FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SKOKOMISH INDIAN TRIBE, a federally 

recognized Indian tribe in its own

capacity as a class representative

and as parens patriae; DENNY S.

HURTADO; GORDON A. JAMES; JOSEPH

PAVEL; ANNE PAVEL; MAURES P.

TINAZA; CELESTE F. VIGIL; ROSLYNNE

L. REED; GARY W. PETERSON; RITA

C. ANDREWS; TOM G. STRONG; MARIE

E. GOULEY; VICTORIA J. PAVEL;

DENNIS W. ALLEN; JOSEPH ANDREWS,

SR.; ZETHA CUSH; ELSIE M. ALLEN;

ALEX L. GOULEY, JR.; LAWRENCE L.

KENYON; DORIS MILLER; GERALD B.

M No. 01-35028 ILLER; HELEN M. RUDY; RONALD D.

TWIDDY, SR.; NICK G. WILBUR, SR.,  D.C. No.

Plaintiffs-Appellants, CV-99-05606-FDB

v.

UNITED STATES OF AMERICA; TACOMA

PUBLIC UTILITIES, a Washington

municipal corporation; CITY OF

TACOMA, a Washington municipal

corporation; WILLIAM BARKER,

Tacoma Public Utilities Board

Member in his official capacity; TOM

HILYARD, Tacoma Public Utilities

Board Member in his official

capacity; ROBERT LANE; TIM STREGE;

G. E. VAUGHN,

Defendants-Appellees. 

6169
SKOKOMISH INDIAN TRIBE, a federally 

recognized Indian tribe in its own

capacity as a class representative

and as parens patriae; DENNY S.

HURTADO; GORDON A. JAMES; JOSEPH

PAVEL; ANNE PAVEL; MAURES P.

TINAZA; CELESTE F. VIGIL; ROSLYNNE

L. REED; GARY W. PETERSON; RITA

C. ANDREWS; TOM G. STRONG; MARIE

E. GOULEY; VICTORIA J. PAVEL;

DENNIS W. ALLEN; JOSEPH ANDREWS,

SR.; ZETHA CUSH; ELSIE M. ALLEN;

ALEX L. GOULEY, JR.; LAWRENCE L.

KENYON; DORIS MILLER; GERALD B. No. 01-35845 MILLER; HELEN M. RUDY; RONALD D.

TWIDDY D.C. No. , SR.; NICK G. WILBUR, SR.,

Skokomish Indian Tribal members CV-99-05606-FDB  for themselves and all others ORDER AND

similarly situated, AMENDED

Plaintiffs-Appellants, OPINION

v.

TACOMA PUBLIC UTILITIES, a

Washington municipal corporation;

CITY OF TACOMA, a Washington

municipal corporation; WILLIAM

BARKER, Tacoma Public Utilities

Board Member in his official

capacity; TOM HILYARD, Tacoma

Public Utilities Board Member in his

official capacity; ROBERT LANE; TIM

STREGE; G. E. VAUGHN; UNITED

STATES INTERNAL REVENUE SERVICE,

Defendants-Appellees. 

6170 SKOKOMISH INDIAN TRIBE v. UNITED STATES
Appeals from the United States District Court

for the Western District of Washington

Franklin D. Burgess, District Judge, Presiding

Argued and Submitted

March 23, 2004—San Francisco, California

Filed March 9, 2005

Amended June 3, 2005

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Alex Kozinski, Pamela Ann Rymer, Susan P. Graber,

Ronald M. Gould, Richard A. Paez, Marsha S. Berzon,

Johnnie B. Rawlinson, Jay S. Bybee and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Kozinski;

Partial Concurrence and Partial Dissent by Judge Graber;

Dissent by Judge Berzon

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6171
COUNSEL

Mason D. Morisset, Morisset, Schloser, Jozwiak & McGaw,

Seattle, Washington, for the plaintiffs-appellants. 

Philip H. Lynch, Assistant United States Attorney, Tacoma,

Washington, for defendant-appellee the United States. 

6174 SKOKOMISH INDIAN TRIBE v. UNITED STATES
J. Richard Creatura, Gordon, Thomas, Honeywell, Melanca,

Peterson & Daheim, LLP, Tacoma, Washington, for

defendants-appellees the City of Tacoma and Tacoma Public

Utilities. 

Philip E. Katzen, Kanji & Katzen, PLLC, Seattle, Washington, for the amici curiae. 

ORDER

The opinion filed on March 9, 2005, is amended as follows.

Part II Section B, labeled “Reserved Water Rights Claim”, is

deleted. Part II Section C, labeled “State-Law Claims”,

becomes Part II Section B. Part II Section D, labeled “16

U.S.C. § 803(c)”, becomes Part II Section C. 

Judge Berzon’s opinion dissenting in part is amended as

follows. Footnote 1 of the dissenting opinion is revised to

read as follows: “I dissent only from subsection A (“TreatyBased Claims”) of Part II (“Claims Against the City of

Tacoma and Tacoma Public Utilities”) of the majority opinion.” Part III of the dissenting opinion is deleted. The second

sentence of the final paragraph of the dissenting opinion,

which reads “I also dissent from the grant of summary judgment on the reserved water rights claim,” is deleted. 

Appellant Skokomish Indian Tribe’s motion, filed on May

10, 2005, for leave to file a reply to Appellee City of Tacoma’s response to the petition for additional rehearing or full

court rehearing en banc is GRANTED. The motion of amici

curiae, filed on April 21, 2005, to file a brief supporting the

petition for additional rehearing or full court rehearing en

banc is GRANTED. The petition for additional rehearing or

full court rehearing en banc is DENIED. No further petitions

will be accepted.

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6175
OPINION

KOZINSKI, Circuit Judge: 

Can an Indian tribe bring claims against the United States

under the Federal Tort Claims Act for violation of a treaty, or

against a city and a public utility under a treaty and 42 U.S.C.

§ 1983? 

FACTS

The Skokomish Indian Tribe (“Tribe”) and its members

brought suit in federal district court against the United States,

the City of Tacoma (“City”) and Tacoma Public Utilities

(“TPU”), alleging harms caused by the Cushman Hydroelectric Project (“Project”), a City-owned project comprised of

two dams, two reservoirs, diversion works, two power houses

and transmission lines. The Project, completed in 1930, floods

over thirty acres of federal land in a total project area of 4700

acres located upstream from the Tribe’s land. The Project has

diverted the flow of the Skokomish River’s North Fork to

power-generating facilities and led to aggradation of the river.1

This has allegedly caused flooding of the Tribe’s reservation,

failure of septic systems, contamination of water wells, blocking of fish migration, damage to the Tribe’s orchards and pastures and silting over of many of the Tribe’s fisheries and

shellfish beaches. The Tribe claims the Project has caused it

nearly $5 billion in losses. 

The Tribe sued for damages resulting from the Project’s

impact on tribal lands and fisheries, alleging both state and

federal causes of action, including claims arising under the

Treaty of Point No Point (“Treaty”), Jan. 26, 1855, 12 Stat.

933. The Treaty ceded the Tribe’s territory to the United

States, but reserved a tract for the Tribe. It also reserved for

1Aggradation occurs when deposits of sediment cause the floor of the

river to build up over time, leading to flooding and elevated water tables.

6176 SKOKOMISH INDIAN TRIBE v. UNITED STATES
the Tribe “[t]he right of taking fish at usual and accustomed

grounds and stations . . . in common with all citizens of the

United States” and “the privilege of hunting and gathering

roots and berries on open and unclaimed lands.” Id., art. 4. 

The district court dismissed the United States as a defendant and granted summary judgment in favor of the City and

TPU on the treaty-based and state-law claims. The court also

dismissed the Tribe’s claim under 16 U.S.C. § 803(c) for failure to state a claim upon which relief could be granted. A

divided panel of our court affirmed, but held that the district

court should have dismissed the treaty-based claims for lack

of subject matter jurisdiction. We took the case en banc. Skokomish Indian Tribe v. United States, 358 F.3d 1180, 1181

(9th Cir. 2004). 

ANALYSIS

I. Claims Against the United States

A. Treaty-Based Claims

The Tribe seeks relief against the United States pursuant to

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346.

The Tribe alleges that the United States violated its obligations under the Treaty by allowing continued operations of the

Project and by failing to take legal action on the Tribe’s

behalf or fund litigation, thereby breaching its fiduciary

responsibilities to the Tribe under the Treaty. 

[1] These claims are not properly brought under the FTCA,

which authorizes suits against the United States

for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or employment,

under circumstances where the United States, if a

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6177
private person, would be liable to the claimant in

accordance with the law of the place where the act

or omission occurred. 

28 U.S.C. § 1346(b)(1) (emphasis added).2 The Tribe’s claims

against the United States are properly characterized not as tort

claims, but as claims that the United States violated its obligations under the Treaty. The claims are thus quite different

from those in cases like Berkovitz v. United States, 486 U.S.

531 (1988), and Indian Towing Co. v. United States, 350 U.S.

61 (1955), on which the Tribe relies. In Berkovitz, a federal

agency allegedly acted tortiously in approving the release of

a polio vaccine that did not meet safety standards. In Indian

Towing, the Coast Guard acted negligently in its operation of

a lighthouse because it did not “use due care to make certain

that the light was kept in good working order,” causing more

than $60,000 in damages to a barge and its cargo. 350 U.S.

at 69. The Tribe is not claiming the United States behaved tortiously, but rather that the United States failed to abide by its

contractual obligations to the Tribe under the Treaty. 

