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Home , Isaac Stevens, Patkanim, Samish, Snoqualmie Indian Tribe, Snoqualmie people, Treaty of Point Elliott

Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 1 of 15

1 Honorable Ronald B. Leighton 2 3 4 5 6 DISTRICT COURT WESTERN DISTRICT OF 7 AT TACOMA

8 , a Civil Action No. 3:19-cv-06227-RBL federally recognized Indian tribe on its own 9 behalf and as parens patriae on behalf of its members, 10 SNOQUALMIE INDIAN TRIBE’S Plaintiff, MOTION FOR PARTIAL SUMMARY 11 JUDGMENT AND MEMORANDUM IN v. SUPPORT THEREOF 12 STATE OF WASHINGTON; and 13 GOVERNOR and NOTE ON MOTION CALENDAR: WASHINGTON DEPARTMENT OF FISH FEBRUARY 7, 2020 14 AND WILDLIFE DIRECTOR KELLY SUSEWIND, in their official capacities, 15 Defendants. ORAL ARGUMENT REQUESTED 16 Pursuant to Fed. R. Civ. P. 56, Plaintiff Snoqualmie Indian Tribe (“Snoqualmie” or “the 17 Tribe”), respectfully moves the Court to enter partial summary judgment in its favor on the 18 Tribe’s claim for a declaration of Treaty status as made in its Complaint (Dkt. 1) against the 19 State of Washington (“State”), Governor Jay Inslee, and Washington Department of Fish and 20 Wildlife (“WDFW”) Director Kelly Susewind (collectively, “Defendants”). The Tribe also 21 makes a claim for a violation of Equal Protection, which is not the subject of this motion. 22 I. INTRODUCTION 23 Since time immemorial, hunting and gathering throughout the state of Washington has 24 been a way of life for the . Ethnographic, anthropological, and archaeological 25 sources reveal that before having significant contact with non-Indians, the Snoqualmie people 26 were present in a broad geographic area in year-round settlements and seasonal hunting and 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 1 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 2 of 15

1 gathering sites. These use areas included the right and privilege to hunt for subsistence and trade 2 while in these extended areas. The Snoqualmie have therefore traditionally depended on the 3 ability to hunt and gather for both survival and for cultural purposes. 4 Although the Tribe has tenaciously worked to protect its hunting and gathering rights 5 over the last century, those rights are under attack. Most recently, the Tribe has been foreclosed 6 by Defendants from claiming it has, let alone exercising, its treaty-reserved hunting and 7 gathering rights. Defendants’ refusal to recognize the Tribe’s reserved rights are based on an 8 erroneous over-extrapolation of a narrow federal court decision based on outdated factual 9 circumstances, and without application to hunting and gathering. 10 The undisputed material facts, as established by various courts and the United States, 11 make clear that the Tribe was a signatory to the and that the rights it 12 reserved therein have never been taken away by Congress. It is vital that the Tribe ensure the 13 preservation and enforcement of the rights that it bargained for over two hundred years ago by 14 entering into that Treaty. Accordingly, the Tribe seeks a declaration from the Court that the Tribe 15 was a party and signatory to the 1855 Treaty of Point Elliott, and that its treaty rights thereunder 16 have never been abrogated by Congress. 17 II. STATEMENT OF UNDISPUTED MATERIAL FACTS 18 A. The Importance of Hunting and Gathering 19 Traditionally, hunting and fishing rights were of great importance to Snoqualmie because 20 the Tribe hunted and fished extensively for subsistence purposes. Proposed Finding for Federal 21 Acknowledgment of the Snoqualmie Indian Tribe, 58 Fed. Reg. 27162-01 (May 6, 1993). Thus, 22 “[g]aining land for the Snoqualmie to settle upon and the maintenance of fishing and hunting 23 rights under the treaties have been two issues that were of central importance to the Tribe and its 24 leaders.” Ex. A to Declaration of Rachel Saimons (“Saimons Decl.”) at 25. As access to 25 traditional hunting grounds became increasingly limited because of competition with non-Indians 26 and increasingly restrictive game and fish laws, hunting rights were issues of clear significance 27 and concern to the Tribe. Id. Thus, hunting and fishing rights “have been a consistent concern 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 2 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 3 of 15

