Yakima, Klickitat counties concerned about Yakama Nation retrocession petition

By Kate Prengaman, Yakima Herald-Republic

As the federal government moves toward approving the Yakama Nation’s retrocession petition — which returns civil and criminal jurisdiction over tribal members on the reservation from the state back to the tribe — officials in Yakima and Klickitat counties are concerned that some questions remain unanswered.

In Klickitat County, commissioners want to know how retrocession would affect a long-standing boundary dispute, and officials in Yakima County want to ensure there’s a formal plan detailing how tribal and local law enforcement agencies will work together once the retrocession is approved.

The concerns arose, in part, because retrocession is rare. The Yakama Nation was the first tribe to propose it since state lawmakers approved the process in 2011 and Gov. Jay Inslee signed the retrocession proclamation in January 2014.

The Yakama Nation’s leaders and Inslee praised it as a strong step toward greater sovereignty for the tribe to regain authority over its people.

It’s known as retrocession because it returns certain criminal and civil authorities to the tribal government that the state took over in 1963 under a federal law known as Public Law 280.

Once approved by the Secretary of the Interior, tribal police and tribal courts would have jurisdiction over issues involving tribal members on the reservation while the state would retain its authority over all criminal cases involving nontribal members.

It sounds straightforward, but the details get complicated quickly.

Since the 1.2 million-acre reservation is actually a patchwork of tribal trust land, incorporated towns and lands within the reservation that are owned by nontribal members, it’s likely to create logistical challenges for law enforcement.

Yakima County Commissioner Kevin Bouchey said the county, along with the cities of Toppenish and Wapato, are worried that the petition might be approved before law enforcement protocols are agreed upon.

“We’re not opposed to the petition, we just want to figure out the details before the Secretary of the Interior signs off on it, rather than after the fact,” Bouchey said. “It comes down to public safety for tribal members and nontribal members on the reservation and we need an established working relationship to do that.”

Klickitat County Commissioner David Sauter echoed Bouchey’s concerns. Development of this type of formal agreement between law enforcement agencies is encouraged in the state’s retrocession law, but is not required.

Bouchey said the county has drafted a letter expressing its concerns to the Bureau of Indian Affairs (BIA), which it plans to send this week.

A spokeswoman for the federal agency confirmed in an email that the petition is under review by the BIA with input from the Department of Justice, but did not offer any details. Request for comment from the Yakama Nation’s Tribal Council was not returned.

Klickitat County leaders sent their letter to BIA Secretary Ken Washburn in April to request clarification on how the governor’s proclamation defines the exterior boundaries of the Yakama Reservation. Sauter recently traveled to Washington, D.C., to discuss the issue with the agency and Washington’s elected officials as well.

The county’s concern centers on a disputed 95,000 acres of land to the southeast of Mount Adams that is known as “Tract D.” It includes Glenwood, an unincorporated community of about 700.

The Yakama Nation has long claimed the land as within its boundaries, including in its published maps. But Klickitat County officials say the land has clearly been in the county’s jurisdiction under state and federal law for more than 100 years.

The concern for Glenwood residents is that the retrocession proclamation says it applies to everything within the reservation’s boundaries, and the county wants reassurance that the state and federal interpretation of those reservation boundaries doesn’t change, said Klickitat County Prosecuting Attorney David Quesnel.

“There’s been issues going on for years, like the disputes over liquor licenses a few years ago, because the tribe has taken the position that Tract D is within its exterior boundaries,” Quesnel said. “We want to make it abundantly clear that Tract D would not be included.”

Glenwood-area residents told the Goldendale Sentinel that they didn’t want to have to go to the Yakama Nation’s Tribal Court to get divorced or to deal with traffic tickets or criminal charges.

But those concerns appear unfounded because the retrocession proclamation only returns jurisdiction over tribal members to the tribe, it doesn’t give the tribe authority over nontribal members, said Yakima County civil prosecutor Terry Austin.

The exceptions would be for civil matters such as domestic relations or juvenile delinquency for families in which one parent is a tribal member. Then, either the tribal court or state courts could decide the case.

As far as the boundary dispute, a spokeswoman for the governor’s office said the retrocession proclamation deals only with jurisdiction and does not in any way change existing reservation boundaries. In fact, the governor does not have the authority to change reservation boundaries, which is a federal issue.

In a 2000 federal court case over the Yakama Nation’s attempts to ban alcohol sales on the reservation, the state argued that “Tract D was not historically considered to be within the surveyed boundaries of the Yakama Reservation” and the state does not recognize it as being within the exterior boundaries.

The court later threw out the tribe’s attempts to ban alcohol sales in the reservation’s incorporated towns where a majority of the nontribal residents live, limiting the tribe’s authority to regulate nontribal members.

The retrocession petition also keeps existing limits on the tribe’s authority over reservation residents who are not tribal members, but expands its ability to self-govern. Once the details get worked out, county officials say they support that.

“They have a right to self-regulation and we’re not trying to interfere with that; we just want clarification,” Quesnel said.

