Posts Tagged ‘Indian Law’

The Court of Appeals in Spokane ruled that local police do not necessarily need a warrant sign by a Tribal judge to search Indian trust land. See decision. The case stems from a person I represented in Okanogan County. The defendant was suspected of burglarizing a railroad depot on the Colville Indian Reservation in Omak, Washington. The railroad Depot was on fee land, but the police then proceeded to search the residence of my client on trust land, also in Omak. The Omak Police Department obtained a warrant from a judge in Okanogan County rather than approaching a judge in the Colville Tribal Court. The defendant is an enrolled member of the Colville tribe. Whether the police could do this has always been a gray area of the law so I figured I would send it up to the appeals courts. Next we will be taking the issue to the State Supreme Court in Olympia. The decision by the Court of Appeals was authored by Judge Kevin Korsmo.

The court’s decision also rejected a challenge we made to the Okanogan County jury system that fails to assure a sufficient number of Native-Americans on jury pools.  We will be taking this issue to the State Supreme Court too.  This issue was something that I have been working on since 2005, and I wrote a blog post about the subject in 2009.  See post.

The September 23rd the Omak-Chronicle ran a story covering the first court hearing in U.S.A. v. Kevin I. Pakootas in Federal court in Spokane.   Kevin Pakootas is charged with Second Degree Murder for allegedly killing his wife in Inchelium, within the Colville Indian Reservation.  He is also charged with Attempted Murder of a second individual.  The Omak-Chronicle explained that the Federal court “… refused a furlough request by Pakootas to attend the funeral [of his wife]”.

I am not sure what the readers of this article made of this request.  I checked the records in the federal court house online, and a furlough request was in fact  made on 9-15-09.

I have noticed that furlough requests for funerals are often made and are often granted in Tribal Court, whereas such requests in State court are far less common.    I once represented an individual charged with attempted homicide in Tribal Court, and the defendant directed me to try to get a furlough for his uncle’s rosary.   The court granted the furlough on the condition that I personally drive the defendant to the funeral and back.  I picked my client up in Nespelem at the Tribal jail and drove him to the rosary in Inchelium and back in one evening.  My client was grateful.  My client was later acquitted of all charges.  When I tell this story to attorneys who do not practice in Tribal Court, they are often surprised.   In someways, Tribal Court is much tougher on conditions of release pending trial.  It is more common for defendants to be held without bail in Tribal Court.  In State Court, Article I, Section 20 of the Constitution prevents judges from holding clients without bail on all cases except capital offenses.

Despite the different traditions in Tribal Court versus Federal Court, I do kind of wonder about a request for a defendant to attend the funeral of an alleged victim.  I would imagine that would be denied pretty much universally.

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.