Opposition Brief — Lummi Nation v. Samish Indian Tribe

Indian Tribe intervened in United States v. Washington in

August 1974, the United States relied upon the list from

which Samish had been dropped and took the position that

the Samish Tribe was not federally recognized or entitled

to that status. The Samish Tribe failed to prove at that

time that it was entitled to exercise treaty rights under

the legal standard applicable to unrecognized Indian

tribes. Washington II and III, cert. denied, 454 U.S. 1143

(1982).

In both Washington II and Washington III, the United

States, the United States District Court, and those tribes

opposing Samish treaty status all suggested that future

federal recognition of the Samish Tribe would probably

warrant reexamination of the Samish Tribe's treaty

fishing rights. Samish Indian Tribe, supra, 394 F.3d at

1155. These promises were in substantial part the basis

for the Ninth Circuit's decision that the Samish Tribe had

shown extraordinary circumstances for purposes of Rule

60(bX6) sufficient to vacate the judgment against the

Samish Tribe in Washington II. See Samish Indian Tribe,

supra, 394 F.3d at 1159.

* The most explicit of these promises was made to this Court by the

United States in its Brief for United States in Opposition to Petition for

Writ of Certiorari, where the United States said: “should [the Samish/

succeed in obtaining ‘acknowledgment’ of their current status as [an]

‘Indian tribel |’ in the pending administrative proceedings, this might

justify an application to re-open the present judgment against them.”

No. 81-509, p. 12, n.7. Samish Indian Tribe, supra, 394 F.3d at 1155

n.4. The United States represented that federal recognition of a tribe as

the successor in interest to a treaty party “may well be controlling,”

under the political question doctrine and the deference that the federal

courts must give the Executive Branch with regard to its dealings with

Indian tribes. Jd.; 394 F.3d at 1158 n.8.

The Samish Indian Tribe pursued federal recognition

in light of the representations that had been taade to the

Tribe by the United States, the District Court, and some

treaty tribes. Samish Indian Tribe, supra, 394 F.3d at

1155. The United States and the Indian tribes filing the

present certiorari petition vigorously opposed Samish’s

recognition application. Jd., at 1156; Greene I, supra. After

seventeen years of litigation, the Samish Tribe finally

achieved full federal recognition in November 1996 —- with

reinstatement of factual findings wrongfully removed by

the Assistant Secretary for Indian Affairs after ex parte

meetings with federal advocates. The Tulalip and other

tribes sought to intervene in the Samish recognition

proceeding on the ground that Samish recognition might

affect their treaty rights. Greene I, supra, 996 F.2d at 975-

76. The District Court and Ninth Circuit ruled that Tulalip

and the other tribes “hald] no protectable interest” that

weuld entitle them to intervene on the issue of Samish

recognition. Id. at 978."

* Contrary to the assertion made in the certiorari petition, Petition,

p. 10, the Ninth Circuit has never ruled that the Tulalip and other

opposition tribes would have the right to intervene in the Samish

recognition proceeding if they could show their treaty rights would be

impacted; the Ninth Circuit in Greene ] expressly rejected this argu-

ment. 996 F.2d at 976-978. As the Ninth Circuit observed several times,

Tulalip and other opposition tribes would have an opportunity to weigh

in on Samish treaty status outside the Samish recognition proceeding

because Samish could challenge the prior treaty judgment against it

only in the ongoing //nited States v. Washington proceeding, and the

other tribes were already parties to that proceeding. Jd. Samish

undertook such a cirect challenge in United States v. Washington by

filing its Rule 60(bX6) motion. Opposition tribes will also have an

opportunity to argue their interests once Samish files to intervene in

United States v. Washington to exercise its treaty rights.

7

After achieving formal] federal recognition and re-

organizing its tribal government, the Samish Tribe asked

the United States to bring an action on the Tribe’s behalf

to reopen the judgment against the Samish Tribe in

United States v. Washington. The Department of Interior

and Department of Justice took three years to deny the

Samish Tribe’s request, upon which the Samish Tribe

became eligible for discretionary attorney fee funding

under 25 C.F.R. § 89.41. Soon after obtaining this funding,

the Samish Tribe petitioned the District Court in United

States v. Washington to vacate the judgment against the

Tribe pursuant to F.R.C.P. 60(b)\(6).

The District Court denied the Samish Tribe’s motion

on the basis that federal recognition was irrelevant to the

issue of treaty status and because of finality concerns. The

Ninth Circuit reversed, concluding that findings of fact

underlying the Samish Tribe’s federal recognition, the

United States’ express promise to revisit Samish treaty

status upon successful federal recognition, and other

extraordinary circumstances had prevented the Tribe from

proving its tribal status in proper fashion. 394 F.3d at

1159. The Ninth Circuit held that these extraordinary

circumstances justified reopening the judgment against

the Samish Tribe in Washington I].

Contrary to assertions made in the petition for certio-

rari, the Ninth Circuit’s decision in Samish Indian Tribe is

fully consistent with prior decisions of this Court, deci-

sions of the Ninth Circuit, and decisions of other Circuits.

This case involves subsection (6) of Rule 60(b) and does not

implicate other subsections of that Rule. The decision will

not upset settled decisions in United States v. Washington.

