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State v. Cooper

December 19, 1996

THE STATE OF WASHINGTON, PETITIONER,
v.
KIM E. COOPER, RESPONDENT.



Appeal from Superior Court, Whatcom County. 94-1-00223-9. Honorable Michael F. Moynihan, Judge. Judgment Date: 1-25-95.

Authored by Barbara Durham. Concurring: James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders.

The opinion of the court was delivered by: Durham

En Banc

DURHAM, C.J. -- The State seeks review of a Court of Appeals decision reversing Kim Cooper's conviction for child molestation. The State contends the Court of Appeals erred in concluding that the State lacks jurisdiction over crimes committed by Indians on Indian lands outside the boundaries of an established Indian reservation. We agree, and reverse.

BACKGROUND

Cooper's crime was committed on property held in trust by the United States as an Indian allotment outside the boundaries of the Nooksack Reservation. State v. Cooper, 81 Wash. App. 36, 38, 41 n.6, 912 P.2d 1075, review granted, 129 Wash. 2d 1013 (1996). *fn1 The State no longer disputes Cooper's factual assertions that (1) the crime was committed on trust property, and (2) Cooper and the victim are both members of the Nooksack Tribe. *fn2 It is also undisputed that the trust property is "Indian country" for purposes of federal jurisdiction. *fn3 Public Law 280 Prior to federal legislation permitting the assumption of state jurisdiction, criminal offenses by Indians in Indian country were subject to only federal or tribal jurisdiction. See Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979). In 1953, Congress enacted Public Law 280 permitting the states to assume jurisdiction over Indian country. Pub. L. No. 280, 67 Stat. 588 (codified as amended at 18 U.S.C. sec. 1162; 25 U.S.C. sec.sec. 1321-1326; 28 U.S.C. sec. 1360) (1953). Public Law 280 gave five states criminal jurisdiction over all Indian country with the exception of three reservations. Public Law 280 gave the remaining states, including Washington, the consent of the United States to assume jurisdiction over Indian country by statute and/or amendment of their state constitutions. Confederated Bands & Tribes, 439 U.S. at 471-74; In re Estate of Cross, 126 Wash. 2d 43, 47, 891 P.2d 26 (1995). Amended RCW 37.12.010 (1963).

In 1963, the Legislature amended RCW ch. 37.12, thereby asserting nonconsensual civil and criminal jurisdiction over all Indian country with certain exceptions.

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 [Public Law 280], 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 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 ...


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