FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL GRONDAL, a Washington 

resident; MILL BAY MEMBERS 

ASSOCIATION, INC., a Washington 

non-profit corporation

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA; U.S.

DEPARTMENT OF THE INTERIOR;

BUREAU OF INDIAN AFFAIRS;

CONFEDERATED TRIBES OF THE 

COLVILLE RESERVATION,

Defendants-Appellees,

v.

WAPATO HERITAGE LLC; GARY 

REYES,

Defendants-Appellants,

and

FRANCIS ABRAHAM; PAUL G.

WAPATO, JR.; KATHLEEN DICK;

DEBORAH BACKWELL; CATHERINE 

GARRISON; MARY JO GARRISON; ENID 

T. WIPPEL; LEONARD WAPATO; ANNIE 

WAPATO; JUDY ZUNIE; JEFFREY M.

No. 20-35694

D.C. No.

2:09-cv-00018-

RMP

OPINION
2 GRONDAL V. UNITED STATES

CONDON; VIVIAN PIERRE; SONIA W.

VANWOERKOM; ARTHUR DICK;

HANNAH RAE DICK; FRANCIS J.

REYES; LYNN K. BENSON; JAMES 

ABRAHAM; RANDY MARCELLAY;

PAUL G. WAPATO, JR.; CATHERINE L.

GARRISON; MAUREEN M.

MARCELLAY; LEONARD M. WAPATO;

MIKE MARCELLAY; LINDA SAINT;

STEPHEN WAPATO; MARLENE 

MARCELLAY; DWANE DICK; GABE 

MARCELLAY; TRAVIS E. DICK;

HANNAH DICK; JACQUELINE L.

WAPATO; DARLENE MARCELLAYHYLAND; ENID T. MARCHAND; LYDIA 

A. ARNEECHER; GABRIEL 

MARCELLAY; MIKE PALMER; SANDRA 

COVINGTON,

Defendants.

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted August 9, 2021

Seattle, Washington

Filed December 30, 2021

Before: Carlos T. Bea, Daniel A. Bress, and 

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Bea
GRONDAL V. UNITED STATES 3

SUMMARY*

Bureau of Indian Affairs/Government’s Tribal 

Trust Duty

The panel affirmed the district court’s grant of the 

Bureau of Indian Affairs’ motion for summary judgment and 

ejectment order in an action brought by a group of 

recreational vehicle owners seeking to retain their rights to 

remain on a lakeside RV park located on American Indian 

land held in trust by the Bureau.

Decades ago, a group of recreational vehicle (“RV”) 

owners purchased fifty-year memberships to the RV park on 

a plot of land in Eastern Washington known as the Moses 

Allotment Number 8 (“MA-8”). However, the park’s 

management had validly leased the park’s land from its 

landowners for only twenty-five years. 

In the 1900s, the United States originally issued title to 

the land to American Indian Wapato John, a member of the 

Moses Band of the Columbia Tribe, as an “allotment” in 

trust: a distinct plot of land set aside for Wapato John. 

According to the federal statute establishing this trust, the 

land’s legal title vested in the United States, which was to 

hold the land in trust for ten years for Wapato John’s sole 

use and benefit. The land’s beneficial title (i.e., the land’s 

equitable title) vested in Wapato John. During the ten-year 

trust period, the land was to be managed by the Department 

of the Interior (now the Bureau of Indian Affairs) and was 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 GRONDAL V. UNITED STATES

subject to restrictions on alienation, encumbrance, and state 

taxation. That trust period for MA-8 has been repeatedly 

extended over the years (and these trust extensions 

correspondingly extended the restrictions as well) such that 

to this day, the Bureau of Indian Affairs (“BIA”) continues 

to hold legal title to the land in trust for beneficial interests 

of Wapato John’s heirs, referred to as the individual allottees 

(“IAs”), and also for the Wapato Heritage LLC (“Wapato 

Heritage”), and the Confederated Tribes of the Coleville 

Reservation. The BIA’s trust status, however, is in dispute. 

In 1979, William Wapato Evans, Jr.. an heir of Wapato 

John, obtained approval from a majority of other IAs to lease 

the entirety of MA-8 to develop a recreational vehicle 

park—the Mill Bay RV Park. Evans negotiated and signed 

a Master Lease in 1984, under which the IAs leased use of 

MA-8 to Evans for a term of twenty-five years, but Evans 

retained an option to renew the lease for another twenty-five 

years. Thereafter, Evans developed and sold regular and 

expanded memberships to purchasers to use and park their 

vehicles in the RV park. After Evans’s death, his company 

Wapato Heritage obtained Evans’s interest under the Master 

Lease as the lessee of the MA-8 land. The Master lease 

expired in 2009, leaving unexercised the option to extend. 

See Wapato Heritage, LLC v. United States (Wapato 

Heritage I), 637 F.3d 1033, 1040 (9th Cir. 2011). 

Plaintiffs, Mill Bay Members Association (“Mill Bay”) 

and RV owner Paul Grondal, filed this lawsuit seeking a 

declaratory judgment that would recognize their right to 

remain on MA-8 through 2034. In January 2010, the district 

court handed down the first order here on appeal. This order 

dealt with cross-motions for summary judgment by plaintiff 

Mill Bay, which claimed the right to retain possession of the 

MA-8 land used by its membership for their RVs, and by 
GRONDAL V. UNITED STATES 5

defendant the BIA, which counterclaimed in trespass and 

sought Mill Bay’s ejectment from the property. In that 2010 

order, the district court rejected Mill Bay’s attempt to remain

on MA-8 and denied Mill Bay’s claims for estoppel, waiver 

and acquiescence, and modification. After the district 

court’s 2010 order, proceedings were significantly delayed 

due to concerns the court had with the IA-defendants’ lack 

of legal representation. These representation issues are the 

subject of this case’s companion appeal, Wapato Heritage 

LLC v. United States, No. 20-35357 (9th Cir. 2021), which 

the panel decided by a separate memorandum disposition. In 

2020, the district court handed down the second ruling here 

on appeal. In this 2020 order, the district court granted the 

BIA’s motion for summary judgment for trespass and 

ordered Mill Bay removed from MA-8. Mill Bay appealed 

and defendant Wapato Heritage joined Mill Bay’s appeal on 

the issue of the BIA’s standing to bring a trespass 

counterclaim on behalf of the IAs. 

The panel first held that the MA-8 land remains held in 

trust by the United States, and the BIA, as holder of legal 

title to the land, had and has standing to bring its claim for 

trespass and ejectment against Mill Bay. The panel held that 

of the three transactions and trust extensions in MA-8’s 

history that appellants challenged, none were legally 

deficient. The panel therefore first rejected the assertion that 

the MA-8 allotments vested legal title in the IAs in fee 

simple rather than in trust. The panel noted that the Supreme 

Court in Starr v. Long Jim, 227 U.S. 613, 621–22 (1913), 

held that the 1883 Moses Agreement and its implementing 

legislation, the Act of July 4, 1884, did not guarantee title in 

fee but instead permitted the United States to hold the 

allotments in trust. The panel next rejected appellants’ 

assertion that when President Wilson extended the trust 

period for MA-8 until 1926 through his 1914 executive 
6 GRONDAL V. UNITED STATES

order, he did so without statutory authority. The panel held 

that the Act of June 21, 1906, gave President Wilson the 

lawful authority to extend the trust period of the Moses 

Allotments through his 1914 executive order. Finally, the 

panel rejected appellants’ argument that MA-8’s trust period 

was not properly extended in 1936 after the passage of the 

1934 Indian Reorganization Act (“IRA”). Based on the 

well-reasoned conclusion of the district court and the weight 

of the evidence in the record, including contemporary 

interpretations and consistent treatment for nearly a century, 

the panel rejected the argument that the Moses Allotments 

were non-reservation land outside of the scope of the 1934 

IRA and its 1935 Amendment. The panel therefore affirmed 

the district court’s conclusion that the 1935 Amendment 

extended the Moses Allotments’ trust status.

Mill Bay next asserted that the BIA should be precluded 

under res judicata from seeking ejectment due to the BIA’s 

involvement in 2004 state court litigation (“Grondal state 

litigation”) that resulted in a 2004 Settlement Agreement 

permitting Mill Bay the right to use the property through 

2034, in compliance with the Master Lease. The panel noted 

that the BIA was not itself a party to the Grondal state 

litigation or the 2004 Settlement Agreement. Nor was the 

BIA in privity with Wapato Heritage, concededly one of the 

parties to the Grondal state litigation. And Wapato 

Heritage’s interest as the lessee under the Master Lease was

quite different from the BIA’s interest as trustee for the 

lessors under the same lease. Even setting aside that 

different parties were involved in the Grondal state litigation 

and in this lawsuit, the two cases also involved different 

claims. The panel therefore rejected Mill Bay’s argument 

that the IAs and the BIA were precluded under res judicata 

from ejecting Mill Bay. 
GRONDAL V. UNITED STATES 7

The panel rejected Mill Bay’s assertion that Paragraph 8 

of the Master Lease required Mill Bay’s purported subleases 

to be preserved and assigned rather than cancelled because 

of the termination of the Master Lease. The panel held that 

Paragraph 8 of the Master Lease did not apply at all because 

the Master Lease was not terminated by cancellation or 

otherwise. Paragraph 8 did not apply when the Lease expires 

by the passage of time, as happened here. 

Finally, Mill Bay argued that, based on the BIA’s alleged 

prior representations that Mill Bay would be able to remain 

on MA-8 through 2034, the court should apply equitable 

estoppel to prevent the BIA from seeking Mill Bay’s 

ejectment. The district court concluded the equitable 

estoppel defense was not available under United States v. 

City of Tacoma, 332 F.3d 574 (9th Cir. 2003), which holds 

that the United States is not subject to equitable estoppel 

when it acts in its sovereign capacity as trustee for Indian 

land. The panel concluded that City of Tacoma was not 

distinguishable, and that Mill Bay was barred from asserting 

its defense of equitable estoppel against the BIA.
8 GRONDAL V. UNITED STATES

COUNSEL

Sally W. Harmeling (argued), Robert R. Siderius, Jacob M. 

Knutson, and Joseph Q. Ridgeway, Jeffers, Danielson, Sonn 

& Aylward, P.S., Wenatchee, Washington, for PlaintiffsAppellants Paul Grondal and Mill Bay Members 

Association, Inc.

Nathan Arnold (argued), Bruce Johnston, Emanuel 

Jacobowitz, Cloutier Arnold & Jacobowitz PLLC, Seattle, 

Washington; Tyler D. Hotchkiss and Dale M. Foreman, 

Foreman, Hotchkiss, Bauscher & Zimmerman, PLLC, 

Wenatchee, Washington; for Defendant-Appellant Wapato 

Heritage, LLC.

Manish Borde (argued), Borde Law PLLC, Seattle, 

Washington, for Defendant-Appellant Gary Reyes.

Joseph P. Derrig (argued), Assistant United States Attorney; 

Joseph H. Harrington, Acting United States Attorney; 

United States Attorney’s Office, Spokane, Washington; Jean 

E. Williams, Acting Assistant Attorney General; John L. 

Smeltzer, Attorney; Environment & Natural Resources 

Division, United States Department of Justice, Washington, 

D.C.; for Defendants-Appellees United States of America, 

United States Department of the Interior, and Bureau of 

Indian Affairs.

Brian W. Chestnut (argued), Brian C. Gruber, and Anna E. 

Brady, Ziontz Chestnut, Seattle, Washington, for DefendantAppellee the Confederated Tribes of the Colville 

Reservation.
GRONDAL V. UNITED STATES 9

OPINION

BEA, Circuit Judge:

Decades ago, a group of recreational vehicle (“RV”) 

owners purchased fifty-year memberships to a lakeside RV 

park. But as it turns out, the park’s management had validly 

leased the park’s land from its landowners for only twentyfive years. This case embodies the efforts of those RV 

owners to maintain access to their vacation getaway after the 

end of the twenty-five-year lease term. Complicating 

matters, the land in question is American Indian land: It is 

fractionally owned by the heirs of American Indian Wapato 

John and is currently held in trust by the United States’ 

Bureau of Indian Affairs (“BIA”), although that trust status 

is very much in dispute.

