State v. Sohappy

• Decision Date: 07 July 1988
• Docket Number: No. 54505-7,54505-7
• Citation: 757 P.2d 509,110 Wn.2d 907
• Parties: STATE of Washington, Respondent, v. Steve Gary SOHAPPY, Petitioner.
• Court: Washington Supreme Court

Page 907

110 Wn.2d 907

757 P.2d 509

STATE of Washington, Respondent, v. Steve Gary SOHAPPY, Petitioner.

No. 54505-7.

Supreme Court of Washington,

En Banc.

July 7, 1988.

Russell Grattan, Vancouver, Susan Lourne, Stevenson, for petitioner.

Robert K. Leick, Skamania County Prosecutor, Grant Hansen, Deputy Skamania County Prosecutor, Stevenson, for respondent.

BRACHTENBACH, Justice.

The single issue is whether the state has jurisdiction for criminal prosecution of an enrolled member of the Yakima Indian Nation for assaults on non-Indian law enforcement officers at an "in-lieu" fishing site? The defendant's jury conviction was affirmed by the Court of Appeals in an unpublished opinion. State v. Sohappy, noted at 49 Wash.App. 1031 (1987). We reverse.

The in-lieu site involved here, Cooks Landing, is on the Columbia River. This site resulted from congressional legislation authorizing the Secretary of War

to acquire lands and provide facilities in the States of Oregon and Washington to replace Indian fishing grounds submerged or destroyed as a result of the construction of Bonneville Dam ... Provided further, That such lands and facilities shall be transferred to the Secretary of the Interior for the use and benefit of the Indians, and shall be subject to the same conditions, safeguards, and protections as the treaty fishing grounds submerged or destroyed;

Act of Mar. 2, 1945, Pub.L. No. 14, 59 Stat. 22 (1945).

The in-lieu fishing sites so established are for the benefit of the Yakima, Umatilla, and Warm Springs Indian Tribes, and such other Columbia River Indians, if any, who had treaty fishing rights at locations inundated or destroyed by Bonneville Dam. The use of the sites is restricted to such Indians. 25 C.F.R. § 248.2 (1987). The Indian treaty fishing rights resulted from an 1855 treaty with 14 confederated tribes and bands considered for purposes of the treaty as one nation under the name of "Yakama." The treaty was ratified by Congress in 1859. 12 Stat. 951 (1863).

At the outset we note two points: (1) Our holding is narrowly limited to the in-lieu site here involved. We so restrict our holding because of the Ninth Circuit decision upon which we rely, cited hereafter. (2) The State's 4-page brief is of no use to this court. It cites not a single case.

The question of jurisdiction here is dependent upon an analysis of RCW 37.12.010, enacted in 1963 by Laws of 1963, ch. 36. The state statute was enacted pursuant to congressional authority contained in Pub.L. No. 83-280, § 6, 67 Stat. 588 (1953). The United States Supreme Court held that RCW 37.12.010 complies with Pub.L. No. 83-280 and is constitutional. Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 58 L.Ed.2d 740, 99 S.Ct. 740, reh'g denied, 440 U.S. 940, 59 L.Ed.2d 500, 99 S.Ct. 1290 (1979).

Pursuant to RCW 37.12.010, the State assumed criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands, but such 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. Eight categories of full jurisdiction regardless of land status were established; none is applicable here. Jurisdiction beyond those eight categories over Indians on allotted and trust lands would be assumed only if the affected tribe so requested. RCW 37.12.021. The Yakima Indian Nation has not requested state assumption of full jurisdiction.

The question is whether this in-lieu site is within the category described in RCW 37.12.010 over which the State has not asserted jurisdiction. Specifically, was the defendant on tribal lands or allotted lands within an established Indian reservation and held in trust by the United States, the delimiting language of the statute?

Our jurisdictional statute must be construed in accordance with federal law. Under 18 U.S.C. § 13 (1982), a violation of state law within "Indian country" is a federal offense. 18 U.S.C. § 1152 (1982). This court has held that jurisdiction under 18 U.S.C. § 1152 (1982) is exclusive. Arquette v. Schneckloth, 56 Wash.2d 178, 182-83, 351 P.2d 921 (1960). The United States Supreme Court noted that on lands and restricted lands within the reservations in Washington where the tribes have not requested state jurisdiction over crimes by Indians, jurisdiction is shared by the tribal and federal governments. Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, supra 439 U.S. at 498-99, 99 S.Ct. at 760-61.

The status of this very in-lieu site was considered in United States v. Sohappy, 770 F.2d 816 (9th Cir.1985), cert. denied, 477 U.S. 906, 91 L.Ed.2d 568, 106 S.Ct. 3278 (1986). Defendants there were convicted of violations of the Lacey Act, 16 U.S.C. § 3372 (1982), prohibiting taking and selling fish in violation of Indian tribal law or state law. Only tribal law offenses which occur within "Indian country" are within 16 U.S.C. § 3372 (1982). "Indian country" is defined to include "all land within the limits of any Indian reservation under the jurisdiction of the United States Government". 18 U.S.C. § 1151 (1982).

The Ninth Circuit noted, as we have noted, that the Cooks Landing site was transferred to the Secretary of the Interior "for the use and benefit of the Indians" and that it is subject to federal regulation under 25 C.F.R. pt. 248 (1987).

The court said:

The term "Indian reservation" is not defined by statute. However, the Supreme Court in United States v. John, 437 U.S. 634, 649, 98 S.Ct. 2541, 2549, 57 L.Ed.2d 489 (1978), suggested that land "declared by Congress to be held in trust by the Federal Government for the benefit of the ... Indians ... [is a] 'reservation,' at least for the purposes of federal criminal jurisdiction [under 18 U.S.C. § 1153]." Similarly, the Supreme Court in United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914), stated the principal test as...