Tribes of the Yakama Nation v. Klickitat County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CONFEDERATED TRIBES AND BANDS Nos. 19-35807
OF THE YAKAMA NATION, a 19-35821
sovereign federally recognized
Native Nation, D.C. No.
Plaintiff-Appellant/ 1:17-cv-03192-
Cross-Appellee, TOR

v.
OPINION
KLICKITAT COUNTY, a political
subdivision of the State of
Washington; KLICKITAT COUNTY
SHERIFFS OFFICE, an agency of
Klickitat County; BOB SONGER, in
his official capacity; KLICKITAT
COUNTY DEPARTMENT OF THE
PROSECUTING ATTORNEY, an agency
of Klickitat County; DAVID
QUESNEL, in his official capacity,
Defendants-Appellees/
Cross-Appellants.

Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding

Argued and Submitted November 20, 2020
Seattle, Washington
2 YAKAMA NATION V. KLICKITAT CNTY.

Filed June 11, 2021

Before: Ronald M. Gould and Michelle T. Friedland,
Circuit Judges, and Jill A. Otake, * District Judge.

Opinion by Judge Friedland

SUMMARY **

Tribal Reservation

Affirming the district court’s judgment entered
following a bench trial, the panel held that under an 1855
treaty between the Confederated Tribes and Bands of the
Yakama Nation and the United States, the Yakama
Reservation includes a tract, known as Tract D, that partially
overlaps with Klickitat County, Washington.

The parties’ dispute arose when the County attempted to
prosecute P.T.S., a minor and enrolled member of the Tribe,
for acts that occurred within Tract D. Pursuant to a
proclamation issued by the Governor of Washington, the
Yakamas and the federal government share exclusive
jurisdiction over certain criminal and civil offenses that
occur on Reservation lands. The Yakamas sued the County
and County officials, seeking declaratory and injunctive
relief barring the County from exercising criminal

*
The Honorable Jill A. Otake, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 YAKAMA NATION V. KLICKITAT CNTY. 3

jurisdiction over Tribe members for offenses that arise
within the Reservation’s borders, including within Tract D.
The County opposed the suit, arguing that Tract D is not part
of the Reservation. The district court issued a declaratory
judgment in favor of the Yakamas.

The panel held that the district court did not clearly err
in its factual finding that no “spur” between the waters of the
Klickatat and Pisco Rivers exists south of Mount Adams,
which meant that the Treaty was ambiguous in its
description of the Reservation’s southwestern boundary.
The district court also did not clearly err in its factual finding
that the Yakamas would have naturally understood the
Treaty to include Tract D within the Reservation.

Reviewing the Treaty’s meaning de novo, the panel
applied the Indian canon of construction, which dictates that
treaty terms must be construed in the sense in which they
would naturally be understood by the Indians and any
ambiguities are to be resolved in their favor. The panel held
that under this canon, the Treaty’s ambiguity must be
resolved according to the Yakamas’ understanding that Tract
D was included within the Yakama Reservation. The panel
therefore agreed with the district court’s interpretation that
the Treaty included Tract D within the Reservation.

The panel further held that Congress did not alter the
Reservation’s southwestern boundary by statute in 1904
because Congress did not clearly express an intent to
abrogate the Treaty in the 1904 Act.
4 YAKAMA NATION V. KLICKITAT CNTY.

COUNSEL

Ethan Jones (argued), Shona M. Voelckers, and Derek Red
Arrow Frank, Yakama Nation Office of Legal Counsel,
Yakima, Washington; Anthony S. Broadman and Robert J.
Sexton, Galanda Broadman PLLC, Seattle, Washington; for
Plaintiff-Appellant/Cross-Appellee.

Rylan Weythman (argued), Foster Garvey PC, Seattle,
Washington; Pamela B. Loginsky, Klickitat County Special
Deputy Prosecuting Attorney, Olympia, Washington; for
Defendants-Appellees/Cross-Appellants.

Eric Grant, Deputy Assistant Attorney General; Rachel E.
Heron, Daron Carreiro, and Christine W. Ennis, Attorneys;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Mary Anne
Kenworthy and Jay W. Fields, Attorneys, United States
Department of the Interior, Washington, D.C.; for Amicus
Curiae United States.

Colette Routel, Mitchell Hamline School of Law, Saint Paul,
Minnesota, for Amicus Curiae National Congress of
American Indians Fund.
 YAKAMA NATION V. KLICKITAT CNTY. 5

OPINION

FRIEDLAND, Circuit Judge:

This case concerns a boundary dispute between Klickitat
County, Washington and the Confederated Tribes and Bands
of the Yakama Nation (the “Yakamas” or the “Tribe”).
Following a bench trial, the district court held that the
Yakama Reservation includes a 121,465.69-acre tract
(“Tract D”) that partially overlaps with Klickitat County.
We affirm.

