State v. Jim

• Decision Date: 09 February 2012
• Docket Number: No. 84716–9.,84716–9.
• Parties: STATE of Washington, Petitioner, v. Lester Ray JIM, Respondent.
• Court: Washington Supreme Court

173 Wash.2d 672

273 P.3d 434

STATE of Washington, Petitioner,

v.Lester Ray JIM, Respondent.

No. 84716–9.

Supreme Court of Washington, En Banc.

Argued June 28, 2011.Decided Feb. 9, 2012.

Michael S. Grossmann, Joseph Vincent Panesko, Attorney General's Office, Olympia, WA, for Petitioner.

Thomas Andrew Zeilman, Law Offices of Thomas Zeilman, Yakima, WA, for Respondent.

Julio Vicente Alfons Carranza, Yakama Nation Office of Legal Counsel, Toppenish, WA, amicus counsel for Confederated Tribes and Bands of the Yakama Nation.Matthew Brent Leonhard, CTUIR Department of Justice, Pendleton, OR, amicus counsel for Tribes of the Umatilla Indian Reservation.John William Ogan, Karnopp Petersen, LLP, Bend, OR, amicus counsel for Confederated Tribes of the Warm Springs Reservation of Oregon.Julie Sobotta Kane, David J. Cummings, Nez Perce Tribe Legal Counsel, Lapwai, ID, amicus counsel for Nez Perce Tribe.OWENS, J.

[173 Wash.2d 675] ¶ 1 Lester Ray Jim, an enrolled member of the Yakama Nation, was cited by the State for unlawfully retaining undersized sturgeon. This occurred at the Maryhill Treaty Fishing Access Site (Maryhill), a plot of land set aside by Congress exclusively for the use of four Columbia River tribes to exercise their treaty fishing rights. The State argues it has rightfully assumed criminal jurisdiction at Maryhill. We disagree. We hold that Maryhill is reserved and held by the United States for the exclusive use of tribal members and that the State therefore lacks criminal jurisdiction.

FACTS

¶ 2 The basic facts of this case are undisputed. On June 25, 2008, Jim incidentally caught five undersized sturgeon in his gill net when fishing commercially, under right of treaty, in the Columbia River. Jim took the undersized sturgeon ashore at Maryhill. There, officers from the Washington State Department of Fish and Wildlife issued a citation to Jim for unlawful use of a net and unlawfully retaining the undersized sturgeon, citing RCW 77.15.580(1)(b) and former WAC 220–32–05100W (Wash. St. Reg. 08–14–029 (June 21, 2008)), repealed by Wash. St. Reg. 08–14–091 (July 1, 2008).¹

[173 Wash.2d 676] ¶ 3 Jim describes it as the usual practice among Yakama fishers to wait until coming ashore to release sturgeon. He contends that he told the Department of Fish and Wildlife officers that he planned to release the sturgeon, which can survive out of water for several hours, and that the officers in fact released the live fish back into the river. While both state and tribal law restrict the retention of undersized sturgeon, only state statute makes it unlawful to “[f]ail[ ] to return unauthorized fish to the water immediately.” RCW 77.15.580(1)(b) (emphasis added). Tribal law allows “[a]ll Yakama members ... a reasonable opportunity to release alive any sturgeon of prohibited length incidentally caught in authorized fisheries.” Revised Law & Order Codes of Yakama Nation § 32.18.07(D) (emphasis added); Clerk's Papers (CP) at 21.

¶ 4 This incident occurred at Maryhill. Maryhill is one of several treaty fishing access sites established by Congress in 1988. Indian Reorganization Act Amendments, Pub.L. No. 100–581, § 401, 102 Stat. 2938 (1988). These treaty fishing access sites were created by Congress in response to the devastation of many accustomed fishing grounds of Columbia River tribes that were flooded when the Bonneville Dam was built. S.Rep. No. 100–577, at 43 (1988), reprinted in 1988 U.S.C.C.A.N. 3908, 3933.

¶ 5 By way of background, by treaty in 1855, the Yakama Nation ceded claim to tens of thousands of acres of land and reserved other land and rights, including “the right of taking fish at all usual and accustomed places.” Treaty between the United States and the Yakama Nation of Indians, arts. 1–3, June 9, 1855, 12 Stat. 951, 953. In 1945, in response to the devastation of many of the “usual and accustomed places” for Yakama and other Indian treaty fishing, Congress first created several “in-lieu” fishing sites. River and Harbor Act of 1945, Pub.L. No. 79–14, § 2, 59 Stat. 10, 22 (1945) (“[S]uch lands ... shall be subject to the same conditions, safeguards, and protections as the treaty fishing grounds submerged or destroyed.”); see State v. Sohappy, 110 Wash.2d 907, 908–09, 757 P.2d 509 (1988). Then, in 1988, Congress provided for the establishment of at least six additional treaty fishing access sites, as well as the improvement of existing in-lieu sites. Maryhill is one such treaty fishing access site. Congress indicated that these newer treaty fishing access sites were to be created and treated consistently with the existing in-lieu sites and that they were “for the permanent use and enjoyment of the Indian tribes.” S.Rep. No. 100–577, at 31, 43, reprinted in 1988 U.S.C.C.A.N. at 3921, 3933 (emphasis added). By law, the land must “be administered to provide access to usual and accustomed fishing areas” for four tribes, including “the Confederated Tribes and Bands of the Yakima Indian Nation.” § 401(a), 102 Stat. at 2944. Federal regulations make clear that the right of use is reserved exclusively for the named tribes. 25 C.F.R. § § 247.2(b), .3.

