Yakama Amicus brief has major spoken and unspoken impact on US Supreme Court Cougar Den decision
By Peter d'Errico and Steven Newcomb
For the fifth time, the US Supreme Court has affirmed Yakama rights
under the 1855 Treaty with the United States. The decision in Washington State Department of Licensing v. Cougar Den, Inc.
, prohibits Washington from taxing a Yakama trucking company for using state highways to transport fuel to the Yakama Nation. The prohibition was previously put in place by Washington's own courts, but the state appealed those decisions. Cougar Den
takes its place in a line of cases extending back to early decisions protecting Yakama Treaty rights.
What makes Cougar Den
especially significant is that for the first time the court was presented with a direct challenge to "Christian Discovery." That is the US legal fiction declared in 1823 (in the case of Johnson v. McIntosh
) that the United States has an “ultimate dominion” over the lands of Native Nations, and that Native Nations only hold a title of “occupancy” to their own lands because they are "heathen” nations.
The Yakama Nation challenged Christian Discovery
in its amicus brief
(a brief by a non-party) filed in support of the Yakama Nation licensed Cougar Den
trucking company, the defendant. The Yakama brief says Washington's legal argument, which was defeated in the state's own courts, is based on "the religious, racist, genocidal, fabricated doctrine of Christian discovery." It says the relationship between the United States and the Yakama Nation is founded on the Yakama treaty. It says Christian discovery has no legitimate place in that relationship.
The Yakama challenge to Christian Discovery is based on powerful legal arguments, including long-standing international land rights principles of “first in time, first in right” and “the authority of a nation within its own territory is absolute and exclusive.” Both these principles support Yakama Treaty rights. When Washington state argued that it could override the Yakama Treaty with its tax laws, the Yakama pointed out that the state based its argument on cases tracing back to Johnson v. McIntosh and "Christian discovery." When the US filed an amicus brief
, it supported Washington, not the Yakama. This despite the so-called "government-to-government relationship" and "trust doctrine" that supposedly govern US dealings with Native Nations. The US brief makes the same argument as the state, using cases rooted in the doctrine of Christian Discovery.
It would seem that the Yakama amicus
brief posed a stark contrast for the court: Either the court had to acknowledge that the 1855 Treaty is the foundation of the relationship between the Yakama Nation and the US, or it would wallow in the Christian/heathen religious dogma behind the arguments of Washington State and the US.
The Supreme Court rejected Washington's (and US) arguments in two separate opinions: one by Justice Breyer (joined by Sotomayor and Kagan) and another by Justice Gorsuch (joined by Ginsburg). Both opinions cite material in the Yakama amicus
brief to clarify the meaning of the 1855 Treaty; but neither opinion openly discusses the Christian Discovery question. The Yakama strategy was powerful and correct: We may surmise that the court majority, faced with a choice between the Treaty and a doctrine of religious domination, chose the Treaty. In fact, even the dissenting justices avoided talking directly about the amicus
brief’s discussion of Christian Discovery and narrowly focus instead on Treaty language.
Both Breyer's and Gorsuch's opinions say the 1855 Treaty protects the Yakama right to travel without state interference. The Treaty explicitly reserves "the right, in common with citizens of the United States, to travel upon all public highways." The controversy arose when Washington insisted that the phrase "in common with" means the Yakama are in the same position as non-Natives and can be taxed by the state.
After circling around the intricacies of the tax, which he ultimately says are irrelevant (a common Breyer style), Breyer points out that the real question is what the Treaty means. And the way to determine this, he says, was long ago settled by the court. The court's own legal rules of treaty interpretation say, "The language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have." Breyer quotes from old and important fishing cases to make this point, including Tulee v. WashingtonUnited States v. Winans
(1905), and Seufert Brothers Co. v. United States
The Yakama fishing cases provide precedents not only for fishing but for treaty interpretation. First, the cases say treaty rights are "not a grant" from the US; the rights in a treaty are "reserved" by the Native Nations. This means that a "reservation" is not a gift to Native Peoples but consists of lands and rights they have retained under their original ownership. Second, the fishing cases say US courts must read a treaty the way the Native parties understood it. The goal is to determine which rights "their ancestors intended to reserve."
Gorsuch applies the rules of treaty interpretation. He determines the meaning of the Yakama Treaty by looking at the historical record, including the negotiations that led to the Treaty. He points out the language limitations: treaty negotiations were conducted in "Chinook jargon," a limited language of about 300 words used for trading purposes. This was not English and not Yakama either. The Yakama language was not used in the negotiations. The Treaty was written in English, a foreign language to the Yakama.
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Given these language limitations blocking clear communication between the parties, Gorsuch says the Yakama would have understood from the phrase "the right, in common with citizens of the United States, to travel upon all public highways" to mean they would share the use of roads with whites. He says the idea that white men could restrict Yakama use of roads is not compatible with the record of the negotiations. In fact, Gorsuch says, the Yakama understanding of this phrase in the Treaty was already laid out in detail in a 1997 case, Yakama Indian Nation v. Flores
, where uncontroverted evidence showed that in the Yakama language, the term "in common with" means use without restriction.
Gorsuch points to "a wealth of historical evidence" that confirms the Yakama "traveled extensively without paying taxes to bring goods to and from market." He says the historical record, taken in conjunction with the Treaty language, means the Yakama would have understood the Treaty as preserving
their free travel and trade (i.e., without interference, just as Yakama fishing rights are rights to fish without interference). Gorsuch adds a comment that in light of the view that the Yakama Treaty allowed US access to "millions of acres," the protection of Yakama right to travel freely was "a bargain-basement deal" for the US.
