Amicus Curiae Brief — Snoqualmie Indian Tribe, Petitioner v. Washington, et al.

No. 21-1248

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SNOQUALMIE INDIAN TRIBE,

Petitioner,

v.

STATE OF WASHINGTON, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE SAUK-SUIATTLE

INDIAN TRIBE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------JACK WARREN FIANDER,

General Counsel

SAUK-SUIATTLE INDIAN TRIBE

5318 Chief Brown Lane

Darrington, WA 98241

(360) 436-0139

(509) 969-4436

towtnuklaw@msn.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1. Does a United States District Court or a Circuit Court of Appeals possess authority, in the absence

of clear and plain expression embodied in an act of

Congress, to abrogate all rights guaranteed to an Indian tribe under a ratified treaty, notwithstanding that

the United States Department of the Interior as the

federal agency with authority to recognize Indian

tribes has deemed the tribe to be the successor in interest to the tribe that signed the treaty?

2. May a United States District Court or Court

of Appeals, consistent with Article III of the United

States Constitution, apply the common law principles

of former adjudication such as res judicata, issue preclusion, claim preclusion or judicial estoppel, to abrogate the Treaty rights of a tribal nation which are

among the Supreme Laws of the Nation according to

U.S. Const., Art. VI, Cl. 2—or do equitable doctrines of

common law supersede the Constitution?

3. Was it appropriate for the Judicial Branch to

depart from the established principle that, as to matters of fact, the judiciary should defer to federal agencies that possess the most experience, in this case the

Department of Interior’s expertise and experience in

Indian Affairs?

4. When a plaintiff lacks the Article III standing

at the time an initial complaint is filed, can subsequent

events cure the defect by filing a supplemental pleading or a new lawsuit? Certiorari should be granted to

resolve the wide disarray among the Circuit Courts of

Appeals that have considered this issue.

ii

PROCEEDING BELOW

The Ninth Circuit erroneously extended a holding

in United States v. Washington applicable to off-reservation treaty fishing rights through the discretionary

common law doctrine of “issue preclusion” to abrogate

all of Snoqualmie’s Treaty rights, absent Congressional action, in contravention of nearly two centuries

of well-settled U.S. Supreme Court precedent.

The opinion of the Ninth Circuit is reported at

Snoqualmie Indian Tribe v. Washington, 8 F.4th 853

(9th Cir. 2021). The opinion of the District Court for the

Western District of Washington is unreported.

CORPORATE DISCLOSURE STATEMENT

Amicus Curiae Sauk-Suiattle Indian Tribe is a

federally recognized Indian tribe. It does not have a

parent corporation, and no publicly held corporation

holds stock in the Tribe.

No other party or counsel authored this amicus

brief in whole or in part, and no person or entity other

than amicus contributed funds toward the preparation

of this brief.

iii

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of this Court’s Rule

14.1(b)(iii): Snoqualmie Indian Tribe v. State of Washington, No. 3:19-cv-06227-RBL (W.D. Wash. Order Mar.

18, 2020), consolidated appeal docketed, Snoqualmie

Indian Tribe v. State of Washington, No. 20-35346 and

Samish Indian Nation v. State of Washington, No. 2035353, decision issued Aug. 6, 2021, 9th Cir., 8 F.4th

853, rehearing denied Nov. 12, 2021.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PROCEEDING BELOW ......................................

ii

CORPORATE DISCLOSURE STATEMENT ......

ii

STATEMENT OF RELATED PROCEEDINGS ....

iii

INTRODUCTION ................................................

1

INTEREST OF AMICUS CURIAE ......................

2

FACTUAL BACKGROUND .................................

2

SUMMARY OF ARGUMENT ..............................

3

STATEMENT OF THE CASE..............................

4

REASONS FOR GRANTING THE PETITION .....

9

1.

The Ninth Circuit’s Decision Conflicts

With The Precedent Of This Court ............ 10

a. The Ninth Circuit Radically Departed

From This Court’s Precedent When It

Abrogated All Of Snoqualmie’s Treaty

Rights Absent Congressional Action ..... 10

2.

The Ninth Circuit Radically Departed

From This Court’s Precedent Regarding

Principles Of Former Adjudication When

It Applied The Common Law Doctrines Of

Issue Or Claim Preclusion To Bar Appellant’s Treaty Hunting Rights Litigation ..... 12

v

TABLE OF CONTENTS—Continued

Page

3.

The Supreme Court, In The Exercise Of

Its Supervisory Authority Over The District And Circuit Courts Should Accept

Certiorari Review For The Purpose Of

Correcting The Ninth Circuit’s Erroneous

Melding Of The Common Law Principle Of

Issue Preclusion With The Article III Requirements Of Standing. The Circuit

Courts Of Appeals Have Differed On This

Issue ........................................................... 18

4.

The Questions Presented Are Of Exceptional Importance ...................................... 24

CONCLUSION..................................................... 27

vi

TABLE OF AUTHORITIES

Page

CASES

Arizona v. California, 530 U.S. 392 (2000) .................13

Baker v. Carr, 369 U.S. 186 (1962) .............................19

Frank v. Alaska, 604 P. 2d 1068 (Alaska 1979) ..........25

Greene v. Babbitt, 64 F.3d 1266 (1995) .......................13

Lawlor v. National Screen Service Corp., 349

U.S. 322 (1955) ........................................................16

Linda R. S. v. Richard D., 410 U.S. 614 (1973) ..........19

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ......... 10, 11

Loving v. Virginia, 381 U.S. 1 (1967) ............................8

Lucky Brand Dungrees, Inc. v. Marcel Fashions

Group, No. 18-1086 (May 14, 2020) .................. 15, 16

Menominee Tribe v. United States, 391 U.S. 404

(1968) .......................................................................11

Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007)........23

Montana v. United States, 440 U.S. 147 (1979) .........14

Northstar Fin. Advisors, Inc. v. Schwab Invs.,

779 F.3d 1036 (9th Cir. 2015) ..................................22

Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979) .......................................................................12

Rockwell Int’l Corp. v. United States, 549 U.S.

