right of Indians to occupy lands held in trust by the United States for 10 their use is “the exclusive province of federal law”
How later courts described this case
- right of Indians to occupy lands held in trust by the United States for 10 their use is “the exclusive province of federal law”
- filed at ECF No. 234-18
- “The greater weight of federal authority [] supports the position that 4 judicial estoppel applies to a party’s stated position, regardless of whether it is an 5 expression of intention, a statement of fact, or a legal assertion.”
- explaining that “[e]stoppel does not run against 15 the United States when it acts as trustee for an Indian tribe
Written by the judges who cited it.
The opinion
1
FILED IN THE
2 U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
Jul 09, 2020
3
SEAN F. MCAVOY, CLERK
4
5 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
6
7 PAUL GRONDAL, a Washington
resident, NO: 2:09-CV-18-RMP
8
Plaintiff, ORDER DENYING PLAINTIFFS’
9 MOTION FOR DEFAULT
v. JUDGMENT, DENYING
10 PLAINTIFFS’ MOTION FOR
MILL BAY MEMBERS SUMMARY JUDGMENT, AND
11 ASSOCIATION, INC., a Washington GRANTING GOVERNMENT’S
non-profit corporation; UNITED MOTION FOR SUMMARY
12 STATES OF AMERICA; UNITED JUDGMENT RE EJECTMENT
STATES DEPARTMENT OF
13 INTERIOR; BUREAU OF INDIAN
AFFAIRS; FRANCIS ABRAHAM;
14 CATHERINE GARRISON;
MAUREEN MARCELLAY, MIKE
15 PALMER, also known as Michael H.
Palmer; JAMES ABRAHAM;
16 NAOMI DICK; ANNIE WAPATO;
ENID MARCHAND; GARY
17 REYES; PAULWAPATO, JR.;
LYNN BENSON; DARLENE
18 HYLAND; RANDY MARCELLAY;
FRANCIS REYES; LYDIA W.
19 ARMEECHER; MARY JO
GARRISON; MARLENE
20 MARCELLAY; LUCINA O’DELL;
MOSE SAM; SHERMAN T.
21 WAPATO; SANDRA
1 COVINGTON; GABRIEL
MARCELLAY; LINDA MILLS;
2 LINDA SAINT; JEFF M. CONDON;
DENA JACKSON; MIKE
3 MARCELLAY; VIVIAN PIERRE;
SONIA VANWOERKON;
4 WAPATO HERITAGE, LLC;
LEONARD WAPATO, JR.;
5 DERRICK D. ZUNIE, II;
DEBORAH L. BACKWELL; JUDY
6 ZUNIE; JAQUELINE WHITE
PLUME; DENISE N. ZUNIE;
7 CONFEDERATED TRIBES
COLVILLE RESERVATION; and
8 ALLOTTEES OF MA-8, also known
as Moses Allotment 8,
9 Defendants.
10
This case involves an eleven-year dispute over land on the banks of Lake
11
Chelan known as Moses Allotment No. 8, or “MA-8.” MA-8 is highly fractionated
12
allotment land, held in trust by the United States Government for Indian allottees
13
who are predominantly members of the Confederated Tribes of the Colville
14
Reservation. Plaintiffs in this case are non-Indians who represent a group of
15
individuals who purchased camping memberships to use MA-8 for recreational
16
purposes allegedly through 2034. Plaintiffs purchased these camping memberships
17
from William Evans Jr., who had leased MA-8 from the Indian allottees in
18
accordance with federal regulations, in order to sell camping memberships to
19
Plaintiffs. The problem is that Evans’ lease of MA-8 expired in 2009, not 2034, due
20
21
1 to his failure to renew it. Because Plaintiffs’ right to use MA-8 flowed from Evans’
2 lease, that right expired in 2009 along with the lease.
3 The Court acknowledges that Plaintiffs in this case did not receive what they
4 expected from Evans and his successor in interest, Wapato Heritage, LLC.
5 However, Plaintiffs may not continue to occupy Indian trust land without legal
6 authority to do so.
7 BACKGROUND
8 The Moses Allotments1
9 As described in more detail below, the Moses Allotments are reservation
10 allotments that the Government created consistent with the Moses Agreement for
11 individual Indians that the Government recognized as members of the “Moses Band”
12 of Indians. In 1907, pursuant to the Moses Agreement, MA-8 was allotted to
13 Wapato John via a trust patent, issued by the United States. After Wapato John died,
14 his interests in MA-8 passed to his heirs, and the land became fractionated.
15 Evans, the Master Lease, and the Development of MA-8
16 It is undisputed that, by 1979, William Evans, Jr., an heir of Wapato John,
17 owned approximately 5.4% of the beneficial ownership in MA-8. See Wapato
18 Heritage L.L.C. v. United States, 637 F.3d 1033, 1035 (9th Cir. 2011). Evans
19
20 1 Except for the issue of MA-8’s trust status, the historical background of this case is
largely undisputed. The Court expressly notes disputed issues of fact in this Order.
21
1 wanted to use MA-8 to generate a profit for himself and the other allottee
2 landowners. However, as he only owned a small fraction of the beneficial interest in
3 the land, he could not control the land. See ECF No. 90-6 at 9 (“Mr. Evans is very
4 much aware of the Lake Chelan-Manson Area and feels strongly that an R.V.
5 Development would provide good solid monies to the landowners.”). Thus, Evans
6 began communicating with the other allottee landowners, to lease MA-8 from them
7 and control the property. See id. Although it is now contested, at that time it was
8 agreed that MA-8 was trust land. Therefore, any lease of MA-8 had to be approved
9 by the Secretary of the Interior through the BIA. See 25 U.S.C. § 415.
10 Eventually, Evans obtained approval for his proposed lease from 64% of the
11 Indian allottee landowners with an interest in MA-8. Wapato Heritage, L.L.C., 637
12 F.3d at 1035. On February 2, 1984, the Colville Agency, on behalf of the BIA,
13 approved the lease of MA-8 to Evans. See id.; ECF No. 90-6 at 23–24. Pursuant to
14 federal regulations, the BIA consented to the lease on behalf of the remaining 36%
15 of the trust interest. Wapato Heritage, L.L.C., 637 F.3d at 1035.
16 This “Master Lease” granted use of MA-8 to Evans for a period of twenty-five
17 years, beginning in 1984. The Master Lease defined Evans as the “Lessee” and the
18 individual Indian landowners as “Lessor.” Wapato Heritage, L.L.C., 637 F.3d at
19 1040 (holding that “the BIA was not the lessor” to the Master Lease); see ECF No.
20
21
1 90-2 at 1. These individual landowners’ names and addresses purportedly were
2 listed in an Exhibit to the Master Lease. 2 Id.
3 The Master Lease contained a renewal option, which would allow Evans to
4 renew the lease for up to 25 years. ECF No. 90-2 at 3. To renew the Master Lease,
5 Evans was required to give notice to the “Lessor” and the Secretary in writing one
6 year prior to the expiration of the initial 25-year lease term. 3 Id. Thus, Evans would
7 have needed to give notice of renewal to the Lessor by 2008.
8 On January 30, 1985, Evans sent a letter to the Colville Agency, referencing
9 the Master Lease. See ECF No. 90-6 at 25. The language of the letter indicates that
10
2 According to Judge Whaley in the related case, Wapato Heritage, L.L.C. v. United
11 States, the exhibit attached to the lease also listed the BIA Superintendent of the
Colville Agency as lessor to function as a “guardian” of the other Indian landowners
12
not listed in the lease, due to the fractionated nature of the land. See ECF No. 30 at 3
13 in Case No. 2:08-cv-177-RHW. According to Judge Quackenbush, the previous
judge presiding over this litigation, “There is no ‘Exhibit A’ of record and no
14 evidence in the record whether ‘Exhibit A’ ever existed. The Master Lease contains
just two signatures. It was signed by Evans as ‘Lessee’ and under ‘Lessor’ was the
15
signature of George Davis, Secretary of the BIA.” ECF No. 144 at 5.
16 3 Evans created two separate companies through which he conducted business related
to MA-8, Mar-Lu, Ltd. and Chief Evans, Inc. Almost immediately after obtaining the
17
Master Lease, Evans subleased a portion of MA-8 to Mar-Lu, Ltd. to develop the
property and create Mill Bay RV Resort. The sublease stated that it would “expire on
18
the date of the expiration of the Master Lease and exercised extension option, if any,
19 whichever be later.” ECF No. 90-4 at 4 (Mar-Lu Ltd. sublease). For clarity, the
Court will consider the actions of Mar-Lu, Ltd. and Chief Evans, Inc. to be the
20 actions of Evans. This is consistent with the Court’s prior rulings and the parties’
arguments.
21
1 Evans intended to exercise his option to renew the Master Lease. See id. The letter
2 stated:
3 In accordance with paragraph three (3) of the subject lease dated
February 2, 1984, you are notified by receipt of this letter that Mar-Lu,
4 Ltd. [Evans’s company] hereby exercises its option to renew the subject
lease for a further term of twenty five (25) years to be effective at the
5 expiration of the original twenty five (25) year term. This notice
extends the total term for the subject lease to February 1, 2034.
6
Id. Although Evans stated an intent to renew the Master Lease, he did not notify any
7
of the Indian Landowners in writing of his intent to renew, nor did he send any
8
notice through certified mail, as required by the Master Lease. Wapato Heritage,
9
L.L.C., 637 F.3d at 1040.
10
The BIA never communicated with Evans to notify him about the status of the
11
lease renewal, or to offer a formal opinion about whether the lease was effectively
12
renewed. As Judge Whaley found in related litigation about the Master Lease and
13
MA-8, “The issue [of the Master Lease’s renewal] simply never arose, formally,
14
because the BIA was never asked to make such an administrative decision until
15
2007.” ECF No. 30 at 4 in Case No. 2:08-cv-177-RHW. However, the BIA
16
approved and signed documents after receiving the letter from Evans, indicating that
17
the Agency assumed that the lease had been renewed and thus would expire in 2034.
18
See e.g., ECF No. 90-4 at 10–31.
19
After obtaining the Master Lease, Evans began developing an RV park on
20
MA-8, the Mill Bay RV Resort. “The original plan Evans envisioned included 750
21
1 RV sites that would occupy the entire parcel of MA-8 but [sic] changed the plan and
2 decided to construct a golf course and limit the number of RV sites.” ECF No. 1 at
3 5; ECF No. 90-6 at 42. Evans sold camping memberships to those interested in
4 using the Mill Bay Resort for recreational purposes.
5 In 1989, “Evans submitted a plan to revise the RV Resort plan in order to
6 provide members with ‘expanded memberships.’” ECF No. 1 at 5; see also ECF
7 No. 90-6 at 42. These expanded memberships allowed purchasers to use a
8 designated RV space at Mill Bay Resort for recreational purposes, consistent with
9 the “Expanded Membership Sale Agreement,” until 2034. See ECF No. 16-3; see
10 also ECF No. 90-6 at 42 (twenty-four sites to be marketed as “Expanded
11 Memberships”). The agreements were executed between the interested purchasers
12 (the “Purchasers”) and Evans’s company, Chief Evans, Inc. (the “Seller”). ECF No.
13 16-3 at 1. The Expanded Membership Sale Agreement describes the nature of the
14 expanded membership as follows:
15 This membership constitutes only a contractual license to use such
facilities as may be provided by Seller from time to time. Such facilities
16 are subject to change and this membership therefore has no application
to, does not constitute an interest in, is not secured by, and does not
17 entitle the Purchaser to any recourse against any particular real property
facilities. This contract does not entitle the Purchaser to participate in
18 any income or distribution of Seller or of any of its facilities, . . . or to
vote or participate on any aspect relating to the business of Seller. The
19 duration of this membership is coextensive with the fifty (50) year term
commencing February 2, 1984, of Seller’s lease for the Mill Bay
20 property, which lease was entered into between the United States
Department of the Interior, Bureau of Indian Affairs, and William W.
21
1 Evans, Jr., on February 2, 1984, and subsequently assigned by William
W. Evans Jr., to Seller.
2
ECF No. 16-3 at 6.
3
The BIA approved the requested modification of the Master Lease, which
4
allowed Evans to sell these expanded memberships. When it approved the
5
modification, the BIA did not address whether the Master Lease had been properly
6
renewed, even though the expanded memberships indicated that the Master Lease
7
had been renewed. See ECF No. 90-6 at 26–45 (Master Lease modification
8
materials).
9
Paul Grondal was among the first individuals to purchase an expanded
10
membership from Evans. Regarding these memberships, Grondal asserts, “Evans
11
and his sales staff represented to all prospective purchasers, both verbally and with
12
documentation, that his agreement with the BIA and his long-term land lease on
13
‘trust land’ was good for the full 50 year term of the lease until 2034.” ECF No. 16
14
at 3.
15
The value of MA-8, and thus the value of the expanded memberships, has
16
increased significantly since 1989. Under the Expanded Membership Sale
17
Agreement, the purchasers were allowed to sell their memberships at an increased
18
price. Plaintiffs plead, “Upon information and belief, new members have paid up to
19
three times that of the original price in order to purchase a camping membership
20
valid until 2034.” ECF No. 1 at 21.
21
1 In 1993, Evans entered into a sublease with Colville Tribal Enterprise
2 Corporation, allowing the Corporation to build a casino on a portion of MA-8 that is
3 not part of the Mill Bay Resort. See ECF No. 90-4 at 10–31. The BIA approved the
4 sublease, which also indicated that the Master Lease would expire in 2034. Id. at 12
5 (sublease “Term” provision).
