State v. Eriksen

• Citation: 172 Wash.2d 506,259 P.3d 1079
• Decision Date: 01 September 2011
• Docket Number: No. 80653–5.,80653–5.
• Parties: STATE of Washington, Respondent,v.Loretta Lynn ERIKSEN, Petitioner.
• Court: United States State Supreme Court of Washington

172 Wash.2d 506

259 P.3d 1079

STATE of Washington, Respondent,

v.Loretta Lynn ERIKSEN, Petitioner.

No. 80653–5.

Supreme Court of Washington, En Banc.

Argued May 3, 2011.Decided Sept. 1, 2011.

William Joseph Johnston, Attorney at Law, Bellingham, WA, for Petitioner.Ann Lindsay Stodola, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondent.Mary Michelle Neil, Attorney at Law, Bellingham, WA, amicus counsel for Lummi Nation.FAIRHURST, J.

[172 Wash.2d 507] ¶ 1 We granted reconsideration to again consider whether a tribal police officer who observed Loretta Lynn Eriksen commit a traffic infraction on the Lummi Reservation could validly stop her outside the reservation and detain her until county police arrived. We conclude that the tribe's inherent sovereign powers did not authorize this extraterritorial stop and detention.

I. FACTUAL HISTORY

¶ 2 At approximately 1:30 a.m. on August 10, 2005, Officer Mike McSwain of the Lummi Nation Police Department was driving east on Slater Road within the Lummi Reservation ¹ when he saw a vehicle approaching him with its high beams activated. McSwain flashed his high beams to alert the approaching vehicle that its high beams were on, but the vehicle did not dim its lights in response. McSwain slowed down and prepared to turn around so that he could stop the vehicle for failure to dim its lights.² At that point, the approaching vehicle drifted across the center line, “coming within a couple of feet” of McSwain's patrol car. Clerk's Papers (CP) 23. McSwain came to a stop and prepared to swerve if necessary, but the vehicle drifted back into the westbound lane of travel. McSwain then observed a second vehicle following closely behind the drifting vehicle. He turned around, activated his overhead lights, and followed the two westbound vehicles.

¶ 3 Both vehicles stopped at a gas station located off the Lummi Reservation. The second vehicle broke off and drove behind a building, out of sight, while the first vehicle stopped where McSwain could see it. McSwain observed a passenger jump out of the vehicle and run around the front, while the driver moved into the passenger seat. McSwain ordered the driver and passenger to stop moving and then called for a back-up officer.

¶ 4 When a back-up officer arrived, McSwain approached the driver, whom he later identified as Eriksen. He asked her why she had moved into the passenger seat. She responded that she had not been driving. McSwain observed that Eriksen smelled strongly of intoxicants, had bloodshot and watery eyes, and spoke in slightly slurred speech. McSwain determined that Eriksen was not a tribal member, then called for a Whatcom County deputy sheriff.

¶ 5 While waiting for the deputy to arrive, McSwain asked Eriksen to step out of the car. She had difficulty keeping her balance and walking, and she swayed back and forth when asked to stop and face him. Without being asked, Eriksen told McSwain she would not do any sobriety tests. McSwain did not request or perform any. Instead, he detained Eriksen and put her in the back of his patrol car until the Whatcom County deputy sheriff arrived. The deputy arrested Eriksen.

II. PROCEDURAL HISTORY

¶ 6 Eriksen was charged with driving under the influence (DUI) in the Whatcom County District Court. She moved to suppress ³ on the basis that McSwain did not have the authority to stop and detain her off the reservation. The district court denied the motion and Eriksen was convicted as charged. On appeal, the Whatcom County Superior Court upheld the conviction. We granted review of the superior court's decision.

¶ 7 In 2009, we affirmed Eriksen's conviction. Eriksen moved for reconsideration, and the State joined the motion with regard to our statutory analysis. We granted reconsideration and withdrew our opinion. In 2010, the court again affirmed Eriksen's conviction, and she moved to reconsider a second time. We granted reconsideration and withdrew the second opinion.

III. ANALYSIS

¶ 8 As a general rule, “a valid arrest may not be made outside the territorial jurisdiction of the arresting authority.” Cohen's Handbook of Federal Indian Law § 9.07, at 763 (2005) (citing Wayne R. LaFave et al., Criminal Procedure § 1.3(e) n. 2 (West 3d ed. 2000)). This principle of territorial jurisdiction has long been accepted in Washington State. See, e.g., State v. Barker, 143 Wash.2d 915, 920–21, 25 P.3d 423 (2001); City of Wenatchee v. Durham, 43 Wash.App. 547, 549–50, 718 P.2d 819 (1986); Irwin v. State, 10 Wash.App. 369, 371, 517 P.2d 619 (1974).

