The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SKOKOMISH INDIAN TRIBE, a federally
recognized Indian tribe in its own
capacity as a class representative
and as parens patriae; DENNY S.
HURTADO; GORDON A. JAMES; JOSEPH
PAVEL; ANNE PAVEL; MAURES P.
TINAZA; CELESTE F. VIGIL; ROSLYNNE
L. REED; GARY W. PETERSON; RITA
C. ANDREWS; TOM G. STRONG; MARIE
E. GOULEY; VICTORIA J. PAVEL;
DENNIS W. ALLEN; JOSEPH ANDREWS,
SR.; ZETHA CUSH; ELSIE M. ALLEN;
ALEX L. GOULEY, JR.; LAWRENCE L.
KENYON; DORIS MILLER; GERALD B.
MILLER; HELEN M. RUDY; RONALD D. No. 01-35028
TWIDDY, SR.; NICK G. WILBUR, SR., D.C. No.
Plaintiffs-Appellants, CV-99-05606-FDB
v.
UNITED STATES OF AMERICA; TACOMA
PUBLIC UTILITIES, a Washington
municipal corporation; CITY OF
TACOMA, a Washington municipal
corporation; WILLIAM BARKER,
Tacoma Public Utilities Board
Member in his official capacity; TOM
HILYARD, Tacoma Public Utilities
Board Member in his official
capacity; ROBERT LANE; TIM STREGE;
G. E. VAUGHN,
Defendants-Appellees.
2949
2950 SKOKOMISH INDIAN TRIBE v. UNITED STATES
SKOKOMISH INDIAN TRIBE, a federally
recognized Indian tribe in its own
capacity as a class representative
and as parens patriae; DENNY S.
HURTADO; GORDON A. JAMES; JOSEPH
PAVEL; ANNE PAVEL; MAURES P.
TINAZA; CELESTE F. VIGIL; ROSLYNNE
L. REED; GARY W. PETERSON; RITA
C. ANDREWS; TOM G. STRONG; MARIE
E. GOULEY; VICTORIA J. PAVEL;
DENNIS W. ALLEN; JOSEPH ANDREWS,
SR.; ZETHA CUSH; ELSIE M. ALLEN;
ALEX L. GOULEY, JR.; LAWRENCE L.
KENYON; DORIS MILLER; GERALD B.
MILLER; HELEN M. RUDY; RONALD D.
No. 01-35845
TWIDDY, SR.; NICK G. WILBUR, SR.,
Skokomish Indian Tribal members
for themselves and all others
D.C. No.
CV-99-05606-FDB
similarly situated, OPINION
Plaintiffs-Appellants,
v.
TACOMA PUBLIC UTILITIES, a
Washington municipal corporation;
CITY OF TACOMA, a Washington
municipal corporation; WILLIAM
BARKER, Tacoma Public Utilities
Board Member in his official
capacity; TOM HILYARD, Tacoma
Public Utilities Board Member in his
official capacity; ROBERT LANE; TIM
STREGE; G. E. VAUGHN; UNITED
STATES INTERNAL REVENUE SERVICE,
Defendants-Appellees.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2951
Appeals from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
March 23, 2004—San Francisco, California
Filed March 9, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Alex Kozinski, Pamela Ann Rymer, Susan P. Graber,
Ronald M. Gould, Richard A. Paez, Marsha S. Berzon,
Johnnie B. Rawlinson, Jay S. Bybee and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Graber;
Dissent by Judge Berzon
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2955
COUNSEL
Mason D. Morisset, Morisset, Schloser, Jozwiak & McGaw,
Seattle, Washington, for the plaintiffs-appellants.
Philip H. Lynch, Assistant United States Attorney, Tacoma,
Washington, for defendant-appellee the United States.
J. Richard Creatura, Gordon, Thomas, Honeywell, Melanca,
Peterson & Daheim, LLP, Tacoma, Washington, for
defendants-appellees the City of Tacoma and Tacoma Public
Utilities.
Philip E. Katzen, Kanji & Katzen, PLLC, Seattle, Washing-
ton, for the amici curiae.
OPINION
KOZINSKI, Circuit Judge:
Can an Indian tribe bring claims against the United States
under the Federal Tort Claims Act for violation of a treaty, or
against a city and a public utility under a treaty and 42 U.S.C.
§ 1983?
FACTS
The Skokomish Indian Tribe (“Tribe”) and its members
brought suit in federal district court against the United States,
the City of Tacoma (“City”) and Tacoma Public Utilities
(“TPU”), alleging harms caused by the Cushman Hydroelec-
tric Project (“Project”), a City-owned project comprised of
2956 SKOKOMISH INDIAN TRIBE v. UNITED STATES
two dams, two reservoirs, diversion works, two power houses
and transmission lines. The Project, completed in 1930, floods
over thirty acres of federal land in a total project area of 4700
acres located upstream from the Tribe’s land. The Project has
diverted the flow of the Skokomish River’s North Fork to
power-generating facilities and led to aggradation of the river.1
This has allegedly caused flooding of the Tribe’s reservation,
failure of septic systems, contamination of water wells, block-
ing of fish migration, damage to the Tribe’s orchards and pas-
tures and silting over of many of the Tribe’s fisheries and
shellfish beaches. The Tribe claims the Project has caused it
nearly $5 billion in losses.
The Tribe sued for damages resulting from the Project’s
impact on tribal lands and fisheries, alleging both state and
federal causes of action, including claims arising under the
Treaty of Point No Point (“Treaty”), Jan. 26, 1855, 12 Stat.
933. The Treaty ceded the Tribe’s territory to the United
States, but reserved a tract for the Tribe. It also reserved for
the Tribe “[t]he right of taking fish at usual and accustomed
grounds and stations . . . in common with all citizens of the
United States” and “the privilege of hunting and gathering
roots and berries on open and unclaimed lands.” Id., art. 4.
The district court dismissed the United States as a defen-
dant and granted summary judgment in favor of the City and
TPU on the treaty-based and state-law claims. The court also
dismissed the Tribe’s claim under 16 U.S.C. § 803(c) for fail-
ure to state a claim upon which relief could be granted. A
divided panel of our court affirmed, but held that the district
court should have dismissed the treaty-based claims for lack
of subject matter jurisdiction. We took the case en banc. Sko-
komish Indian Tribe v. United States, 358 F.3d 1180, 1181
(9th Cir. 2004).
1
Aggradation occurs when deposits of sediment cause the floor of the
river to build up over time, leading to flooding and elevated water tables.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2957
ANALYSIS
I. Claims Against the United States
A. Treaty-Based Claims
The Tribe seeks relief against the United States pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346.
The Tribe alleges that the United States violated its obliga-
tions under the Treaty by allowing continued operations of the
Project and by failing to take legal action on the Tribe’s
behalf or fund litigation, thereby breaching its fiduciary
responsibilities to the Tribe under the Treaty.
[1] These claims are not properly brought under the FTCA,
which authorizes suits against the United States
for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment,
under circumstances where the United States, if a
private person, would be liable to the claimant in
accordance with the law of the place where the act
or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added).2 The Tribe’s claims
against the United States are properly characterized not as tort
claims, but as claims that the United States violated its obliga-
tions under the Treaty. The claims are thus quite different
from those in cases like Berkovitz v. United States, 486 U.S.
531 (1988), and Indian Towing Co. v. United States, 350 U.S.
2
The FTCA also requires plaintiffs to exhaust their administrative reme-
dies before bringing suit. See McNeil v. United States, 508 U.S. 106, 112
(1993). The Tribe met this requirement by filing an administrative claim
for damages on September 22, 1997, which was rejected on November 20,
1997. See Amended Complaint at 32.
2958 SKOKOMISH INDIAN TRIBE v. UNITED STATES
61 (1955), on which the Tribe relies. In Berkovitz, a federal
agency allegedly acted tortiously in approving the release of
a polio vaccine that did not meet safety standards. In Indian
Towing, the Coast Guard acted negligently in its operation of
a lighthouse because it did not “use due care to make certain
that the light was kept in good working order,” causing more
than $60,000 in damages to a barge and its cargo. 350 U.S.
at 69. The Tribe is not claiming the United States behaved tor-
tiously, but rather that the United States failed to abide by its
contractual obligations to the Tribe under the Treaty.
[2] The Tribe’s claims may best be characterized as arising
under the Tucker Act, 28 U.S.C. § 1491, or its counterpart for
Indian claims, the Indian Tucker Act, 28 U.S.C. § 1505. The
Tucker Act gives the Court of Federal Claims exclusive juris-
diction over claims for damages exceeding $10,000 that are
“founded . . . upon any express or implied contract with the
United States.” 28 U.S.C. § 1491(a)(1). The Indian Tucker
Act extends the Court of Federal Claims’ jurisdiction to
any tribe, band, or other identifiable group of Ameri-
can Indians residing within the territorial limits of
the United States or Alaska whenever such claim is
one arising under the Constitution, laws or treaties of
the United States, or Executive orders of the Presi-
dent, or is one which otherwise would be cognizable
in the Court of Federal Claims if the claimant were
not an Indian tribe, band or group.
28 U.S.C. § 1505.3 It is under the Tucker and Indian Tucker
Acts that the federal courts have considered claims most simi-
3
The Indian Tucker Act is identical to the Tucker Act, except that it
specifies Indian tribes as eligible claimants. The Indian Tucker Act was
passed because there had been considerable doubt as to whether the
Tucker Act applied to Indian tribes. See Gregory C. Sisk, Yesterday and
Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity, 39
Tulsa L. Rev. 313, 316 (2003).
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2959
lar to those of the Tribe. For example, in United States v.
Mitchell (Mitchell II), 463 U.S. 206, 208 (1983), an Indian
tribe brought a Tucker Act cause of action in the Court of
Claims (the Court of Federal Claims’ predecessor) against the
United States for breach of trust responsibilities that origi-
nated with a treaty, which was later codified in federal law.
This is very much like our case, in which the Tribe’s claims
against the United States are for breach of its fiduciary obliga-
tions under the Treaty.
[3] Because we lack subject matter jurisdiction over the
Tribe’s damages claims against the United States, but believe
they might properly have been brought under the Indian
Tucker Act, we exercise our discretion to transfer these claims
to the Court of Federal Claims. See 28 U.S.C. § 1631
(“Whenever . . . an appeal, including a petition for review of
administrative action, is noticed for or filed with . . . a court
and that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such action
or appeal to any other such court in which the action or appeal
could have been brought at the time it was filed or noticed
. . . .”); Beck v. Atl. Richfield Co., 62 F.3d 1240, 1242 n.4 (9th
Cir. 1995) (per curiam).
B. Federal Power Act Claims
The Tribe also asserts the United States violated the Fed-
eral Power Act (FPA), 16 U.S.C. §§ 791a-828c, by failing to
submit and include license conditions protective of the Sko-
komish Reservation fish and wildlife, to fully consider envi-
ronmental factors before issuing a project license, and to
require evidence that the City, as a license applicant, pos-
sessed sufficient water rights for the Project and complied
with state and federal laws requiring fishways at dams and
prohibiting impairment of navigation. The FPA, however,
specifically provides: “Each licensee hereunder shall be liable
for all damages occasioned to the property of others by the
construction, maintenance, or operation of the project works
2960 SKOKOMISH INDIAN TRIBE v. UNITED STATES
or of the works appurtenant or accessory thereto, constructed
under the license, and in no event shall the United States be
liable therefor.” 16 U.S.C. § 803(c) (emphasis added).
