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Date: 10-03-2021
Case Style:
SNOQUALMIE INDIAN TRIBE, a
federally recognized Indian tribe on its own behalf and as parens patriae
on behalf of its members v. STATE OF WASHINGTON; JAY
ROBERT INSLEE, Governor; KELLY SUSEWIND, Washington Department of Fish & Wildlife Director
Case Number: 20-35346
Judge: M. Margaret McKeown
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Amy J. Dona (argued) and Randy J. Trick, Assistant United
States Attorneys; Robert W. Ferguson, Attorney General;
Office of the Attorney General
Defendant's Attorney:
Description:
San Francisco, CA - Indian Treaty Rights lawyer represented Plaintiff-Appellant with 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
Outcome: 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.
Plaintiff's Experts:
Defendant's Experts:
Comments: