Yakama Nation v. Yakima County ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONFEDERATED TRIBES AND BANDS No. 19-35199
OF THE YAKAMA NATION, a
sovereign federally recognized D.C. No.
Native Nation, 1:18-cv-03190-
Plaintiff-Appellant, TOR
v.
OPINION
YAKIMA COUNTY, a political
subdivision of the State of
Washington; CITY OF TOPPENISH, a
municipality of the State of
Washington,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Argued and Submitted March 3, 2020
Seattle, Washington
Filed June 29, 2020
Before: Sandra S. Ikuta, Ryan D. Nelson, and
Danielle J. Hunsaker, Circuit Judges.
Opinion by Judge R. Nelson
2 CONFEDERATED TRIBES V. YAKIMA COUNTY
SUMMARY *
Tribal Jurisdiction
Affirming the district court’s judgment in favor of
Yakima County, Washington, and the City of Toppenish, the
panel held that the State of Washington may exercise
criminal jurisdiction over members of the Confederated
Tribes and Bands of the Yakama Nation who commit crimes
on reservation land.
The panel held that the Yakama Nation had Article III
standing to seek a permanent injunction regarding the effect
of a Washington State Proclamation retroceding, or giving
back, criminal jurisdiction to the United States. The panel
concluded that the asserted injury of infringement on the
Yakama Nation’s tribal sovereignty and right to self-
government as guaranteed by treaty was sufficiently
concrete, particularized, and imminent to show injury in fact.
The panel addressed only the “actual success on the
merits” element of the Yakama Nation’s request for a
permanent injunction. Pursuant to 25 U.S.C. § 1323(a), the
Proclamation retroceded, “in part,” civil and criminal
jurisdiction over the Yakama Nation to the United States, but
retained jurisdiction over matters “involving non-Indian
defendants and non-Indian victims.” The panel concluded,
based on the entire context of the Proclamation, that “and”
as used in the above sentence was disjunctive and should be
*
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.
CONFEDERATED TRIBES V. YAKIMA COUNTY 3
read as “or.” Accordingly, the State retained jurisdiction if
any party is a non-Indian.
COUNSEL
Anthony S. Broadman (argued) and Joe Sexton, Galanda
Broadman, Seattle, Washington; Ethan Jones, Marcus
Shirzad, and Shona Voelckers, Yakama Nation Office of
Legal Counsel, Toppenish, Washington; for Plaintiff-
Appellant.
Kirk A. Ehlis (argued), Menke Jackson Beyer LLP, Yakima,
Washington, for Defendant-Appellee City of Toppenish.
Don L. Anderson and Paul E. McIlrath, Prosecuting
Attorney, Prosecuting Attorney’s Office, Yakima,
Washington, for Defendant-Appellee Yakima County.
Stacy Stoller (argued), William B. Lazarus, Amber Blaha,
and Rachel Heron, Attorneys; Eric Grant, Deputy Assistant
Attorney General; Jeffrey Bossert Clark, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.; for
Amicus Curiae United States of America.
Kristen Mitchell, Deputy Attorney General; Robert W.
Ferguson, Attorney General; Office of the Attorney General,
Olympia, Washington; for Amicus Curiae State of
Washington.
4 CONFEDERATED TRIBES V. YAKIMA COUNTY
OPINION
R. NELSON, Circuit Judge:
This case presents the question whether the State of
Washington may exercise criminal jurisdiction over
members of the Confederated Tribes and Bands of the
Yakama Nation who commit crimes on reservation land. To
answer that question, we must interpret a 2014 Washington
State Proclamation that retroceded—that is, gave back—“in
part,” civil and criminal jurisdiction over the Yakama Nation
to the United States, but retained criminal jurisdiction over
matters “involving non-Indian defendants and non-Indian
victims.” If “and,” as used in that sentence, is conjunctive,
then the State retained jurisdiction only over criminal cases
in which no party—suspects or victims—is an Indian. If, by
contrast, “and” is disjunctive and should be read as “or,” then
the State retained jurisdiction if any party is a non-Indian.
