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AGO 1963 No. 68 - November 08, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


INDIANS ‑- STATE JURISDICTION ‑- EXCLUSIVE RATHER THAN CONCURRENT.

Jurisdiction assumed by the state pursuant to chapter 36, Laws of 1963, is exclusive and not concurrent with tribal jurisdiction.

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                                                                November 8, 1963

Honorable Sid Buckley
Prosecuting Attorney
Stevens County
Colville, Washington

                                                                                                                Cite as:  AGO 63-64 No. 68

Dear Sir:

            You have requested the opinion of this office on a question arising out of the enactment of chapter 36, Laws of 1963.  Your specific question is as follows:

            Is the jurisdiction assumed by the state pursuant to § 1, chapter 36, Laws of 1963, exclusive or concurrent with tribal jurisdiction?

            We answer your question as follows: In so far as the state has assumed jurisdiction pursuant to § 1, chapter 36, Laws of 1963, the jurisdiction of the state is exclusive.

                                                                     ANALYSIS

            In order to understand the ramifications of the legal question you have raised, it is necessary to examine the historical background and the legal decisions analyzing the powers of Indian tribes to govern themselves.  A concise statement of the Indians' right of self-government is found in "Federal Indian Law" published by the Department of Interior, as follows:

            "Indian self-government includes generally the power of an Indian tribe, to the extent that it has not been limited by Federal law, to adopt and operate under a form of government of the Indians' choosing, to define conditions of tribal membership, to regulate domestic relations of members, to prescribe rules of inheritance, to levy taxes, to regulate property within the jurisdiction of the tribe, to control the conduct of members by municipal legislation, and to administer justice.  Originally, those  [[Orig. Op. Page 2]] powers which were exercised by an Indian tribe were not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited dependent sovereignty which had not been extinguished by Federal action.  Each Indian tribe began its relationship with the Federal Government as a sovereign or quasi-sovereign government, recognized as such by treaty and in legislation.  These powers of sovereignty have been limited from time to time by special treaty provisions and laws designed to take from the Indian tribes control of matters which, in the judgment of Congress, should be exercised elsewhere.  The statutes of Congress, then, must be examined carefully in many instances to determine the limitations of tribal sovereignty rather than to determine its source or its positive content."  (pp. 395-396.)

            Several recent cases involving Indian tribes and their powers as interpreted by the United States Supreme Court are of interest and lend considerable background information.  In the recent case ofWilliams v. Lee, 358 U.S. 217, 3 L.Ed.2d 251, 79 S.Ct. 269 (1959), the supreme court was concerned with a case involving a white man who was operator of a general store on the Navajo Indian Reservation, operating under a license required by federal statute.  He brought an action in the federal court of Arizona against a Navajo Indian and his wife living on the reservation to collect for goods sold them on credit.  The Supreme Court of Arizona upheld the superior court's decision that since no act of Congress expressly forbids their doing so, Arizona courts are free to exercise jurisdiction over civil suits by non-Indians against Indians, although the action arises on an Indian reservation.  The United States Supreme Court reversed the decision of the Arizona Supreme Court, and in so doing, discussed at some length the basic problem of tribal jurisdiction as opposed to federal or state jurisdiction.

            The court discussed the early case of Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), written by Chief Justice Marshall, which held that the Cherokee nation was a community occupying its own territory in which the laws of Georgia had no force and wherein the citizens of Georgia had no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress.  The decision further noted that although the broad principles of that decision came to be accepted as law, the supreme court had over a period of years, modified those principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized.  The court pointed out that suits by Indians against outsiders in state courts have been sanctioned and state courts have  [[Orig. Op. Page 3]] been allowed to try non-Indians who committed crimes against each other on an Indian reservation.  The court then stated as follows:

            ". . . Congress has followed a policy calculated eventually to make all Indians full-fledged participants in American society.  This policy contemplates criminal and civil jurisdiction over Indians by any State ready to assume the burdens that go with it as soon as the educational and economic status of the Indians permits the change without disadvantage to them.  See H.R. Rep. No. 848, 83rd Cong., 1st Sess. 3, 6, 7 (1953).  Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. Georgia had denied.6/ "  (p. 254)

            [Statutes referred to in Footnote 6 are those found in 25 U.S.C. §§ 232, 233 (1952) granting broad civil and criminal jurisdiction to New York; and 18 U.S.C. § 1162, 28 U.S.C. § 1360, (Public Law 280) granting broad civil and criminal jurisdiction to California, Minnesota, Nebraska, Oregon and Wisconsin.]

