DOLLIETTA COMENOUT et al., Petitioners, v. MILTON BURDMAN, as Secretary of the Department of Social and Health Services, et al., Respondents.
No. 42976
En Banc.
August 8, 1974.
Petition for rehearing denied October 1, 1974.
I take it that a general bill like this would be regarded as authority by the Congress for them to amend their constitutions. It would be regarded as an amendment to the Organic Act.
Mr. Aspinall. The State Legislature would not do it. The people of the state themselves would have to do it.
Mr. Benge. Yes, sir.
Hearings on H.R. 1063 before the Subcomm. on Indian Affairs of the House Comm. on Interior and Insular Affairs, 83rd Cong., 1st Sess., at 23-24 (June 29, 1953).
I believe these colloquies demonstrate Congress’ intent that section 6 of Public Law 83-280 authorizes Washington to assume Indian jurisdiction not by legislative action but only conditionally upon amendment of our state constitution. Accordingly, I do not believe this court has jurisdiction over the case. For the reasons stated, I dissent.
STAFFORD, J., concurs with UTTER, J.
Slade Gorton, Attorney General, and William H. Clarke and Luzerne E. Hufford, Jr., Assistants, for respondent Burdman.
L. Edward Brown, Prosecuting Attorney, and Greg Staeheli, Deputy, for respondent Poyhonen.
HUNTER, J. — This appeal arises from a writ of prohibition brought by the petitioners (appellants), Dollietta and Kenneth Comenout, against the respondents, Milton Burdman, as Secretary of the Department of Social and Health Services, and Judge Warner Poyhonen, Judge Pro Tem of the Superior Court for Grays Harbor County. The case deals with the issue of whether the State of Washington has jurisdiction to deprive the petitioners of their parental rights over their children where the petitioners are Quinault Indians residing on the Quinault Indian Reservation.
The facts in the instant case are as follows. The petitioners, Quinault Indians residing on the Quinault Indian Reservation, are the parents of Annabella Comenout, born May 22, 1967, and Sonja Comenout, born May 15, 1970. In March of 1969, Annabella Comenout was taken from the custody of her parents by the state Department of Social and Health Services and, in March of 1971, at a hearing before the Superior Court for Grays Harbor County, the petitioners were temporarily deprived of the custody of both their children for a period of 6 months. Both children have been placed in foster care by the state Department of Social and Health Services.
On August 6, 1973, a hearing was held before Judge Warner Poyhonen, Judge Pro Tem of the Superior Court for Grays Harbor County, on a petition for permanent deprivation of the parental rights of the petitioners over their
The petitioners’ contention in this case, that the State of Washington has no jurisdiction over Quinault Indians and the Quinault Indian Reservation, must be considered in light of various constitutional provisions, statutory enactments, and events leading up to this controversy. In 1889, the United States Congress adopted an act allowing the territories of Washington, Montana, North Dakota and South Dakota to become members of our union of states. Act of February 22, 1889, ch. 180, § 1, 25 Stat. 676. The enabling act provided as a prerequisite to admission to the Union that each state seeking admission should hold a constitutional convention and provide, among other things:
[B]y ordinances irrevocable without the consent of the United States and the people of said States:
Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; . . .
(Italics ours.) 25 Stat. 676, 677.
In compliance with the enabling act language, article 26
The following ordinance shall be irrevocable without the consent of the United States and the people of this state:
Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States . . .
(Italics ours.)
The Act of August 15, 1953, ch. 505, 67 Stat. 588, was passed by Congress, consenting to the assumption of jurisdiction over Indians by the states. The relevant sections of this act provided on page 590:
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 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.1
Responding to that congressional action, the legislature of the State of Washington enacted Laws of 1957, ch. 240 (RCW 37.12), which provides that the State of Washington shall not assume jurisdiction over an Indian tribe until such tribe expresses a desire for its people to be subject to the jurisdiction of the State of Washington. A particular procedure was specified in RCW 37.12.020,2 in which it was provided that whenever the Governor of the State shall receive from the tribal council or other governing body of the Indian tribe, a resolution expressing its desire to be subject to the criminal and civil jurisdiction of the state, the Governor shall issue a proclamation to the effect that the State of Washington assumes jurisdiction over the petitioning tribe.
On April 22, 1958, a body purporting to be the “Quinault Indian Tribal Council” adopted a resolution expressing the desire that the criminal and civil jurisdiction of the State of Washington be extended to include the Quinault Indian Tribe and Reservation. Pursuant to RCW 37.12.020, former Governor Rosellini, on May 15, 1958, issued a proclamation purporting to extend state jurisdiction over criminal and civil matters to that reservation effective July 14, 1958. The proclamation declared that
The criminal and civil jurisdiction of the State of Washington shall apply to the Quinault Indian people, their reservation, territory, lands and country, and all persons being and residing therein.
