in the united states court of appealsdocket no. 19-35199 in the united states court of appeals for...

Docket No. 19-35199

In the

United States Court of Appeals For the

Ninth Circuit

CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, a Sovereign Federally Recognized Native Nation,

Plaintiff-Appellant,

v.

YAKIMA COUNTY, a Political Subdivision of the State of Washington and CITY OF TOPPENISH, a Municipality of the State of Washington,

Defendants-Appellees.

_______________________________________ Appeal from a Decision of the United States District Court for the Eastern District of Washington,

No. 1:18-cv-03190-TOR ∙ Honorable Thomas O. Rice

REPLY BRIEF OF APPELLANT

ETHAN JONES, ESQ. MARCUS SHIRZAD, ESQ. SHONA VOELCKERS, ESQ. YAKAMA NATION OFFICE OF LEGAL COUNSEL Post Office Box 150 Toppenish, Washington 98948-0150 (509) 865-7268 Telephone

ANTHONY S. BROADMAN, ESQ. JOE SEXTON, ESQ. GALANDA BROADMAN Post Office Box 14156 Seattle, Washington 98115 (206) 557-7509 Telephone

Attorneys for Appellant Confederated Tribes and Bands of the Yakama Nation

COUNSEL PRESS ∙ (800) 3-APPEAL

PRINTED ON RECYCLED PAPER

Case: 19-35199, 10/11/2019, ID: 11461799, DktEntry: 31, of 37

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 STANDARD OF REVIEW ....................................................................................... 2 COUNTERSTATEMENT OF FACTS ..................................................................... 3 ARGUMENT ............................................................................................................. 4 I. THE UNITED STATES REASSUMED JURISDICTION

OVER CRIMES INVOLVING INDIANS WITHIN THE YAKAMA RESERVATION ................................................................ 4

A. Defendants Ignore The Department of the Interior’s

Understanding Of Retrocession’s Scope At The Time Of Acceptance .................................................................................. 4

B. The Trump Administration Ignored The Obama

Administration’s Understanding And Improperly Re-Interpreted Proclamation 14-01 .................................................. 8

C. The United States’ Amicus Curiae Argument Hinges On

An Alleged Ambiguity In Assistant Secretary Washburn’s Letter That Does Not Exist ................................... 12

D. The Yakama Nation Satisfied All Elements Necessary

For Issuance Of A Permanent Injunction ................................. 17 II. THE YAKAMA NATION POSSESSES STANDING

SUFFICIENT TO CHALLENGE DEFENDANTS’ UNLAWFUL EXERCISE OF CRIMINAL JURISDICTION ........... 23

A. The Yakama Nation Suffers An Injury From Defendants’

Unlawful Exercise Of Criminal Jurisdiction That Can Be Cured By Declaratory And Injunctive Relief ........................... 24


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B. Civil Rights Cases Where Non-governmental Plaintiffs Challenge Judicial and Police Conduct Are Distinguishable From This Case ............................................... 26

CONCLUSION ........................................................................................................ 28 CERTIFICATE OF COMPLIANCE ....................................................................... 29 CERTIFICATE OF SERVICE ................................................................................ 30


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TABLE OF AUTHORITIES CASES Allen v. Wright, 468 U.S. 737 (1984)....................................................................................... 25 Am. Vantage Cos., Inc. v. Table Mt. Rancheria, 292 F.3d 1091 (9th. Cir. 2002), as amended on denial of reh’g, 2002 U.S. App. LEXIS 15127 (July 29, 2002) ............................................. 18 American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995) ........................................................................... 2 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)....................................................................................... 23 Dep't of Hous. and Urban Dev. v. Rucker, 535 U.S. 125 (2002)......................................................................................... 2 Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) ........................................................................... 3 EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001) ....................................................................... 18 Flast v. Cohen, 392 U.S. 83 (1968) ......................................................................................... 23 Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) ..................................................................... 2, 3 Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Rels., 730 F.3d 1024 (9th Cir. 2013) ....................................................................... 17 Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998) ..................................................................... 18 Los Angeles v. Lyons, 461 U.S. 95 (1983) ................................................................................... 26, 27


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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....................................................................................... 25 Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457 (2nd Cir. 2013) ........................................................................ 24 Miccosukee Tribe of Indians v. Florida State Ath. Comm’n, 226 F.3d 1226 (11th Cir. 2000) ................................................................ 24, 25 Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463 (1976)....................................................................................... 24 Mont. Shooting Sports Ass’n v. Holder, 727 F.3d 975 (9th Cir. 2013) ......................................................................... 25 O’Shea v. Littleton, 414 U.S. 488 (1974)....................................................................................... 26 Omaha Tribe of Nebraska v. Walthill, 334 F. Supp. 823 (D. Neb. 1971) .................................................................... 5 Or. Coast Scenic R.R., LLC v. Or. Dep’t of State Lands, 841 F.3d 1069 (9th Cir. 2016) ......................................................................... 3 Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) ..................................................................... 19 Rizzo v. Goode, 423 U.S. 362 (1976)................................................................................. 26, 27 Rucker v. Davis, 237 F.3d 1113 (9th Cir. 2001) ..................................................................... 2, 3 Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) ......................................................................... 2 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ......................................................................................... 25


