State v. Schmuck

• Decision Date: 06 May 1993
• Docket Number: No. 58987-9,58987-9
• Citation: 121 Wn.2d 373,850 P.2d 1332
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. David P. SCHMUCK, Petitioner. En Banc

Page 373

121 Wn.2d 373

850 P.2d 1332

STATE of Washington, Respondent, v. David P. SCHMUCK, Petitioner.

No. 58987-9

Supreme Court of Washington,

En Banc.

May 6, 1993.

The Norbut Law Firm, Gregory P. Norbut, Poulsbo, WA, for petitioner.

C. Danny Clem, Kitsap County Prosecutor, Pamela B. Loginsky, Deputy, Port Orchard, WA, for respondent.

John C. Sledd, Tribal Atty., Suquamish, WA, amicus curiae for respondent on behalf of the Suquamish Indian Tribe.

Christine O. Gregoire, Atty. Gen., John W. Hough, Deputy, Olympia, WA, amicus curiae for respondent.

Robert S. Mueller, III, Asst. Atty. of U.S., John T. Bannon, Jr., Washington, DC, amicus curiae for respondent.

JOHNSON, Justice.

At issue is whether an Indian tribal police officer has authority to stop and detain a non-Indian who allegedly violates state and tribal law while traveling on a public road within a reservation until that person can be turned over to state authorities for charging and prosecution. Petitioner David P. Schmuck was found guilty of driving while intoxicated on the Port Madison Reservation after being detained by a Suquamish tribal officer and turned over to the Washington State Patrol. Kitsap County Superior Court denied his appeal and affirmed the conviction. We affirm.

I

The parties have stipulated to the facts. Clerk's Papers, at 132-41, 146-50. Suquamish Tribal Police Officer Bailey is commissioned by the Suquamish Indian Tribe (Tribe) to enforce tribal laws within the geographic confines of the Port Madison Reservation (Reservation). The Port Madison Reservation is located in Kitsap County, Washington.

On September 2, 1991, at approximately 7:30 p.m., Tribal Officer Bailey observed a blue Ford pickup truck traveling southbound on Brockton Avenue, a road running through the Reservation. The truck was obviously exceeding the posted 25 m.p.h. speed limit; the officer's radar reading indicated 36 m.p.h. Officer Bailey turned on his emergency lights and pursued the truck, which responded by speeding up. Officer Bailey turned on his siren and continued to follow the truck down multiple streets of the Reservation. After running a stop sign and continuing to accelerate, the truck finally came to a stop on the side of the road.

Officer Bailey approached the pickup truck, advised the driver of the reason for the stop, and requested his driver's license. The license identified the driver as petitioner, David P. Schmuck (Schmuck). Schmuck is not an enrolled member of any recognized Indian tribe, maintains no social ties with any tribe, and is not aware of any Indian ancestors.

Schmuck smelled of intoxicants. Officer Bailey asked him if he had been drinking, and Schmuck said, "I've had a few". Officer Bailey then asked him if he would be willing to take a few field sobriety tests. Schmuck declined. Because Schmuck was a non-Indian, Officer Bailey informed him that he would be detained until the Washington State Patrol could respond ¹ to their location to investigate whether Schmuck had been driving while under the influence of alcohol or drugs (DWI).

After some discussion, Schmuck agreed to perform some field sobriety tests. ² After reviewing the results, Officer Bailey again advised Schmuck that he was being detained until the State Patrol arrived. At approximately 7:40 p.m., Officer Bailey requested assistance from the Washington State Patrol. Trooper Clark arrived at the scene around 8 p.m.

Trooper Clark contacted Schmuck, who was sitting in the truck, and detected a strong odor of intoxicants. Schmuck's eyes were bloodshot and watery. The trooper asked Schmuck to step from the vehicle; Schmuck complied very slowly and walked across the street to Clark's patrol car with a zigzag staggering motion.

Schmuck performed four field sobriety tests and failed them all. Based upon Officer Bailey's report of Schmuck's driving, Schmuck's performance on the field sobriety tests, and the smell of liquor, Trooper Clark advised Schmuck of his constitutional rights and placed him under arrest for DWI. Schmuck was transported to Kitsap County Jail, where he was again advised of his constitutional rights and implied consent warnings. Schmuck voluntarily waived his rights and agreed to answer questions on the alcohol arrest report form. He stated he had consumed a couple of beers, but did not believe his driving was affected by his alcohol use. A BAC Verifier Datamaster was administered at 9:11 p.m., resulting in readings of .17 and .17 grams of alcohol per 210 liters of breath. Clerk's Papers, at 148-50.

