Sherrill-based equitable defenses

There is the potential for an enormous amount of chaos for both US v. Washington and for any Indian tribe with extant treaty rights based on the arguments going on here now. Most notably, several tribes (Quinault, Quileute, and Hoh) are claiming that the Sherrill-based equitable defenses may apply in some way to Indian treaty claims.

I find this personally horrifying and disturbing — that any tribe would claim that Sherrill and its Second Circuit progeny apply to treaty rights. Sherrill is a statute-based claim, and so are the Second Circuit cases that purport to follow its reasoning. Treaty rights are an entirely different genre.

I sincerely hope the U.S. v. Washington tribes will opt-out of federal litigation — with its potential to undercut treaty rights for tribes all over the country — and move toward an inter-tribal treaty. There is at least one proposal on the table, and tribal leaders and tribal constituents should act quickly to adopt it. These inter-tribal disputes are doing nothing now but threatening to make bad law for everyone.

Luckily, Judge Martinez did not hold that equitable defenses apply here, but who knows what will happen in the Ninth Circuit and beyond.

Here are the new materials in subproceeding 09-01 of United States v. Washington (No. 70-9213) (W.D. Wash.):

248 Makah Motion for Summary J on Equitable Defenses

251 Quinault and Quileute Motion for Summary J

267 Quinault and Quileute Response to 248 Motion

274 Makah Reply in Support of 248 Motion

275 Interested Tribes Response to 251 – Equitable Defenses

276 Hoh Tribe Response to 251

277 Makah Response to 251

279 Quileute and Quinault Reply in Support of 251

281 Quileute and Quinault Reply in Support of 251

283 Quileute and Quinault Motion to Define Burden of Proof