The opinion of the court was delivered by: MCDONALD
Accordingly, on November 4, 1996, a bench trial commenced in the above-mentioned consolidated actions. Timothy R. Weaver, Cockrill & Weaver, Yakima, Washington, represented the individual Cree plaintiffs and plaintiff-intervenor Yakama Indian Nation, and Elizabeth F.M. Nason also appeared on behalf of the Yakama Nation. Jack W. Fiander represented plaintiff Wheeler Logging. Assistant Washington State Attorney General Fronda Woods represented state defendants.
The Confederated Tribes and Bands of the Yakama Indian Nation (Yakama Nation) and the individually-named plaintiffs
in these consolidated actions brought suit seeking a declaration of their rights under Article III, paragraph 1, of the Treaty with the Yakamas, regarding the right of the Yakama Nation and its members to operate vehicles on public highways within Washington state.
Specifically, plaintiffs seek a declaration by the court that Article III, paragraph 1, reserves to the Yakama Nation and its members the right to take tribal goods to market over the public highways of Washington state free from state registration requirements and applicable licensing and permitting fees. However, plaintiffs do not oppose truck registration with the State for purposes of identification. Further, plaintiffs do not seek exemption from weight regulations applicable to Indian-owned logging trucks or from fines issued for non-compliance with those regulations. Rather, plaintiffs argue that the Treaty precludes the State from exacting a fee, either directly or indirectly, for compliance with those regulations. Additionally, the Yakama Nations seeks a declaration that it has the sovereign authority and Treaty-reserved right to regulate the conduct of its members in exercising the right to travel the public highways without interference by the State.
Alternatively, plaintiffs argue that Washington licensing and permitting fees, as currently applied to Indian-owned trucks, are barred by the Supremacy Clause of the United States Constitution because such fees are not pro-rated for off-reservation use as required under Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 65 L. Ed. 2d 10, 100 S. Ct. 2069 (1980), and Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 48 L. Ed. 2d 96, 96 S. Ct. 1634 (1976). Defendants deny all claims of plaintiffs and assert that the Treaty does not reserve a right to travel the public highways free of applicable licensing and tonnage fees. Additionally, defendants deny that the Supremacy Clause bars the challenged fees and registration.
Washington state law requires registration of personal automobiles with an accompanying flat registration and licensing fee. See RCW § 46.16.010. Vehicles owned by individual Indians have never been exempt from Washington vehicle registration fees. Since 1915, Washington has required registration and licensing of trucks according to gross weight, with higher weights bearing higher licensing fees. RCW §§ 46.16.070, 46.16.135 (monthly tonnage licenses), 46.44.095 (temporary tonnage permits).
Trucks owned by individual Indians have never been exempt from such license fees. In addition, Washington requires log tolerance permits for certain overweight trucks with payment of an accompanying fee. RCW §§ 46.44.047, 46.44.095 (temporary tonnage permit). Again, individual Indians have never been exempt from such fees. Washington law establishes traffic infractions for violations of the weight licensing requirements, such as failure to obtain proper licensing and permits, and impose penalties for such violations. RCW §§ 46.16.010, 46.16.135, 46.16.140, 46.16.145. Fees paid to the State of Washington for truck registration, licensing, and log tolerance permits are credited to the state motor fund and used primarily for highway purposes. RCW §§ 46.68.030, 46.68.035.
Plaintiff-Intervenor Yakama Nation sells timber from lands held in trust by the United States for the benefit of the Yakama Nation and its members. Under the supervision of the Bureau of Indian Affairs, the Yakama Nation enters into timber sales contracts with purchasers. When possible, purchasers of tribal timber must employ tribal members. See Testimony of Kip Ramsey; P-54 (Stipulated testimony of Delbert Wheeler).
Cree and Wheeler plaintiffs operate logging trucks that haul logs from tribal timber sales within reservation lands to off-reservation mills. Cree plaintiff Richard "Kip" Ramsey is the owner of Tiin-Ma Logging Company. Ramsey began his logging business in 1978 and was the first Indian logger to haul tribal timber off-reservation. The other named Cree plaintiffs are employed as drivers for Tiin-Ma and, with the exception of Douglas Beebe, are enrolled members of the Yakama Nation. Delbert Wheeler is the owner of plaintiff Wheeler Logging and is an enrolled Yakama Indian. Wheeler Logging began operations in 1987.
Defendants are officers authorized to issue traffic citations for violations of vehicle registration, licensing and permitting statutes. Plaintiffs brought suit after defendant officers issued traffic citations to Tiin-Ma and Wheeler Logging drivers because Kip Ramsey and Delbert Wheeler neither paid applicable tonnage licensing fees nor obtained log tolerance permits for their trucks. Recently, defendant officers began issuing citations to Tiin-Ma and Wheeler drivers for the failure to possess proper registration. All of the state enforcement actions challenged in this case happened outside the boundaries of the Yakama Indian Reservation.
Plaintiffs claim that the Treaty with the Yakamas protects their right to haul tribal timber to market over state highways without restriction, and therefore the state cannot impose licensing and permitting fees on logging trucks owned by the Yakama Nation or its members. They allege that the officers have deprived plaintiffs of their rights under the Treaty.
Cree plaintiffs filed suit against the State of Washington and several of its officers on July 3, 1989. On June 1, 1991, the court granted Cree plaintiffs' motion for a preliminary injunction. Ct. Rec. 48. The court enjoined defendants from issuing citations to Tiin-Ma Logging Company or its drivers for violations of the laws of Washington that are based on the failure to obtain tonnage licenses under RCW 46.16.070 or the failure to obtain log tolerance permits under RCW 46.44.047. The court further enjoined defendants from impounding or threatening to impound Tiin-Ma's trucks for similar violations.
Wheeler Logging filed suit on September 8, 1992. Subsequently, the court granted Wheeler Logging's motion for preliminary injunction. The terms and conditions of the injunction are essentially identical to those issued in Cree. Because the legal issues in the two cases are practically indistinguishable, the court consolidated the cases on March 6, 1993. Additionally, the court granted defendants' motion to join the United States Secretary of Transportation as a third-party defendant. Ct. Rec. 81. However, service was not perfected upon the Secretary until July 1996.
