Con Tribes Colville v. Con Tribes Yakama

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff,
v.
STATE OF OREGON, STATE OF
WASHINGTON,
Defendants.
CONFEDERATED TRIBES AND
BANDS OF THE YAKAMA INDIAN No. 03-35773
NATION,
Appellee,  D.C. No.
CV-68-00513-MFM
v. OPINION
CONFEDERATED TRIBES OF THE
COLVILLE INDIAN RESERVATION;
JOSEPH PAKOOTAS, Chairman of the
Colville Business Council;
WENATCHI CONSTITUENT TRIBE;
JOHN ST. PIERRE, Spokesman for
the Wenatchi Constituent Tribe,
Appellants.

Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued & Submission Deferred March 11, 2005
Resubmitted November 24, 2006
Portland, Oregon
Filed December 4, 2006
Before: Procter Hug, Jr., Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.
18981
18982 UNITED STATES v. CONFEDERATED TRIBES
Opinion by Judge Hug
18984 UNITED STATES v. CONFEDERATED TRIBES
COUNSEL
Harry R. Sachse, Sonosky, Chambers, Sachse, Endreson &
Perry, LLP, Washington, D.C., for the appellants.
Fronda Woods, Assistant Attorney General, WSBA# 18728,
Olympia, Washington, for the intervenor-appellee.
Tim Weaver, Weaver Law Office, Yakima, Washington, for
the intervenor-appellee.
Howard G. Arnett, Karnopp Petersen LLP, Bend, Oregon, for
intervenor-appellee.
OPINION
HUG, Circuit Judge:
In this case we determine whether the Confederated Tribes
of the Colville Indian Reservation (Colville) is foreclosed by
res judicata from asserting the claim of its Wenatchi Constitu-
ent Tribe (Wenatchi) to fishing rights at the Wenatshapam
Fishery on Icicle Creek, a tributary to the Columbia River.
The Yakama1 Nation sought and obtained an injunction pre-
venting the members of the Wenatchi Tribe from fishing at
that location.2 In granting the injunction, the district court
1
The name was changed from “Yakima” to “Yakama” in 1994 to reflect
the native pronunciation. “Yakama” is used in this opinion, except where
historical accuracy requires that “Yakima” be used.
2
Although Colville’s attempt to intervene in United States v. Oregon
was denied and Colville is, therefore, not a party to that case, jurisdiction
UNITED STATES v. CONFEDERATED TRIBES 18985
found that Colville’s earlier failed effort to intervene in litiga-
tion over off-reservation fishing rights in the area served to
bar Colville from asserting the alleged rights as a defense to
the injunction. See United States v. Oregon, 787 F. Supp.
1557, 1572 (D. Or. 1992). We hold that the requisite identity
of claims between the earlier intervention attempt and the
present injunction hearing does not exist and, consequently,
res judicata does not apply. We therefore reverse and remand
to the district court for a hearing on the merits.
I. Background
In 1855, the United States entered into two treaties with a
group of Indian tribes, the Yakama Treaty of June 9, 1855,
and the Nez Perce Treaty of June 11, 1855. In this action
between the Yakama Nation and the Confederated Tribes of
the Colville Indian Reservation (on behalf of the Wenatchi
Tribe), only the Yakama Treaty is involved.
The Wenatchi Tribe was one of the fourteen tribes repre-
sented at the negotiation of the Yakama Treaty. The treaty
specified that tribes “for the purposes of this treaty, are to be
considered as one nation, under the name of ‘Yakama.’ ”
Treaty with the Yakamas, June 9, 1855, 12 Stat. 951 (1885).
Under the treaty, the tribes gave up most of their lands in
return for a specific reservation with set boundaries and also
is proper because a court may enjoin non-parties whose actions threaten
to interfere with prior orders of the court. S.E.C. v. Wencke, 622 F.2d
1363, 1370 n.11 (9th Cir. 1980); see also Fed. R. Civ. P. 71.
