Appendix — Washington v. Confederated Bands and Tribes of Yakima Nation

7 Supreme Court, U. ~

FILED

APR 18 1978

APPENDIX

MICHAEL RODAK, JR.. CLERI

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1977

No. 77-388

STATE OF WASHINGTON, CouNTY oF YAKIMA; Dixy LEE

Ray as Governor of the State of Washington and indi-

vidually; SLADE Gorton, as Attorney General of the

State of Washington and individually; Les Conran,

GRAHAM TOLLEFSON and CHARLES RicH as County

Commissioners and individually,

Appellants,

v.

CONFEDERATED BANDS AND TRIBES OF THE YAKIMA INDIAN

NATION,

Appellee.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOCKETED SEPTEMBER 12, 1977

PROBABLE JURISDICTION NOTED

FEBRUARY 27, 1978

APPENDIX

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1977

No. 77-388

STaTe oF WASHINGTON, County oF YAKIMA; Dixy LEE

Ray as Governor of the State of Washington and indi-

vidually; SLADE GorTON, as Attorney General of the

State of Washington and individually; LES Conrap,

GRAHAM TOLLEFSON and CHARLES Rich as County

Commissioners and individually,

Appellants,

v.

CONFEDERATED BANDS AND TRIBES OF THE YAKIMA INDIAN

NATION,

Appellee.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOCKETED SEPTEMBER 12, 1977

PROBABLE JURISDICTION NOTED

FEBRUARY 27, 1978

APPENDIX

INDEX

Trial Court Opinion on Motions for Summary

J een

r ];. Et

Pages 19-23 of Exhibit 1— Are You Listening

Neighbor" — Report of Washington State Indian

Affairs Task Force 1971................... :

Page 109 of Exhibit 42 - 1973 Washington State

Comprehensive Plan for Law Enforcement

Exhibit 55 — Tabulation of Yakima County Area

/ igtfr̃ͤĩ ͤ ͤ Äñ22—K12üͤͤ

The decision in question has been printed as

Appendix A to the Jurisdictional Statement and

is not reprinted herein. Also printed in the

Jurisdictional Statement as Appendix C is the

en banc opinion of the Ninth Circuit Court of

Appeals which preceded the panel's decision

being appealed from. That en banc opinion is

likewise not reprinted herein.

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

SOUTHERN DIVISION

NO. 2732

OPINION ON MOTIONS

FOR SUMMARY JUDGMENT

CONFEDERATED BANDS & TRIBES OF THE YAKIMA INDIAN

NATION ON ITS OWN BEHALF AND ON BEHALF OF ITS

MEMBERS,

Plaintiffs

vs.

STATE oF WASHINGTON, COUNTY OF YAKIMA, et al.,

Defendants

I.

NATURE OF THE PROCEEDINGS

This action was brought by the plaintiff, an Indian

Nation established by a Treaty with the United States of

America, with a governing body duly recognized by the

Secretary of the Interior. The action is to declare under

28 U.S.C. 2201, the rights and legal relationships of the

plaintiff and its members with regard to the assumption

and exercise of jurisdiction by the State of Washington

on the Yakima Indian Reservation. The defendants have

moved for summary judgment. A pretrial order has been

entered and this opinion is based upon the agreed facts

therein stated.

APPENDIX

II.

STATEMENT OF THE CASE

The area in question, which is the Yakima Indian

Reservation, contains approximately 1,387,505 acres

within its exterior boundaries. All of that area, except

approximately 270,895 acres, is held in trust or in

restricted status for the benefit of the plaintiff and its

members.

The State of Washington assumed jurisdiction over

the plaintiff and its members by enactment of Chapter

36, Laws of 1963, which amended Chapter 240, Laws of

1957. It is now codified as RCW Chapter 37.12.

RCW 37.12.010' was passed pursuant to the provi-

sions of Public Law 83-280 (67 Stat. 588), of the Laws of

the United States. The plaintiff claims that RCW 37.12-

010 is void or, in the alternative, that jurisdiction so

APPENDIX

The plaintiff's contentions are that the State of

Washington violated the provisions of Pub. L. No. 83-

280 and of its own constitution and enabling Act (25

Stat. 676) by failing to amend Article XXVI of the State

Constitution prior to assuming jurisdiction over the

plaintiff and its members. The plaintiff further contends

that the State of Washington violated the provisions of

Pub. L. No. 83-280 by assuming less than full jurisdic-

tion over the plaintiff and its members when it enacted

RCW 37.12.010.

Plaintiff further contends that by assuming jurisdic-

tion over plaintiff and its members without their consent

the State violated the Tribal sovereignty guaranteed to

plaintiff and denied the plaintiff and its members due

process of law, and in assuming less than full and com-

plete jurisdiction the State denied the plaintiff and its

members equal protection of the laws. Plaintiff further

contends that RCW 37.12.010 violates the standards of

definiteness required by the due process clause of the

Fourteenth Amendment to the Constitution of the

United States, and that the State of Washington and

Yakima County have failed to provide the plaintiff and

its members the same protection to persons and property

as is provided elsewhere in the state, thus denying the

plaintiff and its members equal protection of the laws

guaranteed to them by the Fourteenth Amendment.

streets, alleys,

(8) of motor vehicles the

Th tribes that peti-

APPENDIX

III.

ISSUES PRESENTED

The issues presented, which are set forth as Issues of

Law in the Pretrial Order, pages 42 and 43, and which

are for determination on the motion for summary judg-

ment are as follows: ä

1. Was it necessary for the State of Washington in

assuming jurisdiction over Indian Reservations to amend

Article XXVI of the State Constitution?

2. Can the State of Washington under the provisions

of Pub. L. No. 83-280 assume less than full jurisdiction?

3. Is state jurisdiction under RCW 37.12 concurrent or

exclusive?

4. Was the plaintiff's consent to State assumption of

jurisdiction necessary?

5. Does the plaintiff Tribe have standing to raise the

issue of vagueness of RCW 37.12.010 and the claimed

denial of due process to its members?

6..Do the provisions of RCW 37.12.010 meet constitu-

tional standards for definiteness?

7. Do the provisions of RCW 37.12 as enacted meet

the constitutional and legal standards of due process and

equal protection of person and property?

1. Necessity to Amend Article XXVI of the

State Constitution.

The plaintiff contends that the State of Washington

was without authority to pass RCW 37.12 because the

enabling act, Article XXVI of the State Constitution of

the State of Washington, provides that the people of the

4

APPENDIX

State of Washington may not exercise jurisdiction over

any lands lying within the State and held or owned by

Indians or Indian Tribes. This question has already been

determined against the plaintiff's position by several

holdings in this State and Circuit. See State v. Paul, 53

Wn.2d 789, 794, 337 P.2d 33 (1960); Makah Indian Tribe

v. State, 76 Wn.2d 485, 456 P.2d 590 (1969); and The

Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, (9

Cir. 1966), cert. den. 387 U.S. 907; 18 L.Ed.2d 626, 87

Sup. Ct. 1684.

The State Supreme Court interpretation of the

requirements of the State Constitution are binding on

this Court.”

2. Can the State under the provisions of

Public Law 83-280 assume less than full

jurisdiction?

In reviewing the authorities it is my opinion that this

issue has also been determined adversely to the plain-

tiff's contention. In Quinault Indian Tribe of Indians v.

Gallagher, supra, the court said:

"We do not read that act as constituting only a i

assumption of jurisdiction. The state therein indicates

its willi to extend criminal and civil jurisdiction

over all ians and Indian territory, reservations,

country and lands within the state, it being provided,

however, that as to some matters concerning some

Indians, there must first be a Tribal resolution and

gubernatorial proclamation. . . .

In our opinion, the indicated condition precedent to

the exertion of state jurisdiction as to some matters

concerning some Indians involves no violation of Pub-

lic Law 280. If the Quinault Tribe of Indians feels

*See Quinault Tribe of Indians v. Gallagher, 368 F. 2d at 656 and

657. (9 Cir. 1966).