When the Samish Tribe obtains treaty status after a

hearing on remand of this case, the District Court will

8

then have authority to re-allocate the tribal harvest share

and other details of actual exercise of Samish treaty rights,

applying equitable considerations. United States v. Wash-

ington, 157 F.3d 630, 652-55 (9th Cir. 1998) (allocation of

treaty harvest subject to equitable considerations and

balancing of interests of parties); Greene I, supra, 996 F.2d

at 977(“[‘Washington I district court’] is the forum that will

resolve ultimately any attempt to reallocate treaty fishing

rights and that is the forum where Tulalip and all other

interested parties can have their say.” (emphasis in origi-

nal)). Speculative consideration of possible dilution of

tribal harvest share is premature before this Court.

In its two earlier Samish decisions, the Ninth Circuit

made it clear beyond dispute that a Rule 60(b)6) chal-

lenge to the 1979 judgment against Samish treaty status

was “inevitable” if the Samish Tribe prevailed in the then

unlikely possibility” of achieving federal recognition. E.g.,

Greene I, supra, 996 F.2d at 977 (“The [Tulalip] Tribe is no

doubt correct that should the Samish prevail before the

BIA and gain recognition, the next step would be to assert

fishing rights as well.”); 978 (“a direct challenge to the

aliocation of treaty fishing rights ... may be inevitable”).

Petitioners have not presented an accurate picture of how

Samish treaty rights were raised in the Samish recogni-

tion proceedings.

” The Bureau of Indian Affairs had denied the Samish Tribe's

petition for federal acknowledgment under the Federal Acknowledg-

ment Regulations in 1982 and 1987, in proceedings later found by the

District Court and Ninth Circuit to have violated the due process rights

of the Samish Tribe. See Samish Indian Tribe, supra, 394 F.3d at 1155-

56; Greene Il, supra, 64 F.3d at 1269 (history of Samish recognition

petitions), 1271-1274 (Samish had property interest entitled to due

process before cutoff of benefits), 25 C.F.R. Part 83.

9

Both the district court and Ninth Circuit correctly

ruled that for purposes of the Samish recognition

proceeding, the judgment against Samish in Washington

II was res judicata. See Petition for Certiorari, pp. 5-6. The

courts did not say that Samish treaty status could never

be reconsidered under any circumstances or in any forum;

the courts said only that Samish treaty status could not be

relitigated in the Samish recognition proceedings and that

Samish could not use its treaty status as a ground to

achieve federal recognition. Greene I, supra, 996 F.2d at

977 (“the Samish need not assert treaty fishing rights to

gain federal recognition”); Greene v. Lujan, No. C89-645Z

(W.D.Wash.), Order dated Feb. 25, 1992, 1992 WL 533059

(unreported). What the Ninth Circuit and District Court

did say on the issue of relitigating Samish treaty status

was that any Samish challenge to the judgment against

Samish in Washington II and III must take place in the

ongoing United States v. Washington proceeding. £.g.,

Greene I, supra, 996 F.2d at 977-78.

In Samish Indian Tribe, the Ninth Circuit examined

the findings of fact underlying Samish administrative

recognition by the United States - made pursuant to the

federal acknowledgment criteria in 25 C.F.R. Part 83 — and

concluded that in achieving recognition Samish also met

the standard necessary to exercise treaty rights. 394 F.3d

at 1158. The Court of Appeals then examined its prece-

dent and found that it had never concluded that federal

recognition is irrelevant to a tribe’s exercise of treaty

rights. Jd. The Ninth Circuit found that it “ha[d] never

held that federal recognition is not a sufficient condition

for the exercise of [‘treaty fishing’) rights.” Jd. (Emphasis

in original). The Ninth Circuit then concluded: “Although

we have never explicitly held that federal recognition

10

necessarily entitles a signatory tribe to exercise treaty

rights, this is an inevitable conclusion.” Jd. at 1159.

Integrating its prior precedents with the findings of fact

made in the Samish recognition proceeding that the

Samish Tribe was a party to the Treaty of Point Elliott,

has been continuously identified throughout history as

Indian and has existed as a distinct community maintain-

ing political influence within itself as an autonomous

entity since first sustained European contact, the Ninth

Circuit ruled: “As the Samish are a signatory tribe and

have proved the single necessary and sufficient condition

for the exercise of treaty rights, the res judicata effect of

Washington II is all that is keeping the Samish from

pursuing its treaty rights.” 394 F.3d at 1160.

As this language reflects, the Samish Indian Tribe

decision does not dispense with the res judicata effect of

the Samish judgment in Washington II. The Ninth Circuit

in Samish Indian Tribe decided, based on facts in the

Samish recognition proceeding and extraordinary circum-

stances, that standards established under Rule 60(b)(6)

require that the judgment in Washington II be set aside

and that the Samish Tribe be allowed to revisit the issue of

its treaty status in United States v. Washington. The Court

held that the Samish Tribe was effectively prevented from

proving its tribal status in Washington II in proper fashion

because of the

government's “excessive delays and ... miscon-

duct” in withholding recognition from the Sam-

ish, a circumstance beyond their control; the

government’s position in Washington II that

federal recognition was necessary and that fu-

ture federal recognition might justify revisiting

the treaty rights issue; and the district court’s

erroneous conclusion that nonrecognition was

11

decisive and wholesale adoption of the United

States’ boiler-plate findings of fact in Washington

ey

394 F.3d at 1159. The Samish Tribe met the standards

established by Rule 60(b)(6) under these facts because

“federal recognition is determinative of the issue of tribal

organization, the issue upon which the Samish were

denied treaty rights in Washington II”: “As the Samish’s

lack of recognition was a circumstance beyond the tribe's

control, their subsequent recognition is an extraordinary

circumstance that warrants setting aside the judgment in

Washington II.” 394 F.3d at 1159, 1161.”

