Paul Grondal v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL GRONDAL, a Washington No. 20-35694
resident; MILL BAY MEMBERS
ASSOCIATION, INC., a Washington D.C. No.
non-profit corporation 2:09-cv-00018-
Plaintiffs-Appellants, RMP

v.
OPINION
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF THE INTERIOR;
BUREAU OF INDIAN AFFAIRS;
CONFEDERATED TRIBES OF THE
COLVILLE RESERVATION,
Defendants-Appellees,

v.

WAPATO HERITAGE LLC; GARY
REYES,
Defendants-Appellants,

and

FRANCIS ABRAHAM; PAUL G.
WAPATO, JR.; KATHLEEN DICK;
DEBORAH BACKWELL; CATHERINE
GARRISON; MARY JO GARRISON; ENID
T. WIPPEL; LEONARD WAPATO; ANNIE
WAPATO; JUDY ZUNIE; JEFFREY M.
2 GRONDAL V. UNITED STATES

CONDON; VIVIAN PIERRE; SONIA W.
VANWOERKOM; ARTHUR DICK;
HANNAH RAE DICK; FRANCIS J.
REYES; LYNN K. BENSON; JAMES
ABRAHAM; RANDY MARCELLAY;
PAUL G. WAPATO, JR.; CATHERINE L.
GARRISON; MAUREEN M.
MARCELLAY; LEONARD M. WAPATO;
MIKE MARCELLAY; LINDA SAINT;
STEPHEN WAPATO; MARLENE
MARCELLAY; DWANE DICK; GABE
MARCELLAY; TRAVIS E. DICK;
HANNAH DICK; JACQUELINE L.
WAPATO; DARLENE MARCELLAY-
HYLAND; ENID T. MARCHAND; LYDIA
A. ARNEECHER; GABRIEL
MARCELLAY; MIKE PALMER; SANDRA
COVINGTON,
Defendants.

Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted August 9, 2021
Seattle, Washington

Filed December 30, 2021

Before: Carlos T. Bea, Daniel A. Bress, and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge Bea
 GRONDAL V. UNITED STATES 3

SUMMARY *

Bureau of Indian Affairs/Government’s Tribal
Trust Duty

The panel affirmed the district court’s grant of the
Bureau of Indian Affairs’ motion for summary judgment and
ejectment order in an action brought by a group of
recreational vehicle owners seeking to retain their rights to
remain on a lakeside RV park located on American Indian
land held in trust by the Bureau.

Decades ago, a group of recreational vehicle (“RV”)
owners purchased fifty-year memberships to the RV park on
a plot of land in Eastern Washington known as the Moses
Allotment Number 8 (“MA-8”). However, the park’s
management had validly leased the park’s land from its
landowners for only twenty-five years.

In the 1900s, the United States originally issued title to
the land to American Indian Wapato John, a member of the
Moses Band of the Columbia Tribe, as an “allotment” in
trust: a distinct plot of land set aside for Wapato John.
According to the federal statute establishing this trust, the
land’s legal title vested in the United States, which was to
hold the land in trust for ten years for Wapato John’s sole
use and benefit. The land’s beneficial title (i.e., the land’s
equitable title) vested in Wapato John. During the ten-year
trust period, the land was to be managed by the Department
of the Interior (now the Bureau of Indian Affairs) and was

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 GRONDAL V. UNITED STATES

subject to restrictions on alienation, encumbrance, and state
taxation. That trust period for MA-8 has been repeatedly
extended over the years (and these trust extensions
correspondingly extended the restrictions as well) such that
to this day, the Bureau of Indian Affairs (“BIA”) continues
to hold legal title to the land in trust for beneficial interests
of Wapato John’s heirs, referred to as the individual allottees
(“IAs”), and also for the Wapato Heritage LLC (“Wapato
Heritage”), and the Confederated Tribes of the Coleville
Reservation. The BIA’s trust status, however, is in dispute.

In 1979, William Wapato Evans, Jr.. an heir of Wapato
John, obtained approval from a majority of other IAs to lease
the entirety of MA-8 to develop a recreational vehicle
park—the Mill Bay RV Park. Evans negotiated and signed
a Master Lease in 1984, under which the IAs leased use of
MA-8 to Evans for a term of twenty-five years, but Evans
retained an option to renew the lease for another twenty-five
years. Thereafter, Evans developed and sold regular and
expanded memberships to purchasers to use and park their
vehicles in the RV park. After Evans’s death, his company
Wapato Heritage obtained Evans’s interest under the Master
Lease as the lessee of the MA-8 land. The Master lease
expired in 2009, leaving unexercised the option to extend.
See Wapato Heritage, LLC v. United States (Wapato
Heritage I), 637 F.3d 1033, 1040 (9th Cir. 2011).

Plaintiffs, Mill Bay Members Association (“Mill Bay”)
and RV owner Paul Grondal, filed this lawsuit seeking a
declaratory judgment that would recognize their right to
remain on MA-8 through 2034. In January 2010, the district
court handed down the first order here on appeal. This order
dealt with cross-motions for summary judgment by plaintiff
Mill Bay, which claimed the right to retain possession of the
MA-8 land used by its membership for their RVs, and by
 GRONDAL V. UNITED STATES 5

defendant the BIA, which counterclaimed in trespass and
sought Mill Bay’s ejectment from the property. In that 2010
order, the district court rejected Mill Bay’s attempt to remain
on MA-8 and denied Mill Bay’s claims for estoppel, waiver
and acquiescence, and modification. After the district
court’s 2010 order, proceedings were significantly delayed
due to concerns the court had with the IA-defendants’ lack
of legal representation. These representation issues are the
subject of this case’s companion appeal, Wapato Heritage
LLC v. United States, No. 20-35357 (9th Cir. 2021), which
the panel decided by a separate memorandum disposition. In
2020, the district court handed down the second ruling here
on appeal. In this 2020 order, the district court granted the
BIA’s motion for summary judgment for trespass and
ordered Mill Bay removed from MA-8. Mill Bay appealed
and defendant Wapato Heritage joined Mill Bay’s appeal on
the issue of the BIA’s standing to bring a trespass
counterclaim on behalf of the IAs.

The panel first held that the MA-8 land remains held in
trust by the United States, and the BIA, as holder of legal
title to the land, had and has standing to bring its claim for
trespass and ejectment against Mill Bay. The panel held that
of the three transactions and trust extensions in MA-8’s
history that appellants challenged, none were legally
deficient. The panel therefore first rejected the assertion that
the MA-8 allotments vested legal title in the IAs in fee
simple rather than in trust. The panel noted that the Supreme
Court in Starr v. Long Jim, 227 U.S. 613, 621–22 (1913),
held that the 1883 Moses Agreement and its implementing
legislation, the Act of July 4, 1884, did not guarantee title in
fee but instead permitted the United States to hold the
allotments in trust. The panel next rejected appellants’
assertion that when President Wilson extended the trust
period for MA-8 until 1926 through his 1914 executive
6 GRONDAL V. UNITED STATES

order, he did so without statutory authority. The panel held
that the Act of June 21, 1906, gave President Wilson the
lawful authority to extend the trust period of the Moses
Allotments through his 1914 executive order. Finally, the
panel rejected appellants’ argument that MA-8’s trust period
was not properly extended in 1936 after the passage of the
1934 Indian Reorganization Act (“IRA”). Based on the
well-reasoned conclusion of the district court and the weight
of the evidence in the record, including contemporary
interpretations and consistent treatment for nearly a century,
the panel rejected the argument that the Moses Allotments
were non-reservation land outside of the scope of the 1934
IRA and its 1935 Amendment. The panel therefore affirmed
the district court’s conclusion that the 1935 Amendment
extended the Moses Allotments’ trust status.

Mill Bay next asserted that the BIA should be precluded
under res judicata from seeking ejectment due to the BIA’s
involvement in 2004 state court litigation (“Grondal state
litigation”) that resulted in a 2004 Settlement Agreement
permitting Mill Bay the right to use the property through
2034, in compliance with the Master Lease. The panel noted
that the BIA was not itself a party to the Grondal state
litigation or the 2004 Settlement Agreement. Nor was the
BIA in privity with Wapato Heritage, concededly one of the
parties to the Grondal state litigation. And Wapato
Heritage’s interest as the lessee under the Master Lease was
quite different from the BIA’s interest as trustee for the
lessors under the same lease. Even setting aside that
different parties were involved in the Grondal state litigation
and in this lawsuit, the two cases also involved different
claims. The panel therefore rejected Mill Bay’s argument
that the IAs and the BIA were precluded under res judicata
from ejecting Mill Bay.
 GRONDAL V. UNITED STATES 7

The panel rejected Mill Bay’s assertion that Paragraph 8
of the Master Lease required Mill Bay’s purported subleases
to be preserved and assigned rather than cancelled because
of the termination of the Master Lease. The panel held that
Paragraph 8 of the Master Lease did not apply at all because
the Master Lease was not terminated by cancellation or
otherwise. Paragraph 8 did not apply when the Lease expires
by the passage of time, as happened here.

Finally, Mill Bay argued that, based on the BIA’s alleged
prior representations that Mill Bay would be able to remain
on MA-8 through 2034, the court should apply equitable
estoppel to prevent the BIA from seeking Mill Bay’s
ejectment. The district court concluded the equitable
estoppel defense was not available under United States v.
City of Tacoma, 332 F.3d 574 (9th Cir. 2003), which holds
that the United States is not subject to equitable estoppel
when it acts in its sovereign capacity as trustee for Indian
land. The panel concluded that City of Tacoma was not
distinguishable, and that Mill Bay was barred from asserting
its defense of equitable estoppel against the BIA.
8 GRONDAL V. UNITED STATES

COUNSEL

Sally W. Harmeling (argued), Robert R. Siderius, Jacob M.
Knutson, and Joseph Q. Ridgeway, Jeffers, Danielson, Sonn
& Aylward, P.S., Wenatchee, Washington, for Plaintiffs-
Appellants Paul Grondal and Mill Bay Members
Association, Inc.

Nathan Arnold (argued), Bruce Johnston, Emanuel
Jacobowitz, Cloutier Arnold & Jacobowitz PLLC, Seattle,
Washington; Tyler D. Hotchkiss and Dale M. Foreman,
Foreman, Hotchkiss, Bauscher & Zimmerman, PLLC,
Wenatchee, Washington; for Defendant-Appellant Wapato
Heritage, LLC.

Manish Borde (argued), Borde Law PLLC, Seattle,
Washington, for Defendant-Appellant Gary Reyes.

Joseph P. Derrig (argued), Assistant United States Attorney;
Joseph H. Harrington, Acting United States Attorney;
United States Attorney’s Office, Spokane, Washington; Jean
E. Williams, Acting Assistant Attorney General; John L.
Smeltzer, Attorney; Environment & Natural Resources
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellees United States of America,
United States Department of the Interior, and Bureau of
Indian Affairs.

Brian W. Chestnut (argued), Brian C. Gruber, and Anna E.
Brady, Ziontz Chestnut, Seattle, Washington, for Defendant-
Appellee the Confederated Tribes of the Colville
Reservation.
 GRONDAL V. UNITED STATES 9

OPINION

BEA, Circuit Judge:

Decades ago, a group of recreational vehicle (“RV”)
owners purchased fifty-year memberships to a lakeside RV
park. But as it turns out, the park’s management had validly
leased the park’s land from its landowners for only twenty-
five years. This case embodies the efforts of those RV
owners to maintain access to their vacation getaway after the
end of the twenty-five-year lease term. Complicating
matters, the land in question is American Indian land: It is
fractionally owned by the heirs of American Indian Wapato
John and is currently held in trust by the United States’
Bureau of Indian Affairs (“BIA”), although that trust status
is very much in dispute.

