Amicus Curiae Brief — Wash. State Dep't of Licensing v. Cougar Den, Inc., 138 S. Ct. 294 (2017) (No. 16-1498)
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No. 16-1498
In The
Supreme Court of the Anited States
a
v
WASHINGTON STATE
DEPARTMENT OF LICENSING,
Petitioner,
v.
COUGAR DEN, INC., A YAKAMA
NATION CORPORATION,
Respondent.
f
4
On Writ Of Certiorari To The
Supreme Court Of Washington
,
a
BRIEF OF AMICI CURIAE NEZ PERCE
TRIBE AND CONFEDERATED SALISH
AND KOOTENAI TRIBES IN SUPPORT
OF RESPONDENT AND AFFIRMANCE
,
—
JOHN T. HARRISON DAvID J. CUMMINGS*
RHONDA R. SWANEY JULIE S. KANE
CONFEDERATED SALISH AND DARREN L. WILLIAMS
KOOTENAI TRIBES, NEZ PERCE TRIBE,
LEGAL DEPARTMENT OFFICE OF LEGAL COUNSEL
42487 Complex Blvd. 100 Agency Road
P.O. Box 278 P.O. Box 305
Pablo, Montana 59855 Lapwai, Idaho 83540
John. Harrison@cskt.org (208) 843-7355
djc@nezperce.org
*Counsel of Record
COCKLE LEGAL BRIEFS (800) 225-6964
WWW COCKLELEGALBRIEFS.COM
TABLE OF CONTENTS
Page
Ee i
TABLE OF AUTHORITIES ........................000000++ iv
INTERESTS OF THE AMICI CURIAE............... 1
SUMMARY OF ARGUMENT .............................. 2
es 4
1. THE TREATY’S EXPRESS PROTECTION
OF THE RIGHT TO TRAVEL WAS HIS-
TORICALLY SIGNIFICANT AND MEAN.-
INGFUL, AND REMAINS S0O.................... 5
A. The context, history, and practical
construction of the Nez Perce Tribe
and Confederated Salish and Kootenai
Tribes (CSKT) right to travel treaty
provision supports the understanding
of the Treaty Indians made in Yakama
I 5
1. The importance of travel and trade
to the Nez Perce and CSKT............ 6
2. Prior to the Treaty, the United
States and Stevens had a long rela-
tionship with the Nez Perce and
AR 10
ae 14
a. The Walla Walla Treaty Council,
Treaty with the Nez Perces........ 14
b. The Hellgate Treaty Council,
Treaty with the CSKT............... 20
33
TABLE OF CONTENTS — Continued
Page
4. Almost immediately post-treaty, Gov-
ernor Stevens invoked the treaty
right to travel in response to hostili-
ties blocking the road to The Dalles
the Nez Perce used to get winter sup-
ae en eee 23
5. Nez Perce and CSKT travel and
trade continue to be significant fol-
lowing the Treaty............................ 28
B. The arguments of Petitioner and its
supporters which seek to render the
Treaty right to travel meaningless, are
fatally flawed, and must be rejected..... 30
1. Treaties may not be interpreted di-
vorced from an examination of the
understanding of the Treaty Indi-
il. THE “PARADE OF HORRIBLES” ARGU-
MENTS ADVANCED BY PETITIONER
A. Astate’s inability to impose a tax such
as the one at issue does not neces-
sarily mean that the good is untaxed
or that another sovereign will not col-
nn 33
ture expenses are not a sufficient legal
basis for abrogating a judicially af-
firmed treaty right ............................-. 34
ill
TABLE OF CONTENTS ~ Continued
Page
C. There are no current ¢ isputes con-
cerning the treaty right to travel in-
volving the Nez Perce Tribe, CSKT,
Idaho, Montana, or any other state.......
. Idaho and Montana have chosen to en-
. Petitioner’s arguments about opening
a Pandora’s Box with respect to the in-
tersection of the treaty right to travel
with public safety are unfounded........
icc ennranendnsssnnasssvemnecmsennsunmssanncasenseces
36
iv
TABLE OF AUTHORITIES
Page
CASES
Cree v. Flores, 157 F.3d 762 (9th Cir. 1988)
ee passim
King Mountain Tobacco Co. v. McKenna, 768
i 33
Ramsey v. United States, 302 F.3d 1074 (9th Cir.
STI sicintesiriniceibhitahaeiieitieahaneenianagiitatiaibinniiniaatningainatigeaseneeeed 33
United States v. Smiskin, 487 F.3d 1260 (9th Cir.
Hie neriscerseeusnnnsnsnecuneinmenienembndsimannins 33, 39, 40
United States v. Tulee, 315 U.S. 681 (1942)................ 30
United States v. Winans, 198 U.S. 380 (1905) ......30, 32
Washington v. Washington State Commercial
Passenger Fishing Vessel Ass’n, 443 U.S. 658
EE iceatintnitall nhtnateaninemenacuninieeindmenenitienenainatanemenneed 30
Yakama Indian Nation v. Flores, 955 F. Supp.
SD CREE, SEIPED ccccesencssesserecnsscsnsenecessent passim
TREATIES
Treaty with the Yakamas, 12 Stat. 951 (June 9,
Eee hinsictesnnnssendosnsanensticinmnsesnnnepatninemamenmesmnescese 2
Treaty with the Nez Perces, 12 Stat. 957 (June
iy eel cciectsestnesterssinincsctapnitesnmnsanseneetaninnsenibsiniiaapmpnibeterceperes 1
Treaty with the Flatheads, 12 Stat. 975 (July 16,
uaa nsrincensietenreiarenpresintetammeseninbiinndinnnedeinentnndamnpmnnintes 1
RULES
Vv
TABLE OF AUTHORITIES — Continued
Page
OTHER AUTHORITIES
Alvin M. Josephy, Jr., THe Nez Perce INDIANS
AND THE OPENING OF THE NORTHWEST 1965,
1997 edition (Complete and Unabridged) (NEz
BIGART AND Woopcock, IN THE NAME OF THE SA-
LISH AND KOOTENAI NATION—THE HELLGATE
TREATY AND THE ORIGIN OF THE FLATHEAD IN.
DIAN RESERVATION 1 (1996)...............2....-c2ccceeeeeeeeeeee 21
David Gutman, Washington state to test pay-by-
the-mile as a way to fund highways, Seattle
Times (September 6, 2017) .................ccccceeeeeeeeeeeeoee 35
Expressing the sense of the House of Representa-
tives concerning the 50th anniversary of the
flooding of Celilo Falls, H.Res. 217, 110th
SD, Ce is I erccenirernsnnnnenenreccnmmenmentescens 29
Governor’s Counsel State-Tribal Revenue Shar-
ing Memorandum to Montana Legislature
(State-Tribal Relations Interim Committee
Hearing, October 21-22, 2015) ...................ccc0000000- 37
House Delegate Isaac Stevens to J.W. Nesmith,
Supt. Ind. Affairs, January 18, 1858 (Stevens
Papers, University of Washington Library,
Jack Nisbet, Sohon, Gustavus (1825-1903),
HistoryLink.org, at http//www_historylink.org/
File/8593 (last visited September 20, 2018)........... 15
vi
TABLE OF AUTHORITIES — Continued
Page
James Doty, JOURNAL OF OPERATIONS OF GOVER-
NOR ISAAC INGALLS STEVENS OF WASHINGTON
TERRITORY (JOURNAL OF OPERATIONS), May 24,
GEEED acccsecssscensssecscsvensewnsussaseansensseousnniemneuecensceseel passim
John C. Ewars, GUSTAVUS SOHON’S PORTRAIT OF
FLATHEAD AND PEND D’OREILLE INDIANS (1948) ...... 15
John Upton Terrell, TRADERS OF THE WESTERN
MORNING-ABORIGINAL COMMERCE IN PRECOLUM-
BIAN NorRTH AMERICA, 105 (1967) ...............2...000000000- 7
JOURNALS OF THE LEWIS AND CLARK EXPEDITION
(Gary E. Moulton, ed.), April 16, 1806, at
https:/lewisandclarkjournals. un|.edu/item/Ic.
