Skokomish Indian Tribe v. Port Gamble S'kallam Tribe , 573 F.3d 701 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff,
and
SKOKOMISH INDIAN TRIBE,
Plaintiff-Appellant, No. 07-35062
v.
 D.C. Nos.
CV-70-09213-RSM
STATE OF WASHINGTON,
Defendant, SP-05-00002-RSM
and
PORT GAMBLE S’KLALLAM TRIBE;
JAMESTOWN S’KLALLAM TRIBE,
Defendants-Appellees.

8655
8656 UNITED STATES v. WASHINGTON
UNITED STATES OF AMERICA; 
SKOKOMISH INDIAN TRIBE,
Plaintiffs,
v.
STATE OF WASHINGTON,
Defendant, No. 07-35124
and  D.C. No.
PORT GAMBLE S’KLALLAM TRIBE; CV-70-09213-RSM
JAMESTOWN S’KLALLAM TRIBE,
Defendants-Appellees,
v.
LOWER ELWHA KLALLAM TRIBE,
Plaintiff-intervenor-Appellant.

UNITED STATES v. WASHINGTON 8657
UNITED STATES OF AMERICA; 
SKOKOMISH INDIAN TRIBE,
Plaintiffs,
and
MAKAH INDIAN TRIBE; PUYALLUP
TRIBE; NISQUALLY INDIAN TRIBE;
LUMMI INDIAN NATION,
Intervenors-Appellants,
No. 07-35219
v. D.C. Nos.
STATE OF WASHINGTON,  CV-70-09213-RSM
SP-05-00002-RSM
Defendant,
and OPINION
PORT GAMBLE S’KLALLAM TRIBE;
JAMESTOWN S’KLALLAM TRIBE,
Defendants-Appellees,
v.
SWINOMISH INDIAN TRIBAL
COMMUNITY,
Plaintiff-intervenor-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
October 21, 2008—Seattle, Washington
Filed July 13, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld
8660 UNITED STATES v. WASHINGTON
COUNSEL
Douglas B. L. Endreson, Sonosky, Chambers, Sachse, Endre-
son & Perry, LLP, Washington, D.C., for appellant Skokom-
ish Indian Tribe.
Lori Ellen Nies (briefed), Skokomish Indian Tribe, Skokom-
ish Nation, Washington, for appellant Skokomish Indian
Tribe.
Lorane F. Hebert, Hogan & Hartson, LLP, Washtington, D.C.,
for appellant Lower Elwha Klallam Tribe.
Richard M. Berley, Ziontz, Chestnut, Varnell, Berley &
Slonim, Seattle, Washington, for appellant Makah Tribe.
David West (briefed), Garvey, Schubert & Barer, Seattle,
Washington, for appellant Quileute Tribe.
Samuel J. Stiltner (briefed), Law Office of Puyallup Indian
Tribe, Tacoma, Washington, for appellant Puyallup Tribe.
Harold Chesnin (briefed), Office of Tribal Attorney Upper
Skagit Indian Tribe, Sedro Woolley, Washington, for appel-
lant Upper Skagit Tribe.
Daniel A. Raas (briefed), Raas, Johnsen & Stuen, P.S., Office
of Special Counsel, Bellingham, Washington, for appelllant
Lummi Nation.
Bill Tobin (briefed), Office of Tribal Attorney Nisqually
Indian Tribe, Vashon, Washington, for appellant Nisqually
Tribe.
Kevin Lyon (briefed), Office of Tribal Attorney Squaxin
Island Indian Tribe, Shelton, Washington, for appellant
Squaxin Island Tribe.
UNITED STATES v. WASHINGTON 8661
Eric Nielsen (briefed), Nielsen, Broman & Koch, Seattle,
Washington, for appellant Quinault Indian Nation.
James M. Jannetta (briefed), Swinomish Indian Tribal Com-
munity, LaConner, Washington, for appellant Swinomish
Indian Tribal Community.
Lauren P. Rasmussen, Law Offices of Lauren P. Rasmussen,
PLLC, Seattle, Washington, for appellees.
OPINION
KLEINFELD, Circuit Judge:
In substance, one Indian tribe seeks against other tribes an
equitable apportionment of a shared fishery. Though this case
was filed as a proceeding in the still pending 1970 district
court case of United States v. Washington,1 neither the United
States nor the State of Washington asserts a claim or defends
against one.
