You dont have to watch Disneys version of a glorified Pocahontas to know the long history of turbulence between Native Americans and the American government. But steps to give back tribal leaders control of their own communities and their laws are advancing in our state Legislature.
Statutory measures intended to set up a process for tribes to submit a request to the governor to retrocede from state jurisdiction to federal jurisdiction in civil and criminal matters has passed both the House and Senate. The House bill awaits a Rules vote and the Senate bill passed out of a House committee Monday (Feb. 20) with seven yeas and four nays.
If passed, Senate bill 6147 and companion House bill 2233 would be open to federally recognized tribes, members of which wish to be under federal law. The state, however, would retain control over sexually violent predators.
Upon delivering a detailed plan and request to the governor, the governor could then approve or deny the request within a year. If approved, the request would be sent to the U.S. Department of Interior, which could approve, negotiate or deny retrocession.
It is the tribes exercising their sovereignty, said prime sponsor and Tulalip tribal member Rep. John McCoy, (D-38th District, Tulalip). The reason tribes do it, is that they feel that the state is not taking care of their citizens the way it should and they feel they can take care of them better.
Despite various initiatives throughout the years to give sovereignty back, this legislation would bridge the gap between the shortfalls of current law, advocates say.
In 1953 Congress passed Public Law 280, a federal act, which presented some states with the authority to reign over tribal lands and communities. While some states were mandated, Washington was given the option.
Tribal communities were not.
Four years later, 11 of Washingtons tribes were under full state jurisdiction and, in 1963, the state maintained limited control over the remaining tribes.
In 1968, the Indian Civil Rights Act amended PL 280 to require tribal consent of any new state control. It also allowed the federal government to accept full or partial retrocession by state request.
Today, out of Washingtons 29 federally recognized tribes, four Muckleshoot, Nisqually, Skokomish and Squaxin Island remain under full state law while 17 including the Shoalwater Bay Tribe in north Pacific County are under limited state control concerning these areas:
Compulsory school attendance
Operation of motor vehicles upon public roads and highways.
The Chinook Tribe is not federally recognized and thus isnt directly impacted by the legislation.
There is uncertainty as to jurisdiction concerning eight tribes: Cowlitz, Jamestown, SKlallam, Nooksack, Samish, Sauk-Suiattle, Snoqualmie, Stillaguamish and Upper Skagit. But it is speculated from the bill report the latter are under federal law.
Doug Nash, professor of law and director for the Center for Indian Law and Policy at Seattle University, said that, despite retrocession in civil and criminal jurisdiction, state jurisdiction would remain in some aspects of law such as the licensing of drivers and motor vehicles.
The U.S. Supreme Court decisions in various case laws uphold these binding statutes for the tribal community. Taxes, although constituting a separate area, are also governed by the settlements of the court.
McCoy said that, because of the long history between the United States and tribes, there havent always been good outcomes and that there is a fear of non-Indian law and what some might perceive as disadvantages.
Virginia Cross, chair of the Muckleshoot Tribal Council, experienced those disadvantages firsthand in her tribal community.
Our relationship with the local police department isnt good, said Cross. Right now, we [instead] contract out with the King County Sheriffs Department.
Cross explained that local law-enforcement officers mistreated her son who wishes to remain anonymous when he was arrested and, she said, brutally beaten on the head.
Muckleshoot has been in the process for several years to request retrocession.
There are problems with alcoholism, drugs and accidents, and federal jurisdiction would give us more control of our own court system, said Cross.
Harry Smiskin, chair of Yakama Nation Tribal Council, said that Yakama has been working hard on the request to the governor in anticipation and expectation that the bills are turned to law.
Yakama Nation is one of the 17 tribes under limited state jurisdiction.
When this bill passes, this will be something very beneficial to the members of Yakama Nation, said Smiskin. Theyll have the authority to make their own laws and be governed by those laws.
Sen. Jim Honeyford (R-15th District, Sunnyside) said that, while he respects the tribal community, two scenarios a child custody case and a warrant case gave him concern about tribal leaders ability to uphold the law for their members.
And while both bills passed the house of origin, the Senate received 8 votes of 49 total in opposition while the House received 42 from its 98 members.
Now at a neutral stance, the language of the original bill sparked unease among Yakima County officials as the legislative process ensued.
The main concern, also echoed at the bills initial public hearing by the Washington State Association of Counties, was that the bills language should include the need for a stronger collaboration with the tribal communities and local governments so that there could be a smooth transition.
Last summer and fall, a 20-member workgroup met several times to study tribal retrocession. Legislators, tribal leaders, county commissioners and college professors sifted through past and present law and discussed the details and possible effects.
Robert T. Anderson, professor of law and director of the Native American Law Center at the University of Washington, wrote a paper that was used in the workgroup session.
Anderson wrote that states generally have jurisdiction over Indians outside of Indian country unless otherwise specified in a treaty or a federal preemptive state law.
In addition to laying out other facts of current law, he presented findings that, as a result of retrocession, there would be an increase of federal law enforcement and therefore a decrease in state power.
In turn, retrocession has an implication for state savings.
Its going to be beneficial to the counties, beneficial to the state, said Smiskin, because theyre not going to have to spend money on a reservation police. We spend it all, not the state or counties.
According to Nash, the workgroup did not estimate what the savings might be because of the unpredictability of precisely how many tribes would request retrocession.
Although subject to the negotiations between the tribes and the U.S. Department of Interior, federal funding could be a possibility as well.
But McCoy said retrocession might not be for all tribes at the moment.
The tribes that have resources favor this, said McCoy. The tribes that have very few resources . . . would have difficulty without financial support from some place.
Abbey Corzine, spokeswoman for the Office of the Governor, said that, until the governor sees the final bill, it is too early for her to determine whether the governor supports this legislation.
Craig Bill, director of the Governors Office of Indian Affairs, was a member of the joint workgroup that studied retrocession last year.
This is seen as a substantial change by a lot of people, said Nash. What this really does is it gives tribes an opportunity to be put back in the position they should have been before (state) jurisdiction.
If the Retrocession Act passes, legal proceedings filed before the effective date with local government jurisdictions would not be affected, and implementation could begin 90 days after the end of this legislative session.