jrn. 1806-04- 16#lc.jrn. 1806-04-16.03 (last vis-
ited September 20, 2018) .0..............ccccceeceeceeeeeeeeeeees 29
Laura Peers, Trade and Change on the Columbia
Plateau 1750-1840, 10 COLUMBIA MAGAZINE
(1996-1997), at http-//www.washingtonhistory.
org/files/library/trade-change.pdf (last visited
EE IE ctentescncniciccnnunnictncemnsmasneinmenccceeed 8
Official Proceedings of the Council in the Bitter
Root Valley, in Albert J. Partoll, The Flathead
Indian Treaty Council of 1855, 29 Paciric
NORTHWEST QUARTERLY 283 (July 1938) (Hell
Gate Treaty Minutes)........................ccccceeeeeeeeeeee 21, 22
Official Proceedings of the Council in the Walla
Walla Valley (Treaty Minutes).......................... 15, 18
Report of the Commissioner of Indian Affairs,
1860. H. Ex. Doc. 1, Vol. 1 (1861) ..............0.000000eeeeee 28
vii
TABLE OF AUTHORITIES — Continued
Smithsonian Institution 12 HANDBOOK OF NorRTH
AMERICAN INDIANS, PLATEAU, Deward Walker,
Wiis Git IIIT ccrsnsensdannennsnsnasensadpesetsetennneoniannenses 7, 8,9
TRIBAL NATIONS IN MONTANA: A HANDBOOK FOR
EAE AEE BD Ci rcceccccccccccsccccecsvcsscsesccccscecescsceses 3)
U.S. War Department, ExPLORATIONS AND SuR-
VEYS FOR A RAILROAD FROM THE MISSISSIPPI
RIVER TO THE PAciFIC OCEAN: REPORT OF Ex-
PLORATIONS FOR A ROUTE FOR THE PACIFIC RAIL-
ROAD NEAR THE FoRTY-SEVENTH PARALLELS OF
Nortu LATITUDE, FROM St. PAUL TO PUGET
SouND By LI. STEVENS (University of Michigan
Reprint Series, 2005) (1855) (Srevens’ RAI
ep cccccenccscseescnsncsecneessscenenicntensemmeesetuess 11,13
1
INTERESTS OF THE AMICI CURIAE'
The Nez Perce Tribe and the Confederated Salish
and Kootenai Tribes of the Flathead Reservation
(CSKT),’ prior to and at the time of their 1855 Treaties
with the United States, had extensive networks of
trade and travel routes throughout a broad geographic
area including the Pacific and Inland Northwest.
These trade and travel networks continue to be im-
portant to these tribes to this day.
These two tribes, in their distinct treaties with the
United States, reserved—and the United States ex-
pressly “secured” to them—‘“free access” from their
Reservations “to the nearest public highway” and “also
the right, in common with the citizens of the United
States to travel upon all public highways.” 12 Stat. 957,
958 (June 11, 1855) (Nez Perce); 12 Stat. 975, 976 (July
16, 1855) (CSKT).
The Nez Perce Tribe and CSKT are the only other
Indian tribes with an expressly reserved treaty right
to travel similar to the Yakama treaty right at issue in
this case. They write here as amici to emphasize the
historical and present-day significance of the reserved
' Pursuant to Supreme Court Rule 37.6, amici curiae submit-
ting this brief and their counsel represent that no party to this
case nor their counsel authorized this brief in whole or in part,
and that no person other than amici paid for or made a monetary
contribution toward the preparation and submission of this brief.
Both parties have consented to the filing of this brief.
* The CSKT consists of three tribal nations. The Selis (Bit-
terroot Salish, sometimes referred to as the “Flathead”), the
Qlispe (Upper Pend d’Oreille) and Ksanka (Kootenai).
2
right to travel. They also write to address misconcep-
tions and flawed assumptions about the treaty right to
travel that have been introduced by Petitioner and its
supporters.
*e
-
SUMMARY OF ARGUMENT
The question in this case is whether the Yakama
Treaty of 1855 preempts the application of a Washing-
ton state fuel tax on fuel imported by a Yakama corpo-
ration onto the Yakama Reservation from out of state
over a public highway. Indian treaties are the supreme
law of the land and preempt state laws that would con-
strain or abrogate treaty rights; thus the answer to
that question depends on the nature and scope of the
Treaty’s express protection of the right to travel.
This Court’s bedrock principles, that Indian trea-
ties must be construed as the Treaty Indians would
have understood them under the circumstances, in-
cluding promises made during treaty negotiations by
agents of the United States, were applied correctly by
the Washington Supreme Court in its decision below. It
relied on the history and context of the Treaty’s right
to travel provision, which was the subject of fact-
intensive findings reached after reviewing hundreds of
exhibits and weighing competing Washington and
Yakama expert testimony, in Yakama Indian Nation v.
Flores, 955 F. Supp. 1229 (E.D. Wash. 1997) (Yakama
Indian Nation), aff’d sub nom. Cree v. Flores, 157 F.3d
762 (9th Cir. 1988) (Cree IJ). This approach was
3
consistent with federal court decisions that have relied
on the historical record to discern and employ the
treaty understanding of the Treaty Indians.
The history of Nez Perce and CSKT travel and
trade, which were inextricably linked, the context of
their treaty negotiations, and the terms of their trea-
ties—the only other treaties with an expressly re-
served right to travel similar to the Yakama treaty
right at issue—closely track and support the findings
made in Yakama Indian Nation and affirmed in Cree
II. And almost immediately post-treaty, hostilities be-
tween settlers and local tribes resulted in blocking the
road to The Dalles, which the Nez Perce used routinely
for trade and travel. Appealing to the Nez Perce Tribe’s
protection of the right to travel all such roads, Gover-
nor Stevens asked for Nez Perce assistance in dealing
with the hostilities. Careful examination of the simi-
larly-situated historical context and evidence of under-
standing of the Treaty Nez Perce and CSKT as to their
reserved rights to travel, strongly supports Respond-
ent’s position before this Court. And it simultaneously
provides contrast to the arguments of Petitioner and
its supporters, which can be as efforts to construe
the treaty right to travel without any examination of
the understanding of the Treaty Indians.
The Nez Perce Tribe and CSKT also write to ad-
dress misconceptions and flawed assumptions intro-
duced by Petitioner and its supporters. Contrary to its
arguments, Washington’s concerns over lagging fuel
tax revenues and increasing transportation infrastruc-
ture expenses are not a legal basis for abrogating a
4
judicially affirmed treaty right. The Nez Perce Tribe
and CSKT, and their members, are not involved in any
current dispute with Idaho or Montana concerning the
treaty right to travel. Idaho and Montana have chosen
to enter into fuel tax agreements with the Nez Perce
Tribe and CSKT respectively.
As tribes with similar historical records and simi-
lar reserved treaty rights, the Nez Perce Tribe and
CSKT urge this Court in the case before it to ensure
that the Treaty’s express protection of the right to
travel is given an interpretation consistent with the
understanding of the Treaty Indians, as the Washing-
ton Supreme Court did below.’
,
—
* The Tribes note that the primary focus of the United States’
Amicus brief is that the particular state tax in this case should be
characterized as a ‘tax on the possession of goods’ —-an interpre-
tation of state law rejected by that state’s supreme court, and ad-
dressed in Respondent's Br. at 42-47—that does not implicate the
treaty right to travel. U.S. Amicus Br. at 18-21. The existence of
the United States’ similar treaties with the Nez Perce and CSKT
counsel caution by this Court with respect to broader issues of
treaty interpretation, especially where these tribes are not par-
ties to this case.