In the litigation below, the RV owners sued to retain their 

rights to remain on the RV park through 2034; the BIA is a 

defendant by dint of its now-challenged status as trustee of 

the at-issue land. But once sued, the BIA quickly took the 

offensive with a counterclaim for trespass and ejectment 

against the RV owners who have admittedly continued to 

possess the RV park, even after the lease expired.

In this appeal, we consider the district court’s grant of 

the BIA’s motion for summary judgment on that 

counterclaim. To rule, we must delve into the 19th-century 

origins of Wapato John’s trust land; interpret 20th-century 

executive orders and treaties; apply 21st-century estate 

statutes; and consider the barrage of legal arguments 

presented to us. After considering all that, and more, we 

affirm.
10 GRONDAL V. UNITED STATES

I. BACKGROUND

A. The Land at Issue

Moses Allotment Number 8 (“MA-8”) is a plot of land 

in eastern Washington; the RV park is on that land. In the 

1900s, the United States originally issued title to this land to 

American Indian Wapato John, a member of the Moses Band 

of the Columbia Tribe, as an “allotment” in trust: a distinct 

plot of land set aside for Wapato John. According to the 

federal statute establishing this particular trust, the land’s 

legal title vested in the United States, which was to hold the 

land in trust for ten years for Wapato John’s sole use and 

benefit. The land’s beneficial title (i.e., the land’s equitable 

title) vested in Wapato John. During the ten-year trust 

period, the land was to be managed by the Department of the 

Interior (now the BIA) and was subject to restrictions on 

alienation, encumbrance, and state taxation. That trust 

period for MA-8 has been repeatedly extended over the years 

(and these trust extensions correspondingly extended the 

restrictions as well) such that to this day, the United States 

continues to hold legal title to the land, in trust for Wapato 

John’s heirs.

Today, beneficial ownership in MA-8 is rather 

fractionated. Twenty-seven heirs of Wapato John—here, 

referred to as the individual allottees (“IAs”)—own separate, 

undivided beneficial interests in the land. Wapato Heritage, 

LLC (“Wapato Heritage”) and the Confederated Tribes of 

the Colville Reservation (the “Tribe”) also hold undivided, 

beneficial interests in MA-8.1

 The BIA retains legal title as 

1 The Tribe owns a 32.2% interest in the land and Wapato Heritage 

(owned by the grandsons of a deceased individual allottee by the name 

of William Wapato Evans, Jr.) holds a 23.8% interest as a life estate; this 
GRONDAL V. UNITED STATES 11

trustee to all such beneficial interests held by the IAs, 

Wapato Heritage, and the Tribe.

Throughout most of 20th century, MA-8 was left 

unimproved. But in 1979, William Wapato Evans, Jr. (an 

heir of Wapato John and then-holder of an approximately 

5% beneficial interest in MA-8) sought to improve MA-8 

and thereby generate income for himself and the other IAs. 

At that time, the IAs between them owned the vast majority 

of the beneficial interest in MA-8, and per BIA regulation, 

Evans obtained approval from a majority of those IA 

interests to lease the entirety of MA-8 to develop a 

recreational vehicle park (the “Mill Bay RV Park”). With 

approvals in hand, Evans negotiated and signed the “Master 

Lease.”2

Under the terms of the Master Lease, signed in 1984, the 

IAs leased use of MA-8 to Evans for a term of twenty-five 

years, but Evans retained an option to renew the lease for 

another twenty-five years. To exercise this option, the 

Master Lease required Evans to provide written notice to 

both the Lessors (the IAs) and the BIA twelve months prior 

to the expiration of the original twenty-five-year term. The 

Master Lease permitted Evans to sublease the property upon 

written approval of the BIA and provided that such subleases 

would be assigned to the Lessors, rather than cancelled, if 

estate reverts to the Tribe after the death of Evans’ last living great 

grandchild. Separately, around 4.5% of the land is held in fee.

2 The Master Lease defines the “Lessee” as Evans, and the “Lessor” 

as individuals named in “Exhibit A.” As it happens, Exhibit A could not 

be located and may not exist, but, per prior litigation, the parties here 

agree that the individuals listed in Exhibit A are the IAs who owned the 

fractionated interests in MA-8 at the time the Master Lease was signed. 

The BIA, as trustee, signed the Lease on behalf of the IA Lessors.
12 GRONDAL V. UNITED STATES

the Master Lease itself was terminated “by cancellation or 

otherwise.” Evans subleased most of MA-8 to his 

corporation, Mar-Lu, Ltd.3 He also subleased a portion of 

MA-8 to a development corporation owned by the Tribe for 

the operation of a casino.

Thereafter, Evans, through Mar-Lu, developed and sold 

“regular memberships” to the Mill Bay RV Park. These 

“regular memberships” allowed purchasers to use and park 

their vehicles on the RV park on a first-come, first-served 

basis under the site plan of the Master Lease.4 Later, in 

1989, Evans obtained approval from the BIA to modify the 

site plan so that Evans could sell “expanded 

membership[s].” These expanded memberships, expressly 

subject to the terms of the Master Lease, granted members 

the “right to use” the Mill Bay RV Park and guaranteed them 

each a designated spot in the RV park.

B. Earlier Litigation

Two earlier lawsuits are relevant to this one. First is the 

Grondal state court litigation between Evans and some of the 

RV owners who had purchased regular or expanded 

memberships at his park. By 2001, the Mill Bay RV Park 

was losing money fast, and Evans notified RV owners who 

had purchased either a regular membership or an expanded 

membership that he would be closing the park. Some of 

those members—Paul Grondal and the Mill Bay Members 

Association, Inc. (“Mill Bay”)—sued in Washington state 

3 Evans also used his company “Chief Evans, Inc.” to conduct 

business.

4 Mill Bay’s motion to supplement the record dated December 16, 

2020, is GRANTED.
GRONDAL V. UNITED STATES 13

court to prevent the park closure.5 Evans died during the 

pendency of the litigation, at which point much of his assets 

were distributed by will to his company Wapato Heritage, 

including his rights under the Master Lease. The personal 

representative for Evans’ estate requested mediation of the 

Grondal state litigation.

At mediation, the parties settled and executed the 2004 

Settlement Agreement, ultimately deciding that the RV park 

would not be closed. The BIA was not named a party to the 

litigation and did not intervene as a party to the action; the 

BIA attended the mediation at the request of the parties but 

did not participate. Under the terms of the 2004 Settlement 

Agreement, Mill Bay and Wapato Heritage agreed that Mill 

Bay would have the right, subject to compliance with the 

Master Lease, to continued use of the Mill Bay RV Park 

through 2034. But it turned out that the Master Lease would 

not last near that long.

The second lawsuit was a federal court case concerning 

the Master Lease, which eventually reached this Court. 

Back in 1985, and shortly after signing the Master Lease, 

Evans had sent a letter to the BIA purporting to exercise the 

option to renew the Master Lease for 25 years through 2034. 

All parties to the Master Lease, as well as non-party the BIA, 

apparently assumed for the next twenty-two years that 

Evans’ letter was sufficient to exercise that option. The BIA 

never corrected Evans’ or Mill Bay’s understanding that the 

Mill Bay RV Park was properly leased through 2034, and 

Mill Bay made significant financial expenditures and 

commitments based on that understanding.

5 Mill Bay’s motion to take judicial notice dated May 21, 2021, is

GRANTED.
14 GRONDAL V. UNITED STATES

Upon later investigation, however, the BIA came to 

believe that Evans’ letter was insufficient. Recall that per 

the Master Lease, Evans could renew only by giving notice 

to both “the Lessor”—the MA-8 IAs—and to the BIA. But 

Evans had given notice only to the BIA, so in the BIA’s 

view, Evans (and Wapato Heritage, who took over as Lessee 

on the Master Lease after Evans’ death) had yet to 

successfully renew the Lease. In November 2007, the BIA 

sent a letter to Wapato Heritage that explained its position 

but noted that Wapato Heritage had two more months to 

notify the Lessor IAs and thereby properly exercise the 

renewal option. But instead of following that suggestion and 

so notifying the IAs, Wapato Heritage sent a response letter 

to the BIA disagreeing with the BIA’s interpretation of the 

Master Lease renewal provision.

In 2008, and after the end of the period in which Wapato 

Heritage could correct the insufficient 1985 lease renewal, 

Wapato Heritage filed suit against the United States, arguing 

that Evans’s 1985 letter had actually or substantially 

complied with the renewal notice terms of the Master Lease, 

or alternatively, that the BIA had approved the renewal and 

extended the lease’s length. The district court ruled for the 

BIA, dismissing all of Wapato Heritage’s claims either on a 

motion to dismiss or on summary judgment, and confirmed 

the BIA’s understanding of the Master Lease: The IAs, not 

the BIA, were the “Lessors” and Evans had failed properly 

to notify the Lessor IAs of his intention to exercise the 

renewal option. See Wapato Heritage, LLC v. United States, 

No. CV-08-177, 2009 WL 3782869, at *3, *5 (E.D. Wash. 

Nov. 6, 2009) (granting the BIA’s motion to dismiss for lack 

of subject-matter jurisdiction and motion for judgment on 

the pleadings); Wapato Heritage, LLC v. United States, No. 

CV-08-177, 2008 WL 5046447, at *5, *8 (E.D. Wash. Nov. 

21, 2008) (granting in part the BIA’s motion for summary 
GRONDAL V. UNITED STATES 15

judgment). We affirmed. See Wapato Heritage, LLC v.

United States (Wapato Heritage I), 637 F.3d 1033, 1040 (9th 

Cir. 2011). The Master Lease expired in 2009, leaving 

unexercised the option to extend, and our 2011 decision has 

since become final as the Supreme Court has denied review.

C. The Present Lawsuit

After Wapato Heritage lost its lawsuit challenging the 

interpretation of the Master Lease, Grondal (Wapato 

Heritage’s purported sublessee under the Master Lease) and 

Mill Bay filed this lawsuit, seeking a declaratory judgment 

that would recognize their right to remain on MA-8 through 

2034.6 Here, Grondal and Mill Bay named as defendants the 

fractionated owners of MA-8 (i.e., the IAs, Wapato Heritage, 

and the Tribe) as well as the BIA, which acts on behalf of 

the United States as trustee for American Indian lands. This 

appeal pertains to two separate orders from this lawsuit: 

(1) the district court’s ruling of January 12, 2010; and (2) the 

district court’s ruling of July 9, 2020.

In January 2010, the district court handed down the first 

order here on appeal. This order dealt with cross-motions 

for summary judgment by plaintiff Mill Bay, which claimed 

the right to retain possession of the MA-8 land used by its 

membership for their RVs, and by defendant the BIA, which 

counterclaimed in trespass and sought Mill Bay’s ejectment. 

The BIA argued in its counterclaim that Grondal and Mill 

Bay no longer had any right to occupy MA-8 after the 

6 Mill Bay asserted six claims: estoppel; waiver and acquiescence; 

modification; agency abuse of discretion under the Administrative 

Procedures Act (“APA”); violation of the Fifth Amendment (namely, 

that the BIA’s determination that the tenancy expired in 2009 “deprives 

Plaintiffs of their property rights without due process of the law”); and 

declaratory judgment.
16 GRONDAL V. UNITED STATES

expiration of the Master Lease; on that basis, the BIA sought

their ejectment from the MA-8 property.

