# 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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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

No. 16-1498

In The
Supreme Court of the Gnited States

>
-

WASHINGTON STATE
DEPARTMENT OF LICENSING,

Petitioner,
v.

COUGAR DEN, INC.,
A YAKAMA NATION CORPORATION,

Respondent.

a
A

On Writ Of Certiorari To The
Supreme Court Of Washington

,
A

BRIEF OF AMICUS CURIAE CONFEDERATED
TRIBES AND BANDS OF THE YAKAMA
NATION IN SUPPORT OF RESPONDENT

,
a

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.

ss

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-
Lg

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

25

27

30

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

iv

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

Vv

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

vi
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

1

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.

2

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.

3

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

4

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.

5

“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.

7

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

8

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’

9

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

10

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

11

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

12

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,

13

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

14

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

15

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

16

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.

17

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.

18

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

19

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

20

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

21

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).

22

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

23

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

24

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

25

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

26

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

27

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

28

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.”

29

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

30

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

31

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

32

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.

33

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

34

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).

35

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.

36

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.

,
A

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.

37

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
w

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0758%3A15. Public record. Not legal advice.