extraordi-
118 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
nary circumstance that warranted reopening the judgment in
Washington II. The Samish argue that this abuse of discretion
resulted from errors of law.
[1] Federal Rule of Civil Procedure 60(b) provides that
“[o]n motion and upon such terms as are just, the court may
relieve a party . . . from a final judgment, order, or proceeding
for the following reasons: . . . (6) any other reason justifying
relief from the operation of the judgment.” The Rule 60(b)(6)
catchall provision applies only when the reason for granting
relief is not covered by any of the other reasons set forth in
Rule 60. Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 &
n.8 (9th Cir. 2002). It “has been used sparingly 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 correct an erroneous
judgment.” United States v. Alpine Land & Reservoir Co.,
984 F.2d 1047, 1049 (9th Cir. 1993). Thus, a party seeking to
reopen a case under Rule 60(b)(6) “must demonstrate both
injury and circumstances beyond his control that prevented
him from proceeding with the prosecution or defense of the
action in a proper fashion.” Cmty. Dental Servs., 282 F.3d at
1168.
[2] The Samish argue that the district court misinterpreted
our precedents in ruling that “a tribe’s recognition, or nonre-
cognition, has no impact on whether it may exercise treaty
rights.” It is well-settled that federal nonrecognition cannot
divest a tribe of treaty rights. In Washington I, we held that
“[n]onrecognition of the tribe by the federal government and
the failure of the Secretary of the Interior to approve a tribe’s
enrollment may result in loss of statutory benefits, but can
have no impact on vested treaty rights.” 520 F.2d at 692-93.
In Washington III, we held that the district court’s view that
federal recognition is required “is clearly contrary to our prior
holding and is foreclosed by well-settled precedent.” 641 F.2d
at 1371; see also Greene v. United States, 996 F.2d at 976(noting that “[f]ederal recognition is not a threshold condition
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 119
a tribe must establish to fish under the Treaty of Point
Elliott”).
[3] Although we have previously held that federal recogni-
tion is not necessary for the exercise of treaty fishing rights
by a signatory tribe, we have never held that federal recogni-
tion is not a sufficient condition for the exercise of those
rights. Indeed, our precedent leads us to the ineviable conclu-
sion that federal recognition is a sufficient condition for the
exercise of treaty rights. We 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.” Wash-
ington III, 641 F.2d at 1372. “For this purpose, tribal status
is preserved if some defining characteristic of the original
tribe persists in an evolving tribal community.” Id. at 1372-
73.
The mandatory criteria for federal recognition include the
following:
(b) A predominant portion of the petitioning group
comprises a distinct community and has existed as a
community from historical times until the present.
...
(c) The petitioner has maintained political influ-
ence or authority over its members as an autonomous
entity from historical times until the present.
25 C.F.R. § 83.7.7 The Samish argue persuasively that
because they met the mandatory criteria for federal recogni-
tion, they necessarily met the condition for the exercise of
treaty rights. See Greene v. United States, 996 F.2d at 981
7
The regulations define “historical” as “dating from first sustained con-
tact with non-Indians.” 25 C.F.R. § 83.1.
120 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
(Reinhardt, J., dissenting) (arguing that “[i]f the single neces-
sary and sufficient criterion for treaty rights is also a neces-
sary condition for federal recognition, then achieving the lat-
ter necessarily satisfies the single qualification for the for-
mer”).
Indeed, we have never held that recognition of a tribe — as
opposed to nonrecognition — is irrelevant to its exercise of
treaty rights, despite some dicta to the contrary. See Greene
v. Babbitt, 64 F.3d at 1270 (incorrectly asserting that in Wash-
ington I “we held that a tribe’s recognition or lack of recogni-
tion by the Secretary of the Interior does not determine
whether the tribe has vested treaty rights”). This is not sur-
prising, given the traditional deference that the federal courts
pay to the political branches in determining whether a group
of Indians constitutes a tribe. See United States v. Holliday,
70 U.S. (3 Wall.) 407, 419 (1865) (holding that “[i]f by [the
executive and other political departments of the government]
those Indians are recognized as a tribe, this court must do the
same”); Washington I, 384 F. Supp. at 400 (concluding that
“[t]he recognition of a tribe as a treaty party or the political
successor in interest to a treaty party is a federal political
question on which state authorities and federal courts must
follow the determination by the legislative or executive
branch of the Federal Government”); William C. Canby, Jr.,
American Indian Law in a Nutshell 6 (4th ed. 2004) (“Once
granted, . . . the recognition will bind the courts until it is
removed by the Executive or Congress.”).8
8
Indeed, the United States argued in Washington III that “[w]hile recent
cases have indicated that the federal government’s failure to recognize a
tribe is not dispositive, positive recognition by the United States is
accorded great deference and may well be controlling.” Brief for United
States in Opposition to Petition for a Writ of Certiorari, Duwamish Tribe
v. Washington, 454 U.S. 1143 (1982) (No. 81-509) (emphasis added). The
United States also noted that “[w]here the Congress or executive branch
has expressly recognized a group of Indians as a tribe, the courts have
repeatedly deferred to this essentially political decision” and that “where
there has been no such recognition, a district court may make a factual
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 121
It would be a rare case indeed where a court would deny
treaty rights to a signatory tribe on the ground that it lacks an
organized tribal structure, where the Department of the Inte-
rior has recognized that same tribe as a “distinct community
[that] has existed as a community from historical times until
the present” and that it “has maintained political influence or
authority over its members as an autonomous entity from his-
torical times until the present.” 25 C.F.R. § 83.7; see also
Felix S. Cohen, Handbook of Indian Law 5 (1982 ed.) (“No
congressional or executive determination of tribal status has
been overturned by the courts. . . .”).
