Richard A. Heath
Senior Assistant Attorney General
Jerry A. Ackerman
Assistant Attorney General
General Legal Division
1125 Washington Street SE
P.O. Box 40100
Olympia, WA 98504-0100
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
STATE OF WASHINGTON, ex rel CHRISTINE O. GREGOIRE, Attorney General, and as Parens Patriae,
Plaintiff,
v.
JONATHAN WHITEFOOT, Personally and as Acting Police Commissioner of the Yakama Nation Police Department;
RORY FLINTKNIFE, Personally and as Chief Judge of the Yakama Tribal Court; and
LONNIE SELAM, SR., Personally and as Chair of the Yakama Tribal Council, Confederated Tribes and Bands of the Yakama Indian Nation,
Defendants. NO.
STATE OF WASHINGTON'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
COMES NOW the State of Washington, by and through its Attorney General, CHRISTINE O. GREGOIRE, and alleges as follows:
I. NATURE OF THE CASE
1. This is an action for a declaratory judgment and an injunction to prevent the named Yakama tribal officers and persons under their direction from seeking to enforce tribal liquor Resolutions that are beyond the legal authority of the Confederated Tribes and Bands of the Yakama Indian Nation (Yakama Tribes) to apply to non-members or to lands owned in fee by non-members of the Yakama Tribes. Plaintiff seeks a declaratory judgment that the Yakama Tribes’ liquor Resolutions do not apply to Washington citizens who are not members of the Yakama Tribes, or to lands owned in fee by non-members, and that such persons and property are not subject to Defendants' criminal, civil, regulatory or adjudicatory authority with regard to the Resolutions. Plaintiff also seeks an injunction permanently restraining Defendants, alone, in concert with one another, or acting through others under their control or authority, from taking any action to assert or enforce the tribal Resolutions against Plaintiff, its citizens who are not members of the Yakama Tribes, or on any land owned in fee by non-tribal members.
II. JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction over this controversy under 28 U.S.C. § 1331 because this matter presents a question of federal law. This case arises under the Constitution of the United States, various federal treaties, laws and statutes, including but not limited to the Treaty with the Yakamas, 1855, 12 Stat. 951; the General Allotment Act, 25 U.S.C. §331, et seq.; 25 Stat. 676; 33 Stat. 595; Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162; 25 U.S.C. §§ 1321-1326; 28 U.S.C. § 1360) (1953); 18 U.S.C. §§ 1154, 1156, and 1161.
3. Declaratory and other relief is sought pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Preliminary and permanent injunctive relief is sought pursuant to Fed. R. Civ. P. 65.
4. All parties are residents of the State of Washington, and all actions relevant hereto have occurred in the State of Washington, in Yakima and Klickitat counties. Venue is therefore properly laid in accordance with 28 U.S.C. § 1391(b).
III. PARTIES
5. Plaintiff State of Washington (State) is a State of the United States of America admitted into the Union by Act of February 22, 1889, 25 Stat. 676. The State acts in this instance through its duly elected Attorney General, CHRISTINE O. GREGOIRE, under the authority provided by the Constitution of the State of Washington, RCW 43.10.030, RCW 4.04.010 and the common law, on behalf of itself and its citizens parens patriae.
6. Defendant JONATHAN WHITEFOOT, is Acting Police Commissioner of the Yakama Indian Nation Police Department, the primary law enforcement agency of the Yakama Tribes, and is responsible for taking or directing the actions necessary to enforce the Yakama Tribes’ liquor Resolutions.
7. Defendant RORY FLINTKNIFE, is the Chief Judge of the Yakama Tribal Court of the Yakama Indian Nation, and is responsible for issuance or overseeing the issuance of court orders and warrants used to effectuate Yakama tribal resolutions.