1 addressed by the Snoqualmie council and leadership throughout the period between 1956 and the 2 present.” Id. at 30. 3 B. Relevant History of the Snoqualmie 4 1. Snoqualmie Signs the Treaty of Point Elliott 5 On January 22, 1855, representatives from a number of tribes met and signed the Treaty 6 of Point Elliott, one of approximately 11 treaties signed by Governor for the 7 United States with tribes in what was then the . Treaty Between the United 8 States & the Dwamish, , & Other Allied & Subordinate Tribes of Indians in 9 Washington Territory, 12 Stat 927 (U.S. Treaty Apr. 11, 1859); United States v. State of 10 Washington, 98 F.3d 1159, 1161 n.2 (9th Cir. 1996). The signatories to the Treaty of Point Elliott 11 included representatives from tribes now known as the Duwamish, Suquamish, Snohomish, 12 , Skagit, and , as well as the Snoqualmie (then referred to as “Snoqualmoo”). 13 United States v. State of Washington, 641 F.2d 1368, 1370 n.1 (9th Cir. 1981). The Treaty was 14 signed by Pat-ka-nam, then Chief of the Snoqualmie and other tribes. United States v. State of 15 Washington, 384 F. Supp. 312, 378 (W.D. Wash. 1974), aff’d and remanded, 520 F.2d 676 (9th 16 Cir. 1975). Fourteen signers of the treaty were identified as representatives from Snoqualmie. 17 See 12 Stat 927. 18 The Treaty reserved a number of rights to the signatory tribes. As explained in 19 Snoqualmie Tribe of Indians ex rel. Skykomish Tribe of Indians v. U. S., 372 F.2d 951, 953 (Ct. 20 Cl. 1967):

21 In consideration of the cession, the Indians were given reservations, certain rights 22 off the reservations such as the right to fish in common with white citizens of the Territory, the right to a school, and $150,000 cash to be paid to the 23 Superintendent of Indian Affairs in a series of annual payments for the ‘use and benefit of the said Indians under the direction of the President of the United 24 States.’ Articles II, III, V, VI, XIII, XIV, 12 Stat. 927, 928—930. The total consideration worked out to a value of about $320,000. No attempt was made to 25 attribute ownership of any particular land to any of the participating tribes or 26 bands, nor was any allocation of the consideration made. 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 3 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 4 of 15

1 Importantly, Article 5 of the Treaty guaranteed to the signatory tribes “the privilege of hunting 2 and gathering roots and berries on open and unclaimed lands.” 12 Stat 927. 3 2. Snoqualmie Loses Federal Recognition 4 In the 1950s, the Tribe along with over 100 other tribes, unofficially lost its status as a 5 federally-recognized tribe. As explained by the Department of the Interior:

6 During the termination era of the 1950’s, Government policy makers in the 7 Northwest began to scrutinize the status of non-reservation tribal entities under Federal jurisdiction more closely. In 1955, the BIA’s Portland Area Director 8 suggested that the Government’s trust responsibility in western Washington should be limited to reservation-based tribes. By 1961, the BIA made it clear that 9 the Snoqualmie were not recognized as being an “organized tribe,” that is, one that had a reservation or owned tribal property in which members had a beneficial 10 interest. By 1968, Snoqualmie leaders acknowledged in council meetings that the 11 tribe was not federally recognized. 12 Ex. A to Saimons Decl. at 5. 13 However, importantly, the Department of Interior found that while Tribal membership 14 “had narrowed throughout the 1940s and 1950s . . . [t]here continued to be an off-reservation 15 centered social and political body of Snoqualmie.” Proposed Finding for Federal 16 Acknowledgment of the Snoqualmie Indian Tribe, 58 Fed. Reg. at 27162. And, while the 17 Snoqualmie no longer had separate settlements, “there is strong evidence that the [T]ribe 18 maintained a distinct social community during this period.” Id. at 27163. Supporting evidence 19 included the observations of “knowledgeable contemporary observers, such as Charles Roblin 20 and other Indian agents, that the Snoqualmie were a distinct social community.” Id. at 27162. 21 3. United States v. Washington Treaty Fishing Litigation 22 In 1974, Judge Boldt issued his famous decision in United States v. Washington finding 23 that fourteen tribes had treaty fishing rights which entitled them to take up to fifty percent of the 24 harvestable fish passing through their off-reservation fishing grounds. 384 F.Supp. 312, 343 25 (W.D. Wash. 1974) aff’d and remanded, 520 F.2d 676 (9th Cir. 1975) (“Washington I”). When 26 Washington I was filed and ultimately decided, Snoqualmie was not federally-recognized and had 27 few, if any, resources. 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 4 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 5 of 15

