JOHNSON, J.
At issue is whether an Indian tribal police officer has authority to stop and detain a non-Indian who allegedly violates state and tribal law while traveling on a public road within a reservation until that person can be turned over to state authorities for charging and prosecution. Petitioner David P. Schmuck was found guilty of driving while intoxicated on the Port Madison Reservation after being detained by a Suquamish tribal officer and turned over
I
The parties have stipulated to the facts. Clerk's Papers, at 132-41, 146-50. Suquamish Tribal Police Officer Bailey is commissioned by the Suquamish Indian Tribe (Tribe) to enforce tribal laws within the geographic confines of the Port Madison Reservation (Reservation). The Port Madison Reservation is located in Kitsap County, Washington.
On September 2, 1991, at approximately 7:30 p.m., Tribal Officer Bailey observed a blue Ford pickup truck traveling southbound on Brockton Avenue, a road running through the Reservation. The truck was obviously exceeding the posted 25 m.p.h. speed limit; the officer's radar reading indicated 36 m.p.h. Officer Bailey turned on his emergency lights and pursued the truck, which responded by speeding up. Officer Bailey turned on his siren and continued to follow the truck down multiple streets of the Reservation. After running a stop sign and continuing to accelerate, the truck finally came to a stop on the side of the road.
Officer Bailey approached the pickup truck, advised the driver of the reason for the stop, and requested his driver's license. The license identified the driver as petitioner, David P. Schmuck (Schmuck). Schmuck is not an enrolled member of any recognized Indian tribe, maintains no social ties with any tribe, and is not aware of any Indian ancestors.
Schmuck smelled of intoxicants. Officer Bailey asked him if he had been drinking, and Schmuck said, "I've had a few". Officer Bailey then asked him if he would be willing to take a few field sobriety tests. Schmuck declined. Because Schmuck was a non-Indian, Officer Bailey informed him that he would be detained until the Washington State Patrol could respond
After some discussion, Schmuck agreed to perform some field sobriety tests.
Trooper Clark contacted Schmuck, who was sitting in the truck, and detected a strong odor of intoxicants. Schmuck's eyes were bloodshot and watery. The trooper asked Schmuck to step from the vehicle; Schmuck complied very slowly and walked across the street to Clark's patrol car with a zigzag staggering motion.
Schmuck performed four field sobriety tests and failed them all. Based upon Officer Bailey's report of Schmuck's driving, Schmuck's performance on the field sobriety tests, and the smell of liquor, Trooper Clark advised Schmuck of his constitutional rights and placed him under arrest for DWI. Schmuck was transported to Kitsap County Jail, where he was again advised of his constitutional rights and implied consent warnings. Schmuck voluntarily waived his rights and agreed to answer questions on the alcohol arrest report form. He stated he had consumed a couple of beers, but did not believe his driving was affected by his alcohol use. A BAC Verifier DataMaster was administered at 9:11 p.m., resulting in readings of .17 and .17 grams of alcohol per 210 liters of breath. Clerk's Papers, at 148-50.
II
We address three issues presented for review. First, does an Indian tribal officer have inherent authority to stop a non-Indian driving a motor vehicle on a public road within the reservation to investigate a possible violation of tribal law? Second, does a tribal officer have inherent authority to detain a non-Indian motorist who has allegedly violated state and tribal law while on the reservation until he or she can be turned over to state authorities for charging and prosecution? Third, if an Indian tribe does have such inherent authority, has that authority been divested by the State's enactment of RCW 37.12.010 assuming criminal and civil jurisdiction over the operation of motor vehicles on Indian territory and reservations?
We begin by noting that the Suquamish Indian Tribe did not assert authority to prosecute Schmuck for driving while intoxicated, speeding, or running a stop sign. Indian tribal courts do not have inherent jurisdiction to try and punish non-Indians who commit crimes on their land. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 55 L.Ed.2d 209, 98 S.Ct. 1011 (1978). Instead, criminal offenses occurring on a reservation by non-Indians are subject to prosecution by state or federal governments, depending on the offense. Thus, the question presented is not whether the Suquamish Indian Tribe had authority to prosecute Schmuck, but rather, whether the Tribe had authority to stop and detain Schmuck until he could be turned over to state governmental officials who did have authority to prosecute.
United States v. Wheeler, 435 U.S. 313, 323, 55 L.Ed.2d 303, 98 S.Ct. 1079 (1978).
