PAUL GRONDAL, a Washington resident; MILL BAY MEMBERS ASSOCIATION, INC., a Washington non-profit corporation, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; BUREAU OF INDIAN AFFAIRS; CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Defendants-Appellees, v. WAPATO HERITAGE LLC; GARY REYES, Defendants-Appellants, and FRANCIS ABRAHAM; PAUL G. WAPATO, JR.; KATHLEEN DICK; DEBORAH BACKWELL; CATHERINE GARRISON; MARY JO GARRISON; ENID T. WIPPEL; LEONARD WAPATO; ANNIE WAPATO; JUDY ZUNIE; JEFFREY M. CONDON; VIVIAN PIERRE; SONIA W. VANWOERKOM; ARTHUR DICK; HANNAH RAE DICK; FRANCIS J. REYES; LYNN K. BENSON; JAMES ABRAHAM; RANDY MARCELLAY; PAUL G. WAPATO, JR.; CATHERINE L. GARRISON; MAUREEN M. MARCELLAY; LEONARD M. WAPATO; MIKE MARCELLAY; LINDA SAINT; STEPHEN WAPATO; MARLENE MARCELLAY; DWANE DICK; GABE MARCELLAY; TRAVIS E. DICK; HANNAH DICK; JACQUELINE L. WAPATO; DARLENE MARCELLAY-HYLAND; ENID T. MARCHAND; LYDIA A. ARNEECHER; GABRIEL MARCELLAY; MIKE PALMER; SANDRA COVINGTON, Defendants.
No. 20-35694
United States Court of Appeals for the Ninth Circuit
December 30, 2021
D.C. No. 2:09-cv-00018-RMP
Opinion by Judge Bea
FOR PUBLICATION
Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted August 9, 2021 Seattle, Washington
Filed December 30, 2021
Before: Carlos T. Bea, Daniel A. Bress, and Lawrence VanDyke, Circuit Judges.
Opinion by Judge Bea
SUMMARY*
Bureau of Indian Affairs/Government‘s Tribal Trust Duty
The panel affirmed the district court‘s grant of the Bureau of Indian Affairs’ motion for summary judgment and ejectment order in an action brought by a group of recreational vehicle owners seeking to retain their rights to remain on a lakeside RV park located on American Indian land held in trust
Decades ago, a group of recreational vehicle (“RV“) owners purchased fifty-year memberships to the RV park on a plot of land in Eastern Washington known as the Moses Allotment Number 8 (“MA-8“). However, the park‘s management had validly leased the park‘s land from its landowners for only twenty-five years.
In the 1900s, the United States originally issued title to the land to American Indian Wapato John, a member of the Moses Band of the Columbia Tribe, as an “allotment” in trust: a distinct plot of land set aside for Wapato John. According to the federal statute establishing this trust, the land‘s legal title vested in the United States, which was to hold the land in trust for ten years for Wapato John‘s sole use and benefit. The land‘s beneficial title (i.e., the land‘s equitable title) vested in Wapato John. During the ten-year trust period, the land was to be managed by the Department of the Interior (now the Bureau of Indian Affairs) and was subject to restrictions on alienation, encumbrance, and state taxation. That trust period for MA-8 has been repeatedly extended over the years (and these trust extensions correspondingly extended the restrictions as well) such that to this day, the Bureau of Indian Affairs (“BIA“) continues to hold legal title to the land in trust for beneficial interests of Wapato John‘s heirs, referred to as the individual allottees (“IAs“), and also for the Wapato Heritage LLC (“Wapato Heritage“), and the Confederated Tribes of the Coleville Reservation. The BIA‘s trust status, however, is in dispute.
In 1979, William Wapato Evans, Jr., an heir of Wapato John, obtained approval from a majority of other IAs to lease the entirety of MA-8 to develop a recreational vehicle park—the Mill Bay RV Park. Evans negotiated and signed a Master Lease in 1984, under which the IAs leased use of MA-8 to Evans for a term of twenty-five years, but Evans retained an option to renew the lease for another twenty-five years. Thereafter, Evans developed and sold regular and expanded memberships to purchasers to use and park their vehicles in the RV park. After Evans‘s death, his company Wapato Heritage obtained Evans‘s interest under the Master Lease as the lessee of the MA-8 land. The Master lease expired in 2009, leaving unexercised the option to extend. See Wapato Heritage, LLC v. United States (Wapato Heritage I), 637 F.3d 1033, 1040 (9th Cir. 2011).
Plaintiffs, Mill Bay Members Association (“Mill Bay“) and RV owner Paul Grondal, filed this lawsuit seeking a declaratory judgment that would recognize their right to remain on MA-8 through 2034. In January 2010, the district court handed down the first order here on appeal. This order dealt with cross-motions for summary judgment by plaintiff Mill Bay, which claimed the right to retain possession of the MA-8 land used by its membership for their RVs, and by defendant the BIA, which counterclaimed in trespass and sought Mill Bay‘s ejectment from the property. In that 2010 order, the district court rejected Mill Bay‘s attempt to remain on MA-8 and denied Mill Bay‘s claims for estoppel, waiver and acquiescence, and modification. After the district court‘s 2010 order, proceedings were significantly delayed due to concerns the court had with the IA-defendants’ lack of legal representation. These representation issues are the subject of this case‘s companion appeal, Wapato Heritage LLC v. United States, No. 20-35357 (9th Cir. 2021), which the panel decided by a separate memorandum disposition. In 2020, the district court handed down the second ruling here on appeal. In this 2020 order, the district court granted the BIA‘s motion for summary judgment for trespass and ordered Mill Bay removed from MA-8. Mill Bay appealed and defendant Wapato Heritage joined Mill Bay‘s appeal on the issue of the BIA‘s standing to bring a trespass counterclaim on behalf of the IAs.
The panel first held that the MA-8 land remains held in trust by the United States, and the BIA, as holder of legal title to the land, had and has standing to bring its claim for trespass and ejectment against Mill Bay. The panel held that of the three transactions and trust extensions in MA-8‘s history that appellants challenged, none were legally deficient. The panel therefore first rejected the assertion that the MA-8 allotments vested legal title in the IAs in fee simple rather than in trust. The panel noted that the Supreme Court in Starr v. Long Jim, 227 U.S. 613, 621–22 (1913), held that the 1883 Moses Agreement and its implementing legislation, the Act of July 4, 1884, did not guarantee title in fee but instead permitted the United States to hold the allotments in trust. The panel next rejected appellants’ assertion that when President Wilson extended the trust period for MA-8 until 1926 through his 1914 executive order, he did so without statutory authority. The panel held that the Act of June 21, 1906, gave President Wilson the lawful authority to extend the trust period of the Moses Allotments through his 1914 executive order. Finally, the panel rejected appellants’ argument that MA-8‘s trust period was not properly extended in 1936 after the passage of the 1934 Indian Reorganization Act (“IRA“). Based on the well-reasoned conclusion of the district court and the weight of the evidence in the record, including contemporary interpretations and consistent treatment for nearly a century, the panel rejected the argument that the Moses Allotments were non-reservation land outside of the scope of the 1934 IRA and its 1935 Amendment. The panel therefore affirmed the district court‘s conclusion that the 1935 Amendment extended the Moses Allotments’ trust status.
Mill Bay next asserted that the BIA should be precluded under res judicata from seeking ejectment due to the BIA‘s involvement in 2004 state court litigation (“Grondal state litigation“) that resulted in a 2004 Settlement Agreement permitting Mill Bay the right to use the property through 2034, in compliance with the Master Lease. The panel noted that the BIA was not itself a party to the Grondal state litigation or the 2004 Settlement Agreement. Nor was the BIA in privity with Wapato Heritage, concededly one of the parties to the Grondal state litigation. And Wapato Heritage‘s interest as the lessee under the Master Lease was quite different from the BIA‘s interest as trustee for the lessors under the same lease. Even setting aside that different parties were involved in the Grondal state litigation and in this lawsuit, the two cases also involved different claims. The panel therefore rejected Mill Bay‘s argument that the IAs and the BIA were precluded under res judicata from ejecting Mill Bay.
