State v. Squally
| Decision Date | 10 May 1996 |
| Docket Number | No. 18070-7-II,18070-7-II |
| Citation | 81 Wn.App. 685,915 P.2d 1151 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Lewis SQUALLY, Sr., Appellant. The STATE of Washington, Respondent, v. John S. KALAMA, Appellant. |
Kenneth Lynn Nichols, Thurston County Deputy Pros. Atty., Olympia, for Respondent.
Christina Carole Berg, Seattle, Linda Jeanne Whitt, Olympia, Joan Marie Flowerbird, Olympia, and Bill Tobin, Vashon, for Appellants.
*
In these consolidated appeals, Lewis Squally, Sr. and John Kalama challenge the subject matter jurisdiction of the Washington State courts over offenses occurring on land on the Nisqually Indian Reservation. The Nisqually Indians consented to State criminal and civil jurisdiction over their reservation land in 1957. Squally's and Kalama's offenses took place on land added to the Nisqually Reservation after 1957. We hold that the Nisquallys have not consented to jurisdiction over these after-acquired lands and reverse the convictions.
The Thurston County Prosecuting Attorney charged Squally in superior court with first degree burglary, in violation of RCW 9A.52.020(1)(b). The prosecutor also charged Kalama in district court with carrying a concealed pistol without a permit, in violation of RCW 9.41.050, and with obstructing a public servant, in violation of RCW 9A.76.020(3). Both men were charged for incidents that occurred on Nisqually Reservation land acquired by the Nisqually tribe after 1957.
Squally and Kalama each moved in their respective cases to dismiss the actions for lack of subject matter jurisdiction. Squally and Kalama argued: (1) the State of Washington has only the subject matter jurisdiction that the Nisqually Tribe ceded to it by means of a 1957 tribal resolution; (2) the 1957 resolution asked the State to assume jurisdiction over certain reservation territory identified by legal description; (3) the land upon which the subject criminal offenses were committed was acquired by the Nisqually Tribe after 1957 and was not included in that legal description; and (4) therefore, the Tribe has not authorized the State to exercise jurisdiction over the land where the offenses were committed, and the State lacks such jurisdiction.
In Squally's case, the trial court denied Squally's motion to dismiss and convicted him of second degree burglary. Squally appealed to this court. In Kalama's case, the district court denied Kalama's motion to dismiss the prosecution for lack of subject matter jurisdiction. Kalama sought a writ of certiorari in superior court. The superior court declined to issue the writ, ruling that the State has jurisdiction to prosecute crimes committed by Indians against Indians on the Nisqually Reservation. This court granted discretionary review and consolidated Kalama's case with Squally's.
In 1953 Congress enacted Pub.L. No. 83-280, 67 Stat. 588, (Federal Public Law 280). Federal Public Law 280 granted immediate jurisdiction to five states (California, Minnesota, Nebraska, Oregon, and Wisconsin) over criminal and civil causes of action occurring on Indian land. In some other states, such as Washington, the state constitutions or statutes specifically disclaimed jurisdiction over Indian country. 2 Federal Public Law 280 authorized these states to amend their laws to assume civil and criminal jurisdiction. Federal Public Law 280 also authorized any other state not having jurisdiction to assume civil and criminal jurisdiction at such time and in such manner as the people of the state shall choose. Consent of the Indian tribes was not required. 3
In response to Federal Public Law 280, Washington enacted Laws of 1957, ch. 240 (State Chapter 240), which obligated the State of Washington to assume, pursuant to gubernatorial proclamation, criminal and civil jurisdiction over Indians and Indian territory when a tribe requested the State to assume such jurisdiction. Former RCW 37.12.020--.040. 4 In October of 1957, the Nisqually Indian Community passed a resolution requesting the State of Washington to assume civil and criminal jurisdiction over "the peoples of the Nisqually Indian Community, and all persons being and residing upon the Nisqually Indian Reservation, the same being located in Thurston County, Washington." The resolution included a legal description of the Nisqually Reservation land at that time. The resolution was based explicitly on the Nisquallys' perception that federal and tribal laws had proven "inadequate for the protection of the Nisqually Indian people."
