Amicus Curiae Brief — Klickitat County, Washington, et al., Petitioners v. Confederated Tribes and Bands of the Yakama Nation

No. 21-906

In the Supreme Court of the United States

____________

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,

Petitioners,

v.

CONFEDERATED TRIBES AND BANDS OF THE

YAKAMA NATION, A SOVEREIGN FEDERALLY RECOGNIZED NATIVE NATION,

Respondent.

______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

______________

BRIEF OF WASHINGTON FARM BUREAU AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

______________

Maureen L. Mitchell

FOX ROTHSCHILD LLP

1001 Fourth Avenue, Suite 4500

Seattle, WA 98154

(206) 624-3600

mmitchell@foxrothschild.com

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TABLE OF CONTENTS

STATEMENT OF INTEREST..............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................1

ARGUMENT .........................................................3

I.

The Question Presented Is of Great

National Importance. ............................. 3

II.

The Ninth Circuit Incorrectly Rejected

Congress’s 1904 Act Establishing the

Southwestern Boundary of the Yakama

Reservation. ........................................... 4

III.

The Ninth Circuit Erred by Failing to

Acknowledge the Precedent of this

Court. ...................................................... 6

IV.

The Court Should Consider the

Practical Consequences of the Ninth

Circuit’s Revision of Reservation

Boundaries. ............................................ 7

CONCLUSION ....................................................11

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TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Huger,

62 U.S. (21 How.) 305 (1858)........................................ 7

Indian Country, U.S.A., Inc. v. State of Okl.

Ex rel. Oklahoma Tax Com’n,

829 F.2d 967 (10th Cir. 1987) ...................................... 3

Montana v. United States,

450 U.S. 544 (1981) ...................................................... 8

Newsom v. Pryor’s Lessee,

20 U.S. (7 Wheat.) 7 (1822) .......................................... 7

Northern Pac. Ry. Co. v. United States,

227 U.S. 355 (1913) .............................................. 3, 6, 7

United States v. Lara,

541 U.S. 193 (2004) ...................................................... 5

Wash. State Dep’t of Licensing v. Cougar

Den, Inc.,

––– U.S. ––––, 139 S. Ct. 1000, 203

L.Ed.2d 301 (2019) ....................................................... 7

Statutes

12 Stat. 951 ........................................................................ 3

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STATEMENT OF INTEREST

Amicus curiae is the Washington Farm Bureau.1

Washington Farm Bureau is a non-profit corporation

and voluntary grassroots advocacy organization representing the social and economic interests of farm

and ranch families in Washington State. The Washington Farm Bureau maintains an office in Lacey,

Washington. Washington Farm Bureau has over

46,000 members who farm and ranch in every county

of Washington State, including Klickitat County and

in Tract D, the 190 square mile area of land at issue

in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The questions presented by the petition before the

Court are:

1. Whether, or in what circumstances, a court may

override an Act of Congress adopting a boundary for

an Indian reservation, and set its own boundary.

2. Whether the Ninth Circuit erred by holding-in

conflict with the decisions of this Court, including a

decision involving the very boundary at issue, that the

Reservation encompasses the area at issue.

No counsel for any party authored this brief in whole or in

part and no person other than amicus, its members, or its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief. All parties received notice and have

provided consent to this filing.

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The Ninth Circuit’s decision presents a major disruption to the status of fee land owners and other

stakeholders that now find themselves within the

boundaries of an Indian reservation and may be subjected to a new and confusing jurisdictional landscape.

The Washington Farm Bureau files this amicus brief

in support of Petitioners to highlight the practical implications of the Ninth Circuit’s decision to its members in Klickitat County. The Washington Farm Bureau is concerned not only with the immediate impacts on the ranchers and farmers now located within

the expanded territory of the Yakama Nation, but also

with the potential for future shifts in reservation

boundaries based upon the Ninth Circuit’s misapplication of the Indian canons and its mis-interpretations of Congressional intent.

