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By Lou Marzeles

Court rules against Yakama injunction


March 20, 2019

A federal judge has denied an injunction request by the Yakama Nation against Klickitat County, saying the county is within its rights to prosecute tribal members in Tract D, a region around Glenwood.

Judge Thomas O. Price of the United States East District Court issued his ruling on March 6. His decision constitutes a virtual history of lands contested by Klickitat County and the Yakama Nation.

"This is a dispute that has been percolating for pretty much a century now," Klickitat County Prosecuting Attorney David Quesnel says of the decision. "I would prefer it had been settled a few decades ago."

Quesnel recounts how the injunction request by the tribe came about, beginning with retrocession of Tract D by Gov. Jay Inslee in 2014. Inslee's proclamation was interpreted by the tribe to mean that it held jurisdiction over some criminal activity within the tract. "When the retrocession happened, the county filed suit suing the Department of the Interior demanding clarification on the boundary of the reservation," Quesnel recalls. "That suit was eventually dismissed by a federal judge without ever reaching the issue; they were just saying that nothing's changed with retrocession, therefore there's nothing new.

"About a year later there was a young man [a tribal member] who was charged and prosecuted and convicted of the rape of a child," Quesnel continues. "We filed charges and successfully prosecuted the case-he never even challenged. Sometime later, after the kid's already been sent to the equivalent of juvenile prison, the tribe files this lawsuit claiming that we didn't have jurisdiction to do this. They sued me, the sheriff's office, everyone they could get their hands on. The tribe filed a federal lawsuit, and that's been progressing for some time now. It's scheduled for trial this summer."

A more recent incident sparked the tribe's request for an injunction against the county. "A tribal member had been arrested [by county police, in October 2018] outside Glenwood for having a loaded firearm," Quesnel says. "They were pulled over on some infraction, and then when they ran down the individual's name, there was an outstanding warrant. He was arrested and then cited by the county on charges. The tribe called demanding that we basically cease to do our job-to prosecute tribal members in Glenwood. It was either agree to this, or 'We will file for an injunction.' So they filed for an injunction."

Rice's decision also recounted that incident, as well as painting a picture of the century-plus issues between the tribe and its neighbors. "On Dec. 11, 2018, Plaintiff [the Yakama Nation] filed the instant motion for a preliminary injunction," Rice wrote in his ruling. "The event triggering Plaintiff's motion was the arrest of a second Yakama member, Mr. Robert Libby, on October 13, 2018, 'within the [community] of Glenwood in Tract D.' Plaintiff asserts that Defendants [Klickitat County and al] are now prosecuting Mr. Libby under State law for alleged crimes arising within the Yakama Reservation. Plaintiff seeks a preliminary injunction enjoining Defendants from exercising criminal jurisdiction 'arising from actions within the exterior boundaries of the Yakama Reservation, including Tract D, and involving an Indian as a defendant and/or victim.' Defendants filed a response to Plaintiff's motion on Jan. 18, 2019."

Rice then goes into older history. "On June 12, 1855, Territorial Governor Isaac Stevens prepared a map of the Yakama Reservation ('Treaty Map')," he writes, "and sent the Treaty Map and Treaty of 1855 to Washington D.C. for ratification. The Treaty was ratified on March 8, 1859 and proclaimed by President James Buchanan on April 18, 1859.

"The Treaty Map depicts a tract of land on the southwest corner of the Yakama Reservation known as 'Tract D,' which was described as 'passing south and east of Mount Adams, to the spur whence flows the waters of the Klickitat and Pisco rivers; thence down said spur to the divide separating the waters of the Satass [sic] River from those flowing into the Columbia River...' Plaintiff states that some confusion arose in the late 19th century and early part of the 20th century due to the United States' misplacement of the Treaty Map and subsequent erroneous surveys related to the Yakama Reservation.

"Yet, Plaintiff contends that Tract D was wholly included among the lands promised to the Yakama Nation in the Treaty of 1855, which Defendants deny. On March 13, 1963, the State of Washington assumed partial civil and criminal jurisdiction from the United States over the Yakama Reservation under Public Law 83-280. Plaintiff emphasizes that the Yakama Nation did not agree to the law and it unsuccessfully challenged it in the United States Supreme Court.

"On Jan. 17, 2014, Washington State Governor Jay Inslee issued Proclamation by the Governor 14-01 partially retroceding the State of Washington's jurisdiction over the Yakama Reservation back to the United States. In Proclamation 14-01, the State of Washington retroceded to the United States 'full civil and criminal jurisdiction' in four areas of law, including 'Juvenile Delinquency.' According to Plaintiff, the State of Washington also retroceded to the United States criminal jurisdiction over all offenses within the exterior boundaries of the Yakama Reservation, subject to limited exceptions." Here hangs much of what the tribe sees as its basis for authority.

"On Oct. 19, 2015, the United States Department of the Interior accepted the State of Washington's retrocessions of jurisdiction concerning the Yakama Reservation," Rice continues. "Plaintiff then insists that Klickitat County may no longer exercise any criminal jurisdiction over a minor Yakama member for alleged crimes committed on the Yakama Reservation, as that jurisdiction lies with the Yakama Nation and/or the United States.

"On Sept. 27, 2017, Klickitat County arrested 'PTS,' an enrolled Yakama member and minor, detained PTS at the Northern Oregon Regional Correctional Facility, and charged PTS with two counts of statutory rape. Plaintiff asserts that the alleged crimes occurred within the exterior boundaries of the Yakama Reservation near Glenwood within Tract D. Plaintiff argues that Defendants have acted unlawfully by arresting, detaining, charging, prosecuting, and convicting PTS. Plaintiff also contends that Defendants have acted unlawfully by enforcing State laws within the boundaries of the Yakama Reservation. Plaintiff notes that on April 11, 2016, the Klickitat County Sheriff's Office publicly stated that 'we do not consider the town of Glenwood or any portion of Glenwood Valley part of the Reservation,' and indicated that he would dispatch 'additional deputies' to this area."

Rice then writes that he considers the tribe's complaint as advancing two primary claims: Inslee's proclamation and that Tract D is located within the exterior boundaries of the Yakama Reservation pursuant to the Treaty of 1855. Rice dismissed the injunction request refuting both grounds. On the first, Rice cited the tribe's recent suit against the City of Toppenish and Yakima County on arrests made there; Rice said the court rejected the tribe's interpretation of the scope of retrocession at that time and here again rejected the same argument. But he added that this portion of his ruling did not constitute resolution of who held jurisdiction over Tract D. He then went on to address Tract D boundaries.

"This case represents the most recent chapter in a decades-old dispute over the true location of the Yakama Reservation's boundaries," Rice wrote. "At issue here is an area containing approximately 121,465.69 acres, referred to as Tract D, which Plaintiff claims is within the Yakama Reservation's originally intended boundaries, and which Defendants claim lies outside the Reservation's boundaries. Resolution of this issue hinges upon the proper location of the Reservation's disputed southwest boundary line."

Rice pointed out that both the tribe and the county cited the same documents said to determine the reservation's boundaries, with each side reaching opposing conclusions. He detailed the documentation and each side's perspectives, ending with, "Ultimately, based on these arguments, the Court is unable to conclude that the Treaty Map cures the Treaty's ambiguous language." He concluded that a trail is set for this summer. "The Court is mindful that these decades-old boundary disputes will be promptly litigated on a full record and likely resolved only a few months from today," Rice stated.

But he did dismiss the injunction request, saying the tribe failed to adequately establish grounds for Irreparable Injury and Balance of Hardship and Public Interest.


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