I. Facts.
In the 1850s, the United States signed a series of treaties
with the tribes of the Pacific Northwest.2 These treaties were
between the tribes and the United States, and did not purport
to settle disputes between different tribes.3 “The Tribes ceded
1
Complaint, United States v. Washington, No. 70-9213, Dkt. No. 1
(W.D. Wash. Sept. 18, 1970).
2
See, e.g., Treaty of Point No Point (Jan. 26, 1855), 12 Stat. 933 (1859);
Treaty of Point Elliot (Jan. 22, 1855), 12 Stat. 927 (1859). See generally
Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n,
443 U.S. 658, 661-69 (1979).
3
See, e.g., Treaty of Point No Point, 12 Stat. at 933 (“Treaty between
the United States of America and the S’Klallam Indians”); Treaty of Point
Eliott, 12 Stat. at 927 (“Treaty between the United States and the Dwa-
mish, Suquamish and other allied and subordinate Tribes of Indians in
Washington Territory”).
8662 UNITED STATES v. WASHINGTON
their aboriginal lands to the United States for settlement,
receiving in exchange exclusive title to defined lands, free
medical care, schools, occupational training, and annuity pay-
ments.”4 What matters for this case is that the treaties also
reserved to the tribes the “right of taking fish . . . in common
with all citizens of the United States.”5
In 1970, the United States in United States v. Washington6
sued the state government to enforce the treaties on behalf of
the Indians. The complaint sought an injunction to prevent the
State of Washington from “enforcing the provisions of state
laws or regulations in such manner as to prevent or restrict
members of said tribes from taking fish . . . without previ-
ously having established that the imposition of state regula-
tion is necessary for the conservation of fish.”7 No injunction
was sought against any tribe by any party.
As part of his lengthy and detailed opinions in that (and
technically still this) case,8 Judge Boldt described the treaty
fishing right as “a reserved right, which is linked to the
marine and freshwater areas where the Indians fished during
treaty times, and which exists in part to provide a volume of
fish which is sufficient to the fair needs of the tribes.”9 A tribe
4
United States v. Washington, 157 F.3d 630, 638 (9th Cir. 1998). For
a general overview of the history of the treaties and the ensuing fishing
rights litigation, see id. at 638-41.
5
Treaty of Point No Point, 12 Stat. at 934.
6
United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)
[hereinafter Decision I].
7
Complaint, United States v. Washington, No. 70-9213, Dkt. No. 1, at
12 (W.D. Wash. Sept. 18, 1970).
8
Judge Boldt’s initial decision was over 100 pages long. After that deci-
sion, he and other district judges have issued a number of decisions deter-
mining the nature and location of specific tribes’ reserved fishing rights
and related matters. See, e.g., United States v. Washington, 459 F. Supp.
1020 (W.D. Wash. 1978) [hereinafter Decision II]; United States v. Wash-
ington, 626 F. Supp. 1405 (W.D. Wash. 1985) [hereinafter Decision III].
9
Decision I, 384 F. Supp. at 401 ¶ 20.
UNITED STATES v. WASHINGTON 8663
has treaty rights at “every fishing location where members of
a tribe customarily fished . . . whether or not other tribes then
also fished in the same waters.”10 The district court has then
and subsequently denoted more than 20 tribes’ usual and
accustomed fishing grounds.11 The adjudicated fishing areas
of several tribes overlap.
Judge Boldt determined that the treaties entitled the tribes
to roughly 50% of the resources within traditional tribal fish-
eries. The Supreme Court ultimately affirmed this decision.12
Both the trial court and the Supreme Court disclaimed any
responsibility for intertribal allocation of the Indian 50%
when the same fishery was shared by multiple tribes. “The
court left it to the individual tribes involved to agree among
themselves on how best to divide the Indian share of runs that
pass through the usual and accustomed grounds of more than
one tribe. . . .”13
Pursuant to the request of the United States in its initial
complaint against the State of Washington,14 the district court
retained jurisdiction over “this case for the life of this decree
to take evidence, to make rulings and to issue such orders as
may be just and proper upon the facts and law in implementa-
tion of this decree.”15 Judge Boldt set forth the grounds for
invoking that jurisdiction:
25. (a) The parties or any of them may invoke the
10
Id. at 332 ¶ 8.
11
E.g., id. at 359-82; Decision II, 459 F. Supp. at 1049, 1059-60; Deci-
sion III, 626 F. Supp. at 1441.
