Citations
- 20 F. Supp. 3d 899
Full opinion text
TABLE OF CONTENTS
ORDER PAGE
Order Granting Suquamish Tribes’ Motion to Deny A & K Trust’s request for Intervenor Status (6/13/08) 905
Order Granting Suquamish Tribe’s Motion for Summary Judgment (6/13/08) 908
Order Granting Suquamish tribe’s Motion for Summary Judgment re A & K Trust Tidelands ad Chico Bay (6/13/08) 910
Order on Rule 60(B) Motion to Reopen (9/2/08) 912
Joint Motion for Order to Adopt Stipulation Regarding Implementation of Shellfish Settlement Agreement (10/10/08) 934
Order Adopting Stipulations Regarding Implementation of Shellfish Settlement Agreement (10/21/08) 935
Order on Motion to Dismiss (11/13/08) 935
Order on Motion for Certificate of Appealability (1/5/09) 937
Order on Motion to Dismiss (6/16/09) 940
Order on Motion for Reconsideration (7/14/09) 941
Order on Motion of Makah Indian Tribe to Clarify the Status Quo (2/26/10) Minute Order — Motion (3/5/10) 944
Order (3/10/11) 945
Order on Motion for Leave to File a Cross-request for Determination (4/12/11) 946
Order on Motions to Dismiss (9/28/11) 948
Order Regarding Dispute Resolution (10/18/11) 951
Amended Order Granting Suquamish and Tulalip joint Request for Clarification of Section III.B.l & B.6 of 1983 Muckleshoot Suquamish and Tulalip Settlement Agreement (10/27/11) 958
Supplemental Order on Paragraph 25 Procedures (11/9/11) 959
Order on Motion for Reconsideration (2/13/12) 960
Order on Motion to Dismiss (2/13/12) 961
Order on Motions for Reconsideration (3/11/12) 962
963 Order on Motions to Modify the Status Quo (3/14/12)
Order on Motion for Clarification (3/16/12) 967
Minute Order (3/23/12) 968
Order on Motion for Leave to Intervene (8/9/12) 968
968 Order on Motion for Summary Judgment (10/11/12)
980 Order on Motion to Quash and For a Protective Order (11/20/12)
982 Order on Electronic Filing Procedures for C70-9213 (11/20/12)
982 Amended Supplemental Order on Paragraph 25 Procedures (11/20/12)
Order (12/5/12) 983
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2012)
ORDER GRANTING SUQUAMISH TRIBE’S MOTION TO DENY A & K TRUST’S REQUEST FOR INTER-VENOR STATUS
Subproceeding Nos. 89-3 (Shellfish), 89-3-05
(June 13, 2008)
RICARDO S. MARTINEZ, District Judge.
This matter is before the Court for consideration of a motion filed by the Su-quamish Tribe to deny A & K Trust’s Request for Intervention. Dkt. # 14565 (also docketed as Dkt. # 31 in Subproceed--ing 89-305). This motion was filed pursuant to the Settlement Agreement filed in Subproceeding 89-3, and procedures set forth in the subsequent Order adopting the Settlement Agreement. Dkt. ## 14476, 14482. The A & K Trust has appeared to oppose the motion. Oral argument was heard on June 11, 2008, and the matter has been fully considered. For the reasons set forth below, the Court shall grant the motion.
DISCUSSION
On June 20, 2007, the parties filed a Settlement Agreement in this matter, setting forth an agreement by which the Tribes, the Intervenor Shellfish Growers, the State of Washington, and the United States settled a long-standing dispute regarding the Tribes’ treaty right to take shellfish on tidelands owned by the State of Washington or owned or leased by private parties. The significant aspect of this agreement is that the Tribes agreed that upon the fulfillment of certain.contingencies (leading to the payment of $33 million to the Tribes), “any and all shellfish on ‘covered tidelands’ ... are deemed as of the date of this Settlement Agreement to be ‘staked and cultivated by citizens’ for the purpose of implementing the Treaties ...” Settlement Agreement, ¶ 6A. The designation of the “covered tidelands” as “staked and cultivated” thus brought these tidelands under the so-called Shellfish Proviso of the Stevens’ Treaties, which reserved to the Tribes the right of taking fish in common with all citizens of the Territory, “Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens.” United States v. Washington, 157 F.3d 630, 638 (9th Cir.1998). This determination as to what constitutes a “staked and cultivated bed” immune from Tribal harvest has been the focus of the on-going “Density Dispute” (Subproceeding 89-3).
The “covered tidelands” to be designated as “staked and cultivated” are those owned or leased by eight named shellfish growers who were the original Intervenors in this Subproceeding: Taylor United, Inc.; Olympia Oyster Co.; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minter-brook Oyster Co.; Charles and Willa Murray; Skookum Bay Oyster Co.; and J & G Gunstone Clams, Inc. Settlement Agreement, ¶ 2(A). Pursuant to the Settlement Agreement and a subsequent stipulation regarding its implementation, other shellfish growers who meet the conditions set forth in the Settlement Agreement could become Intervenors and be bound by the terms of the Settlement Agreement by filing a Notice and Request for Intervention on or before March 1, 2008. Such Notice must include documentation which would establish that the requirements for Intervenor status set forth in the Settlement Agreement had been met. Settlement Agreement, ¶¶ 2(B), 2(C). The Tribes would then have eight months to file objections to any such Notice. Stipulation Regarding Implementation of Settlement Agreement, Dkt. # 14481. A & K Trust (“the Trust”) filed a Notice and Request for Intervention on February 29, 2008. Dkt. # 14497. To date, the Su-quamish Tribe’s objection to the Notice filed by the Trust is the only objection filed by the Tribes.
The criteria that a grower must meet to qualify for Intervenor status under the Settlement Agreement, and have tidelands regarded as “covered tidelands”, are set forth in that Agreement. First, the person must be a member of the Puget Sound Legal Defense Fund. Second, the grower must have, on or before August 28, 1995, owned tidelands, leased them from a private party, or “otherwise had a right to commercial harvests of shellfish from tidelands” and either (1) had an active aquatic farm registration for commercial harvest of shellfish from tidelands on or before August 28, 1995, and a Washington Department of Health certification for those tidelands; or (2) on or before the date the party seeks intervention, he or she had an active aquatic farm registration for commercial shellfishing on designated tidelands, together with a health certification for those tidelands, and the person provides documentary evidence establishing that those tidelands were used for “sustained commercial production” of shellfish during some portion of the time between January 1, 1985, and August 28, 1995. Settlement Agreement, ¶¶ 2(B)(i), 2(B)(ii). In addition, a grower seeking to qualify under either section must provide sufficient identification of the specific tidelands to be covered, as by county and tax parcel number. A third route to qualification, not relevant here, provides for Intervenor status for growers who acquired the right to grow and harvest shellfish from someone else who already qualified, either as one of the original eight Intervenors, or through one of the routes set forth in ¶¶ 2(B)(i) and (ii).
