Yakima Nation Chairman Harry Smiskin

Yakama Sues Feds for Violations of Treaty, Consultation, TLOA

Gale Courey Toensing
5/26/11

During a visit to Washington this week, the chairman of the Confederated Tribes and Bands of the Yakama Nation and members of his delegation will go to the National Archives to view the original 1855 Treaty with the Yakama. It will be a poignant experience for the leader of the Yakama people who live along the Columbia River and the central plateau of Washington state.

The Treaty, which was signed at Camp Stevens, Walla-Walla Valley in Washington State on June 9, 1855, is at the heart of a lawsuit the nation filed in federal court at the end of April. The lawsuit states that the nation’s treaty rights and other laws were violated when a horde of dozens of law enforcement officers from local and federal agencies and two states on the other side of the country – without consultation or notification – invaded the Yakama reservation with their weapons drawn at the crack of dawn on a cold winter morning in February to serve a questionable arrest warrant on a Yakama businessman for alleged cigarette tax violations in another state.

The Yakama Treaty says the federal government set aside lands “for the exclusive use and benefit” of the Yakama Indians and promised not to allow “any white man, excepting those in the employment of the Indian Department” to live on the reservation. The Treaty further guarantees the Yakama people that U.S. citizens would not “enter upon” their lands.

One Indian law expert compared the federal government’s apparent lack of trust toward the Yakama Nation to its lack of trust in raiding bin Laden’s house without consultation with the Pakistani government.

In addition to the violation of the Yakama Treaty, the nation’s lawsuit alleges the federal government breached its fiduciary duty to the tribe by failing to consult or share information; violated Executive Order 13175, President Clinton’s 2000 directive “to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications”; violated the Tribal law and Order Act that was signed into law last summer by President Obama and violated the Administrative Procedure Act that requires agencies to abide by their own regulations.

The lawsuit names as defendants the Department of Justice, the FBI, U.S. Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Treasury, the Internal Revenue Service, the County of Yakama, the cities of Richland, Pasco and Kennewick in Washington State, the County of Marshall and the City of Tupelo, Mississippi, and the County of Roanoke and the cities of Martinsville and Vinton in Virginia.

The lawsuit states that early in the morning of February 16, the federal defendants, “acting through scores of federal agents, armed with assault rifles, and with local police officers from Virginia and Mississippi and the County of Yakama in tow, invaded the Yakama Nation Reservation Trust lands – without having provided any prior notice to the sovereign on whose land they were intruding.”

While the federal agents failed to consult with or notify the tribal authorities beforehand, they tacitly admitted their obligation to do so by text-messaging a tribal employee and warning him about the invasion – after it had started.

“Text-messaging an employee is not the government-to-government consultation and notification required under federal law,” the complaint says.

The federal agents “purposefully concealed the invasion onto sovereign Yakama lands” from tribal authorities and invited not only city and county police from three states who “had no jurisdiction, authority or right to intrude upon the Yakama Reservation trust lands” to join the invasion, but also allowed employees from three non-Indian, private contractors to enter Yakama lands without permission from the Yakama Nation

For the past several months, the federal government has refused to provide any formal response to the nation’s request for information regarding the raid, the complaint says.

“It’s been frustrating, and for the life of me we can’t even get a consultation with the U.S. government on this. It perplexes me to no end,” Yakama Nation Chairman Harry Smiskin said in a phone interview. “I’ve expressed concern about the injustice of it, concern about potential bloodshed, of the total ignorance of our Treaty of 1855, and not following President Obama’s Executive Order and there’s been some e-mail bantering back and forth but no formal response. They haven’t acted in good faith.”

On May 9, Smiskin wrote to Senators Daniel Akaka and John Barrasso, the chair and vice chair, respectively, of the Senate Committee on Indian Affairs, the committee to exercise oversight with regard to the agencies “encroachment” on Indian country’s tobacco economy.

“Indeed, whether in Yakama, or Narragansett, or Ponca, or Iroquois Country, it seems en vogue for states to invade tribal trust lands in assertion of state civil regulatory authority over tribal affairs, specifically in the arena of tobacco taxation – notwithstanding Indian Treaty rights and notions of inherent tribal sovereignty. And states are somehow doing so under the guise of federal law enforcement… It seems any tax-starved state or local government that claims to be owed taxes as a result of tribal tobacco sales can secure the assistant – and armed might – of multiple federal law enforcement agencies. It seems as though federal law enforcement now prioritizes state-requested cigarette investigations over reservation rapes and murders,” Smiskin wrote.

Earlier – on April 11 – Smiskin wrote to Charles Galbraith at the White House Office of Intergovernmental Affairs requesting an immediate government-to-government consultation with the White House, the Department of Justice Office of Tribal Justice, and the Assistant Secretary-Indian Affairs. He expressed concern about “the growing hostility” from Mississippi FBI agents toward Yakama citizens and said he was reaching out to the federal government in “a desperate attempt to restore and maintain peace” on the Yakama homeland.

“We are committed to working with the United States and its Department of Justice on a government-to-government basis so long as our Federal Trustee reciprocates that cooperation,” Smiskin wrote.