In the litigation below, the RV owners sued to retain their
rights to remain on the RV park through 2034; the BIA is a
defendant by dint of its now-challenged status as trustee of
the at-issue land. But once sued, the BIA quickly took the
offensive with a counterclaim for trespass and ejectment
against the RV owners who have admittedly continued to
possess the RV park, even after the lease expired.

In this appeal, we consider the district court’s grant of
the BIA’s motion for summary judgment on that
counterclaim. To rule, we must delve into the 19th-century
origins of Wapato John’s trust land; interpret 20th-century
executive orders and treaties; apply 21st-century estate
statutes; and consider the barrage of legal arguments
presented to us. After considering all that, and more, we
affirm.
10 GRONDAL V. UNITED STATES

I. BACKGROUND

A. The Land at Issue

Moses Allotment Number 8 (“MA-8”) is a plot of land
in eastern Washington; the RV park is on that land. In the
1900s, the United States originally issued title to this land to
American Indian Wapato John, a member of the Moses Band
of the Columbia Tribe, as an “allotment” in trust: a distinct
plot of land set aside for Wapato John. According to the
federal statute establishing this particular trust, the land’s
legal title vested in the United States, which was to hold the
land in trust for ten years for Wapato John’s sole use and
benefit. The land’s beneficial title (i.e., the land’s equitable
title) vested in Wapato John. During the ten-year trust
period, the land was to be managed by the Department of the
Interior (now the BIA) and was subject to restrictions on
alienation, encumbrance, and state taxation. That trust
period for MA-8 has been repeatedly extended over the years
(and these trust extensions correspondingly extended the
restrictions as well) such that to this day, the United States
continues to hold legal title to the land, in trust for Wapato
John’s heirs.

Today, beneficial ownership in MA-8 is rather
fractionated. Twenty-seven heirs of Wapato John—here,
referred to as the individual allottees (“IAs”)—own separate,
undivided beneficial interests in the land. Wapato Heritage,
LLC (“Wapato Heritage”) and the Confederated Tribes of
the Colville Reservation (the “Tribe”) also hold undivided,
beneficial interests in MA-8. 1 The BIA retains legal title as

The Tribe owns a 32.2% interest in the land and Wapato Heritage
1

(owned by the grandsons of a deceased individual allottee by the name
of William Wapato Evans, Jr.) holds a 23.8% interest as a life estate; this
 GRONDAL V. UNITED STATES 11

trustee to all such beneficial interests held by the IAs,
Wapato Heritage, and the Tribe.

Throughout most of 20th century, MA-8 was left
unimproved. But in 1979, William Wapato Evans, Jr. (an
heir of Wapato John and then-holder of an approximately
5% beneficial interest in MA-8) sought to improve MA-8
and thereby generate income for himself and the other IAs.
At that time, the IAs between them owned the vast majority
of the beneficial interest in MA-8, and per BIA regulation,
Evans obtained approval from a majority of those IA
interests to lease the entirety of MA-8 to develop a
recreational vehicle park (the “Mill Bay RV Park”). With
approvals in hand, Evans negotiated and signed the “Master
Lease.” 2

Under the terms of the Master Lease, signed in 1984, the
IAs leased use of MA-8 to Evans for a term of twenty-five
years, but Evans retained an option to renew the lease for
another twenty-five years. To exercise this option, the
Master Lease required Evans to provide written notice to
both the Lessors (the IAs) and the BIA twelve months prior
to the expiration of the original twenty-five-year term. The
Master Lease permitted Evans to sublease the property upon
written approval of the BIA and provided that such subleases
would be assigned to the Lessors, rather than cancelled, if

estate reverts to the Tribe after the death of Evans’ last living great
grandchild. Separately, around 4.5% of the land is held in fee.
2
The Master Lease defines the “Lessee” as Evans, and the “Lessor”
as individuals named in “Exhibit A.” As it happens, Exhibit A could not
be located and may not exist, but, per prior litigation, the parties here
agree that the individuals listed in Exhibit A are the IAs who owned the
fractionated interests in MA-8 at the time the Master Lease was signed.
The BIA, as trustee, signed the Lease on behalf of the IA Lessors.
12 GRONDAL V. UNITED STATES

the Master Lease itself was terminated “by cancellation or
otherwise.” Evans subleased most of MA-8 to his
corporation, Mar-Lu, Ltd. 3 He also subleased a portion of
MA-8 to a development corporation owned by the Tribe for
the operation of a casino.

Thereafter, Evans, through Mar-Lu, developed and sold
“regular memberships” to the Mill Bay RV Park. These
“regular memberships” allowed purchasers to use and park
their vehicles on the RV park on a first-come, first-served
basis under the site plan of the Master Lease. 4 Later, in
1989, Evans obtained approval from the BIA to modify the
site plan so that Evans could sell “expanded
membership[s].” These expanded memberships, expressly
subject to the terms of the Master Lease, granted members
the “right to use” the Mill Bay RV Park and guaranteed them
each a designated spot in the RV park.

B. Earlier Litigation

Two earlier lawsuits are relevant to this one. First is the
Grondal state court litigation between Evans and some of the
RV owners who had purchased regular or expanded
memberships at his park. By 2001, the Mill Bay RV Park
was losing money fast, and Evans notified RV owners who
had purchased either a regular membership or an expanded
membership that he would be closing the park. Some of
those members—Paul Grondal and the Mill Bay Members
Association, Inc. (“Mill Bay”)—sued in Washington state

3
Evans also used his company “Chief Evans, Inc.” to conduct
business.
4
Mill Bay’s motion to supplement the record dated December 16,
2020, is GRANTED.
 GRONDAL V. UNITED STATES 13

court to prevent the park closure. 5 Evans died during the
pendency of the litigation, at which point much of his assets
were distributed by will to his company Wapato Heritage,
including his rights under the Master Lease. The personal
representative for Evans’ estate requested mediation of the
Grondal state litigation.

At mediation, the parties settled and executed the 2004
Settlement Agreement, ultimately deciding that the RV park
would not be closed. The BIA was not named a party to the
litigation and did not intervene as a party to the action; the
BIA attended the mediation at the request of the parties but
did not participate. Under the terms of the 2004 Settlement
Agreement, Mill Bay and Wapato Heritage agreed that Mill
Bay would have the right, subject to compliance with the
Master Lease, to continued use of the Mill Bay RV Park
through 2034. But it turned out that the Master Lease would
not last near that long.

The second lawsuit was a federal court case concerning
the Master Lease, which eventually reached this Court.
Back in 1985, and shortly after signing the Master Lease,
Evans had sent a letter to the BIA purporting to exercise the
option to renew the Master Lease for 25 years through 2034.
All parties to the Master Lease, as well as non-party the BIA,
apparently assumed for the next twenty-two years that
Evans’ letter was sufficient to exercise that option. The BIA
never corrected Evans’ or Mill Bay’s understanding that the
Mill Bay RV Park was properly leased through 2034, and
Mill Bay made significant financial expenditures and
commitments based on that understanding.

5
Mill Bay’s motion to take judicial notice dated May 21, 2021, is
GRANTED.
14 GRONDAL V. UNITED STATES

Upon later investigation, however, the BIA came to
believe that Evans’ letter was insufficient. Recall that per
the Master Lease, Evans could renew only by giving notice
to both “the Lessor”—the MA-8 IAs—and to the BIA. But
Evans had given notice only to the BIA, so in the BIA’s
view, Evans (and Wapato Heritage, who took over as Lessee
on the Master Lease after Evans’ death) had yet to
successfully renew the Lease. In November 2007, the BIA
sent a letter to Wapato Heritage that explained its position
but noted that Wapato Heritage had two more months to
notify the Lessor IAs and thereby properly exercise the
renewal option. But instead of following that suggestion and
so notifying the IAs, Wapato Heritage sent a response letter
to the BIA disagreeing with the BIA’s interpretation of the
Master Lease renewal provision.

In 2008, and after the end of the period in which Wapato
Heritage could correct the insufficient 1985 lease renewal,
Wapato Heritage filed suit against the United States, arguing
that Evans’s 1985 letter had actually or substantially
complied with the renewal notice terms of the Master Lease,
or alternatively, that the BIA had approved the renewal and
extended the lease’s length. The district court ruled for the
BIA, dismissing all of Wapato Heritage’s claims either on a
motion to dismiss or on summary judgment, and confirmed
the BIA’s understanding of the Master Lease: The IAs, not
the BIA, were the “Lessors” and Evans had failed properly
to notify the Lessor IAs of his intention to exercise the
renewal option. See Wapato Heritage, LLC v. United States,
No. CV-08-177, 2009 WL 3782869, at *3, *5 (E.D. Wash.
Nov. 6, 2009) (granting the BIA’s motion to dismiss for lack
of subject-matter jurisdiction and motion for judgment on
the pleadings); Wapato Heritage, LLC v. United States, No.
CV-08-177, 2008 WL 5046447, at *5, *8 (E.D. Wash. Nov.
21, 2008) (granting in part the BIA’s motion for summary
 GRONDAL V. UNITED STATES 15

judgment). We affirmed. See Wapato Heritage, LLC v.
United States (Wapato Heritage I), 637 F.3d 1033, 1040 (9th
Cir. 2011). The Master Lease expired in 2009, leaving
unexercised the option to extend, and our 2011 decision has
since become final as the Supreme Court has denied review.

C. The Present Lawsuit

After Wapato Heritage lost its lawsuit challenging the
interpretation of the Master Lease, Grondal (Wapato
Heritage’s purported sublessee under the Master Lease) and
Mill Bay filed this lawsuit, seeking a declaratory judgment
that would recognize their right to remain on MA-8 through
2034. 6 Here, Grondal and Mill Bay named as defendants the
fractionated owners of MA-8 (i.e., the IAs, Wapato Heritage,
and the Tribe) as well as the BIA, which acts on behalf of
the United States as trustee for American Indian lands. This
appeal pertains to two separate orders from this lawsuit:
(1) the district court’s ruling of January 12, 2010; and (2) the
district court’s ruling of July 9, 2020.

In January 2010, the district court handed down the first
order here on appeal. This order dealt with cross-motions
for summary judgment by plaintiff Mill Bay, which claimed
the right to retain possession of the MA-8 land used by its
membership for their RVs, and by defendant the BIA, which
counterclaimed in trespass and sought Mill Bay’s ejectment.
The BIA argued in its counterclaim that Grondal and Mill
Bay no longer had any right to occupy MA-8 after the

6
Mill Bay asserted six claims: estoppel; waiver and acquiescence;
modification; agency abuse of discretion under the Administrative
Procedures Act (“APA”); violation of the Fifth Amendment (namely,
that the BIA’s determination that the tenancy expired in 2009 “deprives
Plaintiffs of their property rights without due process of the law”); and
declaratory judgment.
16 GRONDAL V. UNITED STATES

expiration of the Master Lease; on that basis, the BIA sought
their ejectment from the MA-8 property.