On May 11, 1994, the court ordered the individual plaintiffs to show cause why their claims should not be dismissed pursuant to the Tax Injunction Act. Ct. Rec. 112. After briefing by the parties, the court entered an order dismissing each individual plaintiff's claim challenging the financial obligations under the truck licensing and permitting laws at issue, because the court lacked subject matter jurisdiction under the Act. Ct. Rec. 133. The court then granted the Yakama Indian Nation's motion to intervene as a party-plaintiff in both the Cree and Wheeler actions.
On November 29, 1994, the court issued an order addressing five summary judgment motions. Ct. Rec. 180; Cree v. Waterbury, 873 F. Supp. 404 (E.D. Wash. 1994). The court ruled that prior judicial decisions regarding the Yakama Nation's fishing rights under Article III, paragraph 2, of the Treaty governed the meaning of the language "in common with" contained in the public highways clause, Article III, paragraph 1, of the Treaty. Accordingly, the court ruled that the Yakama Nation and its members retained the right to travel Washington public highways without paying highway-user fees while hauling tribal goods. The court also ruled that the Yakama Nation possessed the authority to regulate the conduct of its members in the exercise of Treaty-reserved travel rights outside of the reservation. Finally, the court found that plaintiffs could not recovery attorneys' fees under 42 U.S.C. § 1988 because their claims were not cognizable under section 1983.
State defendants appealed the court's ruling on the Treaty interpretation issue. The Ninth Circuit reversed, finding that the court erred in holding as a matter of law "that [the fishing rights cases] defined the term "in common with" to mean that no fees could be charged for the exercise of a Treaty right." Cree, 78 F.3d at 1403. Instead, the Circuit held that a "factual investigation into the historical context and parties' intent at the time the Treaty was signed is necessary to determine the precise scope of the highway right." Id. at 1405. Accordingly, the Ninth Circuit remanded the case to this court for such a factual inquiry.
On remand, individual plaintiffs and the Yakama Nation were given leave to amend their complaints. Plaintiffs essentially added three new claims: 1) that the Treaty With the Yakamas preempts vehicle registration requirements under RCW § 46.16.010; 2) that those registration requirements violates the sovereign and Treaty-reserved rights of the Yakama Indian Nation to govern the conduct of its members in the exercise of Treaty rights; and 3) that Washington truck license and overweight permit fees fail to meet the standards of Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 65 L. Ed. 2d 10, 100 S. Ct. 2069 (1980) ("Colville ") and Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 48 L. Ed. 2d 96, 96 S. Ct. 1634 (1976) ("Moe "), because the challenged fees are not tailored to account for actual off-reservation travel. Plaintiffs sought to amend their complaints after state defendants, notwithstanding the preliminary injunctions issued by this court, began ticketing Tiin-Ma and Wheeler drivers for failing to possess proper registration under RCW § 46.10.010. See P-9. Proper registration cannot be obtained absent payment of the licensing and permitting fees, and therefore, individual plaintiffs, along with the Yakama Nation, challenge the registration requirements.
The United States Secretary of Transportation was served with Cree plaintiffs' Amended Complaint in July 1996. In September 1996, the court granted the parties' stipulated motion for dismissal of the United States Secretary of Transportation as a third-party defendant.
On October 2, 1996, the court denied defendants' Motion for Partial Summary Judgment regarding the vehicle registration claim included in plaintiffs' Amended Complaints. Ct. Rec. 281. The court ruled that the federal heavy vehicle use tax, 26 U.S.C. § 4481, did not abrogate any Treaty right held by the Yakamas to be free from state vehicle registration requirements. Also in October 1996, the parties cross-moved for summary judgment regarding plaintiffs' claims under Colville and Moe. As the issues in these motions constitute plaintiffs' alternative ground for relief, the court reserved ruling on the motions until a determination of the factual issues.
The Ninth Circuit ruled that this court must "examine the Treaty language as a whole, the circumstances surrounding the Treaty, and the conduct of the parties since the Treaty was signed in order to interpret the scope of the highway right." Cree, 78 F.3d at 1405. The court first sets forth the pertinent standard for interpreting treaties with Indian tribes.
According to well-established canons of construction, treaty language must be construed as the Indians would naturally have understood such terms, with doubtful or ambiguous expressions resolved in the Indians' favor. See United States v. Winans, 198 U.S. 371, 380-81, 49 L. Ed. 1089, 25 S. Ct. 662 (1905); Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676, 61 L. Ed. 2d 823, 99 S. Ct. 3055 (1979) ("Fishing Vessel "); Tulee v. Washington, 315 U.S. 681, 684-85, 86 L. Ed. 1115, 62 S. Ct. 862 (1942). Consequently, courts have adopted a liberal rule of construction with respect to Indian treaties which the Supreme Court has repeatedly relied upon in construing the terminology of Article III of the Treaty. Fishing Vessel, 443 U.S. at 676 ("This rule, in fact, has thrice been explicitly relied on by the Court in broadly interpreting these very treaties in the Indians' favor").
If the treaty language is unambiguous, a court must construe the treaty in accordance with its plain meaning: "Courts cannot ignore plain language that, viewed in historical context and given a fair appraisal, clearly runs counter to a tribe's later claims." Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774, 87 L. Ed. 2d 542, 105 S. Ct. 3420 (1985) (internal quotes and citations omitted). In other words, if the language of the Treaty - as naturally understood by the Yakamas - is unambiguous, the court need go no further in its analysis. Conversely, if the court finds the language of the Treaty ambiguous, the court must construe such terms in a manner favorable to the Yakamas.
Defendants repeatedly argue that plaintiffs bear the burden of proving that the "parties to the Yakama Treaty intended that the Treaty would preempt state highway-user taxes and vehicle registration laws." State Defendants' Trial Brief at 7. However, according to the canons of construction recited above, plaintiffs need only show that the Yakamas understood the Treaty language to secure their right to travel on the public highways without restriction, thus precluding state registration requirements and licensing and permitting fees for Indian-owned vehicles carrying tribal goods to market.
