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Case Study in Reservation Diminishment Disputes Confederated Tribes and Bands of the Yakama Nation V

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Case Study in Reservation Diminishment Disputes Confederated Tribes and Bands of the Yakama Nation V Case Study in Reservation Diminishment Disputes Confederated Tribes and Bands of the Yakama Nation v. Klickitat County et al. Presented by Ethan Jones, Lead Attorney Yakama Nation Office of Legal Counsel Federal Bar Association’s 2019 DC Indian Law Conference October 25, 2019 I. Overview On August 25, 2019, the United States District Court for the Eastern District of Washington issued a decision in Confederated Tribes and Bands of the Yakama Nation v. Klickitat County et al., 1:17-cv-03192, affirming the reservation status of roughly 121,000 acres within the Yakama Reservation’s southwestern boundary. The dispute over this area, known as ‘Tract D,’ stretches back more than 150 years to the signing of the Treaty with the Yakamas of June 9, 1855, wherein the Yakama Nation reserved the 1.4 million acre Yakama Reservation for its exclusive use and benefit. As part of the Yakama Reservation, Tract D is Indian Country and the State cannot exercise criminal jurisdiction over Yakama Members within Tract D unless otherwise authorized to do so by Congress. 18 U.S.C. § 1151. In late 2017, a jurisdictional dispute arose between the Yakama Nation and Klickitat County concerning actions by an enrolled Yakama Member arising within Tract D. Klickitat County asserted criminal jurisdiction, alleging that Tract D was not within the Yakama Reservation. In response, the Yakama Nation filed a federal civil lawsuit against Klickitat County under the Treaty of 1855 asserting, in relevant part, that Klickitat County did not have jurisdiction because of Tract D’s Indian Country-status. A three-day trial was held in July 2019, during which Klickitat County argued that (1) Tract D was not originally included in the Yakama Reservation by Treaty, and (2) even if it was, Congress diminished the Yakama Reservation in 1904. On August 28, 2018 the District Court issued an Order affirming Tract D’s reservation status. Klickitat County has appealed that decision. These materials are intended to provide an example of an ongoing and active reservation boundary dispute in the Pacific Northwest. As this matter is pending on appeal, this is only intended to provide a general factual background and a few of the applicable legal frameworks. These materials are not intended in any way to waive, alter, or otherwise diminish the rights, privileges, remedies, or services guaranteed to the Yakama Nation in the Treaty of 1855, or limit or change any of the Yakama Nation’s claims and defenses related thereto. II. Yakama Reservation’s Southwestern Boundary The question presented to the District Court was whether a roughly 121,000 acre portion of land encompassing Camas Prairie in the southwest corner of the Yakama Reservation (i.e. Tract D) remains in the Yakama Reservation today. Article II of the Treaty of 1855 defines the Yakama Reservation’s boundaries as follows: Commencing on the Yakama River, at the mouth of the Attah- nam River; thence westerly along Attah-nam River to the forks; thence along the southern tributary to the Cascade Mountains; thence southerly along the main ridge of said mountains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickatat and Pisco Rivers; thence down said spur to the divide between the waters of said rivers; thence along said divide to the divide separating the waters of the Satass River from those flowing into the Columbia River; thence along said divide to the main Yakama, eight miles below the mouth of the Satass River; and thence up the Yakama River to the place of beginning. 12 Stat. 951, 952 (emphasis added). The bolded language describes the western and southwestern boundaries of the Yakama Reservation to include land south of Mount Adams—where Camas Prairie is located—within the Yakama Reservation’s boundary. A Treaty Map present at the Walla Walla Treaty Council depicts an area of land south of Mount Adams as being included within the Reservation. During the Treaty Council, Territorial Governor Isaac Stevens described the boundaries in this area of the Yakama Reservation as “down the main chain of the Cascade Mountains south of Mount Adams, thence along the highlands separating the Pisco and the Satass River from the rivers flowing into the Columbia . .” which similarly includes land south of Mount Adams within the Yakama Reservation’s exterior boundaries. Thus, the Treaty, Treaty Map, and Treaty Minutes support Camas Prairie’s inclusion within the Yakama Reservation. The Treaty of 1855 and Treaty Map were sent back to Washington D.C., and in 1859 the Senate ratified and the President proclaimed the Treaty of 1855. However, the Treaty Map was lost in the government’s files where it remained until roughly 1930. Between 1855 and 1930, the United States repeatedly and