A filing error put more than 90,000 acres of Yakama Nation land in the hands of Washington state

It was barely a choice. In 1855, a time when the ink of border lines on United States maps had scarcely dried, Yakama Chief Kamiakin was told to sign over the land of 14 tribal nations and bands in the Pacific Northwest — or face the prospect of walking “knee deep” in the blood of his people.

Legend has it that, when he put pen to paper, he was so furious he bit through his lip.

By signing, he ceded over 10 million acres across what is now known as Washington state. In return, the Yakama Nation was allowed to live on a reservation one-tenth the size of their ancestral lands, about 100 miles southeast of Seattle.

But the story doesn’t end there. The treaty map was lost for close to 75 years, misfiled by a federal clerk who put it under “M” for Montana.

With no visual record to contradict them, federal agents extracted even more Yakama land for the nascent state, drawing new boundaries on new maps. One removed an additional 140,000 acres from the reservation, another about half a million, and still other versions exist.

By the time the original map was discovered in the 1930s, it was too late. Settlers had already made claims well within reservation boundaries, carving the consequences of this mistake into the contours of the land. Non-Native landowners remain to this day.

The Yakama want that land back. Most tribal members know the story of Kamiakin and his bloodied lip when he signed the treaty. Ask Phil Rigdon, a Yakama citizen and nationally recognized forester. As the superintendent of the Yakama Nation Department of Natural Resources, he deals with a medley of issues, but his most important work is getting the reservation land back. After working on this for nearly 20 years, he knows that it takes time and an entire community to make the progress they want.

“It’s a family thing for us, as we do this business,” he said.

Pushed up against the eastern slopes of the Cascade Range mountains, the Yakama reservation is over a million acres — but not all of it belongs to the tribe. The primary non-tribal landowner on Yakama Nation is the state of Washington, which owns close to 92,000 surface and subsurface acres of state trust land within the reservation’s boundaries, in addition to other types of land holdings. 

As part of the Enabling Act of 1889, the federal government gifted tracts of land to states when they graduated from territories to join the Union. These parcels, known as state trust lands, are considered resources in perpetuity: States can sell or lease these lands to make money from grazing, timber, and other activities. The profit is then used to fund a state’s institutions: universities, jails, hospitals, and, especially, public schools. 

These lands can be a meaningful revenue source. A Grist investigation from earlier this year found that state trust lands across the Western U.S. that send money to land-grant universities paid out about $6.6 billion dollars from 2018 to 2022.

Washington’s state trust lands, including those on the Yakama reservation, are managed by its Department of Natural Resources, or DNR. The state is eager to return the lands back to the tribe; it recognizes that a return would both complete the Yakamas’ ownership of the reservation and support the region’s environmental health. However, the state’s efforts are dictated by legal policies and priorities that ensure the land is exchanged only on the condition that Washington is compensated for the lands’ value, even though it was wrongfully taken.  

Grist has reported on over 2 million acres of state trust lands that exist within the borders of 79 reservations across the Western U.S. Our investigation has shown that extractive industries, like mining, logging, and oil and gas drilling, operate on that land that generates billions of dollars for state entities. But the Yakama Nation’s history with state lands is singular in its legal morass. 

When the treaty map was “misfiled,” two main areas on the reservation were repeatedly depicted as non-tribal land on incorrect replacement maps. One is along the northern border of the reservation, known as Tract C. The other is Tract D, in the reservation’s southwestern corner. 

Today, nearly 71,500 acres of surface and subsurface state trust lands on Tract D, and 19,700 acres on Tract C, send revenue to Washington’s institutions, mostly benefitting public K-12 schools. The map the Washington DNR uses to reference the Yakama reservation still marks Tract C as a “disputed area.”

The boundary errors have been acknowledged by authorities ranging from Harold Ickes, the Secretary of the Interior during the Franklin Roosevelt administration in the 1930s, to former President Richard Nixon in the 1970s.

But none of these acknowledgments were legally binding, said attorney Joe Sexton of Galanda Broadman law firm, based in Washington. That is, until the 2021 9th U.S. Circuit Court case of the ​​Confederated Tribes and Bands of the Yakama Nation v. Klickitat County, for which Sexton and Galanda Broadman, along with attorneys for the tribe led by Ethan Jones, argued the Yakamas’ case. 

It started with a jurisdictional dispute over a criminal prosecution: In 2017, Klickitat County arrested a minor and enrolled tribal member for a crime in Tract D. The county claimed that the tribe had no jurisdiction over Tract D, since it wasn’t reservation land; the tribe declared the opposite. The Yakama Nation sued Klickitat County for stepping outside its jurisdiction; the county argued that Tract D was not included when the reservation was created. Sexton’s job was to prove that it was.  