The nation obtained audio recordings from the Yakima County dispatcher that show the FBI notified county law enforcement officials of the raid at least a day before it took place. The recordings show that the FBI asked county officials, who began their part in the raid shortly before 5 a.m., not to report their actions until the full raid began at 6 a.m., proving that the FBI not only informed a local agency with no jurisdiction over Yakama lands of the raid, but also deliberately concealed the raids from the tribal government.

Smiskin asked Galbraith to intercede and warn the FBI against any further intrusions on Yakama land without consulting the tribal government. He warned of a “fear of bloodshed” in the event of another invasion.

“Please hear me: If Mississippi FBI or other federal agents, or state officers, attempt to again invade the Yakama Reservation as they did on February 16, I fear a breach of the peace. I ask for your help to prevent bloodshed on my lands. This is not an unreasonable request. There is no good reason why tribal police should not accompany federal officers while they are on tribal lands. Indeed, the FBI’s staunch refusal to collaborate or consult with Yakama authorities in regard to Yakama Reservation federal exercises smacks of, at least, arbitrary, improper retaliation,” Smiskin wrote.

The White House referred a request for comment from Indian Country Today Media Network to the Justice Department. The Justice Department did not respond to a request for comment.

Asked if the federally-led law enforcement raid on the Yakama Reservation violated the Tribal Law and Order Act, U.S. Attorney Michael Ormsby from the Eastern District of Washington State, said it did not. “No, they’re really two different issues and we don’t comment on ongoing litigations. I mean, I’m sorry, but it’s our position that the tribe had determined that they want to settle the case in court and we respect their decision to resolve this matter in court and once a lawsuit is filed, we don’t try the case in the media, we try it in the court and that’s what we intend to do.”

Ormsby said he did not know if the Justice Department had filed a response to the Yakama lawsuit. “One of the other lawyers in my office is handling the case and I’m trying to stay out of the litigation because we also have a government-to-government relationship with the tribe and it’s important to me to maintain that and if I’m involved in the litigation I’m not able to try to maintain the open communication that we’re trying to develop with the tribe so I’ve stayed out of the litigation,” he said.

Alex Skibine, professor of Indian law and constitutional law at the University of Utah, said the Yakama case deals with “very thorny issues” surrounding interpretations of the law, but it could set an important precedence for Indian country in general with regard to the interpretation of the Tribal Law and Order Act.

One of the questions raised involves whether the tribe’s treaty has been abrogated by Congress since 1855. Another question is based on President Clinton’s 2000 Executive Order requiring consultation between the federal agencies and the tribal nations. The order has a sort of caveat at the end that says it should not be considered as giving anybody specific rights.

“The Executive Order in itself is not enforceable, however, pursuant to the Executive Order if agencies have enacted regulations, those regulations are binding. So then you’d have to go and see if in this case, there’s a specific regulation that tells the agencies they’ve got to consult with the tribe before doing this (going onto the tribe’s land),” Skibine said.

A major issue in the case involves tribe’s claims regarding the federal agencies’ violation of the Tribal Law and Order Act (TLOA), Skibine said.

“The TLOA is this huge legislation that I think is probably one of the most important pieces of legislation affecting law and order on Indian reservations enacted in the last 50 years or so. And one of the sections tells the Justice Department that they have to consult with Indian tribes before enacting any policies or legislation or actions that affect tribal rights,” Skibine said.

Like most legal questions, interpretation of the law involves a close parsing of the language. So the question here is, what is an action, Skibine said? And is the action the FBI took in invading the Yakama Reservation the kind of action intended in the TLOA as being subject to consultation?

“It’s a complicated question that has not been litigated yet,” Skibine said. And that’s why the case is important to Indian county – it will clarify the TLOA’s meaning and intent going forward.

Skibine said he believes the federal actions at Yakama violated the spirit, if not the letter, of the TLOA, which ultimately is about cooperation between the federal and tribal authorities, mutual respect, and working together to solve the problem of crime on Indian reservations.

“To me this action is similar to the action of the U.S. killing bin Laden in Pakistan. That was the mentality in Pakistan. We thought the Pakistanis were probably in cahoots with bin Laden, so therefore we kept everything a secret and we just did it,” Skibine said. There doesn’t appear to be any reason other than a lack of trust toward the tribe to explain the federal government’s actions, he said.

“What other explanation can there be? They basically totally distrusted the tribal officials and somehow thought, ‘If we notify them we won’t’ be successful.’ They somehow mistrusted the tribal officials and that’s a sad statement about the nature of the federal-tribal relationship,” Skibine said. ‘I think it’s an important case because ultimately, it’s about whether or not we’re going to take seriously at least the spirit or the purpose of the TLOA and have the federal government and tribal governments work together instead of distrusting each other.” Skibine said.

The tribe has a “credible” treaty violation claim that is unique to the tribe, but it is the tribe’s TLOA claims that will affect all of Indian country, Skibine said.

“If they can make a successful claim under the Tribal Law and Order Act that would be a very valuable precedent as far as establishing the meaning of the section that says there has to be consultation before any action impacting tribal rights or self government is undertaken,” Skibine said.

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Viviane's picture
Viviane
Submitted by Viviane on
I am an enrolled Yakama that works for the Yakama Legends Casino. The adadtionil help for my children while they finish school is great. Anything that they need they can buy on their own now and will help them finish high school and move onto college.
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