State v. Eriksen

• Decision Date: 17 September 2009
• Docket Number: No. 80653-5.,80653-5.
• Citation: 166 Wn.2d 953,216 P.3d 382
• Parties: STATE of Washington, Respondent, v. Loretta L. ERIKSEN, Petitioner.
• Court: Washington Supreme Court

216 P.3d 382

166 Wn.2d 953

STATE of Washington, Respondent, v. Loretta L. ERIKSEN, Petitioner.

No. 80653-5.

Supreme Court of Washington, En Banc.

Argued May 12, 2009.

Decided September 17, 2009.

William Joseph Johnston, Bellingham, WA, for Petitioner.

Ann Lindsay Stodola, Bellingham, WA, for Respondent.

Mary Michelle Neil, Bellingham, WA, for Amicus Curiae on behalf of Lummi Nation.

SANDERS, J.

¶ 1 A Lummi Nation tribal police officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. Did the officer have authority to continue pursuing this vehicle beyond the reservation's borders and then detain the non-Indian driver until authorities with jurisdiction to arrest for DUI¹ arrived? This is an issue of first impression. We hold tribal officers have inherent sovereign authority and statutory authority to continue "fresh pursuit" of motorists who break traffic laws on the reservation and then drive off the reservation. Therefore we affirm the trial court.

FACTS

¶ 2 Officer Mike McSwain of the Lummi Nation Police Department (LNPD) was patrolling the Lummi reservation sometime after 1:30 a.m. on August 10, 2005 when he observed a vehicle driving toward him on Slater Road with its high beams glaring. Officer McSwain flashed his headlights to remind the driver (later identified as Loretta Eriksen) to dim the brights, but the driver did not comply. Officer McSwain slowed his patrol car to prepare to turn around and pursue the driver.² But "as the vehicle approached, it drifted across the center line into my lane of travel coming within a couple feet of my vehicle," Officer 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, Officer McSwain observed a second car following very closely behind the drifting vehicle. Officer McSwain turned his patrol car around, activated his emergency lights, and began pursuing both cars westbound on Slater Road.

¶ 3 After traveling roughly 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 Officer McSwain's line of sight. Officer McSwain pulled behind the first car and observed the passenger jump from 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. Officer 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.³

¶ 4 Officer McSwain then asked Eriksen why she had jumped into the passenger seat. Eriksen said — in slightly slurred speech — she had not been driving, so Officer McSwain warned her about making false statements. He also observed her eyes were watery and bloodshot and she smelled strongly of alcohol. Officer 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 Officer McSwain asked Eriksen to step out of her car and follow him to his patrol vehicle. He noticed "she was having difficulty keeping her balance and walking," and "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). Officer 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 the Whatcom County sheriff's deputy arrived. Officer McSwain remained on 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 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 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 scott-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.

STANDARD OF REVIEW

¶ 7 Jurisdictional disputes on Indian reservations involve overlapping federal, state, and tribal jurisdiction. State v. Schmuck, 121 Wash.2d 373, 380, 850 P.2d 1332 (1993).⁴ Jurisdiction is a matter of law which we review de novo when the location of a crime is not in dispute.⁵ 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)).

¶ 8 Whether a tribe has authority to stop and detain an individual necessarily turns on an analysis of the limited sovereignty the tribe retains. Schmuck, 121 Wash.2d at 380, 850 P.2d 1332. 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). Tribal sovereignty is preserved unless Congress's intent to the contrary is clear and unambiguous. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). 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 treaties and agreements with the Indians[, which are to be construed] `in a spirit which generously recognizes the full obligation of this nation to protect the interests of [the Indians].'" (quoting Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct. 862, 86 L.Ed. 1115 (1942))).

ANALYSIS

¶ 9 The parties agree on appeal that the incident began on the Lummi Reservation; therefore the narrow issue before us is whether Officer McSwain had authority to stop a non-Indian driver, who pulled over after she crossed the reservation's boundary, and then detain her until a deputy with jurisdiction to arrest arrived.⁶

I. Lummi Nation Has Sovereign Authority and U.S. Treaty Obligation To Stop and Detain Lawbreakers on the Reservation

¶ 10 Tribal police officers are often first responders when problems arise on reservations, but it is not always apparent during the investigation stage whether the tribe possesses jurisdiction over the offender.⁷ In recognition of this problem the Supreme Court has consistently affirmed tribal police have authority to detain non-Indian offenders until they can be turned over to authorities with jurisdiction. Duro v. Reina, 495 U.S. 676, 697, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); Strate v. A-1 Contractors, 520 U.S. 438, 456 n. 11, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (citing Schmuck, 121 Wash.2d at 390, 850 P.2d 1332).

¶ 11 This court — along with the Ninth and Eighth Circuit Courts of Appeals — has also held tribal police have inherent authority to stop non-Indians who violate the law on public roads within the reservation and detain them until they can be turned over to state authorities. See, e.g., Schmuck, 121 Wash.2d at 396, 850 P.2d 1332; Ortiz-Barraza, 512 F.2d at 1180 (holding tribal officer was authorized to stop and search non-Indian driver on the reservation); United States v. Terry, 400 F.3d 575, 579-80 (8th Cir.2005) (upholding overnight detention of a non-Indian in a tribal jail when state law enforcement officials could not take custody until the next morning).⁸ The superior court therefore correctly looked to this court's analysis in Schmuck as a starting point.

¶ 12 As in Schmuck the Lummi Nation does not assert authority to arrest and prosecute Eriksen for DUI but merely claims the power to stop and detain her until she could be turned over to Whatcom County officials. Schmuck, 121 Wash.2d at 379, 850 P.2d 1332. "The Nation is asserting a sovereign interest in the act of stopping and detaining any person who violates the law while on the Lummi Reservation, even if the tribal police officer cannot complete the stop until after the motorist has driven beyond the Reservation boundaries." Br. of Amicus Curiae Lummi Nation at 5.

¶ 13 Absent a controlling congressional statute, tribes retain jurisdiction over events in Indian country: "Perhaps the most basic principle of all Indian law, supported by a host of decisions, is that those powers lawfully vested in an Indian nation are not, in general, delegated powers granted by express acts of Congress, but rather `inherent powers of a limited sovereignty which has never been extinguished.'" COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 4.01[1][a] at 206 (2005) (quoting United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978)). Therefore Congress may constitutionally execute provisions of a treaty even if so doing affects state interests. Antoine v. Washington, 420 U.S. 194, 203-05, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975) (absence of State as party to hunting and fishing agreements did not detract from validity). Congress's authority over Indian affairs is "plenary and exclusive," which refers to supremacy of federal over state law. Washington v. Confederated Bands & Tribes of the Yakima Indian...