6 Evans Attempts to Cancel the Mill Bay Memberships and Litigation Ensues
7 In 2001, members of the Mill Bay Resort (“Mill Bay Members”), including
8 Grondal, received a letter from Evans’ company, Chief Evans, Inc., stating that the
9 park was closing at the end of 2001 and all membership contracts would be
10 cancelled at that time. ECF No. 16 at 5.
11 The Mill Bay Members sued Evans in state court over the potential
12 cancellation of their camping memberships/contracts. Id. at 5–6. Before the
13 litigation was resolved, Evans died. However, prior to his death, Evans established
14 Wapato Heritage, LLC, and, when he died, his leasehold interest as the lessee of
15 MA-8 was acquired by Wapato Heritage, LLC. ECF No. 144 at 9 (Court’s prior
16 Order). Presently, Wapato Heritage possesses a life estate in Evans’ MA-8
17 allotment interest (approximately 23.8% of MA-8) with the remainder reverting to
18 the Confederated Tribes of the Colville Reservation. Id. at 9 n.3. Because Wapato
19 Heritage is Evans’s successor in interest, it participated in the state-court litigation
20 with the Mill Bay Members after Evans’ death. Wapato Heritage resolved the state-
21
1 court litigation with the Mill Bay Members through mediation and a Settlement
2 Agreement. See ECF No. 16-5 (Settlement Agreement).
3 The Settlement Agreement between Wapato Heritage and the Mill Bay
4 Members expressly recognized the extension of the Master Lease through 2034.
5 ECF No. 16-5 at 7. As this Court previously stated, “A key issue involved in the
6 mediation was the RV Park Members’ desire to remain on MA-8 through 2034.
7 ECF No. 144 at 9–10. The settlement proposals and the final agreement explicitly
8 recognized the Mill Bay Members’ ‘right to continued use of the Park until
9 December 31, 2034,’ though it also recognized that this right was subject to the
10 terms of ‘the Master Lease with the BIA.’” Id. at 9 (quoting the Settlement
11 Agreement).
12 To remain on the land, Plaintiffs agreed to pay Wapato Heritage, Evans’
13 successor in interest, increased “rent” through 2034. ECF No. 16-5 at 7 (rent rate
14 schedule through 2034). The BIA did not intervene in the mediation formally, but
15 its agents were aware of the mediation and attended hearings. The nature of the
16 BIA’s involvement, and the extent to which its agents informally participated in the
17 settlement negotiations, is disputed. See ECF No. 144 at 10. The individual allottee
18 landowners were not parties to the settlement, and there is no evidence that they
19 were involved in the settlement negotiations whatsoever. See ECF No. 16-5 at 1.
20 / / /
21 / / /
1 Review of the Master Lease’s Purported Renewal
2 The BIA did not examine or question the legal efficacy of the purported
3 renewal of the Master Lease until 2007. In its Order at ECF No. 144, this Court
4 detailed numerous instances in which the BIA was asked to address the terms of the
5 Master Lease but did not do so. For instance, in 2004, Evans’ daughter asked
6 whether the extension of the master lease had any effect on the renewal of the RV
7 Park sublease. ECF No. 144 at 11 (citing ECF No. 90-10 at 29–31). However, it
8 appears that the BIA did not undertake such a review until 2007.
9 Plaintiffs allege that the BIA began to question the status of the Master Lease
10 renewal in response to a letter from the Confederated Tribes of the Colville
11 Reservation. See ECF No. 144 at 12.4 In 2007, the BIA sent a letter to Wapato
12 Heritage, stating its position that Evans never had exercised his option to renew the
13 Master Lease. ECF No. 90-15 at 8. The BIA asserted that Evans had failed to
14 provide notice of his intent to renew the Master Lease to the allottee landowners,
15 who were the “Lessor.” Instead, Evans only provided notice to the Colville Agency.
16
4 Plaintiff Grondal suggests that the BIA and the Confederated Tribes of the Colville
17
have colluded for years in an attempt to take MA-8 from Plaintiffs prematurely, so
that the Tribes may expand their casino operations on MA-8 before 2034. See ECF
18
No. 16 at 5 (Decl. of Paul Grondal explaining, “[R]umors began circulating that the
19 Colville Tribe was planning on moving the Mill Bay Casino onto the Mill Bay Resort
RV Park property”). At the hearing regarding the instant motions, Defendant/Cross-
20 Claimant Wapato Heritage also argued that the Government is inappropriately
favoring the Confederated Tribes of the Colville with respect to MA-8’s use.
21
1 See id. Because this action was insufficient to renew the Master Lease, the lease
2 would expire in 2009, rather than 2034. The letter noted that the Agency’s review
3 was ongoing, and that, if Wapato Heritage had any record supporting renewal of the
4 Master Lease, it should provide a copy of such record to the Colville Agency. Id.
5 When Wapato Heritage received notice that Evans had not effectively
6 renewed the Mater Lease, there were two months remaining during which Wapato
7 Heritage could have renewed the Master Lease by providing notice to the
8 landowners. See ECF No. 90-15 at 15 (letter dated Dec. 18, 2007). As the Court
9 already has pointed out, the process for renewal was simple; it only required that
10 notice be given to the landowners and did not require the landowners’ approval or
11 consent. Instead of properly exercising the option to renew the Master Lease in
12 those two months, Wapato Heritage’s counsel sent the BIA a letter, disagreeing with
13 the BIA’s decision. Id. at 15–17.
14 Wapato Heritage, LLC v. United States
15 On June 9, 2008, Wapato Heritage filed an action in the Eastern District of
16 Washington against the United States challenging the BIA’s decision that Evans had
17 not renewed the Master Lease. See Wapato Heritage LLC v. United States, No. 08-
18 cv-177-RHW. In that case, Wapato Heritage argued that the Master Lease had been
19 renewed. In the alternative, Wapato Heritage asserted that the BIA’s repeated
20 approvals of Evans’ exercise of the option to renew extended the Master Lease to
21 February 2, 2034. Additionally, Wapato Heritage argued that a balance of the
1 equities required finding that the Master Lease had been renewed. The Court
2 rejected Wapato Heritage’s arguments, found that Evans had never renewed the
3 Master Lease, and eventually dismissed Wapato Heritage’s case against the
4 Government.
5 Wapato Heritage appealed, and the Ninth Circuit affirmed the district court’s
6 decision, stating:
7 [W]e hold that the Lease is not ambiguous and that the BIA was not the
Lessor. Because the BIA was not the Lessor, the Lease terms required
8 that Wapato [Heritage] notify the BIA and the landowners directly via
certified mail, which it did not do . . . Moreover, there is no evidence in
9 the record that the Lessee requested that the BIA furnish it with the
current names and addresses of the Landowners, as it was permitted to
10 do under Section 29 of the Lease. Accordingly, we hold that Wapato
[Heritage]’s option to renew the Lease was not effectively exercised by
11 Evans, or later by Wapato [Heritage], and that the Lease terminated
upon the last day of its 25-year term.
12
Wapato Heritage, L.L.C. v. United States, 673 F.3d 1033, 1040 (9th Cir. 2011).
13
Thus, the Ninth Circuit found that the Master Lease was not renewed and that it
14
expired in 2009, on the last day of its 25-year term.
15
Initiation of the Instant Litigation
16
Before the Ninth Circuit reached its decision in Wapato Heritage L.L.C. v.
17
United States, Plaintiff Grondal and the Mill Bay Members Association filed the
18
instant action in this Court. The Complaint in this matter was filed on January 21,
19
2009. ECF No. 1. Plaintiffs’ Complaint asserts claims against Wapato Heritage, the
20
Federal Government (United States, Department of Interior, and Bureau of Indian
21
1 Affairs), and individual allottee landowners with interests in MA-8. The issues
2 raised in the present litigation are similar to those raised in Wapato Heritage L.L.C.
3 v. United States: Plaintiffs advance various arguments as to why they are entitled to
4 occupy MA-8 until 2034, even though the Master Lease was not renewed. In its
5 Answer to the Complaint, the Government asserts a counterclaim of trespass,
6 requesting ejectment of Plaintiffs from MA-8. ECF No. 42 at 24–25. The
7 Government asserts that Plaintiffs, who have camping membership contracts with
8 Wapato Heritage, have no right to remain on MA-8, as the Master Lease of MA-8
9 between Evans and the allottee landowners has expired.
10 Defendant Wapato Heritage filed several cross claims against all Defendants
11 requesting equitable relief. See ECF No. 170. The Government filed a crossclaim
12 against Wapato Heritage, alleging that Wapato Heritage has failed to pay rent under
13 the Master Lease. See ECF No. 198 at 11. The Court does not address the merits of
14 these crossclaims in this Order, as the parties have not addressed them in the
15 motions presently before the Court.
16 Court’s 2010 Memorandum Opinion at ECF No. 144
17 The Court addressed Plaintiffs’ claims and the Government’s trespass
18 counterclaim in its Order at ECF No. 144. Plaintiffs’ first three causes of action
19 requested declaratory relief based on the equitable defenses of estoppel, waiver and
20 acquiescence, and modification. The Court dismissed Plaintiffs’ first three claims
21 for lack of subject matter jurisdiction. The Court also found those claims were
1 barred by issue preclusion due to the district court decision in Wapato Heritage
2 L.L.C. v. United States. (At the time of that Order, the Ninth Circuit had not yet
3 affirmed the district court’s decision.) Similarly, the Court dismissed Plaintiffs’
4 fourth and fifth causes of action, which requested relief under the Administrative
5 Procedures Act and the Fifth Amendment of the Constitution, for lack of subject
6 matter jurisdiction.
7 However, the Court found that it has subject matter jurisdiction over the
8 Government’s trespass counterclaim, which requests Plaintiffs’ ejectment from MA-
9 8.
10 The Court then construed language in Plaintiffs’ Complaint as a claim for
11 declaratory relief against the individual allottee landowners, to prevent them from
12 denying Plaintiffs’ right to occupy MA-8. ECF No. 144 at 24. This request for
13 declaratory relief is Plaintiffs’ only remaining claim, and the Court has characterized
14 it as follows:
15 Plaintiffs’ (The Mill Bay Members Association and Paul Grondal)
claim against the MA-8 landowner Defendants, other than the Tribe, to
16 declare them “equitably, collaterally, or otherwise estopped from
denying the Plaintiffs their right to use Mill Bay Resort until February
17 2, 2034.”
18 ECF No. 329 at 23 (quoting ECF No. 1 at 43; ECF No. 197 at 2).
19 In its Order at ECF No. 144, the Court also addressed the merits of the
20 Government’s trespass counterclaim, as the Government had moved for summary
21 judgment on that claim. ECF No. 144 at 24. The Court denied the Government’s
1 motion for summary judgment, with leave to renew, finding that the ejectment of
2 Plaintiffs potentially was premature at that time. Id. The Court explained that,
3 because the Government was not a party to the Master Lease, it has no contractual
4 right to seek the ejectment of Plaintiffs from MA-8. Rather, any right that the
5 Government has to eject Plaintiffs from the land stems from the land’s trust status.
6 The Court explained, “The Government holds the allotment in trust for the allottees
7 and has the power to control occupancy on the property and to protect it from
8 trespass.” Id. at 25 (citing United States v. West, 232 F.2d 694, 698 (9th Cir. 1956)).
9 The Court then examined the federal regulations governing the BIA’s
10 responsibilities in administering and enforcing leases on trust land, in order to decide
11 if the BIA was acting consistent with those regulations in seeking Plaintiffs’
12 ejectment. Those regulations have since been revised, and the provisions upon
13 which the Court relied have been removed. Prior to the revision of the applicable
14 regulations, the Court identified 25 C.F.R. § 162.623 as relevant to the
15 Government’s trespass claim in this case. It stated:
16 If a tenant remains in possession after the expiration or cancellation of
a lease, we will treat the unauthorized use as a trespass. Unless we have
17 reason to believe that the tenant is engaged in negotiations with the
Indian landowners to obtain a new lease, we will take action to recover
18 possession on behalf of the Indian landowners, and pursue any
additional remedies available under applicable law.
19
25 C.F.R. § 162.623, removed, 77 FR 72440, 72494, Dec. 5, 2012. Finally, the
20
Court explained that, pursuant to 25 C.F.R. § 162.619, the BIA must “consult with
21
1 the Indian landowners, as appropriate,” to determine whether the holdover tenants
2 should be given additional time to cure. 25 C.F.R. § 162.619, removed, 77 FR
3 72440, 72494, Dec. 5, 2012. The Court found that these “regulations make clear
4 that the entire purpose of the authority and remedies provided to the BIA for lease
5 violations is to ensure that the landowners’ property and financial interests are
6 protected.” ECF No. 144 at 25.
7 When the Court addressed the Government’s 2009 motion for summary
8 judgment on its trespass counterclaim, it was unclear from the record whether the
9 BIA had consulted with the Indian landowners. There was no evidence that the
10 Government brought the trespass action in response to the landowners’ concerns.
11 Accordingly, the Court found that the ejectment action was premature.
12 Additionally, when the Court first ruled on the Government’s trespass
13 counterclaim, it appeared from the record that Wapato Heritage was attempting to
14 negotiate a new lease with the landowners. If Wapato Heritage had managed to
15 negotiate a new lease with the landowners, the Court reasoned that the ejectment
16 action by the Government would have been improper, as it would have been
17 contrary to the allottee landowners’ interests and desires.