I.

A.

In 1855, the United States negotiated a treaty with the
Yakamas under which the Tribe gave up ten million acres of
land in exchange for certain rights, including the right to a
reservation for the Tribe’s exclusive use and benefit. Treaty
with the Yakamas, U.S.-Yakama Nation, arts. I & II, June 9,
1855, 12 Stat. 951; Wash. State Dep’t of Licensing v. Cougar
Den, Inc., 139 S. Ct. 1000, 1007 (2019). At the Treaty
negotiations, the Yakamas spoke no English and lacked
familiarity with cartographic concepts such as latitude and
longitude. It was therefore important for the negotiators to
define the Reservation’s boundaries according to natural
features and to describe them through verbal and visual
representations. This approach is reflected in the Treaty text,
the Treaty minutes, and the Treaty map.

The Treaty text defines the Reservation’s boundaries as
follows (with the southwestern boundary’s definition—the
subject of this case—in bold):
6 YAKAMA NATION V. KLICKITAT CNTY.

Commencing on the Yakama River, at the
mouth of the Attah-nam River; thence
westerly along said Attah-nam River to the
forks; thence along the southern tributary to
the Cascade Mountains; thence southerly
along the main ridge of said mountains,
passing south and east of Mount Adams, to
the spur whence flows the waters of the
Klickatat and Pisco rivers; thence down
said spur to the divide between the waters
of said rivers; thence along said divide to
the divide separating the waters of the
Satass River from those flowing into the
Columbia River; thence along said divide to
the main Yakama, eight miles below the
mouth of the Satass River; and thence up the
Yakama River to the place of beginning.

Treaty with the Yakamas, 12 Stat. at 952 (emphasis added).

The Treaty minutes indicate that U.S. negotiators, led by
Isaac Stevens, Governor of the Territory of Washington, told
the Yakamas that the Reservation would extend “to the
[C]ascade mountains, thence down the main chain of the
Cascade mountains south of Mount Adams, thence along the
Highlands separating the Pisco and the Sattass river from the
rivers flowing into the Columbia.” 1

1
The primary sources spell the names of the rivers in different ways,
and some of the rivers’ names have also evolved over time. For instance,
“Satass” is sometimes spelled as “Sattass,” and the “Pisco River” is now
known as “Toppenish Creek.” We refer to the rivers by the names used
in the Treaty text except when quoting original sources that used
different names.
 YAKAMA NATION V. KLICKITAT CNTY. 7

The relevant portion of the Treaty map depicts the
Reservation’s boundaries with a thin line of alternating dots
and dashes. 2

The map includes natural landmarks such as the Cascade
Mountains, Mount Adams, and the White Salmon, Klickatat,
and Pisco rivers. As depicted on the map, the Reservation’s
northern boundary follows the Attah-nam River, its western

2
This image was cropped from a digital image of a 1939
reproduction of the full Treaty map. The full 1939 reproduction of the
Treaty map appears in an appendix to this opinion.
8 YAKAMA NATION V. KLICKITAT CNTY.

boundary intersects with the Cascade Mountains, and its
southern boundary runs south of Mount Adams.

Despite the Treaty parties’ efforts to reach a mutual
understanding of the Reservation’s boundaries, conflicts
arose almost immediately. The Treaty map disappeared
soon after the Treaty was signed, making it harder to resolve
those disputes. A century-long effort to determine the
southwestern boundary ensued.

The earliest federal surveys, conducted without the
benefit of the Treaty map, failed to resolve disagreements
about the Reservation’s boundaries. The first survey (the
“Schwartz survey”), completed in 1890, omitted almost half
a million acres that the Yakamas understood to be part of the
Reservation, including land where they lived and harvested
resources. This sparked outrage within the Tribe, which
consequently refused to acquiesce in federal activities in the
area. A federal report by E.C. Barnard in 1900 (the “Barnard
report”) and a survey by Charles Pecore in 1926 followed.
The Barnard and Pecore investigations placed hundreds of
thousands of acres within the Reservation that the Yakamas
thought Schwartz had wrongly omitted, but they
nevertheless prolonged the boundary dispute: Each
investigator proposed a boundary that followed straight lines
instead of the natural features described in the Treaty text,
and even those straight lines differed. The surveyors’
approach appeared to stem from the fact that, according to
Barnard, “there [was] no possible way of making the
wording of the [T]reaty agree with the topography of the
country.” Yakima Indian Reservation, H.R. Doc. No. 56-
621, at 8 (1900).

