## Facts

- The Makah Indian Tribe holds treaty-protected ocean fishing rights and fishes in historic grounds extending offshore from its reservation on the Olympic Peninsula.
- Federal ocean salmon fishing beyond state waters is regulated under the Fishery Conservation and Management Act of 1976 (FCMA) through annual regulations issued by the Secretary of Commerce, based on recommendations from the Pacific Fishery Management Council.
- For the 1987 season, the Secretary promulgated ocean salmon regulations that set harvest quotas affecting the Makah, other treaty tribes, and non-tribal fishers.
- The Makah sued federal officials, alleging (1) the 1987 quotas unlawfully limited its treaty share and seeking increased quota and equitable adjustment for 1987 losses, and (2) the quota-setting process violated the FCMA and the Administrative Procedure Act (APA), including by relying on commitments made outside the formal administrative record.
- Twenty-three other treaty tribes with overlapping salmon fishing rights were not joined as parties; they could not be compelled to join due to tribal sovereign immunity and were involved in related fishery allocation litigation frameworks.
- The district court dismissed the entire action under Federal Rule of Civil Procedure 19 for failure to join necessary and indispensable parties.
- The Makah appealed the Rule 19 dismissal.

## Issues

1. Whether absent treaty tribes are necessary and indispensable under Rule 19 for claims seeking to increase the Makah’s 1987 quota and otherwise reallocate a finite salmon harvest among tribes.
2. Whether absent treaty tribes are necessary and indispensable under Rule 19 for severable procedural challenges under the FCMA and APA seeking prospective relief aimed at the lawfulness of the federal decision-making process.

## Decision

- The Ninth Circuit affirmed the dismissal of the Makah’s substantive quota reallocation and 1987 adjustment claims.
- The court held the absent treaty tribes were necessary and indispensable to claims that would alter inter-tribal allocations of a limited fishery resource, and joinder was infeasible due to sovereign immunity.
- The Ninth Circuit reversed the dismissal of the Makah’s procedural FCMA/APA claims.
- The court held the procedural claims were severable and could proceed without the absent tribes because the requested relief targeted compliance with statutory procedures and did not necessarily require redistribution of treaty allocations.
- The case was remanded for further proceedings on the procedural claims.

## Legal Principles

- Under Rule 19(a), a party is necessary when the court cannot accord complete relief among existing parties or when the absentee claims a legally protected interest that may be impaired by the litigation.
- Under Rule 19(b), when a necessary party cannot be joined, dismissal is required if equity and good conscience show the action cannot proceed without prejudicing absent interests or exposing existing parties to inconsistent obligations.
- Tribes holding treaty-based rights in a finite, shared resource are typically indispensable to claims that would redistribute the resource among tribes, particularly when sovereign immunity makes joinder infeasible.
- Procedural challenges to agency action under the FCMA and APA may proceed without absent right-holders where the relief sought is prospective, directed to the legality of the administrative process, and does not directly require reallocation of substantive entitlements.
- A court may allow severable claims to proceed even if other claims in the same lawsuit must be dismissed under Rule 19.

## Conclusion

The Ninth Circuit required dismissal of claims seeking to reallocate salmon harvest shares among treaty tribes because absent tribes with sovereign immunity had interests that would be directly affected, but it permitted the Makah to pursue severable FCMA/APA challenges aimed at improving the legality of the federal quota-setting process going forward.


Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990)