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Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016) ................................................................................... 24 State of Ariz. ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969) ......................................................................... 21 State v. Zack, 2 Wn. App. 2d 667 (2018), review denied, 191 Wn.2d 1011 (2018) ............................................................................. 9, 26 United States v. Brown, 334 F. Supp. 536 (D. Neb. 1971) .............................................................. 5, 12 United States v. Lawrence, 595 F.2d 1149 (9th Cir. 1979) ..................................................................... 4, 5 United States v. Michigan, 534 F. Supp. 668 (W.D. Mich. 1982) ............................................................ 18 Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir. 2015) ......................................................... 19, 20, 22 Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036 (9th Cir. 2004) ......................................................................... 2 Williams v. Lee, 358 U.S. 217 (1959)....................................................................................... 21 Winnebago Tribe v. Stovall, 216 F. Supp. 2d 1226 (D. Kan. 2002) ........................................................... 18 STATUTES 25 U.S.C. § 1323 ...................................................................................................... 12 25 U.S.C. § 1326 .................................................................................................. 5, 12 Wash. Rev. Code § 37.12.010 ............................................................................ 10, 11


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OTHER AUTHORITIES Proclamation 14-01 ...........................................................................................passim Pub. L. 83-280 ...................................................................................................passim Treaty with the Yakamas, U.S. – Yakama Nation, June 9, 1855, 12 Stat. 951 .................................................................................... 21, 25


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INTRODUCTION

When the federal government reassumes Pub. L. 83-280 (“Public Law 280”)

jurisdiction in Indian Country, the scope of that reassumed jurisdiction is set at the

time the Assistant Secretary of Indian Affairs accepts retrocession. In 2015, the

Obama Administration reassumed Public Law 280 jurisdiction over crimes

involving Indians within the Yakama Reservation. At the moment Assistant

Secretary Kevin Washburn accepted the State of Washington’s retrocession offer

through the statutory process, the scope of reassumed Public Law 280 jurisdiction

froze. Barring a subsequent act of Congress, that jurisdictional scope cannot

change without first obtaining the Yakama Nation’s consent. Congress has not

acted and the Yakama Nation does not consent to any modification of reassumed

federal jurisdiction.

The Trump Administration is now undermining that 2015 decision. The

United States’ amicus curiae brief offers an unabashed rejection of the Obama

Administration’s support for Yakama sovereignty. Meanwhile, the Yakama

Nation is left to handle the real-world impacts of the United States’ vacillating

policy positions. Federal law does not permit such indecisiveness.

The District Court erred by failing to employ a federal-focused analysis that

considered evidence of the Obama Administration’s understanding of the scope of

its reassumed jurisdiction within the Yakama Reservation.


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STANDARD OF REVIEW

It remains undisputed that this Court reviews the District Court’s denial of

the Yakama Nation’s request for declaratory relief de novo. Wagner v. Prof’l

Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1040 (9th Cir. 2004).

This Court reviews generally a district court’s order of injunctive relief for

an abuse of discretion. Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en

banc). This Court reviews de novo a district court’s order on a permanent

injunction if a party has alleged that the district court relied on a faulty legal

premise in reaching its decision. Id.; see also Sierra Forest Legacy v. Sherman,

646 F.3d 1161, 1177 (9th Cir. 2011); American-Arab Anti-Discrimination Comm.

v. Reno, 70 F.3d 1045, 1066 (9th Cir. 1995). The Yakama Nation claims that the

District Court interpreted the applicable law erroneously in this case.

The scope of review remains narrow. This Court reviews whether the

District Court applied the proper legal standards governing the issuance of

injunctive relief and “whether the district court correctly apprehended the law with

respect to the underlying issues in the case.” Rucker v. Davis, 237 F.3d 1113, 1118

(9th Cir. 2001) (en banc), rev'd on other grounds, Dep't of Hous. and Urban Dev.

v. Rucker, 535 U.S. 125 (2002). “[I]f a district court’s ruling rests solely on a

premise as to the applicable rule of law, and the facts are established or of no

controlling relevance, the court may undertake plenary review of [the] issues rather


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than limit its review in a case of this kind to abuse of discretion.” Gorbach, 219

F.3d at 1091 (internal quotations omitted). This Court “undertake[s] a plenary

review” of the district court’s decision because the “district court’s ruling rests

solely on a legal question.” Rucker, 237 F.3d at 1118 (citing Gorbach, 219 F.3d at

1091).

The Yakama Nation requested a preliminary injunction, permanent

injunction, and declaratory relief. R. at 391-92. Each request relied on the same

question and interpretation of federal and state law. A legal error in the District

Court’s decision in this case foreclosed each of the three forms of requested relief.

See, e.g., Or. Coast Scenic R.R., LLC v. Or. Dep’t of State Lands, 841 F.3d 1069,

1071 (9th Cir. 2016). This Court must therefore review the lower court’s order de

novo. Rucker, 237 F.3d at 1118; see also Does 1-5 v. Chandler, 83 F.3d 1150,

1152 (9th Cir. 1996).

COUNTERSTATEMENT OF FACTS

Defendants mischaracterize facts in their response.1 Yakama Nation Police

did not defer to Toppenish Police to take the lead in the investigation. Appellees’

Resp. Br. 11. Rather, Yakama Nation Police did not pursue a warrant to search the

enrolled Yakama Members’ property due to a lack of probable cause. R. at 258,

1 The contested facts remain irrelevant to the District Court’s legal analysis and therefore do not impact the appropriate standard of review.


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278.2 Toppenish Police arrested Ms. Leann Gunn, an enrolled Yakama Member,

which the District Court identified as a fact “essentially undisputed . . . .” R. at 3.

Defendants, who did not cross appeal, cannot claim now that they did not

“formally arrest” Ms. Gunn. Appellees’ Resp. Br. 12.

Defendants’ assertion that this case does not challenge the validity of

Yakima County’s warrant to search an enrolled Yakama Member’s home within

the Yakama Reservation proves similarly specious. Appellees’ Resp. Br. 11.

