963 F.3d 982
9th Cir.2020Background
- Washington assumed partial Public Law 280 jurisdiction in 1963; retrocession (returning that jurisdiction to the United States) is governed by state law and requires a gubernatorial proclamation approved by the Secretary of the Interior.
- The Yakama Nation petitioned in 2012 for full retrocession of civil and criminal jurisdiction over Yakama Indian Country acquired by Washington under Public Law 280.
- Governor Inslee’s 2014 Proclamation granted retrocession "in part" within the reservation boundaries but stated the State would "retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims." The Governor’s cover letter said "and" was intended to mean "and/or."
- DOI accepted the retrocession in 2016 without resolving the "and"/"or" ambiguity; post-acceptance guidance initially favored a conjunctive reading but was later superseded by analyses concluding "and" means "or."
- After Toppenish police arrested a Yakama tribal member on reservation land, the Yakama Nation sued for a declaration and injunction that the State lacks criminal jurisdiction when either the defendant or the victim is an Indian; the district court denied injunctive relief and judgment followed.
- The Ninth Circuit affirmed, holding the Proclamation’s phrase "non-Indian defendants and non-Indian victims" must be read disjunctively (as "or"), so Washington retained jurisdiction when any party is non-Indian.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Yakama: tribal sovereignty injury from State prosecutions on reservation; sufficient, imminent injury. | Defendants: (implicit) challenge standing. | Court: Yakama has Article III standing. |
| Scope of retrocession: does "non-Indian defendants and non-Indian victims" mean both parties must be non-Indian (conjunctive) or either party may be non-Indian (disjunctive)? | Yakama: "and" conjunctive — State retroceded all PL-280 criminal jurisdiction over Indians; paragraph "in part" would be meaningless otherwise. | State (and some federal actors): "and" conjunctive; State retained only pre-PL-280 non-Indian v. non-Indian jurisdiction. | Court: Read "and" as disjunctive ("or"); "in part" meaningful only if State retained jurisdiction whenever any party is non-Indian. Yakama failed to show success on merits for injunction. |
Key Cases Cited
- Solem v. Bartlett, 465 U.S. 463 (recognizing state jurisdiction over crimes by non-Indians on reservations)
- Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (tribal courts lack inherent criminal jurisdiction over non-Indians)
- Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463 (discussing Washington’s Public Law 280 assumption and its scope)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Robinson v. Shell Oil Co., 519 U.S. 337 (interpretive rule: consider plain meaning, specific and broader context)
- Cal. Lumbermen’s Council v. FTC, 115 F.2d 178 (example of construing "and" to mean "or" in context)
- Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712 (Indian-law canon: ambiguities construed for tribes)
- Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (context can overcome ordinary meaning of words)