The district court erred in concluding that, because nonre-
cognition cannot impact vested treaty rights, recognition is
irrelevant. The Samish would almost certainly have won the
right to exercise its treaty fishing rights had the tribe been fed-
erally recognized at the time of Washington II. And although
we have never explicitly held that federal recognition neces-
sarily entitles a signatory tribe to exercise treaty rights,9 this
is an inevitable conclusion.
Although federal recognition is for all practical purposes
determinative of whether the tribe has maintained an orga-
nized tribal structure, the Opposition Tribes argue that the
Samish’s federal recognition is still not an extraordinary cir-
cumstance. That is, the relevance of the Samish’s federal rec-
ognition is not the fact of the recognition itself, but rather the
inquiry into ‘whether a group of citizens of Indian ancestry is descended
from a treaty signatory and has maintained an organized tribal structure.’ ”
Brief for the Federal Appellees, Washington III, 641 F.2d 1368 (9th Cir.
1981) (No. 79-4447, 79-4472) (emphasis added).
9
In extreme circumstances, courts may be able to overturn the decision
to recognize a tribe. See Baker v. Carr, 369 U.S. 186, 216-17 (1962) (in
dicta) (“Able to discern what is ‘distinctly Indian,’ the courts will strike
down any heedless extension of that label. They will not stand impotent
before an obvious instance of a manifestly unauthorized exercise of
power.” (citing United States v. Sandoval, 231 U.S. 28, 46 (1913))).
122 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
factual findings underlying that recognition, and whether the
Samish had a full opportunity to present the facts supporting
its treaty status to the district court in Washington II. That an
ALJ arrived at different factual findings on better evidence is
not a reason for granting a Rule 60(b)(6) motion. See Alpine
Land & Reservoir Co., 984 F.2d at 1049 (holding that Rule
60(b)(6) “is to be utilized only where extraordinary circum-
stances prevented a party from taking timely action to prevent
or correct an erroneous judgment”).
[4] The crucial issue here is whether the fact that the
Samish had the opportunity to litigate the factual basis under-
lying the tribe’s treaty status in Washington II means that the
Samish were not “prevented . . . from proceeding with the
prosecution or defense of the action in a proper fashion.”
Cmty. Dental Servs., 282 F.3d at 1168. In light of the govern-
ment’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 fed-
eral recognition was necessary and that future federal recogni-
tion 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.”
For its part, the government argues that Washington II
should not be reopened, because the judgment is not inconsis-
tent with the federal recognition of the Samish. That is, the
federally recognized Samish may have existed since historical
times as a distinct group, enjoy a government-to-government
relationship with the United States, and yet still not be the
successor to the Samish Tribe that was a signatory to the
Treaty of Point Elliott, because the Swinomish Indian Tribal
Community and the Lummi Nation are the political succes-
sors to the treaty-time Samish.
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 123
The government’s position is inconsistent with our prece-
dent. In Washington III, we “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.” 641 F.2d at
1372. Yet the government in essence argues that this “single
necessary and sufficient condition” is necessary but not suffi-
cient. It is undisputed that the Samish were a party to the
Treaty of Point Elliott. See, e.g., Washington II, 476 F. Supp.
at 1106. It is also clear that the Samish “has been continu-
ously identified throughout history as Indian or aboriginal,
has existed as a distinct community since first sustained Euro-
pean 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.” 61 Fed. Reg.
15825, 15826.10 As the Samish are a signatory tribe and have
proved the single necessary and sufficient condition for the
exercise of treaty rights, the res judicata effect of Washington
II is all that is keeping the Samish from pursuing its treaty
rights.11
Moreover, no tribe can be the political successor to the
Samish unless that tribe merged or consolidated with the
Samish. See United States v. Suquamish Indian Tribe, 901
F.2d 772, 776 (9th Cir. 1990) (holding that “for a signatory
10
One commentator has explained that by acknowledging a tribe, the
Department of the Interior “is not ‘granting’ sovereign status or powers to
the group, nor is it creating a tribe made up of its Indian descendants . . . .
Rather, the Department is acknowledging that the sovereign has existed
continuously since historic times, retaining its inherent powers.” Coen,
Tribal Status Decision Making, 37 New Eng. L. Rev. at 499.
11
United States v. Oregon, 29 F.3d 481 (9th Cir. 1994), is not to the
contrary. There, the issue was whether constituent tribes of the federally
recognized Colville Confederacy had abandoned treaty rights by breaking
away from the Yakima Nation and Nez Perce Tribe, the beneficiaries of
treaty fishing rights in the Yakima Treaty and The Nez Perce Treaty. Id.
at 486-87. In the Treaty of Point Elliott, by contrast, each individual party
tribe was guaranteed fishing rights. See 12 Stat. at 928.