APPENDIX

aggrieved because state jurisdiction is not presentl

being exerted to the full extent possible pone Hs cha —

36, all it has to do is provide the Governor with a

tribal resolution of the kind called for in section 5 of

that act (RCW 37.12.021). A Governor's proclamation

would necessarily follow, and a full exertion of state

urisdiction would be achieved." (368 F.2d at 657-658).

e Kennerly v. District Court of the Ninth Judicial

District of Montana, 400 U.S. 423, 430-431, n.6 and

rebutting note in dissent.

3. Is the state jurisdiction under RCW

37.12.010 concurrent or exclusive?

It is my opinion that it has been determined that the

state has exclusive jurisdiction under RCV’ 37.12.

Public Law 83-280 grants jurisdiction over certain

Indian Tribes to the states named in that act and pro-

vided in Sections 6 and 7 that other states may in addi-

aes qualify for inclusion under the provisions of the

act.

In addition, under the provisions of 18 U.S.C. 1162(a)

it appears that each state is entitled to exercise "juris-

diction over offenses committed by or against Indians in

state constitution or statutes, as the to

2 ae ease ct ee

of this Act; Provided, that

APPENDIX

the areas of Indian country, . . . and the criminal laws

of such state or territory shall have the same force and

effect within such Indian country as they have elsewhere

within the state or territory; ... ."

Further, under 18 U.S.C. 1162(c) (as amended in

1970), "The provisions of sections 1152 and 1153 of this

chapter [extending federal law of punishments to Indian

Country, with certain exceptions, and the 13 major

crimes act] shall not be applicable within the areas of

Indian country listed in subsection (a) of this section

[Indian lands over which State jurisdiction has been

extended] as areas over which the several states have

exclusive jurisdiction." (Emphasis added.)

It is my opinion that under the statute the states have

exclusive jurisdiction and that there is no concurrent

jurisdiction.

4. Was the plaintiff's consent to the transfer

of jurisdiction necessary?

In my opinion the consent of the plaintiff was unnec-

essary. The enactment by Congress of Pub. L. No. 83-

280, was sufficient. The Quinault case, 368 F.2d 648 (9

Cir. 1966) so holds. See also, Kennerly v. District Court

of the Ninth Judicial District of Montana, 400 U.S. 423,

427 (1971).

5. and 6. Does the plaintiff have standing to

raise the issue of vagueness?

Plaintiff argues that RCW 37.12.010 is unconstitution-

ally vague. That alone is not sufficient. 28 U.S.C. 1362

7

APPENDIX

grants original jurisdiction to district courts over civil

actions brought by recognized Indian Tribes if a contro-

versy arises under the Constitution, laws, or Treaties of

the United States. RCW 37.12.010 was enacted pursuant

to Pub. L. No. 83-280, (codified as 28 U.S.C. 1360, before

repealed, and 18 U.S.C. 1162). There is no remaining

question as to the validity of the State's jurisdiction

under its statutes. The Washington statutes do not

define crime; they merely authorize extension of State

jurisdiction and provide for enforcement of enumerated

areas of state criminal and civil law.

In an action for declaratory judgment, the require-

ments of standing are more strict than in actions for

other kinds of relief in order to insure adherence to the

case or controversy standards in Article III of the Con-

stitution. See Griswold v. Connecticut, 381 U.S. 479, 481

(1965). The plaintiff has standing to question the valid-

ity of the statute as applied in an actual controversy.

The plaintiff Tribe does not have standing, in the justi-

ciable sense, to assert as an abstract proposition that

RCW 37.12.010 is an impermissibly vague grant of juris-

diction. The required "controversy" with regard to this

multi-faceted question is not sufficiently present in this

case. The federal courts may not give advisory opinions.

United States v. Fruehauf, 365 U.S. 146, 157 (1961); See

also, Amsterdam, The Void For Vagueness Doctrine In

The Supreme Court, 109 U.Pa. L. Rev. 67, 75-85 (1960).

APPENDIX

7. Do the provisions of RCW 37.12 as

enacted meet the constitutional and legal

standards of due process and equal pro-

tection of person and property?

The question is whether the laws applicable under

this statutory scheme are the same laws enforced

throughout the rest of the state. I conclude they are and

that the relevant statutory and case law of the State of

Washington is necessarily incorporated under RCW

37.12. Accordingly, these provisions, as enacted, comport

with due process and equal protection. The closely

related question of whether they continue to do so as

enforced and applied in practice is a matter still subject

to proof.

The attorneys for defendants are requested to submit

an order granting partial summary judgment.

DONE BY THE COURT this — day of November,

1972.

s/Charles L. Powell

United States District Judge

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

SOUTHERN DIVISION

NO. 2732

ORDER GRANTING MOTIONS FOR PARTIAL

SUMMARY JU"CMENT

CONFEDERATED BANDS & TRIBES OF THE YAKIMA INDIAN

NATION ON ITS OWN BEHALF AND ON BEHALF OF ITS

MEMBERS,

Plaintiffs

VS.

STATE OF WASHINGTON, Cour OF YAKIMA, et al.,

Defendants

This matter having come on for hearing on August 29,

1972, the defendants having moved for partial summary

judgment, a Pretrial Order having been entered which

sets forth issues of law and fact to be determined by the

Court, and declares that Issues of Law 1 through 7 of

said Pretrial Order inclusive may be determined by the

Court as a matter of law on the state of the record and

that all parties shall be considered to have filed motions

for summary determination of those issues, the Court

having heard argument of counsel and being fully

advised in the premises; now therefore

IT IS HEREBY ORDERED:

1. Plaintiffs Motion for Partial Summary Judgment is

denied.

10

APPENDIX

2. Defendants' Motions for Partial Summary Judg-

ment on Issues of Law 1 through 7 inclusive of the Pre-

trial Order are granted as follows:

A. It was not necessary for the State of Washington in

assuming jurisdiction over Indian reservations to amend

Article XXVI of the State Constitution.

B. That the State of Washington could under the

provisions of Public Law 83-280 assume less than full

jurisdiction.

C. That the jurisdiction assumed by the State of

Washington is exclusive and there is no concurrent juris-

diction in either the Federal Government or the plaintiff.

D. That the plaintiffs' consent to the transfer of juris-

diction to the State is not necessary.

E. That the plaintiff does not have standing to raise

the question of whether RCW 37.12.010 is unconstitu-

tionally vague until there is a showing of controversy.

F. The provisions of RCW 37.12 as enacted meet the

constitutional and legal standards of due process and

equal protection of person and property. The question of

whether they meet these standards as applied in practice

is subject to proof and determination.

IT IS FURTHER ORDERED THAT PURSUANT

TO Rule 54(b) this order as it adjudicates fewer than all

of the claims shall not terminate the action as to any of

the claims of the parties and is subject to revision at any

time before the entry of judgment adjudicating all the

claims after further trial.

DONE BY THE COURT this 5th day of March, 1973.

11

APPENDIX

s/Charles L. Powell

United States District Judge

12

———

— —

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

CIVIL NO. 2732

OPINION

CONFEDERATED BANDS & TRIBES OF THE YAKIMA INDIAN

NATION ON ITS OWN BEHALF AND ON BEHALF OF ITS

MEMBERS.

Plaintiffs

vs.

Srarx or WASHINGTON CouNTY oF YAKIMA, DANIEL J.