457 (2007) ................................................................22

Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604

(1987) .........................................................................8

vii

TABLE OF AUTHORITIES—Continued

Page

Scahill v. District of Columbia, 909 F.3d 1177

(2018) .......................................................................23

Skokomish Indian Tribe v. Forsman, 738 Fed.

Appx. 406 (9th Cir. 2018) ........................................13

Skokomish Indian Tribe v. Goldmark, 994

F.Supp.2d 1168 (W.D. Wash. 2014) .........................13

Snoqualmie Tribe of Indians v. United States,

178 Ct. Cl. 570, 372 F.2d 951 (1967) ..................... 5, 6

State v. Miller, 102 Wn. 2d 678 (1984) .......................26

Tracie Park v. Forest Service, 205 F.3d 1034 (8th

Cir. 2000) .................................................................23

United States ex rel. Gadbois v. PharMerica

Corp., 809 F.3d 1 (1st Cir. 2015) ....................... 22, 23

United States v. Antelope, 430 U.S. 641 (1977) ..........15

United States v. Broncheau, 597 F.2d 1260 (9th

Cir. 1979) .................................................................15

United States v. Choctaw Nation, 179 U.S. 494

(1900) .......................................................................25

United States v. Dion, 476 U.S. 734 (1986) ................11

United States v. Oregon, 29 F.3d 481 (9th Cir.

1994) ........................................................................13

United States v. Torres, 733 F.2d 449 (7th Cir.

1984) ........................................................................15

United States v. Washington, 476 F.Supp. 1101

(W.D. Wash. 1979) (“Washington II”) .............. passim

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. Washington, 593 F.3d 790 (9th

Cir. 2010) (“Washington IV”) ...................................21

United States v. Winans, 198 U.S. 371 (1905) ...... 25, 26

Warth v. Seldin, 422 U.S. 490 (1975) .................... 19, 20

Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 433 U.S. 658

(1979) .......................................................................11

Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292 (2016) ..............................................................16

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. II ...................................................... 3, 9

U.S. Const. Art. III .............................................. passim

U.S. Const. Am. X ........................................................18

STATUTES

28 U.S.C. §1345 ...........................................................19

28 U.S.C. §1362 ...........................................................20

OTHER AUTHORITY

1854 Annual Report of the Commissioner of Indian Affairs ............................................................ 4, 5

Constitution and Bylaws of the Puyallup Tribe ........15

ix

TABLE OF AUTHORITIES—Continued

Page

Final Determination To Acknowledge the Snoqualmie Tribal Organization, 62 Fed. Reg. 4586402, 45865 (Aug. 29, 1997) ..........................................8

James Madison, Vices of the Political System of

the United States .....................................................17

K.D. Tollefson, The Political Survival of Landless Puget Sound Indians, 16 American Indian

Quarterly, No. 2 (Spring, 1992) .................................7

R. Skowron, Whether Events After the Filing of

an Initial Complaint May Cure an Article III

Standing Defect: The D.C. Circuit’s Approach,

61 Boston College L. Rev., Vol. 61, article 19

(April 28, 2020) ........................................................22

Restatement (Second) of Judgments §28 (1982) .......15

Wright & Miller §4407 ...............................................16

1

INTRODUCTION

The Ninth Circuit’s decision below is irreconcilable with precedent of this Court governing Indian

Treaty rights and the limitations imposed by the Constitution on the authority of the Judiciary vis-a-vis

Indian affairs. The Supreme Court has consistently required an Act of Congress to abrogate Indian Treaty

rights. The Ninth Circuit departed from established

caselaw by holding that discretionary common law

doctrines like issue preclusion—not Congressional action—may be applied to abrogate rights reserved in a

Treaty.

The Ninth Circuit’s decision presents federal questions of exceptional importance in that the vast majority of tribal nations are situated within the western

United States and the Ninth Circuit has drastically departed from and relaxed the stringent test for Treaty

abrogation.

Grant of certiorari is necessary to reconcile differing decisions among the Circuit Courts of Appeals regarding Standing under Article III.

---------------------------------♦---------------------------------

2

INTEREST OF AMICUS CURIAE1

Amicus is the Sauk-Suiattle Indian Tribe. Petitioner is the Snoqualmie Tribe.

As a result of their shared culture, both being situated in the crests of the Cascade Mountains, numerous members of amicus and petitioner are eligible for

enrollment in the other’s tribe. Being parties to the

same Treaty and their shared histories of similarly situated cultural values and geographical locations, amicus curiae feels compelled to support our extended

family tribe.

---------------------------------♦---------------------------------

FACTUAL BACKGROUND

The Executive branch negotiated the Treaty of Point

Elliott with Snoqualmie in 1855, and Congress ratified

the Treaty in 1859. Since then, the Executive has repeatedly confirmed Snoqualmie’s status as a federally

recognized tribal nation and Treaty signatory. Congress has never abrogated the rights reserved by the

Snoqualmie in the Point Elliott Treaty.