+

" This finding that the Samish Tribe was effectively prevented by

the federal government from challenging denial of federal recognition

was recently confirmed by the Federal Circuit Court of Appeals in a

separate proceeding. Samish Indian Nation, supra, 419 F.3d at 1373

(“Because tribal recognition remains a political question, the trial court

erred in holding that Samish ‘could have pursued the present action in

court before the administrative proceedings [concerning the Samish

petition for federal acknowledgment] were concluded. ... {T]he Samish

cause of action for retroactive benefits did not accrue until they obtained

a final determination from the district court, through their APA chal-

lenge, that the government’s conduct underlying its refusal to accord

federal recognition, before 1996, was arbitrary and capricious.” The

Federal Circuit concluded that the Samish Tribe should always have

been federally recognized, Jd. at 1373, citing the District Court’s decision:

“(T)he district court finally established that the government wrongfully

withheld the Samish federal acknowledgment and disregarded facts that

would have supported historic recognition. ... [T)hose findings support

the Samish contention that but for the government's arbitrary and

capricious treatment the Samish would have been extended federal

recognition prior to 1996.” Id. at 1374 (citing Greene v. Babbitt, 943

F.Supp. 1278 (W.D.Wash. 1996) (“Greene IIT’)). As the Ninth Circuit noted

in Samish Indian Tribe, “The Samish would almost certainly have won

the right to exercise its treaty fishing rights had the tribe been federally

recognized at the time of Washington II. 394 F.3d at 1159.

12

REASONS WHY PETITIONERS’

PETITION FOR A WRIT OF CERTIORARI

SHOULD NOT BE GRANTED

A. The Ninth Circuit’s Ruling Did Not Deny Peti-

tioners Due Process Of Law.

Petitioners argue that the District Court’s rejection in

1989 and 1992 and the Ninth Circuit’s rejection in 1995 of

the Tulalip Tribes’ attempt to intervene and participate in

the Samish administrative recognition proceeding pursu-

ant to 25 C.F.R. Part 83 denied it and other similarly

situated tribes due process. Petition for Certiorari, pp. 9-

12. Petitioners’ argument is based upon the erroneous

belief that the District Court and Ninth Circuit told the

Tulalip Tribes that the Samish Tribe would never be able

to revisit its treaty rights even if it successfully achieved

federal recognition. As discussed above in the Statement of

the Case, this belief is patently wrong. No such promise

was ever made; in fact, the Ninth Circuit several times

stated the opposite - a challenge by the Samish to the

judgment in Washington IJ was inevitable if the Samish

Tribe successfully achieved federal recognition.

To have a due process right, a party must have a

“significantly protectable interest.” Greene I, supra, 996

F.2d at 976 (citing Portland Audubon Society v. Hodel, 866

F.2d 302, 309 (9th Cir.), cert. denied, 492 U.S. 911 (1989)).*

" Petitioners assert on page 11 of their petition that any party

“affected” by government action must be given due process, citing

California v. FERC, 329 F.3d 700, 708 n.6 (9th Cir. 2003). That is not

what that decision actually says. Earlier in the decision the court stated

that a party must have a “legally protected interest” to qualify for

constitutional due process, 329 F.3d at 707, and the Court assumed for

purposes of the case, without deciding the issue, that the party in

question had been deprived of a liberty or property interest. /d., n.3.

13

Both the District Court and the Ninth Circuit during the

appeal of the 1987 BIA administrative decision denying

the Samish Tribe federal recognition held that the Tulalip

Tribes had no protectable interest on the issue of Samish

recognition. Greene I, supra, 996 F.2d at 978; see Greene v.

Lujan, No. C89-645Z, Transcript of Hearing on Tulalip

Motion to Intervene, Oct. 12, 1989, p. 15 (quoted in Sam-

ish Indian Tribe’s Answer to Petitions for Rehearing and

Rehearing En Banc, and Amicus Briefs, No. 03-35145,

United States Court of Appeals for the Ninth Circuit, April

25, 2005, p. 6).

Contrary to petitioners’ arguments, Petition for

Certiorari, p. 10, the Ninth Circuit has never acknowl-

edged or held that the Tulalip Tribes would have had a

right to intervene in the Samish recognition proceeding if

Samish recognition had an impact on Samish treaty

status. The Ninth Circuit did not find in either Greene | or

II that the Tulalip Tribes had a significantly protectable

interest justifying intervention in the Samish recognition

proceeding under any scenario. The only statement the

Ninth Circuit did make in any way related to this issue

was to note that if a party’s protected interest will be

impaired, then that party has been allowed to intervene.

Greene I, supra, 996 F.2d at 977. The Court then went on

to hold, however, only that any interest the Tulalip might

have on the issue (without any ruling that they did have

an interest) could be raised in any action the Samish

brought in United States v. Washington if the Samish

14

Tribe decided to relitigate its treaty fishing rights once it

successfully achieved federal recognition. Jd. at 977-78.”