In that 2010 order, the district court rejected Mill Bay’s 

attempt to remain on MA-8 and denied Mill Bay’s claims for 

estoppel, waiver and acquiescence, and modification.7 The 

district court also reconstrued those three claims as 

affirmative defenses to the BIA’s trespass counterclaim, a 

characterization that appellants do not challenge, and took 

the opportunity to deny two of these affirmative defenses, 

namely: (1) that a provision of the Master Lease, paragraph 

8, requires the Lessor (the IAs) to permit Mill Bay as 

“sublessees” to remain on the property because the Master 

Lease was ended by “cancellation or otherwise,” and (2) that 

the 2004 Settlement Agreement precluded the BIA from 

ejecting Mill Bay under principles of res judicata. Finally, 

the district court denied as premature the BIA’s motion for 

summary judgment on trespass and ejectment.8

After the district court’s 2010 ruling, Wapato Heritage 

and Mill Bay changed litigation strategy. As part of the 2010 

ruling on the BIA’s counterclaim, the district court had 

7 The district court dismissed these three claims several reasons, 

including for failure to state a claim, issue preclusion, and lack of subject 

matter jurisdiction because of sovereign immunity. Separately, the 

district court granted the BIA’s motion for summary judgment on Mill 

Bay’s APA claim because there was no “final agency action” and on Mill 

Bay’s Fifth Amendment claim because the United States did not waive 

its sovereign immunity. Here, Mill Bay does not challenge the district 

court’s order granting the BIA’s motion for summary judgment on Mill 

Bay’s APA and Fifth Amendment claims.

8 Ten years later in 2020, the district court reconsidered its concerns 

as to prematurity, granted the BIA’s motion for summary judgment for 

trespass, and ordered Mill Bay removed from MA-8. This 2020 order is 

the second order here on appeal.
GRONDAL V. UNITED STATES 17

concluded that the BIA had authority as trustee for the MA8 land to bring a trespass counterclaim on behalf of the IAs 

but lacked contractual authority under the Master Lease to 

do so because the BIA was not a party to that lease. Seeing 

an opening, Wapato Heritage then decided to challenge for 

the first time the trust status of MA-8. This issue is 

important, because the BIA’s standing to pursue a trespass 

action against Wapato Heritage and Mill Bay depends on its 

status as holder of legal title as trustee to the MA-8 land. So 

when Wapato Heritage filed its answer to Grondal and Mill 

Bay’s lawsuit, it also filed a cross-complaint against the 

United States that challenged the BIA’s standing. Wapato 

Heritage argued that the trust period for MA-8 had expired 

at some point during the chain of trust period extensions that 

occurred throughout the 20th century.9 Even though Mill 

Bay named Wapato Heritage as defendant in its original 

complaint, Mill Bay soon took up Wapato Heritage’s trust 

argument in an effort to defend against the BIA’s 2020 

renewed motion for summary judgment, and Wapato 

Heritage and Mill Bay are now aligned on the trust issue.10

Finally, in July 2020,11 the district court handed down 

the second ruling here on appeal. In this 2020 order, the 

9 Wapato Heritage’s crossclaims—declaratory judgment, quiet title, 

and partition—all rely on the theory that MA-8 is no longer in held in 

trust but instead is owned outright in fee by the IAs.

10 This argument contradicts Mill Bay’s prior arguments, including 

assertions in Mill Bay’s complaint that the BIA “manages [MA-8] in 

trust.” It also contradicts an understanding evident in our prior decision 

in Wapato Heritage I. See 637 F.3d at 1035 (“The United States holds 

MA-8 in trust for Wapato John and his heirs . . . .”).

11 After the district court’s 2010 order, proceedings were 

significantly delayed due to concerns the court had with the IA-
18 GRONDAL V. UNITED STATES

district court granted the BIA’s motion for summary 

judgment for trespass (reconsidered its concerns as to 

prematurity) and ordered Mill Bay removed from MA-8. 

Mill Bay had argued in its defense that the BIA lacked 

standing to bring its trespass claim because the trust period 

for MA-8 had expired, depriving the BIA of its trustee status 

over MA-8 and thus of any injury-in-fact tied to Mill Bay’s 

presence on MA-8. On this standing argument, the district 

court found: (1) that Mill Bay was judicially estopped from 

arguing that MA-8 was not held in trust because that 

argument contradicted Mill Bay’s prior positions in the 

litigation; and (2) even if judicial estoppel did not apply, the 

trust period of MA-8 had not expired and the United States 

still held MA-8 in trust, thus giving the BIA standing. On 

the merits of the BIA’s counterclaim, the district court found 

Mill Bay to be trespassers, denied Mill Bay’s other defenses 

(including equitable estoppel), granted the BIA’s motion for 

summary judgment, and ordered Mill Bay ejected.

While the district court’s 2020 order left pending several 

crossclaims not at issue in this appeal,12 the order resolved 

defendants’ lack of legal representation. These representation issues are 

the subject of this case’s companion appeal, Wapato Heritage LLC v. 

United States, No. 20-35357 (9th Cir. 2021), which we decide by 

separate memorandum disposition.

12 The district court left pending crossclaims including Wapato

Heritage’s crossclaims against both the BIA and Wapato Heritage’s 

fellow defendants and the BIA’s crossclaim against Wapato Heritage. 

Wapato Heritage’s crossclaims sought equitable relief while the BIA’s 

crossclaim alleged that Wapato Heritage had failed to pay rent. Those 

claims are not raised on this appeal, and in any event, Wapato’s 

crossclaims concerning MA-8’s trust status were dismissed based on the 

district court’s finding that MA-8 remained held in trust by the BIA. See

Grondal v. United States, 513 F. Supp. 3d 1262, 1281 (E.D. Wash. 

2021).
GRONDAL V. UNITED STATES 19

all claims involving Mill Bay, so pursuant to Federal Rule of 

Civil Procedure 54(b), the district court found no just reason 

for delay and directed entry of final judgment against Mill 

Bay, allowing for immediate appeal. Mill Bay challenges

two issues from each of the district court’s orders13 and 

Wapato Heritage joins the appeal because our resolution of 

the trust status of MA-8 has preclusive effect upon its own 

crossclaims below. From the 2010 order, Mill Bay appeals 

the district court’s decision to reject its defenses based on 

Master Lease paragraph 8, and res judicata per the 2004 

Settlement Agreement. And from the 2020 order, Mill Bay 

appeals the district court’s decision to reject its defenses 

based on equitable estoppel, and on the BIA’s standing to 

represent the IAs as trustee of the MA-8 land. Wapato 

Heritage joins the challenge to the BIA’s standing.

The ejectment order against Mill Bay was in the nature 

of an injunction so we have jurisdiction under 28 U.S.C. 

§§ 1291 and 1292(a)(1). We affirm.

II. STANDARD OF REVIEW

“We review the district court’s grant of summary 

judgment de novo.” United States v. Milner, 583 F.3d 1174, 

1182 (9th Cir. 2009). Any deviations from this standard are 

noted below when applicable.

13 The district court’s 2010 order merges here with the 2020 order. 

See United States v. 475 Martin Lane, 545 F.3d 1134, 1141 (9th Cir. 

2008) (“[I]nterlocutory order[s] merge[] in the final judgment and may 

be challenged in an appeal from that judgment.” (quoting Baldwin v. 

Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976))).
20 GRONDAL V. UNITED STATES

III. DISCUSSION

Despite the considerable cast of characters just 

introduced and the extensive backstory just presented, this 

episode’s plot is relatively straightforward. In the district 

court’s 2020 order, it granted the BIA’s motion for summary 

judgment on the BIA’s counterclaim for trespass and 

ejectment. We are asked to examine the district court’s 

decision to deny four of Mill Bay’s defenses against that 

counterclaim. These defenses are: (1) the BIA lacks 

standing to bring a trespass claim as trustee on behalf of the 

IAs because the MA-8 property is not in fact held in trust by 

the BIA, (2) res judicata precludes the BIA from relitigating 

Mill Bay’s right to possess MA-8 because the BIA was 

involved in the Grondal state litigation that allegedly 

decided that same issue, (3) paragraph 8 of the Master Lease 

required Mill Bay’s purported subleases to be preserved and 

assigned rather than cancelled because of the termination of 

the Master Lease, and (4) the BIA is bound under equitable 

estoppel from reversing its previous alleged representations 

that Mill Bay would be permitted to remain on MA-8 

through 2034. We address each in turn.

A. The BIA’s Standing As Trustee of the MA-8 Land

First, both Mill Bay and Wapato Heritage appeal the 

district court’s conclusion that MA-8 remains held in trust 

by the United States. At the outset, they dispute the district 

court’s preliminary finding that Mill Bay is precluded from 

advancing this argument due to judicial and landlord-tenant 

estoppel. And on the merits, Mill Bay and Wapato Heritage 

reject the district court’s ruling that the United States still 

holds MA-8 in trust. As Mill Bay and Wapato Heritage 

would have it, MA-8 is no longer trust land, depriving the 

BIA of standing to bring a trespass claim on the IA’s behalf 

and seek Mill Bay’s ejectment from MA-8. We deal first 
GRONDAL V. UNITED STATES 21

with the estoppel issue and then proceed to the merits of Mill 

Bay and Wapato Heritage’s argument that MA-8 is no longer 

held in trust.

1. Estoppel Is No Substitute for Subject Matter 

Jurisdiction: This Court Must Determine the BIA’s 

Standing

Judicial estoppel is “not a substitute for subject matter 

jurisdiction.” Terenkian v. Republic of Iraq, 694 F.3d 1122, 

1137 (9th Cir. 2012). We, like any other federal court, must 

assure ourselves of our “jurisdiction to entertain a claim 

regardless of the parties’ arguments or concessions.” Id. We 

must always examine whether the claimant has legal 

authority to prosecute the claim before turning to the merits. 

See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 

(2004). Accordingly, estoppel cannot prevent us from 

analyzing the BIA’s standing.

“Judicial estoppel is an equitable doctrine that precludes 

a party from gaining an advantage by asserting one position, 

and then later seeking an advantage by taking a clearly 

inconsistent position.” Hamilton v. State Farm Fire & Cas. 

Co., 270 F.3d 778, 782 (9th Cir. 2001). The district court 

concluded Mill Bay deliberately changed its legal arguments 

in the middle of litigation to gain an advantage.14 But 

regardless the merits of that determination, Mill Bay’s 

theory—that the BIA lacks standing to bring its counterclaim 

because it does not hold legal title to MA-8 in trust—raises 

a legitimate Article III jurisdictional issue that we must 

examine; judicial estoppel does not permit us to dodge the 

14 Mill Bay originally argued that the BIA “manages [MA-8] in 

trust.” Its current position is the opposite: “MA-8 is not Indian-trust 

land,” depriving the BIA of any “authority to evict” Mill Bay.
22 GRONDAL V. UNITED STATES

question. On that basis, the district court erred in finding 

Mill Bay was estopped from arguing the trust period for MA8 had expired.

In addition to its judicial estoppel argument, the BIA 

argues that Mill Bay cannot contest the BIA’s authority to 

bring a trespass action under landlord-tenant estoppel. 

Under the general landlord-tenant estoppel rule, “a tenant in

peaceful possession is estopped to question the title of his 

landlord. This doctrine is, of course, designed to prevent a 

tenant from defending a suit for rent by challenging his 

landlord’s right to put him into possession.” Richardson v. 

Van Dolah, 429 F.2d 912, 917 (9th Cir. 1970). In other 

words, “[t]enants are never allowed to deny the title of their 

landlord, nor set up a title against him, acquired by the tenant 

during the tenancy, which is hostile in its character to that 

which he acknowledged in accepting the demise.” Williams 

v. Morris, 95 U.S. 444, 455 (1877).

Landlord-tenant estoppel does not apply here, however, 

because the BIA is not Mill Bay’s landlord: the IAs are. Mill 

Bay seeks to annul the BIA’s power to retake the MA-8 

property after the expiration of the Master Lease, and thus 

challenges the BIA’s trustee relationship to the IAs, not the 

beneficial or equitable title of the IAs, who are the lessors 

under the Master Lease.15 In other words, Mill Bay disputes 

the BIA’s status as a manager between the IAs and Mill 

Bay’s members; Mill Bay does not challenge the IAs’ 

underlying property rights over MA-8. So Mill Bay’s claim 

15 Contrary to the BIA’s assertion, Mill Bay’s claimed right to 

possess MA-8 is not due solely to agreements predicated on federal trust 

title. Mill Bay’s membership agreements were made under the Master 

Lease which, although approved by the BIA, originated by obtaining 

majority consent of the interests held by the lessor IAs.
GRONDAL V. UNITED STATES 23

is not hostile to the ultimate character of the contractual 

relationship between lessor (here, the IAs) and lessee (here, 

Mill Bay) in the same way that a tenant’s direct challenge 

would be hostile to a landlord’s title. Moreover, to the extent 

the BIA seeks to use landlord-tenant estoppel to preclude 

arguments implicating standing and federal court 

jurisdiction, that position is incorrect. Cf. Terenkian, 694 

F.3d at 1137 (“[J]udicial estoppel is not a substitute for 

subject matter jurisdiction . . . .”).

