Opinion Information Sheet

			

State v. Jim (Lester Ray)

                                     No. 84716-9

       WIGGINS, J. (dissenting)  --  The majority and the Court of Appeals 

hold that the State does not have criminal jurisdiction over Indians at the 

Maryhill Treaty Fishing Access Site (Maryhill).  The majority ignores the 

historical background of Maryhill and the other in-lieu fishing access sites, 

which demonstrates persuasively that Maryhill is not within an "established 

Indian reservation."  RCW 37.12.010.             The majority also relies on our 

decision in State v. Sohappy, 110 Wn.2d 907, 757 P.2d 509 (1988)

(Sohappy II), to hold that Maryhill is exempt from State criminal jurisdiction 

because it is a de facto reservation.  But Sohappy II states that its holding 

is limited to the site at issue there, Cooks Landing.  Moreover, we reached 

our decision in Sohappy II under the misimpression that federal jurisdiction 

over Cooks Landing preempted state jurisdiction.                    Id.    I therefore 

respectfully dissent.

       At the federal government's invitation, Washington assumed criminal 

jurisdiction in Indian country in 1963:  

       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 the consent of the United States given by the 
       act of August 15, 1953 (Public Law 280, 83rd Congress, 1st 
       Session), but such assumption of jurisdiction shall not apply to  

No. 84716-9

       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 . . . .[1]

RCW 37.12.010 (emphasis added).  

       Our fundamental purpose in construing statutes is to ascertain and 

carry out the intent of the legislature.  Lake v. Woodcreek Homeowners 

Ass'n, 169 Wn.2d 516, 526, 229 P.3d 791 (2010).  We determine the intent 

of the legislature primarily from the statutory language.  Lacey Nursing Ctr., 

Inc. v. Dep't of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995).  If the 

language of the statute is plain on its face, we give effect to that plain 

meaning.  TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wn.2d 273, 

281, 242 P.3d 810 (2010).  Statutory language is ambiguous only if it can 

reasonably be interpreted in more than one way.  W. Telepage, Inc. v. City 

of Tacoma Dep't of Fin., 140 Wn.2d 599, 608, 998 P.2d 884 (2000).  To 

discern a plain meaning, we employ traditional rules of grammar.  State v. 

Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010).  Finally, we generally 

construe exceptions to statutory provisions narrowly in order to give effect 

to the legislative intent that underlies the general provisions.  R.D. Merrill 

Co. v. Pollution Control Hearings Bd., 137 Wn.2d 118, 140, 969 P.2d 458 

(1999).

1 The rest of RCW 37.12.010 lists exceptions to the limitation on Washington's 
assumption of jurisdiction that are not relevant here. 

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       Here, RCW       37.12.010 provides a geographical exception to the 

State's general assumption of both criminal and civil jurisdiction.  That 

exception applies

       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 . . . .

RCW 37.12.010.  To fall within the exception, an act must occur

   ?   on tribal lands or allotted lands;

   ?   within an established Indian reservation;

   ?   and  on land held in trust by the United States or subject to a 

       restriction against alienation imposed by the United States.

As noted by the majority, the parties all read the requirement "within an 

established Indian reservation" to apply to both tribal lands and allotted 

lands.  Majority at 7 n.3.  The majority suggests that it would be possible to 

construe the statute so that "within an established Indian reservation" 

modifies only allotted lands, not tribal lands.  Id.  But reading RCW 

37.12.010 as a whole demonstrates that tribal lands must be within an 

established reservation.  The State assumed jurisdiction over "Indians and 

Indian territory, reservations, country, and lands . . . ."  Id.      If the exception 

to this jurisdiction included all "tribal lands," the statute would be left in an

interpretive morass in which courts attempted to distinguish between Indian 

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No. 84716-9

territory/country and tribal lands.

