SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

San Francisco, California - Indian Treaty Rights lawyer represented Plaintiff with a seeking a declaration that it is a signatory to the Treaty of Point Elliott and that its reserved off-reservation hunting and gathering rights under the Treaty continue.

The Treaty has been the subject of extensive litigation.

Because the Treaty lies at the heart of the parties' dispute

and because the parties' prior litigation foretells the result

here, we recount the history of this litigation at some length.

The Treaty and Reserved Rights

In the Treaty, which was negotiated between several

Indian tribes and federal representatives in the Washington

territory, signatory tribes agreed to relinquish much of their

land but reserved for themselves fishing, hunting, and

gathering rights. Article V of the Treaty provides:

The right of taking fish at usual and

accustomed grounds and stations is further

secured to said Indians in common with all

citizens of the Territory, and of erecting

temporary houses for the purpose of curing,

together with the privilege of hunting and

gathering roots and berries on open and

unclaimed lands. Provided, however, that

they shall not take shell-fish from any beds

staked or cultivated by citizens.

Treaty Between the United States & the Dwamish,

Suquamish, & Other Allied & Subordinate Tribes of Indians

in Washington Territory, 12 Stat. 927, Article V (U.S. Treaty

Apr. 11, 1859).

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 7

Washington I: Litigating Treaty Fishing Rights

In 1970, the United States filed suit against the State of

Washington on behalf of several tribes seeking the

declaration and enforcement of off-reservation fishing rights

under the Treaty. See United States v. Washington

("Washington I”), 384 F. Supp. 312, 327 (W.D. Wash.

1974), aff'd, 520 F.2d 676 (9th Cir. 1975).1

Washington I

"establish[ed] the treaty status” of plaintiff tribes—including

seven tribes that the United States initially represented and

seven additional tribes that intervened in the litigation—and

therefore also established "the right of their members to fish

off reservation in common with the citizens of the state.” Id.

at 333.

Washington II: The Snoqualmie and Samish Intervene to

Assert Treaty Fishing Rights

In 1979, the Snoqualmie and the Samish—which were

not parties to Washington I—sought to intervene in the

litigation to assert their own treaty fishing rights. See United

States v. Washington ("Washington II”), 476 F. Supp. 1101,

1104 (W.D. Wash. 1979), aff'd, 641 F.2d 1368 (9th Cir.

1981).2 In Washington II, the district court concluded that

the Snoqualmie and the Samish "do not have and may not

confer upon their members fishing rights under the Treat[y]

of Point Elliott.” Id. at 1111. The court's conclusion

followed from its findings that neither tribe was "at th[at]

1 We refer to both the district court opinion and its accompanying

appeal as Washington I and differentiate between the two by the Federal

Reporter volumes in which they appear.

2 As with Washington I, we refer to both the district court opinion

and its accompanying appeal as Washington II and differentiate between

the two by the Federal Reporter volumes in which they appear.

8 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

time a treaty tribe in the political sense” because neither was

"at th[at] time a political continuation of or political

successor in interest to any of the tribes or bands of Indians

with whom the United States treated in the [T]reat[y] of . . .

Point Elliott.” Id. at 1104, 1111.

With respect to the Snoqualmie, the district court found

that the Tribe "is composed primarily of persons who are

descendants in some degree of Indians who in 1855 were

known as Snoqualmoo Indians[, and who] . . . were named

in and a party to the Treaty of Point Elliott.” Id. at 1108.

However, it went on to find that the Tribe "exercises no

attributes of sovereignty over its members or any territory”

and "is not recognized by the United States as an Indian

governmental or political entity possessing any political

powers of government over any individuals or territory.” Id.

Critically, the district court found that "members of the . . .

Snoqualmie Tribe and their ancestors do not and have not

lived as a continuous separate, distinct and cohesive Indian

cultural or political community” and that "members have no

common bond of residence or association other than such

association as is attributable to the fact of their voluntary

affiliation with the [Snoqualmie].” Id. at 1109.

The district court's findings with respect to the Samish

were similar. It found that the Nation "is composed

primarily of persons who are descendants in some degree of

Indians who in 1855 were known as Samish Indians and who

were party to the Treaty of Point Elliott.” Id. at 1106.

However, the court went on to find that the Nation "exercises

no attributes of sovereignty over its members or any

territory” and "is not recognized by the United States as an

Indian governmental or political entity possessing any

political powers of government over any individuals or

territory.” Id. Critically, as with the Snoqualmie, the district

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 9

court again found that "members of the . . . Samish Tribe and

their ancestors do not and have not lived as a continuous

separate, distinct and cohesive Indian cultural or political

community” and that "members have no common bond of

residence or association other than such association as is

attributable to the fact of their voluntary affiliation with the

[Samish].” Id.