We conclude, based on the entire context of the
Proclamation, that “and” is disjunctive and must be read as
“or.” We therefore affirm the district court.
I
A
This case concerns who—among Indians, Washington,
and the United States—can exercise criminal jurisdiction
over matters involving Indians on reservation land.
Historically, the states have possessed criminal jurisdiction
over crimes involving only non-Indians on Indian
reservations. Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984)
(recognizing state jurisdiction over “crimes by non-Indians
against non-Indians . . . and victimless crimes by non-
Indians”) (internal citation omitted); United States v.
McBratney, 104 U.S. 621, 624 (1881) (recognizing state
CONFEDERATED TRIBES V. YAKIMA COUNTY 5
jurisdiction over crimes committed by non-Indians against
non-Indians); see also Oliphant v. Suquamish Indian Tribe,
435 U.S. 191, 212 (1978) (“Indian tribes do not have
inherent jurisdiction to try and to punish non-Indians.”). But
criminal jurisdiction over Indians on Indian reservations has
not been as constant. For much of early United States
history, criminal jurisdiction over Indians on reservation
land was generally concurrent between the United States and
independent tribes, subject to some exceptions. See
Washington v. Confederated Bands & Tribes of the Yakima
Indian Nation, 439 U.S. 463, 470–71 (1979).
That arrangement changed in 1953, when Congress
passed Public Law 280, in part to deal with what it perceived
to be the “problem of lawlessness on certain Indian
reservations, and the absence of adequate tribal institutions
for law enforcement.” Bryan v. Itasca Cty., 426 U.S. 373,
379 (1976). Public Law 280 gave states the “consent of the
United States” to voluntarily assume full jurisdiction over
crimes and civil causes of action occurring on an Indian
reservation, by state legislative act, “at such time and in such
manner” as the state decided. Pub. L. 83-280, 67 Stat. 588,
590 (1953). A state could therefore decline to assume
jurisdiction or assume only limited jurisdiction at its option.
Yakima Indian Nation, 439 U.S. at 499.
Washington assumed some of this Public Law 280
jurisdiction in 1963. Wash. Rev. Code § 37.12.010. The
State’s assumption of jurisdiction depended on the place of
the offense and the persons involved. Id. For offenses
committed by Indians on trust land within a tribe’s
reservation, the State assumed jurisdiction as to eight subject
matter areas: compulsory school attendance, public
assistance, domestic relations, mental illness, juvenile
delinquency, adoption proceedings, dependent children, and
6 CONFEDERATED TRIBES V. YAKIMA COUNTY
operation of motor vehicles. Id. 1 But as to reservation lands
held in fee, the State assumed criminal and civil jurisdiction
for offenses committed by or against Indians, see Yakima
Indian Nation, 439 U.S. at 475–76, 2 which represented an
addition to the jurisdiction the State already had over crimes
involving only non-Indians on reservation land, Oliphant,
435 U.S. at 212. Based on this legislation, the State had the
same jurisdiction on fee lands within Indian reservations as
it had anywhere else within Washington’s borders. Wash.
Rev. Code § 37.12.030.
Five years later, Congress authorized any state to
voluntarily give up “all or any measure of the criminal or
civil jurisdiction, or both,” that it had acquired pursuant to
Public Law 280—a process called “retrocession.” 25 U.S.C.
§ 1323(a). The President delegated the authority to accept
such a retrocession to the Secretary of the Interior, in
consultation with the Attorney General. See Designating the
Secretary of the Interior to Accept on Behalf of the United
States Retrocession by Any State of Certain Criminal and
Civil Jurisdiction Over Indian Country, 33 Fed. Reg. 17339-
01 (Nov. 23, 1968).
Washington did not elect to retrocede any jurisdiction to
the United States for several decades. But in 2012,
1
The Yakama Nation reassumed jurisdiction over two of these eight
areas—adoption proceedings and dependent children—under the Indian
Child Welfare Act, Pub. L. 95-608, 92 Stat. 3069 (1978), in 1980. Those
areas are not relevant to this appeal.
