OR OP 8295 February 20, 2019

Does the doctrine of issue preclusion bar Oregon from arguing that the 1865 treaty (rather than the 1855 treaty) governs the Confederated Tribes of the Warm Springs Reservation's off-reservation hunting rights?

Short answer: Yes. Because Oregon already lost the question of whether the 1855 treaty governs the Tribe's off-reservation fishing rights in U.S. v. Oregon (1968), the AG concluded that issue preclusion would bar Oregon from now arguing that the 1865 treaty extinguished the Tribe's off-reservation hunting rights. The 1855 treaty governs both.

Disclaimer: This is an official Oregon Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Oregon attorney for advice on your specific situation.

Plain-English summary

The Confederated Tribes of the Warm Springs Reservation entered into two treaties with the United States. The 1855 Treaty with the Tribes of Middle Oregon ceded most of the Tribe's territorial claims in exchange for a reservation, monetary compensation, and reserved off-reservation hunting and fishing rights "at all other usual and accustomed stations, in common with citizens of the United States" and "the privilege of hunting * * * on unclaimed lands, in common with citizens." Ten years later, in November 1865, federal officials secured a second treaty that on its face relinquished those off-reservation rights. A later U.S. Forest Service study concluded that the tribal leaders' signatures on the 1865 treaty were obtained by fraudulent means, but that question of the treaty's validity was outside the scope of this opinion.

In 1968, the State of Oregon and the Tribe litigated the Tribe's off-reservation fishing rights in United States v. Oregon, a federal district court case in Oregon. The State argued that it could regulate the Tribe's fishing the same way it regulated other Oregonians. The Tribe contended that the 1855 treaty preserved its off-reservation fishing rights and limited the State's regulatory authority. The State lost. The federal court held that the 1855 treaty governed and that the State could regulate the Tribe's fishing only in narrow circumstances.

In February 2019, Governor Kate Brown asked the Attorney General whether issue preclusion would bar the State from now arguing that the 1865 treaty (rather than the 1855 treaty) governs the Tribe's off-reservation hunting rights. AG Ellen Rosenblum's answer was yes. The State litigated and lost the materially identical question for fishing, and the parties (the Tribe and the State) are the same. Issue preclusion bars the State from re-litigating that same question for hunting.

The practical consequence: any Oregon Fish and Wildlife Commission rule about the Tribe's off-reservation hunting rights, and any criminal enforcement of such rules, must be consistent with the 1855 treaty. The 1865 treaty is, for State purposes, off the table.

Currency note

This opinion was issued in 2019. Subsequent court decisions, treaty interpretations, AG opinions, or administrative guidance may have affected the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, treaty-rights litigation involving Pacific Northwest tribes has continued to evolve at both the federal and state levels. Anyone relying on this opinion should check for subsequent decisions in United States v. Oregon (which has had a long procedural history) and any later AG or court guidance on Warm Springs treaty rights.

Historical summary by audience (as of the opinion's 2019 issuance)

What the opinion meant for state hunting and wildlife regulators

The Oregon Fish and Wildlife Commission, which adopts hunting regulations enforced by law enforcement officers and county district attorneys, was the agency that would feel the practical effect. As a state agency, the Commission was guided by the AG's opinion. Any rules and any criminal enforcement involving Warm Springs Tribe members exercising off-reservation hunting rights had to be consistent with the 1855 treaty's "in common with citizens" framework, not the 1865 treaty's purported relinquishment.

What the opinion meant for the Warm Springs Tribe

The opinion was favorable to the Tribe's legal position. The State of Oregon, having lost on the same legal point in 1968, could not in 2019 try to revive the 1865 treaty as a basis for restricting the Tribe's off-reservation hunting. The Tribe's reserved hunting rights under the 1855 treaty were the operative framework.

What the opinion meant for federal coordination

The opinion was about state-level enforcement. Federal regulation of treaty rights is a separate question. The opinion did not address federal hunting regulations or federal court determinations beyond United States v. Oregon.

What the opinion meant for prosecutors

District attorneys evaluating potential charges against Warm Springs Tribe members for off-reservation hunting were instructed (through the AG's guidance to the Commission) that the 1855 treaty framework governed. Charges premised on a 1865-treaty theory were inconsistent with the AG's analysis and the 1968 U.S. v. Oregon result.

Common questions

Q: What is "issue preclusion" in plain English?
A: It is the rule that once a court has decided a specific factual or legal question between two parties, those same parties cannot re-litigate that same question in a later case, even if the later case is about a different legal claim. It exists because once you have had a fair chance to argue an issue and lost, you do not get a do-over.

