during the course of this project. The second element required a decision to produce a set of documents which would be more than a mere restatement of current law. Legislative, judicial, and administrative alternatives to present methods have, therefore, been included. All were reviewed by knowledgeable persons prior to publication. We hope these alternatives will form the springboard for future discussion and action, whether they or similar proposals are adopted or not. Numerous points of view were, of necessity, included in this study in order to generate healthy discussion. The views and opinions in these documents, however, do not necessarily represent the position of the Yakima Indian Nation, the National American Indian Court Judges Association, or its members. We believe the publications in this study will be valuable aids to Indian Court Judges and others in the criminal justice system. They are beginnings, not conclusions. How valuable they will prove will depend upon the actions of those who read them. The call is out. Let us hope it will be heard. THE BOARD OF DIRECTORS, NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION. Honorable Virgil Kirk, Sr., President Chief Justice, Navajo Nation Judicial Branch Window Rock, Arizona 86515 Honorable George R. Armstrong Chief Judge, Ute Mountain Ute and Southern Ute Tribes; Chief Judge, Hop! Nation Cortez, Colorado 81321 Honorable Henry Upchego Chief Judge, Uintah and Ouray Ute Tribe Ft. Duchesne, Utah 84026 Honorable Cranston Hawley, Vice President Chief Judge, Ft. Belknap Indian Reservation Honorable Lawrence Miller Chief Judge, Shoshone and Arapho Tribes Honorable Coquelle G. Thompson Chief Judge, Confederated Tribes of the Warm Spring Reservation of Oregon Warm Springs, Oregon 97761 PREFACE The Impact of Public Law 280 upon the Administration of Criminal Justice on Indian Reservations is being published at a time when conditions have reached a point where the Indian community feels that political action is required to make it possible for civil and criminal jurisdiction to be returned to Indian tribes and the federal government from the states. Tribes feel that their very survival may be at stake and, therefore, seek to exercise tribal, civil and criminal jurisdiction, as may be limited by Congress, as one of their major attributes of sovereignty. The fact that some tribes are taking legislative and judicial actions to achieve these objectives is evidence of their strong feelings about this issue. This paper was written in an attempt to find answers to two questions in this area: 1) How can the damage caused by termination legislation be undone? and 2) How can the policy of self-determination for the American Indian be effectively implemented? The history and present operational structure of state jurisdiction over Indian reservations serves to clarify the need for the remedies which are proposed. A separately-written background paper provides the perceptions of Washington State Indians about state assumption of jurisdiction. Important appendices offer for discussion some legislative guidelines and proposals on retrocession and related subjects. It is hoped that this study will put the issues of state, civil and criminal jurisdiction in the perspective in which Indians view them and that a necessary outgrowth of this study will be both understanding and action on the part of state and federal governments. It is further hoped that this study will help to elicit the opinions of people throughout the country on this subject. Although the State of Washington was selected for most of this study, it was not intended to single out Washington alone because like situations exist in other states that have assumed civil and criminal jurisdiction over Indian tribes. We are grateful to the many individuals and organizations who contributed their time and talents to this undertaking. To Ralph W. Johnson, who wrote this study, we are particularly thankful. A Professor of Law at the University of Washington in Seattle, Ralph Johnson's background in Indian law and Indian problems is impressive. He has taught courses in Indian law, including "Indian Legal Problems", at the University of Washington; and he has authored various articles on the subject including "The States versus Indian Off-Reservation Fishing: A United States Supreme Court Error" (Washington Law Review, 1972). He has served as an instructor for the National American Indian Court Judges Association Training Program since fall of 1972 and has authored a number of lessons in that program. He has met and worked with leaders of tribes throughout Washington State concerning state jurisdictions, Public Law 280, and other Indian legal matters. As an attorney with experience in the legal problems of Washington State Indians, his background is unmatched. Prof. Johnson was assisted in background research by law students James E. Walsh III, Rod Peterson and Nicholas C. Newman, and by Philip La Cours, Frank S. La Fontaine, Leo LaClair, Earl R. McGimpsey, and Lloyd Pinkham. Material gathered by Gerald P. Boland and by Roderick Simmons appears in the appendices. David Kader helped with organization and editing. Comprehensive and insightful comments on earlier drafts of the study were made by Vine Deloria, Jr., Bill Wilson, and Mark D. Steisel. The background paper, "Indian Perceptions on Public Law 280 