124 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
tribe to obtain treaty tribe status from another signatory tribe,
it must first show that the two tribes or cohesive bands thereof
consolidated or merged and demonstrate also that together
they maintain an organized tribal structure”). The district
court in Greene v. Babbitt specifically reinstated a finding by
the ALJ that the Samish and the Swinomish had not merged,
943 F. Supp. at 1288 & n.13, and the fact that some members
of the Swinomish and Lummi tribes have Samish ancestry
does not make them political successors to the Samish. See
Oregon, 29 F.3d at 484. To the extent that the district court
in Washington I found that the Samish had merged or com-
bined with the Lummi and the Swinomish,12 this is clearly
inconsistent with the federal recognition of the Samish. See 25
C.F.R. § 83.7(c) (identifying one of the mandatory criteria for
recognition as the petitioner’s maintenance of “political influ-
ence or authority over its members as an autonomous entity
from historical times until the present”).
[5] We conclude that the district court misinterpreted our
precedents, and thereby abused its discretion, in ruling that
the fact of federal recognition had no impact on whether the
Samish may exercise treaty fishing rights. Federal recognition
is determinative of the issue of tribal organization, the issue
upon which the Samish were denied treaty fishing rights in
Washington II. As the Samish’s lack of recognition was a cir-
cumstance beyond the tribe’s control, their subsequent recog-
nition is an extraordinary circumstance that warrants setting
aside the judgment in Washington II.
12
The district court found that “[t]he present Lummi Tribe also includes
descendants of the Semiahmoo and Samish Indians of 1855.” Washington
I, 384 F. Supp. at 360. Without naming the Samish, the district court found
that “[t]he intervenor Swinomish Indian Tribal Community is the present-
day tribal entity which, with respect to the matters that are the subject of
this litigation, is a political successor in interest to certain tribes and bands
and groups of Indians which were parties to the Treaty of Point . . . .”
United States v. Washington, 459 F. Supp. 1020, 1039 (W.D. Wash.
1978).
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 125
II. Do the District Court’s Finality Concerns
Independently Support Its Denial of the Samish’s
Rule 60(b)(6) Motion?
Although we conclude that federal recognition of the
Samish constitutes an extraordinary circumstance for pur-
poses of Rule 60(b)(6), we still must decide whether the dis-
trict court’s finality concerns independently justify its denial
of the Samish’s motion.
The Samish argue that the district court abused its discre-
tion by failing to balance finality concerns against the interest
in achieving justice. The district court stated that the motion
raised two principal issues: (1) whether extraordinary circum-
stances justified reopening the judgment, and (2) “whether the
interests in finality are paramount to other interests.” Having
concluded that the lack of extraordinary circumstances was an
independent basis for denying relief, the district court did not
balance finality concerns but rather stated that they were “[a]n
equally compelling factor.”
In discussing the interest in finality, the district court stated:
The United States and the Opposition Tribes point
out that, in reliance on Washington II, this court has
approved many state-tribal fish management plans,
mediated and decided intertribal disputes on treaty
fishing issues, determined treaty tribes’ usual and
accustomed fishing places, and decided allocation
issues. The United States and Opposition Tribes
rightly observe that management of fish harvest
involves a delicate balancing of interests within the
overall framework and that these management plans
— achieved after considerable time and expense —
would be upset by the addition of another Tribe at
this late stage.
. . . The Samish have not convincingly rebutted, nor
could they, the unmistakable conclusion that, at this
126 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
stage, their addition would wreak havoc on hard-
wrought management agreements and plans.
(Citation omitted.) The district court also noted that the inter-
est in finality is at its zenith in natural resource allocation
cases.
In its motion for reconsideration, the Samish included a
proposal to minimize possible disruptions that its participation
in Washington I would entail. The Samish noted that three of
the tribes participating in Washington I had established them-
selves as successors in interest to Samish treaty rights, and the
Samish “would agree to exercise treaty fishing rights under
the orders in the case that apply to these three tribes, and
under the regulatory authority and framework of the three
tribes.” Under this proposal, the Samish argued, their inclu-
sion would not disrupt existing orders.
Despite “the Samish’s efforts to craft a workable, mini-
mally disruptive framework for the Tribe’s intervention,” the
district court remained unconvinced: “Under any scenario, the
Samish, in addition to the other newly recognized Tribes
likely to seek intervention, would necessarily inject them-
selves into sensitive agreements and upset current treaty
tribes’ allocations.” The district court then hedged its conclu-
sion somewhat by pointing out that finality concerns “were
not the sole or even the chief basis for denying the tribe’s
motion to reopen,” and that “[t]o focus on mitigating the
effects of reopening a judgment, rather than on whether
reopening a judgment is procedurally allowable, is to put the
cart before the horse.” It also noted that “even putting aside
the finality concerns . . . , there are ample reasons to deny the
Tribe another chance at litigating its treaty status.”
[6] Because it is unclear to what extent the district court
relied on finality concerns in denying the Samish’s motions,
especially after the Samish submitted a proposal for minimiz-
ing the disruptive effects of its participation in Washington I,
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 127
we conclude that finality concerns do not independently sup-
port the district court’s denial of the Samish’s Rule 60(b)(6)
motion. That is, had the district court properly concluded that
federal recognition was an extraordinary circumstance the
somewhat speculative concerns about finality are insufficient
to have carried the day.