The panel rejected Mill Bay‘s assertion that Paragraph 8 of the Master Lease required Mill Bay‘s purported subleases to be preserved and assigned rather than cancelled because of the termination of the Master Lease. The panel held that Paragraph 8 of the Master Lease did not apply at all because the Master Lease was not terminated by cancellation or otherwise. Paragraph 8 did not apply when the Lease expires by the passage of time, as happened here.
Finally, Mill Bay argued that, based on the BIA‘s alleged prior representations that Mill Bay would be able to remain on MA-8 through 2034, the court should apply equitable estoppel to prevent the BIA from seeking Mill Bay‘s ejectment. The district court concluded the equitable estoppel defense was not available under United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003), which holds that the United States is not subject to equitable estoppel when it acts in its sovereign capacity as trustee for Indian land. The panel concluded that City of Tacoma was not distinguishable, and that Mill Bay was barred from asserting its defense of equitable estoppel against the BIA.
COUNSEL
Sally W. Harmeling (argued), Robert R. Siderius, Jacob M. Knutson, and Joseph Q. Ridgeway, Jeffers, Danielson, Sonn & Aylward, P.S., Wenatchee, Washington, for Plaintiffs-Appellants Paul Grondal and Mill Bay Members Association, Inc.
Nathan Arnold (argued), Bruce Johnston, Emanuel Jacobowitz, Cloutier Arnold & Jacobowitz PLLC, Seattle, Washington; Tyler D. Hotchkiss and Dale M. Foreman, Foreman, Hotchkiss, Bauscher & Zimmerman, PLLC, Wenatchee, Washington; for Defendant-Appellant Wapato Heritage, LLC.
Manish Borde (argued), Borde Law PLLC, Seattle, Washington, for Defendant-Appellant Gary Reyes.
Joseph P. Derrig (argued), Assistant United States Attorney; Joseph H. Harrington, Acting United States Attorney; United States Attorney‘s Office, Spokane, Washington; Jean E. Williams, Acting Assistant Attorney General; John L. Smeltzer, Attorney; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees United States of America, United States Department of the Interior, and Bureau of Indian Affairs.
Brian W. Chestnut (argued), Brian C. Gruber, and Anna E. Brady, Ziontz Chestnut, Seattle, Washington, for Defendant-Appellee the Confederated Tribes of the Colville Reservation.
OPINION
BEA, Circuit Judge:
Decades ago, a group of recreational vehicle (“RV“) owners purchased fifty-year
In the litigation below, the RV owners sued to retain their rights to remain on the RV park through 2034; the BIA is a defendant by dint of its now-challenged status as trustee of the at-issue land. But once sued, the BIA quickly took the offensive with a counterclaim for trespass and ejectment against the RV owners who have admittedly continued to possess the RV park, even after the lease expired.
In this appeal, we consider the district court‘s grant of the BIA‘s motion for summary judgment on that counterclaim. To rule, we must delve into the 19th-century origins of Wapato John‘s trust land; interpret 20th-century executive orders and treaties; apply 21st-century estate statutes; and consider the barrage of legal arguments presented to us. After considering all that, and more, we affirm.
I. BACKGROUND
A. The Land at Issue
Moses Allotment Number 8 (“MA-8“) is a plot of land in eastern Washington; the RV park is on that land. In the 1900s, the United States originally issued title to this land to American Indian Wapato John, a member of the Moses Band of the Columbia Tribe, as an “allotment” in trust: a distinct plot of land set aside for Wapato John. According to the federal statute establishing this particular trust, the land‘s legal title vested in the United States, which was to hold the land in trust for ten years for Wapato John‘s sole use and benefit. The land‘s beneficial title (i.e., the land‘s equitable title) vested in Wapato John. During the ten-year trust period, the land was to be managed by the Department of the Interior (now the BIA) and was subject to restrictions on alienation, encumbrance, and state taxation. That trust period for MA-8 has been repeatedly extended over the years (and these trust extensions correspondingly extended the restrictions as well) such that to this day, the United States continues to hold legal title to the land, in trust for Wapato John‘s heirs.
Today, beneficial ownership in MA-8 is rather fractionated. Twenty-seven heirs of Wapato John—here, referred to as the individual allottees (“IAs“)—own separate, undivided beneficial interests in the land. Wapato Heritage, LLC (“Wapato Heritage“) and the Confederated Tribes of the Colville Reservation (the “Tribe“) also hold undivided, beneficial interests in MA-8.1 The BIA retains legal title as trustee to all such beneficial interests held by the IAs, Wapato Heritage, and the Tribe.
Throughout most of 20th century, MA-8 was left unimproved. But in 1979, William Wapato Evans, Jr. (an heir of Wapato John and then-holder of an approximately 5% beneficial interest in MA-8) sought to
Under the terms of the Master Lease, signed in 1984, the IAs leased use of MA-8 to Evans for a term of twenty-five years, but Evans retained an option to renew the lease for another twenty-five years. To exercise this option, the Master Lease required Evans to provide written notice to both the Lessors (the IAs) and the BIA twelve months prior to the expiration of the original twenty-five-year term. The Master Lease permitted Evans to sublease the property upon written approval of the BIA and provided that such subleases would be assigned to the Lessors, rather than cancelled, if the Master Lease itself was terminated “by cancellation or otherwise.” Evans subleased most of MA-8 to his corporation, Mar-Lu, Ltd.3 He also subleased a portion of MA-8 to a development corporation owned by the Tribe for the operation of a casino.
Thereafter, Evans, through Mar-Lu, developed and sold “regular memberships” to the Mill Bay RV Park. These “regular memberships” allowed purchasers to use and park their vehicles on the RV park on a first-come, first-served basis under the site plan of the Master Lease.4 Later, in 1989, Evans obtained approval from the BIA to modify the site plan so that Evans could sell “expanded membership[s].” These expanded memberships, expressly subject to the terms of the Master Lease, granted members the “right to use” the Mill Bay RV Park and guaranteed them each a designated spot in the RV park.
B. Earlier Litigation
Two earlier lawsuits are relevant to this one. First is the Grondal state court litigation between Evans and some of the RV owners who had purchased regular or expanded memberships at his park. By 2001, the Mill Bay RV Park was losing money fast, and Evans notified RV owners who had purchased either a regular membership or an expanded membership that he would be closing the park. Some of those members—Paul Grondal and the Mill Bay Members Association, Inc. (“Mill Bay“)—sued in Washington state court to prevent the park closure.5 Evans died during the pendency of the litigation, at which point much of his assets were distributed by will to his company Wapato Heritage, including his rights under the Master Lease. The personal representative for Evans’ estate requested mediation of the Grondal state litigation.
At mediation, the parties settled and executed the 2004 Settlement Agreement, ultimately deciding that the RV park would not be closed. The BIA was not named a party to the litigation and did not
The second lawsuit was a federal court case concerning the Master Lease, which eventually reached this Court. Back in 1985, and shortly after signing the Master Lease, Evans had sent a letter to the BIA purporting to exercise the option to renew the Master Lease for 25 years through 2034. All parties to the Master Lease, as well as non-party the BIA, apparently assumed for the next twenty-two years that Evans’ letter was sufficient to exercise that option. The BIA never corrected Evans’ or Mill Bay‘s understanding that the Mill Bay RV Park was properly leased through 2034, and Mill Bay made significant financial expenditures and commitments based on that understanding.