Amicus Curiae is a signatory to the same Treaty.

Amicus and petitioner have a shared culture. Both are

situated in the Cascade Mountains. According to anthropological reports, both tribes were skilled land

hunters, a major portion of whose diet was based upon

the hunting of wildlife.

1

All parties have been timely notified.

3

Neither tribe was officially recognized by the

United States government as a tribe in 1974 and 1978,

yet amicus curiae was held to possess Treaty fishing

rights while appellant was not.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

1. The precedents of this Court have uniformly

confirmed that only Congress, acting pursuant to its

Article II authority, possesses the power to abrogate

Indian Treaty rights and that the Judiciary in the exercise of its Article III authority may only interpret the

treaties of tribal nations. The judiciary must remain

within its authority under Article III of the United

States Constitution. By judicially abrogating petitioner

Snoqualmie’s Treaty hunting right, the district and appellate court strayed into the lane of another branch of

government.

2. The equitable principles of issue preclusion or

claim preclusion should not have been applied by the

courts below to foreclose appellant’s litigation. The

matters formerly adjudicated in the litigation relied on

by the district and circuit courts did not involve “the

same issues or claims” as were involved in the litigation appeal.

3. The denial of intervention in the penultimate

case relied upon by the Ninth Circuit was de jure a

denial based upon standing. The Circuit Courts of

4

Appeals differ as to the standards for curing a standing

defect based upon subsequent events.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

The Snoqualmie hunted in their traditional territory since time immemorial. Situated in the Snoqualmie Valley near the crest of a mountain range that

extended from Canada to what is now northern California, the Snoqualmie maintained kinship ties to

tribes situated on both the eastern and western sides

of what would later be named the Cascade Mountains.

As stated in the 1854 Annual Report of the Commissioner of Indian Affairs:

[U]pon the main branch of the [Sin-a-ho-mish]

river is another band, not under the same

rule, the Sno-qual-moos, amounting to about

two hundred souls. Their chief, Pat-ka-nam,

has rather an evil celebrity among the whites,

and two of his brothers have been hung for

their misdeeds. This band are especially connected with the Yakamas, or, as they are

called on the sound, Klickatats.

Their identity as a distinct tribal entity and their continuous relationship with the federal government is

well-settled:

Documentary sources have clearly and consistently identified a body of Snoqualmie Indians living in the general vicinity of the

5

Snoqualmie River Valley of western Washington from at least 1844 . . . Federal identification has continued unbroken to the present

time.

See 1854 Annual Report cited infra. Like amicus

curiae Sauk-Suiattle Indian Tribe, whose territory

was also situated deep in the Cascade Mountains, the

Snoqualmie people were “land hunters” who “were

rated as one of the better hunting tribes” and who

“wandered and roamed through the Cascade Mountains hunting.” Snoqualmie Tribe of Indians v. United

States, 178 Ct. Cl. 570, 590, 372 F.2d 951, 962 (1967).

They “relied on hunting for a large part of their subsistence.” Annual Report of the Commissioner of Indian Affairs (1854), p. 246. In this regard, the culture

of the Snoqualmie is strikingly similar to that of amicus curiae.

On January 22, 1855, Snoqualmie Chief Pat-ka-nam

signed the Treaty along with fourteen signers who

were identified as representatives of Snoqualmie. In

return for cession of their ancestral lands, Snoqualmie

reserved the right of hunting and gathering roots and

berries on open and unclaimed lands, in common with

citizens of Washington Territory. In the 1950s, in the

midst of another of the United States’ ever-changing

Indian policies known as the “Termination Era,”

Snoqualmie along with over 100 other tribes, lost its

status as a federally-recognized tribe.

6

In the 1970s, while considered unrecognized and

landless, Snoqualmie sought to intervene in United

States v. Washington to exercise the off-reservation

fishing rights it reserved in the Treaty. United States

v. Washington, 476 F.Supp. 1101 (W.D. Wash. 1979)

(“Washington II”). Applying its own criteria that exceeds the judiciary limit to determine “treaty status”

for fishing rights, the district court denied Snoqualmie Treaty fishing rights because, in its view, the

Snoqualmie had “intermarried with non-Indians,”

“took up the habits of non-Indian life [living] as citizens of the State of Washington in non-Indian communities,” and because Snoqualmie was then considered

unrecognized and landless. Id. at 1103, 1108–09. The

district court made no effort to reconcile the fact that

Snoqualmie lost its recognized status and that the

Snoqualmie people were forced to live among nonIndians because the United States failed to set aside a

reservation for the Snoqualmie as promised in the

Treaty. Id.

Notwithstanding that in Snoqualmie Tribe of Indians v. United States, the United States Court of

Claims recognized the Snoqualmie Tribe of Indians as

an existing organization and has the “exclusive privilege” of presenting the Snoqualmie claim and representing the present-day Snoqualmie descendants and

that the Court of Claims ultimately awarded compensation to the Snoqualmie Tribe. Snoqualmie Tribe of

Indians v. United States, 178 Ct. Cl. 570, 582, 372 F.2d

951, 957–58 (1967). In 1979 the district court in Washington II ruled that Snoqualmie Tribe is not an entity

7

descended from tribal entities that were signatory to

the Treaty of Point Elliott.2

On appeal in this case, the Ninth Circuit disagreed

with the district court’s reasoning, but nonetheless affirmed the outcome of Washington II. Although the

Snoqualmie were “descended from treaty tribes,” the

Ninth Circuit reasoned that the district court’s decision was not clearly erroneous because Snoqualmie

had “intermarried with non-Indians and many [were]

of mixed blood” and “ha[d] not settled in distinctively

Indian residential areas,” the evidence supported the

district court’s finding of insufficient political and cultural cohesion to allow Snoqualmie to exercise Treaty

fishing rights. 641 F.2d 1368, 1373–74 (9th Cir. 1981).