            The court then noted that the treaty with the Navajos which was signed on June 1, 1868, by General William T. Sherman, and numerous chiefs and headmen of the Navajo nation implicitly embodied in its treaty terms, the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.  It pointed out that the federal government had assisted in strengthening the Navajo tribal government and its courts to the extent that its present courts of Indian offenses exercise broad civil and criminal jurisdiction which cover suits by outsiders against Indian defendants.  The court then stated as follows:

            ". . . No Federal Act has given state courts jurisdiction over such controversies.  In a general statute Congress did express its willingness to have any State assume jurisdiction over reservation Indians if the State Legislature or the people vote affirmatively to accept such responsibility.  To date, Arizona has not accepted jurisdiction, possibly because the people of the State anticipate that the burdens accompanying such power might be considerable."

            Implicit in this opinion is the assumption by the United States Supreme Court that the enactment of specific legislation by Congress authorizing the assumption of civil and criminal jurisdiction by a state has the effect of depriving the existing tribal organization of its authority, and granting the state exclusive jurisdiction.

             [[Orig. Op. Page 4]]

            In two of the last decisions written by Justice Felix Frankfurter prior to his retirement,Organized Village of Kake v. Egan, 369 U.S. 60, 7 L.Ed. 573, 82 S.Ct. 562 (1962), and a companion case, Metlakatla Indian Com., Annette Islands Res. v. Egan, 369 U.S. 45, 7 L.Ed. 562, 82 S.Ct. 552 (1962), the court was concerned with the right of the state of Alaska to control the use by Indian communities of fish traps in Alaska waters in violation of the Alaska Anti-Fish-Trap Conservation Law.  In the course of the opinion in the Kake case, Justice Frankfurter summarized the entire history of federal jurisdiction over Indians and Indian property since the early days.  Because § 4 of the Alaska Statehood Act provides that Indian "'property (including fishing rights)' shall not only be disclaimed by the State as a proprietary matter but also 'shall be and remain under the absolute jurisdiction and control of the United States'", the parties assumed that if the Village of Kake was found to possess "fishing rights" within the meaning of that section, the state could not apply its law.  Justice Frankfurter's statement concerning that assumption is as follows:

            "The assumption is erroneous.  Although the reference to fishing rights is unique, the retention of 'absolute' federal jurisdiction over Indian lands adopts the formula of nine prior statehood Acts.  Indian lands in Arizona remained 'under the absolute jurisdiction and control' of the United States.  36 Stat. 557, 569, yet inWilliams v. Lee, 358 U.S. 217, 220, 223, 79 S.Ct. 269, 270, 272, 3 L.Ed.2d 251, we declared that the test of whether a state law could be applied on Indian reservations there was whether the application of that law would interfere with reservation self-government.  The identical language appears in Montana's admission Act, 25 Stat. 676, 677, yet inDraper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419, the Court held that a non-Indian who was accused of murdering another non-Indian on a Montana reservation could be prosecuted only in the state courts.  The Montana statute applies also to North Dakota, South Dakota, and Washington.  Identical provisions are found in the Acts admitting New Mexico (36 Stat. 557, 558-559) and Utah (28 Stat. 107, 108), and in the Constitutions of Idaho (1890, Art. 21, § 19) and Wyoming (1890, Art. 21, § 26), which were ratified by Congress (26 Stat. 215 (Idaho); 26 Stat. 222 (Wyoming)).