[2] The Tribe’s claims may best be characterized as arising

under the Tucker Act, 28 U.S.C. § 1491, or its counterpart for

Indian claims, the Indian Tucker Act, 28 U.S.C. § 1505. The

Tucker Act gives the Court of Federal Claims exclusive jurisdiction over claims for damages exceeding $10,000 that are

“founded . . . upon any express or implied contract with the

United States.” 28 U.S.C. § 1491(a)(1). The Indian Tucker

Act extends the Court of Federal Claims’ jurisdiction to

any tribe, band, or other identifiable group of American Indians residing within the territorial limits of

2The FTCA also requires plaintiffs to exhaust their administrative remedies before bringing suit. See McNeil v. United States, 508 U.S. 106, 112

(1993). The Tribe met this requirement by filing an administrative claim

for damages on September 22, 1997, which was rejected on November 20,

1997. See Amended Complaint at 32. 

6178 SKOKOMISH INDIAN TRIBE v. UNITED STATES
the United States or Alaska whenever such claim is

one arising under the Constitution, laws or treaties of

the United States, or Executive orders of the President, or is one which otherwise would be cognizable

in the Court of Federal Claims if the claimant were

not an Indian tribe, band or group. 

28 U.S.C. § 1505.3 It is under the Tucker and Indian Tucker

Acts that the federal courts have considered claims most similar to those of the Tribe. For example, in United States v.

Mitchell (Mitchell II), 463 U.S. 206, 208 (1983), an Indian

tribe brought a Tucker Act cause of action in the Court of

Claims (the Court of Federal Claims’ predecessor) against the

United States for breach of trust responsibilities that originated with a treaty, which was later codified in federal law.

This is very much like our case, in which the Tribe’s claims

against the United States are for breach of its fiduciary obligations under the Treaty. 

[3] Because we lack subject matter jurisdiction over the

Tribe’s damages claims against the United States, but believe

they might properly have been brought under the Indian

Tucker Act, we exercise our discretion to transfer these claims

to the Court of Federal Claims. See 28 U.S.C. § 1631

(“Whenever . . . an appeal, including a petition for review of

administrative action, is noticed for or filed with . . . a court

and that court finds that there is a want of jurisdiction, the

court shall, if it is in the interest of justice, transfer such action

or appeal to any other such court in which the action or appeal

could have been brought at the time it was filed or noticed

. . . .”); Beck v. Atl. Richfield Co., 62 F.3d 1240, 1242 n.4 (9th

Cir. 1995) (per curiam). 

3The Indian Tucker Act is identical to the Tucker Act, except that it

specifies Indian tribes as eligible claimants. The Indian Tucker Act was

passed because there had been considerable doubt as to whether the

Tucker Act applied to Indian tribes. See Gregory C. Sisk, Yesterday and

Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity, 39

Tulsa L. Rev. 313, 316 (2003). 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6179
B. Federal Power Act Claims

The Tribe also asserts the United States violated the Federal Power Act (FPA), 16 U.S.C. §§ 791a-828c, by failing to

submit and include license conditions protective of the Skokomish Reservation fish and wildlife, to fully consider environmental factors before issuing a project license, and to

require evidence that the City, as a license applicant, possessed sufficient water rights for the Project and complied

with state and federal laws requiring fishways at dams and

prohibiting impairment of navigation. The FPA, however,

specifically provides: “Each licensee hereunder shall be liable

for all damages occasioned to the property of others by the

construction, maintenance, or operation of the project works

or of the works appurtenant or accessory thereto, constructed

under the license, and in no event shall the United States be

liable therefor.” 16 U.S.C. § 803(c) (emphasis added). 

[4] The plain language of the FPA is clear. It differentiates

between the United States and licensees, and unequivocally

exempts the United States from liability. When the statutory

language is clear, it trumps. Lamie v. United States Tr., 124

S. Ct. 1023, 1030 (2004). We therefore affirm the district

court’s dismissal of all FPA claims against the United States.

II. Claims Against the City of Tacoma and

Tacoma Public Utilities

A. Treaty-Based Claims4

4We reject defendants’ contention that the FPA preempts the Tribe’s

treaty-based damages claims against the City and TPU. Defendants’ argument is based on the fact that in 1924, the City received a license from the

Federal Power Commission (FPC) authorizing the flooding of 8.8 acres of

federal land that would result from the Project. See City of Tacoma, 67

F.E.R.C. ¶ 61,152, at 61,440 (1994). Defendants assert that the Tribe’s

treaty-based claims are actually collateral attacks on the licensing decision, which are governed by the FPA and which the district court lacked

subject matter jurisdiction to consider. See 16 U.S.C. § 825l(b). 

6180 SKOKOMISH INDIAN TRIBE v. UNITED STATES
[5] 1. A treaty between the United States and an Indian

tribe “is essentially a contract between two sovereign

nations.” Washington v. Wash. State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979) (Fishing Vessel). Nonetheless, treaties constitute the “supreme law of the

land,” Breard v. Greene, 523 U.S. 371, 376 (1998) (per

curiam), and they have occasionally been found to provide

rights of action for equitable relief against non-contracting

parties, see United States v. Winans, 198 U.S. 371, 377

(1905). 

Equitable relief, however, merely ensures compliance with

a treaty; that is, it forces state governmental entities and their

officers to conform their conduct to federal law. The Tribe

here would have us go further and hold that it may recover

monetary damages against the City and TPU for alleged treaty

violations. We find no basis for doing so.5

The 1924 license was a narrow “minor part” license, applying by its

terms only to “the occupancy and use of a tract of land approximately 8.8

acres in area . . . said land constituting a minor part of said power project.”

As the Federal Energy Regulatory Commission—the FPC’s successor—

has recognized, the license did not “authorize the construction, operation,

and maintenance of the Cushman Project.” City of Tacoma, 67 F.E.R.C.

at ¶ 61,440. 

It is true that the FPA “provides exclusive jurisdiction for the Courts of

Appeals to review and make substantive modifications to FERC licensing

orders.” Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911

(9th Cir. 1989). But the Tribe is not attempting to collaterally attack the

1924 licensing decision; rather, it is suing for damages based on impacts

that are not covered by the license. The FPA does not preempt the Tribe’s

treaty-based claims. 

5

Judge Berzon’s dissent misreads our opinion as assuming that “the

cases upholding causes of action for violation of Indian treaty rights but

providing only equitable relief implicitly held that damages are not available.” Berzon dissent at 6205. We find only that those cases did not recognize an implied right of action for damages, and that there are no grounds

for inferring that the parties to the Treaty intended to create such an action.

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6181
[6] The Supreme Court has held that the Treaty of Point No

Point and similar treaties are “self-enforcing” and thus do not

require implementing legislation to form the basis of a lawsuit. See Fishing Vessel, 443 U.S. at 693 n.33. To make this

determination, the Court looked at language common to the

treaties, which stated that the treaties “shall be obligatory on

the contracting parties as soon as [they are] ratified by the

President and Senate of the United States.” Id. (emphasis

added) (alteration in original) (internal quotation marks omitted); see also Treaty, art. 14. However, the City and TPU are

not contracting parties to the Treaty. Nor is there anything in

the language of the Treaty that would support a claim for

damages against a non-contracting party. Cf. Alexander v.

Sandoval, 532 U.S. 275, 286 (2001) (“The judicial task is to

interpret the statute Congress has passed to determine whether

it displays an intent to create not just a private right but also

a private remedy.”); Touche Ross & Co. v. Redington, 442

U.S. 560, 568 (1979) (“[O]ur task is limited solely to determining whether Congress intended to create the private right

of action asserted . . . . And as with any case involving the

interpretation of a statute, our analysis must begin with the

language of the statute itself.”). 

The Tribe has argued that in Fishing Vessel and Puyallup

Tribe v. Department of Game of Washington (Puyallup I),

391 U.S. 392 (1968), the Supreme Court held that tribes may

have a cause of action against non-contracting parties under

Cf. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284 (1998) (stating that courts implying rights of action “have a measure of latitude to

shape a sensible remedial scheme that best comports” with the relevant

enactment). 

Similarly mistaken is the dissent’s description of our opinion as holding

that “Indian tribes and their members cannot, under federal law, sue

municipalities for damages for violation of rights secured by Indian treaties.” Berzon dissent at 6198. We analyze a specific set of claims brought

under a specific treaty, and we thus have no occasion to consider whether

different rights of action might be implied from other treaties. 

6182 SKOKOMISH INDIAN TRIBE v. UNITED STATES
a treaty, even in the absence of a specific treaty provision. But

the Tribe misunderstands the significance of those cases. In

Fishing Vessel, the Court interpreted a group of treaties,

including the one at issue here, which granted Indian tribes

“ ‘[t]he right of taking fish, at all usual and accustomed

grounds and stations . . . in common with all citizens . . . .’ ”

443 U.S. at 674 (quoting Treaty of Medicine Creek, Dec. 26,

1854, art. 3, 10 Stat. 1132, substantially similar to Treaty of

Point No Point, art. 4). The Court held that this provision

secured to the tribes the right to harvest a share of each run

of anadromous fish that passed through tribal fishing areas

and not merely a right to compete with non-treaty fishermen

on an equal basis. Id. at 683-85. The tribes were thus entitled

to an equal measure of the harvestable portion of each run that

passed through a “usual and accustomed” tribal fishing

ground, adjusted downward if tribal needs could be satisfied

by a lesser amount. Id. at 685-89. 

The Court then held that its order was enforceable by

injunction. See id. at 692 n.32. This is quite different from

finding a right to sue a non-contracting party for damages

under a treaty—a theory the Supreme Court avoided in Fishing Vessel. 

