AGO 1972 No. 9 - Apr 17 1972
INDIANS ‑- RETROCESSION ‑- POWER OF GOVERNOR IN RELATION TO INDIANS
The governor has no present legal authority to retrocede to an Indian tribe such state jurisdiction as has been assumed over such tribe either under RCW 37.12.010 or under RCW 37.12.020 (now repealed) or RCW 37.12.021; however, he may rescind an earlier proclamation assuming jurisdiction under these latter statutes on the basis of a finding of error in its original issuance.
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April 17, 1972
Honorable Perry B. Woodall
State Senator, 15th District
P.O. Box 507
Toppenish, Washington 98948
Cite as: AGO 1972 No. 9
This is written in response to your recent request for an opinion of this office on the following questions dealing with the jurisdiction of the state of Washington over Indians and Indian reservations:
"(1) When state jurisdiction has been validly extended over an Indian people and reservation pursuant to and in conformity with RCW 37.12.021 or RCW 37.12.020 (now repealed), can this jurisdiction be retroceded by action of the governor without any change in existing statute law?
"(2) If the answer to the above question is that there can be a retrocession of state jurisdiction by gubernatorial action under a certain circumstance or circumstances, then what are the circumstances when jurisdiction gained pursuant to RCW 37.12.021 cannot be retroceded by action of the governor?"
[[Orig. Op. Page 2]] We answer question (1) in the negative as qualified in our analysis and thereby render any consideration of question (2) unnecessary.
In 1953, the Federal Congress enacted Public Law 83-280 (67 Stat. 588, 18 U.S.C. 1162, 28 U.S.C. 1360) which conferred upon the states of California, Minnesota, Nebraska, Oregon and Wisconsin civil and criminal jurisdiction over all Indian tribes and reservations within those states with the exception of the Red Lake Reservation in Minnesota and the Warm Springs Reservation in Oregon. In addition, the Congress included in this act the following two sections which were applicable to states other than those specifically enumerated in the act:
"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."
The basis for the enumeration of the five states specifically designated in Public Law 83-280 was apparently the expressed [[Orig. Op. Page 3]] willingness of those states then to assume jurisdiction over Indian tribes which were located therein. The state of Washington was not one of those at that time; however, several years later, in 1957, this state responded to §§ 6 and 7, supra, by means of our legislature's enactment of chapter 240, Laws of 1957 (chapter 37.12 RCW). By this act, the legislature authorized the assumption of state criminal and civil jurisdiction over Indian tribes and reservations by gubernatorial proclamation in those instances where a petition signed by the tribal council or governing body of the tribe was presented to the governor of the state requesting the assumption of state jurisdiction. See, § 2, chapter 240, Laws of 1957, providing (in material part) that:
"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 act: . . ."
Then, in 1963, the legislature repealed this statute (which had been codified as RCW 37.12.020) and replaced it with a new approach to the subject of state jurisdiction over Indian tribes as encompassed in chapter 240, Laws of 1957. The two sections of this act1/ to be particularly noted are §§ 1 and 5 providing, respectively, as follows:
Section 1 (RCW 37.12.010):
"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 [[Orig. Op. Page 4]] shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the Untied States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 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: Providedfurther, That Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted."
Section 5 (RCW 37.12.021):
"Whenever the governor of this state shall receive from the majority of any tribe or the tribal council or other governing body, duly recognized by the Bureau of Indian Affairs, 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 or civil jurisdiction of the state of Washington to the full extent authorized by federal law, he shall issue within sixty days a proclamation to the effect that such jurisdiction [[Orig. Op. Page 5]] shall apply to all Indians and all Indian territory, reservations, country, and lands of the Indian body involved to the same extent that this state exercises civil and criminal jurisdiction or both elsewhere within the state: . . ."
Finally to be noted before addressing ourselves to your questions is another and more recent act of Congress ‑ Public Law 90-284 ‑ enacted in 1968. By this act the Congress repealed a portion of Public Law 82-280, supra, and replaced it with two new sections (§§ 401 and 402) under which any further extensions of state criminal or civil jurisdiction over Indians with respect to matters occurring within the areas of Indian country are now to be based solely upon a grant of consent by the Indians at a special referendum election conducted under the supervision of the Interior.2/ In addition, the Congress also expressly authorized the federal government's acceptance of retrocessions of previously assumed state jurisdiction ‑ by § 403 (a), reading as follows:
"The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of title 18 of the United States Code, section 1360 of title 28 of the United States Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section."