12
Washington v. Wash. State Commercial Passenger Fishing Vessel
Ass’n, 443 U.S. 658 (1979).
13
Id. at 671; see Decision I, 384 F. Supp. at 407 ¶ 17, 410 ¶ 12.
14
Complaint, United States v. Washington, No. 70-9213, Dkt. No. 1, at
14 (W.D. Wash. Sept. 18, 1970).
15
Decision I, 384 F. Supp. at 408 ¶ 24.
8664 UNITED STATES v. WASHINGTON
continuing jurisdiction of this court in order to deter-
mine:
(1) Whether or not the actions, intended or
effected by any party (including the party
seeking a determination) are in conformity
with Final Decision # I or this injunction;
...
(4) Disputes concerning the subject matter
of this case which the parties have been
unable to resolve among themselves; . . .
[and]
(7) Such other matters as the court may
deem appropriate.16
Decision I had previously defined the subject matter of the
case as the application of the tribes’ treaty rights to anadro-
mous fish in Washington waters.17
To invoke the court’s continuing jurisdiction, parties must
file “requests for determination,”18 which are functionally the
same as a complaint, but get two file numbers, the original
1970 number of the treaty case, and an “SP” number to indi-
cate a new subproceeding within that case. This bit of admin-
istrative trivia matters, as we shall see, to jurisdiction over the
tribes. After Decision I, when requests for determination con-
cerning nonanadromous fish and other matters outside the
defined subject matter of the case were filed, the court
decided that equity favored the consolidation of “matters
16
Id. at 419 ¶ 25, as technically modified by Order Modifying Paragraph
25 of Permanent Injunction, United States v. Washington, No. 70-9213,
Dkt. No. 13599, at 1-2 (W.D. Wash. Aug. 23, 1993) (emphasis added).
17
Decision I, 384 F. Supp. at 400 ¶ 7.
18
Id. at 419 ¶ 25.
UNITED STATES v. WASHINGTON 8665
related to, but not included within, Final Decision # 1.”19 It
thus expanded the subject matter of the case. Later, the district
court concluded it had jurisdiction over intertribal allocations.20
In 1981, the Skokomish Indian Tribe requested a determi-
nation that it had the primary right to fish in the Hood Canal.
The claim for a “primary right” in these cases entails “the
power to regulate or prohibit fishing by members of other
treaty tribes” with fishing rights in the same territory.21 Pri-
mary right adjudication depends on the historical relationship
between tribes at the time of the treaties.22
Several tribes with pending claims of a right to fish in the
Hood Canal objected to Skokomish’s claim.23 Skokomish set-
tled its claims with the Lower Elwha Klallam, Port Gamble
S’Klallam, and Jamestown S’Klallam tribes. These ‘stipulat-
ing parties’ entered the Hood Canal Agreement which
resolved Skokomish’s primary rights claim as well as the ter-
ritorial claims of Port Gamble and Lower Elwha.24 The Hood
Canal Agreement created a joint fishery north of Ayock Point
in the Hood Canal where all of the parties “may exercise their
respective treaty fishing rights without any limitation or con-
trol whatsoever by any of the stipulating parties, except as the
stipulating parties may mutually agree by compact or other-
19
Decision II, 459 F. Supp. at 1048.
20
Decision III, 626 F. Supp. at 1470-71 ¶ 4 (“This Court’s ruling that
the question of intertribal allocation is a matter for the tribes rather than
the state to resolve prohibits the state from interfering with intertribal allo-
cation but in no way limits this Court’s jurisdiction over this or any other
matter . . . .”) (citations omitted and emphasis added).
21
United States v. Skokomish Indian Tribe, 764 F.2d 670, 671, 674 (9th
Cir. 1985) (affirming Skokomish’s primary right claim against the Suqua-
mish tribe).
22
United States v. Lower Elwha Tribe, 642 F.2d 1141, 1143 (9th Cir.
1981); Decision III, 626 F. Supp. at 1531 ¶ 97.
23
See Decision III, 626 F. Supp. at 1468.
24
Id.
8666 UNITED STATES v. WASHINGTON
wise. The Skokomish Tribe specifically agrees that it will not
. . . seek to exercise its primary right on Hood Canal north of
Ayock Point . . . .”25
After the Hood Canal Agreement, the stipulating parties
managed their joint fishery together through the Point No
Point Treaty Council. They entered into successive Off-
Reservation Fisheries Management Compacts. The 1999
Compact was the last agreement. This scheme for resolution
of disputes among the tribes eventually dissolved. Skokomish
and the Lower Elwha Klallam Tribe withdrew from the Point
No Point Treaty Council in 2003 and 2004, respectively. The
tribes could no longer reach an agreement on the intertribal
allocation of the joint fishery north of Ayock Point.
