State v. Shale

• Decision Date: 19 March 2015
• Docket Number: No. 90906–7.,90906–7.
• Citation: 182 Wash.2d 882,345 P.3d 776
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Howard John Evans SHALE, Appellant.

182 Wash.2d 882

345 P.3d 776

STATE of Washington, Respondent

v.Howard John Evans SHALE, Appellant.

No. 90906–7.

Supreme Court of Washington, En Banc.

March 19, 2015.

Jodi R. Backlund, Manek R. Mistry, Skylar Texas Brett, Backlund & Mistry, Olympia, WA, for Appellant.

Michael Edward Haas, Jefferson County Prosecuting Attorney, Port Townsend, WA, for Respondent.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, amicus counsel for Washington Association of Pros. Attorneys.

Fronda Colleen Woods, Wash. Atty. Genl. LAL Div., Jay Douglas Geck, Office of the Attorney General, Olympia, WA, amicus counsel for Attorney General.

Opinion

GONZÁLEZ, J.

¶ 1 We are asked to decide whether Washington State has the power to prosecute an enrolled member of the Yakama Nation living on the Quinault Indian Nation's reservation for failing to register with the county sheriff as a sex offender. We find the State has that power and affirm.

Facts

¶ 2 Howard Shale is an enrolled member of the Yakama Nation. He has family in the Quinault Indian Nation as well. In 1997, Shale was convicted of raping a child under 12 in violation of 18 U.S.C. § 2241(c). After Shale was released from prison, he moved to Seattle and registered as a sex offender with the King County sheriff.

¶ 3 In 2012, a Jefferson County sheriff's detective began investigating whether Shale had moved to her county without reregistering as a sex offender. At least two officers assisted the detective in her investigation; a Jefferson County sheriff's deputy and a Quinault tribal police officer. One officer went to Shale's father's home, which may have been in Clallam County, and spoke to Shale himself. Shale told the officer he had been living in his father's home for at least three months. The tribal police officer went to the Quinault reservation in Jefferson County and spoke to several people there. They told him Shale had been living on the reservation for approximately a year. Shale later testified that he was living on the reservation with his grandmother. Taken together, the police reports suggest Shale was dividing his time between the two family homes. Based on the detective's report, the Jefferson County prosecutor charged Shale with failure to register with the county sheriff as a sex offender under RCW 9A.44.130(1)(a).

¶ 4 Shale moved to dismiss the charges, arguing that “Jefferson County has no jurisdiction for the charged crime, as it is alleged to [have been] committed by a tribal member in Indian Country.” Clerk's Papers (CP) at 3.¹ According to his counsel's declaration, Shale said he had registered as a sex offender with the Quinault Indian Nation but the record does not establish whether that was before or after these charges were brought. The State did not dispute that Shale was an Indian living on the Quinault reservation but argued that he was still subject to prosecution because he was not a member of the Quinault Indian Nation. Judge Harper agreed and denied the motion to dismiss, concluding that RCW 37.12.010 carved out from state authority only “Indians when on their tribal lands,” not tribal members while on another tribe's land. RCW 37.12.010 (emphasis added), quoted in CP at 9, 18. Nothing in the record establishes the Quinault Indian Nation's views on this prosecution.²

¶ 5 Shale stipulated to the police records and was convicted at a bench trial. Shale appealed, initially raising only two assignments of error: that “[t]he trial court lacked jurisdiction because Mr. Shale is a member of a federally recognized Indian tribe and his offense occurred on the Quinault reservation” and “[t]he trial court erred by finding Mr. Shale guilty and sentencing him for failure to register as a sex offender.” Appellant's Opening Br. at 1. A Court of Appeals commissioner considered the appeal on the merits and affirmed. Ruling Affirming J. & Sentence (No. 44654–5–II) at 3–4. Shale successfully moved to modify the Commissioner's ruling, and, after another round of briefing where Shale raised several new issues,³ the Court of Appeals certified the case for our consideration, which we accepted. The Washington Association of Prosecuting Attorneys and the Washington State attorney general have filed separate amicus briefs supporting the State and raising new issues.⁴

Analysis

¶ 6 Until the 1950s, “criminal offenses by Indians in Indian country were subject to only federal or tribal jurisdiction,” not state. State v. Cooper, 130 Wash.2d 770, 773, 928 P.2d 406 (1996) (citing Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (Yakima Indian Nation )). States had little lawful authority on tribal lands—so little that the United States Supreme Court observed that “[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history.” Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 89 L.Ed. 1367 (1945)(citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), abrogation recognized by Nevada v. Hicks, 533 U.S. 353, 361, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ). To that end, the enabling act that brought Washington State into the union limited the state's authority over Indian lands, which “ ‘remain[ed] under the absolute jurisdiction and control of the Congress of the United States.’ ” State v. Paul, 53 Wash.2d 789, 790–91, 337 P.2d 33 (1959) (emphasis omitted) (quoting Enabling Act, ch. 180, 25 Stat. 676 (1889)). However, Washington State did assert jurisdiction over some crimes committed on tribal land involving only non-Indians.