We affirmed the district court's decision in Washington

II. As an initial matter, we noted that the district court had

incorrectly concluded that "[o]nly tribes recognized as

Indian political bodies by the United States may possess and

exercise the tribal fishing rights secured and protected by the

treaties of the United States.” Washington II, 641 F.2d

at 1371 (quoting Washington II, 476 F. Supp. at 1111). We

clarified that federal recognition is not a prerequisite for the

exercise of treaty rights. Id. at 1372. We then identified the

"proper inquiry” for determining treaty-tribe status: the

"single necessary and sufficient condition for the exercise of

treaty rights by a group of Indians descended from a treaty

signatory” is that "the group must have maintained an

organized tribal structure.” Id. After examining the record

in light of this controlling principle, we concluded that the

district court's factual "finding of insufficient political and

cultural cohesion” with respect to the intervening tribes was

not "clearly erroneous.” Id. at 1374; see also id.

("[M]aintenance of tribal structure is a factual question, and

we have concluded that the district court correctly resolved

this question despite its failure to apply the proper

standard.”).

Greene I and II: Litigating Federal Recognition

Following our affirmance in Washington II, both the

Snoqualmie and the Samish sought federal recognition.

10 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

The Samish's petition for recognition was the subject of

litigation in which the Tulalip Tribes—amicus curiae in this

appeal—sought to intervene, arguing that their fishing rights

under the Treaty would be diluted by the later recognition of

the Samish. See Greene v. United States ("Greene I”),

996 F.2d 973, 976–78 (9th Cir. 1993). We affirmed the

district court's denial of the Tulalip Tribes' motion, noting

that while the treaty rights and federal recognition inquiries

are "similar,” "each determination serves a different legal

purpose and has an independent legal effect.” Id. at 976. In

other words, "[f]ederal recognition does not self-execute

treaty rights claims,” and thus, we explained, even if the

Samish were to obtain federal recognition, it would still

separately have to confront the decisions in Washington I

and II before it could claim fishing rights under the Treaty.

Id. at 977. For this reason, dilution of the Tulalip Tribes'

treaty fishing rights was not a protectable interest that

justified intervention in the Samish's separate recognition

proceedings.

In a follow-on appeal, again regarding the Samish's

petition for recognition, the Tulalip Tribes appeared as

amicus curiae to argue that the Samish was precluded by

Washington II from litigating any issue of tribal recognition.

Greene v. Babbitt ("Greene II”), 64 F.3d 1266, 1269 (9th

Cir. 1995). In Greene II, we reiterated that "the recognition

of the tribe for purposes of statutory benefits is a question

wholly independent of treaty fishing rights.” Id. at 1270.

Because "our court regards the issues of tribal treaty status

and federal [recognition] as fundamentally different,” we

denied Washington II any preclusive effect in the

consideration of the Samish's petition for recognition. Id. at

1270–71.

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 11

The Samish ultimately succeeded in regaining federal

recognition in 1996, and the Snoqualmie succeeded one year

later.

Washington III: The Samish Seeks Reopening of

Washington II and Reexamination of its Treaty Fishing

Rights in Light of Recognition

In 2001, the Samish filed a motion in the district court to

reopen the judgment in Washington II on the basis of its

recognition. The district court denied this motion, but we

reversed on appeal. Despite our prior articulation in Greene

I and II of the clear distinction between the treaty rights and

federal recognition inquiries—and their independence from

one another—we held that "federal recognition is a sufficient

condition for the exercise of treaty rights.” United States v.

Washington ("Washington III”), 394 F.3d 1152, 1158 (9th

Cir. 2005), overruled in later appeal, 593 F.3d 790 (9th Cir.

2010) (en banc). In light of this change of position, we

concluded that the Nation's subsequent federal recognition

was an extraordinary circumstance that justified

reexamining its treaty fishing rights. Id. at 1161.

Washington IV: Overruling Washington III

On remand, the district court again denied the Samish's

motion to reopen the judgment in Washington II, thus

"clearly violat[ing] the mandate of Washington III.” United

States v. Washington ("Washington IV”), 593 F.3d 790, 798

(9th Cir. 2010) (en banc). The Samish again appealed this

second denial.

In Washington IV, we convened en banc to address the

fundamental inconsistency that had arisen between

Washington III and the Greene cases:

12 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

On the one hand, we have Greene I and II,

which denied treaty tribes the right to

intervene in the Samish Tribe's recognition

proceedings because recognition could have

no effect on treaty rights. On the other hand,

we have Washington III, which ruled that the

fact of recognition of the Samish Tribe was

an extraordinary circumstance that justified

reopening Washington II. Washington III

further opined that recognition of the Samish

Tribe was a sufficient condition for the

establishment of treaty fishing rights.