1 In the late 1970s, the Tribe, along with four other non-federally-recognized tribes 2 (Duwamish, , Snohomish, and Steilacoom Tribes) sought to intervene in the United States 3 v. Washington proceedings. Denying intervention in 1979, the Court explained: “None of the 4 Intervenor entities, Duwamish, Samish, Snohomish, Snoqualmie, and Steilacoom Tribes herein, is 5 at this time a treaty tribe in the political sense within the meaning of Final Decision No. I and the 6 related Orders of the Court in this case.” U.S. v. Washington, 476 F. Supp. 1101, 1111 (W.D. 7 Wash. 1979) (“Washington II”) (emphasis added). 8 Shortly thereafter, in a related proceeding, the Court acknowledged that the 9 “Snoqualmie Tribal Organization” was “composed primarily of persons who are descendants in 10 some degree of Indians who in 1855 were known as Snoqualmoo Indians and of other bands of 11 Indians who resided in the general vicinity of the ,” that “[t]he Snoqualmoo 12 were named in and a party to the Treaty of Point Elliott,” and that “[f]ourteen signers of the 13 treaty were identified as Snoqualmoo, including their chief, .” United States v. State of 14 Wash., 476 F. Supp. 1101, 1108 (W.D. Wash. 1979), aff’d, 641 F.2d 1368 (9th Cir. 1981). 15 Nonetheless, the Court held that the Organization was “not an entity that is descended from any 16 of the tribal entities that were signatory to the Treaty of Point Elliott” and the citizens of the 17 Tribe “ha[d]not maintained an organized tribal structure in a political sense.” Id. at 1108–09 18 (emphasis added). This finding was limited to the context of fishing rights, with the Court’s 19 decree specifically directing only that the intervenor tribes could “not confer upon their members 20 fishing rights under the Treaties of Point Elliott and Medicine Creek.” Id. at 1111 (emphasis 21 added). The Court of Appeals affirmed, but disagreed with Judge Boldt in part, reasoning that 22 “[n]onrecognition of the tribe by the federal government . . . may result in loss of statutory 23 benefits, but can have no impact on vested treaty rights.” 641 F.2d at 1371 (internal quotation 24 marks omitted). 25 4. Snoqualmie Regains Federal Recognition 26 In 1978, Snoqualmie submitted a petition for federal re-recognition to the Bureau of 27 Indian Affairs. Receipt of Petition for Federal Acknowledgment of Existence As Indian Tribes, 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 5 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 6 of 15

1 44 Fed. Reg. 116-01 (January 2, 1979). On April 26, 1993, the Assistant Secretary of Indian 2 Affairs issued the Summary Under the Criteria and Evidence for Proposed Finding for Federal 3 Acknowledgment of the Snoqualmie Indian Tribe. Ex. A to Saimons Decl. In that Summary, the 4 Department of the Interior concluded that the Tribe “meets all seven of the mandatory 5 criteria . . . for Federal acknowledgment and, therefore, exists as an Indian tribe within the 6 meaning of Federal law.” Id. at 3. On May 6, 1993, the Assistant Secretary published notice of a 7 “Proposed Finding for Federal Acknowledgment of the Snoqualmie Indian Tribe.” 58 Fed. Reg. 8 27162-01. 9 In the Proposed Finding, the Department of Interior concluded that “[f]rom [Treaty] time 10 until the present, the petitioner has been identified repeatedly as being American Indian by 11 Federal authorities, State and local governments, civil, religious, and recreational organizations, 12 scholars and other writers, newspapers and books, federally recognized Indian tribes, and 13 national and regional Indian organizations,” “the petitioner has also been viewed historically as 14 being distinct from other Indian tribes in western Washington, as well as from other populations 15 in that area,” and that “the Snoqualmie tribe was a single, distinct social unit, united by kinship 16 and other ties.” 58 Fed. Reg. at 27162. 17 In 1997, the Tribe received a Final Determination ruling, acknowledging it as a federally- 18 recognized tribe. See Final Determination To Acknowledge the Snoqualmie Tribal Organization, 19 62 Fed. Reg. 45864-02 (Aug. 29, 1997). The Final Determination stated that:

20 Substantial evidence showed that the [STO] had unambiguous previous Federal 21 acknowledgment under 25 CFR 83.8 until January 1953. The Snoqualmie Tribe was acknowledged by the Treaty of Point Elliott in 1855 and continued to be 22 acknowledged after that point. The [STO] was acknowledged as a separate, nonreservation tribal entity by 1934. There were multiple, consistent Federal 23 dealings with the non-reservation Snoqualmie Band between 1934 and January 1953 which treated it as a recognized tribe under the jurisdiction of the Federal 24 Government. Evidence includes consistent identification in Indian agency 25 documents which clearly identified the tribes under the jurisdiction of the Western Washington Agency as well as in other Federal documents. Agency and central 26 office documents describe and characterize the STO as a tribe and distinguish it from voluntary organizations created for claims. 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 6 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 7 of 15

1 Id. at 45865. 2 The Tribes subsequently sought reconsideration of the determination under 25 3 C.F.R. § 83.11(d), but in 1997, the United States Department of the Interior denied 4 reconsideration. In re Federal Acknowledgment of the Snoqualmie Tribal Organization, 31 IBIA 5 298, 298 (1997). Finally, in 1999, the Interior Board of Indian Appeals affirmed the final 6 determination to acknowledge the Snoqualmie Tribal Organization as a federally-recognized 7 Tribe. In re Federal Acknowledgment of the Snoqualmie Tribal Organization, 34 IBIA 22, 36 8 (1999).

9 C. Defendants’ Refusal to Recognize Snoqualmie as a Treaty Signatory 10 Fifty years ago, the State did not question Snoqualmie’s treaty status for hunting and 11 gathering. In 1969, Snoqualmie participated in a “special drawing” for access to a deer hunt 12 within the Point Elliott Treaty area conducted by Defendant WDFW. As explained by Walter 13 Neubrech, Chief of the Enforcement of the Washington Department of Game (the 14 predecessor entity to WDFW) at the time: “The above described lands were ceded to the United 15 States Government by the Snoqualmie and other tribes. It is on this land that tribes who were a 16 party to the Elliott Treaty may hunt or fish without first acquiring a license but who are required 17 to abide by all other necessary conservation laws.” Ex. B to Saimons Decl. 18 Unfortunately, Defendants have now taken the position that the Tribe is not entitled to 19 exercise its reserved hunting and gathering rights. On September 24, 2019, WDFW, in a letter

20 signed by Director Sueswind, indicated that “the Snoqualmie Tribe does not have off-reservation 21 hunting and fishing rights under the Treaty of Point Elliott.” Ex. C to Saimons Decl. at 1. His 22 conclusion was based almost entirely on the on the fact that the Tribe was unable to have its 23 Treaty fishing rights adjudicated in United States v. Washington. Id. 24 As explained below, as a matter of law, the Tribe is entitled to a declaration that (1) it is a 25 signatory to the Treaty of Point Elliott and (2) the Tribe’s reserved hunting and gathering rights 26 under the Treaty of Point Elliott have not been abrogated by Congress. 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 7 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 8 of 15

1 III. ARGUMENT 2 A. Summary Judgment Standard 3 Summary judgment is appropriate if the evidence, when viewed in the light most 4 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any 5 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of Los Angeles, 477 F.3d 652, 7 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is no genuine 8 issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. 9 at 323. If the moving party meets his or her burden, then the non-moving party “must make a 10 showing sufficient to establish a genuine dispute of material fact regarding the existence of the 11 essential elements of his case that he must prove at trial” in order to withstand summary 12 judgment. Galen, 477 F.3d at 658.

