The Scope of State Criminal Jurisdiction over Offenses Occurring on Yakama Indian Reservation
| Decision Date | 27 July 2018 |
| Docket Number | 18-5 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | The Scope of State Criminal Jurisdiction over Offenses Occurring on the Yakama Indian Reservation |
In partially retroceding the criminal jurisdiction that it had obtained under Public Law 280, the State of Washington retained criminal jurisdiction over an offense on the Yakama Indian Reservation when the defendant or the victim is a non-Indian, as well as when both are non-Indians.
MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY SOLICITOR DEPARTMENT OF THE INTERIORYou have asked us to examine the scope of state criminal jurisdiction on the Yakama Indian Reservation in the State of Washington. Specifically, you have asked whether Washington in retroceding criminal jurisdiction to the United States over offenses on the reservation involving Indians, retained jurisdiction over criminal offenses only when both the defendant and the victim are non-Indians, or also when either the defendant or the victim is a non-Indian.[1]
In 1963, Washington assumed jurisdiction over criminal offenses on the Yakama Reservation under Public Law 280, a 1953 federal statute. See Pub. L. No. 83-280, § 7, 67 Stat. 588. In 2014, the Governor of Washington partially retroceded that jurisdiction in a proclamation accepted by the United States. See Acceptance of Retrocession of Jurisdiction for Yakama Nation, 80 Fed. Reg. 63, 583, 63, 583 (Oct. 20, 2015) (“Retrocession Acceptance”); see also 25 U.S.C. § 1323(a). Your question turns on the interpretation of the Governor's proclamation in light of the federal statutory framework.
The two pertinent paragraphs of the Governor's proclamation addressing Washington's partial retrocession of criminal jurisdiction both state that, “[w]ithin the exterior boundaries of the Yakama Reservation, ” Washington retains “jurisdiction over criminal offenses involving non-Indian [ 1] defendants and non-Indian victims.” Proclamation by the Governor 14-01, ¶¶ 2, 3, at 2 (Jan. 17, 2014) (“Proclamation 14-01”). In a letter transmitting the proclamation to the Department of the Interior (“DOI”), the Governor explained that “the intent” in the relevant paragraphs “is for the State to retain jurisdiction . . . where any party is a non-Indian.” Letter for Kevin Washburn, Assistant Secretary of Indian Affairs, DOI, from Jay Inslee, Governor State of Washington, Re: Yakama Nation Retrocession Petition at 2 (Jan. 27, 2014) (“Gov. Inslee Letter”).[2] In notifying the Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”) of the United States' acceptance of the retrocession, DOI stated that, with respect to “the extent of retrocession, ” the proclamation was “plain on its face and unambiguous, ” but DOI did not set out its view of that plain meaning. Letter for JoDe Goudy, Chairman Yakama Nation Tribal Council, from Kevin K. Washburn Assistant Secretary, DOI at 5 (Oct. 19, 2015) (“2015 DOI Letter”).[3]
In a November 2016 guidance memorandum, DOI's Bureau of Indian Affairs (“BIA”) took the position that, under the proclamation, Washington had retained criminal jurisdiction on the Yakama Reservation only over those cases in which both the defendant and the victim are non-Indian. Memorandum for Darren Cruzan, Director, Office of Justice Services, from Lawrence S. Roberts, Principal Deputy Assistant Secretary, BIA, Re: Guidance to State, Local and Tribal Enforcement Agencies on Yakama Retrocession Implementation at 1 (Nov. 30, 2016) (“BIA Guidance”). In the letter requesting our opinion, DOI now “concedes the scope of jurisdiction retroceded by the State is somewhat ambiguous, ” but otherwise stands by the interpretation set forth in the 2015 DOI Letter and the 2016 BIA Guidance.[4] Request Letter at 1. [ 2]
Having considered the language of the proclamation and the relevant context, we conclude that the interpretation offered by Washington is the correct one. This conclusion is consistent with the only published judicial decision directly addressing this issue. See State v. Zack, 413 P.3d 65 70 (Wash.Ct.App. 2018), petition for review filed, No. 95792-4 (Wash. Apr. 9, 2018).
