FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff,

and

SKOKOMISH INDIAN TRIBE,

Plaintiff-Appellant, No. 07-35062

v. D.C. Nos. 

STATE OF WASHINGTON, CV-70-09213-RSM

Defendant, SP-05-00002-RSM

and

PORT GAMBLE S’KLALLAM TRIBE;

JAMESTOWN S’KLALLAM TRIBE,

Defendants-Appellees. 

8655
UNITED STATES OF AMERICA; 

SKOKOMISH INDIAN TRIBE,

Plaintiffs,

v.

STATE OF WASHINGTON,

Defendant, No. 07-35124

and  D.C. No.

PORT GAMBLE S’KLALLAM TRIBE; CV-70-09213-RSM

JAMESTOWN S’KLALLAM TRIBE,

Defendants-Appellees,

v.

LOWER ELWHA KLALLAM TRIBE,

Plaintiff-intervenor-Appellant. 

8656 UNITED STATES v. WASHINGTON
UNITED STATES OF AMERICA; 

SKOKOMISH INDIAN TRIBE,

Plaintiffs,

and

MAKAH INDIAN TRIBE; PUYALLUP

TRIBE; NISQUALLY INDIAN TRIBE;

LUMMI INDIAN NATION,

Intervenors-Appellants, No. 07-35219

v. D.C. Nos.

STATE OF WASHINGTON,  CV-70-09213-RSM

Defendant, SP-05-00002-RSM

and OPINION

PORT GAMBLE S’KLALLAM TRIBE;

JAMESTOWN S’KLALLAM TRIBE,

Defendants-Appellees,

v.

SWINOMISH INDIAN TRIBAL

COMMUNITY,

Plaintiff-intervenor-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

October 21, 2008—Seattle, Washington

Filed July 13, 2009

Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Kleinfeld

UNITED STATES v. WASHINGTON 8657
COUNSEL

Douglas B. L. Endreson, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C., for appellant Skokomish Indian Tribe.

Lori Ellen Nies (briefed), Skokomish Indian Tribe, Skokomish Nation, Washington, for appellant Skokomish Indian

Tribe. 

Lorane F. Hebert, Hogan & Hartson, LLP, Washtington, D.C.,

for appellant Lower Elwha Klallam Tribe.

Richard M. Berley, Ziontz, Chestnut, Varnell, Berley &

Slonim, Seattle, Washington, for appellant Makah Tribe.

David West (briefed), Garvey, Schubert & Barer, Seattle,

Washington, for appellant Quileute Tribe.

Samuel J. Stiltner (briefed), Law Office of Puyallup Indian

Tribe, Tacoma, Washington, for appellant Puyallup Tribe.

Harold Chesnin (briefed), Office of Tribal Attorney Upper

Skagit Indian Tribe, Sedro Woolley, Washington, for appellant Upper Skagit Tribe.

Daniel A. Raas (briefed), Raas, Johnsen & Stuen, P.S., Office

of Special Counsel, Bellingham, Washington, for appelllant

Lummi Nation.

Bill Tobin (briefed), Office of Tribal Attorney Nisqually

Indian Tribe, Vashon, Washington, for appellant Nisqually

Tribe.

Kevin Lyon (briefed), Office of Tribal Attorney Squaxin

Island Indian Tribe, Shelton, Washington, for appellant

Squaxin Island Tribe.

8660 UNITED STATES v. WASHINGTON
Eric Nielsen (briefed), Nielsen, Broman & Koch, Seattle,

Washington, for appellant Quinault Indian Nation.

James M. Jannetta (briefed), Swinomish Indian Tribal Community, LaConner, Washington, for appellant Swinomish

Indian Tribal Community. 

Lauren P. Rasmussen, Law Offices of Lauren P. Rasmussen,

PLLC, Seattle, Washington, for appellees.

OPINION

KLEINFELD, Circuit Judge:

In substance, one Indian tribe seeks against other tribes an

equitable apportionment of a shared fishery. Though this case

was filed as a proceeding in the still pending 1970 district

court case of United States v. Washington,

1

 neither the United

States nor the State of Washington asserts a claim or defends

against one.