Evans AS GOVERNOR OF THE STATE OF WASHINGTON AND

INDIVIDUALLY, SLADE GORTON AS ATTORNEY GENERAL OF

THE STATE OF WASHINGTON AND INDIVIDUALLY, LEs

ConraD, CiirF ONSGARD AND ANGUS MCDONALD As

County COMMISSIONERS AND INDIVIDUALLY,

Defendants

I. NATURE OF THE PROCEEDINGS

The pretrial order in this case states that issues of law

one through seven, were to be determined by the Court

as a matter of law on the record. An Opinion and an

Order granting defendants' motions for partial summary

judgment on these issues were filed December 1, 1972

and March 5, 1973, respectively. That opinion was

entered subject to revision, pursuant to F.R.C.P. 54(b).

The remaining issues were presented March 20, 1973 in

Yakima. The prior opinion granting partial summary

13

APPENDIX

judgment is hereby incorporated in and made a part of

this opinion.

The question for decision at this second stage of the

case is whether the provisions of RCW 37.12.010' as

applied to the Yakima Indian Reservation violate Con-

stitutional standards of due process or equal protection.

The Court is to decide whether plaintiffs’ allegations

that general governmental services, and in particular law

enforcement protection, rendered plaintiff and its mem-

bers are of such disparity with that given non-Indians or

to non-Indian land as to constitute a denial of equal

protection.

II. JURISDICTION

This Court has jurisdiction under 28 U.S.C. §§1343

and 1362, and 42 U.S.C. 681983 and 1985.

III. EVIDENCE SUBMITTED

Plaintiff presented its case through the testimony of

adverse witnesses. The three County Commissioners of

Yakima County, the Sheriff, the Director of Juvenile

Court Services, the County Prosecutor and two Deputy

Sheriffs who patrolled the Reservation were called. Tes-

timony was also introduced through an assistant

National Forest Manager who testified as a map expert,

an Indian Tribal Judge from the Southwestern part of

the United States who testified about a study of the

effects of P. L. 83-280 (set out in prior opinion) that he

is conducting; and an attorney for the Warm Springs

Tribe of Oregon who testified as an expert in Indian law.

14

— —

APPENDIX

Witnesses from the plaintiff Tribe included the Chair-

man of the Tribal Council, the Chairman of the Tribal

Law and Order Committee, a Yakima Tribal Court

Judge, and a third member of the Tribal Council who

was former associate judge and former tribal policeman.

The defendants' witnesses were the Captain of the

Indian Police force, the Chief Deputy Sheriff, a Deputy

Sheriff from the Sunnyside substation, the Indian Pro-

bation Counselor for Yakima County, and the Yakima

County Sheriff. Each side also presented voluminous

exhibits of studies, surveys and statistical data.

The laws of the State of Washington permit county

governments to generate less revenue than city govern-

ments. The County Commissioners and the sheriff and

his Chief Deputy and others testified as to the general

need for more money to provide more adequate services

throughout the county. Yakima County levied a per

capita property tax of $122 in 1972. It was 37th of the 39

counties in Washington.’ (Exhibit 48). The county's area

is 77.9% public“ land which is not taxable. (Exhibit 47).

There has been a steady increase in the Sheriff's

budget in recent years. In 1970 the budget was

$501,374.53 (Exhibit 13, p. 21). In 1972 it was approxi-

mately $528,528.00, plus $209,216.00 for operation of the

jail. (Exhibits 22 and 103). The testimony of Commis-

sioner Conrad was that the Sheriff's budget for 1973 was

approximately $719,000.00 and about $243,000.00 was

budgeted for operation of the jail. The law enforcement

departments of the county have expanded at a greater

rate than other county departments. Law enforcement is

funded through the County Current Expense Fund.

15

APPENDIX

Property taxes are a primary source of revenue for the

county.

The Yakima County Sheriff's office employed 69 peo-

ple at the date of trial. Some personnel are Indian to

some blood degree, or married to Indians. Twenty-nine

were uniformed line deputies working the field. These

men were assigned as follows: To the Mountain or Forest

Area — 2 men; to the Upper Valley around the City of

Yakima — 17 men; to the Lower Valley embracing the

Yakima Indian Reservation — 7 men; to traffic patrol

throughout the valley — 2 men; to airport security — 1

man. In addition, a three man detective team and a

juvenile officer work throughout the county.

Many factors are considered in determining where

sheriff's deputies will be assigned. The area denominated

as the Upper Valley encompasses 1,862.31 square miles,

or about 43.45% of the total area within the county.

(Exhibits 32, 33). The population of the Upper Valley is

55,231 in urban areas and 39,322 in rural areas. In the

Lower Valley, the urban population is 18,950 and rural

population is 31,477.

The County court house is located in the Upper Val-

ley. Sheriff's deputies spend many man hours testifying,

serving process, and providing courtroom and prisoner

security. Personnel primarily assigned to the Lower Val-

ley seldom work the court house detail. The most expe-

rienced sheriff's deputies work in the Lower Valley. To

facilitate communications between the residents of the

Lower Valley and the Sheriff's Department a toll free

after—business—hours direct line to Yakima was being

installed at the time of the trial.

16

— — — I — —

APPENDIX

As noted in the Opinion and Order granting partial

summary judgment, state and county jurisdiction under

RCW 37.12.010 does not extend to Yakima Tribal or

allotted lands except for eight enumerated areas. Fur-

ther, over half the reservation is closed by the tribe to

protect the forest area from which the bulk of the

Tribe's income is generated. The Chairman of the

Tribe's Law and Order Committee testified that county

sheriff's deputies would need a special business permit to

patrol this closed area.

To assure that law enforcement officers have jurisdic-

tion, regardless of whether an offense is committed on

Indian or non-Indian land, the agencies involved have

been cross—deputized by the Yakima County Sheriff. In

turn, the Indian authorities have deputized 20 Yakima

Sheriff's office personnel. The Bureau of Indian Affairs

has also deputized Yakima Sheriff's deputies.

The Tribal officers testified that their people complain

to them of lack of responsiveness by state and county

officers, and that there was a general feeling among their

members that law enforcement services were inadequate.

These witnesses related incidents of cases brought to the

prosecutor's attention and no prosecution resulted. They

also testified that it cost $228,000.00 in 1972 to provide

the reservation with a tribal police force of 18 men. They

also said that Indians were offended at what was felt to

be disparaging racial slurs on the police radio. For

instance, police radio report of a "drunken Indian" was

objectionable.

17

APPENDIX

Exhibit 43 substantiates the plaintiff's claim that the

jails in the Cities of Toppenish and Wapato are inade-

quate. Neither the exhibit nor the testimony establish,

however, that these jails are only or primarily used to

detain Indians and that different facilities are used for

non- Indian Indians or that these jails are not typical of a

condition of inadequate detention facilities prevalent

throughout the State of Washington. (Exhibit 43, p. 59).

Other disadvantages of State jurisdiction were related.

The State adoption standards are different than those

presently felt relevant to the Local Indian culture. Con-

sequently, Indian children usually are adopted by non-

Indian families. Besides experiencing a period of cultural

shock, an Indian child not adopted by an Indian family

cannot thereafter be an enrolled member of the Tribe.

As a result the child loses hunting and fishing rights,

support while seeking higher education (if qualified for

such pursuit), and entitlement to share in the annual per

capita distribution. In cases of divorce, unlike the Tribe,

the State is without jurisdiction to impress trust assets

for the support of the children.

All parties agreed that the State's assumption of juris-

diction over Indian juveniles (one of the eight enumer-

ated areas) resulted in a less than perfect’ system of

handling juvenile dependency and delinquency because

the State has no jurisdiction over Indian adult parents

on Indian land. Of course, the Tribe's petition for State

assumption of total civil and criminal jurisdiction would

eliminate this problem. See: Quinault Tribe of Indians

v. Gallagher, 368 F.2d 648, 656-658 (9 Cir. 1966).

18

— — —

APPENDIX

IV. GENERAL PRINCIPLES OF LAW APPLI-

CABLE.

It was not proved at trial that the state or county have

discriminated against the plaintiff to deprive any Indian

or the plaintiff Tribe of any service or protection,

resource or asset afforded under the same state law to

other citizens of similar geographic location. Nor was

there any evidence of any conspiracy to discriminate.

Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5

Cir. 1971), aff'd on rehearing, 461 F.2d 1171 (5 Cir.

1972), is not in point.

Plaintiff is representative of a class of people histori-

cally saddled with disabilities. They have been subjected

to unequal treatment and traditionally have been politi-

cally powerless to act. This condition has led to such

judicial utterances as:

"It must be remembered that the fundamental consid-

eration is the protection of a dependent people."

2 States b. Pelican, 232 U.S. 442, 450 (1914);

and,

". . . legislation of Congress is to be construed in the

interest of the Indian. . United States v.

Celestine, 215 U.S. 278, 290 (1909).

Recently, in McClanahan v. State Tax Commission of

Arizona, _ U.S. — (1973), 41 U.S.L.W. 4457, 4460

(March 27, 1973), the court stated that historical inci-

dents of non-Indians taking advantage of Indians has

resulted in adoption of the general rule that "Doubtful

expressions [in Treaties] are to be resolved in favor of

the weak and defenseless people who are the wards of

the nation, dependent upon its protection and good

faith. Carpenter v. Shaw, 280 U.S. 363, 367 (1930)."

19

APPENDIX

The purpose of P.L. 83-280 is to "permit the Indians

to become full and equal citizens of their respective

states and to terminate the wardship of the federal gov-

ernment over their affairs." Rincon Band of Mission

Indians v. County of San Diego, 324 F.Supp. 371, 374

(S.D. Cal. 1971). See S.Rep. No. 669, 83d Cong., 1st Sess.

(1953), 2 U.S. Code, Cong. & Ad. News, p. 2409 (1953).

The evidence does not support the charge that plain-

tiff's racial class has suffered from disparity of govern-

mental services offered to other Yakima County and City

residents. Nor does the evidence show that other resi-

dents of the State of Washington have different treat-

ment than plaintiff's members, or that the system of

financing and allocating government services and

resources in the State works to the peculiar disadvantage

of plaintiff or its members.

The fundamental constitutional right of equal protec-

tion is not shown to have been violated. The right of

plaintiff Tribe to be a dependent people, protected by

the federal government’ is not a fundamental right pro-

tected by the Constitution. See: The Mescalero Apache

Tribe v. Franklin Jones, Commissioner, — U.S. —, 41

U.S.L.W. 4451 (March 27, 1973); McClanahan v. State

Tax Commission of Arizona, — U.S. —, 41 U.S.L.W. 4457

(March 27, 1973); Williams v. Lee, 358 U.S. 217, 219-220

(1959); Marchie Tiger v. Western Investment Co., 221

U.S. 286, 314-316 (1911); Matter of Heff, 197 U.S. 488,

499 (1905). In San Antonio Independent School District

et al., v. Rodriguez et al., — U.S. —, 41 U.S.L.W. 4407

(March 21, 1973), the Supreme Court dealt with the

application of the equal protection clause in school

20

APPENDIX

financing. The Texas statutory school financing plan in

operation favored certain districts with high assessed

valuation of property over those with larger enrollment

and small per student assessed valuation. One example

cited shows one district contributing $26 per pupil while

the more affluent district contributed $333 per pupil.

The opinion states the system does not operate to the

peculiar disadvantage of any suspect class. U.S. at —;

41 U.S.L.W. at 4415:

"In sum, to the extent that the Texas system of school

finance results in unequal expenditures between chil-

dren who happen to reside in different districts, we

cannot say that such disparities are the product of a

system that is so irrational as to be invidiously dis-

criminatory." U.S. at ; 41 U.S.L.W. at 4423.

In the Rodriguez case as here, the system impinges on

no substantive constitutional rights or liberties. _ U.S.

at ; 41 U.S.L.W. at 4426.

V. CONCLUSION

There is little evidence that governmental service pro-

vided non-Indian residents of the county was not pro-

vided Indian residents in like quality and quantity.

Plaintiff has failed to make out a case of violation of the

right to equal protection by the State or County or their

officers. It has not been shown that the State and County

system of financing and providing general governmental

services lacks e rational purpose or that it does not com-

ply with the due process requirements of the Fourteenth

Amendment.

The action will be dismissed. Defendants may prepare

judgment and present it.

21

APPENDIX

DONE BY THE COURT this 28th day of June, 1973.

s/Charles L. Powell

United States District Judge

22

APPENDIX

FOOTNOTES

"RCW 37.12.010:

“Assumption of criminal and civil jurisdiction by state. The state

of Washington hereby obligates and binds itself to assume criminal

and civil jurisdiction over Indians and Indian territory, reservations,

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

2 83rd Congress, Ist Session), but such assumption of jurisdiction

shall 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 the provisions of RCW 37.12.021 have

been invoked, except for the following:

(1) Compulsory school attendance;

(2) Public assistance;

(3) Domestic relations;

(4) Mental illness;

(5) Juvenile delinquency;

(6) Adoption proceedings;

(7) Dependent.children; and

(8) Operation of motor vehicles upon the public streets, alleys,

roads and highways: Provided further, That Indian tribes that peti-

tioned for, were granted and became subject to state jurisdiction pur-

suant to this chapter on or before March 13, 1963 shall remain

subject to state civil and criminal jurisdiction as if chapter 36, Laws

of 1963 had not been enacted."

The Tribe alleged at trial that federal revenue sharing funds

were improperly used by the Yakima County Commissioners to

reduce property taxes rather than remedy or improve inadequate

governmental services to rural residents. Whether the county prop-

erly used and accounted for these funds is not before the court in this

case under the issues of fact and law and contentions raised in the

pretrial order. The end result of such use was not shown to favor the

non-Indian as compared to the Indian population or disadvantage

one more than the other.

Besides the Indian Reservation, the county has within it an

Army Firing Range, and part of a National Forest.

“The Indian population in the county is 3,882, of which 3,074 live

in the Lower Valley on or near the reservation. The total enrolled

membership of the Confederated Bands and Tribes of the Yakima

Indian Nation is 6,040.

Part of the imperfection may be attributed to a lack of coopera-

tion from the Tribe. The Juvenile Court Services Director testified

that he could use more personnel. He has 15 salaried officers and 100

volunteers throughout the county other than the reservation. So far

only one Indian volunteer has responded to his several requests for

23

APPENDIX

assistance. There are 15 receiving homes (short term foster homes) in

the Lower Valley and one in the Upper Valley. None are operated by

the Indians. Since 1971 this department's budget has increased from

$286,000 to $424,000 and staff from 5 to 15 probation officers. Of 167

juveniles on probation at the time of trial only 23, or 13.7%, were

Indian children.

For instance, the Indian Reorganization Aci of 1934, 48 Stat.

984, 25 U.S.C. 8461 et seq., was intended to rehabilitate the Indian's

economic life and to give him a chance to develop the initiative

destroyed by a century of oppression and paternalism." H.R. Rep.

No. 1804, 73d Cong., 2d Sess. 6 (1934). See also, S. Rep. No. 721 90th

Cong. 2d Sess. (1968), 2 U.S. Code, Cong. & Ad. News, p. 1837, Addi-

tional Views of Mr. Ervin, 1854, 1863-1867.