Id.

After acknowledging that these "conflicting lines of

authority” could not "coexist,” we concluded in Washington

IV "that Washington III must yield” and resolved this

conflict "in favor of the Greene proposition: recognition

proceedings and the fact of recognition have no effect on the

establishment of treaty rights.” Id. at 793, 798–99. We

elaborated upon this principle, explaining that "treaty

adjudications have no estoppel effect on recognition

proceedings, and recognition has no preclusive effect on

treaty rights litigation.” Id. at 800. Consistency with Greene

II, we resolved, requires that the "fact of recognition []not be

given even presumptive weight in subsequent treaty

litigation.” Id. at 801 (emphasis added). With the

significance of the Samish's subsequent recognition finally

resolved, we overruled Washington III and affirmed the

district court's denial of the Nation's motion to reopen the

judgment in Washington II.

The Samish recognizes that, given our holding in

Washington IV, it may not revisit Washington II's ruling on

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 13

treaty fishing rights. And though the Snoqualmie was not a

party to Washington IV, the Tribe agrees that it, too, is barred

by our decision in that case from relitigating its entitlement

to exercise fishing rights under the Treaty.

The Present Appeal: Litigating Treaty Hunting and

Gathering Rights

The Snoqualmie maintains, however, that nothing

prevents it from litigating its entitlement to exercise hunting

and gathering rights under the Treaty. Thus, on December

20, 2019, the Snoqualmie filed the complaint at issue here

against the State of Washington, the Governor of

Washington, and the Washington Department of Fish and

Wildlife Director (together, the "State”). The complaint,

which purports to focus "solely” on the Snoqualmie's

"[t]reaty status in the context of hunting and gathering,”

seeks a declaration that the Snoqualmie is a signatory to the

Treaty and that its reserved off-reservation hunting and

gathering rights under the Treaty continue against the United

States, Washington State, and its counties, as well as their

grantees.

In dismissing the complaint, the district court concluded

that Washington II's determination that the Snoqualmie has

no fishing rights under the Treaty precluded a finding that

the Tribe has any hunting and gathering rights under the

same Treaty. The district court reasoned that the factual

issue that determined whether the Snoqualmie was entitled

to exercise fishing rights under the Treaty in Washington

II—its maintenance of an organized tribal structure from the

time of treaty execution—"is the same gateway question that

the [district court] would face . . . when determining hunting

and gathering rights.” Finding that we had "unequivocally

addressed” and resolved that issue against the Snoqualmie in

Washington II, the district court held that issue preclusion

14 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

applied to the Snoqualmie's treaty hunting and gathering

rights claims. After assuring itself that no exception applied,

the district court dismissed the Snoqualmie's complaint on

the ground of issue preclusion and declined to reach the

State's other asserted grounds for dismissal. The

Snoqualmie timely appealed this dismissal.

Though the Samish was not a party in the district court,

it sought leave to intervene for the limited purpose of appeal.

Leave was granted, and the Samish also timely appealed the

district court's dismissal of the Snoqualmie's complaint.

Though the Samish's treaty rights are not directly at issue in

this appeal, it argues that the district court's decision, if

affirmed, would adversely affect its rights to raise

unadjudicated treaty rights under the Treaty in the future.

We granted the parties' joint motion to consolidate their

appeals and treat them together here.3

ANALYSIS

I. The District Court Did Not Err in Dismissing this

Case on the Ground of Issue Preclusion Without First

Establishing Subject Matter Jurisdiction

As an initial matter, we consider whether the district

court erred in dismissing this case on the ground of issue

preclusion without first addressing the threshold issue of

subject matter jurisdiction.4

Whether it was within the

3 The Samish joins only the argument addressed in Section II.B

below because it already litigated the other issues the Snoqualmie raises

in this appeal in Washington III and IV.

4 The Snoqualmie's characterization of both the State's Eleventh

Amendment sovereign immunity and Article III standing arguments as

jurisdictional is only partly correct. Article III standing is, of course,

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 15

district court's discretion to dismiss the Snoqualmie's

complaint on the ground of issue preclusion depends on the

answers to two questions: first, whether such a dismissal is a

non-merits dismissal, and second, whether jurisdictional

issues would have been "difficult to determine” such that the

district court reasonably invoked issue preclusion as "the

less burdensome course.” Sinochem Int'l Co. v. Malaysia

Int'l Shipping Corp., 549 U.S. 422, 436 (2007); see Yokeno

v. Sekiguchi, 754 F.3d 649, 651 n.2 (9th Cir. 2014)

(explaining that the Supreme Court has supplied courts with

"discretionary leeway” to address other threshold issues

before subject matter jurisdiction (internal quotation marks

and citation omitted)). We answer both questions in the

affirmative.