2
Reservation land may include both land held in trust, as well as
land held in fee. Trust lands are those lands that the United States “holds
in trust for an Indian tribe.” Penobscot Indian Nation v. Key Bank of
Maine, 112 F.3d 538, 546 (1st Cir. 1997). Fee lands, by contrast, are
lands owned by parties other than the United States. Id.
CONFEDERATED TRIBES V. YAKIMA COUNTY 7
Washington codified a process for retrocession, which is
defined as “the state’s act of returning to the federal
government” the jurisdiction obtained “under federal Public
Law 280.” Wash. Rev. Code §§ 37.12.160(9)(a)–(b).
Through this process, a tribe can request, via a petition, that
Washington retrocede its Public Law 280 jurisdiction to the
United States. Id. § 37.12.160(2). The State may then
“approv[e] the request either in whole or in part.” Id.
§ 37.12.160(4). If the request is approved, the Governor
must issue a proclamation. Id. The proclamation becomes
effective only once it is approved by the Secretary of the
Interior, in consultation with the Attorney General. Id.
§ 37.12.160(6); 33 Fed. Reg. at 17339.
The Yakama Nation availed itself of this process by
filing a retrocession petition in July 2012. In its petition, the
Yakama Nation requested, “pursuant to RCW 37.12,” full
“retrocession of both civil and criminal jurisdiction on all
Yakama Nation Indian country”—that is, the full
jurisdiction Washington had assumed on fee lands. The
Yakama Nation also requested that full jurisdiction be
retroceded on all but one of the remaining categories
covering lands held in trust—“mental illness.”
In early 2014, Governor Jay Inslee issued a three-page
Proclamation regarding the Yakama Nation’s petition. The
Proclamation recognized that the Yakama Nation was
requesting full retrocession of civil and criminal jurisdiction
obtained “under federal Public Law 280,” other than over
issues relating to “mental illness” or “civil commitment of
sexually violent predators” 3 “both within and without the
3
The State cannot, under its own retrocession procedures, retrocede
jurisdiction “over the civil commitment of sexual violent predators.”
Wash. Rev. Code § 37.12.170(1).
8 CONFEDERATED TRIBES V. YAKIMA COUNTY
external boundaries of the Yakama Reservation.” But the
Proclamation only granted the Yakama Nation’s request “in
part.” “Outside the exterior boundaries of the Yakama
Reservation,” Washington did not retrocede any jurisdiction.
Within “the exterior boundaries,” the Proclamation
“grant[ed] in part” the following:
1. Within the exterior boundaries of the
Yakama Reservation, the State shall
retrocede full civil and criminal jurisdiction
in the following subject areas of RCW
37.12.010: Compulsory School Attendance;
Public Assistance; Domestic Relations; and
Juvenile Delinquency.
2. Within the exterior boundaries of the
Yakama Reservation, the State shall
retrocede, in part, civil and criminal
jurisdiction in Operation of Motor Vehicles
on Public Streets, Alleys, Roads, and
Highways cases in the following manner:
Pursuant to RCW 37.12.010(8), the State
shall retain jurisdiction over civil causes of
action involving non-Indian plaintiffs, non-
Indian defendants, and non-Indian victims;
the State shall retain jurisdiction over
criminal offenses involving non-Indian
defendants and non­Indian victims.
3. Within the exterior boundaries of the
Yakama Reservation, the State shall
retrocede, in part, criminal jurisdiction over
all offenses not addressed by Paragraphs 1
and 2. The State retains jurisdiction over
CONFEDERATED TRIBES V. YAKIMA COUNTY 9
criminal offenses involving non-Indian
defendants and non-Indian victims.
(Emphasis added). 4
The State then sent the Proclamation to the Department
of Interior (“DOI”) with an accompanying cover letter from
Governor Inslee. In the cover letter, the Governor asked
DOI to accept the retrocession. But the Governor’s letter
also went a step further by attempting to clarify language in
the Proclamation. According to the Governor’s letter, the
usage of “and” in Paragraphs 2 and 3 to describe the parties
over which the State retained jurisdiction—like, for
example, the phrase “non-Indian defendants and non-Indian
victims” in Paragraph 3—was intended to mean “and/or,”
not just “and.” The letter asked DOI to make this intent
“clear in the notice accepting the retrocession
Proclamation.”