Defendants’ arrest of an enrolled Yakama Member and issuance of a search

warrant for an enrolled Yakama Member’s home, both within the Yakama

Reservation, remain the central facts underlying this dispute. R. at 158.

ARGUMENT

I. THE UNITED STATES REASSUMED JURISDICTION OVER CRIMES INVOLVING INDIANS WITHIN THE YAKAMA RESERVATION.

A. Defendants Ignore The Department of the Interior’s Understanding Of Retrocession’s Scope At The Time Of Acceptance.

The scope of the United States’ reassumption of Public Law 280 jurisdiction

is established upon the Department of the Interior’s (“DOI”) acceptance of a state’s

retrocession offer. United States v. Lawrence, 595 F.2d 1149, 1151 (9th Cir.

2 All citations to the excerpts of record correspond to the pagination printed in the footer. All citations to other filings in this case use the electronic filing pagination in the header.


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1979). DOI’s understanding of that scope at the time of acceptance controls. See,

e.g., United States v. Brown, 334 F. Supp. 536, 541 (D. Neb. 1971). It is not the

United States’ burden to correct aspects of a state’s offer of retrocession that the

state or any other party later claims were misinterpreted or drafted in error. See,

e.g., Omaha Tribe of Nebraska v. Walthill, 334 F. Supp. 823, 831 (D. Neb. 1971).

Where a state retroceded Public Law 280 jurisdiction to the United States, the state

can only recover that jurisdiction pursuant to 25 U.S.C. § 1326 requiring the

impacted Native Nation’s consent. Neither Defendants nor amici curiae offer a

different legal framework applicable to the interpretation of a federal reassumption

of Public Law 280 jurisdiction. But each feigns ignorance to the evidence

available to undertake this federal-focused inquiry.

The United States’ understanding of the scope of DOI’s acceptance of

Proclamation 14-01 was repeatedly expressed by federal officials between October

2015 and November 2016, starting with Assistant Secretary Kevin Washburn’s

October 19, 2015 letter. R. at 222-27. The Washburn Letter accepts the full

measure of jurisdiction offered by Governor Inslee, saying the “State will transfer

back to the Federal Government Federal Authority that the State had been

delegated under Public Law 280.” R. at 222. Assistant Secretary Washburn

clarified that “[a]s a result, under retrocession, the State has chosen to retract state


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authority, Federal authority will resume, and the Nation’s authority will remain the

same as it always has been.” R. at 222.

Assistant Secretary Washburn rejected the State’s subsequent attempt to

revise and change the scope of the State’s offer of criminal jurisdiction in

Proclamation 14-01. He stated that “it is the content of the Proclamation that we

hereby accept in approving retrocession.” R. at 226. By relying on the plain and

unambiguous language of Proclamation 14-01, Assistant Secretary Washburn

determined that the federal government reassumed jurisdiction over all crimes

involving Indians within the Yakama Reservation.

The other federal officials charged with implementing retrocession agreed

with the scope of federal jurisdiction the Yakama Nation asserts the federal

government reassumed in 2015. In June of 2016, Assistant Secretary Washburn’s

deputy, Mr. Lawrence Roberts, sent Governor Inslee a letter that characterized the

continuation of state criminal jurisdiction within the Yakama Reservation as in

“conflict[] with the legal effects of retrocession.” Br. of Amicus Curiae United

States at 40. In November 2016, Deputy Roberts reiterated this point in his

guidance memorandum by including a simple chart illustrating that the State no

longer retains Public Law 280 jurisdiction over crimes involving Indians within the

Yakama Reservation. R. at 233-34.


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The United States Attorney charged with implementing retrocession, Mr.

Michael Ormsby, similarly sent an email that confirmed an understanding parallel

to Assistant Secretary Washburn and Deputy Roberts. Mr. Ormsby clarified on the

eve of retrocession’s implementation that the State would no longer possess

jurisdiction over crimes involving Indians within the Yakama Reservation. R. at

229-31. Notably, even Defendant Yakima County’s Sheriff understood that he no

longer possessed jurisdiction over crimes involving Indians within the Yakama

Reservation, as demonstrated by flow charts he used to train his deputies. R. at

101-104.

The District Court, Defendants, and amici curiae fail to address this crucial

evidence. They assert that a state’s after-the-fact statement of intent regarding

retrocession is the paramount consideration. As discussed in the Yakama Nation’s

pending motion to take judicial notice, it appears the District Court did not review

either the Roberts guidance memorandum or the Ormsby email before issuing its

decision. Appellant’s Motion to Take Judicial Notice (Dkt. Entry No. 26). This

evidence—showing that federal officials at the time of retrocession concurred with

the Yakama Nation’s position on the scope of reassumed Public Law 280

jurisdiction—is not discussed in the District Court’s Order or by Defendants in

their briefing. Amicus curiae State of Washington at least acknowledges the

existence of the Washburn Letter, but only to simply dismiss it in conclusory


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fashion. Br. of Amicus Curiae State of Washington at 19-20. Defendants and the

District Court do not employ the appropriate legal framework, and consequently,

do not afford proper weight to the United States’ own expressions of the scope of

retrocession at the time of acceptance.

B. The Trump Administration Ignored The Obama Administration’s Understanding And Improperly Re-Interpreted Proclamation 14-01.

The Department of Justice’s (“DOJ”) amicus curiae brief raised three

interpretive challenges to the scope of retroceded jurisdiction in Proclamation 14-

01’s third numbered paragraph. Br. of Amicus Curiae United States at 23-27.

These interpretations seek to change the previously understood scope of reassumed

federal criminal jurisdiction. The first argument challenges the meaning of “in

part,” and the second argument challenges the meaning of “and,” both of which

were addressed in the Yakama Nation’s opening brief. Br. of Appellant at 58-63.