To recognize petitioners’ due process arguments would

significantly undermine federal “exclusive” or “plenary”

authority over Indian affairs. See Seminole Indian Tribe v.

State of Florida, 517 U.S. 44, 62 (1996); Delaware Tribal

Business Comm. v. Weeks, 430 U.S. 73, 83-84 (1977). Even

more significantly, it would overturn a long-standing,

critical conclusion of law in Washington I. Petitioners, not

the Samish Indian Tribe, would throw settled law into

question. See Petition for Certiorari, p. 3.

Federal recognition of Indian tribes is a political

question committed exclusively to the Executive and

Legislative Branches. It is generally not subject to judicial

review. The federal! courts are required to defer to the

political branches’ determination that a group of Indians

constitutes a tribe. Samish Indian Tribe, supra, 394 F.3d

at 1158. As Judge Boldt ruled in Washington I:

The recognition of a tribe as a treaty party or

the political successor in interest to a treaty

party is a federal political question on which

state authorities and federal courts must follow

the determination by the legislative or executive

branch of the Federal Government.

” The court also identified the Tulaiips’ only interest as a possible

dilution of its treaty fishing allocation, id. at 976, and held that an

economic stake in the harvest of fish, even if significant, is not a

significantly protectable interest for due process purposes. /d.

“ This issue is discussed at great length in the Samish Indian

Nation decision at 419 F.3d at 1369-1373. For example: “As a political

determination, tribal recognition is not justiciable.” 419 F.3d at 1370

(citing United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1865)).

15

384 F.Supp. 312, 400 (Conclusion of Law # 9). Other

Indian tribes or parties have no legal right to infringe

upon this Executive Branch authority.” Even when the

Executive Branch has “canalized” the previous discretion

of its officials through federal acknowledgment regulations

establishing an acknowledgment process, Miami Nation of

Indians v. Dept. of Interior, 255 F.3d 342, 348 (7th Cir.

2001), Executive Branch recognition authority essentially

remains a non-justiciable political decision. Samish Indian

Nation, 419 F.3d at 1370-73.

In the Samish recognition proceeding, the federal

government found that the Samish Tribe is the political

successor in interest to the historical Samish Tribe that

was a signatory to the Treaty of Point Elliott. Samish

Indian Tribe, 394 F.3d at 1159-1161; see Greene II, 64 F.3d

at 1270 (“the Tulalip Tribe emphasizes that in the petition

for recognition, the Samish Tribe has not claimed to be any

tribe other than the historical Samish Tribe that was

party to the Treaty of Point Elliott. To the extent that the

Samish rely upon historical roots in this litigation, the

roots are probably the same as those they posited in

Washington II”), see Samish Tribe of Indians v. United

States, 6 Ind. Cl. Comm’n 169, 172 (1958) (“We conclude

that petitioner, which alleges it is a tribal organization

” This conclusion applies to a federal decision to enter into a treaty

with an Indian tribe as well as Executive Branch administrative

recognition of a tribe. As the Federal Circuit noted in the Samish

Indian Nation decision, “(t)here are generally three means by which the

federal government can recognize an Indian tribe.” 419 F.3d at 1369-70;

see F. Cohen, Handbook of Federal Indian Law 5-6 (1982 ed.). Two of

the three methods referred to are by treaty or by executive branch

action taken pursuant to authority delegated by Congress. Jd. There is

no judicial review of the treaty authority under the U.S. Constitution

that is relevant to this case.

16

recognized by the Secretary of Interior of the United

States, has shown itself to be the descendants and succes-

sors in interest of the Samish Indians of aboriginal

times.”). The Tulalip Tribes claimed they had a right to

intervene in the Samish administrative recognition pro-

ceedings under F.R.C.P. 24, because of the alleged impact

Samish recognition might have on it. See Greene I, supra,

996 F.2d at 976-78. The Federal Rules of Civil Procedure,

however, do not grant substantive rights to a party. See

Chemehuevi Indian Tribe v. Cal. St. Bd. of Equal., 757

F.2d 1047, 1053 (9th Cir.), rev'd on other grounds, 474 U.S.

9 (1985) (statute authorizing Federal Rules of Civil Proce-

dure, 28 U.S.C. § 2072, specifies that the rules “shall not

abridge, enlarge or modify any substantive right”).

The federal acknowledgment regulations do not grant

the Tulalip Tribes or any other party the right to challenge

the federal government's decision to recognize an Indian

tribe. 25 C.F.R. Part 83. The regulations allow only a

limited right of participation by “interested parties.” E.g.,

25 C.F.R. § 83.1 (definition of interested party); 25 C.F.R.

§ 83.11 (right of interested party to request reconsidera-

tion of recognition decision). The only judicial review

available under the APA to review a federal acknowledg-

ment decision for an Indian tribe is to “ensure that the

government followed its regulations and accorded due

process.” Samish Indian Nation, supra, 419 F.3d at 1373

(citing Miami Nation, supra, 255 F.3d at 348). In all other

aspects, the federal government’s decision to recognize an

Indian tribe remains a political act. Id.