The Opposition Tribes’ point is well taken that “[h]aving
supervised the litigation since 1970, the district court is in the
best position to judge the impact adding new parties might
have.”13 Nevertheless, the fact that the district court has ongo-
ing judicial supervision of Washington I undercuts these final-
ity concerns. Unlike a judgment between private parties, the
allocation of natural resources between treaty tribes and oth-
ers cannot help but be an ongoing venture. Indeed, the 17,500
docket entries and more than 50 separately-numbered sub-
proceedings in Washington I are testament to the inherent lack
of finality of the judgment. Finally, the fact that the govern-
ment and the Opposition Tribes in Washington II argued that
Samish recognition could well justify reopening further weak-
ens finality concerns.
CONCLUSION
[7] For the foregoing reasons we reverse the order of the
district court denying the Samish’s Rule 60(b)(6) motion and
remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
13
We note, however, that a number of different district judges have pre-
sided over various parts of this case in the 34 years that it has been pend-
ing in the Western District of Washington.
128 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
BEA, Circuit Judge, dissenting:
Appellant Samish Indian Tribe (“Samish Tribe”) appeals
the district court’s order denying the Samish Tribe’s motion
pursuant to Federal Rule of Civil Procedure 60(b)(6) for relief
from the district court’s prior judgment in United States v.
Washington, 476 F. Supp. 1101 (W.D. Wash. 1979), aff’d,
641 F.2d 1368 (9th Cir. 1981) (“Washington II”). The major-
ity opinion holds that the district court abused its discretion
in denying the Samish Tribe’s Rule 60(b)(6) motion because
“[f]ederal recognition [of the Samish Tribe] is determinative
of the issue of tribal organization, the issue upon which the
Samish were denied treaty fishing rights in Washington II,”
and “[a]s the Samish’s lack of recognition was a circumstance
beyond the tribe’s control, their subsequent recognition is an
extraordinary circumstance that warrants setting aside the
judgment in Washington II.” Slip op. at 124.
With respect, I believe the majority opinion errs in two
regards. First, federal recognition as a tribe has never been
required to establish off-reservation fishing rights pursuant to
the Treaty of Point Elliott (1855), and the Samish Tribe was
not precluded in Washington II from presenting evidence of
having maintained an organized tribal structure, which evi-
dence could have supported a finding that it was entitled to
such treaty fishing rights. Second, neither the federal recogni-
tion of the Samish Tribe by the Bureau of Indian Affairs
(“BIA”) nor the BIA’s underlying factual findings constitute
evidence that the Samish Tribe maintained an organized tribal
structure to which a district court determining treaty status
must accord any deference. Because I believe the majority
opinion departs from our jurisprudence in holding otherwise,1
I respectfully dissent.
1
Except “ ‘when an intervening Supreme Court decision undermines an
existing precedent of the Ninth Circuit, and both cases are closely on
point,’ ” “[a] three-judge panel generally has no power to overrule a deci-
sion of this court.” Rotec Industries, Inc. v. Mitsubishi Corp., 348 F.3d
1116, 1122 n.3 (9th Cir. 2003). Rather, “[s]uch a ruling may be handed
down [only] by an en banc panel of this court or the United States
Supreme Court (and state high courts on issues of state law).” Id.SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 129
I.
A.
The issue before this court is not whether the Samish Tribe
might qualify for off-reservation fishing rights pursuant to the
Treaty of Point Elliott were it to commence an action today.
Rather, as the majority opinion states: “The crucial issue here
is whether the fact that the Samish had the opportunity to liti-
gate this issue in Washington II means that the Samish were
not ‘prevented . . . from proceeding with the prosecution or
defense of the action in a proper fashion.’ ” Slip op. at 122
(internal citation omitted). The majority opinion answers in
the negative; I believe our precedent requires an affirmative
answer.
Our precedent in this area of the law and with regard to the
very parties at issue here makes clear, if nothing else, that
whether a group of Native Americans are recognized as a
tribe by the federal government is a distinct legal inquiry from
whether that same group of Native Americans qualify for off-
reservation fishing rights pursuant to the Point Elliott and
related treaties. Further, recognition as a tribe is not a neces-
sary precondition to qualify for such treaty fishing rights.2
Thus, in United States v. Washington, 520 F.2d 676, 692-
93 (9th Cir. 1975) (“Washington I”) (emphasis added), we
held: “Nonrecognition of the tribe by the federal government
and the failure of the Secretary of the Interior to approve a
tribe’s enrollment may result in loss of statutory benefits, but
can have no impact on vested treaty rights.” Likewise, when
the district court in Washington II held that “[o]nly tribes rec-
2
This precedent in no way renders federal recognition a nullity. Rather,
“[f]ederal recognition brings its own obvious rewards, not the least of
which is the eligibility of federal money for tribal programs, social ser-
vices and economic development.” Green v. United States, 996 F.2d 973,
978 (9th Cir. 1993) (“Green I”).
130 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
ognized as Indian political bodies by the United States may
possess and exercise the tribal fishing rights secured and pro-
tected by the treaties of the United States,” 476 F. Supp. at
1111, we held on appeal:
This conclusion is clearly contrary to our prior hold-
ing and is foreclosed by well-established precedent.