This court reviews for abuse of discretion a district court’s decision to
issue permanent injunctive relief, Fortyune v. American Multi-Cinema,
Inc., 364 F.3d 1075, 1079 (9th Cir. 2004), but reviews de novo the under-
lying legal conclusions on which the district court based its decision. Bio-
diversity Legal Fund v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002).
“The applicability of the doctrine of res judicata is a question of law sub-
ject to de novo review.” In re Schimmels, 127 F.3d 875, 880 (9th Cir.
1997).
18986 UNITED STATES v. CONFEDERATED TRIBES
certain other benefits such as schools, a hospital, various ser-
vices and a payment of $200,000 payable over twenty years.
This reservation for the Yakama Nation was to be set apart,
surveyed and marked out for the exclusive use of the fourteen
confederated tribes of the Yakama Nation. These tribes were
to settle on this reservation within one year. The treaty pro-
vided “nor shall any white man, excepting those in the
employment of the Indian Department, be permitted to reside
upon the said reservation without permission of the tribe and
the superintendent and agent.” Id. at art. II, 12 Stat. at 952.
The land was later surveyed and set apart as provided in the
treaty.
The 1855 Treaty also provided:
The exclusive right of taking fish in all the streams,
where running through or bordering said reservation,
is further secured to said confederated tribes and
bands of Indians, as also the right of taking fish at all
usual and accustomed places, in common with citi-
zens of the Territory, and of erecting temporary
buildings for curing them; together with the privilege
of hunting, gathering roots and berries, and pasturing
their horses and cattle upon open and unclaimed
land.
Id. at art. III, 12 Stat. at 953.
The treaty also set aside an additional reservation for the
use of the confederated tribes of the Yakama Nation. Article
X of the Treaty provided:
That there is also reserved and set apart from the
lands ceded by this treaty, for the use and benefit of
the aforesaid confederated tribes and bands, a tract
of land not exceeding in quantity one township of six
miles square, situated at the forks of the Pisquouse
or Wenatshapam River, and known as the
UNITED STATES v. CONFEDERATED TRIBES 18987
“Wenatshapam Fishery,” which said reservation
shall be surveyed and marked out whenever the Pres-
ident may direct, and be subject to the same provi-
sions and restrictions as other Indian reservations.
Id. at art. X, 12 Stat. at 954.
Despite the promise made in Article X, no attempt was
made by the United States to survey the six-square-mile reser-
vation for almost forty years. The Wenatchi remained at this
Wenatshapam Fishery Reservation and fished there during
this time, firmly believing that a survey would be made and
they would be secure in this reservation.
Along with four other signatory tribes, the Entiat, Chelan,
Columbia, and Paloose Tribes, the Wenatchi did not move
onto the surveyed Yakama Nation Reservation. The Wenatchi
remained and fished on their aboriginal lands at the
Wenatshapam Fishery until they were moved by the federal
government in 1902 and 1903 to the Colville Reservation.
Events transpiring during this period are set forth in some
detail in United States v. Oregon, 787 F. Supp. 1557 (D. Or.
1992), and in our opinion on appeal of that case, at 29 F.3d
481 (9th Cir. 1994).3
The United States finally authorized a survey to be con-
ducted of the Wenatshapam Fishery Reservation in 1983. The
surveyor, Deputy United States Surveyor Oliver B. Iverson,
had established monuments and marks on trees to set out this
six-square-mile area. However, before the survey was com-
pleted, the newly appointed Yakima Indian Agent, Lewis T.
Erwin, ordered Iverson to stop the surveying and destroy all
the monuments and trees that had markings. Instead, he
directed the surveyor to survey an area some distance away in
3
Extensive details are also provided in E. Richard Hart, The History of
the Wenatchi Fishing Reservation, 13 W. LEG. HIST. 163 (2000) [hereinaf-
ter Hart History], a part of the record in this case.
18988 UNITED STATES v. CONFEDERATED TRIBES
the mountains next to a lake, but not near the river. When for-
mer Yakima Indian Agent Jay Lynch learned that the survey
had placed the reservation in the mountains at Lake Wenat-
chee, he wrote to complain about the whole affair: “I do not
think I can give you a clearer idea of the situation than to
quote the remarks of an old Indian . . . ‘Does our Great Father
at Washington think a salmon is an eagle that lives on top of
a mountain, or does he think a salmon is a deer that lives in
the woods and hills . . . ?’ ” Hart History at 189.