18 Thirdly, the Court reasoned that the ejectment action was premature because
19 the Ninth Circuit had accepted review of, but had not yet decided, Wapato Heritage
20 L.L.C. v. United States, the related case decided by Judge Whaley. Therefore, at that
21
1 time, it was possible that the Ninth Circuit would conclude that the Master Lease
2 had been renewed and would remain in effect until 2034.
3 Accordingly, the Court held the following with respect to the Government’s
4 trespass counterclaim/ejectment action in its Order at ECF No. 144:
5 If efforts to obtain approval on the [new] lease are actually ongoing, or
the BIA has yet to consult with the Indian landowners in regards to the
6 issue of Evans’ failure to properly renew under the Master Lease, then
the BIA’s trespass action is inappropriate. Premature adjudication of
7 the United States’ trespass action is especially inappropriate in the
circumstances of this case, where it seeks to displace Plaintiffs from
8 their residence on the property. The ejectment remedy sought could all
be for nothing, if the [new] lease proposal is granted or if appellate
9 review should result in a different outcome in [Wapato Heritage L.L.C.
v. United States].
10
ECF No. 144 at 27. Consistent with the Court’s reasoning that the ejectment action
11
was premature in 2010, the Court denied the Government’s motion for summary
12
judgment on its trespass counterclaim with leave to renew. The Court warned that,
13
if the Government opted to renew its motion, it needed to provide evidence showing
14
that it had complied with the relevant federal regulations, and evidence showing that
15
the action was otherwise ripe.
16
Government’s Renewed Motion for Summary Judgment re Ejectment and the New
17 Issue of MA-8’s Trust Status
18 In March of 2012, the Government renewed its Motion for Summary
19 Judgment re Ejectment, one of the motions pending before this Court. The
20 Government argues that the ejectment action is timely for several reasons: (1) no
21 new lease has been negotiated with the landowners, and no negotiations are ongoing;
1 (2) the Government consulted with the Indian landowners after Wapato Heritage
2 L.L.C. v. United States was decided, and the landowners support ejectment; and (3)
3 the Ninth Circuit ruled in Wapato Heritage L.L.C. v. United States that the Master
4 Lease had not been renewed and therefore had expired. ECF No. 232 at 12.
5 Accordingly, the Government argues that there is no reason to delay a decision on its
6 pending motion.5
7 In response to the Government’s renewed Motion for Summary Judgment re
8 Ejectment, Plaintiffs raised a new argument as to why the Government’s ejectment
9 action should fail: MA-8 is not trust land. As the Court previously explained in its
10 Order at ECF No. 144, the Government’s authority to seek ejectment was rooted in
11 its trust obligation, not any contractual right related to the Master Lease.
12 Accordingly, if the land is not trust land, then the Government has no authority to
13 seek the ejectment of Plaintiffs on behalf of the landowners. Defendant/Cross-
14 Claimant Wapato Heritage is aligned with Plaintiffs on this issue and argues that
15 MA-8 fell out of trust status long before the Master Lease’s inception.
16 The Court pauses in its recitation of the facts and procedural history of this
17 case to note that the argument that Plaintiffs now assert regarding MA-8’s trust
18
19
20 5 In 2012, certain individual allottees filed a motion to join the Government’s
renewed Motion for Summary Judgment re Ejectment. ECF No. 344.
21
1 status contradicts Plaintiffs’ prior arguments and assertions in this matter. Indeed,
2 Plaintiffs’ very first allegation is:
3 The Bureau of Indian Affairs . . . is responsible for the management and
control of Indian allotment lands. The Superintendent of the BIA’s
4 Colville Indian Agency (the “Colville Agency”), acting as an agent of
the United States oversees and manages federal allotment land held in
5 trust for Indian allottees known as Moses Agreement Number Eight
(“MA-8”).
6
ECF No. 1 at 2–3.
7
Moreover, Plaintiffs’ claims against Defendants were premised on MA-8’s
8
status as trust land. For instance, in order to assert its estoppel claim against the
9
BIA, Plaintiffs alleged, “The BIA was authorized to bind the United States in
10
regards to the leasing of MA-8 as land owned by the United States in trust for the
11
benefit of the Allottees.” Id. at 34.
12
Additional Discovery Allowed
13
On April 12, 2012, Plaintiffs filed a Motion to Continue the Government’s
14
Summary Judgment Motion Pursuant to Fed. R. Civ. P. 56(d). ECF No. 246. In
15
response, the Court found that Plaintiffs had not had a chance to conduct discovery
16
and granted Plaintiffs’ motion to continue. See ECF No. 267 at 9–10. Shortly
17
thereafter, the Court issued a scheduling order governing discovery related to the
18
Government’s renewed Motion for Summary Judgment re Ejectment. ECF No. 272.
19
The Court ordered, “All discovery related to the Federal Defendants’ Motion for
20
Summary Judgment Re: Ejectment shall be completed on or before November 1,
21
1 2012.” Id. at 2 (emphasis in original). The Court also explained that it would set
2 “further discovery/motion deadlines, as well as trial deadlines and dates, if
3 required,” after ruling on the Government’s renewed Motion for Summary Judgment
4 re Ejectment. Id. at 3.
5 Representation of Individual Indian Allottees and Transfer of Case
6 On August 1, 2014, this Court issued a ruling related to the dispositive
7 motions pending before it, which included the instant Motion for Summary
8 Judgment re Ejectment (ECF No. 231) and the Tribe’s Motion to Dismiss the cross-
9 claims of Wapato Heritage (ECF No. 274). ECF No. 329. The Court found that a
10 key issue in deciding the pending motions was the legal status of MA-8. Id. at 2
11 (“The two pending dispositive motions hinge upon the Plaintiffs’ and Defendant
12 Wapato Heritage’s contentions that MA-8’s trust period has expired and that the
13 United States therefore lacks standing to seek ejectment as trustee.”).
14 Because many of the individual allottee landowner Defendants had not
15 appeared in the action, and because the action now raised the issue of MA-8’s trust
16 status, the Court became concerned about the landowners’ lack of legal
17 representation. The Court ordered the BIA to take steps to ensure that the individual
18 landowners had legal representation, stating, “The Court desires to give all of the
19 individual landowner Defendants the opportunity to inform the court of their
20 positions in this case after consultation with legal counsel.” Id. at 32–33. The Court
21
1 indicated that it would not rule on the pending motions until all of the individual
2 landowners were represented by counsel. Id.
3 On September 17, 2019, this case was transferred. Shortly thereafter, the
4 parties submitted status reports, identifying the remaining issues, and a status
5 conference was held. The Government and the Confederated Tribes of the Colville
6 Reservation asked the Court to rule on the Governments’ renewed Motion for
7 Summary Judgment re Ejectment. Plaintiffs and Wapato Heritage, who have been
8 aligned with respect to every motion since the case was transferred, argued that,
9 because the Government had not furnished independent counsel for each individual
10 allottee Defendant, the Court could not decide the Government’s ejectment action.
11 In response to the parties’ arguments, the Court set a briefing schedule to
12 resolve the issue of representation for the individual allottee Defendants. The Court
13 then resolved that issue in its Order at ECF No. 411, finding that, pursuant to Ninth
14 Circuit precedent, the Government need not take additional steps to provide
15 independent counsel to the individual allottee Defendants in this case. Accordingly,
16 even though the Court previously stated that it would not rule on the pending
17 motions until each individual landowner was represented, the Court concluded that,
18 consistent with recent Ninth Circuit precedent, there simply was no legal basis to
19 delay a resolution of this case on the grounds that the Government had failed to
20 provide private attorneys to all of the landowners. Additionally, the Court found
21 that the Government had taken steps to ensure that the landowners who requested
1 representation would receive it and that some of the landowners had received pro
2 bono representation due to the Government’s efforts.
3 With the representation issue decided, the Court turned to the Government’s
4 pending renewed Motion for Summary Judgment re Ejectment, ECF No. 231. The
5 Court acknowledged that the briefing on that motion was stale, and so it set a
6 briefing schedule for supplemental briefing on that motion specifically. ECF No.
7 411 at 10. The Court directed the parties to file supplemental briefs identifying “any
8 new, relevant precedent or facts that were not previously briefed” related to the
9 Government’s pending Motion for Summary Judgment re Ejectment. Id. The
10 parties filed supplemental briefing.
11 Plaintiff Files Dispositive Motions in 2020
12 In addition to their supplemental briefing on the Government’s pending
13 Motion for Summary Judgment re Ejectment, Plaintiffs filed two new dispositive
14 motions. On April 14, 2020, Plaintiffs filed a Motion for Default Judgment Against
15 Certain Allottee Defendants, requesting that the Court enter default judgment against
16 non-appearing individual allottee Defendants. ECF No. 433. On April 17, 2020,
17 Plaintiffs filed a Motion for Summary Judgment Against Certain Individual
18 Allottees. ECF No. 439. Cross-Claimant Wapato Heritage supports both motions.
19 With respect to Plaintiffs’ recently filed dispositive motions, the Court
20 concluded that they raise issues related to the Government’s Motion for Summary
21 Judgment re Ejectment. Accordingly, the Court issued a consolidated briefing
1 schedule for the Plaintiffs’ two dispositive motions, ECF Nos. 433 and 439.
2 Additionally, the Court stated its intent to resolve the following motions in one,
3 global resolution: the Government’s Motion for Summary Judgment re Ejectment
4 (ECF No. 321), the Plaintiffs’ Motion for Default Judgment Against Certain Allottee
5 Defendants (ECF No. 433), and the Plaintiffs’ Motion for Summary Judgment
6 Against Certain Individual Allottees (ECF No. 439).
7 DISCUSSION
8 I. MA-8’s Trust Status
9 As described above, the parties dispute whether MA-8 is trust land. In stark
10 contrast to their prior positions, Plaintiffs and Wapato Heritage now argue that the
11 land is not trust land. The Government, the Confederated Tribes of the Colville
12 Reservation (“CTCR”), and various individual allottee Defendants maintain that the
13 allotment remains in trust. Whether MA-8 is Indian trust land is a threshold
14 question that the Court must address, in part because if the land is not trust land, then
15 the Government is not a proper party to this action and has no standing to eject
16 Plaintiffs.
17 A. Judicial Estoppel
18 The Government argues that Plaintiffs should be precluded from asserting that
19 MA-8 is not trust land under the doctrine of judicial estoppel. That doctrine
20 prevents a party who takes one position from later assuming a second, contradictory
21 position on the same issue, either in the same litigation or in subsequent litigation.
1 Helfand v. Gerson, 105 F.3d 530, 534 (9th Cir. 1997). The Ninth Circuit has made
2 clear that the doctrine applies to both assertions of fact and arguments about the law.
3 Id. at 535 (“The greater weight of federal authority [] supports the position that
4 judicial estoppel applies to a party’s stated position, regardless of whether it is an
5 expression of intention, a statement of fact, or a legal assertion.”).
6 The Supreme Court has explained that “[t]he circumstances under which
7 judicial estoppel may appropriately be invoked are probably not reducible to any
8 general formula or principle.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001)
9 (quoting Allen, 667 F.2d 1166). However, the purpose of the doctrine is to “preserve
10 the integrity of the judicial process by preventing a litigant from playing fast and
11 loose with the courts.” Helfand, 105 F.3d at 534. Because the doctrine was created
12 to prevent a party from deliberately manipulating the courts, courts may not apply
13 the doctrine when a party’s change in position is based on a mistake, or
14 inadvertence. See id. at 536. However, when a party takes a contrary position to its
15 former position on a particular issue in order to gain an unfair advantage in the
16 litigation, or to impose an unfair detriment on the opposing party, application of
17 judicial estoppel is appropriate. See New Hampshire v. Maine, 532 U.S. at 751. A
18 court’s use of judicial estoppel is reviewed for abuse of discretion. Hamilton v. State
19 Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001).
20 Plaintiffs have not responded to the Government’s judicial estoppel argument,
21 nor have they explained why they should be permitted to change positions with
1 respect to the trust status of MA-8. While Plaintiffs once asserted that MA-8 was
2 trust land and used the land’s trust status as a basis to assert its claims against the
3 BIA, Plaintiffs now maintain that MA-8 is not trust land. Presently Plaintiffs argue
4 that, because MA-8 is not trust land, the United States should not be a party to this
5 case and has no standing to bring any counterclaims against them.
6 The Court agrees with the Government’s assertion that “Plaintiffs’ change in
7 position would remove the United States from the litigation (if the land is not trust
8 land), undercutting the very premise of Plaintiffs’ Complaint.” ECF No. 232 at 5.
9 Indeed, Plaintiffs’ very first assertion in their Complaint is:
10 The [BIA], as an agency of the United States of America [] is
responsible for the management and control of Indian allotment lands.
11 The superintendent of the BIA’s Colville Indian Agency [], acting as
an agent of the United States oversees and manages federal allotment
12 land held in trust for Indian allottees known as Moses Agreement
Number 8 (“MA-8”).
13
ECF No. 1 at 2–3. Moreover, the claims asserted in the Complaint’s “Claims for
14
Relief” section are asserted against the BIA for its actions in administering MA-8 as
15
trust land, and the Court already has ruled on these claims. As a matter of law,
16
Plaintiffs could not have asserted these claims if MA-8 is not held in trust, as
17
Plaintiffs now argue.