13 B. There Is No Dispute of Material Fact that the Tribe is a Signatory to the Treaty of Point Elliott 14 15 1. Courts and Other Tribunals Have Repeatedly Concluded That the Tribe Is a Treaty Signatory 16 There is no factual dispute that the Tribe is a signatory to the Treaty of Point Elliott. This 17 unassailable fact has been confirmed by numerous legal decisions. This Court has no reason to 18 depart from the conclusions of these courts. 19 Beginning in Snoqualmie Indian Tribe, et al. v. United States, 9 Ind. Cl. Comm. 25, 48 20 (June 30, 1960), the Indian Claims Commission (“ICC”) recognized that the United States had 21 extinguished the Indian title to Snoqualmie land “by virtue of the terms of the Treaty of Point 22 Elliott on January 22, 1855,” and that “the Snoqualmie Tribe held original Indian title to” a tract 23 of aboriginal lands. Id. Four years later, the ICC found that “[t]wenty-three tribal groups 24 participated in the Treaty [of Point Elliott],” specifically listing the Snoqualmie as a participant 25 and awarding the Tribe monetary compensation for the cession of lands. Upper Skagit Tribe of 26 Indians, et al. v. United States, 13 Ind. Cl. Comm. 583, 585-86, 588 (Aug. 13, 1964). 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 8 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 9 of 15

1 Shortly thereafter, in Snoqualmie Indian Tribe, et al v. United States, 15 Ind. Cl. Comm. 2 267, 310, 314 (May 7, 1965), the ICC again found that “at the time of the 1855 Point Elliott 3 Treaty, the Snoqualmie” was an “independent tribal entit[y],” and noted that the Tribe was “not 4 the first Point Elliott Treaty participant to claim the Skykomish Indians as their own.” Id. 5 In 1981, the Ninth Circuit Court of Appeals expressly recognized that Snoqualmie was 6 among the parties to the Treaty of Point Elliott. See U.S. v. Washington, 641 F. 2d 1368, 1370, n. 7 1 (9th Cir. 1981) (“The Duwamish, Samish, Snohomish, and Snoqualmie Tribes were parties to 8 the Treaty of Point Elliott, 12 Stat. 927 (signed January 22, 1855; ratified March 8, 1859; 9 proclaimed April 11, 1859).”) (emphasis added). 10 These judicial decisions are firm in establishing that the Snoqualmie was a party and 11 signatory to the Treaty of Point Elliott.

12 2. The United States Has Conclusively Determined That the Tribe Is a Treaty 13 Signatory and Had Political Continuity From Treaty Times In addition, the United States has made a number of findings which explicitly 14 acknowledge both the Tribe’s status as a Treaty signatory and provide the necessary political 15 continuity link between the modern-day Snoqualmie and the Treaty signatory entity. As part of 16 federal re-recognition, the United States issued a Final Determination for Federal 17 Acknowledgment. This document and related documents contain several key findings which 18 establish the Tribe’s status as a Treaty Tribe. 19 First, in the Department of the Interior’s 1997 Final Determination to Acknowledge the 20 Snoqualmie Tribal Organization, the Assistant Secretary of the Interior’s expressly stated that 21 “[t]he Snoqualmie tribe was acknowledged by the Treaty of Point Elliott in 1855 and continued 22 to be acknowledged after that point.” 62 Fed. Reg. at 45865. The recognition documents further 23 conclude that: 24  “Unlike some previous western Washington acknowledgment petitioners, Federal 25 recognition of a government-to-government relationship with the Snoqualmie Indian 26 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 9 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 10 of 15