Together with the Notice and Request for Intervention, the Trust filed over 350 pages of documents, including copies of aquatic farm registrations, deeds, tax record, lease agreements, and licenses, all purportedly relating to various tidelands in Dyes Inlet, Washington. Dkt. # 14497. In moving to deny Intervenor status to the Trust, the Suquamish Tribe asserts that none of the documentation satisfies the requirements set forth under either ¶ 2(B)(i) or (ii), and that none of it sufficiently identifies the specific tidelands to be considered as “covered tidelands.”. In opposing the motion, the Trust identifies six particular tax parcels, and argues that various leases and oyster transfer permits provide sufficient documentation to meet the requirements set forth under ¶ 2(B)(ii) of demonstrating “sustained commercial production” on those tidelands at some time between January 1, 1985, and August 28, 1995. The Court finds that is not so.
The tidelands which the Trust seeks to include as “covered tidelands” in its Notice and Request for Intervention lie adjacent to Chico Bay, Phinney Bay, and Erlands Point, all within Dyes Inlet, Washington. It is undisputed that this entire area was closed to the commercial harvest of shellfish from the late 1960’s until 1996 — after the crucial date of August 28, 1995, due to pollution of the surrounding waters. In 1996, some areas of Dyes Inlet were opened to restricted harvest, as by relying clams from there to clean waters elsewhere for a period of purging. However, prior to August 28, 1995, even that limited harvest was not allowed.
The Trust thus conceded at oral argument that no “sustained commercial production” took place on these tidelands between 1985 and August 28, 1995, as required to qualify under ¶ 2(B)(ii). Instead, the Trust urged the Court to consider that under the circumstances here, where the tidelands were closed to harvest throughout the critical period, a demonstration of “sustained commercial activity ” should be considered sufficient to meet the requirement set forth in the Settlement Agreement. The Trust offered several documents which purported to show commercial “activity” during the relevant period, such as oyster transfer permits. Trust’s Response, filed in Subpro-eeeding 89-305 only, Dkt. #36, Exhibits C, D. However, these unauthenticated documents are inadmissible hearsay, and further fail to provide any indicia tying them to the tidelands at issue here. More importantly, even if these documents could be considered as evidence of commercial activity on the Trust’s tidelands, the Court cannot adopt the Trust’s argument that commercial “activity” should be considered the functional equivalent of commercial “production” for the purposes of the Settlement Agreement.
The language of the Settlement Agreement clearly and unequivocally states that in order for tidelands to qualify as “covered tidelands” and be considered “staked and cultivated” under ¶ 2(B)(ii) of the Agreement, documentation must be provided “establishing that those tidelands were used for sustained commercial 'production of shellfish during some portion of the time between January 1, 1985, and August 28, 1995.” Settlement Agreement, ¶ 2(B)(ii). There is no exception in this carefully-crafted Agreement for tidelands that were closed to commercial production and harvest during that time. Nor can the Court make that exception. The designation of beds as “staked and cultivated” within the language of the Shellfish Proviso is in derogation of the Tribes’ treaty right to harvest shellfish at their usual and accustomed places. Therefore, any provision regarding that designation, including the Tribes’ agreement in the Settlement Agreement, must be strictly construed. Where the language in the Agreement requires a demonstration of “sustained commercial production the Court cannot expand the language to include “sustained commercial activity.”
As the Trust has failed to produce appropriate documentary evidence that its leased tidelands are “covered tidelands” within the provisions of the Settlement Agreement, it has not established Interve-nor status in this matter. The motion of the Suquamish Tribe to deny the A & K Trust’s Request for Intervention in the Shellfish Settlement Agreement (Dkt. # 14565 in Subproceeding 89-3, Dkt. # 31 in Subproceeding 89-305) is accordingly GRANTED. The Clerk shall file a copy of this Order in both Subproceeding 89-3 and in Subproceeding 89-305.
ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR SUMMARY JUDGMENT
Subproceeding No. 89-3-05 ■
(June 13, 2008)
This matter is before the Court for consideration of the Suquamish Tribe’s Motion for Summary Judgment as to their Request for Dispute Resolution. Dkt. # 31. The Request for Dispute Resolution was filed pursuant to authority conferred by the Amended Shellfish Implementation Plan ¶ 9. 1. United States v. Washington, C70-9213, Subproceeding 89-3, Dkt. # 14331 (April 8, 2002). The Suquamish Tribe asks that the Court adopt and enforce a plan proposed by the Suquamish for the harvest of clams on tidelands leased by A & K Trust (“Trust”) at Chico Bay in Kitsap County, Washington. The Trust has opposed the motion. The Court heard oral argument on June 11, 2008, and the matter has been fully considered. For the reasons set forth below, the motion of the Suquamish Tribe shall be GRANTED.
DISCUSSION
This is the second time these parties have been before the Court regarding the Suquamish Tribe’s treaty harvest of clams from tidelands leased by A & K Trust. See, Subproceeding 89-303. In the prior dispute, regarding the Trust’s leased tidelands at Erlands Point, the Court found that the clam beds there did not qualify as “existing beds on property owned or leased by Growers licensed by the State of Washington”, as set forth in § 6.1 of the Revised Shellfish Implementation Plan. C70-9213, Subproceeding 89-303, Dkt. # 31, p. 6 (May 28, 2004). The Suquamish Tribe was therefore entitled to exercise its treaty-based right to harvest clams from those tidelands.
Three years later, the Tribes, the State of Washington, the United States, and certain shellfish growers reached an agreement, formalized in a Settlement Agreement which was filed with the Court on June 20, 2007. C70-9213, Subproceeding 89-3, Dkt. # 14476. The significant aspect of this Agreement is that the Tribes agreed that upon the fulfillment of certain contingencies, “any and all shellfish on ‘covered tidelands’ ... are deemed as of the date of this Settlement Agreement to be ‘staked and cultivated by citizens’ for the purpose of implementing the Treaties ...” Settlement Agreement, ¶ 6A. The designation of the “covered tidelands” as “staked and cultivated” thus brought those tidelands under the so-called Shellfish Proviso of the Stevens’ Treaties, which reserved to the Tribes the right of taking fish in common with all citizens of the Territory, “Provided, however, that they shall not take shellfish from any beds staked or cultivated by^ citizens.” United States v. Washington, 157 F.3d 630, 638 (9th Cir.1998).
