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Appeals court backs Washington tribe's treaty claim
Friday, January 7, 2005

A Washington tribe that was wrongly denied federal recognition more than 30 years ago moved a big step closer to reclaiming its fishing rights on Thursday.

In a 2-1 decision, the 9th Circuit Court of Appeals cleared the way for the Samish Nation to seek a share of the state's salmon catch. The tribe has been excluded because it lacked recognition at the time of a landmark 1974 ruling that split the runs between Indian and non-Indian fishermen.

But the appeals court said nonrecognition shouldn't have been a factor. Citing "extraordinary circumstances" that were overlooked by an unsympathetic federal judge, the majority reopened the historic case over the objections of nine other tribes and the Bush administration.

"The Samish would almost certainly have won the right to exercise its treaty fishing rights had the tribe been federally recognized," Judge A. Wallace Tashima wrote for the divided court.

The ruling adds another chapter to the Samish Nation's long-running struggle to regain its rights. The saga began in 1969, when the tribe was knocked off the list of federally recognized entities by the Bureau of Indian Affairs.

Five years later, U.S. District Judge George Boldt issued one of the most important rulings in Indian law history. In a controversial, precedent-setting decision, he held that the 1855 Treaty of Point Elliott entitled tribal signatories to 50 percent of the salmon catch. A total of 14 tribes had their fishing rights recognized.

But the Samish weren't one of them even though their ancestors signed the treaty. Relying on the BIA's mistake, Boldt blocked the tribe from the benefits of his earlier ruling. It was his last action on the bench before retiring in 1979 under the pressures of Alzheimer's disease.

The debate didn't end there. After a lengthy court battle -- "made more difficult by excessive delays and governmental misconduct," as a judge later noted -- the BIA was forced to restore the tribe's federal status in 1996. An Interior Department attorney who handles recognition and other Indian matters was held in contempt and forever barred from handling matters for the tribe as a result.

The tribe then asked for another shot at proving its treaty claim. Nine tribes and the federal government opposed the move, arguing that restoration of the Samish Nation's fishing rights would upset existing management plans.

In December 2002, U.S. District Judge Barbara Rothstein agreed. She held that the tribe's recognition in 1996 didn't warrant re-examination of the Boldt decision. To do so would "wreak havoc" on tribal-state fishing agreements, she concluded.

The 9th Circuit reversed Rothstein, saying she "abused" her discretion by ignoring the tribe's restoration. "As the Samish’s lack of recognition was a circumstance beyond the tribe’s control, their subsequent recognition is an extraordinary circumstance that warrants setting aside the [Boldt] judgment," Tashima wrote.

The majority also said that Rothstein failed to explain why she rejected the tribe on grounds of "finality and certainty." The Samish Nation has proposed to limit the impact of its fishing rights on other tribes, Tashima noted.

But one member of the 9th Circuit didn't agree with that reasoning. In a dissent, Judge Carlos T. Bea said the Samish were never prevented from proving they had treaty rights back in 1974. He noted that two other tribes -- the Stillaguamish and Upper Skagit -- also lacked recognition at the time but were still included in the Boldt judgment.

The difference in opinion makes the case a prime candidate for a rehearing before the full 9th Circuit. An appeal to the U.S. Supreme Court is also possible.

Separately, the Samish Nation has sued the Interior Department for the 1969 error that cost the tribe its recognition. A lawsuit filed in federal court last September claims the department's repeated failures "have adversely affected the tribe [and] have caused harm to the Samish Tribe and its members."

"The department has continued since 1996 to fail to act on the tribe's behalf by failing to comply with federal law," the complaint states. The tribe is asking for millions of dollars in damages.

Get the Decision:
Samish v. Washington (January 6, 2005)

Lower Court Decision:
Order Denying the Samish Tribe's Motion to Reopen Judgment (December 19, 2002)

Relevant Links:
Samish Indian Nation - http://www.samishtribe.nsn.us