A passion for law

Tulalip tribal member working towards Juris Doctorate

By Brandi N. Montreuil, Tulalip News

TULALIP – For Michelle Sheldon, law has always been visibly present in her life. As a member of a tribe that borders the I-5 corridor in Snohomish County issues regarding jurisdiction, treaty fishing rights, and Indian gaming helped shape the environment she lives in. When it came time to choose an area of study, law was a natural choice.

Encouraged by her parents and with funding help from her Tribe’s higher education department, Sheldon enrolled in Seattle University School of Law’s evening program as a part-time student to earn her Juris Doctorate, which she will receive in December 2016. She plans to use her education in law to aid in the continued development of her Tribe.

“I have always wanted to learn more about the laws that govern the Tulalip Tribes. Because both my undergraduate and graduate studies were in criminal justice, it seemed like a natural fit to pursue a law education and to see how I can help benefit the Tribe one day,” said Sheldon, who currently works in the her Tribe’s legal department and previously was a court clerk at the Tulalip Tribes Tribal Court.

As a legal manager with the Tulalip Tribes, Sheldon sees first-hand how law is used to make contracts, enforce treaty rights, enact justice in criminal proceedings, and resolve housing issues. “I am exposed to a variety of different areas of legal work on a regular basis,” says Sheldon. “As I begin to advance in my legal studies, I am starting to understand how the law factors into each of these practice areas, which in turn, provides me with exposure and opportunities that I would not otherwise have if I worked elsewhere. I am very fortunate to be able to work in this department and apply what I learn from school to my everyday profession. It is truly a rewarding experience and opportunity that I am grateful to have.”

Discovering a passion for law while in her graduate studies, Sheldon says it is important for tribal members to know the laws that govern their tribe. “By having our tribal laws available online, for example, this provides a great resource and opportunity for the membership to read these laws and to perhaps to see what type of legal remedies are available to them.”

A law issue she is enthusiastic about is the Indian Child Welfare Act, which was recently spotlighted in the Supreme Court in Adoptive Couple v. Baby Girl in 2013, commonly known as the ‘Baby Veronica Case.’

“I have always been interested in the area of Indian child welfare as well as issues pertaining to tribal sovereignty, because of what they entail and what they promote, which are our rights to tribal children and the rights to maintaining and protecting our tribal sovereignty,” explained Sheldon.

Tulalip tribal member Michelle SheldonPhoto/ Brandi N. Montreuil, Tulalip News
Tulalip tribal member Michelle Sheldon
Photo/ Brandi N. Montreuil, Tulalip News

Sheldon explains that because lands on reservations, or Indian country, fall under tribal jurisdiction, these laws can differ from laws outside of Indian country.

“I think what is most interesting about laws that govern Indian Country is that they are created based on their community and enforced to meet the traditions and needs of the community,” said Sheldon. “A good example is our Tulalip Court Elder’s Panel, who offer first-time, non-violent offenders the opportunity to have their charges dismissed in court once they have successfully completed the one-year requirement of this panel. This panel is a healing panel of sorts, by often requiring many of its participants to write letters of apology to those they have wronged and to sometimes engage in substance abuse treatment for example. Most importantly, these individuals are required to be accountable to our tribal elders, who have taken the time to voluntarily participate on this panel. I think this is an excellent example of how Indian country can differ from our non-Indian country counterparts.”

Despite juggling full-time employment in a busy legal department and her part-time studies, Sheldon says she is determined to finish school and credits her biggest motivators, her parents, in helping her continue.

“They provided me with the inspiration to pursue my goals by always encouraging me that I could do it, no matter how hard or challenging it was. Once I decided to pursue a degree in law, they offered me endless amounts of encouragement and support, which in turn gave me the confidence to pursue my goals. I will always be thankful to them for this,” said Sheldon, who also credits the educational opportunities provided by her Tribe as a factor in her ability to obtain her Juris.

“I will always be thankful to the Tribe and to the Higher Education department for always looking out for me and for making sure that I have everything that I need to have the most beneficial educational experience as a student, so that I can continue to pursue my educational goals,” Sheldon said.

Sheldon advises anyone embarking on their own higher education goals to talk with the admission office at the school they are interested in, as they can help you prepare for critical documents you will need while applying.

“Another opportunity that I think would be beneficial for any tribal members who are thinking about attending law school is to ask your school of choice to visit an actual class session. It is also a great way to interact with the law professors and other law school students who are always willing to share their experiences with you and to share great tips on what to expect once you are admitted to the school.”


Brandi N. Montreuil: 360-913-5402; bmontreuil@tulalipnews.com

Legal Marijuana Raises Issues for Indian Tribes

Washington and Colorado each has their own set of pot problems

By Katy Steinmetz / San Francisco @katysteinmetz Feb. 06, 2014



Washington’s Yakama tribe lives on a one million-acre reservation in the southern part of the state, a relatively small patch left after nearly 12 million acres was ceded to the U.S. government by the nation in 1855. As state officials are racing to build one of the world’s first legal marijuana markets, tribe officials are making it clear that their reservation wants no part of it—and they don’t want anyone else growing or selling cannabis on their ceded land either, to which they maintain certain rights. But it remains unclear whether they have the legal authority to make a demand that affects nearly a third of the land area in the state.

