Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15 1 Hon. Thomas O. Rice, Judge J.J. Sandlin WSBA #7392 2 SANDLIN LAW FIRM, P.S. 3 P.O. Box 228 Zillah, WA 98953 4 (509) 829-3111/594-8702/303-0901 Fax (888) 875-7712 5 Email: [email protected] 6 Attorney appearing for Defendant Shane Olney 7 8 IN THE UNITED STATES DISTRICT COURT IN AND FOR THE EASTERN DISTRICT OF WASHINGTON 9 ) 10 UNITED STATES OF AMERICA, ) 11 ) NO. 13-cr-2094-TOR-19 PLAINTIFF; ) 12 ) DEFENDANT SHANE OLNEY’S MOTION VS. ) TO DISMISS THIS ACTION, FOR WANT 13 ) OF JURISDICTION, OR 14 SHANE SCOTT OLNEY, ) ALTERNATIVELY, TO DECLINE ) JURISDICTION IN FAVOR OF YAKAMA 15 DEFENDANT. ) TRIBAL COURT ) 16 ) WITH ATTACHED MEMORANDUM 17 ) SUPPORTING MOTION _____________________________________ ) 18 19 COMES NOW Attorney J.J. Sandlin of Sandlin Law Firm, P.S., P.O. Box 228, Zillah, 20 WA 98953 [tel. (509) 829-3111/594-8702 and fax (888) 875-7712 and email 21 22 [email protected]; [email protected]] and respectfully moves this Honorable 23 Court for an ORDER OF DISMISSAL, or, alternatively, for an ORDER DECLINING 24 JURISDICTION IN FAVOR OF YAKAMA TRIBAL COURT, on behalf of the defendant, 25 Shane Olney, who is an enrolled member of the Confederated Bands and Tribes of the Yakama 26 SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 1 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected] Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15 1 Nation (“Yakama Nation”), a sovereign nation, as recognized by the United States of America in 2 its Treaty of 1855 with the Yakama Nation. 3 Respectfully submitted this 30 th day of July, 2015. 4 SANDLIN LAW FIRM, P.S. 5 6 s/ J.J. Sandlin . J.J. Sandlin, WSBA #7392 for Defendant Olney 7 P.O. Box 228 8 Zillah, WA 98953 (509) 829-3111 9 [email protected] 10 MEMORANDUM SUPPORTING MOTION TO DISMISS 11 I. INTRODUCTION 12 Defendant Shane Olney seeks dismissal of these federal felony charges against him, citing 13 14 lack of personal and subject matter jurisdicton under 18 U.S.C. §1852 ( the “General Crimes 15 Act” ); 18 U.S.C. §1153 et. seq. ( the “Major Crimes Act of 1885” ); 25 U.S.C. §1301 et. seq. ( the 16 “Indian Civil Rights Act” ); the Constitution of the United States, Article I, §8, cl. 3 ( the “Indian 17 Commerce Clause” ), Article VI, cl. 2 ( the “Supremacy Clause” ); 34 Fed.Reg. 14288; RCW 18 37.12.010-.060 (U.S. has accepted retrocession of state jurisdiction when enrolled Yakama is on 19 20 Yakama reservation ); Accord, State v. Shale, 2015 WL 1299359 (Wash., March 19, 2015). 21 Defendant Shane Olney is an enrolled member of the Confederated Tribes and Bands of 22 the Yakama Nation (“Yakama Nation”). He is part of a legacy of indigenous people occupying 23 the Columbia Plateau for thousands of years. As such, it is important to have an understanding of 24 25 the heritage that the U.S. Department of Justice is attacking in this federal criminal case, 26 SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 2 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected] Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15 1 involving gaming and chicken fighting on Indian Country 1. Mr. Olney objects to this 2 unwarranted intrusion into the sovereign jurisdiction of the Yakama Nation. 3 The Confederated Bands and Tribes of the Yakama Nation are descendants of 14 tribes 4 and bands that were federally recognized under the Yakama Treaty of 1855. The 1,377,034-acre 5 6 reservation is located in southcentral Washington, along the eastern slopes of the Cascade 7 Mountain Range. 8 The current spelling of "Yakama" was reintroduced in 1994 by the tribe to return to the 9 original spelling. 10 11 The Yakama were one of several Native American groups who lived in similar ways on 12 the Columbia Plateau of today's Idaho, Oregon and Washington. Their economy was based on 13 fishing, hunting, gathering, and intertribal trading of such items as fish products, baskets, dogs 14 and horses, as reported in approximately 1750 AD. 15 The seasons drew them to various parts of the plateau. In the winter, people lived along 16 17 interior rivers in villages of tule-mat lodges, and subsisted on dried foods. Each March they 18 trekked to root grounds and camped with neighboring Indians. Each May or June salmon began 19 to travel up the Columbia River. Then the Yakama moved to the lower Columbia to catch and 20 preserve the fish. In the fall, they went into the Cascade Mountains to pick berries and hunt, 21 22 while drying their victuals for the winter. 