Amicus Curiae Brief — Wash. State Dep't of Licensing v. Cougar Den, Inc., 138 S. Ct. 294 (2017) (No. 16-1498)

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No. 16-1498

In The

Supreme Court of the Gnited States

WASHINGTON STATE

DEPARTMENT OF LICENSING,

Petitioner,

COUGAR DEN, INC.,

A YAKAMA NATION CORPORATION,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Washington

BRIEF OF AMICUS CURIAE CONFEDERATED

TRIBES AND BANDS OF THE YAKAMA

NATION IN SUPPORT OF RESPONDENT

ETHAN JONES

Counsel of Record

MARCUS SHIRZAD

YAKAMA NATION

OFFICE OF LEGAL COUNSEL

P.O. Box 150, 401 Fort Road

ish, WA 98948

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE...................... 1

SUMMARY OF ARGUMENT .............................. 2

RS HUET incninccndncncesosannmemaimimnicasienneses 5

I. THE RELATIONSHIP BETWEEN THE

UNITED STATES AND THE YAKAMA NA-

TION IS FOUNDED ON THE YAKAMA

TREATY, NOT THE DOCTRINE OF CHRIS-

ee ST iiiniciastenitiniaeiacenicdsastdenene 5

A. Doctrine Of Christi , -

And Historical Use By The Court......... 7

B. Opportunity To Repudiate The Doc-

trine Of Christian Discovery ............... 11

SE peieneiitiinintenidiananininintedisinipiniimmmetionsnes 14

I. ARTICLE III OF THE YAKAMA TREATY

RESERVES THE YAKAMA NATION’S

RIGHT TO TRAVEL AND TRADE OUT-

SIDE THE YAKAMA RESERVATITON......... 16

A. Since Time Immemorial, Trav<’ And

Trade Have Been Central To Yakama

Culture And Traditions ....................... 16

B. Territorial Governor Isaac Stevens

Knew The Importance Of Trade And

Travel To Our Ancestors Prior To Ne-

gotiating The Yakama Treaty.............. 18

C. The Treaty Signatories Understood

Article III To Reserve The Right To

Continue Traveling And Trading As

They Had Before The Treaty ............... 21

Il.

TABLE OF CONTENTS—Continued

Page

THE YAKAMA NATION’S RIGHT TO

TRAVEL INCLUDES THE RIGHT TO

TRADE FREE FROM ENCUMBRANCE

BY TEES BEE cccccccccccccccccccccccscscsesecocscosees

A. Article III’s Public Highway Clause

Reserved The Yakama Nation’s Right

To Conduct Economic Activities Be-

yond The Reservation Boundaries ......

. In Common With Was Never Under-

stood By The Yakamas To Limit Our

TROD ccceccccnccsescnssctanencsssssqiesemecssnnceseses

. The Treaty Preempts Non-Discrimina-

tory State Regulations That Conflict

With The Treaty And Generate Reve-

COBOL AION cccccccccccccesccccsccccsecesvcccvssesesescosecesess

APPENDICES

App. A. Treaty with the Yakamas, 12 Stat. 951

(June 9, 1855, ratified Mar. 8, 1859, pro-

claimed Apr. 18, 1859)...........---scsssssseererreeeeseeees App. 1

App. B. Record of the official proceedings at the

Council, held at the Council Ground in the

Walla Walla Valley, with the Yakama Nation of

Indians, and which resulted in the conclusion

of a Treaty on the 9th day of June 1855......... App. 15

sas

TABLE OF AUTHORITIES

Page

CASES

B & B Hardware, Inc. v. Hargis Indus., Inc., ___

| i 30

Baldwin v. Iowa State Traveling Men’s Ass’n,

, fe f) |) 30

Breedlove v. Suttles, 302 U.S. 277 (1937) ......2......0000+ 13

Brown v. Board of Education, 347 US. 483

CRIED... nccnscnininsundamneeciansseteansieuscneseumantneqvenneateenreseeses 13

Chickasaw Nation v. United States, 534 U.S. 84

III sssccinnsnscusensintittisguasimesassmasamomnennennsenanrensviebins 2,12

Choctaw Nation v. United States, 318 U.S. 423

PIII... nccccscstnssvesonssuseteenensedistibenscsasenssennsmenetioesasstnees 3

Clark v. Allen, 331 U.S. 503 (1947) ..........ccccccceeeeeeneeeee 34

Cree v. Flores, 157 F.3d 762 (9th Cir. 1998)........ passim

Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996).....25, 26

Cougar Den, Inc. v. Wash. State Dep’t of Licens-

ing, 188 Wash. 2d 55 (Wash. 2017)...........-..-.. 4, 5, 35

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543

aa 6, 8,9, 10, 11

Harper v. Virginia State Board of Elections, 383

CLG, CUD CIID cecccncsccccccsscvcccccsccecsscssssoscscssoscsoscosooese 13

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)............-.. 11

Loving v. Virginia, 388 U.S. 1 (1967) .........cccceccceeeeees 13

Mescalero Apache Tribe v. Jones, 411 U.S. 145

TABLE OF AUTHORITIES—Continued

Page

McLaughlin v. Florida, 379 U.S. 184 (1964).............. 13

Minnesota v. Mille Lacs Band of Chippewa Indi-

Oe 3, 15, 22

Missouri v. Holland, 252 U.S. 416 (1920)...............0... 34

Montana v. United States, 440 U.S. 147 (1979) ......... 29

Oklahoma Tax Comm’n v. United States, 319

Ree CE sescnenccnccanintiinniannincadidadanalbiiniabtateiiicta 12

Oliphant v. Suquamish Indian Tribe, 435 U.S.

ee CUD nnnctcsencenicneonantaniicenidessidinaiuieibitibaiiidanestauiiasaies 11

Pace v. Alabama, 106 U.S. 583 (1883) ............0..00000000 13

Plessy v. Ferguson, 163 U.S. 537 (1896).................0000 13

Seufert Bros. Co. v. United States, 249 U.S. 194

Gira ictinccnscciisiptncmcceaetetnastepinitianinisibasiiammamnellaiadietadael 32

The Cherokee Tobacco, 78 U.S. (11 Wall.) 616

Ei el cavmshicctrevintansesuninctiennsnenpndanepestiitineaiiiimiiadis 11,12

Tulee v. State of Washington, 315 U.S. 681

GREED sccesaniesccemsninesmnssnincsitenstiningionionsiiiaiia 25, 32, 35, 36

United States v. 43 Gallons of Whiskey, 93 U.S.

Be eae vciscovetiuntnsnicrtnisectioniiiitbindigtiiaiamidtinatiiariinetidl 34

United States v. Kagama, 118 U.S. 375 (1886) .......... 11

United States v. Washington, 384 F. Supp. 312

(W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir.

FIP V UD neccssccenscesennssovsstcccnsienesontneneonaniains 18, 19, 22, 24

United States v. Wells Fargo Bank, 485 U.S. 351

CEIISED sasescsnsecessssecssensscssnepaneenaqreninateassuauannsanessesiainians 12

TABLE OF AUTHORITIES—Continued

Page

v. Prairie Band Potawatomie Nation,

EE 2,12

Ward v. Race Horse, 163 U.S. 504 (1896).................... 12

Washington v. Fishing Vessel Ass'n, 443 U.S. 658

TL ee passim

Williams v. Lee, 358 U.S. 217 (1959) ...............ccccccceeee 34

Worcester v. Georgia, 31 U.S. 515 (1832) .............. 10, 34

Yakama Indian Nation v. Flores, 955 F. Supp.

1229 (E.D. Wash. 1997), aff'd sub nom. Cree v.

Flores, 157 F.3d 762 (9th Cir. 1998)................ passim

Zschernig v. Miller, 389 U.S. 429 (1968)..................... 34

TREATIES

Treaty with the Yakamas, 12 Stat. 951 (June 9,

1855, ratified Mar. 8, 1859, proclaimed Apr. 18,

SUI iisieiniaiidacnetciinlinmuicecticiendstianemepeneamechenenemmanth passim

CONSTITUTIONAL PROVISIONS

United States Constitution, art. V1, § 2................. 2,34

FEDERAL LAWS

9 Stat. 323, 30 Cong. Ch. 177 (Aug. 14, 1848) (Or-

egon Territorial Bill) (AN ACT to establish the

‘erritorial Government of Oregon) ........................ 18

9 Stat. 437, 31 Cong. Ch. 16 (June 5, 1850) (Trea-

ties with Oregon Indians)..................................0..« 18

TABLE OF AUTHORITIES—Continued

10 Stat. 172, 32 Cong. Ch. 90 (Mar. 2, 1853)

(Washington Territory Established) (AN ACT

to establish the Territorial Government of

uuEITE IIIT chnsinnetinsdeisinbuiiajinininidneidenantideemmituiniabeeaees

OTHER SOURCES

A.J. Splawn, Ka-mi-akin, the last hero of the Ya-

ERE a lee SE Ot PA et ae ee

Andrew Pambrun, Sixty Years on the Frontier in

the Pacific Northwest (1978) ....................0..00--

Robert J. Miller et al., Discovering Indigenous

TT casieriteresinciiainiininhiishehininsintdicatinaueattindes nena

Robert A. Williams, Jr., The American Indian in

Western Legal Thought (1990) ..........................

Report of Mr. George Gibbs to Captain Mc’Clel-

lan, on the Indian Tribes of the Territory of

Washington, March 4, 1854, published as

Report of A.J. Bolon to His Excellency Isaac I.

Stevens, Governor and Superintendent of In-

dian Affairs, Washington Territory, September

30, 1854, records of the Washington Superin-

tendent of Indian Affairs 1853-1874 ................

Record of the official proceedings at the Council,

held at the Council Ground in the Walla Walla

Valley, with the Yakama Nation of Indians,

and which resulted in the conclusion of a

Page

Treaty on the 9th day of June 1855 ........... 21, 31, 36

INTEREST OF AMICUS CURIAE'

The Confederated Tribes and Bands of the

Yakama Nation is a sovereign, federally recognized

Native Nation and signatory to the Treaty with the

Yakamas, 12 Stat. 951 (June 9, 1855, ratified March

8, 1859, proclaimed April 18, 1859) {hereinafter

“Yakama Treaty”]. This dispute directly implicates the

Yakama Treaty, as supported by the Treaty’s historical

context and the official minutes of the Treaty negotia-

tions. The Yakama Treaty and the Treaty Minutes are

set forth in full at App. A 1-14 and at App. B 15-117. At

issue here is Article III, paragraph 1 of the Yakama

Treaty:

And provided, That, if necessary for the public

convenience, roads may be run through the

right of way, with free access from the same to

the nearest public highway, is secured to

them; as also the right, in common with

citizens of the United States, to travel

upon all public highways.

12 Stat. at 952-953, App. A 6 (emphasis added). This is

a right reserved to the Yakama Nation. As an exercise

of our inherent sovereignty, we regulate our Members’

and Yakama Nation licensed businesses’ exercise of

this Treaty-reserved right to travel and trade. Our

' Amicus curiae represents that no counsel for any party au-

thorized this brief in whole or in part, and that no person or en-

tity, other than amicus curiae, its members, or its counsel, made

a monetary contribution to the preparation or submission of this

brief. All parties have consented to this filing.

interest as amicus curiae is to provide historical con-

text that frames the Yakama Treaty and our ancestors’

understanding of the rights reserved therein.”

SUMMARY OF ARGUMENT

The Washington Supreme Court correctly recog-

nized that Article Ill, paragraph 1 of the Yakama

Treaty secures for Cougar Den—a corporation licensed

and regulated under the laws of the Yakama Nation—

the right to import fuel into the Yakama Reservation

upon public highways free from any state-imposed pre-

conditions or encumbrance. The court’s holding is sup-

ported by the Supremacy Clause of the United States

Constitution, which provides that treaties made under

the United States’ authority are “the supreme Law of

the Land and the Judges in every State shall be bound

thereby.” U.S. Const. art. VI, § 2. Accordingly, the

State’s efforts to tax Cougar Den’s ‘importation’ of

goods over public highways must yield to our Treaty-

reserved rights.

The State’s arguments for ignoring the Washing-

ton Supreme Court’s interpretation of a state statute

principally rely on three cases, Mescalero Apache Tribe

v. Jones, 411 U.S. 145 (1973), Wagnon v. Prairie Band

Potawatomi Nation, 546 U.S. 95 (2005), and Chickasaw

Nation v. United States, 534 U.S. 84 (2001). All are

? All statements made in the first person are offered at the

direction of the Confederated Tribes and Bands of the Yakama

Nation as directed by the Yakama Nation Tribal! Council.

rooted in the doctrine of Christian discovery rather

than the Yakama Treaty, and should not be applied

here. The ‘doctrine of Christian discovery’ is the legal

fiction that Christian Europeans immediately and au-

tomatically acquired legally recognized property rights

in our lands upon reaching the Americas, thereby di-

minishing our sovereignty. Courts have used the doc-

trine to build a false legal framework to attack Native

sovereignty, which the State attempts to deploy here

through the aforementioned cases. The Court should

expressly repudiate the doctrine and instead rely on

the Yakama Treaty as the foundation for its analysis

in this dispute.

When interpreting our Treaty, courts must “look

beyond the written words to the larger context that

frames the Treaty, including ‘the history of the treaty,

the negotiations, and the practical construction

adopted by the parties.’” Minnesota v. Mille Lacs Band

of Chippewa Indians, 526 U.S. 172, 196 (1999) (citing

Choctaw Nation v. United States, 318 U.S. 423, 432

(1943)). The most comprehensive examination of the

public highway clause’s history, meaning, and scope oc-

curred in Yakama Indian Nation v. Flores, 955 F. Supp.

1229 (E.D. Wash. 1997), aff’d sub nom. Cree v. Flores,

157 F.3d 762 (9th Cir. 1998). In Yakama Indian Nation,

the district court issued 90 findings of fact, considered

129 exhibits, and ultimately held that “both parties to

the treaty expressly intended that the Yakamas would

retain their right to travel outside reservation bound-

aries, with no conditions attached” and that the

public highway clause “was clearly intended to reserve

the Yakamas’ right to travel on the public highways to

engage in future trading endeavors.” /d. at 1251,

1253 (emphasis added). Consistent with this Court’s

canons of treaty construction, the Ninth Circuit Court

of Appeals affirmed these conclusions that the Yakama

Treaty extends and protects our economic activities be-

yond reservation boundaries. Cree v. Flores, 157 F.3d at

769 (holding that Article III “guarantee|s] the Yaka-

mas the right to transport goods to market” for “trade

and other purposes,” and if a state fee or restriction in-

terferes with this right to transport, then it is per se

invalid) (hereinafter “Cree II”.

As implemented, Washington’s fuel importation

tax’ levies a tax and imposes licensing requirements

on a specific activity—the ‘importation’ of fuel, i.e.,

transporting fuel, into Washington. Cougar Den, Inc. v.

Wash. State Dep’t of Licensing, 188 Wash. 2d 55, 69

(Wash. 2017). The Washington Supreme Court cor-

rectly determined this statutory “importation tax”

places an impermissible condition on the exercise of a

Treaty-protected activity. Id. at 66 (citing the State’s

opening brief, which declared that Cougar Den “is be-

ing taxed for importing fuel.”). The court held “it was

simply not possible for Cougar Den to import fuel with-

out traveling or transporting that fuel on public high-

ways,” and because Article III’s public highway clause

® State’s amicus curiae, The Washington Oil Marketers As-

sociation and Washington Association of Neighborhood Stores,

falsely implies that the State collects and remits 75% of its col-

lected fuel tax revenue to the Yakama Nation. Br. 6, n. 3. There

is no fuel tax compact between the Yakama Nation and the State,

nor any such remittance.

“protects |our| historical practice of using the roads to

engage in trade and commerce,” Cougar Den is exempt

from the State’s “importation tax.” Jd. at 67, 69. The

Washington Supreme Court’s decision is consistent

with federal precedent, and we respectfully request

this Court affirm that decision.

This brief (1) discusses the legal context for the re-

lationship between the Yakama Nation and the United

States, (2) provides a history of our People and of the

negotiations resulting in the Yakama Treaty, and (3)

reviews the relevant federal precedent discussing the

context and interpretation of Article III, paragraph 1’s

public highway clause.

—

LEGAL CONTEXT

I. THE RELATIONSHIP BETWEEN THE

UNITED STATES AND THE YAKAMA NA-

TION IS FOUNDED ON THE YAKAMA

TREATY, NOT THE DOCTRINE OF CHRIS-

TIAN DISCOVERY.

The Yakama Treaty is the organic document es-

tablishing the government-to-government relationship

between the United States and the Yakama Nation.

It serves as the basis for any dispute concerning

our rights. However, courts have systematically at-

tempted to undermine our Treaty rights by imposing

an imaginary prior relationship sourced in the doc-

trine of Christian discovery. Under that doctrine, this

Court judicially manufactured an extra-constitutional

congressional plenary authority to abrogate treaties

and regulate Native Nations. This manufactured au-

thority rests on the false assertion that our sovereignty

and free and independent existence were “necessarily

diminished” upon Christian European arrival on the

North American continent. Johnson v. M’Intosh, 21

US. (8 Wheat.) 543, 574 (1823). For nearly two centu-

ries this Court has dehumanized original, free, and in-

dependent Nations and Peoples by issuing decisions

and using language consistent with the doctrine’s reli-

gious and racist foundations—e.g., red man, uncivi-

lized, barbarous, ignorant, unlearned, non-Christians,

heathens, savages, infidels—all in an effort to manu-

facture a legal basis for the physical and cultural gen-

ocide of Native Peoples.

