John Blomster: Welcome to DISCOVERY, a University of 麻豆社区 of Law podcast where we discuss today's biggest legal topics with the law schools, distinguished guests and experts from around the world. I'm John Blomster. And today we're joined by Ethan Jones, lead attorney for the Yakama Nation Office of Legal Counsel. At the Office of Legal Counsel, Ethan provides civil legal representation to the Confederated Tribes and Bands of the Yakama Nation, its programs and its business enterprises. He has represented the Yakama Nation before tribal, federal and state courts, as well as in administrative forums and in private arbitrations and mediations. He recently joined 麻豆社区 Law, of which he is a proud alumnus and, in fact, a double dawg, as part of the law school's 33rd Annual Indian Law Symposium. And today we'll be diving into the topic he discussed there, a case that brings up issues tied to tribal sovereignty, and one that could potentially be impacted by a recent landmark Supreme Court decision. We've been looking forward to getting into the details of each case. So, Ethan, thank you very much for joining us today.
Ethan Jones: Thanks, John. And thank you for that introduction. I appreciate it.
JB: Absolutely. So, the catalyst for this discussion is the aforementioned case, which as of now is on appeal at the Ninth Circuit, one that you recently argued Yakama Nation v. Klickitat County. Can you talk about this case, the background and what issues are at play here?
EJ: Absolutely. So, the Yakama reservation is located in South Central Washington State, and it's located in both Yakama county and in Klickitat County. In 2017, Klickitat County arrested an enrolled Yakama member for crimes against a non-Indian and the Yakama nation took the position that the county does not have jurisdiction over those crimes. Now, it's a general tenet of federal Indian law that in most circumstances, states do not have criminal jurisdiction over Indians and Indian Country unless Congress is somehow allowed that. And in this case, we argued that Congress has not allowed the county to exercise that jurisdiction within the Yakama reservation. It should have been the Yakama nation or the federal government prosecuting this individual for their crimes. And the county raised a defense, two defenses actually, they said, First, this area of the Yakama reservation, which is just south of Mount Adams, it's the Camas prairie, the Glenwood Valley, that it's not included within the Yakama reservation, because it wasn't included in the reservation by treaty. And the second argument was even if it is included in the reservation by treaty, it was subsequently diminished from the Yakama reservation by an act of Congress in 1904.
JB: So, in response to those two different defense points, how do you address those?
EJ: So, the area that is in question is called Tract D of the Yakama reservation. And the question became, was Tract D included in the Yakama reservation in the Treaty of 1855? And that raises questions of treaty interpretation, and their special canons of interpretation that apply when interpreting an Indian treaty. First and foremost, those treaties have to be interpreted as the Indians ancestors would have naturally understood the treaty at the time that it was negotiated. And to the extent that there are any ambiguities in the treaty, those ambiguities have to be resolved for the tribe鈥檚 benefit. So, in this case, addressing the first question about treaty interpretation, we looked to the Treaty of 1855, which the Yakama Nation's ancestors negotiated with the United States. And we looked to contemporaneous evidence from the Walla Walla Treaty Council, where that was signed, to get an understanding of how the Yakama Nation's ancestors would have understood their treaty and specifically the descriptions of the boundaries of the reservation that were included in the treaty.
JB: So, this case, Yakama Nation v. Klickitat County, as well as the Supreme Court case that we mentioned at the top, they both spotlight a legal framework that is really central to issues of tribal sovereignty. And so, I'd love to break that down. So, what is the reservation diminishment framework? And what are the different hallmarks or components that we're analyzing when we're applying this framework to different cases?
EJ: So, that speaks to the second issue in the case, which is in the act of December 21, 1904, Congress took an action to sell certain lands within the Yakama reservation鈥檚 boundaries to non-Indians and Klickitat County has argued that this act of Congress accomplished a diminishment of the Yakama reservation鈥檚 boundaries and specifically excluded this southwestern portion of the reservation called Tract D. It's a little over 120,000 acres and includes mount Adams within that area, that it was diminished from the reservation boundaries. So, the diminishment framework before McGirt v. Oklahoma was decided really raised three considerations for the court.
First and foremost, only Congress can diminish a reservation鈥檚 boundaries. And it has to clearly express its intent to diminish those boundaries in the text of the statute that it passes. Now, we, as a policy matter, take issue with the idea that Congress can unilaterally abrogate a treaty. These were bilateral treaties negotiated between the United States and Indian tribes, in this case, the Yakama nation, Congress just can't go in and tear up the treaty whenever it wants. But in any event, this diminishment framework looks at whether Congress did that when it comes to reservation boundaries. There are three elements for considering whether Congress did in fact intend to diminish the reservation.