The Circuit’s reasoning should be relegated to this

nation’s distant, and less enlightened, past. Abrogating

Snoqualmie’s Treaty rights because its members “intermarried with non-Indians” or settled in residential

areas not set aside exclusively for Indians is far too

reminiscent of the rationales justifying punishing

The ruling was based in part on a misapplication of the

Charles E. Roblin enrollment data. Roblin was assigned to collect

a list of claims by thousands of Indians in western Washington

who had not received federal benefits derived from the 19th century treaties. Roblin wrote in his report that “the Snoqualmie

were living under true Indian conditions. . . . a considerable

number of full-blood Snoqualmie Indians . . . around Tolt, Falls

City, and the towns in that district” were living in “Indian settlements” because “they preferred to stay in their ancient habitat.”

See, K.D. Tollefson, The Political Survival of Landless Puget

Sound Indian, 16 American Indian Quarterly, No. 2 (Spring,

1992), pp. 213–235, Published by: University of Nebraska Press.

2

8

African Americans for marrying white people that this

Court disavowed in Loving v. Virginia, 381 U.S. 1

(1967). Furthermore, thirty five years ago, this Court

recognized the arbitrary nature of racial categories as

invented social constructions and stated that “[c]learcut [racial] categories do not exist. The particular

traits which have generally been chosen to characterize races have been criticized as having little biological

significant. It has been found that differences between

individuals of the same race are often greater than the

differences between the ‘average’ individuals of different races.” Saint Francis Coll. v. Al-Khazraji, 481 U.S.

604, 610 n.4 (1987).

After the decision in Washington II, the United

States, through proceedings before the United States

Department of the Interior, formally recognized

Snoqualmie in 1997. The Assistant Secretary of the

U.S. Department of Interior confirmed Snoqualmie’s

status as a Treaty signatory and federally recognized

tribe, with requisite political and cultural cohesion

dating back to 1855 when Snoqualmie signed the

Treaty. See Final Determination To Acknowledge the

Snoqualmie Tribal Organization, 62 Fed. Reg. 4586402, 45865 (Aug. 29, 1997).

In 2020, the Executive Branch again affirmed

Snoqualmie’s status as a Treaty signatory when it issued a decision taking a portion of Snoqualmie’s ancestral homelands into trust status. Interior relied on its

1997 determination that Snoqualmie had maintained

continuity from the time it signed the Treaty in 1855

to the present. Interior confirmed that:

9

Snoqualmie [was] a party to the Treaty[.]

And that the Treaty “remains in effect” as to

Snoqualmie, and acknowledged the United States’

ongoing trust responsibility to Snoqualmie arising

from the Treaty.

This case arose in 2019 when Washington State,

through the Washington State Department of Fish and

Wildlife, informed Snoqualmie by letter that it had determined “the Snoqualmie Tribe does not have off-reservation hunting and fishing rights under the Treaty.”

Snoqualmie initiated this case in response.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

The judicial abrogation of Snoqualmie’s Treaty

rights without Congressional action is an unconstitutional expansion of the Judiciary’s authority in Indian

affairs that conflicts with the precedent of this Court

and with the authority of federal courts constrained in

Article III. It also ventured into unwarranted, or ultra

vires, intrusion into a matter confined to the authority

of Congress by Article II. By denying Snoqualmie, by

judicial fiat, of all of the rights it reserved in the Treaty,

Snoqualmie now finds itself as a signatory to a Treaty

with the United States which has no Treaty rights.

Moreover, the Circuit’s denial of recognition of

Snoqualmie’s rights was premised partly upon socalled binding common law principles of former

10

adjudication in a case in which it was not even allowed

to intervene as a party.

The federal appellate courts have reached differing results regarding whether events subsequent to an

original complaint can cure a jurisdictional defect. Unless the Supreme Court accepts certiorari to establish

a uniform rule, litigants are likely to “forum shop” as

to which Circuit to bring a case within.

1. The Ninth Circuit’s Decision Conflicts With

The Precedent Of This Court.

a. The Ninth Circuit Radically Departed

From This Court’s Precedent When It

Abrogated All Of Snoqualmie’s Treaty

Rights Absent Congressional Action

The Framers of the Constitution intentionally

crafted separation of powers principles governing the

United States’ relations with Indian tribal nations.

The well-settled precedent of this Court has long recognized two fundamental tenants of federal Indian law

that control the United States’ Treaty relations with

Indian tribes: Congress alone has the power to abrogate an Indian Treaty; and, the Judiciary only has the

power to interpret an Indian Treaty.

This Court long ago identified the requisite for abrogation of Indian Treaty rights: Congressional action.

In Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the

Court explained that Congress has the power

11

to abrogate the provisions of an Indian treaty,

through presumably such power will be exercised only when such circumstances arise

which will not only justify the government in

disregarding the stipulations of the treaty, but

may demand it, in the interest of the country

and the Indians themselves, that it should do

so.