The third argument raises for the first time meticulously-perceived inconsistencies

in Proclamation 14-01’s first three numbered paragraphs. Br. of Amicus Curiae

United States at 26-27.

The United States now construes Paragraph 3 of Proclamation 14-01 as

inconsistent with Paragraphs 1 and 2. Id. They argue that Paragraph 1 represents a

full retrocession, whereas Paragraph 3’s use of “in part” and reference to non-

Indians can only be interpreted as a partial retrocession. Id. This new construction


9

is in direct conflict with the Proclamation’s plain language and previous DOJ and

DOI interpretations. The federal amicus curiae brief correctly identifies an

inconsistency in the first two numbered paragraphs of Proclamation 14-01, but

incorrectly extends the impact of that inconsistency to the third paragraph at issue

here. When understood within the structure of the State’s assumption of Public

Law 280 jurisdiction, the State’s inconsistent drafting between Paragraphs 1 and 2

proves irrelevant to the previous Administration’s understanding of Paragraph 3.

At the outset, a re-interpretation of Proclamation 14-01’s plain language

remains unnecessary and suggests a clear effort to undermine the Obama

Administration’s reassumption of criminal jurisdiction within the Yakama

Reservation. The Trump Administration offers no authority to support its

reinterpretation. No such authority exists.

If this Court engages in its own interpretation of Proclamation 14-01, it

should employ the statutory construction analysis the Yakama Nation advances in

its opening brief. Appellant’s Br. at 58-65. The State court of appeals

acknowledged the absence of State law addressing construction of a gubernatorial

proclamation. State v. Zack, 2 Wn. App. 2d 667, 672, 413 P.3d 65 (2018), review

denied, 191 Wn.2d 1011 (2018). It is unnecessary to manufacture and apply novel

interpretive canons for gubernatorial proclamations here. This Court should

instead focus on the statutory framework under which Governor Inslee’s


10

proclamation was issued. The relevant paragraph of Proclamation 14-01—

Paragraph 3—proves unambiguous when considered in light of the State’s

statutory scheme for Public Law 280 jurisdiction. R. at 216.

The State assumed general Public Law 280 jurisdiction within Indian

Country pursuant to RCW 37.12.010. The State limited its assumption of

jurisdiction over Indians on trust allotments within Indian Country to eight subject

matter areas. Wash. Rev. Code § 37.12.010. Proclamation 14-01’s first two

numbered paragraphs address those subject matter areas that are applicable to

Indians on trust property. R. at 216. The first two paragraphs do not address the

State’s broader assumption of jurisdiction applicable to both Indians and non-

Indians.

For example, Paragraph 1 provides that the State retroceded “full civil and

criminal jurisdiction” in four of the eight subject matter areas. Id. Paragraph 2

provides partial retrocession of civil and criminal jurisdiction in one of the eight

subject matter areas (i.e. operation of motor vehicles). Id. Confusingly, Paragraph

2 adds language regarding non-Indian versus non-Indian civil adjudicatory and

criminal jurisdiction, which proves irrelevant to the State’s assumption of

jurisdiction over Indians’ operation of motor vehicles on trust property. Id. This is

Governor Inslee’s error. The inconsistency identified by the current DOJ lies


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between Paragraph 1’s discussion of jurisdiction over Indians, and Paragraph 2’s

discussion of jurisdiction over incidents between non-Indians.

The State’s curious drafting in Paragraph 2 cannot change Assistant

Secretary Washburn’s correct interpretation and the federal government’s

acceptance of the plain language of Paragraph 3. Unlike Paragraphs 1 and 2,

Paragraph 3 retrocedes the State’s broader assumption of criminal jurisdiction over

both Indians and non-Indians. R. at 216; Wash. Rev. Code § 37.12.010 (“The state

of Washington hereby obligates and binds itself to assume criminal and civil

jurisdiction over . . . reservations . . . within this state . . .”). Given that Paragraph

3 impacts both Indians and non-Indians, the Obama Administration was reasonable

in its interpretation that the final sentence clarifies the State’s retention of criminal

jurisdiction over non-Indian versus non-Indian crimes. See, e.g., R. at 234.

Paragraph 3 represents this clear description of the State’s retroceded jurisdiction

over all crimes involving Indians, and the State’s retained jurisdiction over crimes

between non-Indians. R. at 216.

The Trump Administration’s re-interpretation efforts echo the District

Court’s error. Each failed to meaningfully consider the United States’

understanding of its own decision in regard to the scope of the criminal jurisdiction

that it reassumed. Each used hyper-technical interpretations of Proclamation 14-01

in an attempt to change the Obama Administration’s reassumption of criminal


12

jurisdiction years after retrocession was finalized. Each relies on a state court

decision bereft of deference to the federal interpretation of jurisdiction that the

federal government reassumed. Federal law does not allow a retrocession’s scope

to shift with the political winds. See Brown, 334 F. Supp. at 542 (the purpose of

Chapter 15 of Title 25 U.S.C. “surely was not to make the Indian a political ping

pong ball between the state and federal governments.”).

The scope of federal and state jurisdiction within the Yakama Reservation

froze after the acceptance and implementation of retrocession. If a new political

administration wishes to change the Yakama Reservation’s jurisdictional

framework, it must follow the process set forth by Congress in 25 U.S.C. § 1326,

and seek the Yakama Nation’s required consent.

C. The United States’ Amicus Curiae Argument Hinges On An Alleged Ambiguity In Assistant Secretary Washburn’s Letter That Does Not Exist.