After the proclamation was issued, however, certain mem-
In 1963, the legislature of the State of Washington enacted Laws of 1963, ch. 36, p. 346, which substantially amended RCW 37.12.
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 280, 83rd Congress, 1st 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 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.
(Italics ours.) It is under subsection (7) of the above statute covering “Dependent children” that the State of Washington and its Department of Social and Health Services assert jurisdiction over the petitioners in this case.
Subsequent to the 1963 amendments of RCW 37.12, on
The petitioners’ first argument in this case is that the State of Washington, by failing to amend article 26 of its state constitution, has not validly assumed jurisdiction over the Quinault Indian Tribe pursuant to the Act of August 15, 1953, ch. 505, 67 Stat. 588. We disagree. This argument was extensively considered by this court in Ton-asket v. State, 84 Wn.2d 164, 525 P.2d 744 (1974), where we held that the legislative method of assuming state civil and criminal jurisdiction over Indian tribes in this state was proper under the Act of August 15, 1953, supra, and not in violation of our enabling act.
The petitioners next contend that even if state jurisdiction has been validly assumed under the Act of August 15, 1953, ch. 505, 67 Stat. 588, the State of Washington now has no jurisdiction over the Quinault Indians in this case since the proclamation by Governor Evans in 1968 declared the 1958 proclamation by former Governor Rosellini to be null and void, and retroceded all of the State of Washington‘s jurisdiction over the Quinault Indians to the federal government. The petitioners argue that even though the 1968 proclamation by Governor Evans did not retrocede to the United States any jurisdiction exercised by the State of Washington over the Quinault Reservation under Laws of 1963, ch. 36 (which includes RCW 37.12.010), the Quinault Indian Tribe, having come under the jurisdiction of the State of Washington in 1958, is exempted from RCW 37.12.010, as amended in 1963, by the express language of the proviso of that statute, which we have heretofore recited. The proviso, also referred to as the “savings clause,” provides:
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.
After examining the language of RCW 37.12.010 and the provisions of RCW 37.12, we find that the petitioners’ argument that the State of Washington has no jurisdiction over the Quinault Indian Tribe under RCW 37.12.010 is without merit. An examination of the public policy of this state concerning Indian jurisdiction supports our conclusion that the true intent of the legislature, in amending RCW 37.12.010 in 1963, was not to exempt tribes like the Quinault Indian Tribe from the application of the statute.
Subsequent to the passage of Laws of 1957, ch. 240, this court considered two cases, State ex rel. Adams v. Superior Court, 57 Wn.2d 181, 356 P.2d 985 (1960), and In re Colwash, 57 Wn.2d 196, 356 P.2d 994 (1960), which pointed out the hiatus in the law of the State of Washington at that time concerning the state‘s jurisdiction over Indian tribes like the Colville and Yakima tribes which had not submitted a resolution pursuant to RCW 37.12.020, for the State of Washington to assume criminal and civil jurisdiction over their respective tribes and reservations.3
The Adams case involved a review by certiorari of an order of the Juvenile Court for Okanogan County declaring certain minors to be “dependent children” whose parents were Colville Indians residing on the Colville Indian Res-
After our determination in Adams and Colwash that the State had no jurisdiction in dependency matters over Indian tribes which had not submitted a resolution pursuant to the proclamation procedure outlined in RCW 37.12.020, it appears clear that the legislature amended RCW 37.12.010 as a part of Laws of 1963, ch. 240, to give the State jurisdiction, in dependency matters and in seven other enumerated areas, over all tribes within the state regardless of whether the tribe in question gave its consent to the state to assume jurisdiction. The only purpose the savings clause in RCW 37.12.010 could have served was to remove any ambiguity or uncertainty as to the jurisdiction which the state had previously acquired over Indian tribes by their application for the state‘s jurisdiction under RCW 37.12.020. The savings clause must have therefore been inserted in RCW 37.12.010 to assure those tribes, which had petitioned the Governor and had become subject to the criminal and civil jurisdiction of the State of Washington before March 13, 1963, that they would not have to resubmit a tribal resolution under the new act. To place any other construction upon the meaning of the savings clause in RCW 37.12.010 would be absurd, and would be inconsistent with the intent of the legislature in 1963 to give the state jurisdiction over all Indian tribes within the state regardless of tribal consent as to those eight enumerated areas specified in RCW 37.12.010.
We therefore hold that the provisions of RCW 37.12.010, as amended in Laws of 1963, ch. 36, apply to the petitioners under the circumstances of this case, and that the State of Washington has the jurisdiction to permanently deprive the petitioners of their parental rights over their children.
The writ of prohibition is therefore denied.
HALE, C.J., and FINLEY, ROSELLINI, HAMILTON, WRIGHT, and BRACHTENBACH, JJ., concur.
UTTER, J. (dissenting) — My views are the same as expressed in my dissent in Tonasket v. State, 84 Wn.2d 164, 525 P.2d 744 (1974).
STAFFORD, J., concurs with UTTER, J.