and fishing and today i stand before this panel asking for the opportunity to enforce a calm which is constitutionally protected interest only against the sequoyah officers ok i've got a couple of really fundamental questions i'd like to get all the way just to make sure that i understand that i understand so is are the lands that we're talking about here are they public lands blended issue or all only there by the state of washington or by the federal government or they are in private hands as  well the land that goes to the definition of open on unclaimed what we're looking at is to regulate principally those lands that are in public ownership or de main there may be some private lands that we have access to and that has not hunt in these in these lands and you want the same right that we that you've been given over the overfishing is that correct yes the regular us versus washington settles these questions we believe that in u we washington the court laid out some fundamental principles one that the treaty as a reservation of rights it is not a grant of rights and this goes back even to earlier to wine it's so in the drafting of the treaty we reserve the right to go at a described by george gibson as eight hundred fifty four fifty five journal we think that those findings defined the geographic boundaries of it the minimum where we can go and we think that's consistent with state law as well that recognizes the reservation of point elliott which the supply missed members belong to a separate treaty from ours and they said under the point only a treaty of course they can go to their ceded area the lands that they conveyed to the united states and they can go to other lands that they either hunted on and or actually decide that they actually hunted on and occupied over an extended period of time principally around treaty times and in this situation we believe in us who washington our territory and our point no point seated area an area where they could not have reserved a right it was never theirs to begin with and we think that in us we washington explains that a bit more and there specific findings in that case for example in hood canal because they open the west side of a canal in the olympics far removed from the point elliott seated area the court found in us free washington that the hood canal drainage south of port gamble area of the twana occupied it also the court found that the squamish did not occupy the territory described by gibbs which the twana long occupied and when you look at the treaty itself the treaty of point miche members in essence by stopping the sequoyah miche officers who are engaged in unlawful conduct and this is no different than a fund a lot band of chippewa indians  or mills were going to the regulation were saying that they cannot issue licenses permits or try to negotiate some backdoor deal to get into our area now if this court has concerns that we're attempting to assert some primary right over this glowworms or the lower oil well clown we would like gladly amend our complaint to remove any distinction between a primary right a secondary right or an invitational right and simply asked to yes that is that effectively what you're asking yes your honor we feel that they have no basis so in other words you're going to mend your complaint and get rid of this primary right stuff will get rid of all of that because obviously that is an issue where there are the primary right and your declaratory relief and the primary rate right man not only of first right but the right to exclude anybody else and we feel that if we have been given the opportunity to amend our complaint sh hunted and that they have reserved their rights in and those are not overlapping parcels am i correct that that's your basic theory it is our basic theory and if i understand the quote machine theory their theory is no it's an undivided right in the whole basically you understand we would interpret their theory as to be the flip we believe that the treaty is a reservation of rights we can go where we went at treaty times subject to those other conditions that we would have recognised views of each other to decide well between those two competing theories of interpretation of the treaties we feel sick amish that that issue has long since been resolved since wine and so on on the treaties are reservation they louder you to go and are just what you need tell me give me a paragraph give me a page of a particular case where we have decided this visa v hunting grounds as opposed to fishing grounds all i can say are honors with those those are very those are very different problems dealing with the taking of fish vs the taking of game the again the closest case that we have is a state of washington case in which the us supreme court and declined to take cert they analyzed it based on a wine and test where the trees were a reservation of rights and you could only go to see that you're doing a pretty high level of abstraction so did that case deal with hunting rights it did it was specifically about a point eliot tribes hunting within the  area far to the east removed from their territory the washington supreme court said specifically that that and to quote them  that the point only a tribe such as sequoia mission may open their area to hunting their territory ceded to the united states described in article one of the treaty of point elliott or areas that are proven to have been actually used for hunting and occupied by the tribe over an extended period of time they went back and looked at wind ins and the other reservation of rights this is the washington supreme court case yes and it is one thirty eight washington second one eighty six and