State v. Cooper
| Citation | 130 Wn.2d 770,928 P.2d 406 |
| Decision Date | 19 December 1996 |
| Docket Number | No. 64016-5,64016-5 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Petitioner, v. Kim E. COOPER, Respondent. |
David S. McEachran, Whatcom County Prosecutor, Laura D. Hayes, Deputy, Whatcom County Prosecutor's Office, Bellingham, for Petitioner.
Darby N. Ducomb, David L. Donnan, Washington Appellate Project, Seattle, for Respondent.
Christine Gregoire, Attorney General, Robert K. Costello, Assistant Attorney General, Olympia, Katrina C. Pflaumer, U.S. Attorney, Susan M. Roe, Asst. U.S. Attorney, Seattle, for amici curiae.
The State seeks review of a Court of
Appeals decision reversing Kim Cooper's conviction for child molestation. The State contends the Court of Appeals erred in concluding that the State lacks jurisdiction over crimes committed by Indians on Indian lands [928 P.2d 407] outside the boundaries of an established Indian reservation. We agree, and reverse.
Cooper's crime was committed on property held in trust by the United States as an Indian allotment outside the boundaries of the Nooksack Reservation. State v. Cooper, 81 Wash.App. 36, 38, 41 n. 6, 912 P.2d 1075, review granted, 129 Wash.2d 1013, 917 P.2d 576 (1996). 1 The State no longer disputes Cooper's factual assertions that (1) the crime was committed on trust property, and (2) Cooper and the victim are both members of the Nooksack Tribe. 2 It is also undisputed that the trust property is "Indian country" for purposes of federal jurisdiction. 3
In 1963, the Legislature amended RCW ch. 37.12, thereby asserting nonconsensual civil and criminal jurisdiction over all Indian country with certain exceptions.
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 [Public Law 280], 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....
RCW 37.12.010 (emphasis added). The effect of this statute was to assume jurisdiction over all Indian country for purposes of the eight enumerated categories of law. Confederated Bands & Tribes, 439 U.S. at 475, 99 S.Ct. at 748; Estate of Cross, 126 Wash.2d at 48, 891 P.2d 26. Criminal jurisdiction was not one of the eight categories of law in which the State assumed jurisdiction over all Indian country. Whether the State assumed criminal jurisdiction over a particular piece of Indian country depends on whether the property constitutes "tribal lands or allotted lands within an established Indian reservation." RCW 37.12.010 (emphasis added). 4 RCW 37.12.021, enacted in the same legislation as RCW 37.12.010, authorized further assumptions of state jurisdiction pursuant to tribal consent.
The Indian Civil Rights Act of 1968 (hereafter 1968 ICRA), 25 U.S.C. secs. 1321-1323, required tribal consent for all future assumptions of state jurisdiction over Indian country. The 1968 ICRA did not make the consent requirement retroactive and did not invalidate prior assumptions of state jurisdiction under Public Law 280. Estate of Cross, 126 Wash.2d at 47, 891 P.2d 26 (citing Three Affiliated Tribes v. Wold Eng'g, P.C., 467 U.S. 138, 150-51, 104 S.Ct. 2267, 2275-76, 81 L.Ed.2d 113 (1984)).
The Nooksack Reservation was established in 1973. 5 The Nooksack Tribe has not consented to the assumption of state jurisdiction. Cooper, 81 Wash.App. at 39, 912 P.2d 1075.
The question of state jurisdiction depends first on whether the State initially assumed jurisdiction over the trust property pursuant to RCW 37.12.010. If it did, the question then becomes whether the subsequent establishment of the Nooksack Reservation vitiates that assumption of jurisdiction. We consider each issue separately.
By enacting the 1963 version of RCW 37.12.010, Washington assumed state jurisdiction over all Indian country with respect to the eight categories of law enumerated in RCW 37.12.010. Estate of Cross, 126 Wash.2d at 47, 891 P.2d 26. Washington also assumed full nonconsensual civil and criminal jurisdiction over all fee lands within Indian reservations. See State v. L.J.M., 129 Wash.2d 386, 395, 918 P.2d 898 (1996) (); In re Somday v. Rhay, 67 Wash.2d 180, 184, 406 P.2d 931 (1965); State v. Pierre, 66 Wash.2d 703, 404 P.2d 788 (1965); State v. Flett, 40 Wash.App. 277, 699 P.2d 774 (1985). Finally, Washington assumed full nonconsensual civil and criminal jurisdiction over all Indian country outside established Indian reservations. Allotted or trust lands are not excluded from full nonconsensual state jurisdiction unless they are "within an established Indian reservation." RCW 37.12.010.
The most significant feature of the [amended RCW 37.12.010] was its provision for the extension of at least some jurisdiction over all Indian lands within the State, whether or not the affected tribe gave its consent. Full criminal and civil jurisdiction to the extent permitted by Pub.L. 280 was extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved....
....
... On trust and restricted lands within the reservations whose tribes have not requested the coverage of state law, jurisdiction over crimes by Indians is, as it was when Pub.L. 280 was enacted, shared by the tribal and Federal Governments.
Confederated Bands & Tribes, 439 U.S. at 475, 498-99, 99 S.Ct. at 748, 760 (emphasis added).
Because the Nooksack reservation did not exist in 1963, the State's assumption of jurisdiction pursuant to RCW 37.12.010 necessarily included the trust property on which Cooper committed his crime. The 1968 ICRA did not revoke this assumption of state jurisdiction. Therefore, unless the subsequent establishment of the Nooksack Reservation somehow vitiates this assumption of jurisdiction, the State continues to exercise jurisdiction over the trust property.
State v Sohappy
Cooper contends the State's interpretation of "reservation" is too narrow, and that, for purposes of RCW 37.12.010, "reservation" means all lands held in trust by the United States for the benefit of Indians. This argument is largely based on State v. Sohappy, 110 Wash.2d 907, 757 P.2d 509 (1988). In Sohappy, a member of the Yakima Indian Nation was convicted in state court for assaulting non-Indian police officers at an "in-lieu" fishing site. The in-lieu site was created under federal law to replace Indian fishing grounds destroyed by the Bonneville Dam. Title to the in-lieu site was held by the United States for the benefit of the Yakima Nation and other Indian tribes. Sohappy, 110 Wash.2d at 908, 757 P.2d 509. The defendant challenged the assertion of state jurisdiction over the site.
The question is whether this in-lieu site is within the category described in RCW 37.12.010 over which the State has not asserted jurisdiction. Specifically, was the defendant on tribal lands or allotted lands within an established Indian reservation and held in trust by the United States, the delimiting language of the statute?
Sohappy, 110 Wash.2d at 909-10, 757 P.2d 509. Although the in-lieu site was not within the original boundaries of the Yakima Reservation itself, this court held that the site was "within an Indian reservation" for purposes of RCW 37.12.010. Sohappy, 110 Wash.2d at 911, 757 P.2d 509. This holding was based on a federal case involving the same in-lieu site.
In United States v. Sohappy, 770 F.2d 816 (9th Cir.1985), cert. denied, 477 U.S. 906, 106 S.Ct. 3278, 91 L.Ed.2d 568 (1986), 13 Indian defendants were prosecuted under federal law for various fishing violations at the in-lieu site. The federal court was asked to determine whether the offenses were committed in "Indian country" for purposes of federal criminal jurisdiction. Observing that the in-lieu site was held in trust by the United States, the federal court held that the site was in "Indian country" for purposes of 18 U.S.C....
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