Thus, although the status of tribes is that of a limited sovereign, tribes still retain their power of internal self-governance. Duro, 495 U.S. at 686. This power includes "the power to prescribe and enforce internal criminal laws". Wheeler, 435 U.S. at 326. This power is part of a tribe's "primeval sovereignty", that is, "part of [the tribe's] own retained sovereignty". Wheeler, 435 U.S. at 328. This inherent authority is the source of an Indian tribe's power to create and administer an internal criminal justice system, Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir.1975), including "the inherent power to prescribe laws for their members and to punish infractions of those laws". Wheeler, 435 U.S. at 323.
An Indian tribe may also regulate the conduct of its members on the reservation. Montana v. United States, 450 U.S. 544, 564, 67 L.Ed.2d 493, 101 S.Ct. 1245 (1981). For example, the Ninth Circuit has acknowledged a tribe's authority to enact a civil traffic code, including speed limits, which it can enforce against on-reservation Indians. See Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 149 (9th Cir.1991), cert. denied, ___ U.S. ___, 118 L.Ed.2d 412, 112 S.Ct. 1704 (1992). Moreover, where a tribe has shown that its own highway safety laws and institutions are adequate for self-government, the Ninth Circuit held the State may not assert jurisdiction to enforce the State's civil traffic regulations, such as speed limits, against tribal members
In the exercise of this recognized jurisdiction, the Suquamish Indian Tribe enacted various ordinances regulating its members' conduct upon the Reservation's roads and highways. These ordinances are codified in the Suquamish Tribal Law and Order Code (S.T.C.). These ordinances include S.T.C. 10.1.19, which authorizes tribal officers to issue citations or arrest a tribal member for driving while intoxicated or driving in a reckless and negligent manner. S.T.C. 10.1.33 and 10.1.21 require tribal members to observe posted speed limits and obey stop signs. See also S.T.C. 10.1.9 (authority to issue notice of traffic infraction).
The Suquamish Indian Tribe employs police officers, including Officer Bailey, to enforce its tribal law and order code. "The propriety of [operating] ... tribal police forces has been recognized, presently and in the past, by the federal government". An Indian tribe "may employ police officers to aid in the enforcement of tribal law and in the exercise of tribal power". Ortiz-Barraza, 512 F.2d at 1179.
Fundamental to enforcing any traffic code is the authority by tribal officers to stop vehicles violating that code on roads within a reservation. In this case, Officer Bailey was exercising the Tribe's authority to enforce its traffic code when he observed the speeding pickup truck and pursued it through the streets of the Reservation. When he first saw the truck, he had no means of ascertaining whether the driver was an
We hold Suquamish Tribal Officer Bailey had the requisite authority to stop Schmuck to investigate a possible violation of the Suquamish traffic code and to determine if Schmuck was an Indian, subject to the code's jurisdiction.
III
Schmuck next contends that even if Tribal Officer Bailey had authority to stop him, Officer Bailey did not have inherent authority to detain him once Bailey determined that Schmuck was a non-Indian. Schmuck contends this detention violated the Washington State Constitution, article 1, section 7, in which "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law". (Italics ours.) We disagree. The Suquamish Indian Tribe expressly retained in its treaty the Tribe's inherent authority to detain offenders and turn them over to government officials for prosecuting. Moreover, this authority has been recognized by both the United States Supreme Court and the Ninth Circuit.
In 1855, the Tribe entered into the Treaty of Point Elliott (Treaty), Jan. 22, 1855, 12 Stat. 927, and agreed to settle on a 7,276-acre reservation near Port Madison, Washington. Oliphant, 435 U.S. at 192-93. The Port Madison, Reservation is a checkerboard consisting of tribal community land, allotted
Article 9 of the Treaty of Point Elliott expressly provides that the Tribe shall turn over to government authorities any
(Italics ours.) Treaty of Point Elliott, art. 9, 12 Stat. 927 (1855). This provision appears to reflect a common concern of the federal government during treaty negotiations in the mid-1800's to prevent non-Indians from hiding out on reservations in the mistaken belief that they would be free from prosecution for their crimes. See, e.g., H.R. Rep. No. 474, 23rd Cong., 1st Sess., at 98 (1834) (federal government to protect Native people from "unprincipled white men" entering Indian country, "where they fancy themselves free from punishment").
Oliphant involved crimes by two non-Indians on the Port Madison Reservation. Oliphant, 435 U.S. at 194. The United States Supreme Court held that the Suquamish Tribal Court did not have criminal jurisdiction to try and punish non-Indians absent affirmative delegation of that power by Congress. Oliphant, 435 U.S. at 207-08. The Court noted that when the Tribe entered into the Treaty of Point Elliott, the Tribe acknowledged its dependence upon the United States, and in all probability was recognizing "that the United States would arrest and try non-Indian intruders who came within their Reservation". Oliphant, 435 U.S. at 207. Relying on the language from article 9, the Court concluded the Tribe is obligated to deliver a non-Indian offender to government authorities for prosecution:
(Italics ours.) Oliphant, 435 U.S. at 208.