Upon later investigation, however, the BIA came to believe that Evans’ letter was insufficient. Recall that per the Master Lease, Evans could renew only by giving notice to both “the Lessor“—the MA-8 IAs—and to the BIA. But Evans had given notice only to the BIA, so in the BIA‘s view, Evans (and Wapato Heritage, who took over as Lessee on the Master Lease after Evans’ death) had yet to successfully renew the Lease. In November 2007, the BIA sent a letter to Wapato Heritage that explained its position but noted that Wapato Heritage had two more months to notify the Lessor IAs and thereby properly exercise the renewal option. But instead of following that suggestion and so notifying the IAs, Wapato Heritage sent a response letter to the BIA disagreeing with the BIA‘s interpretation of the Master Lease renewal provision.
In 2008, and after the end of the period in which Wapato Heritage could correct the insufficient 1985 lease renewal, Wapato Heritage filed suit against the United States, arguing that Evans‘s 1985 letter had actually or substantially complied with the renewal notice terms of the Master Lease, or alternatively, that the BIA had approved the renewal and extended the lease‘s length. The district court ruled for the BIA, dismissing all of Wapato Heritage‘s claims either on a motion to dismiss or on summary judgment, and confirmed the BIA‘s understanding of the Master Lease: The IAs, not the BIA, were the “Lessors” and Evans had failed properly to notify the Lessor IAs of his intention to exercise the renewal option. See Wapato Heritage, LLC v. United States, No. CV-08-177, 2009 WL 3782869, at *3, *5 (E.D. Wash. Nov. 6, 2009) (granting the BIA‘s motion to dismiss for lack of subject-matter jurisdiction and motion for judgment on the pleadings); Wapato Heritage, LLC v. United States, No. CV-08-177, 2008 WL 5046444, at *5, *8 (E.D. Wash. Nov. 21, 2008) (granting in part the BIA‘s motion for summary judgment). We affirmed. See Wapato Heritage, LLC v. United States (Wapato Heritage I), 637 F.3d 1033, 1040 (9th Cir. 2011). The Master Lease expired in 2009, leaving unexercised the option to extend, and our 2011 decision has since become final as the Supreme Court has denied review.
C. The Present Lawsuit
After Wapato Heritage lost its lawsuit challenging the interpretation of the Master Lease, Grondal (Wapato Heritage‘s purported sublessee under the Master Lease) and Mill Bay filed this lawsuit, seeking a declaratory judgment that would recognize their right to remain on MA-8
In January 2010, the district court handed down the first order here on appeal. This order dealt with cross-motions for summary judgment by plaintiff Mill Bay, which claimed the right to retain possession of the MA-8 land used by its membership for their RVs, and by defendant the BIA, which counterclaimed in trespass and sought Mill Bay‘s ejectment. The BIA argued in its counterclaim that Grondal and Mill Bay no longer had any right to occupy MA-8 after the expiration of the Master Lease; on that basis, the BIA sought their ejectment from the MA-8 property.
In that 2010 order, the district court rejected Mill Bay‘s attempt to remain on MA-8 and denied Mill Bay‘s claims for estoppel, waiver and acquiescence, and modification.7 The district court also reconstrued those three claims as affirmative defenses to the BIA‘s trespass counterclaim, a characterization that appellants do not challenge, and took the opportunity to deny two of these affirmative defenses, namely: (1) that a provision of the Master Lease, paragraph 8, requires the Lessor (the IAs) to permit Mill Bay as “sublessees” to remain on the property because the Master Lease was ended by “cancellation or otherwise,” and (2) that the 2004 Settlement Agreement precluded the BIA from ejecting Mill Bay under principles of res judicata. Finally, the district court denied as premature the BIA‘s motion for summary judgment on trespass and ejectment.8
After the district court‘s 2010 ruling, Wapato Heritage and Mill Bay changed litigation strategy. As part of the 2010 ruling on the BIA‘s counterclaim, the district court had concluded that the BIA had authority as trustee for the MA-8 land to bring a trespass counterclaim on behalf of the IAs but lacked contractual authority under the Master Lease to do so because the BIA was not a party to that lease. Seeing an opening, Wapato Heritage then decided to challenge for the first time the trust status of MA-8. This issue is important, because the BIA‘s standing to pursue a trespass action against Wapato Heritage and Mill Bay depends on its status as holder of legal title as trustee to the MA-8 land. So when Wapato Heritage filed its answer to Grondal and Mill Bay‘s lawsuit, it also filed a cross-complaint against the
Finally, in July 2020,11 the district court handed down the second ruling here on appeal. In this 2020 order, the
district court granted the BIA‘s motion for summary judgment for trespass (reconsidered its concerns as to prematurity) and ordered Mill Bay removed from MA-8. Mill Bay had argued in its defense that the BIA lacked standing to bring its trespass claim because the trust period for MA-8 had expired, depriving the BIA of its trustee status over MA-8 and thus of any injury-in-fact tied to Mill Bay‘s presence on MA-8. On this standing argument, the district court found: (1) that Mill Bay was judicially estopped from arguing that MA-8 was not held in trust because that argument contradicted Mill Bay‘s prior positions in the litigation; and (2) even if judicial estoppel did not apply, the trust period of MA-8 had not expired and the United States still held MA-8 in trust, thus giving the BIA standing. On the merits of the BIA‘s counterclaim, the district court found Mill Bay to be trespassers, denied Mill Bay‘s other defenses (including equitable estoppel), granted the BIA‘s motion for summary judgment, and ordered Mill Bay ejected.
While the district court‘s 2020 order left pending several crossclaims not at issue in this appeal,12 the order resolved
all claims involving Mill Bay, so pursuant to
The ejectment order against Mill Bay was in the nature of an injunction so we have jurisdiction under
II. STANDARD OF REVIEW
“We review the district court‘s grant of summary judgment de novo.” United States v. Milner, 583 F.3d 1174, 1182 (9th Cir. 2009). Any deviations from this standard are noted below when applicable.
III. DISCUSSION
Despite the considerable cast of characters just introduced and the extensive backstory just presented, this episode‘s plot is relatively straightforward. In the district court‘s 2020 order, it granted the BIA‘s motion for summary judgment on the BIA‘s counterclaim for trespass and ejectment. We are asked to examine the district court‘s decision to deny four of Mill Bay‘s defenses against that counterclaim. These defenses are: (1) the BIA lacks standing to bring a trespass claim as trustee on behalf of the IAs because the MA-8 property is not in fact held in trust by the BIA, (2) res judicata precludes the BIA from relitigating Mill Bay‘s right to possess MA-8 because the BIA was involved in the Grondal state litigation that allegedly decided that same issue, (3) paragraph 8 of the Master Lease required Mill Bay‘s purported subleases to be preserved and assigned rather than cancelled because of the termination of the Master Lease, and (4) the BIA is bound under equitable estoppel from reversing its previous alleged representations that Mill Bay would be permitted to remain on MA-8 through 2034. We address each in turn.
A. The BIA‘s Standing As Trustee of the MA-8 Land
First, both Mill Bay and Wapato Heritage appeal the district court‘s conclusion that MA-8 remains held in trust by the United States. At the outset, they dispute the district court‘s preliminary finding that Mill Bay is precluded from advancing this argument due to judicial and landlord-tenant estoppel. And on the merits, Mill Bay and Wapato Heritage reject the district court‘s ruling that the United States still holds MA-8 in trust. As Mill Bay and Wapato Heritage would have it, MA-8 is no longer trust land, depriving the BIA of standing to bring a trespass claim on the IA‘s behalf and seek Mill Bay‘s ejectment from MA-8. We deal first
with the estoppel issue and then proceed to the merits of Mill Bay and Wapato Heritage‘s argument that MA-8 is no longer held in trust.
