Civil, Criminal Authority Restored to Yakama Nation

Courtesy Brad Angerman/Yakama Nation/ Yakama Nation celebrated the return of civil and criminal jurisdiction on April 22 at event. Yakama Tribal Councilman, Raymond "Moss" Smartlowit, right, signs a guest book with Washington State officials.

It was a return of authority that should never have been taken in the first place, some say.

But the day was worth celebrating nonetheless.

The Yakama Nation hosted an event commemorating the return of certain civil and criminal jurisdiction from the state and federal government to the Nation, April 22.

They gathered at the Yakama Nation Cultural Heritage Center – local, state, and federal officials, and past and current leaders of the Yakama Nation in traditional regalia: Chairman JoDe Goudy, former chairmen Jerry Meninick and Harry Smiskin, all members of the Yakama Nation Tribal Council.

Representing the BIA was Darren A. Cruzan, deputy director, Office of Justice Services.

“In 1855, our past leaders were promised powers over our lands by the federal government,” Chairman Goudy said in an announcement of the return of jurisdiction. “These promises were broken time and time again. It is a significant day in the lives of the Yakama people as the right to govern our lands and keep our people safe is finally realized.”

He added, “So many have fought for the return of greater self-governance for the Yakama people. Today, we can finally celebrate this historic victory.”

Yakama is the second Native Nation in Washington state to ask the governor for a return of jurisdiction over certain civil and criminal matters, using a process established by a 2012 law authored by state Sen. John McCoy, D-Tulalip.

An assessment by the U.S. Interior Department’s Office of Justice Services found that the Yakama Nation has the capacity to handle the increased responsibilities associated with the return of civil and criminal jurisdiction.

The Yakama Nation now has authority over adoption proceedings, compulsory school attendance, dependent children, domestic relations, juvenile delinquency, public assistance, and operation of motor vehicles upon public roads, streets and highways. The state retains jurisdiction over sexually violent predators.

Yakama has jurisdiction over non-Natives only in certain cases, such as domestic violence, truancy and vehicle collisions.

“At the heart of sovereignty is the ability to govern on our own lands,” Yakama Nation Vice Chairman Delano Saluskin said in an announcement of the commemoration. “We’ve awaited this decision for years.”

In a 2012 interview about the retrocession law, Dawn Vyvyan (pronounced Vivian), an attorney for the Yakama Nation, said there are cultural and social benefits to retrocession. For example, if under state jurisdiction, a juvenile offender who happens to be Native American would be prosecuted in the state system and, if found guilty, would be sent to one of 21 state juvenile detention facilities. Post-retrocession, the juvenile offender would be prosecuted by the justice system in his or her Native Nation and, if found guilty, sent to a detention facility close to home – better for maintaining family, social and cultural relationships and their influence in his or her life.

Retrocession also clears up jurisdictional confusion. State jurisdiction over civil and criminal matters in Indian country are not uniform, and partial retrocession that has occurred has led to “a complicated and inconsistent jurisdiction scheme,” according to a summary by the law firm Hobbs, Straus, Dean & Walker. Full retrocession “could potentially help create greater uniformity in jurisdiction across the different reservations in Washington.”

The 2012 retrocession law reverses a policy from the Termination Era. Public Law 83-280, enacted in 1953, transferred certain federal civil and criminal jurisdiction over Indian country to six states on a mandatory basis and allowed other states to assume complete or partial jurisdiction in the same manner, without the consent of the Native Nations involved.

Washington, which was not one of the mandatory states, assumed some jurisdiction in 1957, with consent; and again in 1963, without consent. (In 1968, the Indian Civil Rights Act amended PL 280 to require consent before any more states could assume federal jurisdiction, and also allowed Native nations to request retrocession.)

Seven Native nations in Washington sought and received retrocession for criminal cases: Chehalis, Colville, Muckleshoot, Quileute, Skokomish, Swinomish, Tulalip. But until McCoy’s law, there was never a clear process for how to retrocede.