5
ARGUMENT
I. THE TREATY’S EXPRESS PROTECTION
OF THE RIGHT TO TRAVEL WAS HISTOR-
ICALLY SIGNIFICANT AND MEANING-
FUL, AND REMAINS SO.
A. The context, history, and practical con-
struction of the Nez Perce Tribe and Con-
federated Salish and Kootenai Tribes
(CSKT) right to travel treaty provision
supports the understanding of the Treaty
Indians made in Yakama Indian Nation.
The federal courts, in Yakama Indian Nation and
affirmed in Cree I], conducted an extensive factual in-
vestigation into the historical context and the under-
standing of the Indians with respect to the Treaty-
reserved right to travel, to determine the nature of this
right, naturally focusing in that case on the Yakama.
These courts examined the Treaty language as a
whole, the circumstances surrounding the Treaty, and
the conduct of the parties since the Treaty was signed.
Id. The trial court carefully inquired into the inten-
tions of the parties at the time of the Treaty, and con-
sidered extensive testimony from three experts (Bill
Yallup, Sr., a tribal elder, and Deward Walker, ethno-
historian and archaeologist, on behalf of Yakama; and
historian Kent Richards on behalf of Washington) and
hundreds of exhibits, and made detailed factual find-
ings and conclusions of law. Cree IJ, 157 F.3d at 774.
Washington thoroughly and aggressively litigated the
factual and legal issues surrounding interpretation of
the Treaty both in the district court and the court of
6
appeals, and did not seek review by this Court. Natu-
rally, each subsequent case, including this one, has re-
lied upon an application of Yakama Indian Nation's
factual findings and conclusions of law concerning the
treaty right to travel, to a particular regulation at is-
sue.
The Nez Perce Tribe and CSKT—the other two
tribes with a similar treaty-protected right to travel—
were not parties to that litigation. An examination of
the importance of travel and trade to the Nez Perce
and CSKT, the context of their treaties, the history of
their treaty negotiations, and the practical construc-
tion of their treaties would support the Treaty Indians’
understanding of the right to travel set forth in
Yakama Indian Nation and Cree II.
1. The importance of travel and trade
to the Nez Perce and CSKT.
The aboriginal territory of the Nez Perce Tribe en-
compassed more than 13 million acres of present-day
north-central Idaho, northeast Oregon, and southwest
Washington. The Nez Perce traveled widely beyond
that area, including buffalo country to the east and
Celilo Falls on the Columbia River to the west. The ab-
original territory of the CSKT covered all of present-
day western Montana, and extended into parts of what
would become Idaho, Wyoming, and the Canadian
province of British Columbia. Members of the Nez
Perce Tribe and CSKT traveled that vast landscape
and beyond since time immemorial, hunting, fishing,
7
engaging in cultural activities, and exchanging goods
with neighboring tribes through an extensive network
of trade routes.
The Nez Perce and CSKT were part of the Plateau
culture area, those tribes located on the west side of
the Continental Divide of the Rocky Mountains, with
aboriginal homelands ranging from the Great Plains to
the Columbia River country. Smithsonian Institution
12 HANDBOOK OF NORTH AMERICAN INDIANS, PLATEAU,
Deward Walker, Vol. Ed. (1998) (HANDBOOK). Salish,
Kootenai, Pend d’Oreille, and Nez Perce people trav-
eled and traded throughout the territory as integral
parts of what ethnohistorians and anthropologists
have termed the “Columbia River Trade Network.” Jd.
at 642-52, 642 (including detailed map of trade net-
work).
The northern crossroads of that network, connect-
ing the Plains to the east with the Columbia River to
the west, intersect the heart of CSKT territory. John
Upton Terrell, TRADERS OF THE WESTERN MORNING-
ABORIGINAL COMMERCE IN PRECOLUMBIAN NORTH AMER
ICA, 105 (1967).
While the Blackfeet posed a constant danger to
tribal members who ventured east across the moun-
tains to hunt and trade, the CSKT continued to travel
the ancient routes. The Nez Perce had an expansive
trading range as well, from buffalo country to the east,
to fishing at Celilo Falls, to appearing with regularity
at trading hubs with Coastal tribes at The Dalles of the
8
Columbia River, to trading with Plains tribes at the
Shoshone Rendezvous. HANDBOOK, at 645.
“Early Europeans saw the Columbia Plateau as
a walled fortress, isolated and virtually impossible to
penetrate through the Rocky Mountain and Cascade
ranges that formed its outer defenses.” Laura Peers,
Trade and Change on the Columbia Plateau 1750-1840,
10 COLUMBIA MAGAZINE (1996-1997), at http-//www.
washingtonhistory.org/files/library/trade-change. pdf (last
visited September 20, 2018). However, to the tribes of
the region, “the Plateau was the center of the world,
linked to the four corners of the continent by well-worn
paths and a dense social and economic network.” /d. As
Americans pushed westward into the continent, the
earliest explorers experienced the vast trade network
developed by the Plateau tribes. Stopping at The Dal-
les on their journey down the Columbia, Lewis and
Clark observed the tribes that traveled there, bringing
with them
[S|kins, mats, silk grass, and bread made from
couse root, which they exchanged for wapato,
horses, beads, and items from the coastal
traders, now retraded. Those from the foot-
hills of the Rockies, such as the Nez Perces,
brought beargrass, horses, camas root, as well
as buffalo robes and other skins that they had
secured, either through their owu hunting or
in trade with the Flathead. These they ex-
changed for wapato, salmon pemmican, and
trade beads.
HANDBOOK, at 641 (citations omitted).
9
Following Lewis and Clark’s journey, tribes were
introduced to the idea of direct trade with the white
traders at outposts erected for that purpose. Jd. at 650-
52. The tribes of the Plateau, including the Nez Perce
and CSKT, adapted to the changing circumstances. Id.
“For centuries, Indian tribes have engaged in economic
and business activities, developing comprehensive
trade associations and transportation routes and offer-
ing a variety of products to neighboring Indian tribes
and later to non-Indians. Indian tribes carry on these
traditions today, although in a different context.”
TRIBAL NATIONS IN MONTANA: A HANDBOOK FOR LEGIS-
LATORS 38 (2016).
Accordingly, when the Nez Perce and CSKT met in
council with the United States to negotiate treaties,
maintaining and reserving their right to trade and
travel was of the utmost importance. This was well un-
derstood by negotiators on both sides.
The concept of travel and trade was well ingrained
into the culture and lifeways of the Nez Perce and
CSKT (as with Yakama) and was something these
tribes expressly retained as a right under their respec-
tive treaties with the United States. Grounded in the
culture and economy of the tribes, this reserved right
remains fundamental to this day.
10
2. Prior to the Treaty, the United States
and Stevens had a long relationship
with the Nez Perce and CSKT Indians.
In examining the understanding of the Treaty In-
dians to the Yakama Treaty, the federal court in
Yakama Indian Nation thoroughly examined pre-
treaty contacts between the United States, Stevens
and the Yakama. /d. at 1240-42. A similar history be-
tween the United States and the Nez Perce and CSKT
leading up to similar treaty provisions for these tribes
supports the understanding of the Indians set forth by
the federal court.
The Nez Perce Tribe and CSKT, like Yakama, had
a history with the United States that long preceded the
Treaty Council. The Nez Perce had, for example, res-
cued the Lewis and Clark expedition after it crossed
the Bitterroot Mountains.
Stevens, as Yakama Indian Nation noted, was
Chief Engineer of the Northern Division of the Pacific
Railroad Surveys chartered by Congress to ascertain
the most expedient transcontinental railroad route, in
addition to serving as the Territorial Governor of the
Washington Territory, and Superintendent of Indian
Affairs for Washington Territory.
