Monday, July 13, 2009

Skokomish Indian Tribe v. Port Gamble S'Klallam Tribe (9th Cir. - July 13, 2009)

Isn't one point -- indeed, a central point -- of having a judiciary to convince people not to engage in self-help remedies? Isn't the point of a judicial system to provide a means of peacefully settling what might otherwise provide fertile ground for continuing misconduct?

Perhaps not. Judge Kleinfeld writes an opinion that's good in places, but that carefully omits any reference to thse important principles. Judge Kleinfeld holds (indeed, waxes poetic about the fact) that the federal courts shouldn't resolve a continuing and longstanding dispute between various Indian tribes about how much fish each tribe is allowed to take under a series of treaties with the United States in the 1850s. We already settled the issue of how much the tribes are collectively allowed t0 take, Judge Kleinfeld says, and he concludes that's all the federal courts -- or indeed, any relevant court -- should bother to say. You've got to work the rest out amongst yourselves.

So no federal court resolution. No state court resolution either, since the tribes have sovereign immunity. No tribal court resolution either, since no court of a particular tribe could bind any other tribe.

Judge Kleinfeld essentially says: "Work it out amongst yourselves." Which is undoubtedly a good idea. There's good reason for that; after all, negotiated resolutions often happen, and when they do, that's great.

But what if a negotiated resolution doesn't happen? Judge Kleinfeld essentially says: "Tough. You're on your own then." A statement that itself likely diminishes the chances for a negotiated resolution (since a variety of disputes get resolved only in the shadow of an otherwise compelled judicial resolution) and/or the efficiency and justice of any extrajudicial outcome (since might tends to make right when there's no judicial recourse).

Do we really want individual Indians engaging in pervasive self-help here; e.g., cutting the lines and traps of other tribes, ramming their boats, or escalating the matter to fisticuffs (or worse)? It seems to me you have to say more about this than -- as Judge Kleinfeld does -- merely that "not all problems have judicial solutions."

When an intertribal dispute is directly created (as here) by a federal treaty, it seems to me that there may well be a permissible basis for the judiciary -- upon request by a party, of course -- to get involved. To provide a neutral and just result to the resulting dispute rather than leaving the parties to exclusively rely upon their extrajudicial strengths.

I'd like to have seen the panel -- Judges Kleinfeld, O'Scannlain and Rymer -- at least address this point more directly. It seems to me an important one.