Here, the State urges this Court to discard the

Yakama Nation’s Treaty-reserved right to travel and

trade using precedent that is firmly rooted in the doc-

trine. This doctrine of domination and dehumaniza-

tion—Christian discovery—is not welcome within

Yakama Territory, and should no longer be tolerated in

United States law. The Yakama Nation respectfully

calls on this Court to repudiate the doctrine of Chris-

tian discovery and its racist foundations as the basis

for federal Indian law, and instead acknowledge and

rely upon the solemn Treaty negotiated between the

Yakama Nation and the United States in this dispute

and into the future.

A. Doctrine Of Christian Discovery—Ori-

gins And Historical Use By The Court.

Since time immemorial, those Nations that would

later be confederated as the Yakama Nation exercised

natural rights of sovereignty over our lands and Peo-

ples. Yakama culture, as protected and practiced by

thousands of us to this day, relies on the responsible

use of the Creator’s gifts of water, fish, game, roots, and

berries found within our lands. The Yakama Treaty

was negotiated to protect these reserved rights and

natural capital for our future generations, including

the preservation of our traditional system of trade be-

yond reservation boundaries. There is no document

more important to us than our Treaty. Just as it was

on June 9, 1855, the Yakama Treaty remains the foun-

dation for the Yakama Nation’s government-to-govern-

ment relationship with the United States today. What

the United States failed to explain during the Treaty

negotiations is that the doctrine of Christian discovery

threatened the unilateral abrogation of everything our

ancestors fought to preserve in the Yakama Treaty.

The doctrine of Christian discovery is the legal fic-

tion that Christian Europeans automatically acquired

legally recognized property rights in all Native lands

upon reaching the Americas, as well as governmental,

political, and commercial rights over the inhabitants

without the knowledge or consent of Native Peoples.

Robert J. Miller et al., Discovering Indigenous Lands 2

(2010). This doctrine was propagated by the Roman

Catholic Church through a series of papal bulls in the

15th century, including Pope Nicholas’ 1455 papal bull

authorizing Portugal to “invade, search out, capture,

vanquish, and subdue all Saracens and pagans” and to

place them into perpetual slavery and take their prop-

erty. Id. at 11. The Roman Catholic Church then imple-

mented a framework where the right to subjugate the

Americas was split between Spain and Portugal, alt-

hough they were later joined by other European states.

Id. at 12. The doctrine was therefore one of domination

and dehumanization of Native Peoples, and was used

to perpetuate the most widespread genocide in human

history. Robert A. Williams, Jr., The American Indian

in Western Legal Thought 317 (1990). The United

States relies on this genocidal religious doctrine to di-

minish Native sovereignty to this day.

This Court first applied the doctrine to Native Na-

tions in Johnson v. M’Intosh, thereby enshrining in

American jurisprudence “the legacy of 1,000 years of

European racism and colonialism directed against

non-Western peoples.” Jd. In M’Intosh, the Court con-

sidered a dispute over competing land claims that

hinged on the scope of the “power of Indians to give,

and of private individuals to receive, a title which can

be sustained in the Courts of this country.” 21 U.S. at

572. The dispute arose after the Illinois and Pi-

ankeshaw Nations sold certain parcels of land to a pri-

vate purchaser, and then sold the same land to the

United States. To address the competing land claims,

the Court determined that private citizens could not

purchase lands from Native Nations, and likewise that

Native Nations could not convey land to anyone but

the United States. In rejecting the Native Nations’

sovereign rights to sell their lands to whomever they

pleased, Chief Justice Marshall explained that:

It has never been doubted, that either the

United States, or the several States, had a

clear title to all the lands .. . subject only to

the Indian right of occupancy, and that the ex-

clusive power to extinguish that right, was

vested in that government which might con-

stitutionally exercise it.

Id. at 584-585. In other words, the Court found that the

United States holds clear title to all Native lands sub-

ject only to the Native Nation’s right of occupancy,

which the United States can terminate through pur-

chase or conquest. The basis for this holding is the doc-

trine of Christian discovery, which the Court described

as the principle “that discovery gave title to the gov-

ernment... against all other European governments,

which title might be consummated by possession.” /d.

at 573. Chief Justice Marshall detailed the effects of

the doctrine as giving the United States “ultimate do-

minion” over Native lands. Id. at 574. He used this re-

ligious doctrine of domination and dehumanization to

unilaterally deprive Native Nations of their sovereign

rights, racially juxtaposing the rights of “Christian

people” against those “heathens” and “fierce savages.”

Id. at 577, 590.

The domination imposed by M’Intosh constitutes

a sweeping and unsubstantiated deprivation of the

natural sovereign rights of Native Nations. By merely

setting foot on a fully populated North American con-

tinent, Christian Europeans and, as a successor, the

United States claimed a right to the real property of

all Native Nations. Chief Justice Marshall acknow!l-

edged this absurdity in his opinion, stating:

However extravagant the pretension of con-

verting the discovery of an inhabited country

into conquest may appear; if the principle has

been asserted in the first instance, and after-

wards sustained; if a country has been ac-

quired and held under it; if the property of the

great mass of the community originates in it,

it becomes the law of the land, and cannot be

questioned.

Id. at 591. Despite saying the doctrine could not be

questioned, he repeatedly questioned his reliance on

the doctrine in Worcester v. Georgia, 31 U.S. 515, 543-

545 (1832), asking how foreigners could claim property

rights and dominion over free nations of other places,

and how discovery of an already inhabited country an-

nulled the pre-existing rights of ancient possessors. Ar-

guably, Chief Justice Marshall overruled M’Intosh in

Worcester, explaining that the doctrine only gave the

United States “the exclusive right to purchase” Native

lands, rather than vesting fee title in the United States

subject only to the Native right of occupancy. Id. at 544.

However, this Court’s subsequent precedent largely re-

lies on M’Intosh rather than Worcester to define Native

sovereignty and land rights.

While the direct casualties of M’Intosh were Na-

tive land rights and the millions of Native Peoples who

died in the wake of the ongoing doctrine-based geno-

cide, the doctrine has been used regularly by this Court

to diminish Native sovereignty. In United States v.

Kagama, 118 U.S. 375 (1886), and Lone Wolf v. Hitch-

cock, 187 U.S. 553, 565-566 (1903), the Court an-

nounced Congress’ extra-constitutional plenary power

over all Indian affairs—the plenary power doctrine—

which it justified by pointing to Native Nations’ loss of

sovereign, diplomatic, economic, and property rights

upon first ‘discovery’ by Europeans. In The Cherokee

Tobacco, 78 U.S. (11 Wall.) 616 (1870), the Court ap-

plied the doctrine and held that Congress can unilat-

erally abrogate Treaty rights with subsequent

legislation unless there is an express exemption pro-

vided in the Treaty—the last-in-time doctrine. In Oli-

phant v. Suquamish Indian Tribe, 435 U.S. 191, 209

(1978), the Court deprived Native Nations of criminal

jurisdiction over non-members based on the statement

in M’Intosh that Native Nations’ rights “to complete

sovereignty, as independent nations, were necessarily

diminished” by European ‘discovery’—the diminished

tribal sovereignty doctrine.

Federal courts continue to use these judicial con-

structs to dominate Native Nations and narrow the le-

gal exercise of Treaty rights today. We see this as the

gradual push towards the outright judicial termina-

tion of Native Nations.

B. Opportunity To Repudiate The Doc-

trine Of Christian Discovery.

Applied here, both the State and the United States

ask the Court to rely on the doctrine to the detriment

of our Treaty-reserved rights. Both briefs rely on Wag-

non v. Prairie Band Potawatomie Nation, and inter-

changeably, Mescalero Apache Tribe v. Jones, for the

proposition that outside Indian Country, Indians are

subject to non-discriminatory state laws unless an ex-

press federal law says otherwise. Pet. Br. 20-21; United

States Br. 13. The Court in Mescalero cites Ward v.

Race Horse, 163 U.S. 504 (1896), for the same proposi-

tion, and in Race Horse the Court abrogated the 1868

Treaty with the Eastern Band Shoshoni and Bannock

Nation based on the transfer of the United States’

claim to absolute title over Native lands and Native

rights (i.e., the doctrine of Christian discovery) to Wy-

oming. In other words, both the State’s and United

States’ assertions under Wagnon and Mescalero are di-

rectly linked to the doctrine.

The same analysis is applicable to Chickasaw Na-

tion v. United States, which the State asserts for the

idea that state tax exemptions for Native peoples out-

side Indian Country must be clearly expressed and un-

ambiguously proved. Pet. Br. 20. When the Court

applied this legal concept in Chickasaw Nation, it re-

lied on United States v. Wells Fargo Bank, 485 U.S. 351

(1988), which cites to Oklahoma Tax Comm’n v. United

States, 319 U.S. 598 (1943), which cites to The Cherokee

Tobacco, which relies explicitly on the doctrine as

aforesaid. When the State argues for application of this

tax precedent to undermine our inherent sovereign

and Treaty-reserved rights, they are asking this Court

to continue wielding the sword of the religious, racist,

genocidal, fabricated doctrine of Christian discovery

against our People.

This Court’s most troubling decisions throughout

history have, in many instances, been repudiated by

later Courts. The ‘separate but equal’ doctrine that jus-

tified the segregation of American schools was upheld

in Plessy v. Ferguson, 163 U.S. 537 (1896), but over-

turned in Brown v. Board of Education, 347 U.S. 483

(1954). The right of interracial couples to marry was

denied in Pace v. Alabama, 106 U.S. 583 (1883), but up-

held in McLaughlin v. Florida, 379 U.S. 184 (1964), and

Loving v. Virginia, 388 U.S. 1 (1967). Poll taxes were

validated in Breedlove v. Suttles, 302 U.S. 277 (1937),

but deemed unconstitutional in Harper v. Virginia

State Board of Elections, 383 U.S. 663 (1966). These

cases rely on the Fourteenth Amendment which has no

bearing here, but the extra-constitutional justification

for the doctrine and related jurisprudence make the

doctrine of Christian discovery ripe for a similar re-

evaluation by this Court. Where a centuries-old doc-

trine no longer comports with the morals of the time,

the use of that doctrine should no longer withstand the

Court’s scrutiny.

We call on this Court to repudiate the doctrine of

discovery, and in this case and all future cases involv-

ing our inherent sovereignty and Treaty-reserved

rights, rely on the solemn promises made between the

United States and the Yakama Nation as the basis for

the Court’s legal analysis. Here, this counsels an analysis

that both starts and stops with the Yakama Treaty, in-

terpreted in accordance with the Treaty Minutes and

with deference to our ancestors’ understanding of the

Treaty pursuant to the canons of treaty construction.

ARGUMENT

For most people the domination and dehumaniza-

tion of Native Nations would cause grief. The State

sees it as an opportunity to collect revenue. For the

State, our history, Treaty, and reserved rights are an

inconvenience; however, an inconvenience to the State

does not justify undermining the Treaty-reserved

rights that shield our people from state laws that en-

cumber, condition, or restrict the exercise of our

Treaty-protected activities.

In defiance of the widely accepted history of our

people, the State asserts that nothing in our Treaty

preempts the State’s importation tax. Pet. Br. 17. The

State claims the Washington Supreme Court relied on

a “lopsided and incomplete description of how |our an-

cestors and the United States] allegedly understood

the treaty when it was signed.” Jd. The State then

claims that “[njothing in the treaty’s text or negotiat-

were creating a permanent right for the Yakamas to be

free of taxes on goods simply because they transport

those goods by highway.” /d.

In this revealing moment, the State details its true

intentions. The State asks this Court to align with its

self-serving narrative concerning the circumstances

and context under which the Treaty was forced upon a

free and independent people. The State seeks to ad-

vance a false narrative that contradicts our ancestors’

understanding, as confirmed by historians and ac-

cepted as findings of fact by both this Court and others.

The State asks this Court to rewrite our history and

undermine the promises guaranteed to our ancestors

in 1855. The State’s intentions are revisionist history

at its worst.

The self-serving narrative offered by the State is

patently offensive and must be rejected. The United

States negotiated the Yakama Treaty to avoid conflict,

secure certain rights to millions of acres of land for set-

tlers, and to build a railroad across our homelands. The

record shows that our ancestors understood the Treaty

to preserve their tradition of extensive travel and trade

without economic restrictions. See Cree Il, 157 F.3d at

769 (the public highway clause “guarantee(s] the Yak-

amas the right to transport goods to market over pub-

lic highways without payment of fees for that use.”).

Our understanding of this sacred Treaty right is con-

sistent with the unequivocal promises made by the

United States’ negotiators in 1855 that “you can rely

on all its provisions being carried out strictly.”

Minutes, App. B 51 (emphasis in original).

The relevant inquiry for this Court is our under-

standing of the Yakama Treaty’s public highway clause

within the Treaty’s historical context. See Mille Lacs

Band, 526 U.S. at 196 (when interpreting a treaty

courts must “look beyond the written words to the

larger context that frames the Treaty, including ‘the

history of the treaty, the negotiations, and the practical

construction adopted by the parties.’”). The record of

the Walla Walla Council negotiations reflects that the

parties intended to preserve the traditional system of

trade and exchange we had engaged in since time im-

memorial. This Court should interpret the Yakama

Treaty consistent with this well-documented truth.

I. ARTICLE Itl OF THE YAKAMA TREATY

RESERVES THE YAKAMA NATION’S RIGHT

TO TRAVEL AND TRADE OUTSIDE THE

YAKAMA RESERVATION.

A. Since Time Immemorial, Travel And

Trade Have Been Central To Yakama

Culture And Traditions.

In pre-contact times our ancestors ranged over

12,000,000 acres from the confluence of the Columbia

and Methow Rivers southwesterly along the Columbia

to the Cascade Range. This territory included Mount

Adams in the Cascades and the north side of the Snake

River, downstream of the confluence of the Palouse.

From this territory, our ancestors traveled to fish, hunt

and trade both westward to the Puget Sound and

Willamette Valley, and eastward to the buffalo country

in the Plains. Above all, our ancestors were people of

the land who followed a seasonal cycle of movement

that was governed by kinship, cultural practices, geog-

raphy, climate, and availability of resources. See

Yakama Indian Nation, 955 F. Supp. at 1238, 1262-

1263. Freedom of movement was key to our ancestors’

way of life, and it remains so today.

In economic terms, the lands, waters and salmon

producing capacity of our traditional territories repre-

sented the ‘natural capital’ upon which our ancestors

depended. This natural capital produced the annual

harvests of salmon and other fish, of game, and of roots,

berries and plants that our ancestors used to survive

and prosper. They “traded these items for goods such

[as] buffalo products, especially buffalo hide and dried

buffalo meat.” Jd. at 1238. This traditional system of

trade and exchange supported their subsistence, reli-

gious and cultural practices, and “|t)herefore, propi-

tious trading was considered the art of survival.” Jd. at

1239 (internal quotations omitted).

Our ancestors’ way of life depended on goods that

were not available in the immediate area. In addition

to the constant trading between the fourteen tribes

and bands that now comprise the Yakama Nation, our

ancestors traveled “to the Pacific Coast, the Columbia

River, the Willamette Valley, California, and the plains

of Wyoming and Montana to engage in trade” with

other Native Nations. Jd. at 1238. They also traded

goods with non-Indians, including settlers and com-

mercial traders such as those from the Hudson’s Bay

Company. Jd. Our ancestors, given their central loca-

tion, were the linchpin in a well-defined trading net-

work involving the exchange of goods and services

existing between Native Nations throughout the Pa-

cific Northwest and surrounding areas.

B. Territorial Governor Isaac Stevens Knew

The Importance Of Trade And Travel To

Our Ancestors Prior To Negotiating The

Yakama Treaty.

The United States claimed the area now embraced

within the State of Washington by discovery, settle-

ment, and by extinguishing the conflicting claims of

Spain (1819), Russia (1824), and Great Britain (1846)

by treaty. United States v. Washington, 384 F. Supp.

312, 353 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir.

1975). In 1848 Congress established the Oregon Terri-

tory, 9 Stat. 323 (Aug. 14, 1848), and in 1850 Congress

authorized the negotiation of treaties to extinguish In-

dian title to lands lying in the Oregon Territory. 9 Stat.

437 (June 5, 1850). The Washington Territory—includ-

ing the present day State of Washington—was then or-

ganized out of the Oregon Territory in 1853. 10 Stat.

172 (Mar. 2, 1853).

The United States was under pressure to negoti-

ate treaties with Native Nations in the eastern Wash-

ington Territory because our lands were important for

future settlement plans. To accomplish this task, the

United States authorized Isaac Stevens, Governor of

the Washington Territory, and General Joel Palmer,

Superintendent of Indian Affairs in the Oregon Terri-

tory, to negotiate treaties on the United States’ behalf.