1 Tribe existed clearly and continually from 1859, when the and 2 the President ratified the Treaty of Point Elliott . . .” Ex. A to Saimons Decl. at 4. 3  “Although the tribe lacked its own federally reserved land base, the BIA generally 4 recognized that the Federal Government maintained some level of responsibility for 5 the Snoqualmie as a result of the Point Elliott treaty provisions and the trust land 6 allotted to individual Snoqualmie members on the public domain.” Id. (emphasis 7 added). 8  “Between 1843 and 1847, a chief of the entire Snoqualmie tribe emerged . . . His 9 name was Pat Kanim . . . Pat Kanim was the second signer, after Seattle, of the 1855 10 Treaty of Point Elliott, a fact which reflects his importance.” Id. at 23. 11  “Ninety-six percent of the petitioner’s 313 members have established or can be 12 expected to establish descent from the Snoqualmie, a signatory tribe to the 1855 13 Treaty of Point Elliott.” Id. at 32 (emphasis added). 14  “The identification of a Snoqualmie tribal entity was established by the United States 15 in the governmental records of the territories of Oregon (1846–1853) and 16 Washington (1853–1889) and by a statute of 1859, whereby the U.S. Senate and the 17 President ratified the Treaty of Point Elliott of 1855, to which the Snoqualmie were 18 a signatory party.” Id. at 116 (emphasis added). 19 These findings are entitled to judicial deference and establish—and indeed, explicitly 20 determine—that there can be no material dispute that the modern-day Snoqualmie descends from 21 the historical Snoqualmie tribe and is a signatory to the Treaty of Point Elliott. See, e.g., Cayuga 22 Nation v. Tanner, 824 F.3d 321, 328 (2d Cir. 2016) (giving deference to determination of federal 23 recognition).

24 3. The Decision in Washington II Neither Precludes a Finding that the Tribe 25 Was a Treaty Signatory Nor Provides a Basis to Abrogate Those Rights In denying Snoqualmie the ability to exercise its reserved hunting rights, Defendants 26 appear to exclusively rely on the Court’s finding in Washington II, 476 F. Supp. 1101. See Ex. C 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 10 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 11 of 15

1 to Saimons Decl. at 1; Dkt. 13. Judge Boldt’s determination, however, is significantly narrower 2 in scope than Defendants claim. 3 a. Judge Boldt’s Decision Was Categorically Limited 4 In holding that “[n]one of the five Intervenor entities whose status is considered in these 5 Findings is at this time a political continuation of or political successor in interest to any of the 6 tribes or bands of Indians with whom the United States treated in the treaties of Medicine Creek 7 and Point Elliott,” the operative wording is the “at this time . . . in a political sense” limitation. 8 Washington II, 476 F. Supp. 1104 (emphasis added). As the Ninth Circuit Court of Appeals 9 explained years later in the context of the Samish Tribe, “Federal recognition is determinative of 10 the issue of tribal organization, the issue upon which the Samish were denied treaty fishing rights 11 in Washington II.” U.S v. Washington, 394 F.3d 1152, 1161, n.4 (9th Cir. 2005). The same holds 12 true for Snoqualmie. Without a confirmed tribal organization recognized by the United States, in 13 1979, it was not in the “political sense” able to assert treaty status in court. 14 In other words, rather than ruling that the Tribe no longer held treaty rights, Judge Boldt 15 ruled that the Tribe “presently” —i.e., in 1979 — on the facts before him, could not politically 16 claim such rights because it was not, at that time, recognized as a Indian tribe by the United 17 States. Washington II, 476 F.Supp. at 1111; see also United States v. Washington, 394 F.3d 18 1152, 1156 n.4 (9th Cir. 2005) (explaining that “[R]ather than ruling that the Samish no longer 19 held treaty fishing rights, the district court ruled that the Samish ‘presently’ did not hold such 20 rights.”). Indeed, if the Tribe had been recognized at the time it first sought an adjudication of is 21 treaty fishing rights, it “almost certainly” would have succeeded. United States v. Washington, 22 394 F.3d 1152, 1159 (9th Cir. 2005) (opining that the Samish “would almost certainly have won 23 the right to exercise its treaty fishing rights had the tribe been federally recognized at the time 24 of Washington II.”). 25 It would be erroneous to read Judge Boldt’s decision as forever foreclosing all treaty 26 rights for now federally-recognized Snoqualmie, particularly hunting and gathering rights which 27 were not before the Court. The language Judge Boldt used left the door open for this case. 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 11 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 12 of 15