Apparently relying on the designation of “covered tidelands” as “staked and cultivated” beds in the Settlement Agreement, the Trust denied the Suquamish Tribe access to tidelands leased by the Trust at Chico Bay. The Tribe filed a Request for Dispute Resolution regarding these tidelands on June 14, 2007, and requested a preliminary injunction to enjoin any party from harvesting the clams until the matter could be resolved. The Trust and the Tribe stipulated to such an injunction, and as the additional party Clam Acres had not appeared in opposition, the injunction was entered. Dkt. ## 9, 13. The Tribe now seeks summary judgment on the issue presented in the Request for Dispute Resolution; that is, whether the designated tidelands leased by the Trust at Chico Bay are subject to treaty harvest by the Tribe, and whether the Tribe’s proposal for organizing that harvest should be adopted.
In opposing the motion, the Trust first asserts that there are issues of fact as to whether it is entitled to intervene and participate in the Settlement Agreement. However, the Court has by separate Order granted the Suquamish Tribe’s motion to deny the Trust’s Notice and Request to Intervene in the Settlement Agreement. The Trust’s tidelands at Chico Bay therefore do not qualify as “covered tidelands” within the meaning of that Agreement. In the absence of such qualification, this matter, like the previous dispute between the Tribe and the Trust, is governed by the terms of the Amended Shellfish Implementation Plan (“the Plan”).
■ The Plan sets forth a specific procedure by which a shellfish grower and a Tribe with a treaty-based right to harvest naturally-occurring shellfish on tidelands owned or leased by that grower shall determine the Tribe’s allocation of shellfish. Paragraph 6.1 of the Plan applies to shellfish beds on tidelands controlled by a grower who was licensed by the State of Washington as of August 28, 1995, the effective date of the original Shellfish Implementation Plan. The Court determined in the prior dispute between the Trust and the Suquamish Tribe that as of the relevant date, the Trust did not possess a grower’s license for the Erlands Point tidelands. Subproceeding C89-303, Dkt. #31, p. 6. The Trust has submitted no evidence which would change that result for the Chico Bay tidelands.
Shellfish beds which were not controlled by a licensed grower as of August 28, 1995 are addressed in ¶ 6.3 of the Plan. That paragraph sets forth specific procedures for a grower to give notice to Tribes who might be affected by the grower’s aquatic farming activities on tidelands subject to that Tribe’s treaty harvest rights. Nowhere has the Trust submitted any evidence that it has complied with the procedures set forth in ¶ 6.3 of the Plan. Instead, the Trust has offered inadmissible evidence purporting to demonstrate its efforts to develop some unspecified tidelands as commercial shellfish beds. Trust’s Response, Dkt. # 35, Exhibits A & B. At oral argument, the Trust argued that it is entitled to reap the fruits of its labor. However, ¶ 6.3 is crafted to ensure just that benefit to a shellfish grower. The Trust has failed to comply with the requirements of ¶ 6.3 of the Plan, and is not entitled to claim the benefits thereof.
CONCLUSION
The Trust has presented no evidence that would create a factual issue with respect to the Suquamish Tribe’s treaty-based right to harvest clams at the Trust’s Chico Bay tidelands. Nor has the Trust presented any evidence or argument as to why the Court should not adopt the Tribe’s proposal for proceeding with that harvest. Accordingly, the Tribe’s motion for summary judgment is GRANTED. The Court shall sign and file the proposed Order presented by the Tribe, setting forth a reasonable and orderly procedure by which the parties may proceed with the harvest.
ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR SUMMARY JUDGMENT RE: A & K TRUST TIDELANDS AT CHICO BAY
Subproce'eding No. 89-3-05
(June 13, 2008)
This matter comes before the Court on the Suquamish Tribe’s Motion for Summary Judgment Re: A & K Trust Tidelands at Chico Bay. The Court has considered the papers submitted and the arguments presented by the parties. The Court hereby GRANTS the Su-quamish Tribe’s Motion for Summary Judgment Re: A & K Trust Tidelands at Chico Bay. The Court hereby ORDERS as follows:
1. The Tribe and A & K Trust (the “Trust”), including Clam Acres or any other person acting on the Trust’s behalf, shall harvest and manage the Chico Bay tidelands (i.e., tax parcel numbers 052401-1-075-2000 and 322501-3-036-2000) on a rotational basis until further order of the Court or agreement by the parties. Under this rotational scheme, the parties shall collectively harvest up to 33% (up to 16.5% each) of the harvestable clam biomass annually.
2. Annual allocations of manila clams (“M”) and native littleneck clams (“NL”) under this rotational scheme for each harvest area through the end of 2010 are as follows:
Parcel 052401-1-075-2000
(portion not subject to July 20, 2007 DOH emergency closure)
Suquamish Tribe A&K Trust
2008 M 15,742pounds 13,042 pounds
2008 NL 2,107pounds 2,107 pounds
2009 M 15,742pounds 15,742 pounds
2009 NL 2,107poúnds 2,107 pounds
2010 M 15,742pounds 15,742 pounds
2010 NL 2,107pounds 2,107 pounds
Parcel 052401-1-075-2000
(portion subject to July 20, 2007 DOH emergency closure)
Suquamish Tribe A&K Trust
2008M 2,154 pounds 2,154pounds
2008 NL 196 pounds 196 pounds
2009 M 2,154 pounds 2,154pounds
2009 NL 196 pounds 196 pounds
2010 M 2,154 pounds 2,154pounds
2010NL 196 pounds 196 pounds
Parcel 322501-3-036-2000
Suquamish Tribe A&K Trust
496 pounds 496 pounds 2008M
57 pounds 57 pounds 2008 NL
496 pounds 496 pounds 2009 M
57 pounds 57 pounds 2009 NL
496 pounds 496 pounds 2010 M
57 pounds 57 pounds 2010 NL
3. Absent some other agreement by the parties, the Tribe shall conduct a new clam population survey of the Chico Bay tidelands in the spring of 2011, and every third year thereafter, and future harvest allocations under this rotational scheme shall be calculated in accordance with such surveys.
4. The Tribe shall have the opportunity to immediately harvest its 2008 shares of the manila and native littleneck clams on the Chico Bay tidelands. The Trust, Clam Acres, and anyone acting on their behalf, shall not harvest any clams from the Chico Bay tidelands until the Tribe has completed its 2008 harvests or until five months have elapsed from the date of this Order, whichever comes first. The Tribe shall inform the Trust and WDFW of the dates that it plans to harvest as soon as practical, and shall promptly notify the Trust when it has completed the harvest of its allocation on any of the three harvest areas.