...
* * *
We 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.
Washington II, 641 F.2d at 1371, 1372; accord id. at 1374(Canby, J., dissenting) (“The majority opinion quite correctly
rejects the conclusion of law that federal recognition is essen-
tial to the exercise of treaty rights.”). In United States v.
Suquamish Indian Tribe, 901 F.2d 772, 776 n.10 (9th Cir.
1990) (emphasis added), we noted that “[f]ederal recognition
by the Department of Interior is not required for a tribe to
obtain treaty tribe status.” Again, in Green I, “[w]e recog-
nize[d] that the two inquiries are similar,” but reiterated that
“each determination serves a different legal purpose and has
an independent legal effect” and that “[f]ederal recognition is
not a threshold condition a tribe must establish to fish under
the Treaty of Point Elliott.” 996 F.2d at 976 (emphasis
added); accord id. at 981 (Reinhardt, J., dissenting) (arguing
that “federal recognition necessarily qualifies for treaty rights
a tribe that claims them,” but acknowledging that “federal rec-
ognition is not a precondition to receiving treaty rights”)
(emphasis in original). Finally, in Green v. Babbitt, 64 F.3d
1266, 1270 (9th Cir. 1995) (“Green II”), we reviewed our pre-
cedent and held once more: “[T]he recognition of the tribe for
purposes of statutory benefits is a question wholly indepen-
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 131
dent of treaty fishing rights. . . . Our decision in [Green I] can
leave no serious doubt that our court regards the issues of
tribal treaty status and federal acknowledgment as fundamen-
tally different.”3
Our precedent is equally clear that although recognition as
a tribe may be a decision generally left to the discretion of the
Executive Branch, “[w]hether a group of citizens of Indian
ancestry is descended from a treaty signatory and has main-
tained an organized tribal structure [so as to qualify for off-
reservation fishing rights pursuant to the Point Elliott and
related treaties] is a factual question which a district court is
competent to determine.” Washington I, 520 F.2d at 693;
accord Washington II, 641 F.2d at 1371.
Thus, the fact alone that the Samish Tribe was not recog-
nized by the federal government at the time of Washington II
in no way prevented it from proffering the type of evidence
that could have resulted in a finding by the district court in
Washington II that the Samish Tribe had maintained an orga-
nized tribal structure and, therefore, was entitled to off-
reservation fishing rights pursuant to the Treaty of Point
Elliott. Indeed, two other tribes did precisely this. Specifi-
cally, in Washington I, the district court held that the Stil-
laguamish Tribe and Upper Skagit Tribe were both entitled to
off-reservation fishing rights pursuant to the Treaty of Point
Elliott despite the fact that they were not at the time recog-
nized as tribes by the federal government. United States v.
Washington, 384 F. Supp. 312, 378-79, 406 (W.D. Wash.
1974), aff’d, 520 F.2d 676 (9th Cir. 1975) (“Washington I”).
We affirmed:
The Stillaguamish and Upper Skagit Tribes . . . are
not recognized as organized tribes by the federal
3
In light of this precedent, the majority opinion’s statement that “the
Samish’s inability to exercise their treaty fishing rights hinged on their sta-
tus as an unrecognized tribe,” Slip op. at 114, is inexplicable.
132 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
government. . . . Evidence supported the court’s
findings that the members of the two tribes are
descendants of treaty signatories and have main-
tained tribal organizations. We therefore affirm the
district court’s conclusion that the Stillaguamish and
Upper Skagit Tribes are entities possessing rights
under the Treaty of Point Elliott.
Washington I, 520 F.2d at 692-93. Nor, finally, has the
Samish Tribe alleged, much less proved, that the evidence
demonstrating that it was entitled to off-reservation fishing
rights pursuant to the Treaty of Point Elliott was unavailable
at the time of the trial held in Washington II to adjudicate this
issue.
Because the Samish Tribe has presented no evidence that
it was precluded from doing precisely what the Stillaguamish
and Upper Skagit Tribes did, it has not shown that it was
“ ‘prevented . . . from proceeding with the prosecution or
defense of the action in a proper fashion,’ ” Slip op. at 122,
such that its recognition as a tribe now should permit it to set
aside the judgment in Washington II.4
B.
Despite this clear, consistent and controlling authority, the
majority opinion “conclude[s] that the Samish were effec-
tively prevented from proving their tribal status ‘in a proper
fashion’ ” for three reasons:
4
Nor, as the majority opinion recognizes, is the fact “[t]hat an ALJ
arrived at a different factual finding [as to federal recognition] on better
evidence . . . a reason for granting a Rule 60(b)(6) motion. See Alpine
Land & Reservoir Co., 984 F.2d at 1049 (holding that Rule 60(b)(6) ‘is
to be utilized only where extraordinary circumstances prevented a party
from taking timely action to prevent or correct an erroneous judgment’).”
Slip op. at 122.
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 133
[1] the government’s ‘excessive delays and . . . mis-
conduct’ in withholding of recognition from the
Samish, a circumstance beyond their control; [2] the
government’s position in Washington II that federal
recognition was necessary and that future federal
recognition might justify revisiting the treaty rights
issue; and [3] the district court’s erroneous conclu-
sion that nonrecognition was decisive and wholesale
adoption of the United States’ boilerplate findings of
fact in Washington II. . . .
