State of Wash. v. ERIKSEN

• Decision Date: 14 October 2010
• Docket Number: No. 80653-5.,80653-5.
• Citation: 241 P.3d 399
• Parties: STATE of Washington, Respondent, v. Loretta L. ERIKSEN, Petitioner.
• Court: Washington Supreme Court

241 P.3d 399

STATE of Washington, Respondent,

v.Loretta L. ERIKSEN, Petitioner.

No. 80653-5.

Supreme Court of Washington,En Banc.

Argued May 12, 2009.

Decided Oct. 14, 2010.

William Joseph Johnston, Attorney at Law, Bellingham, WA, for Petitioner.

Ann Lindsay Stodola, Attorney at Law, Bellingham, WA, for Respondent.

Mary Michelle Neil, Attorney at Law, Bellingham, WA, amicus counsel for Lummi Nation.

SANDERS, J.

¶ 1 A Lummi Nation tribal police officer, while patrolling the reservation, witnessed a car drift across the center divider with its high-beam headlights activated. Did the officer have authority to pursue this vehicle across the reservation border and then detain the non-Indian driver on suspicion of driving under the influence (DUI) until authorities with jurisdiction to arrest arrived? This question is an extension of the issue we faced in State v. Schmuck, 121 Wash.2d 373, 850 P.2d 1332 (1993), where we held that tribal officers have authority to stop and detain non-Indian offenders on-reservation until state authorities could assume custody. We hold today that tribal officers have authority to continue fresh pursuit of motorists who break traffic laws on the reservation and subsequently drive beyond the reservation boundaries. We affirm the trial court.

FACTS

¶ 2 While patrolling the Lummi reservation sometime after 1:30 a.m. on August 10, 2005, Officer Mike McSwain of the Lummi Nation Police Department (LNPD) observed a vehicle coming toward him on Slater Road with its high beams glaring. McSwain flashed his headlights to remind the driver (later identified as Loretta Eriksen) to dim the high beams, but the driver did not comply. McSwain slowed his patrol car to prepare to turn around and pursue the car. ¹ But “as the vehicle approached, it drifted across the center line into my lane of travel coming within a couple feet of my vehicle,” McSwain testified. Clerk's Papers (CP) at 23 (Tr. (Jan. 26, 2006) at 8). “At that point, you know, I came to an immediate stop, getting ready to swerve in case it continued.” Id. As the vehicle drifted back into its lane, McSwain observed a second car following very closely behind the drifting vehicle. McSwain turned his patrol car around, activated his emergency lights, and began pursuing both cars westbound on Slater Road.

¶ 3 After traveling approximately a quarter mile the cars turned into a gas station located off the Lummi reservation. The second car broke off, went around the west side of the station, and disappeared from McSwain's line of sight. McSwain stopped behind the first car and observed the passenger exit the vehicle and run to the driver's side, while the driver-soon to be identified as Eriksen-hopped over the center console and into the passenger's seat. McSwain commanded Eriksen and the passenger to stop moving and put their hands where he could see them. Then he called for backup. Two LNPD patrol cars arrived less than five minutes later. ²

¶ 4 McSwain then asked Eriksen why she had jumped into the passenger seat. In slightly slurred speech, Eriksen said she had not been driving. McSwain warned her about making false statements. He also observed that her eyes were watery and bloodshot and she smelled strongly of alcohol. McSwain determined neither woman was a tribal member, so he contacted the Whatcom County Sheriff's Office, which is standard procedure for stops involving nontribal members.

¶ 5 McSwain asked Eriksen to step out of her car and follow him to his patrol vehicle. He noticed that “she was having difficulty keeping her balance and walking” and that “she began to sway back and forth ... [as he] started to explain to her what was going on....” CP at 32 (Tr. (Jan. 26, 2006) at 17). McSwain advised Eriksen that she would be detained but not arrested and a sheriff's deputy would make a final determination. McSwain did not administer any sobriety tests and testified Eriksen would not take any tests. He then handcuffed Eriksen and placed her in the back of his patrol car until a Whatcom County sheriff's deputy arrived. McSwain remained at the scene until the deputy arrested Eriksen for DUI.

¶ 6 The trial court convicted Eriksen of DUI and denied her motion for reconsideration. The court reasoned that the Lummi Nation's inherent sovereign power-which includes enforcing internal criminal laws-authorizes tribal police to continue pursuing offenders who drive off the reservation. The court concluded that it would be inconsistent with this power, and Washington's policy of authorizing officers to cross jurisdictional boundaries when in “fresh pursuit,” for “somebody [to] just cross the line and be scot-free.” Verbatim Report of Proceedings (VRP) (Aug. 20, 2007) at 40-41. We granted Eriksen's motion for discretionary review to resolve this issue of first impression.