            "Draper and Williams indicate that 'absolute' federal jurisdiction is not invariably exclusive jurisdiction. . . ." (p. 567)

             [[Orig. Op. Page 5]]

            Justice Frankfurter went on to point out the gradual changes and evolution of the relationship between the states and the Indians since the days of John Marshall.  In the early days, the Indians were isolated beyond the Mississippi and were allowed to govern themselves.  As the west was opened up to settlers, the isolation of the Indians ceased and the federal government began to consider the Indian tribes less a foreign nation and more as a part of our country and as a result, the power to make treaties with Indian tribes was abolished in 1871.  Various acts were passed in succeeding years, all looking toward their eventual assimilation into our society.  The supreme court no longer viewed reservations as distinct nations, but as a part of the surrounding state or territory and subject to its law except as forbidden by federal law.  In 1934 the policy of assimilation was reversed by Congress whereby among other things, tribes were permitted to become chartered federal corporations with powers to manage their own affairs and to organize and adopt constitutions for their own self-government.  Concurrently, the influence of state law increased with the enactment by Congress of laws authorizing the states to enforce sanitation and quarantine laws on the reservation, to make health and educational inspections, etc.  In the 1940's, several states were permitted to assert criminal jurisdiction and sometimes civil jurisdiction over certain Indian reservations by Congressional enactment, and in the 1950's, a new shift in policy toward termination of federal responsibility and the assimilation of reservation Indians resulted in the abolition of several reservations.  Justice Frankfurter pointed out that:

            ". . . Another recent statement of the governing principle was made in a decision reaffirming the authority of a State to punish crimes committed by non-Indians against non-Indians on reservations:  '[I]n the absence of a limiting treaty obligation or Congressional enactment, each state had a right to exercise jurisdiction over Indian reservations within its boundaries,' New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct. 307, 308, 90 L.Ed. 261.

            "These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation selfgovernment or impair a right granted or reserved by federal law. . . ." (pp. 570-571)

            It is interesting to note that even though Justice Frankfurter's opinion in the foregoing decision apparently recognized the right of the states to exercise jurisdiction over the Indians where it was not forbidden by treaty or federal law, the supreme court of the state of Washington in the case ofState ex rel. Adams v. Sup. Ct., 57 Wn.2d 181, 356 P.2d 985 (1960), reached a contrary conclusion.

             [[Orig. Op. Page 6]]

            The question you pose also involves a determination of Congressional intent in enacting Public Law 280 on August 15, 1953, which specifically gave criminal and civil jurisdiction over all Indians in Indian country to the states of California and Nebraska, and to the states of Minnesota, Oregon and Wisconsin, with the exception of the Red Lake Reservation; the Warm Springs Reservation; and the Menominee Reservation, respectively.  The specific language in 18 U.S.C. § 1162 (a) giving the foregoing states criminal jurisdiction is as follows:

            "(a) Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territoryto the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory:

            "(c) The provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section.  Added Aug. 15, 1953, c. 505, § 2, 67 Stat. 588, amended Aug. 24, 1954, c. 910, § 1, 68 Stat. 795; Aug. 8, 1958, Pub. L. 85-615, § 1, 72 Stat. 545."  (Emphasis supplied.)

            Public Law 280 also provided, with respect to criminal laws, that the Ten Major Crimes Act and the Assimilative Crimes Act and other federal statutes relating to certain offenses within the Indian country were inapplicable, thus making it clear that state jurisdiction was exclusive of and not concurrent with federal jurisdiction in those portions of Indian country governed by Public Law 280.

            In addition, 28 U.S.C. § 1360, giving certain states civil jurisdiction, provides as follows:

            "(a) Each of the States or Territories listed in the following tableshall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over other civil causes of action, and those civil laws of such State or Territory  [[Orig. Op. Page 7]] that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory:

            "(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.  Added Aug. 15, 1953, c. 505, § 4, 67 Stat. 589, amended Aug. 24, 1954, c. 910, § 2, 68 Stat. 795; Aug. 8, 1958, Pub. L. 85-615, § 2, 72 Stat. 545."  (Emphasis supplied.)

