United States v. 2010-05-13 | 08-35938 | MICHAEL EVANS V. KEN SALAZAR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MICHAEL C. EVANS, in his capacity
as Chairman of the Snohomish
Tribe of Indians; SNOHOMISH TRIBE
OF INDIANS,
Plaintiffs-Appellees,
TULALIP TRIBES OF THE TULALIP No. 08-35938
RESERVATION, D.C. No. Plaintiff-Intervenor-Appellant,  2:08-cv-00372-JCC
v. OPINION
UNITED STATES DEPARTMENT OF
INTERIOR; BUREAU OF INDIAN
AFFAIRS; OFFICE OF FEDERAL
ACKNOWLEDGMENT; UNITED STATES
OF AMERICA; KEN SALAZAR,
Defendants. 
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued June 3, 2009
Submitted March 15, 2010
Seattle, Washington
Filed May 13, 2010
Before: William C. Canby, Jr., David R. Thompson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Canby
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COUNSEL
James H. Jones, Jr., Bell & Ingram, P.S., Everett, Washing-
ton, for plaintiff-intervenor-appellant Tulalip Tribes.
Alexandra K. Smith, John S. Devlin, III, Lane Powell, PC,
Seattle, Washington, for plaintiffs-appellees Evans.
OPINION
CANBY, Circuit Judge:
This is an appeal by the Tulalip Tribes of the Tulalip Reser-
vation (“Tulalip Tribes”) from an order of the district court
denying the Tulalip Tribes the right to intervene in an action
brought by the Snohomish Tribe of Indians and Michael C.
Evans as its Chairman (collectively, “Snohomish Tribe”) to
achieve federal recognition of the Snohomish Tribe. Decision
in this appeal was stayed pending the outcome of our en banc
hearing in United States v. Washington, 593 F.3d 790 (9th
Cir. 2010) (en banc) (“Samish”). Having now reviewed sup-
plemental briefing on the effect of Samish on this appeal, we
affirm the order of the district court denying intervention by
the Tulalip Tribes.
JURISDICTION AND STANDARD OF REVIEW
A district court’s denial of intervention as a matter of right
is appealable as a final order under 28 U.S.C. § 1291. See
United States v. City of Los Angeles, 288 F.3d 391, 397 (9th
Cir. 2002). We review de novo the district court’s denial of
a motion for intervention as of right. See Donnelly v. Glick-
man, 159 F.3d 405, 409 (9th Cir. 1998).
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BACKGROUND
In 2003, the federal government denied recognition (now
known as “acknowledgment”) of the Snohomish Tribe. See
Final Determination Against Federal Acknowledgment of the
Snohomish Tribe of Indians, 68 Fed. Reg. 68,942-01 (Dec.
10, 2003). The Snohomish Tribe then brought an action in the
district court seeking to overturn the adverse administrative
decision and establish the Tribe’s right to recognition. The
Tulalip Tribes filed a motion to intervene in the recognition
lawsuit for the limited purpose of bringing a motion to dis-
miss for lack of an “indispensable” party (the Tulalip Tribes).1
The district court denied the motion to intervene, holding that
the Tulalip Tribes had “failed to identify a protectable interest
sufficient to invoke intervention as of right under Federal
Rule of Civil Procedure 24(a).” The district court relied on
our decisions in Greene v. United States, 996 F.2d 973 (9th
Cir. 1993) (“Greene I”), and Greene v. Babbitt, 64 F.3d 1266
(9th Cir. 1995) (“Greene II”), in which we upheld the denial
of intervention of the Tulalip Tribes in the Samish Tribe’s
recognition proceedings.
DISCUSSION
The grounds urged in the present case by the Tulalip Tribes
in its motion to intervene arose from the history of tribal
treaty fishing rights in the Pacific Northwest.2 Treaty fishing
rights of several tribes (including the Tulalip Tribes)3 were
1Federal Rule of Civil Procedure 19 no longer refers to “indispensable”
parties. The thrust, however, of the Tulalip Tribes’ proposed motion to
dismiss was that they were a “required” party that, because of its sover-
eign immunity, could not be joined against its will, and that “in equity and
good conscience” the proceeding should be dismissed in its absence. Fed.
R. Civ. P. 19(b).
2This history has been recounted many times, most recently in con-
densed form in our en banc decision in Samish, 593 F.3d at 793-97.
3The Tulalip Tribes were included in Washington I by a supplemental
finding of fact entered in that litigation in 1975, finding the Tulalip Tribes
to be successors to the treaty rights of certain treaty signatories. See
United States v. Washington, 459 F. Supp. 1020, 1039 (W.D. Wash. 1978)
(compiling additional orders entered by the district court).
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upheld in the seminal decision of United States v. Washing-
ton, 384 F. Supp. 312 (W.D. Wash. 1974) (“Washington I”),
aff’d, 520 F.2d 676 (9th Cir. 1975). Shortly thereafter, four
tribes, including the unrecognized Snohomish and Samish,
intervened in that litigation to secure their own treaty rights.
All four tribes were denied treaty fishing rights. See United
States v. Washington, 476 F. Supp. 1101 (W.D. Wash. 1979)
(“Washington II”), aff’d, 641 F.2d 1368 (9th Cir. 1981). Like
the other three tribes, the Snohomish Tribe was held not to be
“an entity that is descended from any of the tribal entities that
were signatory to the Treaty of Point Elliott” and was found
not to have lived “as a continuous separate, distinct and cohe-
sive Indian cultural or political community.” Id. at 1107.