18
19
20
21
1 Plaintiffs have changed position on this issue in rebutting the Government’s
2 trespass counterclaim.6 Plaintiffs began arguing this new, contradictory position
3 approximately two years after filing their Complaint, and only after their own claims
4 against the BIA had failed. The Court finds that by changing position on such a
5 fundamental issue so late in the litigation, and only after their own claims against the
6 United States had been resolved, Plaintiffs attempt to gain an unfair advantage and
7 have played “fast and loose” with this Court. See Helfand, 105 F.3d at 534. To
8 protect the integrity of the judicial process, the Court refuses to allow Plaintiffs to
9 alter their position of a fundamental issue at this point in the litigation and holds that
10 Plaintiffs are judicially estopped from arguing that MA-8 is not held in trust.
11 B. MA-8 is Indian Trust Land
12 Given the Court’s finding that Plaintiffs are judicially estopped from asserting
13 the inconsistent position that MA-8 is not trust land, the Court need not decide
14 whether MA-8 is held in trust to resolve the instant motions. However, even if
15 judicial estoppel did not apply here, the Court concludes that MA-8 is trust land.
16 To determine whether MA-8 remains in trust, the Court has reviewed relevant
17 statutes, executive orders, regulations, and precedent. Upon review of these sources,
18
19 6 The Court acknowledges that Plaintiffs also have argued that MA-8 may not be trust
land in response to the CTCR’s Motion to Dismiss, in order to rebut the CTCR’s
20 assertion of sovereign immunity, to postpone hearing on that motion, and to raise
“other jurisdictional issues.” See ECF No. 223 at 4.
21
1 the Court finds that it must interpret certain statutory provisions pertaining to the
2 Moses Allotments to determine whether MA-8 is trust land. To engage in this
3 analysis, it is necessary to evaluate the history and development of the Columbia
4 Reservation and the Moses Allotments, as well as the historical and legislative
5 context surrounding the Act of June 15, 1935. Accordingly, the Court lays out the
6 relevant history here, as has been described by many courts,7 beginning with the
7 creation of the Columbia Reservation, from which the Moses Allotments were
8 derived.
9 Chief Moses and the (“Moses”) Columbia Reservation
10 In 1855, the United States entered into the Yakama Nation Treaty, which
11 created the Yakama Indian Reservation. United States v. Oregon, 787 F. Supp.
12 1557, 1559 (D. Or. 1992). Following the ratification of the Yakama Nation Treaty,
13 the United States tried to remove Indians within the territory ceded by the treaty onto
14 the Yakama Reservation. 7 Ind. Cl. Comm. at 802 (1959). However, “There was no
15 movement as a tribe by either the Chelan, Entiat, Wenatchee or Columbia on to the
16 Yakima Reservation although individual members of each of the four tribes did
17 remove to that reservation. Many of the members of the four tribes continued to live
18 uninterrupted on their ancestral lands.” Id.
19
20 7 See e.g., Starr v. Long Jim, 227 U.S. 613 (1913); United States v. Oregon, 787 F.
Supp. 1557 (1992).
21
1 After the Yakama Treaty’s implementation, the Government understood Chief
2 Moses to be leader of the Columbia. In a 1959 decision, the Indian Claims
3 Commission explained that Chief Moses began leading the Columbia around 1862,
4 and that he subsequently “grew in influence among the [other] Indians of that area.”
5 7 Ind. Cl. Comm. at 802. According to the ICC, Moses’s followers “included
6 members of various bands or tribes within the area ceded by the Yakima Treaty
7 including the Chelan, Entiat, and Wenatchee as well as individual Indians from other
8 neighboring tribes.” Id. The United States recognized Chief Moses as the
9 spokesperson for the Wenatchi, Entiat, Columbia, and Chelan, although not all of
10 them acknowledged Chief Moses as their leader. United States v. Oregon, 787 F.
11 Supp. at 1580; see also 7 Ind. Cl. Comm. at 802–804 (Government acknowledged
12 Chief Moses as capable of entering into agreement with the Government on behalf
13 of his followers, who were made up of multiple tribes).
14 In 1879, Chief Moses negotiated directly with the United States to establish a
15 new reservation for his followers. 7 Ind. Cl. Comm. at 802. This resulted in the
16 creation of the Columbia Reservation, or the “Moses Columbia Reservation,” by
17 executive order in 1879. Id. at 803. The reservation was “withdrawn from sale and
18 set apart as a reservation for the permanent use and occupancy of Chief Moses and
19 his people, and such other friendly Indians as may elect to settle thereon with his
20 consent and that of the Secretary of the Interior.” Id.; see Exec. Order of April 19,
21 1879, reprinted in 1879 Report of the Commissioner of Indian Affairs: Papers
1 Accompanying. The Columbia Reservation was established west of the Colville
2 Reservation, which had been created by executive order just a few years prior.
3 United States v. Oregon, 787 F. Supp. at 1564.
4 After the Columbia Reservation was set aside, Chief Moses did not live on it,
5 and many of his followers remained off the reservation as well. 7 Ind. Cl. Comm. at
6 803; United States v. Oregon, 787 F. Supp. at 1563. In 1883, Chief Moses began
7 negotiating with the Government again, along with Columbia Chief Sarsarpkin, and
8 with Chiefs Lot and Tonasket of the Colville Reservation. Agreement with the
9 Columbia and Colville, 1883 (ECF No. 305-2 at 17); United States v. Oregon, 787
10 F. Supp. at 1564. The negotiations culminated in the Agreement with the Columbia
11 and the Colville of 1883, or the “Moses Agreement.”
12 The Moses Agreement
13 The Moses Agreement provided for the allotment of individual parcels on the
14 Columbia Reservation for Indian individuals and families who desired to “remain on
15 the Columbia Reservation.” ECF No. 305-2 at 17. Indians residing on the
16 Columbia Reservation could take an allotment carved from that reservation, or they
17 could relocate to the Colville Reservation with Chief Moses and the remainder of his
18 followers. Id. at 17–18.
19 Congress ratified the 1883 Moses Agreement through the Act of July 4, 1884.
20 23 stat. 79 (1884) (filed at ECF No. 234-2). The Act of July 4, 1884 provided that
21 the Indians residing on the Columbia Reservation with Sarsarpkin (those who had
1 chosen not to go to the Colville Reservation with Chief Moses) would receive
2 allotments. Additionally, it provided that the “remainder” of the Columbia
3 Reservation would be “restored to the public domain.” Id.
4 On May 1, 1886, President Grover Cleveland issued an executive order to
5 effectuate the Moses Agreement and the Act of July 4, 1884. Exec. Order of May 1,
6 1886, reprinted in Report of the Commissioner of Indian Affairs, 1886 Ann. Rep.
7 Comm’r Off. Ind. Aff. Sec’y Interior 35, 362 (1886). According to the Annual
8 Report of the Commissioner of Indian Affairs from 1886, after thirty-seven
9 allotments were created, the remainder of the Columbia Reservation was restored to
10 the public domain. 1886 Ann. Rep. Comm’r Off. Ind. Aff. Sec’y Interior 35, 234
11 (1886).
12 Indians who did not take allotments on the Columbia Reservation either
13 relocated to the Colville Reservation or were removed there. The District Court of
14 Oregon has described the movement of Indians from the Columbia Reservation after
15 the Moses Agreement as follows:
16 Members of the Wenatchi Tribe were moved to the Colville
Reservation with funds provided by Congressional Acts in 1902 and
17 1904. Members of the Columbia and Entiat tribes moved to allotments
on the Colville reservation, attempting to stay on allotments which fell
18 within their traditional areas. However, the members of the Chelan
tribe who already resided in areas within the Moses Columbia
19 Reservation prior to 1883, and who refused to take allotments on the
Columbia Reservation under the 1883 Moses Agreement, were moved
20 to the Colville Reservation by U.S. military forces in 1890.
21 United States v. Oregon, 787 F. Supp. at 1564.
1 The Ninth Circuit affirmed the District of Oregon’s analysis, finding that the
2 Government “let Moses and his people relocate to the Colville Reservation.” United
3 States v. Oregon, 29 F.3d 481 (9th Cir. 1994). Similarly, the Indian Claims
4 Commission has found that “Chief Moses and his followers did, in fact, move onto
5 the Colville Reservation and the members of his band or the decedents thereof have
6 continued to reside on the reservation until the present date [of 1959].” 7 Ind. Cl.
7 Comm. at 811.
8 Government’s Treatment of Moses Allotments
9 After the Moses Allotments were created, consistent with the Moses
10 Agreement, the Government referred to the allotted land as reservation land, and it
11 associated that reservation land with the Columbia Tribe, the Moses Band of
12 Indians, and/or the Moses Agreement. For instance, in the BIA’s annual reports, the
13 BIA listed the allotments as a “reservation” belonging to the “Moses Band” or set
14 aside by the Moses Agreement. See e.g., Report of the Commissioner of Indian
15 Affairs, 1907 Ann. Rep. Comm’r Off. Ind. Aff. Sec’y Interior 7, 59 (1907) (“During
16 the last year patents were issued and delivered to Indians, classified by reservations,
17 as follows: . . . Columbia (Moses agreement).”); Report of the Commissioner of
18 Indian Affairs, 1909 Ann. Rep. Comm’r Off. Ind. Aff. Sec’y Interior 1, 140 (1909)
19 (noting that the Columbia reservation was “[U]nder the Colville Agency,” belonged
20 to the Columbia (Moses band) “Tribe,” and was allotted in its entirety).
21
1 Plaintiffs and Wapato Heritage have argued that the Moses Allotments do not
2 fall within any reservation. However, if the allotments did not fall within any
3 reservation, the Government would have considered them to be public domain, or
4 homestead allotments. The Commissioner of Indian Affairs’ reports in the
5 nineteenth and early twentieth centuries did not list the Moses Allotments as public
6 domain or homestead allotments. As explained above, the Government referred to
7 the allotments as a “reservation.” The Government’s treatment of the Moses
8 Allotments as “reservation,” rather than public domain or homestead, is consistent
9 with the way the Government created the Moses Allotments. Public domain, or
10 homestead allotments, as the name suggests, were created from land that was on the
11 public domain. See Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, §
12 16.03[2][e], at 1076 (Nell Jessup Newton et al. eds., 2012) [hereinafter Cohen’s
13 Handbook].
14 As Cohen’s Handbook explains, the Government allotted “public domain
15 homesteads” to Indians who wanted to acquire land through the Homestead Act, or
16 similar laws, but could not because they were not U.S. citizens at that time. Id.
17 With respect to the Moses Allotments, the Government did not create them from
18 land on the public domain. Rather, pursuant to the Moses Agreement, the
19 Government sectioned off the Moses Allotments from the Columbia Reservation for
20 individual Indians on that reservation, prior to returning the remainder of the
21 reservation to the public domain.
1 The BIA administered the Moses Allotments, which it expressly considered to
2 be “reservation” land, from the Colville Agency, on the neighboring Colville
3 Reservation, where Chief Moses and the majority of his followers had settled. The
4 Government recognized the Moses Band of Indians as living on both the Moses
5 Allotments, and on the Colville Reservation, noting the presence of the Moses Band
6 as an entity on the Colville Reservation as early as 1886. That year, the Colville
7 Agent noted that “Moses” was a “tribe” “under [his] care,” living on the Colville
8 Reservation. He provided the following description of them:
9 Moses and his people numbering some 200 have during the past year
fenced in over 400 acres of land and cultivated fully one-half. They are
10 living on the Nespelim, which is a beautiful valley situated in the
southern part of the Colville Reserve. They are industrious, and will in
11 time . . . grow to be a prosperous and self-supporting tribe.
12 Reports of Agents, 1886 Ann. Rep. Comm’r Off. Ind. Aff. Sec’y Interior 35, 231–
13 232 (1886).
14 Additionally, an 1891 map of the State of Washington from the Department of
15 the Interior labels the Moses Allotments as “Indian,” and does not distinguish them
16 from the nearby Colville Reservation. See ECF Nos. 316-1–316-3. The connection
17 that the Government apparently drew between the Moses Allotments and the
18 Colville Reservation is not surprising, given the historical context, and the fact that
19 individuals of the Moses Band resided on the allotments, while the remainder of the
20 entity, including its recognized leader, resided on the Colville Reservation.
21 //
1 Trust Patents Issued to Wapato John for MA-8
2 In 1906, Congress passed the Act of March 8, 1906, which expressly provided
3 for the issuance of trust patents to allottees to receive allotments, as contemplated by
4 the Moses Agreement. 59 Pub. L. 37, 35 stat. 55 (1906) (filed at ECF No. 234-3).
5 Pursuant to the Act, the allotments distributed were to be held in trust for ten years.
6 Id. Unlike allotments issued under the General Allotment Act, trust patents issued
7 consistent with the Act of March 8, 1906 allowed the allottees to sell allotted lands
8 during the trust period, but with the restriction that the allottees were required to
9 keep 80 acres. Id. In 1907 and 1908, Wapato John received two trust patents for
10 MA-8, having decided not to relocate to the Colville Reservation. ECF No. 175-1,
11 Ex. E at 24–28; ECF No. 234-25.
12 Presidents Wilson and Coolidge Extend Trust Period of MA-8 through
Executive Orders
13
In 1914, President Woodrow Wilson issued an executive order extending the
14
trust period of the allotments created under the Moses Agreement for ten additional
15
years. Exec. Order 2109 (Dec. 23, 1914) printed in Charles J. Kappler, Indian
16
Affairs Laws and Treaties, Vol. IV at 1050–51 (filed at ECF No. 234-5 at 1–2). On
17
February 10, 1926, President Calvin Coolidge issued an executive order further
18
extending the period of trust on allotments issued pursuant to the Moses Agreement,
19
that had not already passed out of trust status, for ten years from the date of March 8,
20
1926. Exec. Order 4382 (Feb. 10, 1926) (filed at ECF No. 234-8 at 1). Thus, MA-
21
1 8’s trust status was extended again by executive order, and the trust period would
2 not expire until March 8, 1936. Id.