By authority of State Chapter 240, and pursuant to the Nisqually Indians' request, Governor Rosellini proclaimed that, "[t]he criminal and civil jurisdiction of the state of Washington shall apply to the Nisqually Indian people, their reservation, territory, lands and country, and all persons being and residing therein." The proclamation did not contain a legal description of Nisqually Reservation land.
In 1963, the Legislature amended RCW Chapter 37.12 with respect to State jurisdiction over Indians and Indian lands. That legislation asserted Washington's jurisdiction over certain enumerated matters without the consent of the tribes. 5 Prospectively, the State could acquire jurisdiction over any other area of law only at the request of the affected Indian tribe. RCW 37.12.021. But RCW 37.12.010, as amended, also provided that Indian tribes who had petitioned for and been made subject to State jurisdiction on or before March 13, 1963, "shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted." Thus, the Nisquallys remained subject to state court jurisdiction under their 1957 resolution.
Congress amended Federal Public Law 280 by enacting the Indian Civil Rights Act of 1968 (ICRA), 82 Stat. 78 (codified in 25 U.S.C. §§ 1321-26). The ICRA conditions any further state assumption of criminal or civil jurisdiction over Indians and Indian Country on the consent of the affected tribe. 6 Previously acquired state jurisdiction is not affected by the ICRA's consent requirement. 7
The Nisqually Indian Reservation has been enlarged twice since the tribe consented to jurisdiction in 1957: approximately 30 acres were added to the reservation in 1979, and approximately six acres were added in 1982. Squally and Kalama committed their crimes on this "after-acquired" land. The Nisqually Indian Tribe has never formally requested the State of Washington to assume jurisdiction over this land.
This jurisdictional issue appears to be one of first impression in Washington. 8 Because RCW 37.12 expressly does not apply to Indian tribes that previously asked the State to assume jurisdiction, we focus on whether the 1957 Nisqually resolution and gubernatorial proclamation established State jurisdiction over territory acquired by the tribe thereafter. See RCW 37.12.010.
The requirement of consent lies at the heart of this case. The Washington Constitution disclaims any jurisdiction over Indian lands absent the consent of Congress. 9 Federal Public Law 280 provided that "the consent of the United States is hereby given" to permit the states to assume civil and criminal jurisdiction over Indian country. The State of Washington could have unilaterally assumed jurisdiction over all Indian country in the State, but instead the Legislature provided for jurisdiction only when the governor received "from the tribal council or other governing body of any Indian tribe, community, band, or group in this state a resolution expressing its desire that its people and lands be subject to the criminal and civil jurisdiction of the state of Washington." 10 Thus, consent was required of Congress, the Legislature, and the Nisqually people.
The Nisqually Community Council gave the consent of the tribe to the assumption of State jurisdiction over specifically described land:
IT IS RESOLVED that the Nisqually Indian Community hereby requests and expresses its desire that the criminal and civil jurisdiction of the State of Washington be extended to include the peoples of the Nisqually Indian Community, and all persons being and residing upon the Nisqually Indian Reservation, the same being located in Thurston County, Washington, particularly described as follows: [legal description].
Jurisdiction is tied to specific territory, and the Nisquallys granted jurisdiction within specific territory. Absent further consent, the State cannot extend its jurisdiction beyond the specific territory described in the Council Resolution.
The State points out that State Chapter 240 required the Governor to issue a proclamation assuming jurisdiction over Indian country after receiving a request from the tribe. The State argues that the Governor's proclamation was broader than the Nisqually Council's resolution, in that the proclamation was not limited to a legal description of specific territory. The proclamation states:
The criminal and civil jurisdiction of the State of Washington shall apply to the Nisqually Indian people, their reservation, territory, lands and country, and all persons being and residing therein.
The State argues in essence that the proclamation assumed more jurisdiction than the Nisquallys granted, and that the court should give effect to the broader reach of the proclamation.
The State's argument ignores the critical importance of tribal consent in Washington's approach to jurisdiction. 11 State Chapter 240 provided that the tribes must initiate the process of ceding jurisdiction to the State. The Nisqually tribe made such a request. Because Washington could have unilaterally assumed jurisdiction over Indian matters without tribal consent at that time pursuant to Federal Public Law 280 § 7, Washington's legislative approach clearly was designed to accommodate the wishes of...
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