[172 Wash.2d 510] ¶ 9 Barker illustrates how law enforcement officers may be limited by territorial jurisdiction. In Barker, an Oregon police officer observed a driver speeding, making unsafe lane changes, and following too closely in Oregon near the Washington State border. 143 Wash.2d at 918, 25 P.3d 423. The officer pursued the driver into Washington, where the officer stopped and detained the driver until Washington police arrived and arrested him for DUI. Id. We held that the stop and detention were “ ‘without authority of law’ ” under article I, section 7 of the Washington State Constitution ⁴ because the Oregon officer was not authorized by statute or common law to act outside her jurisdiction. Barker, 143 Wash.2d at 922, 25 P.3d 423 (quoting Const. art. I, § 7). The exclusionary rule required suppression of the fruits of the unlawful stop and detention. Id.

¶ 10 Here, although McSwain's stop and detention of Eriksen took place outside the Lummi Nation's territorial jurisdiction, the State argues the stop and detention were justified by the tribe's inherent sovereign authority. Indian tribes possess a “unique and limited” sovereignty that exists unless withdrawn by treaty, statute, or as a necessary result of the tribes' dependence on the United States. United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). Indian tribes retain the inherent sovereign power to promulgate criminal laws and enforce them against tribal members. Id. at 322, 98 S.Ct. 1079; see also Strate v. A–1 Contractors, 520 U.S. 438, 459, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). Tribes also retain the right to create a traffic code and enforce it on the reservation against tribal members. See Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146 (9th Cir.1991).

¶ 11 In State v. Schmuck, 121 Wash.2d 373, 850 P.2d 1332 (1993), we held that a tribe's inherent authority allowed a tribal officer to stop a non-Indian driver on a public road within the reservation and detain him until state officers arrived. We reasoned that the tribe's inherent authority included the ability to stop the driver because:

Only by stopping the vehicle could [the tribal officer] determine whether the driver was a tribal member, subject to the jurisdiction of the Tribe's traffic code. The alternative would put tribal officers in the impossible position of being unable to stop any driver for fear they would make an unlawful stop of a non-Indian. Such a result would seriously undercut the Tribe's ability to enforce tribal law and would render the traffic code virtually meaningless. It would also run contrary to the “well-established federal policy of furthering Indian self-government.”

Id. at 383, 850 P.2d 1332 (internal quotation marks omitted) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). The ability to detain was supported in large part by a treaty provision requiring the tribe to deliver “ ‘offenders against the laws of the United States' ” to the authorities for trial and the tribe's traditional authority to exclude unwanted persons from tribal land.

Schmuck, 121 Wash.2d at 383–90, 850 P.2d 1332 (quoting Treaty between the United States and the Dwámish, Suguámish, and Other Allied and Subordinate Tribes of Indians in Washington Territory, Jan. 22, 1855, art. IX, 12 Stat. 927, 929 (hereinafter Treaty of Point Elliott)).

¶ 12 In Settler v. Lameer, 507 F.2d 231 (9th Cir.1974), the Ninth Circuit held that a tribe retained the inherent authority to arrest tribal members at usual and accustomed fishing sites outside the reservation for violation of tribal fishing regulations. A treaty explicitly secured to the tribe “ ‘the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.’ ” Id. at 232 (quoting Treaty with the Yakama Nation, June 9, 1855, art. III, 12 Stat. 951, 953). The Ninth Circuit reasoned that the tribe's explicit treaty power to regulate fishing contained the right to arrest tribal members at usual and accustomed fishing sites for violating the regulations, because “[t]he power to regulate is only meaningful when combined with the power to enforce.” Id. at 238.

[172 Wash.2d 512] ¶ 13 The State argues that Schmuck establishes the Lummi Nation's inherent sovereign power to stop and detain offenders on the reservation, while Settler shows that this enforcement power may extend beyond reservation boundaries. We disagree.

¶ 14 The inherent sovereign power identified in Schmuck does not logically extend beyond reservation boundaries. The State is correct that preventing tribal police from stopping and detaining drivers off the reservation would “undercut the Tribe's ability to enforce tribal law” by encouraging drivers to race for the reservation border and escape detention. Schmuck, 121 Wash.2d at 383, 850 P.2d 1332. While this is troubling on a policy level, the concept of territorial jurisdiction necessarily limits any sovereign's ability to fully enforce its laws. For example, Oregon's ability to enforce its traffic code was undercut when we held that an Oregon officer could not stop and detain an offender who crossed the state border. Barker, 143 Wash.2d 915, 25 P.3d 423. That impediment to enforcement alone did not mean that Oregon's sovereignty was compromised. Rather, the limitation on Oregon's authority to enforce its laws flowed...