Puyallup I is not to the contrary. In that case, the Court held

that the State of Washington—a non-party to a treaty between

the Puyallup Tribe and the United States—could regulate the

modes of fishing allowed as an appropriate exercise of the

State’s police power because “the manner in which the fishing may be done and its purpose . . . are not mentioned in the

Treaty.” 391 U.S. at 398. The Court suggested that, even

though the state could regulate in this instance, it could not

pass legislation that would directly interfere with rights

secured by a treaty. See id. (“We would have quite a different

case if the Treaty had preserved the right to fish at the ‘usual

and accustomed places’ in the ‘usual and accustomed’ manner.”). But the Court did not hold that the Tribe had a private

right of action under the Treaty for damages. In fact, the PuySKOKOMISH INDIAN TRIBE v. UNITED STATES 6183
allup Tribe did not bring a claim at all. It was the State of

Washington that had sued the Tribe, seeking an injunction and

declaratory relief that would allow the State to regulate certain fishing areas named in the Treaty. The Court did not consider whether the Tribe had a right of action even for

equitable relief, let alone monetary damages going back

nearly seventy-five years. 

The Tribe gets no help from Antoine v. Washington, 420

U.S. 194 (1975). Antoine stands for the proposition that when

a treaty has been implemented by Congress, “neither an

express provision precluding state qualification nor the consent of the State [is] required” to subject a state to the provisions of the treaty. Id. at 205. Holding that a state is precluded

from passing laws inconsistent with a treaty is quite different

from saying that a non-contracting party can be sued for damages under the treaty. 

Finally, County of Oneida v. Oneida Indian Nation, 470

U.S. 226 (1985) (County of Oneida II), is inapposite. In that

case, the Supreme Court found that the plaintiff tribes could

assert a federal common law damages claim for unlawful possession of land. The Court’s decision was not based on any

treaty. Rather, it was based on well-established federal common law principles regarding aboriginal possessory rights in

land. See id. at 235-36. By contrast, the Tribe in our case is

seeking to collect damages for violation of fishing rights

reserved to it by treaty. 

[7] Thus, we hold that there is no basis for implying the

right of action for damages that the Tribe seeks to assert. 

[8] 2. We turn next to the Tribe’s claims under 42 U.S.C.

§ 1983. The Supreme Court recently held in Inyo County v.

Paiute-Shoshone Indians, 538 U.S. 701, 708-12 (2003), that

a Tribe is not a “person” capable of bringing a claim under

section 1983 for violation of a sovereign prerogative. The

Court reasoned that “qualification of a sovereign as a ‘person’

6184 SKOKOMISH INDIAN TRIBE v. UNITED STATES
who may maintain a particular claim for relief depends . . . on

the ‘legislative environment’ in which the word appears.” Id.

at 711 (quoting Georgia v. Evans, 316 U.S. 159, 161 (1942)).

To illustrate circumstances in which sovereigns may assert

claims under section 1983, the Court cited Evans, in which “a

State, as purchaser of asphalt shipped in interstate commerce,

qualified as a ‘person’ entitled to seek redress under the Sherman Act for restraint of trade.” Inyo County, 538 U.S. at 711

(citing Evans, 316 U.S. at 160-63). It also cited Pfizer Inc. v.

Government of India, 434 U.S. 308 (1978), which “held that

a foreign nation, as purchaser of antibiotics, ranked as a ‘person’ qualified to sue pharmaceuticals manufacturers under our

antitrust laws.” 538 U.S. at 711 (citing Pfizer, 434 U.S. at

309-20). 

[9] The Tribe here is not suing as an aggrieved purchaser,

or in any other capacity resembling a “private person[ ].” Id.

at 712. Rather, the Tribe is attempting to assert communal

fishing rights reserved to it, as a sovereign, by a treaty it

entered into with the United States. See United States v.

Washington, 520 F.2d 676, 688 (9th Cir. 1975) (“The treaties

must be viewed as agreements between independent and sovereign nations . . . . Each tribe bargained as an entity for rights

which were to be enjoyed communally.”). Recognizing that

“[s]ection 1983 was designed to secure private rights against

government encroachment,” id. at 712, as well as the “longstanding interpretive presumption that ‘person’ does not

include the sovereign,” Vt. Agency of Natural Res. v. United

States ex rel. Stevens, 529 U.S. 765, 780 (2000), we conclude

that the Tribe may not assert its treaty-based fishing rights

under section 1983.6

6

In her dissent, Judge Berzon relies on United States v. Washington, 935

F.2d 1059 (9th Cir. 1991) (Washington II). Berzon dissent at 6211-12. But

in that case we ruled only that lower courts must distinguish “between litigation defining and enforcing” treaty rights in determining whether attorney’s fees should be awarded under 42 U.S.C. § 1988. Id. at 1061. We did

not consider, let alone resolve, whether Indian tribes may properly sue as

“persons” under section 1983 for violation of treaty-based rights; the question does not appear to have been raised. 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6185
As for the individual members of the Tribe, while we have

suggested that some treaty-based rights might be cognizable

on behalf of a tribe’s members under section 1983, see United

States v. Washington, 813 F.2d 1020, 1023 (9th Cir. 1987),

we have noted that the hallmark for determining the scope of

section 1983 coverage is whether the right asserted “is one

‘that protects the individual against government intrusion,’ ”

Hoopa Valley Tribe v. Nevins, 881 F.2d 657, 662 (9th Cir.

1989) (quoting White Mountain Apache Tribe v. Williams,

810 F.2d 844, 848 (9th Cir. 1987)). In Hoopa Valley, for

instance, we held that section 1983 could not be used to

enforce a collective right to tribal self-government. 

[10] The Tribe’s treaty-based rights do not give rise to individual actions cognizable under section 1983. As we stated in

Settler v. Lameer, 507 F.2d 231, 237 (9th Cir. 1974), with

regard to fishing rights similar to those that the Tribe’s members assert here, “the fishing rights reserved in [the relevant

treaty] are communal rights of the Tribe, even though the

individual members benefit from those rights.” See also

Whitefoot v. United States, 293 F.2d 658, 663 (Ct. Cl. 1961)

(noting that “interests in . . . fisheries are communal, subject

to tribal regulation”).7 Because the Tribe’s members seek to

7

Judge Berzon disagrees with our conclusion in significant part based

on Kimball v. Callahan, 590 F.2d 768 (9th Cir. 1979) (Kimball II), where

we reaffirmed our prior holding in Kimball v. Callahan, 493 F.2d 564 (9th

Cir. 1974) (Kimball I), that an individual Indian “possessing treaty rights

to hunt, fish, and trap” on a former reservation “retained those rights even

though he relinquished his tribal membership pursuant to” a tribal termination act. Kimball II, 590 F.2d at 772. As the dissent concedes, however,

the Kimball cases “did not involve a suit brought under § 1983.” Berzon

dissent at 6212. Moreover, the cases dealt with the rights of individual

Indians after their tribe was terminated. Indeed, we expressly distinguished Washington, 520 F.2d at 688, and Whitefoot, 293 F.2d at 663, on

the ground that “[n]either of these cases . . . was concerned, as was Kimball I, with the tribal rights of individual Indians upon the termination of

a tribe.” Kimball II, 590 F.2d at 772. Our case likewise does not involve

claims made by individual Indians after the tribal entity has been terminated. 

6186 SKOKOMISH INDIAN TRIBE v. UNITED STATES
vindicate communal, rather than individual rights, they do not

have cognizable section 1983 claims against the City or TPU.8

Kimball II further limited Kimball I by noting that “the court’s statement [in Kimball I] that treaty rights to hunt and fish are rights of the individual Indian must be understood within the context of the two cases cited

in its support.” Id. at 772-73 (footnote omitted). The first of these cases,

McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973), “involve[d] the narrow question whether the State may tax a reservation

Indian for income earned exclusively on the reservation,” id. at 168, and

was based on the general policy of “leaving Indians free from state jurisdiction and control,” id. (quoting Rice v. Olson, 324 U.S. 786, 789 (1945))

(internal quotation marks omitted). The second, Mason v. Sams, 5 F.2d

255 (W.D. Wash. 1925), dealt with whether “the Commissioner of Indian

Affairs could enforce regulations made by him without tribal consent

which required [tribe members] to pay a royalty for the fish they caught

in reservation streams to be used by the Tribe for the care of the aged and

destitute members of the Tribe and for general agency purposes.” Kimball

II, 590 F.2d at 773. Here, by contrast, the Tribe’s members are not

attempting to challenge governmental regulation of individual Indians.

Our opinions in Kimball I and Kimball II, then, provide little guidance. 

8The Tribe argues that section 1983 protects communal rights. But the

cases on which the Tribe relies do not support its position. In Romero v.

Kitsap County, 931 F.2d 624 (9th Cir. 1991), we acknowledged that section 1983 claims for deprivations of treaty rights may be cognizable

“under specified circumstances,” id. at 627 n.5 (citing Hoopa Valley, 881

F.2d at 661-63), but we offered no additional insight into the issue.

Romero itself was brought by, among others, individual tribal members

who were arrested for gathering shellfish in areas they claimed were

treaty-protected. The individuals brought suit under section 1983 against

the officers who arrested them. This was a traditional section 1983 suit for

unlawful arrest, clearly distinguishable from our case. 

Similarly, Shoshone-Bannock Tribes v. Fish & Game Commission, 42

F.3d 1278 (9th Cir. 1994), addressed whether the plaintiff actually

intended to sue officers of the Idaho Fish and Game Commission in their

individual capacities under section 1983. See id. at 1284-85. Following a

close textual analysis of the complaint, we held that it did name one officer in his individual capacity, alleging violations of the Due Process and

Equal Protection Clauses, as well as treaty rights. We did not consider

when a section 1983 claim could be brought to vindicate treaty rights. 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6187
[11] We therefore affirm the district court’s grant of summary judgment in favor of the City and TPU. The Tribe’s

claims cannot be asserted under the Treaty or under section

1983. 

