Confederated Tribes & Bands of the Yakama Nation v. Klickitat Cnty.

• Decision Date: 11 June 2021
• Docket Number: Nos. 19-35807,19-35821,s. 19-35807
• Citation: 1 F.4th 673
• Parties: CONFEDERATED TRIBES AND BANDS OF the YAKAMA NATION, a sovereign federally recognized Native Nation, Plaintiff-Appellant/Cross-Appellee, v. KLICKITAT COUNTY, a political subdivision of the State of Washington; Klickitat County Sheriffs Office, an agency of Klickitat County; Bob Songer, in his official capacity; Klickitat County Department of the Prosecuting Attorney, an agency of Klickitat County; David Quesnel, in his official capacity, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

1 F.4th 673

CONFEDERATED TRIBES AND BANDS OF the YAKAMA NATION, a sovereign federally recognized Native Nation, Plaintiff-Appellant/Cross-Appellee,

v.KLICKITAT COUNTY, a political subdivision of the State of Washington; Klickitat County Sheriffs Office, an agency of Klickitat County; Bob Songer, in his official capacity; Klickitat County Department of the Prosecuting Attorney, an agency of Klickitat County; David Quesnel, in his official capacity, Defendants-Appellees/Cross-Appellants.

Nos. 19-35807

19-35821

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 20, 2020 Seattle, Washington

Filed June 11, 2021

Ethan Jones (argued), Shona M. Voelckers, and Derek Red Arrow Frank, Yakama Nation Office of Legal Counsel, Yakima, Washington; Anthony S. Broadman and Robert J. Sexton, Galanda Broadman PLLC, Seattle, Washington; for Plaintiff-Appellant/Cross-Appellee.

Rylan Weythman (argued), Foster Garvey PC, Seattle, Washington; Pamela B. Loginsky, Klickitat County Special Deputy Prosecuting Attorney, Olympia, Washington; for Defendants-Appellees/Cross-Appellants.

Eric Grant, Deputy Assistant Attorney General; Rachel E. Heron, Daron Carreiro, and Christine W. Ennis, Attorneys; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Mary Anne Kenworthy and Jay W. Fields, Attorneys, United States Department of the Interior, Washington, D.C.; for Amicus Curiae United States.

Colette Routel, Mitchell Hamline School of Law, Saint Paul, Minnesota, for Amicus Curiae National Congress of American Indians Fund.

Before: Ronald M. Gould and Michelle T. Friedland, Circuit Judges, and Jill A. Otake,^* District Judge.

FRIEDLAND, Circuit Judge:

This case concerns a boundary dispute between Klickitat County, Washington and the Confederated Tribes and Bands of the Yakama Nation (the "Yakamas" or the "Tribe"). Following a bench trial, the district court held that the Yakama Reservation includes a 121,465.69-acre tract ("Tract D") that partially overlaps with Klickitat County. We affirm.

I.

A.

In 1855, the United States negotiated a treaty with the Yakamas under which the Tribe gave up ten million acres of land in exchange for certain rights, including the right to a reservation for the Tribe's exclusive use and benefit. Treaty with the Yakamas, U.S.-Yakama Nation, arts. I & II, June 9, 1855, 12 Stat. 951; Wash. State Dep't of Licensing v. Cougar Den, Inc. , ––– U.S. ––––, 139 S. Ct. 1000, 1007, 203 L.Ed.2d 301 (2019). At the Treaty negotiations, the Yakamas spoke no English and lacked familiarity with cartographic concepts such as latitude and longitude. It was therefore important for the negotiators to define the Reservation's boundaries according to natural features and to describe them through verbal and visual representations. This approach is reflected in the Treaty text, the Treaty minutes, and the Treaty map.

The Treaty text defines the Reservation's boundaries as follows (with the southwestern boundary's definition—the subject of this case—in bold):

Commencing on the Yakama River, at the mouth of the Attah-nam River; thence westerly along said 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 Klickitat 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.

Treaty with the Yakamas, 12 Stat. at 952 (emphasis added).

The Treaty minutes indicate that U.S. negotiators, led by Isaac Stevens, Governor of the Territory of Washington, told the Yakamas that the Reservation would extend "to the [C]ascade mountains, thence down the main chain of the Cascade mountains south of Mount Adams, thence along the Highlands separating the Pisco and the Sattass river from the rivers flowing into the Columbia."¹

The relevant portion of the Treaty map depicts the Reservation's boundaries with a thin line of alternating dots and dashes.²

The map includes natural landmarks such as the Cascade Mountains, Mount Adams, and the White Salmon, Klickitat, and Pisco rivers. As depicted on the map, the Reservation's northern boundary follows the Attah-nam River, its western boundary intersects with the Cascade Mountains, and its southern boundary runs south of Mount Adams.