The amicus curiae brief submitted by the current DOJ offers a detailed re-

interpretation of Proclamation 14-01. DOJ first takes an analytical leap past

review of the Washburn Letter. It justifies this leap by reading ambiguity into the

Washburn Letter when no such ambiguity exists. Br. of Amicus Curiae United

States at 29-31. Ignoring the Washburn Letter is ignoring the United States’

contemporaneous understanding of its own decision. Ignoring this evidence runs

directly counter to the federal laws governing retrocession. 25 U.S.C. § 1323


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(empowering DOI to accept a state’s retrocession offer). This Court should not

ignore the Washburn Letter. It must consider it and defer to Assistant Secretary

Washburn’s reliance on the plain language of Proclamation 14-01 retroceding state

jurisdiction over crimes involving Indians within the Yakama Reservation.

Assistant Secretary Washburn expressly rejected Governor Inslee’s attempt

to amend the plain language of Proclamation 14-01. Governor Inslee submitted a

cover letter with Proclamation 14-01 that purported to read “and/or” where

Proclamation 14-01 used “and.” R. at 219-20. The Washburn Letter dedicates a

full paragraph to dismissing Governor Inslee’s Cover Letter in favor of the plain

language of the Proclamation. R. at 226. His letter recognized that state law

designates the gubernatorial proclamation as the final expression of state intent and

clarified that “it is the content of the Proclamation that we hereby accept in

approving retrocession.” R. at 226. To emphasize the point, Assistant Secretary

Washburn describes the content of Proclamation 14-01 as “plain on its face and

unambiguous . . .”, and warns against “unnecessary interpretation [that] might

simply cause confusion.” R. at 226.

The United States’ argument that the Washburn Letter agrees with Governor

Inslee’s Cover Letter re-writing Proclamation 14-01, is internally inconsistent. Br.

of Amicus Curiae United States at 24. The United States does not address why

Assistant Secretary Washburn would write a paragraph explaining why the plain


14

and unambiguous content of Proclamation 14-01 trumps Governor Inslee’s

explanatory Cover Letter; and further, no explanation is offered as to why

Assistant Secretary Washburn did not simply write “the United States agrees that

‘and’ in Proclamation 14-01 means ‘and/or’.”

Assistant Secretary Washburn’s plain language interpretation does not stand

alone. DOI’s statements concerning the scope of retrocession throughout the

following year aligns with Assistant Secretary Washburn’s federal interpretation at

the time the United States accepted retrocession. Two months after the

implementation of retrocession, Acting Assistant Secretary Lawrence Roberts

responded to a letter from Governor Inslee concerning criminal jurisdiction within

the Yakama Reservation. Br. of Amicus Curiae United States at 40. Consistent

with the Washburn letter, Acting Assistant Secretary Roberts describes

retrocession, without qualification, as “restoring Federal criminal jurisdiction.” Id.

He then reiterates the point by describing concurrent federal and state criminal

jurisdiction within the Yakama Reservation as in “conflict[] with the legal effects

of retrocession.” Id.

Five months later, then-Deputy Assistant Secretary Roberts issued a

guidance memorandum to the Bureau of Indian Affairs. This memorandum

reaffirms the impact of the Washburn Letter as reassuming full criminal

jurisdiction over crimes within the Yakama Reservation involving Indians. R. at


15

233-34. DOJ understood and accepted the intent expressed by DOI at the time

retrocession was implemented, as demonstrated by U.S. Attorney Michael

Ormsby’s April 18, 2019 email. R. at 229-31. The current DOJ now disagrees

with its own position on this matter expressed in 2015 and 2016.

This DOJ ignores the Washburn Letter’s plain language and the surrounding

context confirming Assistant Secretary Washburn’s intent by cherry-picking

statements out of context. This DOJ relies heavily on the Proclamation’s broad

statement that the State’s retrocession was only “in part . . .”, but assert improperly

that because the entire retrocession was partial, each element of the retrocession

must also be partial. Br. of Amicus Curiae United States at 23-24. Governor

Inslee appropriately described this retrocession as “in part” because he refused to

retrocede jurisdiction over off-reservation trust allotments, despite the Yakama

Nation’s request. R. at 217. The Yakama Nation also did not request state

retrocession of Public Law 280 jurisdiction concerning mental health, meaning the

State retained that element of its jurisdiction as well. R. at 211. The State’s

retention of certain aspects of its Public Law 280 jurisdiction is not dispositive of

whether the federal government reassumed full jurisdiction over crimes involving

Indians.

DOJ now ignores its own correspondence as well as correspondence from

the DOI corroborating Assistant Secretary Washburn’s intent and understanding.


16

It describes this correspondence as “superseded” and “issued after the relevant acts

occurred . . . .” Br. of Amicus Curiae United States at 34. The argument that the

contemporaneous views of agency officials were “superseded” is undermined by

the dearth of evidence from any federal official in 2015 or 2016 supporting the

Trump Administration’s position of the scope of retroceded jurisdiction. It was

mere days before the dispositive hearing in the Trial Court when the Trump

Administration purported to revoke prior guidance on the scope of retrocession

without any legal justification for its actions. R. at 65. This Administration’s

recent unlawful efforts to revoke the Obama Administration’s guidance documents

remain irrelevant to the evidentiary weight owed to those documents.

If the DOJ’s position in this case has never changed, as the Trump

Administration suggests now, why was any revocation of any DOJ guidance

necessary? The revocation did not change what was retroceded and remains

excellent proof that the Trump Administration originally understood retrocession

in the same manner as the Obama Administration and the Yakama Nation.