On December 23, 1991, judgment was entered against Schmuck in Kitsap County District Court for driving while under the influence of intoxicating liquor in violation of RCW 46.61.502. Kitsap County Superior Court denied Schmuck's appeal and affirmed his DWI conviction, holding that the Suquamish tribal officer had authority to stop and detain Schmuck. This court granted direct review pursuant to RAP 4.2(a)(4).

II

We address three issues presented for review. First, does an Indian tribal officer have inherent authority to stop a non-Indian driving a motor vehicle on a public road within the reservation to investigate a possible violation of tribal law? Second, does a tribal officer have inherent authority to detain a non-Indian motorist who has allegedly violated state and tribal law while on the reservation until he or she can be turned over to state authorities for charging and prosecution? Third, if an Indian tribe does have such inherent authority, has that authority been divested by the State's enactment of RCW 37.12.010 assuming criminal and civil jurisdiction over the operation of motor vehicles on Indian territory and reservations?

We begin by noting that the Suquamish Indian Tribe did not assert authority to prosecute Schmuck for driving while intoxicated, speeding, or running a stop sign. Indian tribal courts do not have inherent jurisdiction to try and punish non-Indians who commit crimes on their land. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 98 S.Ct. 1011, 1022, 55 L.Ed.2d 209 (1978). Instead, criminal offenses occurring on a reservation by non-Indians are subject to prosecution by state or federal governments, depending on the offense. Thus, the question presented is not whether the Suquamish Indian Tribe had authority to prosecute Schmuck, but rather, whether the Tribe had authority to stop and detain Schmuck until he could be turned over to State governmental officials who did have authority to prosecute. ³

Schmuck first argues that Tribal Officer Bailey did not have inherent authority to stop Schmuck's vehicle. We disagree. A review of United States Supreme Court precedent indicates that Indian tribes are limited sovereigns which retain the power to prescribe and enforce internal criminal and civil laws. This power necessarily includes the authority to stop a driver on the reservation to investigate a possible violation of tribal law and determine if the driver is an Indian, subject to the jurisdiction of that law.

Jurisdictional disputes on Indian reservations often involve questions of overlapping federal, state, and tribal jurisdiction. See F. Cohen, Federal Indian Law ch. 6 (1982); Note, Falling Through the Cracks After Duro v. Reina: A Close Look at a Jurisdictional Failure, 15 U. Puget Sound L.Rev. 229, 230-35 (1991). Whether the Suquamish Indian Tribe has authority to stop and detain a non-Indian necessarily turns on an analysis of the limited sovereignty retained by the Tribe.

In analyzing issues of Indian sovereignty, "[i]t must always be remembered that the various Indian tribes were once independent and sovereign nations...." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). However, when Indian tribes were incorporated into United States territory and accepted protection by the federal government, they necessarily lost some of their sovereign powers:

The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.

United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978).

Despite their limited sovereignty, Indian tribes also have a dependent status, in which some aspects of their sovereignty have been either expressly or implicitly divested. Normally, "[a] basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens". Duro v. Reina, 495 U.S. 676, 685, 110 S.Ct. 2053, 2060, 109 L.Ed.2d 693 (1990). However, tribes can no longer be described as sovereigns in this sense. Rather, tribes only retain that sovereignty which is needed to control the tribe's internal relations and to preserve their own unique customs and social order. Duro, 495 U.S. at 685-86, 110 S.Ct. at 2059-60.

Thus, although the status of tribes is that of a limited sovereign, tribes still retain their power of internal self-governance. Duro, 495 U.S. at 686, 110 S.Ct. at 2060. This power includes "the power to prescribe and enforce internal criminal laws". Wheeler, 435 U.S. at 326, 98 S.Ct. at 1088. This power is part of a tribe's "primeval sovereignty", that is, "part of [the tribe's] own retained sovereignty". Wheeler, 435 U.S. at 328, 98 S.Ct. at 1089. This inherent authority is the source of an Indian tribe's power to create and administer an internal criminal justice system, Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir.1975), including "the inherent power to prescribe laws for their members and to punish infractions of those laws". Wheeler, 435 U.S. at 323, 98 S.Ct. at 1086.

An Indian...