DOI accepted the State’s retrocession per the Governor’s
request. See Acceptance of Retrocession of Jurisdiction for
the Yakama Nation, 80 Fed. Reg. 63583-01 (Oct. 20, 2015).
But DOI’s published acceptance simply acknowledged that
the United States was accepting “partial civil and criminal
jurisdiction over the Yakama Nation which was acquired by
the State of Washington under [Public Law 280],” without
addressing the Governor’s proposal. Id. A letter sent to the
Yakama Nation the same day as the acceptance did address
the Governor’s proposal, however. Rather than opine on
which interpretation was correct, DOI stated that the
Proclamation was “plain on its face and unambiguous” and
4
The Proclamation does not mention the status of the land—that is,
whether it was held in fee or in trust; instead, it focuses on the “exterior
boundaries of the Yakama Reservation.”
10 CONFEDERATED TRIBES V. YAKIMA COUNTY
that if a disagreement developed “as to the scope of the
retrocession,” a court could “provide a definitive
interpretation of the plain language of the Proclamation.”
The retrocession became effective several months later, on
April 19, 2016. 80 Fed. Reg. at 63583.
Since this time, various interpretations of the
Proclamation have been offered. The day before
retrocession became effective, the United States Attorney for
the Eastern District of Washington sent an email to various
state and federal officials taking the position that the State
retained jurisdiction only over criminal actions in which no
party is an Indian. Then, in November 2016, DOI’s
Principal Deputy Assistant Secretary for Indian Affairs took
the same position, without any substantive analysis, in a
memorandum titled “Guidance to State, Local, and Tribal
Law Enforcement Agencies on Yakama Retrocession
Implementation.”
Almost two years later, in March 2018, the Washington
Court of Appeals interpreted the text of the Proclamation and
reached the opposite conclusion—that when the
Proclamation is considered as a whole, the use of “and” in
Paragraph 3 means “or.” State v. Zack, 413 P.3d 65, 69–70
(Wash. Ct. App. 2018), review denied, 425 P.3d 517 (2018).
Then, a few months after the Zack decision, the United States
Department of Justice’s Office of Legal Counsel (“OLC”)
sent a 17-page memorandum to DOI analyzing the historical
background of retrocession and concluding, based on the
text and context of the Proclamation as well as extrinsic
evidence, that “and,” when considered with the “in part”
language in Paragraphs 2 and 3, must mean “or.” DOI
eventually rescinded the 2016 DOI guidance and replaced it
with the OLC memorandum.
CONFEDERATED TRIBES V. YAKIMA COUNTY 11
B
Before long, the dispute concerning the scope of
retrocession as set forth in the Proclamation came to a head.
In September 2018, police officers for the City of
Toppenish—which is located within the exterior boundaries
of the Yakama Indian Reservation and within Yakima
County, Washington—were investigating a stolen “bait car”
owned by the County. They tracked the car to an address
located both within the City and the Reservation, requested
assistance, and Yakama Nation police officers responded to
the scene.
Upon arrival, only the passenger of the car was there, and
she identified herself as a member of the Yakama Nation.
Despite objections from the Yakama Nation officers that the
Toppenish officers had no jurisdiction because the passenger
was a member of the Yakama Nation, the Toppenish officers
arrested the passenger and questioned her at the Toppenish
police station. The Toppenish officers also searched the
nearby home, which was owned by a member of the Yakama
Nation. They then obtained a search warrant to do a further
search of the home, over objections from the Yakama Nation
police officers that there was no probable cause to do so.
The next month, the Yakama Nation filed suit against the
City of Toppenish and Yakima County (the “Defendants”).
In its complaint, the Yakama Nation challenged the State’s
jurisdiction, pursuant to the retrocession, over criminal
matters involving Indians. Specifically, the Yakama Nation
sought a declaration that “Defendants do not have criminal
jurisdiction over alleged crimes occurring within the
Yakama Reservation when either the defendant or the victim
are an Indian.” The Yakama Nation also sought “a
preliminary and permanent injunction” “enjoining
Defendants from exercising criminal jurisdiction over
12 CONFEDERATED TRIBES V. YAKIMA COUNTY
alleged crimes occurring within the Yakama Reservation
whenever either the defendant or victim are Indian.”