I. Facts.

In the 1850s, the United States signed a series of treaties

with the tribes of the Pacific Northwest.2 These treaties were

between the tribes and the United States, and did not purport

to settle disputes between different tribes.3“The Tribes ceded

1Complaint, United States v. Washington, No. 70-9213, Dkt. No. 1

(W.D. Wash. Sept. 18, 1970). 

2

See, e.g., Treaty of Point No Point (Jan. 26, 1855), 12 Stat. 933 (1859);

Treaty of Point Elliot (Jan. 22, 1855), 12 Stat. 927 (1859). See generally

Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n,

443 U.S. 658, 661-69 (1979). 

3

See, e.g., Treaty of Point No Point, 12 Stat. at 933 (“Treaty between

the United States of America and the S’Klallam Indians”); Treaty of Point

Eliott, 12 Stat. at 927 (“Treaty between the United States and the Dwamish, Suquamish and other allied and subordinate Tribes of Indians in

Washington Territory”). 

UNITED STATES v. WASHINGTON 8661
their aboriginal lands to the United States for settlement,

receiving in exchange exclusive title to defined lands, free

medical care, schools, occupational training, and annuity payments.”4

 What matters for this case is that the treaties also

reserved to the tribes the “right of taking fish . . . in common

with all citizens of the United States.”

5

In 1970, the United States in United States v. Washington6

sued the state government to enforce the treaties on behalf of

the Indians. The complaint sought an injunction to prevent the

State of Washington from “enforcing the provisions of state

laws or regulations in such manner as to prevent or restrict

members of said tribes from taking fish . . . without previously having established that the imposition of state regulation is necessary for the conservation of fish.”

7

 No injunction

was sought against any tribe by any party. 

As part of his lengthy and detailed opinions in that (and

technically still this) case,8 Judge Boldt described the treaty

fishing right as “a reserved right, which is linked to the

marine and freshwater areas where the Indians fished during

treaty times, and which exists in part to provide a volume of

fish which is sufficient to the fair needs of the tribes.”

9

 A tribe

4United States v. Washington, 157 F.3d 630, 638 (9th Cir. 1998). For

a general overview of the history of the treaties and the ensuing fishing

rights litigation, see id. at 638-41. 

5Treaty of Point No Point, 12 Stat. at 934. 

6United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)

[hereinafter Decision I]. 

7Complaint, United States v. Washington, No. 70-9213, Dkt. No. 1, at

12 (W.D. Wash. Sept. 18, 1970). 

8

Judge Boldt’s initial decision was over 100 pages long. After that decision, he and other district judges have issued a number of decisions determining the nature and location of specific tribes’ reserved fishing rights

and related matters. See, e.g., United States v. Washington, 459 F. Supp.

1020 (W.D. Wash. 1978) [hereinafter Decision II]; United States v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985) [hereinafter Decision III].

9Decision I, 384 F. Supp. at 401 ¶ 20. 

8662 UNITED STATES v. WASHINGTON
has treaty rights at “every fishing location where members of

a tribe customarily fished . . . whether or not other tribes then

also fished in the same waters.”

10 The district court has then

and subsequently denoted more than 20 tribes’ usual and

accustomed fishing grounds.11 The adjudicated fishing areas

of several tribes overlap. 

Judge Boldt determined that the treaties entitled the tribes

to roughly 50% of the resources within traditional tribal fisheries. The Supreme Court ultimately affirmed this decision.12

Both the trial court and the Supreme Court disclaimed any

responsibility for intertribal allocation of the Indian 50%

when the same fishery was shared by multiple tribes. “The

court left it to the individual tribes involved to agree among

themselves on how best to divide the Indian share of runs that

pass through the usual and accustomed grounds of more than

one tribe. . . .”

13

Pursuant to the request of the United States in its initial

complaint against the State of Washington,14 the district court

retained jurisdiction over “this case for the life of this decree

to take evidence, to make rulings and to issue such orders as

may be just and proper upon the facts and law in implementation of this decree.”

15 Judge Boldt set forth the grounds for

invoking that jurisdiction:

25. (a) The parties or any of them may invoke the

10Id. at 332 ¶ 8. 

11E.g., id. at 359-82; Decision II, 459 F. Supp. at 1049, 1059-60; Decision III, 626 F. Supp. at 1441. 

12Washington v. Wash. State Commercial Passenger Fishing Vessel

Ass’n, 443 U.S. 658 (1979). 

13Id. at 671; see Decision I, 384 F. Supp. at 407 ¶ 17, 410 ¶ 12. 

