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."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
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