While petitioners claim that their due process rights

were violated in the Samish recognition proceedings, they

have never shown in what manner their rights were

17

actually injured or how they were denied from participat-

ing in or presenting any evidence or arguments in opposi-

tion to Samish recognition. The Tulalip and other tribes

participated in the Samish recognition proceeding as

interested parties. Greene I, 996 F.2d at 975. They partici-

pated as amicus parties in the remanded recognition

hearing. Jd., 996 F.2d at 976, 978. The Tulalip Tribes

submitted numerous briefs on every conceivable issue in

those proceedings. The United States actively opposed

Samish recognition and vigorously litigated the issue on

behalf of other tribes; petitioners have never demonstrated

how the United States’ representation in that proceeding

was deficient or did not represent their interests. As just

one example, the United States presented several repre-

sentatives of the Swinomish Indian Tribal Community, one

of the petitioning tribes here, as witnesses against Samish

recognition. See Memorandum in Support of Samish

Indian Nation’s FRCP 60(b\6) Motion to Reopen Judg-

ment, (W.D.Wash.), No. 70-9213, Sub-proceeding 01-2, CR

44, Ex. 6, p. 15, Recommended Decision on Samish Recog-

nition, United States Dept. of Interior, Office of Hearings

and Appeals, Aug. 31, 1995. Petitioners’ due process

arguments are theoretical; they are not grounds for

granting certiorari.

Petitioners’ due process arguments also carry no

weight with regard to equitable allocation of the treaty

fish harvest among tribes. Equitable considerations are

not available to defeat or interpret the treaty rights of a

tribe. United States v. Washington, 157 F.3d 630, 649-50

(9th Cir. 1998). In Washington I the District Court held

that the tribes with fishing rights under the various Puget

Sound treaties had a right to 50 percent of the harvestable

fish passing through their traditional off-reservation

18

fishing grounds. Samish Indian Tribe, supra, 394 F.3d at

1154. No property right to any specific number or percent-

age of fish has been decided in United States v. Washing-

ton:”

[T]he Indians are entitled to an equitable appor-

tionment of the opportunity to fish in order to

safeguard their federal treaty rights (citation

omitted). The district court’s apportionment does

not purport to define property interests in the

fish; fish in their natural state remain free of at-

tached property interests until reduced to pos-

session. Geer [v. Connecticut], 161 U.S. 519, 529

(1896). Rather, the court decreed an allocation of

the opportunity to obtain possession of a portion

of the run.

Washington I, 520 F.2d at 687. The allocation of harvest

and other details of actual exercise of Samish treaty rights

are subject to equitable considerations, balancing the

interests of the parties. United States v. Washington,

supra, 157 F.3d at 652-55.

The other treaty tribes, as set forth in the Greene

decisions, will have the right to state their positions on

equitable allocation of a portion of the harvest to Samish in

United States v. Washington once the Samish Tribe obtains

treaty status. Petitioning tribes do not have and had no

property interest sufficient to allow them to separately

* See Menominee Indian Tribe v. United States, 391 U.S. 404

(1968), which stated that hunting and fishing rights can constitute a

property right. Petitioners here claim a property right interest, but

Menominee did not determine the “precise nature and extent of those

hunting and fishing rights” in that case, 391 U.S. at 407, and did not

rule that there was a property right in the allocation of an overall

Indian treaty harves* mght among all treaty tribes.

19

challenge Samish recognition. The opportunity to chal-

lenge Samish treaty harvest allocation is apparent from

ongoing sub-proceedings in United States v. Washington;

adjustment to treaty harvest allocations and challenges to

tribal shares of treaty harvest are ongoing, without asser-

tion by a tribe that due process property rights have been

violated. Sve, eg., Sub-proceeding No. 91-1 (Halibut

fishery, Order dated May 3, 2005, Docket 17954, Order

declining to adopt interim halibut management plan);

Sub-proceedings 05-1 and 05-02 (Skokomish dispute with

regard to Hood Canal fishery allocation plan); Sub-

proceedings 05-3 and 05-4 (challenges by petitioners

Tulalip, Upper Skagit, and Swinomish to Suquamish usual

and accustomed fishing grounds and stations). The Court

should deny the petition for certiorari.

B. The Ninth Circuit's Decision On Rule 60(B)(6)

Issues Is Consistent With Precedent And Does

Not Create A Conflict With Other Circuits.

The Ninth Circuit's decision involved only subsection

(6) of Rule 60(b): “On motion end upon such terms as are

just, the court may relieve a party ... from a final judg-

ment, order, or proceeding for ... (6) any other reason

justifying relief from the operation of the judgment.”

Contrary to assertions of petitioners, this case does not

and has never involved subsections (1) or (3) of Rule 60(b).

Petitioners’ attempt to strain the language of Rule 60(b) to

implicate subsections (1) and (3) in this case are com-

pletely without merit.

The Ninth Circuit applied the Rule 60(b\6) prece-

dents of this Court and of the Ninth Circuit under Rule

60.b*S) in Samish Indian Tribe to reach a fact based

conclusion that extraordinary circumstances existed under

20

the Rule sufficient to require that the judgment against

the Samish Tribe in Washington II be vacated: “As the

Samish’s recognition was a circumstance beyond the

tribe's control, their subsequent recognition is an extraor-

dinary circumstance that warrants setting aside the

judgment in Washingtor I.” 394 F.2d at 1161. See id. at

1159. The Court of Appeals relied on two of its Rule

60(bX6) decisions for this conclusion, United States v.

Alpine Land & Reservoir Co., 984 F.2d 1047 (9th Cir.

