Yakama Indian Nation

Ninth Circuit Decides Wenatchi and Yakama Fishing Rights at Wenatshapam Fishery

Matthew L.M. Fletcher

Here is the opinion in U.S. v. Colville, and an excerpt:

This appeal is the latest chapter in the saga of Pacific Northwest Native American treaty fishing rights; a saga that has spanned many generations and over forty years of federal litigation. If history is our guide, it will not be the last chapter written. After a 2006 remand from this court, the district court conducted a trial primarily based on expert anthropological opinions, century-old documents, and reliable hearsay. The Confederated Tribes and Bands of the Yakama Indian Nation (“Yakama”) appeal, and the Confederated Tribes of the Colville Indian Reservation (“Colville”) cross-appeal on behalf of theirWenatchi Constituent Tribe (“Wenatchi”), the district court’s finding that they share joint fishing rights at the “Wenatshapam Fishery” on Icicle Creek-a tributary to the Wenatchee River which flows into the Columbia River-under an 1894 agreement between the United States and the Yakama. We have jurisdiction pursuant to 28 U.S.C. § 1291.

For over a century-as the result of broken and forgotten promises-the Wenatchi’s fishing rights at their aboriginal home and fishing station have been in doubt. We hold that the district court’s ruling is supported by historical evidence establishing that it was the intent of the 1894 negotiators to grant theWenatchi fishing rights at Wenatshapam, that the Yakama did not sell all of their fishing rights at Wenatshapam, and that both tribes’ fishing rights are non-exclusive. We therefore affirm the judgment of the district court.

Federal Court Reverses IBIA in Tribal Customary Marriage Case

Matthew L.M. Fletcher

Very interesting recognition of tribal customary law.

The case is Senator v. United States (E.D. Wash.), and arose on the Yakama Indian Nation. Here are the materials:

Senator Motion for Summary Judgment

DOI Cross Motion for Summary J

Senator Reply Brief

Senator v US DCT Order

Lil’ Brown Smoke Shop v. Wasden — Challenge to Idaho Tobacco Statute

Matthew L.M. Fletcher

The court denied a motion for a preliminary injunction by a smoke shop seeking to prevent enforcement of Idaho’s Minor’s Access Act. Here are the materials:

Lil Brown Smoke Shack DCT Order

Lil Brown Smoke Shack Motion for Preliminary Injunction

Idaho Opposition

Lil Brown Smoke Shack Reply

An excerpt:

Here, Defendants argue that, if the Bracker balancing test applies, the permit requirement is an important state interest outweighing the tribal interests. Specifically, Defendants argue that the permit requirement allows the State of Idaho to control the ability of minors to obtain tobacco by ensuring that the Department of Health and Welfare has a central repository of all businesses marketing tobacco to Idaho residents with a uniform set of data which facilities compliance and monitoring. Defendants contend this interest outweighs the relevant tribal interests identified by Plaintiff, partially because the burden on Plaintiff in submitting annually to a no-charge permit is non existent. However, Defendants do not address Plaintiff’s contention that the right to make employment decisions, business decisions, and the right to exclude persons from the reservation are longstanding tribal interests that, although they do not singularly justify non compliance with the MAA, must be balanced in the Bracker test particularly with respect to the other contested provisions of the MAA. The Court agrees that the Bracker test should be applied.

The Court finds that, even though the Plaintiff’s likelihood of success on the merits with respect to the permit requirement is low, the likelihood of success with respect to the other provisions of the MAA is more plausible. However, Plaintiff has failed to clearly demonstrate that it is likely to succeed on these claims. Thus, the Motion for Preliminary Injunction on Plaintiff’s tribal sovereignty challenges will be denied.

Federal Court Dismisses Portion of Challenge to Highway Expansion in Sacred Sites Case

Matthew L.M. Fletcher

Here is the opinion from the District of Oregon — Slokish v US Federal Highway Administration

An excerpt:

This case involves the U.S. Highway 26 Wildwood-Wemme highway widening project (“Wildwood-Wemme project” or “the project”) near Mt. Hood, Oregon, which was substantially completed in 2008. Plaintiffs consist of individuals and organizations who seek to preserve, protect, and rehabilitate Native American sacred and cultural sites and historical and archaeological resources in the lands surrounding Mount Hood. They allege that defendants United States Federal Highway Administration (“FHWA”), United States Bureau of Land Management (“BLM”), Advisory Council on Historic Preservation (“ACHP”), and Matthew Garrett, the Director of the Oregon Department of Transportation (“ODOT”), violated the National Historic Preservation Act (“NHPA”), 16 USC §§ 470-470x-6, National Environmental Policy Act (“NEPA”), 42 USC §§ 4321-4347, § 4(f) of the Department of Transportation Act (“DTA”), 49 USC § 303, the public trust doctrine, the due process clause, and also committed a breach of fiduciary duty.