More recently, the Supreme Court again acknowledged a tribe's power to detain. Duro, 495 U.S. at 696-97. In Duro, the Supreme Court held that an Indian tribe may not assert criminal jurisdiction over a nonmember Indian for misdemeanor crimes.
(Citations omitted. Italics ours.) Duro, 495 U.S. at 696-97.
Thus, twice the Supreme Court has stated that a tribe's proper response to a crime committed by a non-Indian on the reservation is for the tribal police to detain the offender and deliver him or her to the proper authorities.
In addition to the Supreme Court, the Ninth Circuit has squarely addressed the issue of tribal authority to detain a non-Indian in a case directly on point. Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir.1975). In Ortiz, a tribal police officer observed a camper truck driving through an Indian reservation under suspicious circumstances indicating the driver might be an illegal alien. The officer followed the truck onto a state highway running through the reservation and stopped the driver. When the driver could not produce a driver's license or vehicle registration, the officer checked the truck for identification papers and discovered marijuana. The driver, a non-Indian, was detained by the tribal police and transferred to drug enforcement officials. Ortiz-Barraza, 512 F.2d at 1178-79.
The Ninth Circuit held that an Indian tribe has inherent authority to stop and detain a non-Indian allegedly violating state or federal law on public roads running through the reservation until the non-Indian can be turned over to the appropriate authorities. Ortiz-Barraza, 512 F.2d at 1180. According to the court, this power exists regardless of the fact that tribes have been divested of their power to exercise criminal jurisdiction:
(Citation omitted. Italics ours.) Ortiz-Barraza, 512 F.2d at 1179. Although this case was decided prior to Oliphant, the above language is consistent with both Oliphant and Duro.
The Ninth Circuit based its finding of authority, in part, on the Tribe's traditional inherent authority to exclude: "Also intrinsic in the sovereignty of an Indian tribe is the power to exclude trespassers from the reservation. A tribe needs no grant of authority from the federal government in order to exercise this power." (Citation omitted.) Ortiz-Barraza, 512 F.2d at 1179. See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 76 L.Ed.2d 611, 103 S.Ct. 2378 (1983). The Suquamish Indian Tribe also reserved its inherent right to exclude or to condition the presence of trespassers on the Port Madison Reservation in the Treaty of Point Elliott. In article 2, the Treaty sets aside land for the "exclusive use" of the tribes, "nor shall any white man be permitted to reside upon the same without permission of the said tribes...." Treaty of Point Elliott, art. 2, 12 Stat. 927 (1855).
Amicus Washington State Patrol argues the Suquamish Indian Tribe no longer has the power to exclude from its Reservation or the lesser included power to detain, in particular because Schmuck was traveling on a public road in the Reservation. The State Patrol argues that the language from Duro citing the power to exclude applies only to tribal land, not public roads. See Duro, 495 U.S. at 696-97.
In Ortiz-Barraza, the Ninth Circuit explicitly rejected amicus' argument that a tribe does not possess the power to detain when a non-Indian is traveling on a public road:
(Italics ours.) Ortiz-Barraza, 512 F.2d at 1180 (citing Gourneau v. Smith, 207 N.W.2d 256 (N.D. 1973)).
The State Patrol argues, however, that recognizing tribal authority to detain will necessarily result in additional tribal regulation of roads running through the Reservation, such as adopting different speed limits or building toll booths. While we acknowledge the concerns of the State Patrol, we think these fears are unwarranted. Holding the Tribe has expressly reserved a limited authority to stop and detain alleged offenders in no way confers an unlimited authority to regulate the right of the public to travel on the Reservation's roads.
We also note that the Tribe's authority to stop and detain is not necessarily based exclusively on the power to exclude non-Indians from tribal lands, but may also be derived from the Tribe's general authority as sovereign. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 71 L.Ed.2d 21, 102 S.Ct. 894 (1982) (tribe's power to tax non-Indians does not derive solely from power to exclude but from general
(Italics ours.) Montana v. United States, 450 U.S. 544, 565-66, 67 L.Ed.2d 493, 101 S.Ct. 1245 (1981). Allowing a known drunk driver to get back in his or her car, careen off down the road, and possibly kill or injure Indians or non-Indians would certainly be detrimental to the health or welfare of the tribe.
As a practical matter, the Suquamish Indian Tribe provides most of the law enforcement patrols on the Reservation. The Tribe employs five full-time officers to patrol the Reservation, whereas no state or federal law enforcement officers are assigned solely to that area. Brief of Amicus Suquamish Indian Tribe app. C. Kitsap County assigns approximately three deputies to north Kitsap County, but they must patrol an area substantially larger than the Reservation. Holding that the Tribe does not have a limited authority to stop and detain alleged offenders who present a clear threat to community members would severely hamper the Tribe's ability to protect the welfare of Indians, as well as non-Indians, on the Reservation.