DOJ’s fixation with the timing of relevant statements to reject or disregard

federal guidance on Assistant Secretary Washburn’s acceptance of retrocession is

misguided. Br. of Amicus Curiae United States at 34. The April 18, 2016 Ormsby

Email, June 20, 2016 Roberts Letter, and November 30, 2016 Roberts Guidance

Memorandum were issued before or shortly after retrocession’s implementation on


17

April 19, 2016. The Trump Administration’s statements, by contrast, were issued

more than two years after the fact. R. at 65, 236-52. And the Trump

Administration can point to no pre-2018 statements from any federal official

agreeing with the position the Trump Administration has taken in this case.

Regardless, the correspondence issued by the team who decided and implemented

retrocession must possess significant weight in an analysis of the scope of that

retrocession and afforded deference over the subsequent administration’s unlawful

attempts to limit that scope.

D. The Yakama Nation Satisfied All Elements Necessary For Issuance Of A Permanent Injunction.

The Yakama Nation has satisfied all elements necessary for a permanent

injunction. To obtain a permanent or final injunction, a plaintiff must show: “(1)

actual success on the merits; (2) that it has suffered an irreparable injury; (3) that

remedies available at law are inadequate; (4) that the balance of hardships justify a

remedy in equity; and (5) that the public interest would not be disserved by a

permanent injunction.” Indep. Training & Apprenticeship Program v. Cal. Dep’t

of Indus. Rels., 730 F.3d 1024, 1032 (9th Cir. 2013). The Yakama Nation has

demonstrated success on the merits as briefed above and in the Yakama Nation’s

opening brief.


18

The Yakama Nation has and will continue to be irreparably harmed by

Defendants’ exercise of ultra vires criminal jurisdiction within the Yakama

Reservation. The Ninth Circuit recognizes that “[t]ribes are, foremost, sovereign

nations.” Am. Vantage Cos., Inc. v. Table Mt. Rancheria, 292 F.3d 1091, 1096

(9th. Cir. 2002), as amended on denial of reh’g, 2002 U.S. App. LEXIS 15127

(July 29, 2002). Exercise of jurisdiction in violation of a Native Nation’s

sovereignty is considered irreparable harm. EEOC v. Karuk Tribe Hous. Auth.,

260 F.3d 1071, 1077 (9th Cir. 2001); see also Kiowa Indian Tribe of Oklahoma v.

Hoover, 150 F.3d 1163, 1171-72 (10th Cir. 1998) (infringement of tribal

sovereignty constitutes irreparable injury); Winnebago Tribe v. Stovall, 216 F.

Supp. 2d 1226, 1233 (D. Kan. 2002); United States v. Michigan, 534 F. Supp. 668,

669 (W.D. Mich. 1982). Defendants’ actions here infringe upon the Yakama

Nation’s sovereignty. That infringement irreparably harms the Yakama Nation.

The remedies available by law to the Yakama Nation are inadequate. No

monetary award, even if applicable and available, could compensate the irreparable

harm the Yakama Nation currently suffers. Appellees will continue arresting and

prosecuting Indians for alleged crimes within the Yakama Reservation by virtue of

their opposition in this case. Permanent injunctive relief remains an adequate

remedy to prevent the continued arrest and prosecution of Indians by Defendants

within the Yakama Reservation.


19

The Tenth Circuit’s reasoning in Ute Indian Tribe of the Uintah & Ouray

Reservation v. Utah, 790 F.3d 1000 (10th Cir. 2015) (“Ute”), is instructive here.

Ute involved a state and its local governments’ attempts to displace native

authority on native lands and a Native Nation’s attempt to obtain a permanent

injunction. Id. at 1003. The Circuit Court explained that the exercise of state or

local criminal jurisdiction against a Native Nation’s citizens within reservation

boundaries left “no room to debate whether the defendant’s conduct ‘create[s] the

prospect of significant interference with [tribal] self government’ . . . sufficient to

constitute ‘irreparable injury.’” Id. at 1006 (quoting Prairie Band of Potawatomi

Indians v. Pierce, 253 F.3d 1234, 1250-51 (10th Cir. 2001)).

In his Opinion, then Hon. Neil Gorsuch recognized that “within Indian

country, generally only the federal government or an Indian tribe may prosecute

Indians for criminal offenses,” Id. at 1003, and that this “invasion of tribal

sovereignty can constitute irreparable injury.” Id. at 1005. The Circuit Court

explained that it remains a “paramount federal policy” to ensure “that Indians do

not suffer interference with their efforts to ‘develop . . . strong self-government.”

Id. at 1007. The Tenth Circuit honored native sovereignty and determined that

“the district court should have issued a preliminary injunction.” Id. at 1005.

The central issue in Ute remains indistinguishable from the matter before

this Court. Defendants’ ultra vires exercise of criminal jurisdiction over Indians


20

within the Yakama Reservation interferes directly with the Yakama Nation’s

“efforts to develop . . . strong self-government.” Id. at 1007. That interference

establishes a clear and irreparable harm to the Yakama Nation and Yakama

Members in the absence of injunctive relief.

The balance of hardships likewise tips in favor of a permanent injunction.

An injunction would do nothing more to Defendants than require collaborative

efforts with Yakama Nation law enforcement and the federal government,

something the Yakima County Sheriff’s Department already does. Allowing

Defendants to exercise jurisdiction they do not possess, on the other hand,

perpetuates an existential threat to the Yakama Nation’s sovereignty and its efforts

to develop a strong self-government. The ultimate consideration this Court follows

when balancing speculative hardships remains the “paramount federal policy of

ensuring that Indians do not suffer interference with their efforts to develop . . .

strong self-government.” Id. at 1007.

The public interest would not be disserved by a permanent injunction that

preserves the federal government’s jurisdiction within the Yakama Reservation.

