Posts Tagged ‘Colville Confederated Tribes’

Monday I had the pleasure of meeting Daryl Rodrigues, the new lead public defender for the Colville Confederated Tribes.  I also found out that he has a blog entitled Bicker, Back & Forth, PS. His posts from September 22nd and 29th recount his adventures in moving to Coulee Dam.  When I read his bio on his blog, I saw that he is a ’94 grad of Gonzaga Law, and I am a ’95 grad.  I think I remember him.   Daryl is originally from England, and since graduating he has done a lot of work in private practice and he taught at Whitworth a little bit.   I look forward to checking up on his blog to read about his experiences in Tribal Court.

I was sworn in to the bar in the Colville Tribal Courts in 1999 but did not really practice there much until 2002.    I have never practiced there full-time, but I enjoy doing criminal defense work down there, and I do some employment law cases down there too.   The criminal courts in Nespelem only have jurisdiction to prosecute Tribal members or first-line descendants for crimes.  Non-tribal members can still be sued in Tribal Court and can be ticketed for such infractions as speeding or fish and game violations.   I would imagine that one of the projects that Daryl will be faced with in the years to come is working with the Tribe’s nascent juvenile justice code.  Native youths in recent years have had their cases handled in State court, but the Colville Tribal Code envisions that the cases would be handled in tribal court someday.   This would seem to be an improvement.  The Tribal Court would seem to know more about these kids and what problems they face.  Currently, many Native youths are prosecuted in Republic or Okanogan and drive over an hour to  attend a court that is largely unfamiliar with their families and communities.  The courts of Ferry County and Okanogan County also seem to face challenges in monitoring these kids while they are on probation.

The Washington Supreme Court ruled Friday that Tribal police officers may pursue suspects off of reservations to make arrests.    That surprised me.  I always viewed the Tribal authority to make arrests as stopping at the border.

The case is State v. Loretta Eriksen.  A Lummi Nation police officer saw Eriksen commit traffic infractions, and then followed her off the reservation and detained her.   The case analyzed what authority the officer had to detain her off of the reservation.  Eriksen was later charged with DUI.  Her criminal defense lawyer questioned the legality of her stop in district court.

The subject of police officers acting outside of their jurisdiction arises often in my practice.  People often ask me what jurisdiction a city cop has in the county and vice versa.  Under Washington law, the police agencies of Washington State permit vehicle pursuits between local governments under the  Washington Mutual Aid Peace Officers Powers Act of 1985.  The Supreme Court rationalized that the Lummi Nation could act just like a local Washington police force.  However, under Washington law, the Mutual Aid Act (RCW 10.93.120(1)) states  “[a]ny peace officer who has authority under Washington law to make an arrest . . . .”  I guess I just don’t read that as applying to the agents of sovereign political tribes.  I tend to think of Indian Tribes or Nations as separate nations, and was taught this in law school.  Would you expect the police of Mexico or Canada to follow suspects across the border and detain them in the U.S.?

The attorney for the Lummi Tribe, in a persuasive friend-of-the-court brief, argued that to interpret the Mutual Aid Act to apply to local Washington governments but not Tribes would be discriminatory.   I really wonder in the long term if Native-Americans really want their Tribes to be analogized to another local Washington government.  In just about any other court case, the attorneys for the Tribes are analogizing themselves to separate nations such as foreign countries.  Local municipal entities in Washington are not sovereign entities in any way shape or form.   All cities, whether Republic, or Okanogan, or Seattle exist because the state legislature allows them to under RCW title 35.  Local governments are not sovereign or even quasi-sovereign.