First, the Ninth Circuit improperly disregarded an

act of Congress specifically intended to resolve uncertainty regarding the southwestern boundary of the

Yakama Indian Reservation in Washington. See Act

of Dec. 21, 1904, ch. 22, 33 Stat. 595 (“1904 Act”). In

setting a new Reservation boundary between the

White Salmon River and Klickitat River, the Ninth

Circuit effectively nullified the 1904 Act.

Second, in significantly expanding the Yakama

reservation boundaries to a point well beyond the area

previously recognized as the treaty-defined boundaries, the Ninth Circuit has incorrectly applied this

Court’s and its own precedents regarding treaty interpretation. Specifically, this Court recognized that the

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boundary of the Yakama Reservation excludes Glenwood Valley in Northern Pac. Ry. Co. v. United States,

227 U.S. 355, 365-66 (1913).

While the precise terms and language of the Treaty

with the Yakamas, U.S.-Yakama Nation, June 9,

1855, ratified Mar. 8, 1859, 12 Stat. 951, and proclaimed by the President April 18, 1859 (“1855

Treaty”), are unique to that document, the principles

in question, i.e. correct interpretation of the treaty,

subsequent legislation intended to address ambiguities and errors, and the history of land grants, present

issues of national importance. See generally Petition

for a Writ of Certiorari, Penobscot Nation v. Frey, No.

21-838 (December 3, 2021). Washington Farm Bureau writes as amicus to urge this Court to recognize

the legal effect of the 1904 Act and its precedent in

Northern Pac. Ry. Co., supra.

ARGUMENT

I.

The Question Presented Is of Great National Importance.

Determining what constitutes Indian County has

been described as the “benchmark for approaching the

allocation of federal, tribal, and state authority with

respect to Indians and Indian lands.” Indian Country,

U.S.A., Inc. v. State of Okl. Ex rel. Oklahoma Tax

Com’n, 829 F.2d 967 (10th Cir. 1987), citing Handbook

of Federal Indian Law 27-46 (R.Strickland ed. 1982).

For this reason, a court of appeals decision that erro-

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neously unsettles a long-established Indian reservation boundary represents a case of great national importance.

Disputes between the Yakama Nation and the

United States emerged in the late 1800’s. Pet. App. at

8. In response, the United States commissioned two

federal surveys. Id. The first occurred in 1890. The

Schwartz survey omitted much of the western half of

the Reservation. See Pet. App. at 87a (map). After

receiving a petition from the Yakama Nation, the

United States sent a second surveyor, E.C. Barnard,

to investigate the Yakama’s boundary claim in 1898.

Pet. App. at 8. Barnard found that the treaty boundary ran out to the Cascades, southward along the

mountains’ main ridge, swing around the eastern

slope of Mount Adams to Goat Butte, and then

straight to Grayback. Id.. Barnard’s survey extended

further west and south than Schwartz’s survey, but

Glenwood Valley remained outside Reservation

boundaries. See Pet. App. 87a (map).

Facts regarding the area in question – Glenwood

Valley (also known as Tract D) – and the non-Native

American population are stated in the Petitioner’s

Opening Brief and will not be repeated here.

II.

The Ninth Circuit Incorrectly Rejected

Congress’s 1904 Act Establishing the Southwestern Boundary of the Yakama Reservation.

The Washington Farm Bureau urges this Court to

give effect to the act of Congress dated December 21,

1904. Pet. App. 67a. It is well-established that Con-

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gress is authorized to exercise plenary power over Indian tribes, including with respect to the establishment of reservation boundaries. United States v. Lara,

541 U.S. 193, 200 (2004). In the 1904 Act, Congress

expressly recognized the Reservation boundaries to

include certain lands, including approximately

293,837 acres of land that were erroneously excluded

from the prior Schwartz survey, and adopted and recognized the Barnard survey, approved by the Secretary of the Interior on April 7, 1900, as the correct Reservation survey. Barnard found that the treaty

boundary ran out to the Cascades, southward along

the mountains’ main ridge, swing around the eastern

slope of Mount Adams to Goat Butte, and then strait

to Grayback. Pet. at 8.