We hold that Mill Bay cannot be estopped from arguing 

that the BIA lacks standing to bring its trespass claim.16 We 

thus proceed and examine whether the United States holds 

the MA-8 land in trust.

2. An Abridged History of MA-8

To ground the forthcoming discussion of MA-8’s trust 

status, we begin with an abridged history of the MA-8 land.17 

Recall that this case concerns an allotment of land to Wapato 

John, a member of the Moses Band of the Columbia Tribe. 

The relevant history starts in 1855, when the United States 

entered into the Yakama Nation Treaty, which required 

members of the Columbia Tribe (along with three other 

tribes) to relocate to the Yakama Reservation in what is now 

eastern Washington state. But the tribes did not relocate; 

they continued to remain on their ancestral lands. Instead, 

Chief Moses of the Columbia Tribe negotiated a new treaty 

16 We need not address whether Wapato Heritage’s crossclaims are 

barred by sovereign immunity per the Quiet Title Act, 28 U.S.C. 

§ 2409a.

17 A more thorough history was compiled by Judge Peterson in the 

2020 order below. See Grondal v. Mill Bay Members Ass’n, 471 F. Supp. 

3d 1095, 1100–10 (E.D. Wash. 2020).
24 GRONDAL V. UNITED STATES

for his followers, resulting in the Executive Order of April 

19, 1879, and the creation of the Moses Columbia 

Reservation, just west of the already established Colville 

Reservation, itself located in north-central Washington. Yet 

again, and treaty notwithstanding, Chief Moses and most of 

his followers still did not relocate to the newly established 

Columbia Reservation but stayed on the ancestral lands of 

the Columbia Tribe.18

In 1883, Chief Moses, along with chiefs of the Colville 

Reservation, negotiated a third agreement with the United 

States: the “Moses Agreement.” The Moses Agreement 

again stipulated that the members of the Moses Band would 

relocate to a reservation—this time the Colville 

Reservation—but the agreement also provided for the 

issuance of allotments of individual parcels on the Columbia 

Reservation for those American Indians who wished to stay 

on that reservation. The remainder of the Columbia 

Reservation not parceled out as allotments to American 

Indians would be “restored to the public domain.”19 

Congress ratified the Moses Agreement in the Act of July 4, 

1884. Thereafter, Chief Moses led most of his people to the 

Colville Reservation, where their descendants largely 

remain to this day.

To address those American Indians who did not choose 

to relocate to the Colville Reservation and instead chose to 

stay on the Columbia Reservation, Congress passed the Act 

18 A small group did relocate.

19 In other words, the land of the Columbia Reservation that was not 

allotted to American Indians who had decided to stay became owned by 

the federal government.
GRONDAL V. UNITED STATES 25

of March 8, 1906.20 That Act provided that the United States 

would issue trust “patents” to each American Indian who 

stayed on the Columbia Reservation. These patents, the 

equivalent of modern-day property deeds, vested legal title 

to each land allotment in trust to the United States and 

beneficial title (i.e., equitable title) in the American Indian 

holder for a period of ten years, and provided that thereafter 

the land would pass to the American Indian in fee.21 Wapato 

John was one such American Indian who elected to stay on 

the Columbia Reservation and, in 1907 and 1908, he was 

issued trust patents for the MA-8 allotment, to be held by the 

United States in trust until 1916.

But the MA-8 trust patents were not to expire and 

convert to fee simple deeds in 1916 after all. As it happens, 

many American Indians had received trust patents that had 

expired before MA-8’s planned 1916 expiry and many of 

them had sold their allotments as soon as their periods of 

trust had ended. (The end of the trust period meant that the 

restrictions on alienation that accompanied trust status also 

ended.) Many of these land sales were “unwise or even 

procured by fraud,” County of Yakima v. Confederated 

Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 254 

(1992) (internal citations omitted), and so the sales became 

a matter of some significant public concern. To prevent 

further unwise or fraudulent sales, the United States settled 

on a policy in the early 20th century that sought to extend 

the trust period for all American Indian allotments and thus 

20 The record sheds little light on what happened to the MA-8 land 

between 1884 and 1906, and in any event, no party brings any legal 

arguments pertaining to that 22-year period.

21 As mentioned earlier, the patents also subjected the allotted land 

to restrictions on alienation and encumbrance during the trust period.
26 GRONDAL V. UNITED STATES

continue indefinitely to restrict alienation by requiring 

trustee approval of sales or other possessory interests.22 In 

accord with that policy, President Wilson issued Executive 

Order 2109 in 1914, which purported to extend the trust 

period on the Moses Allotments for an additional ten years 

through 1926. In 1926, President Coolidge issued another 

executive order again extending the trust period for ten years 

through March 8, 1936.

Recognizing the perceived failure of the allotment 

system given the many American Indians who had lost their 

allotted land through unwise or fraudulent transactions, 

Congress in 1934 enacted the Indian Reorganization Act 

(“IRA”), which indefinitely extended the trust period for all 

“Indian lands,” which includes MA-8.23 25 U.S.C. § 5102. 

However, the IRA contained an opt-out provision, which 

allowed reservations to choose not to be subject to the IRA 

(including the indefinite extension of the trust period) upon 

22 The Supreme Court has described why the trust restrictions 

became an enduring feature of United States policy:

Because allotted land could be sold soon after it was 

received, many of the early allottees quickly lost their 

land through transactions that were unwise or even 

procured by fraud. Even if sales were for fair value, 

Indian allottees divested of their land were deprived of 

an opportunity to acquire agricultural and other selfsustaining economic skills, thus compromising 

Congress’ purpose of assimilation.

County of Yakima, 502 U.S. at 254 (internal citations omitted).

23 Excluded from the definition of “Indian lands” was “Indian 

holdings of allotments or homesteads upon the public domain outside the 

geographic boundaries of any Indian reservation now existing or 

established hereafter.” 25 U.S.C. § 5111. As discussed in more detail 

below, MA-8 does not fall within this exclusion.
GRONDAL V. UNITED STATES 27

a vote of a majority of adult American Indians in the 

reservation. Id. § 5125. Congress amended the 1934 IRA 

the next year in the Act of June 15, 1935, which extended 

the trust period through December 31, 1936, for all those 

reservations that opted out of the IRA.

By the time Congress enacted the 1935 Amendment, the 

Moses Allotments were scheduled to fall out of trust status 

in March 1936, when the 10-year trust extension enacted by 

President Coolidge’s 1926 executive order would expire. 

But the Colville Reservation, including Chief Moses,24

voted to exclude itself from the IRA. And because the 

Moses Band was part of the Colville Tribe, and some of the 

Moses Allotments’ beneficial owners, Wapato John 

included, were members of the Moses Band, the BIA 

understood the Colville Reservation’s vote to exclude the 

Moses Allotments from the IRA too. Relying on this vote, 

the government applied the 1935 Amendment to the Moses 

Allotments also, thereby extending MA-8’s trust period 

through the end of 1936.25

President Roosevelt then extended the Moses 

Allotments’ trust period further by Executive Order 7464 in 

September 1936, and the Allotments’ trust period was 

further extended without controversy by additional 

executive orders and administrative action. Finally, in 1990 

Congress indefinitely extended the trust period of all lands 

24 Chief Moses, along with members of other tribes, would all soon 

form the Confederated Tribes of the Colville Reservation, defendantsappellees here.

25 The government’s basis for applying the 1935 Amendment to the 

Moses Allotments is analyzed in more detail below.
28 GRONDAL V. UNITED STATES

held in trust by the United States for American Indians. See

25 U.S.C. § 5126.

3. The Legal Status of MA-8 and the BIA’s Standing to 

Sue on the IA’s Behalf

The issues here involve interpretation of statutes and 

executive orders and are therefore reviewed de novo. See

United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 

2008).

Of the complex chain of trust period extensions and 

property transactions described above, Mill Bay and Wapato 

Heritage challenge three, and argue that legal deficiencies in 

each of these three steps independently deprive MA-8 of 

trust status, vest legal title in the IAs in fee simple, and strip 

the BIA of its powers as trustee and of its standing to seek 

ejectment in this suit.

i. Challenge One: Whether MA-8’s Trust Patent 

Was Issued Contrary to Law

Mill Bay and Wapato Heritage first argue that the Moses 

Agreement and its implementing legislation, the Act of July 

4, 1884, promised patents in fee, not patents in trust.26 So, 

they argue, the trust patents given to the IAs under the Act 

of March 8, 1906, were issued contrary to the Moses 

Agreement. The Supreme Court in 1913 examined this issue 

as to allotments under the Moses Agreement. See Starr v. 

Long Jim, 227 U.S. 613, 621–22 (1913). Justice Pitney, on 

behalf of a unanimous Court, held that the Moses 

Agreement’s language did not guarantee title in fee but 

26 The Act of July 4, 1884, stated that the allottees would be “entitled 

to 640 acres, or one square mile of land to each head of family or male 

adult, in the possession and ownership of which they shall be guaranteed 

and protected.”
GRONDAL V. UNITED STATES 29

instead permitted the United States to hold the allotments in 

trust. See id. at 623–25. So we reject Mill Bay and Wapato 

Heritage’s claim that the MA-8 allotments were vested in fee 

simple rather than in trust by the Moses Agreement and the 

Act of July 4, 1884.

ii. Challenge Two: Whether President Wilson Had 

Statutory Authority to Extend MA-8’s Trust 

Period with his 1914 Executive Order

Mill Bay and Wapato Heritage’s second argument is that 

when President Wilson extended the trust period for MA-8 

until 1926 through his 1914 executive order, he did so 

without statutory authority. The 1914 executive order relied 

on two statutes to extend the trust period of MA-8: Section 

5 of the Act of February 8, 1887 (the “General Allotment 

Act”), and the Act of June 21, 1906. Mill Bay and Wapato 

Heritage argue that neither of the two statutes granted the 

President the authority to extend MA-8’s trust period. We 

need not address the General Allotment Act because we 

conclude that the 1906 Act provided a sufficient basis for 

President Wilson’s 1914 executive order.

The Act of June 21, 1906 provides:

Prior to the expiration of the trust period of 

any Indian allottee to whom a trust or other 

patent containing restrictions upon alienation 

has been or shall lie issued under any law or 

treaty the President may in his discretion 

continue such restrictions on alienation for 

such period as he may deem best . . . .

25 U.S.C. § 391. Mill Bay and Wapato Heritage argue that 

this act cannot support the 1914 executive order because it 

grants the President only the authority to extend “restrictions 
30 GRONDAL V. UNITED STATES

on alienation.” They argue that the authority to extend a 

“trust period” is different. The BIA responds that 

“restrictions on alienation” and “trust[s]” are not 

distinguishable from one another, and that the power to 

extend one should be read to be coextensive with the power 

to extend the other.

Mill Bay and Wapato Heritage’s position has some 

initial appeal. From a textual standpoint, a “restriction[] on 

alienation” and a “trust period” are different concepts. 

While both can be “continued,” i.e., extended in time, 

“restrictions on alienation” are substantive limitations on a 

trust beneficiary’s property rights but a “trust period” merely 

delineates when a trust expires. A second textual clue also 

points in Mill Bay and Wapato Heritage’s favor. The statute 

discusses “other patent[s] containing restrictions upon 

alienation,” which contemplates that a patent can be in a 

form other than a trust but still contain restrictions on 

alienation; if so, the restrictions on alienation applicable to 

those non-trust patents can be extended without the 

corresponding extension of any trust period. And a longstanding truth of federal Indian law aids Mill Bay and 

Wapato Heritage too. Historically, American Indian land 

held in trust generally had three main components: a 

restriction on alienation, a restriction on encumbrances, and 

a restriction on being subject to state taxation. See United 

States v. Mitchell, 445 U.S. 535, 544 (1980) (noting that the 

1887 General Allotment Act was meant to “prevent 

alienation of [American Indian] land and to ensure that 

allottees would be immune from the state taxation”); 25 

U.S.C. § 348; 25 U.S.C. § 349 (“At the expiration of the trust 

period . . . the Secretary of the Interior may . . . cause to be 

issued to such allottee a patent in fee simple, and thereafter 

all restrictions as to sale, incumbrance, or taxation of said 

land shall be removed.”). The restriction on alienation by 
GRONDAL V. UNITED STATES 31

itself is thus just one component of trust status. So when the 

Act of June 21, 1906, grants the authority to extend only 

“such restrictions on alienation”—but not the other 

restrictions typically placed on trust lands—the language 

could imply that the President was not granted the authority 

to extend the trust period as a whole.