            Sections 6 and 7 of the act provided for the assumption of jurisdiction by other states as follows:

            "SEC. 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this act:  Provided, That the provisions of this act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.

            "SEC. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof."

            It may be argued, however, that §§ 6 and 7 of Public Law 280 allow other states to assume exclusive jurisdiction or concurrent jurisdiction as they so elect.  Although it is not necessary to resolve that question at this time, it appears from the language of § 6, that Congress contemplated the extension of exclusive jurisdiction by  [[Orig. Op. Page 8]] other states under the broad enabling provisions of the previous sections of the act, since it provides for the removal of "any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this act."  Likewise, § 7, authorizes a state to assume criminal or civil jurisdiction or both "at such time and in such manner" as the people by legislative enactment obligate themselves to do.  We note that the section in question does not authorize the state to determine the extent of jurisdiction, but merely the time and manner of assuming jurisdiction.

            The state of Washington, acting pursuant to Public Law 280, enacted chapter 240, Laws of 1957 (chapter 37.12 RCW).  It provided in pertinent part as follows:

            "The state of Washington hereby obligates and binds itself to assume, as hereinafter provided, criminal and civil jurisdiction over Indians and Indian territory, reservation, 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)."  (RCW 37.12.010)

            "Whenever the governor of this state shall receive from the tribal council or other governing body of any Indian tribe, community, band, or group in this state a resolution expressing its desire that its people and lands be subject to the criminal and civil jurisdiction of the state of Washington to the extent authorized by federal law, he shall issue within sixty days a proclamation to the effect that such jurisdiction shall apply to all Indians and all Indian territory, reservation, country, and lands of the Indian body involved in accordance with the provisions of this chapter: Provided, That with respect to the Colville, Spokane, or Yakima tribes or reservations, he shall not issue such proclamation unless the resolution of the tribal council has been ratified by a two-thirds majority of the adult enrolled members of the tribe voting in a referendum called for that purpose."  (RCW 37.12.020)

            The case ofState v. Paul, 53 Wn.2d 789, 337 P.2d 33 (1959), involved an attack on the constitutionality of chapter 37.12 RCW, supra, on the ground that the state could not assume jurisdiction over Indians except by an amendment to the state constitution.  That case involved one Janice Paul, who was a member of the Skagit Tribe and resided on the Tulalip Indian Reservation in Snohomish County,  [[Orig. Op. Page 9]] and who was charged with the crime of second degree assault against another Indian, which was alleged to have occurred on the Tulalip Indian Reservation.  The supreme court quoted §§ 6 and 7 of Public Law 280 as set out above, and held that since the Tulalip Indian Corporation had followed the procedure outlined in chapter 37.12 RCW, supra, the state of Washington had jurisdiction over the tribe.  The court quoted the case of Boeing Aircraft Co. v. R. F. C., 25 Wn.2d 652, 171 P.2d 838 (1946), wherein they had ruled that another part of Article XXVI of the state constitution which adopted the provisions of the Enabling Act and provided that without the consent of the United States and the people of the state, no taxes could be levied on land owned by the United States could be complied with by an act of the legislature effecting or accomplishing consent of the people of the state.  The court in thePaul case reaffirmed its ruling in theBoeing case as follows:

            ". . . It will be noted that the framers of our constitution, in enacting Art. XXVI,supra, adopted the identical words found in the enabling act.  Apparently, this was done to conform with the requirements imposed by Congress for admission of Washington state into the Union.  Congress did not require that this compact clause be irrevocable, absent a Washington state constitutional amendment.  Rather, Congress insisted on bilateral action by the people of the United States (speaking through Congress) and the people of the state of Washington (speaking through the legislature)."

            An appeal was taken to the United States Supreme Court, but it was dismissed inasmuch as the appeal was not perfected.  361 U.S. 898, 4 L.Ed.2d. 155, 80 S.Ct. 203 (1959).