14Complaint, United States v. Washington, No. 70-9213, Dkt. No. 1, at

14 (W.D. Wash. Sept. 18, 1970). 

15Decision I, 384 F. Supp. at 408 ¶ 24. 

UNITED STATES v. WASHINGTON 8663
continuing jurisdiction of this court in order to determine:

(1) Whether or not the actions, intended or

effected by any party (including the party

seeking a determination) are in conformity

with Final Decision # I or this injunction;

. . . 

(4) Disputes concerning the subject matter

of this case which the parties have been

unable to resolve among themselves; . . .

[and]

(7) Such other matters as the court may

deem appropriate.16

Decision I had previously defined the subject matter of the

case as the application of the tribes’ treaty rights to anadromous fish in Washington waters.17

To invoke the court’s continuing jurisdiction, parties must

file “requests for determination,”

18 which are functionally the

same as a complaint, but get two file numbers, the original

1970 number of the treaty case, and an “SP” number to indicate a new subproceeding within that case. This bit of administrative trivia matters, as we shall see, to jurisdiction over the

tribes. After Decision I, when requests for determination concerning nonanadromous fish and other matters outside the

defined subject matter of the case were filed, the court

decided that equity favored the consolidation of “matters

16Id. at 419 ¶ 25, as technically modified by Order Modifying Paragraph

25 of Permanent Injunction, United States v. Washington, No. 70-9213,

Dkt. No. 13599, at 1-2 (W.D. Wash. Aug. 23, 1993) (emphasis added). 

17Decision I, 384 F. Supp. at 400 ¶ 7. 

18Id. at 419 ¶ 25. 

8664 UNITED STATES v. WASHINGTON
related to, but not included within, Final Decision # 1.”

19 It

thus expanded the subject matter of the case. Later, the district

court concluded it had jurisdiction over intertribal allocations.20

In 1981, the Skokomish Indian Tribe requested a determination that it had the primary right to fish in the Hood Canal.

The claim for a “primary right” in these cases entails “the

power to regulate or prohibit fishing by members of other

treaty tribes” with fishing rights in the same territory.21 Primary right adjudication depends on the historical relationship

between tribes at the time of the treaties.22

Several tribes with pending claims of a right to fish in the

Hood Canal objected to Skokomish’s claim.23 Skokomish settled its claims with the Lower Elwha Klallam, Port Gamble

S’Klallam, and Jamestown S’Klallam tribes. These ‘stipulating parties’ entered the Hood Canal Agreement which

resolved Skokomish’s primary rights claim as well as the territorial claims of Port Gamble and Lower Elwha.24 The Hood

Canal Agreement created a joint fishery north of Ayock Point

in the Hood Canal where all of the parties “may exercise their

respective treaty fishing rights without any limitation or control whatsoever by any of the stipulating parties, except as the

stipulating parties may mutually agree by compact or other19Decision II, 459 F. Supp. at 1048. 

20Decision III, 626 F. Supp. at 1470-71 ¶ 4 (“This Court’s ruling that

the question of intertribal allocation is a matter for the tribes rather than

the state to resolve prohibits the state from interfering with intertribal allocation but in no way limits this Court’s jurisdiction over this or any other

matter . . . .”) (citations omitted and emphasis added). 

21United States v. Skokomish Indian Tribe, 764 F.2d 670, 671, 674 (9th

Cir. 1985) (affirming Skokomish’s primary right claim against the Suquamish tribe). 

22United States v. Lower Elwha Tribe, 642 F.2d 1141, 1143 (9th Cir.

1981); Decision III, 626 F. Supp. at 1531 ¶ 97. 

23See Decision III, 626 F. Supp. at 1468. 

24Id.

UNITED STATES v. WASHINGTON 8665
wise. The Skokomish Tribe specifically agrees that it will not

. . . seek to exercise its primary right on Hood Canal north of

Ayock Point . . . .”

25

After the Hood Canal Agreement, the stipulating parties

managed their joint fishery together through the Point No

Point Treaty Council. They entered into successive OffReservation Fisheries Management Compacts. The 1999

Compact was the last agreement. This scheme for resolution

of disputes among the tribes eventually dissolved. Skokomish

and the Lower Elwha Klallam Tribe withdrew from the Point

No Point Treaty Council in 2003 and 2004, respectively. The

tribes could no longer reach an agreement on the intertribal

allocation of the joint fishery north of Ayock Point. 