A. Dismissal on the Ground of Issue Preclusion is a

Non-Merits Dismissal

Whether dismissal on the ground of issue preclusion is a

merits or non-merits dismissal is significant. Although "a

federal court generally may not rule on the merits of a case

without first determining that it has jurisdiction over the

category of claim in suit (subject-matter jurisdiction),” such

a court does have "leeway 'to choose among threshold

grounds for denying audience to a case on the merits.'”

Sinochem, 549 U.S. at 430–31 (emphases added) (quoting

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585

jurisdictional in nature. See, e.g., Maya v. Centex Corp., 658 F.3d 1060,

1067 (9th Cir. 2011) (noting that the "lack of Article III standing requires

dismissal for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1)”). However, with respect to state sovereign

immunity, "the Eleventh Amendment is not a true limitation upon the

court's subject matter jurisdiction.” Hill v. Blind Indus. & Servs. of Md.,

179 F.3d 754, 760 (9th Cir.), amended on denial of reh'g, 201 F.3d 1186

(9th Cir. 1999).

16 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

(1999)). The reason courts are permitted such leeway in the

case of non-merits dismissals is because "[j]urisdiction is

vital only if the court proposes to issue a judgment on the

merits.” Id. at 431 (quoting Intec USA, LLC v. Engle,

467 F.3d 1038, 1041 (7th Cir. 2006)).

We acknowledge that the Supreme Court has not

expressly identified issue preclusion as a threshold ground

for denying audience to a case on the merits, nor have we

previously identified it as such. Cf. Yokeno, 754 F.3d at 651

n.2 (noting that we have not previously identified claim

preclusion—a doctrinal cousin of issue preclusion—as a

threshold ground for denying audience to a case on the

merits and declining to do so). However, the Court's

guidance with respect to related doctrines provides us with

sufficient indication that issue preclusion "represents the sort

of 'threshold question' [that] . . . may be resolved before

addressing jurisdiction.” Sinochem, 549 U.S. at 431

(alteration in original) (quoting Tenet v. Doe, 544 U.S. 1, 7,

n.4 (2005)).

The first indication comes from the Court's previous

characterization of the doctrine of res judicata—a doctrine

that comprises both claim and issue preclusion. As the Court

has explained, this doctrine allows courts to dispose of cases

"without reaching the merits of the controversy.” See C.I.R.

v. Sunnen, 333 U.S. 591, 597 (1948) (emphasis added). This

language provides a strong indication that issue (and claim)

preclusion dismissals are non-merits dismissals.

Additional support comes from the Court's opinion in

Sinochem, which was decided in the context of a forum non

conveniens dismissal but announced principles of broader

applicability. In Sinochem, the Court counseled that whether

a dismissal is on the merits depends on whether resolution of

the dismissal motion "entail[s] any assumption by the court

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 17

of substantive 'law-declaring power.'” 549 U.S. at 433

(quoting Ruhrgas, 526 U.S. at 584–85). Because resolving

a forum non conveniens motion does not entail such

assumption, the Court concluded that a forum non

conveniens dismissal is not on the merits. Id.

Resolution of an issue preclusion motion likewise does

not require the court to assume substantive law-declaring

power. Just as a forum non conveniens dismissal is a

determination that the merits should be adjudicated by a

different court, an issue preclusion dismissal is a

determination that the merits (of at least one issue) have

already been adjudicated by a different court. Id. at 432 ("A

forum non conveniens dismissal 'den[ies] audience to a case

on the merits'; it is a determination that the merits should be

adjudicated elsewhere.” (alteration in original) (citation

omitted)); cf. Hoffman v. Nordic Nats., Inc., 837 F.3d 272,

277 (3d Cir. 2016) (describing claim preclusion as "a

determination that the merits have already been adjudicated

elsewhere” and concluding that the district court was

permitted to "'bypass' the jurisdictional inquiry in favor of a

non-merits dismissal on claim preclusion grounds” (citations

and alteration omitted)). In each case, the power to declare

the substantive law lies—or lay, as the case may be—

elsewhere.

In Sinochem, the Court also made clear that whether a

dismissal is on the merits does not necessarily depend on

whether the district court considered the merits of the

underlying dispute in ruling on the dismissal motion.