Id. at 553. As stated in Snoqualmie’s petition, the established precedent of this Court is clear: Indian

Treaty rights remain extant unless Congress expressly

abrogates those rights, and the Judiciary must preserve Indian Treaty rights unless Congress’ intent to

the contrary is clear and unambiguous.3

This Court has repeatedly affirmed that a right

guaranteed by a Treaty to an Indian tribe is abrogated

where Congress—and Congress alone—demonstrated

a clear and plain intent to abrogate that Treaty right.

See Dion, 476 U.S. 734.

3

See Wash. State Commercial Passenger Fishing Vessel

Ass’n, 433 U.S. 658, 690 (1979) (“Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights”); see also United States v. Dion, 476 U.S.

734, 738–39 (1986) (“requir[ing] that Congress’ intention to abrogate Indian treaty rights be clear and plain”); Menominee Tribe of

Indians v. United States, 391 U.S. 404, 413 (1968) (“[w]e find it

difficult to believe that Congress, without explicit statement,

would subject the United States to a claim for compensation by

destroying property rights conferred by treaty”). There exists a

strong presumption against Treaty abrogation, even going so far

as to hold that a Congressional act terminating the United States’

trust relationship with an Indian tribe failed to extinguish that

tribe’s Treaty rights. Menominee, 391 U.S. at 412–13.

12

The Ninth Circuit departed from the precedent of

this Court governing the role of the Judiciary and separation of powers in Indian affairs and Indian Treaty

rights by erroneously extending a holding in United

States v. Washington applicable to off-reservation

Treaty fishing rights under the guise of issue preclusion to abrogate all of Snoqualmie’s Treaty rights. By

failing to look to the Acts of Congress to determine

whether Snoqualmie possesses Treaty hunting and

gathering rights, the Ninth Circuit impermissibly

usurped the role of the Legislative Branch in managing the relationship between the United States and Indian tribes—an unprecedented departure from the

central tenants of Indian law that demands this

Court’s intervention and a clear violation of the doctrine of separation of powers.

2. The Ninth Circuit Radically Departed From

This Court’s Precedent Regarding Principles Of Former Adjudication When It Applied The Common Law Doctrines Of Issue

Or Claim Preclusion To Bar Appellant’s

Treaty Hunting Rights Litigation.

This Court has consistently reprimanded “the use

of offensive collateral estoppel” that “runs counter to

[a] strong federal policy.” Parklane Hosiery Co. v. Shore,

439 U.S. 322, 355 (1979). The federal policy of the

United States government towards Indian nations is

founded upon the solemn obligation to adhere by

Treaty rights. That too is a “strong federal policy.” A

tribe need not have federal recognition to establish

13

that they are the beneficiary of a Treaty. Greene v. Babbitt, 64 F.3d 1266, 1270 (1995). It is sufficient that a

group establish that they have preserved an organized

tribal structure that it can trace back to the Treaty.

United States v. Oregon, 29 F.3d 481, 484 (9th Cir.

1994).

United States v. Washington was a civil action

brought by the United States to determine the scope

and extent of Treaty fishing rights. United States v.

Washington, 384 F.Supp. 312, 330 (W.D. Wash. 1974)

(“The ultimate objective of this decision is to determine . . . treaty right fishing.”); see also Washington II,

641 F.2d at 1370. When this Court has taken up United

States v. Washington previously, it has never applied

the case to anything other than off-reservation Treaty

fishing rights. The narrow boundaries on the scope of

that case is easily discernible from the Government’s

1970 Complaint initiating the case (C-70-9213, docket

entry 1).

The general rule of this Court is that issue preclusion attaches only when an issue is “actually litigated” and determined by a valid and final judgment.

Arizona v. California, 530 U.S. 392, 397 (2000). Unlike

the off-reservation fishing rights in United States v.

Washington, the hunting and gathering rights guaranteed by the Stevens Treaties have never been adjudicated. See, e.g., Skokomish Indian Tribe v. Goldmark,

994 F.Supp.2d 1168, 1174 (W.D. Wash. 2014) (noting

that “the scope of the hunting and gathering provision

has not been previously litigated in federal court”);

Skokomish Indian Tribe v. Forsman, 738 Fed. Appx.

14

406, 408 (9th Cir. 2018) (“No plausible reading of [Washington I] or subsequent proceedings and appeals to this

Court supports the conclusion that the [United States

v. Washington] litigation decided anything other than

treaty fishing rights.”).

This Court has considered two dispositive factors

when determining the offensive use of issue preclusion: (1) “whether controlling facts or legal principles

have changed significantly since the original judgment, and (2) whether “other special circumstances

warrant an exception to the normal rules of preclusion.” Montana v. United States, 440 U.S. 147, 155

(1979).

As to whether controlling facts or legal principles

have changed significantly, at the time the district

court in 1979 concluded, based on little information,

that Snoqualmie was not a successor to those who

signed the Treaty, Snoqualmie had not been given official recognition as an Indian tribe by the U.S. Since

then, Snoqualmie—following an extensive federal administrative process—has received federal recognition

as the successor in interest to the Snoqualmie who

signed the Treaty and that Snoqualmie operated continuously as a distinct tribal identity. It cannot be said

that this change of status is not a significant change

considering the burdens imposed by the federal acknowledgment process’ rigorous research and documentation requirements on tribes and the degree in

which the state infringes upon political sovereignty of

unrecognized tribes. Additionally, in contemporary society, describing tribal persons who intermarry those

15

of another race as having lost their tribal identity

would certainly be labeled discriminatory and against

public policy.4 Many tribes have no such “blood quantum” requirements for tribal membership but rather

base it upon descendancy.5

Issue preclusion is just a discretionary, common

law doctrine. See Restatement (Second) of Judgments

§28, cmt. j (1982). This Court held, in Lucky Brand

Dungrees, Inc. v. Marcel Fashions Group, No. 18-1086

(May 14, 2020), that principles of former adjudication

referred to as “defense preclusion”—an aspect of res judicata which includes both issue preclusion and claim

preclusion—could not prevent a litigant from presenting new evidence in support of its defense if the matter

did not share a “common nucleus of operative fact[s]”

for preclusion to apply, citing the Restatement (Second) of Judgments §24, Comment b, p. 199:

Put simply, the two suits here were grounded

on different conduct, involving different marks,

occurring at different times. They thus did not

share a “common nucleus of operative facts.”