[4] The plain language of the FPA is clear. It differentiates
between the United States and licensees, and unequivocally
exempts the United States from liability. When the statutory
language is clear, it trumps. Lamie v. United States Tr., 124
S. Ct. 1023, 1030 (2004). We therefore affirm the district
court’s dismissal of all FPA claims against the United States.
II. Claims Against the City of Tacoma and
Tacoma Public Utilities
A. Treaty-Based Claims4
4
We reject defendants’ contention that the FPA preempts the Tribe’s
treaty-based damages claims against the City and TPU. Defendants’ argu-
ment is based on the fact that in 1924, the City received a license from the
Federal Power Commission (FPC) authorizing the flooding of 8.8 acres of
federal land that would result from the Project. See City of Tacoma, 67
F.E.R.C. ¶ 61,152, at 61,440 (1994). Defendants assert that the Tribe’s
treaty-based claims are actually collateral attacks on the licensing deci-
sion, which are governed by the FPA and which the district court lacked
subject matter jurisdiction to consider. See 16 U.S.C. § 825l(b).
The 1924 license was a narrow “minor part” license, applying by its
terms only to “the occupancy and use of a tract of land approximately 8.8
acres in area . . . said land constituting a minor part of said power project.”
As the Federal Energy Regulatory Commission—the FPC’s successor—
has recognized, the license did not “authorize the construction, operation,
and maintenance of the Cushman Project.” City of Tacoma, 67 F.E.R.C.
at ¶ 61,440.
It is true that the FPA “provides exclusive jurisdiction for the Courts of
Appeals to review and make substantive modifications to FERC licensing
orders.” Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911
(9th Cir. 1989). But the Tribe is not attempting to collaterally attack the
1924 licensing decision; rather, it is suing for damages based on impacts
that are not covered by the license. The FPA does not preempt the Tribe’s
treaty-based claims.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2961
[5] 1. A treaty between the United States and an Indian
tribe “is essentially a contract between two sovereign
nations.” Washington v. Wash. State Commercial Passenger
Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979) (Fishing Ves-
sel). Nonetheless, treaties constitute the “supreme law of the
land,” Breard v. Greene, 523 U.S. 371, 376 (1998) (per
curiam), and they have occasionally been found to provide
rights of action for equitable relief against non-contracting
parties, see United States v. Winans, 198 U.S. 371, 377
(1905).
Equitable relief, however, merely ensures compliance with
a treaty; that is, it forces state governmental entities and their
officers to conform their conduct to federal law. The Tribe
here would have us go further and hold that it may recover
monetary damages against the City and TPU for alleged treaty
violations. We find no basis for doing so.5
[6] The Supreme Court has held that the Treaty of Point No
Point and similar treaties are “self-enforcing” and thus do not
require implementing legislation to form the basis of a law-
suit. See Fishing Vessel, 443 U.S. at 693 n.33. To make this
determination, the Court looked at language common to the
5
Judge Berzon’s dissent misreads our opinion as assuming that “the
cases upholding causes of action for violation of Indian treaty rights but
providing only equitable relief implicitly held that damages are not avail-
able.” Berzon dissent at 2986. We find only that those cases did not recog-
nize an implied right of action for damages, and that there are no grounds
for inferring that the parties to the Treaty intended to create such an action.
Cf. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284 (1998) (stat-
ing that courts implying rights of action “have a measure of latitude to
shape a sensible remedial scheme that best comports” with the relevant
enactment).
Similarly mistaken is the dissent’s description of our opinion as holding
that “Indian tribes and their members cannot, under federal law, sue
municipalities for damages for violation of rights secured by Indian trea-
ties.” Berzon dissent at 2980. We analyze a specific set of claims brought
under a specific treaty, and we thus have no occasion to consider whether
different rights of action might be implied from other treaties.
2962 SKOKOMISH INDIAN TRIBE v. UNITED STATES
treaties, which stated that the treaties “shall be obligatory on
the contracting parties as soon as [they are] ratified by the
President and Senate of the United States.” Id. (emphasis
added) (alteration in original) (internal quotation marks omit-
ted); see also Treaty, art. 14. However, the City and TPU are
not contracting parties to the Treaty. Nor is there anything in
the language of the Treaty that would support a claim for
damages against a non-contracting party. Cf. Alexander v.
Sandoval, 532 U.S. 275, 286 (2001) (“The judicial task is to
interpret the statute Congress has passed to determine whether
it displays an intent to create not just a private right but also
a private remedy.”); Touche Ross & Co. v. Redington, 442
U.S. 560, 568 (1979) (“[O]ur task is limited solely to deter-
mining whether Congress intended to create the private right
of action asserted . . . . And as with any case involving the
interpretation of a statute, our analysis must begin with the
language of the statute itself.”).
The Tribe has argued that in Fishing Vessel and Puyallup
Tribe v. Department of Game of Washington (Puyallup I),
391 U.S. 392 (1968), the Supreme Court held that tribes may
have a cause of action against non-contracting parties under
a treaty, even in the absence of a specific treaty provision. But
the Tribe misunderstands the significance of those cases. In
Fishing Vessel, the Court interpreted a group of treaties,
including the one at issue here, which granted Indian tribes
“ ‘[t]he right of taking fish, at all usual and accustomed
grounds and stations . . . in common with all citizens . . . .’ ”
443 U.S. at 674 (quoting Treaty of Medicine Creek, Dec. 26,
1854, art. 3, 10 Stat. 1132, substantially similar to Treaty of
Point No Point, art. 4). The Court held that this provision
secured to the tribes the right to harvest a share of each run
of anadromous fish that passed through tribal fishing areas
and not merely a right to compete with non-treaty fishermen
on an equal basis. Id. at 683-85. The tribes were thus entitled
to an equal measure of the harvestable portion of each run that
passed through a “usual and accustomed” tribal fishing
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2963
ground, adjusted downward if tribal needs could be satisfied
by a lesser amount. Id. at 685-89.
The Court then held that its order was enforceable by
injunction. See id. at 692 n.32. This is quite different from
finding a right to sue a non-contracting party for damages
under a treaty—a theory the Supreme Court avoided in Fish-
ing Vessel.
Puyallup I is not to the contrary. In that case, the Court held
that the State of Washington—a non-party to a treaty between
the Puyallup Tribe and the United States—could regulate the
modes of fishing allowed as an appropriate exercise of the
State’s police power because “the manner in which the fish-
ing may be done and its purpose . . . are not mentioned in the
Treaty.” 391 U.S. at 398. The Court suggested that, even
though the state could regulate in this instance, it could not
pass legislation that would directly interfere with rights
secured by a treaty. See id. (“We would have quite a different
case if the Treaty had preserved the right to fish at the ‘usual
and accustomed places’ in the ‘usual and accustomed’ man-
ner.”). But the Court did not hold that the Tribe had a private
right of action under the Treaty for damages. In fact, the Puy-
allup Tribe did not bring a claim at all. It was the State of
Washington that had sued the Tribe, seeking an injunction and
declaratory relief that would allow the State to regulate cer-
tain fishing areas named in the Treaty. The Court did not con-
sider whether the Tribe had a right of action even for
equitable relief, let alone monetary damages going back
nearly seventy-five years.
The Tribe gets no help from Antoine v. Washington, 420
U.S. 194 (1975). Antoine stands for the proposition that when
a treaty has been implemented by Congress, “neither an
express provision precluding state qualification nor the con-
sent of the State [is] required” to subject a state to the provi-
sions of the treaty. Id. at 205. Holding that a state is precluded
from passing laws inconsistent with a treaty is quite different
2964 SKOKOMISH INDIAN TRIBE v. UNITED STATES
from saying that a non-contracting party can be sued for dam-
ages under the treaty.
Finally, County of Oneida v. Oneida Indian Nation, 470
U.S. 226 (1985) (County of Oneida II), is inapposite. In that
case, the Supreme Court found that the plaintiff tribes could
assert a federal common law damages claim for unlawful pos-
session of land. The Court’s decision was not based on any
treaty. Rather, it was based on well-established federal com-
mon law principles regarding aboriginal possessory rights in
land. See id. at 235-36. By contrast, the Tribe in our case is
seeking to collect damages for violation of fishing rights
reserved to it by treaty.
[7] Thus, we hold that there is no basis for implying the
right of action for damages that the Tribe seeks to assert.
[8] 2. We turn next to the Tribe’s claims under 42 U.S.C.
§ 1983. The Supreme Court recently held in Inyo County v.
Paiute-Shoshone Indians, 538 U.S. 701, 708-12 (2003), that
a Tribe is not a “person” capable of bringing a claim under
section 1983 for violation of a sovereign prerogative. The
Court reasoned that “qualification of a sovereign as a ‘person’
who may maintain a particular claim for relief depends . . . on
the ‘legislative environment’ in which the word appears.” Id.
at 711 (quoting Georgia v. Evans, 316 U.S. 159, 161 (1942)).
To illustrate circumstances in which sovereigns may assert
claims under section 1983, the Court cited Evans, in which “a
State, as purchaser of asphalt shipped in interstate commerce,
qualified as a ‘person’ entitled to seek redress under the Sher-
man Act for restraint of trade.” Inyo County, 538 U.S. at 711
(citing Evans, 316 U.S. at 160-63). It also cited Pfizer Inc. v.
Government of India, 434 U.S. 308 (1978), which “held that
a foreign nation, as purchaser of antibiotics, ranked as a ‘per-
son’ qualified to sue pharmaceuticals manufacturers under our
antitrust laws.” 538 U.S. at 711 (citing Pfizer, 434 U.S. at
309-20).
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2965
[9] The Tribe here is not suing as an aggrieved purchaser,
or in any other capacity resembling a “private person[ ].” Id.
at 712. Rather, the Tribe is attempting to assert communal
fishing rights reserved to it, as a sovereign, by a treaty it
entered into with the United States. See United States v.
Washington, 520 F.2d 676, 688 (9th Cir. 1975) (“The treaties
must be viewed as agreements between independent and sov-
ereign nations . . . . Each tribe bargained as an entity for rights
which were to be enjoyed communally.”). Recognizing that
“[s]ection 1983 was designed to secure private rights against
government encroachment,” id. at 712, as well as the “long-
standing interpretive presumption that ‘person’ does not
include the sovereign,” Vt. Agency of Natural Res. v. United
States ex rel. Stevens, 529 U.S. 765, 780 (2000), we conclude
that the Tribe may not assert its treaty-based fishing rights
under section 1983.6
As for the individual members of the Tribe, while we have
suggested that some treaty-based rights might be cognizable
on behalf of a tribe’s members under section 1983, see United
States v. Washington, 813 F.2d 1020, 1023 (9th Cir. 1987),
we have noted that the hallmark for determining the scope of
section 1983 coverage is whether the right asserted “is one
‘that protects the individual against government intrusion,’ ”
Hoopa Valley Tribe v. Nevins, 881 F.2d 657, 662 (9th Cir.
1989) (quoting White Mountain Apache Tribe v. Williams,
810 F.2d 844, 848 (9th Cir. 1987)). In Hoopa Valley, for
instance, we held that section 1983 could not be used to
enforce a collective right to tribal self-government.