‘Contrary to plaintiff's contention [Plaintiff's Post Trial Memo-

randum, p. 3, lines 23-28] the federal government's power over

Indian Tribes is not solely derived from the federal government's

duty to protect the tribes. United States v. Kagama, 118 U.S. 375

(1886). In McClanahan v. State Tax Commission of Arizona, — U.S.

al — U.S.L.W. 4457, 4459 n. 7 (U.S. March 27, 1973), the court

stated:

The source of federal authority over Indian matters has

been the subject of some confusion, but it is now generally

recognized that the power derives from federal responsibil-

ity for regulating commerce with Indian tribes and for

treaty making. See U.S. Const. Art. I, 58, Cl. 3; Art. II, 32,

C12. See also Williams v. Lee, 358 U.S. 217, 219 n.4 (1959);

Perrin v. United States, 232 U.S. 478, 482 (1914); Federal

Indian Law 3."

a,

APPENDIX

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON,

SOUTHERN DIVISION

CIVIL NO. 2732

SUPPLEMENTAL CONCLUSIONS OF LAW

CONFEDERATED BANDS & TRIBES OF THE YAKIMA INDIAN

NATION ON ITS OWN BEHALF AND ON BEHALF OF ITS

MEMBERS,

Plaintiff,

VS.

STATE OF WASHINGTON, COUNTY OF YAKIMA, DANIEL J.

Evans AS GOVERNOR OF THE STATE OF WASHINGTON AND

INDIVIDUALLY, SLADE GORTON AS ATTORNEY GENERAL OF

THE STATE OF WASHINGTON AND INDIVIDUALLY, LES

ConraD, CLIFF ONSGARD AND ANGUS MCDONALD As

County COMMISSIONERS AND INDIVIDUALLY,

Defendants.

This case having come on regularly for trial and then

tried from March 20, 1973, through March 23, 1973, and

all parties having appeared by their respective counsel of

record, and the court having heard the testimony of wit-

nesses and having considered the exhibits introduced,

and having further considered the Pretrial Order filed

herein, and certain oral stipulations made and consented

to on the record by all parties, and having further con-

sidered the briefs and arguments of all counsel, and hav-

ing previously granted certain motions for partial

summary judgment on behalf of defendants, and the

25

APPENDIX

court having filed its memorandum opinion on June 28,

1973 which opinion sufficiently sets out findings of fact

and conclusions of law in accordance with Civil Rule 52,

and the court having determined, with the agreement of

counsel, that certain supplemental conclusions of law

should be made and entered herein, the court does now

therefore make the following:

SUPPLEMENTAL CONCLUSIONS OF LAW

I.

This District Court has original jurisdiction of this

action pursuant to 28 USC § 1362 and 28 USC § 1343.

II.

The State of Washington, in assuming jurisdiction

over the plaintiff tribe and its members by the enact-

ment of RCW 37.12.010 (chapter 36, Laws of 1963, and

chapter 240, Laws of 1957) without first amending Arti-

cle XXVI of the Washington State Constitution did

comply with the provisions of Public Law 83-280 (67

Stat.588), the Enabling Act of February 22, 1889, the

United States Constitution and Washington law in all

respects.

III.

The State of Washington, in assuming jurisdiction

over the plaintiff tribe and its members by the enact-

ment of RCW 37.12.010 and thus assuming less than full

jurisdiction by enumeration of the eight categories of

jurisdiction, and providing in RCW 37.12.021 that the

tribe can obtain full state jurisdiction by providing the

APPENDIX

Governor with a tribal resolution expressing such desire,

did comply with the provisions of Public Law 83-280.

IV.

The jurisdiction exercised by the State of Washington

over plaintiff tribe and its members by enactment of

RCW 37.12.010 is exclusive of that of either the federal

government or the plaintiff tribe. The exercise of said

exclusive jurisdiction does comply with the provisions of

Public Law 83-280.

V.

RCW 37.12.010 does not define crimes, but it rather

merely authorizes the extension of state jurisdiction and

provides for enforcement of the eight enumerated cate-

gories of Washington State criminal and civil laws.

VI.

The laws applicable within the statutory scheme of

RCW 37.12.010 are the same laws enforced throughout

the rest of the state, and RCW 37.12.010 incorporates all

relevant statutory and case law of the State of

Washington.

VII.

The State of Washington in assuming jurisdiction over

the plaintiff tribe and its members by enactment of

RCW 37.12.010 without first obtaining the plaintiff

tribe's assent to the assumption of such jurisdiction did

comply with Public Law 83-280, did comply with the

constitutional and legal standards of due process, and

did not violate any inherent tribal sovereignty guaran-

teed to plaintiff tribe and its members.

27

APPENDIX

VIII.

Plaintiff tribe does not have standing in the justiciable

sense, to assert as an abstract proposition that RCW

37.12.010 is an impermissibly vague grant of jurisdiction.

The required "justiciable controversy" with regard to

this question is not sufficiently present in this case.

IX.

RCW 37.12.010 is not constitutionally invalid or void

for vagueness.

X.

The provisions of chapter 37.12 RCW as enacted do

meet the constitutional and legal standards of due process

and equal protection of person and property.

XI.

In assuming and exercising jurisdiction over the plain-

tiff tribe the defendants have not deprived the plaintiff

tribe or its members of any right, privilege or immunity

secured by the Constitution of the United States or Act

of Congress providing for equal rights of citizens or of all

persons within the jurisdiction of the United States.

XII.

The provisions of RCW 37.12.010 as applied to the

Yakima Indian reservation in the exercise of jurisdiction

by defendants State of Washington and County of

Yakima did not and do not violate the constitutional and

legal standards of due process and equal protection of

person and property.

— — -—----- --

APPENDIX

XIII.

In assuming and exercising jurisdiction over the plain-

tiff tribe and its members pursuant to chapter 37.12

RCW the defendants have not deprived the plaintiff

tribe of any inherent authority to provide for the safety

and welfare of its members.

s/Charles L. Powell

United States District Judge

APPENDIX

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON,

SOUTHERN DIVISION

CIVIL NO. 2732

JUDGMENT

CONFEDERATED BANDS & TRIBES OF THE YAKIMA INDIAN

NATION ON ITS OWN BEHALF AND ON BEHALF OF ITS

MEMBERS,

Plaintiff,

VS.

STaTE or WASHINGTON, COUNTY OF YAKIMA, DANIEL J.

Evans AS GOVERNOR OF THE STATE OF WASHINGTON AND

INDIVIDUALLY, SLADE GORTON AS ATTORNEY GENERAL OF

THE STATE OF WASHINGTON AND INDIVIDUALLY, LES

ConraD, CLirF ONSGARD AND ANGUS MCDONALD 48

County COMMISSIONERS AND INDIVIDUALLY,

Defendants.

This case having come on regularly for trial and hav-

ing been tried from March 20, 1973, through March 23,

1973, and all parties having appeared by their respective

counsel of record, and the court having heard and con-

sidered the testimony of witnesses, and having consid-

ered the exhibits introduced, and having further

considered the Pretrial Order filed herein, and certain

oral stipulations made and consented to on the record by

all parties, and having further considered the briefs and

arguments of all counsel, and having made and entered

30

APPENDIX

its Findings of Fact and Conclusions of Law, and being

fully advised, NOW, THEREFORE,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that the assumption of jurisdiction by the

State of Washington over the plaintiff tribe and its

members and reservation pursuant to Chapter 37.12,

RCW, and in particular RCW 37.12.010 is in all respects

constitutional and valid.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that in exercising its jurisdiction over the

plaintiff tribe and its members and reservation pursuant

to Chapter 37.12, RCW the defendants have not

deprived the plaintiff tribe or its members of any right,

privilege or immunity secured by the Constitution of the

United States or act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction

of the United States, and that such exercise of jurisdic-

tion by the defendants is in all respects constitutional

and valid.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that the plaintiff's complaint be and is

hereby dismissed.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that the defendants are awarded their costs

and disbursements.

DONE IN OPEN COURT this — day of October,

1973.

s/Charles L. Powell

United States District Judge

31

APPENDIX

PUBLIC LAW 83-280

Be it enacted by the Senate and House of Represen-

tatives of the United States of America in Congress

assembled, That:

Chapter 53 of title 18, United States Code, is hereby

amended by inserting at the end of the chapter analysis

preceding section 1151 of such title“ the following new

item:

"1162. State jurisdiction over offenses committed by

or against Indians in the Indian country."

