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AGO 1951 No. 137 - September 27, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

INDIANS -- GENERAL JURISDICTION -- CIVIL-CRIMINAL COURTS ‑- JUVENILE COURT JURISDICTION OVER INDIAN CHILDREN ‑- INDIAN RESERVATIONS ‑- CRIME COMMITTED BY WHITE

Indian children, when off the reservation for a substantial period, are amenable to Washington Juvenile Court Jurisdiction.

                                                                   - - - - - - - - - - - - -

                                                              September 27, 1951

Honorable Philip G. Sheridan
Snohomish County Prosecuting Attorney
Central Building
Everett, Washington                                                                                                              Cite as:  AGO 51-53 No. 137

Dear Sir:

            You requested our opinion upon whether a

            Juvenile court has wardship jurisdiction over an Indian child found independent and delinquent circumstances off the Indian reservation.

            We conclude that it does.

                                                                     ANALYSIS

            A. FACTS

            Your inquiry refers to the following factual situation.  Indian parents, accompanied by their baby, were arrested in Snohomish County for drunkenness and allied charges.  The child was taken to the juvenile home and a dependency petition filed alleging alcoholism and an improper home.  The parents, who had been in previous similar difficulties, were found guilty and fined.  The child was released to the grandparents pending the juvenile court hearing.  The parents were released from jail upon payment of the fine.  The grandparents and parents shared the same rented home not on the reservation.

             [[Orig. Op. Page 2]]

            It is now contended that the juvenile court has no jurisdiction because the principals are Tulalip Indians and, at times at least, reside on the reservation.

            The grandparents are present recipients of state old age assistance and the parents in the past have also received state aid.  The documents submitted contain other facts which, if true, disclose a proper case for the juvenile court.  Because of your request for a guide for present and future cases, our opinion goes somewhat beyond the factual situation presented.

                        B. GENERAL STATUS OF INDIANS

            Indian tribes do not constitute "nations" as that term is used in international law, even though in a great number of treaties they are so designated.  Ex parte Webb, 225 U.S. 663 (1911); Montoya v. United States, 180 U.S. 261, 265 (1900); Jones v. Meehan, 175 U.S. 1 (1899); State v. Towessnute, 89 Wash. 478, 154 Pac. 805 (1916).

            Until 1871, Indian tribes were recognized by the United States as possessing certain attributes of nations at least to the extent that treaties were made with them.  Re Heff, 197 U.S. 488, 498, (1905); Blackfeather v. United States, 190 U.S. 368 (1902); Stevens v. Cherokee Nation, 174 U.S. 445 (1898);Choctaw Nation v. United States, 119 U.S. 1 (1886).  In that year, however, Congress by statute, Creek County v. Seber, 318 U.S. 705, 716 (1942), declared its intention thereafter to make the Indian tribes directly amenable to the authority of the laws of the United States by the exercise of legislative power instead of by treaty.  Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902); Stevens v. Cherokee Nation, supra.  This has foreshadowed further congressional efforts to integrate Indians into American society on a normal citizenship basis.  Cases cited,supra.

            A treaty, however, with an Indian tribe has the same force and effect as a treaty with a foreign nation.  The United States v. New York Indians, 173 U.S. 464, 470 (1898).  It becomes part of a law of the land, superseding customs and state laws contrary thereto.  Johnson v. Riddle, 240 U.S. 467, 479 (1915); Leighton v. U. S., 161 U.S. 291 (1895).  The status of Indians is still that of ward to the guardianship of the Federal Government.

            Citizenship of Indians is governed by 8 U.S.C.A. § 601.  See alsoCreek County v. Seber, 318 U.S. 705 (1942), supra, indicating that a grant of citizenship to Indians is not inconsistent with their status as wards.  See also 8 U.S.C.A. § 41, and Elk v. Wilkings, 112 U.S. 94 (1884).

             [[Orig. Op. Page 3]]

                        C. CRIMES COMMITTED ON THE RESERVATION

            For years the original policy of the United States was to give the Indians themselves jurisdiction of crimes committed by one another on the same reservation, and it was therefore held United States Courts had no jurisdiction of such crimes.  SeeDonnelly v. United States, 228 U.S. 243 (1912);No-fire v. United States, 164 U.S. 657 (1896); Lucas v. United States, 163 U.S. 612, 615 (1895); Ex parte Crow-Dog, 109 U.S. 556 (1883).

            This policy was changed in 1885, when Congress conferred jurisdiction on the Federal Courts of the more serious crimes.  See 18 U.S.C.A. § 1153 and 18 U.S.C.A. § 3242.  Congress had such power because of its exclusive jurisdiction over Indians.  SeeDonnelly v. United States, supra;United States v. Kagama, 118 U.S. 375 (1885).  The state has no jurisdiction.  State v. Howard, 33 Wash. 250, 74 Pac. 382 (1903); State v. Condon, 79 Wash. 97, 139 Pac. 871 (1914); State v. Williams, 13 Wash. 335, 43 Pac. 15 (1895).  The exclusive jurisdiction of the Federal Courts over Indian reservations within state boundaries extends not only to crimes committed by an Indian, but also to crimes committed on the reservation against an Indian by a white person.  Apapas v. United States, 233 U.S. 587 (1913); United States v. Pelican, 232 U.S. 442 (1913); Donnelly v. United States, supra; see also Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 Pac. 577 (1930).