Skokomish unilaterally issued a harvest plan for 2004-05,

allocating to itself certain percentages of the Indian share.26

Port Gamble and Jamestown filed a request for determination

that Skokomish violated the Hood Canal Agreement.27 Skokomish filed a counter-request28 seeking an equitable allocation of the joint fishery in order to prevent a ‘race fishery’

from interfering with its ability to manage its fishery and meet

tribal needs. Its request acknowledged that it was harvesting

the same amount of fish as before. The district court bifurcated the two claims. This appeal concerns Skokomish’s

counter-request for an equitable allocation, which Lower

Elwha supported.

The district court granted the Port Gamble and Jamestown

Tribes’ motion to dismiss. The district court held that “[t]he

dispute here does not arise from the Hood Canal Agreement,

and it cannot be settled by looking to its terms. Instead, the

25Id. at 1469. 

26See United States v. Washington, 393 F. Supp. 2d 1089, 1092-93

(W.D. Wash. 2005). 

27Id.

28Functionally the same as a counterclaim. 

8666 UNITED STATES v. WASHINGTON
Skokomish are asking the court to bypass the Agreement and

create an allocation for the parties because they cannot agree

among themselves as required by the Agreement.” The court

noted that nothing in the agreement “empowers the court to

allocate harvest shares in the absence of the agreement of the

parties.” The provision in Judge Boldt’s decree retaining

jurisdiction for “[d]isputes concerning the subject matter of

this case which the parties have been unable to resolve among

themselves,” did not apply because “[t]he subject matter of

this case is treaty fishing rights, not the equitable rights of any

one tribe to harvest a certain allocation of fish . . . . Nowhere

in these decisions is there a finding that inter-tribal allocation

(as opposed to allocation between treaty- and non-treaty fishermen) is the subject matter of this case.” As for the catch-all

language in Judge Boldt’s order, “[s]uch other matters as the

court may deem appropriate,” “[t]his is a discretionary section, and . . . the Court does not deem it appropriate to take

jurisdiction of this matter.” Because the request for allocation

did not fall within the purposes of enforcing the treaty or the

Hood Canal Agreement, and neither provided for court allocation if the tribes could not agree among themselves, the court

exercised its discretion to refrain from granting equitable

relief. Though we do not reach, or rule upon, all the conclusions of the district court and the challenges to them, we conclude that dismissal was proper, and affirm.

II. Analysis.

We may affirm the dismissal on any ground supported by

the record.29 We do so on the ground that the Skokomish

Tribe has not pleaded facts that would entitle it to application

of the doctrine of equitable apportionment. Because dismissal

was proper on this ground, and our precedents compel us to

conclude that the district court had jurisdiction,30 we need not

consider the remaining issues.

29Aronson v. Resolution Trust Corp., 38 F.3d 1110, 1112 (9th Cir.

1994). 

30E.g., Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1357

(9th Cir. 1998); United States v. Lower Elwha Tribe, 642 F.2d 1141, 1143-

UNITED STATES v. WASHINGTON 8667
[1] This claim by one tribe against others to allocate fish is,

as the district court said, far afield from the treaty dispute

between the United States on behalf of the Indian tribes and

the State of Washington in which the underlying decree

issued, and is not an interpretation of the Hood Canal Agreement. There is no treaty and no agreement of any kind

between the tribes to be construed and applied. The claim is

more analogous to a claim for equitable allocation of fish

between states, which the Supreme Court confronted in Idaho

ex rel. Evans v. Oregon.

31 In that case, the State of Idaho

sought apportionment of anadromous fish between itself, Oregon, and Washington. The Court held that “the doctrine of

equitable apportionment is applicable to this dispute.”

32 Such

“apportionment is based on broad and flexible equitable concerns rather than on precise legal entitlements.”

33

[2] When one state seeks equitable apportionment against

another under the doctrine of equitable apportionment, the

Court held that it “must prove by clear and convincing evidence some real and substantial injury or damage.”