8. Defendant LONNIE SELAM, SR., is Chair of the Yakama Tribal Council, the governing body of the Confederated Tribes and Bands of the Yakama Indian Nation, a federally recognized Indian tribe located in the State of Washington. Defendant SELAM, SR. acts as the chief executive of the Yakama Tribal Council, which is empowered by Tribal Resolution to conduct the executive and legislative affairs of the Yakama Tribe, and as such is responsible for controlling and directing the tribal governmental entities engaged in the unlawful enforcement of the Yakama Tribes liquor Resolutions.
IV. SUMMARY OF FACTS
9. Article I, § 8, of the United States Constitution gives Congress the power to regulate commerce with foreign Nations, and among the several States, and with Indian Tribes. Pursuant to that authority the United States entered into a Treaty with the Confederated Tribes and Bands of the Yakima Indian Nation, 12 Stat. 951. The Treaty does not provide the Yakama Tribes with regulatory or taxing power over non-tribal members or over lands held in fee by non-tribal members.
10. In 1953, Congress enacted Public Law 280 permitting the states to assume jurisdiction over Indian country. By enacting the 1963 version of RCW 37.12.010, Washington assumed state jurisdiction over all Indian country with respect to the eight categories of law enumerated in RCW 37.12.010, and full civil and criminal jurisdiction over all fee lands within Indian reservations. Since 1963, the State of Washington and its subdivisions have provided complete government regulation of the lands in question.
11. The Yakama Reservation is located in the southeastern part of the State of Washington and consists of approximately one million three hundred thousand acres of land, 80% of which is held in trust by the United States. The remaining 20% is owned in fee by non-Tribal and Tribal owners. The Reservation is divided into two distinct areas, one designated as an area closed to all non-Tribal members, except those who are permitted access by the Yakama Tribes. The closed area consists of approximately two-thirds of the Reservation and is located in its western portion. The vast majority of the land in the closed area of the Reservation is held in trust by the United States for the Yakama Tribes or for individual Tribal members, and most of the people residing in that area are members of the Yakama Tribes. The remaining portion of the Reservation is in the area designated as the open area of the Reservation. Approximately one-half of the open area is fee land. Most of the fee land is concentrated in the northeastern portion of the Reservation near the Yakima River and within the three incorporated towns of Toppenish, Wapato, and Harrah. The remaining fee land is mostly scattered throughout the open area in a checkerboard fashion. Toppenish is the largest of the towns with a population of approximately 8,000 people. Of the approximately 25,000 people who live within the exterior boundaries of the Reservation, over 20,000 are non-tribal members. In the three towns, where over half the non-Tribal population resides, tribal members are substantially outnumbered by non-tribal members occupying fee land. The vast majority of the non-Tribal members live in the open area of the Reservation. The non-Tribal members have no voice in the governance or policy decisions of the Yakama Tribes, are not permitted to serve on juries in Tribal court or attend meetings of the Tribal Council, and receive little, if any, services from the Yakama Tribes.
12. On or about November 4, 1999, the Yakama Tribal Council adopted Resolution T-022-00, citing it’s asserted reliance upon the United States’ June 9, 1855, treaty with the tribe (Treaty with the Yakima, 1855, 12 Stat. 951) as authority for the measure. The Resolution imposes a substantial tribal tax on all alcohol products brought within the exterior boundaries of the Yakama Indian Reservation for distribution and resale. In addition, the Resolution requires any person or entity that brings alcohol products within the reservation boundaries to obtain a tribal license and pay a yearly license fee of $5,000.00. Failure to comply with the Resolution subjects a transporter, distributor and/or reseller to seizure and forfeiture of the products and any conveyances used to transport the products, as well as civil penalties, and, where jurisdictionally permissible, criminal penalties. Permanent exclusion from all property within the exterior boundaries of the reservation is also specified as a permissible penalty for failing to comply with the requirements of the Resolution. In adopting Resolution T-022-00, the Yakama Tribes did not comply with the provisions of 18 U.S.C. Sections 1154, 1156 and 1161, which govern the regulation of alcohol on Indian reservations. Resolution T-022-00 has never been submitted to the Secretary of the Interior for approval, as required, and it has not been certified by the Secretary and published in the Federal Register.