In the meantime, quite a number of white settlers had set-
tled on the proposed Wenatshapam Fishery Reservation and
a railroad had been built through the area. Apparently as a
result of these developments, the United States commenced
negotiations with the tribes of the Yakama Nation to purchase
the area that had been described in Article X of the 1855
Treaty. (The Government had not accepted Agent Erwin’s
survey of the mountainous area because it was incorrect.) An
agreement was executed on January 8, 1894. It is important
to note that this was not an amendment to the 1855 Treaty.
The agreement provided for the sale for $20,000 of the six-
square-mile fishery area that had been described in Article X
of the 1855 Treaty. Article I of the 1894 Agreement provided:
The said Indians hereby cede and relinquish to the
United States all their right, title, interest, claim, and
demand of whatsoever name or nature of in, and to
all their right of fishery, as set forth in article 10 of
said treaty aforesaid, and also all their right, title,
interest, claim, or demand of, in, and to said land
above described, or any corrected description thereof
and known as the Wenatshapam fishery.
Agreement with the Yakima Nation of Indians (1894 Agree-
ment), art. I, 28 Stat. 320 (1894).
The Wenatchi contend that the Yakama Nation was unwill-
ing to sell the property without a provision guaranteeing the
UNITED STATES v. CONFEDERATED TRIBES 18989
land and fishing rights for the Wenatchi Tribe that had contin-
ued to live on its aboriginal territory and fishery. In support
of this argument, Colville cites to negotiations at the time of
entering into the agreement. Indian Agent Erwin stated to
Chief John Harmelt, the leader of the Wenatchi Tribe:
There is one thing I want to impress on these Indians
from the Wenatchee, and that is that they are not to
be robbed of an acre of land, but, on the contrary, the
Government proposes to give them land where they
now are. The selling of this fishery does not interfere
with their rights at all. The proposition is to buy this
little piece of land and to allot to the Indians where
they now live.
S. Exec. Doc. No. 67, at 30 (1894).
As a result of these negotiations, the 1894 Agreement con-
tained the following key provision, in Article II:
After the ratification of this agreement by Congress
and the further consideration that the Indians known
as the Wenatshapam Indians, residing on the Wenat-
chee River, State of Washington, shall have land
allotted to them in severalty in the vicinity of where
they now reside, or elsewhere, as they may select, in
accordance with article 4 of the general allotment law.4
1894 Agreement, art. II, 28 Stat. at 321. The agreement to
provide allotments to the 180 members of the Wenatchi Tribe
that were still living at the fishery would have amounted to
approximately 24,000 acres. However, the government again
failed to fulfill its promise, as it never made the allotments
available to the Wenatchi. Hart History at 195-200, 202.
4
The Wenatshapam Indians referred to in the 1894 Agreement are the
same as the Wenatchi Indians.
18990 UNITED STATES v. CONFEDERATED TRIBES
The Wenatshapam Fishery is now occupied primarily by
the Leavenworth National Fish Hatchery. The management of
the hatchery has welcomed fishing by members of both the
Wenatchi and Yakama Tribes. The fish taken are those desig-
nated by the hatchery as surplus to its needs. Until the current
dispute, the members of the Wenatchi and Yakama Tribes
have fished there peacefully. The hatchery has permitted the
Wenatchi Tribe to hold its tribal ceremonies on the grounds.
The Yakama Nation has now brought this action for an
injunction to exclude the Wenatchi from fishing at the
Wenatshapam Fishery, their aboriginal fishery. Colville, on
behalf of its constituent tribe, the Wenatchi, defends on the
ground of rights granted to the Wenatchi by the 1894 Agree-
ment with the United States that was ratified by Congress.