34 In Idaho

ex rel. Evans, the Court declined to exercise its equitable

jurisdiction to make an apportionment, because Idaho had not

proved “that Oregon and Washington are now injuring Idaho

by overfishing the Columbia or that they will do so in the

future.”35 The Court concluded that, “[a]lthough it is possible

44 (9th Cir. 1981), aff’g Decision II, 459 F. Supp. at 1066-68 (determining

the primary right claims of the Makah and Lower Elwha Klallam Tribes,

and stating that if disputes concerning their joint fishery should be referred

to the Northwest Indian Fisheries Commission, whose decision “may be

reviewed by the court”). 

31462 U.S. 1017 (1983). 

32Id. at 1024. 

33Id. at 1025. 

34Id. at 1027. 

35Id. at 1028; see also id. at 1028 n.12 (stating that “the Court must look

to factors such as disproportionate reductions in Idaho’s normal harvest,

or reductions in the total fish in the runs” in order to establish “the need

for a decree”). 

8668 UNITED STATES v. WASHINGTON
that Washington and Oregon will mismanage this resource in

the future, Idaho has not carried its burden of demonstrating

a substantial likelihood of injury.”

36

This high burden for pleading and proof differs from ordinary standing doctrine, because suits between sovereigns

require restraint by the courts, and because equitable remedies

are discretionary. The Supreme Court has long held that “[t]he

governing rule is that this Court will not exert its extraordinary power to control the conduct of one State at the suit of

another, unless the threatened invasion of rights is of serious

magnitude and established by clear and convincing evidence.”

37

[3] Like states, Indian tribes are sovereign entities, albeit,

“domestic dependent” sovereigns.38 We held in Moore v. Nelson39 that, under Santa Clara Pueblo v. Martinez,

40 “[t]he

same considerations of federal non-interference in the affairs

of other sovereigns that influenced us in Edmunds [to limit

habeas review of state convictions] apply to our review of the

actions of Indian tribes.”

41

[4] The district court properly dismissed the Skokomish

tribe’s claim for equitable apportionment, because even

accepting that the tribe could prove what it pleaded, that

would not “prove by clear and convincing evidence some real

and substantial injury or damage.” The Skokomish tribe

pleaded that “[f]rom 1976 through the present, Skokomish

has and continues to harvest up to 90% of certain species of

the Hood Canal finfish fishery . . . . [and] up to 80% of certain

36Id. at 1029. 

37Connecticut v. Massachusetts, 282 U.S. 660, 669 (1931). 

38Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). 

39270 F.3d 789, 791 (9th Cir. 2001). 

40436 U.S. 49, 62-63 (1978). 

41Moore, 270 F.3d at 791 (discussing Edmunds v. Won Bae Chang, 509

F.2d 39, 41 (9th Cir. 1975)); see also Solomon v. Interior Regional Hous.

Auth., 313 F.3d 1194, 1200 (9th Cir. 2002). 

UNITED STATES v. WASHINGTON 8669
species of shellfish.” The tribe does not plead any impingement on its ability to obtain whatever fish it claims under the

treaty. All it alleges is that if the court does not make an equitable allocation, its “share will remain uncertain” and other

tribes with greater rights in other areas may at some time

impinge on Skokomish’s fishery.

[5] Intertribal allocations of the fisheries have historically

been a matter for the tribes to resolve amongst themselves, as

sovereigns.42 The Hood Canal Agreement was just such an

act. For that reason, both the trial court and the Supreme

Court in this case disclaimed any responsibility for allocating

the tribal portion of fisheries shared by multiple tribes.43

Assuming that our precedents are correct in holding that the

district court has jurisdiction to make these allocations, it nevertheless retains its discretion under the equitable allocation

doctrine to decline to do so. As in the Idaho ex rel. Evans

case, nothing has happened to the Skokomish that would justify the exercise of jurisdiction in the face of the high fence

the Court has erected against its exercise.44 The Skokomish

tribe pleads no “real and substantial injury or damage.” And

Skokomish pleads that it is taking as much fish now as in the

past.

The Skokomish Tribe has argued that if it cannot obtain

allocations from the district court, then there may be a race for

the fish among the tribes, and there will be no way to regulate

the race. The need for equitable allocation in this case, it

42See, e.g., United States v. Lower Elwha Tribe. 642 F.2d 1141, 1143-

44 & n.4 (9th Cir. 1981); Decision III, 626 F. Supp. at 1490-91 ¶¶ 355-57,

1528 ¶¶ 362-67. 