Sec. 2. Title 18, United States Code, is hereby

amended by inserting in chapter 53 thereof immediately

after section 1161 a new section, to be designated as sec-

tion 1162,“ as follows:

"§ 1162. State jurisdiction over offenses committed by

or against Indians in the Indian country

"(a) Each of the States listed in the following table

shall have jurisdiction over offenses committed by or

against Indians in the areas of Indian country listed

opposite the name of the State to the same extent that

such State has jurisdiction over offenses committed else-

where within the State, and the criminal laws of such

State shall have the same force and effect within such

Indian country as they have elsewhere within the State:

"State of Indian country affected

California All Indian country within the State

Minnesota All Indian country within the State, except

the Red Lake Reservation

Nebraska All Indian country within the State

32

APPENDIX

Oregon All Indian country within the State, except

the Warm Springs Reservation

Wisconsin All Indian country within the State, except

the Menominee Reservation

(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any Indian

or any Indian tribe, band, or community that is held in

trust by the United States or is subject to a restriction

against alienation imposed by the United States; or shall

authorize regulation of the use of such property in a

manner inconsistent with any Federal treaty, agreement,

or statute or with any regulation made pursuant thereto;

or shall deprive any Indian or any Indian tribe, band, or

community of any right, privilege, or immunity afforded

under Federal treaty, agreement, or statute with respect

to hunting, trapping, or fishing or the control, licensing,

or regulation thereof.

"(c) The provisions of sections 1152 and 1153 of this

chapter shall not be applicable within the areas of Indian

country listed in subsection (a) of this section."

Sec. 3. Chapter 85 of title 28, United States Code, is

hereby amended by inserting at the end of the chapter

analysis preceding section 1331 of such title“ the follow-

ing new item:

"1360. State civil jurisdiction in actions to which

Indians are parties."

Sec. 4. Title 28, United States Code, is hereby

amended by inserting in chapter 85 thereof immediately

APPENDIX

after section 1359 a new section, to be designated as sec-

tion 1360,“ as follows:

"§ 1360. State civil jurisdiction in actions to which

Indians are parties

"(a) Each of the States listed in the following table

shall have jurisdiction over civil causes of action between

Indians or to which Indians are parties which arise in the

areas of Indian country listed opposite the name of the

State to the same extent that such State has jurisdiction

over other civil causes of action, and those civil laws of

such State that are of general application to private per-

sons or private property shall have the same force and

effect within such Indian country as they have elsewhere

within the State:

"State of Indian country affected

California All Indian country within the State

Minnesota All Indian country within the State, except

the Red Lake Reservation

Nebraska All Indian country within the State

Oregon All Indian country within the State, except

the Warm Springs Reservation

Wisconsin All Indian country within the State, except

the Menominee Reservation

(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any Indian

or any Indian tribe, band, or community that is held in

trust by the United States or is subject to a restriction

against alienation imposed by the United States; or shall

authorize regulation of the use of such property in a

34

APPENDIX

manner inconsistent with any Federal treaty, agreement,

or statute or with any regulation made pursuant thereto;

or shall confer jurisdiction upon the State to adjudicate,

in probate proceedings or otherwise, the ownership or

right to possession of such property or any interest

therein.

"(c) Any tribal ordinance or custom heretofore or

hereafter adopted by an Indian tribe, band, or commu-

nity in the exercise of any authority which it may possess

shall, if not inconsistent with any applicable civil law of

the State, be given full force and effect in the determi-

nation of civil causes of action pursuant to this section."

Sec. 5. Section 1 of the Act of October 5, 1949 (63

Stat. 705, ch. 604), is hereby repealed,** but such repeal

shall not affect any proceedings heretofore instituted

under that section.

Sec. 6. Notwithstanding the provisions of any

Enabling Act for the admission of a State, the consent of

the United States is hereby given to the people of any

State to amend, where necessary, their State constitution

or existing statutes, as the case may be, to remove any

legal impediment to the assumption of civil and criminal

jurisdiction in accordance with the provisions of this Act:

Provided, That the provisions of this Act shall not

become effective with respect to such assumption of

jurisdiction by any such State until the people thereof

have appropriately amended their State constitution or

statutes as the case may be.

Sec. 7. The consent of the United States is hereby

given to any other State not having jurisdiction with

respect to criminal offenses or civil causes of action, or

35

APPENDIX

with respect to both, as provided for in this Act, 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.

Approved August 15, 1953.

APPENDIX

CHAPTER 37.12 RCW

RCW 37.112.010 Assumption of criminal and

civil jurisdiction by state. The state of Washington

hereby obligates and binds itself to assume criminal and

civil jurisdiction over Indians and Indian territory, res-

ervations, country, and lands within this state in accord-

ance with the consent of the United States given by the

act of August 15, 1953 (Public Law 280, 83rd Congress,

Ist Session), but such assumption of jurisdiction shall

not apply to Indians when on their tribal lands or allot-

ted lands within an established Indian reservation and

held in trust by the United States or subject to a restric-

tion against alienation imposed by the United States,

unless the provisions of RCW 37.12.021 have been

invoked, except for the following:

(1) Compulsory school attendance;

(2) Public assistance;

(3) Domestic relations;

(4) Mental illness;

(5) Juvenile delinquency;

(6) Adoption proceedings;

(7) Dependent children; and

(8) Operation of motor vehicles upon the public

streets, alleys, roads and highways: Provided further,

That Indian tribes that petitioned for, were granted and

became subject to state jurisdiction pursuant to this

chapter on or before March 13, 1963 shall remain subject

to state civil and criminal jurisdiction as if *chapter 36,

Laws of 1963 had not been enacted. [1963 c 36 § 1; 1957

c 240 § 1.]

37

APPENDIX

RCW 37.12.021 Assumption of criminal and

civil jurisdiction by state—Resolution of

request—Proclamation by governor, 1963 act.

Whenever the governor of this state shall receive from

the majority of any tribe or the tribal council or other

governing body, duly recognized by the Bureau of Indian

Affairs, of any Indian tribe, community, band or group in

this state a resolution expressing its desire that its peo-

ple and lands be subject to the criminal or civil jurisdic-

tion of the state of Washington to the full extent

authorized by federal law, he shall issue within sixty

days a proclamation to the effect that such jurisdiction

shall apply to all Indians and all Indian territory, reser-

vations, country, and lands of the Indian body involved

to the same extent that this state exercises civil and

criminal jurisdiction or both elsewhere within the state:

Provided, That jurisdiction assumed pursuant to this

section shall nevertheless be subject to the limitations

set forth in RCW 37.12.060. [1963 c 36 § 5.]

RCW 37.12.030 Effective date for assumption

of jurisdiction—Criminal causes. Upon March 13,

1963 the state of Washington shall assume jurisdiction

over offenses as set forth in RCW 37.12.010 committed

by or against Indians in the lands prescribed in RCW

37.12.010 to the same extent that this state has jurisdic-

tion over offenses committed elsewhere within this state,

and such criminal laws of this state shall have the same

force and effect within such lands as they have elsewhere

within this state. [1963 c 36 § 2; 1957 c 240 § 3.]

38

APPENDIX

RCW 37.12.040 Effective date for assumption

of jurisdiction—Civil causes. Upon March 13, 1963

the state of Washington shall assume jurisdiction over

civil causes of action as set forth in RCW 37.12.010

between Indians or to which Indians are parties which

arise in the lands prescribed in RCW 37.12.010 to the

same extent that this state has jurisdiction over other

civil causes of action and, except as otherwise provided

in this chapter, those civil laws of this state that are of

general application to private persons or private prop-

erty shall have the same force and effect within such

lands as they have elsewhere within this state. [1963 c 36

§ 3; 1957 c 240 § 4.]