Federal recognition or formal enrollment in an Indian tribe

“has not been held to be an absolute requirement for federal jurisdiction.” United States v. Antelope, 430 U.S. 641, 647 n.7 (1977).

It is, however, “the common evidentiary means of establishing

Indian status, but it is not the only means, nor is it necessarily

determinative.” United States v. Torres, 733 F.2d 449, 455 (7th

Cir. 1984); United States v. Broncheau, 597 F.2d 1260, 1263 (9th

Cir.), cert. denied, 444 U.S. 859 (1979).

5

See, e.g., Constitution and Bylaws of the Puyallup Tribe.

https://www.codepublishing.com/WA/PuyallupTribe/#!/Puyallup

TribeCN.html.

4

16

As stated by this Court, in Lucky Brand, “claims to relief may be the same for the purposes of claim preclusion if, among other things, ‘a different judgment in the

second action would impair or destroy rights or interests established by the judgment entered in the first

action.’ ” Id., citing Wright & Miller §4407. This Court

went on to state that:

Not only that, but the complained-of conduct

in the 2011 Action occurred after the conclusion of the 2005 Action. Claim preclusion generally “does not bar claims that are predicated

on events that postdate the filing of the initial

complaint.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016) (slip op.,

at 12) (internal quotation marks omitted);

Lawlor v. National Screen Service Corp., 349

U.S. 322, 327–328 (1955) (holding that two

suits were not “based on the same cause of action,” because “[t]he conduct presently complained of was all subsequent to” the prior

judgment and it “cannot be given the effect of

extinguishing claims which did not even then

exist and which could not possibly have been

sued upon in the previous case”).

Such an analysis perfectly fits the situation petitioner

Snoqualmie finds itself it. Its unsuccessful attempt to

intervene in a 1970 Treaty fishing rights case was denied and, subsequently, 27 years later the United

States government recognized petitioner as a tribe

and Treaty signatory. Then, 22 years after that,

Snoqualmie sought to exercise Treaty hunting rights

reserved in the Treaty its leaders signed in 1855 and

17

the State of Washington determined on its own that

Snoqualmie lacked Treaty rights and so informed

Snoqualmie. This resulted in the need for Snoqualmie

to initiate its litigation.

The exercise of hunting rights over 40 years after

the previous fishing rights litigation to which it was

not even allowed to intervene, and over 30 years after

federal recognition, manifestly does not involve a common nucleus of operative facts for res judicata purposes—nor could Snoqualmie even have raised the

issue of its hunting rights in the Treaty fishing rights

litigation because the scope of the litigation was confined exclusively to the rights to fish of tribal parties.

One of the primary purposes of the Constitutional

Convention was to transfer authority over both Indian

affairs and foreign affairs from the states to the federal

government as this was the primary failure of the Articles of Confederation. There was a need for centralized authority. Advocates began to argue for a new

constitution that would, among other aims, remedy

state interference in Indian affairs. See, e.g., James

Madison, Vices of the Political System of the United

States, in 9 The Papers of James Madison 345, 348

(Robert A. Rutland & William M.E. Rachal eds. 1975)

(enumerating “Encroachments by the States on the

federal authority”—the very first of which was “the

wars and Treaties of Georgia with the Indians.”) That

need resulted, among other things, in placing authority

over Indian affairs, including ratification or abrogation

of treaties, in the hands of Congress per Art. I.

18

Authority to determine such matters was not reserved to the States. U.S. Const. Am. X. Nor was that

authority placed with the judiciary in Article III.

Snoqualmie’s need to initiate litigation arose from the

very mischief that failed the Articles of Confederation—a state declaring itself the arbiter of whether the

Snoqualmie possessed Treaty hunting rights—and

now, a Judiciary asserting itself in a role which the

Constitution expressly conferred upon Congress. The

common law principle of issue preclusion cannot be

substituted for an act of Congress as a backhanded

way of abrogating rights reserved by Treaty.

3. The Supreme Court, In The Exercise Of Its

Supervisory Authority Over The District

And Circuit Courts Should Accept Certiorari Review For The Purpose Of Correcting

The Ninth Circuit’s Erroneous Melding Of

The Common Law Principle Of Issue Preclusion With The Article III Requirements Of

Standing. The Circuit Courts Of Appeals

Have Differed On This Issue.

Standing to sue, or locus standi, is the requirement that a person who brings a suit be a proper party

to request adjudication of the particular issue involved. The threshold question in every federal case is

to determine the power of the court to entertain the

suit. As an aspect of justiciability, the standing question is whether a prospective plaintiff has alleged such

a personal stake in the outcome of the controversy as

to warrant his invocation of federal court jurisdiction

19

and justify exercise of the court’s remedial powers.