3 Act of May 20, 1924 Does Not Alter Trust Status of Moses Allotments
4 In 1924, Congress passed an Act specific to the Moses Allotments, which
5 permitted the sale and conveyance of an allotment in its entirety with the Secretary
6 of the Interior’s approval. The Act of May 20, 1924 states as follows:
7 Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That any allottee to whom a
8 trust patent has heretofore been or shall hereafter be issued by virtue of
the agreement concluded on July 7, 1883, with Chief Moses and other
9 Indians of the Columbia and Colville Reservations, ratified by
Congress in the Act of July 4, 1884 . . . may sell and convey any or all
10 the land covered by such patents, or if the allottee is deceased the heirs
may sell or convey the land, in accordance with the provisions of the
11 Act of Congress of June 25, 1910 . . . .
12 68 Pub. L. 122, 43 stat. 133 (1924) (filed at ECF No. 280-1 at 1–2) (emphasis in
13 original). This provision references the Act of June 25, 1910, which granted the
14 Secretary of the Interior authority to make rules and regulations regarding the sale
15 and conveyance of allotments held in trust. 61 Pub. L. 313, 36 stat. 855 (1910).
16 Plaintiffs and Wapato Heritage have argued that the Act of May 20, 1924
17 removes the Moses Allotments from trust status. The Court uses statutory
18 interpretation to analyze that argument. The “first step in interpreting a statute is to
19 determine whether the language at issue has a plain and unambiguous meaning with
20 regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S.
21 337, 340 (1997).
1 Here, the Court need not go further than the first step. The plain language of
2 the Act of May 20, 1924 does not remove Moses Allotments from trust, return those
3 allotments to the public domain, or issue fee patents to any of the trust patent
4 holders. Additionally, while the Act provided a mechanism by which the allotments
5 could be sold or conveyed, the Act specifies that any conveyance or sale would need
6 to be done “in accordance with the Provisions of the Act of Congress of June 25,
7 1910.” The express reference to the Act of June 25, 1910 illustrates that the Moses
8 Allotments still were held in trust, as the provisions of that Act applied to Indian
9 allotments held under trust patents. For these reasons, the Court finds that the statute
10 is unambiguous, and that its enactment did not terminate the trust status of any
11 Moses Allotment.
12 End of the Allotment Era and the Indian Reorganization Act
13 The executive orders that had extended the Moses Allotments’ trust period
14 were consistent with shifting federal policy in the early 1900s, which started to
15 recognize the dramatic, negative impact that allotment had on Indian Tribes,
16 families, and individuals. “By the 1920s, federal officials acknowledged that the
17 allotment policy had not only failed to serve any beneficial purpose for Indians, but
18 had been terribly harmful.” Cohen’s Handbook, § 16.03[2][c], at 1074; see also
19 William C. Canby, Jr., American Indian Law in a Nutshell 23–25 (6th ed. 2014)
20 [hereinafter Canby]. Between 1887 (the passage of the General Allotment Act) and
21 the end of the allotment period in 1934, Indian land holdings were reduced from 138
1 million acres to 48 million acres. Canby at 23. Thus, “The executive branch and
2 Congress began extending trust periods on most allotments . . . .” Cohen’s
3 Handbook, § 16.03[2][c], at 1074.
4 In 1934, Congress ended the nation’s allotment policy through the Indian
5 Reorganization Act (“IRA”). Id. (explaining that the IRA “officially ended the
6 policy of allotting tribal holdings”). The IRA “prohibited any further allotment of
7 tribal land, provided that allotments then held in trust would continue in trust until
8 Congress provided otherwise, and authorized the Secretary of the Interior to take
9 lands into trust for tribes and tribal members.” Id. Accordingly, the trust period on
10 the Indian lands covered by the IRA was extended indefinitely.
11 However, the IRA did not apply to “any reservation wherein a majority of the
12 adult Indians . . . [voted] against its application.” 25 U.S.C. § 5125. Due to the
13 language of this exemption, the Commissioner of Indian Affairs, John Collier,
14 became concerned that the IRA’s indefinite trust period extension would not apply
15 to Indian land reserved for tribes that voted against the IRA. See ECF No. 329 at 14
16 (Court’s prior Order citing Collier’s statements to the House Committee on Indian
17 Affairs). As one of the IRA’s core purposes was to prevent Indian trust land from
18 falling into non-Indian hands, Collier drafted an amendment to the IRA, to solve this
19 problem. Id.; see Stevens v. C.I.R., 452 F.2d 741, 748 (9th Cir. 1971) (explaining
20 that “[o]ne of the purposes of the Reorganization Act was to put an end to the
21 allotment system which had resulted in a serious diminution of Indian land base”).
1 The amendment was adopted by Congress in the Act of June 15, 1935, and
2 provided in relevant part:
3 If the period of trust or of restriction on any Indian land has not, before
the passage of this Act, been extended to a date subsequent to December
4 31, 1936, and if the reservation containing such lands has voted or shall
vote to exclude itself from the application of the [IRA], the periods of
5 trust or the restrictions on alienation of such lands are hereby extended
to December 31, 1936.
6
Act of June 15, 1935, 74 Pub. L. 147, 49 stat. 378 (1935) (filed at ECF No. 234-10).
7
Therefore, the period of trust “on any Indian land” was extended to December 31,
8
1936 if: (1) the trust period was set to expire prior to that date, and (2) “the
9
reservation containing” the Indian land had voted to exclude itself from the
10
application of the IRA, or would vote to do so by the deadline of June 18, 1936. Id.
11
In 1935, a vote was held on the Colville Reservation, which was made up of
12
many tribes, including the “Moses” Indians who resided there due to the Moses
13
Agreement. The tribes of the Colville Reservation voted against the application of
14
the IRA, and soon after formed the Confederated Tribes of the Colville Reservation.
15
The Moses-Columbia are members of the Confederated Tribes.
16
Application of the Act of June 15, 1935 to the Moses Allotments
17
It is disputed whether the Act of June 15, 1935 extended the trust period of the
18
Moses Allotments. Plaintiffs and Wapato Heritage argue that the statute does not
19
apply and, as such, the Moses Allotments fell out of trust on March 8, 1936, the
20
expiration date set by the last executive order extending their trust period.
21
1 The Court must engage in statutory interpretation to decide if the Act of June
2 15, 1935 applies to the Moses Allotments, including MA-8. When courts interpret a
3 statute, if “the statutory language provide[s] a clear answer,” then the court’s task
4 “comes to an end.” Woods v. Carey, 722 F.3d 1177, 1180–81 (9th Cir. 2013)
5 (quoting United States v. Harrell, 637 F.3d 1008, 1010 (9th Cir. 2011) (citation
6 omitted)). However, when “the statute’s terms are ambiguous, [] [the court] may use
7 canons of construction, legislative history, and the statute’s overall purpose to
8 illuminate Congress’s intent.” Id. at 1181 (quoting Jonah v. Carmona, 446 F.3d
9 1000, 1005 (9th Cir. 2006)). “A statute is ambiguous if it ‘gives rise to more than
10 one reasonable interpretation.’” Id. (quoting DeGeorge v. U.S. Dist. Ct. for Cent.
11 Dist. of Cal., 219 F.3d 930, 939 (9th Cir. 2000) (citation omitted)). “The purpose of
12 statutory construction is to discern the intent of Congress in enacting a particular
13 statute.” Pacific Coast Federation of Fishermen’s Associations v. Glaser, 945 F. 3d
14 1076, 1083 (9th Cir. 2019) (quoting Robinson v. United States, 586 F.3d 683, 686
15 (9th Cir. 2009) (citation omitted)).
16 Additionally, while the standard principles of statutory construction apply
17 here, the Supreme Court has explained that they “do not have their usual force in
18 cases involving Indian law.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,
19 766 (1985). “The canons of construction applicable in Indian law are rooted in the
20 unique trust relationship between the United States and the Indians.” Id. (quoting
21 Oneida Cty. v. Oneida Indian Nation, 470 U.S. 226, 247 (1985)). One relevant
1 Indian law canon of construction is that “statutes are to be construed liberally in
2 favor of the Indians, with ambiguous provisions interpreted to their benefit.” Id.
3 (citing McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 174 (1973); Choate v.
4 Trapp, 224 U.S. 665, 675 (1912)).
5 The Court begins with the language of the statute. The statute’s trust
6 extension applies to the broad category of “any Indian land” that satisfies the
7 statute’s two conditions. Neither the statute itself nor the IRA provides a definition
8 of the term “Indian land.” 8 However, the Government clearly considered the Moses
9 Allotments to be “Indian land” in 1935. At that time, the Moses Allotments were
10 recognized as Indian “reservation” land by the Government, were associated with
11 the Moses Band of Indians, were administered from the Colville Agency, and were
12 held in trust for the Indian allottees. Additionally, the Moses Allotments’ trust
13 period had been extended by two executive orders. Thus, on its face, the broad
14
15
8 The IRA, which the 1935 Act amended, did not apply to “Indian holdings of
16 allotments or homesteads upon the public domain outside the geographic boundaries
of any Indian reservation . . . .” 25 U.S.C. §5111. One could argue that this
17
restriction on the IRA’s applicability should be used to inform the 1935 Act’s use of
the term “Indian Land,” limiting the term’s definition to exclude public domain, or
18
homestead allotments located outside the geographic boundaries of a reservation.
19 Even accepting that argument, for reasons this Court already has explained, the
Moses Allotments were reservation allotments, not “holdings of allotments or
20 homesteads upon the public domain.” Accordingly, this provision does not help
answer the question of whether the 1935 Act applies to the Moses Allotments.
21
1 statutory phrase “any Indian land” contemplates reservation allotments such as the
2 Moses Allotments.
3 Next, the Court turns to the two conditions that the “Indian land” must meet
4 for the Act’s trust period extension to apply. Pursuant to the Act, the trust period on
5 “any Indian land” was extended if:
6 (1) “the period of trust or restriction . . . ha[d] not, before the passage
of th[e] Act, been extended to a date subsequent to December 31,
7 1936,” and
8 (2) “if the reservation containing such lands ha[d] voted . . . to exclude
itself from the application of the [IRA].”
9
Act of June 15, 1935, 74 Pub. L. 147, 49 stat. 378 (1935) (filed at ECF No. 234-10).
10
With respect to the first condition, the Moses Allotments’ trust period would
11
have expired on March 8, 1936, pursuant to President Coolidge’s 1926 executive
12
order. Thus, the first condition is applicable to the Moses Allotments; the trust
13
period on the Moses Allotments would have expired prior to December 31, 1936.
14
The Court now turns to the language of the second condition, which states that
15
the trust period on any Indian lands will be extended “if the reservation containing
16
such lands has voted . . . to exclude itself from the application of the [IRA].” Read
17
in context with the remainder of the statute, the condition that the “reservation
18
containing” Indian land must “vote[]” implies that “any Indian land” would have
19
been “contain[ed]” by a reservation with a form of tribal entity that had the power to
20
21
1 vote on the IRA’s applicability. However, that is not the case with respect to the
2 Moses Allotments, given their unique history.
3 While the U.S. Government consistently acknowledged the Moses Allotments
4 as “Moses Band” reservation or “Columbia” reservation land, it is also clear that the
5 land was made up entirely of reservation allotments; the rest of the Columbia
6 Reservation had been restored to the public domain long before Congress passed the
7 IRA or the 1935 Act. By nature of being allotted land, the Moses Allotments were
8 held in trust for individuals.
9 Moreover, the band with which the Government associated those individual
10 allottees resided on the Colville Reservation. While the Tribes on the Colville
11 Reservation voted against the application of the IRA, it appears that the Secretary of
12 the Interior did not facilitate any vote on the Moses Allotments, in which the
13 allottees could vote separately regarding the trust status of those reservation
14 allotments in particular.
15 Wapato Heritage argues that the plain language of the statute cannot apply to
16 the Moses Allotments because the Moses Allotments are not geographically
17 “contain[ed]” by a reservation that voted to exclude itself from the IRA. Similarly,
18 Wapato Heritage further maintains that, to the extent that the Colville Tribes voted
19 to exclude themselves from the IRA, that vote does not apply to the Moses
20 Allotments because the allotments are not geographically “contain[ed]” by the
21 Colville Reservation.
1 On the other hand, the CTCR maintain that the Colville Tribes’ vote to
2 exclude themselves from the IRA extends to the Moses Allotments, because the
3 allottees living on the Moses Allotments were members of the Colville Tribes and
4 would have voted with the Colville Tribes. The CTCR explain:
5 MCR [Moses Columbia Reservation] allotment Indians were and are
members of the Colville Tribe and were so enrolled at the time of the
6 IRA and the 1935 Act. [] Because the MCR allotments are reservation
and the Colville Tribes voted against the IRA, the 1935 Act’s trust
7 extension applies.
8 ECF No. 316 at 2–3. The CTCR have provided documentation showing that at least
9 some of the Indians on the Moses Allotments enrolled in the Colville Tribes prior to
10 the Colville IRA vote in 1935. See ECF No. 316-4.