       The critical issue then becomes whether Maryhill is "within an 

established Indian reservation."  The history leading to the creation of the in-

lieu fishing access sites          demonstrates that they are not "Indian 

reservations."  We look to the history of a statute when interpreting the 

legislative intent.  State v. Harvill, 169 Wn.2d 254, 263, 234 P.3d 1166 

(2010).  The history of RCW 37.12.010 reaches back to the treaty with the 
Yakama2 Nation.

       The Maryhill site was one of the in-lieu sites established to replace 

access points to accustomed Indian fishing places guaranteed by treaty but 

destroyed by the dams built on the Columbia River.  Majority at 3.  The 

treaty with the Yakama Nation created a "reservation" for the Yakama (and 

several other tribes) defined by a metes and bounds description.  Treaty 

between the United States and the Yakama Nation of Indians art. II, June 9, 

1855, 12 Stat. 951, 952 (Yakama  treaty).             The  Yakama  treaty explicitly 

refers to this land as a "reservation."  Id.              The   Yakama     treaty also 

guarantees the right to fish, both within the boundaries of the reservation 

and in accustomed fishing areas outside the reservation:

              The exclusive right of taking fish in all the streams, 
       where running through or bordering said reservation, is further 
       secured to said confederated tribes and bands of Indians, as 

2 The spelling of the name was changed from "Yakima" to "Yakama" in 1994 to 
reflect the native pronunciation."  United States v. Confederated Tribes of 
Colville Indian Reservation, 606 F.3d 698, 701 n.2 (9th Cir. 2010).

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       also the right of taking fish at all usual and accustomed places, 
       in common with citizens of the Territory . . . .

Id. art. III, at  953.  Without question, the Yakama reservation is an 

"established Indian reservation."  More to the point, the Yakama  treaty 

distinguishes between fishing within the reservation and fishing "at all usual 

and accustomed places," which are clearly not within the reservation.  Id. 

art. III, at 954.   The Yakama treaty also reserves a specific reservation 

expressly for fishing at a specific location:

              [T]here is also reserved and set apart from the lands 
       ceded by this treaty, for the use and benefit of the aforesaid 
       confederated tribes and bands, a tract of land not exceeding in 
       quantity one township of six miles square, situated at the forks 
       of the Pisquouse or Wenatshapam River, and known as the 
       "Wenatshapam  fishery," which said reservation shall be 
       surveyed and marked out whenever the President may direct, 
       and be subject to the same provisions and restrictions as other 
       Indian reservations.

Id. art. X, at  954.  "The center of the Wenatshapam Fishery was the 

confluence of Icicle Creek and the Wenatchee River in north central 

Washington State near the modern-day town of Leavenworth."  United 

States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698, 

701 (9th Cir. 2010).         The Wenatshapam Indians were parties to the 

Yakama treaty and have also been known as the "Wenatchi" or 

"Wenatchee."  Id. n.1.

       In short, the Yakama treaty establishes a "reservation," guarantees 

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No. 84716-9

fishing rights on the reservation, guarantees fishing rights at accustomed 

sites off-reservation, and establishes a separate reservation at a specific 

fishing site.  This tells us that the accustomed fishing sites not included in 

the metes and bounds description within the Yakama treaty are not part of 

the established Yakama reservation or the Wenatshapam reservation.

       In 1988, Congress authorized creation of in-lieu fishing sites for use 

by the Indians.  Pub. L. No. 100-581, § 401, 102 Stat. 2938 (1988).  

Congress directed that "[a]ll federal lands" within the areas described on 

maps on file in specific offices be administered "to provide access to usual 

and accustomed fishing areas and ancillary fishing facilities for members of 

the Nez Perce Tribe, the Confederated Tribes of Umatilla Indian 

Reservation, the Confederated Tribes of the Warm Springs Reservation of 

Oregon, and the Confederated Tribes and Bands of the Yakima Indian 

Nation."  Id. § 401(a).  In addition, Congress authorized the acquisition of 

six additional sites "for the purpose of providing access and ancillary 

fishing facilities" for the Nez Perce and the three confederated tribes.  Id. § 

401(b)(1).