13. The adoption of Resolution T-022-00 came as a surprise to the State and to local residents. The Yakama Tribes had previously banned alcohol at its casino, store and in the closed area of the reservation, but had made no previous attempt to regulate or tax liquor use or sale by non-tribal members or businesses. Prior to the adoption of Resolution T-022-00, the Yakama Tribal government had given no notice to non-tribal members that it was considering the tax in question. Non-tribal members are not allowed to attend Tribal Council meetings or to vote or in any other manner to participate in tribal decision making. Subsequent to adoption of the Resolution, the Yakama tribal government began notifying individuals and entities that distribute or resell alcohol products within the exterior boundaries of the Reservation, including non-tribal members and businesses operating on non-tribally owned fee land, that enforcement of the Resolution would commence on or about January 4, 2000. As part of this process, notice was given that the tribe also intended to enforce the Resolution on a tract of land encompassing and surrounding the incorporated Town of Glenwood in Klickitat, County, an area of approximately 100,000 acres, otherwise known as “Tract D.” The land within Tract D was sold by the United States in fee patent, more than 90% of the owners of the fee patents are non-Tribal members, and the land has been in private ownership for over a century. Tract D was not historically considered to be within the surveyed boundaries of the Yakama Reservation, although the Yakama Tribes have periodically asserted that it is within the Reservation, and one agency of the federal government now appears to consider it to be within the intended original boundary of the Reservation. The State does not recognize Tract D as being within the exterior boundaries of the Reservation.
14. On January 14, 2000, and January 21, 2000, members of the Yakama Nation Police Department, under the direction or control of Defendant Whitefoot, entered businesses on privately owned fee land in the unincorporated community of Brownstone and the incorporated Town of Toppenish, respectively, with search warrants issued by the Yakama Tribal Court, which is under the direction or control of Defendant Flintknife. The Tribal officers seized alcohol products from the proprietors of these businesses. The operator of the Brownstone business, the individual from whom the products were seized, is a non-tribal member. The proprietor of the Toppenish business is a member of the Yakama Tribes.
15. According to published reports, interviews, and testimony before a state legislative committee, beer and wine distributors, in response to Resolution T-022-00, ceased making deliveries to businesses within the exterior boundaries of the reservation, including those within the incorporated “non-Indian communities” of Toppenish, Wapato, and Harrah, at the end of 1999 and, by one estimate, 400 jobs could be lost in the portion of the reservation that is “open” to non-tribal members. Deliveries to businesses in the Glenwood area of Klickitat County also ceased.
16. For several months after the announcement of the tax by the Yakama Tribe, the Governor’s Office attempted to engage in government to government consultation with Tribal officials to explore issues relating to the alcohol tax. In January, the Governor and the Chairman of the Tribal Council signed a Joint Proclamation memorializing their intention to attempt to achieve a negotiated resolution of the issues. A goal of these discussions was a moratorium on imposition of the tax and any enforcement actions while further discussions relating to the alcohol tax, liquor law enforcement and a potential compact took place. Representatives of the Governor's Office met with Tribal representatives on numerous occasions. Some of the issues discussed included facilitating increased access to current programs and additional funding for alcohol treatment and facilities, expanded programs for enforcement and education, and options for compact legislation. In addition, the Liquor Control Board also announced it would close its two state contracted liquor stores in Toppenish and Wapato. The discussions ultimately proved unsuccessful. Despite numerous formal and informal requests by various concerned officials, including the Governor, the Attorney General of Washington, and the United States Attorney for the Eastern District of Washington, the Yakama tribal government refused to agree to a moratorium on enforcement of the Resolution, which would have allowed additional time for a possible negotiated resolution of this matter and would have decreased the escalating potential for confrontations between tribal police and non-tribal members who feel that the past and threatened future invasions and seizures of their property are unlawful and violate the United States Constitution and laws. Accordingly, Plaintiff notified representatives of the Yakama Tribal Council that unless that body agreed on or before 5:00 p.m. on March 17, 2000, to suspend enforcement of the tax resolution, the Attorney General would immediately file a lawsuit against the above-named Defendants on behalf of the State of Washington.