Q: Why did the AG focus on issue preclusion rather than just the merits?
A: Issue preclusion was the cleanest analytical path. The State might have had merits arguments about how the 1855 and 1865 treaties interact, but those arguments had already been litigated and rejected for fishing. Re-arguing them for hunting would have been re-arguing a question the State had already lost.

Q: Was the 1865 treaty considered valid by the AG?
A: The opinion expressly did not decide that. A U.S. Forest Service study had concluded that the tribal leaders' signatures on the 1865 treaty were obtained by fraudulent means, but the AG was not asked to rule on validity and did not.

Q: Did the opinion limit treaty rights for other tribes?
A: No. The opinion was specific to the Confederated Tribes of the Warm Springs Reservation and the two specific treaties. Other Pacific Northwest tribes have their own treaty histories and their own United States v. Oregon track records. The principle that issue preclusion can bar re-litigation of treaty-interpretation questions is general, but its application to a specific tribe depends on what was actually litigated and decided.

Q: Could the State challenge the Tribe's hunting rights in some other way?
A: The opinion specifically said it did not address whether issue preclusion applies to other issues relevant to the Tribe's off-reservation hunting rights. There may be specific questions (geographical scope, timing, take limits, conservation necessity) that were not previously litigated and could in principle be argued separately. But the foundational question, does the 1855 treaty govern, or does the 1865 treaty extinguish?: was settled.

Background and statutory framework as of 2019

The treaties

1855 Treaty with the Tribes of Middle Oregon, 12 Stat 963 (1859): Tribes ceded large territorial claims, received a reservation and monetary compensation, and reserved off-reservation rights to take fish "at all other usual and accustomed stations, in common with citizens of the United States" and "the privilege of hunting * * * on unclaimed lands, in common with citizens."
1865 Treaty with the Middle Oregon Tribes, 14 Stat 751 (1867): On its face, this treaty relinquished the Tribe's off-reservation hunting and fishing rights and restricted the Tribe to its reservation absent written federal permission. The Forest Service study cited in the opinion concluded that the tribal leaders' signatures were obtained by fraudulent means.

The 1968 U.S. v. Oregon litigation

In 1968, the Tribe and the State litigated the Tribe's off-reservation fishing rights in federal district court in Oregon. The Tribe's position was that the 1855 treaty governed and that the State could regulate the Tribe's off-reservation fishing only in limited circumstances. The State's position was that it could regulate the Tribe's fishing the same as any other person's fishing. The federal court held that the 1855 treaty governed.

Issue preclusion

Issue preclusion (sometimes called collateral estoppel) bars a party from re-litigating a specific issue that was actually litigated, necessarily decided, and essential to a final judgment in a prior case between the same parties. The doctrine has well-established exceptions, including a general disfavor for applying it against the government where it would result in the inequitable administration of the law, or where the parties are not the same. Neither exception applied here: both Oregon and the Tribe were parties to the 1968 case, and the question of treaty applicability was substantially identical.

The application

The AG asked: was the 1855-versus-1865 question for fishing materially the same as the 1855-versus-1865 question for hunting? The treaties addressed both rights in the same provisions. The 1855 treaty reserved both fishing and hunting rights; the 1865 treaty purportedly relinquished both. The court in 1968 had decided that the 1855 treaty governed for fishing. The same analysis governs for hunting, because the operative treaty text is the same.

Citations and references

Treaties:
- 1855 Treaty with the Tribes of Middle Oregon, 12 Stat 963 (1859)
- 1865 Treaty with the Middle Oregon Tribes, 14 Stat 751 (1867)

Case:
- United States v. Oregon (federal district court for the District of Oregon, 1968)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ELLEN F. ROSENBLUM
ATTORNEY GENERAL

FREDERICK M. BOSS
DEPUTY ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
Justice Building
1162 Court Street NE
Salem, OR 97301-4096
Telephone: (503) 378-4400

February 20, 2019

No. 8295

This opinion responds to a question from Governor Kate Brown about the off-reservation hunting rights of the Confederated Tribes of the Warm Springs Reservation of Oregon ("the Tribe"). It focuses on whether the Tribe's off-reservation hunting rights would be defined by the Treaty with the Tribes of Middle Oregon of June 25, 1855 ("1855 Treaty") — which reserved those rights — or by the Treaty with the Middle Oregon Tribes of November 15, 1865 ("1865 Treaty") — which on its face relinquished them.