Your first question takes note of this last quoted provision and asks whether the governor of Washington currently has the authority to retrocede jurisdiction previously assumed [[Orig. Op. Page 6]] over tribal Indians in this state "without any change in existing statute law." In considering this question, let us begin by listing the three separate categories of Indian tribes which, by virtue of chapters 240 and 36, supra, now are in existence in this state ‑ from the standpoint of state jurisdiction:
(1) Those Indian tribes over which the state has assumed full civil and criminal jurisdiction by virtue of an application therefor made between 1957 and 1963 ‑ coupled with a gubernatorial proclamation under § 2, chapter 240, Laws of 1957 (RCW 37.12.020), supra;
(2) Those tribes over which the state has unilaterally assumed jurisdiction to the limited extent provided for in § 1, chapter 36, Laws of 1963 (RCW 37.12.010),supra,by act of the legislature alone; and
(3) Those tribes which took no action between 1957 and 1963, but over which jurisdiction in addition to that unilaterally assumed by the 1963 legislature has since been assumed by application and proclamation under § 5 of the 1963 act (RCW 37.12.021), supra.
Most clearly, your question is to be answered in the negative insofar as the partial jurisdiction which was assumed under § 1, chapter 36, Laws of 1963, is concerned. Accord, memorandum opinion to Mr. Richard Hemstad of Governor Evans' staff dated March 9, 1970, in which we previously addressed ourselves to this issue and said:
". . . The legislature by a duly enacted law has provided for the assumption of state jurisdiction over all Indian reservations in the areas specified. No authority, either expressed or implied, is vested in the governor to withdraw state jurisdiction thus acquired.
"Accordingly, if there is to be any retrocession of jurisdiction assumed under RCW 37.12.010, the legislature will be required to provide therefor through the enactment of enabling legislation."
Moreover, while we left the question open in this prior [[Orig. Op. Page 7]] opinion as to whether the governor's ability to grant retrocession is any different in the case of such additional jurisdiction as may have been assumed over a particular Indian tribe by application and gubernatorial proclamation under either RCW 37.12.020 (now repealed) or RCW 37.12.021, we do not believe that it is. In these instances as well, the essential authority for such action by the governor is presently lacking.
As in the case of all state officers and agencies, it is fundamental that the governor of this state may only exercise those powers necessarily or fairly implied in or incident to the powers expressly granted by the constitution or statutes, or those essential to the declared objects or purposes of a legislative enactment. Accord,Young v. State, 19 Wash. 634, 54 Pac. 36 (1898), a case specifically applying this rule to the governor. See, also, for general statements and applications of the rule, State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952); andState ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956). However, nowhere within any of the provisions of our constitution or statutes dealing with the governor's powers ‑ whether within the immediate area at hand or elsewhere ‑ can we find any authorization to grant a retrocession of jurisdiction to any of the Indian tribes over which some form of jurisdiction has previously been assumed ‑ irrespective of the manner of its assumption.
Under the provisions of chapters 240, Laws of 1957, and 36, Laws of 1963,supra, the only function to be performed by the governor is that of proclaiming the state'sassumption of jurisdiction over those Indian tribes found to have properly expressed their desire for such state jurisdiction as is permitted by the 1953 act of Congress ‑ Public Law 83-280. And even this function is discretionary only to the limited extent of determining whether ". . . the resolution received by him was from the 'tribal council or other governing body'" of the tribe purportedly applying for state jurisdiction. See,State v. Bertrand, 61 Wn.2d 333, 378 P.2d 427 (1963). If the governor is satisfied that the application is in order, he shall issue the proclamation described in both of these statutes ‑ without regard to whether he, personally, is in favor of this result.
Within this statutory framework there exists, of course, the possibility of recision of a previous gubernatorial [[Orig. Op. Page 8]] proclamation on the basis of some later discovery of error in its initial issuance; for example, a later determination by the governor that the original request was not in fact submitted by an authorized tribal representative. Accord,State v. Bertrand, supra; see, also, Quinault Tribe of Indians v. Gallagher, 368 F.2d 648 (1966), cert. den. 387 U.S. 907 (1967).3/ However, we do not understand your question to be directed to such an act as this. Instead, we read your request as raising the broader issue of whether the governor may, as a matter of executive discretion independent of any factors pertaining to the validity of an Indian tribe's original request, retrocede to that tribe such state jurisdiction as was earlier assumed over it under either RCW 37.12.020 or 37.12.021. We do not believe it permissible to read either of these two statutes as granting such authority.