The State argues that the Yakamas bear the burden of proving a tax exemption in the Treaty. However, in interpreting a treaty between the United States and an Indian tribe, the court must interpret the treaty "in the sense in which [the treaty] language would naturally be understood by the Indians." Washington v. Washington Commercial Passenger Fishing Vessel Ass'n ("Fishing Vessel"), 443 U.S. 658, 61 L. Ed. 2d 823, 99 S. Ct. 3055-, 675-76 (internal quotation marks omitted). Treaties are "broadly interpreted" in the Indians' favor. Id.
Cree, 78 F.3d at 1403. Even so, defendants are partially correct in that the canons of construction do not shift the burden from plaintiffs to defendants for the purpose of showing how the Treaty was understood by the Yakamas. Nevertheless, in construing the Treaty, the court is required to examine the language of Article III, paragraph 1, as such terms were understood by the Yakamas.
EVIDENCE OF PARTIES' INTENTIONS
In determining the intent of the parties to the Treaty, the court considered the testimony of three expert witnesses presented by plaintiffs and defendants. Additionally, the court heard the testimony of Kip Ramsey, Delbert Wheeler (P-54), and two state employees, one from the State Department of Transportation and one employed as a terminal audit manager for the Washington State Patrol. Finally, the court reviewed the exhibits identified in Appendix II of this Opinion. In light of the court's findings and conclusions, the court finds it beneficial to describe the backgrounds of the pertinent expert witnesses.
William Yallup, a full-blood Yakama Indian, testified on behalf of the plaintiffs. Mr. Yallup was born in 1926 in Ellensburg, Washington, and raised mostly in Toppenish, Washington, by his paternal grandparents. Yallup testimony at p. 6. He also spent time with his grandfather in Rock Creek, Klickitat County. Mr. Yallup's ancestors, including his grandparents and parents, were members of tribal bands comprising the Yakama Nation. Mr. Yallup speaks Yakama, Nez Perce, and some Umatilla language. Id.
Mr. Yallup was taught the meaning of the Treaty by his grandparents. Three ancestors of Mr. Yallup signed the Treaty, including two of the three primary chiefs that spoke on behalf of the Yakamas at the Treaty negotiations, Kamiakin and Skloom. Id. at p. 6; P-2 at p. 34. Mr. Yallup testified that his grandfather knew Kamiakin and Skloom and others who were present during the treaty negotiations. Mr. Yallup was twenty-eight years old when his grandfather died. Yallup testimony at p. 6.
Mr. Yallup has served almost continually on the Yakama Nation Executive Committee for the past 25 years. From 1985 to 1990, he served as the Director and Cultural Specialist of the Committee.
Dr. Deward Walker also testified as an expert on behalf of plaintiffs. Dr. Walker possesses a Ph.D. in anthropology, the comparative study of past and present human cultures.
Specifically, Dr. Walker is an expert in ethnology, characterized as the comparative interpretation of cultures based on their history, structure, and functioning. Walker testimony at 3. Dr. Walker has spent his career studying the culture of Native American tribes, particularly those of the Northwest Plateau. Id. at p. 5. Plaintiffs submit that Dr. Walker is the "premier expert" on the ethnohistory and anthropology of the Plateau Tribes, which comprise the tribes between the Cascade and Rocky Mountains and include the Yakama Nation. Id. at p. 7.
According to Dr. Walker, the basic goal of anthropology is to understand a particular culture, such as that of a Native American tribe, through direct participation. Dr. Walker explained:
Walker testimony at p. 8. Dr. Walker first began working with the Yakama tribe in the 1950s and has written several publications about the Plateau Indians which indirectly relate to the Yakama Indians. Over the years, Dr. Walker has worked with several members of the Yakama Nation, including a cultural historian. Id. at p. 10.
Dr. Kent Richards, a professor of history at Central Washington University, testified on behalf of state defendants.
Trained as a historian, Dr. Richards has written extensively on Isaac I. Stevens, the Territorial Governor of Washington at the time of the Treaty. In the context of this proceeding, Dr. Richards was asked to
look at the Yakama Treaty in the context of U.S. Indian policy at that time in the mid 19-th century, and in the context of previous treaties, particularly to look at that clause in the treaty relating to roads, and to look at the way that that clause was carried out and interpreted after the treaty.
Richards testimony at p. 6. In formulating his opinions, Dr. Richards almost exclusively consulted written sources; he did not speak with any Yakama tribal members. Instead, Dr. Richards relied upon primary sources generated by a participant or an observer at or near the time of Treaty negotiations. Id. at p. 7.
With all due deference to the experience and impressive credentials of Dr. Walker and Dr. Richards, the court considers Mr. Yallup the ultimate expert in this proceeding. From his early childhood, Mr. Yallup was taught the meaning of the Treaty, as understood by the Yakamas, through oral history passed down through the generations. Further, Mr. Yallup has been entrusted with the role of preserving the cultural history of the Yakamas. Therefore, the court views his testimony with considerable respect.
The court thus proceeds to the factual inquiry mandated by the Ninth Circuit.
A. Treaty With the Yakamas of 1855
Article III of the Treaty with the Yakamas of 1855 provides:
And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with the citizens of the United States, to travel upon all public highways.
The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.
Mr. Yallup testified that members of the Yakama Nation view the Treaty as a sacred document. Mr. Yallup's early education of treaty rights involved a religious approach to rights reserved by the Treaty, specifically how the Treaty provisions pertained to the religious conduct of the tribe. Yallup testimony at p. 9. Particularly, the teachings by Mr. Yallup's grandfather involved the manner in which the future religious practices of the tribe should be conducted with respect to rights reserved by the Treaty. Id. at pp. 9-10.
Dr. Walker confirmed this sacrosanct view of the Treaty:
Walker testimony at p. 12. Dr. Walker has observed this attitude consistently in working with the Yakama Nation. Id. Clearly, the importance of the Treaty language to the Yakamas cannot be understated. The Treaty embodies spiritual as well as legal meaning for the tribe; it enumerates basic rights secured to the Yakamas that encompass their entire way of life. Thus, each provision in the Treaty, including Article III, paragraph 1, has special meaning.