Around 1930—seventy-five years after the Treaty’s
signing—an employee in the federal Office of Indian Affairs
found that the Treaty map had been mistakenly filed under
 YAKAMA NATION V. KLICKITAT CNTY. 9

“M” for Montana in the government’s records. The United
States ordered yet another survey in response to the
discovery. Completed in 1932 with the benefit of the map,
a survey by cadastral engineer Elmer Calvin (the “Calvin
survey”) included the land currently in dispute, later called
“Tract D,” within the Reservation for the first time. Calvin
echoed Barnard’s confusion in noting that the “language of
the [T]reaty fails to fit the topography on the ground,” but he
determined that the best reading of the Treaty and the map
together would include Tract D within the Reservation.

The Department of the Interior accepted the Calvin
survey’s conclusions, and in 1939, the Secretary of the
Interior informed Congress that the Yakamas’ claims to
Tract D were meritorious. 3 But some federal agencies did
not adopt the Department of the Interior’s position; the
Attorney General, for instance, rejected the Calvin survey
and maintained that the Yakamas had no viable claim to
Tract D. In 1949, the Yakamas filed a petition with the
newly created Indian Claims Commission (“ICC”), which
was responsible for adjudicating claims by tribes against the
United States. After seventeen years of litigation, the ICC
concluded that the Treaty parties had originally intended to
include Tract D within the Reservation. Yakima Tribe v.
United States, 16 Ind. Cl. Comm. 536, 560–64 (1966). 4 The

3
See Yakima Indians Jurisdictional Act: Hearing on H.R. 2390
Before the Spec. Subcomm. of the H. Comm. on Indian Affs., 76th Cong.
3 (1939) (statement of Harold L. Ickes, Secretary of the Interior) (“As a
result of an exhaustive study, extending over a period of years, this
Department has heretofore concluded that the boundary claims of the
Yakima Indians are meritorious.”).
4
The United States and the Yakamas then settled the Tribe’s claim
for compensation for the loss of title to lands within Tract D that the
United States had patented to non-Indians. And, in 1972, President
10 YAKAMA NATION V. KLICKITAT CNTY.

federal government considers itself bound by the effect of
the ICC’s decision, so federal agencies have treated Tract D
as part of the Yakama Reservation ever since.

The United States ultimately approved a survey in 1982
that included Tract D within the Reservation. The federal
government continues to treat the 1982 survey as the
definitive survey of the Reservation’s southwestern
boundary.

B.

The present dispute between the Yakamas and Klickitat
County arose when the County attempted to prosecute
P.T.S., a minor and enrolled Yakama member, for acts that
occurred within Tract D. Pursuant to a proclamation issued
by Washington Governor Jay Inslee in 2014, the Yakamas
and the federal government share exclusive jurisdiction over
certain criminal and civil offenses that occur on Reservation
lands, including juvenile delinquency offenses. 5 Citing that

Nixon issued an Executive Order that returned more than 21,000 acres
of national forest lands within Tract D to the Yakamas. See Exec. Order
No. 11,670, 3 C.F.R. 708 (1971–75).

5
Wash. Proclamation 14-01 (Jan. 17, 2014),
https://www.governor.wa.gov/sites/default/files/proclamations/proc_14
-01.pdf. A federal statute enacted in 1953, known as “Public Law 280,”
allowed states to assume jurisdiction over some crimes and civil causes
of action on Indian reservations, but in 1968, Congress enacted another
statute that allowed states to give such jurisdiction back through a
process known as “retrocession.” See Confederated Tribes & Bands of
the Yakama Nation v. Yakima County, 963 F.3d 982, 985–86 (9th Cir.
2020), cert. denied, — S. Ct. —, 2021 WL 1240924 (2021) (citing Act
of Aug. 15, 1953, Pub. L. 83-280, 67 Stat. 588 (1953) and Act of Apr.
11, 1968, Pub. L. 90-284, 82 Stat. 79 (1968) (codified at 25 U.S.C.
§ 1323)). Washington initially assumed jurisdiction over some crimes
 YAKAMA NATION V. KLICKITAT CNTY. 11

proclamation, the Yakamas contended that Klickitat County
lacked jurisdiction to prosecute P.T.S. for an incident that
took place within Tract D. The Yakamas sued Klickitat
County and several County officials (collectively “the
County”), seeking declaratory and injunctive relief barring
the County from exercising criminal jurisdiction over Tribe
members for offenses that arise within the Reservation’s
borders, including within Tract D. The County opposed the
suit, arguing that Tract D is not part of the Reservation. 6

Following a three-day bench trial, the district court
issued a declaratory judgment in favor of the Yakamas. The
court observed that the Treaty’s description of the
southwestern boundary is ambiguous because some of the
natural features it references do not exist. But the court
found that the Yakamas would have understood the Treaty
to include Tract D within the Reservation at the time of the
Treaty negotiations. In so finding, the district court credited

and civil causes of action occurring on the Yakama Reservation, id. at
985, but in 2012, through a process established by the state, the Yakamas
filed a petition for full “retrocession of both civil and criminal
jurisdiction on all Yakama Nation Indian country.” Id. at 986. Governor
Inslee’s proclamation granted the Yakamas’ request “in part,” including
by retroceding “full civil and criminal jurisdiction [over] . . .
Compulsory School Attendance; Public Assistance; Domestic Relations;
and Juvenile Delinquency.” Id. (citation omitted).