In that 2010 order, the district court rejected Mill Bay’s
attempt to remain on MA-8 and denied Mill Bay’s claims for
estoppel, waiver and acquiescence, and modification. 7 The
district court also reconstrued those three claims as
affirmative defenses to the BIA’s trespass counterclaim, a
characterization that appellants do not challenge, and took
the opportunity to deny two of these affirmative defenses,
namely: (1) that a provision of the Master Lease, paragraph
8, requires the Lessor (the IAs) to permit Mill Bay as
“sublessees” to remain on the property because the Master
Lease was ended by “cancellation or otherwise,” and (2) that
the 2004 Settlement Agreement precluded the BIA from
ejecting Mill Bay under principles of res judicata. Finally,
the district court denied as premature the BIA’s motion for
summary judgment on trespass and ejectment. 8

After the district court’s 2010 ruling, Wapato Heritage
and Mill Bay changed litigation strategy. As part of the 2010
ruling on the BIA’s counterclaim, the district court had

7
The district court dismissed these three claims several reasons,
including for failure to state a claim, issue preclusion, and lack of subject
matter jurisdiction because of sovereign immunity. Separately, the
district court granted the BIA’s motion for summary judgment on Mill
Bay’s APA claim because there was no “final agency action” and on Mill
Bay’s Fifth Amendment claim because the United States did not waive
its sovereign immunity. Here, Mill Bay does not challenge the district
court’s order granting the BIA’s motion for summary judgment on Mill
Bay’s APA and Fifth Amendment claims.
8
Ten years later in 2020, the district court reconsidered its concerns
as to prematurity, granted the BIA’s motion for summary judgment for
trespass, and ordered Mill Bay removed from MA-8. This 2020 order is
the second order here on appeal.
 GRONDAL V. UNITED STATES 17

concluded that the BIA had authority as trustee for the MA-
8 land to bring a trespass counterclaim on behalf of the IAs
but lacked contractual authority under the Master Lease to
do so because the BIA was not a party to that lease. Seeing
an opening, Wapato Heritage then decided to challenge for
the first time the trust status of MA-8. This issue is
important, because the BIA’s standing to pursue a trespass
action against Wapato Heritage and Mill Bay depends on its
status as holder of legal title as trustee to the MA-8 land. So
when Wapato Heritage filed its answer to Grondal and Mill
Bay’s lawsuit, it also filed a cross-complaint against the
United States that challenged the BIA’s standing. Wapato
Heritage argued that the trust period for MA-8 had expired
at some point during the chain of trust period extensions that
occurred throughout the 20th century. 9 Even though Mill
Bay named Wapato Heritage as defendant in its original
complaint, Mill Bay soon took up Wapato Heritage’s trust
argument in an effort to defend against the BIA’s 2020
renewed motion for summary judgment, and Wapato
Heritage and Mill Bay are now aligned on the trust issue. 10

Finally, in July 2020, 11 the district court handed down
the second ruling here on appeal. In this 2020 order, the

9
Wapato Heritage’s crossclaims—declaratory judgment, quiet title,
and partition—all rely on the theory that MA-8 is no longer in held in
trust but instead is owned outright in fee by the IAs.
10
This argument contradicts Mill Bay’s prior arguments, including
assertions in Mill Bay’s complaint that the BIA “manages [MA-8] in
trust.” It also contradicts an understanding evident in our prior decision
in Wapato Heritage I. See 637 F.3d at 1035 (“The United States holds
MA-8 in trust for Wapato John and his heirs . . . .”).
11
After the district court’s 2010 order, proceedings were
significantly delayed due to concerns the court had with the IA-
18 GRONDAL V. UNITED STATES

district court granted the BIA’s motion for summary
judgment for trespass (reconsidered its concerns as to
prematurity) and ordered Mill Bay removed from MA-8.
Mill Bay had argued in its defense that the BIA lacked
standing to bring its trespass claim because the trust period
for MA-8 had expired, depriving the BIA of its trustee status
over MA-8 and thus of any injury-in-fact tied to Mill Bay’s
presence on MA-8. On this standing argument, the district
court found: (1) that Mill Bay was judicially estopped from
arguing that MA-8 was not held in trust because that
argument contradicted Mill Bay’s prior positions in the
litigation; and (2) even if judicial estoppel did not apply, the
trust period of MA-8 had not expired and the United States
still held MA-8 in trust, thus giving the BIA standing. On
the merits of the BIA’s counterclaim, the district court found
Mill Bay to be trespassers, denied Mill Bay’s other defenses
(including equitable estoppel), granted the BIA’s motion for
summary judgment, and ordered Mill Bay ejected.

While the district court’s 2020 order left pending several
crossclaims not at issue in this appeal, 12 the order resolved

defendants’ lack of legal representation. These representation issues are
the subject of this case’s companion appeal, Wapato Heritage LLC v.
United States, No. 20-35357 (9th Cir. 2021), which we decide by
separate memorandum disposition.
12
The district court left pending crossclaims including Wapato
Heritage’s crossclaims against both the BIA and Wapato Heritage’s
fellow defendants and the BIA’s crossclaim against Wapato Heritage.
Wapato Heritage’s crossclaims sought equitable relief while the BIA’s
crossclaim alleged that Wapato Heritage had failed to pay rent. Those
claims are not raised on this appeal, and in any event, Wapato’s
crossclaims concerning MA-8’s trust status were dismissed based on the
district court’s finding that MA-8 remained held in trust by the BIA. See
Grondal v. United States, 513 F. Supp. 3d 1262, 1281 (E.D. Wash.
2021).
 GRONDAL V. UNITED STATES 19

all claims involving Mill Bay, so pursuant to Federal Rule of
Civil Procedure 54(b), the district court found no just reason
for delay and directed entry of final judgment against Mill
Bay, allowing for immediate appeal. Mill Bay challenges
two issues from each of the district court’s orders 13 and
Wapato Heritage joins the appeal because our resolution of
the trust status of MA-8 has preclusive effect upon its own
crossclaims below. From the 2010 order, Mill Bay appeals
the district court’s decision to reject its defenses based on
Master Lease paragraph 8, and res judicata per the 2004
Settlement Agreement. And from the 2020 order, Mill Bay
appeals the district court’s decision to reject its defenses
based on equitable estoppel, and on the BIA’s standing to
represent the IAs as trustee of the MA-8 land. Wapato
Heritage joins the challenge to the BIA’s standing.

The ejectment order against Mill Bay was in the nature
of an injunction so we have jurisdiction under 28 U.S.C.
§§ 1291 and 1292(a)(1). We affirm.

II. STANDARD OF REVIEW

“We review the district court’s grant of summary
judgment de novo.” United States v. Milner, 583 F.3d 1174,
1182 (9th Cir. 2009). Any deviations from this standard are
noted below when applicable.

13
The district court’s 2010 order merges here with the 2020 order.
See United States v. 475 Martin Lane, 545 F.3d 1134, 1141 (9th Cir.
2008) (“[I]nterlocutory order[s] merge[] in the final judgment and may
be challenged in an appeal from that judgment.” (quoting Baldwin v.
Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976))).
20 GRONDAL V. UNITED STATES

III. DISCUSSION

Despite the considerable cast of characters just
introduced and the extensive backstory just presented, this
episode’s plot is relatively straightforward. In the district
court’s 2020 order, it granted the BIA’s motion for summary
judgment on the BIA’s counterclaim for trespass and
ejectment. We are asked to examine the district court’s
decision to deny four of Mill Bay’s defenses against that
counterclaim. These defenses are: (1) the BIA lacks
standing to bring a trespass claim as trustee on behalf of the
IAs because the MA-8 property is not in fact held in trust by
the BIA, (2) res judicata precludes the BIA from relitigating
Mill Bay’s right to possess MA-8 because the BIA was
involved in the Grondal state litigation that allegedly
decided that same issue, (3) paragraph 8 of the Master Lease
required Mill Bay’s purported subleases to be preserved and
assigned rather than cancelled because of the termination of
the Master Lease, and (4) the BIA is bound under equitable
estoppel from reversing its previous alleged representations
that Mill Bay would be permitted to remain on MA-8
through 2034. We address each in turn.

A. The BIA’s Standing As Trustee of the MA-8 Land

First, both Mill Bay and Wapato Heritage appeal the
district court’s conclusion that MA-8 remains held in trust
by the United States. At the outset, they dispute the district
court’s preliminary finding that Mill Bay is precluded from
advancing this argument due to judicial and landlord-tenant
estoppel. And on the merits, Mill Bay and Wapato Heritage
reject the district court’s ruling that the United States still
holds MA-8 in trust. As Mill Bay and Wapato Heritage
would have it, MA-8 is no longer trust land, depriving the
BIA of standing to bring a trespass claim on the IA’s behalf
and seek Mill Bay’s ejectment from MA-8. We deal first
 GRONDAL V. UNITED STATES 21

with the estoppel issue and then proceed to the merits of Mill
Bay and Wapato Heritage’s argument that MA-8 is no longer
held in trust.

1. Estoppel Is No Substitute for Subject Matter
Jurisdiction: This Court Must Determine the BIA’s
Standing

Judicial estoppel is “not a substitute for subject matter
jurisdiction.” Terenkian v. Republic of Iraq, 694 F.3d 1122,
1137 (9th Cir. 2012). We, like any other federal court, must
assure ourselves of our “jurisdiction to entertain a claim
regardless of the parties’ arguments or concessions.” Id. We
must always examine whether the claimant has legal
authority to prosecute the claim before turning to the merits.
See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11
(2004). Accordingly, estoppel cannot prevent us from
analyzing the BIA’s standing.

“Judicial estoppel is an equitable doctrine that precludes
a party from gaining an advantage by asserting one position,
and then later seeking an advantage by taking a clearly
inconsistent position.” Hamilton v. State Farm Fire & Cas.
Co., 270 F.3d 778, 782 (9th Cir. 2001). The district court
concluded Mill Bay deliberately changed its legal arguments
in the middle of litigation to gain an advantage. 14 But
regardless the merits of that determination, Mill Bay’s
theory—that the BIA lacks standing to bring its counterclaim
because it does not hold legal title to MA-8 in trust—raises
a legitimate Article III jurisdictional issue that we must
examine; judicial estoppel does not permit us to dodge the

14
Mill Bay originally argued that the BIA “manages [MA-8] in
trust.” Its current position is the opposite: “MA-8 is not Indian-trust
land,” depriving the BIA of any “authority to evict” Mill Bay.
22 GRONDAL V. UNITED STATES

question. On that basis, the district court erred in finding
Mill Bay was estopped from arguing the trust period for MA-
8 had expired.

In addition to its judicial estoppel argument, the BIA
argues that Mill Bay cannot contest the BIA’s authority to
bring a trespass action under landlord-tenant estoppel.
Under the general landlord-tenant estoppel rule, “a tenant in
peaceful possession is estopped to question the title of his
landlord. This doctrine is, of course, designed to prevent a
tenant from defending a suit for rent by challenging his
landlord’s right to put him into possession.” Richardson v.
Van Dolah, 429 F.2d 912, 917 (9th Cir. 1970). In other
words, “[t]enants are never allowed to deny the title of their
landlord, nor set up a title against him, acquired by the tenant
during the tenancy, which is hostile in its character to that
which he acknowledged in accepting the demise.” Williams
v. Morris, 95 U.S. 444, 455 (1877).

Landlord-tenant estoppel does not apply here, however,
because the BIA is not Mill Bay’s landlord: the IAs are. Mill
Bay seeks to annul the BIA’s power to retake the MA-8
property after the expiration of the Master Lease, and thus
challenges the BIA’s trustee relationship to the IAs, not the
beneficial or equitable title of the IAs, who are the lessors
under the Master Lease. 15 In other words, Mill Bay disputes
the BIA’s status as a manager between the IAs and Mill
Bay’s members; Mill Bay does not challenge the IAs’
underlying property rights over MA-8. So Mill Bay’s claim

15
Contrary to the BIA’s assertion, Mill Bay’s claimed right to
possess MA-8 is not due solely to agreements predicated on federal trust
title. Mill Bay’s membership agreements were made under the Master
Lease which, although approved by the BIA, originated by obtaining
majority consent of the interests held by the lessor IAs.
 GRONDAL V. UNITED STATES 23

is not hostile to the ultimate character of the contractual
relationship between lessor (here, the IAs) and lessee (here,
Mill Bay) in the same way that a tenant’s direct challenge
would be hostile to a landlord’s title. Moreover, to the extent
the BIA seeks to use landlord-tenant estoppel to preclude
arguments implicating standing and federal court
jurisdiction, that position is incorrect. Cf. Terenkian, 694
F.3d at 1137 (“[J]udicial estoppel is not a substitute for
subject matter jurisdiction . . . .”).