43See Wash. State Commercial Passenger Fishing Vessel Ass’n, 443

U.S. at 671; Decision I, 384 F. Supp. at 407 ¶ 17, 410 ¶ 12. But see Decision III, 626 F. Supp. at 1470-71 ¶ 4. 

44See Idaho ex rel. Evans, 462 U.S. at 1028 n.12 (stating that “the Court

must look to factors such as disproportionate reductions in Idaho’s normal

harvest, or reductions in the total fish in the runs” in order to establish “the

need for a decree”) 

8670 UNITED STATES v. WASHINGTON
argues, arises from the sovereign immunity of the tribes.

Were it to file a new lawsuit, instead of hanging onto the coattails of the 1970 case enforcing the tribes’ treaty rights against

the State of Washington, then, Skokomish argues, any tribe it

sued could assert its sovereign immunity against suit. That

may be so. But not all problems have judicial solutions. And

for disputes among Indian tribes, there is something to be said

for a private dispute resolution procedure among themselves,

such as the Point No Point Treaty Council or the Northwest

Indian Fisheries Commission, because of their greater familiarity with and sensitivity to the details of the problem and

any cultural factors that may bear on the solution, if there is

one.45

We are puzzled, but need not reach the question, about why

the equitable decree in this case remains in force at all. The

point of the lawsuit the United States filed was to protect

Indian treaty rights from state infringement, not to sort out

competing tribal claims. That goal was achieved,46 and has

nothing to do with the continuing exercise of jurisdiction as

far as we can tell from the record. The goal of “provid[ing]

a volume of fish sufficient to the fair needs of the tribes”

47

seems similarly to have been achieved, as this dispute demonstrates.48

45Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 72 (1978)

(expressing the need for caution before subjecting disputes arising

between Indians to a federal forum). 

46See Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819, 822-824

(Wash. 1979) (overruling past Washington Supreme Court decisions

which had precluded Washington agencies’ attempts at compliance with

the decree, and recognizing that the agencies have the authority to manage

the fishery in a manner that gives full force and effect to the treaty rights

of the Indians). 

47Decision I, 384 F. Supp. at 401 ¶ 20. 

48See also Wash. Dep’t of Fish & Wildlife, 2008-9 Co-Managers’ List

of Agreed Fisheries, http://wdfw.wa.gov/fish/tribal/2008-09agreement.pdf

(Apr. 17, 2008) (describing allocation of fisheries for the 2008-09 harvest). 

UNITED STATES v. WASHINGTON 8671
The original injunction, entered 35 years ago, was intended

to resolve the treaty right fishing disputes once and for all.49

Yet this case has become a Jarndyce and Jarndyce, with

judges dying out of it and whole Indian tribes being born into

it.50 The district court accurately stated fifteen years ago that

“the court has become a regulatory agency perpetually to

manage fishing.” Judges in the Western District of Washington have now been regulating fishing in the Puget Sound for

35 years, with the aid of a Fishery Advisory Board that the

court created.51 The Constitution does not establish the district

courts as permanent administrative agencies.

[6] Now that treaty enforcement is no longer at issue, it is

hard to see why the court still displaces state and federal fish

management agencies. As the Supreme Court held in Frew v.

Hawkins, “[t]he federal court must exercise its equitable powers to ensure that when the objects of the decree have been

attained, responsibility for discharging the State’s obligations

is promptly returned to the State and its officials.”

52 The Court

49See Decision I, 384 F. Supp. at 330 (“The ultimate objective of this

decision is to determine every issue of fact and law presented and, at long

last, thereby finally settle, either in this decision or on appeal thereof, as

many as possible of the divisive problems of treaty right fishing which for

so long have plagued all the citizens of this area, and still do.”). 

50See United States v. Washington, 394 F.3d 1152 (9th Cir. 2005)

(allowing the Samish tribe to reopen previous proceedings finding that it

lacked a treaty right due to its federal recognition as a tribe); Charles

Dickens, Bleak House 3 (1853) (“Jarndyce and Jarndyce drones on. This

scarecrow of a suit has, in course of time, become so complicated, that no

man alive knows what it means. The parties to it understand it least; but

it has been observed that no two Chancery lawyers can talk about it for

five minutes, without coming to a total disagreement as to all the premises.