6
The parties also disputed the types of criminal matters over which
the County has jurisdiction on Reservation lands under the Governor’s
proclamation. The parties now agree that we are bound by our court’s
intervening decision in Confederated Tribes & Bands of the Yakama
Nation v. Yakima County, 963 F.3d 982 (9th Cir. 2020), cert. denied, —
S. Ct. —, 2021 WL 1240924 (2021), which resolved the types of
criminal matters that fall within the County’s jurisdiction on Reservation
lands, id. at 982. For example, the parties agree that the County would
have jurisdiction over juvenile offenses involving Yakama members
taking place within Tract D only if Tract D was not Reservation land.
12 YAKAMA NATION V. KLICKITAT CNTY.

the Yakamas’ expert’s testimony and rejected the County’s,
explaining that the County’s expert’s “analysis [was] flawed
and ignore[d] important historical events and critical pieces
of evidence.” The court accordingly held that the Treaty
with the Yakamas included Tract D as part of the
Reservation, and that the survey approved by the United
States in 1982 “marks the correct southwestern boundary.”

The County timely appealed.

II.

We evaluate the district court’s conclusions in this case
in two steps. First, we review for clear error the district
court’s “[u]nderlying factual findings,” including those
related to topography and history. Cree v. Flores, 157 F.3d
762, 768 (9th Cir. 1998). We will not overturn those
findings unless we reach a “‘definite and firm conviction’
that a mistake has been committed.” United States v.
Washington, 157 F.3d 630, 648 (9th Cir. 1998) (quoting
Sawyer v. Whitley, 505 U.S. 333, 346 n.14 (1992)). Second,
we “review de novo whether the district court reached the
proper conclusion as to the meaning of the [Treaty] given
those findings.” Id. at 642.

In our de novo review, we must give due weight to the
Indian canon of construction, which dictates that treaty terms
must be “construed ‘in the sense in which they would
naturally be understood by the Indians.’” Herrera v.
Wyoming, 139 S. Ct. 1686, 1699 (2019) (quoting
Washington v. Wash. State Com. Passenger Fishing Vessel
Ass’n, 443 U.S. 658, 676 (1979)). The Supreme Court has
applied this canon to the Treaty at issue here several times,
and “each time it has stressed that the language of the treaty
should be understood as bearing the meaning that the
Yakamas understood it to have in 1855.” Wash. State Dep’t
 YAKAMA NATION V. KLICKITAT CNTY. 13

of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1011
(2019). The canon also instructs that “Indian treaties are to
be interpreted liberally in favor of the Indians,” and “any
ambiguities are to be resolved in their favor.” Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200
(1999).

III.

A.

We thus begin by reviewing the district court’s factual
findings for clear error. At the end of the bench trial, the
district court issued seventeen pages of factual findings, two
of which are key to our analysis and are not clearly
erroneous. First, the district court found that no “spur”
between the waters of the Klickatat and Pisco Rivers exists
south of Mount Adams. 7 This finding is significant because

7
Confusingly, a “spur” has sometimes been referred to as a “spur
divide,” including by Elmer Calvin, who completed the 1932 survey of
the area with the benefit of the Treaty map. The parties generally agree
that a “spur” is higher ground extending laterally from the side of a
mountain or a ridge, and a “divide” is a boundary between two
watersheds. A “spur divide,” according to testimony Calvin gave in the
ICC proceedings in 1950, is a “long spur that acts as both a spur and a
divide.” To prevent confusion, and because the County’s briefs raise
distinct arguments about the Treaty’s references to a “spur” and to a
“divide,” each of which we address separately, we avoid using the term
“spur divide.”

The County argues that a spur may be “discontinuous,” for example
if it is crossed by a river. The Tribe disputes this, arguing that crossing
a creek, stream, or river is “contrary to the definition of a spur.” We need
not resolve this precise dispute because, for the other reasons set forth
elsewhere in this opinion, we reject the County’s broader theory that the
Treaty unambiguously requires that the Reservation’s southwestern
boundary exclude Tract D.
14 YAKAMA NATION V. KLICKITAT CNTY.

the critical passage in the Treaty text describes the
Reservation’s southwestern boundary as “passing south and
east of Mount Adams, to the spur whence flows the waters
of the Klickatat and Pisco rivers; thence down said spur to
the divide between the waters of said rivers; thence along
said divide” to another divide separating the Satass and
Columbia Rivers. Treaty with the Yakamas, 12 Stat. at 952
(emphases added). If the spur does not exist as described in
the Treaty, then the Treaty is ambiguous in its description of
the Reservation’s southwestern boundary.

