State v. Squally, 64243-5

• Decision Date: 05 June 1997
• Docket Number: No. 64243-5,64243-5
• Citation: 937 P.2d 1069,132 Wn.2d 333
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Lewis SQUALLY, Sr., Respondent. The STATE of Washington, Petitioner, v. John S. KALAMA, Respondent.

Page 333

132 Wn.2d 333

937 P.2d 1069

The STATE of Washington, Petitioner, v. Lewis SQUALLY, Sr., Respondent.

The STATE of Washington, Petitioner, v. John S. KALAMA, Respondent.

No. 64243-5.

Supreme Court of Washington En Banc.

Argued Feb. 26, 1997.

Decided June 5, 1997.

Bill Tobin, Vashon, Christina C. Berg, Seattle, for Amicus Curiae on Behalf of Nisqually Indian Tribe.

Bernardean Broadous, Thurston County Prosecutor, Olympia, for Petitioner.

Whitt & Associates, Linda J. Whitt, Olympia, for Respondent Lewis Squally, Sr.

Joan M. Flowerbird, Olympia, for Respondent John S. Kalama.

ALEXANDER, Justice.

In this consolidated appeal, we are called upon to decide but one question: Do the Thurston County District and Superior Courts possess jurisdiction to entertain criminal charges leveled against members of the Nisqually Indian Tribe for offenses that allegedly occurred on reservation lands acquired by the tribe following the tribe's cession of criminal jurisdiction to the State of Washington? We hold that jurisdiction does lie and, consequently, reverse the Court of Appeals.

I. PROCEDURAL FACTS

A. State v. Squally

Lewis Squally, Sr., an enrolled member of the Nisqually Indian Tribe, was charged in Thurston County Superior Court with one count of first degree burglary. At trial, he was convicted of the lesser offense of second degree burglary. Squally appealed the conviction to Division Two of the Court of Appeals contending, as he did at the trial court, that the superior court lacked jurisdiction to hear the charge against him because the tribe had not explicitly consented to the State's assumption of criminal jurisdiction over the reservation land on which the burglary was committed. At about the same time, Squally was charged in Thurston County District Court with the offense of violating a no contact order. Following the district court's denial of Squally's motion to dismiss for lack of subject matter jurisdiction, Squally filed a petition for writ of certiorari in Thurston County Superior Court. Following the superior court's denial of his petition, Squally sought discretionary review of the superior court's order in the Court of Appeals. The Court of Appeals granted review consolidating it with Squally's appeal from his burglary conviction.

B. State v. Kalama

John Kalama, also an enrolled member of the Nisqually Indian Tribe, was charged in Thurston County District Court with the offenses of carrying a concealed pistol without a permit (RCW 9.41.050) and obstructing a law enforcement officer (RCW 9A.76.020). Kalama moved to dismiss these charges, contending that the district court lacked jurisdiction on the same basis asserted by Squally--namely that the tribe had not explicitly consented to the State's assumption of criminal jurisdiction over the land on which the charged offenses allegedly took place. His motion was denied. Kalama then petitioned the Thurston County Superior Court for a writ of certiorari. The superior court denied the petition, concluding that the district court had jurisdiction to hear the charges against him. Kalama then sought discretionary review by Division Two of the Court of Appeals of the superior court's order. The Court of Appeals accepted review of Kalama's case and consolidated it with Squally's appeal and review.

II. COURT OF APPEALS

The Court of Appeals reversed Squally's burglary conviction and remanded for entry of an order dismissing that charge as well as the district court charges against Squally and Kalama. In doing so, it concluded that "[t]he Thurston County courts lacked jurisdiction over these prosecutions." State v. Squally, 81 Wash.App. 685, 696, 915 P.2d 1151, review granted, 130 Wash.2d 1007, 928 P.2d 413 (1996). The State then sought and obtained review by this court of the decision of the Court of Appeals.

III. ISSUE PRESENTED

As we have noted above, the issue before us is whether the Thurston County Superior and District Courts possessed jurisdiction over these cases in which it was alleged that Squally and Kalama, members of the Nisqually Tribe, each committed offenses on reservation land.