1 b. Circumstances Have Materially Changed 2 Additionally, the Washington II decision as to Snoqualmie’s treaty status is not binding 3 on this Court because the Tribe’s present circumstances are both factually and legally 4 distinguishable from what they were at the time of that decision. 5 Defendants assert as an affirmative defense in their Answer that “[r]es judicata bars 6 Plaintiff’s claims.” Dkt. 13 at 9. But the rationale underlying the doctrine of res judicata shows 7 that it has no application here. Res judicata is intended to prevent calculated claim splitting and 8 the relitigation of claims that a party litigated or could have fully litigated in a prior proceeding. 9 See, e.g., Schaafsma v. Marriner, 634 F. Supp. 812, 814-15 (D. Vt. 1986). Its application makes 10 no sense where, as in this case, facts or law that were not applicable at the time of the initial 11 litigation allow a party to bring a new, distinct claim that, by definition, it has not had an 12 opportunity to fully litigate. See id. Washington II simply does have the preclusive effect that 13 Defendants assert, nor is the Court is not bound by that decision on this issue. 14 Over 40 years have passed since Washington II was decided. In that period, many things 15 have changed for the Tribe, the most notable of which is regaining federal recognition. Where, 16 as here, there is a new legal landscape, stare decisis is no longer an appropriate basis for relying 17 on a decision. Oregon Natural Desert Ass’n v. US Forest Service, 550 F. 3d 778, 786 (9th Cir. 18 2008); American Trucking Ass’n, Inc. v. Scheiner, 483 U.S. 266, 302 (1987) (finding that a 19 court may depart from precedent where “[s]ignificantly changed circumstances ... make an older 20 rule, defensible when formulated, inappropriate.”). 21 The federal recognition of the Tribe fundamentally changed the legal landscape as to 22 Snoqualmie and cured the “in a political sense” problem relied upon by Judge Boldt. See Ex. A 23 to Saimons Decl. No Court has ever analyzed whether the federally-recognized Snoqualmie has 24 reserved treaty hunting and gathering rights. 25 c. United States v. Washington Is Limited to Fishing 26 The missed opportunity in Washington II, based on the Tribe’s lack of recognition at that 27 time, to adjudicate its fishing rights does not extend beyond Snoqualmie’s fishing rights. 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 12 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 13 of 15

1 Importantly, discussing the inability of the Samish Tribe to reopen the judgment in United 2 States v. Washington to assert treaty fishing rights after it achieved federal recognition, the 3 Ninth Circuit Court of Appeals noted that although the “[f]our other federally unrecognized 4 tribes [that] intervened along with the Samish Tribe: the Duwamish, Snohomish, Snoqualmie, 5 and Steilacoom Tribes . . . were unsuccessful in establishing entitlement to treaty fishing rights,” 6 “[n]othing we have said precludes a newly recognized tribe from attempting to intervene in 7 United States v. Washington or other treaty rights litigation to present a claim of treaty rights 8 not yet adjudicated.” U.S. v. Washington, 593 F. 3d 790, 801, and 800, n.3 (9th Cir. 2010) 9 (emphasis added). There can be no material dispute that Snoqualmie’s treaty hunting rights have 10 not yet been adjudicated. 11 The United States v. Washington litigation was expressly limited to adjudicating tribal 12 fishing rights, and it is not true that the lack of adjudicated fishing rights either means that the 13 Tribe is not a Treaty Tribe or that the Tribe also lacks reserved hunting and gathering rights. 14 The Washington II decision was limited to the fishing rights under the Treaty; the tribes did not 15 seek, and the Court did not express, an opinion on any aspect of the right to hunt under the 16 Stevens Treaties. v. Goldmark, 994 F.Supp.2d 1168, 1174 (W.D. Wash. 17 2014) (noting that “the scope of the hunting and gathering provision has not been previously 18 litigated in federal court.”). Thus, because the reserved right of the Tribe to hunt and gather 19 pursuant to the Treaty of Point Elliott is a claim of treaty rights heretofore not yet adjudicated, 20 Washington II cannot preclude a finding that Snoqualmie was a signatory to the Treaty of Point 21 Elliott for purposes of exercising its hunting and gathering rights once it regained recognition 22 that concluded the necessary political continuity to the treaty signors. 23 d. Courts Cannot Abrogate Treaty Rights 24 Finally, as discussed below, even if Judge Boldt’s words are read as the State would 25 argue, they cannot, as a matter of law, have the meaning the State ascribes to them. No court 26 can, by judicial fiat, unilaterally abrogate a reserved Treaty right. This is particularly true when 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 13 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 14 of 15