1. Estoppel Is No Substitute for Subject Matter Jurisdiction: This Court Must Determine the BIA‘s Standing
Judicial estoppel is “not a substitute for subject matter jurisdiction.” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1137 (9th Cir. 2012). We, like any other federal court, must assure ourselves of our “jurisdiction to entertain a claim regardless of the parties’ arguments or concessions.” Id. We must always examine whether the claimant has legal authority to prosecute the claim before turning to the merits. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Accordingly, estoppel
“Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). The district court concluded Mill Bay deliberately changed its legal arguments in the middle of litigation to gain an advantage.14 But regardless the merits of that determination, Mill Bay‘s theory—that the BIA lacks standing to bring its counterclaim because it does not hold legal title to MA-8 in trust—raises a legitimate Article III jurisdictional issue that we must examine; judicial estoppel does not permit us to dodge the question. On that basis, the district court erred in finding Mill Bay was estopped from arguing the trust period for MA-8 had expired.
In addition to its judicial estoppel argument, the BIA argues that Mill Bay cannot contest the BIA‘s authority to bring a trespass action under landlord-tenant estoppel. Under the general landlord-tenant estoppel rule, “a tenant in peaceful possession is estopped to question the title of his landlord. This doctrine is, of course, designed to prevent a tenant from defending a suit for rent by challenging his landlord‘s right to put him into possession.” Richardson v. Van Dolah, 429 F.2d 912, 917 (9th Cir. 1970). In other words, “[t]enants are never allowed to deny the title of their landlord, nor set up a title against him, acquired by the tenant during the tenancy, which is hostile in its character to that which he acknowledged in accepting the demise.” Williams v. Morris, 95 U.S. 444, 455 (1877).
Landlord-tenant estoppel does not apply here, however, because the BIA is not Mill Bay‘s landlord: the IAs are. Mill Bay seeks to annul the BIA‘s power to retake the MA-8 property after the expiration of the Master Lease, and thus challenges the BIA‘s trustee relationship to the IAs, not the beneficial or equitable title of the IAs, who are the lessors under the Master Lease.15 In other words, Mill Bay disputes the BIA‘s status as a manager between the IAs and Mill Bay‘s members; Mill Bay does not challenge the IAs’ underlying property rights over MA-8. So Mill Bay‘s claim is not hostile to the ultimate character of the contractual relationship between lessor (here, the IAs) and lessee (here, Mill Bay) in the same way that a tenant‘s direct challenge would be hostile to a landlord‘s title. Moreover, to the extent the BIA seeks to use landlord-tenant estoppel to preclude arguments implicating standing and federal court jurisdiction, that position is incorrect. Cf. Terenkian, 694 F.3d at 1137 (“[J]udicial estoppel is not a substitute for subject matter jurisdiction . . . .“).
We hold that Mill Bay cannot be estopped from arguing that the BIA lacks standing to bring its trespass claim.16 We thus proceed and examine whether the
2. An Abridged History of MA-8
To ground the forthcoming discussion of MA-8‘s trust status, we begin with an abridged history of the MA-8 land.17 Recall that this case concerns an allotment of land to Wapato John, a member of the Moses Band of the Columbia Tribe. The relevant history starts in 1855, when the United States entered into the Yakama Nation Treaty, which required members of the Columbia Tribe (along with three other tribes) to relocate to the Yakama Reservation in what is now eastern Washington state. But the tribes did not relocate; they continued to remain on their ancestral lands. Instead, Chief Moses of the Columbia Tribe negotiated a new treaty for his followers, resulting in the Executive Order of April 19, 1879, and the creation of the Moses Columbia Reservation, just west of the already established Colville Reservation, itself located in north-central Washington. Yet again, and treaty notwithstanding, Chief Moses and most of his followers still did not relocate to the newly established Columbia Reservation but stayed on the ancestral lands of the Columbia Tribe.18
In 1883, Chief Moses, along with chiefs of the Colville Reservation, negotiated a third agreement with the United States: the “Moses Agreement.” The Moses Agreement again stipulated that the members of the Moses Band would relocate to a reservation—this time the Colville Reservation—but the agreement also provided for the issuance of allotments of individual parcels on the Columbia Reservation for those American Indians who wished to stay on that reservation. The remainder of the Columbia Reservation not parceled out as allotments to American Indians would be “restored to the public domain.”19 Congress ratified the Moses Agreement in the Act of July 4, 1884. Thereafter, Chief Moses led most of his people to the Colville Reservation, where their descendants largely remain to this day.
To address those American Indians who did not choose to relocate to the Colville Reservation and instead chose to stay on the Columbia Reservation, Congress passed the Act of March 8, 1906.20 That Act provided that the United States would issue trust “patents” to each American Indian who stayed on the Columbia Reservation. These patents, the equivalent of modern-day property deeds, vested legal title to each land allotment in trust to the United States and beneficial title (i.e., equitable title) in the American Indian holder for a period of ten years, and provided that thereafter the land would pass to the American Indian in fee.21 Wapato John was one such American Indian who elected to stay on the Columbia Reservation and, in 1907 and 1908, he was issued trust patents for the MA-8 allotment, to be held by the United States in trust until 1916.
But the MA-8 trust patents were not to expire and convert to fee simple deeds in
Recognizing the perceived failure of the allotment system given the many American Indians who had lost their allotted land through unwise or fraudulent transactions, Congress in 1934 enacted the Indian Reorganization Act (“IRA“), which indefinitely extended the trust period for all “Indian lands,” which includes MA-8.23
By the time Congress enacted the 1935 Amendment, the Moses Allotments were scheduled to fall out of trust status in March 1936, when the 10-year trust extension enacted by President Coolidge‘s 1926 executive order would expire. But the Colville Reservation, including Chief Moses,24 voted to exclude itself from the IRA. And because the Moses Band was part of the Colville Tribe, and some of the Moses Allotments’ beneficial owners, Wapato John included, were members of the Moses Band, the BIA understood the Colville Reservation‘s vote to exclude the Moses Allotments from the IRA too. Relying on this vote, the government applied the 1935 Amendment to the Moses Allotments also,
President Roosevelt then extended the Moses Allotments’ trust period further by Executive Order 7464 in September 1936, and the Allotments’ trust period was further extended without controversy by additional executive orders and administrative action. Finally, in 1990 Congress indefinitely extended the trust period of all lands held in trust by the United States for American Indians. See
3. The Legal Status of MA-8 and the BIA‘s Standing to Sue on the IA‘s Behalf
The issues here involve interpretation of statutes and executive orders and are therefore reviewed de novo. See United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008).
Of the complex chain of trust period extensions and property transactions described above, Mill Bay and Wapato Heritage challenge three, and argue that legal deficiencies in each of these three steps independently deprive MA-8 of trust status, vest legal title in the IAs in fee simple, and strip the BIA of its powers as trustee and of its standing to seek ejectment in this suit.
i. Challenge One: Whether MA-8‘s Trust Patent Was Issued Contrary to Law
Mill Bay and Wapato Heritage first argue that the Moses Agreement and its implementing legislation, the Act of July 4, 1884, promised patents in fee, not patents in trust.26 So, they argue, the trust patents given to the IAs under the Act of March 8, 1906, were issued contrary to the Moses Agreement. The Supreme Court in 1913 examined this issue as to allotments under the Moses Agreement. See Starr v. Long Jim, 227 U.S. 613, 621–22 (1913). Justice Pitney, on behalf of a unanimous Court, held that the Moses Agreement‘s language did not guarantee title in fee but instead permitted the United States to hold the allotments in trust. See id. at 623-25. So we reject Mill Bay and Wapato Heritage‘s claim that the MA-8 allotments were vested in fee simple rather than in trust by the Moses Agreement and the Act of July 4, 1884.
ii. Challenge Two: Whether President Wilson Had Statutory Authority to Extend MA-8‘s Trust Period with his 1914 Executive Order
Mill Bay and Wapato Heritage‘s second argument is that when President Wilson extended the trust period for MA-8 until 1926 through his 1914 executive order, he did so without statutory authority. The 1914 executive order relied on two statutes to extend the trust period of MA-8: Section 5 of the Act of February 8, 1887 (the “General Allotment Act“), and the Act of June 21, 1906. Mill Bay and Wapato Heritage argue that neither of the two statutes granted the President the authority to extend MA-8‘s trust period. We need not address the General Allotment Act because we conclude that the 1906 Act provided a sufficient basis for President Wilson‘s 1914 executive order.