Yet, in order to fully understand how the Yakamas understood Article III, paragraph 1, at the time the Treaty was signed, an examination into the historical context of the Treaty, including the significance of travel to the Yakamas, is essential.
B. Historical Context of the Treaty
1. Significance of Travel
Prior to the signing of the Treaty, the Yakamas traveled extensively. This far-reaching travel was an intrinsic ingredient in virtually every aspect of Yakama culture. Travel was significant for many reasons, including trade, subsistence, and maintenance of religious and cultural practices. Travel was such an essential component of the Yakamas' way of life that "they could not have performed and functioned as a distinct culture in the plane in which they performed and functioned without extensive travel." Walker testimony at pp. 13-14; see also Richards testimony at p. 12.
Travel was particularly important for the purpose of trade. A network involving the exchange and interchangeability of goods and services existed between Indian tribes of the Northwest and surrounding areas, and the Yakamas were a central part of the network due to their location between Northwest Coast tribes to the west and the Plains tribes to the east. Yallup testimony at pp. 13-14; Walker testimony at pp. 14-15. Within this network, the Yakamas traded goods, such as dried salmon, at various tribal trade centers throughout the Northwest and beyond. P-5; P-21, D-329; Walker testimony at pp. 13-18.
The Yakamas' way of life depended on goods that were not available in the immediate area; therefore, they were required to travel to the Pacific Coast, the Columbia River, the Willamette Valley, California, and the plains of Wyoming and Montana to engage in trade. Walker testimony at pp. 14-15; Richards testimony at p. 12; P-4, P-5. Additionally, trading was constant between the fourteen bands of tribes that comprise the Yakama Nation. Yallup testimony at p. 22. Finally, Yakama Indians traded goods with non-Indians as whites expanded trading centers into the region, specifically those of the Hudson's Bay Company. P-6-8; P-14, D-218 at pp. 25-27.
Goods that Yakamas traded included fir trees, pumice-like lava rocks, horses, and most importantly, salmon. Yallup testimony at pp. 12-15. The Yakamas traded these items for goods such buffalo products, especially buffalo hide and dried buffalo meat. Id. at pp. 13-14. Finally, the Yakamas traded goods obtained from the Plains Indians for items from the coastal tribes. From the coastal tribes, the Yakamas primarily sought shellfish, which was significant for cultural as well as subsistence purposes. Id. at p. 21.
Bands that comprise the Yakama Nation, particularly the Klickitats, had a well-known reputation for being "inveterate traders." Walker testimony at p. 16; P-14, D-218 at p. 9. George Gibbs, a lawyer, ethnologist, and advisor to Isaac Stevens, remarked that their proclivity for trade was equal to that of whites, as the Yakamas constantly moved goods back and forth between the Coast and Interior and obtained access to goods from the Plains. Walker testimony at p. 16; P-14, D-218. Gibbs reported that the Klickitats exhibited a "peculiar aptitude" for trading, "purchasing from the whites feathers, beads, cloth, and other articles prized by Indians, and exchanging them for horses, which in turn they sell in the settlements." P-14, D-218 at p. 9. He noted that tribal women would collect and dry food abundant in the Klickitat region, such as berries, and trade the same for foodstuffs unavailable in their territory. Id. at p. 10.
Yakamas also traveled for hunting, gathering, fishing, grazing, recreational, political, and kinship purposes. Walker testimony at p. 20; P-14, D-218; P-15, D-344. For example, the Yakamas, along with other Plateau tribes such as the Nez Perce, traveled to the buffalo grounds in the eastern plains to hunt with the Flathead tribes during the late spring and summer months. P-15, D-344 at p. 5; Yallup testimony at p. 18. These hunting trips would be very organized and include goods for trade in the area. Walker testimony at p. 21. Additionally, the Yakamas communicated continually with Puget Sound tribes during the summer months by travel through the mountain passes.
Further, within the plateau area itself, travel was required to obtain various foodstuffs and game. Id. at p. 17. Typically, after planting potatoes in late spring, the Yakamas would leave for the mountains to dig for roots. P-15, D-344 at p. 5. Some tribal members would then travel to the rivers to fish for spring salmon, while others would remain in the mountains throughout the berry season. Id. In the autumn, the Yakamas would gather their store of berries and return to the rivers for fall fishing. Id. Shortly afterward, the buffalo hunters returned from the Plains, where they had remained since the previous fall or spring. P-14, D-218; P-15, D-344 at p. 5. At the first snow, Yakama hunters would return to the mountains for deer, elk, and other game. Finally, during the harsh winter months, the Yakamas were driven to the straits to survive the weather. P-14, D-218 at p. 15.
Travel was essential with respect to the Yakamas' custom of taking fish. Tribal members would travel to the Columbia River to intercept the early runs of salmon, then follow the runs as they moved through Yakama territory and beyond. Yallup testimony at p. 11; Walker testimony at p. 17. In furtherance of their fishing practices, the Yakamas maintained fisheries at The Dalles and other locations on the Columbia River. P-14, D-218 at p. 13. Therefore, travel to these areas was absolutely necessary for the Yakamas to maintain their fishing practices.
Travel for fishing purposes is particularly significant when considering how fish, notably salmon, are woven into the fabric of Yakama life. Fishing was and remains of paramount importance to the tribe. It has been estimated that as much as fifty percent of the Yakamas' diet depended on fish and constituted a primary staple. Walker testimony at p. 19. The Yakamas also used salmon for religious and ceremonial practices in which every part of the fish played a role. Further, several species of salmon were used for various medicinal purposes. Yallup testimony at pp. 10-12. Finally, as described above, fish was especially valuable in trading with other tribes for goods and services. Salmon was particularly prized by tribes such as the Crow and Flathead who did not have access to salmon in their territories. Id. at pp. 10-11; Walker testimony at pp. 19-20. Thus, the ability to take fish, which depended on the ability to travel, played a dominant role in Yakama life.
Additionally, travel was important to maintain cultural ties with families. The usual custom of the Yakama men was to seek wives in adjoining tribes, resulting in much intermarriage with tribes on the western side of the Cascades, as well as with tribes to the north. P-14, D-218 at pp. 17-18. Travel enabled the children of such unions to learn the culture of both sides of their families. Yallup testimony at p. 24. In this way, the culture of each band was maintained through the generations. Id.
