SCOTUS: Washington State vs Yakama Nation

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SUMMARY OF ARGUMENT

The Washington Supreme Court correctly recognized that Article III, paragraph 1 of the Yakama Treaty secures for Cougar Den—a corporation licensed and regulated under the laws of the Yakama Nation- the right to import fuel into the Yakama Reservation upon public highways free from any state-imposed preconditions or encumbrance.

The court’s holding is supported by the Supremacy Clause of the United States Constitution, which provides that treaties made under the United States’ authority are “the supreme Law of the Land and the Judges in every State shall be bound thereby.” U.S. CONST. art. VI, § 2.

Accordingly, the State’s efforts to tax Cougar Den’s ‘importation’ of goods over public highways must yield to our Treaty reserved rights. The State’s arguments for ignoring the Washington Supreme Court’s interpretation of a state statute principally rely on three cases, Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005), and Chickasaw Nation v. United States, 534 U.S. 84 (2001). 

All are rooted in the doctrine of Christian discovery rather than the Yakama Treaty, and should not be applied here. 

The ‘doctrine of Christian discovery’ is the legal fiction that Christian Europeans immediately and automatically acquired legally recognized property rights in our lands upon reaching the Americas, thereby diminishing our sovereignty. Courts have used the doctrine to build a false legal framework to attack Native sovereignty, which the State attempts to deploy here through the aforementioned cases.

The Court should expressly repudiate the doctrine and instead rely on the Yakama Treaty as the foundation for its analysis in this dispute.

 

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United Nations Preliminary Study on the Impact of the Doctrine of Discovery

This preliminary study establishes that the Doctrine of Discovery has been institutionalized in law and policy, on national and international levels, and lies at the root of the violations of indigenous peoples’ human rights, both individual and collective. This has resulted in State claims to and the mass appropriation of the lands, territories and resources of indigenous peoples. Both the Doctrine of Discovery and a holistic structure that we term the Framework of Dominance have resulted in centuries of virtually unlimited resource extraction from the traditional territories of indigenous peoples. This, in turn, has resulted in the dispossession and impoverishment of indigenous peoples, and the host of problems that they face today on a daily basis.

The Doctrine of Discovery and Immigration Legislation

UNPFIP Network

Statement of Global Indigenous Peoples Caucus

UN Permanent Forum for Indigenous Peoples

11th Session May 7-18, 2012

United Nations Headquarters

New York, NY

It must be recognized that in fundamental terms, the doctrine of discovery challenges the just claims of Indigenous Peoples, in particular with respect to processes of decolonization and the implementation of Article 3 of the Declaration respecting self-determination.

The discussion of the doctrine of discovery must include reference to domestic legislation of member states, such as immigration legislation, as well as challenge the establishment of state borders, which do not reflect the traditional lands and territories of Indigenous peoples, that have been established further to the doctrine of discovery.  We fundamentally disagree with the current practices of states to criminalize the movements of Indigenous Peoples across borders.

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