Governor Stevens was prompted to extinguish title to

lands belonging to our ancestors, or obtain a right of

way through our lands, for the purpose of constructing

a railroad route through the Cascade Mountains to Pu-

get Sound, and to secure land for settlers moving into

the Washington Territory. Washington v. Fishing Vessel

Ass’n, 443 U.S. 658, 699 (1979) (Stevens, J., dissenting).

The evidence reflects that Governor Stevens and

his emissaries had significant knowledge of our char-

acter and lifestyle as the grea. traders and travelers of

the Central Plateau. In the years before the Treaty,

Governor Stevens’ emissaries described our ancestors

as “manifesting a peculiar aptitude for trading,” pur-

chasing from the settlers “feathers, beads, cloth, and

other articles prized by Indians,” and “exchanging

them for horses, which they in turn sell in the settle-

ments.” See Report of Mr. George Gibbs to Captain

Mc’Clellan, on the Indian Tribes of the Territory of

Washington, March 4, 1854, published as Indian Tribes

of the Washington Territory 3 (1978).

They recognized the existence of our trading

routes, noting that our ancestors were persistent trad-

ers west of the Cascade Mountains, traveling on trails

through “the [Naches] and main Yakima passes, taking

horses for sale to Nisqually, and to purchasing [denta-

lium shells], dried clams, and other savage merchan-

dise, on their return.” Jd. at 8; see also United States v.

Washington, 384 F. Supp. at 380 (finding our ancestors

traded with Native Nations west of the Cascade Moun-

tains using trails through the Snoqualmie, Naches,

and Stevens passes). They knew our trading routes

reached the Nez Perce Country in the Snake River

basin. Report of A.J. Bolon to His Excellency Isaac I.

Stevens, Governor and Superintendent of Indian

Affairs, Washington Territory, September 30, 1854,

records of the Washington Superintendent of Indian

Affairs 1853-1874 (stating “I learned from him that a

route exists from the Salmon Falls of the Snake to the

Yakima, much shorter than any pursued by the whites,

& without hills.”).

Governor Stevens’ emissaries also knew that our

ancestors traveled to and controlled parts of the

Willamette River system in Oregon, stating: “[t|hey

thus became acquainted with other parts of the coun-

try, as well as with the advantage to be derived from

trade. It was not, however, until about 1839 that they

crossed the Columbia, when they overran the Willa-

mette valley, attracted by the game with which it

abounded, and which they destroyed in defiance of the

weak and indolent Callapooyas. They still boast that

they taught the latter to ride and hunt.” Report of Mr.

George Gibbs, 3. This route was the principal route

traveled by our ancestors to reach our trading center

and fisheries at Celilo Falls and beyond.‘

Pre-Treaty, Governor Stevens knew our ancestors

were the linchpin to a trading confederacy. They knew

our ancestors controlled the Central Plateau and

traveled regularly to the Willamette Valley, to the

Puget Sound, and to the Plains. They knew that travel

for the purpose of trade was crucial to our ancestors’

existence. See Yakama Indian Nation, 955 F. Supp. at

* Present day, Cougar Den, Inc. uses this same trade route

to transport goods to market via public highway by traveling to

and from the Yakama Reservation through Satus Pass and across

1238-1240, 1263. This was the context within which

the Yakama Treaty was negotiated.

C. The Treaty Signatories Understood Ar-

ticle Ill To Reserve The Right To Con-

tinue Traveling And Trading As They

Had Before The Treaty.

The historical record establishes that prior to the

Yakama Treaty, the United States was aware of the im-

portance of travel and trade to our ancesters. The

United States also knew our ancestors would not ne-

gotiate without preserving these rights. Armed with

this knowledge, Governor Stevens and General Palmer

called our ancestors to join the Walla Walla Council in

1855. There was, however, no enthusiasm for the Coun-

cil among Kamaiakun, Skloom, Owhi, Te-cole-kun, La-

hoom, Koo-lat-toose, Sch-noo-a, Me-ni-nock, Shee-ah-

cotte, Sla-kish, Elit Palmer, Tuckquille, Wish-och-knm-

pits, Ka-loo-as and other head chiefs, chiefs, head-men,

and delegates of the Yakama, Palouse, Pisquouse,

Wenatshapam, Klikatat, Klinquit, Kow-was-say-ee, Li-

ay-was, Skin-pah, Wish-ham, Shyiks, Oche-chotes,

Kah-milt-pah, and Se-ap-cat Nations. App. 2, 13. Their

attendance had been solicited under threat of genocide.

Earlier in 1854, Governor Stevens had met with Ow-hi

and asked that he deliver a message to the Native lead-

ers indicating that a council be gathered and that the

soldiers would come and “wipe them off the face of the

earth .. .” if they refused to negotiate a treaty. See A.J.

Splawn, Ka-mi-akin, the last hero of the Yakimas 31

(1917).

These threats continued during the Treaty negoti-

ations. When Kamaiakun told Governor Stevens that

he would not grant land to the United States and that

he was heading home, Governor Stevens held the

Treaty up and exclaimed that if the tribal leaders did

not sign, “you will walk in blood knee deep.” See An-

drew Pambrun, Sixty Years on the Frontier in the Pa-

cific Northwest 95 (1978) (relating the conversation

between Governor Stevens and our ancestors at the

Walla Walla Council from his perspective as Governor

Stevens’ interpreter). Given this ‘incentive’, our ances-

tors signed knowing that refusal would result in death.

Further, the Treaty negotiations took place en-

tirely through interpreters using the Chinook jargon,

which consisted of only 300 words developed for com-

mercial interactions rather than being the primary

language of any Native Nation. Fishing Vessel, 443 U.S.

at 667 n.10. Many of the United States’ representa-

tions did not have an adequate translation in our lan-

guage. Id.; see also United States v. Washington, 384

F. Supp. at 356 (observing that Chinook jargon was in-

adequate to express the legal effects of the treaties,

and that many Indians did not understand Chinook

jargon).

Despite these challenges, the verbal promises

made by the United States’ negotiators were captured

in Treaty Minutes taken by the United States. App. B

15-117. These Minutes and the historical record must

be relied upon when determining our Treaty’s mean-

ing. See Mille Lacs Band, 526 U.S. at 196 (courts must

“look beyond the written words to the larger context

that frames the Treaty, including the history of the

treaty, the negotiations, and the practical construction

adopted by the parties.”); see also Fishing Vessel, 443

US. at 676 (holding that in three prior cases concern-

ing the Yakama Treaty, this Court construed the rights

reserved by Article III “not according to the technical

meaning of its words to learned lawyers, but in the

sense in which they would naturally be understood by

four ancestors]”).

The United States made numerous promises and

representations to our ancestors during the Walla

Walla Council. The United States promised that if our

ancestors agreed to cede certain rights in over

10,000,000 acres of land and move to the Yakama Res-

ervation—an area just one-tenth the size of the lands

ceded—they would reserve forever the right to exercise

their traditional way of life, including their traditional

system of trade and exchange. As captured in the

Treaty Minutes, the subject of travel and trade was an

issue “of significant importance to both [our ancestors]

and Governor Stevens.” See Yakama Indian Nation,

955 F. Supp. at 1266.

At no less than five (5) places in the Treaty

Minutes, the United States promised our ancestors

that they would be allowed unrestricted travel over the

roads to support their trading endeavors. Governor

Stevens supported the Reservation’s location based on

its proximity to the ‘great road’, stating “[ylou will be

near the great road and can take your horses

and your cattle down the river and to the Sound

to market.” App. B 64 (emphasis in original). Twice

more he emphasized the unrestricted right to use the

highways for trading: “Lylou will be allowed to go

on the roads to take your things to market, your

horses and cattle,” and also that our ancestors,

“shall have the same liberties outside the Reser-

vation to pasture animals on land not occupied

by whites, to kill game, to get berries and to go

on the roads to market.” App. B 68, 71 (emphasis in

original).

Governor Stevens’ assurances of unrestricted use

of roads for the express purpose of trade were sup-

ported by General Palmer, who explained “|mly

Brother has stated that you will be permitted to travel

the roads outside the Reservation” and, “|nlow as we

give you the privilege of traveling over roads, we want

the privilege of making and traveling roads through

your country, but whatever roads we make through

your country will not be for injury.” App. B 73, 74.

These representations were understood by our an-

cestors as more than mere platitudes, puffery, or aspi-

rational statements. Our ancestors “relied on these

promises and they formed a material and basic part of

the treaty and lour ancestors’] understanding of the

meaning of the treaty.” United States v. Washington,

384 F. Supp. at 381. “As the Treaty minutes reflect,

|Governor| Stevens unconditionally guaranteed that

lour ancestors] would have the right to take their .. .

goods to market,” and the “statements regarding [our

ancestors’|] use of the public highways to take their

goods to market clearly and without ambiguity prom-

ised [our ancestors] the use of public highways without

restriction for future trading endeavors.” Yakama In-

dian Nation, 955 F. Supp. at 1253, 1265.

The Treaty language, the Treaty Minutes, and the

historical record are graphic and consistent. They tell

only one story—the United States received the cession

of certain rights in over 10,000,000 acres of land, and

in return our ancestors reserved a guaranty of unre-

stricted off-Reservation activities, including the use of

the public highways without restriction to preserve

and continue our ancestors’ traditional system of trade

and exchange.

Il. THE YAKAMA NATION’S RIGHT TO TRAVEL

INCLUDES THE RIGHT TO TRADE FREE

FROM ENCUMBRANCE BY THE STATE.

It is a well-established canon of treaty construc-

tion that the Yakama Treaty’s provisions must be in-

terpreted “in the sense in which they would naturally

be understood by [our ancestors].” Fishing Vessel, 443

U.S. at 676; see also Tulee v. United States, 315 U.S. 681,

684-685 (1942) (stating “(i]t is our responsibility to see

that the terms of the treaty are carried out .. . in ac-

cordance with the meaning they were understood to

have by the tribal representatives at the council”). The

Ninth Circuit applied this analytical framework to our

right to travel and trade in Cree v. Waterbury, 78 F.3d

1400 (9th Cir. 1996), which addressed the Yakama

Treaty’s preemptive effect on state commercial licens-

ing regulations and fees. In holding that the district

court failed to develop the factual record necessary to

determine “what |our ancestors] understood their

right to use government-built highways to encompass,”

the Ninth Circuit expressly rejected the State’s argu-

ment that we “bear the burden of proving a [state] tax

exemption in the Treaty.” Jd. at 1403. The Ninth Cir-

cuit remanded with instructions that the district court

“undertake a factual inquiry into the intent and under-

standing of the parties at the time the Treaty was

signed to determine the meaning of the [Article III]

highway right.” Jd. at 1404.

On remand, United States District Court Judge

Alan McDonald undertook a Fishing Vessel treaty

analysis and carefully parsed out the meaning of Arti-

cle III’s public highway clause. Yakama Indian Nation,

955 F. Supp. 1229. Judge McDonald concluded that,

“the language of the Treaty, when viewed in historical

context as [our ancestors] would have understood it,

unambiguously reserves to [our people] the right to

travel the public highways without restriction for pur-

poses of hauling goods to market.” Jd. at 1248. He ruled

that the Treaty “precludes the state from imposing li-

censing and permitting fees and registration require-

ments indirectly exacting such fees on [our] trucks

when hauling tribal goods to market.” Jd. at 1249.

Washington appealed to the Ninth Circuit, who

again relied on Fishing Vessel to affirm the district

court’s findings, conclusions, and grant of summary

judgment in favor of our People. Cree Il, 157 F.3d 762.

The Ninth Circuit praised the district court’s “careful

inquiry into the intentions of the parties at Walla

Walla,” Id. at 774, observing that the “district court

eloquently set forth its findings that travel was of great

importance to |our ancestors], that they enjoyed free

access to travel routes for trade and other purposes at

Treaty time, and that they understood the Treaty to

grant them valuable rights that would permit them to

continue in their ways.” /d. at 769. Consistent with this

Court’s canons of treaty construction, the Ninth Cir-

cuit affirmed that the Article III public highway clause

“must be interpreted to guarantee lour people] the

right to transport goods to market over public high-

ways without payment of fees for that use.” Jd.

A. Article [iI’s Public Highway Clause

Reserved The Yakama Nation’s Right

To Conduct Economic Activities Be-

yond The Reservation Boundaries.

Judge McDonald interpreted our right to travel

and trade beyond reservation boundaries without re-

striction or condition attached by looking at both the

Treaty’s written text and the larger historical context

of the Treaty negotiations. Yakama Indian Nation, 955

F. Supp. 1229. In doing so, the district court found that

prior to the Treaty’s signing, the historical record “un-

questionably depicts a tribal culture whose manner of

existence was ultimately dependent on [our ancestors’)

ability to travel,” that “far-reaching travel was an in-

trinsic ingredient in virtually every aspect of [our an-

cestors’] culture,” that “|tjravel was significant for

many reasons, including trade,” and that our ancestors

“had a well-known reputation for being ‘inveterate

traders’” with extensive trading practices exercised

“throughout the Northwest and beyond.” Jd. at 1238.

Judge McDonald’s review of the historical record

illuminated the parties’ express intention to preserve

our ancestors’ traditional system of trade and “modern

economic enterprise” that was “secured uncondition-

ally and without restriction....” Jd. at 1249, 1253.

Thus, the district court found that the United States’

“statements regarding |our ancestors’) use of the pub-

lic highways to take their goods to market clearly and

without ambiguity promised [our ancestors] the use of

public highways without restriction for future trading

endeavors.” Id. at 1265.

Judge McDonald also rejected the State’s argu-

ment that Article III, paragraph 1’s ‘in common with’

language meant we were to be placed on equal footing

with non-Indians and subject to the same restrictions.

Id. at 1246-1256. Rather, Judge McDonald held that,

“it seems clear that [our ancestors] understood the

term ‘in common with’ as common usage among Indi-

ans and non-Indians with no restriction placed upon

tribal members,” and that the historical record sup-

ported finding that the term ‘in common with’ was un-

derstood by both parties to mean that our ancestors:

“retained the right to travel the public roads,

on and off-reservation, and that right would

be exercised ‘in common with’ non-Indians.

In other words, both [our ancestors] and non-

Indians would use the public roads simulta-

neously.”

Id. at 1247. Based upon the evidence before it, the dis-

trict court found that our ancestors understood that

Article Il, paragraph 1’s ‘in common with’ language

would not limit or restrict our right to travel on public

highways for purposes of trade.

Given this extensive factual review, the Ninth Cir-

cuit affirmed the district court and held that Article

Ill, paragraph 1 of the Yakama Treaty “guarantee(s|)

the Yakamas the right to transport goods to market

over public highways” outside the Reservation’s

boundaries, free from “payment of fees for that use.”

Cree Il, 157 F.3d at 769. The Ninth Circuit in Cree I

declined the State’s invitation to interpret the ‘in com-

mon with’ language found in Article II], paragraph 1,

“against the grain of Supreme Court precedent and in

contravention of the district court’s factual inquiry into

the meaning of the [‘in common with’] language in the

context of the Treaty.” Id. at 771-772.

The State is precluded from challenging this set-

tled law. Once a court has decided an issue of fact or

law necessary to its judgment, that decision precludes

relitigation of the issue in a suit on a different cause of

action involving a party to the first case. Montana v.

United States, 440 U.S. 147, 153 (1979). The issue of

whether Article III, paragraph 1 secures our right to

travel and preserves our traditional system of trade

and exchange beyond our Reservation’s boundaries

was decided in proceedings identical to that which the

State seeks to relitigate here. The Ninth Circuit’s opin-

ion and order in Cree II is a final judgment on the mer-

its, and the parties to that action are the same parties

or are in privity with the parties here. Issues of fact

and law affirmed by Cree II are “forever settled as be-

tween the parties,” and the State is precluded from ob-

taining such relief in this action. See B & B Hardware,

Inc. v. Hargis Indus., Inc., US. (2015) (quoting

Baldwin v. Iowa State Traveling Men’s Ass'n, 283 U.S.

522, 525 (1931)). Moreover, the State did not appeal the

decision below that those findings have preclusive ef-

fect in this case.

B. In Common With Was Never Understood

By The Yakamas To Limit Our Rights.

The historical findings of Yakima Indian Nation

(and in turn, Cree II) are consistent with this Court’s

precedent. On the surface, the language of the Yakama

Treaty seems unequivocal. Article III, paragraph 1 se-

cures our right to “travel upon all public highways.” 12

Stat. at 952-953, App. A 6. This right, however, contains

an important qualification. It is a “right . . .” reserved

“in common with citizens of the United States . . .” Jd.

The definition of ‘in common with’ has a long history

before this Court. Persons and states who opposed the

reservation of sovereign rights to our People have ar-

gued that the term ‘in common with’ meant that our

Treaty reserved nothing more than the rights held by

any other citizen. This Court—in no fewer than four

previous occasions—rejected that argument, finding

that Article [II reserved to us specific and important

rights. In each of these opinions, this Court empha-

sized the importance of applying the canons of treaty

construction to interpret our Treaty as our ancestors

understood it at the Walla Walla Council in 1855.