The County argues that this finding was erroneous,
insisting that a “spur” that satisfies the Treaty call exists
between the Klickatat and Pisco Rivers. The County cites
reports written by the United States’ negotiator, Governor
Isaac Stevens, which describe spurs that were “thrown out
from the main chain” of the Cascade Mountains, “extending
towards and in some cases reaching the banks of the
Columbia [River],” including one “between the Klickitat and
Pisko tributary of the Yakima [River].” Relying on that
description, in its appellate briefs the County reproduces for
the first time a Google map of the area immediately
surrounding Mount Adams, draws a line on that map that
runs east from the base of the mountain, calls that line a
“spur,” and posits that it satisfies the Treaty call as the Treaty
parties would have understood it.

The district court did not commit clear error in
concluding otherwise given the lack of expert testimony
supporting the location of any such spur. When the County
attempted to have its only expert testify about the purported
spur’s location, the district court sustained an objection from
the Tribe that the witness should not be permitted to
“testif[y] as to the physical features . . . that could satisfy the
calls in the Treaty” because he had failed to disclose this
 YAKAMA NATION V. KLICKITAT CNTY. 15

theory in his report. Indeed, that expert—a historian—
confirmed on cross-examination that he had no expertise in
geography, topography, or cartography.

Even if there had been expert testimony that supported
the County’s spur theory, we still would not conclude that
the district court clearly erred in finding that no spur between
the waters of the Klickatat and Pisco Rivers exists south of
Mount Adams. The County’s proffered spur conflicts with
the findings of the United States’ surveyors, whose expertise
we owe deference. 8 The County’s theory also conflicts with
the ICC’s conclusion that “[t]here is in fact no spur.” Yakima
Tribe v. United States, 16 Ind. Cl. Comm. 536, 560 (1966).

The second key factual finding that we review for clear
error is that the Yakamas would have naturally understood
the Treaty to include Tract D within the Reservation. United
States v. Confederated Tribes of Colville Indian Rsrv.,
606 F.3d 698, 709 (9th Cir. 2010) (“We . . . review for clear
error the district court’s findings as to the understanding of
the Native Americans present at the [treaty] negotiations.”).
This finding is important because it will inform our
application of the canon of Indian construction, which
requires that we construe ambiguous treaty terms according
to the Yakamas’ understanding.

The County contends that the written historical record
lacks evidence that the Yakamas expressed a belief before

8
The United States has submitted a brief as amicus curiae in support
of the Yakamas. Although we are not bound by the government’s
interpretation of the Treaty, its approval of the 1982 survey is
“necessarily a strong consideration.” N. Pac. Ry. Co. v. United States,
227 U.S. 355, 366 (1913); see also Cragin v. Powell, 128 U.S. 691, 698–
99 (1888) (discussing the need for courts to refrain from second-guessing
public surveys).
16 YAKAMA NATION V. KLICKITAT CNTY.

the 1930s that Tract D was included in the Reservation.
Although “[e]vidence of post-treaty activities” is relevant to
discerning the Tribe’s understanding of the Treaty, Makah
Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1166
(9th Cir. 2017), it is not very informative here, where the
Yakama Reservation was not surveyed until thirty-five years
after the Treaty agreement was reached. If the Yakamas
understood the Reservation to include Tract D from the very
beginning, then it is logical that they would not have known
about the United States’ disagreement with their
understanding until at least 1890, when the Schwartz survey
was conducted. By that point, according to the Yakamas’
expert, the Yakamas were so outraged by Schwartz’s
omission of more than half a million acres from what they
understood to be the Reservation that they expressed their
concerns in general terms instead of highlighting specific
tracts.

The district court reasonably found that the materials
from the Treaty negotiations demonstrate that the Yakamas
understood the Treaty to include Tract D in the Reservation,
even if the Tribe did not press that understanding for several
decades after the Treaty’s signing. 9 For example, the district

9
We also note that the Yakamas’ historical expert, whose testimony
was found credible by the district court, emphasized that the written
record from the period after the Treaty was signed is incomplete because
it lacks evidence from the Yakamas’ oral history. We have long
recognized the importance of oral traditions when interpreting this very
Treaty. See Cree v. Flores, 157 F.3d 762, 773 n.11 (9th Cir. 1998)
(“Were it otherwise, the history and culture of a society that relies on an
oral history tradition could be brought before the fact finder only with
the greatest of difficulty and probably with less reliability.”). According
to the Yakamas’ expert, the Tribe’s oral history indicates that the
Yakamas consistently understood the area within Tract D to be part of
the Reservation and that they challenged encroachments on that territory.
 YAKAMA NATION V. KLICKITAT CNTY. 17