The point of the Washington Supreme Court in this case was that people should not be able to flee accountability to Tribal police officers simply by driving off of the reservation.    That is true, but it should really be up to the legislature to fix this with a new statute.  Instead, the court created this rule with a somewhat strained reading of the current Washington Mutual Aid Peace Officers Powers.   Another problem I had with this court decision is that the Whatcom County Sheriff’s Department could have eliminated this problem by cross-commissioning the Lummi Nation police.   The defense attorney for Ms. Eriksen pointed this out in his brief.   He explained: “Sheriff of Whatcom County can give tribal officers the power to arrest under Washington law by cross deputizing them, but he has not done so.”  While it is common for Sheriff’s departments to cross-deputize Tribal officers, there is also some discrimination too.  Some county or city law enforcement agents view Tribal Police departments as inferior to their departments.  In my experience, the Tribal Police departments are certainly on par with local agencies, and often exceed local agencies in manpower, and with expertise in the collection of evidence.  The decision of the Supreme Court does not mention the failure of the Whatcom County Sheriff to cross deputize the Lummi Officers.  I feel this kind of lets him off the hook.

In the years to come, certain question will need to be clarified.  If a tribal officer is permitted to leave the reservation to make a detention, how long does an officer have?  Does the officer need to be directly following the vehicle, or can he locate the suspect many hours later at his home in Republic, or West Omak, or Grand Coulee?  If the vehicle successfully eludes the Tribal Officer, can the officer then conduct a man hunt off reservation for the suspect?  What implications will this decision have for the Spokane Tribe or Colville Confederated Tribes?

I discussed other issues related to tribal sovereignty in an earlier post on June 6th.

Earlier this week many local Native-American tribes protested the Federal government policies restricting their rights to cross the Canadian border. The problem had been brewing for some time. See High Country News.

When I first moved to Ferry County in 1996, it seemed as if this was the county that was poised to enter big legal battles with the Colville Confederated Tribes.  The two governments were set to square off over who had primary jurisdiction to regulate land owned by non-Tribal members on the Reservation.  The subject dominated local politics and was the subject of frequent letters to the editor.  The Tribes were rumored to have a “million dollar war chest” to fund any litigation with the county.  The county commissioners appointed me county attorney in April 1998, and I urged caution on the part of the county. When you are looking for a good “test case” to bring to court, you don’t necessarily want to join the side of the first non-Tribal landowner to raise his hand.  In the end, a legal battle was avoided, and in my opinion Ferry County and the Tribes have worked together fairly well for the last ten years.

So I am glad to see that it was the Federal government this time that has drawn the ire of the Colville Tribes and has been accused of violating treaty rights.  This has come to the media’s attention rather recently as Tribal members have become fed up with being harassed by U.S. Border officials as they travel to and from their ancestral homelands across the border in British Columbia.  As someone who lives near the border myself, I have often found it frustrating to deal with border officials when I travel to Canada.  In addition, as an attorney I often represent defendants who get caught up in border issues.  The difference, of course, is that local Tribal members have special treaty rights to cross the border.  Under the Jay Treaty of 1794, Native-Americans were granted the right to engage in trade and travel between the United States and Canada, which was then British Territory.  Until 9/11 no one seemed to question the rights of Tribal members to travel to and from Canada with just their tribal ID cards.  But now, there is pressure on the Tribal members to give up the ID cards of their own government and to use passports or state enhanced drivers licenses. Local tribes are now considering issuing their own passports.

This controversy boiled over on June 1st as local Native Americans and Tribal members from Canada staged a protest in the border town of Night Hawk.  The protest was peaceful, but the Omak-Chronicle reported that it involved the removal of a border fence.  The Border Patrol did not try to intervene as the Tribal members crossed the border and back again.  I have to hand it to these protesters.  It took courage to take that step. I would have half expected the Feds to arrest some of them.  But I guess then it would have become a national story, rather than just a regional story.  I hope the Tribes pursue their rights in this respect.  Often it is the local governments or the States that are accused of violating treaty rights,  the Tribes are right to stand up to the Federal government too.  The Tribes in the U.S. sometimes seem to be the favorite underdog of the federal judiciary.  I can easily see the Ninth Circuit Court of Appeals approving the rights of Tribal members to set up their own border check point.  However, unlike 10 years ago, when the Colville Confederated Tribes had money set aside for litigation, the Tribes now are suffering a budget crisis.  This border issue is something that I will try to follow closely.

What do you think?  What will come of this issue?  Is it fair to ask Native Americans to use State ID cards when they enjoy rights to sovereignty?