Under the district court’s res judicata ruling, however, the
Wenatchi Tribe did not obtain a ruling on the merits of their
claim. Through unfulfilled promises and procedural rulings,
they would, under that ruling, lose both the land they were
guaranteed adjacent to the fishery and their fishing rights.
II. Procedural Background
In 1968, the United States Supreme Court ruled on the
extent state regulation could impinge on tribal treaty rights.
Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 398-403
(1968). In light of that case, two suits, later consolidated, were
filed in 1968 in the U.S. District Court for the District of Ore-
gon to determine the extent of the permissible regulation of
Indian treaty fishing rights by the State of Oregon. The prog-
ress of that case is summarized in United States v. Oregon,
699 F. Supp. 1456 (D. Or. 1988):
The pending case is the outgrowth of the consolida-
tion of two cases filed in 1968. The first case was
designated Sohappy v. Smith, [302 F. Supp. 899],
while the second was designated by the heading in
this case. Each suit was brought against the State of
UNITED STATES v. CONFEDERATED TRIBES 18991
Oregon to define the Indians’ treaty right to take fish
“at all usual and accustomed places” on the Colum-
bia River and its tributaries.
...
An initial opinion was entered on July 8, 1969
wherein the Honorable Robert C. Belloni construed
the Indians’ treaty fishing right and considered the
manner and extent to which the State of Oregon
could regulate initial fishing. Sohappy, 302 F. Supp.
at 911-12. He retained jurisdiction to grant further or
amended relief. Id.
Id. at 1458-59 (emphasis added). The State of Washington
was allowed to intervene, and Judge Belloni urged the parties
to adopt a comprehensive plan for allocation and management
of the Columbia River anadromous fish. A five-year plan was
initially adopted, followed by several one-year plans. In 1988,
a ten-year plan was adopted.
In 1994, Colville sought to intervene in the United States
v. Oregon litigation on behalf of five constituent tribes — the
Wenatchi, Entiat, Chelan, Columbia, and Palous tribes — that
were parties to the Yakama Treaty of June 9, 1855, and on
behalf of the Chief Joseph Band of Nez Perce, which was a
party to the Nez Perce Treaty of June 11, 1855. Both treaties
had reserved off-reservation fishing rights on the Columbia
River and its tributaries. Colville was allowed to intervene
temporarily on the condition that those constituent tribes
could prove that they had 1855 Treaty rights. Judge Marsh
stated in his opinion that:
Colville seeks intervention in a proceeding that has
been under the continuing jurisdiction and supervi-
sion of this court since 1968. On August 7, 1989, I
granted Colville’s motion to intervene, on the condi-
tion that it first establish that it has federally secured
18992 UNITED STATES v. CONFEDERATED TRIBES
off-reservation treaty fishing rights either by initial
grant or by succession in interest.
United States v. Oregon, 787 F. Supp. at 1560-61 (emphasis
added). After a three-day bench trial on this issue, Judge
Marsh concluded:
I find that the Colville Confederated Tribes has
failed to establish that it is the successor Indian gov-
ernment and the present day holder of treaty rights
reserved to the Wenatchi, Entiat, Chelan, Columbia,
Palus [Tribes] or Chief Joseph Band of Nez Perce in
the treaties of 1855 with the Yakima Nation or with
the Nez Perce. Accordingly, the Colville complaint
in intervention is dismissed.
Id. at 1572 (emphasis added).
Colville appealed the denial of intervention to our court.
Although there was some confusion as to whether Colville
was asserting a claim as to all of its constituent tribes, this
was cleared up at oral argument in that appeal when Colville
clarified that it was asserting only the rights of the six constit-
uent treaty tribes. On appeal, we first stated, “[i]t is not dis-
puted that Colville is the only entity that can legally act on
behalf of members of the Confederated Tribes, and we agree
with Colville that if the constituent tribes retained treaty fish-
ing rights, Colville may properly assert these rights.” United
States v. Oregon, 29 F.3d 481, 483 (9th Cir. 1994), amended
by 43 F.3d 1284 (9th Cir. 1994).