search was denied to ask you whether when you asked to amend the complaint when you asked judge leighton did you did you in the motion advised him that you wanted to proceed to leading with the leading the claim of primary rights we were not given an opportunity to submit a motion the court denied the request and said that there was no factual basis to permit a men into the complaint because rule nineteen preclude that and so we simply took an appeal right but it wasn't a really saying based on way you've played it now there's no way to repleat it because really what you were plea i mean i don't have any idea that the court had any idea in his head that you were going to give up your primary right theory nobody had suggested that in this record we had argued again at the district court level that this was a reservation of rights and that they couldn't come into our area because the area was never there was to begin with we did not specifically indicate to judge leighton that we would seek to amend with respect to that we felt that we could narrow the morning if a claim is patently frivolous you don't that this record does not need to nestle find that person a necessary party we feel that the reservation of rights doctrine is such a founded foundation foundational principle it's hornbook law that they don't have a claim and when you read it in context of what was argued in state if you can and we should be allowed to at least keep them out we can understand how tried could suggest if to if this afternoon my counsels is in session cut a regulation to open up idaho to hunting in within the next person territory how would that be consistent with the concepts of reservation of rights under the treaty it's completely flies in the face of that council are you able to make a representation as to what the scholars regard as the appropriate legal theory of these treaties thank you i give you i gave you what i thought was were was my  believe the same as the as the as the squamish yes so that they have a different view from you potentially ok but but they but they are not represented in this case but they would they be bound by that if we decided that question in  feel that within a seated area you have the ability to exclude others that don't belong to that here's the problem councillor if you've tried to pick off the squamish here you've taken you' what looks like a sort of a big rumble and made it into a tennis bracket which are going to pick one a one off at a time and if we were to decide the question between you and the squamish each surely would have collateral consequences for the column and perhaps one of the tribes that represented the table to hear today and they're not they're not in that case so there are there are there are important collateral consequences to other tribes that's what was recognized in gold mark what the judge layton recognized here even if this court believes that those other parties are necessary we make the argument under rule nineteen be that in equity and fairness we'd be able to proceed forward the basis for that is the the alternative is truly draconian i mean we are then faced with really two options one promulgating a regulation to open an area that is truly absurd sending a tribal member there so that they are arrested and federally prosecuted the alternative is to use our special law enforcement commissions issued by the federal government and arrest member within the area and then allow a civil rights action to proceed thaller through this court you have no other way of going do united states than asking them to convene some kind of a proceeding here they have declined our request we have made multiple request over the years the problem they have is they believe that they have conflicting interests between their trustee their clients and that they have just stepped back it's not unlike in the us or washington where we were aligned all on one issue ok i'm sorry when i was going to say we're here if we're out of the declaratory judgment action or now just in the injunction action and you've amended to just have an injunction why is that this that this is a necessary thing for this court to take on or any chord take on when you suggest all you've got to do is tear up the paper that  right we would likely then be back into the same the concern that we have is that once we tear up the paper with the school alms then we may have another neighbor who comes forward and says like one all or them to the squawks and then we have to tear now well within our territory this is i mean that's well i was trying to do is say why would you have to go with an injunction if you can just revoke the agreement you've entered into i'm trying to get to that i want to get that in the in the record because that to me seems pretty important before i give an injunction so even if we were to revoke everyone else's permission and say within this area we're closing it to everyone else and then all we contemplated that possibility but we felt that an equity under rule nineteen b that this would be the better alternative only going after that one that actor if you have twenty if you have a water rights case and you have senior water rights here all the way down to twenty people which in your water rights why do you have to sue every single one to get to that one bad actor in the middle because you cause so much more harm well certainly going to do that tribe who never had the opportunity of challenging that their only option would be to come in and seek on bhangra view for certain review so if this court were so inclined to remand this back to the district court we would consider amending our complaint permit the judge and essence