Klickitat land dispute continues

According to Klickitat County Board of Commissioners Chair Dave Sauter, the county has three options to consider: they can either petition the U.S. Supreme Court, petition for a rehearing by a full panel of judges from the circuit court, or let the ruling stand as is.

The three parties to the suit — the Klickitat County Board of Commissioners, the Klickitat County Sheriff’s Office, and the Klickitat County Prosecuting Attorney’s Office — will be holding a public meeting at the Glenwood High School, 6 p.m. on August 17, to gather input from residents affected by the court ruling on which way the county should proceed.

The county has already begun preparations for an extended legal clash over the boundary. According to court documents, Klickitat County filed a “petition for panel hearing and rehearing en banc” with the Ninth Circuit late last month, showing that the county has asked the circuit court for a rehearing with a full panel of judges. Sauter said the county filed the petition with consideration to short deadlines.

“You almost have to do it concurrently,” Sauter said, referring to the two legal avenues the county could go down should they choose to do so.

One basis of the county’s argument for a rehearing concerns the “Pisco-Klickatat Divide,” where in the Treaty of 1855 — which allowed for American settlement in the lands originally belonging to native tribes —describes the southern boundary of the reservation, the county asserted.

The critical passage of the 1855 Treaty reads: “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. (Emphasis added by the circuit court in their June 11 opinion).

The county argued in the July 26 petition that the three-judge panel’s opinion “fundamentally rewrites the Treaty” by adopting a boundary 15 miles south of the Pisco-Klickatat Divide, an area of land between what are now known as Toppenish creek and the Klickitat River.

Rice, in his 2019 opinion, “found that no ‘spur’ between the waters of the Klickatat and Pisco Rivers exists south of Mount Adams,” according to the circuit court’s opinion, and crucially, given a legal precedent that grants favor to tribes in legal conflicts relating to ambiguity in boundary lines, the circuit court reaffirmed the tribal claims to Tract D.

The law, and its effect

Under the ruling, residents within Tract D, including in the community of Glenwood, have found themselves living within tribal borders, which may call into question certain decision-making in the future.

Sauter, who represents residents living in much of the land in question, stated in an interview that “for all practical purposes, Glenwood valley is on reservation because there’s no injunction against the implementation.”

The county is currently interpreting the ruling that the boundary belongs to the tribe while the jurisdiction is in the hands of the County, Sauter said. It could create some complicated situations.

“Part of dilemma that were faced with, is we don’t really know how that will shake out when it comes to everyday decisions,” Sauter said.

Until more guidance comes out from the state and other authoritative sources, “we’re processing things as normal,” he said. That includes permitting processes and other matters where the county has the final say. When it comes to decisions where the state has input, namely water rights, the tribe has become a party in decision-making where they weren’t before.

Klickitat PUD General Manager Jim Smith said that Glenwood’s community water system has seen an increase in usage in recent months, prompting the utility to seek either an additional water right or an extension to an existing one.

Before the ruling, Smith said the utility’s traditional route would be to go through the Department of Ecology, which would either approve or deny such permit applications.

After the ruling, Smith said he initiated a meeting with tribal officials to discuss increasing Glenwood’s water intake. Smith said the Department of Ecology told him they would defer to the tribe in areas within Tract D. And “indications are they’re interested in helping us serve the community,” he said.

How the ask for an increase to sustain water growth plays out remains to be seen, but it’s worth nothing that Smith cited a “fairly large facility” owned by the tribe that is a major water user in the community. As well, tribal members reside in Glenwood and the larger Glenwood Valley, according to Phil Rigon, Deputy Director of Yakama Nation Department of Natural Resources, cited in a 2020 honor thesis by James H. Baker, which explores indigenous decolonial efforts in the Yakama Reservation.

On criminal jurisdiction, the Klickitat County Sheriff’s Office has indicated that they will continue to respond to incidents within Tract D, but whether the parties they are responding to are native or non-native will make a difference between arresting or detaining a suspect. Tribal authorities will respond to native members, and in situations involving a native minor, they will also be subject to response from tribal law enforcement.