Many of this country’s most reprehensible decisions were captured in federal

Indian policies since the Treaty of 1855’s ratification—including allotment,

termination, and Public Law 280’s enactment—which threatened unilateral

abrogation of the express rights the Yakama Nation reserved by Treaty. Art. II,


21

Treaty with the Yakamas, U.S. – Yakama Nation, June 9, 1855, 12 Stat. 951

[hereinafter Treaty of 1855]. One of these wrongs was partially corrected when

the federal government accepted Washington State’s retrocession of criminal

jurisdiction over Indians within the Yakama Reservation. Defendants’ attempt to

reverse that positive development interferes directly with the Yakama Nation’s

sovereign right to make its own laws and be ruled by them. See State of Ariz. ex

rel. Merrill v. Turtle, 413 F.2d 683, 685 (9th Cir. 1969) (citing Williams v. Lee,

358 U.S. 217, 220 (1959)).

A permanent injunction against Defendants will not decrease public safety

within the Yakama Reservation. Cooperative management by the Bureau of Indian

Affairs, the Yakama Nation, and the Yakima County Sheriff’s Office pursuant to

the original interpretation of Retrocession put forth by Assistant Secretary

Washburn, Deputy Assistant Secretary Roberts and United States Attorney

Ormsby has proved successful. See, e.g., R. at 91-97. This cooperative

management has also filled a gap in law enforcement created by Washington State

Patrol’s continued refusal to patrol the State’s own public rights of way – including

a major highway – within the Yakama Reservation following retrocession. R. at

94. Contrary to Defendants’ attempts to distort the underlying facts in this case,

Yakama Nation law enforcement was actively exercising its jurisdiction at a crime


22

scene when Defendants insisted on obtaining a state-issued search warrant over the

Yakama Nation officers’ objections. R. at 278-79.

A permanent injunction against Defendants will not create a jurisdictional

void within the Yakama Reservation. Yakama Nation officers and other local law

enforcement possess special law enforcement commissions issued by the United

States Bureau of Indian Affairs. R. at 92. These commissions allow officers to

actively support federal criminal jurisdiction by detaining suspects and gathering

evidence. Id. The Yakama Nation’s officers and local law enforcement stand

competent, available, and commissioned to the extent the federal government

needs assistance in carrying out its public safety responsibilities.

Defendants’ public policy arguments are similar to arguments advanced by

the defendants in Ute, who argued that “an injunction would impede their ability to

ensure safety on public rights-of-way.” Ute, 790 F.3d at 1007. The Circuit Court

explained that nothing in the requested injunction “would prevent the State and

County . . . from stopping motorists suspected of traffic offenses to verify their

tribal membership status . . . [or] from referring suspected offenses by Indians to

tribal law enforcement.” Id. The injunction considered in Ute simply prohibited

the local governments from prosecuting Indians for offenses in Indian Country,

“something they have no legal entitlement to do in the first place.” Id.


23

This conclusion proves true here. Defendants must be enjoined from

exercising jurisdiction that they do not possess so that the Yakama Nation and the

federal government can continue working collaboratively in furtherance of public

safety for all residents of the Yakama Reservation.

II. THE YAKAMA NATION POSSESSES STANDING SUFFICIENT TO CHALLENGE DEFENDANTS’ UNLAWFUL EXERCISE OF CRIMINAL JURISDICTION.

An injury must be “concrete, particularized, and actual and imminent” to

establish Article III standing. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

(2013). The injury must be “fairly traceable to the challenged action” and be

“redressable by a favorable ruling.” Id. In this manner Article III limits the

federal judicial power “to those disputes which confine federal courts to a role

consistent with a system of separated powers and which are traditionally thought

to be capable of resolution through the judicial process.” Flast v. Cohen, 392

U.S. 83, 97 (1968).

This Court should affirm the District Court’s conclusion that the Yakama

Nation possesses constitutional standing to challenge Defendants’ assertion and

exercise of criminal jurisdiction over crimes involving Indians within the

Yakama Reservation.


24

A. The Yakama Nation Suffers An Injury From Defendants’ Unlawful Exercise Of Criminal Jurisdiction That Can Be Cured By Declaratory And Injunctive Relief.

For constitutional standing, the Plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)

that is likely to be redressed by a favorable judicial decision. Spokeo Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016). The plaintiff bears the burden of

establishing these elements. Id. Here, standing exists because Defendants assert

and currently exercise criminal jurisdiction that violates the Yakama Nation’s

inherent sovereign and Treaty-reserved rights, and because on September 26,

2018, Defendants infringed on the Yakama Nation’s sovereignty by exercising

ultra vires criminal jurisdiction over Yakama Members within the Yakama

Reservation.

First, to establish injury in fact, the plaintiff must demonstrate “an invasion

of a legally protected interest” that is “concrete and particularized.” Id. at 1548.

The injury must be “actual or imminent” rather than “conjectural or

hypothetical.” Id. State infringement on a Native Nation’s sovereignty has been

found to constitute concrete injury sufficient to confer standing. Mashantucket

Pequot Tribe v. Town of Ledyard, 722 F.3d 457, 463 (2nd Cir. 2013); see also,

Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425

U.S. 463, 469 n.7 (1976); Miccosukee Tribe of Indians v. Florida State Ath.


25

Comm’n, 226 F.3d 1226, 1231 (11th Cir. 2000). To be particularized, the injury

“must affect the plaintiff in a personal and individual way.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 n.1 (1992). Beyond those foundational

requirements, a plaintiff seeking injunctive relief must demonstrate a significant

likelihood of future injury to establish standing. Mont. Shooting Sports Ass’n v.