We hold that Mill Bay cannot be estopped from arguing
that the BIA lacks standing to bring its trespass claim. 16 We
thus proceed and examine whether the United States holds
the MA-8 land in trust.

2. An Abridged History of MA-8

To ground the forthcoming discussion of MA-8’s trust
status, we begin with an abridged history of the MA-8 land. 17
Recall that this case concerns an allotment of land to Wapato
John, a member of the Moses Band of the Columbia Tribe.
The relevant history starts in 1855, when the United States
entered into the Yakama Nation Treaty, which required
members of the Columbia Tribe (along with three other
tribes) to relocate to the Yakama Reservation in what is now
eastern Washington state. But the tribes did not relocate;
they continued to remain on their ancestral lands. Instead,
Chief Moses of the Columbia Tribe negotiated a new treaty

16
We need not address whether Wapato Heritage’s crossclaims are
barred by sovereign immunity per the Quiet Title Act, 28 U.S.C.
§ 2409a.
17
A more thorough history was compiled by Judge Peterson in the
2020 order below. See Grondal v. Mill Bay Members Ass’n, 471 F. Supp.
3d 1095, 1100–10 (E.D. Wash. 2020).
24 GRONDAL V. UNITED STATES

for his followers, resulting in the Executive Order of April
19, 1879, and the creation of the Moses Columbia
Reservation, just west of the already established Colville
Reservation, itself located in north-central Washington. Yet
again, and treaty notwithstanding, Chief Moses and most of
his followers still did not relocate to the newly established
Columbia Reservation but stayed on the ancestral lands of
the Columbia Tribe. 18

In 1883, Chief Moses, along with chiefs of the Colville
Reservation, negotiated a third agreement with the United
States: the “Moses Agreement.” The Moses Agreement
again stipulated that the members of the Moses Band would
relocate to a reservation—this time the Colville
Reservation—but the agreement also provided for the
issuance of allotments of individual parcels on the Columbia
Reservation for those American Indians who wished to stay
on that reservation. The remainder of the Columbia
Reservation not parceled out as allotments to American
Indians would be “restored to the public domain.” 19
Congress ratified the Moses Agreement in the Act of July 4,
1884. Thereafter, Chief Moses led most of his people to the
Colville Reservation, where their descendants largely
remain to this day.

To address those American Indians who did not choose
to relocate to the Colville Reservation and instead chose to
stay on the Columbia Reservation, Congress passed the Act

18
A small group did relocate.
19
In other words, the land of the Columbia Reservation that was not
allotted to American Indians who had decided to stay became owned by
the federal government.
 GRONDAL V. UNITED STATES 25

of March 8, 1906. 20 That Act provided that the United States
would issue trust “patents” to each American Indian who
stayed on the Columbia Reservation. These patents, the
equivalent of modern-day property deeds, vested legal title
to each land allotment in trust to the United States and
beneficial title (i.e., equitable title) in the American Indian
holder for a period of ten years, and provided that thereafter
the land would pass to the American Indian in fee. 21 Wapato
John was one such American Indian who elected to stay on
the Columbia Reservation and, in 1907 and 1908, he was
issued trust patents for the MA-8 allotment, to be held by the
United States in trust until 1916.

But the MA-8 trust patents were not to expire and
convert to fee simple deeds in 1916 after all. As it happens,
many American Indians had received trust patents that had
expired before MA-8’s planned 1916 expiry and many of
them had sold their allotments as soon as their periods of
trust had ended. (The end of the trust period meant that the
restrictions on alienation that accompanied trust status also
ended.) Many of these land sales were “unwise or even
procured by fraud,” County of Yakima v. Confederated
Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 254
(1992) (internal citations omitted), and so the sales became
a matter of some significant public concern. To prevent
further unwise or fraudulent sales, the United States settled
on a policy in the early 20th century that sought to extend
the trust period for all American Indian allotments and thus

20
The record sheds little light on what happened to the MA-8 land
between 1884 and 1906, and in any event, no party brings any legal
arguments pertaining to that 22-year period.
21
As mentioned earlier, the patents also subjected the allotted land
to restrictions on alienation and encumbrance during the trust period.
26 GRONDAL V. UNITED STATES

continue indefinitely to restrict alienation by requiring
trustee approval of sales or other possessory interests. 22 In
accord with that policy, President Wilson issued Executive
Order 2109 in 1914, which purported to extend the trust
period on the Moses Allotments for an additional ten years
through 1926. In 1926, President Coolidge issued another
executive order again extending the trust period for ten years
through March 8, 1936.

Recognizing the perceived failure of the allotment
system given the many American Indians who had lost their
allotted land through unwise or fraudulent transactions,
Congress in 1934 enacted the Indian Reorganization Act
(“IRA”), which indefinitely extended the trust period for all
“Indian lands,” which includes MA-8. 23 25 U.S.C. § 5102.
However, the IRA contained an opt-out provision, which
allowed reservations to choose not to be subject to the IRA
(including the indefinite extension of the trust period) upon

The Supreme Court has described why the trust restrictions
22

became an enduring feature of United States policy:

Because allotted land could be sold soon after it was
received, many of the early allottees quickly lost their
land through transactions that were unwise or even
procured by fraud. Even if sales were for fair value,
Indian allottees divested of their land were deprived of
an opportunity to acquire agricultural and other self-
sustaining economic skills, thus compromising
Congress’ purpose of assimilation.

County of Yakima, 502 U.S. at 254 (internal citations omitted).
23
Excluded from the definition of “Indian lands” was “Indian
holdings of allotments or homesteads upon the public domain outside the
geographic boundaries of any Indian reservation now existing or
established hereafter.” 25 U.S.C. § 5111. As discussed in more detail
below, MA-8 does not fall within this exclusion.
 GRONDAL V. UNITED STATES 27

a vote of a majority of adult American Indians in the
reservation. Id. § 5125. Congress amended the 1934 IRA
the next year in the Act of June 15, 1935, which extended
the trust period through December 31, 1936, for all those
reservations that opted out of the IRA.

By the time Congress enacted the 1935 Amendment, the
Moses Allotments were scheduled to fall out of trust status
in March 1936, when the 10-year trust extension enacted by
President Coolidge’s 1926 executive order would expire.
But the Colville Reservation, including Chief Moses, 24
voted to exclude itself from the IRA. And because the
Moses Band was part of the Colville Tribe, and some of the
Moses Allotments’ beneficial owners, Wapato John
included, were members of the Moses Band, the BIA
understood the Colville Reservation’s vote to exclude the
Moses Allotments from the IRA too. Relying on this vote,
the government applied the 1935 Amendment to the Moses
Allotments also, thereby extending MA-8’s trust period
through the end of 1936. 25

President Roosevelt then extended the Moses
Allotments’ trust period further by Executive Order 7464 in
September 1936, and the Allotments’ trust period was
further extended without controversy by additional
executive orders and administrative action. Finally, in 1990
Congress indefinitely extended the trust period of all lands

24
Chief Moses, along with members of other tribes, would all soon
form the Confederated Tribes of the Colville Reservation, defendants-
appellees here.
25
The government’s basis for applying the 1935 Amendment to the
Moses Allotments is analyzed in more detail below.
28 GRONDAL V. UNITED STATES

held in trust by the United States for American Indians. See
25 U.S.C. § 5126.

3. The Legal Status of MA-8 and the BIA’s Standing to
Sue on the IA’s Behalf

The issues here involve interpretation of statutes and
executive orders and are therefore reviewed de novo. See
United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir.
2008).

Of the complex chain of trust period extensions and
property transactions described above, Mill Bay and Wapato
Heritage challenge three, and argue that legal deficiencies in
each of these three steps independently deprive MA-8 of
trust status, vest legal title in the IAs in fee simple, and strip
the BIA of its powers as trustee and of its standing to seek
ejectment in this suit.

i. Challenge One: Whether MA-8’s Trust Patent
Was Issued Contrary to Law

Mill Bay and Wapato Heritage first argue that the Moses
Agreement and its implementing legislation, the Act of July
4, 1884, promised patents in fee, not patents in trust. 26 So,
they argue, the trust patents given to the IAs under the Act
of March 8, 1906, were issued contrary to the Moses
Agreement. The Supreme Court in 1913 examined this issue
as to allotments under the Moses Agreement. See Starr v.
Long Jim, 227 U.S. 613, 621–22 (1913). Justice Pitney, on
behalf of a unanimous Court, held that the Moses
Agreement’s language did not guarantee title in fee but
26
The Act of July 4, 1884, stated that the allottees would be “entitled
to 640 acres, or one square mile of land to each head of family or male
adult, in the possession and ownership of which they shall be guaranteed
and protected.”
 GRONDAL V. UNITED STATES 29

instead permitted the United States to hold the allotments in
trust. See id. at 623–25. So we reject Mill Bay and Wapato
Heritage’s claim that the MA-8 allotments were vested in fee
simple rather than in trust by the Moses Agreement and the
Act of July 4, 1884.

ii. Challenge Two: Whether President Wilson Had
Statutory Authority to Extend MA-8’s Trust
Period with his 1914 Executive Order

Mill Bay and Wapato Heritage’s second argument is that
when President Wilson extended the trust period for MA-8
until 1926 through his 1914 executive order, he did so
without statutory authority. The 1914 executive order relied
on two statutes to extend the trust period of MA-8: Section
5 of the Act of February 8, 1887 (the “General Allotment
Act”), and the Act of June 21, 1906. Mill Bay and Wapato
Heritage argue that neither of the two statutes granted the
President the authority to extend MA-8’s trust period. We
need not address the General Allotment Act because we
conclude that the 1906 Act provided a sufficient basis for
President Wilson’s 1914 executive order.

The Act of June 21, 1906 provides:

Prior to the expiration of the trust period of
any Indian allottee to whom a trust or other
patent containing restrictions upon alienation
has been or shall lie issued under any law or
treaty the President may in his discretion
continue such restrictions on alienation for
such period as he may deem best . . . .

25 U.S.C. § 391. Mill Bay and Wapato Heritage argue that
this act cannot support the 1914 executive order because it
grants the President only the authority to extend “restrictions
30 GRONDAL V. UNITED STATES

on alienation.” They argue that the authority to extend a
“trust period” is different. The BIA responds that
“restrictions on alienation” and “trust[s]” are not
distinguishable from one another, and that the power to
extend one should be read to be coextensive with the power
to extend the other.

Mill Bay and Wapato Heritage’s position has some
initial appeal. From a textual standpoint, a “restriction[] on
alienation” and a “trust period” are different concepts.
While both can be “continued,” i.e., extended in time,
“restrictions on alienation” are substantive limitations on a
trust beneficiary’s property rights but a “trust period” merely
delineates when a trust expires. A second textual clue also
points in Mill Bay and Wapato Heritage’s favor. The statute
discusses “other patent[s] containing restrictions upon
alienation,” which contemplates that a patent can be in a
form other than a trust but still contain restrictions on
alienation; if so, the restrictions on alienation applicable to
those non-trust patents can be extended without the
corresponding extension of any trust period. And a long-
standing truth of federal Indian law aids Mill Bay and
Wapato Heritage too. Historically, American Indian land
held in trust generally had three main components: a
restriction on alienation, a restriction on encumbrances, and
a restriction on being subject to state taxation. See United
States v. Mitchell, 445 U.S. 535, 544 (1980) (noting that the
1887 General Allotment Act was meant to “prevent
alienation of [American Indian] land and to ensure that
allottees would be immune from the state taxation”); 25
U.S.C. § 348; 25 U.S.C. § 349 (“At the expiration of the trust
period . . . the Secretary of the Interior may . . . cause to be
issued to such allottee a patent in fee simple, and thereafter
all restrictions as to sale, incumbrance, or taxation of said
land shall be removed.”). The restriction on alienation by
 GRONDAL V. UNITED STATES 31

itself is thus just one component of trust status. So when the
Act of June 21, 1906, grants the authority to extend only
“such restrictions on alienation”—but not the other
restrictions typically placed on trust lands—the language
could imply that the President was not granted the authority
to extend the trust period as a whole.