The Act of June 21, 1906 provides:
Prior to the expiration of the trust period of any Indian allottee to whom a trust or other patent containing restrictions upon alienation has been or shall be issued under any law or treaty the President may in his discretion continue such restrictions on alienation for such period as he may deem best . . . .
Mill Bay and Wapato Heritage‘s position has some initial appeal. From a textual standpoint, a “restriction[] on alienation” and a “trust period” are different concepts. While both can be “continued,” i.e., extended in time, “restrictions on alienation” are substantive limitations on a trust beneficiary‘s property rights but a “trust period” merely delineates when a trust expires. A second textual clue also points in Mill Bay and Wapato Heritage‘s favor. The statute discusses “other patent[s] containing restrictions upon alienation,” which contemplates that a patent can be in a form other than a trust but still contain restrictions on alienation; if so, the restrictions on alienation applicable to those non-trust patents can be extended without the corresponding extension of any trust period. And a long-standing truth of federal Indian law aids Mill Bay and Wapato Heritage too. Historically, American Indian land held in trust generally had three main components: a restriction on alienation, a restriction on encumbrances, and a restriction on being subject to state taxation. See United States v. Mitchell, 445 U.S. 535, 544 (1980) (noting that the 1887 General Allotment Act was meant to “prevent alienation of [American Indian] land and to ensure that allottees would be immune from the state taxation“);
While Mill Bay and Wapato Heritage‘s position is thus not without some force, the points supporting the BIA‘s position are stronger still. Put simply, a trust is itself a restriction on alienation. The trustee, as holder of legal title, is the required grantor of any conveyance of legal title. And trust patents like those given to Wapato John inherently contained restrictions on how the American Indian allottee could sell their property. Indeed, the Supreme Court has recognized that restricting alienation was the very point of trust status. See Mitchell, 445 U.S. at 544 (noting that Congress extended trust status to American Indian allotments “not because it wished the Government to control use of the land and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the land“). As described above, Congress repeatedly extended the trust period of many allotments for the precise purpose of preventing American Indians from selling their land. See Yakima, 502 U.S. at 251 (describing how Congress sought to prevent American
Several textual clues in the 1906 Act support the BIA‘s view. First, the relevant provision of the Act begins: “Prior to the expiration of the trust period of any Indian allottee . . . .” This preface indicates that the provision deals primarily with trust patents (like MA-8). The preface thus suggests that the operative portion of the provision—the portion authorizing an extension in time—applies to the period of trusts. Second, the provision discusses both “trust[s]” and “other patent[s] containing restrictions upon alienation” and authorizes the President to “continue such restrictions on alienation.” As just explained, one “such” restriction on alienation is the trust itself that the provision identifies as its primary subject. And third, the series qualifier canon demands that when we interpret “a trust or other patent containing restrictions upon alienation,” we construe “containing restrictions upon alienation” to modify both “trust” and “other patent,”27 reinforcing that American Indian trusts both contain and inherently are restrictions on alienation of land. These clues all suggest that the statute‘s authorization to extend restrictions on alienation authorizes the President to extend, for trust patents, both the trust period and the restrictions on alienation inherent in trust patents, and for non-trust patents, to extend any restriction on alienation.28
Consistent with the BIA‘s view that American Indian trusts were, themselves, restrictions on alienation, numerous historical sources indicate that at and around the time when Congress passed the Act of June 21, 1906, the terms “trusts” and “restrictions on alienation” were historically conflated, used interchangeably, or treated identically. See, e.g., Felix S. Cohen, Handbook of Federal Indian Law § 16.03 (2012) (“Allotment is a term of art in Indian law, describing either a parcel of land owned by the United States in trust for an Indian (‘trust’ allotment) or owned by an Indian subject to a restriction on alienation in the United States or its officials (‘Restricted’ allotment). . . . In practice, the Department of the Interior has treated the two forms of tenure identically for virtually all purposes.“); West v. Oklahoma Tax Comm‘n, 334 U.S. 717, 726 (1948) (“We fail to see any substantial difference for estate tax purposes between restricted property and trust property.“); United States v. Ramsey, 271 U.S. 467, 470 (1926) (“[A] trust allotment and a restricted allotment, so far as that difference may affect the status of the allotment
The relationship between restrictions on alienation and the other two restrictions that historically comprised trust status—the restrictions on encumbrance and on state taxation—also supports the BIA‘s interpretation. At first glance, the restriction on alienation is just one of the three distinct restrictions that characterize trust status over American Indian land. This provides some support for the argument that “restrictions on alienation” and “trusts” are different, and correspondingly, that the 1906 Act‘s grant of power to extend the former does not authorize extensions of the latter. But in fact, the Supreme Court has explicitly tied the restriction on alienation to the restrictions on encumbrances and on state taxation. In Goudy v. Meath, the Supreme Court determined that removal of the restriction on alienation also removes the restrictions on encumbrance and state taxation—even if the statute did not expressly remove those restrictions. See 203 U.S. 146, 149 (1906); see also County of Yakima, 502 U.S. at 263–64 (“Thus, when [the General Allotment Act] rendered the allotted lands alienable and encumberable, it also rendered them subject to assessment and forced sale for taxes.“). And Yakima itself found that the “alienability of the allotted lands” was “of central significance” in determining whether the lands were taxable, 502 U.S. at 251, a connection this court has already recognized, see Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355, 1357 (9th Cir. 1993) (“In Yakima Nation, the [Supreme] Court found an unmistakably clear intent to tax fee-patented land . . . concluding . . . that the land‘s alienable status determines its taxability.“). If the three trust restrictions—alienation, encumbrance, and state taxation—all begin and end simultaneously, then the power to extend the restriction on alienation also impliedly confers the power to extend the restrictions on encumbrance and taxation. And if the power to extend the restriction on alienation confers the power to extend all three restrictions, then that power most reasonably also confers the power to extend the trust period, which comprises and determines the expiration of those same three restrictions.
The BIA‘s interpretation has one more advantage: It keeps the restriction on alienation in parallel with the restrictions on encumbrances and on state taxation. Indeed, the Supreme Court has recognized that it would be “strange” to decouple the restriction on alienation inherent in a trust patent from the other aspects of the trust, including the restriction preventing state taxation. See Goudy, 203 U.S. at 149. And that decoupling would be doubly strange given that many American Indians who owned fee-simple allotments
With all these reasons in mind, it should come as no surprise that every other interpretation of the Act of June 21, 1906, that we have found—from the Supreme Court all the way down to unpublished agency legal opinions—has stated that the Act granted the President this dual authority to extend trust periods on trust patents and periods of restrictions on alienation on other types of patents. See DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 443 n.29 (1975) (“Congress has several times authorized extensions of trust relations with respect to Indian tribes, e.g., Acts of June 21, 1906, 34 Stat. 326 . . . .“); Cohen, Handbook of Federal Indian Law § 16.03[4][b][ii] (“The President . . . was authorized to extend the trust period [of trusts formed under the General Allotment Act of 1887, and in [the Act of June 21,] 1906, Congress broadened the presidential power to include all allotments.“); Department of Interior, Opinion Regarding the Status of the Bed of the Clearwater River Within the 1863 Treaty Boundaries of the Nez Perce Reservation (Idaho), 2016 WL 10957295, at *23 n.74 (January 15, 2016) (“Section 5 of the [General Allotment] Act directed the Secretary to hold in trust . . . patents to the allotments for a period of twenty-five years before transferring fee title to the allottees [and] also allowed the President discretion to extend this trust period. Following an Attorney General opinion narrowly construing that discretion, 25 Op. Att‘y Gen. 483 (1905), Congress enacted a statute [(the Act of June 21, 1906)] explicitly authorizing broad discretion in extending trust periods.
