Confederated Bands and Tribes of Yakima Indian Nation v. State of Wash., 74-1225

• Citation: 550 F.2d 443
• Decision Date: 21 January 1977
• Docket Number: No. 74-1225,74-1225
• Parties: CONFEDERATED BANDS AND TRIBES OF the YAKIMA INDIAN NATION, Appellant, v. STATE OF WASHINGTON et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 443

550 F.2d 443

CONFEDERATED BANDS AND TRIBES OF the YAKIMA INDIAN NATION, Appellant, v. STATE OF WASHINGTON et al., Appellees.

No. 74-1225.

United States Court of Appeals Ninth Circuit.

Jan. 21, 1977.

James B. Hovis (argued), of Hovis, Cockrill & Roy, Yakima, Wash., for appellant.

Malachy R. Murphy, Deputy Atty. Gen. (argued), Olympia, Wash., for appellees.

Before CHAMBERS, BROWNING, DUNIWAY, ELY, HUFSTEDLER,

WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

SNEED, Circuit Judge:

The Yakimas argue before this court en banc that PL-280 did not authorize Washington to assume partial jurisdiction and that Rev.Code Wash. § 37.12.010 is accordingly invalid.

We must first decide whether the Supreme Court's summary dismissals in Tonasket v. Washington, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387 (1975) and Makah Indian Tribe v. Washington, 397 U.S. 316, 90 S.Ct. 1115, 25 L.Ed.2d 335 (1970) foreclose the issue. We can dispose of Tonasket quickly because the Supreme Court of Washington did not address the partial assumption question (as it did the disclaimer issue) after the United States Supreme Court vacated its prior decision and remanded the case for reconsideration in the light of McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); accordingly, the partial assumption issue was not before the Supreme Court when it dismissed the second appeal. Makah is somewhat more troublesome because Makah clearly involved a partial assumption of jurisdiction under Rev.Code Wash. § 37.12.010 in connection with highways. We think Makah is not dispositive for two reasons. First, the jurisdictional statement to the Supreme Court did not specify the partial assumption issue as a "Question Presented," and partial assumption was mentioned only in passing in the supporting text. Second, the State's motion to dismiss or to affirm was directed to the disclaimer issue. Accordingly, we construe the dismissal order to resolve the disclaimer issue only.

Washington's primary reliance is placed on the following language from Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 655 (9th Cir. 1966) (hereinafter Quinault II ):

"The third claim which plaintiffs purport to state in their complaint is that chapter 36, Laws of 1963, amending chapter 240, Laws of 1957, is void because it represents only a partial assumption of state jurisdiction over Indian reservations, whereas Public Law 280 does not authorize partial assumption of jurisdiction.

". . . We do not read that act as constituting only a partial assumption of jurisdiction. The state therein indicates its willingness to extend criminal and civil jurisdiction over all Indians and Indian territory, reservations, country and lands within the state, it being provided, however, that as to some matters concerning some Indians, there must first be a tribal resolution and a gubernatorial proclamation. In chapter 240, Laws of 1957, this Indian resolution and governor's proclamation procedure applied to all exertions of state jurisdiction.

"In our opinion, the indicated condition precedent to the exertion of state jurisdiction as to some matters concerning some Indians involves no violation of Public Law 280. If the Quinault Tribe of Indians feels aggrieved because state jurisdiction is not presently being exerted to the full extent possible under chapter 36, all it has to do is provide the governor with a tribal resolution of the kind called for in section 5 of that act (RCW 37.12.021). A governor's proclamation would necessarily follow, and a full exertion of state jurisdiction would be achieved." 368 F.2d at 657-58.

The ultimate holding of Quinault II supports the State's argument, and we choose to affirm it. While Quinault II, strictly speaking, avoided the assumption-of-partial-jurisdiction issue by treating Washington's assumption as total, it is reflective of a long-standing opinion that PL-280 authorizes the assumption of partial subject matter, and partial geographic, jurisdiction. ¹ Examination of the relevant legislative history does not disprove this interpretation of PL-280 and, in fact, provides some degree of support. More critically reversal of Quinault II at this late stage, along with a new interpretation of PL-280, could lead to unfortunate law enforcement problems for thousands of native Americans.