1993), and Cmty. Dental Servs. v. Tani, 282 F.3d 1164 (9th

Cir. 2002), both of which applied Rule 60(bX6) standards

established by this Court in Klapprott v. United States,

335 U.S. 601 (1949); Ackermann v. United States, 340 U.S.

193 (1950), and Liljeberg v. Health Services Acquisition

Corp., 485 U.S. 847 (1988).

The present case does not involve a change of law as

petitioners assert. The Ninth Circuit followed its own

precedent and the precedent of other Circuits in ruling in

favor of the Samish Indian Tribe. Subsection (3) of Rule

60(b) does not apply to the specific factual extraordinary

circumstances relied upon by the Ninth Circuit to grant

Rule 60(bX6) relief in this case. Petitioners do not even

allege that Rule 60(b\6) was mis-applied in this case or

that the Ninth Circuit violated precedent under the Rule

in its decision.” There is no conflict in the case law or

between the Circuits under Rule 60(b\6) and the Court

shouid deny certiorari in the present case.

+

" Supreme Court Rule 10 states thai petitions for a writ of

certiorari are disfavored when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated rule of law.

21

CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied.

Respectfully submitted on behalf of the Samish Indian

Tribe this 7th day of November, 2005.

Craig J. Dorsay

Counsel of Record

2121 S.W. Broadway, Suite 100

Portland, OR 97201-3180

(503) 790-9060

Counsel for Respondent

Samish Indian Tribe

+ FILED

DEC 20 2005

No. 05-445 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

THE LUMMI NATION, et ai.,

Petitioners,

v.

SAMISH INDIAN TRIBE,

Respondent.

On Petition For A Writ oF CERTIORARI TO THE

Unitep States Court oF APPEALS

FOR THE NintH Circuit

pe eee

REPLY BRIEF

Mason D. Morisset

Counsel of Record

Morisset, SCHLOsser, Jozwiak & McGaw

801 Second Ave., Suite 1115

Seattle, WA 98104-1509

(206) 386.5200

Counsel for Petitioner

The Tulalip Tribes

(Additional Counsel listed on signature page)

—_——

198546 ce)

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

—

i

RULE 29.6 STATEMENT

Petitioner's Rule 29.6 Statement was set forth at page

iv of its Petition for a Writ of Certiorari, and there are no

amendments to that Statement.

TABLE OF CONTENTS

Page

RULE 29.6STATEMENT ........--0eeeeeeceees i

TABLE OF CONTENTS $ .n.cccccccccccccccvcess ii

TABLE OF CITED AUTHORITIES .............. iv

EREFEEEUEE cccesoceseesrsccosccesecdons 1

1. The Ninth Circuit Ruling Has National

SRNR. 6 icc ccctcssdcccveviseasoce’ 1

2. This proceeding does not challenge the

Department of the Interior's decision to

grant federal recognition to Samish. ...... 3

3. Motions to reopen judgments necessarily

implicate finality concerns. ............-. 4

4. Protected property interests of Tulalip and

the other Petitioning Tribes have been

adversely affected by the Ninth Circuit's

decision threatening their treaty rights based

on a proceeding in which the Petitioner

Tribes were not allowed to participate. .... 4

5. Samish created its own problem by choosing

to litigate its treaty status before obtaining

federal recognition. ..........-.+...0+++: 8

6. Samish has not, and cannot, support its

claim that the Tribes made “promises” to

Samish to induce Samish not to pursue its

BMAD GUID. oo cccccccssvecsccccvcceeses 8

iii

Contents

Page

7. Samish’s Brief in Opposition includes

unsupported factual statements and

citations to evidence not in the record. .... 9

8. The Decision below destroys needed finality

and repose for adjudicated cases. ......... 10

CEUTA RAMUS obec cdcvvesccccccscocenensccees 10

iv

TABLE OF CITED AUTHORITIES

Cases hh

Ayers v. Fordice, 111 F.3d 1183 (5th Cir. 1997),

cert. denied, 522 U.S. 1084 (1998) ..........065. 2

Baldwin v. lowa State Traveling Men‘s Association,

Se Wn CER CRUOED cc cctecccictucceteccccvent 4

Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589

gk Re pe PST AMPPTTOCIY TIP Titre ee 4

Daniels v. Brennan, 887 F.2d 783 (7th Cir. 1989) .... 2

Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002) ...... 2

Gilbert v. Johnson, 601 F.2d 761 (5th Cir. 1979) ..... 7

Greene v. United States, 966 F.2d 973 (9th Cir. 1993) .. .5,6,7,8

In re the Exxon Valdez, __ F. Supp.2d __, 2005

WL 2340703 (D. Alaska, September 22, 2005) ... 2

Jeff D. v. Kempthorne, 365 F.3d 844 (9th Cir. 2004) .... 2

Liljeberg v. Health Services Acquisition Corp., 486 U.S.