Skokomish unilaterally issued a harvest plan for 2004-05,
allocating to itself certain percentages of the Indian share.26
Port Gamble and Jamestown filed a request for determination
that Skokomish violated the Hood Canal Agreement.27 Sko-
komish filed a counter-request28 seeking an equitable alloca-
tion of the joint fishery in order to prevent a ‘race fishery’
from interfering with its ability to manage its fishery and meet
tribal needs. Its request acknowledged that it was harvesting
the same amount of fish as before. The district court bifur-
cated the two claims. This appeal concerns Skokomish’s
counter-request for an equitable allocation, which Lower
Elwha supported.
The district court granted the Port Gamble and Jamestown
Tribes’ motion to dismiss. The district court held that “[t]he
dispute here does not arise from the Hood Canal Agreement,
and it cannot be settled by looking to its terms. Instead, the
25
Id. at 1469.
26
See United States v. Washington, 393 F. Supp. 2d 1089, 1092-93
(W.D. Wash. 2005).
27
Id.
28
Functionally the same as a counterclaim.
UNITED STATES v. WASHINGTON 8667
Skokomish are asking the court to bypass the Agreement and
create an allocation for the parties because they cannot agree
among themselves as required by the Agreement.” The court
noted that nothing in the agreement “empowers the court to
allocate harvest shares in the absence of the agreement of the
parties.” The provision in Judge Boldt’s decree retaining
jurisdiction for “[d]isputes concerning the subject matter of
this case which the parties have been unable to resolve among
themselves,” did not apply because “[t]he subject matter of
this case is treaty fishing rights, not the equitable rights of any
one tribe to harvest a certain allocation of fish . . . . Nowhere
in these decisions is there a finding that inter-tribal allocation
(as opposed to allocation between treaty- and non-treaty fish-
ermen) is the subject matter of this case.” As for the catch-all
language in Judge Boldt’s order, “[s]uch other matters as the
court may deem appropriate,” “[t]his is a discretionary sec-
tion, and . . . the Court does not deem it appropriate to take
jurisdiction of this matter.” Because the request for allocation
did not fall within the purposes of enforcing the treaty or the
Hood Canal Agreement, and neither provided for court alloca-
tion if the tribes could not agree among themselves, the court
exercised its discretion to refrain from granting equitable
relief. Though we do not reach, or rule upon, all the conclu-
sions of the district court and the challenges to them, we con-
clude that dismissal was proper, and affirm.
II. Analysis.
We may affirm the dismissal on any ground supported by
the record.29 We do so on the ground that the Skokomish
Tribe has not pleaded facts that would entitle it to application
of the doctrine of equitable apportionment. Because dismissal
was proper on this ground, and our precedents compel us to
conclude that the district court had jurisdiction,30 we need not
consider the remaining issues.
29
Aronson v. Resolution Trust Corp., 38 F.3d 1110, 1112 (9th Cir.
1994).
30
E.g., Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1357
(9th Cir. 1998); United States v. Lower Elwha Tribe, 642 F.2d 1141, 1143-
8668 UNITED STATES v. WASHINGTON
[1] This claim by one tribe against others to allocate fish is,
as the district court said, far afield from the treaty dispute
between the United States on behalf of the Indian tribes and
the State of Washington in which the underlying decree
issued, and is not an interpretation of the Hood Canal Agree-
ment. There is no treaty and no agreement of any kind
between the tribes to be construed and applied. The claim is
more analogous to a claim for equitable allocation of fish
between states, which the Supreme Court confronted in Idaho
ex rel. Evans v. Oregon.31 In that case, the State of Idaho
sought apportionment of anadromous fish between itself, Ore-
gon, and Washington. The Court held that “the doctrine of
equitable apportionment is applicable to this dispute.”32 Such
“apportionment is based on broad and flexible equitable con-
cerns rather than on precise legal entitlements.”33
[2] When one state seeks equitable apportionment against
another under the doctrine of equitable apportionment, the
Court held that it “must prove by clear and convincing evi-
dence some real and substantial injury or damage.”34 In Idaho
ex rel. Evans, the Court declined to exercise its equitable
jurisdiction to make an apportionment, because Idaho had not
proved “that Oregon and Washington are now injuring Idaho
by overfishing the Columbia or that they will do so in the
future.”35 The Court concluded that, “[a]lthough it is possible
44 (9th Cir. 1981), aff’g Decision II, 459 F. Supp. at 1066-68 (determining
the primary right claims of the Makah and Lower Elwha Klallam Tribes,
and stating that if disputes concerning their joint fishery should be referred
to the Northwest Indian Fisheries Commission, whose decision “may be
reviewed by the court”).