11 Due to the complex history surrounding the Moses Allotments, the Court finds
12 that it is unclear from the language of the 1935 Act whether the trust extension
13 would have applied to reservation allotments like the Moses Allotments, where: (1)
14 the only reservation land remaining was allotted to individual Indians, and (2) the
15 tribal entity with which the Government associated those individual Indians lived on
16 a separate reservation, and would have voted on the IRA’s applicability on that
17 separate reservation. In light of the parties’ competing interpretations of the 1935
18 Act’s language, and the lack of guidance or definitions provided by the text of the
19 statute, the Court finds that the statute is ambiguous.
20
21
1 When a statute’s language is ambiguous, the court may turn to canons of
2 construction, the legislative history, and the statute’s overall purpose, to determine
3 what Congress intended when it passed the statute. Woods, 722 F.3d at 1180–81.
4 The Court begins with the relevant Indian law canon of construction, requiring
5 that “statutes [] be construed liberally in favor of the Indians, with ambiguous
6 provisions interpreted to their benefit.” See Montana v. Blackfeet Tribe of Indians,
7 471 U.S. at 766. This canon supports the CTCR’s and the Government’s liberal
8 reading of the statute because that reading results in the preservation of the Moses
9 Allotments’ trust status. No court ever has found that Indian land losing its trust
10 status, thus becoming taxable, freely alienable to non-Indians, and otherwise losing
11 its status as Indian land, is beneficial to the Indians. That idea would run contrary to
12 the trust relationship, and the canon itself.
13 Moreover, in this case, many of the allottee Defendants have submitted signed
14 statements which uniformly maintain: “The MA-8 Allottees affirm and support the
15 9th Cir. 2011 decision in Wapato Heritage, LLC v. United States, that the MA-8
16 Master Lease expired in 2009 and that the ‘United States holds MA-8 in trust.’”
17 See, e.g., ECF No. 475. The Indian law canon of construction requiring the Court to
18 liberally construe statutes in favor of the Indians demands finding that the 1935 Act
19 applies to the Moses Allotments.
20 However, out of an abundance of caution, the Court also has considered the
21 legislative history and overall purpose of the 1935 Act, to determine whether
1 Congress intended reservation allotments like the Moses Allotments to be excluded
2 from the Act’s trust period extension. Prior to the 1935 Act, Mr. Collier,
3 Commissioner of Indian Affairs, addressed the House Committee on Indian Affairs
4 regarding the purpose of the Act. He explained the importance of keeping Indian
5 land in trust so that it would not be alienated to non-Indians, through voluntary or
6 forced sale. On behalf of the BIA, Mr. Collier testified in favor of the 1935 Act,
7 stating:
8 Our view is that the Indian lands should remain tax exempt for a good
while; I do not say that they should remain so forever, but for a long
9 time to come the Indian lands should remain tax exempt and the
Government should continue to render useful services to the Indian.
10 The Government should provide schools, health facilities, and so forth,
for them.
11
We believe that insofar as practicable control of Indian property should
12 be given to the Indians. We shall continue to seek to do that.
13 We do not, however, wish to see the trust period terminated because,
first, they then face taxation and in the second place, it means power to
14 alienate. We believe that the destiny of the Indian is a destiny on his
land and that he ought to keep it.
15
ECF No. 313-2 at 2.
16
As Mr. Collier testified, maintaining trust status on Indian lands was
17
imperative because, without it, land could be sold voluntarily to non-Indians, further
18
reducing Indian landholdings across the United States. Additionally, as Mr. Collier
19
explained, non-trust land was subject to taxation. Frequently, Indians who could not
20
afford to pay taxes on their allotments would lose them, either through voluntary or
21
1 forced sale. See Chase v. McMasters, 573 F.2d 1011, 1016 (8th Cir. 1978) (citing
2 78 Cong. Rec. 11726 (1934) (remarks of Rep. Howard)).
3 In addition to promoting tribal self-governance, protecting the trust status of
4 Indian land was a primary purpose of the IRA, which the 1935 Act amended. As
5 described supra, the IRA famously ended the allotment era and extended the trust
6 period on a vast amount of Indian land indefinitely. See 25 U.S.C. §§ 5101 and
7 5102. Provisions of the IRA that protected Indian trust land were “[p]erhaps the
8 most important and effective provision[s] of the Indian Reorganization Act.” See
9 Canby at 26.
10 The 1935 Act, when read in conjunction with the IRA, provided further
11 reassurance that Indian land would not fall out of trust. Indeed, the 1935 Act served
12 as a gap-filler, ensuring that, even if Indians voted against the IRA, the trust status of
13 their land would be protected at least until December 31, 1936. It was the BIA’s
14 contemporaneous view that the 1935 Act extended the trust period on “all Indian
15 lands outside of Oklahoma which would have otherwise expired” prior to December
16 31, 1936. ECF No. 307-4 at 5.
17 Nothing in the legislative history suggests that Congress intended to exclude
18 reservation allotments such as the Moses Allotments from the trust period extension
19 provided by the 1935 Act due to the fact that the allotments were not geographically
20 “containe[ed],” or bounded, by the voting reservation. Moreover, to find that the
21 Moses Allotments should be excluded from the trust period extension would run
1 contrary to one of the fundamental purposes of the 1935 Act and the IRA, which was
2 to protect and continue the trust status of “any Indian land.” Thus, the legislative
3 history and overall purpose of the statute support the CTCR’s broader reading of the
4 1935 Act.
5 Notably, the CTCR’s reading also comports with the BIA’s interpretation, as
6 issued in an Appendix to the 1949 Code of Federal Regulations. While it appears
7 that the Secretary of the Interior did not hold a vote on the Moses Allotments
8 specifically, the BIA concluded in an Appendix to the Code of Federal Regulations
9 that the “Chief Moses Band” Reservation, comprised of the Moses Allotments, was
10 a “reservation . . . not subject to the benefits of such indefinite trust or restricted
11 period extension” provided by the IRA. LIST OF FORMS, 25 CFR 1949 367–70
12 (Appendix—Extension of the Trust or Restricted Status of Certain Indian Lands)
13 (filed at ECF No. 307-5 at 4). The BIA further concluded that the 1935 Act applied
14 to the Chief Moses Band Reservation, thus extending the trust period to December
15 31, 1936. Id.
16 Ever since the BIA issued trust patents for the Moses Allotments, the BIA has
17 treated the Moses Allotments as trust land, and Congress has not interfered.
18 Congress has even ratified the trust status of MA-8. Indeed, Congress
19 acknowledged that MA-8 is trust land as recently as 2006, when it amended the
20 Indian Long-Term Leasing Act to add MA-8 to the list of Indian trust lands that
21 could be leased by their owners for 99 years. Act of May 12, 2006, 109 Pub. L. 229,
1 120 Stat. 340 (2006). Congress ratifies an agency’s interpretation or practice when
2 it is aware of that interpretation or practice, legislates in an area covered by that
3 interpretation or practice, and does not refer to or change that interpretation or
4 practice. See San Huan New Materials High Tech v. ITC, 161 F.3d 1347 (9th Cir.
5 1999); see also Stratman v. Leisnoi, Inc., 545 F.3d 1161, 1171–72 (9th Cir. 2008).
6 “[A]bsent some special circumstance [Congress’s] failure to change or refer to [an
7 agency’s] existing practices is reasonably viewed as ratification thereof.” 161 F.3d
8 1347 (9th Cir. 1999). Since the passage of the 1934 Act, the Executive and
9 Congress continually have treated MA-8 as trust land.
10 For the foregoing reasons, the Court finds that the legislative history and
11 overall purpose of the 1935 Act and the IRA, which the Act amended, reflect
12 Congress’s clear intent to preserve the trust status of any reservation land, including
13 reservation allotments like the Moses Allotments. To the extent that there is any
14 doubt that MA-8 remains in trust, Congress ratified the BIA’s treatment of MA-8 as
15 Indian trust land as recently as 2006.
16 Post-1935 Trust Period Extensions
17 Since the 1935 Act, the trust period for the Moses Allotments has been
18 extended periodically through the present day. See Exec. Order 7464 (Sept. 30,
19 1936) printed in Charles J. Kappler, Indian Affairs Laws and Treaties, Vol. V at
20 643) (filed at ECF No. 234-11); Appendix—Extension of the Trust or Restricted
21 Status of Certain Indian Lands, 25 Fed. Reg. 13688–89 (Dec. 24, 1960) (filed at
1 ECF No. 234-13); Appendix—Extension of the Trust or Restricted Status of Certain
2 Indian Lands, 28 Fed. Reg. 11630-31 (Oct. 31, 1963) (filed at ECF No. 234-14);
3 Appendix—Extension of the Trust or Restricted Status of Certain Indian Lands, 33
4 Fed. Reg. 15067 (Oct. 9, 1968) (filed at ECF No. 234-15); Appendix—Extension of
5 the Trust or Restricted Status of Certain Indian Lands, 38 Fed. Reg. 33463–64 (Dec.
6 14, 1973) (filed at 234-16); Appendix—Extension of the Trust or Restricted Status
7 of Certain Indian Lands, 43 Fed. Reg. 58368–69 (Dec. 14, 1978) (filed at ECF No.
8 234-17); Extension of the Trust or Restricted Status of Certain Indian Lands, 48 Fed.
9 Re. 34026 (July 27, 1983) (filed at ECF No. 234-18); Extension of the Trust or
10 Restricted Status of Certain Indian Lands, 53 Fed. Reg. 30673–74 (Aug. 15, 1988)
11 (filed at ECF No. 234-19). Most recently, Congress enacted legislation that
12 comprehensively extended the trust period indefinitely for “all lands held in trust by
13 the United States for Indians.” 25 U.S.C. §5126.
14 The Court concludes that MA-8 is Indian land held in trust by the United
15 States for the benefit of the allottees. Accordingly, the Court rejects Plaintiffs’ and
16 Wapato Heritage’s argument that the Government lacks standing to assert a trespass
17 counterclaim against Plaintiffs.
18 II. Plaintiffs’ Motion for Default Judgment against Certain Individual
Allottee Defendants
19
Plaintiffs have moved for default judgment against certain, non-appearing
20
allottee Defendants. Obtaining a default judgment is a two-step process. See Fed.
21
1 R. Civ. P. 55. First, “when a party against whom a judgment for affirmative relief is
2 sought has failed to plead or otherwise defend . . . the clerk must enter the party’s
3 default.” Fed. R. Civ. P. 55(a). Second, once the clerk has entered default against a
4 party, the moving party may seek default judgment. See Fed. R. Civ. P. 55(b). Once
5 the clerk enters default against a party, the well-pleaded allegations of the complaint
6 are taken as true, except for allegations related to damages. See Geddes v. United
7 Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). The decision to grant default
8 judgment lies within the discretion of the trial court. PepsiCo. Inc. v. Cal Sec. Cans,
9 283 F. Supp.2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d
10 915, 924–25 (9th Cir. 1986)).
11 Generally, “default judgments are disfavored; cases should be decided upon
12 their merits whenever reasonably possible.” Westchester Fire Ins. Co. v. Mendez,
13 585 F.3d 1183, 1189 (9th Cir. 2009). In deciding whether default judgment is
14 appropriate, district courts consider the following factors:
15 (1) The possibility of prejudice to the plaintiff;
16 (2) The merits of the plaintiff’s substantive claim;
17 (3) The sufficiency of the complaint;
18 (4) The sum of money at stake in the action;
19 (5) The possibility of a dispute concerning material facts;
20 (6) Whether the default was due to excusable neglect; and
21 (7) The strong public policy underlying the Federal Rules of Civil Procedure
1 favoring decision on the merits.
2 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). While the Ninth Circuit
3 has instructed district courts to consider these factors when exercising their
4 discretion, courts may not grant default judgment against a defendant if the
5 plaintiff’s claims are legally insufficient. See Cripps v. Life Ins. Co. of North
6 America, 980 F.2d 1261, 1267 (9th Cir. 1992) (explaining that “claims which are
7 legally insufficient [] are not established by default”).
8 A. Equitable Estoppel as an Independent Cause of Action
9 The Government and the CTCR have argued that Plaintiffs’ estoppel claim
10 against the individual allottee Defendants is not legally cognizable under
11 Washington law.9 They argue that equitable estoppel is only cognizable as a
12 defense, not as a cause of action. Accordingly, they maintain that default judgment
13 is inappropriate here because Plaintiffs’ claim against the allottees is legally
14 insufficient. Plaintiffs respond that under Washington law they may assert equitable
15 estoppel as a cause of action, not just as a defense. The Court assumes arguendo,
16
17
9 There is also a dispute as to whether Washington law applies to Plaintiffs’ claim
18
against the individual allottees. See ECF No. 469 at 12. Because the Court’s
19 decision regarding Plaintiffs’ claim against the individual allottees does not depend
on resolving that issue, the Court assumes for the purposes of this Order, without
20 finding, that Plaintiffs may assert a state law claim against the individual allottee
Defendants.
21
1 without finding, that Washington law may be applied against the allottees in this
2 case.