6
In her dissent, Judge Berzon relies on United States v. Washington, 935
F.2d 1059 (9th Cir. 1991) (Washington II). Berzon dissent at 2992-93. But
in that case we ruled only that lower courts must distinguish “between liti-
gation defining and enforcing” treaty rights in determining whether attor-
ney’s fees should be awarded under 42 U.S.C. § 1988. Id. at 1061. We did
not consider, let alone resolve, whether Indian tribes may properly sue as
“persons” under section 1983 for violation of treaty-based rights; the ques-
tion does not appear to have been raised.
2966 SKOKOMISH INDIAN TRIBE v. UNITED STATES
[10] The Tribe’s treaty-based rights do not give rise to indi-
vidual actions cognizable under section 1983. As we stated in
Settler v. Lameer, 507 F.2d 231, 237 (9th Cir. 1974), with
regard to fishing rights similar to those that the Tribe’s mem-
bers assert here, “the fishing rights reserved in [the relevant
treaty] are communal rights of the Tribe, even though the
individual members benefit from those rights.” See also
Whitefoot v. United States, 293 F.2d 658, 663 (Ct. Cl. 1961)
(noting that “interests in . . . fisheries are communal, subject
to tribal regulation”).7 Because the Tribe’s members seek to
7
Judge Berzon disagrees with our conclusion in significant part based
on Kimball v. Callahan, 590 F.2d 768 (9th Cir. 1979) (Kimball II), where
we reaffirmed our prior holding in Kimball v. Callahan, 493 F.2d 564 (9th
Cir. 1974) (Kimball I), that an individual Indian “possessing treaty rights
to hunt, fish, and trap” on a former reservation “retained those rights even
though he relinquished his tribal membership pursuant to” a tribal termina-
tion act. Kimball II, 590 F.2d at 772. As the dissent concedes, however,
the Kimball cases “did not involve a suit brought under § 1983.” Berzon
dissent at 2934. Moreover, the cases dealt with the rights of individual
Indians after their tribe was terminated. Indeed, we expressly distin-
guished Washington, 520 F.2d at 688, and Whitefoot, 293 F.2d at 663, on
the ground that “[n]either of these cases . . . was concerned, as was Kim-
ball I, with the tribal rights of individual Indians upon the termination of
a tribe.” Kimball II, 590 F.2d at 772. Our case likewise does not involve
claims made by individual Indians after the tribal entity has been termi-
nated.
Kimball II further limited Kimball I by noting that “the court’s state-
ment [in Kimball I] that treaty rights to hunt and fish are rights of the indi-
vidual Indian must be understood within the context of the two cases cited
in its support.” Id. at 772-73 (footnote omitted). The first of these cases,
McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973), “in-
volve[d] the narrow question whether the State may tax a reservation
Indian for income earned exclusively on the reservation,” id. at 168, and
was based on the general policy of “leaving Indians free from state juris-
diction and control,” id. (quoting Rice v. Olson, 324 U.S. 786, 789 (1945))
(internal quotation marks omitted). The second, Mason v. Sams, 5 F.2d
255 (W.D. Wash. 1925), dealt with whether “the Commissioner of Indian
Affairs could enforce regulations made by him without tribal consent
which required [tribe members] to pay a royalty for the fish they caught
in reservation streams to be used by the Tribe for the care of the aged and
destitute members of the Tribe and for general agency purposes.” Kimball
II, 590 F.2d at 773. Here, by contrast, the Tribe’s members are not
attempting to challenge governmental regulation of individual Indians.
Our opinions in Kimball I and Kimball II, then, provide little guidance.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2967
vindicate communal, rather than individual rights, they do not
have cognizable section 1983 claims against the City or TPU.8
[11] We therefore affirm the district court’s grant of sum-
mary judgment in favor of the City and TPU. The Tribe’s
claims cannot be asserted under the Treaty or under section
1983.
B. Reserved Water Rights Claim
The Tribe also sues on the theory that the City has violated
water rights that were impliedly reserved to the Tribe when it
entered into the Treaty with the United States.
[12] In Winters v. United States, 207 U.S. 564 (1908), the
Supreme Court held that federal reservations of public land
can sometimes carry implied property rights in appurtenant
waters. “While many of the contours of what has come to be
called the ‘implied-reservation-of-water doctrine’ remain
unspecified, the Court has repeatedly emphasized that [the
8
The Tribe argues that section 1983 protects communal rights. But the
cases on which the Tribe relies do not support its position. In Romero v.
Kitsap County, 931 F.2d 624 (9th Cir. 1991), we acknowledged that sec-
tion 1983 claims for deprivations of treaty rights may be cognizable
“under specified circumstances,” id. at 627 n.5 (citing Hoopa Valley, 881
F.2d at 661-63), but we offered no additional insight into the issue.
Romero itself was brought by, among others, individual tribal members
who were arrested for gathering shellfish in areas they claimed were
treaty-protected. The individuals brought suit under section 1983 against
the officers who arrested them. This was a traditional section 1983 suit for
unlawful arrest, clearly distinguishable from our case.
Similarly, Shoshone-Bannock Tribes v. Fish & Game Commission, 42
F.3d 1278 (9th Cir. 1994), addressed whether the plaintiff actually
intended to sue officers of the Idaho Fish and Game Commission in their
individual capacities under section 1983. See id. at 1284-85. Following a
close textual analysis of the complaint, we held that it did name one offi-
cer in his individual capacity, alleging violations of the Due Process and
Equal Protection Clauses, as well as treaty rights. We did not consider
when a section 1983 claim could be brought to vindicate treaty rights.
2968 SKOKOMISH INDIAN TRIBE v. UNITED STATES
United States] reserved ‘only that amount of water necessary
to fulfill the purpose of the reservation, no more.’ ” United
States v. New Mexico, 438 U.S. 696, 700 (1978) (quoting
Cappaert v. United States, 426 U.S. 128, 141 (1976)). The
Court has found implied water rights stemming from a reser-
vation of public land only where “without the water the pur-
poses of the reservation would be entirely defeated.” Id. But
“[w]here water is only valuable for a secondary use of the res-
ervation, . . . there arises the contrary inference that [the
United States] intended, consistent with its other views, that
the [reservation] would acquire water in the same manner as
any other public or private appropriator.” Id. at 702.
[13] The district court concluded that the water diverted by
the City was not necessary for any primary purpose of the res-
ervation. The Tribe argues that this was error, contending that
the City has infringed upon its implied water rights in the
Skokomish River by impeding its ability to fish. We agree
with the district court that the Tribe cannot survive summary
judgment with its claim that fishing was a primary purpose of
the reservation.
The Tribe directs us to submitted declarations from a histo-
rian and a cultural anthropologist, but these declarations only
suggest that fishing was important to the Tribe, and that the
United States intended to ensure the Tribe was not excluded
from its fisheries. Demonstrating that the United States
intended for the Tribe to continue fishing on the reservation
is not the same as showing that fishing was a primary purpose
of the reservation. Cf. id. at 716 (“While Congress intended
the national forests to be put to a variety of uses, including
stockwatering, not inconsistent with the two principal pur-
poses of the forests, stockwatering was not itself a direct pur-
pose of reserving the land.”); id. at 716-17 (“Congress, of
course, did intend to secure favorable water flows, and one of
the uses to which the enhanced water supply was intended to
be placed was probably stockwatering. But Congress intended
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2969
the water supply from the Rio Mimbres to be allocated among
private appropriators under state law.”).
Nor does the Treaty language help the Tribe. The Treaty
merely provides that the Tribe shall have “[t]he right of taking
fish . . . in common with all citizens of the United States.”
Treaty, art. 4. This language distinguishes our case from
United States v. Adair, 723 F.2d 1394 (9th Cir. 1984), where
we based our finding of implied water rights in part on treaty
language “expressly provid[ing] that the [plaintiff Indian
Tribe] will have exclusive on-reservation fishing and gather-
ing rights.” See id. at 1409 (emphasis added). The Treaty lan-
guage in this case cannot make up for the inadequacy of the
evidence the Tribe has presented.
[14] We thus conclude that the district court properly
granted summary judgment for defendants on the Tribe’s
reserved water rights claim.
C. State-Law Claims
The Tribe brought a series of state-law claims against the
City and TPU based on the property damage resulting from
aggradation of the Skokomish River. The claims included
inverse condemnation, trespass, tortious interference with
property, conversion, negligence, negligent misrepresentation,
private and public nuisance, and violation of Washington
Revised Code section 4.24.630, which prohibits persons from
going onto the land of another and wrongfully causing waste
or injury to the land or to personal property. We find that all
of the Tribe’s state-law claims are barred by the applicable
statutes of limitations.
[15] Under Washington law, the statute of limitations for
inverse condemnation is ten years. Highline Sch. Dist. No.
401 v. Port of Seattle, 548 P.2d 1085, 1089 (Wash. 1976).
The statutes of limitations for trespass, negligence, conver-
sion, tortious interference, nuisance and actions under Wash-
2970 SKOKOMISH INDIAN TRIBE v. UNITED STATES
ington Revised Code section 4.24.630 are three years. See
Wash. Rev. Code § 4.16.080.9
9
The Tribe argues that the Indian Claims Limitation Act of 1982
(“ICLA”), 28 U.S.C. § 2415, preserves the Tribe’s aggradation-related
claims. Under the ICLA, claims brought by Indian tribes are subject to a
six-year and ninety-day statute of limitations, unless preserved by publica-
tion in the Federal Register. Any cause of action not published in the Fed-
eral Register is barred sixty days after the date of publication. Id. Claims
included on the list are not barred until after the Secretary of the Depart-
ment of the Interior either (1) publishes in the Federal Register a notice
of rejection of the claim, and a complaint is not filed by the claimant
within one year of the Federal Register notice; or (2) submits a legislative
proposal to Congress, in which case any right of action on that claim is
barred unless the claimant files a complaint within three years of the sub-
mission to Congress. Id. “So long as a listed claim is neither acted upon
nor formally rejected by the Secretary, it remains live.” County of Oneida
II, 470 U.S. at 243.
The ICLA does not apply to state-law claims, as the Tribe conceded at
argument. Instead, we apply state statutes of limitations to state-law
claims. See Nev. Power Co. v. Monsanto Co., 955 F.2d 1304, 1306 (9th
Cir. 1992). But even if the ICLA were to apply, the Tribe’s state-law
claims are distinct from the preserved fishery claims. The Tribe preserved
claims relating to “fishery” damage caused by the Cushman Dam. Though
there is not much evidence in the record detailing the preserved claims, the
Solicitor of the Department of the Interior described them as based on
“[d]estruction of fishery by diversion of water for hydroelectric project on
North Fork River.” Supp. E.R. at 404K. In a letter submitted to Congress
urging an extension of the statute of limitations, the Tribe described its
preserved claims as follows:
The first case is a major fisheries damage claim against the
City of Tacoma. During the 1920’s, the City of Tacoma con-
structed a complex of two high dams on the North Fork of the
Skokomish River, thus diverting its entire flow to power generat-
ing facilities located on the Skokomish Indian Reservation . . . .
The diversion . . . destroyed the most significant fish producing
stream of the Skokomish River system and its excellent runs of
salmon and steelhead.
