Samish Indian Tribe v. State of Washington

BACKGROUND

In 1855, federal representatives in the Territory of Wash- ington induced a number of Indian tribes to relinquish much of their land in return for payments and the right to keep small parcels of land. See generally Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 661-62 (1979). The resulting treaties also preserved the tribes’ right to fish “at usual and accustomed grounds.” See, e.g., Treaty of Point Elliott, Jan. 22, 1855, 12 Stat. 927, 928.

A century later, however, runs of fish had become scarce and Native Americans took only a small fraction of the fish harvest. In 1970, the United States brought an action against the State of Washington to force it to protect the tribes’ shares of anadromous fish runs. The United States brought the action 1 “Federal recognition” is a process by which the United States govern- ment formally acknowledges a government-to-government relationship with a historic tribe. See 25 C.F.R. §§ 83.2, 83.12 (2003). 112 SAMISH INDIAN TRIBE v. STATE OF WASHINGTON on its own behalf and as trustee for seven Indian tribes. Another seven tribes successfully intervened in the action. United States v.…

Appellant Samish Indian Tribe (“the Samish”) sought by means of Federal Rule of Civil Procedure 60(b)(6) to reopen United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979) (“Washington II”), aff'd 641 F.2d 1368 (9th Cir.1981), a judgment that denied the Samish treaty fishing rights on the ground that the tribe had not maintained an organized tribal structure. The Samish argued that federal recognition 1 of their tribe in 1996 was an extraordinary circumstance that justified reexamining their treaty fishing rights. The district court denied the motion to reopen, holding that federal recognition is of limited relevance to the Samish’s treaty fishing rights, that the 1979 judgment was not erroneous, and that reopening the judgment would be extremely disruptive. We reverse.

*1154 BACKGROUND

In 1855, federal representatives in the Territory of Washington induced a number of Indian tribes to relinquish much of their land in return for payments and the right to keep small parcels of land. See generally Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 661-62 , 99 S.Ct. 3055 , 61 L.Ed.2d 823 (1979). The resulting treaties also preserved the…

dissenting.

Appellant Samish Indian Tribe (“Samish Tribe”) appeals the district court’s order denying the Samish Tribe’s motion pursuant to Federal Rule of Civil Procedure 60(b)(6) for relief from the district court’s prior judgment in United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979), aff 'd, 641 F.2d 1368 (9th Cir.1981) (“Washington II ”). The majority opinion holds that the district court abused its discretion in denying the Samish Tribe’s Rule 60(b)(6) motion because “[fjederal recognition [of the Samish Tribe] is determinative of the issue of tribal organization, the issue upon which the Samish were denied treaty fishing rights in Washington II” and “[a]s 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.” Op. at 1161.

*1163 With respect, I believe the majority opinion errs in two regards. First, federal recognition as a tribe has never been required to establish off-reservation fishing rights pursuant to the Treaty of Point Elliott (1855), and the Samish Tribe was not precluded in Washington II from presenting…