All told, virtually everything favors the BIA‘s interpretation of the 1906 Act: the structure of the relevant provision of the Act; the fact that trust patents and other patents containing restrictions on alienation were historically treated identically or conflated; and the combined weight of over one hundred years of interpretations that the 1906 Act authorized trust period extensions. We thus conclude that the better interpretation of the 1906 Act is that it did grant the President the authority to extend the period of a trust patent, not just the authority to extend the restriction on alienation imposed on a trust patent.
Even acknowledging, however, that Mill Bay and Wapato Heritage presented a reasonable alternative construction to this ambiguous statutory phrase, deference to the BIA counsels us against choosing that alternative. We assume that the BIA would only be entitled deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and not Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Skidmore, “[t]he fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the
In sum, although the Act of June 21, 1906, lends itself to multiple interpretations, the best interpretation is that it afforded the President the authority to extend the trust period of trust allotments created by trust patents, not just the authority to extend restrictions on alienation for patents other than trust patents. We reach this conclusion based on our own reading of the text of the statute, our understanding of the original meaning given the statute‘s terms, and the consistency and persuasiveness of the interpretation of the statute by the President and the BIA. We hold that the Act of June 21, 1906, gave President Wilson the lawful authority to extend the trust period of the Moses Allotments through his 1914 executive order.
iii. Challenge Three: Whether MA-8‘s Trust Period Was Extended by the Act of June 15, 1935
Finally, Mill Bay and Wapato Heritage argue that MA-8‘s trust period was not properly extended in 1936 after the passage of the 1934 IRA. At issue is the six-month period between March 1936, when the trust extension enacted by President Coolidge‘s executive order expired, and September 1936, when President Roosevelt‘s executive order extended MA-8‘s trust period yet again. Recall that the 1934 IRA indefinitely extended the trust period of all “Indian lands,”
Reviewing these provisions, the district court confirmed the BIA‘s long-standing position: The Colville Reservation voted to opt out of the 1934 IRA; this vote applied to the Moses Allotments; and the 1935 Amendment extended the trust period of the Moses Allotments until December 1936. The 1935 Amendment‘s trust extension thus bridged the six-month gap between March and September of 1936, when neither President Coolidge‘s nor President Roosevelt‘s executive order applied to MA-8. Mill Bay and Wapato Heritage disagree and contend that neither the 1934 IRA nor the 1935 Amendment applied to the allotments. In their view, the Moses Allotments’ trust period expired in March 1936; the further trust period extension enacted by President Roosevelt‘s September 1936 executive order was ineffective as by then the allotments’ trust period had already expired.
We reject Mill Bay and Wapato Heritage‘s view. Assume for a moment, as the district court found and as the BIA has maintained for nearly a century, that the Colville Tribe‘s vote to exclude itself from the 1934 IRA did apply to the Moses Allotments. Under this assumption, the allotments’ trust period was not extended by the 1934 IRA, and the allotments meet the
Mill Bay and Wapato argue that the Moses Allotments fail this second criterion for two reasons. First, they argue that the Moses Allotments are not “reservation” land. In their view, the allotments thus fall outside the scope of the 1935 Amendment, which is limited to “lands” “contain[ed]” on a “reservation.”30 And second, they argue that the Colville Reservation‘s vote to exclude itself from the 1934 IRA cannot be imputed to the Moses Allotments.
The district court drew its conclusion that the Moses Allotments’ land was (and is) “reservation” land from several sources. The district court pointed to: (1) multiple BIA annual reports from near the time the 1935 Amendment was passed which listed the “Columbia (Moses agreement)” as a “reservation belonging to the Moses Band,” (2) historical descriptions from the Colville Agency that listed the Moses Tribe as living on the Moses Allotments and the Colville Reservation, and (3) an 1891 map that labeled the Moses Allotments, not as public domain, but as “Indian” land—the same as the Colville Reservation.
The district court also noted that these same sources ruled out alternative understandings of the allotments’ status. If the allotments were not reservation land, they must have been either “allotments or homesteads upon the public domain outside the geographic boundaries of any Indian reservation,”
expressly excluded from the 1934 IRA. But the BIA reports never listed the Moses Allotments as public domain or homestead allotments, and Mill Bay and Wapato Heritage point to no historical evidence supporting their understanding.31
Further, and as the BIA notes, the Moses Allotments’ unique history is a poor fit for the IRA‘s description of non-reservation land, again either “allotments or homesteads upon the public domain outside of the geographic boundaries of any Indian reservation.”
Mill Bay and Wapato Heritage disagree. In their view, because the Moses Allotments were held not in trust on behalf of a tribe but held for individual American Indians, they are not reservation land. They base their argument in the Supreme Court‘s statement that “tribal ownership was a critical component of reservation status.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 346 (1998). But properly read in context, that passage does not support their argument. Both Yankton Sioux and the case that Yankton Sioux cited for its “tribal ownership” language drew a distinction between ownership by American Indians and ownership by non-Indians, not between ownership by tribes and ownership by individual American Indians. See id. (describing the Yankton Sioux‘s decision to sell some of its territory to “non-Indian homesteaders“); Solem v. Bartlett, 465 U.S. 463, 468 (1984) (“Indian lands were judicially defined to include only those lands in which the Indians held some form of property interest: trust lands, individual allotments, and, to a more limited degree, opened lands that had not yet been claimed by non-Indians.“) (emphasis added). Yankton Sioux thus lends no support to Mill Bay and Wapato Heritage‘s argument that allotments for individual American Indians are non-reservation land under the IRA.
Mill Bay and Wapato Heritage also argue that the contemporary reports cited by the district court are not entitled to evidentiary weight because they do not analyze the question whether MA-8 is reservation land, but merely assume it. We disagree. Contemporary agency interpretations have “great weight” when it comes to determining the meaning of statutes at the time they were enacted. Cruz v. Zapata Ocean Res., Inc., 695 F.2d 428, 431 (9th Cir. 1982). Here, the BIA‘s evidence shows that the agency consistently applied the provisions of the 1935 Amendment to the Moses Allotments, referred to them as reservation allotments, and did not treat the Moses Allotments as homestead or public domain allotments. This evidence has significant probative value and supports the district court‘s conclusion below and our conclusion on appeal.
Last, Mill Bay and Wapato Heritage argue that the 1935 Amendment does not apply to the Moses Allotments because the 1935 Amendment covers only reservations that rejected the 1934 IRA and the Secretary of the Interior did not call a vote for the Columbia Reservation or the Moses Allotments. But again, the Colville Reservation rejected the 1934 IRA and this vote does apply to the Moses Allotments. The Moses Band of American Indians—the tribe of which the original Moses Allotment allottees were members—could and did participate in that vote, and the Colville Agency, which held the vote, also administered the Columbia Reservation that contains the Moses Allotments.32
Based on the well-reasoned conclusion of the district court and the weight of the evidence in the record, including contemporary interpretations and consistent treatment for nearly a century, we reject Mill Bay and Wapato Heritage‘s argument that the Moses Allotments were non-reservation land outside of the scope of the 1934 IRA and its 1935 Amendment. We thus affirm the district court‘s conclusion that the 1935 Amendment extended the Moses Allotments’ trust status.