Supp. E.R. at 406-07.
The state-law claims concern the effect of aggradation on tribal prop-
erty, whereas the preserved claims center around the diversion of water
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2971
The district court found that the Tribe’s aggradation-related
claims began to accrue no later than February 16, 1989. On
that date, Russell Busch, then attorney for the Tribe, wrote a
letter to Gary Hansen at the Washington Department of Ecol-
ogy, stating:
Please consider this letter both a formal protest
and an intergovernmental comment by the Skokom-
ish Indian Tribe with regard to the referenced water
rights Applications for Permit and any other water
use authorizations sought by the City of Tacoma in
the Skokomish River Basin.
...
The Skokomish Tribe resides upon a federal
Indian Reservation on the Skokomish River down-
stream from the Applicant’s [City of Tacoma] diver-
sions and impoundments. It is the position of the
Tribe that Applicant’s actions reduce the natural
flow of the river in such a way that: (1) Indian treaty
fisheries are seriously reduced both on the Reserva-
tion and at other usual and accustomed places, in
violation of the Treaty of Point No Point; (2) the fed-
eral reserved water rights of the Skokomish Reserva-
tion are unlawfully interfered with; and (3) the
reduction of tributary inflow caused by Tacoma’s
and loss of fish. The Tribe itself admits that it did not know about the
aggradation-related damage when it listed its claims under the ICLA in the
early 1980s. See Appellant’s Opening Br. at 40. Though the Tribe urges
us to construe its preserved claims liberally to include aggradation-related
damages, see id. (citing Montana v. Blackfeet Tribe of Indians, 471 U.S.
759, 766 (1985)), the requirement that we interpret statutes and treaties
broadly in favor of Indian tribes cannot be extended to reach cases where
a particular interpretation could not have been contemplated by the parties.
Thus, even if the ICLA were applicable, it would not extend any of the
Tribe’s state-law claims.
2972 SKOKOMISH INDIAN TRIBE v. UNITED STATES
impoundments and diversions is a direct and proxi-
mate cause of channel aggradation and flooding on
[and] above the reservation.
Supp. E.R. at 408.
[16] We agree with the district court that this was the appli-
cable date of accrual. Though the Tribe argues that this is a
factual issue that should have been submitted to the jury,
where there is clear evidence of when the claims accrued, the
court may make this determination. See Reichelt v. Johns-
Manville Corp., 733 P.2d 530, 535-36 (Wash. 1987); Fradkin
v. Northshore Util. Dist., 977 P.2d 1265, 1268 (Wash. Ct.
App. 1999). To start the statute of limitations running in
Washington, all that is required is:
[W]hen a plaintiff is placed on notice by some
appreciable harm occasioned by another’s wrongful
conduct, the plaintiff must make further diligent
inquiry to ascertain the scope of actual harm. The
plaintiff is charged with what a reasonable inquiry
would have discovered. Stated more succinctly, the
law does not require a smoking gun in order for the
statute of limitations to commence.
Giraud v. Quincy Farm & Chem., 6 P.3d 104, 109 (Wash. Ct.
App. 2000) (internal quotation marks and citations omitted).
Busch’s “formal protest” of the Project in 1989 is sufficient
to meet this standard. Thus, because the Tribe did not file its
complaint until November 19, 1999, more than ten years after
its aggradation-related claims accrued, its claims are time-
barred.
[17] There is an exception to the statute of limitations for
certain trespass claims. Where a plaintiff can show that its
claim is a “continuing” violation, “the statute of limitation
serves only to limit damages to those incurred in the three-
year period before the suit was filed.” Fradkin, 977 P.2d at
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2973
1267. To show a continuing violation, the plaintiff must dem-
onstrate that the damage is “reasonably abatable,” id., which
means that “[t]he condition . . . can be removed ‘without
unreasonable hardship and expense,’ ” id. at 1270 n.25 (quot-
ing Mangini v. Aerojet-Gen. Corp., 912 P.2d 1220, 1225 (Cal.
1996)). It is the plaintiff’s burden to prove reasonable abata-
bility. See Mangini, 912 P.2d at 1225-26.
[18] The district court held that the Tribe’s alleged dam-
ages were not reasonably abatable, precluding a finding of a
continuing violation. The Tribe’s expert estimated the value
of the Tribe’s property before the damage at $2,170,040.
Supp. E.R. at 410, 421. The same expert estimated the total
remediation cost at $3,770,500. Id. Given this large discrep-
ancy between the cost of repair and the actual value of the
land, it is clear that the damages could be abated only with
unreasonable hardship and expense.10 The district court cor-
rectly concluded that there was no continuing violation.
D. 16 U.S.C. § 803(c)
The Tribe also claims the City and TPU violated 16 U.S.C.
§ 803(c), which requires licensees to maintain project works
in a condition so as not to impair navigation. Section 803(c)
provides that “[e]ach licensee hereunder shall be liable for all
damages occasioned to the property of others by the construc-
tion, maintenance, or operation of the project works or of the
10
In her dissent, Judge Graber relies on the license that FERC issued to
the City in 1998, which directed the City to file a plan for “enhancing the
channel conveyance capacity of the mainstem Skokomish River.” See E.R.
at 177; Graber dissent at 2976-77, 2978-79. But the license states only that
the cost of financing the plan may be no more than $5 million, and the
Tribe offers no reason to think the actual cost of abatement would be
materially less than this maximum. As for Judge Graber’s reliance on the
possibility that the cost of abatement might “perhaps” be lower than the
remediation cost estimates offered by the Tribe, see Graber dissent at
2979, the Tribe cannot overcome defendants’ motion for summary judg-
ment on the basis of such conjecture.
2974 SKOKOMISH INDIAN TRIBE v. UNITED STATES
works appurtenant or accessory thereto, constructed under the
license, and in no event shall the United States be liable there-
for.”
The district court dismissed for failure to state a claim upon
which relief could be granted, holding that section 803(c)
does not provide a private right of action. This follows the
Second Circuit’s decision in DiLaura v. Power Authority of
State of N.Y., 982 F.2d 73 (2d Cir. 1992), and the D.C. Cir-
cuit’s decision in South Carolina Public Service Authority v.
FERC, 850 F.2d 788 (D.C. Cir. 1988).
[19] DiLaura and South Carolina Public Service Authority
held that section 803(c) does not create a federal private right
of action, but instead preserves only existing state-law claims
against licensees. DiLaura, 982 F.2d at 77-79; S.C. Pub. Serv.
Auth., 850 F.2d at 793-95. Their holdings were based on a
reading of the statute as well as its legislative history. The leg-
islative history revealed that all discussion during the floor
debates centered on the premise that “damages caused by
licensees should be determined in accordance with state law.”
Id. at 795. As the D.C. Circuit explained, since “Congress
intended for [the statute] merely to preserve existing state
laws governing the damage liability of licensees, it follows
that the Commission may not encroach upon this state domain
by engrafting its own rules of liability.” Id. We believe this
interpretation of section 803(c) is the correct one and thus see
no cause for parting company with our sister circuits. We
affirm the district court’s dismissal of the Tribe’s section
803(c) claim.
III. Recusal Motion
The Tribe also appeals the district court’s denial of its
motion to disqualify the district judge. Sixteen months after
filing its complaint, and after the district court had already
ruled on a number of claims, the Tribe asserted that Judge
Burgess had an obligation to recuse himself because he was
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2975
a utility customer, and the outcome of the case might substan-
tially affect his utility bill. Judge Burgess denied the motion,
finding it untimely. The Tribe moved for reconsideration, and
Judge Burgess again denied recusal. Judge Burgess then
referred the motion to Chief District Judge Coughenour, who
also held it was untimely, because Judge Burgess had already
ruled on at least fifteen different motions and trial was less
than five months away.
[20] A motion for recusal must be made with “reasonable
promptness after the ground for such a motion is ascertained.”
Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991);
see also Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981)
(per curiam) (waiting sixteen months after discovering the
grounds for recusal was untimely and resulted in a waiver).
The Tribe knew it was litigating a case against TPU in
Tacoma federal court, before a Tacoma-area judge. It should
have known when it filed its complaint that it might want to
seek recusal of the judge assigned to the matter. At the very
least, the Tribe admits that it believed it had grounds for
recusal at least seven months before filing the motion. The
district court thus did not abuse its discretion in denying the
recusal motion. See Kulas v. Flores, 255 F.3d 780, 783 (9th
Cir. 2001).11
IV. Class Certification
Because we affirm the district court, we need not address
the district court’s denial of class certification. See Alexander
v. Whitman, 114 F.3d 1392, 1398 n.7 (3d Cir. 1997) (because
the court held that dismissal of the complaint was proper, it
did not need to address the propriety of the district court’s
denial of plaintiffs’ motion for class certification).
11
We do not, of course, express a view as to the merits of the recusal
motion; nothing we say should be read as implying that a timely motion
would have been successful.
2976 SKOKOMISH INDIAN TRIBE v. UNITED STATES
AFFIRMED IN PART AND TRANSFERRED TO THE
COURT OF FEDERAL CLAIMS IN PART.
GRABER, Circuit Judge, with whom PREGERSON, PAEZ,
and BERZON, Circuit Judges, join, concurring in part and
dissenting in part:
I concur in the majority opinion with two exceptions. First,
with respect to the right of individual members of the Tribe
to bring a § 1983 claim against the City and TPU, I agree with
Judge Berzon’s dissent at pages 2992-95. Second, I disagree
with the majority’s conclusion that the statute of limitations
has run on the Tribe’s Washington-law claims for nuisance
and trespass. Under Washington law, even a permanent struc-
ture (like a dam or a sewer) can result in a “continuing” nui-
sance or trespass. If there is a “continuing” nuisance or
trespass, then the plaintiff can seek damages for the three
years immediately preceding the filing of the complaint,
because the act for which damages are sought is a present,
ongoing act rather than a past, completed act. Here, a question
of fact remains concerning the proper application of the stat-
ute of limitations.
Under Washington law the difference between a “perma-
nent” nuisance or trespass and a “continuing” nuisance or
trespass is that the latter is “reasonably abatable,” that is, the
defendant can take curative action to stop the continuing dam-
ages. 16 Wash. Prac., Tort Law and Practice § 9.13 (2d ed.).
The question of “permanent” versus “continuing” nuisance or
trespass is separate from the question of damages or remedia-
tion of consequential harms, even though money is involved
in each analysis. For example, a trespass can cause huge dam-
ages but be very cheap to fix, or vice versa.
The Tribe has produced sufficient evidence to raise a genu-
ine issue of material fact as to whether the aggradation alleg-
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2977
edly caused by the Cushman Dam Project’s diversion of the
North Fork of the Skokomish River is reasonably abatable. To
survive summary judgment, the Tribe had to produce evi-
dence from which a rational finder of fact could conclude that
the aggradation of the Skokomish River’s mainstem can be
abated “without unreasonable hardship and expense.” Fradkin
v. Northshore Util. Dist., 977 P.2d 1265, 1270 (Wash. Ct.
App. 1999).
Two pieces of evidence support the Tribe’s claim that the
aggradation is reasonably abatable. First, at least two of the
Tribe’s technical consultants stated that aggradation can be
abated by dredging the river or decreasing the amount of
water diverted away from the North Fork.1 Second, Tacoma’s
1998 license from FERC directed it to develop “specific cost-
effective measures proposed to increase the channel convey-
ance capacity” of the Skokomish mainstem, including “flow
manipulation [and] flushing flows.”