While Mill Bay and Wapato Heritage’s position is thus
not without some force, the points supporting the BIA’s
position are stronger still. Put simply, a trust is itself a
restriction on alienation. The trustee, as holder of legal title,
is the required grantor of any conveyance of legal title. And
trust patents like those given to Wapato John inherently
contained restrictions on how the American Indian allottee
could sell their property. Indeed, the Supreme Court has
recognized that restricting alienation was the very point of
trust status. See Mitchell, 445 U.S. at 544 (noting that
Congress extended trust status to American Indian
allotments “not because it wished the Government to control
use of the land and be subject to money damages for
breaches of fiduciary duty, but simply because it wished to
prevent alienation of the land”). As described above,
Congress repeatedly extended the trust period of many
allotments for the precise purpose of preventing American
Indians from selling their land. See Yakima, 502 U.S. at 251
(describing how Congress sought to prevent American
Indians from selling their land by ensuring that “each
allotted parcel would be held by the United States in trust”).
And if a trust is, itself, a restriction on alienation, then the
power to “continue such restrictions on alienation” includes
the power to continue the period of a trust.

Several textual clues in the 1906 Act support the BIA’s
view. First, the relevant provision of the Act begins: “Prior
to the expiration of the trust period of any Indian allottee
32 GRONDAL V. UNITED STATES

. . . .” This preface indicates that the provision deals
primarily with trust patents (like MA-8). The preface thus
suggests that the operative portion of the provision—the
portion authorizing an extension in time—applies to the
period of trusts. Second, the provision discusses both
“trust[s]” and “other patent[s] containing restrictions upon
alienation” and authorizes the President to “continue such
restrictions on alienation.” As just explained, one “such”
restriction on alienation is the trust itself that the provision
identifies as its primary subject. And third, the series
qualifier canon demands that when we interpret “a trust or
other patent containing restrictions upon alienation,” we
construe “containing restrictions upon alienation” to modify
both “trust” and “other patent,” 27 reinforcing that American
Indian trusts both contain and inherently are restrictions on
alienation of land. These clues all suggest that the statute’s
authorization to extend restrictions on alienation authorizes
the President to extend, for trust patents, both the trust period
and the restrictions on alienation inherent in trust patents,
and for non-trust patents, to extend any restriction on
alienation. 28

27
See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 147 (2012) (“When there is a
straightforward, parallel construction that involves all nouns or verbs in
a series, a prepositive or postpositive modifier normally applies to the
entire series.”).
28
Further evidence to this effect can be found in the 1934 Indian
Reorganization Act. In that Act, Congress extended indefinitely the trust
period for allotments: “The existing periods of trust placed upon any
Indian lands and any restriction on alienation thereof are hereby
extended and continued until otherwise directed by Congress.”
25 U.S.C. § 5102. Although Congress referenced both concepts,
Congress did not decouple the trust period and the restriction on
alienation. Instead, Congress took special pains to highlight that the
 GRONDAL V. UNITED STATES 33

Consistent with the BIA’s view that American Indian
trusts were, themselves, restrictions on alienation, numerous
historical sources indicate that at and around the time when
Congress passed the Act of June 21, 1906, the terms “trusts”
and “restrictions on alienation” were historically conflated,
used interchangeably, or treated identically. See, e.g., Felix
S. Cohen, Handbook of Federal Indian Law § 16.03 (2012)
(“Allotment is a term of art in Indian law, describing either
a parcel of land owned by the United States in trust for an
Indian (‘trust’ allotment) or owned by an Indian subject to a
restriction on alienation in the United States or its officials
(‘Restricted’ allotment). . . . In practice, the Department of
the Interior has treated the two forms of tenure identically
for virtually all purposes.”); West v. Oklahoma Tax Comm’n,
334 U.S. 717, 726 (1948) (“We fail to see any substantial
difference for estate tax purposes between restricted
property and trust property.”); United States v. Ramsey, 271
U.S. 467, 470 (1926) (“[A] trust allotment and a restricted
allotment, so far as that difference may affect the status of
the allotment as Indian country, was not regarded as
important.”); 18 U.S.C. § 1162 (“Nothing in this section
shall authorize the alienation, encumbrance, or taxation of
any real . . . property, . . . that is held in trust by the United
States or is subject to a restriction against alienation imposed
by the United States.”); 43 C.F.R. § 4.201 (“Restricted
property means real property, the title to which is held by an
Indian but which cannot be alienated or encumbered without
the Secretary’s consent. For the purposes of probate
proceedings, restricted property is treated as if it were trust
property.”); Executive Order No. 3365 (December 7, 1920)

restrictions on alienation are included within the trust by referencing the
“restriction[s] on alienation thereof [the trust]” as opposed to “thereon
the land.” This offers some measure of additional evidence that the
restriction on alienation is a primary attribute of the trust status.
34 GRONDAL V. UNITED STATES

(“It is hereby ordered, under authority found in the act of
June twenty-first, nineteen hundred and six . . . , that the trust
or other period of restriction against alienation contained in
any patent heretofore issued to any Indian for any lands on
the public domain be, and the same is hereby, extended
. . . .”); 25 C.F.R. ch. I app. (1998) (citing executive orders
that continued the trust period of American Indian land
under the Act of June 21, 1906).

The relationship between restrictions on alienation and
the other two restrictions that historically comprised trust
status—the restrictions on encumbrance and on state
taxation—also supports the BIA’s interpretation. At first
glance, the restriction on alienation is just one of the three
distinct restrictions that characterize trust status over
American Indian land. This provides some support for the
argument that “restrictions on alienation” and “trusts” are
different, and correspondingly, that the 1906 Act’s grant of
power to extend the former does not authorize extensions of
the latter. But in fact, the Supreme Court has explicitly tied
the restriction on alienation to the restrictions on
encumbrances and on state taxation. In Goudy v. Meath, the
Supreme Court determined that removal of the restriction on
alienation also removes the restrictions on encumbrance and
state taxation—even if the statute did not expressly remove
those restrictions. See 203 U.S. 146, 149 (1906); see also
County of Yakima, 502 U.S. at 263–64 (“Thus, when [the
General Allotment Act] rendered the allotted lands alienable
and encumberable, it also rendered them subject to
assessment and forced sale for taxes.”). And Yakima itself
found that the “alienability of the allotted lands” was “of
central significance” in determining whether the lands were
taxable, 502 U.S. at 251, a connection this court has already
recognized, see Lummi Indian Tribe v. Whatcom County,
5 F.3d 1355, 1357 (9th Cir. 1993) (“In Yakima Nation, the
 GRONDAL V. UNITED STATES 35

[Supreme] Court found an unmistakably clear intent to tax
fee-patented land . . . concluding . . . that the land’s alienable
status determines its taxability.”). If the three trust
restrictions—alienation, encumbrance, and state taxation—
all begin and end simultaneously, then the power to extend
the restriction on alienation also impliedly confers the power
to extend the restrictions on encumbrance and taxation. And
if the power to extend the restriction on alienation confers
the power to extend all three restrictions, then that power
most reasonably also confers the power to extend the trust
period, which comprises and determines the expiration of
those same three restrictions.

The BIA’s interpretation has one more advantage: It
keeps the restriction on alienation in parallel with the
restrictions on encumbrances and on state taxation. Indeed,
the Supreme Court has recognized that it would be “strange”
to decouple the restriction on alienation inherent in a trust
patent from the other aspects of the trust, including the
restriction preventing state taxation. See Goudy, 203 U.S. at
149. And that decoupling would be doubly strange given
that many American Indians who owned fee-simple
allotments that passed out of trust status were often driven to
sell those allotments precisely because of their newfound tax
burden. See Cohen, Handbook of Federal Indian Law § 1.04
(offering a generalized description of how individual
American Indians lost allotments); Kristen A. Carpenter,
Contextualizing the Losses of Allotment Through Literature,
82 N.D. L. REV. 605, 610 (2006) (noting that after trust
restrictions wore off, many American Indians “could not
meet state tax payments [and either] lost their allotments in
foreclosures” or “sold their property outright to generate
cash for food and necessary goods”).
36 GRONDAL V. UNITED STATES

With all these reasons in mind, it should come as no
surprise that every other interpretation of the Act of June 21,
1906, that we have found—from the Supreme Court all the
way down to unpublished agency legal opinions—has stated
that the Act granted the President this dual authority to
extend trust periods on trust patents and periods of
restrictions on alienation on other types of patents. See
DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 443 n.29 (1975)
(“Congress has several times authorized extensions of trust
relations with respect to Indian tribes, e.g., Acts of June 21,
1906, 34 Stat. 326 . . . .”); Cohen, Handbook of Federal
Indian Law § 16.03[4][b][ii] (“The President . . . was
authorized to extend the trust period [of trusts formed under
the General Allotment Act of 1887, and in [the Act of June
21,] 1906, Congress broadened the presidential power to
include all allotments.”); Department of Interior, Opinion
Regarding the Status of the Bed of the Clearwater River
Within the 1863 Treaty Boundaries of the Nez Perce
Reservation (Idaho), 2016 WL 10957295, at *23 n.74
(January 15, 2016) (“Section 5 of the [General Allotment]
Act directed the Secretary to hold in trust . . . patents to the
allotments for a period of twenty-five years before
transferring fee title to the allottees [and] also allowed the
President discretion to extend this trust period. Following an
Attorney General opinion narrowly construing that
discretion, 25 Op. Att’y Gen. 483 (1905), Congress enacted
a statute [(the Act of June 21, 1906)] explicitly authorizing
broad discretion in extending trust periods. 25 U.S.C.
§ 391.”); 25 U.S.C. 415(a) (2006) (amended in 2006 to
recognize that MA-8 remains held in trust); cf. United States
v. Bowling, 256 U.S. 484, 488 (1921) (noting that “Congress
has treated and construed [a separate provision similar to that
at issue here] as including both trust and restricted
allotments”).
 GRONDAL V. UNITED STATES 37

All told, virtually everything favors the BIA’s
interpretation of the 1906 Act: the structure of the relevant
provision of the Act; the fact that trust patents and other
patents containing restrictions on alienation were
historically treated identically or conflated; and the
combined weight of over one hundred years of
interpretations that the 1906 Act authorized trust period
extensions. We thus conclude that the better interpretation
of the 1906 Act is that it did grant the President the authority
to extend the period of a trust patent, not just the authority to
extend the restriction on alienation imposed on a trust patent.

Even acknowledging, however, that Mill Bay and
Wapato Heritage presented a reasonable alternative
construction to this ambiguous statutory phrase, deference to
the BIA counsels us against choosing that alternative. We
assume that the BIA would only be entitled deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), and not
Chevron, U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under Skidmore, “[t]he fair
measure of deference to an agency administering its own
statute has been understood to vary with circumstances, and
courts have looked to the degree of the agency’s care, its
consistency, formality, and relative expertness, and to the
persuasiveness of the agency’s position.” United States v.
Mead Corp., 533 U.S. 218, 228 (2001) (citing Skidmore).
Here, the BIA’s expertise and the persuasiveness of its
reasoning entitles it to some measure of deference under
Skidmore.