State v. Lindsey, 133 Wash. 140, 144, 233 P. 327 (1925) (citing State v. Williams, 13 Wash. 335, 43 P. 15(1895) ).

¶ 7 The formal relationship between the states and the tribal nations changed dramatically in 1953, when Congress enacted Public Law 280 (Pub. L. No. 83–280, 67 Stat. 588 (1953)). That act required some states and authorized others to “assume[ ] ... jurisdiction over Indians” within a State's borders. Paul, 53 Wash.2d at 791, 337 P.2d 33. In 1957, our state “opted for state jurisdiction ... for any tribe that would give its consent.” Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280 at 17–18 (2012) (citing Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740 ); see alsoLaws of 1957, ch. 240. Soon afterwards, a group purporting to represent the Quinault Tribal Council requested the State assume civil and criminal jurisdiction over the Quinault reservation, and Governor Rosellini, on behalf of the State, agreed. Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 652 (9th Cir.1966).

¶ 8 In 1963, the state “assert[ed] nonconsensual civil and criminal jurisdiction over all Indian country with certain exceptions” not relevant here. Cooper, 130 Wash.2d at 773, 928 P.2d 406 (citing ch. 37.12 RCW) ; Champagne & Goldberg,supra, at 17–18. The legislature may have been motivated by an attorney general report that concluded few of the tribes at the time had tribal judicial systems prepared for the change. See Allen Lane Carr & Stanley M. Johnson, Comment, Extent of Washington's Criminal Jurisdiction over Indians, 33 Wash. L. Rev. & St. B. J. 289, 292 n. 16 (1958) (citing Richard F. Broz, Office of Att'y Gen., Legal Problems Concerning Indians and Their Rights under Federal and State Laws) (Oct. 20, 1954) (unpublished manuscript). While the available legislative history of RCW 37.12.010 is sparse, there was debate on the senate floor on a proposed amendment that would have conditioned acceptance of jurisdiction on a promise of reimbursement to the affected counties for the costs associated with the assumption of jurisdiction from the United States Bureau of Indian Affairs. Senate Journal, 38th Leg., Reg. Sess., at 213 (Wash. 1963). This amendment may have been inspired by the fact that Public Law 280 did not include “any federal funding support for the states' new law enforcement and criminal justice duties.” Champagne & Goldberg,supra, at 13. The amendment failed, and Governor Rosellini signed the bill into law.

¶ 9 Soon afterwards, our State began to reconsider its broad, nonconsensual assertion of authority over Indian tribes. In 1965, at the request of the Quinault Indian Nation, Governor Rosellini attempted to withdraw his early acceptance of state jurisdiction and return jurisdiction to the federal government. Comenout v. Burdman, 84 Wash.2d 192, 198, 525 P.2d 217 (1974). This return of jurisdiction from the state to the federal government in the aftermath of Public Law 280 is commonly referred to as “retrocession.” E.g., id. Three years later, Congress passed legislation that explicitly allowed states to request to retrocede previously claimed jurisdiction over tribes to the federal government and required tribal consent for future extension of state jurisdiction over Indians and Indian tribes. Cooper, 130 Wash.2d at 774, 928 P.2d 406 (citing 25 U.S.C. §§ 1321 –1323 ); Pub. L. 90–284, 82 Stat. 77; 33 Fed. Reg. 17339 (1968). The 1968 act did not invalidate prior assumptions of state jurisdiction. Cooper, 130 Wash.2d at 774, 928 P.2d 406 (citing In re Estate of Cross, 126 Wash.2d 43, 47, 891 P.2d 26 (1995) ).

¶ 10 Setting up the question we need to answer today, the federal government accepted only partial retrocession.

Comenout, 84 Wash.2d at 198, 525 P.2d 217. Specifically, the Department of the Interior Secretary Walter Hickel, on behalf of the federal government, “accept[ed] ... retrocession to the United States of all jurisdiction exercised by the State of Washington over the Quinault Indian Reservation, except as provided under Chapter 36, Laws of 1963 (RCW 37.12.010 –37.12.060 ).” Notice of Acceptance of Retrocession of Jurisdiction, 34 Fed. Reg. 14288 (Aug. 30, 1969) (emphasis added). Chapter 37 RCW says in most relevant part that “[t]he state of Washington hereby obligates and binds itself to assume criminal ... jurisdiction over Indians and Indian territory .....