While Mill Bay and Wapato Heritage’s position is thus 

not without some force, the points supporting the BIA’s 

position are stronger still. Put simply, a trust is itself a 

restriction on alienation. The trustee, as holder of legal title, 

is the required grantor of any conveyance of legal title. And 

trust patents like those given to Wapato John inherently 

contained restrictions on how the American Indian allottee 

could sell their property. Indeed, the Supreme Court has 

recognized that restricting alienation was the very point of 

trust status. See Mitchell, 445 U.S. at 544 (noting that 

Congress extended trust status to American Indian 

allotments “not because it wished the Government to control 

use of the land and be subject to money damages for 

breaches of fiduciary duty, but simply because it wished to 

prevent alienation of the land”). As described above, 

Congress repeatedly extended the trust period of many 

allotments for the precise purpose of preventing American 

Indians from selling their land. See Yakima, 502 U.S. at 251 

(describing how Congress sought to prevent American 

Indians from selling their land by ensuring that “each 

allotted parcel would be held by the United States in trust”). 

And if a trust is, itself, a restriction on alienation, then the 

power to “continue such restrictions on alienation” includes 

the power to continue the period of a trust.

Several textual clues in the 1906 Act support the BIA’s 

view. First, the relevant provision of the Act begins: “Prior 

to the expiration of the trust period of any Indian allottee 
32 GRONDAL V. UNITED STATES

. . . .” This preface indicates that the provision deals 

primarily with trust patents (like MA-8). The preface thus 

suggests that the operative portion of the provision—the 

portion authorizing an extension in time—applies to the 

period of trusts. Second, the provision discusses both 

“trust[s]” and “other patent[s] containing restrictions upon 

alienation” and authorizes the President to “continue such 

restrictions on alienation.” As just explained, one “such” 

restriction on alienation is the trust itself that the provision 

identifies as its primary subject. And third, the series 

qualifier canon demands that when we interpret “a trust or 

other patent containing restrictions upon alienation,” we 

construe “containing restrictions upon alienation” to modify 

both “trust” and “other patent,”27 reinforcing that American 

Indian trusts both contain and inherently are restrictions on 

alienation of land. These clues all suggest that the statute’s 

authorization to extend restrictions on alienation authorizes 

the President to extend, for trust patents, both the trust period 

and the restrictions on alienation inherent in trust patents, 

and for non-trust patents, to extend any restriction on 

alienation.28

27 See Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 147 (2012) (“When there is a 

straightforward, parallel construction that involves all nouns or verbs in 

a series, a prepositive or postpositive modifier normally applies to the 

entire series.”).

28 Further evidence to this effect can be found in the 1934 Indian 

Reorganization Act. In that Act, Congress extended indefinitely the trust 

period for allotments: “The existing periods of trust placed upon any 

Indian lands and any restriction on alienation thereof are hereby 

extended and continued until otherwise directed by Congress.” 

25 U.S.C. § 5102. Although Congress referenced both concepts, 

Congress did not decouple the trust period and the restriction on 

alienation. Instead, Congress took special pains to highlight that the 
GRONDAL V. UNITED STATES 33

Consistent with the BIA’s view that American Indian 

trusts were, themselves, restrictions on alienation, numerous 

historical sources indicate that at and around the time when 

Congress passed the Act of June 21, 1906, the terms “trusts” 

and “restrictions on alienation” were historically conflated, 

used interchangeably, or treated identically. See, e.g., Felix 

S. Cohen, Handbook of Federal Indian Law § 16.03 (2012) 

(“Allotment is a term of art in Indian law, describing either 

a parcel of land owned by the United States in trust for an 

Indian (‘trust’ allotment) or owned by an Indian subject to a 

restriction on alienation in the United States or its officials 

(‘Restricted’ allotment). . . . In practice, the Department of 

the Interior has treated the two forms of tenure identically 

for virtually all purposes.”); West v. Oklahoma Tax Comm’n, 

334 U.S. 717, 726 (1948) (“We fail to see any substantial 

difference for estate tax purposes between restricted 

property and trust property.”); United States v. Ramsey, 271 

U.S. 467, 470 (1926) (“[A] trust allotment and a restricted 

allotment, so far as that difference may affect the status of 

the allotment as Indian country, was not regarded as 

important.”); 18 U.S.C. § 1162 (“Nothing in this section 

shall authorize the alienation, encumbrance, or taxation of 

any real . . . property, . . . that is held in trust by the United 

States or is subject to a restriction against alienation imposed 

by the United States.”); 43 C.F.R. § 4.201 (“Restricted 

property means real property, the title to which is held by an 

Indian but which cannot be alienated or encumbered without 

the Secretary’s consent. For the purposes of probate 

proceedings, restricted property is treated as if it were trust 

property.”); Executive Order No. 3365 (December 7, 1920) 

restrictions on alienation are included within the trust by referencing the 

“restriction[s] on alienation thereof [the trust]” as opposed to “thereon 

the land.” This offers some measure of additional evidence that the 

restriction on alienation is a primary attribute of the trust status.
34 GRONDAL V. UNITED STATES

(“It is hereby ordered, under authority found in the act of 

June twenty-first, nineteen hundred and six . . . , that the trust 

or other period of restriction against alienation contained in 

any patent heretofore issued to any Indian for any lands on 

the public domain be, and the same is hereby, extended 

. . . .”); 25 C.F.R. ch. I app. (1998) (citing executive orders 

that continued the trust period of American Indian land 

under the Act of June 21, 1906).

The relationship between restrictions on alienation and 

the other two restrictions that historically comprised trust 

status—the restrictions on encumbrance and on state 

taxation—also supports the BIA’s interpretation. At first 

glance, the restriction on alienation is just one of the three 

distinct restrictions that characterize trust status over 

American Indian land. This provides some support for the 

argument that “restrictions on alienation” and “trusts” are 

different, and correspondingly, that the 1906 Act’s grant of 

power to extend the former does not authorize extensions of 

the latter. But in fact, the Supreme Court has explicitly tied 

the restriction on alienation to the restrictions on 

encumbrances and on state taxation. In Goudy v. Meath, the 

Supreme Court determined that removal of the restriction on 

alienation also removes the restrictions on encumbrance and 

state taxation—even if the statute did not expressly remove 

those restrictions. See 203 U.S. 146, 149 (1906); see also

County of Yakima, 502 U.S. at 263–64 (“Thus, when [the 

General Allotment Act] rendered the allotted lands alienable 

and encumberable, it also rendered them subject to 

assessment and forced sale for taxes.”). And Yakima itself 

found that the “alienability of the allotted lands” was “of 

central significance” in determining whether the lands were 

taxable, 502 U.S. at 251, a connection this court has already 

recognized, see Lummi Indian Tribe v. Whatcom County, 

5 F.3d 1355, 1357 (9th Cir. 1993) (“In Yakima Nation, the 
GRONDAL V. UNITED STATES 35

[Supreme] Court found an unmistakably clear intent to tax 

fee-patented land . . . concluding . . . that the land’s alienable 

status determines its taxability.”). If the three trust 

restrictions—alienation, encumbrance, and state taxation—

all begin and end simultaneously, then the power to extend 

the restriction on alienation also impliedly confers the power 

to extend the restrictions on encumbrance and taxation. And 

if the power to extend the restriction on alienation confers 

the power to extend all three restrictions, then that power 

most reasonably also confers the power to extend the trust 

period, which comprises and determines the expiration of 

those same three restrictions.

The BIA’s interpretation has one more advantage: It 

keeps the restriction on alienation in parallel with the 

restrictions on encumbrances and on state taxation. Indeed, 

the Supreme Court has recognized that it would be “strange” 

to decouple the restriction on alienation inherent in a trust 

patent from the other aspects of the trust, including the 

restriction preventing state taxation. See Goudy, 203 U.S. at 

149. And that decoupling would be doubly strange given 

that many American Indians who owned fee-simple 

allotments that passed out of trust status were often driven to 

sell those allotments precisely because of their newfound tax 

burden. See Cohen, Handbook of Federal Indian Law § 1.04 

(offering a generalized description of how individual 

American Indians lost allotments); Kristen A. Carpenter, 

Contextualizing the Losses of Allotment Through Literature, 

82 N.D. L. REV. 605, 610 (2006) (noting that after trust 

restrictions wore off, many American Indians “could not 

meet state tax payments [and either] lost their allotments in 

foreclosures” or “sold their property outright to generate 

cash for food and necessary goods”).
36 GRONDAL V. UNITED STATES

With all these reasons in mind, it should come as no 

surprise that every other interpretation of the Act of June 21, 

1906, that we have found—from the Supreme Court all the 

way down to unpublished agency legal opinions—has stated 

that the Act granted the President this dual authority to 

extend trust periods on trust patents and periods of 

restrictions on alienation on other types of patents. See 

DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 443 n.29 (1975) 

(“Congress has several times authorized extensions of trust 

relations with respect to Indian tribes, e.g., Acts of June 21, 

1906, 34 Stat. 326 . . . .”); Cohen, Handbook of Federal 

Indian Law § 16.03[4][b][ii] (“The President . . . was 

authorized to extend the trust period [of trusts formed under 

the General Allotment Act of 1887, and in [the Act of June 

21,] 1906, Congress broadened the presidential power to 

include all allotments.”); Department of Interior, Opinion 

Regarding the Status of the Bed of the Clearwater River 

Within the 1863 Treaty Boundaries of the Nez Perce 

Reservation (Idaho), 2016 WL 10957295, at *23 n.74 

(January 15, 2016) (“Section 5 of the [General Allotment] 

Act directed the Secretary to hold in trust . . . patents to the 

allotments for a period of twenty-five years before 

transferring fee title to the allottees [and] also allowed the 

President discretion to extend this trust period. Following an 

Attorney General opinion narrowly construing that 

discretion, 25 Op. Att’y Gen. 483 (1905), Congress enacted 

a statute [(the Act of June 21, 1906)] explicitly authorizing 

broad discretion in extending trust periods. 25 U.S.C. 

§ 391.”); 25 U.S.C. 415(a) (2006) (amended in 2006 to 

recognize that MA-8 remains held in trust); cf. United States

v. Bowling, 256 U.S. 484, 488 (1921) (noting that “Congress 

has treated and construed [a separate provision similar to that 

at issue here] as including both trust and restricted 

allotments”).
GRONDAL V. UNITED STATES 37

All told, virtually everything favors the BIA’s 

interpretation of the 1906 Act: the structure of the relevant 

provision of the Act; the fact that trust patents and other 

patents containing restrictions on alienation were 

historically treated identically or conflated; and the 

combined weight of over one hundred years of 

interpretations that the 1906 Act authorized trust period 

extensions. We thus conclude that the better interpretation 

of the 1906 Act is that it did grant the President the authority 

to extend the period of a trust patent, not just the authority to 

extend the restriction on alienation imposed on a trust patent.

Even acknowledging, however, that Mill Bay and 

Wapato Heritage presented a reasonable alternative 

construction to this ambiguous statutory phrase, deference to 

the BIA counsels us against choosing that alternative. We 

assume that the BIA would only be entitled deference under 

Skidmore v. Swift & Co., 323 U.S. 134 (1944), and not 

Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984). Under Skidmore, “[t]he fair 

measure of deference to an agency administering its own 

statute has been understood to vary with circumstances, and 

courts have looked to the degree of the agency’s care, its 

consistency, formality, and relative expertness, and to the 

persuasiveness of the agency’s position.” United States v. 

