413 P.3d 65
Wash. Ct. App.2018Background
- Defendant Donald J. Zack, who lives on the Yakama Reservation and claims Indian heritage (not an enrolled member), was transported from Toppenish City Jail to Toppenish City Hospital (deeded/fee land within the reservation) and assaulted a jail officer who is non-Indian.
- Governor Jay Inslee issued Proclamation 14-01 (Jan. 17, 2014) partially retroceding state criminal and civil jurisdiction to the Yakama Nation within the reservation, with paragraph 3 stating the State "retains jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims."
- The Department of Interior accepted the proclamation but did not adopt the Governor’s explanatory letter interpreting "and" to mean "and/or."
- State charged Zack with third-degree assault of a law enforcement officer; Zack moved to dismiss for lack of jurisdiction, arguing the proclamation precluded state prosecution of Indians for offenses on reservation fee land unless both defendant and victim were non‑Indian.
- Trial court denied the motion, interpreting paragraph 3 conjunctively/disjunctively (as retaining jurisdiction where either party is non‑Indian); Zack stipulated to police reports and was convicted; he appealed claiming lack of jurisdiction and insufficient evidence.
Issues
| Issue | Plaintiff's Argument (Zack) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Proclamation 14-01 permits State prosecution of an Indian for a crime on deeded land within reservation | "And" in paragraph 3 is conjunctive — State retained jurisdiction only when both defendant and victim are non‑Indian, so State lacks jurisdiction over Zack | "And" should be read as "and/or" (disjunctive) — State retained jurisdiction when either defendant or victim is non‑Indian; paragraph must be read so it is not nonsensical or ultra vires | Court: Read "and" to allow disjunctive meaning; State retained jurisdiction to prosecute an assault by an Indian against a non‑Indian on deeded land; denial of dismissal affirmed |
| Standard of review for interpreting the proclamation | N/A (Zack argues plain reading supports his view) | Proclamation treated like statute; appellate review de novo; consider Governor's stated intent as interpretive aid | Court: Proclamation construed like statute; de novo review; Governor's clarification is persuasive contemporaneous evidence but not controlling |
| Whether the assault charge (third-degree) required that victim be a "law enforcement officer" under statute | Zack contends victim was merely a corrections officer, not a law enforcement officer; statute elements not met | State: Department of Corrections functions qualify as law enforcement agency; facts support officer performing official duties | Court: Evidence sufficient; DOC/ jail staff are employees of a law enforcement agency for purposes of the assault statute |
| Imposition of incarceration costs without inquiry into ability to pay | Zack requests relief from appellate costs and challenges $200 incarceration cost | State will not file appellate cost bill and will seek order striking the $200 incarceration cost | Court: No appellate costs pursued by State; remanded to strike $200 incarceration cost pending State's action |
Key Cases Cited
- Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (U.S. 1979) (discusses State assumption of jurisdiction under Pub. L. 280 over fee lands within reservation)
- State v. Squally, 132 Wn.2d 333 (Wash. 1997) (standards for reservation-jurisdiction questions; de novo review)
- State v. Armendariz, 160 Wn.2d 106 (Wash. 2007) (statutory interpretation principles and de novo review)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of evidence review under due process)
- McLean v. Dep't of Corr., 37 Wn. App. 255 (Wash. Ct. App. 1984) (construing Department of Corrections as a law enforcement agency)