Two months later, the Yakama Nation filed a motion for
a preliminary injunction, which was converted to a motion
for a permanent injunction with the parties’ consent. The
district court held that the Yakama Nation had Article III
standing. The court held, however, that the Yakama Nation
had not shown “actual success on the merits” because the
Proclamation’s retrocession of criminal jurisdiction “in part”
would not make sense if the State had “retroceded all
criminal jurisdiction assumed under Public Law 280,” as the
Yakama Nation argued. The district court therefore denied
the permanent injunction and entered judgment, and this
appeal followed.
II
We first address Article III standing, which we review
de novo. Arakaki v. Lingle, 477 F.3d 1048, 1056 (9th Cir.
2007). To establish standing, a plaintiff must demonstrate
“(1) a concrete and particularized injury that is ‘actual or
imminent, not conjectural or hypothetical’; (2) a causal
connection between the injury and the defendant’s
challenged conduct; and (3) a likelihood that a favorable
decision will redress that injury.” Pyramid Lake Paiute
Tribe of Indians v. Nev. Dep’t of Wildlife, 724 F.3d 1181,
1187 (9th Cir. 2013) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)). At the pleading stage, we
“must accept as true all material allegations of the complaint,
and must construe the complaint in favor of the complaining
party,” Warth v. Seldin, 422 U.S. 490, 501 (1975), to
determine whether the nonmoving party has “clearly
allege[d] facts demonstrating” each element of standing,
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(internal quotations marks and alterations omitted).
CONFEDERATED TRIBES V. YAKIMA COUNTY 13
The Yakama Nation has met this standard here. The
injury it asserts—infringement on its tribal sovereignty and
right to self-government as guaranteed by treaty—is
sufficiently concrete, particularized, and imminent to show
injury in fact. Moe v. Confederated Salish and Kootenai
Tribes of Flathead Reservation, 425 U.S. 463, 468–69 & n.7
(1976) (recognizing a “discrete claim of injury” to “tribal
self-government” sufficient to “confer standing” in a case
involving Montana’s imposition of taxes on “motor vehicles
owned by tribal members residing on the reservation”); see
also Mashantucket Pequot Tribe v. Town of Ledyard,
722 F.3d 457, 464 (2d Cir. 2013) (finding injury in fact
based on “measurable interference in the Tribe’s sovereignty
on its reservation”). Moreover, the claimed injury is “fairly
traceable” to the Defendants and “likely to be redressed” by
an injunction prohibiting Defendants from exercising
criminal jurisdiction over Indians or by a definitive
interpretation of the Proclamation. Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 125 (2014).
The Yakama Nation therefore has Article III standing.
III
Next, we address the district court’s decision to deny the
Yakama Nation’s request for a permanent injunction. To be
entitled to a permanent injunction, a plaintiff must
demonstrate (1) “actual success on the merits”; (2) “that it
has suffered an irreparable injury”; (3) “that remedies
available at law are inadequate”; (4) “that the balance of
hardships justify a remedy in equity”; and (5) “that the public
interest would not be disserved by a permanent injunction.”
Indep. Training & Apprenticeship Program v. Cal. Dep’t of
Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013). Here,
we need only address the “actual success on the merits”
element—specifically, the scope of retrocession based on
14 CONFEDERATED TRIBES V. YAKIMA COUNTY
our interpretation of the Proclamation—and we review the
district court’s legal conclusions as to that interpretation de
novo. Ting v. AT&T, 319 F.3d 1126, 1134–35 (9th Cir.
2003) (holding that “any determination underlying the grant
of an injunction” is reviewed “by the standard that applies to
that determination”); Artichoke Joe’s Cal. Grand Casino v.
Norton, 353 F.3d 712, 719 (9th Cir. 2003) (noting that
“questions of statutory interpretation” are reviewed de
novo).