The record as a whole unquestionably depicts a tribal culture whose manner of existence was ultimately dependent on the Yakamas' ability to travel. Significantly, Stevens knew of the Yakamas' reliance on travel when entering into Treaty negotiations. Walker testimony at p. 22; P-14, D-218; P-15, D-344. For example, George Gibbs had reported that the tribes "require the liberty of motion for the purpose of seeking, in their proper season, roots, berries, and fish, where those articles can be found, and of grazing their horses and cattle at large; but they do not need the exclusive use of any considerable districts." P-14, D-218 at p. 29. Stevens' knowledge of the importance of travel is further illustrated by the promises given to the Yakamas during the Treaty negotiations regarding their ability to travel off-reservation. See, e.g., P-2 at p. 67 ("You will be allowed to go to the usual fishing places and fish in common with the whites, and to get roots and berries and to kill game on land not occupied by the whites.").
The Yakamas' contacts with whites began many years prior to Treaty, resulting in native use of horses and firearms. Richards testimony at p. 9. After the Lewis and Clark expedition in the early 1800s, the Yakamas experienced increased contact with explorers and fur traders, predominantly those with the Hudson's Bay Company. Id. at pp. 12-13; P-14, D-218 at p. 11. Additionally, the Yakamas had frequent interaction with Catholic priests who resided at the Ahtanum Mission in the Yakima Valley. Richards testimony at p. 15; P-14, D-218 at p. 13. The first white settlers in the Northwest arrived in 1840s in Oregon's Willamette Valley. Few settlers were present in the Yakima Valley in 1855, although the lands west of the Cascade Mountains were rapidly becoming settled by whites. Richards testimony at p. 16. Thus, until the early 1850s, the Yakamas' contact with whites was mostly limited to encounters with explorers, traders, and missionaries.
During the Treaty negotiations, Isaac Ingalls Stevens was the Territorial Governor of the Washington Territory and also served as Superintendent of Indian Affairs for Washington Territory. Richards testimony at p. 23. At the same time, Stevens was Chief Engineer of the Northern Division of the Pacific Railroad Surveys chartered by Congress to ascertain the most expedient transcontinental railroad route. Id. at p. 24; P-14; D-218.
Stevens was under tremendous pressure to quickly negotiate treaties with eastern Washington tribes, because lands occupied by those tribes were important in settling the Washington territory. United States policy at the time favored settlement of the Northwest by whites, and the government sought to avoid hostilities between whites and Indians. See D-204-214 (treaties between the United States and other tribes); D-216. The increased migration of settlers to the Washington Territory only intensified the necessity to free land for settlement. The Oregon Donation Act, passed by Congress in the 1850s, allowed settlers to take lands in areas that were still occupied by tribes but had not been ceded to the United States. D-215; D-216. The Act contributed to the pressure placed on Stevens to obtain title to Indian lands as emigrants were attempting to enter the Yakima Valley and take up settlements. Richards testimony at pp. 23-24.
Thus, obtaining Indian lands east of the Cascades became a central objective in Stevens' career. In his address to the first session of the Washington legislature, Stevens declared his aspiration to extinguish Indian title to land for the purpose of constructing roads and a railroad route through the Territory. D-291; Richards testimony at 24. Stevens surmised that if he attained the right to build a road through Washington Territory to Puget Sound, the Territory would likely receive more federal funds for additional road-building projects. D-334; Richards testimony at 24.
In pursuit of his goals, Stevens employed Captain George McClellan, Andrew Bolon, and James Doty, who each visited the Yakamas prior to Treaty negotiations. Richards testimony at p. 46.
McClellan was a commanding officer of the Western Division of the Pacific Railroad Exploration. P-14, D-218. In 1853, McClellan was sent to investigate possible routes for a wagon trail and railroad through the Cascades. P-14, D-218; P-17, D-335; P-15, D-344 at p. 22; Richards testimony at 46. To that end, McClellan conversed with several members of Eastern Washington tribes. Although McClellan did not consider it necessary to enter into formal talks with many of the tribes, the situation with the Yakamas was viewed differently: "Their country was to become a thoroughfare for the whites, and it was very important that a proper impression should be made, and a friendly understanding established." P-14, D-218 at p. 16.
During his visit, McClellan met with Yakama Chief Kamiakin and "explained to him the general nature of the American government, as far as was necessary for him to understand, and the rank that Governor Stevens . . . would hold in the country." Id. McClellan advised Kamiakin of the government's intention to build a wagon road and railroad across the mountains and informed Kamiakin that many whites would pass through Yakama country. Id. McClellan further expressed the wish that Kamiakin would assist the government in that endeavor, explaining that the travel of whites through Yakama country would greatly benefit Yakama trading enterprises. Id. ; P-17, D-335 at p. 4. After spending several weeks with the Yakamas, McClellan departed and informed Yakama leaders that Stevens would be coming in the next year or so to discuss a treaty with the Yakamas. Richards testimony at p. 48.
In his report to Governor Stevens, Bolon noted that the Yakamas were "a proud and spirited race," different than coastal tribes, in that they were "ready to resist injustice or oppression." P-15, D-344 at p. 5. In fact, the distrust by one Yakama Chief was so great that he would not accept gifts from Bolon for fear it would create a lien on Yakama lands. Id. at p. 1; see also P-14, D-218 at p. 16; P-17, D-335. This distrust apparently resulted from occurrences in Oregon where gifts were given to Indians upon negotiations of treaties subsequently repudiated by the whites even though the lands remained in the possession of settlers. P-15, D-344 at pp. 1-3. Therefore, according to Bolon, "It will be of greatest importance that any treaties made with [the Yakamas] be not rejected or their engagements left unfulfilled" by the government. Id. at pp. 5-6; Richards testimony at p. 51.