31
462 U.S. 1017 (1983).
32
Id. at 1024.
33
Id. at 1025.
34
Id. at 1027.
35
Id. at 1028; see also id. at 1028 n.12 (stating that “the Court must look
to factors such as disproportionate reductions in Idaho’s normal harvest,
or reductions in the total fish in the runs” in order to establish “the need
for a decree”).
UNITED STATES v. WASHINGTON 8669
that Washington and Oregon will mismanage this resource in
the future, Idaho has not carried its burden of demonstrating
a substantial likelihood of injury.”36
This high burden for pleading and proof differs from ordi-
nary standing doctrine, because suits between sovereigns
require restraint by the courts, and because equitable remedies
are discretionary. The Supreme Court has long held that “[t]he
governing rule is that this Court will not exert its extraordi-
nary power to control the conduct of one State at the suit of
another, unless the threatened invasion of rights is of serious
magnitude and established by clear and convincing evidence.”37
[3] Like states, Indian tribes are sovereign entities, albeit,
“domestic dependent” sovereigns.38 We held in Moore v. Nel-
son39 that, under Santa Clara Pueblo v. Martinez,40 “[t]he
same considerations of federal non-interference in the affairs
of other sovereigns that influenced us in Edmunds [to limit
habeas review of state convictions] apply to our review of the
actions of Indian tribes.”41
[4] The district court properly dismissed the Skokomish
tribe’s claim for equitable apportionment, because even
accepting that the tribe could prove what it pleaded, that
would not “prove by clear and convincing evidence some real
and substantial injury or damage.” The Skokomish tribe
pleaded that “[f]rom 1976 through the present, Skokomish
has and continues to harvest up to 90% of certain species of
the Hood Canal finfish fishery . . . . [and] up to 80% of certain
36
Id. at 1029.
37
Connecticut v. Massachusetts, 282 U.S. 660, 669 (1931).
38
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
39
270 F.3d 789, 791 (9th Cir. 2001).
40
436 U.S. 49, 62-63 (1978).
41
Moore, 270 F.3d at 791 (discussing Edmunds v. Won Bae Chang, 509
F.2d 39, 41 (9th Cir. 1975)); see also Solomon v. Interior Regional Hous.
Auth., 313 F.3d 1194, 1200 (9th Cir. 2002).
8670 UNITED STATES v. WASHINGTON
species of shellfish.” The tribe does not plead any impinge-
ment on its ability to obtain whatever fish it claims under the
treaty. All it alleges is that if the court does not make an equi-
table allocation, its “share will remain uncertain” and other
tribes with greater rights in other areas may at some time
impinge on Skokomish’s fishery.
[5] Intertribal allocations of the fisheries have historically
been a matter for the tribes to resolve amongst themselves, as
sovereigns.42 The Hood Canal Agreement was just such an
act. For that reason, both the trial court and the Supreme
Court in this case disclaimed any responsibility for allocating
the tribal portion of fisheries shared by multiple tribes.43
Assuming that our precedents are correct in holding that the
district court has jurisdiction to make these allocations, it nev-
ertheless retains its discretion under the equitable allocation
doctrine to decline to do so. As in the Idaho ex rel. Evans
case, nothing has happened to the Skokomish that would jus-
tify the exercise of jurisdiction in the face of the high fence
the Court has erected against its exercise.44 The Skokomish
tribe pleads no “real and substantial injury or damage.” And
Skokomish pleads that it is taking as much fish now as in the
past.
The Skokomish Tribe has argued that if it cannot obtain
allocations from the district court, then there may be a race for
the fish among the tribes, and there will be no way to regulate
the race. The need for equitable allocation in this case, it
42
See, e.g., United States v. Lower Elwha Tribe. 642 F.2d 1141, 1143-
44 & n.4 (9th Cir. 1981); Decision III, 626 F. Supp. at 1490-91 ¶¶ 355-57,
1528 ¶¶ 362-67.