The FERC order supports the Tribe’s showing, for sum-
mary judgment purposes, that these measures to abate aggra-
dation would be feasible. In Fradkin, the court held that
1
One technical analyst opined:
Flushing flow releases from Cushman would be more effective in
transporting sediment through the mainstem Skokomish if the
mainstem channel was made deeper through dredging. . . . Resto-
ration of the natural sediment transport capacity of the river
would lessen, halt or possibly even reverse the current trends in
aggradation. At the very least, it would address the portion of the
aggradation problem attributable to the Cushman Project.
Another concluded:
Restoring and maintaining a mainstem conveyance capacity of
13,000 cfs will contain the 1.3-year flow event within the banks
of the channel. This will afford the Tribe the same level of flood
protection, in terms of the probability and frequency of overbank
flow, that existed under natural conditions. This will protect
approximately 1,400 acres of Reservation lands from the effects
of frequent flooding.
2978 SKOKOMISH INDIAN TRIBE v. UNITED STATES
summary judgment was improper where the plaintiff had pro-
duced a report recommending certain measures to remedy the
condition (and where the trespassing utility had itself
attempted to fix the problem). Id. The court did not discuss
the cost of such measures or the value of the plaintiff’s prop-
erty in relation to these measures. Id. In Jacques v. Pioneer
Plastics, Inc., 676 A.2d 504 (Me. 1996) (cited in Fradkin, 977
P.2d at 1270 n.23), a document even more similar to the
FERC order sufficed to raise a genuine issue of material fact:
a compliance order from a state agency that directed the con-
taminating parties to submit a remediation feasibility study.
Id. at 508. Several courts have noted that abatability is not
necessarily a return to the status quo ante or a complete elimi-
nation of the problem. See, e.g., Mangini v. Aerojet-Gen.
Corp., 912 P.2d 1220, 1226 (Cal. 1996) (“something less than
total decontamination may suffice to show abatability”) (cited
in Fradkin, 977 P.2d at 1270 n.23); Beck Dev. Co. v. S. Pac.
Transp. Co., 52 Cal. Rptr. 2d 518, 558 (Ct. App. 1996) (not-
ing that “the ability to remediate to levels demanded by the
regulatory agencies was sufficient abatability”); Hanes v.
Cont’l Grain Co., 58 S.W.3d 1, 4 (Mo. Ct. App. 2001) (“We
disagree . . . that in order to show a nuisance can be abated,
it must be shown that the entire nuisance can be eliminated,
and a reduction or lessening of the nuisance is insufficient. . . .
A nuisance can be abated to the degree where it is no longer
a substantial interference.”).
There is evidence in the record from which a reasonable
finder of fact could conclude that abatement of the aggrada-
tion itself is economically feasible. The 1998 FERC license
states that the “cost-effective” measures to increase mainstem
conveyance capacity are not to exceed $5 million. For sum-
mary judgment purposes we should presume that FERC con-
sidered the reasonableness of this sum, as well as the
feasibility of the measures, in relation to the economic situa-
tion of the City and the Cushman Dam Project. For this rea-
son, I believe that, for summary judgment purposes under
Washington law, the FERC order is sufficient evidence that
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2979
abatement of mainstem aggradation could be economically
feasible.
The majority, in contrast, concludes that abatement is
unreasonable as a matter of law, because the cost of remediat-
ing the damage to property caused by the aggradation and
associated flooding is about 75 percent more than the value of
the Tribe’s property in its prior condition. Maj. op. at 2973.
I do not agree that this price tag renders the condition unabat-
able as a matter of law. Moreover, the cited estimate of
remediation costs is primarily for repairs to sewer and water-
delivery systems and to flood-damaged homes. It does not
address the perhaps much lower cost to abate the aggradation
itself, by way of dredging or flushing flows. The aggradation
is the underlying condition caused by the diversion of water
by the Cushman Project and it should be the focus of the
abatability inquiry.2
In conclusion, I am persuaded that the Tribe’s state-law
claims for nuisance and trespass survive summary judgment
on statute of limitations grounds.3 I respectfully dissent from
the majority’s contrary conclusion.
BERZON, Circuit Judge, dissenting in part,1 with whom PRE-
GERSON, PAEZ, and RAWLINSON, Circuit Judges, concur:
2
Cf. Castaic Lake Water Agency v. Whittaker Corp., 272 F. Supp. 2d
1053, 1072 (C.D. Cal. 2003) (holding that deposition testimony regarding
a $36 million treatment program for drinking water affected by contamina-
tion did not support the plaintiff’s claim of abatability because the treat-
ment facility would not abate “the actual nuisance—namely, the
underground contamination”).
3
I have not considered, and express no opinion on, the City’s alternative
arguments for granting summary judgment on the merits of the Tribe’s
trespass and nuisance claims.
1
I dissent only from subsections A (“Treaty-Based Claims”) and B
(“Reserved Water Rights Claim”) of Part II (“Claims Against the City of
Tacoma and Tacoma Public Utilities”) of the majority opinion.
2980 SKOKOMISH INDIAN TRIBE v. UNITED STATES
According to the majority, Indian tribes and their members
cannot, under federal law, sue municipalities for damages for
violation of rights secured by Indian treaties. The case law
simply does not support the majority’s broad pronouncement.
Indeed, County of Oneida v. Oneida Indian Nation, 470 U.S.
226 (1985) (County of Oneida II), is quite directly to the con-
trary, permitting suits for damages under federal common law
for violation of aboriginal rights reserved by treaty.
More specifically, Supreme Court precedent, as well as
cases from the courts of appeals, support the conclusions that
(a) both tribes and individual members of tribes may sue
municipalities for damages for violations of the tribes’ treaty
rights; and (b) individual tribe members may sue under 42
U.S.C. § 1983 for violations of their asserted right to take fish
at the usual and accustomed times. The majority’s contrary
assertions largely ignore two centuries of understandings con-
cerning the federal protection of Indian aboriginal and treaty-
based rights — in particular, the understanding that Indian
treaties in large part simply preserve some pre-existing
aboriginal rights in exchange for cession of a portion of
Indian land. Whether the majority’s conclusions would make
sense if we were developing the law of Indian rights to the use
of land and water afresh — which I do not think they would
— is not the question, as we are not free to reinvent estab-
lished doctrine. I therefore respectfully dissent.2
2
Because the majority does not reach the questions raised in this case
that logically follow a determination that these plaintiffs may bring suit for
damages against these defendants — including whether the federal causes
of action are barred by statutes of limitations or preserved by the Indian
Claims Limitation Act (ICLA), 28 U.S.C. § 2415 note, and whether the
Treaty of Point No Point (“Treaty”), 12 Stat. 933 (1855), in fact estab-
lishes the rights claimed — I do not do so either.
I do note that the most challenging question thus left open is whether
the Tribe’s off-reservation fishing rights give rise to a cause of action for
limiting the numbers of fish that formerly inhabited the streams and rivers
in which the Tribe traditionally fished, or whether, instead, the Treaty pre-
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2981
I
Without examining what pre-existing rights, if any, the
Tribe reserved under the Treaty of Point No Point (“Treaty”),
12 Stat. 933 (1855),3 the majority mistakenly dismisses all
possibility that the Tribe can seek damages for violations of
any such rights. This conclusion — induced by a misplaced
focus on cases concerning attempts to imply causes of action
from statutes or from international treaties — ignores settled
precedent concerning Indian treaty-protected rights. The
scope of a cause of action to enforce Indians’ aboriginal
rights, including such rights reserved in treaties with the
United States, cannot sensibly be resolved by invoking lines
of authority developed in areas of the law lacking the long tra-
dition of federal common law protection accorded Indian
property and related rights. As the majority’s reasoning fails
serves only a right to take a given proportion of such fish as remain extant.
This court previously addressed that important question but subsequently
vacated the decision and has not since had occasion to resolve it. See
United States v. Washington, 694 F.2d 1374 (9th Cir. 1982), on en banc
reh’g, 759 F.2d 1353, 1355 (9th Cir. 1985) (failing to determine whether
“the right to take fish necessarily includes the right to have those fish pro-
tected from man-made despoliation”); see also Kittitas Reclamation Dist.
v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032, 1033, 1035 (9th Cir.
1985) (approving district court order releasing water from a water project
to preserve nests of salmon eggs so as to preserve the Indian right of tak-
ing off-reservation fish “in common with citizens”); Nez Perce Tribe v.
Idaho Power Co., 847 F.Supp. 791, 810 (D. Idaho 1994) (holding that a
Northwest Indian treaty similar to the one in this case “does not provide
a guarantee that there will be no decline in the amount of fish available
to take”); CONFERENCE OF W. ATTORNEYS GEN., AMERICAN INDIAN LAW
DESKBOOK 330-33 & n.194 (Clay Smith ed., 3d ed. 2004) (noting that
“[m]any commentators have advocated a treaty-based habitat protection
right” and citing to the commentary).
3
The Treaty of Point No Point is one of a series of treaties brokered by
Territorial Governor Isaac Stevens in the mid-1800’s between the United
States and various Pacific Northwest Indian tribes. These treaties are com-
monly referred to as “Stevens treaties.” See generally Nez Perce Tribe,
847 F. Supp. at 805-06.
2982 SKOKOMISH INDIAN TRIBE v. UNITED STATES
to appreciate the uniquely federal nature of the land, water,
and fishing claims by Indians, it is largely beside the point.
There are hard issues in this case concerning the precise
import of several precedents concerning Indians’ treaty-
protected rights, but the majority’s simplistic approach misses
them all.
I note at the outset that the majority is quite correct in rec-
ognizing — albeit in passing — that rights of action are avail-
able for equitable relief against “non-contracting” parties to
Indian treaties. Ante at 2961. From this starting point, how-
ever, the majority rushes to the unsupported conclusion that
a Tribe may not recover monetary damages for alleged treaty
violations. In doing so, the majority makes three major mis-
steps: (1) conflating interpretation of this Indian Treaty with
a private cause of action under non-Indian treaties and federal
statutes; (2) asserting that the non-signatory status of Tacoma
Public Utilities (“TPU”) and the City of Tacoma (“City”)
somehow absolves those entities of responsibility here; and
(3) conjuring a distinction between damages and equitable
relief inconsistent with binding authority.
(1) The majority rests its constrained interpretation of the
rights reserved by — and the relief available to enforce —
this Treaty upon a foundation of wholly irrelevant cases.
Cases construing Title VI of the Civil Rights Act (Alexander
v. Sandoval, 532 U.S. 275 (2001)) or the Securities Exchange
Act of 1934 (Touche Ross & Co. v. Redington, 442 U.S. 560
(1979)) have little relevance to the interpretation of Indian trea-
ties.4 The Supreme Court has made clear that Indian treaties
are unique, governed by different canons of construction than
4
Also, a simple glance at the text of the Treaty here at issue reveals that
it might still provide a cause of action for members of the Tribe. The
Treaty does speak to individuals, namely the Tribe’s members, with regard
to the “right of taking fish”: Although land is reserved “for the present use
and occupation of the said tribes and bands,” “[t]he right of taking fish at
usual and accustomed grounds and stations is further secured to said Indi-
ans,” not to the “tribes and bands.” (emphasis added).