B. State-Law Claims

The Tribe brought a series of state-law claims against the

City and TPU based on the property damage resulting from

aggradation of the Skokomish River. The claims included

inverse condemnation, trespass, tortious interference with

property, conversion, negligence, negligent misrepresentation,

private and public nuisance, and violation of Washington

Revised Code section 4.24.630, which prohibits persons from

going onto the land of another and wrongfully causing waste

or injury to the land or to personal property. We find that all

of the Tribe’s state-law claims are barred by the applicable

statutes of limitations. 

[12] Under Washington law, the statute of limitations for

inverse condemnation is ten years. Highline Sch. Dist. No.

401 v. Port of Seattle, 548 P.2d 1085, 1089 (Wash. 1976).

The statutes of limitations for trespass, negligence, conversion, tortious interference, nuisance and actions under Washington Revised Code section 4.24.630 are three years. See

Wash. Rev. Code § 4.16.080.9

9The Tribe argues that the Indian Claims Limitation Act of 1982

(“ICLA”), 28 U.S.C. § 2415, preserves the Tribe’s aggradation-related

claims. Under the ICLA, claims brought by Indian tribes are subject to a

six-year and ninety-day statute of limitations, unless preserved by publication in the Federal Register. Any cause of action not published in the Federal Register is barred sixty days after the date of publication. Id. Claims

included on the list are not barred until after the Secretary of the Department of the Interior either (1) publishes in the Federal Register a notice

of rejection of the claim, and a complaint is not filed by the claimant

within one year of the Federal Register notice; or (2) submits a legislative

proposal to Congress, in which case any right of action on that claim is

barred unless the claimant files a complaint within three years of the sub6188 SKOKOMISH INDIAN TRIBE v. UNITED STATES
The district court found that the Tribe’s aggradation-related

claims began to accrue no later than February 16, 1989. On

that date, Russell Busch, then attorney for the Tribe, wrote a

mission to Congress. Id. “So long as a listed claim is neither acted upon

nor formally rejected by the Secretary, it remains live.” County of Oneida

II, 470 U.S. at 243. 

The ICLA does not apply to state-law claims, as the Tribe conceded at

argument. Instead, we apply state statutes of limitations to state-law

claims. See Nev. Power Co. v. Monsanto Co., 955 F.2d 1304, 1306 (9th

Cir. 1992). But even if the ICLA were to apply, the Tribe’s state-law

claims are distinct from the preserved fishery claims. The Tribe preserved

claims relating to “fishery” damage caused by the Cushman Dam. Though

there is not much evidence in the record detailing the preserved claims, the

Solicitor of the Department of the Interior described them as based on

“[d]estruction of fishery by diversion of water for hydroelectric project on

North Fork River.” Supp. E.R. at 404K. In a letter submitted to Congress

urging an extension of the statute of limitations, the Tribe described its

preserved claims as follows: 

The first case is a major fisheries damage claim against the

City of Tacoma. During the 1920’s, the City of Tacoma constructed a complex of two high dams on the North Fork of the

Skokomish River, thus diverting its entire flow to power generating facilities located on the Skokomish Indian Reservation . . . .

The diversion . . . destroyed the most significant fish producing

stream of the Skokomish River system and its excellent runs of

salmon and steelhead. 

Supp. E.R. at 406-07. 

The state-law claims concern the effect of aggradation on tribal property, whereas the preserved claims center around the diversion of water

and loss of fish. The Tribe itself admits that it did not know about the

aggradation-related damage when it listed its claims under the ICLA in the

early 1980s. See Appellant’s Opening Br. at 40. Though the Tribe urges

us to construe its preserved claims liberally to include aggradation-related

damages, see id. (citing Montana v. Blackfeet Tribe of Indians, 471 U.S.

759, 766 (1985)), the requirement that we interpret statutes and treaties

broadly in favor of Indian tribes cannot be extended to reach cases where

a particular interpretation could not have been contemplated by the parties.

Thus, even if the ICLA were applicable, it would not extend any of the

Tribe’s state-law claims. 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6189
letter to Gary Hansen at the Washington Department of Ecology, stating: 

Please consider this letter both a formal protest

and an intergovernmental comment by the Skokomish Indian Tribe with regard to the referenced water

rights Applications for Permit and any other water

use authorizations sought by the City of Tacoma in

the Skokomish River Basin. 

. . . 

The Skokomish Tribe resides upon a federal

Indian Reservation on the Skokomish River downstream from the Applicant’s [City of Tacoma] diversions and impoundments. It is the position of the

Tribe that Applicant’s actions reduce the natural

flow of the river in such a way that: (1) Indian treaty

fisheries are seriously reduced both on the Reservation and at other usual and accustomed places, in

violation of the Treaty of Point No Point; (2) the federal reserved water rights of the Skokomish Reservation are unlawfully interfered with; and (3) the

reduction of tributary inflow caused by Tacoma’s

impoundments and diversions is a direct and proximate cause of channel aggradation and flooding on

[and] above the reservation.

Supp. E.R. at 408. 

[13] We agree with the district court that this was the applicable date of accrual. Though the Tribe argues that this is a

factual issue that should have been submitted to the jury,

where there is clear evidence of when the claims accrued, the

court may make this determination. See Reichelt v. JohnsManville Corp., 733 P.2d 530, 535-36 (Wash. 1987); Fradkin

v. Northshore Util. Dist., 977 P.2d 1265, 1268 (Wash. Ct.

6190 SKOKOMISH INDIAN TRIBE v. UNITED STATES
App. 1999). To start the statute of limitations running in

Washington, all that is required is: 

[W]hen a plaintiff is placed on notice by some

appreciable harm occasioned by another’s wrongful

conduct, the plaintiff must make further diligent

inquiry to ascertain the scope of actual harm. The

plaintiff is charged with what a reasonable inquiry

would have discovered. Stated more succinctly, the

law does not require a smoking gun in order for the

statute of limitations to commence. 

Giraud v. Quincy Farm & Chem., 6 P.3d 104, 109 (Wash. Ct.

App. 2000) (internal quotation marks and citations omitted).

Busch’s “formal protest” of the Project in 1989 is sufficient

to meet this standard. Thus, because the Tribe did not file its

complaint until November 19, 1999, more than ten years after

its aggradation-related claims accrued, its claims are timebarred. 

[14] There is an exception to the statute of limitations for

certain trespass claims. Where a plaintiff can show that its

claim is a “continuing” violation, “the statute of limitation

serves only to limit damages to those incurred in the threeyear period before the suit was filed.” Fradkin, 977 P.2d at

1267. To show a continuing violation, the plaintiff must demonstrate that the damage is “reasonably abatable,” id., which

means that “[t]he condition . . . can be removed ‘without

unreasonable hardship and expense,’ ” id. at 1270 n.25 (quoting Mangini v. Aerojet-Gen. Corp., 912 P.2d 1220, 1225 (Cal.

1996)). It is the plaintiff’s burden to prove reasonable abatability. See Mangini, 912 P.2d at 1225-26. 

[15] The district court held that the Tribe’s alleged damages were not reasonably abatable, precluding a finding of a

continuing violation. The Tribe’s expert estimated the value

of the Tribe’s property before the damage at $2,170,040.

Supp. E.R. at 410, 421. The same expert estimated the total

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6191
remediation cost at $3,770,500. Id. Given this large discrepancy between the cost of repair and the actual value of the

land, it is clear that the damages could be abated only with

unreasonable hardship and expense.10 The district court correctly concluded that there was no continuing violation. 

C. 16 U.S.C. § 803(c)

The Tribe also claims the City and TPU violated 16 U.S.C.

§ 803(c), which requires licensees to maintain project works

in a condition so as not to impair navigation. Section 803(c)

provides that “[e]ach licensee hereunder shall be liable for all

damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the

works appurtenant or accessory thereto, constructed under the

license, and in no event shall the United States be liable therefor.” 

The district court dismissed for failure to state a claim upon

which relief could be granted, holding that section 803(c)

does not provide a private right of action. This follows the

Second Circuit’s decision in DiLaura v. Power Authority of

State of N.Y., 982 F.2d 73 (2d Cir. 1992), and the D.C. Circuit’s decision in South Carolina Public Service Authority v.

FERC, 850 F.2d 788 (D.C. Cir. 1988). 

[16] DiLaura and South Carolina Public Service Authority

10In her dissent, Judge Graber relies on the license that FERC issued to

the City in 1998, which directed the City to file a plan for “enhancing the

channel conveyance capacity of the mainstem Skokomish River.” See E.R.

at 177; Graber dissent at 6195-96, 6197. But the license states only that

the cost of financing the plan may be no more than $5 million, and the

Tribe offers no reason to think the actual cost of abatement would be

materially less than this maximum. As for Judge Graber’s reliance on the

possibility that the cost of abatement might “perhaps” be lower than the

remediation cost estimates offered by the Tribe, see Graber dissent at

6197, the Tribe cannot overcome defendants’ motion for summary judgment on the basis of such conjecture. 

6192 SKOKOMISH INDIAN TRIBE v. UNITED STATES
held that section 803(c) does not create a federal private right

of action, but instead preserves only existing state-law claims

against licensees. DiLaura, 982 F.2d at 77-79; S.C. Pub. Serv.

Auth., 850 F.2d at 793-95. Their holdings were based on a

reading of the statute as well as its legislative history. The legislative history revealed that all discussion during the floor

debates centered on the premise that “damages caused by

licensees should be determined in accordance with state law.”

Id. at 795. As the D.C. Circuit explained, since “Congress

intended for [the statute] merely to preserve existing state

laws governing the damage liability of licensees, it follows

that the Commission may not encroach upon this state domain

by engrafting its own rules of liability.” Id. We believe this

interpretation of section 803(c) is the correct one and thus see

no cause for parting company with our sister circuits. We

affirm the district court’s dismissal of the Tribe’s section

803(c) claim. 