DOF CRUSE cncdcecesetisceorstevertvessooveys 1

Marino v. Pioneer Edsel Sales, Inc., 349 F.3d 746

SG GOON 2 bb éccwoseecvcdensosecoceucien 2

McDowell v. Philadelphia Housing Authority, 423 F.3d

BP ON CN BUOD cc or ocecvcivettesdecetsads 3

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

CD vo actos oheed Cewhbbdbesdesevddiedeted's 4

Cited Authorities

Page

Miller-Wohl Co., Inc., v. Comm'n of Labor and Industry,

694 F.2d 203 (9th Cir. 1982) ..... 6... c cee nues 6,7

Santoni v. Federal Deposit Ins. Corp., 677 F.2d 174

REI TEED Sp bdcceccdcadecevevcccocseebes 9

Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007

aD 6 wand decdweves cxcecoesey ease 7

Tahoe Sierra Preservation Council, Inc., v. Tahoe,

322 F.3d 1064 (9th Cir. 2003) .... 2.6.6 cece eens 10

United States v. Alkaabi, 223 F. Supp.2d 583 (D.N.].

BOUND Sd dcacvcvedesecssceccccocsessoeesics 6-7

United States v. State of Michigan, 940 F.2d 143

DE a 000 ueésicuscectcdouceswestdes 6,7

United States v. State of Tennessee, 143 Fed. Appx

SPSL GUEED cbccccbscdseveusedsesceese 2

United States v. State of Washington, 626 F. Supp. 1405

DE ME one pecabhedbeneseséenesees 8

United States v. Washington, 384 F. Supp. 312

Ss NE RUUD Sorcanticarecevcsiechvinens 6,8

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

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

Cir.1981), cert. denied, 454 U.S. 1143 (1982) ..... 6

vi

Cited Authorities

Page

Rules

DUG. B, AGP. Fa BW: cccccccsctccscccvcccoveseacs 9

Pees GC EAE eemerbccecccescescceddcnes 1,3, 10

DOG. es Sete Fo GD <cdccvewiccccsesescccoust 1,7

Regulation

61 Fed. Reg. 15825-01, 15827 (1996) .............. 7

1

INTRODUCTION

The United States agrees that the decision below conflicts

with and undermines prior precedent. However, the United

States ignores its corrosive effect on Fed. R. Civ. P. 60(b)(6)

and the case load of the judiciary. The United

States portrays the Ninth Circuit opinion as narrow in its

implications, and concludes that the decision is unworthy of

this Court's review.’ The United States is able to reach that

conclusion only by (1) ignoring all of the conflicts the Ninth

Circuit has created with sister Circuits, Petition for Certiorari

at 12-18, and (2) failing to discuss any of the other concerns

raised by Petitioners in their Petition.’ By offering no rebuttal,

the United States admits that the decision below is inconsistent

with Rule 60(b) cases from this Court’ and from the sister

Circuits.‘

Samish likewise does not attempt to rebut the argument

that the Ninth Circuit's decision is directly contrary to well-

established law of this Court and the Circuits. Instead, Samish

puts on the cloak of victimhood and asks the Court to relieve

it of the consequences of its deliberate, intentional choice in

1975 to proceed with treaty rights litigation without first

obtaining federal recognition. In so doing, it raises new issues

and refers to “evidence” not contained in the record. Allowing

Samish to re-open the 1979 decision, United States v.

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

violate a large body of Rule 60(b) law.

1. The Ninth Circuit Ruling Has National Significance.

The federal district courts have already noticed the Ninth

Circuit decision, and relied on it to expand the grounds for

relief under Rule 60(b)(6). For example, in one of the myriad

1. The United States iterates its argument no less than four times.

The United States doth protest too much. Repetition does not strengthen a

weak argument.

2. These concerns include the Ninth Circuit's denial of due process,

Petition for Certiorari at 9-12 and the Ninth Circuit's expansion of

“misconduct” covered by Rule 60(b), id. at 19.

3. See, e.g., Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847

(1988).

4. See, ¢.g., cases cited at pages 12, 14, 15, & 17 of Petition for Certiorari.

2

parts of the Exxon Valdez case, the Alaska District Court cited

the Ninth Circuit decision on review here, and then went on

to rule that a claimant would be allowed to reopen his fishing

claim because his attorney failed to inform him that the claim

had been dismissed. In re the Exxon Valdez, __ F. Supp. 2d __,

2005 WL 2340703 at *4 (D. Alaska September 22, 2005). The

court allowed a reopening on the basis that the claimant

personally did not know that his fishing claims had been

dismissed even though his lawyer was aware that of the

dismissal. Id.

This ruling is inconsistent with well-settled law from other

circuits holding that the client's sole remedy in such a case is

legal malpractice action against his attorney. Daniels v. Brennan,

887 F.2d 783, 788 (7th Cir. 1989), quoting Pryor v. United States

Postal Service, 769 F.2d 281, 288-89 (Sth Cir. 1985) (allowing

reopening each time a party alleged “hardships” due to a

negligent attorney would cause the “meaningful finality of

judgment” to “largely disappear”).

Thus, the Ninth Circuit's ruling has already yielded results

contrary to settled law of this Court and other circuits. It also

creates the potential for reopening prior rulings in the

multitude of complex, multiparty cases in which federal courts

across the nation retain continuing jurisdiction. Sve, ¢.g., Ayers

v. Fordice, 111 F.3d 1183 (Sth Cir. 1997), cert. denied, 522 US.

1084 (1998) (jurisdiction over remedial decree entered in class

action alleging racially dual system of public higher

education); Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002)

(jurisdiction to administer consent decree in action by inmates

against Colorado Department of Corrections contesting DOC's

handling of prison canteen funds); Marino v. Pioneer Edsel Sales,

Inc., 349 F.3d 746 (4th Cir. 2003) (jurisdiction over consent

decree entered in class action by auto dealers); United States v.