Indeed, resolution of several threshold issues—including

personal jurisdiction and forum non conveniens—may

"involve a brush with 'factual and legal issues of the

underlying dispute.'” Sinochem, 549 U.S. at 433 (citation

omitted). The "critical point” remains whether the district

18 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

court was required to assume substantive law-declaring

power to resolve the dismissal motion. Id. Here, as in

Sinochem, it was not. Accordingly, we now conclude, as a

matter of first impression, that an issue preclusion dismissal

is a non-merits dismissal, and thus issue preclusion may be

resolved by a federal court before it addresses its

jurisdiction.

B. Jurisdictional Issues Would Have Been "Difficult

to Determine,” and Dismissing on the Ground of

Issue Preclusion was "the Less Burdensome

Course”

Our conclusion that issue preclusion dismissals are nonmerits dismissals does not end our inquiry. Rather, we must

also consider whether jurisdictional issues would have been

"difficult to determine” such that dismissing on the ground

of issue preclusion was "the less burdensome course.” Id.

at 436.

The leeway courts are afforded in choosing among

threshold non-merits grounds for dismissal amounts to an

"exception to the general rule that federal courts normally

must resolve questions of subject matter jurisdiction before

reaching other threshold issues.” Potter v. Hughes, 546 F.3d

1051, 1056 n.2 (9th Cir. 2008) (emphasis added) (internal

quotation marks omitted). The contours of this exception are

carefully circumscribed. The Court in Sinochem

admonished district courts that they should avail themselves

of this exception only "where subject-matter or personal

jurisdiction is difficult to determine,” and dismissal on

another threshold ground is clear. 549 U.S. at 436. Under

such circumstances, judicial economy is served by the court

"tak[ing] the less burdensome course” of dismissing on a

clear, non-jurisdictional, non-merits ground rather than

wading into murkier jurisdictional issues. Id. at 435–36.

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 19

Conversely, a court ought not apply this exception where it

"can readily determine that it lacks jurisdiction over the

cause or the defendant.” Id. at 436.

Here, resolving the threshold jurisdictional issues before

the district court would have "involve[d an] arduous

inquiry.” Id. (quoting Ruhrgas, 526 U.S. at 587–88). The

Snoqualmie's response to the State's facial motion to

dismiss included a request to amend its complaint, which

would have ultimately triggered a flurry of motions

burdening the parties "with expense and delay,” and "all to

scant purpose: The [d]istrict [c]ourt inevitably would

dismiss the case without reaching the merits, given its wellconsidered [issue preclusion] appraisal.” Id. at 435. The

district court thus acted within its discretion when it took the

"less burdensome course” of dismissing on the ground of

issue preclusion. Id. at 436; cf. Env't Conservation Org. v.

City of Dallas, 529 F.3d 519, 525 (5th Cir. 2008)

(recognizing that a federal court may have leeway to dismiss

on the ground of res judicata prior to determining standing,

but concluding that the court did not have such leeway

because "the res judicata analysis [was] no less burdensome

than the standing inquiry”). Indeed, the district court's

dismissal was consonant with the considerations of judicial

economy that motivated the Court's decision in Sinochem.

See 549 U.S. at 435 ("Judicial economy is disserved by

continuing litigation in the [district court] given the

proceedings long launched in China.”); see also Provincial

Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083,

1088 (9th Cir. 2009) ("In Sinochem, the Supreme Court

offered the lower courts a practical mechanism for resolving

a case that would ultimately be dismissed.”).

Because issue preclusion dismissals are non-merits

dismissals, and it was reasonable for the district court to

20 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

conclude that dismissing on the ground of issue preclusion

was "the less burdensome course,” the district court did not

abuse its discretion in dismissing the Snoqualmie's

complaint before first establishing its subject matter

jurisdiction over the Snoqualmie's claims.

II. The Snoqualmie and the Samish are Precluded by

this Court's Decision in Washington II from

Litigating their Treaty Hunting and Gathering

Rights Under the Treaty of Point Elliott

We now turn to de novo review of the district court's

dismissal based on issue preclusion. See Garity v. APWU

Nat'l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) ("We . . .

review the district court's ruling on issue preclusion de

novo.”).

Issue preclusion, which "bars the relitigation of issues

actually adjudicated in previous litigation,” applies where

four conditions are met:

(1) the issue at stake was identical in both

proceedings; (2) the issue was actually

litigated and decided in the prior

proceedings; (3) there was a full and fair

opportunity to litigate the issue; and (4) the

issue was necessary to decide the merits.

Janjua v. Neufeld, 933 F.3d 1061, 1065 (9th Cir. 2019)

(citations omitted).