I

To hold, as the dissent would have us do, that any partial assumption of criminal jurisdiction by the states is violative of PL-280 would overturn the jurisdictional systems under which live approximately 16,000 Indians in the State of Washington and 5,000 Indians in Idaho. The jurisdictional systems under which 115,000 Indians in Arizona and 22,000 Indians in Montana live would also be jeopardized. ² The effects of such an immediate jurisdictional upheaval would be far-reaching and quite unpredictable for the approximately 158,000 Indians potentially affected by this decision.

For example, Washington has performed certain services since 1963. Doubts about whether tribal or federal authorities would be ready to step in immediately are quite reasonable. Consider highway traffic law enforcement and juvenile delinquency, two specific areas where state jurisdiction would be invalidated under the view of the dissenters. Both are complicated fields. Patrol cars and officers are necessary if the highways are to be efficiently patrolled. Skilled personnel, as well as specialized detention facilities, are needed to handle the problems presented by the delinquency of juveniles. It is very doubtful that the tribe or the federal government immediately could provide these resources. Even if the states are providing only minimal services, it is unlikely that tribal or federal authorities could equal or surpass that level in the near future.

Other "option states" within the circuit would confront similar uncertainties and confusion. "Option states" not within the circuit, moreover, could not view such action with indifference. Until the dissent's position was acted upon by their circuit, and possibly ruled upon by the Supreme Court, any partial assumption of jurisdiction, not arranged pursuant to procedures of the 1968 legislation, would be under a cloud. ³

II

Despite these consequences we would not hesitate to overrule Quinault II if it were plainly and unequivocally inconsistent with the applicable legislative history of PL-280. But it is not. At worst, this history simply does not directly address the partial assumption issue. ⁴ There are, however, aspects of PL-280 and its legislative history that suggest assumption of partial jurisdiction is valid and that Quinault II, as here interpreted, is sound.

First of all, partial geographic jurisdiction was specifically provided by the Act with respect to certain mandatory states, by excluding specific reservations from coverage. ⁵ There is no reason to suppose that option states were not to have the power to be similarly flexible. Exclusion of an entire reservation is different, of course, from "checker-boarding." There is, however, nothing to indicate that a state given the option to assume jurisdiction was required either to exclude entire reservations or to assume jurisdiction with respect to all Indian country within its territorial limits. Congress, by vesting states with an option, evidenced that at that time it did not know how jurisdiction in such states should be arranged. Experimentation undoubtedly was expected and that is what has occurred.

It is also reasonable to conclude that experimentation with respect to subject matter jurisdiction was intended. This is indicated by the fact that the Department of Interior conferred extensively with the representatives of mandatory states and the Indian tribes before presenting a bill to Congress in 1953. ⁶ Both the mandatory states and the tribes therein had agreed to an assumption of complete civil and criminal jurisdiction prior to submission. However, very few of the option states and tribes therein were consulted. By failing to consult extensively and by vesting option states with the power to assume jurisdiction, it is reasonable to assume that Congress was prepared to permit various jurisdictional arrangements to be developed at the state level. No restraints on these arrangements were imposed by PL-280.

To assume no such restraints with respect to geography or subject matter were intended is consistent with the assimilative thrust of the 1953 legislation. Congress in PL-280 intended to relinquish federal jurisdiction over Indian people residing on reservations as quickly as possible. Relinquishment in option states simply had not been worked out in 1953. ⁷ So far as Congress then knew it might never be worked out; but it is clear that Congress had hopes. Nothing could be more reasonable than to assume that Congress anticipated that various jurisdictional arrangements would be developed in option states. And this is what happened. We suggest that Congress anticipated, in a broad sense, this general direction of events that occurred in the option states.

Nor do we believe that the danger of states assuming only the beneficial aspects of jurisdiction while rejecting those more burdensome was so clear and present that Congress in 1953 reasonably could not have considered vesting in option states the power to experiment. Indeed, the failure of Congress in 1953 to repeal earlier grants of partial subject matter jurisdiction clearly suggests the contrary. ⁸ Of particular importance to this case is the fact that Washington's partial assumption of jurisdiction reflects quite burdensome undertakings not likely to be defrayed from revenues derived from Indians.

This fiscal imbalance, undoubtedly present under Washington's scheme, illumines an aspect which strongly suggests recognition by Congress of the necessity to permit experimentation with partial assumptions. This aspect is that the propensity of a...