State v. Paul, 35005

• Decision Date: 26 March 1959
• Docket Number: No. 35005,35005
• Parties: STATE of Washington, Plalntiff and Relator, v. Janice PAUL, Defendant. Superior Court for Snohomish County, Charles R. Denney, Judge, Respondent.
• Court: Washington Supreme Court

Page 789

53 Wn.2d 789

337 P.2d 33

STATE of Washington, Plalntiff and Relator, v. Janice PAUL, Defendant Superior Court for Snohomish County, Charles R. Denney Judge, Respondent.

No. 35005.

Supreme Court of Washington, En Banc.

March 26, 1959.

Rehearing Denied May 4, 1959.

Arnold R. Zempel, R. C. Jefferson, Everett, John J. O'Connell, Mitchell Doumit, E. P. Donnelly, Olympia, for relator.

Newell Smith, Everett, for respondent.

Charles P. Moriarty, U. S. Atty., Richard F. Broz, Seattle, Raymond C. Coulter, Regional Sol., Leon Jourolmon, Jr., Asst. Regional Sol., Interior Dept., Portland, Or. amici curiae.

FINLEY, Judge.

Janice Paul, an Indian, is a member of the Skagit tribe and resides on the Tulalip Indian reservation in Snohomish county. She is subject by treaty to the jurisdiction of the Tulalip Indian Corporation.

By information, Janice Paul was charged with the crime of second degree assault. The acts which are alleged to have constituted the assault occurred on the Tulalip reservation, and the person alleged to have been assaulted is an Indian.

A motion for dismissal of the action was filed after the arraignment of Janice Paul. It urged that the superior court for Snohomish county had no jurisdiction of the person of the defendant or the subject matter of the action. In disposing of the matter, the trial judge ordered the cause dismissed, with prejudice, on the ground of lack of jurisdiction, holding chapter 240, Laws of 1957, p. 941, to be unconstitutional. This created an emergent situation respecting law enforcement, peace and order in certain localities adjacent to or embracing Indian reservations in the state of Washington. Consequently, this court granted the state's petition for certiorari.

The constitutionality of chapter 240 supra, should be considered in the light of several constitutional provisions and in relation to certain legislative enactments leading up to the passage of chapter 240, supra.

It was in 1889 that the Congress of the United States admitted the states of Washington, North Dakota, South Dakota and Montana into the Union; Act Feb. 22, 1889, 25 Stat. 676. The enabling act provided, inter alia, for a constitutional convention in the state of Washington. It further provided:

'* * * And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:

* * *

* * *

'Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that the lands belonging to citizens of the United States residing without the said States shall never be taxed at a higher rate than the lands belonging to residents thereof; that no taxes shall be imposed by the States on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use. * * *' (Emphasis supplied).

In compliance with the enabling act, Art. XXVI of the Washington state constitution provided as follows:

'Compact With The United States

'The following ordinance shall be irrevocable without the consent of the United States and the people of this state:

* * *

* * *

'Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof; and that no taxes shall be imposed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use: * * *' (Emphasis supplied).

In 1953, Congress enacted Public Law 280 (Act Aug. 15, 1953, 67 Stat. 588, 590), consenting to the assumption of jurisdiction over Indians by the states. The pertinent sections of Public Law 280, supra, provide:

'Sec. 6. 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.

'Sec. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.' 28 U.S.C.A. § 1360 note.

Supplementing Congressional enactment of Public Law 280, supra, our legislature enacted chapter 240, Laws of 1957. The following portion of chapter 240 is significant:

'Section 1. The state of Washington hereby obligates and binds itself to assume, as hereinafter provided, criminal and civil jurisdiction over Indians and Indian territory, reservation, 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).'

Inter alia, chapter 240, supra, provides that the state of Washington shall not assume jurisdiction over an Indian tribe in this state until such tribe expresses a desire for its people to be subject to the jurisdiction of the state of Washington. The procedure is specified. A tribe may petition the governor of the state. The governor then may issue a...