9th Circuit Court of Appeals: Confederated Tribes and Bands of the Yakama Nation v. Klickitat County – November 20, 2020
Yakama Nation celebrates ‘resounding victory’ for treaty lands
Wednesday, June 16, 2021
Indianz.Com

The Yakama Nation is celebrating after a federal appeals court confirmed that the tribe has been right all along about its treaty lands in Washington state.

In a unanimous decision on Friday, the 9th Circuit Court of Appeals ruled that the 1.4-million acre Yakama Reservation includes a parcel known as Tract D. The land was set aside by treaty more than 150 years ago in recognition of its importance to the tribe and its citizens.

“The Ninth Circuit’s decision is a resounding victory for the rights that our ancestors reserved in the Treaty of 1855,” Chairman Delano Saluskin said in response to the 26-page ruling.

Tract D consists of 121,465 acres in the southwestern part of the reservation. It includes land near Mount Adams — one of the most sacred places for the Yakama Nation — that tribal ancestors recognized as critical for food, water and other resources.

“Both parties to the treaty joined together to protect the Yakama Reservation from Klickitat County’s challenge, and we are thankful the Ninth Circuit honored the treaty parties’ common understanding,” said Saluskin.

Tract D - Yakama Nation
A Bureau of Land Management map submitted as part of litigation includes Tract D within the boundaries of the Yakama Reservation in Washington state. Source: BLM[/caption]
A Bureau of Land Management map submitted as part of litigation includes Tract D within the boundaries of the Yakama Reservation in Washington state. Source: BLM

Despite the language of the treaty, the minutes from the government-to-government negotiations and a map of the reservation that at one point went missing, Tract D has been the subject of dispute. Officials in Klickitat County have repeatedly asserted jurisdiction on the land, including the prosecution of a minor Yakama Nation citizen for an alleged incident of juvenile delinquency.

With its decision, the 9th Circuit acknowledged some “ambiguity” in connection with Tract D and its boundaries. But when all of the evidence is taken into account, including the fact that tribal negotiators weren’t completely proficient in English in 1855, the court held that the Yakama Nation’s interpretation of the treaty must be respected.

“Under the Indian canon of construction, the treaty’s ambiguity must be resolved according to the Yakamas’ understanding that Tract D was included within the Yakama Reservation,” Judge Michelle Friedland wrote for the appeals court.

indianz · Confederated Tribes and Bands of the Yakama Nation v. Klickitat County
Indianz.Com Audio: 9th Circuit Court of Appeals – Confederated Tribes and Bands of the Yakama Nation v. Klickitat County – November 20, 2020

As a result, the 9th Circuit’s ruling forecloses Klickitat County from prosecuting Yakama citizens and other Indians for most offenses on the reservation. Jurisdiction over juvenile delinquency, for example, is shared between the tribe and the federal government, the decision notes.

But the U.S. hasn’t always lived up to its trust and treaty responsibilities to the Yakama Nation. Under Public Law 280, which was part of the disastrous termination era of federal policy, state and local authorities in Washington were allowed to prosecute Indians on the reservation for more than 50 years.

The situation changed after the state of Washington went through a process known as “retrocession” under Public Law 280. Gov. Jay Inslee (D) issued a proclamation in 2014, formally withdrawing the state’s jurisdiction over most offenses on the reservation. Officials in Klickitat County — including the local prosecutor — tried to derail the process.

The Department of the Interior accepted the state’s retrocession a year later, during the Barack Obama era. President Joe Biden, who served as vice president at the time, has said his administration is committed to supporting tribal authority.

“The department is committed to ensuring the federal government honors the government-to-government relationship with tribes and strengthens tribal sovereignty through meaningful tribal consultation,” Secretary Deb Haaland said in Congressional testimony on Wednesday.

Haaland, a citizen of the Pueblo of Laguna who is the first Native person to serve in a presidential cabinet, noted that the fiscal year 2022 budget for the Bureau of Indian Affairs includes $507.1 million for public safety in tribal communities. The figure represents an increase of $38.5 million over current levels.

Mount Adams
Mount Adams is seen from Trout Lake Highway in Klickitat County, Washington. Photo: pfly

Oral arguments in the Yakama Nation case took place before the 9th Circuit last November. Klickitat County mounted the appeal after a federal judge sided with the tribe in an August 2019 ruling. The tribe filed the complaint, arguing that the juvenile citizen was “unlawfully” arrested, charged and convicted by the county for an incident within Tract D.

At the invitation of the 9th Circuit, the Department of Justice submitted a brief in support of the tribe’s interpretation of the treaty. An official Bureau of Land Management map that places Tract D within the reservation was included in the record.

Turtle Talk has posted briefs from the case, Confederated Tribes and Bands of the Yakama Nation v. Klickitat County.

9th Circuit Court of Appeals Decision
Confederated Tribes and Bands of the Yakama Nation v. Klickitat County (June 11, 2021)