Mead Corp., 533 U.S. 218, 228 (2001) (citing Skidmore). 

Here, the BIA’s expertise and the persuasiveness of its 

reasoning entitles it to some measure of deference under 

Skidmore.

In sum, although the Act of June 21, 1906, lends itself to 

multiple interpretations, the best interpretation is that it 

afforded the President the authority to extend the trust period 

of trust allotments created by trust patents, not just the 

authority to extend restrictions on alienation for patents other 
38 GRONDAL V. UNITED STATES

than trust patents. We reach this conclusion based on our 

own reading of the text of the statute, our understanding of 

the original meaning given the statute’s terms, and the 

consistency and persuasiveness of the interpretation of the 

statute by the President and the BIA. We hold that the Act 

of June 21, 1906, gave President Wilson the lawful authority 

to extend the trust period of the Moses Allotments through 

his 1914 executive order.

iii. Challenge Three: Whether MA-8’s Trust Period 

Was Extended by the Act of June 15, 1935

Finally, Mill Bay and Wapato Heritage argue that 

MA-8’s trust period was not properly extended in 1936 after 

the passage of the 1934 IRA. At issue is the six-month 

period between March 1936, when the trust extension 

enacted by President Coolidge’s executive order expired, 

and September 1936, when President Roosevelt’s executive 

order extended MA-8’s trust period yet again. Recall that 

the 1934 IRA indefinitely extended the trust period of all 

“Indian lands,” 25 U.S.C. § 5102, but excluded “Indian

holdings of allotments or homesteads upon the public 

domain outside the geographic boundaries of any Indian 

reservation now existing or established hereafter,” 25 U.S.C. 

§ 5111. Recall further that the IRA also excluded 

reservations that affirmatively voted to opt out of the act, see

25 U.S.C. § 5102, but that the Act of June 15, 1935, amended 

the IRA and extended through December 31, 1936, the trust 

period for certain other American Indian lands. To fall under 

this 1935 Amendment, land must have met two criteria: (1) 

the land’s “period of trust or of restriction” must not have 

“been extended to a date subsequent to December 31, 1936”; 

and (2) “the reservation containing such lands” must have 

voted to exclude itself from the IRA.
GRONDAL V. UNITED STATES 39

Reviewing these provisions, the district court confirmed 

the BIA’s long-standing position: The Colville Reservation 

voted to opt out of the 1934 IRA; this vote applied to the 

Moses Allotments; and the 1935 Amendment extended the 

trust period of the Moses Allotments until December 1936. 

The 1935 Amendment’s trust extension thus bridged the sixmonth gap between March and September of 1936, when 

neither President Coolidge’s nor President Roosevelt’s 

executive order applied to MA-8. Mill Bay and Wapato 

Heritage disagree and contend that neither the 1934 IRA nor 

the 1935 Amendment applied to the allotments. In their 

view, the Moses Allotments’ trust period expired in March 

1936; the further trust period extension enacted by President 

Roosevelt’s September 1936 executive order was ineffective 

as by then the allotments’ trust period had already expired.

We reject Mill Bay and Wapato Heritage’s view. 

Assume for a moment, as the district court found and as the 

BIA has maintained for nearly a century, that the Colville 

Tribe’s vote to exclude itself from the 1934 IRA did apply 

to the Moses Allotments. Under this assumption, the 

allotments’ trust period was not extended by the 1934 IRA, 

and the allotments meet the 1935 Amendment’s first 

criterion: When the 1935 Amendment was passed, the 

allotments’ “period of trust or of restriction” had not yet 

“been extended to a date subsequent to December 31, 

1936.”29 This leaves the second criterion, whether “the 

29 While Mill Bay and Wapato Heritage argue that the Colville 

Tribe’s vote to exclude itself from the 1934 IRA did not apply to the 

Moses Allotments, they agree that as of the enactment of the 1935 

Amendment, the Moses Allotments’ trust period had not been extended 

past December 31, 1936. And in any event, we will soon turn to Mill 

Bay and Wapato Heritage’s argument about the Colville Tribe’s vote.
40 GRONDAL V. UNITED STATES

reservation containing [the Moses Allotments]” voted to 

exclude itself from the IRA.

Mill Bay and Wapato argue that the Moses Allotments 

fail this second criterion for two reasons. First, they argue 

that the Moses Allotments are not “reservation” land. In 

their view, the allotments thus fall outside the scope of the 

1935 Amendment, which is limited to “lands” “contain[ed]” 

on a “reservation.”30 And second, they argue that the 

Colville Reservation’s vote to exclude itself from the 1934 

IRA cannot be imputed to the Moses Allotments.

The district court drew its conclusion that the Moses 

Allotments’ land was (and is) “reservation” land from 

several sources. The district court pointed to: (1) multiple 

BIA annual reports from near the time the 1935 Amendment 

was passed which listed the “Columbia (Moses agreement)” 

as a “reservation belonging to the Moses Band,” 

(2) historical descriptions from the Colville Agency that 

listed the Moses Tribe as living on the Moses Allotments and 

the Colville Reservation, and (3) an 1891 map that labeled 

the Moses Allotments, not as public domain, but as “Indian”

land—the same as the Colville Reservation.

The district court also noted that these same sources 

ruled out alternative understandings of the allotments’ 

status. If the allotments were not reservation land, they must 

have been either “allotments or homesteads upon the public 

domain outside of the geographic boundaries of any Indian 

reservation,” 25 U.S.C. § 5111, the two types of land 

30 Mill Bay and Wapato Heritage also argue that the Moses 

Allotments are non-reservation land and thus fall outside the scope of the 

1934 IRA, given its exclusion for “Indian holdings of allotments or 

homesteads upon the public domain outside the geographic boundaries 

of any Indian reservation.” 25 U.S.C. § 5111.
GRONDAL V. UNITED STATES 41

expressly excluded from the 1934 IRA. But the BIA reports 

never listed the Moses Allotments as public domain or 

homestead allotments, and Mill Bay and Wapato Heritage 

point to no historical evidence supporting their 

understanding.31

Further, and as the BIA notes, the Moses Allotments’ 

unique history is a poor fit for the IRA’s description of nonreservation land, again either “allotments or homesteads 

upon the public domain outside of the geographic boundaries 

of any Indian reservation.” 25 U.S.C. § 5111. The Moses 

Allotments are admittedly “outside the geographic 

boundaries” of the Colville Reservation. But the allotments 

were originally selected from land inside the “geographic 

boundaries” of the Columbia Reservation, a reservation that 

has yet to be disestablished, and were not taken from land 

“upon the public domain.” Further, the BIA points to other 

types of land that fit the terms of the IRA’s description of 

non-reservation land far more cleanly. At the time Congress 

enacted the IRA, it commonly allotted lands from the public 

domain to individual American Indians who did not reside 

on reservations. The IRA’s description of non-reservation 

land “upon the public domain outside of the geographic 

boundaries of any Indian reservation” reads more naturally 

to refer to that land—land that was taken from the public 

domain and was never part of any reservation whatsoever—

than to the Moses Allotments, which, again, were formed 

from the Columbia Reservation rather than from the public 

domain.

31 They cite a single 2009 document that describes the MA-8 

allotments as “Colville Public Domain,” but that record does not suggest 

that the allotments are on land that is the “public domain” of the United 

States. Rather, it shows that the United States understands the land to be 

on the “Public Domain” of the Colville Tribes.
42 GRONDAL V. UNITED STATES

Mill Bay and Wapato Heritage disagree. In their view, 

because the Moses Allotments were held not in trust on 

behalf of a tribe but held for individual American Indians, 

they are not reservation land. They base their argument in 

the Supreme Court’s statement that “tribal ownership was a 

critical component of reservation status.” South Dakota v. 

Yankton Sioux Tribe, 522 U.S. 329, 346 (1998). But 

properly read in context, that passage does not support their 

argument. Both Yankton Sioux and the case that Yankton 

Sioux cited for its “tribal ownership” language drew a 

distinction between ownership by American Indians and 

ownership by non-Indians, not between ownership by tribes 

and ownership by individual American Indians. See id.

(describing the Yankton Sioux’s decision to sell some of its 

territory to “non-Indian homesteaders”); Solem v. Bartlett, 

465 U.S. 463, 468 (1984) (“Indian lands were judicially 

defined to include only those lands in which the Indians held 

some form of property interest: trust lands, individual

allotments, and, to a more limited degree, opened lands that 

had not yet been claimed by non-Indians.”) (emphasis 

added). Yankton Sioux thus lends no support to Mill Bay and 

Wapato Heritage’s argument that allotments for individual 

American Indians are non-reservation land under the IRA.

Mill Bay and Wapato Heritage also argue that the 

contemporary reports cited by the district court are not 

entitled to evidentiary weight because they do not analyze 

the question whether MA-8 is reservation land, but merely 

assume it. We disagree. Contemporary agency 

interpretations have “great weight” when it comes to 

determining the meaning of statutes at the time they were 

enacted. Cruz v. Zapata Ocean Res., Inc., 695 F.2d 428, 431 

(9th Cir. 1982). Here, the BIA’s evidence shows that the 

agency consistently applied the provisions of the 1935 

Amendment to the Moses Allotments, referred to them as 
GRONDAL V. UNITED STATES 43

reservation allotments, and did not treat the Moses 

Allotments as homestead or public domain allotments. This 

evidence has significant probative value and supports the 

district court’s conclusion below and our conclusion on 

appeal.

Last, Mill Bay and Wapato Heritage argue that the 1935 

Amendment does not apply to the Moses Allotments because 

the 1935 Amendment covers only reservations that rejected 

the 1934 IRA and the Secretary of the Interior did not call a 

vote for the Columbia Reservation or the Moses Allotments. 

But again, the Colville Reservation rejected the 1934 IRA 

and this vote does apply to the Moses Allotments. The 

Moses Band of American Indians—the tribe of which the 

original Moses Allotment allottees were members—could 

and did participate in that vote, and the Colville Agency, 

which held the vote, also administered the Columbia 

Reservation that contains the Moses Allotments.32 The 

Moses Allotments needed no separate vote. And even if Mill 

Bay and Wapato Heritage were correct that the Colville 

Reservation’s vote did not apply to the Moses Allotments, 

the allotments would still be reservation land within the 

scope of the 1934 IRA because of all the compelling reasons 

just given above. So if Mill Bay and Wapato Heritage’s 

argument were correct, then because the Colville 

Reservation’s vote against the IRA did not apply to the 

Moses Allotments, the Moses Allotments never voted 

against the application of the IRA and the IRA would have 

indefinitely extended MA-8’s trust status regardless.

Based on the well-reasoned conclusion of the district 

court and the weight of the evidence in the record, including 

contemporary interpretations and consistent treatment for 

32 Even today, the MA-8 individual allottees are virtually all 

members of the Confederated Tribes of the Colville Reservation.
44 GRONDAL V. UNITED STATES

nearly a century, we reject Mill Bay and Wapato Heritage’s 

argument that the Moses Allotments were non-reservation 

land outside of the scope of the 1934 IRA and its 1935 

Amendment. We thus affirm the district court’s conclusion 

that the 1935 Amendment extended the Moses Allotments’ 

trust status.

* * *

To summarize, we hold that of the three transactions and 

trust extensions in MA-8’s history that Mill Bay and Wapato 

Heritage challenge, none were legally deficient. The MA-8 

land remains held in trust by the United States, and the BIA, 

as holder of legal title to the land, had and has standing to 

bring its claim for trespass and ejectment against Mill Bay.

B. Res Judicata

Mill Bay’s second defense is that the BIA should be 

precluded from seeking ejectment due to the BIA’s 

involvement in the 2004 Grondal state litigation between 

Mill Bay, Wapato Heritage, and Evans’ estate33 that resulted 

in the 2004 Settlement Agreement.34 Recall that this 

agreement renegotiated certain requirements and dues under 

33 Evans died during the pendency of the Grondal state litigation.

34 On this issue, the BIA offers its own res judicata argument: that 

Mill Bay was in privity with Wapato Heritage at the time of the 2004 

Settlement and is thus bound by the 2011 Ninth Circuit’s decision in 

Wapato Heritage I. The district court rejected BIA’s collateral estoppel 

argument below because there was no identity of issue, and we affirm 

that holding. The government seeks to preclude Mill Bay from arguing 

that the 2004 Settlement extended the Master Lease, but Wapato 

Heritage I did not decide that question. See 637 F.3d at 1037–40. Even 

so, our conclusion here is fully consistent with the result in Wapato 

Heritage I.
GRONDAL V. UNITED STATES 45

the Regular and Expanded Membership Agreements 

(between Mill Bay and Wapato Heritage), and because the 

Grondal state litigation concerned Evans’ estate, the 

settlement was entered pursuant to Washington’s Trust 

Estate Dispute Resolution Act (“TEDRA”), RCW 11.96A. 