RCW 37.12.050 State's jurisdiction limited by

federal law. The jurisdiction assumed pursuant to this

chapter shall be subject to the limitations and provisions

of the federal act of August 15, 1953 (Public Law 280,

83rd Congress, Ist Session). [1957 c 240 § 5.]

RCW 37.12.060 Chapter limited in applica-

tion. Nothing in this chapter shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights and tidelands, belonging

to any Indian or any Indian tribe, band, or community

that is held in trust by the United States or is subject to

a restriction against alienation imposed by the United

States; or shall authorize regulation of the use of such

property in a manner inconsistent with any federal

treaty, agreement, or statute or with any regulation

made pursuant thereto; or shall confer jurisdiction upon

39

APPENDIX

the state to adjudicate, in probate proceedings or other-

wise, the ownership or right to possession of such prop-

erty or any interest therein; or shall deprive any Indian

or any Indian tribe, band, or community of any right,

privilege, or immunity afforded under federal treaty,

agreement, statute, or executive order with respect to

Indian land grants, hunting, trapping, or fishing or the

control, licensing, or regulation thereof. [1963 c 36 § 4;

1957 c 240 § 6.)

RCW 37.12.070 Tribal ordinances, customs,

not inconsistent with law applicable in civil

causes. Any tribal ordinance or custom heretofore or

hereafter adopted by an Indian tribe, band, or commu-

nity in the exercise of any authority which it may possess

shall, if not inconsistent with any applicable civil law of

the state, be given full force and effect in the determina-

tion of civil causes of action pursuant to this section.

[1957 c 240 § 7.]

APPENDIX

PAGES 19-23 of EXHIBIT i

Are you Listening Neighbor" — Report of Washington

State Indian Affairs Task Force — 1971

CHAPTER FIVE

JURISDICTION ON THE RESERVATION

The Constitution of the United States is the basic

authority for the conduct of Indian affairs.* Washington

was required by Congress, along with seven other states,

to disclaim jurisdiction over Indian lands before the ter-

ritory was admitted to statehood. But Congress has

acted capriciously in Indian affairs throughout the years,

often with disastrous results for the native American. A

prime example of such capricious action by Congress is

Public Law 280, passed in 1953. Congress later recog

nized that this law was damaging to the interests of both

the states and the Indians and consequently modified it.

Public Law 280 conveys legislative authority over Indi-

ans in certain areas to the states — areas which had

been under the exclusive authority of the federal and

tribal governments. Although the constitution of the

State of Washington disclaims jurisdiction over Indian

lands, Public Law 280 was construed by this state as

permission to impose state law and order over Indians

within the boundaries of Indian reservations. Before

Public Law 280, Indian Tribes on reservations had juris-

The Indian enjoys a unique legal status. This status is a source

of conflict with state and local governments. Four major areas of

"conflict" are examined in this report: law and order on the reserva-

tion, tribal on- reservation zoning authority, water rights, and

rights. Other aspects of the Indian's unique legal status are

in the first two Appendixes.

41

APPENDIX

diction over al! but major crimes committed within their

trust territories. The federal government had jurisdiction

over felonies. The Indian tribes had their own judges,

courts, jails and programs of prevention and

rehabilitation.

This new authority caused so much consternation that

in 1963 the State Legislature passed Senate Bill No. 56

which prevented the state from imposing complete law

and order jurisdiction over Indian tribes unless the

Governor received a tribal resolution requesting total

state jurisdiction. However, the state was still empow-

ered to impose its authority over Indian country in eight

points of the law including: compulsory school atten-

dance; public assistance; domestic relations; mental ill-

ness; juvenile delinquency; adoption proceedings;

dependent children; operation of motor vehicles upon

public streets and roads within the reservation.

It is obvious that with this sweeping jurisdiction over

Indian juveniles and family affairs, it is possible for the

ste e to violate the intention of the U.S. Constitution

and wipe out tribal customs. The State may reduce or

destroy traditional family control which is vital to the

Indian communal way of life, abolish undocumented

marriages rendering the children of such unions illegiti-

mate, change inheritance laws and confuse a people

accustomed to simple tribal law with the sophisticated

legal maze of the white man.

It also meant that counties which hired bigoted law

officials and elected racially prejudiced commissioners

and lawmakers could withhold law enforcement from

Indian country, thus encouraging lawlessness. In other

42

APPENDIX

cases, the law has been applied selectively. In almost

every instance, the county government has lacked suffi-

cient funds and personnel to enforce the laws equally in

the remote rural areas where the reservations are

located. Perhaps most frustrating of all to the Indians is

their inability to control their own children under state

imposed jurisdiction.

This action by Congress has since been amended by

the Civil Rights Act, and States are now allowed to

return this law and order jurisdiction to the tribes. The

State of Washington has jealously guarded this power

over Indians and in spite of strong requests for a return

of their authority over their own children, the Indians

have not been able to retrieve it from the State.

In repeated resolutions by the Northwest Affiliated

Tribes, the Indians of Washington State have charged

the State with complete failure in administering ade-

quate law enforcement on reservations and have further

charged State-imposed law and order jurisdiction with

creating “almost insurmountable problems within the

reservation." Comprehensive delinquency control plan-

ning has been impossible where the tribe has jurisdiction

over parents and the State has assumed total jurisdiction

over juveniles.

The State also assumes law and order jurisdiction over

fee land or non-trust parcels within the reservation. This

compounds law enforcement problems because there are

few physical boundary lines which indicate clearly

whether a crime is committed on trust or non-trust land

within the boundaries of the reservation. For purposes of

43

APPENDIX

enforcing game laws, some Indian police have been dep-

utized by county sheriffs in order that they may arrest

both Indian and non-Indian for hunting violations.

The complaints of Indians made to the Task Force

about racial discrimination, inadequacies and bungling of

state law enforcement efforts on the reservation were

varied, serious and often bitter. The Indians feel very

strongly that in this vital area of their lives the state has

invaded their privacy, violated their federally protected

rights, and worse, broken its promises.

The Indians cited cases of homicide which they

believed to be unsolved because "If it's an Indian, it isn't

important." They described unexplained murders and

uninvestigated highway accidents on the reservation and

a rarity of coroner's juries. The Indians contrasted this

neglect of proper law enforcement with testimony of

harassment and over attention at per capita payment

time. One Indian told the Task Force that at pow-wow

time, when the Omak Stampede drew thousands of

whites and Indians to the area, the police set up a road

block and stopped all Indians in cars for a drunk driver

check and waved all non-Indian drivers on without a

check.

Another Indian who said he drives an old car which

has a malfunction in its steering mechanism testified to

discriminatory treatment by the police. He told the Task

Force, "My dark skin is just like waving a flag in the

policemen's face — every time they see me they think I

must be drunk. Several Indians pointed out that traffic

and other fines at per capita payment time "are about

equivalent to the size of the per capita payment" which

14

APPENDIX

is always published in the newspapers and in the Indian

press.

A Colville Tribal Council member told the Task Force,

"We're finding out we have less and less power in our

law enforcement. We have to take our cases to the Jus-

tice of the Peace, and we never hear of them after that.

Poaching and trespassing on the reservation is costing us

money all the time but the revenue from fines goes to

the county. We have very inadequate police protection

except right before and after per capita time. The

County Sheriff is in Republic, 65 miles away. We want

total law and order jurisdiction with authority over non-

Indians on the reservation."

In 1965, when making plans to terminate the reserva-

tion, the Colvilles petitioned the State to take over law

and order jurisdiction. The Colville Tribe also agreed to

pay the cost of maintaining law and order on the

untaxed reservation out of tribal funds. The Chairman of

the Ferry County Board of Commission rs, Carl V.

Putnam, explained to the Task Force that the Colville

Tribe has paid annually $20,000 each to both Ferry and

Okanogan Counties, and an additional $10,000 for a spe-

cial deputy stationed at the reservation town of

Inchelium and for a part time deputy at Keller. In addi-

tion the tribe furnished the jail and an automobile.