5.In future years, the parties shall schedule their harvests so as to account for spawning periods and DOH closures, and so as to accommodate the other party’s full and fair opportunity to conduct its harvests. Each party shall provide notice to the other party at least three (3) business days prior to harvest, each party may have a representative present for the other party’s harvests and “weigh-outs,” and each party shall promptly provide to the other party a report showing the quantities of clams harvested by date.
6. At least thirty (30) days prior to any proposed commercial shellfish harvest on tidelands owned, leased, or otherwise controlled by the Trust (wherever located, including but not limited to the Trust’s tidelands at Erlands Point, Phinney Bay, and elsewhere in Chico Bay), the Trust shall notify the Tribe (and any other affected treaty tribes). Prior to any such harvest; the Trust and the Tribe (and any other affected tribes) shall establish a plan that provides for the implementation of the Tribe’s (or tribes’) treaty right to 50% of the naturally-occurring shellfish on such tidelands. In the event the Trust provides a proper notice to the Tribe and other affected tribes under Section 6.3 of the Implementation Plan, the terms of Section 6.3 shall control.
7. The clerk is directed to enter judgment accordingly.
ORDER ON RULE 60(B) MOTION TO REOPEN
Subproceeding No. 01-2
(September 2, 2008)
This matter is before the Court for consideration of a Rule 60(b) motion by the Samish Indian Nation to reopen the judgment in U.S. v. Washington, C70-9213. Dkt. # 300. The earlier denial of this motion was reversed and remanded to this Court by the Ninth Circuit Court of Appeals. U.S. v. Washington, 394 F.3d 1152 (9th Cir.2005). The Court heard oral argument on October 10, 2007, and has thoroughly considered the arguments and memoranda of the parties, together with the lengthy record in this case. For the reasons set forth below, the Court has concluded that the motion to reopen the judgment must be denied.
BACKGROUND
This subproceeding represents the effort by the Samish Indian Nation (“the Samish”) to be recognized as a “Treaty Tribe” and thus exercise treaty fishing rights alongside other such recognized tribes pursuant to U.S. v. Washington, 384 F.Supp. 312 (W.D.Wash.1974). In the previous Order denying the Rule 60(b) motion, the Court set forth the following factual statement, which is re-stated here as it sets the background for the present decision:
A. Treaty Fishing Rights
In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit seeking an injunction requiring the State to protect those tribes’ share or runs of anadromous fish. Seven other tribes intervened as plaintiffs. In 1974, United States District Judge Boldt ruled that all fourteen tribes had treaty fishing rights under several Indian treaties, including the Treaty of Point Elliot, which entitled them to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) ("Washington I”). Washington I declared the treaty fishing rights of only those “14 Indian entities” that had participated as plaintiffs in that proceeding and that were defined as “Treaty Tribes” in the ruling. 384 F.Supp. at 405. Washington I contemplated that additional Indian entities might become parties in the case if any such entitles demonstrated that is was “entitled to exercise fishing rights under the treaties construed herein within the Western District of Washington.” Id.
On September 20, 1974, shortly after Judge Boldt’s initial decision, the Samish Tribe, as well as the Duwamish, Snohomish, Steilacoom, and Snoqualmie Tribes, moved to intervene in United States v. Washington, to assert their own treatfy] fishing rights. Judge Boldt referred the issue of the Samish’s treaty status to Magistrate Judge Robert Cooper sitting as a Special Master. After a five-day trial, Magistrate Judge Cooper determined that the Samish was neither a treaty tribe nor a political successor to the signatory treaty tribe.
The Samish appealed this determination to Judge Boldt, who thereafter conducted a de novo evidentiary hearing. The Samish submitted additional evidence to Judge Boldt, who heard argument in January 1977. Judge Boldt issued his decision in March 1979, ruling that the Samish were not a Treaty Tribe as defined in Washington I and that its members were not entitled to exercise treaty rights under the Treaty of Point Elliot. United States v. Washington, 476 F.Supp. 1101, 1111 (W.D.Wash.1979) (“Washington II”). Judge Boldt found that the Samish Tribe was not a successor in interest to any treaty signatory and had not maintained an organized tribal structure. Id. at 1106. Judge Boldt also concluded that the Samish were not entitled to exercise treaty rights because the Tribe was not “federally recognized” by the United States Department of Interior (DOI). Id. at 1111.
The Samish appealed Judge Boldt’s ruling to the Ninth Circuit, arguing inter alia that Judge Boldt improperly adopted without substantial change the proposed findings and conclusions submitted by the United States. United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.1981). The Samish also appealed Judge Boldt’s Finding of Fact No. 27, in which Judge Boldt found that the Samish had “not lived as a continuous separate, distinct and cohesive Indian cultural or political community.” 476 F.Supp. at 1105. Because Judge Boldt had in fact adopted most of the United States’ proposed findings of fact and conclusions of law, the Ninth Circuit applied close scrutiny to the Samish’s claims. The Ninth Circuit concluded that Judge Boldt had applied an incorrect legal test in determining whether a tribe had treaty rights. Rejecting the notion that federal recognition or nonrecognition was dispositive, the Ninth Circuit instead stated that the “single necessary and sufficient condition for the exercise of treaty rights is” whether “a group of Indian descendants ... have maintained an organized tribal structure.” 641 F.2d at 1372.
Applying this test to the record, the Ninth Circuit concluded “[ajfter close scrutiny, ... that the evidence supported [Judge Boldt’s] finding of fact” that the Samish had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communities].” Id. at 1373. As for the effect of the Samish’s nonrecognition, the court stated that “[n]onrecognition of the tribe by the federal government ... may result in loss of statutory benefits, but can have no impact on vested treaty rights.” Id. The court, therefore, affirmed Judge Boldt because “the district court correctly resolved this question despite its failure to apply the proper standard.” Id. at 1374. The Samish appealed this decision to the United States Supreme Court, which denied certiorari. 454 U.S. 1143 [102 S.Ct. 1001, 71 L.Ed.2d 294] (1982).
By the early 1980’s, therefore, the Samish Tribe had failed to persuade at least three judicial bodies — Magistrate Judge Cooper, Judge Boldt, and the Ninth Circuit — that it was entitled to be a party to this case.