III. Recusal Motion

The Tribe also appeals the district court’s denial of its

motion to disqualify the district judge. Sixteen months after

filing its complaint, and after the district court had already

ruled on a number of claims, the Tribe asserted that Judge

Burgess had an obligation to recuse himself because he was

a utility customer, and the outcome of the case might substantially affect his utility bill. Judge Burgess denied the motion,

finding it untimely. The Tribe moved for reconsideration, and

Judge Burgess again denied recusal. Judge Burgess then

referred the motion to Chief District Judge Coughenour, who

also held it was untimely, because Judge Burgess had already

ruled on at least fifteen different motions and trial was less

than five months away. 

[17] A motion for recusal must be made with “reasonable

promptness after the ground for such a motion is ascertained.”

Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991);

see also Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981)

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6193
(per curiam) (waiting sixteen months after discovering the

grounds for recusal was untimely and resulted in a waiver).

The Tribe knew it was litigating a case against TPU in

Tacoma federal court, before a Tacoma-area judge. It should

have known when it filed its complaint that it might want to

seek recusal of the judge assigned to the matter. At the very

least, the Tribe admits that it believed it had grounds for

recusal at least seven months before filing the motion. The

district court thus did not abuse its discretion in denying the

recusal motion. See Kulas v. Flores, 255 F.3d 780, 783 (9th

Cir. 2001).11

IV. Class Certification

Because we affirm the district court, we need not address

the district court’s denial of class certification. See Alexander

v. Whitman, 114 F.3d 1392, 1398 n.7 (3d Cir. 1997) (because

the court held that dismissal of the complaint was proper, it

did not need to address the propriety of the district court’s

denial of plaintiffs’ motion for class certification). 

AFFIRMED IN PART AND TRANSFERRED TO THE

COURT OF FEDERAL CLAIMS IN PART. 

GRABER, Circuit Judge, with whom PREGERSON, PAEZ,

and BERZON, Circuit Judges, join, concurring in part and

dissenting in part: 

I concur in the majority opinion with two exceptions. First,

with respect to the right of individual members of the Tribe

to bring a § 1983 claim against the City and TPU, I agree with

Judge Berzon’s dissent at pages 6211-14. Second, I disagree

11We do not, of course, express a view as to the merits of the recusal

motion; nothing we say should be read as implying that a timely motion

would have been successful. 

6194 SKOKOMISH INDIAN TRIBE v. UNITED STATES
with the majority’s conclusion that the statute of limitations

has run on the Tribe’s Washington-law claims for nuisance

and trespass. Under Washington law, even a permanent structure (like a dam or a sewer) can result in a “continuing” nuisance or trespass. If there is a “continuing” nuisance or

trespass, then the plaintiff can seek damages for the three

years immediately preceding the filing of the complaint,

because the act for which damages are sought is a present,

ongoing act rather than a past, completed act. Here, a question

of fact remains concerning the proper application of the statute of limitations. 

Under Washington law the difference between a “permanent” nuisance or trespass and a “continuing” nuisance or

trespass is that the latter is “reasonably abatable,” that is, the

defendant can take curative action to stop the continuing damages. 16 Wash. Prac., Tort Law and Practice § 9.13 (2d ed.).

The question of “permanent” versus “continuing” nuisance or

trespass is separate from the question of damages or remediation of consequential harms, even though money is involved

in each analysis. For example, a trespass can cause huge damages but be very cheap to fix, or vice versa. 

The Tribe has produced sufficient evidence to raise a genuine issue of material fact as to whether the aggradation allegedly caused by the Cushman Dam Project’s diversion of the

North Fork of the Skokomish River is reasonably abatable. To

survive summary judgment, the Tribe had to produce evidence from which a rational finder of fact could conclude that

the aggradation of the Skokomish River’s mainstem can be

abated “without unreasonable hardship and expense.” Fradkin

v. Northshore Util. Dist., 977 P.2d 1265, 1270 (Wash. Ct.

App. 1999). 

Two pieces of evidence support the Tribe’s claim that the

aggradation is reasonably abatable. First, at least two of the

Tribe’s technical consultants stated that aggradation can be

abated by dredging the river or decreasing the amount of

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6195
water diverted away from the North Fork.1

 Second, Tacoma’s

1998 license from FERC directed it to develop “specific costeffective measures proposed to increase the channel conveyance capacity” of the Skokomish mainstem, including “flow

manipulation [and] flushing flows.” 

The FERC order supports the Tribe’s showing, for summary judgment purposes, that these measures to abate aggradation would be feasible. In Fradkin, the court held that

summary judgment was improper where the plaintiff had produced a report recommending certain measures to remedy the

condition (and where the trespassing utility had itself

attempted to fix the problem). Id. The court did not discuss

the cost of such measures or the value of the plaintiff’s property in relation to these measures. Id. In Jacques v. Pioneer

Plastics, Inc., 676 A.2d 504 (Me. 1996) (cited in Fradkin, 977

P.2d at 1270 n.23), a document even more similar to the

FERC order sufficed to raise a genuine issue of material fact:

a compliance order from a state agency that directed the contaminating parties to submit a remediation feasibility study.

Id. at 508. Several courts have noted that abatability is not

necessarily a return to the status quo ante or a complete elimi1One technical analyst opined: 

Flushing flow releases from Cushman would be more effective in

transporting sediment through the mainstem Skokomish if the

mainstem channel was made deeper through dredging. . . . Restoration of the natural sediment transport capacity of the river

would lessen, halt or possibly even reverse the current trends in

aggradation. At the very least, it would address the portion of the

aggradation problem attributable to the Cushman Project. 

Another concluded: 

Restoring and maintaining a mainstem conveyance capacity of

13,000 cfs will contain the 1.3-year flow event within the banks

of the channel. This will afford the Tribe the same level of flood

protection, in terms of the probability and frequency of overbank

flow, that existed under natural conditions. This will protect

approximately 1,400 acres of Reservation lands from the effects

of frequent flooding. 

6196 SKOKOMISH INDIAN TRIBE v. UNITED STATES
nation of the problem. See, e.g., Mangini v. Aerojet-Gen.

Corp., 912 P.2d 1220, 1226 (Cal. 1996) (“something less than

total decontamination may suffice to show abatability”) (cited

in Fradkin, 977 P.2d at 1270 n.23); Beck Dev. Co. v. S. Pac.

Transp. Co., 52 Cal. Rptr. 2d 518, 558 (Ct. App. 1996) (noting that “the ability to remediate to levels demanded by the

regulatory agencies was sufficient abatability”); Hanes v.

Cont’l Grain Co., 58 S.W.3d 1, 4 (Mo. Ct. App. 2001) (“We

disagree . . . that in order to show a nuisance can be abated,

it must be shown that the entire nuisance can be eliminated,

and a reduction or lessening of the nuisance is insufficient. . . .

A nuisance can be abated to the degree where it is no longer

a substantial interference.”). 

There is evidence in the record from which a reasonable

finder of fact could conclude that abatement of the aggradation itself is economically feasible. The 1998 FERC license

states that the “cost-effective” measures to increase mainstem

conveyance capacity are not to exceed $5 million. For summary judgment purposes we should presume that FERC considered the reasonableness of this sum, as well as the

feasibility of the measures, in relation to the economic situation of the City and the Cushman Dam Project. For this reason, I believe that, for summary judgment purposes under

Washington law, the FERC order is sufficient evidence that

abatement of mainstem aggradation could be economically

feasible. 

The majority, in contrast, concludes that abatement is

unreasonable as a matter of law, because the cost of remediating the damage to property caused by the aggradation and

associated flooding is about 75 percent more than the value of

the Tribe’s property in its prior condition. Maj. op. at 6191-

92. I do not agree that this price tag renders the condition unabatable as a matter of law. Moreover, the cited estimate of

remediation costs is primarily for repairs to sewer and waterdelivery systems and to flood-damaged homes. It does not

address the perhaps much lower cost to abate the aggradation

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6197
itself, by way of dredging or flushing flows. The aggradation

is the underlying condition caused by the diversion of water

by the Cushman Project and it should be the focus of the

abatability inquiry.2

In conclusion, I am persuaded that the Tribe’s state-law

claims for nuisance and trespass survive summary judgment

on statute of limitations grounds.3 I respectfully dissent from

the majority’s contrary conclusion. 

BERZON, Circuit Judge, dissenting in part,1 with whom PREGERSON, PAEZ, and RAWLINSON, Circuit Judges, concur:

According to the majority, Indian tribes and their members

cannot, under federal law, sue municipalities for damages for

violation of rights secured by Indian treaties. The case law

simply does not support the majority’s broad pronouncement.

Indeed, County of Oneida v. Oneida Indian Nation, 470 U.S.

226 (1985) (County of Oneida II), is quite directly to the contrary, permitting suits for damages under federal common law

for violation of aboriginal rights reserved by treaty. 

More specifically, Supreme Court precedent, as well as

cases from the courts of appeals, support the conclusions that

2Cf. Castaic Lake Water Agency v. Whittaker Corp., 272 F. Supp. 2d

1053, 1072 (C.D. Cal. 2003) (holding that deposition testimony regarding

a $36 million treatment program for drinking water affected by contamination did not support the plaintiff’s claim of abatability because the treatment facility would not abate “the actual nuisance—namely, the

underground contamination”). 

3

I have not considered, and express no opinion on, the City’s alternative

arguments for granting summary judgment on the merits of the Tribe’s

trespass and nuisance claims. 

1

I dissent only from subsection A (“Treaty-Based Claims”) of Part II

(“Claims Against the City of Tacoma and Tacoma Public Utilities”) of the

majority opinion. 