17. On March 17, 2000, shortly before 5:00 p.m., Plaintiffs received a telefaxed copy of a document denominated as Resolution T-100-00 and bearing the names of three individual Tribal Council members indicating that they promulgated this measure in their capacity as “the Executive Board of the Yakama Tribal Council.” Resolution T-100-00, in pertinent part, provides:
NOW, THEREFORE BE IT RESOLVED by the undersigned members of the Executive Board of the Yakama Tribal Council, … that, effective 180 days from the date of the enactment of this Resolution, the possession, distribution or sale of alcoholic beverages for human consumption, specifically, any ardent or other intoxicating liquor, within the Yakama Reservation shall be prohibited.
BE IT FURTHER RESOLVED, that, pending ratification by the Yakama Tribal Council, this resolution shall supersede T-22-00, and that the Yakama Nation does not waive, alter or otherwise diminish their sovereign immunity whether expressed or implied….
This document indicates that it was “Done and Dated” on March 17, 2000.
18. Acting on the assurance that Resolution T-100-00 suspended enforcement of Resolution T-022-00 “pending ratification by the Yakama Tribal Council,” Plaintiff refrained from filing suit in order to continue its efforts aimed at achieving a negotiated resolution of this matter. However, according to the best of Plaintiffs information and belief, Resolution T-100-00 has never been ratified by the Yakama Tribal Council. Instead, at a meeting of the Yakama Nation General Council (which Plaintiff believes to be comprised of all enrolled members of the Yakama Nation of at least 18 years of age), occurring on April 4-5, 2000, that body passed yet another Resolution, this time denominated as GC-01-00. Resolution GC-01-00 provides, in pertinent part, as follows:
NOW, THEREFORE, BE IT RESOLVED the Yakama Nation must exercise its authority to eliminate the problems of alcohol, drug abuse on the Reservation by allocating adequate funding to implement the resolution. For the spiritual well-being of our children and families and for the survival and strengthening of our People, the Yakama Nation declares War on Alcohol, Drug Abuse and hereby directs Yakama Tribal Council to take action to eliminate alcohol, drugs and its associated problems from the Yakama Reservation….
DONE AND DATED ON THIS fifth (5) day of April, 2000, by the Yakama Nation General Council meeting in Special Session at Toppenish Community Center by a vote of 142 for and 129 against 56 abstaining.
Nowhere in General Council Resolution GC-01-00 is Resolution T-100-00 expressly ratified or even mentioned. To the best of Plaintiff’s information and belief, no other ratification efforts have occurred and Plaintiff is unaware of any other resolutions purporting to ratify Resolution T-100-00. In adopting Resolutions T-100-00 and GC-01-00, the Yakama Tribes once again did not comply with the provisions of 18 U.S.C. Sections 1154, 1156 and 1161, which govern the regulation of alcohol on Indian reservations. Resolutions T-100-00 and GC-01-00 have never been submitted to the Secretary of the Interior for certification and approval, as required, and they have not been published in the Federal Register.
19. Since the promulgation of resolutions T-100-00 and GC-01-00, the State of Washington has continued the good faith efforts to negotiate a resolution of this matter that it initiated following the promulgation of Resolution T-022-00. In late April 2000, representatives of the Attorney General's Office met with representatives of the Yakama Tribe to discuss the Tribal resolution banning liquor on the Reservation. The primary purpose of the meeting was to discuss how the liquor ban would be enforced by the Tribe on non-Tribal members and whether there were viable alternatives to the Tribe’s announced approach to the issues. During the meeting, concerns were expressed about the number of liquor licenses issued on the reservation and the enforcement of liquor laws. Specific concerns included complaints of service to intoxicated customers, service to underage individuals, and alleged illegal activities in the vicinity of taverns. Concerns were also expressed regarding the level of enforcement of health and sanitation regulations at on-reservation business with liquor licensees.