Jurisdiction" was written by the editorial staff from materials supplied by Judge Steisel. Judge Steisel was aided in this effort by Orville Olney, Laurita Olney, Gene Joseph and Philip La Course. We would also like to acknowledge the efforts of organizations without which this project could not have been undertaken. The Law Enforcement Administration of the Justice Department made this study possible through an award to the Yakima Nation and the National American Indian Court Judges Association. The National Council on Indian Opportunity offered counsel and encouragement from the inception of the program. The Honorable George R. Armstrong, Chief Judge of the Ute Mountain Ute and of the Southern Ute Tribes and Chief Judge of the Hopi Nation, was the Project Director. He, along with the other members of the Board of Directors of the National American Indian Court Judges Association, served as the Steering Committee for the project, establishing policy and directing the efforts of the staff. Arrow, Inc., a Washington, D.C.-based, non-profit corporation, and its Executive Director, E. Thomas Colosimo, assisted with program management. We would also like to recognize the efforts of the late Robert Jim. While Chairman of the Yakima Nation, he helped to initiate this program. His entire life was dedicated to furthering the Indian cause. To all individuals who contributed to this publication, we extend a sincere thank you. Introduction INDIAN PERCEPTIONS ON PUBLIC LAW 280 JURISDICTION The following report is an attempt to study the impact of Public Law 280 on the lives of the Indians of Washington State who have, for the past twenty years, been subject to state jurisdiction. While the operations of the system were examined objectively, our main concern was to provide Indian input on the subject. The result is a paper which deals mainly with the perceptions of Washington State Indians concerning state jurisdiction. Some comments regarding state, local, and federal actions subsequent to state assumption of jurisdiction over Indian reservations are included. It should be stressed that Washington State was chosen as the focal point of our analysis for illustrative purposes only. The problems related to Public Law 280 in the State of Washington are common to other states as well. Jurisdiction analysis Before we look at Indian attitudes concerning the jurisdictional system they must live with. it will be helpful if we outline the various forms of jurisdiction over Indian reservations which now exist in the State of Wash ington. Though it is neither uniform nor consistent, the jurisdiction can be divided into four basic categories. They are: 1. Partial Jurisdiction-The state has assumed jurisdiction over eight areas, including compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and operation of motor vehicles upon the public streets, alleys, roads and highways. While the state has assumed jurisdiction over these eight areas on all Indian reservations, some tribes, such as the Yakima, Lummi, Makah, Spokane have retained their tribal courts to deal with all other matters. This situation does not extend to fee-patent lands on Indian reservations. The state exerts total jurisdiction over all such lands within the state. 2. Total Jurisdiction (with the exception of hunting, fishing, and trapping violations, which have been expressly exempted from state assumption by Public Law 280)-Most of the tribes in the state fall into this category. Some originally petitioned the state to take over all of their jurisdiction. A few tribes have retained their tribal courts, but these are limited to jurisdiction over hunting, fishing and trapping offenses. One tribe, the Colville, also asserts jurisdiction over non-Indians for hunting and fishing offenses. 3. Partial "de facto" Tribal Jurisdiction-This condition exists only at the Quinault Reservation, which would normally fall into category #1 (partial jurisdiction). The Quinaults, through a cooperative arrangement with the Greys Harbor County Court (in whose jurisdiction the Quinault Reservation lies'), have regained jurisdiction over juvenile matters. In addition, the Quinaults have asserted jurisdiction as to tribal law over all individuals within their borders, including a twelve mile portion extending into the adjacent Pacific Ocean. The tribe has done so by virtue of the adoption of an implied consent ordinance incorporated into its recently revised tribal code. All persons who enter the area specified by the tribe are impliedly giving their consent to be subject to the laws of the Quinaults as a condition precedent to such entry. 