Appeals court affirms Quinault jurisdiction in Public Law 280 case
Posted: July 01, 2008
by: Gale Courey Toensing / Indian Country Today
QUINAULT INDIAN NATION, Wash. - In a case illustrating the complexities of competing jurisdictional claims under Public Law 280, a Washington state appeals court has upheld a lower court ruling that the state cannot intrude on the Quinault Tribe's criminal jurisdiction on tribal land.
The Washington Court of Appeals Division II panel opinion was issued June 3. Judge Christine Quinn-Brintnall wrote the opinion with judges Marywave Van Deren and Joel Penoyar concurring.
The case involves William Peter Pink, an enrolled tribal member who was arrested by Grays Harbor County sheriff's deputies in December 2006 for unlawful possession of a firearm during a search of a vehicle. At the time of his arrest, Pink was a passenger in a car that was stopped for a minor traffic violation - having a defective muffler and a cracked windshield - on a public road within the boundaries of the Quinault reservation.
The tribe had granted the state a highway easement to the public road in 1957, but the court found that the easement ''did not terminate the Quinault Tribe's interest in the land over which the highway runs and that the state did not have jurisdiction to prosecute Pink for unlawfully possessing a firearm on the road running through tribal land.''
When they stopped the vehicle, the deputies had asked Pink to identify himself and ran his name through the computer for a warrant check. After discovering an outstanding warrant, the deputies searched the car and discovered a .270-caliber rifle cartridge in Pink's pocket and a .270-caliber rifle in the car. Pink acknowledged the rifle belonged to him and said he was a tribal member with hunting rights.
''The deputies did not contact the Quinault Tribe's law enforcement agency to request assistance or seek the Quinault Tribe's approval to exercise general criminal jurisdiction over Pink,'' the judges said.
The deputies charged Pink, a convicted felon whose prior felony convictions included a third degree assault charge, with second degree unlawful possession of a firearm. Pink filed for a dismissal of the case, arguing that the state lacked criminal jurisdiction. The trial court granted the motion and the state appealed. The appeals court granted the tribe's motion to file an amicus brief.
The appeals court concluded that ''because the alleged violation is unrelated to operating a motor vehicle, the state lacks jurisdiction.''
In arriving at its conclusion, the appeals court reviewed the state's convoluted history of P.L. 280 - the 55-year-old federal law that handed criminal jurisdiction over Indian reservations to states during the federal government's termination era.
In 1953, Congress enacted the federal law authorizing states to impose concurrent state jurisdiction in Indian country with or without tribal consent. The Washington Legislature, however, elected to extend civil and criminal jurisdiction only to those reservations requesting it do so, the appeals court wrote.
Ten years later, the Legislature then extended state criminal and civil jurisdiction over all non-Indians in Indian country, Indians on fee-patented land on reservations, and Indians on tribally owned or individually allotted lands held in trust by the federal government. The Legislature limited the jurisdiction, however, to eight categories: compulsory school attendance; public assistance; domestic relations; mental illness; juvenile delinquency; adoption proceedings; dependent children; and the operation of motor vehicles on the public streets, alleys, roads and highways.
Then came the 1968 Indian Civil Rights Act, which narrowed the states' powers - including prohibiting a state from assuming criminal jurisdiction without the consent of the tribe.
The Quinault Tribe in 1958 had requested that the state extend its criminal and civil jurisdiction to the tribe and its reservation, but seven years later petitioned for ''retrocession'' - or the withdrawal - of state jurisdiction.
Washington state has the most complex P.L. 280 arrangement of all the states, said Carole Goldberg, a University of California Law School faculty member, director of a joint degree program in law and American Indian studies, and faculty chairman for the Native Nations Law and Policy Center. Goldberg is an expert in P.L. 280.
Since Quinault withdrew from P.L. 280, state jurisdiction is limited to the eight categories, she said.
''Furthermore, even within those eight subject areas, Washington can only assert the kinds of jurisdiction that P.L. 280 allows. That means that jurisdiction over hunting and fishing, as well as civil regulatory jurisdiction generally, are outside state jurisdiction.
''This Washington court seems to be saying that the state law that the police and prosecutor were trying to enforce against this tribal member were either outside the scope of the eight subject areas [e.g., insufficiently related to driving a car] or outside the scope of the state's P.L. 280 jurisdiction [e.g., too integral to the exercise of hunting rights, or civil regulatory rather than criminal]. Under either of those conditions, the state would lack jurisdiction.''
The tribe continues to have jurisdiction to prosecute crimes committed on its land by tribal members, the appeals court wrote.
But how would the sheriff's deputies know whether a suspect is a tribal member?
''It can be very difficult to determine ahead of time whether jurisdiction to arrest exists. You don't want to have to, and usually can't, check tribal enrollment data or other evidence of Indian status at the time a suspect is stopped,'' Goldberg said.
''The best solution for these situations is cross-deputization of tribal and county police, so that they can make the necessary arrests holding dual authority [tribal as well as state], and then the prosecutors can sort out later which government has jurisdiction. Another approach that some states use is to confer state 'peace officer' status on tribal police, so the tribal police don't actually need an agreement with their county in order to arrest non-Indians. Even with these arrangements in place, there can be issues and problems.''