Western District of Washington – Page 19

Decision in Tulalip Tribes v. Washington

April 17, 2015Kate Fort2 Comments

Opinion here.

Previous coverage here.

Our conclusion is consonant with our instruction in Shoshone-Bannock Tribes that courts should hold compacting parties to the ordinary meaning of terms in their agreements. Id. at 1098–100. The plain language of the Spokane Compact shows that the Inter-Tribal Fund mechanism available to the Spokane Tribe carries with it interdependent conditions and consequences. Tulalip’s amendment would not match those terms. We take no view on whether the terms of Appendix Spokane are in fact more favorable than those included in the Tulalip Compact. We hold simply that Tulalip is not entitled as a matter of law to the more selective set of terms in its proposed amendment.2 The most-favored tribe clause does not allow a “pick and choose” arrangement. The district court correctly entered judgment for the State. Simply put, Tulalip’s proposal does not mirror the restrictions of Appendix Spokane, and those are the terms to which the State agreed.

Swinomish Trespass Suit against BNSF Railroad

April 10, 2015Matthew L.M. Fletcher1 Comment

Here is the complaint in Swinomish Indian Tribal Community v. BNSF Railway Co. (W.D. Wash.):

2015 Complaint

And here is a 1978 complaint referenced in the 2015 complaint:

1978 Complaint78-429

Quinault Moves to Dismiss Claims against Estate of Edward Comenout; Counterclaims Dismissed, Too

March 25, 2015March 25, 2015Matthew L.M. Fletcher

Here are the materials in Quinault Indian Nation v. Comenout (W.D. Wash.):

59 Quinault Motion to Dismiss Counterclaims

62 Opposition

67 Reply

72 DCT Order

Motions to Dismiss Challenge to Quinault Jurisdiction over Lake Quinault

March 10, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in North Quinault Properties LLC v. Quinault Indian Nation Complaint (W.D. Wash.):

13 Washington Motion to Dismiss

14 Quinault Motion to Dismiss

15 Opposition to Tribe Motion

16 Opposition to State Motion

17 Quinault Reply

18 State Reply

We posted the complaint here.

Federal Court Dismisses Challenge to Quinault Lease under Rule 19, Sovereign Immunity

March 6, 2015Matthew L.M. Fletcher

Here are the materials in Comenout v. Whitener (W.D. Wash.):

25 DCT Order Dismissing Complaint

An excerpt:

The Nation is an indispensible party under Rule 19(b). As discussed above, a judgment in Comenout’s favor would prejudice the Nation’s contractual rights under the lease. Comenout also cannot be accorded complete relief in the Nation’s absence because any injunction would not be binding on the Nation. Further, the relief sought by Comenout cannot be shaped to lessen the potential prejudice to either Comenout or the Nation. Partial relief is also inadequate, because the Nation could still attempt to enforce its rights to use the property for commercial purposes as the lessee.

Materials on Makah Indian Tribe’s Request for Determination Re Quileute and Quinault Usual and Accustomed Fishing Grounds in the Pacific Ocean

February 23, 2015Matthew L.M. Fletcher2 Comments

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

284 Interested Tribes Response to 283 — Burden of Proof

285 US Response to 283 — Burden of Proof

286 Upper Skagit Tribe Response to 283 — Burden of Proof

287 Makah Response to 283 — Burden of Proof

288 State of Washington Response to 283 — Burden of Proof

289 Quileute and Quinault Reply to 284 in Support of 283

290 Quileute and Quinault Reply in Support of 283

296 Makah Surreply re 283

304 DCT on Motions for Summary J

306 DCT Pretrial Order

Materials in a related pending Ninth Circuit matter in subproceeding 09-01 are here.

North Quinault Properties LLC v. Quinault Indian Nation Complaint

January 8, 2015Matthew L.M. Fletcher1 Comment

Here is the complaint:

Complaint

An excerpt:

Under State and federal law Lake Quinault, a navigable waterway abutting the Quinault Indian Reservation and located in Washington State, should be open to the public for its use and recreation as well as to those non-tribal property owners with real property abutting the Lake shore such as the Plaintiffs. However for more than a decade the Quinault Indian Tribe has increasingly asserted “jurisdiction” and control over this navigable waterway, forcing out the public and non-tribal property owners in derogation of the Equal Footing Doctrine and the Public Trust Doctrine. Most recently, the Quinault Indian Tribe has restricted all use of the Lake for non-tribal members. Through this civil action, the Plaintiffs seek court determination as to the status of Lake Quinault and the property rights of non-tribal property owners abutting the Lake and court determination as to the public’s right to access of the Lake, its shore and lakebed.