“If they had lost this, they would’ve really been brokenhearted about the fact that future Yakamas would not be able to consider this part of their reservation,” Sexton said. 

With Sexton’s argument about interpreting and honoring treaty language, the Yakama Nation ultimately won the case, confirming that Tract D was and had always been a part of the reservation, within the original boundaries. This was further validated when, the following year, the U.S. Supreme Court rejected the county’s appeal against Yakama Nation. The case also set a meaningful precedent for how the Tract C boundary, which has had no such adjudication, might be approached in court, Sexton said. 

While the court’s decision was monumental, it did nothing to address the continued existence of state trust lands on the reservation.

Under the U.S. Constitution, federal treaties with tribal nations, as with other sovereign entities, are considered the supreme law of the land. Washington also has its own state Supreme Court decision, which expressly holds that tribal treaties are binding law. The Treaty with the Yakama of 1855 precedes the federal 1889 Enabling Act that distributed state trust lands, so it should have precedence. In other words, because the treaty was signed first, the subsequent expansion of state trust lands on Yakama land, due to incorrect maps, shouldn’t have happened. 

“The Treaty of 1855 trumps it,” Sexton said. “There’s no question about that.”

But because of how Western property law works, the state has legitimate legal claim to those lands. 

It goes back to how the U.S. perceived its right over the land upon which it was building itself: Empowered by the Doctrine of Discovery, a Catholic decree authorizing colonial powers to claim land, the government decided that all of the land and everything on or under it was federal property until it was turned into a state, or national park, or reservation. Whoever had the property deed, which was initially held and then granted by the federal government, was in charge. And deeds are the key to ownership, Sexton said, seen to be almost as powerful as treaties, even though they’re not listed in the Constitution. 

So despite the fact that the U.S. gave away Yakama land to which it no longer had any right, because it fell within the bounds of the reservation, the federal government’s distribution of trust lands to Washington state is still recognized as a legal transaction. 

Washington has the ability to decide how these trust lands are handled. But because so much time has passed since the state’s inception in 1889, generations of settlement and ownership have been established in the area, and state beneficiaries have come to count on trust lands as a revenue source — which means it is unlikely that Washington would return the trust lands on the reservation to the tribe without some form of compensation. 

“State officials, they’ll claim that the law ties their hands. But I don’t know that it does,” Sexton said. “And if it does, they’re certainly not working to change the law in any actual way.”

The October sun shone through fall-colored leaves above the truck Phil Rigdon drove into the forests of Tract D. Along a rolling ridgeline, he pointed out groves of pine stands. 

“We call this area Cedar Valley, even though there’s no cedars here,” Rigdon said, gesturing out the window. “It was the homesteaders that called it Cedar Valley. And so I don’t know why it stuck.”

Rigdon stepped into the superintendent role for Yakama Nation’s Department of Natural Resources in 2005, coming with a bachelor’s degree in forest management from the University of Washington and a master’s degree from the Yale School of the Environment. He steers land management across the entire reservation. But before that, Rigdon was a forester. In these backroads, he recognized copses of trees he once knew as saplings he planted decades ago, now stretching 40 feet tall. 

“You never think you grow up, but holy shit,” he said. “Now you’re like the big trees, you’re the old growth.” 

Driving through Tract D, there was a clear contrast between different parcels of the forest. Some were densely packed or dotted with stumps — those owned and managed by the state or private interests. The forest on tribal land, meanwhile, was thinned out, full of mature trees with thick trunks. Branches stretched into air. Thinning out trees has many purposes: It decreases the material that feeds wildfires, it enables a more complex plant system, and it slows the spread of insects and disease. It creates a healthier forest. 

Both the state and private industry harvest timber more aggressively than the tribe, though Rigdon acknowledged that the state manages forest much better than private industry, which does more clear-cutting. After all, the state DNR must manage state trust lands so that schools and other institutions receive revenue years into the future. 

This isn’t to say the tribe doesn’t log. They cannot tax people, as a tribe, so they harvest enough to help fund their government institutions, which partly depend on timber as a revenue stream. But the Yakamas’ approach is to view land as a continuum, to be managed for the very long run. They pay attention to the overall environment, making decisions based on what allows the entire ecosystem to work as it should. Their harvesting practices double as a way of maintaining forest health — the priority over revenue generation. 

“What we leave on the ground actually is usually more valuable than what we take,” Rigdon said. 

The tribe values land for more than its potential economic worth: There is kinship, memory, medicine.