We begin with a brief overview of federal, state, and tribal criminal jurisdiction on Indian reservations before turning to the jurisdiction Washington assumed under Public Law 280 and then partially retroceded.
Congress has defined “Indian country” as including, in part, “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” 18 U.S.C. § 1151(a). “Criminal jurisdiction over offenses committed in ‘Indian country' is governed by a complex patchwork of federal, state, and tribal law.” Negonsott v. Samuels, 507 U.S. 99, 102 (1993) (internal quotation marks and citation omitted). The federal government's criminal jurisdiction derives primarily from the General Crimes Act, 18 U.S.C. § 1152, and the Major Crimes Act, id. § 1153. The General Crimes Act makes applicable in Indian country those federal criminal statutes that are applicable in places, other than the District of Columbia, under the exclusive jurisdiction of the United States. [ 3] Id. § 1152. It does not apply to “offenses committed by one Indian against the person or property of another Indian, ” id.-a category of cases over which the tribe will generally retain exclusive jurisdiction, see United States v. Lara, 541 U.S. 193, 204-05 (2004). The Major Crimes Act, however, provides for federal jurisdiction over an Indian who has committed, in Indian country, any of the serious crimes on an enumerated list, whatever the status of the victim. 18 U.S.C. § 1153.
In the absence of federal legislation providing otherwise, Indian tribes generally have-and States generally do not have-criminal jurisdiction over Indians within Indian reservations.[5] See Lara, 541 U.S. at 199-200; Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984). Indian tribes, however, have no “inherent jurisdiction to try and to punish non-Indians.” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978). Although no statute speaks precisely to the question, the Supreme Court has concluded that a State has criminal jurisdiction over a non-Indian who commits a crime against a non-Indian on an Indian reservation within that State. See, e.g., New York ex rel. Ray v. Martin, 326 U.S. 496, 500 (1946); Draper v. United States, 164 U.S. 240, 242-43 (1896); United States v. McBratney, 104 U.S. 621, 624 (1882). “As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws, except where Congress in the exercise of its plenary and exclusive power over Indian affairs has expressly provided that State laws shall apply.” Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470-71 (1979) (“Yakima Indian Nation”) (internal quotation marks and citation omitted).
Against this backdrop of overlapping federal and tribal jurisdiction, Congress enacted Public Law 280 “in part to deal with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.” Yakima Indian Nation, 439 U.S. at 471. Although earlier legislation had conveyed jurisdiction to certain States in specific circumstances, Public Law 280 “was the first federal [ 4] jurisdictional statute of general applicability to Indian reservation lands.” Yakima Indian Nation, 439 U.S. at 471; see id. at 471 n.8 (citing earlier statutes).
Public Law 280 provided for additional state criminal jurisdiction in two ways. First, it provided that five (and later six) named States “shall have jurisdiction over offenses committed by or against Indians” in certain specified areas “to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, ” and that “the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State.” 18 U.S.C. § 1162(a). In the areas where the named States obtained mandatory jurisdiction, Public Law 280 made the General Crimes Act and Major Crimes Act inapplicable. See id. § 1162(c).
Second, for other States, including Washington, Public Law 280 offered an alternative path to jurisdiction by providing the “consent of the United States” for “any other State . . . to assume jurisdiction 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. 83-280, § 7, 67 Stat. at 590. Through action of its legislature, a State could therefore “unilaterally extend[] full jurisdiction over crimes and civil causes of action” occurring on an Indian reservation. Yakima Indian Nation, 439 U.S. at 499. Such a State could also choose to assume only part of the offered jurisdiction, limiting either the geographical reach or subject matters of its jurisdiction. Id. at 496-97.
Washington opted to assume some jurisdiction under Public Law 280. In 1963, the State enacted legislation generally assuming criminal and civil jurisdiction “over Indians and Indian territory, reservations, country, and lands in accordance with [Public Law 280].” Wash. Rev. Code Ann § 37.12.010 (West 2003). But this general assumption of jurisdiction explicitly did “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 or subject to a restriction against alienation imposed by the United States” unless certain subject matters were...
To continue reading
Request your trial