In seeking to intervene in the present Snohomish recogni-
tion proceeding, the Tulalip Tribes argued that recognition of
the Snohomish Tribe would threaten the existing treaty rights
of the Tulalip Tribes. Its fears had some substance at the time
they were asserted because the Samish Tribe, after it belatedly
achieved federal recognition, appeared to succeed in using the
fact of recognition to reopen the denial of its treaty rights in
Washington II. See United States v. Washington, 394 F.3d
1152 (9th Cir. 2005) (“Washington III”), overruled by
Samish, 593 F.3d at 799.
[1] The problem presented by the Tulalip Tribes in seeking
to intervene is precisely the problem we addressed in our en
banc decision in Samish, and the position of the Tulalip
Tribes in this litigation is not materially different from their
position in the Samish litigation. At this point in the present
litigation we are simply part way through a re-play of the
Samish scenario.
As here, the Tulalip Tribes were denied intervention in the
Samish recognition proceedings on the ground that recogni-
tion could have no effect on treaty rights. Greene II, 64 F.3d
at 1270-71; Greene I, 996 F.2d at 976-77. The Samish then
obtained a favorable decision in our court permitting reopen-
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ing of the denial of their treaty rights on the strength of their
new recognition. Washington III, 394 F.3d at 1161. That deci-
sion conflicted with the earlier denial of Tulalip intervention,
and precipitated our en banc decision in Samish.
[2] In Samish, we overruled Washington III, making it
clear that the Tulalip Tribes were correctly denied interven-
tion in the Samish recognition litigation and must be denied
intervention here. In interring Washington III, we made it per-
fectly clear that thereafter recognition can have no effect on
treaty rights. We held that a tribe seeking to establish treaty
rights not previously adjudicated was free to attempt to inter-
vene in the Washington treaty litigation, but “it cannot rely on
a preclusive effect arising from the mere fact of recognition
. . . . Indeed . . . the fact of recognition cannot be given even
presumptive weight in subsequent treaty litigation.” 593 F.3d
at 800. Recognition of the Snohomish Tribe, if it occurs,
therefore can have no effect on its own treaty rights or the
treaty rights of the Tulalip Tribes.
The Tulalip Tribes in their supplemental brief attempt to
distinguish Samish because there the district court, in denying
intervention, had stricken all reference to treaty rights from
the recognition complaint and directed that any administrative
proceedings that it ordered would not deal with treaty rights.
Here, in contrast, the recognition complaint of the Snohomish
recites that the Snohomish Tribe is descended from a treaty
party. The district court properly observed, however, that
treaty rights are no part of the relief sought by the Snohomish
Tribe in its recognition proceedings; the Tribe seeks only an
adjudication that the denial of recognition violated the
Administrative Procedure Act, due process, and equal protec-
tion. Moreover, Samish itself establishes that recognition rul-
ings or adjudication can have no effect in the establishment of
treaty rights of the recognized tribe. Whether or not the Sno-
homish complaint recites the Tribe’s alleged descent from a
treaty signatory, the Tribe’s recognition can be given no effect
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in subsequent attempts to establish treaty rights. See id. at
800-01.
In its supplemental briefing, the Tulalip Tribes also argue
that, even if recognition of the Snohomish can have no effect
in establishing Snohomish treaty fishing rights, recognition
will threaten the “political successorship[,] sovereignty . . .
and cultural identity of the Tulalip Tribes.” The asserted rea-
son is that the Tulalip Tribes were found in Washington I to
be the successors of Snohomish Indians who were parties to
the treaty.
We fail to see how recognition of the Snohomish Tribe as
a distinct historical entity can intrude upon the established
recognition of the Tulalip Tribes as successors to treaty signa-
tories. Any effective intrusion would constitute an interfer-
ence, by reason of recognition, in the Tulalip Tribes’
adjudicated treaty rights, an outcome forbidden by Samish. As
for the sovereignty and cultural identity of the Tulalip Tribes,
those valuable attributes remain in the Tulalip Tribes wholly
independent of any recognition or non-recognition of the Sno-
homish Tribe. Mere distaste for Snohomish recognition does
not qualify for intervention as “an interest relating to the prop-
erty or transaction that is the subject of the action, . . . so situ-
ated that disposing of the action may as a practical matter
impair or impede the movant’s ability to protect its interest
. . . . “ Fed. R. Civ. P. 24(a)(2).
[3] In Samish we said that “[t]here are good reasons for
adhering to the rule that treaty tribes are not entitled to inter-
vene in recognition decisions to protect against possible future
assertions of treaty rights by the newly recognized tribe . . . .”
Samish, 593 F.3d at 801. One reason was that recognition
served many valuable purposes other than treaty rights, and
intervention “has the potential to interfere unnecessarily with
a tribe’s establishing its entitlement to recognition because of
the speculative possibility that some administrative finding
might have an impact on future treaty litigation.” Id. This case
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furnishes a prime example: the Tulalip Tribes seek to inter-
vene in the Snohomish recognition proceeding only to stop it
in its tracks for lack of a required party. The purpose of our
Samish decision was to avoid such unnecessary disruption of
recognition proceedings.4
CONCLUSION
The order of the district court denying intervention is
AFFIRMED.
4We express no opinion, of course, on the ultimate merits of the Snoho-
mish Tribe’s claim for recognition.
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