            Federal jurisdiction is not as exclusive as it might seem, however.  The state in which the reservation is located has jurisdiction over crimes committed on reservations but neither by nor against Indians.  Draper v. United States, 164 U.S. 238 (1896); Donnelly v. United States, 228 U.S. 271, supra;  State v. Lind 133 Wash. 140, 144, 233 Pac. 327 (1925).  But cf. Chief Justice Taney inU. S. v. Rogers, 45 U.S. 572 (How. 1844):

            "The country in which the crime is charged to have been committed is part of the territory of the United Statesand not within the limits of any state."  (Emphasis supplied).

                        D. CRIMES OFF THE RESERVATION

            Crimes committed by Indians off the reservation are amenable to state laws even though the Indian involved belongs to a tribe which maintains the tribal organization and is a resident of the reservation.  State v. Campbell, 53 Minn. 354, 55 N.W. 553; 21 L.R.A. 164; State v. Youpee, 103 Mon. 86, 61 P. (2d) 332;State v. Tulee, 7 Wn. (2d) 124, 109 P. (2d) 280 (1941); State v. Wallahee, 143 Wash. 117, 255 Pac. 94 (1927).  This is but the normal rule applied to citizens of foreign nations.

             [[Orig. Op. Page 4]]

                        E. CIVIL MATTERS

            The exclusive jurisdiction of Congress over matters occurring upon the Indian reservation also applied to Indian civil matters, Lucas v. United States, 163 U.S. 613, 615 (1895).  27 Am.Jur. 572, Indians § 47.  It would thus appear that a state normally had extremely little civil or criminal jurisdiction over matters occurring upon Indian reservations.  Gho v. Julles, 1 W. Terr. 325 [[1 Wash. Terr. 325]], 327 (1871).  Worchester v. State of Georgia, 31 U.S. 515 (Pet. 1832), was a very thorough (83 page), and well cited opinion which held that the State of Georgia could not prohibit whites from residing on the Cherokee reservation as such was an unconstitutional state attempt to assert jurisdiction over a United States Indian reservation.  SeeContra, however,New York v. Dibble, 62 U.S. 366, 370 (How. 1858), a very short opinion citing no authorities and not referring to the Worchester case, holding that the State of New York had such power.

                        F. WASHINGTON'S JUVENILE COURT LAWS

            State criminal laws are an exercise of the state police power.  The juvenile court act, Rem. Rev. Stat. §§ 1987-1 to 1987-18, as amended in 1945 (P.P.C. ch. 359), is also an exercise of that power ‑ as for the health, welfare, safety, and morals of children.  See 32 Words and Phrases, Perm. Ed. 761 et seq. (1940).

            The general rule from all the cases would indicate that Indian, like military reservations, have the attribute of islands of federal sovereignty (see 27 Am.Jur. 555, 568, Indians §§ 24, 42), within which the power of the state is strictly limited, if not completely null and void.

            Wash. Const. Art. 26 specifically disclaims Indian reservations as state lands.  It further exempts Indians who reside on the reservation from taxation.  Art. 6, § 1, precludes untaxed Indians, i.e., residing on the reservation, from the state elective franchise and Art. 2, § 3, excludes them from the state census.

            The logical conclusion is therefore that (1) Indians, resident of United States Indian reservations, are not citizens of this state; (2) that such reservations are federal, not state lands; (3) that an Indian residing on a reservation would not be a "resident" of this state as that term is normally used; (4) crimes committed on the reservation, either by or against Indians, are exclusively within federal (which may permit tribal) jurisdiction; (5) crimes on the reservation committed by non-Indians against non-Indian, are exclusively within state jurisdiction; and (6) crimes committed off the reservation, whether by or against an Indian, are amenable in normal fashion to state jurisdiction.   [[Orig. Op. Page 5]] Indian children off the reservation are subject to the Washington State Juvenile Court Act on the same basis as their parents are subject to our criminal laws.  When jurisdiction validly attaches, as the facts here show, it cannot be defeated by an attempt to escape to another jurisdiction.

            In view of the state residence provisions conditioning senior citizens' assistance, Rem. Rev. Stat. § 998-33d (1949 Supp.), and aid to dependent children, Rem. Rev. Stat. § 992-104 (1941 Supp.), P.P.C. § 919-7, and the penalties for falsification of applications, it would very arguably appear that the Indians involved held themselves out as citizens and residents of this state, not of a reservation, subject only to tribal council and to federal control.  However, no opinion is herein expressed regarding the residence requirements conditioning the receipt by Indians of state welfare monies.

            We have found no cases directly pertaining to your inquiry.  Cases involving dependent and delinquent children concern whether, under the facts, the juvenile court should have acted as it did to protect the welfare of the child.  We call your attention, however, toState ex rel. Marthens v. Superior Court, 25 Wn. (2d) 125, 169 P. (2d) 626 (1946), and Motichka v. Rollands, 144 Wash. 565, 258 Pac. 333 (1927), and the language therein.  Those cases, however, involved the full faith and credit required to be given to court decisions of other states involving custody provisions of children then within its jurisdiction.

            We therefore conclude that the juvenile courts of this state have jurisdiction over Indian children under the circumstances and limitations above outlined.

Very truly yours,

SMITH TROY
Attorney General

JENNINGS P. FELIX
Assistant Attorney General

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