erroneously surveyed the Yakama Reservation’s boundaries, thereby misidentifying thousands of acres as outside the Yakama Reservation, including Camas Prairie. One such erroneous survey was referenced by Congress in the Act of December 21, 1904, 33 Stat. 595, for purposes of identifying the area within which the Secretary of the Interior could sell surplus lands. However, in 1930 the Treaty Map was located and the United States dispatched a surveyor to survey the Yakama Reservation’s boundaries in light of the Treaty Map. The Surveyor completed his survey in 1932, and identified Camas Prairie as within the Yakama Reservation’s boundaries identified in the Treaty of 1855. While the Treaty Map was missing, most of the lands within the Camas Prairie area were patented to non-Indians or included in the Gifford Pinchot National Forest. In 1949, the Yakama Nation successfully sued the United States before the Indian Claims Commission seeking just compensation for the taking of lands within the Camas Prairie area of the Yakama Reservation—referred to in the Indian Claims Commission proceedings as “Tract D.” The Tract D lands that passed out of federal ownership were valued and just compensation awarded, roughly 2,000 acres that had not been patented was returned to Yakama ownership, and ownership of more than 20,000 acres within the Gifford Pinchot National Forest was returned to the Yakama Nation by Executive Order 11670. The United States has consistently identified Tract D as within the Yakama Reservation’s boundaries. Department of the Interior Solicitors have issued opinions to that effect. The General Land Office has surveyed Tract D and marked it with brass caps identifying it as the Yakama Reservation’s boundary. The Bureau of Indian Affairs has posted reservation boundary signs around Tract D, and maintains staff and infrastructure within Tract D to carry out its various obligations to the Yakama Nation. The EPA has repeatedly issued letters supporting its own regulatory authority within Tract D that confirm its status as Reservation land. III. Legal Frameworks Applicable to Scope of Reserved Lands, and Reservation Diminishment The aforementioned factual history has created two legal disputes between the Yakama Nation and Defendants, each of which dictates application of a distinct legal framework. First, the scope of the Yakama Reservation’s boundaries must be understood in light of the federal Indian law canons of Treaty construction. Second, any argument that those Reservation boundaries were subsequently diminished requires application of the federal Indian law canon of statutory construction and the Supreme Court’s reservation diminishment framework. a. Canons of Treaty Interpretation Applied to Scope of Treaty-Reserved Lands Given that Article II of the Treaty of 1855 defines the Yakama Reservation’s boundaries, the relevant legal framework for interpreting the scope of those boundaries is the federal Indian law canon of Treaty construction. When interpreting Indian treaties under this canon, courts construe the terms “in the sense in which they would naturally be understood by the Indians.” Jones v. Meehan, 175 U.S. 1, 11 (1899). Any ambiguities should be “resolved from the standpoint of the Indians.” Winters v. United States, 207 U.S. 564, 576 (1908). These federal Indian law canons of Treaty interpretation “are rooted in the unique trust relationship between the United States and the Indians.” County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985). They ensure that Native Nations receive the benefit of their bargain in these inherently coercive transactions. See, e.g., United States v. Winans, 198 U.S. 371, 380-81 (1905). The Treaty canons also account for the significant linguistic and cultural barriers to tribal understanding of the Treaty language drafted by federal officials. Jones, 175 U.S. at 10-11. Treaties “must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.” Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676 (1979). Thus, courts must look “beyond the written words to the larger context that frames the Treaty, including ‘the history of the treaty, the negotiations, and the practical construction adopted by the parties.’” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999) (internal citations omitted). b. Canon of Statutory Interpretation and Solem Factors Applied to Reservation Diminishment Whether the Yakama Reservation was subsequently diminished by Congress invokes application of the federal Indian law canon of statutory interpretation, and the Supreme Court’s reservation diminishment framework. The federal Indian law canon of statutory construction requires that statutes be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 729 (9th Cir. 2003). This statutory canon is consistent with reservation diminishment case law, which requires that Congressional intent to diminish a reservation must be clearly expressed, with any ambiguities resolved in the Native Nation’s favor.
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