In sum, although the Act of June 21, 1906, lends itself to
multiple interpretations, the best interpretation is that it
afforded the President the authority to extend the trust period
of trust allotments created by trust patents, not just the
authority to extend restrictions on alienation for patents other
38 GRONDAL V. UNITED STATES

than trust patents. We reach this conclusion based on our
own reading of the text of the statute, our understanding of
the original meaning given the statute’s terms, and the
consistency and persuasiveness of the interpretation of the
statute by the President and the BIA. We hold that the Act
of June 21, 1906, gave President Wilson the lawful authority
to extend the trust period of the Moses Allotments through
his 1914 executive order.

iii. Challenge Three: Whether MA-8’s Trust Period
Was Extended by the Act of June 15, 1935

Finally, Mill Bay and Wapato Heritage argue that
MA-8’s trust period was not properly extended in 1936 after
the passage of the 1934 IRA. At issue is the six-month
period between March 1936, when the trust extension
enacted by President Coolidge’s executive order expired,
and September 1936, when President Roosevelt’s executive
order extended MA-8’s trust period yet again. Recall that
the 1934 IRA indefinitely extended the trust period of all
“Indian lands,” 25 U.S.C. § 5102, but excluded “Indian
holdings of allotments or homesteads upon the public
domain outside the geographic boundaries of any Indian
reservation now existing or established hereafter,” 25 U.S.C.
§ 5111. Recall further that the IRA also excluded
reservations that affirmatively voted to opt out of the act, see
25 U.S.C. § 5102, but that the Act of June 15, 1935, amended
the IRA and extended through December 31, 1936, the trust
period for certain other American Indian lands. To fall under
this 1935 Amendment, land must have met two criteria: (1)
the land’s “period of trust or of restriction” must not have
“been extended to a date subsequent to December 31, 1936”;
and (2) “the reservation containing such lands” must have
voted to exclude itself from the IRA.
 GRONDAL V. UNITED STATES 39

Reviewing these provisions, the district court confirmed
the BIA’s long-standing position: The Colville Reservation
voted to opt out of the 1934 IRA; this vote applied to the
Moses Allotments; and the 1935 Amendment extended the
trust period of the Moses Allotments until December 1936.
The 1935 Amendment’s trust extension thus bridged the six-
month gap between March and September of 1936, when
neither President Coolidge’s nor President Roosevelt’s
executive order applied to MA-8. Mill Bay and Wapato
Heritage disagree and contend that neither the 1934 IRA nor
the 1935 Amendment applied to the allotments. In their
view, the Moses Allotments’ trust period expired in March
1936; the further trust period extension enacted by President
Roosevelt’s September 1936 executive order was ineffective
as by then the allotments’ trust period had already expired.

We reject Mill Bay and Wapato Heritage’s view.
Assume for a moment, as the district court found and as the
BIA has maintained for nearly a century, that the Colville
Tribe’s vote to exclude itself from the 1934 IRA did apply
to the Moses Allotments. Under this assumption, the
allotments’ trust period was not extended by the 1934 IRA,
and the allotments meet the 1935 Amendment’s first
criterion: When the 1935 Amendment was passed, the
allotments’ “period of trust or of restriction” had not yet
“been extended to a date subsequent to December 31,
1936.” 29 This leaves the second criterion, whether “the

29
While Mill Bay and Wapato Heritage argue that the Colville
Tribe’s vote to exclude itself from the 1934 IRA did not apply to the
Moses Allotments, they agree that as of the enactment of the 1935
Amendment, the Moses Allotments’ trust period had not been extended
past December 31, 1936. And in any event, we will soon turn to Mill
Bay and Wapato Heritage’s argument about the Colville Tribe’s vote.
40 GRONDAL V. UNITED STATES

reservation containing [the Moses Allotments]” voted to
exclude itself from the IRA.

Mill Bay and Wapato argue that the Moses Allotments
fail this second criterion for two reasons. First, they argue
that the Moses Allotments are not “reservation” land. In
their view, the allotments thus fall outside the scope of the
1935 Amendment, which is limited to “lands” “contain[ed]”
on a “reservation.” 30 And second, they argue that the
Colville Reservation’s vote to exclude itself from the 1934
IRA cannot be imputed to the Moses Allotments.

The district court drew its conclusion that the Moses
Allotments’ land was (and is) “reservation” land from
several sources. The district court pointed to: (1) multiple
BIA annual reports from near the time the 1935 Amendment
was passed which listed the “Columbia (Moses agreement)”
as a “reservation belonging to the Moses Band,”
(2) historical descriptions from the Colville Agency that
listed the Moses Tribe as living on the Moses Allotments and
the Colville Reservation, and (3) an 1891 map that labeled
the Moses Allotments, not as public domain, but as “Indian”
land—the same as the Colville Reservation.

The district court also noted that these same sources
ruled out alternative understandings of the allotments’
status. If the allotments were not reservation land, they must
have been either “allotments or homesteads upon the public
domain outside of the geographic boundaries of any Indian
reservation,” 25 U.S.C. § 5111, the two types of land
30
Mill Bay and Wapato Heritage also argue that the Moses
Allotments are non-reservation land and thus fall outside the scope of the
1934 IRA, given its exclusion for “Indian holdings of allotments or
homesteads upon the public domain outside the geographic boundaries
of any Indian reservation.” 25 U.S.C. § 5111.
 GRONDAL V. UNITED STATES 41

expressly excluded from the 1934 IRA. But the BIA reports
never listed the Moses Allotments as public domain or
homestead allotments, and Mill Bay and Wapato Heritage
point to no historical evidence supporting their
understanding. 31

Further, and as the BIA notes, the Moses Allotments’
unique history is a poor fit for the IRA’s description of non-
reservation land, again either “allotments or homesteads
upon the public domain outside of the geographic boundaries
of any Indian reservation.” 25 U.S.C. § 5111. The Moses
Allotments are admittedly “outside the geographic
boundaries” of the Colville Reservation. But the allotments
were originally selected from land inside the “geographic
boundaries” of the Columbia Reservation, a reservation that
has yet to be disestablished, and were not taken from land
“upon the public domain.” Further, the BIA points to other
types of land that fit the terms of the IRA’s description of
non-reservation land far more cleanly. At the time Congress
enacted the IRA, it commonly allotted lands from the public
domain to individual American Indians who did not reside
on reservations. The IRA’s description of non-reservation
land “upon the public domain outside of the geographic
boundaries of any Indian reservation” reads more naturally
to refer to that land—land that was taken from the public
domain and was never part of any reservation whatsoever—
than to the Moses Allotments, which, again, were formed
from the Columbia Reservation rather than from the public
domain.

31
They cite a single 2009 document that describes the MA-8
allotments as “Colville Public Domain,” but that record does not suggest
that the allotments are on land that is the “public domain” of the United
States. Rather, it shows that the United States understands the land to be
on the “Public Domain” of the Colville Tribes.
42 GRONDAL V. UNITED STATES

Mill Bay and Wapato Heritage disagree. In their view,
because the Moses Allotments were held not in trust on
behalf of a tribe but held for individual American Indians,
they are not reservation land. They base their argument in
the Supreme Court’s statement that “tribal ownership was a
critical component of reservation status.” South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329, 346 (1998). But
properly read in context, that passage does not support their
argument. Both Yankton Sioux and the case that Yankton
Sioux cited for its “tribal ownership” language drew a
distinction between ownership by American Indians and
ownership by non-Indians, not between ownership by tribes
and ownership by individual American Indians. See id.
(describing the Yankton Sioux’s decision to sell some of its
territory to “non-Indian homesteaders”); Solem v. Bartlett,
465 U.S. 463, 468 (1984) (“Indian lands were judicially
defined to include only those lands in which the Indians held
some form of property interest: trust lands, individual
allotments, and, to a more limited degree, opened lands that
had not yet been claimed by non-Indians.”) (emphasis
added). Yankton Sioux thus lends no support to Mill Bay and
Wapato Heritage’s argument that allotments for individual
American Indians are non-reservation land under the IRA.

Mill Bay and Wapato Heritage also argue that the
contemporary reports cited by the district court are not
entitled to evidentiary weight because they do not analyze
the question whether MA-8 is reservation land, but merely
assume it. We disagree. Contemporary agency
interpretations have “great weight” when it comes to
determining the meaning of statutes at the time they were
enacted. Cruz v. Zapata Ocean Res., Inc., 695 F.2d 428, 431
(9th Cir. 1982). Here, the BIA’s evidence shows that the
agency consistently applied the provisions of the 1935
Amendment to the Moses Allotments, referred to them as
 GRONDAL V. UNITED STATES 43

reservation allotments, and did not treat the Moses
Allotments as homestead or public domain allotments. This
evidence has significant probative value and supports the
district court’s conclusion below and our conclusion on
appeal.

Last, Mill Bay and Wapato Heritage argue that the 1935
Amendment does not apply to the Moses Allotments because
the 1935 Amendment covers only reservations that rejected
the 1934 IRA and the Secretary of the Interior did not call a
vote for the Columbia Reservation or the Moses Allotments.
But again, the Colville Reservation rejected the 1934 IRA
and this vote does apply to the Moses Allotments. The
Moses Band of American Indians—the tribe of which the
original Moses Allotment allottees were members—could
and did participate in that vote, and the Colville Agency,
which held the vote, also administered the Columbia
Reservation that contains the Moses Allotments. 32 The
Moses Allotments needed no separate vote. And even if Mill
Bay and Wapato Heritage were correct that the Colville
Reservation’s vote did not apply to the Moses Allotments,
the allotments would still be reservation land within the
scope of the 1934 IRA because of all the compelling reasons
just given above. So if Mill Bay and Wapato Heritage’s
argument were correct, then because the Colville
Reservation’s vote against the IRA did not apply to the
Moses Allotments, the Moses Allotments never voted
against the application of the IRA and the IRA would have
indefinitely extended MA-8’s trust status regardless.

Based on the well-reasoned conclusion of the district
court and the weight of the evidence in the record, including
contemporary interpretations and consistent treatment for

32
Even today, the MA-8 individual allottees are virtually all
members of the Confederated Tribes of the Colville Reservation.
44 GRONDAL V. UNITED STATES

nearly a century, we reject Mill Bay and Wapato Heritage’s
argument that the Moses Allotments were non-reservation
land outside of the scope of the 1934 IRA and its 1935
Amendment. We thus affirm the district court’s conclusion
that the 1935 Amendment extended the Moses Allotments’
trust status.

***

To summarize, we hold that of the three transactions and
trust extensions in MA-8’s history that Mill Bay and Wapato
Heritage challenge, none were legally deficient. The MA-8
land remains held in trust by the United States, and the BIA,
as holder of legal title to the land, had and has standing to
bring its claim for trespass and ejectment against Mill Bay.