The first element looks to the legislative intent that was expressed in the text of the statute itself. So, you have to actually look to the text, read the text, see did Congress specifically say we're diminishing this boundary? There are certain hallmarks of diminishment. I'll talk about in a moment that Congress has used in the past and the courts have found to effectuate a diminishment.
The second consideration is the legislative history and the context surrounding the passage of the Act. The question is whether there is an unequivocally expressed intent to diminish the reservation based on that context, that surrounding history.
And the third element looks to subsequent treatment, demographic changes in the area and things like that. So, this is again all pre-McGirt. So, in the Yakama Nation鈥檚 case, you would look to, first, the text of the statute, you would see whether there are any of these hallmarks of diminishment that exist, those hallmarks are language of session. So, where a tribe is saying we cede rights to these lands where there is language, contemplating the total surrender of all tribal interests in the land. A lot of times courts are finding this and agreements for the sale of land that tribes made back in the late 19th century, where there is payment of a sum certain for land. So, it says, you know, in the act, it says we're paying, you know, $600,000 for X amount of acres of land. And then the final Hallmark has to do with language talking about returning land to the public domain. In the act of December 21, 1904 for the Yakama Nation, none of these hallmarks of diminishment exist. So, pre-McGirt, we would then look to the surrounding history, the surrounding context, we would look to subsequent treatment of the lands but McGirt really signaled a significant shift in this reservation diminishment framework and made those subsequent inquiries much less necessary.
JB: Before we dive into the Supreme Court case that you're referencing, McGirt v. Oklahoma, historically, what's an example where diminishment was found?
EJ: That is a great question. So, for example, there was a case called South Dakota v. Yankton Sioux. And in that case, the Supreme Court found that all four of the hallmarks of diminishment we鈥檙e discussing they found those to be present. So, that was a case that arose out of a dispute over the application of federal or state environmental laws to a proposed landfill site within the Yankton Sioux tribe鈥檚 1858 reservation boundaries. And in that case, the state argued that in a subsequent act of Congress, Congress diminished those reservation boundaries to exclude the landfill site. So, the question became whether Congress intended to diminish the 1858 reservation in that subsequent legislation which was in 1894. And the 1894 Act said that the tribe would cede, relinquish and convey to the United States its interest in the unallotted land within the reservation. So, we have language of session, that first hallmark of diminishment, the United States agreed to pay $600,000 for the land. So, we have payment of a sum certain, the scope of the session included all of the tribe鈥檚 claim, right, title and interest into the lands. So, we have the complete and total surrender of the tribal interest. And the act was described as returning land to the public domain, although that really was more in the surrounding history, the legislative context. So, that was a case where the Supreme Court did find sufficient intent in the text of the statute itself to support a diminishment. I will just point out that the act also said that nothing therein should be construed to abrogate the 1858 treaty, and that all the provisions of the treaty would remain in full force and effect. So, I think that there's a very strong argument to be made that that case was still decided incorrectly. But the Supreme Court relied on the hallmarks and they did find congressional intent to diminish in that case.
JB: You mentioned that this was all pre-McGirt v. Oklahoma. So, in 2020, the U.S. Supreme Court issued a ruling on a landmark case that will directly impact subsequent cases including Yakama Nation vs. Klickitat County. What was McGirt v. Oklahoma and why is the decision so important in this context?
EJ: McGirt vs. Oklahoma is a question of reservation diminishment or disestablishment concerning the Creek reservation in Oklahoma. So, it all started with an individual Mr. Jim C. McGirt who was an enrolled member of the Seminole nation and he was convicted in Oklahoma state court of three serious sexual offenses. And in post-conviction proceedings, he argued that the state didn't have jurisdiction over him because his crimes occurred in Indian Country, within the Creek reservation. So, the Creek Nation reserved its reservation by treaty in 1832, and 1833, including much of the present day city of Tulsa, Oklahoma. And an 1866 treaty diminished the size of the reservation, but it affirmed that the reduced Creek reservation would be forever set apart as a home for said Creek Nation, and an 1856 treaty confirmed the Creek Nation's right to self-government within these reservation lands. But despite this history, Oklahoma argued that the Creek reservation was disestablished during the subsequent allotment era.
So, the allotment era was a period from really the 1870s through the early 1900s, where the United States thought that it could impose Western culture on to native peoples and in doing so it tried, or it tried to effectuate that policy, through carving up reservations and individual plots, assigning those individual allotments to enroll members. But what it actually was, was a huge land grab for non-Indians. All the lands that were not allotted to native peoples, in a lot of cases they were sold off to non-Indians. So, it really was a significant land grab that cut down Indian country's total acreage significantly. But in any event, in this case, Oklahoma argued that these allotment era acts had diminished, or disestablished, the Creek reservation. And by looking through all of these acts, by applying the framework that had existed pre-McGirt, the question became: Did Congress intend to disestablish the Creek reservation through these acts?