Yakama Gaming Per Capita Notice of Violation from NIGC

Matthew L.M. Fletcher

Here is the NOV, signed September 1, 2009.

The news article detailing the alleged violation, a $20M payment to tribal members called by the Nation an economic stimulus payment.

Fiander on Tort Claims and American Indian Plaintiffs

Matthew L.M. Fletcher

From the Washington State Bar News:

Representing My People

by Jack Fiander

This article is intended to be helpful to my fellow attorneys who may find themselves in the position of representing my people in personal-injury or wrongful-death cases. I also hope that the information here is helpful to my fellow tribal members in Washington state who may find themselves the victim of a tort or who have experienced personal injuries or a wrongful death in the family.

Here in the Pacific Northwest, my people live quietly among you in large numbers. Therefore, it is not unlikely that at some point in your legal career you will have the opportunity to represent them. This has been implicitly recognized since 2005, when the Board of Governors of the Washington State Bar Association made testing on the topic of federal Indian law part of the curriculum of the Washington State Bar examination. According to the Washington State Governor’s Office of Indian Affairs, there are no fewer than 29 federally recognized tribes in Washington. According to the 2000 U.S. Census, 164,481 residents of the state of Washington identify themselves as Native American or Alaskan Native.

I realize that it can raise uncomfortable issues such as discrimination or stereotyping by generalizing about my people. By the same token, I shall undoubtedly receive some opprobrium for sharing information regarding certain cultural beliefs with those outside the tribe. On the whole, however, I have come down on the side that it is important to the welfare of my people that I try to convey the important considerations which you should take into account when calculating damages in cases involving tribal clients, because they are easily overlooked.

Continue reading →

CA9 Decides Philip Morris v. King Mountain Tobacco

Matthew L.M. Fletcher2 Comments

Here is the opinion from the Ninth Circuit denying that a colorable claim to tribal court jurisdiction existed in this trademark violation issue. And here are the briefs:

philip-morris-opening-brief

king-mountain-response-brief

philip-morris-reply-brief

Unsolved Murders at Yakama to be Reopened

Matthew L.M. Fletcher1 Comment

From the Yakima Herald (H/T Teresa):

More than 15 years has passed since Shari Dee Sampson Elwell’s strangled and sexually mutilated body was found in a remote area of the Yakama reservation, but the family is still awaiting closure in the case.

Her homicide capped a decade-long string of more than a dozen mysterious deaths of women on the
1.2 million-acre reservation, which not only stymied authorities but instilled fear in this otherwise close-knit community.

Speculation of a serial killer targeting Indian women worried many, and two investigators revealed they saw links in some of the deaths. But other investigators said inconsistencies in the manner of deaths ruled out any serial killer.

“Nobody knew what was going on, and even today we don’t know,” said Yakama Tribal Council Vice Chairwoman Lavina Washines. “Nothing was ever resolved.”

Now, nearly three years after the U.S. Justice Department promised to review all unsolved cases on the reservation, a number of the victims’ families may see some closure.

Continue reading →

US v. Fiander — CA9 Reverses Dismissal of RICO Claims against Yakama Member

Matthew L.M. Fletcher1 Comment

The Ninth Circuit held in U.S. v. Fiander that a Yakama tribal member who cannot be convicted of violating the Contraband Cigarette Trafficking Act because of the “right to travel” provision of the Yakama treaty can still be prosecuted for conspiracy under RICO.

us-v-fiander-ca9-opinion

us-opening-brief-fiander

[Fiander response brief unavailable]

us-reply-brief-fiander

Maldonado v. Yakama Tribal Gaming — ICRA Case Dismissed

Matthew L.M. Fletcher

The Eastern District of Washington dismissed a claim under the Indian Civil Rights Act brought by a fired employee of the Yakama Tribal Gaming Corporation. The court rejected the application of the so-called Dry Creek Lodge doctrine.

Here is the order.