In August 1854, Stevens and General Palmer, Superintendent of Indian Affairs for the Oregon Territory, were instructed to
enter at once upon [treaty] negotiations, commencing with those tribes in the vicinity of the settlements of the whites, and having for a principal aim the extinguishment of the Indian claim to the lands, and the concentration of all the tribes and fragments of tribes on a few reserves of limited extent, naturally suited to the requirements of the Indians, and located, as far as practicable, so as not to interfere with the settlement of the Territories respectfully. They are admonished of the importance, also, of adopting but few stipulations to be fulfilled on each behalf, which should be simple and well understood by the Indians . . . .
Subsequently, James Doty visited the Yakamas in early April of 1855, several weeks before the commencement of treaty negotiations. Doty accompanied Stevens on the railroad surveys and assisted Stevens in prior treaty negotiations. Richards testimony at 53. Doty, along with Bolon, attempted to explain the treaty process and the major tenets of a treaty. Id. Doty described the major provisions of the treaty as follows: the government would purchase all of the Indian country with some lands reserved to the Yakamas upon which no white man could enter without consent of the tribe or their Indian Agent; Indian horses and cattle would be allowed to graze outside of reservation on lands unclaimed by settlers; the government would provide buildings, a schoolhouse, a blacksmith, a carpenter shop, and mills; and the Yakamas "would have the right of traveling through the country upon lawful business, fishing at accustomed places in common with the whites, and going to the mountains for berries, always provided that they were to remain upon their Reservation when required." P-24, D-348 at pp. 18-19.
Due to the ever-increasing presence of whites, the Yakamas thought that a treaty was inevitable and wanted to "strike the best deal possible." Walker testimony at p. 37.
It was within this context that treaty negotiations occurred between members of the Yakamas and Governor Stevens on behalf of the United States government.
C. Treaty Negotiations at the Walla Walla Council
The parties agree that the Treaty minutes accurately replicate what Stevens and General Joel Palmer told the Yakamas at the Treaty negotiations. See P-2.
The parties further agree that Article III accurately reflects the statements made during the negotiations as reported in the Treaty minutes. P-1; see, Dr. Richards testimony at p. 126. Therefore, no issue regarding the substance of what was communicated to the Yakamas by Stevens and his agents is raised.
The Treaty proceedings, commonly known as the Walla Walla Council (Council), commenced in the Walla Walla Valley in southeastern Washington Territory. On May 24, 1855, tribes began arriving at the Treaty grounds. The parties to the Treaty first met on May 28, 1855, to make preliminary arrangements, and the Council formally opened on the afternoon of May 29, 1855. P-2 at p. 29. In attendance of behalf of the United States were Governor Stevens, General Palmer, James Doty, and other Treaty officers. Id. Additionally, approximately fifty citizens were present, bringing the total of non-Indians to approximately sixty. Id. Chiefs from the Yakama, Nez Perce, Walla Walla, Cayuse, and Umatilla tribes attended, in addition to approximately 1800 tribal members. Id. The principle leaders speaking on behalf of the Yakamas were Kamiakin, Owhi, and Skloom. Id. at p. 34.
Several interpreters were also present during the Council to translate for the parties. English words were translated into Chinook jargon for the tribes, although that was not the primary language of any tribe. Walker testimony at pp. 38-40. The tribes agreed to the selection of the interpreters, with a Cayuse chief remarking: "We know of no others whom we would wish. There may be some words hard for them to make us understand, but we think the arrangement good as it is." P-2 at p. 35.
Stevens began the formal negotiations by expressing the government's desire to better the lifestyle of tribal members and assure peace:
We told the Great Father, these men have farms. The Great Father said I want them to have more and larger farms. I told him you had cattle and horses. He answered that he wanted your horses and cattle to increase. I told him some of your grown people could read and write. He answered, I want all the grown people and all the children to learn to read and write. I told him that some of you were handy at trades. He answered that he desired to give all who choose the means to learn these trades.
Further, Stevens declared a resolution to protect the Indians from "bad white men" if the tribes agreed to live within designated reservations, explaining that "when the white man and the red man lived together in the same ground the white man got the advantage and the red man passed away." Id. at p. 40. Consequently, "on each tract [of land] we want an agent to live who shall be your brother and who shall protect you from bad white men." Id. at p. 41. Thus, it was communicated to the tribes that whites and Indians should not occupy the same territory and that the tribes would be protected from unlawful white men by living on the reservations. As Palmer stated:
Who can say what is mine and what is yours? The white man will come to enjoy those blessing with you. What shall we do to protect you and preserve peace? There are but few whites here now. There will be many. Let us, like wise men, act so as to prevent trouble.
We did not come here to scare you or to drive you away, but we came here to talk to you like men, and to make such arrangement as to preserve peace and protect you. Our agents have tried to protect you in all your rights. But I am fearful they will not always be able to do so if you continue to live in this scattered condition.
P-2 at pp. 52-53; see also Id. at p. 49 ("All experience we have had with Indians these three hundred and sixty years shows us that the white man and the red man cannot live happily together.").
As further incentive to sign the Treaty, Stevens guaranteed the tribes that, in exchange for the tribes' acquiescence in living on a specific tract of land, each reservation would include a blacksmith, a carpenter shop, a saw mill, a grist mill, along with an Indian agent to protect them from "bad white men." Id. at p. 41. Palmer guaranteed that "if we make a treaty with you and our Great Chief and his council approves it, you can rely on all its provisions being carried out strictly." P-2 at p. 55 (emphasis added).
Contrary to defendants' assertion that the Yakamas' right to travel was not a component of treaty negotiations, the subject was repeatedly broached, most often by Stevens or Palmer. For example, on May 31, 1855, Stevens told the tribal members present:
Id. at p. 44. Thus, as explained to the Yakamas, entering into the Treaty would not infringe upon or hinder their tribal practices. Rather, the Treaty was presented as a means to preserve Yakama customs and prevent further encroachment by white settlers, while at the same time providing tribes with modern accoutrements to enhance their standards of living and fortify their resources.
Stevens also explained the reservation boundaries that the government intended to create, including those of the Yakama reservation. As justification for selecting the reservations sites, Stevens related:
There is plenty of Salmon on these Reservations, there are roots and berries, there is also some game. You will be near the great road and can take your horses and your cattle down the river and to the Sound to market. Though near to the great roads, you are a little off from them, and you will not be liable to be troubled by travelers passing through.
