Cohn v. State of Washington et al

Filing 14

ORDER Granting In Part State Defts' 8 Motion to Dismiss by Judge Robert S. Lasnik; The Court GRANTS pltf 30 days from the date of this Order to secure counsel. (TF) cc: Chief Reuel Cohn

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CHIEF REUEL COHN,
Plaintiff,

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v.

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STATE OF WASHINGTON, et al.,

Case No. C11-1649RSL
ORDER GRANTING IN PART STATE
DEFENDANTS’ MOTION TO DISMISS

Defendants.

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This matter comes before the Court on the “State of Washington’s Motion to Dismiss”

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(Dkt. # 8). The State of Washington, Governor Christine Gregoire, and the Washington State

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Department of Fish and Wildlife (the “State Defendants”) filed the motion in response to

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Plaintiff’s1 demand that Whidbey Island, Washington, be returned to reservation status and

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returned to him and his descendants as he alleges the Point Elliot Treaty of 1855 requires.

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State Defendants argue predominately that the Eleventh Amendment bars Plaintiff from

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pursuing his claim against them in federal court. However, they also point out that Plaintiff is

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proceeding in propia persona – without legal counsel. He nonetheless attempts to represent both

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his own individual interests, Complaint (Dkt. # 4) at 2 (“return of Whidbey Island to Him and

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his descendants”), and those of his “Tribe,”2 id. (“returned to reservation status”). The law

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To be clear, the Court simply adopts Plaintiff’s description of himself as “Chief.”

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For the sake of this Order, the Court simply assumes Plaintiff’s “Tribe” is valid.

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ORDER GRANTING IN PART STATE DEFENDANTS’ MOTION TO DISMISS - 1

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precludes him from doing either.
Treaties are contracts between sovereigns and “do not give rise to individual actions.”

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See Skokomish Indian Tribe v. United States, 410 F.3d 506, 515–16 (9th Cir. 2005).

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Accordingly, under the facts alleged, Plaintiff lacks standing to seek enforcement of the Treaty

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as an individual. See id.; Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51, 55 n.1 (2d Cir.

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1994) (“Individual Indians do not fall within the zone of interests to be protected by the

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Nonintercourse Act.”). While the Tribe itself could seek to vindicate any rights allegedly

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guaranteed it under the Treaty in question, Plaintiff cannot himself represent the Tribe. Johns v.

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Cnty. of San Diego, 114 F.3d 874, 879 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to

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appear as an attorney for others than himself.’” (quoting C.E. Pope Equity Trust v. United States,

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818 F.2d 696, 697 (9th Cir. 1987))); see Local General Rule 2(g)(4)(B). He must secure counsel

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or convince the United States to pursue the Tribe’s interests.

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Because Plaintiff cannot prosecute his claim without the assistance of counsel, the Court

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does not reach the merits of Defendants’ motion. Instead, the Court GRANTS Plaintiff 30 days

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from the date of this Order to secure counsel. If no notice of appearance is filed within that 30-

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day period, the Court will dismiss Plaintiff’s complaint without prejudice for failure to

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prosecute. Johns, 114 F.3d at 879 (affirming the trial court’s dismissal for failure to prosecute,

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but concluding that it should have dismissed without prejudice). If an appearance is filed, the

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Court will re-note Defendants’ motion for the following fourth Friday.

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DATED this 21st day of December, 2011.

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A

Robert S. Lasnik
United States District Judge

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ORDER GRANTING IN PART STATE DEFENDANTS’ MOTION TO DISMISS - 2