ANALYSIS

I. Tribal Authority

[1] [2] [3] ¶ 7 Jurisdictional disputes on Indian reservations involve overlapping federal, state, and tribal jurisdiction. Schmuck, 121 Wash.2d at 380, 850 P.2d 1332. ³ Jurisdiction is a matter of law that we review de novo when the location of a crime is not in dispute. ⁴ State v. Waters, 93 Wash.App. 969, 976, 971 P.2d 538 (1999) (citing State v. L.J.M., 129 Wash.2d 386, 396, 918 P.2d 898 (1996)).

[4] [5] ¶ 8 Whether a tribe has authority to stop and detain an individual necessarily involves an analysis of the limited sovereignty the tribe retains. Schmuck, 121 Wash.2d at 380, 850 P.2d 1332. To determine whether tribes retain their sovereign powers, we must “look[ ] to the character of the power that the tribe seeks to exercise, not merely the location of events.” John v. Baker, 982 P.2d 738, 752 (Alaska 1999). Tribes are “unique aggregations possessing attributes of sovereignty over both their members and their territory.” United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). “Intrinsic in this sovereignty is the power of a tribe to create and administer a criminal justice system.” Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir.1975).

[6] ¶ 9 However, Indian tribes have a unique dependent relationship with the United States. See, e.g., Duro v. Reina, 495 U.S. 676, 697, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Because of this dependent status, the sovereign authority possessed by Indian tribes is less than that of nondependent sovereigns. Nevada v. Hicks, 533 U.S. 353, 378-79, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (Souter, J., concurring); Duro, 495 U.S. 676, 110 S.Ct. 2053; Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). Thus, the United States Supreme Court has held that tribal sovereignty over nonmembers is not an inherent power retained by Indian tribes. See, e.g., South Dakota v. Bourland, 508 U.S. 679, 695 n. 15, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993) (“tribal sovereignty over nonmembers ‘cannot survive without express congressional delegation’ “ (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245)).

¶ 10 The United States Supreme Court has held that the dependent nature of Indian tribes has implicitly divested some powers traditionally associated with sovereignty. Hicks, 533 U.S. at 378-79, 121 S.Ct. 2304 (Souter, J., concurring); Duro, 495 U.S. 676, 110 S.Ct. 2053; Montana, 450 U.S. at 564, 101 S.Ct. 1245; Oliphant, 435 U.S. at 195, 98 S.Ct. 1011. This divestiture includes all criminal jurisdiction and nearly all civil jurisdiction over non-Indians. However, powers lost through dependent sovereign status can be restored through positive federal law, such as treaty provisions or acts of Congress.

¶ 11 The United States Supreme Court has limited tribal authority over non-Indians. In Oliphant, the Supreme Court stated, “We granted [review of the present case] to decide whether Indian tribal courts have criminal jurisdiction over non-Indians. We decide that they do not.” 435 U.S. at 195, 98 S.Ct. 1011. In Montana, the Court held that the Crow Tribe could not prohibit on-reservation fishing and hunting by non-Indians. The Court endorsed the “general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana, 450 U.S. at 565, 101 S.Ct. 1245 (citing Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 147, 3 L.Ed. 162 (1810)). The Court noted two exceptions to this rule: (1) tribes may regulate the activities of nonmembers who enter consensual relationships with the tribe and (2) tribes may exercise civil authority over non-Indians' conduct on land “within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 565-66, 101 S.Ct. 1245.

¶ 12 The Court has since held that the Montana exceptions are to be narrowly construed. In Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), the Court made clear that the second Montana exception included a necessity requirement. In that case, the Court considered the Montana exceptions in the context of alleged tribal jurisdiction over a car accident on a state highway running through tribal lands. After deciding that the first exception was inapplicable, the Court turned to the question of maintaining tribal safety. The Court emphasized that this power did not extend “ ‘beyond what is necessary to protect tribal self-government or to control internal relations.’ ” Strate, 520 U.S. at 459, 117 S.Ct. 1404 (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245).

[7] ¶ 13 Treaties, agreements, and statutes must be liberally construed in favor of the tribe, and all ambiguities are to be resolved in its favor. Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943) (“[T]reaties are construed more liberally than private agreements.... Especially is this true in interpreting...