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 21

The parties dispute only the first and second conditions.5



The Snoqualmie argues that issue preclusion does not apply

because its treaty hunting and gathering rights were not

"actually litigated” in Washington II, and, even if issue

preclusion were otherwise to apply, exceptions to that

doctrine nonetheless permit its claims to proceed. We

disagree on both counts and accordingly affirm the district

court's issue preclusion dismissal.6

A. In Washington II, the Snoqualmie Actually

Litigated the Identical Issue It Now Seeks to

Litigate: Treaty-Tribe Status

The issue the Snoqualmie now seeks to litigate is

identical to that actually litigated and decided in Washington

II. In its complaint, the Snoqualmie seeks a declaration that

it "is a signatory to the Treaty of Point Elliott,” "has

maintained a continuous organized structure since,” and is

thus "entitled to exercise rights”—including the hunting and

5 While the State cites Garity and identifies a slightly different issue

preclusion standard, both parties agree that the only conditions

challenged on appeal address whether the Snoqualmie seeks to litigate

an issue identical to that actually litigated and decided in Washington II.

See Garity, 828 F.3d at 858 n.8 (noting that issue preclusion applies if

"(1) the issue necessarily decided at the previous proceeding is identical

to the one which is sought to be relitigated; (2) the first proceeding ended

with a final judgment on the merits; and (3) the party against whom

[issue preclusion] is asserted was a party or in privity with a party at the

first proceeding” (alteration in original) (citation omitted)).

6 Our conclusion that the district court's factual finding made in

Washington II has preclusive effect forecloses the Snoqualmie's

argument that the district court exceeded its constitutional authority by

abrogating the Tribe's treaty rights. This argument puts the cart before

the horse, assuming the very issue on appeal—namely, whether the

Snoqualmie has treaty-tribe status under the Treaty.

22 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

gathering rights at issue here—under the Treaty. In other

words, the Snoqualmie seeks to litigate its treaty-tribe status

under the Treaty, a point it makes explicit in its description

of its first cause of action: "Declaration of Treaty Status.”

Absent treaty-tribe status, the Snoqualmie has no claim to

any rights under the Treaty.

In Washington II, the district court—and this court on

appeal—considered and decided this exact issue. In

Washington II, the Snoqualmie sought to exercise treaty

fishing rights under the Treaty, and we made explicit that

they could do so only if they had treaty-tribe status. 641 F.2d

at 1372–73. We reiterated that treaty-tribe status is

established when a group of Indians is "descended from a

treaty signatory” and has "maintained an organized tribal

structure,” and we noted that whether these conditions are

met "is a factual question which a district court is competent

to determine.” Id. at 1371 (quoting Washington I, 520 F.2d

at 693). We then affirmed the district court's factual finding

that the Snoqualmie, though descended from a treatysignatory tribe, see id. at 1370, had not maintained an

organized tribal structure and thus was not entitled to

exercise rights under the Treaty because it lacked treaty-tribe

status, id. at 1374.

Given our holding in Washington II, it was no leap for

the district court to conclude that the factual issue actually

litigated and decided in that case—the Snoqualmie's treatytribe status—is identical to the issue the Snoqualmie now

seeks to litigate. The difference in treaty rights at issue—

fishing rights in Washington II, hunting and gathering rights

here—is immaterial to this conclusion. Though only treaty

fishing rights claims were asserted in Washington II, the

treaty-tribe status of the Snoqualmie, among others, was the

predicate issue actually litigated and decided in order to

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 23

resolve those claims. And though only treaty hunting and

gathering rights claims have been asserted in this litigation,

the Snoqualmie's treaty-tribe status "is the same gateway

question” any court would face when determining its

entitlement to exercise those rights under the Treaty.

B. Washington IV did not Create an Exception to

Issue Preclusion

The Snoqualmie and the Samish (together, the "Tribes”)

also argue that even if issue preclusion were ordinarily to

apply, it does not apply here because our en banc decision in

Washington IV announced an exception to issue preclusion

for newly recognized tribes. This argument fails for the

simple reason that Washington IV announced no such

exception.

The Tribes locate their purported exception in two

sentences in Washington IV:

Nothing we have said precludes a newly

recognized tribe from attempting to intervene

in United States v. Washington or other treaty

rights litigation to present a claim of treaty

rights not yet adjudicated. Such a tribe will

have to proceed, however, by introducing its

factual evidence anew; it cannot rely on a

preclusive effect arising from the mere fact of

recognition.