23 24 1 “Indian Country” is a term of art, and is defined in 18 U.S.C. § 1151(a) as "all land within the 25 limits of any Indian reservation under the jurisdiction of the United States Government." 26 SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 3 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected] Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15 1 In accordance with a profound connectedness the Yakama felt to their environment, they 2 gave thanks for their foods through spiritual ceremonies. In the 19th century, the Catholic 3 missionary Charles Pandosy introduced them to Christianity. Traditional pantheistic spiritual 4 values coexist with the adopted monotheistic Christian religions. 5 6 The Yakama encountered the Lewis and Clark Expedition near the confluence of the 7 Yakima and Columbia rivers in 1805. Not long thereafter, American and British trappers 8 introduced ready-made goods to the Yakama. Homesteaders, miners and others would follow in 9 increasing numbers. 10 11 To accommodate an insatiable white demand for land and resources, Washington 12 territorial governor and Indian agent Isaac Stevens concluded the Yakama Treaty with the 13 Yakama and 13 other tribes and bands on June 9, 1855. In signing the treaty, the Indians ceded 14 11.5 million acres to the United States. The treaty recited the United States’ obligation to pay the 15 sum of $200,000.00 for the Yakama concession to cede their lands. A thorough research of 16 17 archival records at the U.S. National Archives reveals no proof that the $200,000.00 was ever 18 paid to the Yakama Nation by the United States, giving rise to the serious question of whether 19 or not the Treaty of 1855 is a legitimate document that should be enforced . Although the 20 Yakama themselves ceded 10,828,800 acres to the U.S. government, they reserved their right to 21 22 fish, hunt and gather within the ceded area. Legal battles continue to this day, concerning the 23 scope of those off-reservation hunting and fishing rights. The tribes and bands also agreed to 24 move to a new reservation and receive federal benefits. 25 26 SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 4 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected] Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15 1 The 1855 treaty stipulated two years to allow the tribes and bands to relocate on the new 2 reservation, but Governor Stevens threw open Indian lands for white settlers less than two weeks 3 after the treaty was signed. A Yakama chief, Kamiakin, called upon the tribes to oppose Stevens’ 4 declaration. Some of the tribes joined forces under Kamiakin. The Indians managed to fight off 5 6 U.S. Cavalry for about three years in the uprising called the Yakima War (1855-1858). Other 7 Indians in the territory rose up as well. In September of 1858, at the Battle of Four Lakes near 8 Spokane, the Indians were decisively defeated. Kamiakan escaped to Canada, but two dozen 9 other leaders were apprehended and executed. 10 11 Most of the Yakama and other tribes then moved onto the reservation where numerous 12 Sahaptin dialects, Chinookan, Salish and English languages converged. They led a harrowing 13 existence. White agents ran the reservation, intending to assimilate the internees into 14 American society. A boarding school was established at Fort Simcoe on the reservation to 15 educate and indoctrinate Indian children. Confinement on the reservation contributed to a social 16 17 breakdown, ill health, alcoholism, and such other problems as high infant mortality. 18 Agents also compelled Indians to grow crops on the reservation, but they farmed without 19 enthusiasm. Many struggled to fish, hunt, and gather, but the old ways had been disrupted. The 20 Yakama gradually lost access to fishing and hunting lands, as well as to areas with roots and 21 22 berries; non-Indians had started farms and ranches on ceded Yakama land. Whites let 23 their livestock feed on roots and berries. Irrigation projects destroyed Yakima River salmon runs 24 and plowing ruined plant and animal habitat. 25 26 SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 5 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected] Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15 1 In accordance with a new federal policy in the late 1800s, government agents began to 2 break up the reservation into 80-acre allotments for individual Indians, to encourage tillage.