Like when Joe Blodgett, a tribal member and Rigdon’s cousin, described the Klickitat Meadow, he didn’t bring up the golden grass or jagged peaks on the horizon. He talked about weekends fishing with his dad. Klickitat Meadow is in the Tract C part of the reservation, checkerboarded with state trust lands and tucked up in the mountains behind roads that require four-wheel drive. This area, and others like it, is where Blodgett and other members of Yakama Nation learned to gather food and about their connection to the land. 

“It gets back to the importance of what our resources are offering us,” Blodgett said. “They’re making a sacrifice, they’re making that offering. And we’ve got to appreciate that.”

Blodgett manages the Yakima Klickitat Fisheries Project, a tribal initiative that works on restoring sustainable and harvestable fish populations. His work involves overseeing environmental restoration projects, like in the Klickitat Meadow, which has been far too dry. A warmer climate played a part in this, but the full reason is more nuanced. A history of state-sanctioned sheep grazing permitted on adjacent state trust lands led to grazing on the meadow that never should have happened. Large herds, which wouldn’t normally be in the area, compacted the dirt so much that water can no longer percolate into the ground to feed the streams and rivers that start in mountain meadows like this. 

Actions that damage the environment in seemingly small ways add up, Blodgett said. Scale matters. But by the same token, small environmental mitigation practices also add up to meaningful improvements. In a meadow stream nearby, for example, the tribe has built human approximations of beaver dams that slow the water and help it absorb into the ground. Solutions like these are called “low tech,” but the simplistic name belies their necessity for other projects to succeed.  

For example, the U.S. Army Corps of Engineers is ready to move forward with the removal of the Bateman Island Causeway, an unauthorized, artificial land bridge in the Columbia River that connects Bateman Island to the shore. Tribes have long advocated for its removal, given its disturbance to the surrounding ecosystem. Removing it will restore fish populations off the reservation, but Blodgett said the situation won’t get better without cold water coming down from the mountain streams on the reservation. That’s where the low-tech fixes come in.  

“They’re equally important,” Blodgett said of the low-tech fixes and bigger infrastructure projects. “You’re going to see the biggest bang out there when you pull that causeway out. But if [fish] don’t have these types of systems to go back to, you’re just going to continue to spin your wheels.”

Climate change adds pressure to the Yakamas’ environmental restoration efforts. Because the effects of a rapidly changing environment are becoming more prevalent, Blodgett and other Yakama experts know that they have to take faster, bigger action to stay ahead of and be resilient to even harsher future conditions. It will require landscape-scale restoration projects, more sustainable management of forests, and smarter water- and land-use practices — big projects for which the Yakama Nation would need cohesive control over its reservation, without pockets of state or private ownership. 

The Yakama Nation has a plan for land reclamation. The tribe began buying land back from companies and private landowners in the mid-1990s, returning close to 40,000 acres. One of the bigger single acquisitions was a deal with a private landowner to buy back roughly 7,500 acres in Tract C for about $5 million. But the remaining 19,700 surface and subsurface acres of state trust land in Tract C have proved to be elusive; the tribe has been negotiating to reacquire those lands for over 20 years. 

The complications come from the Enabling Act rules that govern Washington state’s financial responsibility to its beneficiaries: The state cannot lose money from state trust lands. In practice, were the state to return trust lands to Yakama Nation, it would need to be paid however much that land is worth, or receive land that is the equivalent value of what they exchange. Without that compensation, public schools and other institutions will feel the financial pinch. 

Between 2021 and 2023, the state trust lands within Yakama reservation generated $573,219.85 — which is .16 percent of all the revenue that state trust lands across Washington state produced in that same time period.

Washington does have one avenue for transferring state trust lands from the DNR to other entities, as long as those lands are deemed financially “unproductive.” The Trust Land Transfer program’s benefit is that the state legislature funds land exchanges, instead of an entity, like a tribe, buying it back. But you have to have a legislature willing to do that. It’s a unique program, one that the DNR says they operate in the spirit of collaboration with the tribes. 

The state trust lands on Tract C are eligible for this program and are on the final list of this year’s proposed transfers, with “minimal long-term revenue potential.” The state DNR has requested $15 million from the state legislature to return roughly 9,900 surface acres to the tribe. Per state policy, the state would retain the rights to any subsurface materials under these lands, even if the surface rights go to the tribe. The DNR would use the payment money to purchase new lands in place of the transferred trust lands, to continue supporting beneficiaries.