1 the reserved rights in question—hunting and gathering—were not even before the Court. Only 2 Congress can do so, and it has not done so here.

3 C. There Is No Dispute of Fact that Congress Has Never Abrogated Snoqualmie’s Treaty Rights 4 As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved 5 to them, unless such rights were clearly relinquished by treaty or have been modified by 6 Congress. United States v. Dion, 476 U.S. 734, 738 (1986). Although Congress has the power to 7 abrogate the provisions of an Indian treaty, that power is only to be exercised only “when 8 circumstances arise which will not only justify the government in disregarding the stipulations of 9 the treaty, but may demand, in the interest of the country and the Indians themselves, that it 10 should do so.” Id. (citing Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903)). Moreover, any 11 intention by Congress to abrogate Indian treaty rights must be “clear and plain.” Dion, 476 U.S. 12 at 738; Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 13 658, 690 (1979) (“Absent explicit statutory language, we have been extremely reluctant to find 14 congressional abrogation of treaty rights....”); Menominee Tribe of Indians v. United States, 391 15 U.S. 404, 412 (1968) (“We decline to construe the Termination Act as a backhanded way of 16 abrogating the hunting and fishing rights of these Indians”). 17 It is of critical importance that Snoqualmie’s treaty-reserved hunting and gathering rights 18 have never been abrogated or diminished by any act of Congress. Such an act would require 19 “clear evidence that Congress actually considered the conflict between its intended action on the 20 one hand and Indian treaty rights on the other, and chose to resolve that conflict 21 by abrogating the treaty.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 22 202–03 (1999). No such evidence—nor any indication of any Congressional action—exists here. 23 And, Defendants have never alleged, in defense of their refusal to recognize Snoqualmie’s 24 hunting and gathering rights, that such an act has occurred. 25 Consequently, Snoqualmie retains the reserved hunting and gathering rights guaranteed 26 by the Treaty that it signed. 27 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 14 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600 Case 3:19-cv-06227-RBL Document 14 Filed 01/14/20 Page 15 of 15

1 IV. CONCLUSION 2 There is no dispute of material fact that the Snoqualmie Tribe is a signatory to the Treaty 3 of Point Elliott and that the Tribe’s reserved rights under the Treaty of Point Elliott have not 4 been abrogated by Congress. Based on the foregoing, the Tribe is entitled to and respectfully 5 seeks a declaration from the Court establishing its status as a Treaty signatory and affirming its 6 reserved hunting and gathering rights thereunder. 7 DATED this 14th day of January, 2020.

8 By: /s/ Rob Roy Smith 9 Rob Roy Smith, WSBA No. 33798 Email: [email protected] 10 Rachel B. Saimons, WSBA No. 46553 Email:[email protected] 11 Claire R. Newman, WSBA No. 46200 Email: [email protected] 12 Kilpatrick Townsend & Stockton LLP 13 1420 Fifth Avenue, Suite 3700 Seattle, Washington 98101 14 Tel: (206) 467-9600 Fax: (206) 623-6793 15 Attorneys for Snoqualmie Indian Tribe 16 17 18 19 20 21 22 23 24 25 26 27 72889457V.1 28 SNOQUALMIE INDIAN TRIBE’S MOTION KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 FOR PARTIAL SUMMARY JUDGMENT - 15 SEATTLE, WA 98101 CIVIL ACTION NO. 3:19-cv-06227-RBL (206) 467-9600