Id. at p. 64. Stevens further explained to tribal members that:
You will be allowed to pasture your animals on land not claimed or occupied by settlers, white men. You will be allowed to go on the roads to take your things to market, your horses and cattle. You will be allowed to go to the usual fishing places and fish in common with the whites, and to get roots and berries and to kill game on land not occupied by the whites. All that outside the reservation.
Id. at p. 67 (emphasis added).
With regard to the Yakama Reservation specifically, "[tribal members] shall have the same liberties outside the reservation to pasture animals on land not occupied by whites, to kill game, to get berries and to go on the roads to market." P-2 at p. 69 (emphasis added). Neither Stevens nor his agents mentioned any sort of restriction on these rights, other than the condition that the United States government be allowed to construct wagon roads and a railroad route through the reservation. As General Palmer asserted:
My brother has stated that you will be permitted to travel the roads outside the reservation. We have some kind of roads which perhaps you have never seen. we may wish to make one of the roads from the settlements east of the mountain to our settlements here. They may desire to run that road through your reservation. If we desire to do so we wish that privilege. That kind of road we call a rail road. . . . Now if our chief desires to construct such a road through your country, we want you to agree that he shall have the privilege. You would have the benefit of it as well as the other people.
Now as we give you the privilege of traveling over roads, we want the privilege of making and traveling roads through your country, but whatever roads we make through your country will not be for your injury.
Nearing the end of treaty negotiations, Stevens told the tribes: "You will not be called according to the paper to move on the reservation for two or three years. Then is secured to you your right to fish, to get roots and berries and to kill game." Id. at p. 98 (emphasis added). Finally, when trying to convince Nez Perce Chief Looking Glass and others to agree to the Treaty provisions, Stevens reassured them that
in this reservation settlers cannot go, that [each tribal member] can graze his cattle outside of the reservation on lands not claimed by settlers, that he can catch fish at any of the fishing stations, that he can kill game and can to the buffalo when he pleases, that he can get roots and berries on any of the lands not occupied by settlers.
Id. at p. 102 (emphasis added).
Thus, in reliance on the promises given by Stevens and Palmer, the Yakamas agreed to the Treaty provisions in good faith on June 9, 1855.
D. Actions of the Parties Since Treaty
The Ninth Circuit also instructed this court to examine the actions of the parties since the signing of the Treaty to determine what the parties intended in Article III, paragraph 1.
It is well-documented that the Yakamas' traveled extensively prior to the Treaty negotiations. See supra pp. 18-23. Further, according to reports of the Yakama Indian Agency, Yakama Indians continued to travel off-reservation years after the treaty was negotiated and ratified. See, e.g., D-223 (unless government can "induce them to give up rambling habits, choose a fixed habitation, and become tillers of the ground," Yakamas will not prosper). For example, the Yakamas traveled to hop fields to pick hops or into the mountains for root and berry-gathering during the summer months and would not return until the late fall. P-31, D-241 at p. 386. Yakamas also continued to travel off-reservation for hunting purposes. P-30, D-237; see also P-44, D-250.
Most importantly, Yakamas continued to travel off-reservation to fish: "Each year several bands of Indian on the reserve, and also non-reservation Indians, travel to the salmon fisheries on the Columbia River, where they have been accustomed to obtain a food supply of fish to last them all winter." P-28, D-235 at p. 291; see also P-26, D-224 at p. 581; P-47 (noting large numbers of Yakamas engage in salmon fishing on the Columbia, drying large quantities of fish to be used as winter food); P-26, D-224; D-520.
With respect to the precise right at issue in this litigation, little evidence is presented regarding the Yakamas' understanding of the claimed right to be free from state registration requirements and permitting and licensing fees when hauling tribal goods to market. However, the court reviews the actions it considers relevant.
Yakamas traveled Washington state's public roads and highways without charge until the state began enacting statutes which imposed licensing and permitting fees. Apparently, 128 automobile licenses were issued to Indian-owned automobiles in 1932. P-47, D-451. However, it was estimated that on-reservation Indians owned approximately 500 automobiles at that time. Id. Currently, the Yakama Nation requires personal vehicles to be licensed according to Washington state law. D-280 (Yakama Nation Law and Order Code, section 50.01.01), cf. D-277 (tribal member stating that he had never purchased vehicle without paying for license).
Evidence suggests that the Yakamas voiced objections to roads built through the reservation without tribal approval. P-32; Yallup testimony at pp. 54-55. Further, the record reveals that the Yakamas objected to state-proposed financing and construction of a highway through the Yakama Indian Reservation in 1932. One proposal was to make gross expenditures a reimbursable charge against the Yakama Nation. However, "the Yakima Indians, while anxious for the construction to proceed, vehemently protest any appropriation being made that would result in a reimbursable charge against the present or future assets of the tribe." P-45, D-450.
In each case, a court found that Washington truck licensing and permitting fees violated plaintiffs' Treaty rights and ruled that the Treaty prohibited the state from imposing such fees against tribal members. Yet, the state continued to impose those fees until this court issued preliminary injunctions in the instant litigation.
Having reviewed the relevant factual circumstances, the court proceeds to its discussion of plaintiffs' claims.
Plaintiffs argue that the Treaty language, along with the promises made to the Yakamas at the Walla Walla Council, unambiguously reserves to the Yakamas the right to travel the public highways without restriction, and therefore precludes the state from imposing registration requirements and licensing and permitting fees on Indian-owned trucks hauling tribal goods to market.
Defendants counter that the parties to the Treaty did not intend any such exemption from state fees. Defendants first argue that neither party to the Treaty expressed an intention to preserve the Yakamas' traditional system of trade and exchange, and therefore no right to travel without restriction was reserved by the Treaty. Further, defendants claim that even if such a right was retained by the Treaty, that right does not extend to plaintiffs' logging trucks, because logging is a modern "Euroamerican" enterprise. Defendants maintain that the Yakamas' actions before and after the Walla Walla Council exhibit such an understanding on the part of the tribe. Finally, defendants contend that even if the Yakamas retained a right to travel the public highways free of restriction, the truck licensing and permitting fees do not violate the Treaty because they are necessary to preserve the public highways. See State Defendants' Trial Brief at 10.
