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2019 Op. Or. Att'y Gen. 1 (2019)

handle is hein.sag/sagor0086 and id is 1 raw text is: ELLEN F. ROSENBLUM FREDERICK M. BOSS ATTORNEY GENERAL 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. 1

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