Slip op. at 122. But none of these factors supports granting
the Samish Tribe’s Rule 60(b)(6) motion.
First, although the Samish Tribe initially applied for fed-
eral recognition in 1972 and were not finally recognized until
1996, whether the Samish Tribe was entitled to off-
reservation fishing rights pursuant to the Treaty of Point
Elliott was an issue tried and submitted before the district
court in Washington II in 1977. Green v. Babbitt, 943 F.
Supp. 1278, 1281 (W.D. Wash. 1996) (“Green III”) (date of
initial application for federal recognition); 61 Fed. Reg. 15825(date of federal recognition); Washington II, 641 F.2d at 1371
n.4 (date of submission before district court). Thus, the major-
ity if not all of the “ ‘excessive delays and . . . misconduct,’ ”
Slip op. at 122, on which the majority opinion relies occurred
after the issue was tried and submitted in Washington II.
Further, as noted above, there is no showing that the five-
year delay immediately following the Samish Tribe’s applica-
tion for federal recognition to the BIA precluded the Samish
Tribe from submitting to the district court in Washington II
the same evidence of having maintained an organized tribal
structure that it had submitted or thereafter would submit to
the BIA. Nor is there evidence that the Samish Tribe applied
for a postponement of their treaty-rights trial and submission
to allow the BIA to determine its recognition claim.
134 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
Second, “the government’s position in Washington II that
federal recognition was necessary and that future federal rec-
ognition might justify revisiting the treaty rights issue,” Slip
op. at 122, is irrelevant to whether a case is made out for Rule
60(b)(6) relief. The government’s position in no way hin-
dered, much less precluded, the Samish Tribe from offering
evidence in the Washington II district court trial of having
maintained an organized tribal structure that could have
resulted in a finding by that district court that the Samish were
entitled to off-reservation fishing rights pursuant to the Treaty
of Point Elliott, as did the unrecognized Stillaguamish and
Upper Skagit Tribes. Nor can the Samish Tribe claim the gov-
ernment is estopped to require evidence of having maintained
an organized tribal structure by its statement that the issue of
treaty rights might be subject to review were the Samish Tribe
federally recognized. Any reliance on these statements was
unreasonable in view of our holdings. As noted above, even
prior to Washington II, we had held in Washington I that fed-
eral recognition as a tribe is not a necessary precondition for
off-reservation fishing rights pursuant to the Treaty of Point
Elliott and that district courts are competent to make the nec-
essary determinations:
The Stillaguamish and Upper Skagit Tribes . . . are
not recognized as organized tribes by the federal
government. . . . Nonrecognition of the tribe by the
federal government and the failure of the Secretary
of the Interior to approve a tribe’s enrollment may
result in loss of statutory benefits, but can have no
impact on vested treaty rights. Whether a group of
citizens of Indian ancestry is descended from a treaty
signatory and has maintained an organized tribal
structure is a factual question which a district court
is competent to determine. . . . Evidence supported
the court’s findings that the members of the two
tribes are descendants of treaty signatories and have
maintained tribal organizations. We therefore affirm
the district court’s conclusion that the Stillaguamish
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 135
and Upper Skagit Tribes are entities possessing
rights under the Treaty of Point Elliott.
Washington I, 520 F.2d at 692-93 (internal citations omitted).
Accordingly, in Washington II, we characterized arguments
otherwise as “clearly contrary to” and “foreclosed by well-
settled precedent.” 641 F.2d at 1371 (emphasis added).
Third, nor is “the district court’s erroneous conclusion that
nonrecognition was decisive and wholesale adoption of the
United States’ boilerplate findings of fact in Washington II,”
Slip op. at 122, relevant. On appeal, as noted above, we
expressly corrected the district court’s erroneous conclusion.
Washington II, 641 F.2d at 1371 (“[The district court’s] con-
clusion is clearly contrary to our prior holding and is fore-
closed by well-settled precedent.”). Noting that “[t]he district
court’s statement that federal nonrecognition is decisive,
together with its listing of other purported considerations,
makes it difficult for us to determine the precise basis for the
court’s holding that the tribes may not exercise treaty rights,”
we then “examine[d] the record” ourselves “to determine
whether the district court reached the correct result.” Id. at
1372.
[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
members. Nor have the appellants clearly established
the continuous informal cultural influence they con-
cede is required.
The appellants’ members are descended from treaty
tribes, but they have intermarried with non-Indians
136 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
and many are of mixed blood. That may be true of
some members of tribes whose treaty status has been
established. But unlike those persons, those who
comprise the groups of appellants have not settled in
distinctively Indian residential areas.
We cannot say, then, that the finding of insufficient
political and cultural cohesion is clearly erroneous.
Washington II, 641 F.2d at 1373-74 (emphasis added; internal
citations omitted).
Indeed, the argument that the district court’s erroneous con-
clusion of law in Washington II so “permeated the entire fac-
tual history,” id. at 1375 (Canby, J., dissenting), that the
findings of fact could not be relied upon even by this court
when it applied the correct standard is one that was heralded
by the dissent in Washington II and, as demonstrated above,
rejected by the majority:
My difference with the majority is that I am unable
to say that the findings of the district court resolve
the determinative question of tribal continuity or
provide us with the means to do so upon review.