Warth v. Seldin, 422 U.S. 490 (1975), citing Baker v.

Carr, 369 U.S. 186 (1962).

In Warth v. Seldin, “various organizations and individuals” brought suit in 1972 in the United States

District Court for the Western District of New York

against the town of Penfield alleging that the town’s

zoning ordinance was discriminatory. In the 1979 case

relied upon by the district and circuit court here as res

judicata, the Snoqualmie Tribe sought intervention in

the United States District Court for the Western District of Washington in a lawsuit against the State of

Washington in which the United States and tribes who

had previously been allowed to intervene alleged that

Washington State took enforcement action violative of

Treaty fishing rights.

Although certain plaintiffs in Warth were members of ethnic or racial minority groups and home

building companies, standing to maintain the suit was

denied. The Court noted that:

Congress may create a statutory right or entitlement the alleged deprivation of which can

confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute . . . No

such statute is applicable here.

Id., citing Linda R. S. v. Richard D., 410 U.S. 614

(1973). The U.S. complaint in 1970 was pursuant to a

statute conferring jurisdiction, 28 U.S.C. §1345. Similarly, when the tribes themselves named in the

20

complaint moved to intervene, their participation was

premised upon a statute, 28 U.S.C. §1362:

The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly

recognized by the Secretary of the Interior,

wherein the matter in controversy arises under the Constitution, laws, or treaties of the

United States.

28 U.S.C. §1362 (emphasis added). Just as standing

was the basis for denial of intervention in Warth, in

1978 the US district court denied intervention to

Snoqualmie:

4. Only tribes recognized as Indian political

bodies by the United States may possess and

exercise the tribal fishing rights secured and

protected by the treaties of the United States.

476 F.Supp. 1111 (emphasis added). However, the district court also concluded that:

6. None of the Intervenor entities, Duwamish,

Samish, Snohomish, Snoqualmie, and Steilacoom Tribes herein, is at this time a treaty

tribe in the political sense within the meaning

of Final Decision No. I and the related Orders

of the Court in this case.

7. None of the Intervenor entities, Duwamish,

Samish, Snohomish, Snoqualmie, and Steilacoom Tribes herein, presently holds for itself

or its members fishing rights secured by any

of the Stevens treaties identified in Final Decision No. 1 in this case.

21

Id. (emphasis added). On appeal, the Ninth Circuit

openly admitted that:

The district court’s statement that federal

nonrecognition is decisive, together with its

listing of other purported considerations,

makes it difficult for us to determine the precise basis for the court’s holding that the tribes

may not exercise treaty rights.

641 F.2d 1368 (9th Cir. 1981) (emphasis added). In

2010, the Ninth Circuit in a separate appeal held that

“newly recognized tribes” may present a claim of

Treaty rights not yet adjudicated by introducing its

factual evidence anew. United States v. Washington,

593 F.3d 790, 801 (9th Cir. 2010) (en banc) (“Washington IV”). That en banc Court’s 2010 ruling essentially

removed the bar of issue preclusion altogether for

newly recognized tribes seeking to litigate Treaty

rights not yet adjudicated such as Snoqualmie.

From all this the only reasonable conclusion is

that, although it may have been “difficult to determine

the precise basis for Honorable Judge Boldt’s 1979 decision,” the 1979 denial of intervention by Snoqualmie in the case he presided over was based upon

Snoqualmie’s lack of standing at that present time.

The current case poses an elementary but constitutionally salient question regarding standing: When

a plaintiff lacks the Article III standing at the time of

an initial complaint is filed, can subsequent events

cure the defect by filing a supplemental pleading or a

new lawsuit? Although the nation’s highest court is yet

22

to rule on this issue, an increasing number of the federal appellate courts have begun applying different

procedural remedies through which events subsequent

to filing the original complaint can cure a jurisdictional

defect.6

For example, the Ninth Circuit held in Northstar

Fin. Advisors, Inc. v. Schwab Invs., that the district

court was correct in allowing the plaintiff to file a supplemented complaint to cure the lack of standing in the

original complaint. The court reasoned that although

the Federal Rules of Civil Procedure Rule 15(d) is

phrased in terms of “correcting a deficient statement of

claim or a defense,” the rule is applicable to curing

other jurisdictional defects, including defects of standing. Northstar Fin. Advisors, Inc. v. Schwab Invs., 779

F.3d 1036 1044 (9th Cir. 2015). The Ninth Circuit relied

in part to this Court’s ruling that “when a plaintiff files

a complaint in federal court and then voluntarily

amends the complaint, federal courts generally look

to the amended complaint to determine jurisdiction.”

Rockwell Int’l Corp. v. United States, 549 U.S. 457, 460

(2007).

The First Circuit also ruled in United States ex

rel. Gadbois v. PharMerica Corp. that “critical [subsequent] developments occurred [in the case] during the

pendency of that appeal” are important factors in

R. Skowron, Whether Events After the Filing of an Initial

Complaint May Cure an Article III Standing Defect: The D.C. Circuit’s Approach, 61 Boston College L. Rev., Vol. 61, article 19

(April 28, 2020). https://lawdigitalcommons.bc.edu/cgi/viewcontent.

cgi?article=3863&context=bclr.

6

23

allowing the plaintiff to cure the standing defect and

alleviating “difficulties of commencing a new action.”