This Court’s first Yakama Treaty-related opinion,

United States v. Winans, 198 U.S. 371 (1905), was de-

cided fewer than fifty years after the Senate ratified

our Treaty. This Court held that judicial interpretation

of the rights reserved in the Yakama Treaty required

consideration of evidence beyond the Treaty language

itself:

[The district court] decided that the Indians

acquired no rights but what any inhabitant of

the territory or state would have. Indeed, ac-

quired no rights but such as they would have

without the treaty. This is certainly an im-

potent outcome to negotiations and a

convention which seemed to promise

more, and give the word of the nation for

more. And we have said we will construe a

treaty with the Indians as “that unlettered

people” understood it, and “as justice and rea-

son demand, in all cases where power is ex-

erted by the strong over those to whom they

owe care and protection,” and counterpoise

the inequality “by the superior justice which

looks only to the substance of the right, with-

out regard to technical rules.” How the treaty

in question was understood may be gathered

from the circumstances.

Id. at 380-381 (citations omitted) (emphasis added). In

Winans, this Court found that Article III's “right of tak-

ing fish in common with citizens . . .” language, as un-

derstood by our ancestors, encompassed broader rights

than those held by ordinary citizens, including perpet-

ual easements over private lands for the exercise of

such rights despite the Treaty’s silence on that issue.

198 U.S. at 384.

In Seufert Bros. Co. v. United States, 249 U.S. 194

(1919), this Court held that Article III's “right of taking

fish in common with citizens ...” language imposed

the same easernent on lands in Oregon, even though

Oregon was outside the boundaries of the lands ceded

by our ancestors. The Court reasoned that efforts “[t]o

restrain [us] to fishing on the [Washington] side of the

shore of the [Columbia] river would greatly restrict the

comprehensive language of the treaty, ... and would

substitute for the natural meaning of the expression

used, .. . the artificial meaning which might be given

to it by the law and by lawyers.” Jd. at 199.

In 1942, this Court determined that Article III's

“right of taking fish in common with citizens...” lan-

guage specifically included the right to do so without

the payment of fees to the State for the exercise of that

reserved right. Tulee, 315 U.S. 681. Justice Hugo Black

wrote for a unanimous Court and determined that

such a fee, even though applied in a non-discrimina-

tory manner, “acts upon [us] as a charge for exercising

the very right their ancestors intended to reserve .. .

land] that such exaction of fees as a prerequisite to the

enjoyment lof our Treaty-reserved rights] cannot be

reconciled with a fair construction of the treaty.” Id. at

685.

Again in 1979, this Court interpreted Article III as

guaranteeing more than the same access to the re-

sources as held by all citizens. In Fishing Vessel, this

Court confirmed:

It is true that the words “in common with”

may be read either as nothing more than a

guarantee that individual Indians would have

the same right as individual non-Indians or as

securing an interest in the fish runs them-

selves.... But we think greater im-

portance should be given to the Indians’

likely understanding of the other words

in the treaty and especially the reference to

the “right of taking fish”—a right that had no

special meaning at common law but that must

have had obvious significance to the tribes re-

linquishing a portion of their pre-existing

rights to the United States in return for this

promise... .

This interpretation is confirmed by additional

language in the treaties. The fishing clause

speaks of “securing” certain fishing rights, a

term the Court has previously interpreted as

synonymous with “reserving” rights previ-

ously exercised.

443 U.S. at 677-679 (citations omitted) (emphasis

added).

It is therefore clear from the record and the prece-

dent of this and other courts, that the ‘in common with’

language employed in Article III, paragraph 1 of the

Yakama Treaty serves as a reservation of our right to

travel and trade beyond the Reservation’s exterior

boundaries just as our ancestors did prior to the

Treaty, and free from State-imposed conditions or re-

strictions.

C. The Treaty Preempts Non-Discrimina-

tory State Regulations That Conflict

With The Treaty And Generate Reve-

nue For The State.

The relationship between federal and state gov-

ernments, so far as it concerns Native Nations and peo-

ples, is controlled by the Supremacy Clause and its

concept of preemption. The Supremacy Clause pro-

vides that, “Laws of the United States . . . and all Trea-

ties ... made, under the Authority of the United

States, shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. art. VI, § 2.

No distinction is drawn between treaties made

with Native Nations and those made with foreign na-

tions. United States v. 43 Gallons of Whiskey, 93 U.S.

188, 197 (1876); Worcester v. Georgia, 31 U.S. at 559.

Thus, in the area of federal Indian law, the Supremacy

Clause has been consistently and forcefully applied.

Williams v. Lee, 358 U.S. 217 (1959). Appropriately,

when a treaty and state law conflict, the treaty controls

and the state law must yield. Zschernig v. Miller, 389

U.S. 429, 440-441 (1968); Clark v. Allen, 331 U.S. 503,

508 (1947); Missouri v. Holland, 252 U.S. 416, 433-435

(1920).

As applied, the State may not enforce its regula-

tions against Cougar Den when they conflict with

rights reserved under Article III of the Yakama Treaty,

even when, as alleged here, the State law is non-dis-

criminatory and directed at off-Reservation activity.

Pet. Br. 16. In Tulee, a Yakama fisherman contended

that a state statute compelling him to obtain a license

in order to fish off-Reservation violated Article III. 315

U.S. 681. This Court held that the imposition of licens-

ing fees was impermissible because it acts as a charge

for exercising the very right our ancestors intended to

reserve. Id. at 684-685. Following this principle, the

district court in Yakama Indian Nation likewise held

that the State’s non-discriminatory road use regula-

tions (license and permitting fees) meant for preserva-

tion and maintenance of the roads do not overcome our

Treaty-reserved Article III rights when those regula-

tions, just as in Tulee, are designed to generate revenue

to support the State government and its institutions.

955 F. Supp. at 1255.

In light of Tulee and Yakama Indian Nation, the

Washington Supreme Court held that the Yakama

Treaty is a federal law that preempts laws of the State

that place a condition on our use of public highways

affecting our Article III right to transport goods to mar-

ket without restriction. Cougar Den, 188 Wash. 2d at

68-69. It found such restriction to be more than simple

regulation of a Treaty-protected activity, with the li-

censing requirement here serving as a vehicle for tax

collection and therefore not falling under any regula-

tory exception. Id. at 67.

Tulee and Yakama Indian Nation make clear that

while our people may be expected to accommodate the

State when exercising our Treaty-reserved rights, or

even acquiesce to some types of regulation when the

public good is served, accommodation does not mean

subsidization. Under Tulee’s precedent, we cannot be

compelled to pay the State to exercise the very rights

our ancestors reserved by Treaty.

CONCLUSION

The facts before this Court concerning the Treaty

negotiations are clear as to what the United States

promised our ancestors. Article III, paragraph 1 of the

Yakama Treaty reserved our tradition of extensive

travel and trade without economic restrictions. Our

ancestors’ understanding is consistent with the une-

quivocal representations made by the United States at

the Walla Walla Council in 1855.

As implemented, the State’s fuel importation tax

encumbers and imposes conditions on an express

Treaty-protected activity—the transportation of goods

to market. The State’s effort to fine Cougar Den for

traveling in noncompliance with the conditions of its

importation regulation must yield to the promises

made to our ancestors in 1855. The State wishes Gov-

ernor Stevens had negotiated a more limited Treaty or,

better yet, none at all. But he did not, and the commit-

ments the United States made in 1855 are commit-

ments that survive into the 21st century.

The Yakama Nation respectfully requests that

this Court affirm the Washington State Supreme

Court’s holding.

Respectfully submitted,

ETHAN JONES

P.O. Box 150, 401 Fort Road

Toppenish, WA 98948

(509) 865-7268

ethan@yakamanation-olc.org

marcus@yakamanation-olc.org

Counsel for Amicus Curiae

App. |

APPENDIX A

12 Stat. 951

(TREATY)

TREATY WITH THE YAKAMAS, 1855.

June 9, 1855.

WHEREAS a treaty was made and concluded at the

Treaty Ground, Camp Stevens, Walla-Walla Valley,

on the ninth day of June, in the year one thousand

eighth hundred and fifty-five, between Isaac I.

Stevens, governor, and superintendent of Indian

affairs, for the Territory of Washington, on the part

of the United States, and the hereunder named head

chiefs, chiefs, headmen, and delegates of the

Yakama, Palouse, Pisquouse, Wenatshapam,

Klikatat, Klinquit, Kow-was-say-ee, Li-ay-was, Skin-

pah, Wish-ham, Shyiks, Oche-chotes, Kah-milt-pah,

and Se-ap-cat, confederate tribes and bands of

Indians, occupying lands lying in Washington

Territory, who, for the purposes of this treaty are to

be considered as one nation, under the name of

“Yakama,” with Kamaiakun as its head chief, on

behalf of and acting for said bandes and tribes, and

being duly authorized thereto by them; which treaty

is in the words and figures following, to wit:

App. 2

Articles of agreement and convention made and

concluded at the treaty-ground, Camp Stevens, Wa-!a-

Walla Valley, this ninth day of June, in the year one

thousand eight hundred and fifty-five, by and between

Isaac I. Stevens, governor and superintendent of Indian

affairs for the Territory of Washington, on the part of

the United States, and the undersigned head chiefs,

chiefs, headmen, and delegates of the Yakama,

Palouse, Pisquouse, Wenatshapam, Klikatat, Klinquit,

Kow-was-say-ee, Li-ay-was, Skin-pah, Wish-ham,

Shyiks, Oche-chotes, Kah-milt-pah, and Se-ap-cat,

confederated tribes and bands of Indians, occupying

lands hereinafter bounded and described and lying in

Washington Territory, who for the purposes of this

treaty are to be considered as one nation, under the

name of “Yakama,” with Kamaiakun as its head chief,

on behalf of and acting for said tribes and bands, and

being duly authorized thereto by them.

App. 3

ARTICLE 1

The aforesaid confederated tribes and bands of Indians

hereby cede, relinquish, and convey to the United

States all their right, title, and interest in and to the

lands and country occupied and claimed by them, and

bounded and described as follows, to wit:

Commencing at Mount Ranier, thence northerly along

the main ridge of the Cascade Mountains to the point

where the northern tributaries of Lake Che-lan and the

southern tributaries of the Methow River have their

rise; thence southeasterly on the divide between the

waters of Lake Che-lan and the Methow River to the

Columbia River; thence, crossing the Columbia on a

true east course, to a point whose longitude is one

hundred and nineteen degrees and ten minutes, (119

degrees 10’,) which two latter lines separate the above

confederated tribes and bands from the Oakinakane

tribe of Indians; thence in a true south course to the

forty-seventh (47 degrees) parallel of latitude; thence

east on said parallel to the main Palouse River, which

two latter lines of boundary separate the above

confederated tribes and bands from the Spokanes;

thence down the Palouse River to its junction with the

Mob-hah-ne-she, or southern tributary of the same;

thence in a southesterly direction, to the Snake River,

at the mouth of the Tucannon River, separating the

above confederated tribes from the Nez Perce tribe of

Indians; thence down the Snake River to its junction

with the Columbia River; thence up the Columbia River

to the “White Banks” below the Priest’s Rapids; thence

westerly to a lake called “LaLac;” thence southerly to a

App. 4

point on the Yakama River called Toh-mah-luke;

thence, in a southwesterly direction, to the Columbia

River, at the western extremity of the “Big Island,”

between the mouths of the Umatilla River and Butler

Creek; all which latter boundaries separate the above

confederated tribes and bands from the Walla-Walla,

Cayuse, and Umatilla tribes and bands of Indians;

thence down the Columbia River to midway between

the mouths of White Salmon and Wind Rivers; thence

along the divide between said rivers to the main ridge

of the Cascade Mountains; and thence along said ridge

to the place of beginning.

ARTICLE 2

There is, however, reserved, from the lands above

ceded for the use and occupation of the aforesaid

confederated tribes and bands of Indians, the tract of

land included within the following boundaries, to wit:

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 Klickatat and Pisco Rivers; thence down

said spur to the divide between the waters of said

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

»atass River; and thence up the Yakama River to the

place of beginning.

App. 5

All which tract shall be set apart and, so far as

necessary, surveyed and marked out, for the exclusive

use and benefit of said confederated tribes and bands

of Indians, as an Indian reservation; nor shall any

white man, excepting those in the employment of the

Indian Department, be permitted to reside upon the

said reservation without permission of the tribe and

the superintendent and agent. And the said

confederated tribes and bands agree to remove to, and

settle upon, the same, within one year after the

ratification of this treaty. In the mean time it shall be

lawful for them to reside upon any ground not in the

actual claim and occupation of citizens of the United

States; and upon any ground claimed or occupied, if

with the permission of the owner or claimant.

Guaranteeing, however, the right to all citizens of the

United States to enter upon and occupy as settlers any

Indians at this time, and not included in the

reservation above named.

And provided, That any substantial improvements

heretofore made by any Indian, such as fields enclosed

and cultivated, and houses erected upon the lands

hereby ceded, and which he may be compelled to

abandon in consequence of this treaty, shall be valued,

under the direction of the President of the United

States, and payment made therefor in money; or

improvements of an equal value made for said Indian

upon the reservation. And no Indian will be required to

abandon the improvements aforesaid, now occupied by

him, until their value in money, or improvements of an

equal value shall be furnished him as aforesaid.

ais eit diene ef Ge Gated Gee tes, to travel

upon all public highways.

The exclusive right of taking fish in all the streams,

where running through or bordering said reservation,

is further secured to said confederated tribes and bands

of Indians, as also the right of taking fish at all usual

the Territory, and of erecting temporary buildings for

curing them; together with the privilege of hunting,

gathering roots and berries, and pasturing their horses

and cattle upon open and unclaimed land.

App. 7

ARTICLE 4

In consideration of the above cession, the United States

agree to pay to the said confederated tribes and bands

of Indians, in addition to the goods and provisions

distributed to them at the time of signing this treaty,

the sum of two hundred thousand dollars, in the

following manner, that is to say: Sixty thousand

dollars, to be expended under the direction of the

President of the United States, the first year after the

building houses for them, supplying them with

provisions and a suitable outfit, and for such other

objects as he may deem necessary, and the remainder

in annuities, as follows: For the first five years after

the ratification of the treaty, ten thousand dollars each

year, commencing September first, 1856; for the next

five years, eight thousand dollars each year; for the

next five years, six thousand dollars per year; and for

the next five years, four thousand dollars per year.

All which sums of money shall be applied to the use

and benefit of said Indians, under the direction of the

President of the United States, who may from time to

time determine, at his discretion, upon what beneficial

objects to expend the same for them. And the

superintendent of Indian affairs, or other proper

officer, shall each year inform the President of the

wishes of the Indians in relation thereto.

App. 8

ARTICLE 5

The United States further agree to establish at suitable

points within said reservation, within one year after

the ratification hereof, two schools, erecting the

necessary buildings, keeping them in repair, and

seutitinthemn din Rembaeh alin, anbaleieeene.

one of which shall be an agricultural and industrial

school, to be located at the agency, and to be free to the

children of the said confederated tribes and bands of

Indians, and to employ one superintendent of teaching

and two teachers; to build two blacksmith’s shops, to

one of which shall be attached a tin-shop, and to the

other a gunsmith’s shop; one carpenter's shop, one

wagon and plough maker’s shop, and to keep the same

in repair and furnished with the necessary tools; to

employ one superintendent of farming and two

farmers, two blacksmiths, one tinner, one gunsmith,

one carpenter, one wagon and plough maker, for the

instruction of the Indians in trades and to assist them

in the same; to erect one saw-mill and one flouring-

mill, keeping the same in repair and furnished with the

necessary tools and fixtures; to erect a hospital,

keeping the same in repair and provided with the

necessary medicines and furniture, and to employ a

physician; and to erect, keep in repair, and provided

with the necessary furniture, the building required for

the accommodation of the said employees. The said

buildings and establishments to be maintained and

kept in repair as aforesaid, and the employees to be

kept in service for the period of twenty years.

App. 9

And in view of the fact that the head chief of the said

confederated tribes and bands of Indians is expected,

and will be called upon to perform many services of a

public character, occupying much of his time, the

United States further agree to pay to the said

confederated tribes and bands of Indians five hundred

dollars per year, for the term of twenty years after the

ratification hereof, as a salary for such person as the

said confederated tribes and bands of Indians may

select to be their head chief, to build for him at a

suitable point on the reservation a comfortable house,

and properly furnish the same, and to plough and fence

ten acres of land. The said salary to be paid to, and the

said house to be occupied by, such head chief so long as

he may continue to hold that office.

And it is distinctly understood and agreed that at the

time of the conclusion of this treaty Kamaiakun is the

duly elected and authorized*® head chief of the

confederated tribes and bands aforesaid, styled the

Yakama Nation, and is recognized as such by them and

by the commissioners on the part of the United States

shall be defrayed by the United States, and shall not be

deducted from the annuities agreed to be paid to said

confederated tribes and band of Indians. Nor shall the

cost of transporting the goods for the annuity payments

be a charge upon the annuities, but shall be defrayed

by the United States.