3 At one time, it was an open question under Washington law as to whether a
4 plaintiff could assert equitable estoppel as an affirmative cause of action. The
5 Washington State Supreme Court left the possibility open in Chemical Bank v.
6 Washington Public Power Supply System, refusing to rule on the issue. 691 P.2d
7 524, 541 (Wash. 1984); see also DigiDeal Corp. v. Kuhn, No. 2:14-CV-227-JLQ,
8 2015 WL 5477819, at *3 (E.D. Wash. Sept., 6, 2015) (explaining after a
9 consideration of Washington law that “the court cannot say equitable estoppel fails
10 as an independent cause of action”). However, since then, Washington case law has
11 developed, and now it is clear that equitable estoppel may not be asserted as an
12 affirmative cause of action; in other words, equitable estoppel must be used as a
13 “shield,” not a “sword.” Sloma v. Wash. State Dep’t. of Retirement Systems, 459
14 P.3d 396, 406 (Wash. Ct. App. 2020) (“More importantly, equitable estoppel is not
15 available for use as a “sword,” or cause of action.”); Byrd v. Pierce Cty., 425 P.3d
16 948, 952–55 (Wash. Ct. App. 2018) (discussing cases and explaining that equitable
17 estoppel is a defense, not a separate action in equity) (citing Motely-Motley, Inc. v.
18 State, 110 P.3d 812, 818 (Wash. Ct. App. 2005)).
19 Plaintiffs argue that they are not using their cause of action affirmatively, or as
20 a “sword,” against the individual allottees. They maintain, “Plaintiffs seek a
21 defensive application—to estop the Allottees from taking a position inconsistent
1 with their prior acts and omissions—like that endorsed [by Washington courts].”
2 ECF No. 483 at 9. Plaintiffs argue that their cause of action is “defensive” because
3 it does not “compel the allottees to do anything.” Id. This argument makes little
4 sense. The individual allottees have not asserted any counterclaims against
5 Plaintiffs. With respect to the individual allottee Defendants, Plaintiffs have nothing
6 against which to defend. They have no use for a shield.
7 Recent Washington precedent is clear that equitable estoppel is not a legally
8 cognizable cause of action. Sloma, 459 P.3d at 406; Byrd, 425 P.3d at 952–955.
9 Accordingly, even assuming arguendo that Washington law applies, Plaintiffs’
10 Motion for Default Judgment is denied for failure to plead a cognizable claim
11 against the defaulting Defendants.
12 B. Eitel Factors
13 Moreover, even if Plaintiffs’ claim were legally cognizable, the Eitel factors
14 weigh heavily against granting Plaintiffs’ Motion for Default Judgment. With
15 respect to the first Eitel factor, Plaintiffs have not adequately explained the prejudice
16 that they will encounter if the Court refuses to enter default judgment. Other
17 similarly situated individual allottee Defendants have appeared in this action, and the
18 case is proceeding on the merits with respect to those Defendants. Additionally, as
19 Plaintiffs have put it, their equitable estoppel claim does not “compel the allottees to
20 do anything.” Therefore, it is not clear that Plaintiffs will suffer any prejudice if the
21
1 Court refuses to grant their Motion for Default Judgment. Accordingly, the first
2 Eitel factor weighs against entering default judgment.
3 Similarly, the fifth Eitel factor, which considers the possibility of a dispute
4 concerning material facts, weighs against granting Plaintiffs’ Motion for Default
5 Judgment. Again, other similarly situated Defendants have appeared to defend this
6 case. Because some allottees have appeared to defend against Plaintiff’s estoppel
7 claim, there is a possibility of dispute concerning material facts.
8 The sixth Eitel factor also weighs against entry of default judgment, as the
9 individual allottees’ failure to appear in this case constitutes excusable neglect. The
10 Government holds MA-8 in trust for the allottees. Several of the defaulting allottees
11 have signed and submitted a form response to the instant motion, which states that
12 they did not appear in this action because they understood the United States to
13 represent their collective interest in MA-8. The form response appears to have been
14 circulated by allottee Defendants Marlene Marcellay, Darlene Marcellay-Hyland,
15 and Maureen Marcellay to the remaining MA-8 allottees. See ECF Nos. 475–480.
16 That response states:
17 The MA-8 Allottees assert that many of the MA-8 Allottees assumed
their interest and representation in the MA-8 legal proceedings were
18 being managed by the BIA as “trustee” to the MA-8 Allottees, and
therefore, did not respond to court proceedings resulting in default []
19 against non-appearing MA-8 allottees/defendants. The non-appearing
Allottees identified by the Court, and who have signed this document,
20 now wish to affirm and assert their support of the declaration contained
in this document . . . .
21
1 See ECF Nos. 475–80. Because MA-8 is trust land, the Court finds that the MA-8
2 allottees may have reasonably believed that they did not need to respond to
3 Plaintiffs’ Complaint after the Government had appeared in its trust capacity.
4 Therefore, the sixth Eitel factor weighs against entry of default judgment.
5 Finally, for the reasons explained above, the seventh Eitel Factor, which
6 considers the strong public policy underlying the Federal Rules of Civil Procedure
7 favoring decisions on the merits, weighs against entering default judgment. Upon
8 consideration of the Eitel factors, the Court finds that default Judgment is not
9 appropriate, even if Plaintiffs’ claim against the defaulting Defendants were legally
10 cognizable, which it is not.
11 III. Plaintiffs’ Motion for Summary Judgment against Certain Individual
Allottees
12
13 Plaintiffs have moved for summary judgment against nine allottee Defendants
14 who did not respond to Plaintiffs’ requests for admission (“RFAs”). They argue
15 that, pursuant to Federal Rule of Civil Procedure 36(a)(3), the non-responding
16 allottee Defendants have admitted to the matters contained in the RFAs by failing to
17 respond. Therefore, Plaintiffs assert that the non-responding Defendants have
18 admitted facts proving that those Defendants are “equitably, collaterally, or
19 otherwise estopped from denying the Plaintiffs their right to occupy and use the Mill
20 Bay Resort until February 2, 2034.” ECF No. 439 at 2.
21
1 A court may grant summary judgment where “there is no genuine dispute as
2 to any material fact” of a party’s prima facie case, and the moving party is entitled to
3 judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
4 477 U.S. 317, 322–23 (1986). When the moving party will have the burden of proof
5 at trial, she must demonstrate on summary judgment that no reasonable trier of fact
6 could find other than for her. Ryan v. Zemanian, 584 Fed. App’x. 406, 406 (9th Cir.
7 2014) (citing Celotex Corp., 477 U.S. at 232).
8 As explained above, assuming arguendo that state law applies to Plaintiffs’
9 claims against the individual allottee Defendants, Plaintiffs’ estoppel claim is not
10 legally cognizable because equitable estoppel is not an affirmative cause of action
11 under Washington law. Sloma, 459 P.3d at 406; Byrd, 425 P.3d at 952–955.
12 Therefore, Plaintiffs are not entitled to judgment as a matter of law on that claim.
13 Plaintiffs’ motion for summary judgment fails for that reason alone.
14 However, even if the claim were valid under Washington law, the Court finds
15 that Plaintiffs’ RFAs were untimely, and thus cannot support Plaintiffs’ motion for
16 summary judgment. See ECF No. 272 at 2 (Scheduling Order); see also Baxter
17 Bailey & Associates v. Ready Pac Foods, Inc., Case No. CV 18-08246 AB (GJSx),
18 2020 WL 1625257, at *1 (C.D. Cal. Feb. 26, 2020) (explaining that Defendants were
19 not obligated to respond to untimely discovery requests, and their failure to respond
20 could not be used by Plaintiffs to create an issue of material fact precluding
21 summary judgment); Dinkins v. Bunge Mill., Inc., 313 Fed. Appx. 882, 884 (7th Cir.
1 2009) (finding that a party need not respond to requests for admission when “the
2 requests for admissions were mailed only nine days before the close of discovery”).
3 Defendants did not have an obligation to respond to untimely discovery requests.
4 See id.
5 Plaintiffs argue that, pursuant to this Court’s prior Scheduling Order, their
6 RFAs were timely. The Scheduling Order at ECF No. 272 established deadlines for
7 discovery related to the Government’s Motion for Summary Judgment re Ejectment
8 only. Plaintiffs contend that their RFAs were not propounded for the purpose of
9 responding to the Government’s Motion for Summary Judgment re Ejectment.
10 However, Plaintiffs’ own briefing belies that claim. For example, Plaintiffs’ instant
11 Motion for Summary Judgment, which relies entirely on the unanswered RFAs,
12 asserts, “At the very least, the Allottees’ admissions create issue of fact precluding
13 the MSJ re ejectment.” ECF No. 483 at 8 and 9.
14 Moreover, Plaintiffs’ Motion for Summary Judgment, based upon the
15 unanswered RFAs, was submitted on the parties’ deadline to file supplemental
16 briefing related to the Government’s Motion for Summary Judgment re Ejectment.
17 Considering the briefing, the record, and the nature of the remaining claims, the
18 purpose of the RFAs appears to be an attempt to create issues of material fact
19 precluding the Government’s Motion for Summary Judgment re Ejectment.
20 Therefore, the Court finds that the RFAs are discovery related to the Government’s
21
1 Motion for Summary Judgment re Ejectment, filed in 2012, which is governed by
2 this Court’s prior Scheduling Order.
3 The Court’s Scheduling Order required Plaintiffs to serve RFAs “sufficiently
4 early that all responses [were] due before the discovery deadline” of November 1,
5 2012. ECF No. 272 at 2. Because Plaintiffs served the RFAs via mail on October 1,
6 2012, and because November 3, 2012 was a Saturday, the responses would have
7 been due on November 5, 2012. See Fed. R. Civ. P. 6(a)(2) and (d); ECF No. 296-1
8 at 59–60. Accordingly, the RFAs were untimely and cannot be used now against the
9 non-answering allottee Defendants.
10 Finally, even if (1) the Court deemed the unanswered RFAs admitted, which it
11 does not, and (2) found that equitable estoppel was a viable affirmative cause of
12 action under Washington law, which it does not, Plaintiffs’ Motion for Summary
13 Judgment on its equitable estoppel claim still fails. Pursuant to Washington law, the
14 elements of equitable estoppel are:
15 (1) a party’s admission, statement, or act inconsistent with its
later claim;
16
(2) action by another party in reliance on the first party’s act,
17 statement or omission; and
18 (3) injury that would result to the relying party from allowing
the first party to contradict or repudiate the prior act,
19 statement or omission.
20 Kramarevicky v. Dep’t of Soc. & Health Servs., 863 P.2d 535, 538 (1993).
21
1 The Court finds that the RFAs, even if deemed admitted, do not support the
2 third prong of an equitable estoppel claim, nor does any other evidence on the
3 record. Specifically, the unanswered RFAs do not support the contention that
4 “injury will result” to Plaintiffs if the non-responding allottees are permitted to
5 “contradict or repudiate the prior act, statement, or omission.” See id. Plaintiffs
6 assert, “[I]t is undisputed that Plaintiffs will be injured if Non-Responding Allottees
7 are permitted now to deny Plaintiffs the right to occupy MA-8 until 2034 . . . .”
8 However, Plaintiffs have not connected the dots with reasoning, law, or evidence. It
9 is not clear how nine individual allottees could approve or deny Plaintiffs’ use of
10 MA-8, such that their positions would have any impact on the outcome of this case,
11 when there are many more allottees involved, as well as the Federal Defendants.
12 As explained in greater detail below, because MA-8 is Indian trust land, use of
13 MA-8 is governed by extensive federal regulations. Pursuant to those regulations,
14 the Government generally may remove trespassers from fractionated allotments
15 without first obtaining majority consent from the allottees. While there are
16 regulations in place to protect allottee interests, in this case, whether nine individual
17 allottees support the Government’s treatment of Plaintiffs as trespassers is not
18 causally connected to the Plaintiffs’ alleged harm: removal from MA-8 by the
19 Government. Put another way, even if the Court granted Plaintiffs’ motion, thus
20 forbidding the non-responding Indian allottees from challenging Plaintiffs’ use of
21
1 their land for the next fourteen years, the Government still could seek the ejectment
2 of Plaintiffs in its role as trustee.
3 Accordingly, Plaintiffs have not provided any evidence to support the third
4 prong of estoppel against the allottees, specifically that injury will result if the Court
5 refuses to estop the non-responding allottees. Therefore, even accepting arguendo
6 the premise of Plaintiffs’ Motion for Summary Judgment, Plaintiffs are not entitled
7 to judgment as a matter of law on their estoppel claim against the non-responding
8 allottee Defendants.
9 For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is
10 denied.
11 IV. Defendants’ Motion for Summary Judgment re Ejectment
12 The Government has asserted a counterclaim of trespass against Plaintiffs and
13 renewed their motion for summary judgment on that claim, thereby seeking
14 ejectment of Plaintiffs from MA-8. As this Court already has explained, Federal
15 common law allows the Government to bring this trespass claim, acting in its
16 sovereign capacity as trustee, to remove trespassers from Indian land. See United
17 States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n.8 (9th Cir. 1994).
18 A. Consent of Allottees
19 Plaintiffs argue that the Government has “no authority to eject Plaintiffs from
20 the property absent the express consent of a majority of the Allottees—which is now
21 impossible to obtain.” ECF No. 438 at 12 (emphasis in original). First, the Court
1 notes that Plaintiffs do not explain why it is now impossible for the Government to
2 obtain consent of the landowners. However, more importantly, Plaintiffs cite
3 absolutely no authority for their assertion that the Government must receive “express
4 consent” from a majority of MA-8 allottees to proceed with this action, which seeks
5 to eject an individual and a Washington State nonprofit corporation from Indian trust
6 land.
7 The CTCR’s briefing, on the other hand, directs the Court to relevant law,
8 citing regulations that govern the BIA’s management of leases on allotted land.