revoking the permission of all of the other tribes that potentially could access our area and name them then there has to be some limitation on that and you would you would name them by revoking you would then name them as what name them as defendants here i guess when and where is a waiver of sovereign immunity there wouldn't be a waiver we would have to go after their officers because some of them a promulgated regulations within our what we perceive as our territory  the problem is we want to be able to for example get next purse because we have no indication that they've opened up the west the olympic mountains they're far removed from that area when there has to be some to the tribes but it's it's really important really these are rights that run with the land and i think that we can distinguish the court elaine case because in court elaine they truly were seeking to quiet title or finding ownership of that  some urged land with respect to what we're doing we feel that the court is all that by the matter of federal law by treaty the geographic boundaries of that seeded are already established and our reservation of rights equitable really looking out of the regulations the regulations being the that are being implemented by those officers and so we're not looking to say that this is within our boundaries we're looking to say w what the district court has said in the case below stokoe mishra argued that it need not join any other tribe because this is all settled law the rights to hunt in these open unclaimed lands wherever those may be and they have not been adjudicated back to that point the rights museum mung the treaty tribes has been well settled established law that's the assertion judge layton put his finger right on that in his opinion with respect to the failure to join indispensable parties and said their case lives or dies based on the truth of that assertion that as well settled law judge layton looked at the u s versus washington cases primarily what's called the hood canal primary rights case i think that's six twenty six f's up fourteen zero five that's the case that's good coma she points to as where it was adjudicated that it has the primary rights over this vast wanted territory for not only fishing and hunting that's the case it cites to here and has previously in goldmark as well judge leighton looked at it and said this is not settled law affected every other stevens treaty tried for purposes of my question assume that i agree with you with your premises so far it looks to be like you know you're headed for you're headed for problems or you're headed for head on  conflicts that may result you know heaven forbid that would result in in violence that there's there's just going to be a headlong problem here how do you solve the problem of time to decide this question figure out some solutions mr lee's was suggesting a couple of things i think they have a lot of problems with them i'm not sure i have a better solution do you have to have a better solution i do as did judge layton so qualm excuse me argues that its primary rights to hunt on this open unclaimed land that it calls to wan territory was established in the united states versus washington case in one thousand nine hundred four united states versus washington is a continuing jurisdiction case with a permanent injunction paragraph twenty five a one of the continuing a permanent injunction allows any party to come before that court to enforce any of that court's orders or judgments it happens all the time your honors at the end you and you agree that that court would have jurisdiction over the hunting right that that suggests that you believe that they should have if their theory is correct that they should have gone to u s versus washington and i suspect that he would have opposed that we would have appeared and participated in the case and argued in opposition that the rights that they claim to the two and the primary hunting rights i seek to end have been forced under paragraph twenty five a one have never been established and then and then the court would kick you out and then you're right back where we are right now so how do you solve the problem of who who can who can get jurisdiction over everybody that you need to have jurisdiction over in order to dissolve and in order to decide this question i believe unless and until the tribes who this action would operate against waive their sovereign immunity that there is not a judicial solution and as the courts have said before not every problem has a solution to be found in federal court through education it's an aside but i think my client this aquash tribe believes that it along with the other treaty tribes ought to be working together and talking as sovereigns as co managers of this resource and how to sort through these things but back to the legal issues we can't speak to the policy so much here this morning but the legal issues in your directly on it the what is there are twenty some odd and forgive me for not knowing the exact answer stevens treaty tribes that have nearly identical language and that is a reservation of right to hunt on open an unclaimed lands there has been no federal determination as to what constitutes open and unclaimed lands generally or open an unclaimed lands as referred to in any one of those numerous specific treaties before you adjudicate litigation you know it would have to address the question of what are open and unclaimed lands but i suspect that as much as we would not like to address this in the twenty first century we probably have to confront the difference between a right and a privilege since those used those words are used there's a right to fish and only a