IV. WASHINGTON'S ASSUMPTION OF CRIMINAL JURISDICTION OVER LANDS OF THE NISQUALLY TRIBE

In deciding the issue before us, it is necessary to understand some of the history of the Nisqually Indian Tribe as well as the relationship that has developed over the last century and a half between the United States, the State of Washington, and the Nisqually Tribe. The Nisqually Tribe received recognition from the United States government as early as 1854, ¹ however, its reservation was not formally recognized until 1857 when the president of the United States entered an executive order formerly establishing the Nisqually Indian Reservation. For most of the next 100 years, jurisdiction over criminal offenses committed by Native Americans on reservation and other Native American lands, including the Nisqually Reservation, resided with the United States Government or the tribe. Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470, 489 n. 33, 498-99, 99 S.Ct. 740, 756 n. 33, 760-61, 58 L.Ed.2d 740, reh'g denied, 440 U.S. 940, 99 S.Ct. 1290, 59 L.Ed.2d 500 (1979).

In 1953, Congress took a significant step toward giving the States of the Union the right to assume jurisdiction over Indian land when it enacted Public Law 280 (codified, as amended, as 18 U.S.C. § 1162). This act gave "[t]he consent of the United States" to Washington and other states "to assume jurisdiction [criminal and civil] 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." Pub.L. No. 280, ch. 505, § 7, 67 Stat. 588, 590 (1953). ²

In response to the federal act, the Washington Legislature enacted a statute which authorized the State of Washington to assume civil and criminal 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[) ]." Laws of 1957, ch. 240, § 1 (later codified as RCW 37.12.021). ³ According to this statute, the State's assumption of jurisdiction was to be effective 60 days after the governor issued a proclamation that jurisdiction had been assumed. In that regard, the statute provided that "the State of Washington shall assume jurisdiction over offenses committed by or against Indians in the lands prescribed in the proclamation to the same extent that this state has jurisdiction over offenses committed elsewhere within this state." Laws of 1957, ch. 240, § 3 (emphasis added).

Although the federal act did not require Washington to obtain the consent of a tribe prior to assuming criminal jurisdiction over offenses committed on tribal land, Washington's statute provided that the governor must first receive a resolution from a tribe expressing its agreement to state jurisdiction before issuing a proclamation. Laws of 1957, ch. 240, § 2 (RCW 37.12.021). Upon receipt of the resolution, the governor was then required to issue "a proclamation to the effect that such jurisdiction shall apply to all Indians and all Indian territory, reservation, country, and lands of the Indian body involved." Laws of 1957, ch. 240, § 2 (RCW 37.12.021).

Shortly after the state statute was enacted, the Nisqually Tribe issued a resolution expressing its desire to have the State of Washington assume criminal and civil jurisdiction over the Nisqually Indian people. The resolution stated in pertinent part:

WHEREAS, the Nisqually Indian people have found the laws of the United States, as applied to Indian territory, and tribal laws, insofar as such can be effectively enforced, to be inadequate for the protection of the Nisqually Indian people, and they therefore desire that the State of Washington assume criminal and civil jurisdiction over peoples residing upon their reservation and territory, now therefore,

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.]

Clerk's Papers (Squally) at 21.

Upon receipt of the tribe's resolution, this state's then governor, Albert D. Rosellini, issued a proclamation stating 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." Clerk's Papers (Squally) at 20. The governor's proclamation did not contain a metes and bounds description of the Nisqually Reservation.

V. POST-CESSION EXPANSION OF NISQUALLY RESERVATION

In 1979, the Nisqually Tribe expanded its reservation by adding approximately 30 acres of land. In 1982, it added six more acres of land to the reservation. At no time material to this action has the Nisqually Tribe requested the State to assume jurisdiction over the reservation land that it acquired in 1979 and 1982. Neither has it requested that its 1957 resolution be modified in any way. The parties agree that the burglary committed by Squally, the other offense allegedly committed by Squally, and the offenses allegedly committed by Kalama occurred on the newly acquired reservation land.

VI. ANALYSIS

Proof of jurisdiction beyond a reasonable doubt is an integral component of the State's burden in every criminal prosecution. State v. Svenson, 104 Wash.2d 533, 542, 707 P.2d 120 (1985). In most circumstances, proof that the crime was committed in the state of Washington satisfies the jurisdictional element. State v. L.J.M., 129 Wash.2d 386, 392, 918 P.2d 898 (1996)....