* * *
[T]he conclusions of law help to illustrate the defi-
ciencies of the findings of fact upon which the deci-
sion of the district court is based. The findings that
appellants had not maintained a ‘continuous sepa-
rate, distinct and cohesive Indian cultural or political
communit(ies)’ or ‘organized tribal structure(s) in a
political sense’ amounted in context to findings that
appellants lacked federal recognition or attributes
necessarily dependent upon federal recognition.
These findings consequently do not resolve the cru-
cial factual issue and cannot support the judgment.
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 137
Application of the proper legal standards to this case
requires new determination of fact, and possibly
additional evidence relating to the political organiza-
tion of the relevant tribes at treaty times. I would
therefore remand the matter to the district court for
determinations whether appellants have maintained
tribal structures reflecting the degree of organization
that existed at the time of the treaties, with reason-
able allowances for adaptation to changing condi-
tions, and whether some defining characteristic of
the original tribes persists in appellants as evolving
tribal communities.
Id. at 1374, 1375-76 (Canby, J., dissenting). The majority
opinion recognizes that this is an argument already made and
rejected, Slip op. at 114 n.3, but pays no heed to the crucial
finding of not having maintained an organized tribal structure,
approved by our decision. Such insouciance to our precedent
is inadvisable.
II.
Although acknowledging that “we have never explicitly
held that federal recognition necessarily entitles a signatory
tribe to exercise treaty rights,” the majority opinion asserts
that “this is an inevitable conclusion.” Slip op. at 121. Again,
this is contrary to our precedent.
In Green I, what was thereafter recognized as the Samish
Tribe appealed to the district court from the BIA’s denial of
the Samish Tribe’s petitions for recognition. 996 F.2d at 975.
The Tulalip Tribe moved to intervene, asserting “two related
interests”: (1) “that their treaty fishing allocations are threat-
ened by dilution” because the “renewed administrative
inquiry into the Samish tribal status will raise nearly identical
questions” as those relevant to the Samish Tribe’s treaty sta-
tus; and (2) that “parallel determinations by the BIA will
138 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
undermine the precedential effect” of Washington I and
Washington II. Id. at 976-77.
The district court denied the motion, holding “that the
action did not implicate treaty claims,” and we affirmed. Id.
at 975. As to the first asserted interest, we held that federal
recognition “serves a different legal purpose and has an inde-
pendent legal effect” than does a determination whether the
Samish Tribe has treaty rights: “Even if they obtain federal
tribal status, the Samish would still have to confront the deci-
sions in Washington I and II before they could claim fishing
rights.” Id. at 976-77. As to the second asserted interest, we
noted that “the district court ruled expressly that the ALJ ‘will
not consider’ treaty rights” and “that the Samish may not use
the reopened hearing [on federal recognition] to attack the
[Washington II] decision.” Id. at 977. Further, it held that
“[a]ny attempt to relitigate treaty fishing rights would occur
in the separate, ongoing Washington I forum, where the
Tulalip are already parties.” Id. We continued: Washington I
“is the forum that will resolve ultimately any attempt to real-
locate treaty fishing rights and that is the forum where the
Tulalip and all other interested parties can have their say.” Id.
at 977-78 (emphasis in original).
Our holding in Green I that the proper fora — if any — to
relitigate the Samish Tribe’s treaty rights were Washington I
and II and our promise to the Tulalip Tribe that it would have
an opportunity to protect its interests in those fora compels the
conclusion that federal recognition does not necessarily entail
treaty status. Indeed, this is clearly what we meant when we
said: “Allowing the Tulalip to intervene would only further
confuse the issues and postpone what may be inevitable: a
direct challenge to the allocation of treaty fishing rights,
which would be fully and independently litigated in the Wash-
ington I forum.” Id. at 978 (emphasis added). It would have
been an empty promise — indeed, a complete deprivation of
due process — to deny the Tulalip Tribe’s motion to intervene
in the Samish BIA recognition proceedings on the basis that
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 139
it could later protect its treaty rights in the Washington I and
II courts, while all along assuming that by virtue of the
Samish Tribe gaining federal recognition, the Washington I
and II courts would be required to grant the Samish Tribe
treaty rights. If that was the case, where then was the Tulalip
Tribe to protect its interests? Elementary principles of due
process, such as the right to present evidence and to be heard
before property rights are taken, require that a tribe challeng-
ing the Samish Tribe’s claims to treaty rights have an oppor-
tunity to disprove the maintenance of organized tribal
structure and not be precluded from offering such proof by an
administrative agency determination from which the challeng-
ing tribe was excluded.
Indeed, the majority opinion’s “inevitable conclusion,” Slip
op. at 121, is precisely the argument advanced by the dissent
in Green I, and rejected by the majority opinion there. Dis-
senting, Judge Reinhardt argued that “federal recognition is
tantamount to acknowledgment by the federal government of
tribal entitlement to treaty rights,” id. at 980-81, and therefore
concluded:
As a practical matter, if the BIA reconsiders its ear-
lier decision, granting federal recognition to the
Samish, the agency’s determination that the Samish
have “maintained tribal political influence or other
authority,” 25 C.F.R. § 83.7(c), will undoubtedly
carry great weight in any judicial reconsideration of
Samish entitlement to treaty fishing rights.