privilege to hunt there is some fishing case law direction but yes whether or not that would transfer from the fishing context for usual and customary which is different than traditional hunting grounds that would certainly have to be adjudicated skokomish was discussing this state of washington case with you that does not control here somewhat shocking to counsel seated with me along with the counsel for two of th two other tribes from the point no point treaty will address the court right after me we also have to address where did this aquash predecessors travel to hunt and gather specific inquiry as to whether or not there is evidence as to where these native peoples moved who they interacted with how frequent did they go so buchanan really just says beyond open unclaimed who has what rights on open unclaimed land is a fact beyond inquiry your honour's right this is this is probably decades of litigation if we're going to go down this road where one tribe comes in names a group of tribal officials from squamish like it has and just declares that the one thousand five women in this case has resolved all of this for us i want the court if it hasn't already looked at what judge martine is rent  expansive primary fishing rights beyond hood canal judge martin so so judge judge leighton had to go look at us versus washington judge robert before him in the goldmark case had to go look at us as watching well now we hear from s versus washington just this last august and judge martinez in seventeen zero one said the one nine hundred eighty four case that was right up on in goldmark in this case and in seventeen  it did not establish broad primary rights in the tribe over natural resources and want to territory it specifically in only established primary fishing rights in the water body known as hood canal we submit that case was decided in judge martinez clarified with absolute certainty what was and was not settled in the one nine hundred eighty four primary rights case when that opinion was released i'd like to give counsel for the jamestown and court gamble cyclone tribes for a minute so all wrapped up ok are there more questions on this line before i launch into something well with respect to and perhaps we started the inquiry about is there a solution here the failure to leave to amend the complaint was correctly decided by the district court because it's futile this action fundamentally acts against the sovereign just as the court elaine and idaho case did in that case the court ruling tribes sought relief to dispossess the state of its use and regulatory jurisdiction over certain interests in the land that's what's happening here this is fundamentally a case both the kennedy portion and the o'connor portion said the ex parte young fiction does not apply you can't go up and just scoop up a bunch of tribal officials performing their governmental responsibilities trying to circumvent the the the significant fundamental state interest in its use and regulatory authority over property interests the chordal lane case is fantastic authority and thank the court for its reference to the parties for supporting and affirming the district court's decision that leave to amend would be futile and was therefore denied and the seed time to counsel thank you my name is lauren rasmussen for the port campbell's common themes towns tribes this is the third case we've had to participate in to defend the treaty of point no point which we signed with this could come as tribe in which in article one it recognized th shared and occupied the treaty territory together with become ish absent from the treaty is any language about a primary or superior right over the s'klallam absent from the treaty is any language of ability to exclude each other from the treaty territory i believe this case is a collateral attack on the s'klallam as ability you've heard this could come as tribe next time we're going to join you is what they said to the court as a proposal for amendment we're going to revoke this new fictitious theory that they're going to somehow exclude the primary right and proceed forward with this case is just a bunch of a shell game in all of these cases what they're seeking to do is deprive all the other tribes of their due process the right right they were seeking in u s b washington was merely a right to regulate and control fishing in the body of water in hood canal this agreement cannot be torn up because it's now a court order in that case so regardless of wh now that we can throw all this out and exclude this clown that agreement says we stipulate that we will never exercise or seek to exercise the primary right against this clown without their consent under any condition or for any reason whatsoever and nevertheless we've had to run to three courts reminding the become ish of their promises to us and telling the court they can't expand the primary right they have a bundle of sticks the bundle of sticks applies only to the usual accustom fishing grounds and stations cause of the treaty that is all they have in terms of a primary right adjudication and in fact they mislead the court and they tell the court on page three of their reply brief that finding of fact three fifty three describes this broad territory and they say that that means their primary right expanse that broad territory the court did not adopt finding of fact three fifty three as the territory this could come as tribe the to a court in conclusion of law ninety two found at six twenty six f stop at fourteen ninety one states we adopt finding of fact three fifty four and three fifty four specifically says that the territory is the water body of hood can now so they're not only misleading