6198 SKOKOMISH INDIAN TRIBE v. UNITED STATES
(a) both tribes and individual members of tribes may sue

municipalities for damages for violations of the tribes’ treaty

rights; and (b) individual tribe members may sue under 42

U.S.C. § 1983 for violations of their asserted right to take fish

at the usual and accustomed times. The majority’s contrary

assertions largely ignore two centuries of understandings concerning the federal protection of Indian aboriginal and treatybased rights — in particular, the understanding that Indian

treaties in large part simply preserve some pre-existing

aboriginal rights in exchange for cession of a portion of

Indian land. Whether the majority’s conclusions would make

sense if we were developing the law of Indian rights to the use

of land and water afresh — which I do not think they would

— is not the question, as we are not free to reinvent established doctrine. I therefore respectfully dissent.2

2Because the majority does not reach the questions raised in this case

that logically follow a determination that these plaintiffs may bring suit for

damages against these defendants — including whether the federal causes

of action are barred by statutes of limitations or preserved by the Indian

Claims Limitation Act (ICLA), 28 U.S.C. § 2415 note, and whether the

Treaty of Point No Point (“Treaty”), 12 Stat. 933 (1855), in fact establishes the rights claimed — I do not do so either. 

I do note that the most challenging question thus left open is whether

the Tribe’s off-reservation fishing rights give rise to a cause of action for

limiting the numbers of fish that formerly inhabited the streams and rivers

in which the Tribe traditionally fished, or whether, instead, the Treaty preserves only a right to take a given proportion of such fish as remain extant.

This court previously addressed that important question but subsequently

vacated the decision and has not since had occasion to resolve it. See

United States v. Washington, 694 F.2d 1374 (9th Cir. 1982), on en banc

reh’g, 759 F.2d 1353, 1355 (9th Cir. 1985) (failing to determine whether

“the right to take fish necessarily includes the right to have those fish protected from man-made despoliation”); see also Kittitas Reclamation Dist.

v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032, 1033, 1035 (9th Cir.

1985) (approving district court order releasing water from a water project

to preserve nests of salmon eggs so as to preserve the Indian right of taking off-reservation fish “in common with citizens”); Nez Perce Tribe v.

Idaho Power Co., 847 F.Supp. 791, 810 (D. Idaho 1994) (holding that a

Northwest Indian treaty similar to the one in this case “does not provide

a guarantee that there will be no decline in the amount of fish available

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6199
I

Without examining what pre-existing rights, if any, the

Tribe reserved under the Treaty of Point No Point (“Treaty”),

12 Stat. 933 (1855),3 the majority mistakenly dismisses all

possibility that the Tribe can seek damages for violations of

any such rights. This conclusion — induced by a misplaced

focus on cases concerning attempts to imply causes of action

from statutes or from international treaties — ignores settled

precedent concerning Indian treaty-protected rights. The

scope of a cause of action to enforce Indians’ aboriginal

rights, including such rights reserved in treaties with the

United States, cannot sensibly be resolved by invoking lines

of authority developed in areas of the law lacking the long tradition of federal common law protection accorded Indian

property and related rights. As the majority’s reasoning fails

to appreciate the uniquely federal nature of the land, water,

and fishing claims by Indians, it is largely beside the point.

There are hard issues in this case concerning the precise

import of several precedents concerning Indians’ treatyprotected rights, but the majority’s simplistic approach misses

them all. 

I note at the outset that the majority is quite correct in recognizing — albeit in passing — that rights of action are available for equitable relief against “non-contracting” parties to

Indian treaties. Ante at 6181. From this starting point, however, the majority rushes to the unsupported conclusion that

to take”); CONFERENCE OF W. ATTORNEYS GEN., AMERICAN INDIAN LAW

DESKBOOK 330-33 & n.194 (Clay Smith ed., 3d ed. 2004) (noting that

“[m]any commentators have advocated a treaty-based habitat protection

right” and citing to the commentary). 

3The Treaty of Point No Point is one of a series of treaties brokered by

Territorial Governor Isaac Stevens in the mid-1800’s between the United

States and various Pacific Northwest Indian tribes. These treaties are commonly referred to as “Stevens treaties.” See generally Nez Perce Tribe,

847 F. Supp. at 805-06. 

6200 SKOKOMISH INDIAN TRIBE v. UNITED STATES
a Tribe may not recover monetary damages for alleged treaty

violations. In doing so, the majority makes three major missteps: (1) conflating interpretation of this Indian Treaty with

a private cause of action under non-Indian treaties and federal

statutes; (2) asserting that the non-signatory status of Tacoma

Public Utilities (“TPU”) and the City of Tacoma (“City”)

somehow absolves those entities of responsibility here; and

(3) conjuring a distinction between damages and equitable

relief inconsistent with binding authority. 

(1) The majority rests its constrained interpretation of the

rights reserved by — and the relief available to enforce —

this Treaty upon a foundation of wholly irrelevant cases.

Cases construing Title VI of the Civil Rights Act (Alexander

v. Sandoval, 532 U.S. 275 (2001)) or the Securities Exchange

Act of 1934 (Touche Ross & Co. v. Redington, 442 U.S. 560

(1979)) have little relevance to the interpretation of Indian treaties.4

 The Supreme Court has made clear that Indian treaties

are unique, governed by different canons of construction than

those that apply to statutes and other treaties. See, e.g., County

of Oneida II, 470 U.S. at 247-48. 

Moreover, there is no general rule preferring equitable

relief over damages when implying a cause of action. Rather,

were the statutory private cause of action cases pertinent, they

would not support any distinction between equitable and damages relief, unless there is some indication that Congress specifically intended such a distinction. Sandoval, 532 U.S. at

286 (“The judicial task is to interpret the statute Congress has

passed to determine whether it displays an intent to create not

just a private right but also a private remedy.”); Touche Ross

4Also, a simple glance at the text of the Treaty here at issue reveals that

it might still provide a cause of action for members of the Tribe. The

Treaty does speak to individuals, namely the Tribe’s members, with regard

to the “right of taking fish”: Although land is reserved “for the present use

and occupation of the said tribes and bands,” “[t]he right of taking fish at

usual and accustomed grounds and stations is further secured to said Indians,” not to the “tribes and bands.” (emphasis added). 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6201
& Co., 442 U.S. at 568 (“[O]ur task is limited solely to determining whether Congress intended to create the private right

of action asserted . . . . And as with any case involving the

interpretation of a statute, our analysis must begin with the

language of the statute itself.”). The majority points to no

indication that Congress intended to allow suits in equity but

not for damages to enforce Indian fishing rights reserved by

treaties. 

In short, the cases cited by the majority for the proposition

that equitable but not damages relief is available with regard

to rights reserved by a federal Indian treaty are of no help at

all in establishing that point. 

(2) In addition to its reliance on inapposite strands of case

law, the majority also suggests that, even if the Treaty is selfenforcing, the Treaty cannot be enforced against the City and

TPU because they are non-contracting parties.5 No case cited

5The majority’s focus on “non-contracting parties” suggests that

because the City and TPU are not signatories to the Treaty, they are somehow less responsible to respect the rights reserved by the Treaty than is

the federal government. This suggestion would appear to call into question

bedrock understandings concerning the judicial enforcement against

municipal governments of the obligation to abide by federal law. 

The City and TPU, as governmental entities, are bound by the rights

reserved in the Treaty. Cities and local governments are, of course, subject

to the Supremacy Clause. As “the constitutionality of local ordinances is

analyzed in the same way as that of statewide laws” for purposes of the

Supremacy Clause, Hillsborough County v. Automated Med. Labs., Inc.,

471 U.S. 707, 713 (1985) (citation omitted), cities and local governments

cannot pass ordinances or laws that “ ‘interfere with, or are contrary to,’

federal law.” Id. at 712 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

211 (1824)); see Brendale v. Confederated Tribes & Bands of the Yakima

Indian Nation, 492 U.S. 408, 431 (1989) (plurality opinion) (“Since the

tribes’ protectible interest is one arising under federal law, the Supremacy

Clause requires state and local governments, including Yakima County

zoning authorities, to recognize and respect that interest in the course of

their activities.”); see also C & A Carbone, Inc. v. Town of Clarkstown,

511 U.S. 383, 394-95 (1994); Cmty. Communications Co. v. City of Boul6202 SKOKOMISH INDIAN TRIBE v. UNITED STATES
by the majority, and no case I have discovered, supports the

conclusion that rights created in an Indian Treaty can only be

enforced by one signatory against the other, whether for equitable relief or for damages. Instead, the cases relying on the

principle that states and their agents are bound to respect

treaty-created rights are legion. See, e.g., County of Oneida II,

470 U.S. at 235-36 (approving a federal common law suit

against two counties for violation of federal aboriginal rights

partly secured by treaty); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 669-70

(1979) (Fishing Vessel) (suit brought by the United States “on

its own behalf and as trustee for seven Indian tribes” against

the State of Washington to enforce treaty rights; other tribes,

the state’s Fisheries and Game Departments, and one commercial fishing group were joined as parties); United States v.

Washington, 157 F.3d 630, 638 (9th Cir. 1998) (suit brought

by numerous Indian tribes and the United States (on the

tribes’ behalf) against the State of Washington to enforce

treaty rights; several private parties intervened and appealed);

Kimball v. Callahan, 493 F.2d 564, 565 (9th Cir. 1974) (suit

der, 455 U.S. 40, 57 (1982); City of Burbank v. Lockheed Air Terminal,

Inc. 411 U.S. 624, 640 (1973); City of Chicago v. Atchison, Topeka &

Santa Fe Ry. Co., 357 U.S. 77, 84-85 (1958); Asakura v. City of Seattle,

265 U.S. 332, 343 (1924); City of Auburn v. Qwest Corp., 260 F.3d 1160,

1175-76 (9th Cir. 2001); United States v. City of Pittsburg, 661 F.2d 783,

785-86 (9th Cir. 1981); Nat’l Helicopter Corp. of Am. v. City of New York,

137 F.3d 81, 92 (2d Cir. 1998); Pirolo v. City of Clearwater, 711 F.2d

1006, 1010 (11th Cir. 1983). 

