State v. CooperState v. Cooper
- Reporters:
- , ,
- Before:
- Durham (en banc)
DURHAM, Chief Justice.
The State seeks review of a Court of Appeals decision reversing Kim Cooper‘s conviction for child molestation. The State contends the Court of Appeals erred in concluding that the State lacks jurisdiction over crimes committed by Indians on Indian lands
BACKGROUND
Cooper‘s crime was committed on property held in trust by the United States as an Indian allotment outside the boundaries of the Nooksack Reservation. State v. Cooper, 81 Wash.App. 36, 38, 41 n. 6, 912 P.2d 1075, review granted, 129 Wash.2d 1013, 917 P.2d 576 (1996).1 The State no longer disputes Cooper‘s factual assertions that (1) the crime was committed on trust property, and (2) Cooper and the victim are both members of the Nooksack Tribe.2 It is also undisputed that the trust property is “Indian country” for purposes of federal jurisdiction.3
Public Law 280
Prior to federal legislation permitting the assumption of state jurisdiction, criminal offenses by Indians in Indian country were subject to only federal or tribal jurisdiction. See Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470, 99 S.Ct. 740, 746, 58 L.Ed.2d 740 (1979). In 1953, Congress enacted Public Law 280 permitting the states to assume jurisdiction over Indian country. Pub.L. No. 280, 67 Stat. 588 (codified as amеnded at
Amended RCW 37.12.010 (1963)
In 1963, the Legislаture amended RCW ch. 37.12, thereby asserting nonconsensual civil and criminal jurisdiction over all Indian country with certain exceptions.
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 [Public Law 280], 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....
The Indian Civil Rights Act of 1968
The Indian Civil Rights Act of 1968 (hereafter 1968 ICRA),
The Nooksack Reservation
The Nooksack Reservation was established in 1973.5 The Nooksack Tribe has not consented to the assumption of state jurisdiction. Cooper, 81 Wash.App. at 39, 912 P.2d 1075.
ANALYSIS
The question of state jurisdiction depends first on whether the State initially assumed jurisdiction over the trust property pursuant to
A. Pursuant to
By enacting the 1963 version of
The most significant feature of the [amended
RCW 37.12.010 ] was its provision for the extension of at least somejurisdiction over all Indian lands within the State, whether or not the affected tribe gave its consent. Full criminal and civil jurisdiction to the extent permitted by Pub.L. 280 was extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved.... ....
... On trust and restricted lands within the reservations whose tribes have not requestеd the coverage of state law, jurisdiction over crimes by Indians is, as it was when Pub.L. 280 was enacted, shared by the tribal and Federal Governments.
Confederated Bands & Tribes, 439 U.S. at 475, 498-99, 99 S.Ct. at 748, 760 (emphasis added).
Because the Nooksack reservation did not exist in 1963, the State‘s assumption of jurisdiction pursuant to
State v Sohappy
Cooper contends the Statе‘s interpretation of “reservation” is too narrow, and that, for purposes of
The question is whether this in-lieu site is within the category described in
RCW 37.12.010 over which the State has not asserted jurisdiction. Specifically, was the defendant on tribal lands or allotted lands within an established Indian reservation and held in trust by the United States, the delimiting language of the statute?
Sohappy, 110 Wash.2d at 909-10, 757 P.2d 509. Although the in-lieu site was not within the original boundаries of the Yakima Reservation itself, this court held that the site was “within an Indian reservation” for purposes of
In United States v. Sohappy, 770 F.2d 816 (9th Cir.1985), cert. denied, 477 U.S. 906, 106 S.Ct. 3278, 91 L.Ed.2d 568 (1986), 13 Indian defendants were prosecuted under federal law for various fishing violations at the in-lieu site. The federal court was asked to determine whether the offenses were committed in “Indian country” for purposes of federal criminal jurisdiction. Observing that the in-lieu site was held in trust by the United States, the federal court held that the site was in “Indian country” for purposes of
This court expressly disavowed any broad interpretatiоn of its reliance on the federal decision in this court‘s Sohappy opinion.