We went on, however, to affirm Judge Marsh’s decision
that neither Colville nor the Wenatchi had off-reservation
fishing rights flowing from the 1855 Treaty. Id. at 486-87. In
doing so, we also noted that the parties agreed that the
Wenatchi, Entiat, Chelan, Columbia and Palous Tribes were
all signatories to the 1855 Treaty, but that “[t]he Yakima
Treaty of 1855 envisioned the creation of a successor tribe, a
UNITED STATES v. CONFEDERATED TRIBES 18993
‘Yakima Nation’ composed of all of the people represented
by the signatories to the Treaty.” Id. at 485. The five tribes
never moved to the reservation created for the Yakama
Nation, which was the entity in which the treaty rights vested.
Id.
We further observed that the present Yakama Nation was
recomposed in 1974 and has exercised treaty rights as a suc-
cessor to the entities that signed the original 1855 Treaty. We
concluded that, “by deliberately separating from the Yakima
Nation, these tribes failed to maintain political cohesion with
the tribal entity in which the treaty fishing rights are vested.”
Id. at 486 (emphasis added).
In the present action, the district court determined that the
intervention proceeding had a res judicata effect because Col-
ville had the opportunity to raise the claim it is raising now,
premised on the 1894 Agreement, in the earlier proceeding,
but chose not to.5 Colville appeals the res judicata ruling,
arguing that it was precluded from raising the claim by the
district judge’s required conditions for intervention, and that
the intervention proceeding did not bar consideration of the
merits of its claim under the 1894 Agreement.
5
Because it found claim preclusion applied, the district court did not
address whether issue preclusion also applied. “The doctrine of issue pre-
clusion prevents relitigation of all ‘issues of fact or law that were actually
litigated and necessarily decided’ in a prior proceeding.” Robi v. Five
Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (quoting Segal v. Am. Tel.
& Tel. Co., 606 F.2d 842, 845 (9th Cir. 1979)). As our discussion below
indicates, the question of whether the 1894 Agreement granted the
Wenatchi new rights to fish at the Wenatshapam Fishery was never liti-
gated or decided in the intervention proceeding. Colville is therefore not
collaterally estopped from raising the issue in the current action.
18994 UNITED STATES v. CONFEDERATED TRIBES
III. Discussion
A. Intervention
[1] In order to intervene in the action concerning the treaty
rights of the five tribes that had been parties to the 1855
Yakama Treaty, Judge Marsh made it clear that Colville had
to establish, as a condition to intervention, treaty rights under
the 1855 treaties. Colville did not become a party to the litiga-
tion, in which it could litigate any other issues concerning
fishing rights of any of its constituent tribes, until it satisfied
that condition for intervention. Judge Marsh held that Colville
failed to do so and denied intervention. The condition that
Judge Marsh imposed follows logically from the constraints
of Federal Rule of Civil Procedure 24(a)(2), which provides
for intervention when “the applicant claims an interest relat-
ing to the property or transaction which is the subject of the
action.” The subject of the action from 1968 on was, as Judge
Marsh stated, “to define the Indians’ treaty rights to take fish
‘at all usual and accustomed places.’ ” 787 F. Supp. at 1559.
A claim to fishing rights resulting from the 1894 Agreement
was not a claim of “an interest relating to the property or
transaction which is the subject of the action” as specified in
Rule 24(a)(2). The subject of the action was the treaty fishing
rights of the tribes, not fishing rights in general. Colville did
seek intervention on the basis that the history of the matter did
somehow involve treaty rights of the five Indian tribes. Judge
Marsh properly ruled that it did not and denied intervention.
Colville did not meet the condition Judge Marsh had set forth
to permit intervention and did not meet the requirements of
Rule 24(a)(2), as it was not the subject of the action.