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2983
those that apply to statutes and other treaties. See, e.g., County
of Oneida II, 470 U.S. at 247-48.
Moreover, there is no general rule preferring equitable
relief over damages when implying a cause of action. Rather,
were the statutory private cause of action cases pertinent, they
would not support any distinction between equitable and dam-
ages relief, unless there is some indication that Congress spe-
cifically intended such a distinction. Sandoval, 532 U.S. at
286 (“The judicial task is to interpret the statute Congress has
passed to determine whether it displays an intent to create not
just a private right but also a private remedy.”); Touche Ross
& Co., 442 U.S. at 568 (“[O]ur task is limited solely to deter-
mining whether Congress intended to create the private right
of action asserted . . . . And as with any case involving the
interpretation of a statute, our analysis must begin with the
language of the statute itself.”). The majority points to no
indication that Congress intended to allow suits in equity but
not for damages to enforce Indian fishing rights reserved by
treaties.
In short, the cases cited by the majority for the proposition
that equitable but not damages relief is available with regard
to rights reserved by a federal Indian treaty are of no help at
all in establishing that point.
(2) In addition to its reliance on inapposite strands of case
law, the majority also suggests that, even if the Treaty is self-
enforcing, the Treaty cannot be enforced against the City and
TPU because they are non-contracting parties.5 No case cited
5
The majority’s focus on “non-contracting parties” suggests that
because the City and TPU are not signatories to the Treaty, they are some-
how less responsible to respect the rights reserved by the Treaty than is
the federal government. This suggestion would appear to call into question
bedrock understandings concerning the judicial enforcement against
municipal governments of the obligation to abide by federal law.
The City and TPU, as governmental entities, are bound by the rights
reserved in the Treaty. Cities and local governments are, of course, subject
2984 SKOKOMISH INDIAN TRIBE v. UNITED STATES
by the majority, and no case I have discovered, supports the
conclusion that rights created in an Indian Treaty can only be
enforced by one signatory against the other, whether for equi-
table relief or for damages. Instead, the cases relying on the
principle that states and their agents are bound to respect
treaty-created rights are legion. See, e.g., County of Oneida II,
470 U.S. at 235-36 (approving a federal common law suit
against two counties for violation of federal aboriginal rights
partly secured by treaty); Washington v. Wash. State Commer-
cial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 669-70
(1979) (Fishing Vessel) (suit brought by the United States “on
to the Supremacy Clause. As “the constitutionality of local ordinances is
analyzed in the same way as that of statewide laws” for purposes of the
Supremacy Clause, Hillsborough County v. Automated Med. Labs., Inc.,
471 U.S. 707, 713 (1985) (citation omitted), cities and local governments
cannot pass ordinances or laws that “ ‘interfere with, or are contrary to,’
federal law.” Id. at 712 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
211 (1824)); see Brendale v. Confederated Tribes & Bands of the Yakima
Indian Nation, 492 U.S. 408, 431 (1989) (plurality opinion) (“Since the
tribes’ protectible interest is one arising under federal law, the Supremacy
Clause requires state and local governments, including Yakima County
zoning authorities, to recognize and respect that interest in the course of
their activities.”); see also C & A Carbone, Inc. v. Town of Clarkstown,
511 U.S. 383, 394-95 (1994); Cmty. Communications Co. v. City of Boul-
der, 455 U.S. 40, 57 (1982); City of Burbank v. Lockheed Air Terminal,
Inc. 411 U.S. 624, 640 (1973); City of Chicago v. Atchison, Topeka &
Santa Fe Ry. Co., 357 U.S. 77, 84-85 (1958); Asakura v. City of Seattle,
265 U.S. 332, 343 (1924); City of Auburn v. Qwest Corp., 260 F.3d 1160,
1175-76 (9th Cir. 2001); United States v. City of Pittsburg, 661 F.2d 783,
785-86 (9th Cir. 1981); Nat’l Helicopter Corp. of Am. v. City of New York,
137 F.3d 81, 92 (2d Cir. 1998); Pirolo v. City of Clearwater, 711 F.2d
1006, 1010 (11th Cir. 1983).
Treaties are listed among the types of law that make up “the supreme
Law of the Land.” U.S. CONST. art. VI, cl. 2 (Supremacy Clause) (“This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”). Cit-
ies and local governments therefore are bound, under the Supremacy
Clause, to respect rights created by or reserved in Indian treaties.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2985
its own behalf and as trustee for seven Indian tribes” against
the State of Washington to enforce treaty rights; other tribes,
the state’s Fisheries and Game Departments, and one com-
mercial fishing group were joined as parties); United States v.
Washington, 157 F.3d 630, 638 (9th Cir. 1998) (suit brought
by numerous Indian tribes and the United States (on the
tribes’ behalf) against the State of Washington to enforce
treaty rights; several private parties intervened and appealed);
Kimball v. Callahan, 493 F.2d 564, 565 (9th Cir. 1974) (suit
brought by individual Indians against officers of the State of
Oregon to enforce treaty rights).
Further, as the majority recognizes, United States v.
Winans, 198 U.S. 371 (1905), enforced Indian treaty rights
even against private third-parties. So did United States v.
Washington, 157 F.3d at 657.
In Winans, the United States, on behalf of certain members
of the Yakima Nation, brought suit to enjoin private land
owners from preventing Indians’ exercise of their off-
reservation treaty rights to fish on the defendants’ private
property. See 198 U.S. at 377. The Court held that the treaty
between the United States and the Tribe “fixe[d] in the [now
privately owned] land such easements as enable the right to
be exercised.” Id. at 384. Explained Winans:
The right to resort to the fishing places in contro-
versy was a part of larger rights possessed by the
Indians . . . which were not much less necessary to
the existence of the Indians than the atmosphere they
breathed. . . . [T]he treaty was not a grant of rights
to the Indians, but a grant of right from them — a
reservation of those not granted. . . . [The treaty]
imposed a servitude upon every piece of land as
though described therein. . . . The contingency of the
future ownership of the lands, therefore, was fore-
seen and provided for — in other words, the Indians
were given a right in the land — the right of crossing
2986 SKOKOMISH INDIAN TRIBE v. UNITED STATES
it to the river — the right to occupy it to the extent
and for the purpose mentioned. No other conclusion
would give effect to the treaty. And the right was
intended to be continuing against the United States
and its grantees as well as against the State and its
grantees . . . .
Id. at 381-82 (emphasis added). Similarly, United States v.
Washington held that, “[i]n light of Winans, Fishing Vessel,
and the [Stevens] Treaties’ language and power as the
supreme law of the land, the district court correctly deter-
mined that the Tribes have a right to harvest shellfish on pri-
vate tidelands.” 157 F.3d at 647 (emphasis added).
(3) So, then, if the Treaty is self-enforcing and the Treaty
can be enforced against non-contracting parties, what is left
of the majority’s assertion that the Tribe cannot seek damages
for elimination of fishing rights secured by a treaty? To fill
this gap, the majority asserts, repeatedly but without citation
to any pertinent authority, that in a case involving a nonsigna-
tory to the Treaty, there is a determinative distinction in
enforcing these rights between an action for damages and an
action for equitable relief. Ante at 2961-62.
The entirety of the majority’s reasoning on this point seems
to be that the cases upholding causes of action for violation
of Indian treaty rights but providing only equitable relief
implicitly held that damages are not available. In neither Fish-
ing Vessel nor Puyallup Tribe v. Department of Game of
Washington, 391 U.S. 392 (1968), however, were the Indians
seeking damages. See Fishing Vessel, 443 U.S. at 670 (suit
“seeking an interpretation of the treaties and an injunction
requiring the State to protect the Indians’ share of anadro-
mous fish runs”); Puyallup Tribe, 391 U.S. at 394 (“These
suits were brought by respondents in the state court against
the Indians for declaratory relief and for an injunction.”).
That, presumably, is why the availability of damages was not
discussed; courts are not in the habit of commenting on the
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2987
availability of relief no one wants. So, even if this availability
of damages were a question of first impression, the majority
would need more than its ipse dixit to support the damages/
equitable relief distinction central to its conclusion.
More important, the question before us emphatically is not
one regarding an undecided question. There is binding author-
ity supporting awarding monetary relief when Indians seek to
enforce their aboriginal rights, including such rights reserved
in a treaty.
The first sentence of Justice Powell’s opinion in County of
Oneida II explains: “These cases present the question whether
three Tribes of the Oneida Indians may bring a suit for dam-
ages for the occupation and use of tribal land allegedly con-
veyed unlawfully in 1795.” 470 U.S. at 229 (emphasis added).
To answer this question, the Court explored at some length
the historical availability of federal causes of action to enforce
Indian aboriginal rights, whether secured by treaties or not,
concluding that “Indians have a federal common[ ]law right to
sue to enforce their aboriginal land rights.” Id. at 235. Conse-
quently, the Oneidas could maintain their damages action “for
violation of their possessory rights based on federal common
law.” Id. at 236. Moreover, this circuit, citing County of
Oneida II, has similarly affirmed the ability of an Indian tribe
to bring a damages action against a public utility based upon
a federal common law cause of action. See United States v.
Pend Oreille Pub. Util Dist. No. 1, 28 F.3d 1544, 1549 n.8
(9th Cir. 1994);6 see also Mescalero Apache Tribe v. Burgett
Floral Co., 503 F.2d 336, 338 (10th Cir. 1974). This authority
makes plain that Indian tribes may bring a damages action
under federal common law to enforce their rights to use of
land.
6
We agreed in Pend Oreille with the plaintiffs’ argument that “damages
for trespass on Indian lands are controlled by federal law.” 28 F.3d at
1549; see also id. at 1549 n.8 (citing County of Oneida II for support).
2988 SKOKOMISH INDIAN TRIBE v. UNITED STATES
A closer examination of the nature of the Tribe’s claimed
rights further reveals the majority’s fundamental misunder-
standing of the very claim it summarily dismisses. Like the Onei-
das,7 the Tribe here is not simply seeking to enforce rights
created by the Treaty. Rather, it is claiming to enforce an
aboriginal right — the right “of taking fish at usual and
accustomed grounds and stations” (emphasis added) —
reserved in the Treaty. See Oneida Indian Nation v. County
of Oneida, 414 U.S. 661, 677 (1974) (County of Oneida I)
(characterizing the right claimed by the Tribe as one in which
“federal law now protects, and has continuously protected
from the time of the formation of the United States, posses-
sory right to tribal lands, wholly apart from the application of
state law principles which normally and separately protect a
valid right of possession”); see also Winans, 198 U.S. at 381-
82.
In this instance, the primary right at issue is not a claim to
plenary possession of land but, instead, a claim of right to
both the kind of “servitude” enforced in Winans, and to a
preservation of the fish flow itself. This distinction might mat-
ter were we to consider, on the merits, the asserted reach of
the rights reserved in the Treaty. But there is no conceptual
distinction that would explain why the right to possession
asserted in County of Oneida II, if it existed (which is what
the bulk of that opinion addressed, see 470 U.S. at 233-40)
would support a cause of action for damages, while the fish-
7
That the asserted aboriginal right here is enshrined in a treaty does not
separate this case from the County of Oneida precedents. The Oneidas’
challenge to the 1795 cession by the state of New York was predicated in
part upon the “Indians’ right to possession under the federal treaties”
between the United States and the Oneidas in the 1780s and 1790s.