State of Tennessee, 143 Fed. Appx. 656 (6th Cir. 2005)

(unpublished decision) (jurisdiction over Remedial Order and

Community Plan entered in action alleging that State of

Tennessee failed to provide humane conditions to mental

retarded residents of state-operated care facility); Jeff D. v.

Kempthorne, 365 F.3d 844 (9th Cir. 2004) (jurisdiction over

consent decrees entered in class action by indigent minors

3

diagnosed with severe emotional and meatal disabilities who

were being housed in state facilities witt: adults including

sexual predators); McDowell v. Philadelphia Housing Authority,

423 F.3d 233 (3rd Cir. 2005) (jurisdiction over administration

and enforcement of consent decree entered in class action by

public housing tenants because of housing authority's failure

to properly factor gas rates into gas allowances).

2. This proceeding does not challenge the Department of

the Interior's decision to grant federal recognition to

Samish.

Samish devotes much of its Brief in Opposition to

explaining that federal recognition is a “political question”

and that the federal government's decision to grant federal

to Samish cannot be challenged in this appeal.

Brief in Opposition to Certiorari at 14-16. This discussion is

but completely irrelevant, because the Petitioning

Tribes are NOT challenging Interior's decision in this

proceeding.’ The Petitioning Tribes are challenging the

Ninth Circuit's decision to ignore well-established finality

rules and allow Samish to resurrect its attempt to relitigate its

entitlement to treaty fishing rights.

Samish attempts to characterize this case as an Indian law

case with limited applications in other contexts, but it is not.

This is a procedural case aimed at preserving the important

role that Federal Rule of Civil Procedure 60(b) plays in

the essential interests served by res judicata and

other finality doctrines. The Ninth Circuit's decision in this

matter, particularly its decision finding extraordinary

circumstances i 1 this case based on alleged misconduct that

occurred in a different case twenty years earlier, has

implications far beyond the relatively small Indian law world.

—

5. The only danger to Samish’s administrative recognition is if the

current Ninth Circuit decision stands. A rationale similar to that which

allows Samish the opportunity to reopen its Treaty status case applies with

equal force to allow Tulalip and the other interested Tribes to seek to reopen

the Samish recogniticn proceeding.

Samish claims that the Ninth Circuit decision does not

[T]he Samish Indian Tribe decision does not dispense

with the res judicata effect of the Samish judgment

in Washington II. The Ninth Circuit in Samish Indian

Tribe decided . . . that the Samish Tribe [should] be

allowed to revisit the issue of its treaty status in

United S*ates v. Washington.

Samish Brief in Opposition at 10. Samish apparently does not

understand that being allowed to “revisit” a previously

decided issue is exactly what the doctrine of res judicata is

designed to prevent:

When a litigant files a lawsuit, the courts have

a right to presume that he has done his legal and

factual homework. It would undermine the basic

by the doctrine of res judicata to

permit the [plaintiffs] to once again avail

themselves of judicial time and energy while

another litigant, who has yet to be heard even once,

waits in line behind them.

Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 596

(7th Cir. 1986). The purpose of res judicata is to ensure “that

there be an end of litigation; that those who have contested an

issue shall be bound by the result of the contest, and that

matters once tried shall be considered forever settled as

between the parties.” Baldwin v. lowa State Traveling Men's

Association, 283 U.S. 522 (1931).

4. Protected property interests of Tulalip and the other

Petitioning Tribes have been adversely affected by the

Ninth Circuit's decision threatening their treaty rights

based on a proceeding in which the Petitioner Tribes

were not allowed to participate.

Tribal fishing rights secured by Treaty with the United

States are a “property right” protected by the Due Process

Clause of the Fifth Amendment. Menominee Indian Tribe v.

United States, 391 U.S. 404, 413 (1968). Thus, a Tribe who shares

5

the property right would be allowed to intervene in any action

where a new group of Indians sought to dilute its share. But

Samish persuaded the Ninth Circuit that their recognition

would not threaten Tulalip fishing rights, Greene v. United

States, 966 F.2d 973 (9th Cir. 1993):

The Tulalip concede that the district court limited

the Samish claims to federal recognition. Thus,

adjudication of the Samish treaty fishing rights is

not an issue in the pending proceeding.

Nevertheless, the Tulalip argue that renewed

administrative inquiry into the Samish tribal status

that the BIA will review much of the same factual

record that served as the basis for the judicial

allocation of fishing rights.

We recognize that the two inquiries are similar.

Yet each determination serves a different legal

purpose and has an independent legal effect.

Federal recognition is not a threshold condition a

tribe must establish to fish under the Treaty of Point

Elliott.

Similarly, the Samish need not assert treaty

fishing rights to gain federal recognition. . . . Even

if they obtain federal tribal status, the Samish

would still have to confront the decisions in

Washington I and II before they could claim fishing

rights. Federal recognition does not self-execute

treaty rights claims.

Greene I, 996 F.2d at 976-77(emphasis added).

Having prevailed on that argument, which prevented the

Tribes from participating in the recognition proceedings to

protect their interests, Samish now claims that its recognition

should allow it to do exactly what the Ninth Circuit said it

could not, i.e., allow Samish to reopen the Treaty fishing rights

decisions. Samish’s position directly contradicts the Ninth

Circuit's observation that