            It is interesting to note that the supreme court has not been consistent in citing the section of Public Law 280 under which the state of Washington was authorized to enact legislation providing for the assumption of criminal and civil jurisdiction over Indians.  In thePaul case, supra, §§ 6 and 7 were both cited; in the case ofIn re Arquette v. Schneckloth, 56 Wn.2d 178, 351 P.2d 921 (1960), the court cited § 6; in the cases of State ex rel. Adams v. Sup. Ct., 57 Wn.2d 181, 356 P.2d 985 (1960), and In re Colwash, 57 Wn.2d 196, 356 P.2d 994 (1960), the court quoted § 7 of Public Law 280; in the most recent case involving Public Law 280,State v. Bertrand, 161 Wash. Dec. 333 [[61 Wn.2d 333]], 378 P.2d 427 (1963), the court cited § 6 as the pertinent section.

            The most recent case involving state jurisdiction over Indians isState v. Bertrand, 161 Wash. Dec. 333 [[61 Wn.2d 333]], 378 P.2d 427 (1963).  In that case, George Bertrand, a Quinault Indian, was charged with first  [[Orig. Op. Page 10]] degree assault on the Quinault Reservation.  He contended that the courts of this state were without jurisdiction to try him for the alleged assault on the ground that the petition presented to the governor asking that the Quinault tribe and reservation be subject to state jurisdiction, had not been authorized by the Tribal Council or other governing body of the tribe as required by RCW 37.12.020.  The superior court found that the petition was presented by the business committee and not by the Tribal Council or other governing body, and accordingly, that the governor's proclamation was void.  The supreme court reversed the decision of the trial court, and in the opinion quoted § 6 of Public Law 280 as the pertinent section authorizing the state to assume civil and criminal jurisdiction over Indians pursuant to chapter 37.12 RCW.  The supreme court specifically held that the courts of Washington did not have jurisdiction to resolve internal disputes of the Quinault Indian Tribe and to determine whether or not the so-called business committee did in fact, have the authority to execute the resolution to the governor requesting extension of criminal and civil jurisdiction over the people of the Quinault Indian Reservation.  The court reviewed the history of the Quinault Indian Tribe and the fact that a treaty had been made with the tribe by Isaac I. Stevens, Governor of Washington Territory and Superintendent of Indian Affairs on July 1, 1855, and ratified by the United States Senate March 8, 1859.  The court then stated as follows:

            "It is difficult, if not impossible to define the legal status of treaty Indian tribes in a few words.  It is sufficient for the purpose of this opinion to state:

            "'The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: (1) An Indian tribe possesses, in the first instance, all the powers of any sovereign state.  (2) Conquest renders the tribe subject to the legislative powers of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government.  (3) These powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.'  (Italics ours.) Cohen, Handbook of Federal Indian Law, p. 123.

             [[Orig. Op. Page 11]]

            "Were it not for Public Law 280, supra, and the implementation of Laws of 1957, chapter 240,supra, by certain tribes, jurisdiction of crimes committed by enrolled Indians on Indian reservations would be in the federal courts.

            "It appears to us that the 'internal dispute,' as we have defined it, involves the internal sovereignty and the power of local self-government of the Quinaielt tribe.  We find no authority, statute, or decision giving the courts of this state jurisdiction to resolve the question of who composes the 'governing body' of the Quinaielt Indian tribe.  The Quinaielt Indian tribe's control over its elected officials is peculiarly an internal problem and one over which the courts of this state have no jurisdiction."