Treaties are listed among the types of law that make up “the supreme

Law of the Land.” U.S. CONST. art. VI, cl. 2 (Supremacy Clause) (“This

Constitution, and the Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall be made, under

the Authority of the United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.”). Cities and local governments therefore are bound, under the Supremacy

Clause, to respect rights created by or reserved in Indian treaties. 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6203
brought by individual Indians against officers of the State of

Oregon to enforce treaty rights). 

Further, as the majority recognizes, United States v.

Winans, 198 U.S. 371 (1905), enforced Indian treaty rights

even against private third-parties. So did United States v.

Washington, 157 F.3d at 657. 

In Winans, the United States, on behalf of certain members

of the Yakima Nation, brought suit to enjoin private land

owners from preventing Indians’ exercise of their offreservation treaty rights to fish on the defendants’ private

property. See 198 U.S. at 377. The Court held that the treaty

between the United States and the Tribe “fixe[d] in the [now

privately owned] land such easements as enable the right to

be exercised.” Id. at 384. Explained Winans:

The right to resort to the fishing places in controversy was a part of larger rights possessed by the

Indians . . . which were not much less necessary to

the existence of the Indians than the atmosphere they

breathed. . . . [T]he treaty was not a grant of rights

to the Indians, but a grant of right from them — a

reservation of those not granted. . . . [The treaty]

imposed a servitude upon every piece of land as

though described therein. . . . The contingency of the

future ownership of the lands, therefore, was foreseen and provided for — in other words, the Indians

were given a right in the land — the right of crossing

it to the river — the right to occupy it to the extent

and for the purpose mentioned. No other conclusion

would give effect to the treaty. And the right was

intended to be continuing against the United States

and its grantees as well as against the State and its

grantees . . . . 

Id. at 381-82 (emphasis added). Similarly, United States v.

Washington held that, “[i]n light of Winans, Fishing Vessel,

6204 SKOKOMISH INDIAN TRIBE v. UNITED STATES
and the [Stevens] Treaties’ language and power as the

supreme law of the land, the district court correctly determined that the Tribes have a right to harvest shellfish on private tidelands.” 157 F.3d at 647 (emphasis added). 

(3) So, then, if the Treaty is self-enforcing and the Treaty

can be enforced against non-contracting parties, what is left

of the majority’s assertion that the Tribe cannot seek damages

for elimination of fishing rights secured by a treaty? To fill

this gap, the majority asserts, repeatedly but without citation

to any pertinent authority, that in a case involving a nonsignatory to the Treaty, there is a determinative distinction in

enforcing these rights between an action for damages and an

action for equitable relief. Ante at 6182. 

The entirety of the majority’s reasoning on this point seems

to be that the cases upholding causes of action for violation

of Indian treaty rights but providing only equitable relief

implicitly held that damages are not available. In neither Fishing Vessel nor Puyallup Tribe v. Department of Game of

Washington, 391 U.S. 392 (1968), however, were the Indians

seeking damages. See Fishing Vessel, 443 U.S. at 670 (suit

“seeking an interpretation of the treaties and an injunction

requiring the State to protect the Indians’ share of anadromous fish runs”); Puyallup Tribe, 391 U.S. at 394 (“These

suits were brought by respondents in the state court against

the Indians for declaratory relief and for an injunction.”).

That, presumably, is why the availability of damages was not

discussed; courts are not in the habit of commenting on the

availability of relief no one wants. So, even if this availability

of damages were a question of first impression, the majority

would need more than its ipse dixit to support the damages/

equitable relief distinction central to its conclusion. 

More important, the question before us emphatically is not

one regarding an undecided question. There is binding authority supporting awarding monetary relief when Indians seek to

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6205
enforce their aboriginal rights, including such rights reserved

in a treaty. 

The first sentence of Justice Powell’s opinion in County of

Oneida II explains: “These cases present the question whether

three Tribes of the Oneida Indians may bring a suit for damages for the occupation and use of tribal land allegedly conveyed unlawfully in 1795.” 470 U.S. at 229 (emphasis added).

To answer this question, the Court explored at some length

the historical availability of federal causes of action to enforce

Indian aboriginal rights, whether secured by treaties or not,

concluding that “Indians have a federal common[ ]law right to

sue to enforce their aboriginal land rights.” Id. at 235. Consequently, the Oneidas could maintain their damages action “for

violation of their possessory rights based on federal common

law.” Id. at 236. Moreover, this circuit, citing County of

Oneida II, has similarly affirmed the ability of an Indian tribe

to bring a damages action against a public utility based upon

a federal common law cause of action. See United States v.

Pend Oreille Pub. Util Dist. No. 1, 28 F.3d 1544, 1549 n.8

(9th Cir. 1994);6see also Mescalero Apache Tribe v. Burgett

Floral Co., 503 F.2d 336, 338 (10th Cir. 1974). This authority

makes plain that Indian tribes may bring a damages action

under federal common law to enforce their rights to use of

land. 

A closer examination of the nature of the Tribe’s claimed

rights further reveals the majority’s fundamental misunderstanding of the very claim it summarily dismisses. Like the Oneidas,7

 the Tribe here is not simply seeking to enforce rights

6We agreed in Pend Oreille with the plaintiffs’ argument that “damages

for trespass on Indian lands are controlled by federal law.” 28 F.3d at

1549; see also id. at 1549 n.8 (citing County of Oneida II for support). 

7That the asserted aboriginal right here is enshrined in a treaty does not

separate this case from the County of Oneida precedents. The Oneidas’

challenge to the 1795 cession by the state of New York was predicated in

part upon the “Indians’ right to possession under the federal treaties”

6206 SKOKOMISH INDIAN TRIBE v. UNITED STATES
created by the Treaty. Rather, it is claiming to enforce an

aboriginal right — the right “of taking fish at usual and

accustomed grounds and stations” (emphasis added) —

reserved in the Treaty. See Oneida Indian Nation v. County

of Oneida, 414 U.S. 661, 677 (1974) (County of Oneida I)

(characterizing the right claimed by the Tribe as one in which

“federal law now protects, and has continuously protected

from the time of the formation of the United States, possessory right to tribal lands, wholly apart from the application of

state law principles which normally and separately protect a

valid right of possession”); see also Winans, 198 U.S. at 381-

82. 

In this instance, the primary right at issue is not a claim to

plenary possession of land but, instead, a claim of right to

both the kind of “servitude” enforced in Winans, and to a

preservation of the fish flow itself. This distinction might matter were we to consider, on the merits, the asserted reach of

the rights reserved in the Treaty. But there is no conceptual

distinction that would explain why the right to possession

asserted in County of Oneida II, if it existed (which is what

the bulk of that opinion addressed, see 470 U.S. at 233-40)

would support a cause of action for damages, while the fishing rights here asserted, if they exist (which neither the majority nor I address, see supra note 2) would not. 

For these reasons, as the above-quoted language from

Winans suggests, the prism through which the majority is

viewing the treaty rights issue is inverted. The majority proceeds on the premise that federal enforcement of rights tracebetween the United States and the Oneidas in the 1780s and 1790s.

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 664-65 (1974)

(County of Oneida I). As is true here, “the right to possession itself is

claimed to arise under federal law in the first instance. Allegedly, aboriginal title of an Indian tribe guaranteed by treaty and protected by statute has

never been extinguished.” Id. at 676. The majority is thus wrong in stating

otherwise. Ante at 6184.

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6207
able to an Indian treaty always follows the same principles as

enforcement of treaties with nondomestic nations. But Indian

fishing rights, as Winans indicates, were not granted by the

treaties; rather, they were reserved by the treaties and are

traceable to aboriginal possessory interests, given up in part

in treaties. As such, the rights thus derived are enforceable, if

at all, under federal common law. See County of Oneida II,

470 U.S. at 233-36; Nez Perce Tribe v. Idaho Power Co., 847

F.Supp. 791, 799-800 (D. Idaho 1994) (holding that the federal common law action recognized in County of Oneida I is

available for damages actions based on purported tribal fishing rights, noting that “the Tribe’s right to fish is aboriginal

in origin, as it was in [County of Oneida I], and is reinforced

by federal common law and the 1855 treaty.”). 

Once more, so to state is not to settle the question whether

the rights here asserted — to preserve fish runs from destructions — were reserved by the Treaty of Point No Point. See

supra note 2. It is only to say that if the right was reserved,

it is enforceable in a damages action under the federal common law. In failing to acknowledge that possibility, and,

instead, resting on inappropriate analogies to treaties with foreign governments and on federal statutes having nothing to do

with Indian rights, the majority reaches a conclusion in direct

conflict with binding law.

II

After concluding that treaties, though self-enforcing and

enforceable in equity against third parties, may not be

enforced in damages against a party other than the signatories,

the majority goes on to hold that neither the tribe nor any individual members may bring suit under 42 U.S.C. § 1983. This

conclusion, like the conclusion that there is no possible federal common law cause of action for damages based upon

treaty-secured rights, reflects an inattention to nuance in the

case law with regard to the rights of Indian tribes and their

members. 

6208 SKOKOMISH INDIAN TRIBE v. UNITED STATES
First, the majority relies upon Inyo County v. PaiuteShoshone Indians of the Bishop Community, 538 U.S. 701

(2003), to support its conclusion that the Tribe may not,

because of its status as a sovereign, bring a claim under section 1983. See ante at 6184-85. 

Inyo County held that a tribe may not sue under § 1983 to

vindicate a right held solely because of its status as a sovereign. See Inyo County, 538 U.S. at 712. As the majority recognizes, ante at 6184-85, this narrow holding leaves open the

possibility that a tribe may bring suit to vindicate rights similar to those held by private persons. See id. at 711 (discussing

cases in which the Supreme Court had held states and foreign

nations to be “persons”). 

