NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe, on its own behalf and as parens patriae of all enrolled m em

bers of the Indian tribe, Plaintiff-Appellant,

v. LEONARD FORSMAN, Chairm an of the Suquam ish Tribal Council; BARDOW LEWIS, Vice-Chairm an of the Suquam ish Tribal Council; NIGEL LAWRENCE, Secretary of the Suquam ish Tribal Council; ROBIN SIGO, Treasurer of the Suquam ish Tribal Council; LUTHER MILLS, Jr., Mem

ber of the Suquam ish Tribal Council; RICH PURSER, Mem ber of the Suquam ish Tribal Council; SAMMY MABE, Mem

ber of the Suquam ish Tribal Council; ROBERT PURSER, Jr., Fisheries Director for the Suquam ish Tribal Council; SUQUAMISH INDIAN TRIBE,

Defendants-Appellees. No. 17-35336 D.C. No. 3:16-cv-05639-RBL

MEMORANDUM * 

# FILED

JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.Appeal fromthe United States District Court for the Western District of Washington R onald B. Leighton, District Judge, Presiding Argued and Subm itted June 6, 2018 Seattle, Washington Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON, * * District Judge. The Skokom ish Indian Tribe appeals from the district court’s dism issal of its claim s for declaratory and injunctive relief against officials of the Suquam ish Indian Tribe (“Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm . While Defendants raise m ultiple alternate grounds that they argue would bar Skokom ish’s claim s, we agree with the district court that this action

m ust be dism issed for failure to join indispensable parties under Federal Rule of Civil Procedure 19. As an initial m atter, there is no m erit to Skokom ish’s assertion that its asserted treaty hunting

rights were adjudicated in the decades-long litigation stemm ing from United States v. Washington , 384 F. Supp. 312 (W.D. Wash. 1974). No plausible reading of the original injunction decision or subsequent proceedings and appeals to this court supports the conclusion that the litigation

* * The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 2decided anything other than treaty fishing rights. See, e.g. , United States v.

Skokomish Indian Trib e, 764 F.2d 670, 672 (9th Cir. 1985) (“In this case, the Skokom ish . . . and the Suquam ish . . . had asserted claim s for a determ ination of only their usual and accustom ed fishing places.”). Skokom ish nonetheless relies broadly on the reservation of rights doctrine to argue that the prim ary-right determ ination for fishing rights autom atically im putes to hunting rights. Defendants and the am ici tribes have, however, offered a conflicting interpretation of the relevant treaties, and while we do not reach the m erits of their competing hunting claim s, we find these claim s plausible and non-frivolous. We m ust therefore engage in the Rule 19 analysis. See Shermoen v. United States , 982 F.2d 1312, 1318 (9th Cir. 1992). An absent tribe’s joinder is “required” under Rule 19 “if either: (1) the court cannot accord ‘com

plete relief am ong existing parties’ in the [tribe’s] absence, or (2) proceeding with the suit in its absence will ‘im pair or impede’ the [tribe’s] ability to protect a claim ed legal interest relating to the subject of the action, or ‘leave an existing party subject to a substantial risk of incurring double, m ultiple, or otherwise inconsistent obligations because of the interest.’” Alto v. Black, 738 F.3d 1111, 1126 (9th Cir. 2013) (quoting Fed. R. Civ. P. 19(a)(1)(A)–(B)). “Only if we determ ine that the [tribe] is a required party do we proceed to the second

3Rule 19 inquiry: whether joinder is feasible, or is barred by sovereign im m unity.” Id . “Finally, only if joinder is im possible must we determ ine whether, in ‘equity and good conscience,’ the suit should be dism issed.” Id . (quoting Fed. R. Civ. P. 19(b)). We review a Rule 19 dism issal for abuse of discretion “but review the legal conclusions underlying that determ ination de novo .” Id . at 1125. Turning to the first step, we find that, at a m inimum , the Jam estown S’Klallamand Port Gam

ble S’KlallamTribes are required parties to this action. Like Defendants, these am ici tribes’ interpretation of their reserved hunting rights conflicts with Skokom ish’s prim ary-right claim , which entails the power to exclude m em

bers from all other Stevens Treaty Tribes from hunting in the land at issue. Therefore, the district court correctly concluded that deciding Skokom ish’s claim s against the Suquam ish Defendants would necessarily decide Sk okom ish’s hunting rights in relation to the amici tribes and potentially other absent, non-party Stevens Treaty Tribes. Because Skokom ish concedes that the absent tribes’ sovereign im m unity bars their involuntary joinder, we address whether these tribes are “indispensable” parties. See Shermoen , 982 F.2d at 1318. This inquiry addresses four factors: (1) the extent to which a judgm ent rendered in the person’s absence m ight prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by:

4(A) protective provisions in the judgm e nt; (B) shaping the relief; or (C) other m easures; (3) whether a judgm ent rendered in t he person’s absence would be adequate; and (4) whether the plaintiff would have an adequate rem edy if the action were dism issed for nonjoinder. Fed. R. Civ. P. 19(b). Under the first factor, the prejudice to the absent am ici tribes if Skokom ish prevails “stem s fromthe sam e legal interests that m akes” these tribes required parties under Rule 19(a). Confederated Tribes of Chehalis Indian Reservation v. Lujan , 928 F.2d 1496, 1499 (9th Cir. 1991). As to the second factor, Skokom ish asserts that we could enjoin the Suquam ish officers without affecting the am ici tribes’ hunting rights. But as discussed above, Skokom ish’s prim ary-right claimis at odds with the claim ed treaty rights of any tribe—including am ici—that seeks to hunt in the land at issue. The district court therefore correctly determ ined that “[t] here is no practical way to lessen or avoid this prejudice.” Turning to the last factor, we acknowledge that a Rule 19 dism issal will likely leave Skokom ish without an alternate judicial forum

. However, this result is not dispositive of the indispensable-party analysis. White v. Univ. of Cal. , 765 F.3d 1010, 1028 (9th Cir. 2014) (“[V] irtually all the cases to consider the question appear to dism iss under Rule 19, regardless of whether a rem e dy is available, if the

5absent parties are Indian tribes invested with sovereign im m unity.”). Given the im portant treaty rights that Skokom ish’s claim s im plicate, we find that the district court did not abuse its discretion in concluding that this action cannot “in equity and good conscience” proceed in the am ici tribes’ absence. See Skokomish Indian Tribe v. Goldmark , 994 F. Supp. 2d 1168, 1186–92 (W.D. Wash. 2014) (arriving at the sam e conclusion where Skokom ish sought to enjoin state and county officials based on the sam e treaty interpretation it advances in the instant case), appeal voluntarily dismissed , No. 14-35209 (9th Cir. 2014). Finally, the district court did not err in sua sponte denying Skokom ish leave to am end its com

plaint. Skokom ish has cursorily argued that it can rem edy the absence of indispensable parties by adding the officers of the other Stevens Treaty Tribes to this action. Skokom ish has failed, however, to allege that any tribe other than Suquam ish has prom ulgated and is enforcing the type of tribal hu nting regulation at issue. 1 Leave to am end would therefore be futile. Accordingly, the district court’s judgm ent is AFFIRMED

.

1 At oral argum ent, Skokom ish represented that it would be willing to am end its com

plaint to rem ove its prim ary-right claim —at least as to the am ici tribes. This am endm e nt, however, would drastically alter Skokom ish’s theory of the case, and we decline to consider argum ents not raised in the opening brief. 6