The Colville Indian Tribal Council is no longer sup-

porting the concept of termination and has recently

taken official action to revoke its tribal payments to the

counties for law enforcement. Members of the Colville

Tribal Council urged the Task Force to seek full retro-

cession of law and order jurisdiction from the state. They

45

APPENDIX

testified that the law enforcement on the reservation,

even with their tribal funding as a subsidy, was woefully

inadequate. Since the tribe has withdrawn the subsidy

the county has closed the reservation jail and reduced

the law enforcement personnel assigned to the area.

The two counties which lie partly inside the Colville

Reservation have severe problems in raising enough rev-

enue to support the vital services the population of the

area requires. Ferry County is made up primarily of

non-taxable land. Eighty-five per cent of the county is

either national forests or Indian reservation. Okanogan

County was already over $100,000 in the red when its

County Commissioner, John Carlson, testified before the

Task Force.

The area has no juvenile detention or holding facili-

ties. When the County Commissioners sought federal

U.S. Justice crime prevention funds for such a facility,

the State Law and Justice Committee approved only a

fraction of the needed funds.

Ferry County Commissioners were quick to commend

the Colville Tribe for its assistance in operating the

county and confessed that presently the county is in

need of the Indian subsidy. Quite another attitude was

expressed by Okanogan County Prosecutor James

Thomas, who said that the county gets along well with

the Indians because the Indians have wanted to assume

their responsibility" by making tribal funds available to

pay for policing the reservation. He urged the Task

Force to ignore the Colville Indians request for retroces-

sion of law and order jurisdiction and to fight to retain

46

APPENDIX

State authority over the tribe. Thomas said, "The prob-

lems of the county are the problems of the Indians." He

said that if the Indians were willing to continue to "ful-

fill their obligation to pay for their law and order ser-

vices by the county," he wouldn't object to having the

fines of Indian arrests go back into the reservation.

Indians throughout the State protested at Task Force

hearings that they are not permitted by the State to

arrest non-Indians who commit crimes within reserva-

tion boundaries nor are they able to keep the fines

imposed on Indians who commit crimes. Federal BIA

Indian police officers and tribal police officers who

enforce law and order over adults and over federal

crimes committed on Indian land must turn their pris-

oners over to county authorities. With the prisoners go

the revenue that could help pay for tribal law and order.

Cross deputizing of tribal and BIA police would elimi-

nate many problems related to arrest.

Making tribal judges Justices of the Peace would help

to eliminate the problem of lost revenue through fines. A

few Indian policemen are deputized by County Sheriffs,

but this practice is not widespread in the State. Tribal

Court systems are generally not recognized as legal or

their decisions binding by the non-Indian courts of the

State. Non-Indians who commit crimes on Indian land

cannot be tried by tribal courts at all. This means that if

Indians are to enforce their federal treaty rights outlaw-

ing trespass on their beaches, shellfish beds, in their for-

ests, on their fishing lakes and in their trout streams

they must eject the trespassers bodily through physical

force.

47

APPENDIX

The Quinault Indians have been quite successful at

this on their Pacific Ocean beaches and on Lake

Quinault. Other Indian tribes have been less aggressive,

but Indian testimony indicated they are hardening their

attitudes on the subject of trespass. County Sheriffs with

jurisdiction over several reservations which suffer tres-

pass violations confessed to the Task Force that they

have neither the manpower nor the funds to patrol the

areas being invaded and damaged.

Joe De La Cruz, business manager of the Quinault

Tribe, told the Task Force that there would be no

Quinault juvenile problem if the tribe had total jurisdic-

tion over law and order. He said the tribal judges used to

sentence Indian youngsters to cutting brush around town

(Taholah) when they got into trouble, and this discipline

caused the youth to think twice before again breaking

the law.

De La Cruz said that under present conditions juve-

nile halls are full every weekend and there is no place to

put the youngsters who have committed crimes. He said

the county often released juveniles without notifying the

tribe. Since this county effort has broken down, the

Quinault Tribe has started turning over its county-

released juvenile delinquents to tribal judges for sen-

tencing in spite of lack of legal jurisdiction.

Quinault Chief James Jackson said the Quinaults will

first seek to overturn the law because they feel it is ille-

gal in the first place. And the tribe believes it can do a

better job than the state in taking care of their own chil-

dren; that the children would be better off under tribal

jurisdiction. If that alternative fails, the Quinaults will

48

APPENDIX

ask the state for permission to contract the job of han-

dling their Indian juveniles. He said that if the tribe

could contract through the State or county to provide

juvenile services, the Indians would be regaining author-

ity over their own children, and at the same time the

tribe would be recognized as a legitimate governing unit

by the State.

The Spokane Reservation has a tribal police force and

tribal courts and judges, but the Indians have no power

to arrest non-Indians violating the law on their Indian

lands. Neither can they collect the fines levied against

the Indians and non-Indians arrested by county law offi-

cers within the reservation. The tribe asked the Task

Force to seek State and Indian concurrent jurisdiction

over law and order for the Spokane Reservation.

Spokane business manager, Glenn Galbraith, told the

Task Force that the Indians want authority to enforce

the law when the State and County fail. Other Indian

tribes in the State favor clear-cut tribal authority.

WE RECOMMEND THAT:

The State Legislature pass a bill outlining the proce-

dure for retrocession. Retrocession would return to the

State's Indian tribes whatever degree of law and order

authority over their reservations that the individual

tribes agree they can assume. This type of legislation

would include provision for the tribe to assume full

jurisdiction over law and order, or would provide for the

tribe to assume with the State concurrent jurisdiction if

the tribe preferred, or would permit the tribe to assume

just those areas of jurisdiction which the tribe chose to

pay for and administer.

49

APPENDIX

The Legislature provide a means for Indian tribes to

contract with the State or counties or cities to provide

law and order services to Indians if its tribal government

desires to do so. This legislation would have to include

provision for State recognition of federally recognized

Indian Tribes and their elected Tribal Councils as legiti-

mate governing units.

All Indian police officers who serve reservations be

deputized by the Sheriffs of the counties within which

the reservations lie so that Indian officers may legally

arrest non-Indians who commit crimes on Indian land.

Tribal Judges on Indian reservations be made Justices

of the Peace so that they may hear cases of non-Indians

who are arrested for committing crimes on Indian land.

Fines imposed on both Indian and non-Indian offenders

would be utilized solely for reservation law and order

programs.

Counties seek the special aid of the State to finance

adequate law and order services in areas of the State

where great tracts of county land are non-taxable

because they are under federal jurisdiction.

County law enforcement officials be required to look

upon the Indian reservation as a responsibility equal to

that of other areas of the county and provide equal ser-

vices to the entire county.

Indians be hired and trained in law enforcement by

the State at all levels.

APPENDIX

PAGE 109 of EXHIBIT 42

1973 WASHINGTON STATE

COMPREHENSIVE PLAN

FOR LAW ENFORCEMENT

Program Area K-1—INDIAN JUSTICE

IMPROVEMENTS

Introduction

Although the state assumed jurisdiction over major

crimes and juvenile delinquency on reservations, coun-

ties have not been provided with resources to effectively

assume the responsibilities of patrol, apprehension, and

investigation of offenses committed on reservations. Of

the 30 Indian tribes and bands in the state, with a pop-

ulation of approximately 33,000, 12 tribes now have law

enforcement functions. It is estimated that 15 to 18

tribes will have law enforcement functions by the end of

1973.

Law enforcement, judicial, corrections, and crime and

delinquency prevention programs on Indian reservations

within the state need basic support. The basic manpower

and equipment support, which is the most critical need

upon the reservations, ordinarily is provided for in cities

and counties from general revenues and is not considered

an appropriate use of federal law enforcement assistance

funds by those jurisdictions.

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