Our de novo review is informed by well-established rules
of interpretation. 5 First, we “determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). This determination
is made “by reference to the language itself, the specific
context in which that language is used, and the broader
context” of the statute or agreement, id. at 341, which can
include whether a proposed interpretation would render
certain words “meaningless,” United States v. Littlefield,
821 F.2d 1365, 1367 (9th Cir. 1987). If, based on these
criteria, we find the language ambiguous, we may “look to
other sources” to determine the meaning of the words in
5
We need not decide whether to apply federal or state law in
interpreting the Proclamation. As discussed below, the Proclamation is
susceptible to only one plausible interpretation regardless of which law
applies. Here, we cite principles of federal law because, were we to
apply state law, we would be bound to follow the Washington Court of
Appeal’s decision in Zack. Ryman v. Sears, Roebuck & Co., 505 F.3d
993, 995 (9th Cir. 2007) (“Where there is no convincing evidence that
the state supreme court would decide differently, a federal court is
obligated to follow the decisions of the state’s intermediate appellate
courts.”) (internal quotation marks omitted). We reach the same
conclusion under either analysis.
CONFEDERATED TRIBES V. YAKIMA COUNTY 15
question. United States v. Nader, 542 F.3d 713, 717 (9th
Cir. 2008).
We begin with the word “and” in the phrase “non-Indian
defendants and non-Indian victims” in Paragraphs 2 and 3 of
the Proclamation. 6 The most common meaning of the word
“and” is as a conjunction expressing the idea that the two
concepts are to be taken “together.” Webster’s Third New
International Dictionary 80 (2002). Thus, when “and” is
used to join two concepts, it is usually interpreted to require
“not one or the other, but both.” Crooks v. Harrelson,
282 U.S. 55, 58 (1930); see also 1A Norman J. Singer,
Statutes and Statutory Construction § 21.14 at 177–79 (7th
ed. 2009) (“Statutory phrases separated by the word ‘and’
are usually interpreted in the conjunctive.”) (emphasis
added).
But just because the ordinary meaning of “and” is
typically conjunctive does not mean “and” cannot take on
other meanings in context. See Encino Motorcars, LLC v.
Navarro, 138 S. Ct. 1134, 1141 (2018) (“context can
overcome the ordinary, disjunctive meaning of ‘or’”).
Indeed, “and” can also mean “or” in some circumstances.
Webster’s Third New International Dictionary 80 (2002)
(alternative six of the second definition of “and”: “reference
to either or both of two alternatives . . . esp[ecially] in legal
language when also plainly intended to mean or”). That is
why “courts are often compelled to construe ‘or’ as meaning
‘and,’ and again ‘and’ as meaning ‘or.’” United States v.
Fisk, 70 U.S. 445, 447 (1865); see also Bryan A. Garner, A
6
Because DOI’s acceptance of retrocession does not clarify or
interpret what the State retroceded, see 80 Fed. Reg. at 63583, we need
not determine how much weight to give an interpretive pronouncement
in an acceptance of retrocession.
16 CONFEDERATED TRIBES V. YAKIMA COUNTY
Dictionary of Modern Legal Usage 56 (3d ed. 2011) (noting
that courts sometimes “recognize that and in a given context
means or . . . .”); Black’s Law Dictionary 86 (6th ed. 1990)
(noting that “and” is “[s]ometimes construed as ‘or’”). In
fact, it is something we have already done. See Cal.
Lumbermen’s Council v. FTC, 115 F.2d 178, 184–85 (9th
Cir. 1940). In California Lumbermen’s Council, we
interpreted an order prohibiting a party from engaging in
activities “in connection with the purchase and the offering
for sale” of lumber as forbidding the acts “separately or
together” because that meaning was clear “when the order
[was] read as a complete article.” Id. at 185.
Examples of “and” used to mean “or” abound. For
example, a child who says she enjoys playing with “cats and
dogs” typically means that she enjoys playing with “cats or
dogs”—not that cats and dogs must both be present for her
to find any enjoyment. Similarly, a statement that “the Ninth
Circuit hears criminal and civil appeals,” does not suggest
that an appeal must have a criminal and civil component for
it to be properly before us. Nor would a guest who tells a
host that he prefers “beer and wine” expect to receive “a
glass of beer mixed with wine.” OfficeMax, Inc. v. United
States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J.,
dissenting). In each instance, the common understanding is
that “and,” as used in the sentence, should be construed as
the disjunctive “or.”
