Greene v. United States

EUGENE A. WRIGHT, Circuit Judge:

The Tulalip Tribes seek to intervene in an action between the Samish Tribe and the Department of Interior regarding federal recognition of the Samish. The Tulalip argue that federal acknowledgment of the Samish as an Indian tribe will lead to the dilution of treaty fishing rights. The district court denied intervention, finding that the action did not implicate treaty claims. We agree that the Tulalip have not identified a protect-able interest to warrant intervention. Even if the federal government says that the Samish are an official Indian tribe, whether they may fish as a treaty tribe in common with the Tulalip is another question. We affirm.

I.

The Samish tribe is located in Whatcom County, Washington. Their effort to obtain federal recognition is but part of a continuing battle to regain land and other benefits of tribal heritage, including valuable fishing rights. In 1855, several Indian tribes negotiated the Treaty of Point Elliott with federal representatives in Washington Territory, relinquishing much of their land and reserving the right to fish at all usual and accustomed grounds in common with citizens of the Territory. As the fish became scarce, disputes arose over the allocation of the harvest. District Judge Boldt held that treaty tribes, including the Tulalip, were entitled to take up to 50% of the harvestable fish on runs passing through traditional fishing grounds. United States v. Washington, 384 F.Supp. 312 (WD.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (“Washington I”). Washington State regulates the fisheries under the continuing jurisdiction of the Washington I district court.

After Judge Boldt’s initial decision, the Samish and other Indian groups intervened to assert their own treaty fishing rights. The district court found that they had failed to maintain an organized tribal structure since signing the Treaty of Point Elliott. It rejected their claims as successors to treaty tribes in United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982) (“Washington II"), effectively leaving the Samish without treaty fishing rights.

About that time, the Samish asked that the federal government recognize them as an Indian tribe and they applied for official tribal status under 25 C.F.R. ¶'83 to obtain governmental protection, services and benefits. The Bureau of Indian Affairs denied their repeated petitions. The agency did not rely upon the factual determinations in Washington II but instead conducted an independent inquiry. The Tulalip and other tribes participated as “interested parties” in the BIA proceeding.

The Samish appealed to the district court, alleging due process violations in the agency proceeding. The tribe also asked for judicial recognition of their treaty successor status. On partial summary judgment, the district court ruled that the Samish were barred from relitigating the question of treaty fishing rights because of the res judicata and collateral estoppel effects of Washington II. *976The remaining issues in the second phase of the action concerned alleged defects in the BIA’s administrative process.

The Tulalip renewed a motion to intervene, arguing that their treaty fishing rights were threatened by the Samish attempt to obtain federal recognition. The district court denied intervention. The Tulalip appeal.

As this appeal was pending, other important developments followed. Judge Zilly held that the Samish had been denied due process in the BIA’s evaluation of their acknowledgment petition. The court vacated the agency’s earlier decision and remanded for a formal adjudication under the Administrative Procedure Act. Also, new evidence suggested that Judge Boldt allegedly had suffered from a disabling illness when the Washington II judgment was entered. The Samish moved to set aside that judgment. The district court denied that motion, stating that it should be directed to the ongoing Washington I court. The district court also addressed again the status of the Tulalip, reaffirming that the Tribe was not a party but granting it leave to participate as amicus curiae in the remanded proceedings before the BIA.

II.

A. INTERVENTION AS OF RIGHT

We review de novo a district court’s denial of a motion to intervene as of right. United States v. Oregon, 913 F.2d 576, 587 (9th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991).

Fed.R.Civ.P. 24(a)1 establishes four requirements for intervention as of right: timeliness, an interest relating to the subject of the action, practical impairment of the party’s ability to protect that interest and inadequate representation by the parties to the action. The rule is construed broadly in favor of applicants for intervention. Id.

The district court held that the Tulalip failed to satisfy the second prong of the test, the “interest” requirement. Whether an applicant for intervention demonstrates sufficient interest in an action is a practical, threshold inquiry. No specific legal or equitable interest need be established. Portland Audubon Soc. v. Hodel, 866 F.2d 302, 308 (9th Cir.), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989). Nevertheless, the movant must demonstrate a “significantly protectable interest.” An economic stake in the outcome of the litigation, even if significant, is not enough. Id. at 309.

1. Dilution of Treaty Fishing Allocations

The Tulalip identify two related interests. First, they argue that their treaty fishing allocations are threatened by dilution. They concede that the district court limited the Samish claims to federal recognition. Thus, adjudication of the Samish treaty fishing rights is not an issue in the pending proceeding. Nevertheless, the Tulalip argue that renewed administrative inquiry into the Samish tribal status will raise nearly identical questions. They assert that the BIA will review much of the same factual record that served as the basis for the judicial allocation of fishing rights.

To gain federal acknowledgment, the Samish must establish the requisite social cohesion and community, continuity of political authority and ancestry from a historic tribe. See 25 C.F.R. §§ 83.1 thru 83.7. To assert treaty fishing rights, the Samish must demonstrate that they descended from a treaty signatory and “have maintained an organized tribal structure.” Washington II, 641 F.2d at 1372.

We recognize that the two inquiries are similar. Yet each determination serves a different legal purpose and has an independent legal effect. Federal recognition is not a threshold condition a tribe must establish to fish under the Treaty of Point Elliott. *977“Nonreeognition of the tribe by the federal government ... may result in loss of statutory benefits, but can have no impact on vested treaty rights.” Id. at 1371 (quoting Washington I, 520 F.2d at 692-93); see also United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 n. 10 (9th Cir.1990). Only Congress can abrogate an Indian treaty. Washington II, 641 F.2d at 1371. Other Washington tribes, including the Stillaguamish and the Upper Skagit, have treaty fishing rights even though not federally recognized. See Washington I, 520 F.2d at 692-93.