United States ex rel. Gadbois v. PharMerica Corp., 809

F.3d 1, 6 (1st Cir. 2015). The court also agreed with the

Ninth Circuit’s interpretation of Rule 15(d) as an appropriate mechanism for pleading “newly arising facts

necessary to demonstrate standing.” Id. at 5.

In contrast, the Seventh, Eighth and Tenth Circuits do not apply Rule 15(d) as broadly as the First

and Ninth Circuits do and hold that the only way a

plaintiff can cure a standing defect existing at the filing of an initial complaint is by filing a new lawsuit,

which, the D.C. Circuit and the First Circuit have criticized as “the unnecessary hassle” and exposing a

plaintiff to “the vagaries of filing a new action.” Scahill

v. District of Columbia, 439 U.S. App. D.C. 69, 76, 909

F.3d 1177, 1184 (2018); PharMerica Corp., 809 F.3d 1,

6 (1st Cir. 2015). For instance, in Mink v. Suthers, the

Tenth Circuit determined that standing is determined

when the complaint is first filed, “not to subsequent

events.” Mink v. Suthers, 482 F.3d 1244, 1253–54 (10th

Cir. 2007). In Park v. Forest Service of U.S., the Eighth

Circuit also declared that “it is not enough for [the

plaintiff ] to attempt to satisfy the requirements of

standing as the case progresses.” Tracie Park v. Forest

Serv. of the United States, 205 F.3d 1034, 1038 (8th Cir.

2000).

The split approaches of circuit courts in curing the

standing defect urgently necessitates this Court to establish firm guidance on curing the constitutional

standing defect to ensure that constitutional rights to

24

bring a claim and redress injury are not just empty

promises but actually be enforced in the court of law.

The 1979 district court decision denying Snoqualmie

intervention that was so heavily relied upon by the district and circuit court in this appeal was clearly premised upon the district court’s sub silentio conclusion

that Snoqualmie at that time lacked standing. Certiorari should be granted to resolve this disagreement

among the Circuit courts of appeals as to whether subsequent events such as Snoqualmie’s recognition as a

Treaty signatory, confirmation of a reservation and

federal recognition cure a prior lack of standing.

4. The Questions Presented Are Of Exceptional Importance

a. The constitutional role of the Judiciary, Legislative and Executive Branches in the administration of

Indian affairs is a federal question of exceptional importance, particularly in matters involving Indian

Treaty rights. The Ninth Circuit’s judicial overreach

ignores fundamental separation of powers principles.

The Ninth Circuit’s nullification of all Snoqualmie’s

reserved Treaty rights through the discretionary common law doctrine of issue preclusion cannot be reconciled with the proper role of the Judiciary in our

system of government.

To leave the Ninth Circuit’s judicial abrogation of

all Snoqualmie’s Treaty rights unchecked “would be

practically to recognize an authority in the courts . . .

to determine question of mere policy in the treatment

25

of the Indians which it is the function alone of the legislative branch of the Government to determine.”

United States v. Choctaw Nation, 179 U.S. 494, 535

(1900).

The Court should maintain the course it long ago

charted for the Judiciary based on the Constitution

and separation of powers regarding Indian affairs by

rejecting the Ninth Circuit’s attempt to amend and refuse to carry out the intent of Snoqualmie and United

States as set forth in the Treaty.

It is therefore imperative this Court exercise its

authority to ensure that the standard of Congressional

action remains the only condition that justifies abrogation of Indian Treaty rights.

b. Finally, although the Treaties in the Pacific

Northwest are perhaps unique in their reservations of

off-reservation usufructuary rights, the issue of who,

and how, rights reserved in Indian treaties may be abrogated is of exceptional importance to the 500+ Tribal

nations in this country. As stated in United States v.

Winans, 198 U.S. 371 (1905), the rights reserved in solemn treaties in the Pacific Northwest:

were not much less necessary to the existence

of the Indians than the atmosphere they

breathed.

198 U.S. at 381. The right to harvest game is central to

tribal nations, not only for nutritional purposes but for

ceremonial purposes as well. See, e.g., Frank v. Alaska,

604 P. 2d 1068 (Alaska 1979) (harvest of Moose by

26

Alaskan Native for ceremonial purposes protected by

First Amendment); State v. Miller, 102 Wn. 2d 678

(1984) (“Petitioners also claimed that they were guaranteed the right to take this one elk for a religious ceremony under the free exercise clause.”).

Treaty rights are property rights. Winans, supra

at 381. The Snoqualmie, by signing the Treaty of Point

Elliott, reserved this usufructuary property right to

hunt on open and unclaimed lands in perpetuity. The

State of Washington and the judicial branch, without

Congressional involvement extinguished this right

based upon archaic notions regarding the loss of tribal

identity and common law principles of issue preclusion

which ought not to be used to abrogate a Treaty which

is a Supreme Law of this nation in a case arising under

changed circumstances over 40 years later involving

rights which could not even have been asserted in that

former litigation.

That is why this case is of exceptional importance.

---------------------------------♦---------------------------------

27

CONCLUSION

The Court should not allow the Ninth Circuit’s ruling to stand. This Court should therefore grant certiorari to correct the course of Ninth Circuit’s decision,

and to restore to the Treaty hunting and gathering

rights to Snoqualmie people reserved.

For the foregoing reasons, a writ of certiorari

should issue.

Respectfully submitted,

JACK WARREN FIANDER,

General Counsel

SAUK-SUIATTLE INDIAN TRIBE

5318 Chief Brown Lane

Darrington, WA 98241

(360) 436-0139

(509) 969-4436

towtnuklaw@msn.com