Comenout v. Burdman, 42976

Decision Date08 August 1974
Docket NumberNo. 42976,42976
Citation525 P.2d 217,84 Wn.2d 192
PartiesDollietta and Kenneth COMENOUT, Petitioners, v. Milton BURDMAN, Secretary of the State of Washington, Department of Social and Health Services, and (Warner Poyhonen, Judge Pro Tem of the Superior Court for Grays Harbor County), Respondents.
CourtWashington Supreme Court

Allen H. Sanders, Legal Services Center, Seattle, Michael Taylor, Reservation Atty., Taholah, for petitioners.

Curits M. Janhunen, Pros. Atty., Grays Harbor County, Montesano, Slade Gorton, Atty. Gen., William H. Clarke, Temple of Justice, Olympia, for respondents.

HUNTER, Associate Justice.

This appeal arises from a writ of prohibition brought by the petitioners (appellants), Dollietta and Kenneth Comenout, against the respondents, Milton Burdman, as Secretary of the Department of Social and Health Services, and Judge Warner Poyhonen, Judge Pro Tem of the Superior Court for Grays Harbor County. The case deals with the issue of whether the State of Washington has jurisdiction to deprive the partitioners of their parental rights over their children where the petitioners are Quinault Indians residing on the Quinault Indian Reservation.

The facts in the instant case are as follows. The petitioners, Quinault Indians residing on the Quinault Indian Reservation, are the parents of Annabella Comenout, born May 22, 1967, and Sonja Comenout, born May 15, 1970. In March of 1969, Annabella Comenout was taken from the custody of her parents by the State Department of Social and Health Services and, in March of 1971, at a hearing before the Superior Court for Grays Harbor County, the petitioners were temporarily deprived of the custody of both their children for a period of 6 months. Both children have been placed in foster care by the State Department of Social and Health Services.

On August 6, 1973, a hearing was held before Judge Warner Poyhonen, Judge Pro Tem of the Superior Court for Grays Harbor County, on a petition for permanent deprivation of the parental rights of the petitioners over their children. The petitioners moved to dismiss the action on several grounds, arguing that the State of Washington had no jurisdiction to deprive them of their parental rights in this matter since they were Quinault Indians residing on the Quinault Indian Reservation. At that hearing Judge Poyhonen issued an oral order denying the petitioners' motion to dismiss, and entered a written order on August 15, 1973, continuing for 6 months the temporary deprivation order already in existence. Meanwhile, the petitioners filed a petition for writ of prohibition in Division Two of the Court of Appeals against the respondents, and we accepted jurisdiction in the matter to consider the issues involved.

The petitioners' contention in this case, that the State of Washington has no jurisdiction over Quinault Indians and the Quinault Indian Reservation, must be considered in light of various constitutional provisions, statutory enactments, and events leading up to this controversy. In 1889, the United States Congress adopted an act allowing the territories of Washington, Montana, North Dakota and South Dakota to become members of our Union of States. Act of February 22, 1889, ch. 180, § 1, 25 Stat. 676. The enabling act provided as a prerequisite to admission to the Union that each state seeking admission should hold a constitutional convention and provide, among other things:

(B)y ordinances irrevocable without the consent of the United States and the People of said States:

* * *

* * *

Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, And said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; . . .

(Italics ours.) 25 Stat. 676, 677.

In compliance with the enabling act language, Article 26 of the Washington State Constitution provided a disclaimer of jurisdiction as follows:

The following ordinance shall be irrevocable without the consent of the United States and The people of this state:

* * *

* * *

Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, And said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States . . .

(Italics ours.)

The Act of August 15, 1953, ch. 505, 67 Stat. 588, was passed by Congress, consenting to the assumption of jurisdiction over Indians by the states. The relevant sections of this act provided on page 590:

Sec. 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.

Sec. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof. 1

Responding to that congressional action, the legislature of the State of Washington enacted Laws of 1957, ch. 240 (RCW 37.12), which provides that the State of Washington shall not assume jurisdiction over an Indian tribe until such tribe expresses a desire for its people to be subject to the jurisdiction of the State of Washington. A particular procedure was specified in RCW 37.12.020, 2 in which it was provided that whenever the governor of the state shall receive from the tribal council or other governing body of the Indian tribe, a resolution expressing its desire to be subject to the Criminal and civil jurisdiction of the state, the governor shall issue a proclamation to the effect that the State of Washington assumes jurisdiction over the petitioning tribe.

On April 22, 1958, a body purporting to be the 'Quinault Indian Tribal Council' adopted a resolution expressing the desire that the criminal and civil jurisdiction of the State of Washington be extended to include the Quinault Indian Tribe and Reservation. Pursuant to RCW 37.12.020, former Governor Rosellini, on May 15, 1958, issued a proclamation purporting to extend state jurisdiction over Criminal and civil matters to that reservation effective July 14, 1958. The proclamation declared that

The criminal and civil jurisdiction of the State of Washington shall apply to the Quinault Indian people, their reservation, territory, lands and country, and all persons being and residing therein.

After the proclamation was issued, however, certain members of the Quinault Indian Tribe repudiated the initial resolution submitted by the tribe on April 22, 1958. The proclamation by former Governor Rosellini was not rescinded before the effective date, however, and the validity of the proclamation was upheld in State v. Bertrand, 61 Wash.2d 333, 378 P.2d 427 (1963).

In 1963, the legislature of the state of Washington enacted Laws of 1963, ch. 36, p. 346, which substantially amended RCW 37.12. RCW 37.12.010, as amended in 1963, states as follows:

The state of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 have been invoked, except for the following:

(1) Compulsory school attendance;

(2) Public assistance;

(3) Domestic relations;

(4) Mental illness;

(5) Juvenile delinquency;

(6) Adoption proceedings;

(7) Dependent children; and

(8) Operation of motor vehicles upon the public streets, alleys, roads and highways: Provided further, That Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted.

(Italics ours.)

It is under subsection (7) of the above statute covering 'Dependent children' that the State of Washington and its Department of Social and Health Services assert jurisdiction over the petitioners in this case.

Subsequent to the 1963 amendments of RCW 37.12, on January 12, 1965, former Governor Rosellini, at the request of the Quinault Tribe, issued a proclamation declaring that the proclamation of May 15, 1958, establishing state jurisdiction over the Quinault Indian...

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  • Washington v. Confederated Bands and Tribes of Yakima Indian Nation
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    ...Tonasket v. State, 84 Wash.2d 164, 525 P.2d 744, appeal dismissed, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387; and Comenout v. Burdman, 84 Wash.2d 192, 525 P.2d 217, appeal dismissed, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387, should preclude reconsideration of the disclaimer issue here.......
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