Holder, 727 F.3d 975, 980 (9th Cir. 2013).

The Yakama Nation’s injury is a violation of its sovereign legally protected

rights. In 1855, the Yakama Nation ceded certain rights to more than 10,000,000

acres of land—roughly 1/3 of the State of Washington—for the reserved right of

self-government. Treaty of 1855. The current and future infringement of these

inherent sovereign and Treaty-reserved rights by foreign jurisdictions deprives

the Yakama Nation of the benefit of its bargain with the United States in the

Treaty of 1855, thereby threatening the Yakama Nation’s political integrity

reserved thereunder.

Second, an injury is considered “fairly traceable” to the Defendants’ actions

where the injury cannot be caused by “the independent action of some third party

not before the court.” See Allen v. Wright, 468 U.S. 737, 757 (1984) (quoting

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976)). Here, the Yakama

Nation’s injury would not exist but for Defendants’ assertion of jurisdiction over


26

crimes involving Indians within the Yakama Reservation. R. at 130 (asserting

jurisdiction under State v. Zack, 2 Wn. App. 2d 667).

Finally, a favorable decision by the Court would redress the Yakama

Nation’s injury in satisfaction of the third standing element. Declaring that

Defendants’ exercise of jurisdiction over crimes involving Indians within the

Yakama Reservation is unlawful, and enjoining them from the same, prevents

further injury to the Yakama Nation’s rights. This Court should affirm the

District Court’s conclusion that the Yakama Nation meets all requirements for

standing pursuant to Article III.

B. Civil Rights Cases Where Non-governmental Plaintiffs Challenge Judicial and Police Conduct Are Distinguishable From This Case.

Defendants rely primarily on three cases to assert that the Yakama Nation

does not have constitutional standing: O’Shea v. Littleton, 414 U.S. 488 (1974);

Rizzo v. Goode, 423 U.S. 362 (1976); and Los Angeles v. Lyons, 461 U.S. 95

(1983).

In O’Shea, a group of private citizens alleged that members of the county

judicial system participated in systematic racial discrimination. 414 U.S. at 490.

Plaintiffs only alleged past injury without any continuing and present adverse

effects. Id. at 496. Future injury would only occur if the plaintiffs failed to abide

by the law and faced prosecution again. Id. at 497.


27

Similarly, in Rizzo, private plaintiffs alleged that city residents collectively

endured mistreatment by police. 423 U.S. at 366-367. There was a weak causal

connection between the plaintiffs’ and the defendants’ conduct, as any ongoing or

future injuries would likely be against members of the sizeable class that

plaintiffs represented, rather than to the individual plaintiffs themselves. Id. at

371.

Finally, in Lyons, a private citizen alleged that police had unlawfully used a

chokehold against him. 461 U.S. at 97-98. As to future injury, the plaintiff

merely feared that police would chokehold him a second time. Id. at 98. Again,

the plaintiff would likely need to commit another crime before falling victim to

the injurious conduct in the future. Id. at 108.

These cases all involve private individuals alleging that a state violated their

constitutional or civil rights by excessive force, discrimination, or other

misconduct in the exercise of their otherwise lawful jurisdiction. The Yakama

Nation’s challenge, on the other hand, is a suit by a sovereign Native Nation

against two local governments. The Yakama Nation is not arguing that

Defendants have abused their authority. Rather, Defendants have exercised

authority they do not have. The injury at issue here will certainly continue

regardless of how the Yakama Nation acts, as Defendants maintain they enjoy

jurisdiction within the Yakama Reservation that they no longer possess following


28

retrocession. The Yakama Nation has constitutional standing to assert and

defend its inherent sovereign and Treaty-reserved rights.

CONCLUSION

For the reasons above stated, the Yakama Nation respectfully requests that

the Court reverse the District Court’s Order and hold that Defendants lack

jurisdiction over crimes involving Indians within the Yakama Reservation

following the United States’ reassumption of Public Law 280 jurisdiction.

Dated: October 11, 2019 s/Ethan Jones Ethan Jones, WSBA No. 46911 Marcus Shirzad, WSBA No. 50217 Shona Voelckers, WSBA No. 50068 YAKAMA NATION OFFICE OF LEGAL

COUNSEL P.O. Box 151, 401 Fort Road Toppenish, WA 98948 Telephone: (509) 865-7268 Facsimile: (509) 865-4713 [email protected] [email protected] s/Joe Sexton Joe Sexton, WSBA No. 38063 Anthony Broadman, WSBA No. 39508 Galanda Broadman PLLC 8606 35th Ave NE, Suite L1 P.O. Box 15146 Seattle, WA 98115


29

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 5,953 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionately spaced typeface using [insert name

and version of word processing program] Times New Roman 14-point font.

Dated: October 11, 2019 s/Ethan Jones Ethan Jones, WSBA No. 46911 Marcus Shirzad, WSBA No. 50217 Shona Voelckers, WSBA No. 50068 YAKAMA NATION OFFICE OF LEGAL

COUNSEL P.O. Box 151, 401 Fort Road Toppenish, WA 98948 Telephone: (509) 865-7268 Facsimile: (509) 865-4713 [email protected] [email protected] s/Joe Sexton Joe Sexton, WSBA No. 38063 Anthony Broadman, WSBA No. 39508 Galanda Broadman PLLC 8606 35th Ave NE, Suite L1 P.O. Box 15146 Seattle, WA 98115


30

CERTIFICATE OF SERVICE

I hereby certify that on October 11, 2019, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

/s/ Kirstin E. Largent


in the united states court of appealsdocket no. 19-35199 in the united states court of appeals for...

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