State bill would allow tribes federal jurisdiction in civil, criminal matters
By RAECHEL DAWSON
Kingston Community News Reporter
February 21, 2012 · Updated 3:37 PM
OLYMPIA — In 1953, the federal government began the process of terminating its relationship with tribes and transferring jurisdiction on tribal matters to states — even though tribes had treaties with the U.S. government, not the states, and Article VI of U.S. Constitution says that treaties are “the supreme law of the land.”
A lot of damage was done by the time termination policies ended in 1968. And now, a state bill nearing approval by the House and Senate would allow tribes in Washington to reverse another remnant of that era and have jurisdiction over civil and criminal matters returned to the federal government.
Proponents say the bill would empower tribes to exercise their sovereignty, or self-government, in civil and criminal matters. Opponents say tribes operate under a different system of due process than non-Indians enjoy in non-tribal courts.
If the bill becomes law, tribes would submit a request to the governor to return to federal jurisdiction — known as “retrocession” — and the governor would approve or deny the request within a year. If approved, the request would be sent to the U.S. Department of Interior, which would approve, deny or negotiate retrocession.
Doug Nash, professor of law and director of the Center for Indian Law and Policy at Seattle University, said the state would retain jurisdiction in areas of law such as the licensing of drivers and motor vehicles. The state would also retain jurisdiction over cases involving sexually violent predators. In 1968, the Indian Civil Rights Act amended Public Law 280 — also known as the termination act — to require tribes’ consent of any new state control. It also allowed the federal government to accept full or partial retrocession by state request.
Today, out of Washington's 29 federally recognized tribes, four — Muckleshoot, Nisqually, Skokomish and Squaxin Island — remain under full state law while 17 are under limited state control concerning these areas:
— Adoption proceedings
— Compulsory school attendance
— Dependent children
— Domestic relations
— Juvenile delinquency
— Mental illness
— Operation of motor vehicles upon public roads and highways
— Public assistance
There is uncertainty as to jurisdiction concerning eight tribes: Cowlitz, Jamestown, S'Klallam, Nooksack, Samish, Sauk-Suiattle, Snoqualmie, Stillaguamish and Upper Skagit. But it is speculated from the bill report that they are under federal jurisdiction.
The House and Senate retrocession bills were approved by their houses of origin — 98-42 in the House and 49-8 in the Senate. The House bill awaits a Senate Rules Committee vote and the Senate bill was approved 7-4 by a House committee on Feb. 20.
Rep. John McCoy, D-Tulalip, a Tulalip tribal member and the House bill’s sponsor, said tribes “feel that the state is not taking care of their citizens the way it should and they feel they can take care of them better." McCoy said that, because of the long history between the United States and tribes, there haven't always been good outcomes and that there is a "fear of non-Indian law.”
Virginia Cross, chairwoman of the Muckleshoot Tribal Council, experienced that firsthand.
"Our relationship with the local police department isn't good," Cross said. "Right now, we contract out of the King County (Sheriff’s) Department."
Cross said local police officers mistreated her son when he was arrested. She said he was brutally "beaten on the head."
Muckleshoot has been in the process for several years of requesting retrocession. "There are problems with alcoholism, drugs and accidents, and federal jurisdiction would give us more control of our own court system," Cross said.
Yakama Nation Chairman Harry Smiskin said Yakama has been working hard on its request to the governor in anticipation that the bills become law.
Yakama Nation is one of the 17 tribes under limited state jurisdiction.
"When this bill passes, this will be something very beneficial to the members of Yakama Nation," Smiskin said. "They'll have the authority to make their own laws and be governed by those laws."
Sen. Jim Honeyford, R-Sunnyside, said that, while he respects the tribal community, two scenarios — a child custody case and a warrant case — gave him concern about tribal leaders' ability to “uphold the law for their members."
The language of the original bill sparked unease among Yakima County officials as the legislative process ensued. The main concern, also echoed at the bills' initial public hearing by the Washington State Association of Counties, was that the bills’ language should include the need for stronger collaboration between tribes and local governments so that there is a smooth transition.
Last summer and fall, a 20-member workgroup met several times to study retrocession. Legislators, tribal leaders, county commissioners and college professors sifted through past and present law and discussed the details and possible impacts.
Robert T. Anderson, professor of law and director of the Native American Law Center at the University of Washington, wrote a paper that was used in the workgroup session. Anderson wrote that states generally have jurisdiction over Indians “outside of Indian country,” unless otherwise specified in a treaty or a federal preemptive state law.
In addition to laying out other facts of current law, he presented findings that, as a result of retrocession, there would be an increase of federal law enforcement and therefore a decrease in state power.
In turn, retrocession could mean savings to the state.
"It's going to be beneficial to the counties, beneficial to the state, because they're not going to have to spend money on a reservation police,” Smiskin said. “We spend it all, not the state or counties."
According to Nash, the workgroup did not estimate what the savings might be because of the unpredictability of precisely how many tribes would request retrocession. Although subject to negotiations between the tribes and the Interior Department, federal funding could be impacted as well.
"This is seen as a substantial change by a lot of people," Nash said. "What this really does is it gives tribes an opportunity to be put back in the position they should have been before (state) jurisdiction."
McCoy said retrocession might not be for all tribes at the moment.
"The tribes that have resources favor this," he said. "The tribes that have very few resources ... would have difficulty without financial support from some place."
Abbey Corzine, spokeswoman for the Office of the Governor, said that, until the governor sees the final bill, it is too early for her to determine whether the governor supports this legislation. Craig Bill, director of the Governor's Office of Indian Affairs, was a member of the joint workgroup that studied retrocession last year.
If the Retrocession Act becomes law, legal proceedings filed before the effective date with local government jurisdictions would not be affected, and implementation could begin 90 days after the end of this legislative session.