43
See Wash. State Commercial Passenger Fishing Vessel Ass’n, 443
U.S. at 671; Decision I, 384 F. Supp. at 407 ¶ 17, 410 ¶ 12. But see Deci-
sion III, 626 F. Supp. at 1470-71 ¶ 4.
44
See Idaho ex rel. Evans, 462 U.S. at 1028 n.12 (stating that “the Court
must look to factors such as disproportionate reductions in Idaho’s normal
harvest, or reductions in the total fish in the runs” in order to establish “the
need for a decree”)
UNITED STATES v. WASHINGTON 8671
argues, arises from the sovereign immunity of the tribes.
Were it to file a new lawsuit, instead of hanging onto the coat-
tails of the 1970 case enforcing the tribes’ treaty rights against
the State of Washington, then, Skokomish argues, any tribe it
sued could assert its sovereign immunity against suit. That
may be so. But not all problems have judicial solutions. And
for disputes among Indian tribes, there is something to be said
for a private dispute resolution procedure among themselves,
such as the Point No Point Treaty Council or the Northwest
Indian Fisheries Commission, because of their greater famil-
iarity with and sensitivity to the details of the problem and
any cultural factors that may bear on the solution, if there is
one.45
We are puzzled, but need not reach the question, about why
the equitable decree in this case remains in force at all. The
point of the lawsuit the United States filed was to protect
Indian treaty rights from state infringement, not to sort out
competing tribal claims. That goal was achieved,46 and has
nothing to do with the continuing exercise of jurisdiction as
far as we can tell from the record. The goal of “provid[ing]
a volume of fish sufficient to the fair needs of the tribes”47
seems similarly to have been achieved, as this dispute demon-
strates.48
45
Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 72 (1978)
(expressing the need for caution before subjecting disputes arising
between Indians to a federal forum).
46
See Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819, 822-824
(Wash. 1979) (overruling past Washington Supreme Court decisions
which had precluded Washington agencies’ attempts at compliance with
the decree, and recognizing that the agencies have the authority to manage
the fishery in a manner that gives full force and effect to the treaty rights
of the Indians).
47
Decision I, 384 F. Supp. at 401 ¶ 20.
48
See also Wash. Dep’t of Fish & Wildlife, 2008-9 Co-Managers’ List
of Agreed Fisheries, http://wdfw.wa.gov/fish/tribal/2008-09agreement.pdf
(Apr. 17, 2008) (describing allocation of fisheries for the 2008-09 har-
vest).
8672 UNITED STATES v. WASHINGTON
The original injunction, entered 35 years ago, was intended
to resolve the treaty right fishing disputes once and for all.49
Yet this case has become a Jarndyce and Jarndyce, with
judges dying out of it and whole Indian tribes being born into
it.50 The district court accurately stated fifteen years ago that
“the court has become a regulatory agency perpetually to
manage fishing.” Judges in the Western District of Washing-
ton have now been regulating fishing in the Puget Sound for
35 years, with the aid of a Fishery Advisory Board that the
court created.51 The Constitution does not establish the district
courts as permanent administrative agencies.
[6] Now that treaty enforcement is no longer at issue, it is
hard to see why the court still displaces state and federal fish
management agencies. As the Supreme Court held in Frew v.
Hawkins, “[t]he federal court must exercise its equitable pow-
ers to ensure that when the objects of the decree have been
attained, responsibility for discharging the State’s obligations
is promptly returned to the State and its officials.”52 The Court
49
See Decision I, 384 F. Supp. at 330 (“The ultimate objective of this
decision is to determine every issue of fact and law presented and, at long
last, thereby finally settle, either in this decision or on appeal thereof, as
many as possible of the divisive problems of treaty right fishing which for
so long have plagued all the citizens of this area, and still do.”).
50
See United States v. Washington, 394 F.3d 1152 (9th Cir. 2005)
(allowing the Samish tribe to reopen previous proceedings finding that it
lacked a treaty right due to its federal recognition as a tribe); Charles
Dickens, Bleak House 3 (1853) (“Jarndyce and Jarndyce drones on. This
scarecrow of a suit has, in course of time, become so complicated, that no
man alive knows what it means. The parties to it understand it least; but
it has been observed that no two Chancery lawyers can talk about it for
five minutes, without coming to a total disagreement as to all the premises.