Comparatively, Tract D, which courts confirmed is a part of the Yakama reservation, is still productively generating revenue and not eligible for the Trust Land Transfer program. The legislature could theoretically fund a direct transfer to compensate the DNR and its beneficiaries for the Tract D state trust lands, but that would be a hefty price tag. So, instead, the state has brought in the federal government to facilitate an exchange, given that it has more resources and holds so much land in the area. The DNR has identified federal lands off reservation that they want and now it’s a matter of negotiation, said Commissioner of Public Lands Hilary Franz. 

“The reason this situation exists is because the federal government created a situation of injustice to the tribes. To right the situation doesn’t mean you create a wrong,” Franz said, explaining that giving those trust lands away without an exchange would unfairly take revenue away from schools and other beneficiaries. “It means, federal government, you made the wrong allocation of lands to the state for trust lands, when it should have gone to the tribe. Now, correct that … and you make the tribes whole and you make our schools whole.”

Franz said that if the legislature doesn’t approve funding for the Tract C Trust Land Transfer — though she is confident they will — the DNR would likely approach it in the same way as Tract D, negotiating with the federal government for a direct transfer. Otherwise, the alternative would be the arduous process of amending the state constitution and federal Enabling Act. But, Franz said, that’s too hard. 
Hard, but not impossible. Section 11 of the 1889 Enabling Act, dealing with lands granted to support schools, has been amended eight times, most recently in 1970. Washington’s state constitution has been amended 109 times, one of the most recent in 2016 for a redistricting issue.

The state legislature will decide whether or not to fund the Tract C trust land transfer in the spring of 2025. But no matter how the issue of trust lands is resolved between the Yakama Nation and Washington state, it sets a meaningful example for tribes on the 78 other reservations where trust lands exist.

One cool morning last October, about 170 years after the Yakama treaty signing, a crowd of about 90 people gathered in a dusty clearing next to the Klickitat River on the southwest corner of the Yakama reservation, in Tract D. Cupped by pine-covered hillsides, they were there to commemorate the groundbreaking of long-awaited upgrades to the Klickitat Hatchery.

It had been run by the state until 2006, when it was turned over to the tribe; tribal members have managed it back to health, holding things together with duct tape and determination. Over the low rumbling of river water, representatives from the county, state, federal, and tribal governments praised the collaborative effort that had gone into restoring the hatchery.

The tribe was also celebrating the forthcoming return of the land the hatchery is located on. On December 13, Washington state transferred the title to the 167 acres and all the hatchery facilities from the state Department of Fish and Wildlife, or DFW, to the Yakama Nation.

Bill Sharp, coordinator for Yakama Nation Fisheries’ projects, has worked on environmental restoration projects for 35 years. He’s white, a non-tribal member. To him, navigating the title transfer with the DFW has been faster and easier than land transfers with the state DNR. The presence of state trust lands on the reservation, he said, is an insult to injury.

“Can you just clean the slate, say, ‘Our bad, here it is, all back’? That’s how it should go,” Sharp said, about the state trust land return efforts. “But the way things were funded, and the easements and restrictions that white people put on top of that — those things just really get in the way of doing what’s right.”

What is the right way to settle an injustice? Who is justice for? Rigdon, Blodgett, and other Yakama experts working on this issue know that land return is a long game, even on their own reservation. They’re in it for the very long haul, which means that each new challenge is just another day — and that every win, like with the hatchery, is cause for celebration. 

“I’ve always had the opinion that you can never lose if you never stop trying,” said Sharp. “So as long as the Yakama are here, and they live and breathe, they’re going to keep fighting to protect the resources that sustain their lives. And we all benefit from that, everyone, whether you’re a tribal member or not.”

At the end of the ceremony, the faint smell of a warm, fresh salmon meal slipped into the air, prepared by Yakama staff for the festivities. After the closing speeches, the crowd moved like a wave, chattering about this and that while they waited in a winding line. A row of tables held trays of salad, salmon, bread, and grapes. Folks from state and federal organizations sat with their tribal counterparts, full plates in hand. The Klickitat County commissioner was there, her presence marking a fresh page in the tribal-county relationship. 

Kids squirmed in plastic chairs before bolting across the grass to play between bites. The salmon was simple and smoky, well-salted. People ate what they wanted and took what they needed. Some came up for second helpings. Anyone could walk away with a heavy box of leftovers for a later meal. For a moment, at least, there was no competing for resources or space. There was enough to share.

This story was produced with support from Renaissance Journalism’s 2024-2025 LaunchPad Fellowship for NextGen Journalists, and the Nova Institute for Health 2024 Media Fellowship.

This story was originally published by Grist with the headline A filing error put more than 90,000 acres of Yakama Nation land in the hands of Washington state on Dec 20, 2024.