Stevens, in all of his roles, was entering a world in
which the Nez Perce and CSKT, like the Yakama, al-
ready had well-established travel and trade networks,
as contemporaneous accounts document, and were
well connected with the Yakamas. Securing travel,
trade, and transportation routes were fundamental
motivations for all parties to these treaties.
11
Stevens’ northern railroad survey party included
several groups. Stevens’ group, the largest, surveyed
west from St. Paul, Minnesota, across the northern
plains and mountains to the Washington Territory. Al-
vin M. Josephy, Jr., THE Nez Perce INDIANS AND THE
OPENING OF THE NORTHWEST 1965, 1997 edition (Com-
plete and Unabridged), at 293 (Nez Perce INDIANS).
Stevens had reached Fort Benton in northern Montana
on September 1, 1853, and faced the problem, from the
perspective of a railroad route, of the prospect of In-
dian wars on the northern plains. Jd. at 300-01. He pro-
posed to the Blackfeet that they meet with him in
council the following spring to make a lasting peace
with the Americans and with the CSKT, Nez Perce, and
other tribes that came from the west to hunt buffalo.
He then faced the obstacle of finding a route west; he
was told of the easy pass to the Bitterroot Valley: “the
old buffalo road via Hellgate that the Flatheads and
Nez Perces often took to the plains.” Jd. at 301.
Existing Nez Perce and CSKT trade routes proved
to be vitally important to and interconnected with both
the railway surveys and the treaties. For example, Ste-
vens’ railroad report describes how “both routes trav-
elled are perfectly practicable for wagons,” how the two
trails through the Coeur d’Alene mountains are known
as “the northern and southern Nez Perces trails” and
how the Walla Walla area “has already attracted the
attention of emigrants, and if the Indian title were ever
extinguished, it would be rapidly filled up.” U.S. War
Department, EXPLORATIONS AND SURVEYS FOR A RAIL-
ROAD FROM THE Mississipp! RIVER TO THE PACIFIC
12
OCEAN: REPORT OF EXPLORATIONS FOR A ROUTE FOR THE
PaAciFiIC RAILROAD NEAR THE FORTY-SEVENTH PARALLELS
oF Norra LATITUDE, FROM ST. PAUL TO PUGET SOUND BY
LI. Stevens (University of Michigan Reprint Series,
2005) (1855) (STEVENS’ RAILROAD REPORT) 105, 108. Ste-
vens often directed his survey team to use Nez Perce
trails, such as the most southernly Nez Perce trail over
the Bitterroots to the Clearwater River and Fort Walla
Walla, with the accompaniment of Salish guides. NEz
PERCE INDIANS, at 303. Stevens, meeting large bands of
Nez Perce bound for buffalo country, informed them of
the promise to hold a council the next spring to make
peace with all tribes. Upon reaching Coeur d’Alene, a
Nez Perce Indian arrived from Fort Walla Walla with
news that the first group of emigrants from the States,
under the leadership of a man named James Longmire,
had travelled successfully from Walla Walla to Puget
Sound the month before over the new Naches Pass
Road. Nez PERCE INDIANS, at 303.
These routes, well known to the Indians and early
traders, informed Stevens’ railroad and treaty projects.
Stevens had confirmed the practicability
of a northern railroad, but the explorations of
the members of his party had, in addition, pro-
vided the expedition with considerable infor-
mation about the geography of the Sahaptin
and Salish lands and the best and fastest
routes of travel through them. Most of this
great interior country had already been well
known to the British traders; but at Olympia,
Stevens and his prepared detailed and
accurate maps and compiled minute traveling
13
memoranda that revealed the secrets of the
region for the first time to the American set-
tlers who had bypassed the area on their way
to the coast. This information was to be useful
during the next few years.
Nez PERCE INDIANS, at 307.
In the meantime, another survey party, under
Captain McClellan, started from Fort Vancouver, and
as set forth in Yakama Indian Nation, the Yakamas
were skeptical of him. As Josephy also explains,
[The Yakama]| knew that white men from the
settlements at Puget Sound were already fa-
miliar with the Naches Pass and were even
then building a wagon road over it. The high-
way would come out at the Yakima River and
run all the way through the Yakimas’ lands to
Fort Walla Walla where it would connect with
the Oregon Trail and give emigrants an oppor-
tunity to go to Puget Sound rather than to the
Willamette.
Nez PERCE INDIANS, at 298-99.
Lieutenant Mullan, as part of Stevens’ railroad sur-
vey, had covered “a huge expanse of territory, although
most of it was already thoroughly familiar to the trap-
pers and traders.” NEZ PERCE INDIANS, at 309. George
Gibbs, a lawyer, ethnologist, and advisor to Stevens
and also part of that survey team, reported, the tribes
“require the liberty of motion for the purpose of seeking,
in their proper season, roots, berries, and fish, where
those articles can be found, and of grazing their horses
and cattle at large.” STEVENS’ RAILROAD REPORT at 423
14
(emphasis auded). The historical record is clear that
prior to the treaty negotiations, both Stevens and the
Nez Perce and CSKT, like Yakama, were familiar with
the important role of travel and trade routes.
3. The importance of the Treaty right
to travel.
a. The Walla Walla Treaty Council,
Treaty with the Nez Perces.
The Walla Walla Treaty Council negotiations
were carefully examined in Yakama Indian Nation
and affirmed in Cree IJ, naturally focusing on the
Yakamas.
The history and context of the Nez Perce and
CSKT treaty negotiations confirm the significance of
the treaty-reserved rights to travel to these tribes
whose culture and way of life was crucially connected
to travel and trade, from buffalo country to The Dalles
and the Columbia.
The Nez Perce and Yakama treaties were negoti-
ated at what is commonly referred to as the Walla
Walla Treaty Council. As Stevens and the white men
spoke, interpreters translated English sentences to
Indian criers who announced it in loud voices to the
assemblage. The Nez Perce kept their own record of the
Council, as depicted in the eyewitness drawings made
15
by Gustavus Sohon‘ at the Treaty Council, though that
record has not been located.
Courtesy Smithsonian Institution.
Treaty Minutes, prepared by the United States,
provide a record of Stevens’ statements and assur-
ances to the Indians assembled at the Walla Walla
Treaty Council.°
The Nez Perce were prominent throughout the
proceedings at the Walla Walla Treaty Council, which
* Jack Nisbet, Sohon, Gustavus (1825-1903), HistoryLink.org,
at http//www.historylink.org/File/8593 (last visited September
20, 2018); see John C. Ewars, Gustavus Sonon’s Porrrarr or FLar
HEAD AND PEND D’OREILLE LNDIANS (1948).
* The Official Proceedings of the Council in the Walla Walla
Valley (Treaty Minutes) were examined by the Yakama Indian
Nation court.
16
some members of the CSKT attended. The Nez Perce
arrived at the Treaty Council with “considerable cere-
mony,” first planting a United States flag that had
been presented to them by officers in the Cayuse
War in the valley near the treaty ground. James Doty,
JOURNAL OF OPERATIONS OF GOVERNOR ISAAC INGALLS
STEVENS OF WASHINGTON TERRITORY (JOURNAL OF OPER
ATIONS), May 24, 1855.° They arrived “all mounted on
fine horses” in a show of strength, with at least 29
chiefs and headmen riding in first, followed by some
600 warriors riding two abreast who passed through
the camp, then returned to the banner of the United
States flag. Id.
Courtesy Smithsonian Institution.
* James Doty, Secretary to Stevens, accompanied Stevens on
the railroad surveys and assisted Stevens with prior treaty nego
tiations.
17
Prior to the opening of the Council, Stevens and
James Doty visited Lawyer, a Nez Perce leader, at his
lodge at the treaty grounds. Jd. May 28, 1855. Lawyer
explained a map of Nez Perce country he had drawn
for Stevens, and Stevens expressed appreciation for
Nez Perce friendship since the time of Lewis and
Clark. Id.