App. 10

ARTICLE 6

The President may, from time to time, at his discretion,

cause the whole or such portions of such reservation as

he may think proper, to be surveyed into lots, and

assign the same to such individuals or families of the

said confederated tribes and bands of Indians as are

willing to avail themselves of the privilege, and will

locate on the same as a permanent home, on the same

terms and subject to the same regulations as are

provided in the sixth article of the treaty with the

Omahas, so far as the same may be applicable.

ARTICLE 7

The annuities of the aforesaid confederated tribes and

bands of Indians shall not be taken to pay the debts of

App. 11

ARTICLE 8

The aforesaid confederated tribes and bands of Indians

acknowledge their dependence upon the Government of

the United States, and promise to be friendly with all

citizens thereof, and pledge themselves to commit no

depredations upon the property of such citizens.

And should any one or more of them violate this pledge,

and the fact be satisfactorily proved before the agent,

the property taken shall be returned, or in default

thereof, or if injured or destroyed, compensation may

be made by the Government out of the annuities.

Nor will they make war upon any other tribe, except in

self-defence, but will submit all matters of difference

between them and other Indians to the Government of

the United States or its agent for decision, and abide

thereby. And if any of the said Indians commit

depredations on any other Indians within the Territory

of Washington or Oregon, the same rule shall prevail

as that provided in this article in case of depredations

against citizens. And the said confederated tribes and

bands of Indians agree not to shelter or conceal

offenders against the laws of the United States, but to

deliver them up to the authorities for trial.

App. 12

ARTICLE 9

The said confederated tribes and bands of Indians

desire to exclude from their reservation the use of

ardent spirits, and to prevent their people from

drinking the same, and, therefore, it is provided that

any Indian belonging to said confederated tribes and

bands of Indians, who is guilty of bringing liquor into

said reservation, or who drinks liquor, may have his or

her annuities withheld from him or her for such time

as the President may determine.

ARTICLE 10

And provided, That there is also reserved and set apart

from the lands ceded by this treaty, for the use and

benefit of the aforesaid confederated tribes and bands,

a tract of land not exceeding in quantity one township

of six miles square, situated at the forks of the

Pisquouse or Wenatshapam River, and known as the

“Wenatshapam Fishery,” which said reservation shall

be surveyed and marked out whenever the President

may direct, and be subject to the same provisions and

restrictions as other Indian reservations.

ARTICLE 11

This treaty shall be obligatory upon the contracting

parties as soon as the same shall be ratified by the

President and Senate of the United States.

App. 13

In testimony whereof, the said Isaac I. Stevens,

governor and superintendent of Indian affairs for the

Territory of Washington, and the undersigned head

chief, chiefs, headmen, and delegates of the aforesaid

confederated tribes and bands of Indians, have

hereunto set their hands and seals, at the place and on

the day and year hereinbefore written.

ISAAC I. STEVENS,

Governor and Superintendent. (L.S.)

Kamaiakun, his x mark. (L.S.)

Skloom, his x mark. (L.S.)

Owhi, his x mark. (L.S.)

Te-cole-kun, his x mark. (L.S.)

La-hoom, his x mark. (L.S.)

Me-ni-nock, his x mark. (L.S.)

Elit Palmer, his x mark. (L.S.)

Wish-och-kmpits, his x mark. (L.S.)

Koo-lat-toose, his x mark. (L.S.)

Shee-ah-cotte, his x mark. (L.S.)

Tuck-quille, his x mark. (L.S.)

Ka-loo-as, his x mark. (L.S.)

Scha-noo-a, his x mark. (L.S.)

Sla-kish, his x mark. (L.S.)

Signed and sealed in the presence of - -

App. 14

James Doty, secretary of treaties,

Mie. Cles. Pandosy, O. M. T.,

Wm. C. McKay,

W. H. Tappan, sub Indian agent, W. T.,

C. Chirouse, O. M. T.,

Patrick McKenzie, interpreter,

A. D. Pamburn, interpreter,

Joel Palmer, superintendent Indian affairs, O. T.,

W. D. Biglow,

A. D. Pamburn, interpreter.

App. 15

APPENDIX B

Record of the official proceedings at the Council,

held at the Council Ground in the Walla Walla

Valley, with the Yakama Nation of Indians, and

which resulted in the conclusion of a Treaty on the

9th day of June 1855. '

App. 16

PROCEEDINGS AT INDIAN TREATIES IN

WASHINGTON TERRITORY

EAST OF THE CASCADE MOUNTAINS

Programs of operations at the Walla Walla Council

decided upon by the Commissioners Gov. Isac I.

Stevens and Superintendent Joel Palmer, May 22nd

A. D. 1855.

Present—Indians common to both Territories, Oregon

and Washington, viz. Nes Perces, Cayuse and Walla

Wallas. Tribes in Oregon from the western boundary of

the Snake Tribe to the Cascades of the Columbia.

Tribes in Washington from the Bitter Root to the

Cascades, except the Spokanes, Couer d’alenes,

Colvilles and Pend D’Oreilles.

Gov. Stevens and Gen’l Palmer Superintendent of

Washington and Oregon to act jointly for the Nes

Perses, Walla Wallas and Cayuse common to the two

Territories. To agree upon the terms of treaty. To sign

jointly Each acting for the Indians the above tribes in

his own jurisdiction.

Gen’ Palmer sole commissioner for the Oregon Indians

proper present at the council.

Gov. Stevens, sole commissioner for the Washington

Territory Indians proper present at the council.

Gov. Stevens to preside at the council.

The proceedings to be carefully recorded for the Tribes

common to the two Territories seperately by the Secty

of Gov. Stevens and the Secty of Gen’] Palmer.

App. 17

The proceedings to be carefully recorded for the Tribes

common to the two Territories seperately by the Secty

of Gov. Stevens and the Secty of Gen’! Palmer.

The two records to be carefully compared and certified

jointly by the commissioners.

Each commissioner to appoint an agent and

commissary.

Gov. Stevens for the Washington Nes Perses, Cayuses

and Walla Wallas. Gen’l Palmer for the Oregon Nes

Perses, Cayuses and Walla Wallas. Goods and

provisions to be distributed to the Nes Perses, Cayuses

and Walla Wallas, by the Superintendents in

proportion to the Indians under the jurisdiction of each.

OFFICERS OF THE JOINT TREATY

Gov. Stevens

Gen’l Palmer - Commissioners

James Doty Sect’y for Washington Territory

Wm. McCoy “ " Oregon '

H. A. Crosbie Commissary for Washington Territory

C. Olney “i " Oregon .

Agent R. R. Thompson, in charge of Oregon Nes Perses,

Cayuses and Walla Wallas.

Wm. Craig Interpreter, Washington Territory

N. Raymond " ¥

App. 18

Leaufoher interpreter, Oregon Territory

John Flette -

Censuses of the Nes Perses, Cayuses and Walla Wallas.

Washington Oregon Total

Terty Ter'ty

Nes Perses 1400 400 1800

Cayuses 150 350 500

Walla Wallas including 600 200 800

Utillas

2150 950 3100

This census to be revised on the Indians reaching the

ground.

A public table for the prominent cheifs under charge of

agents Landsdale, Thompson and Bolon.

Gov. Stevens details Palmer and F. Genitto.

Sup’t Palmer also details one or two men.

Coll. Crosbie to take personal charge of issues for

public table, of issues of provisions to Indian tribes, and

goods distributed. Provisions and goods to be turned

over to the agents, and issued under their direction.

App. 19

May 28th, Monday.

Agent Bolon with an interpreter went to meet the

Yakamas who are supposed to be near at hand, and

returned at 10 a.m. having seen Cam-i-ah-kum and

also the Chief Pee-o-pee-mox-a-mox.

The latter had said to Mr. Bolon, “that someone had

informed him that the cheifs and others in the

Commissioners camp had said that he was unfriendly

to the whites. That his heart was with the Cayuses

whose hearts were bad. He was very sorry to hear this.

He had always been friendly to the whites and was so

now. He should go today to see the Commissioners, and

ask why such things had been said of him.”

The Commissioners and Sec’ty Doty visited the Lawyer

at his lodge, as he was unable to walk without great

difficulty. An old gun-shot wound received at the battle

of Pierres Hole, having broken open again causing

much pain.

App. 20

The Lawyer explained a map of the Nes Perses country

which he had drawn for Gov. Stevens. Several cheifs

came in and suddenly U-u-sune-mal-e-can,/one of the

cheifs/ said:

“The Cayuses wish us to go to their camp and hold a

council with them and Pee-o-pee-mox-a-mox.

What have we to say to the Cayuses or

Pee-pee-mox-a-mox? What are their hearts to us? Did

we propose to hold a council with them or ask them for

advise? Our hearts are Nes Perses hearts and we know

them. We came here to hold a great council with the

Great Cheif of the Americans, and we know the

straight forward truth to pursue and are alone

responsible for our actions. Three Cayuses came last

night and spoke to Jim and two other head men urging

them to come to a council at the Cayuse camp, to meet

Pee-o-pee-mox-a-mox and Cam-i-ah-kum. He did not

wish to go; they insisted; then I said to them: You had

best say no more. His mind is made up.

What do you come here for and ask these cheifs to come

to a council when to the Head Cheif and the rest you

say nothing? Have we not told your messenger,

yesterday, that our hearts are not Cayuse hearts? Go

home! Our cheifs will not go. We have our own people

to take care of they give us enough trouble, and we will

not have the Cayuse troubles on our hands. This is my

heart.”

Lawyer opened a book containing in their own

the advice left to them by their Great Cheif

Ellis, and read as follows: Ellis said,

“Whenever the Great Cheif of the Americans shall

come into your country to give you laws, accept them!

App. 21

The Walla Wallas heart is a Walla Wallas; a Cayuse

heart is a Cayuse; so is a Yakamas heart a Yakamas;

a Nes Perses heart is a Nes Perses heart; but they have

all received the white law. They are all going straight,

yes! While the Nes Perses are going straight, why

should they turn aside to follow others who are going

straight? Ellis, advice is to accept the white law. I have

read it to you to show my heart.”

The Commissioners were glad to hear what had been

spoken. They know the Nes Perses were always

friendly to the whites. Lewis & Clark had said this and

all white men. The Commissioners were friendly to all

Indians, and when they come together would tell them

so, and show it by what they propose to do. They had

no more to say now because when they spoke they

wanted all the Indians to hear. The Commissioners

then returned to camp.

At 11 a.m. Pee-o-pee-mox-a-mox, Cam-i-ah-cum, Owhi,

Skloom and a number of Walla Wallas and Yakamas

rode into camp, and having shaken hands in the most

friendly manner, with the Commissioners and agents,

seated themselves under the arbor in front of the

Commissioners tent and indulged in a smoke; using

their own tobacco exclusively although other was

offered them.

Gov. Stevens then said to them: “My friends, we are

glad to see you. We are glad to see all the Indians

around here, and what we say is spoken to all the

tribes. When you are ready to come into council, when

the council is opened, we will speak to you of the

tt business for which you have been called

together. We have near to our hearts the prosperity of

App. 22

the Indians and the propositions to be made to you will

prove this.

We shall endeavor to clearly explain the wishes of the

Government, in order that you may fully understand

them; as it is our desire you should.

If it is convenient to you we will suggest tomorrow at

noon as the time for opening the council. We look upon

you as friends, shall so speak to you; as one friend

speaks to another, and wish you to reply as such.

Gen’l Palmer said: I am equally pleased with Gov.

Stevens to see you. Many years ago I met you and

considered you friends, and I look upon you as the

same now, and hope our meeting will prove this to be

true.

We come here to promote peace and happiness among

you, leaving behind all that was bad, bringing only that

which was good; thus we have but one heart. When you

understand this then there will be no difficulty, but we

will all work together for the best.

As all the cheifs are not here we will not speak of

important business, but wait till all are present.

I wish to know if the time fixed by Gov. Stevens for

opening the council is good, and if you will meet.

Pee-o-pee-mox-a-mox said: | want more than one

interpreter at the Council, that we may know they

translate truly.

Gen’l Palmer said: You may have any one who can

comprehend what he is told to interpret, and who will

suit you. We wish you to understand clearly what is

App. 23

said. Will you designate a interpreter whom you have

confidence in?

The Chief said: I do not wish my boys running around

the camps of the whites as these young men do.

(alluding to some young Nes Perses who were lounging

about our camp feeling quite at home as they knew

themselves to be among friends.)

Pee-o-pee-mox-a-mox said: We have rode over today

merely to see the Commissioners.

Gov. Stevens said: Come and see us as our friends and

guests. Cam-i-ah-kum knows that our people have been

in his country, and eaten of his food. So of

Pee-o-pee-mox-a-mox and the Nes Perses. We always

give food to our friends when they visit us, you have

been invited to come and you are welcome to whatever

we have.

We have a public table at which we are glad to have all

our friends sit, and share that which hospitality

induces us to offer.

We have provided plenty of food, and have already

given beef, corn, and potatoes to those on the ground.

They were invited and we wish them to have plenty to

eat.

I was glad to hear that my friend Skloom had been so

kind to Mr. Tinkham one of my party who crossed the

mountains. He was in want and Skloom gave him

The Cheifs then took their leave.

App. 24

PROCEEDINGS AT THE COUNCIL HELD AT CAMP

STEVENS

WALLA WALLA VALLEY, ON THE 29TH DAY OF

MAY 1855

Gov. Stevens, Superintendent of Indian Affairs in

Washington Territory, and Gen’ Joel palmer,

Superintendent of Indian Affairs in Oregon Territory,

with the following named cheifs, delegates and head

men present at the Council, and representing their

respective tribes and bands of Indians as below stated.

For the Nes Perses: Lawyer, Joseph,

U-u-sune-mal-e-can, James, Timothy, Red Wolfe,

Spotted Eagle, Three Feathers, Jason, Jacobs,

Cow-pook, Is-coh-tim, Kay-kay-map,

Tu-per-lan-its-a-kum, Billy, Toh-ton-mol-e-wot, The

Snipe, Bold Eagle, and others.

For the Cayuses: The Young Cheif, Steachus,

Camaspilo, and others.

For the Walla Wallas: Pee-o-pee-mox-a-mox

For the Yakamas: Cam-i-ah-kun, Ow-hi, Skloom,

Kow-was-say-ic, Si-ry-was, Skin-pah.

For the Palouses: Kah-lat-toose

For the Spokanes: Gerry

For the Pisquose and Metows.

For the Oak-kin-a-kanes.

On May 29th, at 2:02 p.m. the Council opened. Present;

the commissioners, officers of Treaties, the Indian

agents, and some fifty citizens.

App. 25

Besides the Indian cheifs already mentioned and some

others, about 1800 Indians, Nes Perses, Cayuses, Walla

Wallas, Yakamas, Dalles Indians and others on the

Columbia above were assembled.

After the pipe had been smoked sometime, Gov.

Stevens said:

“My Children: Before entering upon the council we

must have good and faithful interpreters. We want men

who will state truly and exactly all that is said; we

want men that you know to be good men; men that you

can trust; we want no others.

We propose as interpreters for the Nes Perses, William

Craig, this man, (pointing to Mr. Craig) who has longer

lived with you, also McDauphin and Delaware Jim.

For the Cayuses Mr. Pembrom and Mr. Olney.

For the Walla Wallas and Yakamas, John Whitford.

Thus for each language we propose to have two and

three interpreters. Now I ask you, do you want others

added to the number? Are you satisfied with these

men? If you have any others you wish to propose, speak

out, for we wish you to be satisfied.

Stachus, a Cayuse said: We know of no others whom we

would wish. There may be some words hard for them to

make us understand, but we think the arrangement

good as it is.

Gov. Stevens said: When you cannot understand what

we say to you, stop us and we will repeat it.

Each interpreter will now be sworn to be a faithful

interpreter.

App. 26

Gov. Stevens then administered to the interpreters the

following oath.

You solemly swear in the presence of almighty God,

that you will well and truly interpret to the best of your

ability what may be said by the Commissioners for the

United States holding this council on the one part; and

the cheifs and head men of the tribes and bands of

Indians here present on the other part. So help you

God.

Gov. Stevens then said: My children, the interpreters

have each taken a solemn oath on the presence of

Almighty God, to be true and faithful interpreters. I

will now read the form of the oath. (and it was read as

above).

Gov. Stevens continued: My children; I have much to

say to you; my brother here Gen’l] Palmer will have

much to say to you. We want you to listen and be

comfortable at the same time. We want clear skies, we

want the ground to be dry. We will meet tomorrow with

a clear sun and the day before us. Then we will open

the whole subject, and will see if our hearts and your

hearts will not come together.

We have met as friends today, tomorrow we will meet

as friends and then enter upon our business. |

therefore adjourn the council till 10 o’clock a.m.

tomorrow. The weather is rainy and bad, tomorrow we

hope the skies will be clear and you will all be able to

be present. Should it rain tomorrow we will meet when

it clears up.

One word on another point, you have come here by our

invitation and are our guests. I have entered, and so

has my friend here Gen’l Palmer, many an Indian

App. 27

lodge, and they always gave us to eat and drink. We

therefore have brought provisions which we offer to you

as a friend to a guest; and we therefore trust you will

all feel free to receive the provisions we have brought

to furnish you with as our guests.

I propose to the Walla Wallas, Cayuses and Yakamas

that you take two oxen, drive to your camp and

slaughter for yourselves.