At the outset we note two points: (1) Our holding is narrowly limited to the in-lieu site here involved. We so restrict our holding because of the Ninth Circuit decision upon which we rely, cited hereafter. (2) The State‘s 4-page brief is of no use to this court. It cites not а single case.
Sohappy, 110 Wash.2d at 909, 757 P.2d 509. Cooper ignores this disclaimer and his briefs never mention the federal Sohappy decision. Instead, Cooper relies on this court‘s opinion in Sohappy for the proposition that we have rejected the distinction between “Indian country” and “reservation” for purposes of
Federal definitions of “reservation”
Cooper also cites Sohappy for the proposition that this court should look to federal precedent interpreting the term “reservation.” There are several problems with this approach. The federal cases cited by Cooper are concerned with the definition of “Indian country” for purposes of federal jurisdiction. While some federal cases use the terms “Indian country” and “reservation” interchangeably, other cases clearly indicate that they are not the same thing. See Tooisgah v. United States, 186 F.2d 93, 98 (10th Cir.1950). Furthermore, when
Oklahoma Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), relied on by Cooper, is inapplicable. In that case, the Supreme Court rejected a distinction between trust lands and “reservations” for purposes of whether property was in Indian country. An Indian tribe challenged Oklahoma‘s authority to impose sales taxes on cigarettes sold at a store on trust land. Oklahoma hаd not asserted state jurisdiction over Indian country pursuant to Public Law 280. Nevertheless, the State argued that it had jurisdiction because the store was not within a formally established “reservation.” The Supreme Court disagreed. “[T]he test for determining whether land is Indian country does not turn upon whether that land is denominated `trust lаnd’ or `reservation.‘” Potawatomi Indian Tribe, 498 U.S. at 511, 111 S.Ct. at 910 (emphasis added) (citing United States v. John, 437 U.S. 634, 648-49, 98 S.Ct. 2541, 2548-49, 57 L.Ed.2d 489 (1978)). Unlike Oklahoma, Washington has assumed jurisdiction over Indian country pursuant to Public Law 280. The issue is not whether Cooper‘s crime was committed in “Indian country” for purposes of federal jurisdiction, but whether it was committed “within an established Indian reservation” for purposes of
Other cases relied on by Cooper are distinguishable. In re Wesley v. Schneckloth, 55 Wash.2d 90, 346 P.2d 658 (1959) was decided before the 1963 amendments to
B. The subsequent establishment of the Nooksack Reservation does not vitiate the State‘s pre-existing assumption of jurisdiction over Indian lands outside the Nooksack Reservation.
The Court of Appeals misconstrued the 1968 ICRA and
Cooper‘s argument that Nooksack consent is required for state jurisdiction is based on the incorrect assumption that such property is part of the Nooksack Tribe‘s “reservation” for purposes of
If a tribe has not requested or consented to the assumption of state jurisdiction, the title status [of] the property where the offense was committed determines state authority to prosecute. If the property is tribal or allotted land within the reservation and is either held in trust by the United States or subject to a restriction against alienation imposed by the United States, the Washington courts do not have jurisdiction.
Pamela B. Loginsky, Criminal Jurisdiction Issues, in Washington State Bar Ass‘n, Continuing Legal Educ. Comm. & Indian Law Section, Perspectives on Indian Lаw, at 4-7 (Apr. 10, 1992) (emphasis added). Assuming, arguendo, that the subsequent establishment of the Nooksack Reservation vitiates the preexisting
Reversed.
DOLLIVER, SMITH, GUY, JOHNSON, MADSEN, ALEXANDER, TALMADGE and SANDERS, JJ., concur.
Notes
Four reservations were formed after 1968, and their membership never elected to come under state jurisdiction. The Jamestown-Klallam, Nooksack, Sauk Suiattle and Upper Skagit reservations are not subject to
Loginsky, supra, at 4-8. See State v. Squally, 81 Wash.App. 685, 691-92, 915 P.2d 1151, review granted, 130 Wash.2d 1007 (1996) (notwithstanding the 1957 assumption of jurisdiction over then existing Nisqually Indian Reservation pursuant to tribal request, the State lacks jurisdiction over lands subsequently added to the reservation in the absence of new tribal request).