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 664-65 (1974)
(County of Oneida I). As is true here, “the right to possession itself is
claimed to arise under federal law in the first instance. Allegedly, aborigi-
nal title of an Indian tribe guaranteed by treaty and protected by statute has
never been extinguished.” Id. at 676. The majority is thus wrong in stating
otherwise. Ante at 2964.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2989
ing rights here asserted, if they exist (which neither the major-
ity nor I address, see supra note 2) would not.
For these reasons, as the above-quoted language from
Winans suggests, the prism through which the majority is
viewing the treaty rights issue is inverted. The majority pro-
ceeds on the premise that federal enforcement of rights trace-
able to an Indian treaty always follows the same principles as
enforcement of treaties with nondomestic nations. But Indian
fishing rights, as Winans indicates, were not granted by the
treaties; rather, they were reserved by the treaties and are
traceable to aboriginal possessory interests, given up in part
in treaties. As such, the rights thus derived are enforceable, if
at all, under federal common law. See County of Oneida II,
470 U.S. at 233-36; Nez Perce Tribe v. Idaho Power Co., 847
F.Supp. 791, 799-800 (D. Idaho 1994) (holding that the fed-
eral common law action recognized in County of Oneida I is
available for damages actions based on purported tribal fish-
ing rights, noting that “the Tribe’s right to fish is aboriginal
in origin, as it was in [County of Oneida I], and is reinforced
by federal common law and the 1855 treaty.”).
Once more, so to state is not to settle the question whether
the rights here asserted — to preserve fish runs from destruc-
tions — were reserved by the Treaty of Point No Point. See
supra note 2. It is only to say that if the right was reserved,
it is enforceable in a damages action under the federal com-
mon law. In failing to acknowledge that possibility, and,
instead, resting on inappropriate analogies to treaties with for-
eign governments and on federal statutes having nothing to do
with Indian rights, the majority reaches a conclusion in direct
conflict with binding law.
II
After concluding that treaties, though self-enforcing and
enforceable in equity against third parties, may not be
enforced in damages against a party other than the signatories,
2990 SKOKOMISH INDIAN TRIBE v. UNITED STATES
the majority goes on to hold that neither the tribe nor any indi-
vidual members may bring suit under 42 U.S.C. § 1983. This
conclusion, like the conclusion that there is no possible fed-
eral common law cause of action for damages based upon
treaty-secured rights, reflects an inattention to nuance in the
case law with regard to the rights of Indian tribes and their
members.
First, the majority relies upon Inyo County v. Paiute-
Shoshone Indians of the Bishop Community, 538 U.S. 701
(2003), to support its conclusion that the Tribe may not,
because of its status as a sovereign, bring a claim under sec-
tion 1983. See ante at 2964.
Inyo County held that a tribe may not sue under § 1983 to
vindicate a right held solely because of its status as a sover-
eign. See Inyo County, 538 U.S. at 712. As the majority rec-
ognizes, ante at 2964, this narrow holding leaves open the
possibility that a tribe may bring suit to vindicate rights simi-
lar to those held by private persons. See id. at 711 (discussing
cases in which the Supreme Court had held states and foreign
nations to be “persons”).
The Tribe here, unlike the tribe in Inyo County, did not
base any of its § 1983 claims on rights or privileges held as
a sovereign (e.g. sovereign immunity), but rather on fishing
rights assertedly traceable to federal law and therefore beyond
the authority of local governmental entities to impair, because
of the Supremacy Clause. No special immunity premised on
sovereignty as such is claimed. Instead, the underlying right
asserted is one akin to a property right or a water right, com-
monly held by private parties, including entities such as cor-
porations or associations. Compare id. at 714 (“[T]he Tribe
rests its case entirely on its claim that, as a sovereign, it
should be accorded a special immunity that private casinos do
not enjoy.”) (Stevens, J., concurring in the judgment). Inyo
County therefore does not settle whether for purposes of this
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2991
case, the Tribe qualifies as a “person” who may sue under
§ 1983 to vindicate the rights asserted in its complaint.
Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir.
1989), is not to the contrary. Hoopa Valley held that
“[b]ecause the right to tribal government protects the powers
conferred upon the tribe, and not individual rights, it falls out-
side the scope of § 1983.” Id. at 662. But, as in Inyo County,
the tribe in Hoopa Valley was attempting to assert a tribal
government right, held solely because it was a sovereign —
namely, its freedom from state taxation.
Hoopa Valley also relies on a distinction between “power
conferring provisions” and “rights conferring provisions” of
federal law, holding that “power conferring provisions, such
as the Supremacy Clause,” are not rights that can be vindi-
cated under § 1983. Id. While the Supremacy Clause cannot,
by itself, form the basis of a § 1983 claim, see Golden State
Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107
(1989), that is because the Supremacy Clause “ ‘is not a
source of any federal rights.’ ” Id. (citation omitted). In Den-
nis v. Higgins, 498 U.S. 439 (1991), however, the Supreme
Court upheld a cause of action under § 1983 based on the
Commerce Clause, rejecting the argument that the Commerce
Clause could not be the basis of a § 1983 cause of action
because it “merely allocates power between the Federal and
State Governments and does not confer ‘rights.’ ” Id. at 447.
The Court instead held that the Commerce Clause both was
a “power allocating” provision and constituted a “substantive
restriction on permissible state regulation of interstate com-
merce.” Id. (internal quotation marks and citation omitted).
Somewhat similarly, in Golden State Transit Corp., the Court
held that rights created by the National Labor Relations Act
can support a § 1983 action, because in that circumstance
“ ‘pre-emption follows . . . as a matter of substantive right.’ ”
493 U.S. at 110 (quoting Brown v. Hotel & Restaurant
Employees Int’l Union Local 54, 468 U.S. 491, 503 (1984)).
2992 SKOKOMISH INDIAN TRIBE v. UNITED STATES
Here, the bases of the Tribe’s § 1983 claims are the Tak-
ings and Due Process Clauses of the federal Constitution,
although the fishing rights assertedly unconstitutionally taken
are traceable to the Treaty (and, ultimately, to aboriginal pos-
session). While it was a treaty in this instance that assertedly
preserved the fishing rights, in other instances similar Indian
fishing and hunting rights are preserved by agreement or stat-
ute, not treaty. See Antoine v. Washington, 420 U.S. 194, 200-
01 (1975). The rights here at issue, then, unlike the self-
governmental status central in Inyo County and Hoopa Valley
Tribe, are only indirectly and marginally connected to the
sovereign status of the Tribe. Private entities can also assert
Takings and Due Process claims, tracing their asserted prop-
erty rights to federal grants, reservations, agreements or stat-
utes. I would therefore be inclined to hold that § 1983 is
available to remedy the violations of federal law alleged by
the Tribe.8
I need not answer that question definitively, however, as I
am quite certain that a § 1983 suit can be maintained by the
individual tribe members. The majority’s reasoning to the
contrary runs thus: The only rights cognizable under § 1983
are individual rights; the Tribe’s right to fish is a communal
right; therefore, individual members may not bring suit to
enforce their fishing rights.
Before addressing this syllogism, I note that there is no
support for the more general proposition that treaty-based
rights cannot support a § 1983 cause of action, period. The
only case that even suggests as much, United States v. Wash-
ington, 813 F.2d 1020 (9th Cir. 1987) (Washington I), held
only that claims resulting solely in the interpretation of trea-
8
Once again, I am not addressing the merits questions whether the
Treaty in fact creates or preserves the asserted right, and whether, if so,
impairing that right violates § 1983. The only question addressed by the
majority, and therefore the only one I address, is whether the Tribe is enti-
tled to a judicial answer to those questions.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2993
ties are not cognizable under § 1983, but that if a state “vio-
lates these now known and well-delineated rights, there would
be an actual conflict between state and federal law which
might give rise to a § 1983 action.” Id. at 1023 (citation omit-
ted). So even this (rather odd) holding indicates that there are
cases in which violations of rights secured in part by Indian
treaties can give rise to § 1983 claims. And, in fact, we have
so recognized in a later appeal in United States v. Washington,
935 F.2d 1059 (9th Cir. 1991) (Washington II), where we
awarded fees under 42 U.S.C. § 1988, explaining:
[T]he case before us differs from these earlier cases
in a single critical respect: while previous litigation
has attempted to define the treaty rights, [this pro-
ceeding] is purely an action to enforce them. . . .
The tribes are entitled to section 1988 fees to
enforce such well-defined treaty rights.
Id. at 1061 (citation omitted).
In light of Washington II, Washington I should be reconsid-
ered rather than relied upon. Ordinarily, whether a case is
cognizable under § 1983 does not turn on whether the rights
are well-established or not, although qualified immunity does
turn upon that consideration. See Saucier v. Katz, 533 U.S.
194, 201 (2001); Wong v. U.S. INS, 373 F.3d 952, 966 (9th
Cir. 2004). The pertinent precedent for present purposes is
therefore Washington II, recognizing that Indian treaty fishing
rights can give rise to a § 1983 action.
As to the majority’s individual fishing rights syllogism, this
circuit has granted relief to individual tribe members suing to
enforce their treaty fishing rights. See Kimball, 493 F.2d at
569-70 (granting declaratory relief to individual Indians suing
to enforce their rights to hunt, trap, and fish within the Klam-
ath Indian Reservation free of Oregon fish and game regula-
tions, pursuant to a Treaty). Kimball was later cited by the
2994 SKOKOMISH INDIAN TRIBE v. UNITED STATES
Supreme Court in support of the proposition that “[s]uch
treaty rights [as the right to hunt and fish] can be asserted by
Dion as an individual member of the Tribe.” United States v.
Dion, 476 U.S. 734, 738 n.4 (1986). Dion cited for this propo-
sition, in addition to Kimball, Winans and United States v.
Felter, 752 F.2d 1505 (10th Cir. 1985). Id.
While Kimball did not involve a suit brought under § 1983,
it did reject the logic of the majority opinion: that individual
tribe members may not enforce treaty fishing rights because
they are communal. As Kimball explained:
Although the treaty giving exclusive fishing rights to
the Quinaielts was with the Tribe, the court held [in
Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925)] that
the right of taking fish was a right common to the
members of the Tribe and that “a right to a common
is the right of an individual of the community.” [Id.].
From Mason it is clear that an individual Indian
enjoys a right of user in tribal property derived from
the legal or equitable property right of the Tribe of
which he is a member.
590 F.2d at 773 (quoting Mason, 5 F.2d at 258) (parallel cita-
tion omitted). The hunting and fishing rights at issue in Kim-
ball, like the fishing rights here, were non-exclusive rights.
See id. at 774.9
9
Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974), and Whitefoot v.
United States, 293 F.2d 658 (Ct. Cl. 1961), upon which the majority rely,
were decided before both Kimball and Dion. Also, they concern the ques-
tion whether the individual fishing rights are subject to tribal regulation,
not whether individual rights consistent with tribal regulation may be
asserted by individual Indians. Settler, 507 F.3d at 232; Whitefoot, 293
F.2d at 661, 663. As such, they are not informative with respect to the
problem before us.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2995
Individual Indians have brought a number of § 1983 cases
in the district courts to enforce their treaty rights. While I rec-
ognize these opinions do not squarely address whether the
individual plaintiffs have stated a cognizable cause of action
under § 1983, they do indicate that other courts have found
this marriage of treaty rights and § 1983 to be acceptable. See,
e.g., Canadian St. Regis Band of Mohawk Indians ex rel.