B. Federal Recognition Proceeding
In 1972, after Congress began conditioning eligibility for most programs benefit-ting Indians upon status as a federally recognized tribe, the Samish first sought federal recognition. See 25 U.S.C. §§ 450-450(n). In 1978 the DOI [Department of Interior] published final regulations governing the procedure for official recognition of Indian Tribes. Apparently, the DOI took no action on the Samish’s original petition until after the 1978 regulations were promulgated, and the Samish filed a revised petition under the new regulations in October 1979. Thereafter, the Bureau of Indian Affairs (BIA) conducted an independent inquiry into the Samish’s recognition petition. The recognition petition was denied first in 1982, when the Assistant Secretary for Indian Affairs first published a preliminary determination concluding that the Samish should not be recognized. Samish objected to this decision and submitted a response and additional information and, after several years of delay, the Deputy to the Assistant Secretary for Indian Affairs issued a final decision in 1987 denying federal recognition to the Samish. 52 Fed.Reg. 3709 (Feb. 5,1987).
In 1989, the Samish filed a federal action in this district, alleging that the BIA’s denial of its recognition petition violated the Tribe’s due process rights and that the Samish was the successor in interest to the treaty Samish Tribe for purposes of showing entitlement to federal recognition. Greene v. Lujan, No 89-645Z (W.D.Wash). The Tulalip Tribe sought to intervene in this case, believing that if Samish were to gain federal recognition, then treaty fishing rights would likely follow. Judge Zilly denied Tulalip’s in-tervenor application but permitted it to participate as amicus curiae. On an interlocutory appeal, the Ninth Circuit affirmed the denial of the Tulalip’s inter-venor application on the grounds that “the calculus for tribal treaty rights under Ninth Circuit law is separate and distinct from that for federal acknowledgment.” Greene v. United States, 996 F.2d 973, 976-77 (9th Cir.1993). Thus, the Ninth Circuit reasoned, Tulalip’s interest in the recognition proceeding did not rise to intervenor status since “[e]ven if [the Samish] obtain federal tribal status, [they] would still have to confront the decisions in Washington I and II before they could claim fishing rights.”
On the merits, Judge Zilly held that the Samish had been denied due process in the recognition proceedings and vacated the decision denying recognition and remanded the recognition petition to the DOI for formal adjudication under the Administrative Procedure Act (APA). February 25, 1992 Order, 1992 WL 533059. The Ninth Circuit affirmed Judge Zilly’s due process ruling, requiring an APA due process hearing for the Samish. Greene v. Babbitt, 64 F.3d 1266 (9th Cir.1995).
On remand, Administrative Law Judge (ALJ) David Torbett of the DOI Office of Hearings and Appeals conducted an APA due process hearing on the Samish’s recognition proceeding. After an eight-day hearing, on August 31, 1995 Judge Torbett issued recommended findings of fact and conclusions of law in favor of Samish recognition.
In his recommended decision, ALJ Tor-bett found that the Samish met all seven mandatory criteria necessary for federal recognition as an Indian tribe. See, 25 C.F.R. § 83.7 (1993). Reviewing ALJ Torbett’s decision, the Assistant Secretary for Indian Affairs rejected some of his findings and conclusions, but ultimately ruled in favor of Samish recognition on November 8, 1995. The Samish appealed these rejections, and Judge Zilly reinstated the finding[s] of fact and conclusions of law that had been rejected and affirmed the Samish recognition decision. Greene v. Babbitt, 943 F.Supp. 1278, 1288-89 (W.D.Wash.1995 [1996]). Now, having achieved federal recognition, the Samish set out again [Note 4], pursuant to Rule 60(b)(6), to reopen the judgment in this case.
[Footnote 4: An earlier, unrelated attempt to set aside the judgment in Washington II occurred on November 22, 1993, when three Tribes, • including the Samish, moved for relief under Rule 60(b)(6) on the grounds that Judge Boldt might have been mentally incompetent at the time he signed the final findings in the case. This court, on January 23, 1995, denied the motion on three grounds: (1) that courts should avoid [disturbing the public interest in] the finality of judgments; (2) that a ruling for the Tribes would open the floodgates to future challenges to judgments on grounds of judicial incompetence; and (3) the Tribes suffered no manifest injustice since the magistrate judge and the Ninth Circuit reached the same conclusion as Judge Boldt. The Ninth Circuit affirmed this court’s ruling United States v. Washington, 98 F.3d 1159 (9th Cir.1996).]
Dkt. # 68, pp. 2-8.
In the written opinion on the judgment which the Samish now seek to reopen, the Court set forth both specific and general findings of fact. U.S. v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979). The general findings applied to five intervenor tribes who were at that time seeking Treaty Tribe status: the Duwamish, Samish, Snohomish, Snoqualmie, and Steilacoom tribes. As to these tribes, the Court made the following general findings:
(1)Article 2 of the Medicine Creek Treaty and Article 4 of the Point Elliott Treaty provided that the tribes and bands which were parties thereto agree to remove to and settle upon the reservations within one year after ratification of said treaties if the means were furnished them. In the years following the ratification of those treaties the United States did not enforce those provisions. A number of tribes or parts of tribes or bands which were parties to the treaties did not remove to the reservations and some Indians who did move later left the reservation, often returning to their native areas. Among the reasons for not removing to or remaining on the reservation were: (1) the reservations were too small or otherwise inadequate for the tribes and bands assigned to them; (2)the tribes or bands were not on friendly terms with others assigned to the reservation or with the people in whose territory the reservation was located; and (3) the reservation was too far from their traditional territory. The United States did not adopt or apply a policy of requiring the western Washington tribes or bands who were parties to the treaties to remove to or remain on the reservations. (PTO Part 2 P 3).