The settlement included provisions that increased rent due 

by Mill Bay to Wapato Heritage (with a schedule through 

2034) and described the nature of Mill Bay’s interest: “Mill 

Bay Members have a right to use the property . . . pursuant 

to the Prior Documents and this Agreement through 

December 31, 2034, subject to the terms of this Agreement 

and the Prior Documents.”35 The settlement was “equivalent 

to a final court order binding on all persons interested in the 

estate or trust.” RCW § 11.96A.230.

Mill Bay believes that the settlement’s guarantees—for 

instance, Mill Bay’s “right to use the property . . . through 

December 31, 2034”—preclude the BIA from seeking to 

eject Mill Bay in this litigation. The district court disagreed. 

Mill Bay appeals the finding of the district court, arguing 

that the BIA and the IAs were parties under TEDRA, thus 

precluding the BIA from relitigating the terms of the 

settlement agreement. District court judgments as to issue 

and claim preclusion are reviewed de novo. See Media Rts. 

Techs., Inc. v. Microsoft Corp., 922 F.3d 1014, 1020 (9th 

Cir. 2019).

“Res judicata, also known as claim preclusion, bars 

litigation in a subsequent action of any claims that were 

raised or could have been raised in the prior action. For res 

judicata to apply there must be: (1) an identity of claims, (2) 

a final judgment on the merits, and (3) identity or privity 

35 “Prior documents” included the Master Lease, Evans’ sublease to 

Mar-Lu, and both the Regular and Extended Membership Agreements.
46 GRONDAL V. UNITED STATES

between parties.” W. Radio Servs. Co. v. Glickman, 123 

F.3d 1189, 1192 (9th Cir. 1997) (cleaned up). Mill Bay fails 

to show that this litigation and the 2004 Settlement 

Agreement involved the same claims or the same parties (or 

involved parties in privity with one another).

The BIA was not itself a party to the Grondal state 

litigation or the 2004 Settlement Agreement. Mill Bay 

concedes as much: the BIA was asked to intervene in the suit 

but never did; the BIA attended mediation between the 

parties but did not participate; the BIA received notice of the 

settlement but did not object; and no such notice was sent to 

the IAs.

Nor was the BIA in privity with Wapato Heritage, 

concededly one of the parties to the Grondal state litigation. 

For two parties to have privity, they must be “so identified 

in interest . . . that [they] represent[] precisely the same 

right” on the relevant issues. In re Schimmels, 127 F.3d 875, 

881 (9th Cir. 1997) (quoting Sw. Airlines Co. v. Texas Int’l 

Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977)). But after 

Evans’ death, Wapato Heritage obtained Evans’s interest 

under the Master Lease as the lessee of the MA-8 land. And 

Wapato Heritage’s interest as the lessee under the Master 

Lease is quite different from the BIA’s interest as trustee for 

the lessors under the same lease. So Wapato Heritage and 

the BIA did not “represent[] precisely the same right.” In re 

Schimmels, 127 F.3d at 881.

To show identity another way, Mill Bay argues that the 

BIA was an interested party under TEDRA and was required 

to object to the terms of the 2004 Settlement Agreement, 

which Mill Bay argues revised the Master Lease. TEDRA 

acts to bind “all persons interested in the estate or trust” to a 

settlement involving that estate. RCW § 11.96.220. 

“Persons interested in the estate” means:
GRONDAL V. UNITED STATES 47

all persons beneficially interested in the 

estate or trust, persons holding powers over 

the trust or estate assets, the attorney general 

in the case of any charitable trust where the 

attorney general would be a necessary party 

to judicial proceedings concerning the trust, 

and any personal representative or trustee of 

the estate or trust.

RCW § 11.96.030(6).

Mill Bay does not argue that the BIA was beneficially 

interested in Evans’ estate or was a personal representative 

of Evans. Mill Bay argues only that the BIA held power over 

an estate asset—Evans’ interest as a lessee of the MA-8 land 

under the Master Lease—because the BIA held authority 

under the Master Lease to withhold approval of any 

assignment of Evans’ lease interest. Mill Bay provides no 

Washington caselaw defining “persons holding powers over 

estate assets” to include those persons who possess certain 

contingent rights pursuant to a contractual lease agreement. 

The available caselaw suggests instead that “powers” refers 

to more direct control over assets. See Paunescu v. Eckert, 

193 Wash. App. 1050 at *3 (2016) (unpublished) (likening 

“persons holding powers over the trust assets” to the trustee); 

In re Est. of Whitehead, 139 Wash. App. 1038 at *5 & n.39 

(2007) (unpublished) (likening “persons holding powers 

over estate assets” to a personal representative). Mill Bay 

does not argue that the BIA’s status as trustee of and legal 

titleholder to MA-8 gave the BIA any “power” over any 

asset in Evans’ estate, and the argument that Mill Bay does 

make finds no support in Washington caselaw. We 

accordingly decline to find that the BIA was “interested in”

Evans’ estate under TEDRA.
48 GRONDAL V. UNITED STATES

Moreover, Mill Bay points to no authority showing the 

United States waived its sovereign immunity. Thus, Mill 

Bay and the IAs could not have employed TEDRA to compel 

the United States to participate in the state estate proceeding, 

which forecloses the argument that TEDRA could somehow 

bind the BIA to the 2004 Settlement Agreement. See 

Sisseton–Wahpeton Sioux Tribe v. United States, 895 F.2d 

588, 592 (9th Cir. 1990) (“The doctrine of sovereign 

immunity precludes suit against the United States without 

the consent of Congress . . . .”).

Even setting aside that different parties were involved in 

the Grondal state litigation and in this lawsuit, the two cases 

also involved different claims, i.e. lacked identity of issue. 

“Claim preclusion prevents parties from relitigating the 

same claim,” and suits “involve the same claim . . . if the 

later suit arises from the same transaction” as does the first 

suit. Brownback v. King, 141 S. Ct. 740, 747 n.3 (2021) 

(cleaned up). Here, the Grondal state litigation and this 

appeal do not involve the same transaction. The Grondal

state litigation pertained to the membership agreements 

between Evans/Wapato and Mill Bay but this suit pertains to 

the Master Lease between the IAs/BIA and Evans/Wapato. 

Nothing in the Grondal state litigation ever claimed to 

address or resolve whether the Master Lease was renewed. 

Further, claim preclusion does not apply here because 

Wapato still had time to renew the Master Lease even after 

the 2004 Settlement Agreement, and the Master Lease’s 

expiry is the entire premise of this lawsuit. See Media Rts. 

Techs., Inc., 922 F.3d 1014, 1021 (9th Cir. 2019) (“[C]laim 

preclusion does not apply to claims that accrue after the 

filing of the operative complaint in the first suit.” (quotation 

marks and citation omitted)).
GRONDAL V. UNITED STATES 49

For all these reasons, we reject Mill Bay’s argument that 

the IAs and the BIA are precluded under res judicata from 

ejecting Mill Bay.

C. Assignment of the Expanded Membership 

Agreements under Master Lease Paragraph 8

Mill Bay’s third defense relates to a provision of the 

expired Master Lease. Although prior litigation resolved 

that Wapato Heritage failed to renew the Master Lease, 

Paragraph 8 of the Master Lease requires the Lessor-IAs to 

honor sublease or subtenant agreements even after the 

Master Lease is terminated “by cancellation or otherwise.” 

Paragraph 8 (entitled “Status of Subleases on Conclusion of 

Lease”) states:

Termination of this Lease, by cancellation or 

otherwise, shall not serve to cancel subleases 

or subtenancies, but shall operate as an 

assignment to Lessor of any and all such 

subleases or subtenancies and shall continue 

to honor those obligations of Lessee under 

the terms of any sublease agreement that do 

not require any new or additional 

performance not already provided or 

previously performed by Lessee.

The Expanded Membership Agreements, signed by 

individual Mill Bay purchasers and Chief Evans, Inc. 

(predecessor-in-interest to Wapato Heritage), stated that 

“[t]he duration of this membership is coextensive with the 

fifty (50) year term” of the Master Lease. Mill Bay argues 

that the Expanded Membership Agreements issued by 

Wapato Heritage and the 2004 Settlement Agreement should 

be assigned to the IA lessors under the terms of Paragraph 8.
50 GRONDAL V. UNITED STATES

The district court rejected this argument in its 2010 

order. The court concluded that Paragraph 8 did not apply 

to the Mill Bay members because (1) under both the 

Expanded Membership Agreements and the 2004 Settlement 

Agreement, the Mill Bay members were mere licensees, not 

sublessees or subtenants; and (2) the Master Lease was 

terminated by normal expiration, not unexpectedly 

terminated. Federal law applies to the interpretation of the 

Master Lease. Wapato Heritage I, 637 F.3d at 1039 (“We 

also apply federal law because the BIA’s role and 

obligations under the contract are in contention.”). Under 

federal law, “[t]he interpretation and meaning of contract 

provisions are questions of law reviewed de novo.” Flores 

v. Am. Seafoods Co., 335 F.3d 904, 910 (9th Cir. 2003). We 

hold that Paragraph 8 of the Master Lease does not apply at 

all because the Master Lease was not terminated “by 

cancellation or otherwise.”36

The Master Lease was not “cancelled.” The Master 

Lease expired after Wapato Heritage failed properly to 

exercise the renewal option. Mill Bay argues “or otherwise” 

expands the type of termination contemplated beyond 

cancellation and that this phrase should be read instead to 

mean termination for any reason whatsoever, including 

normal expiration. That interpretation contravenes the 

canon of ejusdem generis, which “refers to the inference that 

a general term in a list should be understood as a reference 

to subjects akin to those with specific enumeration.” In re 

Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir. 

2018) (internal quotation marks and citation omitted). So 

“cancellation” helps define the phrase “or otherwise.” 

Black’s Law Dictionary defines cancellation to mean: “An 

36 Because Paragraph 8 does not apply, we need not examine 

whether the Expanded Membership Agreements or the 2004 Settlement 

Agreement created mere sublicenses rather than subleases.
GRONDAL V. UNITED STATES 51

annulment or termination of a promise or an obligation; 

specif., the purposeful ending of a contract because the other 

party has breached one or more of its terms.” Cancellation, 

Black’s Law Dictionary (11th ed. 2019). “Cancellation or 

otherwise” thus most naturally refers to methods of a lease’s 

termination other than the natural course of time, such as 

termination due to some action by a party that ends the lease 

before the contract term concludes. In contrast, termination 

by normal expiration contemplates that no party breached 

the terms and the Master Lease ran its full course and simply

expired. So Paragraph 8 applies only if the lease was 

terminated by a party’s breach and another party’s action in 

response to that breach, not when, as here, the lease expired 

on its intended expiration date.

Other provisions of the Master Lease only confirm our 

interpretation of Paragraph 8.37 Mill Bay’s construction of 

Paragraph 8 would extend Wapato Heritage’s purported 

sublease to Mill Bay to 50 years, beyond the life of the actual 

lease between Wapato Heritage and the IAs. But that would 

contradict Paragraph 7, which states: “No part of the 

premises shall be subleased for a period extending beyond 

the life of this [Master] Lease . . . .” Mill Bay’s response is 

that Paragraph 7’s “life of this Lease” phrase meant the full 

fifty-year potential for the lease, not the valid twenty-fiveyear lease term. But that reading of Paragraph 7 is in turn 

contradicted by Paragraph 3 of the Master Lease, which 

states: “The term of this lease shall be twenty-five (25) 

37 Cf. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In 

ascertaining the plain meaning of the statute, the court must look to the 

particular statutory language at issue, as well as the language and design 

of the statute as a whole.”); Antonin Scalia & Bryan A. Garner, Reading 

Law: The Interpretation of Legal Texts 167 (2012) (“The text must be 

construed as a whole.”).
52 GRONDAL V. UNITED STATES

years.”38 The way we read Paragraph 8—that this paragraph 

requires the Lessor-IAs to honor sublease or subtenant 

agreements only if the Master Lease is terminated before its 

natural expiration—harmonizes all of these provisions.

