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 Ninth Circuit similarly discarded defendants' argument when it remanded this case for trial:
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:
As part of that one then needs to acquire understanding of the language, of the history, of the social institution, of the lives of key individuals, to include such things as leadership. We need to understand in a rounded full sense as much of the culture of an operating system as possible.