Stevens broached the right to travel early in the
Council. On May 31, 1855, Stevens told the Indians
present:
We do not want you to agree not to get
roots and berries, and not to go off to the Buf-
falo: we want you to have your roots and get
your berries, and to kill your game; we want
you if you wish to mount your horses and go
to the Buffalo plains, and we want more; we
want you to have peace there.
Treaty Minutes.
Stevens explained further on June 5, 1855:
You will be allowed to pasture your ani-
mals on land not claimed or occupied by set-
tlers, white men. You will be allowed to go on
the roads, to take your things to market, your
horses and cattle. You will be allowed to go to
the usual fishing places and fish in common
with the whites, and to get roots and berries
and to kill game on land not occupied by the
whites; all this outside the Reservation.
Id. (emphasis added).
18
Stevens’ knowledge of the importance of
the travel and trade routes and resources cru-
cial to the tribe, as well as the relationships
between the tribes, is evident when Nez Perce
leader Looking Glass arrives at the Treaty
Council. Stevens acknowledged that Looking
Glass was close by and that “he has come way
from the Blackfeet—the buffalo country
across the mountain” and then describes his
plan that “two or three of us will go and take
him by the hand and set him down by his chief
in the presence of his friend Kamiakun |of the
Yakamas}.”
Id, June 8, 1855.
Looking Glass, having learned of the Council in
the St. Mary’s valley of present-day Montana on his
way home to Nez Perce country, “pushed on making the
distance of 300 miles in seven days” across the Lolo
trail to reach the Treaty Council. JOURNAL OF OPERA.
TIONS, June 8, 1855. Looking Glass’ arrival was another
show of strength, with his party coming toward the
camp “painted and armed, singing a war song, and
flourishing from the top of a pole, a newly taken scalp
lof a Blackfoot).” Jd. Looking Glass, without dismount-
ing from his horse, expressed his indignation that,
“While I was gone you have sold my country.” Jd.
Stevens, as a result of Looking Glass’ arrival and
concern about the Treaty, “once more—for Looking
Glass’ benefit—explained the principal points” of the
Treaty on June 9, 1855. Treaty Minutes. Stevens as-
sured the Nez Perce leader and all assembled:
19
I will ask of Looking Glass whether he
has been told of our council. Looking Glass
knows that in this reservation settlers cannot
go, that he can graze his cattle outside of the
reservation on lands not claimed by settlers,
that he can catch fish at any of the fishing sta-
tions, that he can kill game and go to Buffalo
when he pleases, that he can get roots and
berries on any of the lands not occupied by
settlers. He knows what the Reservation is
... and all the other things that have been
spoken of: the people all know it, it has been
read over two or three times.
Id.
When the Council adjourned that Saturday, no
agreement had been reached. Jd. When the Council
opened on Monday, June 11, 1855, “[njo mention was
made of the important fact” that after the Council had
adjourned on Saturday, Kamiakun and other Yakamas
had signed the Yakama Treaty. JOURNAL OF OPERATIONS,
June 11, 1855. The Treaty Minutes document that at
some point on June 11, 1855, Lawyer, Looking Glass,
and other Nez Perce signed the Treaty; the Treaty
Minutes do not reveal the deliberations or pressures
that resulted in Nez Perce agreement. After the Nez
Perce signed the Treaty, Looking Glass and other Nez
Perce accompanied Stevens to the subsequent Treaty
Council with the CSKT as well as the “common buffalo
treaty” council with the Blackfeet at Fort Benton.
On June 23, 1855, an article signed by Stevens
appeared in the Oregon Weekly Times announcing,
20
prematurely, that all areas outside the reservations
were open to settlement. NEZ PERCE INDIANS, at 337-38.
This is widely acknowledged as leading to the hostili
ties that broke out in the coming months, including
those that blocked the road to The Dalles—an event
that, as described below, led Stevens to emphasize the
Nez Perce treaty right to travel.
b. The Hellgate Treaty Council, Treaty
with the CSKT.
After leaving the Walla Walla valley, Governor Ste
vens traveled through Nez Perce country, collecting
a delegation of Nez Perce to attend the Blackfoot Coun.
cil, then passed over the “southern Nez Perce Trail” to
hold a council with the CSKT. JOURNAL OF OPERATIONS,
July 7, 1855.
Courtesy Smithsonian Institution.
21
On Saturday, July 7, 1855, Stevens selected a loca-
tion for the Treaty Council at Council Grove, where the
Bitterroot River flows into the Clark Fork River (what
Stevens referred to as “Hellgate”) near present-day
Missoula, Montana. The Indian people at the Council
expected to discuss the establishment of peace between
the Salish and Kootenai and their encroaching ene-
mies, the Blackfeet, not land cessions. BIGART AND
Woopcock, IN THE NAME OF THE SALISH AND KOOTENAI
NATION—THE HELLGATE TREATY AND THE ORIGIN OF THE
FLATHEAD INDIAN RESERVATION 1 (1996). Prior to the
formal! Council, prominent Salish, Kootenai, and Pend
d’Oreille leaders met with Stevens, who said to them:
You have heard I suppose of the Council
at Walla Walla and what was there said to the
Indians. The treaties made there were fully
explained. We made treaties with the Nez
Perces and others, numbering in all some
6000 Indians, and placed them on reserva-
tions. I wish to make with you treaties similar
to those made at that place, and on Monday I
will speak to you about it and explain all
things fully; but in the meantime the Flat-
heads and Nez Perces who came up with us
were present at that council and can tell you
all about it.
Official Proceedings of the Council in the Bitter Root
Valley, in Albert J. Partoll, The Flathead Indian Treaty
Council of 1855, 29 Paciric NORTHWEST QUARTERLY 283
(July 1938) (Hell Gate Treaty Minutes).
22
In opening the formal Treaty Council on July 9,
1855, Stevens emphasized that several CSKT mem-
bers had been present at the Walla Walla Treaty Coun-
cil and his intent “to make with you a treaty similar to
the treaty I made with the Nez Perces.” Hellgate
Treaty Minutes, at 287.
Governor Stevens, seeking to conclude the Treaty
Council four days later and facing tribal leaders reluc-
tant to sign the document, explained the provisions of
the treaty as including a reservation of land as their
exclusive homeland, along with the right to carry on
their traditional way of life throughout their aboriginal
lands:
You have the right however to pasture
your animals at other places if those places
are not occupied by the whites. You have in
like manner the right to gather roots and ber-
ries, to take fish and kill game. You have also
the right to go on to the roads of the whites and
take your produce to market. The Great Father
has the right to make roads through your
country if necessary.
Hellgate Treaty Minutes, at 302 (emphasis added).
The treaty was signed on July 16, 1855. In this
treaty, “(t]he Indians ceded some 25,000 square miles,
including the Hellgate-Missoula region and the Clark
Fork Valley trade route, both of which Stevens wanted
for the railroad.” Nez Perce INDIANS, 340.
23
4. Almost immediately post-treaty, Gov-
ernor Stevens invoked the treaty
right to travel in response to hostili-
ties blocking the road to The Dalles
the Nez Perce used to get winter sup-
plies.
After concluding a treaty with the Blackfeet en-
suring the use of a Common Buffalo Ground for tribes
including the Nez Perce and CSKT, Stevens headed
west to meet with the Spokanes and Coeur d’Alenes.
On October 29, 1855, while on the Teton River on the
eastern side of the Continental Divide, Stevens learned
from his express rider, W.H. Pearson, that war had “ex-
ploded on both sides of the Cascades”:
The Indians of Puget Sound had attacked
the settlements in that district, and along the
Columbia River from the Cascades to the Col-
ville Valley tribes had gone on the warpath.