B. Res Judicata

Mill Bay’s second defense is that the BIA should be
precluded from seeking ejectment due to the BIA’s
involvement in the 2004 Grondal state litigation between
Mill Bay, Wapato Heritage, and Evans’ estate 33 that resulted
in the 2004 Settlement Agreement. 34 Recall that this
agreement renegotiated certain requirements and dues under

33
Evans died during the pendency of the Grondal state litigation.
34
On this issue, the BIA offers its own res judicata argument: that
Mill Bay was in privity with Wapato Heritage at the time of the 2004
Settlement and is thus bound by the 2011 Ninth Circuit’s decision in
Wapato Heritage I. The district court rejected BIA’s collateral estoppel
argument below because there was no identity of issue, and we affirm
that holding. The government seeks to preclude Mill Bay from arguing
that the 2004 Settlement extended the Master Lease, but Wapato
Heritage I did not decide that question. See 637 F.3d at 1037–40. Even
so, our conclusion here is fully consistent with the result in Wapato
Heritage I.
 GRONDAL V. UNITED STATES 45

the Regular and Expanded Membership Agreements
(between Mill Bay and Wapato Heritage), and because the
Grondal state litigation concerned Evans’ estate, the
settlement was entered pursuant to Washington’s Trust
Estate Dispute Resolution Act (“TEDRA”), RCW 11.96A.
The settlement included provisions that increased rent due
by Mill Bay to Wapato Heritage (with a schedule through
2034) and described the nature of Mill Bay’s interest: “Mill
Bay Members have a right to use the property . . . pursuant
to the Prior Documents and this Agreement through
December 31, 2034, subject to the terms of this Agreement
and the Prior Documents.” 35 The settlement was “equivalent
to a final court order binding on all persons interested in the
estate or trust.” RCW § 11.96A.230.

Mill Bay believes that the settlement’s guarantees—for
instance, Mill Bay’s “right to use the property . . . through
December 31, 2034”—preclude the BIA from seeking to
eject Mill Bay in this litigation. The district court disagreed.
Mill Bay appeals the finding of the district court, arguing
that the BIA and the IAs were parties under TEDRA, thus
precluding the BIA from relitigating the terms of the
settlement agreement. District court judgments as to issue
and claim preclusion are reviewed de novo. See Media Rts.
Techs., Inc. v. Microsoft Corp., 922 F.3d 1014, 1020 (9th
Cir. 2019).

“Res judicata, also known as claim preclusion, bars
litigation in a subsequent action of any claims that were
raised or could have been raised in the prior action. For res
judicata to apply there must be: (1) an identity of claims, (2)
a final judgment on the merits, and (3) identity or privity

35
“Prior documents” included the Master Lease, Evans’ sublease to
Mar-Lu, and both the Regular and Extended Membership Agreements.
46 GRONDAL V. UNITED STATES

between parties.” W. Radio Servs. Co. v. Glickman, 123
F.3d 1189, 1192 (9th Cir. 1997) (cleaned up). Mill Bay fails
to show that this litigation and the 2004 Settlement
Agreement involved the same claims or the same parties (or
involved parties in privity with one another).

The BIA was not itself a party to the Grondal state
litigation or the 2004 Settlement Agreement. Mill Bay
concedes as much: the BIA was asked to intervene in the suit
but never did; the BIA attended mediation between the
parties but did not participate; the BIA received notice of the
settlement but did not object; and no such notice was sent to
the IAs.

Nor was the BIA in privity with Wapato Heritage,
concededly one of the parties to the Grondal state litigation.
For two parties to have privity, they must be “so identified
in interest . . . that [they] represent[] precisely the same
right” on the relevant issues. In re Schimmels, 127 F.3d 875,
881 (9th Cir. 1997) (quoting Sw. Airlines Co. v. Texas Int’l
Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977)). But after
Evans’ death, Wapato Heritage obtained Evans’s interest
under the Master Lease as the lessee of the MA-8 land. And
Wapato Heritage’s interest as the lessee under the Master
Lease is quite different from the BIA’s interest as trustee for
the lessors under the same lease. So Wapato Heritage and
the BIA did not “represent[] precisely the same right.” In re
Schimmels, 127 F.3d at 881.

To show identity another way, Mill Bay argues that the
BIA was an interested party under TEDRA and was required
to object to the terms of the 2004 Settlement Agreement,
which Mill Bay argues revised the Master Lease. TEDRA
acts to bind “all persons interested in the estate or trust” to a
settlement involving that estate. RCW § 11.96.220.
“Persons interested in the estate” means:
 GRONDAL V. UNITED STATES 47

all persons beneficially interested in the
estate or trust, persons holding powers over
the trust or estate assets, the attorney general
in the case of any charitable trust where the
attorney general would be a necessary party
to judicial proceedings concerning the trust,
and any personal representative or trustee of
the estate or trust.

RCW § 11.96.030(6).

Mill Bay does not argue that the BIA was beneficially
interested in Evans’ estate or was a personal representative
of Evans. Mill Bay argues only that the BIA held power over
an estate asset—Evans’ interest as a lessee of the MA-8 land
under the Master Lease—because the BIA held authority
under the Master Lease to withhold approval of any
assignment of Evans’ lease interest. Mill Bay provides no
Washington caselaw defining “persons holding powers over
estate assets” to include those persons who possess certain
contingent rights pursuant to a contractual lease agreement.
The available caselaw suggests instead that “powers” refers
to more direct control over assets. See Paunescu v. Eckert,
193 Wash. App. 1050 at *3 (2016) (unpublished) (likening
“persons holding powers over the trust assets” to the trustee);
In re Est. of Whitehead, 139 Wash. App. 1038 at *5 & n.39
(2007) (unpublished) (likening “persons holding powers
over estate assets” to a personal representative). Mill Bay
does not argue that the BIA’s status as trustee of and legal
titleholder to MA-8 gave the BIA any “power” over any
asset in Evans’ estate, and the argument that Mill Bay does
make finds no support in Washington caselaw. We
accordingly decline to find that the BIA was “interested in”
Evans’ estate under TEDRA.
48 GRONDAL V. UNITED STATES

Moreover, Mill Bay points to no authority showing the
United States waived its sovereign immunity. Thus, Mill
Bay and the IAs could not have employed TEDRA to compel
the United States to participate in the state estate proceeding,
which forecloses the argument that TEDRA could somehow
bind the BIA to the 2004 Settlement Agreement. See
Sisseton–Wahpeton Sioux Tribe v. United States, 895 F.2d
588, 592 (9th Cir. 1990) (“The doctrine of sovereign
immunity precludes suit against the United States without
the consent of Congress . . . .”).

Even setting aside that different parties were involved in
the Grondal state litigation and in this lawsuit, the two cases
also involved different claims, i.e. lacked identity of issue.
“Claim preclusion prevents parties from relitigating the
same claim,” and suits “involve the same claim . . . if the
later suit arises from the same transaction” as does the first
suit. Brownback v. King, 141 S. Ct. 740, 747 n.3 (2021)
(cleaned up). Here, the Grondal state litigation and this
appeal do not involve the same transaction. The Grondal
state litigation pertained to the membership agreements
between Evans/Wapato and Mill Bay but this suit pertains to
the Master Lease between the IAs/BIA and Evans/Wapato.
Nothing in the Grondal state litigation ever claimed to
address or resolve whether the Master Lease was renewed.
Further, claim preclusion does not apply here because
Wapato still had time to renew the Master Lease even after
the 2004 Settlement Agreement, and the Master Lease’s
expiry is the entire premise of this lawsuit. See Media Rts.
Techs., Inc., 922 F.3d 1014, 1021 (9th Cir. 2019) (“[C]laim
preclusion does not apply to claims that accrue after the
filing of the operative complaint in the first suit.” (quotation
marks and citation omitted)).
 GRONDAL V. UNITED STATES 49

For all these reasons, we reject Mill Bay’s argument that
the IAs and the BIA are precluded under res judicata from
ejecting Mill Bay.

C. Assignment of the Expanded Membership
Agreements under Master Lease Paragraph 8

Mill Bay’s third defense relates to a provision of the
expired Master Lease. Although prior litigation resolved
that Wapato Heritage failed to renew the Master Lease,
Paragraph 8 of the Master Lease requires the Lessor-IAs to
honor sublease or subtenant agreements even after the
Master Lease is terminated “by cancellation or otherwise.”
Paragraph 8 (entitled “Status of Subleases on Conclusion of
Lease”) states:

Termination of this Lease, by cancellation or
otherwise, shall not serve to cancel subleases
or subtenancies, but shall operate as an
assignment to Lessor of any and all such
subleases or subtenancies and shall continue
to honor those obligations of Lessee under
the terms of any sublease agreement that do
not require any new or additional
performance not already provided or
previously performed by Lessee.

The Expanded Membership Agreements, signed by
individual Mill Bay purchasers and Chief Evans, Inc.
(predecessor-in-interest to Wapato Heritage), stated that
“[t]he duration of this membership is coextensive with the
fifty (50) year term” of the Master Lease. Mill Bay argues
that the Expanded Membership Agreements issued by
Wapato Heritage and the 2004 Settlement Agreement should
be assigned to the IA lessors under the terms of Paragraph 8.
50 GRONDAL V. UNITED STATES

The district court rejected this argument in its 2010
order. The court concluded that Paragraph 8 did not apply
to the Mill Bay members because (1) under both the
Expanded Membership Agreements and the 2004 Settlement
Agreement, the Mill Bay members were mere licensees, not
sublessees or subtenants; and (2) the Master Lease was
terminated by normal expiration, not unexpectedly
terminated. Federal law applies to the interpretation of the
Master Lease. Wapato Heritage I, 637 F.3d at 1039 (“We
also apply federal law because the BIA’s role and
obligations under the contract are in contention.”). Under
federal law, “[t]he interpretation and meaning of contract
provisions are questions of law reviewed de novo.” Flores
v. Am. Seafoods Co., 335 F.3d 904, 910 (9th Cir. 2003). We
hold that Paragraph 8 of the Master Lease does not apply at
all because the Master Lease was not terminated “by
cancellation or otherwise.” 36

The Master Lease was not “cancelled.” The Master
Lease expired after Wapato Heritage failed properly to
exercise the renewal option. Mill Bay argues “or otherwise”
expands the type of termination contemplated beyond
cancellation and that this phrase should be read instead to
mean termination for any reason whatsoever, including
normal expiration. That interpretation contravenes the
canon of ejusdem generis, which “refers to the inference that
a general term in a list should be understood as a reference
to subjects akin to those with specific enumeration.” In re
Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir.
2018) (internal quotation marks and citation omitted). So
“cancellation” helps define the phrase “or otherwise.”
Black’s Law Dictionary defines cancellation to mean: “An

Because Paragraph 8 does not apply, we need not examine
36

whether the Expanded Membership Agreements or the 2004 Settlement
Agreement created mere sublicenses rather than subleases.
 GRONDAL V. UNITED STATES 51

annulment or termination of a promise or an obligation;
specif., the purposeful ending of a contract because the other
party has breached one or more of its terms.” Cancellation,
Black’s Law Dictionary (11th ed. 2019). “Cancellation or
otherwise” thus most naturally refers to methods of a lease’s
termination other than the natural course of time, such as
termination due to some action by a party that ends the lease
before the contract term concludes. In contrast, termination
by normal expiration contemplates that no party breached
the terms and the Master Lease ran its full course and simply
expired. So Paragraph 8 applies only if the lease was
terminated by a party’s breach and another party’s action in
response to that breach, not when, as here, the lease expired
on its intended expiration date.

Other provisions of the Master Lease only confirm our
interpretation of Paragraph 8. 37 Mill Bay’s construction of
Paragraph 8 would extend Wapato Heritage’s purported
sublease to Mill Bay to 50 years, beyond the life of the actual
lease between Wapato Heritage and the IAs. But that would
contradict Paragraph 7, which states: “No part of the
premises shall be subleased for a period extending beyond
the life of this [Master] Lease . . . .” Mill Bay’s response is
that Paragraph 7’s “life of this Lease” phrase meant the full
fifty-year potential for the lease, not the valid twenty-five-
year lease term. But that reading of Paragraph 7 is in turn
contradicted by Paragraph 3 of the Master Lease, which
states: “The term of this lease shall be twenty-five (25)

37
Cf. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In
ascertaining the plain meaning of the statute, the court must look to the
particular statutory language at issue, as well as the language and design
of the statute as a whole.”); Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 167 (2012) (“The text must be
construed as a whole.”).
52 GRONDAL V. UNITED STATES

years.” 38 The way we read Paragraph 8—that this paragraph
requires the Lessor-IAs to honor sublease or subtenant
agreements only if the Master Lease is terminated before its
natural expiration—harmonizes all of these provisions.

