Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding, D.C. No. 2:08-cv-00372-JCC.
The opinion of the court was delivered by: Canby, Circuit Judge
Submitted March 15, 2010 -- Seattle, Washington
Before: William C. Canby, Jr., David R. Thompson, and Consuelo M. Callahan, Circuit Judges.
This is an appeal by the Tulalip Tribes of the Tulalip Reservation ("Tulalip Tribes") from an order of the district court denying the Tulalip Tribes the right to intervene in an action brought by the Snohomish Tribe of Indians and Michael C. Evans as its Chairman (collectively, "Snohomish Tribe") to achieve federal recognition of the Snohomish Tribe. Decision in this appeal was stayed pending the outcome of our en banc hearing in United States v. Washington, 593 F.3d 790 (9th Cir. 2010) (en banc) ("Samish"). Having now reviewed supplemental briefing on the effect of Samish on this appeal, we affirm the order of the district court denying intervention by the Tulalip Tribes.
JURISDICTION AND STANDARD OF REVIEW
A district court's denial of intervention as a matter of right is appealable as a final order under 28 U.S.C. § 1291. See United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002). We review de novo the district court's denial of a motion for intervention as of right. See Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998).
In 2003, the federal government denied recognition (now known as "acknowledgment") of the Snohomish Tribe. See Final Determination Against Federal Acknowledgment of the Snohomish Tribe of Indians, 68 Fed. Reg. 68,942-01 (Dec. 10, 2003). The Snohomish Tribe then brought an action in the district court seeking to overturn the adverse administrative decision and establish the Tribe's right to recognition. The Tulalip Tribes filed a motion to intervene in the recognition lawsuit for the limited purpose of bringing a motion to dismiss for lack of an "indispensable" party (the Tulalip Tribes).*fn1
The district court denied the motion to intervene, holding that the Tulalip Tribes had "failed to identify a protectable interest sufficient to invoke intervention as of right under Federal Rule of Civil Procedure 24(a)." The district court relied on our decisions in Greene v. United States, 996 F.2d 973 (9th Cir. 1993) ("Greene I"), and Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995) ("Greene II"), in which we upheld the denial of intervention of the Tulalip Tribes in the Samish Tribe's recognition proceedings.
The grounds urged in the present case by the Tulalip Tribes in its motion to intervene arose from the history of tribal treaty fishing rights in the Pacific Northwest.*fn2 Treaty fishing rights of several tribes (including the Tulalip Tribes)*fn3 were upheld in the seminal decision of United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) ("Washington I"), aff'd, 520 F.2d 676 (9th Cir. 1975). Shortly thereafter, four tribes, including the unrecognized Snohomish and Samish, intervened in that litigation to secure their own treaty rights. All four tribes were denied treaty fishing rights. See United States v. Washington, 476 F. Supp. 1101 (W.D. Wash. 1979) ("Washington II"), aff'd, 641 F.2d 1368 (9th Cir. 1981). Like the other three tribes, the Snohomish Tribe was held not to be "an entity that is descended from any ...