The Cayuses, Wallawallas, Umatillas, Pa-
louses, and Yakimas were fighting . . . Indian
agent A. J. Bolon had been murdered and an
expedition of federal troops under Major Hal-
ler had been defeated and forced to retreat
from the Yakima country ... The Spokans
and Coeur d’Alenes were about to join the hos-
tiles, and even many of the Nez Perces were
threatening to enter the war.
Stevens and his party, said Pearson, were
cut off. A large Indian army lay in wait in the
Walla Walla Valley to wipe them out. Pearson
himself had been chased by warriors from the
Umatilla to the Nez Perce country, where Red
24
Wolf and other friendly Indians had taken
care of him. Then a Nez Perce had guided him
hurriedly across the Lolo Trail to bring the
news to Stevens.
NZ PERCE INDIANS, at 343-44.
Stevens, traveling the Nez Perce Lolo Trail, over-
took Looking Glass and the delegation of Nez Perce
chiefs returning to their homes, who had already
heard of the outbreak of hostilities and agreed to
accompany Stevens across the mountains. /d. Stevens
met with the Coeur d’Alenes and “[a]t the same time
Stevens learned of the dangers still facing him on
the road ahead.” Jd. at 349. The tribes father south
had gathered to block his route, and Peopeo Moxmox
[Walla Walla] “was said to have boasted that he would
take Stevens’ scalp himself.” Jd. Stevens dispatched
most of the Nez Perce delegation to Lapwai to deter-
mine whether he could count on Nez Perce assistance,
and then set out for Spokane country. Accompanied
by three Nez Perce leaders, including Looking Glass,
Stevens met with the Spokanes, Couer d’Alenes, and
Colvilles, some of whom accused Stevens of being re-
sponsible for the war.
Stevens departed for Nez Perce country on Decem-
ber 6, 1855, and was met the next day by a messenger
with the news that the Nez Perce had not joined the
war and would help Stevens. JOURNAL OF OPERATIONS.
On December 11, 1855, Stevens and his party
“|plushed on as rapidly as the state of the roads, very
heavy and slippery from the rain and melting snow,
25
would permit,” reaching the Lapwai area, camping in
an area with “208 Nez Perce Lodges, containing not
less than 2000 men, wom|[e]n and children, and able to
muster 800 warriors.” Id.
On December 12, 1855, Governor Stevens met
with several principal chiefs of the Nez Perce, and re-
counted how he learned of the war as he was leaving
Fort Benton, and had since received information that
the Walla Wallas had entered the war and that it was
feared the Cayuses would as well. Stevens stated, “I
think that all the Nez Perces who have arms had better
go with me, and then we can see how it is.” JOURNAL OF
OPERATIONS. Lawyer responded that before proceeding,
“We want to talk and find out our hearts just as they
are.” Looking Glass made a similar point, responding
that,
It is better to find out all our hearts before you
start. There are people in the way blocking up
your road. We do not know what they will
do. . . . 1 told you long ago that the Nez Perce
trail to Walla Walla was the road for you to
travel on. Although they may be fighting, it is
the road, there is no other.
Id.
Governor Stevens assured the Nez Perce that “lilf
we find them [the other Indians] friendly we shall not
fight them, but if we find them with arms in their
hands, we shall.” Jd. Governor Stevens then invoked
the treaty right to travel agreed to at the Walla Walla
Council:
26
The Cayuses, and Walla Wallas know that the
Nez Perce are friendly to the Whites. What
will they de to a Nez Perce who goes to the
Dalles to get his winter supplies? Did not the
Cayuses and Umatillas and Walla Wallas
agree in the Treaty that the Nez Perces might
travel in peace on all the roads through their
country, the road to the Dalles?
We agreed in the Treaty every Indian should
have a right to travel on the road, yet now the
hostile Indians are blocking it up.
Id.
The following day, December 13, 1855, Stevens
met in a formal council with some 200 Nez Perce, in-
cluding all the principal chiefs, with Lawyer presiding.
Stevens acknowledged his appreciation for Nez Perce
assurances that they were not joining the warring
tribes: “My heart is glad to see you and hear you speak
as you have done.” Jd. Stevens stated, “We parted [the
Walla Walla Treaty Council] as friends—did they |the
Indians who are fighting] really believe I was their en-
emy, and would they not trust to the agreements made
with them?” Id.
Governor Stevens then, again, invoked the treaty
right to travel to address the road to The Dalles that
had been blocked up:
Tomorrow I wish to start for the Walla Walla
Valley. I want the Nez Perces, who have horses
and guns to go with me.
27
Recollect my friends, in the Treaty of Walla
Walla, you had the right guaranteed to you, to
travel on all the roads to the Dalles, all the
roads through the Lower Country. Yet those
roads have been blocked up against you, as
well as against the Whites. Get ready there-
fore, we will start tomorrow if we can, and
open the road. There will be payment made
you for this service, when the President can be
written to, and we receive his answer. You will
be paid like the White Volunteers.
Id.
The Nez Perce chiefs “expressed their hearty con-
currence in the sentiments expressed by the Governor,
and said their Warriors should be ready if possible to-
morrow.” Id.
The following evening, December 14, 1855, after
Stevens’ men began moving out and the Nez Perce pre-
pared to accompany Stevens, a messenger arrived with
news that a large army of volunteers had defeated the
hostile Indians in a four-day battle in the Walla Walla
valley and scattered the Indians. Sixty-nine Nez
Perces accompanied Stevens as an honor guard to
Walla Walla. Nez Perce INDIANS, at 356. No trouble
was encountered, and upon reaching Walla Walla, Ste-
vens deemed his own party sufficient in numbers to
march to The Dalles, and sent the Nez Perce auxilia-
ries back to their home country, issuing orders provid-
ing that Nez Perce volunteers be mustered out of the
service with compensation. JOURNAL OF OPERATIONS,
December 29 and 31, 1855.
28
5. Nez Perce and CSKT travel and
trade continue to be significant
following the Treaty.
Travel and trade continued to be significant to the
Nez Perce and CSKT following the treaties. Stevens,
for his part, became an advocate for the treaties in his
speeches before Congress. E.g., House Delegate Isaac
Stevens to J.W. Nesmith, Supt. Ind. Affairs, January
18, 1858 (Stevens Papers, University of Washington Li-
brary, Reel 3). And, for example, the Commissioner of
Indian Affairs’ Report to Congress in 1860 noted,
“|t|hese Indians have large bands of horses, which they
sell to the traders, or drive to Walla- Walla and the Dal-
les, and exchange for blankets, clothing, and groceries.”
Report of the Commissioner of Indian Affairs, 1860, H.
Ex. Doc. 1, Vol. 1 (1861) (emphasis added).
The Nez Perce Tribe and CSKT, and their mem-
bers, view their treaty as “sacred” and “sacrosanct” doc-
uments whose importance “cannot be overstated,”
similar to testimony offered by the Yakama in Yakama
Indian Nation, 955 F. Supp. at 1237-38 (describing
testimony of Yakama elders and experts). The current
Chairman of the Nez Perce Tribe, Shannon Wheeler, a
descendant of Kool-kool-tick-lih-kin (who was present
at the Treaty Council), for example, frequently refers
to the treaty right to travel as a protection of “sacred
economic security” for the Nez Perce. Chairman’s Re-
port to the Nez Perce General Council, September,
2018. As such, it is not some ancient relic from the past,
but rather a foundation to maintain a way of life no
less important than any other provision of the Treaty.
29
Similarly, the CSKT view the Treaty of Hellgate as a
direct connection to the tribal leaders who negotiated
it with the United States, and know that those tribal
leaders sought to preserve the culture and traditional
life-ways of the Salish, Pend d’Oreille, and Kootenai
people— including the right to travel—that would en-
sure the tribes’ political and economic survival in a
rapidly changing world.