Indeed, if the parties intended Paragraph 8 to apply when 

the lease terminated for any reason, including normal 

expiration, it is unlikely they would have included language 

that is naturally read as being limited to premature 

termination. Paragraph 30 (“Delivery of Premises”) of the 

Master Lease, just a few pages away, proves that the parties 

could author expansive language when they desired. 

Paragraph 30 requires the lessee to deliver possession “at the 

termination of this lease, by normal expiration or otherwise 

. . . .” Paragraph 30’s scope is broad: “normal expiration or 

otherwise” covers just about everything. But in comparison, 

and as just described above, the natural reading of Paragraph 

8 is more restrictive. To give effect to the precise text in 

each provision, we must more probably give “termination 

. . . by cancellation or otherwise” a different, more restrictive 

interpretation than “termination . . . by normal expiration or 

otherwise.” See United States ex rel. Welch v. My Left Foot 

Children’s Therapy, LLC, 871 F.3d 791, 797 (9th Cir. 2017) 

(“[I]f possible, every word and every provision is to be given 

effect . . . .”).

For all of these reasons, we reject Mill Bay’s 

interpretation of Paragraph 8 of the Master Lease: Paragraph 

38 Mill Bay’s reading here also requires the Court to reach not one 

but two unlikely conclusions: that a sublessor can grant a sublessee more 

rights than he holds himself and that the parties meant to allow Wapato

Heritage to issue subcontracts beyond the twenty-five-year term 

regardless whether Wapato Heritage ever actually exercised the lease 

renewal option.
GRONDAL V. UNITED STATES 53

8 does not apply when the Lease expires by the passage of 

time, as happened here.

D. Equitable Estoppel

Mill Bay’s fourth and final defense against ejectment 

pertains to the BIA’s alleged prior representations that Mill 

Bay would be able to remain on MA-8 through 2034.39 Mill 

Bay argues that, based on those statements, the court should 

apply equitable estoppel to prevent the BIA from seeking 

Mill Bay’s ejectment. Below, the district court concluded 

the equitable estoppel defense is not available under United 

States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003), in 

which we held that the United States is not subject to 

equitable estoppel when it acts in its sovereign capacity as 

trustee for Indian land. A district court’s decision to apply 

or reject an estoppel defense is reviewed for abuse of 

discretion but the district court’s legal conclusions as to the 

availability of that defense are reviewed de novo. See United 

States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) 

(en banc) (“[T]he first step of our abuse of discretion test is 

to determine de novo whether the trial court identified the 

correct legal rule to apply to the relief requested.”).

In City of Tacoma, the BIA brought a suit in the 1990s to 

invalidate Tacoma’s 1921 condemnation of land allotted to 

39 Specifically, Mill Bay cites: (1) the BIA’s receipt of and 

nonresponse to Evans’ 1985 letter purportedly exercising the renewal 

option (later found to be ineffective), (2) the BIA’s receipt of the 

Expanded Membership Agreements which were marketed to be valid 

through 2034 and the BIA’s approval of the Site Plan modification,

(3) the BIA’s statement on a form affidavit provided to Washington State 

Liquor Control Board stating “[Master] Lease expiration date: 2-2-

2034,” and (4) the BIA’s failure to object to the 2004 Settlement 

Agreement, which assumed the renewal of the lease through 2034. 
54 GRONDAL V. UNITED STATES

American Indians in trust patents, land which Tacoma used 

to build a hydroelectric power project. 332 F.3d at 576–78. 

At the time of the condemnation, the United States had 

acceded to the process as trustee, writing in a 1921 letter that 

it viewed the proceedings as “in all respects legal,” and 

accepted the compensation for the taking of the land on 

behalf of the American Indian allottees. Id. However, in 

1939, the Supreme Court interpreted a federal statute (which 

was on the books in 1921) to require that the United States 

be named as an indispensable party for all condemnation 

proceedings concerning trust allotments, which Tacoma had 

failed to do in its condemnation suit. Id. at 579–80. Some 

fifty years later, the BIA, at the behest of the local tribe, filed 

a claim against Tacoma to invalidate the 1921 condemnation 

based on that procedural infirmity. Tacoma, in defending 

itself against invalidation, argued that the BIA was 

foreclosed from seeking invalidation under the principles of 

equitable estoppel. Because the government approved the 

legitimacy of the condemnation proceedings, as evidenced 

in the 1921 letter, Tacoma argued the court should not permit 

the BIA to reverse itself decades later. Id. at 581. We denied 

Tacoma’s argument for equitable estoppel, holding that 

“when the government acts as trustee for an Indian tribe, it 

is not at all subject to [an equitable estoppel] defense. Id. at 

581–82.

Here, Mill Bay similarly seeks to use equitable estoppel 

against the BIA to deny the BIA’s claim to possession of 

land the BIA holds in trust to American Indian allottees. 

However, Mill Bay argues City of Tacoma does not apply. 

Mill Bay claims that the BIA is not acting as trustee for 

American Indian land but rather is acting to further its own 

sovereign and proprietary interests. Mill Bay further claims 
GRONDAL V. UNITED STATES 55

the BIA has a conflict of interest and is violating its duty as 

trustee by favoring the Tribe over the IAs.40

Mill Bay relies primarily on United States v. Jicarilla 

Apache Nation, 564 U.S. 162 (2011), where the Supreme 

Court described the holding of one of its own prior cases, 

Heckman v. United States, 224 U.S. 413 (1912). In 

Heckman, the government sued as trustee on behalf of 

American Indian allottees (who impermissibly sold their 

allotments) to nullify those same conveyances. See id. at 

417. The Court in Jicarilla said that in Heckman, the 

government “was formally acting as a trustee [but] was in 

fact asserting its own sovereign interest in the disposition of 

Indian lands.” Jicarilla, 564 U.S. at 176. Mill Bay suggests 

that Jicarilla stands for the proposition that when the BIA 

acts as a trustee on behalf of American Indians but contrary 

to their interests, it furthers its own sovereign interests and 

is thus not immune to equitable estoppel.

We reject Mill Bay’s argument. To begin, Mill Bay 

cannot claim that the BIA acted outside of the scope of the 

trustee relationship contemplated in City of Tacoma. The 

BIA’s trespass suit is brought pursuant to 25 C.F.R. 

§ 162.471, which expressly states that “[i]f a lessee remains 

40 Wapato Heritage asserts that the BIA is acting at the behest of the 

Tribe, which favors the ejectment of Mill Bay and expiration of the

Master Lease (supposedly because the Tribe can maintain low sublease 

and rental rates for its casino or because the Tribe wishes to relocate the 

casino to the waterfront, where the Mill Bay RV Park is located). 

Wapato Heritage suggests that the BIA is favoring the Tribe’s interests 

over the interests of the IAs, which are to recoup the most amount of rent 

money possible. Wapato Heritage also points to the fact that the BIA’s 

district superintendent through 2017 was an enrolled member of the 

Tribe (who left in 2017 for a position with the Tribe). Wapato Heritage 

further points to the BIA’s approval of the Tribe’s purchases of some of 

the IA’s interests in MA-8 at below market value since the start of this 

litigation.
56 GRONDAL V. UNITED STATES

in possession after the expiration, termination, or 

cancellation of a business lease,” the BIA “may take action 

to recover possession on behalf of the Indian landowners.” 

Even under Mill Bay’s interpretation of Jicarilla and 

Heckman (neither of which involved a claim for equitable 

estoppel), ejection of a trespasser is a statutory function not 

at odds with the traditional trustee-beneficiary relationship. 

Rather, ejectment is a traditional exercise of a trustee’s duty 

to protect the trust property on behalf of the trustees (here, 

the allottees).

Nor did the BIA act outside the trustee relationship when 

it helped draft and execute the Master Lease. To administer, 

preserve, and maintain the trust property is a quintessential 

trustee function. See United States v. White Mountain 

Apache Tribe, 537 U.S. 465, 475 (2003) (“[E]lementary trust 

law, after all, confirms the commonsense assumption that a 

fiduciary actually administering trust property may not allow 

it to fall into ruin on his watch. ‘One of the fundamental 

common-law duties of a trustee is to preserve and maintain 

trust assets . . . .’” (quoting Cent. States, Se. & Sw. Areas 

Pension Fund v. Central Transport, Inc., 472 U.S. 559, 572 

(1985)).

And even if we take as true Mill Bay’s accusation that, 

whether or not the BIA was acting within its powers as 

trustee, the agency had a conflict of interest, Mill Bay still 

does not explain how this conflict would convert the BIA’s 

interest as a trustee in ejecting Mill Bay from MA-8 into a 

proprietary interest of the United States. None of the dues 

or rent from the property go to the BIA, which retains title 

on behalf of the IAs in trust in any event. See Wapato 

Heritage I, 637 F.3d at 1039 (“Neither did the BIA become 

a party to the Lease by acting in its approval capacity or in 

its limited role as proxy for the 64% of the Landlords who 
GRONDAL V. UNITED STATES 57

had given their express authority to sign on their behalf, or 

with respect to the remaining 36% of the Landowners, for 

whom it signed as authorized by § 162.2(a)(4).”).

Alternatively, Mill Bay argues that we should cabin City 

of Tacoma’s holding that equitable estoppel is never

applicable against the United States when acting as trustee 

for American Indian allottees. We see no reason to do so. 

The rule—in its broadly stated form—is well-grounded and 

dates back decades. See United States v. Ahtanum Irrigation 

Dist., 236 F.2d 321, 334 (9th Cir. 1956) (“No defense of 

laches or estoppel is available to the defendants here for the 

Government as trustee for the Indian Tribe, is not subject to 

those defenses.”); Cato v. United States, 70 F.3d 1103, 1108 

(9th Cir. 1995) (“[T]he well-established rule [is] that a suit 

by the United States as trustee on behalf of an Indian tribe is 

not subject to state delay-based defenses.” (citing Oneida 

Indian Nation of New York v. State of New York, 691 F.2d 

1070, 1083–84 (2d Cir. 1982)).

Last, Mill Bay argues the United States should be 

granted immunity from equitable estoppel only when full 

alienation of the allottees’ land is at issue. But the rule as 

stated in City of Tacoma is broad, clear, and admits no 

exception for instances where alienation is not at issue. 

Moreover, we have previously applied the rule to a case 

where alienation was not at issue. In Ahtanum, nonAmerican Indian landowners located near a reservation 

sought to bind the government by estoppel to a 1908 

agreement (between the BIA and the non-American Indian 

landowners) that entitled the landowners to 75% of a 

reservation river’s water. 236 F.2d at 329. We applied the 

rule as stated in City of Tacoma, concluding that the 

landowners could not enforce the 1908 agreement based on 

the government’s “subsequent conduct or approval” of the 
58 GRONDAL V. UNITED STATES

agreement because “[n]o defense of laches or estoppel is 

available to the defendants here for the Government as 

trustee for the Indian Tribe, is not subject to those defenses.” 

Id. at 334. There, as here, the government was granted 

immunity from estoppel that would have limited by contract 

the American Indians’ use of their land.

We conclude that City of Tacoma is not distinguishable

and that Mill Bay is barred from asserting its defense of 

equitable estoppel against the BIA.41

IV. CONCLUSION

For the reasons stated above, we AFFIRM the district 

court’s grant of the BIA’s motion for summary judgment on 

its counterclaim for trespass.

41 Under 25 C.F.R. § 162.471, after consultation with the American 

Indian landowners, the BIA has authority to remove trespassers even 

without majority consent from the IAs. Thus, Mill Bay’s claim for 

equitable estoppel against IAs would not grant Mill Bay any relief and 

we need not address it in this appeal.