            In 1963, the legislature enacted chapter 36, Laws of 1963, which amended chapter 37.12 RCW in several respects.  The most significant change is found in § 1, which reads as follows:

            "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 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, unless the provisions of section 5 of this amendatory act have been invoked, except for the following:

            "(1) Compulsory school attendance; "(2) Public assistance; "(3) Domestic relations; "(4) Mental illness; "(5) Juvenile delinquency; "(6) Adoption proceedings; "(7) Dependent children; and "(8) Operation of motor vehicles upon the public streets, alleys, roads and highways:  Provided further, That Indian tribes that petitioned for,  [[Orig. Op. Page 12]] were granted and became subject to state jurisdiction pursuant to this chapter on or before the effective date of this amendatory act shall remain subject to state civil and criminal jurisdiction as if this amendatory act had not been enacted."  (RCW 37.12.010)

            It appears clear that the state has specifically assumed jurisdiction in two areas in the foregoing statute.  (1) It has assumed all criminal and civil jurisdiction over Indians and Indian country with the exception of Indians 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; and, (2) It has also assumed criminal and civil jurisdiction over the eight specific areas which are enumerated in the act regardless of the status of the land as Indian or non-Indian.  In addition, no change has been made by the 1963 law affecting state jurisdiction over the nine tribes covered by a governor's proclamation issued pursuant to the provisions of chapter 37.12 RCW enacted in 1957.  Although several of the Indian tribes through their tribal attorneys attempted to convince the legislative council, the sponsors of the act in question, that the bill should be amended to allow concurrent jurisdiction on the part of the Indian tribes, the members of the council refused to so amend the bill, nor was any such amendment introduced in the legislature prior to its enactment into law.  However, Idaho enacted legislation concerning state jurisdiction over Indians in 1963, whereby the state assumed jurisdiction over the specific matters set forth in § 1, supra, with the exception of "(6) Adoption proceedings;", and in addition added the following section:

            "Additional state jurisdiction in criminal and civil causes of action may be extended to particular reservations or Indian country with the consent of the governing body of the tribe occupying the Indian country affected by the assumption of such additional jurisdiction.  This may be achieved by negotiation with the tribe or by unilateral action by the tribe.  In every case the extent of such additional jurisdiction shall be determined by a resolution of the tribal governing body and become effective upon the tribe's transmittal of the resolution to the attorney-general of the state of Idaho.  Such resolution may effectively accept jurisdiction as to any particular field of criminal or civil jurisdiction.  All state jurisdiction extended by virtue of this act shall be concurrent  [[Orig. Op. Page 13]](and not exclusive) with jurisdiction in the same matters existing in the tribes or the federal government."  (Emphasis supplied.)

            We wish to make it clear at this point that we are not ruling on the question of whether the Washington legislature was authorized under Public Law 280 to enact chapter 36, Laws of 1963, supra, authorizing the state to assume only partial civil and criminal jurisdiction over Indians.  We note, however, that two identical bills, one H.R. 2104 and the other S. 143 are presently before Congress to amend §§ 6 and 7 of Public Law 280, to authorize the assumption by a state of partial criminal or civil jurisdiction by an agreement with any tribe.

            To reiterate, the basic question with which you are concerned involves a determination of whether the jurisdiction assumed by the state by legislative enactment pursuant to the provisions of Public Law 280 is exclusive or whether the tribes still have so-called "concurrent" jurisdiction even in those areas where the state has assumed jurisdiction.  An examination of the provisions of Public Law 280, supra, as well as the congressional reports cited heretofore, does not indicate any intention on the part of Congress to restrict the power of the states to exercise complete and exclusive jurisdiction.  On the contrary, the language of the act, supra, is clear that Congress intended the states to assume complete criminal and civil jurisdiction.

            The Department of the Interior has consistently interpreted the provisions of Public Law 280 as conferring exclusive jurisdiction upon the state.  (See, Solicitor's Opinion M-36241, dated September 22, 1954, quoting a letter of June 4, 1954, from Assistant Secretary of Interior Lewis:

            "'. . . It is our view that the act, by providing that the State shall have jurisdiction over crimes and offenses committed by or against Indians in the Indian countryto the same extent that the State has jurisdiction over crimes and offenses committed elsewhere within the State, except as limited in Section 2 (b), made such jurisdiction of the State exclusive.  The extent of the State's jurisdiction is full and complete and permits of no such jurisdiction by any other body save the Federal Government and subordinate agencies of the State itself.  The act also explicitly states that the criminal laws shall have the same force and effect within Indian country as they have elsewhere within the State.  The effect of this provision  [[Orig. Op. Page 14]] clearly is to extend both the substantive and procedural laws of the State to crimes committed by Indians.  Thus, State law defines not only the criminal offenses against the State and the penalties therefor, but it also defines the courts in which and the manner in which persons accused of committing such offenses are to be tried.'  Letter, dated June 4, 1954, from Assistant Secretary of the Interior Lewis to Mr. E. Morgan Pryse, Area Director, Bureau of Indian Affairs, Minneapolis, Minnesota."

            Memorandum from the Solicitor to the Commissioner of Indian Affairs dated November 16, 1960.)

            The fact remains that the exact jurisdiction of Indian tribes is undefined at this time.  Historically, the extent and scope of jurisdiction varies from tribe to tribe and is limited by tradition, experience and competence.  In theory at least, in so far as the power is inherent, it is not enlarged or limited by any treaty with the United States, except to the extent that as a specific treaty deals directly with it.  However, the terminology which is used to describe this inherent power of Indian tribes is confusing and misleading.  As previously noted in this opinion, Chief Justice Marshall in the case ofWorcester v. Georgia, supra, used the term "inherent sovereignty" of Indian tribes.  However, as we have also pointed out, Justice Frankfurter in the Kake case, supra, noted that the concept of Indian tribes as sovereign nations first enumerated by Chief Justice Marshall, has changed over the years with changing conditions. The argument is made that each Indian tribe has such "inherent sovereignty" or "inherent authority" as is necessary to carry out its responsibilities‑-the protection and administration of its property and the discipline and protection of its members.  At the present time the Bureau of Indian Affairs of the Department of Interior refers to the power possessed by Indian tribes as "inherent authority" as distinguished from "inherent sovereignty."

            Nevertheless and regardless of the terminology used, it is a general rule that the plenary authority of Indian affairs rests in the federal government to the exclusion of state governments with two major exceptions: (1) Where Congress has expressly declared that certain power of Indian affairs shall be exercised by the state, and (2) where the matter involves non-Indian questions sufficient to ground state jurisdiction.  ("Federal Indian Law," p. 510.) As Justice Frankfurter pointed out in theKake case, supra:

             [[Orig. Op. Page 15]]

            "In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future.  67 Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360, 18 U.S.C.A. § 1162, 28 U.S.C.A. § 1360.  Alaska was added to the list of such States in 1958, 72 Stat. 545. . . . Thus Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall."  (p. 570)

            However, a legal determination of the exact nature and extent of "inherent sovereignty" or "inherent authority" presently possessed by an Indian tribe within the state of Washington in view of the 1963 legislation for purposes of internal self-government is a federal question which cannot be resolved by the attorney general of the state of Washington.  Any authoritative ruling in this area must be made by the Department of Interior or ultimately by the United States Supreme Court.

            It is the opinion of this office, however, that the exercise by an Indian tribe of any such authority cannot conflict with or interfere with the exercise of jurisdiction which the sovereign state has assumed pursuant to the provisions of Public Law 280.  Accordingly, it is the opinion of this office that to the extent that the state of Washington has assumed criminal and civil jurisdiction pursuant to § 1, chapter 36, Laws of 1963, that jurisdiction is exclusive.  Thus, the state has exclusive criminal and civil jurisdiction over (1) all Indians and Indian territory, except Indians on their tribal lands or allotted lands within the reservation and held in trust by the United States; (2) the eight areas specified in the 1963 law, regardless of the ownership of any land involved; and (3) the nine tribes and reservations already under state jurisdiction by virtue of a governor's proclamation under the provisions of chapter 37.12 RCW.1/

             We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Subsequent to the passage of the 1963 act, the Swinomish tribe requested the governor to extend state criminal jurisdiction only over that tribe and its reservation, and a governor's proclamation was duly issued.

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