Today, economic development for the Nez Perce
and CSKT continues to rely on economic tools involv-
ing travel, trade, and commerce that led areas like Cel-
ilo Falls, for example, to be described as “|t}he Great
Mart of all this Country [that the Nez Perce] visit for
the purpose of tradeing horses buffalow robes for
beeds, and Such articles as they have not” by Lewis
and Clark, and as the “Wall Street of the West” more
recently."
’ JOURNALS OF THE Lewis AND CLARK Expeprrion (Gary E.
Moulton, ed.), April 16, 1806, at https://lewisandclarkjournals.
unl edu/tem/c.jrn. 1806-04- 16#lc jrn. 1806-04-16.03 (last visited
September 20, 2018).
* Expressing the sense of the House of Representatives con-
cerning the 50th anniversary of the flooding of Celilo Falls, H.Res.
217, 110th Cong. (April 17, 2007).
30
B. The arguments of Petitioner and its sup-
porters which seek to render the Treaty
right to travel meaningless, are fatally
flawed, and must be rejected.
1. Treaties may not be interpreted di-
vorced from an examination of the un-
derstanding of the Treaty Indians.
This Court, in examining Article III of the Yakama
Treaty over a century ago with respect to the right to
“take fish at all usual and accustomed places in com-
mon with the citizens of the territory” rejected the no-
tion that the Indians “acquired no rights but what any
inhabitant of the territory or state would have”—that
is acquired no rights but such as they would have had
without any treaty—emphasizing that that would be
“an impotent outcome to negotiations and a convention
which seemed to promise more, and give the word of
the nation for more.” United States v. Winans, 198 U.S.
380 (1905).
This Court again, in examining the Article III “in
common with” right in the Yakama Treaty, emphasized
the importance of interpreting treaties as the Treaty
Indians would have understood them. United States v.
Tulee, 315 U.S. 681 (1942); Washington v. Washington
State Commercial Passenger Fishing Vessel Ass’n, 443
U.S. 658 (1979).
In Yakama Indian Nation, the court emphasized,
“Notably, the Treaty does not include a restriction on
the Yakamas’ right to travel; rather it secures a right
to travel.” 955 F. Supp. at 1246. “[Als the Yakamas
31
understood this term, no impediment was placed on
their customary practice of travel or their right to
travel to market.” Jd. at 1247. The court emphasized
that no evidence suggests that the term “in common
with” placed Indians “in the same category as non-In-
dians with respect to any tax or fee the latter must
bear with respect to public roads.” Jd. Stevens “explic-
itly guaranteed that the Yakamas would retain the
right to travel outside the reservation in pursuit of
their traditional practices of fishing, hunting, and
gathering, as well as taking goods to market.” Jd. In
the terms of the bargain “no reference is made to other
conditions such as payment for or maintenance of pub-
lic roads, either on or off-reservation,” Id. at 1247-48.
“|T|he Yakamas would have naturally understood that
they would be able to travel the public highways with-
out restriction.” Jd. After emphasizing that Stevens
“was well aware of the Yakamas’ far-ranging patterns
of travel and the importance of travel to Yakama cul-
ture” the court found that “No evidence suggests that
Stevens communicated an intent to restrict the Yaka-
mas’ right to travel, such as demanding payment or
fees for the construction of public roads.” Jd. Thus, the
language of the Treaty, when viewed in the historical
context as the Yakamas would have understood it, “un-
ambiguously reserves to the Yakamas the right to
travel the public highways without restriction for pur-
poses of hauling goods to market.” Jd. The court noted
“The record clearly demonstrates the Yakamas under-
stood the Treaty to preserve their right to travel, much
as it secured their right to fish in usual and accus-
tomed places.” Jd. at 1249. The court of appeals
32
affirmed, after reviewing the Treaty Minutes and the
district court’s findings of fact. Cree 17, 157 F.3d at 771.
Yakama Indian Nation and Cree II demonstrate
that the treaty construction arguments made by Peti-
tioner and its supporters have no merit.
First, this Court’s long-standing rules for inter-
preting Indian treaties are, alone, enough to reject the
two approaches to Treaty construction offered by the
amici states: parsing Treaty language “according to
the technical meaning of the words to learned lawyers”
and construing Treaty language without any examina-
tion of the Treaty Indians. Amici States’ Br. at 15-17.
The lengths to which amici states must go to offer a
tortured construction of the Treaty right is remarka-
ble, and divorced from the factual examination and
findings of fact and law in Yakama Indian Nation and
Cree II.
Second, as this Court in United States v. Winans
held with respect to the Treaty right of taking fish,
Yakama Indian Nation, affirmed by Cree II, rejected
the argument that the treaty right to travel meant
nothing more than what any other citizen of the terri-
tory would possess. This argument was thoroughly
made, considered, and rejected.
Third, Petitioner's efforts to suggest that the
Yakama Treaty should be construed by examining
some other tribe’s experience in some other region of
the country (the Utah Tribe) (Pet. Br. at 38 n. 18) that
bears no relationship to the history of the Pacific and
Inland Northwest, cannot be squared with a required
33
precise examination of the context and history of these
treaties.
Fourth, amici states attempt to obtain purchase
by arguing that the treaty language is the right to
“travel” and does not use the word “trade,” citing a
statement by the court in King Mountain Tobacco Co.
v. McKenna, 768 F.3d 989 (9th Cir. 2014). This sound-
bite says too little and attempts to prove too much.
King Mountain itself is clear that this reading does
not—and cannot under rules for interpreting Indian
treaties— end the inquiry into the meaning of the right
as the Treaty Indians would have understood it. None
of the cases following Yakama Indian Nation and Cree
IT alter the fundamental findings of fact and conclu-
sions of law concerning the Treaty Indians’ under-
standing of the right to travel, and King Mountain
specifically references all of those cases—Yakama In-
dian Nation, Cree II, United States v. Smiskin, 487 F.3d
1260 (9th Cir. 2007), Ramsey v. United States, 302 F.3d
1074 (9th Cir. 2002)—to distinguish the situation that
was before it.
ll. THE “PARADE OF HORRIBLES” ARGU-
MENTS ADVANCED BY PETITIONER AND
ITS SUPPORTERS ARE UNFOUNDED.
A. Astate’s inability to impose a tax such as
the one at issue does not necessarily
mean that the good is untaxed or that
another sovereign will not collect a tax.
Petitioner and its supporters attempt to leave the
impression that if a state cannot collect a tax, this
34
means the tax goes uncollected. This is not the case.
As sovereigns, tribes may collect a tax, and may use
those revenues for purposes similar to those of other
governments. The Nez Perce Tribe, for example, has
chosen to collect a fuel tax from its retailers that is
dedicated to transportation-related expenses including
road maintenance costs. It did so before entering into
a fuel tax agreement with Idaho and it continues to do
so pursuant to an agreement that the Nez Perce Tribe
and Idaho entered into in 2007.
B. Washington’s transportation infrastruc-
ture expenses are not a sufficient legal
basis for abrogating a judicially af-
firmed treaty right.
Petitioner's supporters argue that Cougar Den’s
activities “impact Washington State fuel tax revenues,
diminishing funds available for necessary transporta-
tion operations and capital projects at a time when
Washington transportation needs are not being met
due to lagging revenues.” Amici Washington Oil Mar-
keters Ass’n et al. Br. at 18. The inability of Washington
to collect a fuel tax from Cougar Den to address its
transportation infrastructure needs accompanies an
argument that the Washington Supreme Court’s appli-
cation of the treaty right to this particular state fuel
tax should be overturned.
35
However, as the article cited by Petitioner's sup-
porters explains,’ Washington is currently studying
other approaches to address the reality that road con-
struction and maintenance expenses significantly out-
pace—by orders of magnitude—its fuel tax revenue.