The Ninth Circuit recognized that the Barnard

survey did not include Tract D. Pet. App. 20a. But the

Ninth Circuit proceeded to limit the 1904 Act’s legal

effect by referencing language that the Barnard report

was recognized “for the purposes of this act” and that

the Act was for the purpose of having the United

States act as “trustee” for the Yakama Indians in the

disposition of surplus lands within the Reservation.

Id. Contrary to the Ninth Circuit’s conclusions, the

1904 Act was not so limited.

The legal effect of the 1904 Act establishing reservation boundaries for the Yakama Nation is no different than the effect of the Maine Implementing Act

(“MIA”) and the Maine Indian Claims Settlement Act

(“MICSA”), known collectively as the Settlement Acts,

involving the claims of the Penobscot Nation. The local government and the State have continuously

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treated Tract D as lying outside the Yakama Reservation boundary. Pet. at 12-13. And the Yakama tribal

council expressed “thanks and appreciation of the Act”

that recognized the Yakamas’ right and title to the

disputed tracts on the western border of the Reservation. Pet. at 10.

III. The Ninth Circuit Erred by Failing to

Acknowledge the Precedent of this Court.

For decades, state and local governments have relied upon well-established precedent, i.e. this Court’s

decision in Northern Pacific Railway Co. v. United

States, 227 U.S. 355 (1913), which indisputably settled the western boundary of the Yakama Reservation. The Ninth Circuit’s opinion incorrectly concluded

that this Court “did not hold that the Act conclusively

settled the Reservation’s boundary.” The Washington

Farm Bureau is gravely concerned about the jurisdictional disarray that will result from the Ninth Circuit’s decision.

Adjudication of the location of the Yakama Reservation boundaries occurred in the Northern Pacific

Railway decision, and was the direct result of Congress resolving the disputed Reservation boundaries

in the 1904 Act. Northern Pac. Ry. Co., 227 U.S. at

358. After thoroughly analyzing the textual language

of the 1855 Treaty, the calls cited therein, and contemporaneous evidence of the understanding of the Reservation boundaries held by the surveyors, government officials, and Tribal leaders, this Court was convinced of the “correctness of the Barnard survey.” Id.

at 366.

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No reading of the 1855 Treaty supports the inclusion of the Glenwood Valley, which places the Reservation boundary between the White Salmon and

Klickitat Rivers. Pet. at 5. In so reading the 1855

Treaty, the Ninth Circuit’s decision has adopted an interpretation of the 1855 Treaty that cannot be reconciled with the plain and unambiguous text referencing

the divide between the Klickitat and Pisco Rivers. Rather than adhere to the canon that natural objects in

land grants have “absolute control,” the Ninth Circuit

has re-written the Reservation boundaries by judicial

fiat. Brown v. Huger, 62 U.S. (21 How.) 305, 318

(1858); see Newsom v. Pryor’s Lessee, 20 U.S. (7

Wheat.) 7, 10 (1822) (Marshall, C.J.). It is true that

canons of construction require courts to construe ambiguities according to the tribe’s understanding at the

time the treaty was signed. Wash. State Dep’t of Licensing v. Cougar Den, Inc., ––– U.S. ––––, 139 S. Ct.

1000, 1011, 203 L.Ed.2d 301 (2019). However, there

is no ambiguity in the 1855 Treaty that would support

wholesale relocation of the Reservation boundary to a

place adjacent to the White Salmon River, which was

never mentioned in the calls setting Reservation

boundaries.

IV. The Court Should Consider the Practical

Consequences of the Ninth Circuit’s Revision of Reservation Boundaries.

There are very real, practical consequences to the

Ninth Circuit’s misreading of the 1855 Treaty. If the

re-location of boundaries that have been recognized

and relied upon for over a century is allowed to stand,

property owners, businesses, farmers, and ranchers

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will be forced to navigate the complex jurisdictional

puzzle that applies to lands located within Indian

Country. Although the 190 square mile area that includes Glenwood Valley is mostly rural and located

close to the Yakama Reservation, it has never been

considered within the scope of tribal jurisdiction.