Id. at 982. To this, the majority opinion replied:
The dissent speculates that if the BIA reverses its
decision and recognizes the Samish as an official
tribe, this “will undoubtedly carry great weight in
any judicial reconsideration of Samish entitlement to
treaty fishing rights.” In fact, such a decision would
have marginal influence at best. The Washington I
140 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
court need not accord any deference to an agency
proceeding that has been expressly limited to matter
other than rights under the 1855 treaty.
Id. at 978 (emphasis added).
Our holding in Green I that the district court “need not
accord any deference” to the BIA’s recognition of the Samish
Tribe, id. at 978, was affirmed in Green II. There, the Secre-
tary of the Interior appealed the district court’s decision that
it was formally to adjudicate under the Administrative Proce-
dure Act whether the Samish should be recognized as a tribe.
Green II, 64 F.3d at 1268. The Tulalip Tribe appeared as
amicus curiae, and argued that the Samish were collaterally
estopped from litigating tribal recognition by virtue of Wash-
ington II. Id. at 1269. We disagreed, holding that “the recog-
nition of the tribe for purposes of statutory benefits is a
question wholly independent of treaty fishing rights.” Id. at
1270. Dissenting, Judge Wright argued from the same prem-
ise as does the majority opinion here:
Washington II precludes a finding that the Samish
Tribe has ‘maintained tribal political influence or
other authority over its members as an autonomous
entity throughout history until the present.’ 25
C.F.R. § 83.7(c). Washington II involved the same
factual inquiry into the historicity of the present
Samish Tribe. Such an inquiry is a necessary condi-
tion both for treaty recognition and for statutory rec-
ognition under the current BIA regulations. We have
here substantial overlap in evidence and argument,
save for subsequently developed evidence; and the
claims, although not identical, are closely related.
See Restatement (Second) of Judgments, § 27
(1982).
* * *
SAMISH INDIAN TRIBE v. STATE OF WASHINGTON 141
The factual finding regarding the Samish Tribe’s his-
toricity in Washington II precludes what would be a
near identical inquiry in this case.
Id. at 1276. The majority opinion in Green II rejected this
argument, noting that in Green I “[w]e . . . squarely rejected
the Tulalip’s position that federal recognition of the Samish
would be inconsistent with Washington I and II” and “agreed
with the district court . . . that the question of federal recogni-
tion as a tribe ‘did not implicate treaty claims.’ ” Id. at 1271.
Indeed, basic rules of judicial review, collateral estoppel
and evidence dictate this result. The factual findings underly-
ing the BIA’s recognition of the Samish Tribe are adjudica-
tive in nature and, thus, not entitled to Chevron deference. See
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Further, any proceeding in district
court resulting from the Samish Tribe’s successful Rule
60(b)(6) motion will not be the equivalent of an appeal of the
BIA’s underlying factual findings, and, thus, the district court
does not owe those factual findings the sort of deference
reviewing courts typically owe. Further, even independent of
Green II, the Tulalip Tribe and others not a party to the BIA
proceedings and who did not control those parties to the pro-
ceedings, did not agree to be bound by the proceedings and
were not represented in the proceedings, cannot be collater-
ally estopped from relitigating the BIA’s underlying factual
findings. See Restatement (Second) of Judgments §§ 27, 39-
42 (1982). Finally, any testimony introduced during the BIA
proceedings is hearsay as to treaty-rights litigation and should
be barred upon objection by the Tulalip Tribe or others that
did not themselves nor did their predecessors in interest have
“an opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination” during the BIA pro-
ceedings. Fed. R. Evid. 804.
Our precedent holds — and, for the reasons explained
above, rightly so — that “[f]ederal recognition does not self-
142 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON
execute treaty rights claims,” Green I, 996 F.2d at 977, and
“[e]ven if the federal government says that the Samish are an
official Indian tribe, whether they may fish as a treaty tribe in
common with [other tribes] is another question.” Id. at 975.
The majority opinion’s “inevitable conclusion” to the con-
trary, Slip op. at 121, overrules this prior circuit precedent.
III.
Until now, our precedent has been both clear and consistent
that whether a group of Native Americans are recognized as
a tribe by the federal government is a distinct legal inquiry
from whether that same group of Native Americans qualify
for off-reservation fishing rights pursuant to the Point Elliott
and related treaties; and, equally so, that recognition as a tribe
is not a necessary precondition for off-reservation fishing
rights. Thus, the fact that the Samish Tribe was not recog-
nized by the federal government at the time of Washington II
in no way prevented it (as did the Stillaguamish and Upper
Skagit Tribes) from putting forth the type of evidence of hav-
ing maintained an organized tribal structure that could have
resulted in a finding by the district court in Washington II that
the Samish Tribe was entitled to off-reservation fishing rights
pursuant to the Treaty of Point Elliott. Nor has the Samish
Tribe adduced any evidence that it was precluded from so
doing.
Further, as we have previously held, federal recognition
does not compel status under the Point Elliott and related trea-
ties, and, indeed, a district court “need not accord any defer-
ence to an agency proceeding that has been expressly limited
to matter other than rights under the 1855 treaty.” Green I,
996 F.2d at 978.
Accordingly, I would affirm the order of the district court.