So, the court in McGirt found that applying these three steps was not in every single case, was not an appropriate interpretive framework for looking at these acts of Congress. Writing for the court, Justice Gorsuch said that the only proper question for a court to look into is whether Congress expressly intended on the the text of the statute, on the face of the statute, that it intended to diminish the reservation. There is no reason why you should be looking to the legislative history of subsequent context or the subsequent treatment of these lands to try to create some sort of congressional intent or it's not clearly expressed on the face of the statute itself. So, this represents a monumental shift in the diminishment framework. It's not some 1-2-3, you know, three step marks that you go through for every case. You look to the plain language of the statute on the face of the statute. You see, is their clearly expressed intent? And if you don't find it there, the analysis stops and the reservation survives that surplus land back. So, this was a big victory for Indian country, a big victory for the Creek Nation. Really, it strengthened the Yakama Nation鈥檚 position, which we already felt was very strong, but it just further strengthened the Yakama Nation鈥檚 position in our Yakama Nation vs. Klickitat County litigation.
JB: So, with the impact of that decision, how does that change or enhance or bolster the argument that you're making in Yakama Nation vs. Klickitat County?
EJ: There were arguments that Klickitat County has made about the subsequent history of the act of December 21, 1904 that speak to the second and third factors of the diminishment test that really don't hold much weight or water at this point. So, what it did was eliminate the effectiveness or the weight of authority than any of that subsequent evidence had within the analysis framework. But even with that said, we think that the surrounding context of the act of December 21, 1904 and the subsequent history, both were very strongly in favor of the Yakama National as well. So, we actually don't think Klickitat had much of an argument, regardless. But what this case said was really, you got to look to the face to the statute, do you find any of that intent on the face of the statute, and in this case, there are none of those hallmarks of diminishment in the act of December 21, 1904. In fact, the language used in this particular act of Congress, there's a purpose statement provided in there. And it's the same purpose statement that the Supreme Court already looked at and considered in another Supreme Court case, Seymour vs. Superintendent, that had to do with the Colville reservation. And in that case, the Supreme Court said that that specific act did not result in a diminishment of the Colville reservation. And we think that the exact same is going to be the outcome here in this case.
JB: So, the case is currently on appeal at the Ninth Circuit, what are the next steps going forward? Both from a legal context, but then both on the ground in regard to this case? What are the next moves, if any, for the Yakama Nation?
EJ: So, the case was argued on November 20. So, we're a little over three months since the case was argued. We're expecting a decision from the Ninth Circuit here shortly. And to the extent, you know, depending on how that, how the Ninth Circuit decides there could be further proceedings after that. We don't think this is a case that should go to the Supreme Court. We think that it's relatively straightforward and that the nation has strong arguments that should carry the day. But if it goes there, we're certainly prepared to argue this case to its final conclusion.
I think that the practical realities on the ground are not going to change from the day before the decision is issued to the day after the decision is issued. So, this portion of the Yakama reservation has been administered as part of the Yakama reservation, by the Yakama Nation for more than 150 years. And if you look through the history and sort of the reason why this case has proceeded the way it is, following the Walla Walla treaty Council in 1855, there was a treaty map that was that was lost. So, it showed what the reservations boundaries were, and it was lost until 1930. So, you have this period from 1855 to 1930, where the federal government keeps coming out, surveying, surveying, surveying the reservation, a different line every time. All of them inconsistent with what the treaty says. They find the map in 1930. And from that point in 1930 forward, the Department of the Interior has consistently agreed with the Yakama Nation that this area is within the Yakama reservation鈥檚 boundaries.
So, for almost 100 years, the federal government has been treating this land as part of the Yakama reservation. For more than 150 years the Yakama Nation has been doing so. To the extent that the residents in this area have not noticed that, they're not going to notice it the day after the decision is issued. Hopefully in the Yakama Nation鈥檚 favor. The United States and the Yakama nation have already been exercising their jurisdiction for, in the Yakama Nation鈥檚 case since time immemorial. So, there shouldn't be a huge shift on the ground.
JB: Ethan Jones is lead attorney for the Yakama Nation Office of Legal Counsel. He recently joined the law school as part of 麻豆社区 Law鈥檚 annual 33rd Indian Law Symposium. You can learn more about Ethan's work, the cases and the concepts that we discussed today and you can find registration information for the next Indian Law Symposium seminar over on our podcast page at law.uw.edu.
Ethan, thank you very much for joining us today.
EJ: Thanks, John. Appreciate it.
