Barred From the Court: US Indian Law = Imperial Relic

JoDe Goudy outside the Supreme Court. Photo credit: Patrick Sales.

On Sept. 24, 2018, the Yakama Nation joined in a case before the US Supreme Court and submitted an amicus curiae (friend of the Court) brief in the case of Washington State Department of Licensing v Cougar Den, Inc.

The Yakama Nation is seeking to get the Supreme Court to rule against the unusual State of Washington’s Appeal of a Washington State Supreme Court decision. In this case the Washington Court held that the government was not entitled to charge Cougar Den, a fuel distribution company owned by Yakama Nation members, $3.6 million in fuel taxes.

The tribe contends that Article 3 of the Yakama Nation Treaty of 1855 disallows such taxes and fees based on the Treaty’s provision guaranteeing the right to trade and travel public roads. The State says that the Treaty can be overridden by state laws and cite a string of Indian Law cases based on the 1500s Doctrine of Christian Discovery as backing the State’s claim.

The Doctrine of Discovery comes from a series of Papal pronouncements (“Bulls”) at the time of Columbus that hold that anytime a “Christian” explorer comes across lands inhabited by “heathens,” the Christian has the right of “Dominion” over those lands and their inhabitants.

This colonial conceit the State’s case is based upon was also the basis for the 1823 case Johnson v. McIntosh which quoted exactly the Christian explorer and heathen outcome the Doctrine laid out and has been the basis for Indian Law in the US ever since. The Court wrote, “the rights to complete sovereignty were necessarily diminished by the original fundamental principle that discovery gave title to those who made it.”

Chief Justice John Marshall stated that based on the Doctrine, the US had the same right to the claim of “ultimate dominion” and “absolute title” that European monarchs claimed. Under the Doctrine, the Court ruled that, “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign–first the discovering European nation and later the original States and the United States.”

The Yakama Nation begs to differ – that the time for Native claims to be settled based on an odious Imperial justification has long passed and oral arguments were presented to the Court October 30th.

Enter, or not, Chairman JoDe Goudy

Forty-two-year-old family man/Longhouse spiritual adherent JoDe Goudy is the elected Chairman of the Yakama Nation. He has been front and center challenging the Doctrine of Discovery. JoDe (Joe-Daay) has long worked to ally with Native Nations across the planet in the effort to get the Doctrine rescinded. He and the Yakama Nation were deeply involved with the efforts at Standing Rock. The Yakama sent semis of food, firewood, blankets, etc., tribal attorneys and PR people to the cause and a couple hundred NW river people went and stayed in the encampment there.

JoDe and his allies have been personally building tiny houses on the Yakama Nation to house elders, as elder housing is a large issue in Indian Country. On his watch, the tribe was able to purchase the local electrical power provider and now provides cheaper power to tribal members through their own Yakama Power Company. He has worked to reform the hydroelectric system of the NW, placing more emphasis on the needs of migrating fish and other species. He is intimately involved in his children and their peers educations and sports. He governs under the Native value of how will any decision impact seven generations down the road.

JoDe has a photo of his grandfather’s fishing scaffold at Celilo Falls on the wall of his office. The falls, a place of great cultural significance to the Yakama and related river bands (Wyam, Wasco, T’ygh), is a nine-mile stretch of falls and rapids on the Columbia River, the NW largest river. Celilo Falls once was THE major fishing and trading site in the Northwest – up to 30,000 from all over the continent would gather there when the salmon were running, The Falls were inundated in 1957 by The Dalles Dam, greatly diminishing the salmon fishery and trading site that had thrived for over 15,000 years. Ken Kesey’s great novel One Flew Over the Cuckoo’s Nest has Celilo imbedded in it– Chief Broom was haunted by the loss of the Falls and that led to his condition and McMurphy’s audacity helped cure the Chief’s melancholy. Kesey hated the movie for minimizing the Chief.

Goudy even went directly to the Pope and asked him to rescind the Doctrine! So, it was a natural for the Yakama to intervene in this case and natural for Chairman Goudy to be there for the oral arguments.

Would they BOTH be denied access to the Supreme Court?

On October 30th, JoDe arrived at the Court for the oral arguments and was denied access because he was wearing his traditional spiritual clothing. The Court gendarme specifically took issue with his eagle feather bonnet as an attention-seeking distraction. JoDe was not about to submit and remove his bonnet as, under the circumstances, that would be a grave sacrilege. So, he was left out, looking in.

“Yakama Nation treaty case is on trial at the Supreme Court today. I cannot wear my traditional regalia before the Supreme Court for the reasons that were stated, but I refuse to take off my traditional regalia,” Goudy said.

“The main overall thing is we do not want to draw attention to a particular case or to a particular litigant in the case so the court is not influenced by that,” the guard told Goudy in this video.

It is incredibly disrespectful for the elected leader of a sovereign nation to be treated this way. It is an even greater abomination that the institutional racism of Doctrine of Discovery-based adjudication is still used against Native claims in the US courts and elsewhere. We must get in line with the principle of international law that holds “first in time; first in right.”

It is way beyond time to rescind the decisions of 1500s Christians that hold that “heathen” “infidel” nations are automatically inferior to conquering Christians and their governments. And, it is way beyond acceptable that citizens are denied access to government facilities based on the wearing of religious garb.

MICHAEL DONNELLY admits this is also personal. JoDe is part of a great family of spiritual and civic leaders that Michael is good friends/allies with. He can be reached at pahtoo@aol.com Chairman Goudy can be reached/followed on Facebook.


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MICHAEL DONNELLY has been an environmental activist since before that first Earth Day. He was in the thick of the Pacific Northwest Ancient Forest Campaign; garnering some collective victories and lamenting numerous defeats. He can be reached at pahtoo@aol.com

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