(2). A number of individual Indian people intermarried with non-Indians, did not accompany their respective tribes to the reservations but took up the habits of non-Indian life, and lived as citizens of the State of Washington in non-Indian communities. (Ex. USA-112; Tr. 10/29/75, 378-379)
(3). During the latter part of the 19th century and early part of the 20th century it was the policy of the United States Government to encourage the breaking up of Indian reservations and destruction of tribal relations and to settle Indians upon their own allotments or homesteads, acculturate and incorporate them into the national life, and deal with them not as nations or tribes or bands but as individual citizens. (PTO Part 2 P 4; Exs. USA-123 through 128; Annual Rept. Comm’r of Ind. Affairs, 1890, p. VI)
(4). This policy was officially changed in the 1930’s. (Exs. USA-129 and 130) The Indian Reorganization Act of June 18, 1934, 48 Stat. 984, was directed at implementing a policy of organizing and strengthening Indian tribal entities so as to manage their own affairs and to promote their civic and cultural freedom and opportunity and their own economic rehabilitation. By the Indian Reorganization Act, the descendants of the treaty tribes associated with most of the reservations voted to reorganize pursuant to that Act as Indian tribes and political entities under federally-approved constitutions and bylaws having express and implied governmental and proprietary powers and with original inherent sovereign tribal powers preserved to the extent not restricted by federal law. Except for a brief policy in the 1950’s of encouraging termination of federal supervision and administration of Indian affairs, the policy of encouraging tribal organization and greater self-management of internal affairs has continued and increased. (PTO Part 2 P 4; Ex. USA-130 pp. 418-421; Tr. 12/6/74, 212-214)
(5). In the period around 1916-1919 the Bureau of Indian Affairs caused an enumeration and enrollment to be made of unattached Indians in western Washington arranged by families and tribes. Special Indian Agent Charles E. Roblin was assigned to make this enumeration and enrollment. He found that a large number of persons claiming enrollment and allotment as Indians were descendants of Indian women who married early non-Indian pioneers and founded famines of mixed bloods. He reported that in many cases these applicants and families had never associated or affiliated with any Indian tribe for several decades or even generations. (Ex. USA-112)
(6). Neither Congress nor-the Executive Branch has prescribed any standardized definition for either the term “Indian” or “Indian tribe” in terms of the special federal relationships with Indians. (Ex. USA-110, pp. 138-139) The term “Indian” is used in several contexts including biological descent, cultural identity and legal status. (Id.) The term “tribe” is ■ most commonly used in two senses, an ethnological sense and a political sense although it also may be used in a social sense. (Federal Indian Law United States Department of the Interi- or (1968) p. 454)
(7). As a major aspect of the new federal Indian policy adopted in the 1930’s Congress enacted the Indian Reorganization Act of 1934. One of its major purposes was to authorize and facilitate the reorganization and revitalization of Indian tribal political entities. (Ex. T-22; Exs. USA-129 and 130) While existing recognized tribes did not have to accept the Act, and many did not, it did provide a means by which tribes which had lost their political authority and recognition could regain it.
(8). The legislative history of the Indian Reorganization Act of 1934 shows that in determining who was to be considered an Indian for the purpose of such tribal reorganization Congress rejected the Department of the Interior’s recommendation that persons who were not members of recognized tribes then under federal jurisdiction * 1104 or their on-reservation descendants could participate in such reorganization if they were of one-fourth or more Indian blood. Instead Congress required that such persons be of one-half or more Indian blood. Representative Howard, the House sponsor and floor leader for the bill, explained during debate that the definition (now 25 U.S.C. § 479) defines who shall be classed as Indians for the purposes of the Act. He said:
“In essence, it recognizes the status quo of the present reservation Indians and further includes all other persons of one-fourth or more Indian blood. The latter provision is intended to prevent persons of less than one-fourth (later changed to one-half) Indian blood who are not already enrolled members of a tribe or descendants of such members living on a reservation from claiming the financial and other benefits of the act. Obviously the line must be drawn somewhere or the Government would take on impossible financial burdens in extending wardship over persons with a minor fraction of Indian blood.” (Ex. T-22; Congressional Record, June 15, 1934, p. 12056)
(9). As used in (a) these Findings Nos. 1 to 59, inclusive, (b) in the Findings and Judgment awards of the Indian Claims Commission referred to in said Findings and in the requirements for the preparation of rolls for distribution of said Judgment awards, and (c) in the membership requirements of each of these Interve-nor entities, the terms “descendant” or “persons of Indian blood” means any person whose lineage includes any ancestor who was an Indian or a member of the referenced Indian tribe, community or other group. This is also true of the term “persons of Indian blood” unless a particular minimum degree of such blood or descent is specifically prescribed.
(10). The Court of Claims has determined and held that the Indian Claims Act of 1946, 60 Stat. 1049, allows claims to be prosecuted under that Act on behalf of Indian tribes, bands or communities that have ceased to exist as such, if brought as ,a representative action on their behalf by a group whose members can be identified as members or descendants of members of a previously existing tribe. (Thompson v. United States, 122 Ct.Cl. 348 (1952)).
(11). These five Intervenor tribes are not the beneficial owners of the Judgments that have been awarded under the Indian Claims Act on the claims prosecuted by them. Such Judgment Awards of the Intervenor Duwamish, Samish, Snohomish, and Snoqualmie tribes have been or will be distributed, pursuant to Acts of Congress dealing with such judgments, on a per capita basis to persons determined by the Secretary of the Interior to be descendants of members of the treaty-time tribes. (80 Stat. 910, 85 Stat. 83, 87 Stat. 466, 41 F.R. 5241). Distribution of the Steila-coom award has yet to be determined. (87 Stat. 466; Ex. USA-107, p. 4)
(12). None of the five Intervenor entities whose status is considered in these Findings is at this time a political continuation of or political successor in interest to any of the tribes or bands of Indians with whom the United States treated in the treaties of Medicine Creek and Point Elliott.
Id. at 1102-04.
The Court’s specific factual findings underlying denial of the Samish request for Treaty Tribe status were set forth as follows:
Specific Findings as to Intervenor Samish Tribe
(22). The Intervenor Samish Indian Tribe (herein referred to as the Interve-nor Samish Tribe) is composed primarily of persons who are descendants in some degree of Indians who in 1855 were known as Samish Indians and who were party to the Treaty of Point Elliott. The 1855 Samish were not named in the treaty but were assigned, for the purpose of including them in the treaty, to the Lummi signer, Chow-its-hoot, who signed the treaty for the Lummi and the other northern bands. (PTO Part 2 PP 1 and 2; Ex. USA-75 pp. 8-9) Official estimates of the number of Samish at treaty times varied from about 98 to about 150 persons. (Ex. USA-75 p. 13)
(23). Pursuant to the treaty most of the Samish people initially moved to the Lummi Reservation. Later others moved to the Swinomish Reservation. The present-day Lummi and Swinomish Reservation tribes include descendants of the 1855 Samish Indians. (Ex. USA-75 pp. 2,14-16; Ex. USA-30; Ex. USA-74, pp. 3-4)
(24). ' The Intervenor Samish Tribe prosecuted a claim against the United States before the Indian Claims Commission in Docket No. 261 which resulted in a monetary judgment award. (Ex. USA-111) This award will be distributed per capita to the descendants of the Samish Tribe of Indians as it existed in 1859, born on or prior to and living on the effective date of the plan prepared by the Department of the Interior for the use and distribution of judgment funds. (41 F.R. 5140, Feb. 4, 1976).