It is basic that no statute is to be construed so as to lead to an incongruous or absurd result if it is possible to avoid such a construction. See,Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968), and cases cited therein. However, to read either RCW 37.12.020 or RCW 37.12.021 as authorizing later retrocessions unrelated to the validity of the original assumption of jurisdiction would produce [[Orig. Op. Page 9]] just such an incongruity. Upon receipt of the original request for an assumption of full state jurisdiction the governor would (as is clear) be bound to proclaim it if he found the request to be from an authroized source; however, under the suggested statutory construction, he could then immediately or at any time thereafter defy the mandatory "shall" of the subject statutes by issuing a second proclamation ‑ this time, a proclamation of retrocession.
The only other possible source of authority which has been suggested to us with regard to gubernatorial retrocession is that contained in Article III, § 2 of our state constitution which declares that "The supreme executive power of this state shall be vested in a governor . . ." However, it seems readily apparent that if this argument were sound it would just as logically follow that the governor's authority to proclaim an assumption of jurisdiction in the first place needed no statutory expression ‑ and yet here, as in other instances far too numerous to mention,4/ a legislative specification of the governor's authority has been given. Thus, we believe it more proper simply to view this constitutional provision as a limitation upon the ability of the legislature to vest this "supreme executive power" in some officerother than the governor, and not as any sort of all-encompassing grant of acarteblanc power in itself. Accord,State v. Womack, 4 Wash. 19, 29 Pac. 939 (1892).
Finally, we note the introduction by executive request during the recent 1971 legislative session of two identical bills which were specifically designed to grant to the governor that authority to retrocede jurisdiction which your opinion request now questions. See, House Bill No. 1001 and Senate Bill No. 685 (copies enclosed), neither of which was passed beyond its house of origin. While the mere failure of the legislature to have enacted either of these bills is not by itself critical in terms of the ultimate answer to your question, their introduction at the governor's request would seem to imply at least some degree of doubt on his part as to the extent of his authority with regard to retrocession and a need to clarify this matter.
[[Orig. Op. Page 10]]
The solution, of course, is clear. If the Washington legislature desires to authorize the governor to grant retrocessions of state jurisdiction over some or all of the Indian tribes in our state it is quite able now to do so ‑ in view of the present ability of the United States to accept such retrocessions under § 403 (a) of Public Law 90-284, supra. However, until and unless the legislature responds to this latest act of Congress relating to state jurisdiction over Indians ‑ by again granting a correlative power to our governor as it did in the first place with regard to assumptions of jurisdiction in response to Public Law 83-280 ‑ it will remain necessary for us to answer all three segments of your first question (dealing with each of the three above noted categories of tribal Indians) in the negative.
This negative response to your first question, of course, renders consideration of your second question moot.
We trust the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Chapter 36, Laws of 1963.
2/By virtue of this enactment it will be seen that although this state could (as a matter of federal law) have assumed full criminal and civil jurisdiction over our various Indian tribes and reservations by an affirmative act of the legislature alone ‑ i.e., without a necessity for tribal application or consent ‑ during the period between 1953 and 1968, it now no longer may do so.
3/These cases involved the Quinault Indian Reservation, over which state jurisdiction was originally acquired under chapter 240, Laws of 1957, pursuant to a proclamation issued by then Governor Albert D. Rosellini in 1958. Thereafter, it was asserted that the proper body within the Quinault tribe had failed to function on the original application. The Washington court inBertrand declined to involve itself in what it characterized as an internal dispute of the tribe and let the governor's proclamation stand. Later, however, this same governor issued another proclamation reverting the Quinaults from the category of full state jurisdiction to that of partial jurisdiction (to the extent provided for in § 1, chapter 36, Laws of 1963 alone) ‑ saying (interalia) ". . . I verily believe that it was not the will of the majority of the Quinaults to petition for State jurisdiction in 1958." Later, following the passage of § 403 (a) of Public Law 90-284, supra, this proclamation was confirmed by a second proclamation issued by this governor's successor, Governor Evans.
4/See, in general, chapter 43.06 RCW which codifies many of the statutes dealing with the powers of the governor.