one court but they're misleading several courts in this is certain that finding of fact three fifty three is the one that governs their territory so we're starting with a fiction and then they're telling this a comic tribal council you violating the law by issuing these regulations but they're incorrect for two reasons the only prohibition on sequoia machines behavior is to not open fishing in hood canal so how should the sequoias tribe know that they're supposed to take a finding of fact the court never adopted apply it to hunting and then also overruled to open an unclaimed language in the treaty all of these things would have to happen for this becomes his theory of the case which is now completely changed from the district court to be to be valid and so it to go back to this court's assertion that we should consider sure money i would say that i would think that amendment would compete completely futile because what the proposed two amendment to the district court with become much proposed was to join this column as parties in that that would solve their part their problem well they've already been told by the goldmark ace if you're going to claim exclusivity if you're going to define the open unclaimed lands of the point no point treaty and what that means you had better come back here with this law on tribes otherwise they're an indispensable necessary party there's no public rights exception here and we will not we will not join them and in this case they cannot be joined for two reasons one because they still can't fix their problem of other tribes but two because the actions they're asserting are not illegal and in order for them to determine the actions are legal they need to some court like they did in us view washington let's remember these are cases where this could come we should ask the court for a determination that the primary right apply to fishing they're not doing that here they're skipping a step but is there any is there any solution to this problem well so as the court recognizes at the end of idaho vs court a lame when you're dealing with the relationship between tribal sovern only congress can resolve this there's no judicial restraint much the exercise and that is the last line of sight of a versus quarter line that says look sometimes there's not a solution here the problem derives from this expansive reading of coma shiz about the bundle of stick that they got in with the treaty the bundle of sticks the primary right that is not contained in the language of the treaty so if it's not contained in the language of the treaty they need some court to adopt their interpretation that the primary right to control a fishing water body should necessarily apply to a much broader territory and in order to establish primary rights in u s b washington they had to show exclusive claim of occupancy that they excluded all others a treaty time and this is in the us vs could come which case in that case tribes had to prove with with anthropological evidence that they excluded all others disco much can't do this because the territory they're claiming was jointly occupied per article one of the treaty s'klallam so even if they were to mend their complaint they can't solve the problem that the hunting right was to open in unclaimed lands not to use in a custom fishing grounds and stations and so as a result the claim cannot be fixed buchanan does not apply here the treaty interpretation has never happened that they're saying applies and it is this could come mice that are barred by res judicata from arguing fictitious things like finding a fact three and that is the area contested here they opened their officers hood canal even in the hood canal agreement that the squadrons wave in our face they stipulated and agreed that hood canal was twoness territory our territory and that we had legitimate territorial control over that treaty time that is the settlement that we felt three months of talking with a lot of fishing rights settlement of the way would say it appears that they blend them together but yes it was settlement of fishing rights over a hood canal ok the canal is different from before starting it well in our case we actually had in the four day trial have to argue hunting within that area the court had to make specific findings with respect to our water fowling i do make specific reflects the findings with respect to our use of guardian spirits to take certain marine mammals but within that area they have opened hood canal so if they stand on tide land in hood canal where we fish they are saying that we can exclude them from fishing but we can't exclude them from shooting a bird and so we find that an entirely to be a violation of that we believe that judge martinez erred and didn't have all the facts because the state as well as this walks untried and tension only withheld information that was pertinent to the mediation and we've recently disclosed that but again we feel that you can take from different cases and apply those and so even in wine and as we've argued that principle that the treaty was a reservation of rights they granted equitable servitude has been applied in many other context all we're asking us for the opportunity to take those findings that have been fully litigated and rely upon them to show our theory we had again have not completely changed our theory we said within who can now which is a component of our territory we reserve that is what article one says they in the article one of the point i'll introduce as something entirely different thank you thank you we thank all counsel for the for the argument in the case it is it has been helpful and it's a very vexing case and with that the court is