State v. Flett

• Decision Date: 16 April 1985
• Docket Number: Nos. 5083-III-1,5948-III-1,s. 5083-III-1
• Parties: STATE of Washington, Respondent, v. William T. FLETT, Appellant.
• Court: Washington Court of Appeals

Page 277

40 Wn.App. 277

699 P.2d 774

STATE of Washington, Respondent, v. William T. FLETT, Appellant.

Nos. 5083-III-1, 5948-III-1.

Court of Appeals of Washington Division 3, Panel Three.

April 16, 1985.

Rehearing Denied May 20, 1985.

Joseph Nappi, Jr., Hemovich & Nappi, Spokane, for appellant.

John G. Wetle, Stevens County Prosecutor, Colville, Steven L. Olsen, Jefferson County Deputy Pros. Atty., Port Townsend, for respondent.

THOMPSON, Judge.

William T. Flett appeals a jury verdict finding him guilty of two counts of second degree rape on the Spokane Indian Reservation. We affirm.

During the evening of August 6, 1981, a birthday celebration was held at a site near the Spokane River within the Spokane Indian Reservation. Bill Flett and the complaining witness, an enrolled member of the Spokane Indian Tribe, were two of the estimated 30 to 40 people in attendance at the party.

The victim and her daughter left the party at approximately 11:30 p.m. and returned to their respective homes. At approximately 2:30 a.m., August 7th, Bill Flett left the party site in the company of two companions, one of whom was the son of the complaining witness. Mr. Flett spent the next hour or two making various stops at individuals' homes, ultimately arriving at the victim's home sometime prior to dawn.

The victim testified that Mr. Flett forcibly entered her home, claiming he was looking for his wife. After she refused to have intercourse with Flett, she testified he threw her on the couch and, following a struggle, forcibly raped her twice.

Refusing his request to drive him home, the victim told Mr. Flett to take her son's motorcycle. He did so, but returned later that morning as the son was arriving home. He took Mr. Flett home and returned to the residence. Noticing traces of vomit in the bathroom, he asked his mother if she was all right. She replied, "I'm just upset" and asked if he "took the bastard home".

The victim was employed at a local grocery store and went to work that morning at approximately 10 o'clock. Shortly thereafter she phoned her daughter, who was employed at the Indian Health Center, and asked her to come to the store. When the daughter arrived at the store, the victim, shaking and crying, related that Bill Flett had raped her and that his wife had just been into the shop. She asked her daughter to obtain medication from a nurse at the Center.

On August 28, 1981, an information was filed charging William Flett with two counts of second degree rape. He was convicted by a jury in a December 15, 1981 trial. The trial judge sentenced Mr. Flett to two concurrent 10-year prison terms, suspended. Mr. Flett appeals and the State cross-appeals the sentence suspension.

Mr. Flett questions the jurisdiction of the State of Washington to prosecute the rape charges since they occurred on the Spokane Indian Reservation. Resolution of this issue necessitates review of state and federal jurisdictional statutes.

18 U.S.C. § 1153 provides:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

"Indian country" is defined in 18 U.S.C. § 1151 as:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state ...

The first federal jurisdictional statute of general applicability to Indian reservation lands was enacted as Act of Aug. 15, 1953, ch. 505, Pub.L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-26, 28 U.S.C. § 1360). The Act added section 1162 to Title 18, and granted full state criminal jurisdiction over offenses committed in Indian country in California, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was added to the group in 1958 by Act of Aug. 8, 1958, Pub.L. No. 85-615, § 1, 72 Stat. 545 (codified at 18 U.S.C. § 1162(a), 28 U.S.C. § 1360(a)); Section 6 of the Act gave the remaining states an option to amend their constitutions or statutes to remove any legal impediment to the assumption of jurisdiction by providing:

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.

In 1963, RCW 37.12.010 was enacted to assume state jurisdiction and provided in part:

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 [tribal consent] 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: ...

The effect of the statute was to assume civil and criminal jurisdiction over Indians and Indian territory within the state. But, except in eight listed subject matter areas, jurisdiction would not extend to Indians on trust or restricted lands unless the affected Indian tribe requested it. Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 743-44, 58 L.Ed.2d 740, petition for rehr'g denied, 440 U.S. 940, 99 S.Ct. 1290, 59 L.Ed.2d 500 (1979). See also F. Cohen, Federal Indian Law, ch. 6, § C3-C3(a)(3), at 361-72 (1982). Since the Spokane Indian Tribe has not requested or consented to the assumption of State jurisdiction, the title status of the property where the offense was committed determines state authority to prosecute. If the property is tribal or allotted land within the reservation and is either held in trust by the United States or subject to a restriction against alienation imposed by the United States, the Superior Court does not have jurisdiction.

The parties agree that the victim held title to the property in fee simple through a deed derived from an original patent issued by the United States in 1921. In 1972, she leased the land to the Spokane Tribal Housing Authority (Authority) in consideration for construction of a home pursuant to a HUD-funded housing project. The lease was not recorded. The Authority then leased the house back to her and she regained possession as lessee through a Home Buyer's Ownership Opportunity Agreement dated October 1, 1983. Thus, the land is still owned by the victim in fee while the Authority holds a leasehold interest as a means of financing home construction.

Mr. Flett argues that the Authority leasehold interest and the restrictive nature of the federal regulations involved in this housing project bring the property within the characterization of tribal land subject to restriction on alienation. Mr. Flett cites two federal regulations as authority for this contention:

(1) 24 C.F.R. § 805.218(a)(2) (1980), which provided in pertinent part:

(2) "Trust or restricted land" includes "tribal land" or "individually owned land" as defined in 24 CFR 131.1. "Tribal land" under 24 CFR 131.1 means land or any interest therein held by the United States in trust for a tribe, or land or any interest therein held by a tribe subject to federal restrictions against alienation or encumbrance. "Individually owned land" under 24 CFR 131.1 means land or any interest therein held by the United States in trust for an individual Indian, or land or any interest therein held by an individual Indian subject to federal restrictions against alienation or encumbrance, including allotted land.

and (2) 24 C.F.R. § 805.425(b) (1980), which provided in pertinent part:

(b) Designation of Successor by Homebuyer. A Homebuyer may designate as a successor only a person who, at the time of the designation, is a member of the Homebuyer family and is an authorized occupant of the home in accordance with the MHO Agreement, or if the designation is made before completion of the home, is a member of the Homebuyer's family and is scheduled to be an occupant when the home is completed.

The definition of "tribal lands" for HUD funding purposes and the regulations concerning successors to homebuyers under the program do not necessarily satisfy the state jurisdictional statute, however. "Tribal lands"...