[2] The scope of Colville’s complaint in intervention can-
not, therefore, fairly be characterized as solely a function of
self-imposed trial strategy.6 The limitations on the interven-
6
Similarly, Colville’s proposed findings of fact regarding the 1894
Agreement, submitted in support of its motion to intervene and ultimately
UNITED STATES v. CONFEDERATED TRIBES 18995
tion proceeding clearly precluded Colville from asserting the
right now claimed by the Wenatchi. The Wenatchi contend
that all rights reserved under Article X of the 1855 Treaty
were ceded to the United States by the Yakama Nation in
1894, but only after Yakama Nation representatives were sat-
isfied that the Wenatchi would still be able to remain on their
land and fish at Wenatshapam. The Wenatchi thus character-
ize their fishing rights under the 1894 Agreement as new
rights, granted by the United States as part of its independent
agreement to buy back the reservation that should have been,
but never was, set aside in Article X of the 1855 Treaty. In
other words, according to Colville, the 1894 Agreement both
terminated existing treaty rights of the Yakama Nation under
Article X and granted entirely new rights (i.e., allotments and
fishing privileges) to the Wenatchi.
[3] Consequently, the argument based on the 1894 Agree-
ment could not have been part of Colville’s claim based on
the 1855 Treaty. Because Colville was required to meet the
condition of establishing a treaty right before it would be
allowed to intervene, it could not advance an argument that
the Wenatchi Tribe obtained fishing rights from the 1894
Agreement independent of any treaty rights. In other words,
if the Wenatchi acquired rights under the 1894 Agreement
that were distinct from those reserved in the 1855 Treaty,
Rule 24 itself would have prevented Colville from asserting
those separate rights in a proceeding expressly limited to the
adjudication of the 1855 Treaty rights.
[4] One additional factor counsels against applying res judi-
cata here. In affirming Judge Marsh’s denial of Colville’s
rejected by Judge Marsh, do not support a conclusion contrary to that
reached here. The proposed facts are ambiguous, but could be read to
assert that the 1894 Agreement itself created new rights for the Wenatchi
to the land and fishery identified in Article X (but never properly surveyed
and reserved before being ceded and extinguished in 1894). Such an argu-
ment would have been improper and impermissible because it did not
assert an interest in the 1855 Treaty itself and, therefore, fails under the
same logic outlined in the text.
18996 UNITED STATES v. CONFEDERATED TRIBES
motion to intervene, we found that well before 1894 the
Wenatchi had refused to move to the Yakama Nation Reser-
vation and had separated themselves politically from the
Yakama Nation, thereby depriving themselves of any 1855
Treaty rights. See United States v. Oregon, 29 F.3d at 485-86
(concluding that, based on the evidence, the Wenatchi “delib-
erately sought to separate themselves” from the Yakima
Nation and, therefore, held no rights under the 1855 Treaty).
[5] Accordingly, the law of the case supports the view that
any fishing rights the Wenatchi gained under the 1894 Agree-
ment must have been new rights. The 1855 Treaty and the
1894 Agreement, therefore, present entirely different transac-
tional nuclei. Such a conclusion is in keeping with our
requirement that, “when considering whether a prior action
involved the same ‘nucleus of facts’ for preclusion purposes,
we must narrowly construe the scope of that earlier action.”
Central Delta Water Agency v. United States, 306 F.3d 938,
953 (9th Cir. 2002).
The 1894 Agreement was not set forth as an amendment to
the 1855 Treaty. Rather, it was an agreement for the sale of
the Wenatshapam Fishery that had been given to the tribes of
the Yakama Nation by the 1855 Treaty, with specific benefits
being reserved for the Wenatchi Tribe, which had continued
to reside and fish there.
The Wenatchi Tribe maintains that, under the 1894 Agree-
ment, the Yakama Nation gave up all of its fishing rights in
the Wenatshapam Fishery under the provision that states:
The said Indians hereby cede and relinquish to the
United States all their right, title, interest, claim, and
demand of whatsoever name or nature of in, and to
all their right of fishery, as set forth in article 10 of
said treaty aforesaid, and also all their right, title,
interest, claim or demand of, in, and to said land
UNITED STATES v. CONFEDERATED TRIBES 18997
above described, or any corrected description thereof
and known as the Wenatshapam fishery.
1894 Agreement, art. I, 28 Stat. at 320. If the Yakama Nation
did give up all its fishing rights at the Wenatshapam Fishery,
then it would have no basis for showing the harm necessary
for injunctive relief.
