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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 SNOQUALMIE INDIAN TRIBE, 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 JAY INSLEE 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 Snoqualmie people. 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 Treaty of Point Elliott 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 Isaac Stevens for the 7 United States with tribes in what was then the Washington Territory. Treaty Between the United 8 States & the Dwamish, Suquamish, & 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 Lummi, Skagit, and Swinomish, 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”).