Chairman JoDe Goudy of the Yakama Nation speaks at the Native Nations Rise rally in Washington, D.C., on March 10, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Leader of Yakama Nation denied entry into Supreme Court hearing

Tuesday, October 30, 2018

By Acee Agoyo

This post has been updated with comments from the U.S. Supreme Court.

WASHINGTON, D.C. -- Chairman JoDe Goudy of the Yakama Nation was denied entry into a U.S. Supreme Court hearing on Tuesday morning as he sought to observe arguments in a case directly impacting his people's rights.

Why? Because he was wearing his traditional headdress, along with his regalia.

“My First Amendment right was violated,” DeGoudy told Indianz.Com later in the afternoon.

Goudy was able to get into the Supreme Court's building in the nation's capital with his headdress. But once inside, he was told by security personnel that he couldn’t enter the room for arguments in Washington State Department of Licensing v. Cougar Den, a closely-watched treaty rights case.

Although the tribe has submitted a brief directly addressing the question being raised about the 1855 Yakama Treaty, Goudy didn't want to go inside without his headdress.

"I wasn't going to be taking off my headdress," Goudy told Indianz.Com. "I think that's a violation."

Goudy said tribal attorneys asked staff to reconsider their stance in order for him to watch the proceedings. But the request was turned down.

"It's unfortunate," he told Indianz.Com. "But that's how it goes for us in Indian Country."

According to the Supreme Court, "hats or head coverings are permitted in the Courtroom for religious or medical reasons only." That exception apparently did not apply to Goudy, however.

"The wearer informed the Court that the headdress is worn for religious ceremonial reasons when appropriate but not as a matter of his faith in a secular setting," a spokesperson said, in reference to the chairman. "Other members of his party who were not wearing headdresses were seated in the Courtroom."

Indianz.Com on YouTube: Chairman JoDe Goudy of Yakama Nation #NativeNationsRise

Despite the slight, Goudy was more concerned about the arguments being made inside the hearing room. Cougar Den is the first of three Indian law cases that are being heard by the Supreme Court during its current term.

“It’s not so much as what happened to me,” Goudy said. “It’s more important about the case itself.”

As part of the case, the tribe submitted an amicus brief to the justices. The September 24 filing calls on the Supreme Court to repudiate the Doctrine of Christian Discovery that has repeatedly been used to limit the rights of Native peoples.

“It’s dehumanizing when that happens,” DeGoudy told Indianz.Com of the continued usage of what he called a "false, religious doctrine."

Had he made it inside the hearing room, Goudy would have watched the justices debate a number of issues affecting his people's way of life. Their questions focused on whether the state of Washington can impose a fuel tax on a business owned by a tribal citizen.

The state's highest court previously ruled that the Yakama Treaty of 1855 -- which includes a "right to travel" provision that ensures tribal citizens can bring their goods to market -- barred such a tax. A number of the justices, including the two newest members, Brett Kavanaugh and Neil Gorsuch, appeared to be swayed by that pro-tribal interpretation.

In posing questions to Noah Purcell, Washington's solicitor general, Kavanaugh noted that the tribe ceded millions of acres to the United States as part of the treaty. They were promised something in return, the Supreme Court's newest justice said.

"The effect was that, in taking your goods to market, which was the promise, in exchange for a huge area of land -- an area of land the size of the state of Maryland that was given up by the tribe -- that you could take your goods to market," said Kavanaugh, who was sworn in as an Associate Justice earlier this month.

The fuel tax at issue, Kavanaugh argued, "burdens substantially their ability to take goods to market."

Davis Washines, chairman of the Yakama Nation general council, asks for prayers as Supreme Court hears Washington v. Cougar Den on October 30. “This should be a concern to all treaty tribes,” Washines told the National Congress of American Indians in Denver. #NCAI75 pic.twitter.com/EV1YtepRhK
— indianz.com (@indianz) October 25, 2018

But in sorting through the difficult issues during the one-hour hearing, what Kavanaugh and the other justices did not bring up was the Doctrine of Christian Discovery. Goudy wasn't surprised by the omission and he doesn't think it will be raised when the court issues its decision in the case.

"They'll ignore it because they are probably unsure how to deal with what is going on," Goudy told Indianz.Com.

The Doctrine of Christian Discovery reared its head in the Supreme Court's ruling in Johnson v. McIntosh way back in 1823. Goudy said the decision was handed down during a "dark period in our history," at a time when the United States was forcibly removing Indian nations from their homelands.

Johnson v. McIntosh is one of three decisions from that era that are frequently described in Indian law circles as "The Marshall Trilogy." To this day, they are taught in Indian law classes, cited as precedent in ongoing cases and used as justification for federal Indian law and policy.

"At some point in time, they need to stop relying on judicial precedent based on a false religious pretense," Goudy said of the current system that limits, instead of respects, tribal sovereignty.

And just in case the current members of the high court want to take a closer look at the matter, the tribe has offered guidance with its brief. Goudy said the language of the treaty itself can be used to govern the taxation dispute that has arisen on the reservation, more than 2,700 miles from the nation's capital.

"Instead of utilizing the false religious doctrine, the Supreme Court would utilize Article III of our treaty," Goudy said.

In the brief, the Yakama Nation Office of Legal Counsel says of Article III, and of the negotiations leading to its inclusion in the government-to-government agreement: "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 unrestricted off-reservation activities, including the use of the public highways without restriction to preserve and continue our ancestors’ traditional system of trade and exchange," the document reads.

But while Goudy isn't confident that the Supreme Court will address the Doctrine of Christian Discovery, he believes the tribe was obligated to bring it up. The forthcoming decision affects the economic livelihood of a tribal citizen, the very issue Yakama leaders were concerned about when they negotiated their treaty more than 160 years ago.

“After this case, the Supreme Court can never say that we weren’t aware” of the negative impacts of the doctrine on Native nations, DeGoudy told Indianz.Com.

Following the incident at the Supreme Court, DeGoudy went outside of the building, located right across from the U.S. Capitol. He stood there alone. And he prayed.

"I hope and pray," the chairman said afterward, "that we can have a shift in our processes."

Chairman JoDe Goudy of the Yakama Nation stands outside of the U.S. Supreme Court in Washington, D.C., and offers a prayer after he was denied entry into arguments for a case affecting his tribe's treaty rights. Photo courtesy of the Yakama Nation