Gorsuch says that "like many such treaties, this one was by all accounts more nearly imposed on the Tribe than a product of its free choice." He says the Treaty was negotiated "under significant pressure" from the US. He concludes with a powerful affirmation of Yakama Treaty rights, saying, "Really, this case just tells an old and familiar story." The State wants more than it got in the Treaty. "But … to its credit, the Court holds the parties to the terms of their deal. It is the least we can do."
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) >>> More on Flickr
There were two dissenting opinions in Cougar Den
: one by Justice Kavanaugh (joined by Thomas) and another by Chief Justice Roberts (joined by Thomas, Alito, and Kavanaugh). Like the majority, Kavanaugh avoids discussing Christian Discovery by focusing on the Treaty. But he says the Treaty provision is not about free travel rights. He says the mention of travel in the Treaty is just a guarantee that the Yakama would not be imprisoned in their reserved lands! He says it does not mean the Yakama reserved any rights to maintain their historic travel and trade networks. Kavanaugh adds that Yakama travel rights will cause Washington "to lose millions of dollars annually in tax revenue." We can see where he is coming from. Yakama economic rights mean nothing. The state's economy means everything.
Roberts' dissent betrays a deep fear of Yakama Treaty rights and indeed a deep fear of the Yakama. His opinion comes close to incoherence. It says the "fact that a state law has an effect on the Yakamas while
[Roberts' emphasis] they are exercising a treaty right does not establish that the law impermissibly burdens the right." So an "effect" is not a "burden" if it happens "while" the Treaty right is being exercised? He says the fishing rights cases upheld Treaty rights only because the state rules "blocked" the Treaty right. He says the state tax on fuel trucks "does not resemble a blockade or a toll."
Roberts further says the Treaty protected the Yakama's right to travel, but not their right to carry any goods. Roberts and Kavanaugh both worry that acknowledging Yakama travel rights will mean that next there won't be any "speed limits, truck restrictions, and reckless driving laws." Roberts describes this as "the inevitable fallout" of the Cougar Den
decision. These fantasies of Yakama chaos betray the same fears expressed in early colonial days when "Indian savagery" went along with "heathens" in white imagination of Native Peoples.
Gorsuch, in another strong affirmation of treaty rights, responds to these fears by saying that "If the State and federal governments do not like that result [of the 1855 Treaty], they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court." In other words, if Washington state is concerned with traffic safety, they can go to the Yakama Nation and discuss applicable rules. That, after all, is what treaties and treaty negotiation are all about.
But Roberts has an additional fear. He says upholding Yakama rights will "generate significant uncertainty and unnecessary litigation." He doesn't really explain this line, but what he says points to the fact that he has not yet given up on Christian Discovery. He says, "Today’s decision digs such a deep hole that the future promises a lot of backing and filling." What is the "hole"? It can't be a hole in the wall of protection of treaty rights, because the majority decision keeps the Treaty strong.
The hole Roberts and his co-signor justices see is the hole in the doctrine of Christian Discovery. He says, "Perhaps there are good reasons to revisit our long-held understanding of reserved treaty rights"; in other words, to get rid of the understanding that a treaty means what it meant to the Natives who actually negotiated it. That's a strange wish for a judge who says old documents of the US government have to be interpreted the way the "founders" understood them. Roberts, Alito, Thomas, and Kavanaugh aren't really "originalists" after all. They only want to preserve original colonizer understandings. Native Peoples' original understandings don't count. Christian Discovery is a colonizer's doctrine.
Roberts pulls a slick rhetorical move when he tries to tie his proposed "revisit" of treaty rights to the court majority. He says the majority wants to "adopt a broad health and safety exception" to Yakama travel rights. In fact, this is not true. Gorsuch says the issue of "safe travel" is already built into
the Yakama Treaty. In one of the majority's three references to the Yakama Nation's amicus
brief, Gorsuch says the Yakama "expected" laws designed to "protect their ability to travel safely alongside non-Indians on the highways. See Appendix to Brief for Confederated Tribes and Bands of the Yakama Nation as Amicus Curiae
21a, 31a." The Yakama Nation has its own interest in wanting highway safety, and they already negotiated for it!
Steve Newcomb - Doctrine of Discovery, the Domination Code
Roberts makes one more statement. He says "no party or amicus
has addressed the question" of changing the rules. In this statement he reveals he does not understand (or has not read) the Yakama Nation amicus
brief. The Yakama amicus
attack is direct and unmistakable. It says US courts have "systematically attempted to undermine our Treaty rights by imposing an imaginary prior relationship sourced in the doctrine of Christian discovery." It says under that doctrine, "this Court judicially manufactured an extra-constitutional congressional plenary authority to abrogate treaties and regulate Native Nations."
The Yakama brief then says, "This doctrine of domination and dehumanization—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 Christian 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."
The bottom line in Cougar Den
, with its 5-4 decision, is that even though the Yakama Nation won a strong victory there are justices on the court who remain devoted to Christian Discovery and who will try to sneak through as many rulings on that basis as they can, without openly admitting it. The fact that Justice Gorsuch has emerged as a serious and learned scholar of Native history and a careful reader is important. It will take serious thinking, critical analysis, and bold leadership to make the watershed change in US law that the Yakama Nation has shown is obvious and necessary.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute and author of the bestseller Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He the writer and co-producer of the documentary movie, “The Doctrine of Discovery: Unmasking the Domination Code.” He can be contacted at originalfreenations.com.
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Washington State Department of Licensing v. Cougar Den
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Sheet: No. 16-1498
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