Young Cheif replied: We have plenty of cattle, they are

close to our camp. We have already killed three and

have plenty of provisions.

Gov. Stevens said: We are much pleased to hear you

are so well provided for, but we have plenty of

provisions and you are welcome to them.

Young Cheif replied: We have plenty at present. We do

not throw away your offer. If we want any we will come

to you.

Gen’! Palmer (to the interpreter): Say to the Yakamas:

You have come a long ways. You may not have

provisions. If you want any we have them and you are

Young Cheif said: Cam-i-ah-kun is supplied at our

camp.

Gov. Stevens said: There will be no more said today

unless you wish to say something.

Young Cheif said: We have nothing to say today; the

weather is bad, rainy. We do not throw away your offer;

when we are done talking you will know our hearts. We

will talk slow not all in one day. No snow falls at this

App. 28

season of the year. There will be time for you to go

anywhere you wish.

The council then broke up and nearly all the Indians

returned to their camps.

Pee-o-pee-mox-a-mox and Cam-i-ah-kun dined with the

Commissioners and remained in their tent sometime

smoking in a friendly manner.

Timothy, a Nes Perses cheif acted as crier for his

nation and he will also record in their language the full

proceedings each day of the council and this will be

preserved among the archives of the nation and handed

down to future generations.

May 30th, Wednesday.

At 1 o’clock P.M. the Indians began to assemble and at

1 3/4 P.M. the Council opened. Present same as

yesterday.

Gen’! Palmer Said, My friends. I am glad to see so may

of you here today. Yesterday the council was organized

and Interpreters sworn to repeat to you what we say.

To day my brother in Council will speak to you the

great desire that our Chief has to promote your good.

I know that our Great Chief has a good heart. I know

that my brother Gov. Stevens has a good heart, that

they both desire to do and act for your good. I hope then

you have come here with good hearts to listen to what

he has to say. We both come here to talk to you as men

and not as boys; we throw behind us everything that is

bad, and come to you with one heart: we hope you have

done the same: You are men able to judge between good

App. 29

and bad: and when my brother speaks to you, you can

judge whether it be good or bad.

For the present I am done, and my brother will speak

to you.

Gov. Stevens Said. My Children: The sky is clear, the

ground is dry, my heart is glad to day. Our hearts are

glad. You are men: You have families: You have the

means to live.

You have all of you been friends to me and mine; Two

years since I came along you; Two years only have I

know you; I came from the great waters beyond the

mountains, across the mountains, and you have all

been friends to me.

The Nes Perses. Lawyer fed my men driven out of the

mountains by the snow: the Cayuses and Walla Wallas

received my kindly; Pee-o-pee-mox-a-mox saw us

in his country and gave us guides: the young cheif and

his people had nothing but smiles and kindness for us;

and yesterday Cam-i-ah-kun showed me a paper from

Capt. McClelland saying that he furnished guides and

welcomed them on their way.

So to the North and East; there sits a Flat Head and

there a Coeur D’lane on the route across the Bitter

Root; there are Poulouses and Colvilles and Spokanes

away to the North; there are also men from both sides

the river, from far down; all were kind, and I brought

a message to all, from a tribe beyond the mountains: |

have been among the Black-feet and have brought word

that they would meet you in Council, and that war

should cease.

App. 30

I met you in the trail, | saw your people in the Buffalo

country: I met your people on the road to the Buffalo

country: My heart said peace in the Buffalo country,

peace here; peace is here now: peace between

yourselves, peace between us. So for your kindness to

me I am your friend, and I came from the Great Father

to be your friend.

The interpreters yesterday took a solemn oath to speak

truly. I took a solemn oath and my brother took a

solemn oath to be your friends.

The Great Father has learned much of you. He first

learned of you from Lewis & Clarke;

Pee-o-pee-mox-a-mox remembers Lewis & Clarke, the

Lawyer does: they came through your country finding

I went back to the Great Father last year to say that

you had been good, you had been kind, he must do

something for you. My brother wrote to the Great

Father in like manner.

He told the Great Father, these men have farms; the

Great Father said I want them to have more and larger

farms; I told him you had cattle and horses; he

answered that he wanted your horses and cattle to

increase: I told him some of your grown people could

read and write: He answered, I want all the grown

people and all the children to learn to read and write;

I told him that some of you were handy at trades; he

answered, that he desired to give all who choose the

means to learn those trades;

Why did the Great Father answer in this way? Why did

he send my brother and myself here this day, to say

this to you? Because you are his children; his red

App. 31

children are as dear to him as his white children; his

red children are men, they have hearts, they have

sense; they feel kindness, they resent injury: we want

kindness on the one side and kindness on the other: We

want no injuries to resent.

The Great Father has been for many years caring for

his red children across the mountains; there (pointing

East) many treaties have been made. Many councils

have been held; and there it had been found that with

farms and with schools and with shops and with laws

the red man could be protected.

Why do I say laws? What has made trouble between

the white man and the red man? Did Lewis and Clark

make trouble? they came from the Great Father; did I

and mine make trouble? No! but the trouble had been

made generally by bad white men and the Great Father

knows it, hence laws.

The Great Father therefore desires to make

arrangements so you can be protected from these bad

white men, and so they can be punished for their

misdeeds; and the Great Father expects you will treat

his white children as he will make a law they shall

treat you. We are now in council to see if we can

arrange the terms which will carry this into effect.

Let us go back to old times across the mountains and

see what was there done: the red man received the

white man gladly; but after a while difficulties arose;

the blood of the red man was spilled and the blood of

the white man; there was cold; there was hunger, there

was death. But a man came, William Penn, and said I

will see if my white children and my red children

cannot be friends, and they were friends: Wm Penn and

App. 32

the Indians came together as we now come together;

they made a Treaty; there was peace; and no white

mans blood and no red mans blood had been shed, and

there has been peace to this day; this was in olden

times.

Oh! these people said we too will make treaties; we too

will live in peace. They tried various plans, a plan that

worked well when there were but few whites, did not

work well when there were many. It was found that

when the white man and the red man lived together on

the same ground, the white man got the advantages

and the red man passed away.

The Great Fathers name at that time was Andrew

Jackson: he said | will take the red man across a great

river into a fine country where I can take care of them;

they have been there twenty years; they have their

government, they have their schools, they have their

own laws; their Cheif John Ross knows as much as my

brother or myself and a great deal more; he is what you

call a Lawyer: he is an Indian, a Cherokee. When he

goes to see the Great Father, the President, he sits

with him at table as you sit with us at table.

Before you met my brother and myself in council, you

have your own council; and the Great Father when he

acts has his council also, he has his cheifs.

When I saw the Great Father he called his cheifs

together, and had a council about you. He has two

cheifs who have the care of the red men, their names

are Gen’l Orr and Robert Johnson, I want you to

remember them. Robert Johnson lives near John Ross;

they both told me that what had been done for John

App. 33

Ross should be done for you, and more, as | will tell

you.

As we grow older we learn more and grow wiser; so of

the Great Father and his cheifs; they did much for

John Ross and his people twenty years ago; they have

learned much since and know better what to do; they

find one thing however the same now as then.

They gave John Ross and his people a tract of land into

which no white man could go without their consent;

they sent them an agent, they had schools, they had

mills, they had shops, they had teachers, they had

farmers, they had doctors. I repeat again no white man

could go there unless the red man consented to it.

North of that tract of land the whites are going in but

they cannot enter it; South of that tract of land the

whites are going in but they cannot enter it; that tract

of land is the Indians home; his home and the home of

There are other tracts of land East of the mountains set

apart for the red mans home; for there are many tribes.

Those tracts the white man cannot enter without the

consent of the red man. On all these tracts the red man

has schools and farms and mills: they have teachers

and physicians and an agent.

Now listen carefully: On these tracts the land was all

in common: there were one or more larger fields for the

tribes but no man had his special field: the Great

Father and his cheifs now think that is not good: the

Great Father said, the white man has his farm, his

cattle and his horses; the red man shall have his farm

his cattle and his horses; the Great Father says that

App. 34

when on that tract of land an Indian has his field, that

field should be his.

This brings us now to the question. What shall we do at

this council? We want you and ourselves to agree upon

tracts of land where you will live; in these tracts of land

we want each man who will work to have his own land,

his own horses, his own cattle, and his own home for

On each tract we want an agent to live who shall be

your brother, and who shall protect you from bad white

men. I shall speak more of this subject by and by.

On each tract we wish to have one or more schools: we

want on each tract one or more blacksmiths. one or

more carpenters; one or more farmers: we want you

and your children to learn to make ploughs, to learn to

make wagons, and every thing which you need in your

house. We want your women and your daughters to

spin, and weave and to make clothes. We want to do

this for a certain number of years.

Then you the men will be farmers and mechanics, or

you will be doctors and lawyers like white men; your

women and your daughters will then teach their

children, those who come after them to spin, to weave,

to knit, to sew, and all the work of the house and

lodges, you will have your own teachers, your own

farmers, blacksmiths, wheelwrights and mechanics:

besides this we want on each tract a saw mill and a

Now we want you to agree with us to such a state of

things; You to have your tract with all these things; the

rest to be the Great Father’s for his white children.

App. 35

Besides all these things, these shops, these mills and

these schools which I have mentioned; we must pay you

for the land which you give to the Great Father; these

schools and mills and shops, are only a portion of

payment. We want besides to agree with you for a fair

sum to be given for your lands, to be paid through a

term of years as are your schools and your shops.

Now these payments are something you will have to

think much about. Whatever is done is done with your

free consent; I have more to say about these payments,

about the agent, and about your doing better, as I think

you will if we can agree.

I am tired of speaking; you are tired of listening. | will

speak tomorrow. My brother will now say a few words

to you.

Gen’! Palmer Said, I shall say but little to you today; it

is not expected we can come together with one day’s

talk; nor do we expect you can understand with what

has been said all that we want. You will not make up

your mind until you hear all we have to say.

Tomorrow my brother will say something more to you;

when he is through then I will speak to you. Sometimes

when people have a matter to settle they commence

way off; but as they understand each other they come

together. With us, if we commenced way off, I hope we

are a little nearer now, and by and by I hope we shall

come quite together.

As we expect your are tired sitting, and as we do not

wish to say too much at once, we will speak no more.

We will meet tomorrow if you like, at an earlier hour

say 10 A.M. and you can come without our sending for

App. 36

you. If any present wish to say anything, we are ready

to listen to it.

No reply was made by the Indians and the Council then

adjourned as 4 1/2 P.M.

May 31st. Thursday.

The Indians assembled at 11 1/2 A.M. and at 12 M. the

council commenced.

Gov. Stevens Said, My children. I said to you yesterday

we want you to agree to live on tracts of land, which

shall be your own and your childrens; we want you to

sell the land you do not need to your Great Father; we

want you to agree with us upon the payments for these

lands; we want you to have schools and mills and shops

and farms; we want you to have teachers and

millwrights and farmers and artisans; we want your

people to learn to read and write; your men and boys to

be farmers or millwrights or mechanics, or to be of

some profession as a lawyer or a doctor. We want your

wives and daughters to learn to spin and to weave and

to make clothes and all the labor of the house; this for

a number of years as we may agree.

I said yesterday this would only be a part of the

payment. We want also for a certain number of years to

furnish you with some clothing, clothing for your men,

your women and your children.

I will mention only some of the principal articles; there

will be blankets and cloth for leggings, clothes made,

shirts and other articles for the men and boys; there

will also be blankets and shawls and calicos and

shirting and other articles for the women and girls. The

App. 37

particular articles however will be agreed upon

between yourselves each year; you may want certain

articles one year, and different articles the next.

Besides clothing we would wish to furnish you with

tools and implements for the shops; for the blacksmith;

for the wheelwright, for the tin-smith and such other

tools as you might need; we also want to provide you

with tools for your farms, with ploughs and hoes and

shovels and when you get further advanced with

reapers and all the implements the white man has; we

want in your houses plates and cups and brass and tin

kettles; frying pans to cook your meat and bake ovens

to bake your bread, like white people.

I have told you about the mill to grind wheat and corn,

and about the mill to saw boards and lumber, and that

we should employ carpenters in your service.

We want you by and by to live in houses and we shall

furnish you with a mill to saw lumber, and with

carpenters, and your own people by and by will become

carpenters and then you will have houses; all this for a

term of years. Then we hope that all you people, every

family will have its farm, its cattle, its horses, and I

trust, its sheep; then I said you will have your own

teachers and your own schools; you will have your own

smiths, your own wheelwrights, your own carpenters,

your own physicians and lawyers and other learned

men.

I told you of John Ross. As your fathers and your

friends we think this will be good for you.

In thinking over the matter we want you to bear in

mind what you have seen and what you know. That

venerable old man Jim recollects when he first saw a

App. 38

house in this country; you all of you recollect when you

first saw cattle, now you count your horses and your

cattle by thousands.

The horse carries you wither you wish to go, yourself,

your wife, your children; and your packs, and he works

in your fields; your cattle now furnish you with a

portion of your food; your cows furnish you with milk

and you already know how to make butter; we trust

you will make butter and cheese, and that your women

will all have churns. Formerly you raised no wheat, no

potatoes. Now you have both grain and vegetables. Is

not this a great change? A change which you all have

seen? Has it not been for your good?

Let us look at it now in a different way. My brother

said yesterday he would have much to say today.

We do not want you to agree not to get roots and

berries, and not to go off to the Buffalo; we want you to

have your roots and to get your berries, and to kill your

and go to the Buffalo plains, and we want more; we

want you to have peace there. What has disturbed you

on these plains? The Blackfeet tribe of Indians who

stole your horses and murdered your grown people and

your children; we want that to cease forever.

The Blackfeet are not all bad people; they have some

good cheifs among them and some good men; a part of

them promised me two years ago not to make war upon

you, and those have kept their promise; I could not see

all, and those I could not see have since given trouble.

But I left with them a man who spent a whole year

with them; a man whom you have seen here; a man

who writes at that table. He traveled all trough their

App. 39

country, sometimes alone sometimes with two or three

men; he saw them all, he talked to them about you, and

they promised to meet you in council this year and

make peace with you, to murder no longer your people,

to steal no longer your horses.

The Blackfeet have now begun to think, if we stop

stealing horses from the Indians this side of the

mountains, what will become of our bands of horses?

They will pass away. Raise your own horses says Mr.

Doty as do the Flat Heads, the Nes Perses, the

Cayuses, the Walla Wallas, the Coeur D’lanes, the

Spokanes, the Yakamas and so back to the Flat Heads

again. The Blackfeet then said, the Buffalo are not as

plenty as formerly, we have to cut too many old bulls.

Mr. Doty then talked about you, said you had your

fields, horses and cattle, and raised your own milk,

meat and vegetables; the Blackfeet then said we too

would like to have farms; we would like to have cattle

and milk and bread.

The Blackfeet and other tribes who live in the Buffalo

country, see that the Buffalo cannot subsist there

forever, they feel that unless they change their mode of

life, they will soon pass away.

They desire to change their mode of life. We shall help

them provided they agree not to molest you.

When you see the Blackfeet at the Council they will ask

you many questions, they will want you to tell them

when you first had horses and cattle, and when you

first had crops. If we agree at this council they will ask

you all about that; and you will tell them you have not

as much game as you once had, and the time is coming

when you will not have dressed skins for your clothing;

App. 40

you will tell them the Buffalo is passing away, and the

time will come when we will not have robes for our

tents and lodges; we have already changed and found

it for our good, and we are determined to make another

change in good season; we have made a bargain with

the Great Father; we will have instead of tents of lodge

skin when there are no Buffalo, houses of boards and of

lumber; when the elk and the deer and the buffalo pass

away, then we will have clothing, every man and

woman and child like the white man; we have enough

now to do to get roots and game and berries for our

children; but we intend then to raise enough for our

women and children, when their number have

increased, and roots and berries and game are no

longer to be found.

If we can agree here, this you will be able to say to the

Blackfeet, and the Blackfeet will say, we will cut old

bulls no longer, we will not starve, we will not die of

cold, we will do as you have done, we will be friends, we

will chase the Buffalo together on the plains, we will be

friends forever.

I have spoken of an agent, I will speak more. If we

agree at the council to have many things to do for you;

the agent will live with you and see that it is done; if

you think we have not done our part, go to the agent

and tell him so, and he will see that we do it. If we

think you have not done your part the agent will go to

the cheifs and say so frankly and arrange it with them;

he will be your elder brother, and will see that you are

not wronged, and that the bargain is carried out.

I have much more in my heart to say but not now,

there will be time enough by and by; my brother Gen’!

Palmer has to speak, he is your friend as I am but he

App. 41

has known you longer, and he can speak to you better

than myself; he feels for you and you will find that

every word which he says comes from a desire to serve

you.

If you wish to hear him now he is ready to speak.

Gen’! Palmer Said. My friends, I do not wish to tire

your patience too long, I have something to say to you,

if you will listen a little longer I will speak.

My brother here speaks truly, when he says I| desire to

speak and act for your good.

In order to explain more fully the course pursued by

the government towards the Indians on the other side

of the mountains I will tell you of it; my brother here

has reference to that subject and I may perhaps have

to repeat his words.