The Yakama Nation contends that the provision that gave
the special rights to the Wenatshapam Indians did not include
fishing rights. The provision states:
After the ratification of this agreement by Congress
and the further consideration that the Indians known
as the Wenatshapam Indians, residing on the Wenat-
chee River, State of Washington, shall have land
allotted to them in severalty in the vicinity of where
they now reside, or elsewhere, as they may select, in
accordance with article 4 of the general allotment
law.
Id., art. II, 28 Stat. at 321.
Both provisions appear to be ambiguous in light of the con-
text in which the agreement took place, the statements of the
parties concerning the meaning of the terms of the agreement,
and the recognition that this was an agreement drafted by the
Government to reflect the understanding of the Indians, who
had a lesser familiarity with the legal technicalities involved.
This, of course, is a matter to be determined on the merits
and is not before us on the res judicata determination.
B. Res Judicata
[6] Res judicata involves both claim preclusion and issue
preclusion. An issue can be precluded in subsequent litigation
only if the same issue was actually litigated. Steen v. John
18998 UNITED STATES v. CONFEDERATED TRIBES
Hancock Mut. Life Ins. Co., 106 F.3d 904, 912 (9th Cir.
1997). Issue preclusion is not appropriate here because rights
established by the 1894 Agreement independent of any treaty
rights were not litigated. In fact, they could not be argued
without first meeting the condition of intervention imposed by
both Judge Marsh and Rule 24. Consequently, Judge Marsh
made no ruling on that subject.
[7] The res judicata ruling by the district court in this action
was not based on issue preclusion; rather, it was based on
claim preclusion. Under claim preclusion, a subsequent action
is precluded if the same claim was previously litigated. Nord-
horn v. Ladish Co., 9 F.3d 1402, 1404 (9th Cir. 1993). As
such, claim preclusion requires an identity of claims. Tahoe-
Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). A claim is also
precluded if that claim could have been asserted in the prior
litigation. Id. at 1078. In this case, the claim litigated in the
intervention proceeding was whether the five tribes had 1855
Treaty rights. The rights of the Wenatchi Tribe under the
1894 Agreement were not litigated, nor could they have been
brought in that proceeding because, as we have discussed, the
condition for intervention was not met.
The Yakama Nation relies on the Tahoe-Sierra case in con-
tending that Colville is precluded by res judicata from assert-
ing the rights of its constituent tribe, the Wenatchi. That case
is easily distinguished. It involved two parties that had been
litigating several lawsuits concerning the requirements of the
1987 plan adopted by the Tahoe Regional Planning Commis-
sion that was designed to preserve the beauty of Lake Tahoe
by limiting development in designated areas. The Tahoe-
Sierra Preservation Council, a property owners’ association,
filed a new action alleging wrongs it had unsuccessfully liti-
gated before. Id. at 1076. We held that the association had a
full opportunity to contest the provision of the 1987 plan in
the prior litigation, and that those claims were, therefore, fore-
closed by res judicata. Id. at 1086. Tahoe-Sierra is very dif-
UNITED STATES v. CONFEDERATED TRIBES 18999
ferent from the case before us, where Colville was precluded
from advancing the claims of the Wenatchi Tribe under the
1894 Agreement by the requirements for intervention
imposed by Rule 24 and the district court’s order.
[8] We conclude that Colville is not precluded by res judi-
cata from asserting the claim of the Wenatchi Tribe to fishing
rights at the Wenatshapam Fishery based on the 1894 Agree-
ment; thus, we reverse the district court and remand the case
for trial on the merits.7
REVERSED AND REMANDED.
7
Judge King mentioned in his district court opinion that, “[a]s I noted
during oral argument, I had hoped that the parties could reach an agree-
ment on this issue. There is a history of broken promises with respect to
many of the tribal entities and I am aware that at least at some level, nei-
ther side wishes to be in the position we are in today.” The resolution of
the res judicata issue by this court presents another opportunity for settle-
ment on the merits of this case.