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Cree v. Flores



This case involved an appeal from two consolidated cases. Defendants appealed the district court’s grant of summary judgment in favor of the Yakama Indian Nation and individual Yakama Indians. The district court held that the treaty with the Yakamas exempted them from obtaining a Washington State truck license and from paying overweight permit fees.[1] The treaty clause at issue secures the Yakamas “the right, in common with citizens of the United States, to travel upon all public highways.”[2]

Washington law requires registration and licensing of trucks according to gross weight,[3] charges higher fees for greater weights,[4] and “requires log tolerance permits for certain overweight trucks along with payment of a fee.”[5] Individual Indians have never been exempt from these fees. Violations of the requirements result in traffic infractions.

Plaintiff-intervenor Yakama Indian Nation sells timber from lands held in trust by the United States for the Tribe’s and its members’ benefit. Individual plaintiffs either own logging operations or operate logging trucks that haul logs from timber sales within the reservation to off-reservation mills. Appellants are state officers authorized to issue traffic citations for violations of Washington State vehicle registration, licensing, and permitting statutes. Plaintiffs brought suit after the officers issued citations to Tiin-Ma Logging and Wheeler Logging drivers because their owners had neither paid tonnage licensing fees nor secured log tolerance permits for their trucks. The officers then began to cite drivers for failing to have proper registration. They continued to do so until the district court entered preliminary injunctions prohibiting the citations.

The issue on appeal was whether the state could impose licensing and permitting fees on logging trucks owned by the Yakama Nation or its members. The Yakamas claimed that the appellants had violated their travel rights under the treaty. The Ninth Circuit agreed with the Yakamas and affirmed the district court’s grant of summary judgment in their favor.

To determine the meaning of the “in common with” language as applied to the public highways right, the district court underwent an extensive evidentiary hearing. The district court explained that the treaty defined basic rights secured to the Yakamas that represented their way of life. It noted that travel was essential to the Yakamas’ way of life, allowing trade, subsistence, and maintenance of religious and cultural practices. The court also held that there was no mention of any sort of restriction on hunting, fishing, or travel during treaty negotiations other than the condition that the government be allowed to construct wagon roads and a railroad through the reservation, Additionally, the term “in common with” was never explained to the Indians; the court noted that the Yakamas understood the term to mean that there was no restriction placed on their usual practice of travel or their right to travel to market, and rejected the appellants’ argument that “in common with” placed the Indians on an equal footing with whites.

The Ninth Circuit reviewed de novo the interpretation and application of treaty language and reviewed the underlying factual findings for clear error. It reviewed for an abuse of discretion the district court’s ruling that non-Indians may exercise tribal treaty rights. The Ninth Circuit stated that United States Supreme Court precedent requires interpreting Indian treaties as the Indians would have understood them.[6] It held that the language of the treaty demonstrated the promises made by the United States to guarantee the Yakamas the right of free use of the public highways. This right includes the right to use future roads to carry out the Tribe’s customs. The court disagreed with the appellants’ argument that a travel right was inconsistent with the United States’s intent to assimilate the tribe into white culture. The court held that although the treaty had elements of assimilation, the United States had also wanted to satisfy the Yakamas, and that the appellants had not shown how the existence of assimilation elements in the treaty proved that the public highways clause could not serve the function of preserving Yakama customs.

Regarding the “in common with” language of the treaty, the Ninth Circuit approved of the district court’s deference to the manner in which the Indians would have naturally understood the terms of the treaty, and of the district court’s resolution of any doubts and ambiguities in the Indians’ favor. It also held that the district court’s interpretation was consistent with the United States Supreme Court’s interpretation of similar language in the context of treaty fishing rights. Moreover, the court also explained that there was no evidence that any Yakamas had expected to pay tolls, and approved of the district court’s finding that the Yakamas were unlikely to have understood the government’s policy towards Indians at the time the treaty was signed, therefore making this policy irrelevant to determining the extent of the travel right. It also noted that inclusion of the travel clause in only the Yakama and Nez Perce treaties demonstrated the importance of travel to the Yakamas.

The appellants claimed that the conduct of the parties to the Yakama treaty demonstrated their understanding that the Yakamas would follow settlers’ laws when they used off-reservation public highways. The Ninth Circuit held that posttreaty activity in this case was inconclusive, because the Indians had begun to challenge hauling and overweight fees in a timely manner soon after they had begun to haul tribal timber off-reservation.

The Ninth Circuit approved of the use of a tribal elder’s expert testimony on the issue of the Tribe’s understanding of the treaty language. It also held that the trial court had not abused its discretion when it allowed nontribal member agents of the Yakama Nation to exercise rights under the treaty. Because appellants had not objected to the district court’s ruling on tribal regulatory sovereignty, the Ninth Circuit held that they had no basis on which to object to the way the Yakama Nation chose to exercise its travel rights.

[1] Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1260 (E.D. Wash. 1997), aff’d, Cree v. Flores, 157 F.3d 762 (9th Cir. 1998).

[2] Treaty with the Yakamas, June 9, 1855, U.S.-Yakama Nation of Indians, art. III, 12 Stat. 951, 953.

[3] Wash. Rev. Code §§ 46.16.070, -16.135, -44.095 (1998).

[4] Id.

[5] Cree v. Flores, 157 F.3d at 765 (citing Wash. Rev. Code §§ 46.44.047, -44.095 (1998)).

[6] See generally Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); Tulee v. Washington, 315 U.S. 681 (1942), United States v. Winans, 198 U.S. 371 (1905); Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979); Jones v. Meehan, 175 U.S. 1 (1899).

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