In this case, if the Suquamish Indian Tribe did not have the authority to detain, Schmuck would have been free to drive away with an alcohol level exceeding the limit for legal intoxication. In the 20 minutes it took for Trooper Clark to respond, Schmuck could have easily caused extensive property damage or seriously injured other motorists. He also
State v. Ryder, 98 N.M. 453, 456, 649 P.2d 756, aff'd on other grounds, 98 N.M. 316, 648 P.2d 774 (1982). Nothing in Oliphant, Duro, or Ortiz-Barraza supports such a result. Quite the opposite. These cases support the position that tribes can detain any such offender and "promptly deliver him or her up" to the appropriate officials who are authorized to prosecute.
Finally, the State Patrol urges this court to base a tribal officer's authority to detain on a citizen's arrest theory. We decline its invitation. There would be a serious incongruity in allowing a limited sovereign such as the Suquamish Indian Tribe to exercise no more police authority than its tribal members could assert on their own. Such a result would seriously undercut a tribal officer's authority on the reservation and conflict with Congress' well-established policy of promoting tribal self-government. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62, 56 L.Ed.2d 106, 98 S.Ct. 1670 (1978). Potentially, DWI drivers would simply drive off or even refuse to stop if pulled over by a tribal officer with only a citizen's arrest capability.
We conclude an Indian tribal officer has inherent authority to stop and detain a non-Indian who has allegedly violated state and tribal law while on the reservation until he or she can be turned over to state authorities for charging and prosecution. We hold Tribal Officer Bailey, as a police officer employed by the Suquamish Indian Tribe, had authority to stop and detain Schmuck, who was allegedly driving while intoxicated on the Reservation, until he could be turned over to the Washington State Patrol for charging and prosecution.
IV
Schmuck contends that even if the Tribe did have inherent authority to stop and detain him, that authority was divested by the State's enactment of RCW 37.12.010. Schmuck argues that the statute gives the State exclusive jurisdiction over motor vehicle offenses committed on reservation land, citing Makah Indian Tribe v. State, 76 Wn.2d 485, 457 P.2d 590 (1969).
By enacting RCW 37.12.010, the State of Washington assumed criminal and civil jurisdiction over Indians and Indian territory and reservations. RCW 37.12.010. The statute specifically provides for the assumption of jurisdiction over Indians on reservations for the "operation of motor vehicles upon the public streets, alleys, roads and highways". RCW 37.12.010(8).
In Makah, this court held that vehicles being operated by Indians upon public roads running through a reservation are subject to jurisdictional control of the State pursuant to RCW 37.12.010. Makah, 76 Wn.2d at 493. Schmuck argues that Makah, read in conjunction with RCW 37.12.010, vests exclusive jurisdiction over motor vehicles in the State.
Makah is not dispositive. Nothing in Makah makes such a clear statement that RCW 37.12.010 grants exclusive jurisdiction to the State. The issue in Makah pertained only to questions of state jurisdiction over Indians on the Makah Reservation. It did not address issues of jurisdiction over non-Indians or exclusivity of jurisdiction.
Enacted in 1953, Public Law 280 mandated the transfer of civil and criminal jurisdiction over Indian country from the federal government to five state governments. Pub. L. No. 83-280, § 6, 67 Stat. 588 (1953); Venetie, 944 F.2d at 559-60. Other states, including Washington, were permitted to assume such jurisdiction voluntarily. Pub. L. No. 83-280, § 7, 67 Stat. 588 (1953). In 1963, Washington adopted RCW 37.12.010 pursuant to Public Law 280. Hoffman, 116 Wn.2d at 65-66. RCW 37.12.010 complies with Public Law 280 and is constitutional. Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 484, 493, 58 L.Ed.2d 740, 99 S.Ct. 740 (1979); Hoffman, 116 Wn.2d at 65-66.
Accordingly, we hold that RCW 37.12.010, enacted pursuant to Public Law 280, does not divest the Suquamish Indian Tribe of its inherent authority to stop and detain a non-Indian who has allegedly violated state and tribal law while traveling on a public road in the Reservation, until he or she can be turned over to state authorities for charging and prosecution.
UTTER, BRACHTENBACH, DURHAM, SMITH, and GUY, JJ., concur.
ANDERSEN, C.J., concurs in the result.
FootNotes
(Footnote and citations omitted. Italics ours.) Oliphant v. Schlie, 544 F.2d at 1014 (Kennedy, J., dissenting).
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