court gave significant weight to the Treaty minutes,
observing that they “are the best evidence remaining of what
occurred and what Governor Stevens told the Yakama
Nation’s representatives.” It made sense for the district court
to emphasize the minutes because the Yakamas depended
almost entirely on oral communication to understand the
Treaty’s contents. According to the minutes, the Yakamas
were told that the Reservation’s boundary would run “down
the main chain of the Cascade mountains south of Mount
Adams.” This suggests that the Yakamas were made to
understand the boundary as running south of Mount Adams,
thereby including territory directly south of the mountain
within the Reservation’s boundaries. Tract D meets that
description. The minutes are also consistent with the map’s
representation of the boundary: As Department of the
Interior topographic engineer F. Marion Wilkes wrote in
1933, “from [the] map it is apparent that the makers of the
treaty intended to take in a large area south of [Mount]
Adams,” including “the area around [Tract D].”

Other evidence in the historical record further supports
the district court’s finding that the Yakamas understood the
Treaty to include Tract D within the Reservation. See
Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 196 (1999) (looking to historical evidence to
“shed[] light” on how a tribe understood a treaty agreement).
The Yakamas’ expert testified that the Tribe valued Camas
Prairie, an area located within Tract D, as a critical source of
food. The expert further explained that the United States’
negotiators knew about the Yakamas’ interest in the prairie:
Federal representatives, in an effort to protect the Yakamas’
interest from encroaching settlers, recommended that Camas
Prairie be reserved for the Yakamas as soon as possible
because of the necessary foods the area provided, and the
18 YAKAMA NATION V. KLICKITAT CNTY.

likelihood that early settlers would otherwise destroy the
prairie’s resources.

Under the highly deferential clear error standard, we
uphold the district court’s findings that the spur described in
the Treaty does not exist and that the Yakamas understood
the Treaty to include Tract D within the Reservation’s
boundaries.

B.

Proceeding to our de novo review of the Treaty’s
meaning, and taking the district court’s factual findings as
true, we further hold that the Treaty included Tract D within
the Yakama Reservation. The Treaty is ambiguous in that it
calls for the southwestern boundary of the Reservation to
follow a natural feature south of Mount Adams that,
according to the district court’s findings, does not actually
exist as described. Under the Indian canon of construction,
the Treaty’s ambiguity must be resolved according to the
Yakamas’ understanding that Tract D was included within
the Yakama Reservation. Wash. State Dep’t of Licensing v.
Cougar Den, Inc., 139 S. Ct. 1000, 1011 (2019).

Although the County agrees that ambiguities must be
resolved in favor of the Tribe, it argues that the Treaty
contains unambiguous text that requires the exclusion of
Tract D from the Reservation. Here, the County focuses on
the term “divide” in the Treaty text. The Treaty calls for the
southwestern boundary to run “south and east of Mount
Adams,” first to the “spur” between the Pisco and Klickatat
Rivers, “thence down said spur” to the “divide” between
those rivers. Treaty with the Yakamas, 12 Stat. at 952.
According to the County, even if the first call is ambiguous
because a spur between the Pisco and Klickatat Rivers may
not exist south of Mount Adams, the second call is
 YAKAMA NATION V. KLICKITAT CNTY. 19

unambiguous because there is a “divide” between those
rivers that lies well north of Tract D. Given that the location
of the Pisco-Klickatat divide is clear, the County argues, the
Reservation’s southwestern boundary must be interpreted to
traverse it and thereby exclude Tract D.

The County’s argument merely replaces one ambiguity
with another. Notably, the Pisco-Klickatat divide lies north
of Mount Adams. The County concedes this point, but it
nonetheless argues that the Treaty’s call for the boundary to
traverse that divide must be honored anyway. We disagree.
Critically, the Treaty text states that the boundary should run
“south and east of Mount Adams, to the spur . . . thence
down said spur to the divide.” Id. The Treaty thus indicates
that the southwestern boundary runs south of Mount Adams.
Although accepting the County’s interpretation might
resolve the Treaty’s ambiguity as to the relevant divide, it
would create a different ambiguity by conflicting with the
Treaty’s description of where the boundary lies relative to
Mount Adams. Because the Treaty is ambiguous either way,
under the Indian canon of construction, we must resolve the
ambiguity in favor of the Yakamas. 10

10
The County’s spur argument, see supra section III.A, suffers from
a similar problem under the Indian canon of construction. The County
asserts that “spur” unambiguously refers to the line it drew on its Google
map, which it says represents a “large, discontinuous ridge” that should
be considered a spur. In support of its position, the County relies on
writings and maps used by Governor Stevens. At most, the County’s
evidence supports a determination that the term “spur” is ambiguous
because it is not defined in the Treaty text. But Stevens used the
materials cited by the County for purposes unrelated to the Treaty, and
the Yakamas probably never saw them. Under the Indian canon of
construction, Stevens’ materials provide limited value for interpreting
20 YAKAMA NATION V. KLICKITAT CNTY.