9 Specifically, the CTCR cite 25 C.F.R. § 162.023, which describes what the BIA will
10 do when an individual or entity takes possession or use of Indian land, without a
11 valid lease:
12 If an individual or entity takes possession of, or uses, Indian land
without a lease and a lease is required, the unauthorized possession or
13 use is a trespass. We may take action to recover possession, including
eviction, on behalf of the Indian landowners and pursue any additional
14 remedies available under applicable law. The Indian landowners may
pursue any available remedies under applicable law.
15
25 C.F.R. § 162.023. Plaintiffs have cited no law, and the Court has found none,
16
that requires the Government to obtain consent from a majority of the allottees
17
before removing trespassers from a highly fractionated allotment.
18
Importantly, this contrasts with the Government’s responsibilities when
19
approving a lease of highly fractionated trust land. When more than twenty allottees
20
share an interest in a given allotment, the BIA must obtain majority consent before
21
1 approving any lease of that land. 25 C.F.R. § 162.012. Notably, it is undisputed that
2 the BIA had the requisite consent of the allottee landowners when it approved the
3 Master Lease in the 1980s.
4 Additionally, federal regulations provide that the BIA will not act to evict a
5 holdover tenant if “the Indian landowners of the applicable percentage of interests
6 under § 162.012 have notified [the BIA] in writing that they are engaged in good
7 faith negotiations with the holdover lessee to obtain a new lease.” 25 U.S.C. §
8 162.471. Thus, the regulations provide a mechanism for allottee landowners to stop
9 the eviction of holdover tenants, if the landowners want to negotiate a new lease
10 with the holdover tenants. In this case, it is undisputed that the landowners are not
11 presently engaged in discussions with Wapato Heritage, or with Plaintiffs directly,
12 about a new lease.
13 Plaintiffs and Wapato Heritage consistently, and quite emphatically, argue
14 that the Government cannot have it both ways; they claim that the Government
15 cannot maintain that allottee approval is required in some instances and not in
16 others. Again, Plaintiffs cite no law to support this assertion.
17 The relevant regulations explain when allottee consent is needed for the
18 Government to act. As stated above, here the regulations require the Government to
19 obtain majority consent to approve a new lease; the regulations do not require the
20 Government to obtain majority consent to eject trespassers. Accordingly, the Court
21
1 rejects Plaintiffs’ argument that the Government is somehow taking inconsistent
2 positions, or acting in bad faith, simply by complying with relevant regulations.10
3 B. The Government’s Trespass Counterclaim
4 The Court turns to the merits of the Government’s trespass claim, to
5 determine if the Government is entitled to summary judgment on that claim. The
6 trespass claim is governed by federal common law. Pend Oreille Public Util. Dist.
7 No. 1, 28 F.3d 1549 n.8 (explaining that federal law controls an action for trespass
8 on Indian land) (citing County of Oneida v. Oneida Indian Nation, 470 U.S. 226,
9 234 (1985) (right of Indians to occupy lands held in trust by the United States for
10 their use is “the exclusive province of federal law”)); see also 25 C.F.R. § 162.023
11 (What if an individual or entity takes possession of or uses Indian land without an
12 approved lease or other proper authorization?).
13 To prevail at the summary judgment phase on its trespass claim, the
14 Government must show that there are no genuine disputes of material fact, and that
15 it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex
16 Corp., 477 U.S. at 322–23. Because the Government would have the burden of
17
10 At the hearing, counsel for individual Defendant Gary Reyes asserted that the
18
Government had improperly approved a sale of his beneficial interest in MA-8 to the
19 CTCR. While the Court acknowledges the seriousness of Mr. Reyes’s allegation that
the Government did not fulfill its trust obligation with respect to the sale of his
20 beneficial interest in MA-8, Mr. Reyes’s claim is not related to the claims of this
case, which involve whether Plaintiffs have the right to occupy MA-8.
21
1 proof at trial on its trespass counterclaim, in order to succeed on summary judgment,
2 it must show that no reasonable trier of fact could find for Plaintiffs with respect to
3 that claim. Ryan, 584 Fed. App’x. at 406 (citing Celotex Corp., 477 U.S. at 232).
4 It is undisputed that Plaintiffs have no lease or express easement authorizing
5 their use of MA-8. Plaintiffs first gained access to MA-8 via their camping
6 memberships. These camping memberships are contracts between Plaintiffs and
7 Evans/Wapato Heritage. There is no evidence that Plaintiffs have an agreement
8 with the Government or the individual allottee Defendants to use or occupy MA-8.
9 Plaintiffs’ camping memberships gave them the right to use MA-8 consistent
10 with the Master Lease. The Ninth Circuit has held that the Master Lease expired as
11 of February 2, 2009. See Wapato Heritage, LLC, v. United States, 637 F.3d 1033,
12 1040 (9th Cir. 2011). While Wapato Heritage attempted to negotiate a new lease of
13 MA-8 at one point, it failed to do so.
14 There is no evidence demonstrating that the landowners have contacted the
15 BIA, consistent with 25 U.S.C. § 162.471, to inform the BIA that they are engaged
16 in good faith negotiations with Plaintiffs (or with Wapato Heritage) for a new lease.
17 It is undisputed that Plaintiffs are presently in possession of a portion of MA-8, and
18 that the allottees are out of possession, thereby unable to utilize that portion of MA-
19 8. The Government has met its burden to justify ejectment.
20
21
1 Plaintiffs have asserted numerous defenses in an attempt to preclude the
2 Government’s Motion for Summary Judgment on its trespass claim. The Court
3 addresses each defense in turn.
4 C. Plaintiffs’ Estoppel Defense
5 Plaintiffs raise the defense of equitable estoppel against the Government, to
6 prevent it from ejecting them. They claim that there are issues of material fact with
7 respect to their estoppel defense that prevent summary judgment in the
8 Government’s favor. However, the defense of equitable estoppel does not apply to
9 the Government when it acts in its sovereign capacity as trustee for Indian land. See
10 United States v. City of Tacoma, Wash., 332 F.3d 574 (9th Cir. 2003) (explaining
11 that the government “is not at all subject” to the defense of equitable estoppel when
12 acting as trustee of tribal land); United States v. Antanum Irr. Dist., 236 F.2d 321,
13 334 (9th Cir.) cert. denied 352 U.S. 988 (1957); State of New Mexico v. Aamodt, 537
14 F.2d 1102, 1110 (10th Cir. 1976) (explaining that “[e]stoppel does not run against
15 the United States when it acts as trustee for an Indian tribe).
16 Here, the Government is acting in its trust capacity by seeking the removal of
17 Plaintiffs from Indian trust land. Accordingly, Plaintiffs, as a matter of law, cannot
18 assert the defense of equitable estoppel to combat the Governments’ trespass claim.
19 Plaintiffs have attempted to get around this legal principle by asserting their
20 defense of equitable estoppel against the individual landowners directly, in addition
21 to the Government. However, the Government acting in its trust capacity has filed
1 the trespass counterclaim against Plaintiffs. Therefore, the defense raised against
2 individual landowners is not applicable to the Government’s counterclaim, as a
3 matter of law, and Plaintiffs do not create any issues of material fact by asserting the
4 defense.
5 D. Plaintiffs’ Irrevocable License and Easement by Estoppel Defenses
Raised in Plaintiffs’ 2012 Briefing
6
Plaintiffs also defend against the Government’s trespass claim by arguing that
7
they have an “irrevocable license” under Washington law to remain on the property
8
until 2034. This argument was raised in Plaintiffs’ briefing in 2012 and was not
9
argued during the 2020 hearing.
10
The concept of an “irrevocable license” is not well-developed in Washington
11
State, and Plaintiffs do little to explain how the concept has been applied by
12
Washington courts in their briefing. However, Plaintiffs maintain that their
13
purported irrevocable license may be better described as an easement by estoppel.
14
In raising their “irrevocable license” and “easement by estoppel,” defenses, Plaintiffs
15
essentially reassert their equitable estoppel claim, which the Court has rejected as a
16
matter of law.
17
Even if these state property law defenses should be evaluated separately from
18
Plaintiffs’ equitable estoppel claim against the Government, they still are not
19
applicable to this action, which is governed by federal law. As Cohen’s Handbook
20
explains, “Because Indian land claims are ‘exclusively a matter of federal law,’ state
21
1 property laws are preempted.” Cohen § 15.08[4] (citing County of Oneida v. Oneida
2 Indian Nation, 470 U.S.226, 241 (1985)). “This means, for example, that state
3 statutes of limitations and adverse possession doctrines do not apply to tribal lands.
4 In addition, other state-law based defenses to possessory claims, such as estoppel
5 and laches, are similarly preempted.” Id. (citing County of Oneida v. Oneida Indian
6 Nation, 470 U.S.226, 241 n.13 (1985)); see also United States v. Ahtanum Irr. Dist.,
7 236 F.2d 321 (9th Cir. 1956) (explaining that no defense of laches or estoppel was
8 available against the Government when the Government acted as trustee for an
9 Indian tribe); Seneca Nation of Indians, Tonawanda Bank of Seneca Indians v. New
10 York, No. 93–CV–688A, 1994 WL 688262, at *1 (W.D.N.Y. Oct. 24, 1994)
11 (striking the state-law defenses of accord, satisfaction, unclean hands, estoppel,
12 laches, and waiver because their assertion would “contravene established policy
13 pertaining to Indians’ ability to enforce their property rights”).
14 These defenses, which are grounded in state law, are inapplicable here.
15 Therefore, by asserting these defenses, Plaintiffs do not create any issues of material
16 fact that preclude summary judgment on the Government’s trespass counterclaim.
17 E. Plaintiffs’ Specific Performance Argument Raised in Plaintiffs’ 2012
Briefing
18
Plaintiffs also argue that summary judgment on the Government’s ejectment
19
counterclaim should be denied because Plaintiffs may be entitled to the equitable
20
remedy of specific performance on either their camping contracts or on the 2004
21
1 Settlement Agreement, thus allowing them to remain on MA-8 until 2034. Again,
2 Plaintiffs raised this argument in 2012 but did not address it at the hearing in 2020.
3 “Specific performance is an equitable remedy available to an aggrieved party
4 for breach of contract where there is no adequate remedy at law.” Kovanen v. FedEx
5 Ground Package Systems, Inc., 2:17-CV-00360-SMJ, 2018 WL 660634, at *2 (E.D.
6 Wash. Feb. 1, 2018) (quoting Egbert v. Way, 546 P.2d 1246, 1248 (Wash. Ct. App.
7 1976)). Plaintiffs argue that they may have an enforceable oral contract with the
8 individual allottee Defendants that entitles them to specific performance in this case.
9 Plaintiffs cite to Canterbury Shores Associates v. Lakeshore Properties, Inc.,
10 572 P.2d 742 (Wash. Ct. App. 1977), to argue that a court may enforce an oral
11 contract for the conveyance of an interest in real property under certain
12 circumstances, even though such a contract usually must be in writing pursuant to
13 the statute of frauds. ECF No. 295 at 19. In that case, the Washington Court of
14 Appeals explained that a court of equity may enforce a parol contract for the
15 conveyance of an interest in land when there has been part performance, and when
16 the contract can “be established by clear and unequivocal proof, leaving no doubt as
17 to the character, terms, and existence of the contract.” Canterbury Shores Assocs.,
18 572 P.2d at 744.
19 Here, Plaintiffs have produced no evidence of a contract between them and
20 the individual allottee Defendants. The contracts that Plaintiffs want to enforce,
21
1 which are their camping memberships and the 2004 Settlement Agreement, are
2 between them and Evans/Wapato Heritage, not the allottee Defendants.
3 Additionally, the Court notes the peculiar context in which Plaintiffs argue for
4 specific performance, as Plaintiffs did not bring any contract claim against the
5 individual allottee Defendants in this case. However, as the parties did not address
6 or argue this issue, the Court makes no findings as to whether Plaintiffs
7 appropriately raised their specific performance argument.
8 Because Plaintiffs have provided no evidence of a contract between them and
9 the individual allottee Defendants, their specific performance argument does not
10 preclude summary judgment on the Government’s trespass counterclaim.
11 None of Plaintiffs’ defenses raise issues of material fact precluding summary
12 judgment on the Government’s trespass counterclaim. Moreover, the undisputed
13 material facts illustrate that the Government is entitled to judgment as a matter of
14 law on that counterclaim.
15 Accordingly, IT IS HEREBY ORDERED:
16 1. For good cause shown, the individual Defendants’ Motion and
17 Memorandum Joining in the Federal Defendants’ Motion for Summary
18 Judgment re Ejectment, ECF No. 344, is GRANTED.
19 2. Plaintiffs’ Motion for Default Judgment, ECF No. 433, is DENIED.
20 3. Plaintiffs’ Motion for Summary Judgment, ECF No. 439, is DENIED.
21
1 4. The Government’s Renewed Motion for Summary Judgment re
2 Ejectment, ECF No. 231, is GRANTED.
3 5. Plaintiffs have had no right to occupy any portion of MA-8 after
4 February 2, 2009. Plaintiffs are in trespass, and their removal from the
5 subject property is authorized.
6 6. Judgment shall be entered for the Government (Federal Defendants) on
7 its trespass counterclaim.
8 IT IS SO ORDERED. The District Court Clerk is directed to enter this
9 Order and provide copies to counsel and pro se Defendants.
10 DATED July 9, 2020.
11
s/ Rosanna Malouf Peterson
12 ROSANNA MALOUF PETERSON
United States District Judge
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