Innumerable children have been born into the cause; innumerable young
people have married into it; innumerable old people have died out of it.”).
Compare McDonnell Douglas Corp. v. United States, No. 2007-5111,
2009 WL 1515777, at *1 (Fed. Cir. June 2, 2009) (calling an 18 year old
case an “American version of Jarndyce and Jarndyce“).
51
See Decision II, 459 F. Supp. at 1061-63.
52
Frew v. Hawkins, 540 U.S. 431, 442 (2004); see also Labor/Cmty.
Strategy Ctr. v. L.A. County Metro. Transp. Auth., 564 F.3d 1115, 1123
UNITED STATES v. WASHINGTON 8673
has repeatedly reminded us that institutional reform injunc-
tions were meant to be temporary solutions, not permanent
interventions, and could be kept in place only so long as the
violation continued.53 Most recently, the Court stated this term
that “[i]f a durable remedy has been implemented, continued
enforcement of the order is not only unnecessary, but improp-
er.”54 No one alleges that the State of Washington’s violations
of the Indian tribes’ treaty rights continue.
In Freeman v. Pitts, the Court listed several factors to con-
sider in determining whether to modify, withdraw supervision
over, or terminate ancient equitable decrees: “whether there
has been full and satisfactory compliance with the decree
. . . ; whether retention of judicial control is necessary or prac-
ticable . . .; and whether the [defendant] has demonstrated . . .
its good-faith commitment to the whole of the court’s decree
and to those provisions of the law . . . that were the predicate
for judicial intervention in the first instance.”55 Horne v. Flo-
res, Rufo v. Inmates of Suffolk County Jail, and Board of Edu-
cation of Oklahoma City Public Schools v. Dowell all held
that a district court must consider whether the purpose of the
decree has been substantially achieved and whether the public
interest favors modification or termination.56
(9th Cir. 2009) (“Our decision is consistent with the principle that federal
court intervention in state institutions is a temporary measure and may
extend no longer than necessary to cure constitutional violations . . . . In
this case, as the district court found, perhaps every last wish and hope of
the decree was not achieved, but the decree accomplished its essential pur-
poses and the situation improved greatly.”) (citations omitted).
53
Frew, 540 U.S. at 442; Missouri v. Jenkins, 515 U.S. 70, 87-89, 102
(1995); Freeman v. Pitts, 503 U.S. 467, 489-92 (1992); Rufo v. Inmates
of Suffolk County Jail, 502 U.S. 367, 380-93 (1992); Bd. of Educ. of Okla.
City Pub. Schs. v. Dowell, 498 U.S. 237, 247-48 (1991).
54
Horne v. Flores, No. 08-289, slip op. at 13 (U.S. June 25, 2009).
55
Freeman, 503 U.S. at 491.
56
Horne, No. 08-289, slip op. at 13, Rufo, 502 U.S. at 381, 384, 387,
392; Dowell, 498 U.S. at 247-49.
8674 UNITED STATES v. WASHINGTON
It is hard to see what we achieve in our continuing adjudi-
cations. We pretend to be able to read the mind of the long
deceased district judge who initially issued the decree on mat-
ters of which he did not speak. And we pretend to determine
what the Indian tribes did 150 years ago at a time for which
there is no evidence of especially high reliability and little
evidence of any kind.57 This exercise is not law, and is not a
reliable way to find facts, so it is hard to see why courts are
doing it and how it could be preferable to the Indian tribes
working some dispute resolution system out for themselves.
[7] We need not in this case decide whether the 1974
decree should now be released, modified, or dissolved,
because no party has asked us to. Such a motion, if made,
would be directed to the discretion of the district court, as
would sua sponte consideration.58
III. Conclusion.
We AFFIRM the dismissal of the request for determination
because Skokomish did not plead “real and substantial injury
or damage” as required for equitable allocation between sov-
ereigns.
57
E.g., United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir.
2000); United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.
2000); Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.
1998); United States v. Skokomish Indian Tribe, 764 F.2d 670 (9th Cir.
1985); United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981).
See Decision II, 459 F. Supp. at 1059 (“In determining usual and accus-
tomed fishing places the court cannot follow stringent proof standards
because to do so would likely preclude a finding of any such areas. Little
documentation of Indian fishing locations in and around 1855 exists
today.”).
58
See Lapin v. Shulton, Inc., 333 F.2d 169, 170-72 (9th Cir. 1964).