Furthermore, the Supreme Court has already rejected an
argument similar to the County’s argument about the Pisco-
Klickatat divide. In Northern Pacific Railway Co. v. United
States, 227 U.S. 355 (1913), the Court considered another
question about the Reservation’s boundaries, which arose in
the context of a dispute about whether the United States had
appropriately granted land patents to a railroad company. In
addressing the parties’ arguments there, the Court rejected
the Schwartz survey for placing too much emphasis on the
Pisco-Klickatat divide. See id. at 362. The Court suggested
that the proper approach would be to try to give effect to all
of the Treaty calls based on a “consideration of the
topography of the country and the testimony” available. Id.
In light of this instruction, we must reject the County’s
contention that the Pisco-Klickatat divide alone determines
the location of the Reservation’s southwestern boundary.

Fundamentally, the County’s argument is that there can
only be one way to understand this Treaty, and that the one

this potentially ambiguous term because we must construe the Treaty
liberally in favor of the Yakamas’ understanding at the time.

And even if we were to compare Stevens’ writings and maps to
present day maps in an effort to locate the spur, we would need to do so
with skepticism. In its thorough consideration of the Yakama
Reservation’s southwestern boundary, the ICC concluded that a map
prepared at Stevens’ direction just two years after the Treaty
negotiations—and which he vouched for as accurate—had “many
inaccuracies.” Yakima Tribe v. United States, 16 Ind. Cl. Comm. 536,
562 (1966). Apparently, Stevens’ map was so inaccurate that the ICC
felt compelled to “confess” that “[the map] is disturbing to us in our
consideration of this case.” Id. at 561. The Treaty map was also
prepared at Stevens’ direction. Although the Treaty map does not
accurately depict the topography of the area either, it is relevant because
it represents what the Yakamas saw and were made to understand,
whereas Stevens’ other maps offer no such value.
 YAKAMA NATION V. KLICKITAT CNTY. 21

correct understanding of the Treaty is different from the
ICC’s determination and from the conclusions of all federal
surveys since the rediscovery of the map. Any such
argument is at the very least an uphill climb.

For all of these reasons, we conclude that the Treaty
language is inherently ambiguous. Consequently, in light of
the Indian canon of construction, we agree with the district
court’s interpretation that the Treaty included Tract D within
the Reservation.

IV.

Next, we must consider the County’s argument that even
if the Treaty originally included Tract D within the Yakama
Reservation, Congress altered the Reservation’s
southwestern boundary by statute in 1904 and excluded
Tract D. Although Congress may change reservation
boundaries by statute, “[i]f Congress seeks to abrogate treaty
rights, ‘it must clearly express its intent to do so.’” Herrera
v. Wyoming, 139 S. Ct. 1686, 1698 (2019) (quoting
Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 202 (1999)). We hold that Congress did not
clearly express an intent to abrogate the Treaty, so we reject
the County’s contention.

At the turn of the twentieth century, Congress faced
growing pressure to open established reservation lands to
“waves of homesteaders moving West.” Solem v. Bartlett,
465 U.S. 463, 466 (1984). In response, “Congress passed a
series of surplus land acts . . . to force Indians onto
individual allotments carved out of reservations and to open
up unallotted lands for non-Indian settlement.” Id. at 466–
67. Congress began enacting surplus land acts around the
same time that the Yakamas learned that the first official
survey of the Reservation’s boundary—the Schwartz
22 YAKAMA NATION V. KLICKITAT CNTY.

survey—had found the Reservation to be much smaller than
the Yakamas understood. Upon learning of Schwartz’s
findings, the Yakamas refused to acquiesce in any sales of
surplus Reservation lands and demanded that the United
States commission another survey.

In 1904, Congress enacted legislation that authorized
selling Yakama Reservation lands without the need to obtain
the Yakamas’ consent. See Act of Dec. 21, 1904, ch. 22, 33
Stat. 595 (1904) (“the 1904 Act”). To mollify the Yakamas,
Congress included language in the 1904 Act instructing the
Secretary of the Interior to recognize a second
investigation—the Barnard report—that included nearly
300,000 more acres within the Reservation’s boundaries
than the Schwartz survey had. Id. § 1, 33 Stat. at 596.
Neither Schwartz nor Barnard included Tract D within the
Reservation’s boundaries.

The 1904 Act recognized the Barnard report “for the
purposes of this act.” Id. In another section, the 1904 Act
stated that “the purpose of this Act [is] merely to have the
United States to act as trustee for said Indians in the
disposition and sales of said lands and to expend . . . to them
the proceeds.” Id. § 7, 33 Stat. at 598.