Indeed, if the parties intended Paragraph 8 to apply when
the lease terminated for any reason, including normal
expiration, it is unlikely they would have included language
that is naturally read as being limited to premature
termination. Paragraph 30 (“Delivery of Premises”) of the
Master Lease, just a few pages away, proves that the parties
could author expansive language when they desired.
Paragraph 30 requires the lessee to deliver possession “at the
termination of this lease, by normal expiration or otherwise
. . . .” Paragraph 30’s scope is broad: “normal expiration or
otherwise” covers just about everything. But in comparison,
and as just described above, the natural reading of Paragraph
8 is more restrictive. To give effect to the precise text in
each provision, we must more probably give “termination
. . . by cancellation or otherwise” a different, more restrictive
interpretation than “termination . . . by normal expiration or
otherwise.” See United States ex rel. Welch v. My Left Foot
Children’s Therapy, LLC, 871 F.3d 791, 797 (9th Cir. 2017)
(“[I]f possible, every word and every provision is to be given
effect . . . .”).

For all of these reasons, we reject Mill Bay’s
interpretation of Paragraph 8 of the Master Lease: Paragraph

38
Mill Bay’s reading here also requires the Court to reach not one
but two unlikely conclusions: that a sublessor can grant a sublessee more
rights than he holds himself and that the parties meant to allow Wapato
Heritage to issue subcontracts beyond the twenty-five-year term
regardless whether Wapato Heritage ever actually exercised the lease
renewal option.
 GRONDAL V. UNITED STATES 53

8 does not apply when the Lease expires by the passage of
time, as happened here.

D. Equitable Estoppel

Mill Bay’s fourth and final defense against ejectment
pertains to the BIA’s alleged prior representations that Mill
Bay would be able to remain on MA-8 through 2034. 39 Mill
Bay argues that, based on those statements, the court should
apply equitable estoppel to prevent the BIA from seeking
Mill Bay’s ejectment. Below, the district court concluded
the equitable estoppel defense is not available under United
States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003), in
which we held that the United States is not subject to
equitable estoppel when it acts in its sovereign capacity as
trustee for Indian land. A district court’s decision to apply
or reject an estoppel defense is reviewed for abuse of
discretion but the district court’s legal conclusions as to the
availability of that defense are reviewed de novo. See United
States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009)
(en banc) (“[T]he first step of our abuse of discretion test is
to determine de novo whether the trial court identified the
correct legal rule to apply to the relief requested.”).

In City of Tacoma, the BIA brought a suit in the 1990s to
invalidate Tacoma’s 1921 condemnation of land allotted to

39
Specifically, Mill Bay cites: (1) the BIA’s receipt of and
nonresponse to Evans’ 1985 letter purportedly exercising the renewal
option (later found to be ineffective), (2) the BIA’s receipt of the
Expanded Membership Agreements which were marketed to be valid
through 2034 and the BIA’s approval of the Site Plan modification,
(3) the BIA’s statement on a form affidavit provided to Washington State
Liquor Control Board stating “[Master] Lease expiration date: 2-2-
2034,” and (4) the BIA’s failure to object to the 2004 Settlement
Agreement, which assumed the renewal of the lease through 2034.
54 GRONDAL V. UNITED STATES

American Indians in trust patents, land which Tacoma used
to build a hydroelectric power project. 332 F.3d at 576–78.
At the time of the condemnation, the United States had
acceded to the process as trustee, writing in a 1921 letter that
it viewed the proceedings as “in all respects legal,” and
accepted the compensation for the taking of the land on
behalf of the American Indian allottees. Id. However, in
1939, the Supreme Court interpreted a federal statute (which
was on the books in 1921) to require that the United States
be named as an indispensable party for all condemnation
proceedings concerning trust allotments, which Tacoma had
failed to do in its condemnation suit. Id. at 579–80. Some
fifty years later, the BIA, at the behest of the local tribe, filed
a claim against Tacoma to invalidate the 1921 condemnation
based on that procedural infirmity. Tacoma, in defending
itself against invalidation, argued that the BIA was
foreclosed from seeking invalidation under the principles of
equitable estoppel. Because the government approved the
legitimacy of the condemnation proceedings, as evidenced
in the 1921 letter, Tacoma argued the court should not permit
the BIA to reverse itself decades later. Id. at 581. We denied
Tacoma’s argument for equitable estoppel, holding that
“when the government acts as trustee for an Indian tribe, it
is not at all subject to [an equitable estoppel] defense. Id. at
581–82.

Here, Mill Bay similarly seeks to use equitable estoppel
against the BIA to deny the BIA’s claim to possession of
land the BIA holds in trust to American Indian allottees.
However, Mill Bay argues City of Tacoma does not apply.
Mill Bay claims that the BIA is not acting as trustee for
American Indian land but rather is acting to further its own
sovereign and proprietary interests. Mill Bay further claims
 GRONDAL V. UNITED STATES 55

the BIA has a conflict of interest and is violating its duty as
trustee by favoring the Tribe over the IAs. 40

Mill Bay relies primarily on United States v. Jicarilla
Apache Nation, 564 U.S. 162 (2011), where the Supreme
Court described the holding of one of its own prior cases,
Heckman v. United States, 224 U.S. 413 (1912). In
Heckman, the government sued as trustee on behalf of
American Indian allottees (who impermissibly sold their
allotments) to nullify those same conveyances. See id. at
417. The Court in Jicarilla said that in Heckman, the
government “was formally acting as a trustee [but] was in
fact asserting its own sovereign interest in the disposition of
Indian lands.” Jicarilla, 564 U.S. at 176. Mill Bay suggests
that Jicarilla stands for the proposition that when the BIA
acts as a trustee on behalf of American Indians but contrary
to their interests, it furthers its own sovereign interests and
is thus not immune to equitable estoppel.

We reject Mill Bay’s argument. To begin, Mill Bay
cannot claim that the BIA acted outside of the scope of the
trustee relationship contemplated in City of Tacoma. The
BIA’s trespass suit is brought pursuant to 25 C.F.R.
§ 162.471, which expressly states that “[i]f a lessee remains

40
Wapato Heritage asserts that the BIA is acting at the behest of the
Tribe, which favors the ejectment of Mill Bay and expiration of the
Master Lease (supposedly because the Tribe can maintain low sublease
and rental rates for its casino or because the Tribe wishes to relocate the
casino to the waterfront, where the Mill Bay RV Park is located).
Wapato Heritage suggests that the BIA is favoring the Tribe’s interests
over the interests of the IAs, which are to recoup the most amount of rent
money possible. Wapato Heritage also points to the fact that the BIA’s
district superintendent through 2017 was an enrolled member of the
Tribe (who left in 2017 for a position with the Tribe). Wapato Heritage
further points to the BIA’s approval of the Tribe’s purchases of some of
the IA’s interests in MA-8 at below market value since the start of this
litigation.
56 GRONDAL V. UNITED STATES

in possession after the expiration, termination, or
cancellation of a business lease,” the BIA “may take action
to recover possession on behalf of the Indian landowners.”
Even under Mill Bay’s interpretation of Jicarilla and
Heckman (neither of which involved a claim for equitable
estoppel), ejection of a trespasser is a statutory function not
at odds with the traditional trustee-beneficiary relationship.
Rather, ejectment is a traditional exercise of a trustee’s duty
to protect the trust property on behalf of the trustees (here,
the allottees).

Nor did the BIA act outside the trustee relationship when
it helped draft and execute the Master Lease. To administer,
preserve, and maintain the trust property is a quintessential
trustee function. See United States v. White Mountain
Apache Tribe, 537 U.S. 465, 475 (2003) (“[E]lementary trust
law, after all, confirms the commonsense assumption that a
fiduciary actually administering trust property may not allow
it to fall into ruin on his watch. ‘One of the fundamental
common-law duties of a trustee is to preserve and maintain
trust assets . . . .’” (quoting Cent. States, Se. & Sw. Areas
Pension Fund v. Central Transport, Inc., 472 U.S. 559, 572
(1985)).

And even if we take as true Mill Bay’s accusation that,
whether or not the BIA was acting within its powers as
trustee, the agency had a conflict of interest, Mill Bay still
does not explain how this conflict would convert the BIA’s
interest as a trustee in ejecting Mill Bay from MA-8 into a
proprietary interest of the United States. None of the dues
or rent from the property go to the BIA, which retains title
on behalf of the IAs in trust in any event. See Wapato
Heritage I, 637 F.3d at 1039 (“Neither did the BIA become
a party to the Lease by acting in its approval capacity or in
its limited role as proxy for the 64% of the Landlords who
 GRONDAL V. UNITED STATES 57

had given their express authority to sign on their behalf, or
with respect to the remaining 36% of the Landowners, for
whom it signed as authorized by § 162.2(a)(4).”).

Alternatively, Mill Bay argues that we should cabin City
of Tacoma’s holding that equitable estoppel is never
applicable against the United States when acting as trustee
for American Indian allottees. We see no reason to do so.
The rule—in its broadly stated form—is well-grounded and
dates back decades. See United States v. Ahtanum Irrigation
Dist., 236 F.2d 321, 334 (9th Cir. 1956) (“No defense of
laches or estoppel is available to the defendants here for the
Government as trustee for the Indian Tribe, is not subject to
those defenses.”); Cato v. United States, 70 F.3d 1103, 1108
(9th Cir. 1995) (“[T]he well-established rule [is] that a suit
by the United States as trustee on behalf of an Indian tribe is
not subject to state delay-based defenses.” (citing Oneida
Indian Nation of New York v. State of New York, 691 F.2d
1070, 1083–84 (2d Cir. 1982)).

Last, Mill Bay argues the United States should be
granted immunity from equitable estoppel only when full
alienation of the allottees’ land is at issue. But the rule as
stated in City of Tacoma is broad, clear, and admits no
exception for instances where alienation is not at issue.
Moreover, we have previously applied the rule to a case
where alienation was not at issue. In Ahtanum, non-
American Indian landowners located near a reservation
sought to bind the government by estoppel to a 1908
agreement (between the BIA and the non-American Indian
landowners) that entitled the landowners to 75% of a
reservation river’s water. 236 F.2d at 329. We applied the
rule as stated in City of Tacoma, concluding that the
landowners could not enforce the 1908 agreement based on
the government’s “subsequent conduct or approval” of the
58 GRONDAL V. UNITED STATES

agreement because “[n]o defense of laches or estoppel is
available to the defendants here for the Government as
trustee for the Indian Tribe, is not subject to those defenses.”
Id. at 334. There, as here, the government was granted
immunity from estoppel that would have limited by contract
the American Indians’ use of their land.

We conclude that City of Tacoma is not distinguishable
and that Mill Bay is barred from asserting its defense of
equitable estoppel against the BIA. 41

IV. CONCLUSION

For the reasons stated above, we AFFIRM the district
court’s grant of the BIA’s motion for summary judgment on
its counterclaim for trespass.

41
Under 25 C.F.R. § 162.471, after consultation with the American
Indian landowners, the BIA has authority to remove trespassers even
without majority consent from the IAs. Thus, Mill Bay’s claim for
equitable estoppel against IAs would not grant Mill Bay any relief and
we need not address it in this appeal.