(25). The Intervenor Samish Tribe exercises no attributes of sovereignty over its members or any territory. It is not recognized by the United States as an Indian governmental or political entity possessing any political powers of government over any individuals or territory. None of its organizational structure, governing documents, membership requirements nor membership roll has been approved or recognized by the Congress or the Department of the Interior for purposes of administration of Indian affairs. (PTO Part 2 P 2) Said Intervenor has adopted a constitution and bylaws pursuant to which it has a tribal council and a tribal chairman and purports to operate as an identifiable and distinct entity on behalf of its members. It claims 549 members. (Ex. SAM-2; Ex. SA-79)
(26). The Intervenor Samish Tribe’s constitution provides that its membership shall consist of all persons of Indian blood whose names appear on the official membership roll of the Samish Tribe to be dated June 1, 1975, as prepared by the Secretary of the Interior, and all persons born to any member of the Samish Tribe. (Exs. SA-M-2 and SAM-3; Tr. 10/29/75, 267) No such roll is now in existence. (Exs. USA-M-16 and USA-107, p. 3) There is no requirement of specific minimum blood quantum either as to Samish blood in particular or Indian blood in general. (Exs. SA-M-2 and SA-M-3; Tr. 10/29/75, 273-274) The Intervenor’s membership roll contains 549 persons many of whom are of only l/16th degree Indian blood. Two have only l/32nd Samish blood. (Ex. SA-79) The tribe does not prohibit dual membership and at least one member is an officer of the Lummi Tribe. (Tr. 10/29/75, 273)
(27). The members of the Intervenor Samish Tribe and their ancestors do not and have not lived as a continuous separate, distinct and cohesive Indian cultural or political community. The present members have no common bond of residence or association other than such association as is attributable to the fact of their voluntary affiliation with the Inter-venor entity. (Ex. USA-107; Tr. 10/29/75, 232-235)
(28). The Intervenor Samish Tribe has had dealings with agencies of the United States, the State of Washington, and local governments and with private organizations and Indian tribes, but said dealings were not different in substance from those engaged in by any social or business entity. (Ex. USA-107 pp. 5-7)
(29). The Intervenor Samish Tribe is not an entity that is descended from any of the tribal entities that were signatory to the Treaty of Point Elliott.
(30). The citizens comprising the Inter-venor Samish Tribe have not maintained an organized tribal structure in a political sense.
Id. at 1105-06.
In moving to reopen, the Samish argue that the 1996 federal recognition constituted an “extraordinary circumstance” which would warrant reopening the judgment and a re-examination of their right to Treaty Tribe status. Their motion to reopen initiated this subproceeding, as a part of the ongoing United States v. Washington, C70-9213. The motion was opposed by nine of the twenty-two tribes which had previously been recognized as Treaty Tribes, as well as by the United States. On December 19, 2002, in the Order which is quoted in part above, the Honorable Barbara J. Rothstein denied the motion to reopen. Dkt. # 68. The denial was based upon the separate conclusions that the federal recognition did not constitute extraordinary circumstances as required by Rule 60(b), and that finality concerns weighed against re-opening the judgment. Id.
The Ninth Circuit reversed this decision, finding that the 1996 federal recognition of the Samish “is an extraordinary circumstance that warrants setting aside the judgment in Washington II.” 394 F.3d at 1161. The appellate court also noted that this court’s finality concerns were somewhat speculative and therefore insufficient to provide an independent basis for denial of the motion to reopen. Id. at 1162. The matter was thus remanded for further proceedings consistent with that opinion.
DISCUSSION
I. Standards for Rule 60(b) Motion
Federal Rule of Civil Procedure Rule 60(b) provides that “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons” F.R.Civ.P. 60(b). There follows a list of five specific grounds, together with a sixth nonspecific ground: “any other reason justifying relief from the operation of the judgment.” F.R.Civ.P. 60(b)(6). The Samish have brought their motion under this “catchall” provision, which applies when the reason asserted'for relief is not covered by any other provision set forth in Rule 60(b). As stated in the remand order, the section should be used “sparingly as an equitable remedy to prevent manifest injustice,” and is to be used “only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” 394 F.3d at 1158, citing United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.1993). Thus, “a party seeking to reopen a case under Rule 60(b)(6) ‘must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion.’ ” Id., quoting Community Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir.2002). Further, as stated in an earlier order regarding a separate motion to reopen these proceedings brought by other tribal entitles, a judgment may be set aside “only for reasons that would have prevented entry of the judgment in the first place, had the reasons been known at the time the judgment was entered.” United States v. Washington, 98 F.3d 1159, 1164 (9th Cir.1996) (Circuit Judge Kozinski, concurring).
II. Extraordinary circumstances
In the remand order, the appellate court found “extraordinary circumstances” in the following events:
In light of the government’s “excessive delays and ... misconduct” in withholding of recognition from the Samish, a circumstance beyond their control; the government’s position in Washington II that federal recognition was necessary and that future federal recognition might justify revisiting the treaty rights issue; and the district court’s erroneous conclusion that nonrecognition was decisive and wholesale adoption of the United States’ boiler-plate findings of fact in Washington II, we conclude that the Samish were effectively prevented from proving their tribal status “in a proper fashion.”
U.S. v. Washington, 394 F.3d at 1159 (citing to the district court’s language in Greene, where it noted that the Samish’s “long journey for recognition has been made more difficult by excessive delays and governmental misconduct.” Greene v. Babbitt, 943 F.Supp. at 1288-89).
The question, then becomes whether these extraordinary circumstances justify reopening judgment under Rule 60(b) so that the Samish may present their case for Treaty Tribal status. The Samish argue that the Ninth Circuit’s remand order amounts to a per se determination that they are entitled to such status. Certainly, the following statement appears to support that conclusion:
As the Samish are a signatory tribe and have proved the single necessary and sufficient condition for the exercise of treaty rights, the res judicata effect of Washington II is all that is keeping the Samish from pursuing its treaty rights.
394 F.3d at 1160. However, this language appears to conflict with prior repeated assurances given to the Treaty Tribes that the legal bases and processes leading to federal recognition and Treaty Tribe status are “fundamentally different.” Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir.1995) (Greene II); citing Greene v. United States, 996 F.2d 973 (9th Cir.1993) (Greene I). When the Tulalip Tribes sought to intervene in the Samish recognition proceedings to protect their interests, particularly their treaty fishing rights, the appellate court affirmed the district court’s denial of the request, assuring the Treaty Tribes that “[fjederal recognition does not self-execute treaty rights claims.” Greene v. United States, 996 F.2d 973, 977 (9th Cir.1993) The appellate court further noted that “the Tulalip’s interest in preserving the favorable effects of stare decisis [of Washington II ] is too speculative to warrant intervention,” because, “[a]s we just said, the Samish may not gain fishing rights from federal recognition alone.” Id. Thus, although it was denied intervenor status, the Tulalip Tribe was allowed to appear as amicus curiae
In a later appeal by the Secretary of the Interior in the same proceedings, the appellate court provided an extensive review of the concept that federal recognition and Treaty Tribe status are separate and distinct:
The Tulalip Tribe has participated in this litigation because of concern that recognition of the Samish as a Tribe could lead to Samish eligibility for treaty fishing rights in already over-fished fisheries. The district court held that the treaty rights adjudicated in Washington II and the tribal recognition leading to government benefits for individual Samish are distinct issues.