Innumerable children have been born into the cause; innumerable young

people have married into it; innumerable old people have died out of it.”).

Compare McDonnell Douglas Corp. v. United States, No. 2007-5111,

2009 WL 1515777, at *1 (Fed. Cir. June 2, 2009) (calling an 18 year old

case an “American version of Jarndyce and Jarndyce“).

51See Decision II, 459 F. Supp. at 1061-63. 

52Frew v. Hawkins, 540 U.S. 431, 442 (2004); see also Labor/Cmty.

Strategy Ctr. v. L.A. County Metro. Transp. Auth., 564 F.3d 1115, 1123

8672 UNITED STATES v. WASHINGTON
has repeatedly reminded us that institutional reform injunctions were meant to be temporary solutions, not permanent

interventions, and could be kept in place only so long as the

violation continued.53 Most recently, the Court stated this term

that “[i]f a durable remedy has been implemented, continued

enforcement of the order is not only unnecessary, but improper.”54 No one alleges that the State of Washington’s violations

of the Indian tribes’ treaty rights continue.

In Freeman v. Pitts, the Court listed several factors to consider in determining whether to modify, withdraw supervision

over, or terminate ancient equitable decrees: “whether there

has been full and satisfactory compliance with the decree

. . . ; whether retention of judicial control is necessary or practicable . . .; and whether the [defendant] has demonstrated . . .

its good-faith commitment to the whole of the court’s decree

and to those provisions of the law . . . that were the predicate

for judicial intervention in the first instance.”

55 Horne v. Flores, Rufo v. Inmates of Suffolk County Jail, and Board of Education of Oklahoma City Public Schools v. Dowell all held

that a district court must consider whether the purpose of the

decree has been substantially achieved and whether the public

interest favors modification or termination.56

(9th Cir. 2009) (“Our decision is consistent with the principle that federal

court intervention in state institutions is a temporary measure and may

extend no longer than necessary to cure constitutional violations . . . . In

this case, as the district court found, perhaps every last wish and hope of

the decree was not achieved, but the decree accomplished its essential purposes and the situation improved greatly.”) (citations omitted). 

53Frew, 540 U.S. at 442; Missouri v. Jenkins, 515 U.S. 70, 87-89, 102

(1995); Freeman v. Pitts, 503 U.S. 467, 489-92 (1992); Rufo v. Inmates

of Suffolk County Jail, 502 U.S. 367, 380-93 (1992); Bd. of Educ. of Okla.

City Pub. Schs. v. Dowell, 498 U.S. 237, 247-48 (1991). 

54Horne v. Flores, No. 08-289, slip op. at 13 (U.S. June 25, 2009). 

55Freeman, 503 U.S. at 491. 

56Horne, No. 08-289, slip op. at 13, Rufo, 502 U.S. at 381, 384, 387,

392; Dowell, 498 U.S. at 247-49. 

UNITED STATES v. WASHINGTON 8673
It is hard to see what we achieve in our continuing adjudications. We pretend to be able to read the mind of the long

deceased district judge who initially issued the decree on matters of which he did not speak. And we pretend to determine

what the Indian tribes did 150 years ago at a time for which

there is no evidence of especially high reliability and little

evidence of any kind.57 This exercise is not law, and is not a

reliable way to find facts, so it is hard to see why courts are

doing it and how it could be preferable to the Indian tribes

working some dispute resolution system out for themselves.

[7] We need not in this case decide whether the 1974

decree should now be released, modified, or dissolved,

because no party has asked us to. Such a motion, if made,

would be directed to the discretion of the district court, as

would sua sponte consideration.58

III. Conclusion.

We AFFIRM the dismissal of the request for determination

because Skokomish did not plead “real and substantial injury

or damage” as required for equitable allocation between sovereigns.

57E.g., United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir.

2000); United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.

2000); Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.

1998); United States v. Skokomish Indian Tribe, 764 F.2d 670 (9th Cir.

1985); United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981).

See Decision II, 459 F. Supp. at 1059 (“In determining usual and accustomed fishing places the court cannot follow stringent proof standards

because to do so would likely preclude a finding of any such areas. Little

documentation of Indian fishing locations in and around 1855 exists

today.”). 

58See Lapin v. Shulton, Inc., 333 F.2d 169, 170-72 (9th Cir. 1964). 

8674 UNITED STATES v. WASHINGTON