Washington Farm Bureau members include ranchers

who run cattle in Glenwood Valley. There will inevitably be a deluge of questions of state and local regulatory authority, including application of tax codes,

zoning and land use regulations, filing and perfection

of legal instruments pertaining to real and personal

property, applicability of tribal ordinances and regulations, the scope of tribal jurisdiction over non-member property owners and businesses in the affected

territory, and countless other legal questions encountered on a daily basis in Indian Country. See generally

Montana v. United States, 450 U.S. 544 (1981) ( establishing rule that Indian tribes retain inherent authority to exercise civil jurisdiction over non-Indians

within reservation boundaries based upon (1) a consensual relationship or (2) when the conduct at issue

threatens or has some direct effect on the political integrity, the economic security, or the health or welfare

of the tribe).

Virtually overnight the state’s role in environmental regulation has been dismissed entirely. Farmers

and ranchers in Glenwood Valley now face the prospect of a combination of U.S. Environmental Protection Agency and tribal regulations over environmental matters and those regulatory agencies may have a

drastically different approach, necessitating a new

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slate of environmental measures to implement new

regulatory requirements. For example, state law currently makes stream buffers and other setbacks voluntary. There is a very real risk that tribal or federal

regulators could impose more restrictive rules regarding the types of activity that can take place in the setback and buffer areas. The U.S. Environmental Protection Agency’s authority could potentially be augmented by the Yakama Nation itself, if it applies for

“Treatment as a State” status for purposes of implementing certain provisions of the Clean Water Act,

Clean Air Act, and other environmental statutes.

Ranchers and farmers in Tract D could also face

loss of federal funding for environmental programs.

The U.S. Department of Agriculture runs a Natural

Resources Conservation Service program that provides financial and technical assistance to help manage natural resources in a sustainable manner. Such

federal funding is not available for environmental projects that are required by law or rule. Hence, farmers

could be subject to expensive environmental projects

as a result of new requirements and their costs would

be directly imposed on the agricultural producers,

where grants and program support were previously

available.

In the area of criminal jurisdiction, local law enforcement will need to completely overhaul its approach to investigating and prosecuting crimes in

Glenwood Valley. While state, local and tribal law enforcement agencies are not strangers to the concept of

overlapping jurisdiction, the occupants of Glenwood

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Valley will now need to navigate the complex jurisdictional quagmire that plagues and often frustrates

criminal justice in Indian Country. The Yakama Reservation has seen a spike in violent crime since Governor Inslee approved partial retrocession of PL 280

in 2016.2 Local and state jurisdiction over such crimes

will be transferred to federal authorities. Spreading

scarce federal law enforcement resources even thinner

with expansion of Reservation boundaries causes

grave concern to the Washington Farm Bureau and its

members.

Amicus curiae Washington Farm Bureau urges

this Court to grant Petitioner’s writ to correct the

Ninth Circuit’s re-writing of the Reservation boundary. In addition to creating the immediate impacts to

Glenwood Valley, the Ninth Circuit’s approach to addressing reservation boundary disputes poses a very

real risk of upending territorial expectations at countless other reservations throughout the western

United States. The Ninth Circuit spans a vast geographic area with more federally-recognized tribes

than any other circuit. Where important questions of

geographic scope of reservations have arisen and been

settled through Congressional action, those legislative

acts need to be respected. The Ninth Circuit’s decision

sets a problematic precedent that warrants review by

this Court.

Deadly ground: Yakama Reservation shaken by disturbing

homicide rate | Local | yakimaherald.com (published

12/19/2021) (last visited 2/7/2022).

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CONCLUSION

This Court should grant certiorari and reverse the

decision of the Ninth Circuit Court of Appeals.

Respectfully submitted,

Maureen L. Mitchell

FOX ROTHSCHILD LLP

1001 Fourth Avenue

Suite 4500

Seattle, WA 98154

(206) 624-3600

mmitchell@foxrothschild.com

Counsel for Amicus Curiae

Washington Farm Bureau

February 9, 2022