As a follow up to this meeting, the Attorney General's Office requested that the Liquor Board review whether the number of licensees within the boundaries of the Reservation was greater than that found in other cities or areas of comparable size. The office also asked the Liquor Board to review enforcement statistics and compare the level of enforcement on the Reservation with other areas. The Liquor Board subsequently confirmed that the number of licensees and the level of enforcement on the Reservation were comparable to those of other areas of similar size.
The Attorney General's Office also met with representatives of the Yakima County Sheriff's Office, the police departments of Wapato and Toppenish, and the Yakima County Health District to discuss the concerns expressed by the tribal representatives. One of the subjects the State focused on was increased enforcement of liquor laws on the Reservation, including better coordination among law enforcement agencies.
Representatives of the Attorney General's Office attended a community meeting on June 14, 2000 to inform area residents and local officials from Toppenish and Wapato of the efforts being made to clarify the scope of the ban and to explore solutions to the asserted problems. The Attorney General's Office encouraged the local officials and businesses to work directly with the Tribe to address those issues.
The Attorney General's Office also facilitated a meeting between a tribal representative and the Liquor Board’s Executive Director and staff members on June 27, 2000, to further discuss enforcement and a potential resolution of the issues. On July 18, 2000, the Liquor Board sent a letter to the Tribe indicating voluntary steps the Board would take to improve law enforcement and the process for the issuance of liquor licenses on the Reservation.
Throughout this time period, the Attorney General's Office continued to seek clarification from the Tribe regarding how the ban would be enforced. On June 2, 2000, the Attorney General's Office specifically requested, in writing, a clarification from the Tribe regarding how the ban would be implemented and enforced. While there have been numerous conversations with a Tribal representative since that letter, there has been no clear, authoritative statement by any authorized Tribal official about how the ban would operate and no assurance that non-Tribal members would not be subject to enforcement actions after the ban went into effect.
On September 13, 2000, the Attorney General met with the United States Attorney for the Eastern District of Washington in an effort to clarify enforcement issues relating to the tribal Resolutions and to continue attempting to achieve a negotiated resolution of the issues. The U.S. Attorney expressed a continued desire to try to help the concerned parties achieve a negotiated resolution of the issues and indicated that he would continue to review the relevant factual and legal framework to determine if any formal action by his office was either authorized or appropriate. The U.S. Attorney subsequently confirmed this understanding in a September 18, 2000, letter to the Attorney General, which also indicated that certain unnamed tribal representatives had indicated to him that the Yakama Tribes did not intend to take enforcement actions independent of his office. Unfortunately, the Tribes have refused to return telephone calls or respond to a September 13, 2000, letter from the Attorney General’s Office requesting that a named official or governing body, with identified authority to speak for the Tribes, confirm the U.S. Attorney’s understanding and provide such a non-enforcement assurance on behalf of the Yakama Tribes on or before September 18, 2000. Instead, Plaintiffs have learned from local government officials that on September 18 and 19, 2000, representatives of the Yakama Tribes, in marked Tribal vehicles, have begun conducting surveillance and involuntary videotaping of private citizens patronizing lawful business establishments possessing liquor licenses. These actions have once again escalated the potential for violent confrontations between non-tribal members and tribal representatives.
20. By their express terms, Resolution T-022-00, Resolution T-100-00, and Resolution GC-01-00, all have effective dates occurring on or before September 17, 2000. The Yakama tribal government continues, despite the best efforts of Plaintiffs and those individuals, groups, and entities identified in the preceding paragraphs, to decline to suspend enforcement of its Resolutions, once again escalating the potential for confrontations with non-tribal members fearing unlawful seizures of their property and the violation of rights guaranteed to them by the Constitution and laws of the United States. Non-tribal members living on fee land within the exterior boundaries of the Reservation and in Tract “D”, and non-tribal businesses which operate in those areas, have expressed concern that they will have their property seized and forfeited, be charged with crimes, and be excluded from their homes by actions of the Defendants. Businesses, such as grocery stores, convenience stores, restaurants and taverns, that sell alcohol products are also operating under these threats, and do not know whether they can remain in business, or whether their businesses will continue to have any market value. As was the case with the liquor tax, the non-tribal businesses on the Reservation were not notified prior to the imposition of the subsequent ban.