QUESTION PRESENTED

Does the doctrine of issue preclusion bar the State from disputing that the 1855 Treaty governs the Warm Springs Tribe's off-reservation hunting rights?

SHORT ANSWER

Yes. Issue preclusion would bar the State from litigating whether the Tribe holds off-reservation hunting rights based on the 1855 Treaty, including from arguing that the 1865 Treaty relinquished those rights. In U.S. v. Oregon, the State litigated, and lost, the issue of whether the earlier 1855 Treaty governs the Tribe's off-reservation fishing rights. The issue of whether the Tribe holds off-reservation hunting rights based on the 1855 Treaty is substantially identical to the issue earlier litigated. Therefore, the State would be precluded from litigating that hunting-rights issue with the Tribe, and accordingly, from arguing that the 1865 Treaty relinquished those rights.

Our analysis is specific to treaties, as opposed to generally applicable laws. It is also specific to potential civil litigation between the Tribe and the State construing the Tribe's off-reservation hunting rights. Issue preclusion is generally disfavored against the government where the parties are not the same as in the earlier litigation, or where preclusion would result in inequitable administration of the law. Neither of those circumstances is present here: the Tribe is the only entity whose off-reservation hunting and fishing rights are addressed by the 1855 and 1865 treaties, and both the Tribe and the State were parties to the earlier U.S. v. Oregon litigation.

As a practical matter, the Oregon Fish and Wildlife Commission adopts the rules that are criminally enforced by law enforcement officers in Oregon, and in turn by county District Attorneys. As a state agency, the Commission is guided by this opinion. Accordingly, any rules adopted by the Commission should be consistent with this opinion. And, further, the criminal enforcement of the Commission's rules should be consistent with this opinion.

This opinion does not address whether issue preclusion applies to any other issue relevant to the Tribe's off-reservation hunting rights.

DISCUSSION

I. Background

In 1855, the Tribe entered into a treaty with the federal government that ceded the Tribe's territorial interests in exchange for consideration that included a reservation and monetary compensation. The Tribe also reserved certain off-reservation hunting and fishing rights: the right to take fish "at all other usual and accustomed stations, in common with citizens of the United States," as well as "the privilege of hunting * * * on unclaimed lands, in common with citizens."

However, the later 1865 Treaty ostensibly relinquished those same off-reservation hunting and fishing rights. The 1865 Treaty contained other unfavorable terms, such as restricting the Tribe to its reservation absent written permission from the federal superintendent of Indian affairs. Examining these terms and the historical record, a United States Forest Service study later concluded that the tribal leaders' signatures were obtained by fraudulent means. Despite these circumstances, this opinion focuses only on whether the State would be precluded from asserting the 1865 Treaty. It therefore does not address the validity of the 1865 Treaty.

In 1968, the Tribe and the State litigated the Tribe's off-reservation fishing rights in U.S. v. Oregon in federal district court in Oregon. The Tribe contended that the State could restrict the Tribe's off-reservation fishing only in certain circumstances. The State, on the other hand, argued that it could regulate the Tribe's fishing to the same extent as it could regulate the fishing of any other Oregonian. The federal court ruled in favor of the Tribe, holding that the 1855 Treaty governed and that the State's regulatory authority over the Tribe's off-reservation fishing was limited.

II. Issue Preclusion Analysis

Issue preclusion bars a party from re-litigating an issue of fact or law that was actually litigated, necessarily decided, and essential to a final judgment in a prior case between the same parties. The doctrine has exceptions, including the general disfavor for applying it against the government where the parties are not the same as in the earlier litigation, or where preclusion would result in inequitable administration of the law.

Here, both Oregon and the Tribe were parties to the 1968 U.S. v. Oregon litigation. The federal court necessarily decided that the 1855 treaty governs the Tribe's off-reservation rights and that the 1865 treaty does not extinguish those rights. The treaty texts addressed fishing and hunting rights together. The question of which treaty governs is the same for hunting as it was for fishing. The State litigated and lost the question for fishing in 1968; it cannot re-litigate the same question for hunting in 2019.

CONCLUSION

The doctrine of issue preclusion would bar the State from disputing that the 1855 Treaty governs the Confederated Tribes of the Warm Springs Reservation's off-reservation hunting rights. State agencies, including the Oregon Fish and Wildlife Commission, should be guided by this conclusion in adopting and enforcing rules affecting the Tribe's off-reservation hunting rights.

Sincerely,

ELLEN F. ROSENBLUM
Attorney General