AGO 1957 No. 113 - Aug 20 1957
INDIANS ‑- BOARD OF PRISON TERMS & PAROLES ‑- POWER TO CAUSE ARREST ON RESERVATION FOR VIOLATION OF PAROLE OR PROBATION.
A state parole and probation officer has the power and authority to cause the arrest on an Indian reservation of both Indians and non-Indians for the violation of parole or probation for acts committed within the state's jurisdiction.
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August 20, 1957
Honorable James D. Skaggs
Board of Prison Terms and Paroles
201 Institutions Building
Olympia, Washington Cite as: AGO 57-58 No. 113
You have asked the opinion of this office on the following questions involving the power to arrest parole violators on an Indian reservation:
(1) If an Indian on parole or probation violated his parole or probation and fled to an Indian reservation, does a state parole and probation officer have the power to cause the Indian's arrest if he returned to the reservation?
(2) If an Indian on parole or probation violated his parole or probation while on an Indian reservation, does a state parole and probation officer have the authority to cause the Indian's arrest?
(3) If a non-Indian on parole or probation violated his parole or probation either while on or off an Indian reservation, does a state parole and probation officer have the authority to cause the non-Indian's arrest on the reservation?
We answer your questions in the affirmative.
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Since a parole is not a right but a privilege to be granted or withheld as sound official discretion may impel (State ex rel. Linden v. Bunge, 192 Wash. 245), the revocation of a parole is a matter which is left entirely to the discretion of the board of Prison Terms and Paroles (In re Pierce v. Smith, 31 Wn. (2d) 52). The power to return a parole violator may be exercised without a hearing (Dunbar v. Cranor, 202 F. (2d) 949).
In an opinion rendered to the prosecuting attorney of Yakima County on October 5, 1949 (1949 AGO 59c) [[Opinion No. 49-51-141 to Ronald R. Hull, Prosecuting Attorney, Yakima County on October 5, 1949]], we held that a parolee suspected of a 5, 1949 (1949 AGO 59c), we held that a parolee suspected of a parole violation parole violation could be arrested without a warrant. The same power is granted by statute on the violation of probation (RCW 9.95.220).
And, since a person is not entitled to release from confinement prior to the expiration of his maximum term, unless the board of prison terms and paroles deems him to have been rehabilitated(In re Pierce v. Smith, supra), it follows that the board has power to return a prisoner to confinement after parole at any time until expiration of his maximum sentence. Lindsey v. Wash., 301 U.S. 397, 81 L.Ed. 1182, 57 S.Ct. 797.
This brief analysis of the status of paroles and probations points out the fact that in the instances referred to the parolees and probationers are involved in the violation of a privilege extended to them in connection with the imposition of a judgment and sentence valid upon its face. In other words, we are not here concerned with the right of the state to exercise criminal jurisdiction within an Indian reservation, but with the right of the state to revoke a privilege granted in connection with a criminal proceeding and to rearrest the defendant in connection therewith. The question is simply whether or not the state has the right to the return of a defendant from an Indian reservation for the execution of due process of the state.
Because of the varied problems which can arise in an analysis of the authority of the state over Indians, we assume, in answering your questions, that the Indian is an enrolled member of a tribe, that the tribe maintains tribal organization on a reservation, and that the parolee or probationary ‑ Indian or non-Indian ‑ is within the "Indian country," defined in In re Andy, (1956), 149 Wash. Dec. 437 [[49 Wn.2d 449]], to include all lands regardless of ownership "when the land is within the exterior boundaries of an Indian reservation."
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We are not concerned with the exercise of criminal jurisdiction over acts committed on the Indian reservation, but with acts committed "off the reservation" which have made the parties involved subject to state jurisdiction. The Indian and the non-Indian have subjected themselves to criminal prosecution in a state court and are the recipients of parole or probationary privileges in connection therewith. The rule is well stated in 27 Am.Jur., Indians, § 52:
"Crimes Committed off Reservation by or against Indians. Indians, though belonging to a tribe which maintains the tribal organization, occupying a reservation within a state, are amenable to state laws for murder or other offenses against such laws, committed by them off the reservation and within the limits of the state, even though the crime is committed against an Indian of the same tribe, the Act of Congress of 1885 having deprived the tribal courts of jurisdiction in such cases. Obviously, it follows that crimes committed outside a reservation by white persons against Indians and crimes committed by or against an Indian who has abandoned his tribal relations are also punishable under the laws of the state where such crimes are committed."
Also, see Cohen's Handbook of Federal Indian Law, 119, § 3, to the same effect.
Among our cases applying this rule are the following: State v. Williams, (1895), 13 Wash. 335, andState ex rel. Best v. Superior Court, (1919), 107 Wash. 238, for offenses committed by tribal Indians off reservation; State v. Howard, (1903), 33 Wash. 250, for offense committed by nontribal Indians within Indian reservation; and State v. Smokalem, (1905), 37 Wash. 91, for offense committed by tribal Indians within reservation but where tribal relations had long been severed.
On the other hand, our courts have recognized that they have no jurisdiction over tribal Indians for offenses committed within reservations where tribal relations exist. SeeState v. Condon, (1914), 79 Wash. 97, involving a larceny committed on the Colville Indian reservation, and In re Andy, supra, involving a burglary on the Yakima Indian reservation.
Although the leading case ofU.S. v. Kagama, (1886), 118 U.S. 375, 30 L.Ed. 228, 6 S.Ct. 1109. involves the question of federal jurisdiction to try an Indian for a murder committed on an Indian reservation pursuant to the provisions of the Act of 1885, it contains announcements of principle pertinent to our inquiry. After stating that
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". . . after an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure‑-to govern them by Acts of Congress. . . ."
then the court went on to say that the Act of 1885
". . .does not interfere with the process of the state courts within the Reservation, nor with the operation of state laws upon white people found there. Its effect is confined to the acts of an Indian of some Tribe, of a criminal character, committed within the limits of the Reservation." (Emphasis supplied.)
And in Cohen's Handbook of Federal Indian Law, 365, § 6:
". . . For purposes of criminal jurisdiction, where Indians are not involved, an Indian reservation is generally considered to be a portion of the state within which it is located. . . ."
Consequently, since the state courts have jurisdiction over an Indian for crimes committed off the reservation and a white man for any crime not involving an Indian on an Indian reservation, it follows that a state parole and probation officer has the power and authority to cause the arrest and return in all three cases.
Very truly yours,
JOHN J. O'CONNELL
Assistant Attorney General