He has told you something about our first settlements

among the Indians over the mountains; those

settlements were made over three hundred and sixty

years ago. First came a cheif with several of his

brethren in three ships across the ocean, they found

many Indians in that country who received them

kindly, they gave to them food and received in return

beads and various trinkets; that cheif after traveling

over a great extent of country and visiting many vilages

left a part of his people and returned home.

After having been absent some time he returned with

many others, upon arriving at the point where he had

left his children none could be found. After the Cheif

left, these people began to quarrel among themselves

and with the Indians.

App. 42

There were many causes for this; a portion of the

Indians whose hearts were not good, stole the property

belonging to these people; the whites retaliated by

whipping and ill treating them. That was the first

offense on the part of the Indians; the whites had long

been without women and they often took forcibly the

women of the Indians; this induced them on their part

to retaliate; these difficulties continued from bad to

worse until finally there was war; our people were but

few, the Indians many; our people were all killed; there

were also many Indians killed. Upon seeing our Cheif

return with his vessel and other vessels and so many

people they fled; they knew they had done wrong as

well as the whites, and they expected they would be

punished for it; this time our cheifs brot’ with them

their women and children and cattle and horses, and

tools to work with.

The Indians seeing they were not interfering with them

returned and for a while they lived together in peace;

but they lived indiscriminately together, a white man

here and an Indian there; but they could not long live

this; their customs and mode of life was different, they

did not understand each other; they continued a

number of years with little difficulties occurring,

occasionally killing one another until it finally broke

out with another war; peace would sometimes be made

and last for a little time, but finally they would get

foolish and their hearts would get bad; as it is said in

this country sometimes; in this part of the country by

the young men they are few and we are many let us

wipe them out.

They finally made war, a council was held, speeches

and harangues were made and they declared war, a few

App. 43

white men were killed and many Indians were killed;

there were more Indians killed than white men because

we had better arms and know how to make them. This

war continued some time but finally they had peace;

the whites brought with them and made after they

arrived here whiskey; this the Indians were very fond

of and like all other persons after drinking it were

foolish; they quarreled among themselves and killed

each other and some whites in their drunken frolics;

our cheif saw this condition and desired to do them

good; he saw that the Indians and the white man could

not live peaceably together: he called the Indians

together in council; he proposed as we propose in this

council, to purchase their country and select a place for

them to live; he proposed to have a district of country

set aside for the Indians to live in that no white man

should live there; but the Indians said No! why should

we leave the bones of our fathers and go to a strange

land; we have plenty of elk, deer, bear, berries, and

roots; we like you let us live together, we don’t want to

cultivate the soil you are welcome to occupy it; they

were told that the wild game, the roots and the berries

would not last always; they said they were a great and

numerous people, they knew what was best for them

and did not want our counsel; they quit talking, the

whites went to their houses and Indians to their lodges;

our people continued coming; every year vessels came

until our people got as numerous as the leaves on the

trees.

It was but a few years before their game was all killed

off; for the white man killed the game as well as the

Indians; the Indians had no food in his lodges, the

women and children were hungry; at last they

commenced stealing our peoples property and

App. 44

plundering their houses; our people were forced to

retaliate by whipping and shooting some of them. The

Indians again sent messengers to the surrounding

tribes to call them to make war; they resolved in

council to exterminate the whites, kill them off; they

commenced by burning houses, murdering women and

children, and killed a good many of our people; finally

our warriors were collected and they had war; they did

not understand our mode of warfare and thousands of

Indians were killed and but a few of our people were

killed in the battles. This continued for a long time and

the tribes finally concluded they had been acting

foolish, and that they would receive the talk of our

cheif.

Those that were left finally agreed to meet our cheif in

council; they did so and there was peace. In that

council it was agreed by the Indians that they would

reside on a certain district, set aside for them certain

limits, certain bounds; they agreed in that council to

live in peace with the whites, and to commit no

depredations on them, and to live at peace with other

tribes; our cheif agreed that we would build them mills,

black smith shops, carpenters shops and supply them

with all necessary fixtures.

Our cheif directed his agents to build those mills and

school houses and shops, and he employed teachers and

smiths and millers and sent them among them. They

supplied them with cattle and horses and oxen and

ploughs and waggons and every variety of farming

tools.

These Indians then began to see that they had acted

very foolish, and that when they supposed they knew

enough for them and did not want any of our counsel,

App. 45

they knew nothing, they were as blind men; they have

since been learning and continued to learn and prosper,

and are now a great happy and good people; there were

a few tribes who refused to go into that council, who

refused to treat. What was the condition of that people?

Those who thought themselves very wise and refused

to take the advice of the white people those who

continued to make war upon our people? Their game

was all killed, they had nothing to eat, they fled to the

mountains then they continued to live but a few years

of miserable existence, until they were finally

overtaken by more powerful tribes and all killed. There

were other tribes in other districts of country, who

heeded the advice of the cheif and were set aside in

districts of country belonging to themselves.

In all cases where they have entered into a treaty and

agreed to reside upon tracts set apart for them our

cheif has aided them. All who have settled upon these

tracts have not done well, for are lazy and have

foolishly thrown away what has been paid them.

But you as a people know how to appreciate these

advantages and would not throw them away; all

experience we have had with Indians these Three

hundred and sixty years shows us that the white man

and the red man cannot live happily together; although

we may live near together there should be a line of

distinction drawn so that the Indians may know where

his land is and the white man where his land is; you

are all able to judge for yourselves by the constant

difficulties that are occuring here among you, between

the whites and the Indians.

We have some people whose hearts are bad, who violate

our laws; we have men who are afraid to live in the

App. 46

settlements, they seek opportunities to go among

people at a distance, among the Indians; as an evidence

of that I need only refer to matters that have

transpired within the past four weeks in your own

country; a few men had formed a plot by which they

were to get your horses: their plan was this: part of

those men went over into your bands and if they found

any horse branded took a description of it, wrote it

down in a book; when they had visited all your bands

and got the description they would go away. Sometime

after they would take their book and give one of their

party a description of these horses and an order to get

them; when they gather up all these horses they will

drive them off to the Grande Ronde or some place in

the Blue Mountains; they contemplate when they had

horses to Salt Lake; but a short time ago Mr.

Thompson came up and learned the trick: he went

below and took out a warrant for them and these

soldiers came up to try to arrest them.

It is these men I am told who would rob you of your

property, who are giving you advice not to treat with

us; whose counsels do you prefer to take? These men

who would rob you, or ours who come to befriend you?

These men who came here are strangers to you with

smooth tongues, they care nothing about the truth. |

don’t mean to say that all who come among you are bad

men; I am afraid there are a few of these young men

who come to live among you and wish to get your

women, not because they desire your women but

because they want your horses; they will come and

remain among you a few years, get a woman and raise

children, but when they get a band of horses around

them, they will be off and leave the women and

App. 47

children without anything; I have been told that one of

these men has been in your camp since we have been

holding this council, advising you to have nothing to do

with us; these men you cannot tell always who they

are, but all such men need watching; you will now be

able to judge who are your friends, such men, or myself

and my brother who have come here to act for your

good.

We have been talking a good while and you have been

listening. You are tired sitting. | have more to say to

you but I will leave it till tomorrow and say no more at

present.

The Council then adjourned at 3 1/2 P. M.

In the evening the Young Cheif sent a message to the

Commissioners to the effect that he should be pleased

if no council should be held tomorrow, as his people

desired to make a great Feast and have a general

holiday. To which request the Commissioners acceded.

Lawyer, Pee-o-pee-mox-a-mox, Young Cheif and

Cam-i-ah-kun dined at Gov. Stevens table with Gen’!

Palmer and the gentlemen of the party.

June Ist. Friday.

All about the Treaty Ground was very quiet, all the

principal Cheifs dined at Gov. Stevens table.

The day was extremely warm and to have held a

council would have been most uncomfortable.

App. 48

June 2nd. Saturday.

The Indians began to collect at 11 1/2 A.M. Some delay

was occasioned by the non appearance of Cam-i-ah-kun

and Ow-hi. But at 12 M. all the cheifs being present the

council opened.

Gen’l Palmer Said. My friends, we have met here today

to continue the talk; I shall try and speak so that you

may understand me.

I have said that the white man and the Indians could

not long live together in peace, a few may do so, but

where there are many we cannot do it. If your Cheifs

are unable to restrain your people where there are but

few, how can our Cheif prevent his people from doing

wrong when they are so many and scattered over so

large an extent of country.

It is but fifty years since the first white man came

among you, those were Lewis and Clark who came

down the Big River - the Columbia. Next came Mr.

Hunt and his party, then came the Hudson Bay Co.

who were traders. Next came missionaries; these were

followed by emegrants with waggons across the plains;

and now we have a good many settlers in the country

below you.

If there were no other whites coming into the country

we might get along in peace; You may ask, why do they

come? Can you stop the waters of the Columbia river

from flowing on its course? Can you prevent the wind

from blowing? Can you prevent the rain from falling?

Can you prevent the whites from coming? You are

answered No! Like the grasshoppers on the plains;

some years there will be more come than others, you

cannot stop them. Our cheif cannot stop them, we

App. 49

cannot stop them; n; they say this land was not made for

you alone, the air that we breathe, the water that we

i for all. The fish that come up the

rivers, and the beasts that roam through the forests

and the plains, and the fowls of the air, were alike

made for the white man and the red man.

And now while there is room to select for you a home

where there are no white men living let us do so. I have

made treaties with all the Indians tribes in the

Willamette Valley, with all in the Umqua Valley, with

all in the Rogue River and Shasta country; they have

shop, to erect a tin shop and gun smith shop, to build a

school house and hospital, to employ millers,

mechanics, school teachers, doctors and farmers, all

these expenses to be paid by the government for twenty

years.

Do you want these things: Do you want a saw mill to

saw the timber to build your houses? You have a few

lodges now, how long will they last? By and by where

will you get your hides to make lodges? Gov. Stevens

told you that the Blackfeet said the Buffalo were not as

plenty as they were once; it is but a few years since

there were a plenty of Buffalo at Fort Hall. Mr. Craig

App. 50

here has seen many of them there and probably others

of you have; where are they now? all gone;

Do you want mills to grind your wheat and your corn?

Do you want blacksmiths to make your ploughs and

harrows? To make your axes, hatchets, hoes, knives,

and to shoe your horses? Do you want a gun-smith to

mend your guns when broken?: Do you want a tinner to

mend your kittles, your pans and cups? Do you want a

carpenter to build your houses and a waggon maker to

make your waggons? Do you want a shoe maker to

make your boots & shoes? Do you want a doctor to

attend to the sick and give them proper medicines? Do

you want farmers to assist you and show you how to

raise wheat, corn and potatoes? Do you want school

teachers to teach your children how to read and write?

Is it not good that these men can write down what is

said here and understand what it is? It would make my

heart glad if you could all do so. It would make my

brother’s heart glad if you could all do so; would it not

be good if you wanted to talk with my brother, or if you

wanted to talk with our Great Chief? If you knew how

to write and wanted to talk you could send it to him on

paper and he would know your heart: would it not be

good then to have schools among you?

Do you want to have plenty of provisions for your

women and children? Do you want to have plenty of

blankets and clothing? The deer skin and the elk skin

cannot always be had to make your clothing; do you

always want to live at peace with all persons? If you

want all these things we are ready to give them to you;

when we know your hearts then we shall know whether

you want these things or not.

App. 51

You have often been told that by and by our Great

Cheif would send some person to buy your country. I

suppose you have been looking for that person a long

time; Dr. White came here. What did he do? He may

have talked very well to you but what use? Mr.

Wampool came, what did he do for you? My brother and

myself have come, we have not only come to talk but to

do something. Will you receive it or will you throw it

behind you? We did not come here to scare you or to

drive you away, but we came here to talk to you like

men, and to make such arrangements as to preserve

peace and protect you. Our agents have tried to protect

you in all your rights: but I am fearful they will not

always be able to do so, if you continue to live in this

I see here a good many old people. | expect you have

left a good many of your old people at home; we want to

do them some good while they yet live, and if you enter

into a treaty with us we can then do them some good

and do you all good; if we enter into a treaty now we

can select a good country for you; but if we wait till the

country is filled up with whites, where will we find

such a place? My heart is that it is better for you to

enter into a treaty now with us. I know that my brother

has a good heart and wants to do you good, but we do

not know how long we can act for you. Perhaps it may

not be long before other agents will come; the next that

come may not have such good hearts and do as much

for you as we will.

App. 52

Gov. Stevens Said. My Children, my brother and

myself have opened our hearts to you, we want you to

open your hearts to us.

Five Crows Said, we are tired.

Gen’l Palmer Said. We are not expecting to say any

more today.

Five Crows Said. I have a little to say. Do you speak

true that you call me brother? We have but one Father

in Heaven; it is He /pointing above/ who has made all

the earth; He made us of earth on this earth: He made

our Fathers; when he gave us this earth. He gave no

gardens also.

He created our Fathers when he created Adam; we

were divided into different countries; It was He, the

Almighty that passed the law; you must do no evil, you

must not steal, you shall not take any thing without

payment; the Great Father says he will send the thief

into fire - into hell -

The Commissioners said will you speak now or on

Monday?

Pee-o-pee. mox-a-mox Said. Why not speak tomorrow as

well as today? We have listened to all you have to say,

and we desire you should listen when any Indian

speaks. It appears that Craig knows the hearts of his

people, that the whole has been prearranged in the

hearts of the Indians; that he wants an answer

immediately without giving them time to think; that

the Indians have had nothing to say so far it would

appear that we have no cheif.

App. 53

I know the value of your speech from having

experienced the same in California, having seen

treaties there. We have not seen in a true light the

object of your speeches; as if there was a post set

between us, as if my heart cried from what you have

said; as if the Almighty came down upon us here this

day; as if He would say, What are you saying? Look at

yourselves your flesh is white mine is different, mine

looks poor; our languages are different. If you would

speak straight then I would think you spoke well; we

have come together to speak about the earth and not of

God; you were not afraid of the Devil!

You see this earth that we are sitting on; this country

is small in all directions. Why should you fear to speak

on Sunday? Should I speak to you of things that have

been long ago as you have done? The whites made me

do what they pleased, they told me to do this and that

and I did it; they used to make our women to smoke; |

suppose then they did what was right: when they told

me to dance with all these motions that are here then

I danced. From that time all the Indians became proud,

and called themselves cheifs.

On another subject I have something else to say. Now

how are we here as a post? From what you have said |

think you intend to win our country, or how is it to be?

In one day the Americans become as numerous as the

grass; this I learned in California; I know that is not

right. You have spoken in a round about way; speak

straight. I have ears to hear you and here is my heart.

Suppose you show me goods shall I run up and take

them? That is the way we are, we Indians, as you know

us. Goods and the Earth are not equal; goods are for

App. 54

using on the Earth. I do not know where they have

given lands for goods.

We require time to think, quietly, slowly. I see

Americans in all countries, it is not the country to

think about, we may think about another; there is the

Mission /Catholic Mission/ it is right there and it is

right it should be there. You have spoken in a manner

partly tending to Evil. Speak plain to us. I am a poor

Indian, show me charity; if there was a cheif among the

Nes Perses or Cayuses, if they saw evil done they

would put a stop to it and all would be quiet; Such

cheifs I hope Gov. Stevens and Gen’l Palmer are. I

should feel very much ashamed if the Americans

should do anything wrong. I had but a little to say, that

is all. I do not wish you to reply today, think over what

I have said.

Cos-os-pi-lo- Said in substance as follows, it was

addressed to his people and rendered by the

Interpreters after the conclusion of his speech.

He reproved the young men for laughing and talking:

said they considered him of no account any longer; they

had knocked off his horns and his teeth were worn out;

once he had horns and he could hook; teeth and they

were sharp and he could bite; you young men think

yourselves very smart by and by you will learn; now |

am tired of your conduct; I am not speaking to Gov.

Stevens or Gen’l Palmer, I am speaking to you young

men, as my children, to listen and behave yourselves.

Gov. Stevens Said. We are ready to hear, my friends

anything you have to say today. If you desire not to

speak today the council will adjourn till Monday. We do

not wish to speak on Sunday because our Great Cheif

App. 55

does not want us to do business on that day, unless it

is a matter of necessity. We think that most of our red

brethren do not wish to do business on Sunday. The

Council is adjourned till Monday at 10 A.M.

And the Indians then dispersed at 3 P.M.

June 4th at 12 1/2 P.M. the Indians began to collect

and 1 1/2 P.M. the council opened.

Gov. Stevens Said. Pee-o-pee-mox-a-mox said on

Saturday, he had listened patiently to all we had said,

and hoped we would listen patiently when any Indian

spoke. We listened patiently on Saturday, we shall

listen patiently today; we want you to open your hearts

and speak freely.

After a long pause the Lawyer said. If you will

designate some one to speak first he will speak. If you

do not they will sit here all day without speaking.

Gov. Stevens Said. We expect the Head Cheifs know

the hearts of their people. We will be glad to hear the

Lawyer speak.

The Lawyer said. My cheifs and people, I will now

speak, listen (to Commissioners) I ask good for these

poor people; I think my cheif about what you have been

speaking; It is from the man that made us, My Cheif,

or is it from your own people? that is the reason of my

asking, where is it from you have spoken My Cheif?

