tribal right to consultation

Toppenish, WA– The Confederated Tribes and Bands of the Yakama Nation have reached an unprecedented, out-of-court settlement with the United States Department of Justice (DOJ), principally the Federal Bureau of Investigation (FBI).

The settlement fully and finally resolves Yakama’s lawsuit against the FBI and several of its sister law enforcement agencies, as well as various county and municipal police agencies from Washington State, Mississippi and Virginia. That suit arose from a federal task force raid of Yakama Reservation trust lands that commenced at dawn on February 16, 2011. Upon reported word of the settlement on August 15, 2013, U.S. District Court Judge Rosanna Peterson closed the case.

“Today is historic. The United States has agreed to honor the law enforcement protocols set forth in the Yakama Treaty of 1855. That is unprecedented.” said Yakama Nation Tribal Council Chairman and former police chief Harry Smiskin. “From today forward the FBI will communicate with Tribal Police before they enter Yakama Indian Country. I am confident that the resulting cooperation between federal and tribal cops will greatly improve public safety throughout our territories.”

Through Article II of the Yakama Treaty of 1855, the Yakama Reservation was set apart for the exclusive use and benefit of the Yakama Nation. To that end, the Yakama Treaty makes clear that no “white man” shall be permitted to reside upon Yakama Indian Country without permission from the Yakama Nation. Federal Treaty negotiators explained to the Yakama that Article II meant that no one – not even United States agents, with the lone exception of today’s Bureau of Indian Affairs agents – would be permitted to step onto Yakama Reservation lands without the Yakamas’ consent.

Also, in Article VIII of the Yakama Treaty, the United States and Yakama Nation set forth a process for delivering Yakama criminals or suspects who are in Yakama Indian Country to federal authorities. Federal Treaty negotiators also explained to the Yakama that Article VIII meant there would be a consultation process between the Head Chief or all of the Yakama Chiefs, and the United States, relative to any Yakama alleged to have committed a wrong, before they might be delivered up to federal authorities.

The settlement agreement between Yakama and DOJ is called, “Recitals of Joint Law Enforcement Goals.” It recites that:

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Yakama Settles Federal Suit with Counties and Out-of-State Jurisdictions over Unauthorized Raid on Tribal Lands

June 21, 2013Matthew L.M. Fletcher1 Comment

Here is the press release:

YAKAMA-COUNTIES SETTLEMENT PRESS RELEASE

News coverage, where county attorney says “we’re sorry.”

Text from the Yakama press release:

The Confederated Tribes and Bands of the Yakama Nation have reached out-of-court settlements with Yakima County, Benton County, and local governments from Virginia and Mississippi, to resolve the Nation’s lawsuit against those governments for a February 16, 2011, dawn raid of Yakama Reservation trust lands. Upon the first of two joint dismissal requests filed with the U.S. District Court, Judge Rosanna Peterson has already dismissed most of the claims between the parties.

“We are pleased and proud that governments from here in the Yakima Valley and Columbia River Basin, to as far away as the east coast, have all agreed to honor the Yakama Treaty of 1855,” said Yakama Nation Tribal Council Chairman Harry Smiskin. “Each of them will seek our blessing before every again returning to Yakama lands. They will also cooperate with our Tribal Police, Tribal Jail and Tribal Court to improve public safety on our reservation.”

Through Article II of the Yakama Treaty of 1855, the Yakama Reservation was set apart for the exclusive use and benefit of the Yakama Nation. To that end, the Yakama Treaty makes clear that no “white man” shall be permitted to reside upon Yakama Indian Country without permission from the Yakama Nation. The federal Treaty negotiators explained to the Yakama that Article II meant that no one would be permitted to step onto Yakama Reservation lands without the Yakamas’ consent.

In Article VIII of the Yakama Treaty, the United States and Yakama Nation set forth a process for delivering Yakama criminals or suspects who are in Yakama Indian Country to federal authorities. Federal Treaty negotiators explained to the Yakama that Article VIII meant there would be a consultation process between the Head Chief or all of the Yakama Chiefs, and the United States relative to any Yakama alleged to have committed a wrong, before they might be delivered up to federal authorities.

In March 2011, the Yakama Nation sued federal law enforcement agencies and several local governments for violating these federal Treaty provisions when raiding a Yakama member-owned business on Yakama trust lands without providing any advance notice to Yakama authorities, and in turn barring Yakama Nation cops who arrived at the scene of the raid to help keep the peace.

Since the spring of 2012, all of the parties to the litigation have engaged in a multi-track mediation process. The Yakama Nation and Department of Justice defendants remain in settlement negotiations.

Suit materials are here, here, here, and here.

Galanda on the American Indian Treaty Consultation Mandate

July 23, 2012Matthew L.M. Fletcher3 Comments

Presented in Geneva for the UN High Commissioner on Human Rights:

American Indian Treaties The Consultation Mandate

Briefs in Yakama v. Holder

March 19, 2012Matthew L.M. Fletcher1 Comment

Here are the briefs relating to last week’s opinion posted here:

237 FILED – Memorandum in support of motion for TRO and PI

244 FILED – federal opposition to motion for tro

248 FILED – County Opposition to TRO

255 FILED – Reply in support of TRO (county)

256 FILED – Reply in support of TRO (fed)

Update in Yakama v. Holder: Federal Court Orders US to Comply with Discovery Requests

September 13, 2011September 12, 2011Matthew L.M. Fletcher2 Comments

An excerpt from the order:

[T]he waiver of sovereign immunity [under the APA] applies to all actions seeking non-monetary relief that are cognizable before the federal courts, including actions brought pursuant to the APA and other actions which provide their own private right of action. Yakama seeks non-monetary relief in this case. Accordingly, any claims by Yakama, whether brought independent of or through the APA, may not be barred by sovereign immunity (citations omitted).

The Court agrees with Yakama’s argument that discovery as to the policies that govern the Federal Defendants’ actions with the Yakama, particularly with regard to notification and limitations on actions while on tribal lands, and discovery as to the Federal Defendants’ decision not to notify the Yakama before entering onto tribal lands, as well as discovery regarding the actual entry onto tribal lands is needed to establish whether the Court has jurisdiction.

Here are the new materials in Yakama Indian Nation v. Holder (E.D. Wash.):

ORDER ON MOTIONS TO STAY DISCOVERY AND MOTIONS FOR EXTENSION

Memorandum in Support of United States’ Motion to dismiss

Yakama Nation’s Memorandum in Opposition to Federal Motion to Dismiss

United States’ Memorandum in Support of Motion for Protective Order

Memorandum in Opposition to Motion for Protective Order

Reply on United States’ Motion for Protective Order

Here is the Nation’s amended complaint.