Similarly, the Samish need not assert treaty fishing rights to gain federal recognition. They might document repeated identification by federal and state authorities, see 25 C.F.R. § 83.7(a), sometime after or independent of the 1855 Treaty. Even if they obtain federal tribal status, the Samish would still have to confront the decisions in Washington I and II before they could claim fishing rights. Federal recognition does not self-execute treaty rights claims.2

2. Preservation of Prior Decisions

Apart from protecting fishing rights, the Tulalip argue that they have an interest in preserving the prior decisions in Washington I and II. They .contend that parallel determinations by the BIA will undermine the precedential effect of those decisions. Intervention may be required when considerations of stare decisis indicate that an applicant’s interest will be practically impaired. United States v. Oregon, 839 F.2d 635, 638 (9th Cir.1988).

Where the precedential impact has been clear, we have allowed intervention. In Oregon, we held that residents of a state mental health facility could intervene in an action against the facility by the federal government. Because the litigation involved the conditions of the institution, “[fjactual and legal determinations concerning the nature of those conditions” would affect directly any subsequent relief sought by the residents. Id.

The Tulalip fail to explain how the stare decisis effect of Washington I and II would be directly undercut. Any attempt to reliti-gate treaty fishing rights would occur in the separate, ongoing Washington I forum, where the Tulalip are already parties. They argue that factual determinations in the new administrative hearing could be used to overturn the judicial decisions. Yet in detailing the conditions on remand to the BIA, the district court ruled expressly that the ALJ “will not consider” treaty rights established by the Boldt decision. The Tulalip’s arguments about stare decisis effects are therefore unpersuasive.

In a related argument, the Tulalip assert an interest in defending Washington II from collateral attack by way of the administrative hearing. This interest is immaterial because the district court explicitly ruled that the Samish may not use the reopened hearing to attack the Boldt decision.

The Tribe is no doubt correct that should the Samish prevail before the BIA and gain recognition, the next step would be to assert fishing rights as well. This claim would, however, require a direct challenge to Washington II. The action before the district court no longer involves treaty fishing rights. As we just said, the Samish may not gain fishing rights from federal recognition alone. Presently, the Tulalip’s interest in preserving the favorable effects of stare decisis is too speculative to warrant intervention.

We agree with the dissent that, above all, practicality must govern our analysis of the Tulalip’s attempt to intervene. But it is the dissent that calls for an impractical result by ignoring the fact that the Washington I case is ongoing. Washington state regulates its fisheries under the continuing jurisdiction of the Washington I district court. Many tribes participate in this comprehensive judicial and administrative scheme. That is the forum that will resolve ultimately any at*978tempt to reallocate treaty fishing rights and that is the forum where the Tulalip and all other interested parties can have their say.3 Keeping this federal recognition action separate and independent so that it does not become entangled with the complex, interminable litigation involving treaty fishing rights best serves the twin goals identified by the dissent, efficiency and access to the courts. Allowing the Tulalip to intervene would only further confuse the issues and postpone what may be inevitable: a direct challenge to the allocation of treaty fishing rights, which would be fully and independently litigated in the Washington I forum.

The dissent speculates that if the BIA reverses its decision and recognizes the Samish as an official tribe, this “will undoubtedly carry great weight in any judicial reconsideration of Samish entitlement to treaty fishing rights.” In fact, such a decision would have marginal influence at best. The Washington I court need not accord any deference to an agency proceeding that has been expressly limited to matters other than rights under the 1855 treaty. The dissent suggests that we ei’roneously cling to a “technical legal distinction” between this federal recognition proceeding and possible future action on treaty claims. Yet we conclude that the Tulalip’s interests are not practically impaired precisely because each action has an independent legal effect.

The dissent mischaracterizes the Samish’s action as solely a strategic attempt to gain treaty rights. This may be one of the Samish’s goals, but surely not the only one. In their initial complaint, the Samish alleged harm because of the loss of fishing opportunities and the deprivation of “rights and benefits of federally recognized Tribes.” Federal recognition brings its own obvious rewards, not the least of which is the eligibility of federal money for tribal programs, social services and economic development.

In short, we conclude that the district court resolved the situation in a practical and even-handed manner. Judge Zilly bifurcated the action, dealing first with the Samish efforts to relitigate their treaty successorship rights. After the preliminary summary judgment ruling against the Samish, fishing rights went out of the case. Remaining was only the Samish attempt to achieve federal recognition. On that one issue, the Tulalip have no protectable interest. Judge Zilly accommodated their concerns by allowing their participation as amicus curiae.

B. PERMISSIVE INTERVENTION

The Tulalip moved in the alternative for permissive intervention. We review for an abuse of discretion the denial of that motion. United States v. Oregon, 913 F.2d 576, 589 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991). A court may grant intervention under Fed.R.Civ.P. 24(b) where: (1) the mov-ant shows independent ground for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense and the main action have a question of law or fact in common. Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir.1989), aff'd, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990).

The district court held that there was no common question of law or fact. We find no abuse of discretion. The Tulalip’s fishing interest did not relate to the subject matter of the action remaining before the district court.

AFFIRMED.

. Rule 24(a) reads

Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

. This case is accordingly distinguishable from Scotts Valley Band of Pomo Indians v. United States, 921 F.2d 924 (9th Cir.1990), relied on by the Tulalip. In Scotts Valley Band, we held that the City of Chico had a right to intervene in the Band's suit to restore its land to federal trust status because trust status would necessarily result in the City's losing its power to tax and zone the lands.

. Indeed, if the Tulalip’s interests were as practically impaired as the dissent suggests, then the other treaty tribes might have to be joined in this action as indispensable parties under Fed. R.Civ.P. 19.