Although I think it is from the white people; from

where the white people is they have been dying and

dying, and are yet dying, and also the whites are living

all from the same people. The same thing of our people

our red people that are younger and from the same

App. 56

root; and here you see these many of us yet and still

living, old men and children.

The Supreme Being our maker listens to the white

people who are dead and also to those who are living;

the same thing with the red people, they listen to the

dead and also the living.

And this what the President has made up his mind for

us poor people; he has thought we were a poor people

and says go and see them and learn them straight; and

that is the reason you have told them you would learn

them to read and write and all those other things you

have spoken of; and that is the reason I have

understood what you have spoken from the President;

for that reason you have been asking us questions, and

now we are asking questions from you.

It was not for nothing I have been listening to you. My

country is poor it is a trifling country. You see the map

the marks of our country, one stream runs one way

another runs another way, it is all rock. My Cheif, but

the Big Cheif from the light (the East) said to you go

and talk to these people and you have done it, he says

go there to take care of your white people «ad your red

people and you have done it. As long as the Earth

stands take care of the people; he said to the white

people and the red people all as one let us listen to the

laws, when the earth is done away with there is the

end of the law, and that is the reason you see us good

and we see you good.

My Cheif that is all I have to say at the present, there

are a good many men here who wish to speak. Let them

speak.

App. 57

The Commissioners requested Pe-at-tan-at-tee-miner

to speak, who replies. You have heard what I have to

say. My mind is the same as the Lawyer has spoken.

What I had to say he has said, he has spoken my mind,

I have nothing to say, he has said all, for my land it is

for you and for me. I shall do you no wrong and you do

me none, both our rights shall be protected forever; it

- oe i te Gor

ong. This j I

———y-1 | , t thi : time.

Cam-i-ah-kun was invited to speak and said. I have

something different to say than the others have said. It

is young men who have spoken; I have been afraid of

the white man, their doings are different from ours.

Your cheifs are good, perhaps you have spoken

straight, that your children will do what is right, let

them do as they have promised. This is all I have to

say.

Pee-o-pee-mox-a-mox was next invited and said I do not

wish to speak. I leave it to the old men.

Gen’! Palmer Said. We do not know who of them desire

to speak; let their old men speak if they desire to do so.

Gov. Stevens Said. If u-u-Sin-mull-e-cun would like to

speak we would be glad to hear him. He replied. I do

not wish to speak now let those who have already

spoken speak. What the Lawyer has said is my heart,

it is not necessary for me to speak.

The Commissioners called upon Staachas to speak who

said, how is a cheifs language? How is the Big Cheif

talk? Where has their talk sprung from? That they

have spoken straight on the part of the Indians; the

Lawyer although young has spoken well for me. Who is

App. 58

it that is going to speak straight for all of us. Now I

want the whites and the Indians to show all their

hearts; you know and we all know life while we are

living, and I ask you my friends to speak straight and

plain to us, as if I spoke to the President I say Yes. |

would wish that the President was here so that we

might all listen to him; he would enlighten us, he

would give us life, he would make us to live as we

ought to live, we would give each other our hands to

hold always.

Lawyer spoke first and he will have more to say about

this we are now speaking of. Lawyer has asked you to

speak plain. I make the same request. I have nothing

more to say.

Pee-o-pee-mox-a-mox Said. I do not know what they

(the interpreters) have said. My heart was heavy, my

heart has to seperate so, that was my heart. I do not

know for what lands they (the Interpreters) have

spoken. If they had mentioned the lands that had

spoken of then I should have understood them. Let it

be as you propose, so the Indians have a place to live,

a line as though it was fenced in, where no white man

can go.

If you say it shall be so then all these Indians will say

yes. Although that you have said the whites are like

the wind: You cannot stop them, you make good what

you have promised.

You have spoken for lands generally. You have not

spoken of any particular ones, your words are here (at

this place). If you spoke as the watch goes, then we

would say yes; the manner in which you have

addressed the whole of us has made my heart heavy. I

App. 59

had nothing to say: I like you Americans; and I like the

Hudson Bay Co. people by which means | am led this

way and that way; I do not know as yet what lands

these Indians have spoken for but when they mention

the lands then I shall know.

Fah-hah-tsil-pilp or the Red Bear said: I am not

ashamed of any of my friends, for why should I be

ashamed? If there was something above that I should

be ashamed of, then I should be ashamed; I am not

ashamed of any people that are sitting around, we have

spoken here with our brothers. This is the first time |

have ever seen my brothers here.

I like your talk very much as I have heard it, and that

is the reason I have listened to you well. And here

where we see each other face to face we will talk

straight. We shall know if you shall like my talk that I

am now talking as I have like yours. I wonder if we

shall both tell the truth to each other.

This is what I think my Brothers, that one time more

we will talk, we will not say yes from what has yet been

said.

Now my younger brother there will speak. Being thus

called upon.

Tip-pee-il-lan-ah-cow-pook, or Eagle from the Light

arose and said: Yes my friends you see where the Sun

is. He hears me. It is from beyond where the Sun is

that sent you here to talk.

The red people are put on this earth. A white man was

sent on this earth from the Light (meaning the East).

The red man was sent from the West, and now the big

App. 60

cheif from the Light has sent his talk here to the red

people.

The President has spoken to me throught you and |

hear it. He likes us. He has fixed places for us to sit on

and love one another. And | also like the white people

as the President likes us.

On a road ready finished, he has sent you here. Look at

the face of the earth, there is a road to travel on. Roads

up the valleys and roads on to the end of the earth.

From the time you started, you found a road till this

time.

You are now come to join together the white man and

the red men.

And why should I hide anything? I am going now to tell

you a tale. I like the President’s talk; I am glad of it

when I hear it her. and for that reason I am going to

tell you a tale.

The time the first white men ever passed through this

country, although the people of this country were blind,

it was their heart to be friendly to them. Although they

did not know what the white people said to them they

answered yes, as if they were blind. They traveled

about with the white people as if the people that said

that had been lost, and those lost people said to them,

yes.

I have been talked to by the French and by the

Americans, and one says to me, go this way, and the

otner says go another way; and that is the reason | am

lost between them.

App. 61

A long time ago they hung my brother for no offence,

and this I say to my brother here that he may think of

it.

us well and taught us well, very well. It was from the

same source, the Light (the East). They had pity on us

and we were pitied. And Spalding sent my Father to

the East—the states—and he went. His body was never

returned. He was sent to learn good counsel and

friendship and many things. That is another thing to

think of.

At the time, in this place here, when there was blood

spilled on the ground, tho there was blood upon the

earth we were friendly to the whites and they to us. At

that time they found it out that we were friends to

them. My Cheif, my own cheif said, I will try to settle

all the bad matters with the whites and he started to

look for counsel to straighten up matters; and there his

body lies, beyond here. He has never returned.

At the time the Indians held a grand Council at Fort

Laramie. I was with the Flatheads and I heard there

would be a council this side, next year. We were asked

to go and find counsel, friendship and good advice.

Many of my people started and died in the country.

Died hunting what was right. There was a good many

started there on Green River, the small-pox killed all

but one. They were going to find good counsel in the

East; and here I am looking still for counsel, and to be

taught what is best to be done.

And now look at my peoples’ bodies scattered

everywhere hunting for knowledge, hunting for

someone to teach them to go straight.

App. 62

And now I show it to you, and I want you to think of it.

I am of a poor people.

A preacher came to us, Mr. Spalding. He talked to us to

learn, and from that he turned to be a trader, as

though there was two in one, one a preacher and the

other a trader. He made a farm and raised grain and

bought our stock, as though there was two in one; one

a preacher the other a trader.

And now from the East has spoken and I| have heard it.

And I do not wish another preacher to come and be

both a trader and preacher in one. A piece of ground for

a preacher, big enough for his own use, is all that is

necessary for him.

Look at that, it is the tale I had to tell you, and now |

am going to hunt friendship and good advice.

We will come straight here— slowly, perhaps,—but we

will come straight.

Gov. Stevens said: My brother, if any of you wish to

speak today, I will still be silent. Is there anyone who

wishes to speak now? If not, I will go on. We have

listened to you carefully. We think we know your

hearts.

You are willing to make a bargain. You want to know

exactly the terms. We have promised mills, shops,

schools, teachers, farmers, and all the other things for

a term of years. You want to know how many years. We

have promised you as the other part of the payment

clothing for yourselves, your wives, and your children;

tools and implements for your farms and shops and

articles for your house.

App. 63

You want to know how much clothing. How many

implements and tools and articles for your farms, your

shops, and your houses; and how many years will you

have them?

Before I answer that, | will answer another question

which you have asked me. You want to know where

your Reservations are to be. What is the ground we

have in view for you. I will explain this matter freely.

Here are the Nes Perses, Cayuses, Walla Wallas,

Yakamas and Umatillas and bands on both sides the

Great river to below the Dalles.

Tribes northwards: Colvilles, O-kin-a-kune, Palouse.

For the principal tribes here present, we have thought

of two Reservations. One Reservation is the Nes Perses

country and one in the Yakama country. The

Reservation in the Nes Perses country, to extend from

the Blue mountains to the spurs of the Bitter Root, and

from the Palouse river to part way up the Grande

Ronde and Salmon River.

On this Reservation we wish to place the Spokanes, the

Cayuses, the Walla Wallas, as well as the Nes Perses,

and also the Umatillas. That will be something for

them to think about to see whether they can agree to it.

The Yakama Reservation to extend from the Attannun

river--to include the valley of the Pisco river—and from

the Yakama river to the Cascade Mountains. On this

Reservation we wish to place the Colvilles,

O-kin-a-kunes, Palouse, Pesquouse, Klit-a-tats, and the

bands on the north side of the river below the Walla

Wallas as far as the Kuth la poodle river, near the

App. 64

Cowlitz. All these as well as the Yakamas on that

Reservation.

There is a third Reservation East of Mr. Jeffersons

which will be explained to you by Gen’l Palmer; there

it is proposed to place the bands below the Umatillas.

We want you to think about this and see if you like it.

You may think the Reservations are not good. If not

you will say so. The Cayuses, the Walla Wallas, the

Umatillas, may prefer the Yakama to the Nes Perses

Reservation, and they may not like either.

Though near to the great roads, you are a little off from

them, and you will not be liable to be troubled by

travellers passing through.

We can better protect you from bad white men there.

We can better prevent the trader and the preacher al!

in one man going there. We can better prevent bad men

telling you to dance, and cheating you with lies. We can

better stop the theif who comes to steal your horses.

Your horses will be saved to you and there will be no

theives to throw into hell-fire.

You may ask, why so many tribes on one Reservation,

and how is it proper to place them on the Reservation?

App. 65

We want as many tribes together as can be taken care

of by one agent. We can do more with the same means;

this is a matter I wish to explain fully, and also about

the payment in clothing, etc., which I mentioned in the

first part of what I said, I will speak no more today, but

speak tomorrow. Think over what I have said and hear

the rest tomorrow.

Gen’l Palmer said: I shall say nothing to you tonight.

You have been sitting a long time and you are tired. We

want you to come tomorrow morning early. We want

you all to come. You have heard but part, we want you

to hear the whole, and when you hear all I think you

will say it is good. I have nothing more to say to night.

The Council then adjourned at 6 P. M.

June 5th, Tuesday.

The Indians began to collect at 11% A.M. and at 12 M.

the council opened.

Gov. Stevens said: My children, | stated yesterday that

we wished to place you on two Reservations and that as

regards the tribes below the Umatillas. There was a

third Reservation which would be explained by my

brother, Gen’! Palmer. I stated we wanted as many

tribes as could be taken care of by one agent.

I will now explain this matter fore freely. We wish to

put the Spokanes, the Nes Perces, the Walla Wallas,

the Cayuse, the Umatillas on one Reservation in the

Nes Perses country.

Here (showing a draft on a large scale) is a map of the

Reservation. There is the Snake River. There is the

Clear Water river. Here is the Salmon river. Here is

App. 66

the Grande Ronde river. There is the Palouse river.

There is the El-pow-wow-wee.

We commence where this river, the Palouse, comes

from the mountains, and down the river to the mouth

of the Ti-not-pan-up, then to the Snake river 10 miles

below the mouth of the El-pow-wow-wee, then to the

source of the El-pow-wow-wee, Thence along the crest

of the Blue Mountains to the Grande River below the

Grande Ronde, thence along the ridge between the

Wall-low-low river crossing the Snake River 15 miles

below the mouth of Powder river, uhence to the salmon

river a little above the crossing, thence by the spurs of

the mountains to the source of the Palouse river at the

put you on this Reservation our agent can visit you all

and take care of you all.

Each tribe will have its own place on the Reservation.

The Spokanes will have their place and their home.

The Nes Perses their place and their home. The Walla

Wallas their place and their home. The Cayuse and the

Umatillas their place and their home.

The Spokanes will have a blacksmith, a school, and a

farmer. The Walla Wallas will have a blacksmith, a

school, and a farmer. The Cayuse and Umatillas will

have a blacksmith, a school, and a farmer. The Nes

App. 67

Perses are more numerous, they will have two

blacksmiths, two schools, and two farmers.

Thes. schools are the first schools where your children

will learn to read and write. The agent will live in some

central place where there will be an agricultural and

industrial school common to all the tribes. To this

school all the tribes will send such of their children as

wish to study more than in the first schools, and to

learn trades. Here where the agent lives will be the

tinner and the tin shop. There will be one for all the

tribes. There will be the waggon maker and wheel

right; there will be one for all the tribes.

For the four tribes there will be two saw-mills and two

flouring mills in proper localities. Thus all the tribes

will be on an even footing, and each will have the same

provision made for them.

You will see that you will be better take care of all on

one reservation; each tribe having its own place, than

if the Spokanes were on one reservation with the

whites all around them, the Nes Perses on one

reservation with the whites all around them, the

Cayuse and Umatillas on one reservation with the

whites all around them.

Here (showing the map) you will be on one Reservation

with equal rights under one Agent, and the same

provisions for your welfare. But each tribe has its head

cheif. A cheif takes care of his people. He people listen

to him. He devotes his time, his very life to their good.

We want you cheifs to be such men, we expect them to

know about you and to see that we do our part. They

will not work for themselves, they will work for you.

We shall therefore give the Head Cheif of each tribe

App. 68

Five Hundred Dollars a year for 20 years to be paid in

cash.

We shall build for each Head Cheif a good house to live

in. The Agent will have his house and he will be paid.

The Head cheifs shall have their houses and be paid.

They will all labor for the good of the Indians.

My friends, I have held four councils on Puget Sound.

I have made treaties with all the Indians on that

sound. They number more than all the tribes here

present. They have all agreed, should the President

decide, to go on one Reservation. That Reservation is

only about one fiftieth part as large as this; they have,

however, few horses and cattle. They have not three

Now I will tell you the payments that will be made

provided you are placed on one Reservation. If you go

on different Reservations different provisions will be

made. Well, you all go on one Reservation, Spokanes,

Nes Perses, Walla Wallas, Cayuses and Umatillas; we

shall spend a certain amount in moving you onto the

Reservation, in breaking up and fencing your farms, in

App. 69

building houses for your cheifs, your sub-cheifs and

your people, in cooking utensils for your houses, in milk

pans and churns, in a good supply of blankets and

clothing. In all these things we will expend for you, One

Hundred Thousand Dollars. This will be done the fist

year you go on the Reservation.

Now, if any man gives up a tract of land in going onto

the Reservation, he will have the same thing done for

him that is done for all the rest and he will have, in

addition, his improvements made good to him on the

Reservation or the value of them paid to him in cash,

as he may desire.

The other payments extend through twenty years. Two

Hundred and Fifty Thousand Dollars. We do not want

to spend this amount or much of it in cash, and I want

my friend Pee-o-pee-mox-a-mox and the other cheifs to

listen while I give the reason. I ask all the cheifs to

hear my reasons and think of them.

We can furnish you with nearly twice as many good

with the same amount of money as you can get from

the Traders. We shall buy the things you want in New

York and San Francisco at cheap rates and good

articles. The expense of getting them to you will not

come out of your money; it will cost you nothing. You

now pay Eight or Nine Dollars for a blanket at Fort

Walla Walla, we shall furnish you two such blankets

for less than that sum, say from six to seven dollars. At

Fort Walla Walla a flannel shirt costs three dollars, we

will give you three shirts for three dollars. You pay for

a calico shirt at Walla Walla one and a half and two

dollars. We can furnish calico shirts for fifty cents a

piece. If we furnish the goods therefore, you will get

three blankets, three flannel shirts and three calico

App. 70

shirts for the same money you now pay for one blanket,

one flannel shirt, one calico shirt, and have to make a

long journey for them besides. We can furnish four hoes

for a dollar and a half. You know what you have to pay

for a single hoe at Fort Walla Walla and the Dalles. We

want the payments to do as much for your good as

possible. We don’t want half of it to go into the pockets

of Traders.

I ask the cheifs to listen to me again.

There will be a certain sum each year for their people.

We want them each year to consult their people and

tell us what things they want. We want them to make

out a list how many blankets they want and w

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