593 F.3d at 800. They parse these sentences and endeavor

to derive a rule: (1) a "newly recognized tribe” (2) may

present a claim of "treaty rights not yet adjudicated,” (3) and,

in proving its claim, it will be required to introduce factual

evidence "anew.” The Tribes claim that they come within

this exception because they are newly recognized tribes and

24 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

their treaty hunting and gathering rights have not yet been

adjudicated. Thus, they argue, they are permitted in this

litigation to establish their entitlement to exercise these

unadjudicated treaty rights by introducing factual evidence

anew.

The Tribes' argument finds no support in Washington IV.

First, our opinion in Washington IV is devoted to reaffirming

our prior holdings in Greene I and II that the treaty rights

and federal recognition inquiries are distinct and

independent. See Washington IV, 593 F.3d at 793

(overruling Washington III and holding that "recognition

proceedings and the fact of recognition have no effect on the

establishment of treaty rights”). Indeed, we convened the

court en banc in Washington IV for the express purpose of

addressing the fundamental inconsistency between

Washington III and the Greene cases—an inconsistency we

ultimately resolved "in favor of the Greene proposition.” Id.

The remainder of the paragraph in which the Tribes'

purported exception is situated confirms the scope of our

holding:

In Greene II, we denied any estoppel effect

of Washington II on the Samish Tribe's

recognition proceeding, because treaty

litigation and recognition proceedings were

"fundamentally different” and had no effect

on one another. Our ruling was part of a twoway street: treaty adjudications have no

estoppel effect on recognition proceedings,

and recognition has no preclusive effect on

treaty rights litigation. Indeed, to enforce the

assurance in Greene II that treaty rights were

"not affected” by recognition proceedings,

the fact of recognition cannot be given even

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 25

presumptive weight in subsequent treaty

litigation. To rule otherwise would not allow

an orderly means of protecting the rights of

existing treaty tribes on the one hand, and

groups seeking recognition on the other.

Id. at 800–01 (citations omitted).

Reading the entire paragraph in context, it is clear that

the focus of the sentences the Tribes rely on is not the

preclusive effect—or lack thereof, as they argue—of their

prior treaty rights litigation in subsequent treaty rights

litigation, but rather the preclusive effect—or lack thereof,

as we concluded—of federal recognition in subsequent

treaty rights litigation. This context serves only to

underscore the fact that the exception the Tribes seek here—

which would grant them an issue preclusion exception in

future treaty rights litigation on the basis of their newly

recognized statuses—turns on its head the Washington IV

holding that treaty rights litigation and federal recognition

proceedings "[have] no effect on one another.” Id. at 800.

We decline—indeed, we are unable—to countenance an

exception that adopts a principle Washington IV repudiated.

Second, and more specifically, Washington IV explicitly

reaffirms that the "the Samish tribe”—and the Snoqualmie

by extension—"had a factual determination finally

adjudicated against [them] in Washington II.” Id. As we

explained, this "crucial finding of fact”—"that the [Tribes]

had not functioned since treaty times as 'continuous

separate, distinct and cohesive cultural or political

communities,'” id. at 799 (alteration omitted) (quoting

Washington II, 641 F.2d at 1373)—"justif[ied] the denial of

treaty rights” under the Treaty, id. We thus recognized that

the factual findings affirmed in Washington II had the effect

26 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

of denying the Tribes treaty-tribe status under the Treaty.

Given Washington IV's explicit reaffirmation of the finality

of these factual findings, there is no basis to undo that

finality by adopting the Tribes' purported exception.

Finally, we consider the practical consequences of the

Tribes' purported exception. Embracing this exception

would allow for the incongruous result that a tribe could

have treaty-tribe status with respect to some treaty rights but

not with respect to others—even where, as here, those rights

appear in the very same article of the treaty. See Treaty

Between the United States & the Dwamish, Suquamish, &

Other Allied & Subordinate Tribes of Indians in Washington

Territory, 12 Stat. 927, Article V (U.S. Treaty Apr. 11, 1859)

(reserving, for the signatory tribes, both fishing and hunting

and gathering rights). While our opinion in Washington IV

was intended to ensure an "orderly means of protecting”

treaty rights, recognizing the Tribes' purported exception

would have the opposite effect. See 593 F.3d at 801.

Accordingly, we decline to derive from Washington IV an

exception that would inject incongruity into the treaty rights

regime in Washington.

C. No Other Exception to Issue Preclusion Applies

The Snoqualmie finally argues that even if Washington

IV does not create an exception, two exceptions identified in

the Restatement (Second) of Judgments apply. We disagree.

The Restatement (Second) of Judgments identifies

several exceptions to the general rule of issue preclusion.

