By Anthony Broadman
The Washington State Supreme Court wove new threads into the already tangled web of Washington partial P.L. 280 jurisprudence today.
The practical result of Washington v. Shale was predictable: Washington has criminal jurisdiction over an Indian who commits a crime on the reservation trust land of a Tribe other than his own. The Court observed that such jurisdiction was probably concurrent with the Tribe’s jurisdiction (under Lara).
After a lengthy exposition of Washington’s version of P.L. 280, retrocession, and criminal jurisdiction over tribal members, the Court held that on the Quinault reservation, the federal government has accepted retrocession of state jurisdiction over members of the Quinault Indian Nation. Because the defendant was not Quinault, jurisdiction over him had not been retroceded. So the state possessed jurisdiction over him under P.L. 280.
But at least two aspects of the decision are concerning.
First, the case deals directly with the Quinault Nation’s jurisdiction over Indians on its reservation trust lands, and the tribe appears to have watched idly while a state court unilaterally limited Quinault authority. Prudentially speaking, the tribe might have wanted state jurisdiction over this particular crime: failing to register as a sex offender. But if it did, it might have entered into an extradition arrangement, asserted its sovereignty and expressly allowed the arrest and prosecution, or participated in the case and helped to fashion a remedy that did not put tribal jurisdiction in the sole hands of a state court.
Second, the Court delved into a Bracker approach, which is probably inappropriate on these facts. It is not clear whether Bracker can ever apply in a criminal context (it is difficult to see how it would since Tribes rarely possess criminal jurisdiction over non-Indians). And it never applies to Indians in Indian Country. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 99 (2005). Presumably had the Quinault Nation participated in the case, even as a friend of the Court, this confusion might have been avoided.
In all, unless overturned---perhaps on reconsideration as has been known to happen before the Court---Shale makes clear that Washington State has criminal jurisdiction on Quinault Reservation trust land for criminal prosecution of an Indian, if that Indian is not Quinault. Even worse, tribes with retrocessional situations similar to that of Quinault will find themselves caught in the same, more-tangled web.
More generally, Washington tribes should pay very careful attention when they or tribal members are invited to step into the parlor of today's Washington State Supreme Court.
Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.
