NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JUN 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SKOKOMISH INDIAN TRIBE, a No. 17-35336 federally recognized Indian tribe, on its own behalf and as parens patriae of all D.C. No. 3:16-cv-05639-RBL enrolled members of the Indian tribe,

Plaintiff-Appellant, MEMORANDUM*

v.

LEONARD FORSMAN, Chairman of the Suquamish Tribal Council; BARDOW LEWIS, Vice-Chairman of the Suquamish Tribal Council; NIGEL LAWRENCE, Secretary of the Suquamish Tribal Council; ROBIN SIGO, Treasurer of the Suquamish Tribal Council; LUTHER MILLS, Jr., Member of the Suquamish Tribal Council; RICH PURSER, Member of the Suquamish Tribal Council; SAMMY MABE, Member of the Suquamish Tribal Council; ROBERT PURSER, Jr., Fisheries Director for the Suquamish Tribal Council; SUQUAMISH

INDIAN TRIBE,

Defendants-Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted June 6, 2018 Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District Judge.

The Skokomish Indian Tribe appeals from the district court’s dismissal of its

claims for declaratory and injunctive relief against officials of the Suquamish

Indian Tribe (“Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm. While Defendants raise multiple alternate grounds that they argue

would bar Skokomish’s claims, we agree with the district court that this action

must be dismissed for failure to join indispensable parties under Federal Rule of

Civil Procedure 19.

As an initial matter, there is no merit to Skokomish’s assertion that its

asserted treaty hunting rights were adjudicated in the decades-long litigation

stemming from United States v. Washington, 384 F. Supp. 312 (W.D. Wash.

1974). No plausible reading of the original injunction decision or subsequent

proceedings and appeals to this court supports the conclusion that the litigation

** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 2 decided anything other than treaty fishing rights. See, e.g., United States v.

Skokomish Indian Tribe, 764 F.2d 670, 672 (9th Cir. 1985) (“In this case, the

Skokomish . . . and the Suquamish . . . had asserted claims for a determination of

only their usual and accustomed fishing places.”). Skokomish nonetheless relies

broadly on the reservation of rights doctrine to argue that the primary-right

determination for fishing rights automatically imputes to hunting rights.

Defendants and the amici tribes have, however, offered a conflicting interpretation

of the relevant treaties, and while we do not reach the merits of their competing

hunting claims, we find these claims plausible and non-frivolous. We must

therefore engage in the Rule 19 analysis. See Shermoen v. United States, 982 F.2d

1312, 1318 (9th Cir. 1992).

An absent tribe’s joinder is “required” under Rule 19 “if either: (1) the court

cannot accord ‘complete relief among existing parties’ in the [tribe’s] absence, or

(2) proceeding with the suit in its absence will ‘impair or impede’ the [tribe’s]

ability to protect a claimed legal interest relating to the subject of the action, or

‘leave an existing party subject to a substantial risk of incurring double, multiple,

or otherwise inconsistent obligations because of the interest.’” Alto v. Black, 738

F.3d 1111, 1126 (9th Cir. 2013) (quoting Fed. R. Civ. P. 19(a)(1)(A)–(B)). “Only

if we determine that the [tribe] is a required party do we proceed to the second

3 Rule 19 inquiry: whether joinder is feasible, or is barred by sovereign immunity.”

Id. “Finally, only if joinder is impossible must we determine whether, in ‘equity

and good conscience,’ the suit should be dismissed.” Id. (quoting Fed. R. Civ. P.

19(b)). We review a Rule 19 dismissal for abuse of discretion “but review the

legal conclusions underlying that determination de novo.” Id. at 1125.

Turning to the first step, we find that, at a minimum, the Jamestown

S’Klallam and Port Gamble S’Klallam Tribes are required parties to this action.

Like Defendants, these amici tribes’ interpretation of their reserved hunting rights

conflicts with Skokomish’s primary-right claim, which entails the power to

exclude members from all other Stevens Treaty Tribes from hunting in the land at

issue. Therefore, the district court correctly concluded that deciding Skokomish’s

claims against the Suquamish Defendants would necessarily decide Skokomish’s

hunting rights in relation to the amici tribes and potentially other absent, non-party

Stevens Treaty Tribes.

Because Skokomish concedes that the absent tribes’ sovereign immunity

bars their involuntary joinder, we address whether these tribes are “indispensable”

parties. See Shermoen, 982 F.2d at 1318. This inquiry addresses four factors:

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by:

4 (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Fed. R. Civ. P. 19(b). Under the first factor, the prejudice to the absent amici tribes

if Skokomish prevails “stems from the same legal interests that makes” these tribes

required parties under Rule 19(a). Confederated Tribes of Chehalis Indian

Reservation v. Lujan, 928 F.2d 1496, 1499 (9th Cir. 1991). As to the second

factor, Skokomish asserts that we could enjoin the Suquamish officers without

affecting the amici tribes’ hunting rights. But as discussed above, Skokomish’s

primary-right claim is at odds with the claimed treaty rights of any

tribe—including amici—that seeks to hunt in the land at issue. The district court

therefore correctly determined that “[t]here is no practical way to lessen or avoid

this prejudice.”

Turning to the last factor, we acknowledge that a Rule 19 dismissal will

likely leave Skokomish without an alternate judicial forum. However, this result is

not dispositive of the indispensable-party analysis. White v. Univ. of Cal., 765

F.3d 1010, 1028 (9th Cir. 2014) (“[V]irtually all the cases to consider the question

appear to dismiss under Rule 19, regardless of whether a remedy is available, if the

5 absent parties are Indian tribes invested with sovereign immunity.”). Given the

important treaty rights that Skokomish’s claims implicate, we find that the district

court did not abuse its discretion in concluding that this action cannot “in equity

and good conscience” proceed in the amici tribes’ absence. See Skokomish Indian

Tribe v. Goldmark, 994 F. Supp. 2d 1168, 1186–92 (W.D. Wash. 2014) (arriving at

the same conclusion where Skokomish sought to enjoin state and county officials

based on the same treaty interpretation it advances in the instant case), appeal

voluntarily dismissed, No. 14-35209 (9th Cir. 2014).

Finally, the district court did not err in sua sponte denying Skokomish leave

to amend its complaint. Skokomish has cursorily argued that it can remedy the

absence of indispensable parties by adding the officers of the other Stevens Treaty

Tribes to this action. Skokomish has failed, however, to allege that any tribe other

than Suquamish has promulgated and is enforcing the type of tribal hunting

regulation at issue.1 Leave to amend would therefore be futile.

Accordingly, the district court’s judgment is AFFIRMED.

1 At oral argument, Skokomish represented that it would be willing to amend its complaint to remove its primary-right claim—at least as to the amici tribes. This amendment, however, would drastically alter Skokomish’s theory of the case, and we decline to consider arguments not raised in the opening brief. 6