The laws that govern American Indian reservations have long been confusing. Many tribes are subject to only their own laws and federal law, while certain reservations are under state jurisdiction. Now adding to the confusion in Colorado and Washington is the uncertainty about how those states can legally regulate a substance still considered illegal by the federal government. And while many Yakama are anxious to keep the marijuana market far away—fueled by concern about substance abuse—other advocates for American Indians are mad that tribes can’t enjoy the new freedoms that other state residents have.

People in Colorado and Washington who don’t live on reservations “are moving forward with this massive experiment,” says Troy Eid, chairman of the Indian Law and Order Commission, a national advisory body focused on criminal justice in Indian territory. “And, once again, these tribes are getting screwed.”

AP Photo/Yakima Herald-Republic, Gordon KingYoung men wait to take part in an annual pow wow and rodeo in Toppenish, Wash. The boys are members of the Coleville and Yakama tribes.
AP Photo/Yakima Herald-Republic, Gordon King
Young men wait to take part in an annual pow wow and rodeo in Toppenish, Wash. The boys are members of the Coleville and Yakama tribes.

The Washington State Liquor Control Board is tasked with shaping the new market in that state. Right now, they’re sifting through more than 7,000 business license applications from residents who want to farm marijuana or run pot shops, and they plan to start issuing those licenses in March. This is where leaders from the Yakama tribe have addressed “several hundreds” of letters, each “pro-objecting,” as their attorney George Colby puts it, to individual applications made from areas the tribe occupies or once did. “Citizens of the state of Washington don’t get to vote on what happens” in those areas, he says. “The federal government wasn’t supposed to let alcohol come on the Yakama reservation, and thousands of people have died. We’re not going to let that happen again.”

There is little question about tribes in Washington being able to prohibit marijuana use among their own people on their own land (though there is some question about “tribes’ ability to regulate non-member conduct on the reservation,” the attorney general’s office says). The big unknown is how much authority they have over sprawling ceded lands, acres that were essentially handed up to the federal government more than 150 years ago with the promise that tribes would retain certain rights to those lands in perpetuity. In the Yakama’s case, members still have the exclusive right to hunt, fish and gather food on those 12 million acres.

Eid, an expert in tribal law appointed to his position by the president and Congress, says that while it’s not “absolutely clear,” he believes the Yakama do have the ability to object to marijuana being grown or sold on ceded lands. Meanwhile, the Washington state liquor board says they’re still planning to issuing licenses to businesses in those areas. “Objections are made all the time to licenses,” says spokesman Brian Smith. “You want to make sure you’re operating within the law as you know it, and that’s what we’ll be doing here.”

Neither side knows for sure, and that is a recipe for the conflict to end up in court, which might in turn force the question of how the discrepancy between state and federal law is going to be remedied when it comes to marijuana. The Washington attorney general’s office tells TIME that they will defend the liquor board if they’re sued, but that “the Liquor Control Board is still in the process of issuing licenses so it would be premature to speculate on the issue of how a court might rule on the issue of licenses on ceded lands.” Colby says that they will request the federal government to intervene if their ongoing pre-objections are not heard.

Other tribes in the state have yet to weigh in but Eid says that they are likely to stand with the Yakama, if only to make sure their rights to their own ceded lands remain as robust as possible. He also says that it would be ideal if everyone sat down in a room together and hashed out the issue. “They can work out what the scope of marijuana use and cultivation and distribution and so on could be,” he says. “They ought to be able to come to a voluntary agreement that would enable them to avoid any issues involving litigation.”

When Eid is not working on the commission, he acts as counsel for the Ute Mountain Ute tribe, one of two in Colorado. Unlike the Yakama reservation, where state law enforcement has some authority, reservations in the Rocky Mountain State are bound solely by federal and tribal law. That means that while reservation-dwellers in Colorado were allowed to vote in favor of Amendment 64, the proposal that legalized recreational marijuana, it remains illegal to grow, sell or smoke on their reservations as it ever was. (La Plata County, one of two with large American Indian populations, voted to approve the measure by 62% to 38%.)

Some of the American Indians in Colorado view their current situation as a missed business opportunity. “Capital is flowing in here from all over the world,” Eid says. “The tribes are going to be left behind, because there’s been no change in state law that applies to them … These are some of the poorest areas in the country. They could be involved in this business as well, but instead they’re being prohibited from being part of what’s happening.”

One way or another, the federal government may have to weigh in on the issue, whether it’s Congress eventually giving tribes the authority to decide whether they want to legalize marijuana or a federal judge ruling on the status of ceded lands. “This is one of so many of the issues that we are pushing through,” says Smith. “We’re sort of the pioneers here. But we continue onward, into some unknown territory.”