Despite the Treaty parties’ efforts to reach a mutual understanding of the Reservation's boundaries, conflicts arose almost immediately. The Treaty map disappeared soon after the Treaty was signed, making it harder to resolve those disputes. A century-long effort to determine the southwestern boundary ensued.

The earliest federal surveys, conducted without the benefit of the Treaty map, failed to resolve disagreements about the Reservation's boundaries. The first survey (the "Schwartz survey"), completed in 1890, omitted almost half a million acres that the Yakamas understood to be part of the Reservation, including land where they lived and harvested resources. This sparked outrage within the Tribe, which consequently refused to acquiesce in federal activities in the area. A federal report by E.C. Barnard in 1900 (the "Barnard report") and a survey by Charles Pecore in 1926 followed. The Barnard and Pecore investigations placed hundreds of thousands of acres within the Reservation that the Yakamas thought Schwartz had wrongly omitted, but they nevertheless prolonged the boundary dispute: Each investigator proposed a boundary that followed straight lines instead of the natural features described in the Treaty text, and even those straight lines differed. The surveyors’ approach appeared to stem from the fact that, according to Barnard, "there [was] no possible way of making the wording of the [T]reaty agree with the topography of the country." Yakima Indian Reservation, H.R. Doc. No. 56-621, at 8 (1900).

Around 1930—seventy-five years after the Treaty's signing—an employee in the federal Office of Indian Affairs found that the Treaty map had been mistakenly filed under "M" for Montana in the government's records. The United States ordered yet another survey in response to the discovery. Completed in 1932 with the benefit of the map, a survey by cadastral engineer Elmer Calvin (the "Calvin survey") included the land currently in dispute, later called "Tract D," within the Reservation for the first time. Calvin echoed Barnard's confusion in noting that the "language of the [T]reaty fails to fit the topography on the ground," but he determined that the best reading of the Treaty and the map together would include Tract D within the Reservation.

The Department of the Interior accepted the Calvin survey's conclusions, and in 1939, the Secretary of the Interior informed Congress that the Yakamas’ claims to Tract D were meritorious.³ But some federal agencies did not adopt the Department of the Interior's position; the Attorney General, for instance, rejected the Calvin survey and maintained that the Yakamas had no viable claim to Tract D. In 1949, the Yakamas filed a petition with the newly created Indian Claims Commission ("ICC"), which was responsible for adjudicating claims by tribes against the United States. After seventeen years of litigation, the ICC concluded that the Treaty parties had originally intended to include Tract D within the Reservation. Yakima Tribe v. United States , 16 Ind. Cl. Comm. 536, 560–64 (1966).⁴ The federal government considers itself bound by the effect of the ICC's decision, so federal agencies have treated Tract D as part of the Yakama Reservation ever since.

The United States ultimately approved a survey in 1982 that included Tract D within the Reservation. The federal government continues to treat the 1982 survey as the definitive survey of the Reservation's southwestern boundary.

B.

The present dispute between the Yakamas and Klickitat County arose when the County attempted to prosecute P.T.S., a minor and enrolled Yakama member, for acts that occurred within Tract D. Pursuant to a proclamation issued by Washington Governor Jay Inslee in 2014, the Yakamas and the federal government share exclusive jurisdiction over certain criminal and civil offenses that occur on Reservation lands, including juvenile delinquency offenses.⁵ Citing that proclamation, the Yakamas contended that Klickitat County lacked jurisdiction to prosecute P.T.S. for an incident that took place within Tract D. The Yakamas sued Klickitat County and several County officials (collectively "the County"), seeking declaratory and injunctive relief barring the County from exercising criminal jurisdiction over Tribe members for offenses that arise within the Reservation's borders, including within Tract D. The County opposed the suit, arguing that Tract D is not part of the Reservation.⁶

Following a three-day bench trial, the district court issued a declaratory judgment in favor of the Yakamas. The court observed that the Treaty's description of the southwestern boundary is ambiguous because some of the natural features it references do not exist. But the court found that the Yakamas would have understood the Treaty to include Tract D within the Reservation at the time of the Treaty negotiations. In so finding, the district court credited the Yakamas’ expert's testimony and rejected the County's, explaining that the County's expert's "analysis [was] flawed and ignore[d] important historical events and critical pieces of evidence." The court accordingly held that the Treaty with the Yakamas included Tract D as part of the Reservation, and that the survey approved by the United States in 1982 "marks the correct southwestern boundary."

The County timely appealed.

II.

We evalu...