***
To summarize, we hold that of the three transactions and trust extensions in MA-8‘s history that Mill Bay and Wapato Heritage challenge, none were legally deficient. The MA-8 land remains held in trust by the United States, and the BIA, as holder of legal title to the land, had and has standing to bring its claim for trespass and ejectment against Mill Bay.
B. Res Judicata
Mill Bay‘s second defense is that the BIA should be precluded from seeking ejectment due to the BIA‘s involvement in the 2004 Grondal state litigation between Mill Bay, Wapato Heritage, and Evans’ estate33 that resulted in the 2004 Settlement Agreement.34 Recall that this agreement renegotiated certain requirements and dues under the Regular and Expanded Membership Agreements (between Mill Bay and Wapato Heritage), and because the Grondal state litigation concerned Evans’ estate, the settlement was entered pursuant to Washington‘s Trust Estate Dispute Resolution Act (“TEDRA“),
Mill Bay believes that the settlement‘s guarantees—for instance, Mill Bay‘s “right to use the property ... through December 31, 2034“—preclude the
“Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action. For res judicata to apply there must be: (1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties.” W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997) (cleaned up). Mill Bay fails to show that this litigation and the 2004 Settlement Agreement involved the same claims or the same parties (or involved parties in privity with one another).
The BIA was not itself a party to the Grondal state litigation or the 2004 Settlement Agreement. Mill Bay concedes as much: the BIA was asked to intervene in the suit but never did; the BIA attended mediation between the parties but did not participate; the BIA received notice of the settlement but did not object; and no such notice was sent to the IAs.
Nor was the BIA in privity with Wapato Heritage, concededly one of the parties to the Grondal state litigation. For two parties to have privity, they must be “so identified in interest ... that [they] represent[] precisely the same right” on the relevant issues. In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (quoting Sw. Airlines Co. v. Texas Int‘l Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977)). But after Evans’ death, Wapato Heritage obtained Evans‘s interest under the Master Lease as the lessee of the MA-8 land. And Wapato Heritage‘s interest as the lessee under the Master Lease is quite different from the BIA‘s interest as trustee for the lessors under the same lease. So Wapato Heritage and the BIA did not “represent[] precisely the same right.” In re Schimmels, 127 F.3d at 881.
To show identity another way, Mill Bay argues that the BIA was an interested party under TEDRA and was required to object to the terms of the 2004 Settlement Agreement, which Mill Bay argues revised the Master Lease. TEDRA acts to bind “all persons interested in the estate or trust” to a settlement involving that estate.
all persons beneficially interested in the estate or trust, persons holding powers over the trust or estate assets, the attorney general in the case of any charitable trust where the attorney general would be a necessary party to judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust.
Mill Bay does not argue that the BIA was beneficially interested in Evans’ estate or was a personal representative of Evans. Mill Bay argues only that the BIA held power over an estate asset—Evans’ interest as a lessee of the MA-8 land under the Master Lease—because the BIA held authority under the Master Lease to withhold approval of any assignment of Evans’ lease interest. Mill Bay provides no Washington caselaw defining “persons holding powers over estate assets” to include those persons who possess certain contingent rights pursuant to a contractual lease agreement. The available caselaw suggests instead that “powers” refers to more direct control over assets. See Paunescu v. Eckert, 193 Wash. App. 1050 at *3 (2016) (unpublished) (likening
Moreover, Mill Bay points to no authority showing the United States waived its sovereign immunity. Thus, Mill Bay and the IAs could not have employed TEDRA to compel the United States to participate in the state estate proceeding, which forecloses the argument that TEDRA could somehow bind the BIA to the 2004 Settlement Agreement. See Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990) (“The doctrine of sovereign immunity precludes suit against the United States without the consent of Congress . . . .“).
Even setting aside that different parties were involved in the Grondal state litigation and in this lawsuit, the two cases also involved different claims, i.e. lacked identity of issue. “Claim preclusion prevents parties from relitigating the same claim,” and suits “involve the same claim ... if the later suit arises from the same transaction” as does the first suit. Brownback v. King, 141 S. Ct. 740, 747 n.3 (2021) (cleaned up). Here, the Grondal state litigation and this appeal do not involve the same transaction. The Grondal state litigation pertained to the membership agreements between Evans/Wapato and Mill Bay but this suit pertains to the Master Lease between the IAs/BIA and Evans/Wapato. Nothing in the Grondal state litigation ever claimed to address or resolve whether the Master Lease was renewed. Further, claim preclusion does not apply here because Wapato still had time to renew the Master Lease even after the 2004 Settlement Agreement, and the Master Lease‘s expiry is the entire premise of this lawsuit. See Media Rts. Techs., Inc., 922 F.3d at 1021 (“[C]laim preclusion does not apply to claims that accrue after the filing of the operative complaint in the first suit.” (quotation marks and citation omitted)).
For all these reasons, we reject Mill Bay‘s argument that the IAs and the BIA are precluded under res judicata from ejecting Mill Bay.
C. Assignment of the Expanded Membership Agreements under Master Lease Paragraph 8
Mill Bay‘s third defense relates to a provision of the expired Master Lease. Although prior litigation resolved that Wapato Heritage failed to renew the Master Lease, Paragraph 8 of the Master Lease requires the Lessor-IAs to honor sublease or subtenant agreements even after the Master Lease is terminated “by cancellation or otherwise.” Paragraph 8 (entitled “Status of Subleases on Conclusion of Lease“) states:
Termination of this Lease, by cancellation or otherwise, shall not serve to cancel subleases or subtenancies, but shall operate as an assignment to Lessor of any and all such subleases or subtenancies and shall continue to honor those obligations of Lessee under the terms of any sublease agreement that do not require any new or additional performance not already provided or previously performed by Lessee.
The Expanded Membership Agreements, signed by individual Mill Bay purchasers and Chief Evans, Inc. (predecessor-in-interest to Wapato Heritage), stated
The district court rejected this argument in its 2010 order. The court concluded that Paragraph 8 did not apply to the Mill Bay members because (1) under both the Expanded Membership Agreements and the 2004 Settlement Agreement, the Mill Bay members were mere licensees, not sublessees or subtenants; and (2) the Master Lease was terminated by normal expiration, not unexpectedly terminated. Federal law applies to the interpretation of the Master Lease. Wapato Heritage I, 637 F.3d at 1039 (“We also apply federal law because the BIA‘s role and obligations under the contract are in contention.“). Under federal law, “[t]he interpretation and meaning of contract provisions are questions of law reviewed de novo.” Flores v. Am. Seafoods Co., 335 F.3d 904, 910 (9th Cir. 2003). We hold that Paragraph 8 of the Master Lease does not apply at all because the Master Lease was not terminated “by cancellation or otherwise.”36
The Master Lease was not “cancelled.” The Master Lease expired after Wapato Heritage failed properly to exercise the renewal option. Mill Bay argues “or otherwise” expands the type of termination contemplated beyond cancellation and that this phrase should be read instead to mean termination for any reason whatsoever, including normal expiration. That interpretation contravenes the canon of ejusdem generis, which “refers to the inference that a general term in a list should be understood as a reference to subjects akin to those with specific enumeration.” In re Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir. 2018) (internal quotation marks and citation omitted). So “cancellation” helps define the phrase “or otherwise.” Black‘s Law Dictionary defines cancellation to mean: “An annulment or termination of a promise or an obligation; specif., the purposeful ending of a contract because the other party has breached one or more of its terms.” Cancellation, Black‘s Law Dictionary (11th ed. 2019). “Cancellation or otherwise” thus most naturally refers to methods of a lease‘s termination other than the natural course of time, such as termination due to some action by a party that ends the lease before the contract term concludes. In contrast, termination by normal expiration contemplates that no party breached the terms and the Master Lease ran its full course and simply expired. So Paragraph 8 applies only if the lease was terminated by a party‘s breach and another party‘s action in response to that breach, not when, as here, the lease expired on its intended expiration date.
