Superior Court of Thurston County. Superior Court Docket No. 93-1-00680-6/94-2-00402-3/94-2-00401-5. Date Filed in Superior Court: February 15, 1994. Superior Court Judge Signing: Paula Casey.
Written By: Wiggins, P.t.j.,*fn* Concurred IN By: Fleisher, P.t.j., Houghton, A.c.j.
WIGGINS, J.*fn* -- In these consolidated appeals, Lewis Squally, Sr. and John Kalama challenge the subject matter jurisdiction of the Washington State courts over offenses occurring on land on the Nisqually Indian Reservation. The Nisqually Indians consented to State criminal and civil jurisdiction over their reservation land in 1957. Squally's and Kalama's offenses took place on land added to the Nisqually Reservation after 1957. We hold that the
Nisquallys have not consented to jurisdiction over these after-acquired lands and reverse the convictions.
The Thurston County Prosecuting Attorney charged Squally in superior court with first degree burglary, in violation of RCW 9A.52.020(1)(b). The prosecutor also charged Kalama in district court with carrying a concealed pistol without a permit, in violation of RCW 9.41.050, and with obstructing a public servant, in violation of RCW 9A.76.020(3). Both men were charged for incidents that occurred on Nisqually Reservation land acquired by the Nisqually tribe after 1957.
Squally and Kalama each moved in their respective cases to dismiss the actions for lack of subject matter jurisdiction. Squally and Kalama argued: (1) the State of Washington has only the subject matter jurisdiction that the Nisqually Tribe ceded to it by means of a 1957 tribal resolution; (2) the 1957 resolution asked the State to assume jurisdiction over certain reservation territory identified by legal description; (3) the land upon which the subject criminal offenses were committed was acquired by the Nisqually Tribe after 1957 and was not included in that legal description; and (4) therefore, the Tribe has not authorized the State to exercise jurisdiction over the land where the offenses were committed, and the State lacks such jurisdiction.
In Squally's case, the trial court denied Squally's motion to dismiss and convicted him of second degree burglary. Squally appealed to this court. In Kalama's case, the district court denied Kalama's motion to dismiss the prosecution for lack of subject matter jurisdiction. Kalama sought a writ of certiorari in superior court. The superior court declined to issue the writ, ruling that the State has jurisdiction to prosecute crimes committed by Indians against Indians on the Nisqually Reservation. This court
granted discretionary review and consolidated Kalama's case with Squally's.
Federal Public Law 280 and State Chapter 240
In 1953 Congress enacted Pub. L. No. 83-280, 67 Stat. 588, (Federal Public Law 280). Federal Public Law 280 granted immediate jurisdiction to five states (California, Minnesota, Nebraska, Oregon, and Wisconsin) over criminal and civil causes of action occurring on Indian land. In some other states, such as Washington, the state constitutions or statutes specifically disclaimed jurisdiction over Indian country.*fn2 Federal Public Law 280 authorized these states to amend their laws to assume civil and criminal jurisdiction. Federal Public Law 280 also authorized any other state not having jurisdiction to assume civil and criminal jurisdiction at such time and in such manner as the people of the state shall choose. Consent of the Indian tribes was not required.*fn3
In response to Federal Public Law 280, Washington enacted Laws of 1957, ch. 240 (State Chapter 240), which obligated the State of Washington to assume, pursuant to gubernatorial proclamation, criminal and civil jurisdiction over Indians and Indian territory when a tribe requested the State to assume such jurisdiction. Former RCW 37.12.020--.040.*fn4 In October of 1957, the Nisqually Indian
Community passed a resolution requesting the State of Washington to assume civil and criminal jurisdiction over "the peoples of the Nisqually Indian Community, and all persons being and residing upon the Nisqually Indian Reservation, the same being located in Thurston County, Washington." The resolution included a legal description of the Nisqually Reservation land at that time. The resolution was based explicitly on the Nisquallys' ...