The two exceptions offered by the Snoqualmie provide that

"relitigation of [an] issue in a subsequent action between the

parties is not precluded” where:

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 27

[1] The issue is one of law and . . . a new

determination is warranted in order to take

account of an intervening change in the

applicable legal context or otherwise to avoid

inequitable administration of the laws; or

[2] A new determination of the issue is

warranted by differences in the quality or

extensiveness of the procedures followed in

the two courts or by factors relating to the

allocation of jurisdiction between them[.]

Restatement (Second) of Judgments § 28 (1982).

The Snoqualmie's claim to the first of these exceptions

fails for the simple reason that the issue the Snoqualmie

seeks to relitigate is a factual issue, and this exception

applies only to issues of law. See id. The Snoqualmie's

claim to this exception further fails because it is tethered to

Washington IV, which the Tribe argues "constitutes a change

in the applicable legal context” such that issue preclusion

does not apply. But, for reasons we have already articulated,

Washington IV did not announce an exception to issue

preclusion for newly recognized tribes, and thus the

applicable legal context remains unchanged.

The Snoqualmie also unsuccessfully stakes its claim to

this exception in the decision of the Assistant Secretary of

Indian Affairs to take land into trust on its behalf. See U.S.

Dep't of Interior, Fee-to-Trust Decision (Mar. 18, 2020),

https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ots/pdf/

Snoqualmie_Indian_Tribe.pdf (last visited June 24, 2021).

This decision recognizes that the Snoqualmie was a

signatory to the Treaty and that the Treaty "remains in effect

today.” See id. at 36, 39. It further recognizes that "the

28 SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON

Snoqualmie Tribe was clearly identified as derived from the

treaty-signatory Snoqualmie.” Id. at 39. These conclusions,

the Snoqualmie argues, "markedly alter the applicable legal

context for [its] assertion of treaty rights under the new rule

of Washington IV.” Setting to one side whether these factual

conclusions change the applicable legal context, this

argument fails because it is simply a repackaged attempt to

give administrative rulings effect in subsequent treaty rights

litigation, which Washington IV explicitly forbids.7 See

Washington IV, 593 F.3d at 800 ("The fact that a subsequent

administrative ruling for another purpose may have made

underlying inconsistent findings is no reason for undoing the

finality of the Washington II factual determinations.”).8

The Snoqualmie's claim to the second exception is

grounded in the allegedly questionable quality and

7 The Snoqualmie's suggestion that the district court should have

deferred to determinations made in the Tribe's federal recognition

decision and that we should defer to determinations made in the fee-totrust decision would likewise run afoul of our holding in Washington IV.

8 We also reject the Snoqualmie's suggestion that this exception

should apply because preclusion "would result in a manifestly

inequitable administration of the laws.” Restatement (Second) of

Judgments § 28. The Tribe argues that preclusion of all of its treaty

rights claims under the Treaty on the basis of factual findings made by

the district court in Washington II in 1979 would cause it irreparable

harm. Accepting the Snoqualmie's argument would open the floodgates

of relitigation; finality would become elusive as parties continued to

relitigate facts whenever future interests were threatened by prior

determinations. Elevating parties' claims of harm, valid though they

may be, over the finality of legitimate court decisions would deal a fatal

blow to principles of res judicata: "If relitigation were permitted

whenever it might result in a more accurate determination, in the name

of 'justice,' the very values served by preclusion would be quickly

destroyed.” 18 Charles Alan Wright et al., Federal Practice and

Procedure § 4426 (3d ed. 2005).

SNOQUALMIE INDIAN TRIBE V. STATE OF WASHINGTON 29

extensiveness of the procedures employed in Washington II

to determine the factual issue of the Tribe's treaty-tribe

status. But as we pointed out in Washington IV, the factual

finding that lies at the heart of this appeal was "made by a

special master after a five-day trial, and . . . again by the

district judge de novo after an evidentiary hearing.”

593 F.3d at 799. And the Samish—and, by extension, the

Snoqualmie, too—had no reason "to hold back any

evidence” at those hearings, nor did they lack incentive "to

present in Washington II all of [their] evidence supporting

[their] right to successor treaty status.” Id. In the face of

these conclusions, we cannot countenance the Snoqualmie's

argument that "[a] new determination of the issue [of its

treaty-tribe status] is warranted by differences in the quality

or extensiveness of the procedures followed” in Washington

II. See Restatement (Second) of Judgments § 28.

We affirm the district court’s issue preclusion dismissal

because the issue the Snoqualmie now seeks to litigate—its

treaty-tribe status under the Treaty of Point Elliott—is

identical to the issue actually litigated and decided in

Washington II, and no issue preclusion exception applies.



AFFIRMED.