Under McCoy’s law, the governing body of a Native nation must submit to the governor a retrocession resolution and a plan for the exercise of jurisdiction. The law encourages Native nations to establish inter-local agreements with affected municipalities; many already have inter-local and mutual aid agreements for law enforcement and fire protection service.

Within 90 days of receipt, the governor must convene a government-to-government meeting with the governing body of the Native nation and consult with elected officials from counties, cities and towns in the area of the proposed retrocession. If the governor approves the request for retrocession, the proclamation is submitted to the federal government. Retrocession is effective after it is approved by the Secretary of the Interior, as required by federal law.

Several Native nations have assumed jurisdiction in other areas using other processes.

In 2012, the Port Gamble S’Klallam Tribe assumed governance of adoption, foster care and guardianship from the U.S. Department of Health and Human Services; that same year, the Suquamish Tribe legalized same-sex marriage.

A state law in Washington gives tribal police authority to enforce state law over non-Native suspects, if police meet the same training standards as state and local police. The Suquamish Police Department and the Kitsap County Sheriff’s Office are working out a memorandum of understanding, as required by the law, defining the rules for exercising that authority in Kitsap County. In 2010, the Swinomish Police Department met accreditation standards set forth by the Washington Association of Sheriffs and Police Chiefs, and has general police authority on and off the reservation.

In 2013, the federal Violence Against Women Act gave Native nations criminal jurisdiction on their lands over all perpetrators — Native and non-Native — of domestic violence.

And the Yakama Nation, which has outlawed recreational marijuana on its 1.2 million acre reservation, asserts that marijuana is outlawed on the 10.8 million acres of ancestral land it ceded but on which it retains treaty rights.

The Yakama Nation Office of the Chairman responded in writing to the following questions from ICTMN.

What did it take to get the federal and state governments to return civil and criminal jurisdiction to the Yakama Nation?

It took an intense education by the Yakama Nation to state, federal and other people that the Yakama Nation is competent to govern. Yakama Nation never abandoned its inherent jurisdiction. Between 1963, when Washington unilaterally asserted jurisdiction under PL-280, and 2016, when retrocession was implemented, the Yakama Nation waged a constant and consistent education campaign. During the entire time, Yakama Nation continued to assert its jurisdiction.

The campaign started in the courts and went all the way to the U.S. Supreme Court in 1979, where our attempt at education was lost in this legal forum. In 2012, Yakama Nation teamed with Tulalip Nation member Sen. John McCoy to educate the Washington State Legislature to create a process for retrocession. Yakama Nation filed a petition following that process, and submitted what was eventually over 2,000 pages educating the State of Washington about why the Yakama Nation is competent to assert its jurisdiction without interference from the State of Washington.

For 14 months, Yakama Nation continued to educate – the cities, counties, and others who commented on Yakama authority. After negotiations with two governors, finally, Gov. Jay Inslee issued a proclamation retroceding jurisdiction. Over the next 21 months, Yakama Nation educated and re-educate federal authorities, and more of the cities and counties. The Department of the Interior accepted the proclamation issued by Washington, and for the past six months we have continued to educate. We will continue to educate in order to maintain the public health and safety of all persons – just as any other competent government does.

What kind of investments did the Yakama Nation have to make in order to respond to the increase in emergency calls and the increased responsibilities associated with the return of civil and criminal jurisdiction?

As any government, the Yakama Nation continually reviews its programs for efficiency and responsiveness. Retrocession does not impose new responsibilities, but it does offer an opportunity to better serve ALL people within Yakama lands. To that end, the Yakama Nation has upgraded administrative support within the courts, and improved law enforcement coverage by hiring new officers to patrol our lands. Yakama Nation is also updating regulatory codes, and increasing professional service staff in a number of programs.

Does retrocession resolve jurisdictional issues between law enforcement in Yakama Nation, Toppenish, Union Gap and Wapato?

Law enforcement officers of Yakama Nation, Toppenish, Union Gap, and Wapato have been working together closely to ensure the public safety is maintained. Retrocession means that the state (and its subdivisions) no longer have authority for five subject areas, but the complexity of jurisdiction in Indian country remains. All governments affected by retrocession are continuing to educate themselves on the new character of jurisdiction in this area.

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