The same is true here when we examine “the broader
context” of the Proclamation, Robinson, 519 U.S. at 341, in
particular the Proclamation’s use of the term “in part” in
Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State
“retrocede[s]” criminal jurisdiction “in part,” but retains
“criminal jurisdiction” over “offenses involving non-Indian
defendants and non-Indian victims.” If “and” in those
CONFEDERATED TRIBES V. YAKIMA COUNTY 17
sentences is interpreted to mean “or,” the retrocession “in
part” makes sense. Under that interpretation, the State has
given back a portion of its Public Law 280 jurisdiction—
jurisdiction over crimes involving only Indians—but has
kept Public Law 280 criminal jurisdiction if a non-Indian is
involved.
Interpreting “and” in those Paragraphs as conjunctive,
however, does not give “in part” meaning. Under that
interpretation, the State has retroceded all jurisdiction that it
received under Public Law 280—that is, criminal
jurisdiction over all cases involving Indians. If that is the
case, Paragraphs 2 and 3 are no different than Paragraph 1,
which retroceded “full civil and criminal jurisdiction” over
certain subject matters. But that cannot be right, because
Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and
3 use the phrase “in part.”
At bottom, the Yakama Nation’s proposed interpretation
changes the Proclamation’s use of “in part” in Paragraphs 2
and 3 to “in full,” thereby rendering “in part” meaningless.
We must give “some significance” to “in part.” See In re
Emerald Outdoor Advert., LLC, 444 F.3d 1077, 1082 (9th
Cir. 2006) (requiring courts to interpret language “in a
manner that gives meaning to every word”) (internal
quotation marks omitted). And the only way to do so is to
interpret “and” as disjunctive. We therefore conclude that
the only plausible interpretation of Paragraphs 2 and 3 is to
read them as stating “criminal offenses involving non-Indian
defendants [or] non-Indian victims.”
The Yakama Nation argues that the “in part” language is
not meaningless under its interpretation because “in part”
was nothing more than an indication that the State was
preserving its “pre-Public Law 280 criminal jurisdiction
over non-Indian versus non-Indian crimes.” Aside from the
18 CONFEDERATED TRIBES V. YAKIMA COUNTY
problems with this interpretation discussed above, the
Yakama Nation’s explanation does not make sense in the
context of its request. Specifically, the Proclamation states
that “[t]he retrocession petition by the Yakama Nation
requests full retrocession of civil and criminal jurisdiction”
obtained “in 1963” and full civil and criminal jurisdiction
over the five areas listed in Washington Revised Code
§ 37.12.010, including “Operation of Motor Vehicles on
Public Streets, Alleys, Road, and Highways.” Given that the
Yakama Nation’s request was made in the context of Public
Law 280—not all state jurisdiction over crimes committed
on reservation land—it would make no sense for the
Proclamation to retrocede “in part” if it was actually doing
so “in full.” The Nation’s proposed interpretation therefore
not only renders “in part” meaningless but also ignores the
context of its own request for retrocession as set forth in the
Proclamation.
Moreover, the Yakama Nation’s argument that
“retrocede, in part” merely indicates that the State was
retaining pre-Public Law 280 jurisdiction ignores what
“retrocede” means under Washington law and in the
Proclamation. The statement “retrocede, in part” assumes
that the “part” that is not being retroceded can be retroceded,
but will not be. That logical conclusion works well if “and”
is interpreted as disjunctive because the “part” the State
retained is in fact jurisdiction it had authority to retrocede.
But if, as the Yakama Nation argues, the “part” retained
was merely pre-Public Law 280 jurisdiction, the use of the
word “retrocede” in the phrase “retrocede, in part” takes on
a meaning unsupported by both Washington law and the
Proclamation. Washington law defines “criminal
retrocession” as “the state’s act of returning to the federal
government the criminal jurisdiction acquired over Indians
CONFEDERATED TRIBES V. YAKIMA COUNTY 19
and Indian country under federal Public Law 280.” Wash.