In this appeal, the Tulalip Tribe emphasizes that in the petition for recognition, the Samish Tribe has not claimed to be any tribe other than the historical Samish Tribe that was party to the Treaty of Point Elliot. To the extent that the Samish rely upon historical roots in this litigation, the roots are probably the same as those they posited in Washington II. However, other decisions of this court demonstrate that the legal issue and the factual issue, as well as the stakes, are very different.
We specifically recognized the distinctions in United States v. Washington, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (Washington I), in which we held that a tribe’s recognition or lack of recognition by the Secretary of the Interior does not determine whether the tribe has vested treaty rights. We said:
Nonrecognition of the tribe by the federal government and the failure of the Secretary of the Interior to approve a tribe’s enrollment may result in loss of statutory benefits, but can have no impact on vested treaty rights. Whether a group of citizens of Indian ancestry is descended from a treaty signatory and has maintained an organized tribal structure is a factual question which a district court is competent to determine.
Id. at 692-93. Once a tribe is determined to be a party to a treaty, its rights under such a treaty may be lost only by unequivocal action of Congress. Id. at 693. Thus, the recognition of the tribe for purposes of statutory benefits is a question wholly independent of treaty fishing rights.
We further recognized the distinction between treaty fishing rights and tribal recognition in Washington II where we held that the district court had erred in concluding that only federally recognized tribes may exercise treaty rights. We nevertheless affirmed denial of treaty rights on the independent factual finding' of insufficient continuous political and cultural cohesion. See, 641 F.2d at 1372-74.
Our decision in Greene v. United States, 996 F.2d 973 (9th Cir.1993) can leave no serious doubt that our court regards the issues of tribal treaty status and federal acknowledgment as fundamentally different. We there held that the Tulalip Tribe was not entitled to intervene in this very litigation. We did so because the Tulalip’s interest in preventing the Samish from gaining treaty fishing rights was not affected by this litigation, involving federal tribal recognition or, as it is termed in the applicable regulation, “acknowledgment.” See, e.g., 25 C.F.R. § 83.2 (acknowledgment of tribal existence a prerequisite to the federal protection, services and benefits available to Indian tribes). In discussing the difference between the Samish seeking federal acknowledgment and treaty fishing rights, we said in Greene:
We recognize that the two inquiries are similar. Yet each determination serves a different legal purpose and has an independent effect. Federal recognition is not a threshold condition a tribe must establish to fish under the Treaty of Point Elliott.... Similarly, the Samish need not assert treaty fishing rights to gain federal recognition.
Greene v. Babbitt, 64 F.3d at 1270-71 (quoting Greene, 996 F.2d at 976-977).
The Court has quoted this section at length, to illustrate the difficulties that have arisen from the following language in the order of remand:
Indeed, we have never held that recognition of a tribe — as opposed to nonrecognition — is irrelevant to its exercise of treaty right, despite some dicta to the contrary. See, Greene v. Babbitt, 64 F.3d at 1270 (incorrectly asserting that in Washington I “we held that a tribe’s recognition or lack of recognition by the Secretary of the Interior does not determine whether the tribe has vested treaty rights”).
U.S. v. Washington, 394 F.3d at 1158. The extensive discussion in Greene of the historical background, and the repeated separation of treaty status from federal recognition in four different appellate decisions should not be written off as simply “dicta.” See, Washington I, 520 F.2d at 692-93; Washington II, 641 F.2d at 1372-74; Greene I, 996 F.2d at 976-77; Greene II, 64 F.3d at 1270-71.
However, some reconciliation of this statement with the appellate court’s own earlier pronouncements on the possible effect of federal recognition can be found in the court’s reference back to this section in Washington III;
We have defined a single necessary and sufficient condition for the exercise of treaty rights by a group of Indians descended from a treaty signatory: the group must have maintained an organized tribal structure.
This single condition reflects our determination that the sole purpose of requiring proof of tribal status is to identify the group asserting treaty rights as the group named in the treaty. For this purpose, tribal status is preserved if some defining characteristic of the original tribe persists in an evolving tribal community.
United States v. Washington, 641 F.2d at 1372-73 (citing United States v. Washington, 520 F.2d at 693). Portions of this section — the first and third sentences— were quoted in the order of remand. 394 F.3d at 1158. This section clarifies that the “necessary and sufficient” condition for the exercise of treaty rights is not federal recognition in and of itself, but rather the finding of “an organized tribal structure” which has been maintained by “a group of Indians descended from a treaty signatory.” Id.
Judge Boldt’s decision, above, specifically found that “the citizens comprising the Intervenor Samish Tribe have not maintained an organized tribal structure in a political sense.” U.S. v. Washington, 476 F.Supp. 1101, 1106. The Samish necessarily seek by this motion to reopen the judgment in order to challenge this factual finding and prove it wrong. This is so because, as set forth above, the fact of federal recognition is not itself determinative of treaty status. Thus, the finding of extraordinary circumstances in the federal recognition does not of itself justify granting the Samish motion to reopen; the Court must proceed to address other factors in the Rule 60 equation. These, as determined by the Court in its Order dated February 28, 2006, are issues of timeliness and equitable considerations. Dkt. #158.
III. Timeliness
The Treaty Tribes assert that the Rule 60(b) motion is untimely, because it was not filed within a reasonable time after the issuance of a final decision in the federal recognition proceedings. The final decision in the recognition proceedings was signed by Assistant Secretary Ada Deer on November 8, 1995. As described above, the Samish returned to the district court seeking to reinstate certain factual findings that had been rejected by Assistant Secretary Deer. The Court’s decision on that issue was filed October 15, 1996. Greene v. Babbitt, 943 F.Supp. 1278 (W.D.Wa.1996). The motion to reopen the judgment was not filed until December 13, 2001, six years after Assistant Secretary Deer issued her final decision.
A Rule 60(b)(6) motion must be brought within a reasonable time. F.R.Civ.Proc. 60(c)(1). For motions brought under Rule 60(b)(1), (2), or (3), based upon mistake or excusable neglect, newly discovered evidence, or fraud or misconduct, the motion must be brought within one year of the judgment sought to be vacated. Id. However, this time limit does not expressly apply to motions brought under the catchall provis