Other provisions of the Master Lease only confirm our interpretation of Paragraph 8.37 Mill Bay‘s construction of Paragraph 8 would extend Wapato Heritage‘s purported sublease to Mill Bay to 50 years, beyond the life of the actual lease
Indeed, if the parties intended Paragraph 8 to apply when the lease terminated for any reason, including normal expiration, it is unlikely they would have included language that is naturally read as being limited to premature termination. Paragraph 30 (“Delivery of Premises“) of the Master Lease, just a few pages away, proves that the parties could author expansive language when they desired. Paragraph 30 requires the lessee to deliver possession “at the termination of this lease, by normal expiration or otherwise ....” Paragraph 30‘s scope is broad: “normal expiration or otherwise” covers just about everything. But in comparison, and as just described above, the natural reading of Paragraph 8 is more restrictive. To give effect to the precise text in each provision, we must more probably give “termination ... by cancellation or otherwise” a different, more restrictive interpretation than “termination by normal expiration or otherwise.” See United States ex rel. Welch v. My Left Foot Children‘s Therapy, LLC, 871 F.3d 791, 797 (9th Cir. 2017) (“[I]f possible, every word and every provision is to be given effect . . . .“).
For all of these reasons, we reject Mill Bay‘s interpretation of Paragraph 8 of the Master Lease: Paragraph 8 does not apply when the Lease expires by the passage of time, as happened here.
D. Equitable Estoppel
Mill Bay‘s fourth and final defense against ejectment pertains to the BIA‘s alleged prior representations that Mill Bay would be able to remain on MA-8 through 2034.39 Mill Bay argues that, based on those statements, the court should apply equitable estoppel to prevent the BIA from seeking Mill Bay‘s ejectment. Below, the district court concluded the equitable estoppel defense is not available under United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003), in which we held that the United States is not subject to equitable estoppel when it acts in its sovereign capacity as trustee for Indian land. A district court‘s decision to apply or reject an estoppel defense is reviewed for abuse of discretion but the district court‘s legal conclusions
In City of Tacoma, the BIA brought a suit in the 1990s to invalidate Tacoma‘s 1921 condemnation of land allotted to American Indians in trust patents, land which Tacoma used to build a hydroelectric power project. 332 F.3d at 576–78. At the time of the condemnation, the United States had acceded to the process as trustee, writing in a 1921 letter that it viewed the proceedings as “in all respects legal,” and accepted the compensation for the taking of the land on behalf of the American Indian allottees. Id. However, in 1939, the Supreme Court interpreted a federal statute (which was on the books in 1921) to require that the United States be named as an indispensable party for all condemnation proceedings concerning trust allotments, which Tacoma had failed to do in its condemnation suit. Id. at 579–80. Some fifty years later, the BIA, at the behest of the local tribe, filed a claim against Tacoma to invalidate the 1921 condemnation based on that procedural infirmity. Tacoma, in defending itself against invalidation, argued that the BIA was foreclosed from seeking invalidation under the principles of equitable estoppel. Because the government approved the legitimacy of the condemnation proceedings, as evidenced in the 1921 letter, Tacoma argued the court should not permit the BIA to reverse itself decades later. Id. at 581. We denied Tacoma‘s argument for equitable estoppel, holding that “when the government acts as trustee for an Indian tribe, it is not at all subject to [an equitable estoppel] defense. Id. at 581–82.
Here, Mill Bay similarly seeks to use equitable estoppel against the BIA to deny the BIA‘s claim to possession of land the BIA holds in trust to American Indian allottees. However, Mill Bay argues City of Tacoma does not apply. Mill Bay claims that the BIA is not acting as trustee for American Indian land but rather is acting to further its own sovereign and proprietary interests. Mill Bay further claims the BIA has a conflict of interest and is violating its duty as trustee by favoring the Tribe over the IAs.40
Mill Bay relies primarily on United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011), where the Supreme Court described the holding of one of its own prior cases, Heckman v. United States, 224 U.S. 413 (1912). In Heckman, the government sued as trustee on behalf of American Indian allottees (who impermissibly sold their allotments) to nullify those same conveyances. See id. at 417. The Court in Jicarilla said that in Heckman, the government “was formally acting as a trustee [but] was in fact asserting its own sovereign interest in the disposition of Indian lands.” Jicarilla, 564 U.S. at 176. Mill Bay suggests that Jicarilla stands for the proposition that when the BIA acts as a trustee on behalf of American Indians but contrary to their interests, it furthers its own sovereign interests and is thus not immune to equitable estoppel.
We reject Mill Bay‘s argument. To begin, Mill Bay cannot claim that the BIA acted outside of the scope of the trustee relationship contemplated in City of Tacoma. The BIA‘s trespass suit is brought pursuant to
Nor did the BIA act outside the trustee relationship when it helped draft and execute the Master Lease. To administer, preserve, and maintain the trust property is a quintessential trustee function. See United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003) (“[E]lementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch. ‘One of the fundamental common-law duties of a trustee is to preserve and maintain trust assets . . . .‘” (quoting Cent. States, Se. & Sw. Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 572 (1985))).
And even if we take as true Mill Bay‘s accusation that, whether or not the BIA was acting within its powers as trustee, the agency had a conflict of interest, Mill Bay still does not explain how this conflict would convert the BIA‘s interest as a trustee in ejecting Mill Bay from MA-8 into a proprietary interest of the United States. None of the dues or rent from the property go to the BIA, which retains title on behalf of the IAs in trust in any event. See Wapato Heritage I, 637 F.3d at 1039 (“Neither did the BIA become a party to the Lease by acting in its approval capacity or in its limited role as proxy for the 64% of the Landlords who had given their express authority to sign on their behalf, or with respect to the remaining 36% of the Landowners, for whom it signed as authorized by
Alternatively, Mill Bay argues that we should cabin City of Tacoma‘s holding that equitable estoppel is never applicable against the United States when acting as trustee for American Indian allottees. We see no reason to do so. The rule—in its broadly stated form—is well-grounded and dates back decades. See United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 334 (9th Cir. 1956) (“No defense of laches or estoppel is available to the defendants here for the Government as trustee for the Indian Tribe, is not subject to those defenses.“); Cato v. United States, 70 F.3d 1103, 1108 (9th Cir. 1995) (“[T]he well-established rule [is] that a suit by the United States as trustee on behalf of an Indian tribe is not subject to state delay-based defenses.” (citing Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1083–84 (2d Cir. 1982))).
Last, Mill Bay argues the United States should be granted immunity from equitable estoppel only when full alienation of the allottees’ land is at issue. But the rule as stated in City of Tacoma is broad,
We conclude that City of Tacoma is not distinguishable and that Mill Bay is barred from asserting its defense of equitable estoppel against the BIA.41
IV. CONCLUSION
For the reasons stated above, we AFFIRM the district court‘s grant of the BIA‘s motion for summary judgment on its counterclaim for trespass.
Notes
County of Yakima, 502 U.S. at 254 (internal citations omitted).Because allotted land could be sold soon after it was received, many of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud. Even if sales were for fair value, Indian allottees divested of their land were deprived of an opportunity to acquire agricultural and other self-sustaining economic skills, thus compromising Congress’ purpose of assimilation.