       Congress referred to these places as "lands" and "sites," but never 

as "reservations."  This history of these sites contradicts any conclusion 

that any in-lieu site should be considered to be an "established Indian 

reservation."  Surely Congress must intend to "establish" an Indian 

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No. 84716-9

reservation in order to have an "established Indian reservation."  But there 

is not the slightest indication that Congress thought it was establishing a 

reservation by creating the in-lieu sites.

       The majority errs by ignoring the qualifier "established."  This leads 

the majority to find a reservation simply because Congress authorized the 

Secretary of the Army to purchase six in-lieu sites and improve them for 

access to fishing.  Creation of an Indian reservation must be more 

purposeful than this.  The majority again errs when it resorts to generalized 

dictionary definitions of "reservation,"           ignoring the requirement of 

establishment as a reservation.

       The majority relies primarily on a federal interpretation of federal 

criminal jurisdiction in United States v. Sohappy, 770 F.2d 816 (9th Cir.

1985) (Sohappy I), cert. denied, 477 U.S. 906 (1986).  Majority at 10-12  

The site at issue in Sohappy I, Cooks Landing, was acquired by the federal 

government in 1945 to replace Indian fishing grounds that were submerged 

or destroyed in the process of building the Bonneville Dam.  Sohappy I,

770 F.2d at 823.  Maryhill was established as a treaty fishing access site

under a similar statute in 1988.  See § 401, 102 Stat. at 2944.  Cooks 

Landing was acquired for the "use and benefit" of certain Indian tribes, 

including the Yakama.  Sohappy  I, 770 F.2d at 823 (citing 59 Stat. 22 

(1945)).  Maryhill was established as part of an effort to satisfy the same 

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No. 84716-9

federal commitment that gave rise to Cooks Landing.  See S. Rep. No. 100-

577, at 22 (1988), reprinted in 1988 U.S.C.C.A.N. 3908, 3912.

       Sohappy  I considered whether the Cooks Landing in-lieu fishing 

access site was within the definition of Indian country for purposes of 

chapter 53 of 18 U.S.C.: "the term 'Indian country', as used in this chapter, 

means (a) all land within the limits of any Indian reservation under the 

jurisdiction of the United States Government . . . ."  18 U.S.C. § 1151.  

Acknowledging that the term "Indian reservation" was not defined by 

statute, Sohappy I relied on a prior United States Supreme Court case: 

"[T]he Supreme Court in United States v. John, 437 U.S. 634, 649, 98 S.Ct. 

2541, 2549, 57 L.Ed.2d 489 (1978), suggested that land 'declared by 

Congress to be held in trust by the Federal Government for the benefit of 

the . . . Indians . . . [is a] "reservation," at least for the purposes of federal 

criminal jurisdiction [under 18 U.S.C. § 1153].'"  Sohappy I, 770 F.2d at 822

(alterations in original).

       We are not concerned here, as was Sohappy  I, with determining 

federal criminal jurisdiction over Indian country.  Rather, we are concerned 

with our own Washington statute written in light of treaties reached in 

Washington Territory in 1855 that clearly distinguish between established 

reservations and fishing rights off-reservation.

       The majority's reliance on Sohappy  I,  770 F.2d 816, which 

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No. 84716-9

necessarily relies on John, 437 U.S. 634, ignores the differences between 

this case and John. The Indian lands in John had actually been declared an 

Indian reservation, albeit after their initial purchase.  Id. at 649.  Maryhill 

has never been declared an Indian reservation.  And unlike the Choctaw 
land in John, Maryhill was set aside for the narrow purpose3 of providing 

access to treaty fishing places.

       The majority's adoption of the reasoning of the Ninth Circuit Court of 

Appeals in Sohappy I leads the majority to rely as well on our prior decision 

in Sohappy II, 110 Wn.2d 907.4         Majority at 12.  As the majority notes, we 

said in Sohappy II, "Our holding is narrowly limited to the in-lieu site here 

involved."  110 Wn.2d at 909.  We limited our holding because we relied 

entirely on the decision of the Ninth Circuit in Sohappy I and because the 

State's briefing was "of no use to this court."  Id.

