Western District of Washington – Page 20

Ninth Circuit Rules in Favor of Lummi Tribe in Treaty Fishing Dispute

August 20, 2014Matthew L.M. Fletcher1 Comment

Here is the court’s opinion in United States (Lower Elwha Klallam Indian Tribe) v. Lummi Tribe:

The court’s syllabus:

The panel reversed the district court’s summary judgment entered in favor of the Klallam Tribe in a case involving a fishing territory dispute between two sets of Indian Tribes, brought pursuant to the continuing jurisdiction of the 1974 “Boldt Decree” issued by the U.S. District Court for the Western District of Washington.

The panel held that the issue of whether the waters immediately to the west of northern Whidbey Island were part of the Lummi Tribe’s usual and accustomed fishing grounds had not yet been determined. The panel held, therefore, that the district court erred in concluding that the issue was controlled by law of the case. The panel remanded to the district court for further proceedings.

Judge Rawlinson dissented because she would hold that the district court properly applied the law of the case doctrine where the fishing rights issue was addressed in the prior opinion United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000).

Briefs and other materials here.

Nooksack Disenrollees Get Discovery in Suit against Interior Department

June 19, 2014Matthew L.M. Fletcher2 Comments

Here are the updated materials in St. Germain v. Dept. of Interior (W.D. Wash.):

29 – Defendants’ Motion for Order Determining Applicable Standard of Judicial Review

30 – Response Re Motion for Order Determining Applicable Standard of Review

31 – Defendants’ Reply re Motion for Order Determining Applicable Standard of Judicial Review

32 – Declaration of Judith R Joseph

33 – Order

Prior materials in this federal case here.

Quileute Tribe Sues Merchandising Company for Violation of Indian Arts and Crafts Act Related to “Twilight” Movies

April 23, 2014Matthew L.M. Fletcher

Here is the complaint in Quileute Tribe v. National Entertainment Collectibles Association (W.D. Wash.):

1 Complaint

An excerpt:

1. The Quileute Tribe brings this Complaint against National Entertainment Collectibles Association, Inc. (“NECA”) for unfair competition and for violation of the Indian Arts and Crafts Act. In this action, the Quileute Tribe seeks to protect its heritage from Defendant’s improperly marketed and advertised products, and to ensure that consumers are no longer deceived, confused or misled in their pursuits to find and acquire authentic and genuine Quileute products.

2. The Quileute people have lived on the Olympic Peninsula for thousands of years, and have their own unique language, art and folklore. Quileute art and artifacts are prized for their distinctive character, and are displayed in museums throughout Washington.

3. As alleged herein, NECA has advertised, promoted, and sold its goods under the “Quileute” name on the Internet and in various retail stores across the United States. Defendant’s conduct is designed to convey to consumers a false association or affiliation with the Quileute Tribe, and to unfairly trade off of the fame, reputation and goodwill of the Quileute Tribe.

4. Consumers have been misled as to the source, origin, sponsorship, or affiliation of Defendant’s products sold under the “Quileute” name. If Defendant is permitted to continue to market and retail its products, many consumers will conclude that the goods sold by NECA were originated from, jointly developed by, licensed, certified, supported by or are otherwise affiliated with the Quileute Tribe, which they are not.

5. In addition, NECA sells its goods by falsely suggesting they are the product of the Quileute Tribe, are Indian-produced or are the product of an Indian Tribe, in violation of the Indian Arts and Crafts Act.

6. The Quileute Tribe accordingly brings this action, seeks damages, and seeks to enjoin NECA from using the “Quileute” name for the marketing and sale of goods.

Ninth Circuit Materials in U.S. v. Washington Subproceeding — Klallam Tribes v. Lummi Tribe

April 16, 2014Matthew L.M. Fletcher1 Comment

Here:

Lummi Opening Brief

Klallam Tribes Answer Brief

Lummi Reply

Oral argument audio here.

Lower court materials here.

Prior CA9 opinion and materials here.

Puyallup Prevails over IRS in Dispute over Levy Notice Seeking Per Capital Payments

April 14, 2014April 14, 2014Matthew L.M. Fletcher

Here are the materials in United States v. Puyallup Tribe of Indians (W.D. Wash.):

20 US Cross Motion for Summary J

21 Puyallup Cross Motion for Summary J

22 US Response

23 Puyallup Response

24 DCT Order Granting Tribe’s Motion

An excerpt:

The Government contends that, based on custom and practice, the per capita payments were fixed and determinable. The Government admits that “this is a matter of first impression” (Dkt. 22 at 16), and the Court declines to adopt the Government’s proposition that the rule that levies may attach to discretionary, yet customary payments. Just like there is no guarantee that a subsequent deposit will be made to a levied bank account, there is no guarantee that Turnipseed will receive another per capita payment. While the Tribe strives to provide for its members, it still makes a discretionary monthly decision whether it shall do so. Moreover, the fact that a payment is likely is the same as classifying a sale of personal property as likely. But, according to the regulations, a levy cannot attach until the individual has actually sold the item. Therefore, the Court concludes that the levies in question did not attach to Turnipseed’s per capita payments.

Federal Court Rules Against Feds in Lower Elwha Fish Hatchery Challenge

March 31, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Wild Fish Conservancy v. National Park Service (W.D. Wash.):

153 Wild Fish Conservancy Motion for Summary J

164 Federal Cross Motion for Summary J

191 DCT Order

Prior posts are here, here, here, here, and here.

Chehalis Tribes Win $22K+ in Costs from Thurston County in Tax Dispute

February 5, 2014Matthew L.M. Fletcher1 Comment

Here:

doc. 220 Plaintiff’s Motion for Costs

doc. 222 Response to Plaintiff’s Motion for Costs

doc. 226 Reply re Motion for Costs

doc. 228 Taxation of Costs

Answer Briefs in United States v. Washington Culverts Appeal

January 29, 2014Matthew L.M. Fletcher1 Comment

Here:

Tribal Brief

US Brief

Indian Law Professors

Pacific Coast Federation of Fishermen’s Associations

Federal Court Dismisses Skokomish Treaty Rights Claims against State under 11th Amendment and Rule 19

January 15, 2014Matthew L.M. Fletcher2 Comments

Here are the materials in Skokomish Indian Tribe v. Goldmark (W.D. Wash.):

59 State Defendants Motion to Dismiss

60 Prosecuting Attys Motion to Dismiss

67 Tribal Amici Motion to Dismiss

71 Skokomish Reponse

116 DCT Order Dismissing Complaint

An excerpt:

Being fully advised, the court GRANTS both motions on grounds that Skokomish Indian Tribe failed to join certain other Indian tribes in this action. These other tribes are required parties under Federal Rule of Civil Procedure 19, but cannot be joined due to their sovereign immunity. Because the court concludes that the action cannot proceed “in equity and good conscience” without these other tribes, see id., the court dismisses Skokomish Indian Tribe’s action without prejudice. With respect to Defendants Goldmark and Young only, the court also grants Defendants’ motions to dismiss on grounds of Eleventh Amendment sovereign immunity and because Skokomish Indian Tribe has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nevertheless, despite granting Defendants’ motions, the court also grants Skokomish Indian Tribe leave to amend its Amended Complaint.

We posted the complaint here.