4. No State Jurisdiction-The one federally recognized tribe in the State of Washington over which the state has not assumed civil and criminal jurisdiction pursuant to Public Law 280 is the Lower Elwah Tribal Community. This discrepancy arose because the Bureau of Indian Affairs purchased land for the Lower Elwah Tribe in late 1936 and early 1937 under the authority of the Indian Reorganization Act of June 18, 1934. This land was held in trust by the United States Government for the Lower Elwah Tribal Community. The Secretary of the Interior, on January 19, 1968, officially proclaimed this "purchased" land as the Lower Elwah Reservation. Since this reservation was not formed until after the enactment of Public Law 280 and Public Law 280 did not anticipate any future tribes being recognized, it is the official position of the Bureau of Indian Affairs that the federal government and the tribe have exclusive jurisdiction over the reservation. The tribe is now engaged in developing an effective law and order code and other ordinances for the reservation. The tribe has employed a tribal policeman who is considered a federal officer. He is charged with exclusive responsibility for law enforcement. The tribe recently established an Indian Court to provide for the fair and equitable application of the law. A possible fifth category is exemplified by the Sauk-Suiattle Indian tribe. This tribe is one of the two in Washington which is federally recognized but has no land base upon which its tribal members reside. Instructions have not yet been given to the Western Washington Indian Agency on how to assist the tribe, which was only recently federally recognized. The tribe held interim elections and approved a constitution which is now being sent to the Secretary of the Interior for approval, pursuant to the Indian Reorganization Act. Pending approval, the tribe remains in a "vacuum state". The Sauk-Suiattle have no reservation as such, but have received assurance that they will shortly receive land for use as a reservation. Upon receipt of the land the question of state jurisdiction will arise, as this tribe had not been recognized prior to state assumption of jurisdiction. Unlike the Lower Elwah Tribal Community, it will not have received its land until after state assumption of jurisdiction. If other groups, presently unrecognized, receive federal recognition in the future, more complicotions can be expected. Our analysis of the categories of state jurisdiction shows that the dissatisfaction of the Indian people rises in proportion to the level of state jurisdic tions. For instance, there appears to be more dissatisfaction at Colville where there is total jurisdiction; less at Yakima where there is partial jurisdiction; and even less at Quinault where "de facto" tribal jurisdiction exists. Lower Elwah, which is under no state jurisdiction, complains only about lack of state health and social services to its members. Past to present This dissatisfaction which Indian people evidence is not a new feeling. Present attitudes of Indians toward the State of Washington can be better understood if something is known of the State/Indian relationship prior to state assumption of jurisdiction. Many Indians viewed official state policies as anti-Indian. State services to Indian citizens living on reservations were few. Many contend that few Indians held state jobs. Police activities were considered particularly harsh and unfair. It was not uncommon for police to enter areas where they had no jurisdiction, such as Indian homes on reservations, to make improper searches and arrests. Indians also felt they were treated prejudicially when off the reservation. Indians were often detained or apprehended although their white companions were released. Many Indian men said they were invariably stopped by local police when they walked out of bars. Arrests, beatings and being held without charges often followed, they said. Police spot-checks immediately outside the reservation resulted in Indians frequently being stopped, while non-Indians were waved on through. As a result of these activities, state and local police personnel were viewed by the Indian community more as harassers than as prosecutors. To this day, much of that feeling remains; most of the Indian population of Washington distrusts and fears outside police. Why that feeling continues to exist is the subject of the next section. Present-day perceptions-methodology In order to assess the present attitudes of Indians in Washington concerning state jurisdiction we employed the techniques of field interviewing, both formally and informally, and of distributing questionnaires. Interviewers, all American Indians, were selected on the basis of geographical origin. They were representative of the Yakima area, the Colville area, the Quinault-Olympic Peninsula area, and the Seattle-Everett area. The interviewers distributed individually several hundred questionnaires. Because only forty (40) questionnaires were returned completed (some of the reasons for this are discussed later), formal interviewing with tape recorders and writing pads was attempted. This was found to retard candid communication. Therefore, more informal interviewing techniques were utilized. Though more successful in eliciting information, these methods made documentation difficult. In all, about 250 Indians from twenty tribes in Washington State provided us with some information. We also interviewed federal, state, and local judicial and law enforcement personnel. Interviewing and research took place during four separate field trips, the first lasting two months, the others of shorter duration. All activity stressed 'grass roots' information. The results of our inquiry form a group of perceptions by Indians of state administration of criminal justice. The information below is an analysis of the 40 formal responses to our questionnaires and of the information gathered in the more informal interviews. It does not purport to be a scientific sociological study. However, we do believe it to be a valid expression of the cares of the Washington State Indian community regarding state jurisdiction of Indian criminal matters. Findings 1. Very few Washington State Indians understand the jurisdiction which their tribes, their police and their courts have over criminal matters on the reservation. Members of tribes which have retained jurisdiction only over fish and game laws best understand their tribe's jurisdiction. 