The County argues that the 1904 Act reflects Congress’s
clear intent to rely on the Barnard report to determine the
Yakama Reservation’s southwestern boundary. In addition
to the statute’s text, the County points to congressional
committee reports, which explain that “[f]or many years the
Indians have claimed that the boundary lines of said
reservation as laid out are incorrect and that their reservation
includes more lands than have been embraced within the
recognized limits of their reservation” and that “[t]his bill
proposes to recognize the validity of the claim to the tract of
land adjoining the reservation to the extent of” nearly
 YAKAMA NATION V. KLICKITAT CNTY. 23

300,000 additional acres. H.R. Rep. No. 58-2346, at 2
(1904); S. Rep. No. 58-2738, at 1–2 (1904). Although
neither the statute nor these legislative materials mention
Tract D, the County asks us to interpret the 1904 Act as
abrogating the Yakamas’ right to it.

Applying the Indian canon of construction, we decline to
infer from the 1904 Act a congressional intent to exclude
Tract D from the Yakama Reservation. Nothing in the Act
itself or the legislative history suggests that Congress even
contemplated Tract D. And, between the surveys Congress
did consider, it chose the one that gave the Yakamas more
land, not less. The Act therefore lacks “clear evidence that
Congress actually considered the conflict between its
intended action on the one hand” and the Yakamas’ right to
Tract D on the other, and that it “chose to resolve that
conflict by abrogating the treaty” to take Tract D away from
the Yakamas. Herrera, 139 S. Ct. at 1698 (emphasis added)
(quoting Mille Lacs Band of Chippewa Indians, 526 U.S. at
202–03).

The Supreme Court’s reasoning in Northern Pacific
Railway Co. v. United States, 227 U.S. 355 (1913), comports
with this conclusion. There, the Court recognized the
existence of the 1904 Act, but it did not hold that the Act
conclusively settled the Reservation’s boundaries. N. Pac.
Ry. Co., 227 U.S. at 358, 367. Instead, the Court analyzed
the Treaty text to determine whether the Schwartz survey or
the Barnard report better adhered to the Treaty negotiators’
intentions. Id. at 357–58. This suggests that the 1904 Act
did not supersede the Treaty’s establishment of the
southwestern boundary.

The United States’ and Congress’s subsequent conduct
is also consistent with our understanding of the 1904 Act.
See Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78,
24 YAKAMA NATION V. KLICKITAT CNTY.

89–90 (1918) (supporting the conclusion that Congress
intended to include submerged lands within an Indian
reservation with evidence of the Department of the Interior’s
subsequent conduct); United States v. Idaho, 210 F.3d 1067,
1078–79 & n.17 (9th Cir. 2000) (citing Congress’s actions
after Idaho’s statehood as evidence supporting Congress’s
“pre-statehood intent” to recognize submerged lands as
within a reservation). Two years after the Treaty map was
rediscovered, the Calvin survey concluded that the
Reservation’s boundaries included Tract D. The Secretary
of the Interior accepted Calvin’s conclusions—even though
they were made decades after Congress enacted the 1904
Act—and then informed Congress that the Yakamas’ claims
to Tract D were meritorious. In 1939, Congress appropriated
funds “[f]or completion of a survey of the disputed boundary
of the Yakima Reservation, Washington.” Act of May 10,
1939, ch. 119, 53 Stat. 685, 696. These actions would not
have been necessary if Congress had redefined the
Reservation’s boundary by statute in 1904.

We accordingly hold that Congress did not conclusively
exclude Tract D from the Reservation through the 1904
Act. 11

11
The Yakamas argue that we should apply the “diminishment”
framework to determine the effect of the 1904 Act on the Reservation’s
boundaries. Courts use that framework to resolve disputes over whether
Congress “diminished” reservations by opening unallotted reservation
lands to non-Indian settlement. Solem, 465 U.S. at 467. We do not apply
that framework here because the 1904 Act did not open Tract D for
settlement. Even if the diminishment framework did apply, it would
require the County to demonstrate a clear congressional intent to remove
Tract D from the Yakama Reservation through the 1904 Act. See id. at
470; cf. McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020) (holding that
the disestablishment of a reservation, like diminishment, “require[s] that
 YAKAMA NATION V. KLICKITAT CNTY. 25

V.

For the foregoing reasons, we AFFIRM the district
court’s holding that Tract D is within the Yakama
Reservation.

Congress clearly express its intent to do so,” typically with “reference[s]
to cession or other language evidencing the present and total surrender
of all tribal interests” (quoting Nebraska v. Parker, 577 U.S. 481, 488
(2016))). As we have explained, the County has failed to make such a
demonstration.
26 YAKAMA NATION V. KLICKITAT CNTY.

APPENDIX