Rev. Code § 37.12.160(9)(b) (emphasis added). And the
Proclamation was issued pursuant to that authority, to
“retrocede” “civil and criminal jurisdiction previously
acquired by the State . . . under Federal Public Law 280.”
As a result, the Yakama Nation’s interpretation would also
require us to conclude that the State incorrectly believed it
could retrocede pre-Public Law 280 jurisdiction but elected
to retain only that “part.”
In sum, only one interpretation of the Proclamation is
plausible because only one interpretation gives meaning to
every word. We therefore conclude, based on the
Proclamation as a whole, and to give the phrase “in part”
meaning, that the word “and” in the phrase “non-Indian
defendants and non-Indian victims” in Paragraphs 2 and 3
should be interpreted as the disjunctive “or.” Interpreted as
such, the State retained criminal jurisdiction in Paragraphs 2
and 3 over cases in which any party is a non-Indian.
Because there is only one plausible interpretation of the
Proclamation, we need not apply the canon of construction
that ambiguities be resolved “for the benefit of an Indian
tribe.” Artichoke Joe’s, 353 F.3d at 729. Nor need we look
to “other sources” to interpret the Proclamation. 7 Nader,
542 F.3d at 717. But even if we did, those sources would
support our conclusion.
7
We grant the Yakama Nation’s two motions to take judicial notice.
But given our conclusion that there is only one plausible interpretation
of the Proclamation, we need not consider any of the attached
documents. Nor would any of the documents change our conclusion that
the available extrinsic evidence generally supports our interpretation of
the Proclamation.
20 CONFEDERATED TRIBES V. YAKIMA COUNTY
The contemporaneous evidence strongly favors our
interpretation. Governor Inslee’s cover letter stating his
intention to retain jurisdiction where any party is a non-
Indian is consistent with the Proclamation’s unambiguous
language. Moreover, the Yakama Nation’s retrocession
petition requested full retrocession “over members of the
Yakama Nation pursuant to RCW 37.12.” The Yakama
Nation was therefore requesting only retrocession of Public
Law 280 jurisdiction. Interpreting the Proclamation’s partial
grant of retrocession as merely preserving pre-Public Law
280 jurisdiction does not make sense in light of the
retrocession petition.
Nor is there any contemporaneous evidence as of the
time retrocession was accepted that would change this
conclusion. The letter sent to the Yakama Nation upon
acceptance of retrocession takes no position as to the proper
interpretation of the Proclamation. Instead, it states that DOI
will not provide an interpretation of the scope of retrocession
and that, if a dispute arises, “courts will provide a definitive
interpretation of the plain language of the Proclamation.”
And the formal notice of acceptance of retrocession is
similarly neutral, indicating only that the United States
accepted “partial civil and criminal jurisdiction over the
Yakama Nation.” 80 Fed. Reg. at 63583.
Moreover, interpretations of the Proclamation since it
was accepted further support our interpretation. The
Yakama Nation points to a now-rescinded 2016 DOI memo
stating that the State retained “jurisdiction only over civil
and criminal causes of action in which no party is an Indian”
and an email from the United States Attorney for the Eastern
District of Washington. But neither document provides
independent reasoning to support its conclusion. By
contrast, in Zack, the Washington Court of Appeals
CONFEDERATED TRIBES V. YAKIMA COUNTY 21
concluded, in a well-reasoned opinion, that “and” was
properly read as disjunctive when read in the context of the
whole Proclamation. 413 P.3d at 69–70. Similarly, in an
opinion that overrode all prior federal analysis and
interpretation of the Proclamation, the OLC memorandum
analyzed the entire Proclamation and the history surrounding
retrocession, and concluded that, read in the proper context,
“and” means “and/or.”
IV
In sum, we hold that, under the Proclamation, the State
retained criminal jurisdiction over cases in which any party
is a non-Indian. Based on this holding, we find that the
Yakama Nation has not shown “actual success on the merits”
so as to justify a permanent injunction. We therefore affirm
the district court.
AFFIRMED.