Francis v. New York, 278 F. Supp. 2d 313 (N.D.N.Y. 2003);
Oyler v. Finney, 870 F. Supp. 1018 (D. Kan. 1994), aff’d, 52
F.3d 338 (10th Cir. 1995) (unpublished table decision); Mille
Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp.
1118 (D. Minn. 1994), aff’d, 124 F.3d 904 (8th Cir. 1997),
aff’d, 526 U.S. 172 (1999); Lac Courte Oreilles Band of Lake
Superior Chippewa Indians v. Wisconsin, 663 F. Supp. 682
(W.D. Wis. 1987), appeal dismissed, 829 F.2d 601 (7th Cir.
1987) (per curiam); Sohappy v. Smith, 302 F. Supp. 899 (D.
Or. 1969), aff’d in part, 529 F.2d 570 (9th Cir. 1976) (per
curiam).
I would therefore hold that the individual Indians may
bring suit under § 1983 asserting violation of treaty-secured
fishing rights.
III
With respect, finally, to plaintiffs’ reserved water rights
claims under Winters v. United States, 207 U.S. 564 (1908),
the majority concludes that the Tribe fails to show, for pur-
poses of surviving summary judgment, that there is a factual
dispute concerning whether preserving its ability to fish was
a primary purpose of its reservation under the Treaty.10 The
majority’s water rights analysis, once again, entirely disre-
gards binding precedent, proceeding as if both the reserved
10
That language comes from article 4 of the Treaty and explains that
“[t]he right of taking fish at usual and accustomed grounds and stations is
further secured to said Indians, in common with all citizens of the United
States . . . .”
2996 SKOKOMISH INDIAN TRIBE v. UNITED STATES
water doctrine and the interpretation of treaty fishing rights
language were matters of first impression. They are not.
Taking these questions in reverse order:
(1) I do not believe that the interpretation of the “right of
taking fish” language is directly controlling on the reserved
water rights issue. Reserved water rights cases usually con-
cern preservation of water flows of rivers and streams appur-
tenant to a federal reservation. See, e.g., Winters, 207 U.S. at
566-67; Joint Bd. of Control v. United States, 832 F.2d 1127,
1131 (9th Cir. 1987); United States v. Adair, 723 F.2d 1394,
1408 (9th Cir. 1983). The Treaty fishing language, in contrast,
pertains primarily to off-reservation fishing, preserving fish-
ing rights on non-reservation land that is accessible to both
Indians and non-Indians. See, e.g., Fishing Vessel, 443 U.S.
at 674-85.
This majority is wrong, however, in stating that the “right
of taking fish” language is not pertinent at all in establishing,
for purposes of the Winters doctrine, that preserving a fishing
culture was a primary purpose of the reservation. Ante at
____. The “taking fish” language indicates awareness by the
parties to the Treaty of the importance of fishing to the Tribe.
Surely, if the parties were concerned enough with protecting
the Tribe’s access to fish to create easements over private land
so as to allow off-reservation fishing, see Winans, 198 U.S. at
381, they would also be centrally concerned with preserving
the Tribe’s ability to fish in water accessible on the reserva-
tion itself.
Further, decades of hard-fought litigation concerning
Northwest Indian fishing rights have resulted in a Treaty
interpretation, ignored by the majority, that supports the
Tribe’s position. Fishing Vessel concerned the meaning of
identical treaty language to that in this case. See 443 U.S. at
674. In Fishing Vessel, the Washington Game Department
and, later, the State of Washington, proposed an “equal oppor-
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2997
tunity” approach to the language, arguing that “the treaties
gave the Indians no fishing rights not enjoyed by non-treaty
fishermen except the two rights previously recognized by
decisions of this Court — the right of access over private
lands to their usual and accustomed fishing grounds.” Id. at
671 (citations omitted).
The Supreme Court, however, unequivocally rejected such
an approach. The Court held that the treaty language does not
mean that Indians have only the same right as individual non-
Indians, but rather, that they retain a right to a portion of the
fish runs in an amount “so much as . . . is necessary to provide
the Indians with a livelihood — that is to say, a moderate liv-
ing.” Id. at 677, 686. While the percentage distribution can
vary depending upon factual conditions,11 the salient point is
that the “treaty guarantees the Indians more than simply the
‘equal opportunity’ along with all of the citizens of the State
to catch fish, and it in fact assures them some portion of each
relevant run.” Id. at 681-82. In so ruling, Fishing Vessel
exhaustively reviewed the treaty language itself, additional
language in the treaties, and six of the Court’s precedents,
concluding that the treaty language is “unambiguous” and that
all of the Court’s precedents reject an “equal opportunity”
approach. See id. at 674-84.
The majority ignores this binding treaty interpretation, rely-
ing instead on the absence of any language assuring exclusive
on-reservation fishing rights. For present purposes, however,
the question is not whether any fishing rights reserved are
exclusive. Rather, what is here pertinent is that the treaty does
reserve a right to take fish that goes beyond that held by citi-
zens generally. That interpretation of the treaty, commanded
11
“[A]n equitable measure of the common right should initially divide
the harvestable portion of each run that passes through a ‘usual and accus-
tomed’ place into approximately equal treaty and nontreaty shares, and
should then reduce the treaty share if tribal needs may be satisfied by a
lesser amount.” Fishing Vessel, 443 U.S. at 685.
2998 SKOKOMISH INDIAN TRIBE v. UNITED STATES
by the precedents, supports the conclusion that a primary pur-
pose of entering into the Treaty and establishing the reserva-
tion was preserving the Indians’ ability to engage in
subsistence fishing.
(2) Looking at the record as a whole, including the treaty
language, I would hold that the Tribe made a sufficient factual
showing on summary judgment that preserving the Tribe’s
fisheries was a primary purpose of agreeing to the Treaty and
creating the reservation.
In interpreting Indian treaties, we pay particular attention to
the sense in which the Indians would naturally have under-
stood the treaty. As Fishing Vessel explained:
When Indians are involved, this Court has long
given special meaning to this rule. It has held that
the United States, as the party with the presump-
tively superior negotiating skills and superior knowl-
edge of the language in which the treaty is recorded,
has a responsibility to avoid taking advantage of the
other side. “[T]he treaty must therefore be construed,
not according to the technical meaning of its words
to learned lawyers, but in the sense in which they
would naturally be understood by the Indians.”
443 U.S. at 675-76 (quoting Jones v. Meehan, 175 U.S. 1, 11
(1899) (alteration in original)). As noted, fishing was suffi-
ciently important to the Tribe that even off-reservation fishing
rights were enshrined in the Treaty, suggesting that the Tribe
would not have agreed to the Treaty were it not assured that
it could continue its traditional fishing way of life. In addition,
there is expert historical evidence in the record so indicating,12
12
For example, Richard White, Professor of American History at Stan-
ford University and an expert on the Stevens treaties and the Puget Sound
tribes, wrote that:
SKOKOMISH INDIAN TRIBE v. UNITED STATES 2999
and indicating as well that the United States saw preservation
of the Tribe’s fisheries as essential to the Treaty.13
Moreover, the evidence that TPU and the City offer to
refute the Tribe’s claim is not enough to support summary
judgment. They assert that a primary purpose of the reserva-
tion is agriculture. Assuming that to be true, such a purpose
would not preclude finding that another primary purpose of
the reservation was fishing. There does not have to be only
one primary purpose to a reservation. See Adair, 723 F.2d at
1410 (“Neither Cappaert[, 426 U.S. 128 (1976),] nor New
Mexico[, 438 U.S. 696 (1978),] requires us to choose between
[agriculture or hunting/fishing] or to identify a single essential
purpose which the parties to the 1864 Treaty intended the
Klamath Reservation to serve.”); see also Colville Confeder-
ated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981) (hold-
ing that there was an implied reservation of water for fishing
grounds while recognizing that both “[p]roviding for a land-
When read with a real attempt to discern Indian concerns, the
treaty journals reveal a concern on the part of the Indians for pre-
serving their entire subsistence cycle and particularly the full
range of the species in their fisheries. What Indians wanted was
access to their customary food resources.
13
Professor White’s declaration reports, relying on documents concern-
ing the negotiation of the Stevens treaties, that Stevens promised the Indi-
ans that “as for food, you yourselves now, as in times past, can take care
of yourselves . . . you will have the means and the opportunity to cultivate
the soil to get your potatoes and to go over these waters in your canoes
to get your fish.” (emphasis added). Professor White goes on to explain:
Stevens’s desire for Indians to have permanent access to fish,
including shellfish, makes perfect sense given his ambitions for
the treaty. Permanent access to food supplies meant that the costs
of the treaties could be kept down. Permanent access to resources
meant that Indians could feed themselves and still be available
for seasonal labor among whites. Permanent access to resources
meant that Indians could continue to serve as suppliers of shell-
fish and other fish to the white market.
3000 SKOKOMISH INDIAN TRIBE v. UNITED STATES
based agrarian society” and that “preservation of the tribe’s
access to fishing grounds” were purposes for the reservation).
Furthermore, the majority’s comparison to Adair to note
that decision’s reliance on the express recognition of fishing
rights is unpersuasive. That the treaty at issue in Adair
expressly recognized an exclusive fishing right does little to
impair the Tribe’s case here. Express treaty recognition of the
specific purpose as exclusive is not necessary to recognize an
activity as a primary purpose of a reservation. See Adair, 723
F.2d at 1409 (implying the right to hunt from language that
only noted “fishing and gathering rights”). Indeed, express
recognition of any purpose is not even necessary for that pur-
pose to be a primary one. Colville Confederated Tribes, 647
F.2d at 47 & n.8 (implying a reservation of water for both irri-
gation and fishing purposes from a one paragraph Executive
Order that articulates no purpose for the reservation).14
The majority does not consider in any detail the evidence
submitted by the Tribe regarding its Winters claim, instead
responding to the Tribe’s claims with a narrow and inaccurate
reading of the record and of our precedents. I submit that the
weight of history and the unequivocal judicial authorities
compel an understanding of Indian law that accounts for the
unique traditions of Indians. Looking at the record and at the
precedents with the requisite historical perpective, I conclude
that summary judgment on the reservation of water rights
claim was improper.
* * * *
In sum, because I find no support for barring the Tribe and
14
I am not prepared to say how many fish the Tribe is entitled to or how
many gallons of reserved water that implies. Those questions have no
answer until there is a definitive determination, after trial, of what water
rights were reserved by the Treaty, the question never reached by the
majority.
SKOKOMISH INDIAN TRIBE v. UNITED STATES 3001
its members from bringing suit — either under the federal
common law based on Treaty-secured rights or via § 1983 —
I respectfully dissent. I also dissent from the grant of sum-
mary judgment on the reserved water rights claim. Once
more, because the majority does not decide the question, criti-
cal though it is, I do not decide whether the Tribe or its mem-
bers have alleged a right to preservation of fisheries that is
protected under federal common law or § 1983.