2. Members of tribes under partial state jurisdiction seldom responded without criticizing the state's mode of carrying out its jurisdictional responsibilities. The legality of state assumption of jurisdiction was also challenged. 3. About half of the Indians feel they are treated poorly or indifferent by state, county and local police. About a third categorize the treatment they receive as good or fair. 4. Inadequate services and over-enforcement, harsh treatment and discrimination (particularly at per capita payment times) are the major complaints against the state, county and local police. 5. About half of the respondents stated they personally have had law and order problems since the state has assumed jurisdiction over their tribes. Very few of these were satisfied with the outcome of the matter. Dissatisfaction stemmed from inaction or too slow response by authorities, alleged racial discrimination and alleged unfair treatment. Cases reported involved traffic problems, juvenile delinquency, thefts and family matters. 6. Indians feel they receive better treatment from, and are better understood by, Tribal or Bureau of Indian Affairs Police. 7. Juvenile matters are of greatest concern to most Indians. All law and order areas, traffic laws, narcotics and trespass and theft are of next greatest concern. Civil jurisdiction, police prejudice, domestic relations, family problems, fish and wildlife, death investigations, need for more police protection and regaining tribal jurisdiction are also important. 8. A majority believe they are not fairly treated by state, county and municipal courts. They believe non-Indian courts do not care about their problems. 9. A majority feel they are treater prejudicially because they are American Indians. 10. Very few Indians believe that authorities off the reservation understand Indians and their problems. 11. Almost unanimously, Indians favor a return of jurisdiction to the tribes. Specific Complaints-The perception of 'outside' law enforcement officials as hostile and uncaring extends to the judicial branch as well. Indian communities pride themselves on their ability to solve the problems of their own people. Since the imposition of state jurisdiction there have been numerous complaints that problem-solving is more difficult, if not impossible. Every tribe visited expressed particular concern for its youth, but is often unable to exert any authoritative influence. Members of the Quinault Tribe stated that it was for their youth that they were going out on a limb and asserting full jurisdiction. Some specific complaints of the Indian community concerning state jurisdiction can help illustrate why many tribes desire to regain jurisdiction over their own law enforcement and judicial affairs. These complaints are derived directly from field interviews of about 250 people from some twenty tribes in the State of Washington. We also interviewed state and local police, probation officers, and judicial officers. Insufficient Local Police Coverage (For the purpose of this discussion the term "local police" shall refer to all off-reservation non-Indian police). This complaint was made by all who were interviewed. Reservation residents declared that local police are never around when they are needed and that many places, especially highly populated areas with a history of trouble, are seldom patrolled. Rural areas also receive little attention; those which have few nonIndian residents receive least. The number of unsolved robberies and break-ins seems to be increasing. When additional police are employed, they are detailed to patrol reservation areas only if those areas have a high percentage of nonIndian habitants. Reservation residents claim there is no effort to practice "preventive medicine"; few crime prevention programs are directed toward the reservation. The counties have responded to charges of inadequate coverage in two ways: first, they say Indians receive the same services as non-Indians in the same area; second, the counties claim they cannot afford to provide such services as the Indians feel necessary. The State of Washington itself has admitted this deficiency as late as December, 1972. "Although the State assumed jurisdiction over major crimes and juvenile delinquency on reservations, counties have not been provided with resources to effectively assume the responsibilities of patrol, apprehension and investigation of offenses committed on reservations. . . .1 The Colville Reservation, located in both Ferry and Okanogan counties, has initiated action in the financial areas. The Colvilles voluntarily contributed $26.800 per year, or a total of $160,800 from 1965 until 1971 to these two counties to help bear the costs of law enforcement. They also allowed the counties use of their tribal jail and gave other support. In August 1971, the 1 State of Washington. Comprehensive Plan for Law Enforcement and the Administration of Justice, January 1-December 31, 1973. Washington State, Dec. 1972, p. 109. |