¶ 6 Jim challenged the State's jurisdiction to prosecute him for an alleged criminal violation at Maryhill. Specifically, Jim filed a motion in the Klickitat County District Court to dismiss this case because the State lacks jurisdiction to regulate or prosecute him under RCW 77.15.580. On October 21, 2008, the district court granted Jim's motion. The State appealed to the Klickitat County Superior Court. In a written opinion dated April 1, 2009, relying on State v. Cooper, 130 Wash.2d 770, 928 P.2d 406 (1996), the superior court concluded that the State has jurisdiction because “[t]he Maryhill Treaty Fishing Access Site is not within the boundary of the Yakama reservation.” CP at 51.

¶ 7 Jim, in turn, appealed. The Court of Appeals reversed the superior court, reinstating the district court's order of dismissal. State v. Jim, 156 Wash.App. 39, 44, 230 P.3d 1080 (2010). The Court of Appeals relied on State v. Sohappy, which “was limited to a particular in-lieu fishing site.” Jim, 156 Wash.App. at 42, 230 P.3d 1080. However, it reasoned that, “[w]hile State v. Sohappy merits a narrow construction, ... that court did not intend no other treaty site could ever be exempt from State criminal jurisdiction.” Id. at 43, 230 P.3d 1080. The Court of Appeals concluded that Jim's case is factually similar to the facts in State v. Sohappy and, accordingly, that the State does not have criminal jurisdiction at Maryhill. Jim, 156 Wash.App. at 43, 230 P.3d 1080.

¶ 8 The State again appealed, and this court accepted discretionary review. State v. Jim, 170 Wash.2d 1001, 245 P.3d 226 (2010).

ISSUE

¶ 9 Does the State have criminal jurisdiction to cite an enrolled member of the Yakama Nation at Maryhill?

ANALYSIS

Standard of Review

¶ 10 Where there is no factual dispute as to the location of the alleged crime, the question of the State's jurisdiction is a question of law. State v. L.J.M., 129 Wash.2d 386, 396, 918 P.2d 898 (1996). This court reviews questions of law de novo. State v. Squally, 132 Wash.2d 333, 340, 937 P.2d 1069 (1997).

Public Law 280 and State Jurisdiction

¶ 11 Washington State's jurisdiction over Indian country is limited. Indian country is defined by federal law to mean:

(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, and

(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151.

¶ 12 Through Public Law 280, Congress gave leeway to states, except those it required, to assume jurisdiction over Indian country. Pub.L. No. 83–280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162; 25 U.S.C. §§ 1321, 1323, 1324); see Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 471–74, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) ( Yakima Indian Nation ). Public Law 280 was later amended by Congress to require tribal consent to state jurisdiction in Indian country. See 25 U.S.C. §§ 1321, 1323. However, before then, Washington State assumed some criminal and civil jurisdiction over Indian country. Laws of 1957, ch. 240, § 1, amended by Laws of 1963, ch. 36, § 1; see Yakima Indian Nation, 439 U.S. at 499, 502, 99 S.Ct. 740 (holding that RCW 37.12.010 complies with Public Law 280 and is constitutional). This case concerns Washington's assumption of criminal jurisdiction.

¶ 13 State jurisdiction over Indian country is codified at RCW 37.12.010. The statute provides that Washington assumes criminal jurisdiction

over Indians and Indian territory, reservations, country, and lands ..., 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.

RCW 37.12.010. State jurisdiction is further limited by a provision that provides, among other things, that nothing in chapter 37.12 RCW shall deprive any Indian or tribe of a treaty fishing right.² RCW 37.12.060. While a tribe can consent to greater state jurisdiction, see RCW 37.12.021, the Yakama Nation has never given its consent and is therefore only subject to the nonconsensual jurisdiction asserted by the State in RCW 37.12.010. Yakima Indian Nation, 439 U.S. at 465–66, 99 S.Ct. 740. In sum, under RCW 37.12.010, the State does not have criminal jurisdiction over Yakama Indians on tribal lands that are within an established reservation and...