A. The Meaning of "In Common With"
Article III, paragraph 1, of the Treaty With the Yakamas secures to the Yakamas "the right of way, with free access from the [reservation] to the nearest public highway" and "the right, in common with the citizens of the United States, to travel upon all public highways." Although the Treaty first references the right of free access from the reservation to the nearest public highway, the court finds most critical the language securing to the Yakamas the right to travel the public highways "in common with" citizens of the territory.
Notably, the Treaty does not include a restriction on the Yakamas' right to travel; rather, it secures a right to travel. However, the Treaty language does not define the scope of the right to travel or the precise meaning of "in common with." Nor was a precise interpretation given for the term "in common with" during the Walla Walla Council. Walker testimony at p. 24. The only reference to such commonly held rights is Palmer's discussion of the railroad that the federal government wished to build through the reservation. In explaining the railroad, Palmer stated: "You would have the benefit of it as well as the other people." P-2 at 70. Finally, no term in Chinook jargon is the equivalent of this phrase. See P-55; P-56. Neither party presented evidence suggesting that "in common with" was ever explained to the Yakamas.
The evidence, or lack thereof, submitted in this case with respect to the term "in common with" comports with the findings in United States v. Washington :
384 F. Supp. 312, 356 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976) (citations omitted; emphasis added). As this observation indicates and the record reflects, the Yakamas had, at best, a rudimentary understanding of the phrase "in common with." In light of their limited contact with whites prior to the Treaty negotiations, it is difficult to imagine a sophistication on the part of the Yakamas that would enable them to discern a precise legal meaning of this term.
Notwithstanding the Yakamas' lack of understanding of this language in a legal sense, the term "in common with" was presented as if understood and obvious to all present. Walker testimony at 24. In the Yakama language, those words would mean or suggest customary or public use, or open to everyone, such as open to general use without restriction. Id. at p. 30. Mr. Yallup testified that Skloom and Kamiakin, as well as other Yakama members, understood that their right to travel was not subject to any restrictions. Yallup testimony at p. 25. Therefore, as the Yakamas understood this term, no impediment was placed on their customary practice of travel or their right to travel to market. Id.
In looking to the circumstances surrounding the Treaty, it seems clear that the Yakamas understood the term "in common with" as common usage among Indians and non-Indians with no restriction placed upon tribal members. Contrary to defendants' assertions, no evidence suggests that the term "in common with" placed Indians in the same category as non-Indians with respect to any tax or fee the latter must bear with respect to public roads. Instead, the term was understood by the Yakamas and Stevens alike to mean that the Indians retained the right to travel the public roads, on and off-reservation, and that right would be exercised "in common with" non-Indians. In other words, both Indians and non-Indians would use the public roads simultaneously. The promises made and the Walla Walla Council, and the historical context in which they were given, supports the court's conclusion.
First, it is obvious that Stevens and his agents understood the importance of off-reservation travel to the Yakamas. Indeed, this provision was part of the "big sell": the Yakamas could maintain their traditional way of life, with improvements courtesy of the United States government, but they must sell most of their land and live within the confines of the reservation where they would be protected from "bad" white men. In return, Stevens guaranteed that the Yakamas "shall have the same liberties outside the reservation to pasture animals on land not occupied by whites, to kill game, to get berries and to go on the roads to market." P-2 at p. 69. This statement unequivocally secured the Yakamas' right to travel off-reservation in order to maintain their customs of hunting, gathering, and trade. More importantly, in entering the Treaty, the Yakamas relied on Stevens' and Palmer' promises that they would be able to maintain their cultural and subsistence practices which centered on their ability to travel.
Furthermore, Stevens and Palmer represented that the Treaty provisions were beneficial to the Yakamas. Stevens asserted that the Yakamas could live in peace and enhance their way of life if the they agreed to live within the designated reservation. Id. at pp. 39-41. Palmer promised that the government would protect the Yakamas and their rights if they signed the Treaty and moved onto the reservation. Id. at pp. 52-53. Finally, Stevens and Palmer explicitly guaranteed that the Yakamas would retain the right to travel outside of the reservation in pursuit of their traditional practices of fishing, hunting, and gathering, as well as taking goods to market.
In exchange for the retention of the right to travel outside of the reservation, Stevens and Palmer explained that the tribes must agree to allow roads, including railroads, to be constructed within the reservation boundaries. These were the terms of the bargain; no reference is made to other conditions such as payment for or maintenance of public roads, either on or off-reservation. Rather, the accessibility of the public roads was described as an advantage for the Yakamas, without any mention of possible disadvantages, such as paying for or maintaining public roads. See, e.g., P-2 at pp. 64, 70.
No assertion by Stevens at the Treaty Council contained any language that the Yakamas would interpret as a restriction of their right to travel. See supra pp. 33-35. Likewise, neither the Treaty language itself nor statements made during the Treaty negotiations suggested that "in common with" meant that Indians would be subject to travel restrictions applicable to non-Indians. Thus, the Yakamas would have naturally understood that they would be able to travel the public highways without restriction.
Moreover, when viewed in historical context, it is unlikely that Stevens would have intended to place restrictions on the Yakamas' right to travel. As explained above, Stevens' primary goal was to secure vast amounts of land and therefore reach an agreement with eastern Washington tribes as quickly as possible. Additionally, Stevens was well aware of the Yakamas' far-ranging patterns of travel and the importance of travel to Yakama culture. Stevens also knew that the Yakamas, along with other tribes, had expressed reluctance in entering a Treaty with Stevens and the United States government. See P-14, D-218; P-15, D-344; P-17, D-335.
Under such circumstances, any indication by Stevens to restrict the tribes' off-reservation travel rights would have been met with hostility from Yakama leaders and the other 1800 tribal members in attendance at the Walla Walla Council. Therefore, in this context of the Treaty negotiations - the pressure placed on Stevens to conclude a treaty with the Yakamas, and the importance of the land held by the Yakamas, both for settlement and transportation purposes - it is ...