       A more important reason not to rely in Sohappy  II is that we 

3 That narrow purpose is expressed in the federal regulations governing the site.  
See 25 C.F.R. § 247.7 (structures built on the sites limited); 25 C.F.R. § 247.9(a) 
(residential use prohibited); 25 C.F.R. § 247.19 (use of sites limited to fishing 
activities; other commercial uses prohibited).  These limitations are incompatible 
with the general uses for which Indian reservations are created.  Maryhill is 
different than other usual and accustomed fishing sites, in that Maryhill is set 
aside for the exclusive use of Indians rather than open for shared and equitable 
use.  Majority at 15.  But it is also fundamentally different from Indian 
reservations, in that its use is limited to treaty fishing and related activities.

4 Although the defendants in both cases share the surname Sohappy, the 
individuals are not the same.  The named defendant in the federal case was 
David Sohappy Sr., while the defendant in the state case was Steve Gary 
Sohappy.  Compare 770 F.2d at 816, with 110 Wn.2d at 907.

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No. 84716-9

assumed incorrectly that federal jurisdiction over Cooks Landing would 

preempt state jurisdiction:

              The in-lieu site obviously is not within the original 
       boundaries of the reservation itself described in the 1855 
       treaty; however, it is a part of a reservation for purposes of 
       application of our state jurisdiction statute. The Ninth Circuit 
       has held that the Cooks Landing site is within an Indian 
       reservation. This vests exclusive jurisdiction in the federal and 
       tribal governments as stated by the United States Supreme 
       Court in Washington v. Confederated Bands &                    Tribes of 
       Yakima Indian Nation, supra. It necessarily follows that RCW 
       37.12.010, by its terms, excludes state jurisdiction over this 
       site.

Id. at 911.  We held that the federal government had exclusive jurisdiction 

based on Arquette v. Schneckloth, 56 Wn.2d 178, 182 -- 83, 351 P.2d 921 

(1960).  We failed to note that Arquette was decided before the legislature 

assumed jurisdiction over Indian country in RCW 37.12.010.               At the time of 

Arquette, Washington would assume jurisdiction over an Indian reservation 

only if the tribe voluntarily ceded jurisdiction to the State, which had not 

happened in that case.  See State v. Squally, 132 Wn.2d 333, 937 P.2d 

1069 (1997) (discussing historical background).

       Thus, this court held in Sohappy  II that Cooks Landing was a 

reservation for purposes of state law because Sohappy I preempted the 

application of state law.  With the passage of RCW 37.12.010, the analysis 

of Sohappy II is no longer valid.

       Common sense also tells us that the Maryhill fishing access site is 

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No. 84716-9

not a reservation.  It makes sense for the State to refrain from enforcing 

state law on an established reservation because the tribe can maintain law 

and order through a regular police force.  But there is no regular Indian 

police force at an isolated site like Maryhill.  Law enforcement officers also 

need clear boundaries within which they can exercise the power of the 

State.  Established reservations provide such clear boundaries; a potpourri 

of in-lieu fishing access sites does not.

       The majority seeks to bolster its conclusion by mentioning that the 

Bureau of Indian Affairs "expressed its agreement that 'the States do not 

have regulatory jurisdiction or authority over the in-lieu fishing sites.'"  

Majority at 15 (citing Use of Columbia River Treaty Fishing Access Sites, 

62 Fed. Reg. 50,886, 50,867 (Sept. 29, 1997)).  We do not defer to the 

Bureau of Indian Affairs in interpreting Washington statutes, particularly a 

bureau declaration issued four decades after Congress authorized 

Washington to assume jurisdiction over Indian country and three decades 

after Washington assumed that jurisdiction.  

       When Washington assumed criminal jurisdiction over Indian territory, 

it limited this jurisdiction to Indian reservations.  Because I believe that we 

must perform our own analysis of Maryhill's reservation status, and 

because I do not believe that Maryhill is an Indian reservation, I respectfully 

dissent.

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       I dissent.

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

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