21. Congressional authority over Indian tribes is plenary. Absent express authori zation by federal statute or treaty, tribal jurisdic tion over the conduct of nonmembers exists only in limited circumstances. The exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and requires express congressional delegation. Neither the Treaty with the Yakama Tribes nor any other provision of federal law provides the Yakama Tribal Council jurisdiction to enforce its Resolutions against non-tribal members or on land owned in fee by non-tribal members.
V. FIRST CAUSE OF ACTION
Claim For Declaratory Judgment
22. Plaintiff realleges each and every allegation set forth in paragraphs 1 through 21 above.
23. Yakama Tribal Council Resolutions T-022-00, T-100-00, and GC-01-00, are contrary to the constitutional provisions and federal statutes cited above, and to the decisions of the United States Supreme Court regarding tribal jurisdiction over non-tribal members and over land owned in fee by non-tribal members. Defendants assertion of the right to enforce the Resolutions against non-tribal member citizens, and on land owned in fee by non-tribal member citizens, creates an actual controversy between the State of Washington and Defendants that is within the jurisdiction of this Court, and which may be determined by a judgment of this Court.
24. With specific regard to Yakama Tribal Council Resolutions T-022-00, T-100-00, and GC-01-00, the Defendants lack civil, criminal, regulatory and adjudicatory jurisdiction over non-tribal members, and over land owned in fee by non-tribal members, and the Resolutions should be declared void and unenforceable as to non-tribal members and land owned in fee by non-tribal members.
VI. SECOND CAUSE OF ACTION
Claim for Injunctive Relief
25. Plaintiff realleges each and every allegation set forth in paragraphs 1 through 24 above.
26. With specific regard to non-tribal members and land owned in fee by non-tribal members, Yakama Tribal Council Resolutions T-022-00, T-100-00, and GC-01-00 are contrary to the constitutional provisions and federal statutes cited above, and to the decisions of the United States Supreme Court regarding tribal jurisdiction. As such, they are invalid with regard to non-tribal members, and to land owned in fee by non-tribal members, and enforcement of them against such individuals or on land owned in fee by them would subject those citizens to unlawful and unconstitutional searches, seizures, and deprivations of property without due process of law, causing them immediate and irreparable harm for which there is no adequate remedy at law. Accordingly, the defendants should be permanently enjoined from enforcing the Resolutions against non-tribal members and on land owned in fee by non-tribal members.
VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for the following relief:
1. A declaratory judgment that Plaintiff, its citizens who are not members
of the Confederated Tribes and Bands of the Yakama Indian Nation, and all lands owned in fee by non-tribal members are not subject to Defendants' criminal, civil, regulatory or adjudicatory authority with regard to Yakama Tribal Council Resolutions T-022-00, T-100-00, and GC-01-00;
2. An injunction permanently restraining Defendants, alone or in concert with one another, and any persons acting under their control or authority from taking any action to assert or enforce Yakama Tribal Council Resolutions T-022-00, T-100-00, and GC-01-00 against Plaintiff or it’s citizens who are not members of the Confederated Tribes and Bands of the Yakama Indian Nation and from enforcing Resolutions T-022-00, T-100-00, and GC-01-00 on any lands owned in fee by non-tribal members.
3. Such other and further relief as to this Court seems just and proper.
DATED this _____ day of .
CHRISTINE O. GREGOIRE
Attorney General
RICHARD A. HEATH, WSBA #808
Senior Assistant Attorney General
JERRY A. ACKERMAN, WSBA #6535
Assistant Attorney General
The majority of historical documents relating to the Yakama Indian Nation use the spelling "Yakima." The Yakama Tribal Council took action several years ago to officially change the spelling to Yakama, which spelling is adopted herein except where the document in question specifically uses the traditional spelling.