The Tribe here, unlike the tribe in Inyo County, did not

base any of its § 1983 claims on rights or privileges held as

a sovereign (e.g. sovereign immunity), but rather on fishing

rights assertedly traceable to federal law and therefore beyond

the authority of local governmental entities to impair, because

of the Supremacy Clause. No special immunity premised on

sovereignty as such is claimed. Instead, the underlying right

asserted is one akin to a property right or a water right, commonly held by private parties, including entities such as corporations or associations. Compare id. at 714 (“[T]he Tribe

rests its case entirely on its claim that, as a sovereign, it

should be accorded a special immunity that private casinos do

not enjoy.”) (Stevens, J., concurring in the judgment). Inyo

County therefore does not settle whether for purposes of this

case, the Tribe qualifies as a “person” who may sue under

§ 1983 to vindicate the rights asserted in its complaint. 

Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir.

1989), is not to the contrary. Hoopa Valley held that

“[b]ecause the right to tribal government protects the powers

conferred upon the tribe, and not individual rights, it falls outside the scope of § 1983.” Id. at 662. But, as in Inyo County,

the tribe in Hoopa Valley was attempting to assert a tribal

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6209
government right, held solely because it was a sovereign —

namely, its freedom from state taxation. 

Hoopa Valley also relies on a distinction between “power

conferring provisions” and “rights conferring provisions” of

federal law, holding that “power conferring provisions, such

as the Supremacy Clause,” are not rights that can be vindicated under § 1983. Id. While the Supremacy Clause cannot,

by itself, form the basis of a § 1983 claim, see Golden State

Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107

(1989), that is because the Supremacy Clause “ ‘is not a

source of any federal rights.’ ” Id. (citation omitted). In Dennis v. Higgins, 498 U.S. 439 (1991), however, the Supreme

Court upheld a cause of action under § 1983 based on the

Commerce Clause, rejecting the argument that the Commerce

Clause could not be the basis of a § 1983 cause of action

because it “merely allocates power between the Federal and

State Governments and does not confer ‘rights.’ ” Id. at 447.

The Court instead held that the Commerce Clause both was

a “power allocating” provision and constituted a “substantive

restriction on permissible state regulation of interstate commerce.” Id. (internal quotation marks and citation omitted).

Somewhat similarly, in Golden State Transit Corp., the Court

held that rights created by the National Labor Relations Act

can support a § 1983 action, because in that circumstance

“ ‘pre-emption follows . . . as a matter of substantive right.’ ”

493 U.S. at 110 (quoting Brown v. Hotel & Restaurant

Employees Int’l Union Local 54, 468 U.S. 491, 503 (1984)).

Here, the bases of the Tribe’s § 1983 claims are the Takings and Due Process Clauses of the federal Constitution,

although the fishing rights assertedly unconstitutionally taken

are traceable to the Treaty (and, ultimately, to aboriginal possession). While it was a treaty in this instance that assertedly

preserved the fishing rights, in other instances similar Indian

fishing and hunting rights are preserved by agreement or statute, not treaty. See Antoine v. Washington, 420 U.S. 194, 200-

01 (1975). The rights here at issue, then, unlike the self6210 SKOKOMISH INDIAN TRIBE v. UNITED STATES
governmental status central in Inyo County and Hoopa Valley

Tribe, are only indirectly and marginally connected to the

sovereign status of the Tribe. Private entities can also assert

Takings and Due Process claims, tracing their asserted property rights to federal grants, reservations, agreements or statutes. I would therefore be inclined to hold that § 1983 is

available to remedy the violations of federal law alleged by

the Tribe.8

I need not answer that question definitively, however, as I

am quite certain that a § 1983 suit can be maintained by the

individual tribe members. The majority’s reasoning to the

contrary runs thus: The only rights cognizable under § 1983

are individual rights; the Tribe’s right to fish is a communal

right; therefore, individual members may not bring suit to

enforce their fishing rights. 

Before addressing this syllogism, I note that there is no

support for the more general proposition that treaty-based

rights cannot support a § 1983 cause of action, period. The

only case that even suggests as much, United States v. Washington, 813 F.2d 1020 (9th Cir. 1987) (Washington I), held

only that claims resulting solely in the interpretation of treaties are not cognizable under § 1983, but that if a state “violates these now known and well-delineated rights, there would

be an actual conflict between state and federal law which

might give rise to a § 1983 action.” Id. at 1023 (citation omitted). So even this (rather odd) holding indicates that there are

cases in which violations of rights secured in part by Indian

treaties can give rise to § 1983 claims. And, in fact, we have

so recognized in a later appeal in United States v. Washington,

935 F.2d 1059 (9th Cir. 1991) (Washington II), where we

awarded fees under 42 U.S.C. § 1988, explaining:

8Once again, I am not addressing the merits questions whether the

Treaty in fact creates or preserves the asserted right, and whether, if so,

impairing that right violates § 1983. The only question addressed by the

majority, and therefore the only one I address, is whether the Tribe is entitled to a judicial answer to those questions. 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6211
[T]he case before us differs from these earlier cases

in a single critical respect: while previous litigation

has attempted to define the treaty rights, [this proceeding] is purely an action to enforce them. . . . 

The tribes are entitled to section 1988 fees to

enforce such well-defined treaty rights.

Id. at 1061 (citation omitted). 

In light of Washington II, Washington I should be reconsidered rather than relied upon. Ordinarily, whether a case is

cognizable under § 1983 does not turn on whether the rights

are well-established or not, although qualified immunity does

turn upon that consideration. See Saucier v. Katz, 533 U.S.

194, 201 (2001); Wong v. U.S. INS, 373 F.3d 952, 966 (9th

Cir. 2004). The pertinent precedent for present purposes is

therefore Washington II, recognizing that Indian treaty fishing

rights can give rise to a § 1983 action. 

As to the majority’s individual fishing rights syllogism, this

circuit has granted relief to individual tribe members suing to

enforce their treaty fishing rights. See Kimball, 493 F.2d at

569-70 (granting declaratory relief to individual Indians suing

to enforce their rights to hunt, trap, and fish within the Klamath Indian Reservation free of Oregon fish and game regulations, pursuant to a Treaty). Kimball was later cited by the

Supreme Court in support of the proposition that “[s]uch

treaty rights [as the right to hunt and fish] can be asserted by

Dion as an individual member of the Tribe.” United States v.

Dion, 476 U.S. 734, 738 n.4 (1986). Dion cited for this proposition, in addition to Kimball, Winans and United States v.

Felter, 752 F.2d 1505 (10th Cir. 1985). Id.

While Kimball did not involve a suit brought under § 1983,

it did reject the logic of the majority opinion: that individual

tribe members may not enforce treaty fishing rights because

they are communal. As Kimball explained: 

6212 SKOKOMISH INDIAN TRIBE v. UNITED STATES
Although the treaty giving exclusive fishing rights to

the Quinaielts was with the Tribe, the court held [in

Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925)] that

the right of taking fish was a right common to the

members of the Tribe and that “a right to a common

is the right of an individual of the community.” [Id.].

From Mason it is clear that an individual Indian

enjoys a right of user in tribal property derived from

the legal or equitable property right of the Tribe of

which he is a member.

590 F.2d at 773 (quoting Mason, 5 F.2d at 258) (parallel citation omitted). The hunting and fishing rights at issue in Kimball, like the fishing rights here, were non-exclusive rights.

See id. at 774.9

Individual Indians have brought a number of § 1983 cases

in the district courts to enforce their treaty rights. While I recognize these opinions do not squarely address whether the

individual plaintiffs have stated a cognizable cause of action

under § 1983, they do indicate that other courts have found

this marriage of treaty rights and § 1983 to be acceptable. See,

e.g., Canadian St. Regis Band of Mohawk Indians ex rel.

Francis v. New York, 278 F. Supp. 2d 313 (N.D.N.Y. 2003);

Oyler v. Finney, 870 F. Supp. 1018 (D. Kan. 1994), aff’d, 52

F.3d 338 (10th Cir. 1995) (unpublished table decision); Mille

Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp.

1118 (D. Minn. 1994), aff’d, 124 F.3d 904 (8th Cir. 1997),

aff’d, 526 U.S. 172 (1999); Lac Courte Oreilles Band of Lake

9

Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974), and Whitefoot v.

United States, 293 F.2d 658 (Ct. Cl. 1961), upon which the majority rely,

were decided before both Kimball and Dion. Also, they concern the question whether the individual fishing rights are subject to tribal regulation,

not whether individual rights consistent with tribal regulation may be

asserted by individual Indians. Settler, 507 F.3d at 232; Whitefoot, 293

F.2d at 661, 663. As such, they are not informative with respect to the

problem before us. 

SKOKOMISH INDIAN TRIBE v. UNITED STATES 6213
Superior Chippewa Indians v. Wisconsin, 663 F. Supp. 682

(W.D. Wis. 1987), appeal dismissed, 829 F.2d 601 (7th Cir.

1987) (per curiam); Sohappy v. Smith, 302 F. Supp. 899 (D.

Or. 1969), aff’d in part, 529 F.2d 570 (9th Cir. 1976) (per

curiam). 

I would therefore hold that the individual Indians may

bring suit under § 1983 asserting violation of treaty-secured

fishing rights. 

* * * *

In sum, because I find no support for barring the Tribe and

its members from bringing suit — either under the federal

common law based on Treaty-secured rights or via § 1983 —

I respectfully dissent. Once more, because the majority does

not decide the question, critical though it is, I do not decide

whether the Tribe or its members have alleged a right to preservation of fisheries that is protected under federal common

law or § 1983. 

6214 SKOKOMISH INDIAN TRIBE v. UNITED STATES