Washington, which does not have a state income tax, is
studying options including a “pay-by-the-mile” road
usage charge on miles driven on the highway. Jd. While
that particular approach, under the established case
law, would be an impermissible infringement on the
treaty right to travel, it serves to illustrate two points.
First, state regulations can and do change, as do state
and tribal relationships; the facts specific to this nar-
row state fuel tax dispute should not be used to abro-
gate the judicially affirmed treaty right to travel in
resolving this case or in addressing some future regu-
lation-specific harm that Petitioner or its supporters
may envision. Second, respectfully, any ruling from
this Court on the intersection of the treaty right to
travel and the very specific state fuel tax at issue
should not alter the Treaty Indians’ understanding of
the right to travel set forth in Yakama Indian Nation
and affirmed by the Court of Appeals in Cree /1.
® David Gutman, Washington state to test pay-by-the-mile as
a way to fund highways, Seattle Times (September 6, 2017) (cited
in Washington Oil Marketers Ase’n et al. Br. at 18 n. 16).
36
C. There are no current disputes concern-
ing the treaty right to travel involving
the Nez Perce Tribe, CSKT, Idaho, Mon-
tana, or any other state.
Currently, there are no disputes concerning the
treaty right to travel involving the Nez Perce Tribe,
CSKT, Idaho, Montana, or any other state. Idaho has
not contacted the Nez Perce Tribe to indicate it has a
concern with the treaty-reserved right to travel. Idaho
did not contact the Nez Perce Tribe to discuss what it
may see as the potential consequences of the Washing-
ton Supreme Court’s decision. The state amici brief in
support of Petitioner, which Idaho joined, does not
identify any active concern with the Nez Perce Tribe
and the treaty-reserved right to travel. And the state
amici brief does not identify any active concern involv-
ing the CSKT.
D. Idaho and Montana have chosen to enter
into fuel tax agreements with the Nez
Perce Tribe and CSKT.
Many of the assumptions Petitioner and its
supporters make concerning state and tribal relations
and state and tribal fuel tax agreements—that serve
as a launching point for their “parade of horribles” ar-
guments—ignore the intricacies and nuances of
state-tribal relationships and the agreements that
have been reached.
1. Both Idaho and Montana have entered into
fuel tax agreements with the Nez Perce Tribe and
37
CSKT, respectively. For Idaho and the Nez Perce, these
agreements were preceded by contentious litigation
and have now been in place for well over a decade. For
Montana and CSKT, these agreements have “resolved
much of the previous legal uncertainty and economic
disarray caused by competing and conflicting state
and tribal taxation frameworks,” avoiding “costly and
prolonged litigation—and the resultant problems for
private business development on reservations... .”
Governors Counsel State-Tribal Revenue Sharing
Memorandum to Montana Legislature 1 (State-Tribal
Relations Interim Committee Hearing, October 21-22,
2015)."° Montana’s state-tribal tax agreements are in-
tended to “assist in the administration of taxes and
prevent the double taxation of certain economic trans-
actions over which both the tribe and state have taxa-
tion authority.” Id.
2. The mechanics of the fuel tax agreements that
Idaho and Montana entered into with the Nez Perce
Tribe and CSKT, respectively, are distinctly different
from each other, and different from the approach
Washington describes as in place for tribes in Wash-
ington other than Yakama. This illustrates that sover-
eigns may choose different approaches to finding
acceptable interest-based resolutions reflecting the
nuances of state-tribal relationships and the intrica-
cies of state regulations, and that the approach Wash-
ington describes that it has entered into with other
© Available at: https-//leg.mt.gov/css/Committees/Interim/
2015-2016/State- Tribal -Relations/Meetings/Oct-20 1 5/oct- 2016.
htm! (last visited September 20, 2018).
38
tribes in Washington should not be generalized to
other situations.
The CSKT-Montana Agreement is in place until
2022. The CSKT did not concede the diminution of any
Treaty-reserved rights (including the Article III right
to travel), but agreed that as long as the Agreement is
in effect and Montana makes the required quarterly
payments, the CSKT will not participate in litigation
challenging state taxation of motor fuels on the Flat-
head Reservation.
The CSKT and Montana have committed to good
faith negotiations for successive ten year terms and
there is nothing to indicate that the Agreement will not
be renewed. Any concerns raised by the Petitioner or
its amici regarding what might occur in Montana
should this Court affirm the Washington Supreme
Court’s decision below are unfounded. (See, e.g., Amici
States’ concern that affirmance “may encourage” the
CSKT and Nez Perce to “adopt business models that
allow them to ‘market’ their exemption from taxation”
nationwide. Brief of Amici States, p. 6). The Montana-
CSKT partnership has worked well. The predictable
stream of revenue generated by the Agreement is used
to supplement funding for programs and services
needed by CSKT tribal members. The “parade of horri-
bles” theorized by Petitioner and its supporters are not
a reality in Montana.
39
E. Petitioner’s arguments about opening a
Pandora’s Box with respect to the inter-
section of the treaty right to travel with
public safety are unfounded.
1. Despite Petitioner’s continued arguments be-
fore this Court, neither this case, nor the treaty right
to travel, places a cloud over Washington’s ability to
regulate Yakama use of Washington highways with re-
spect to licensing, weight limits or other safety rules,
speed limits, felon-in-possession of firearm prohibi-
tions, or regulations that prohibit certain fruit from
being hauled from a quarantined area through a pest-
free area. Pet. Br. at 44-45. Petitioner’s fears concern-
ing these types of public safety regulations were
of the Washington State Supreme Court. Pet. App. at
14a-16a (majority); 27a (dissent). Similar arguments
that the treaty right to travel would sanction transport
of “illegal narcotics” or “forbidden fruits [and] vegeta-
bles” have previously been rejected as “unfounded if
not disingenuous.” Smiskin, 487 F.3d at 1270-71. As
the Yakama Nation explained:
The Yakama Nation is a sovereign nation,
with its own government, laws and courts, not
a rogue organization or menace to civil order
[Tjhe Nation has no interest in promot-
ing, condoning, or protecting activities by its
members that pose real dangers to public
health, public safety, natural resources, or
public infrastructure. [T]he Yakama Nation
40
and its members share the interest all citizens
have in public health, public safety, conserva-
tion and equitable exploitation of natural re-
sources, and adequate public infrastructure.
Id. at 1271.
Like Yakama, the Nez Perce Tribe and CSKT have
protective governmental interests that as a practical
matter nullify Petitioner's public safety fears.
2. Neither is this case about the intersection of
the treaty right to travel with the intricacies of state
tobacco taxes or federal tobacco taxes, which involve a
distinct and different set of regulatory regimes and fac-
tual inquiries from the Washington motor fuel tax at
issue and must be decided on those specific facts and
regulations. The Nez Perce Tribe and CSKT have no
state-tribal tobacco tax disputes and implement cam-
paigns to prevent and address tobacco use, working in
concert with federal, state, and non-governmental
partners.
As tribes with similar historical records and simi-
lar reserved treaty rights, the Nez Perce Tribe and
CSKT urge this Court in the case before it to ensure
that the Yakama Treaty’s express protection of the
right to travel is interpreted consistent with the under-
standing of the Treaty Indians, as the Washington Su-
preme Court did below.
>
41
CONCLUSION
The judgment of the Washington Supreme Court
should be affirmed.
Respectfully submitted,
JOHN T. HARRISON Davip J. CUMMINGS*
RHONDA R. SWANEY JULIE S. KANE
CONFEDERATED SALISH AND DARREN L. WILLIAMS
KOOTENAI TRIBES, NZ PERCE TRIBE,
LEGAL DEPARTMENT OFFICE OF LEGAL COUNSEL
42487 Complex Blvd. 100 Agency Road
P.O. Box 278 P.O. Box 305
Pablo, Montana 59855 Lapwai, Idaho 83540
Counsel for Amici Curiae
September 2018 *Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.