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State v. Zack

Court of Appeals of Washington, Division 3

March 8, 2018

DONALD J. ZACK, Appellant.

          KORSMO, J.

         Donald Zack appeals his conviction for third degree assault of a law enforcement officer, contending that the State of Washington did not retain jurisdiction to prosecute an Indian for any offenses committed within the boundaries of the Yakama Reservation. Interpreting the governor's retrocession proclamation as he intended it, we conclude that the State retained jurisdiction to prosecute Mr. Zack for an offense occurring on deeded land and affirm the conviction.


         The salient facts are largely historic and will be discussed shortly. As to the facts of this incident, few are relevant to the analysis. Mr. Zack, who lives on the Yakama Reservation but is not an enrolled member of the tribe, was booked into the Toppenish City Jail. A jail officer then took him to the Toppenish City Hospital, property located on deeded (fee) land within the boundaries of the reservation, for treatment. While at the hospital, Mr. Zack assaulted the officer. The officer is not an Indian; Mr. Zack asserts that he is an Indian, although he is not an enrolled member of any tribe.

         In general terms, Washington responded to Public Law 280 by asserting civil and criminal jurisdiction over Indians acting on deeded or fee lands, but it declined to assert jurisdiction over Indians while on tribal or trust land.[1] RCW 37.12.010. The history of Washington's assertion of jurisdiction over the Yakama Reservation is discussed in Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 465-76, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979).[2] Subsequently, Congress acted to encourage states to withdraw some of their assertions of authority in favor of tribal authority. 25 U.S.C. §1323 (1968).

         Washington responded by passing legislation authorizing the Governor, upon the request of a tribe, to enter into negotiations with any tribe desiring to assume jurisdiction from Washington State. RCW 37.12.160. Governor Jay Inslee, after negotiations with the Yakama Nation, issued Proclamation 14-01 on January 17, 2014.[3] The proclamation returned complete civil and criminal jurisdiction to the tribe in four specific subject areas, returned some civil and criminal jurisdiction arising from the operation of motor vehicles on public thoroughfares, and noted some subject areas in which no changes were being made. With respect to the question of criminal jurisdiction, the proclamation states in paragraph 3:

3. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, criminal jurisdiction over all offenses not addressed by Paragraphs 1 and 2. The State retains jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.

(emphasis added). See Appendix A at 2.

         In his formal conveyance of the proclamation to the Assistant Secretary of Indian Affairs, Governor Inslee wrote a clarification to assure that the underscored language was understood to mean that the State was retaining jurisdiction in criminal cases where either the defendant or the victim was not an Indian. See Appendix B at 2. In accepting the State's retrocession of jurisdiction, the Department of Interior accepted only the proclamation and not the interpretation placed on it by the Governor. See Appendix C at 5. In the view of the Assistant Secretary, the proclamation was unambiguous and did not need interpretation, but that the courts would resolve the matter if needed. Id.

         The State filed a charge of third degree assault. Mr. Zack moved to dismiss the prosecution for lack of jurisdiction, alleging that he was an Indian and that under the terms of the proclamation, the State could not act against him because it had retained jurisdiction only of criminal matters that involved both a non-Indian defendant and a non-Indian victim. Evidence of Mr. Zack's Indian heritage was presented and argued to the trial court, but the judge made no determination of that status.[4]

         Instead, the court interpreted the proclamation to mean that the State retained jurisdiction if either the defendant or the victim was a non-Indian. The motion to dismiss was denied. Mr. Zack then stipulated to admission of the police reports and was convicted as charged at a bench trial. He timely appealed to this court.


         This appeal presents two issues. In the published portion of this opinion, we address the interpretation of the retrocession proclamation. In the unpublished portion, we address Mr. Zack's contention that the evidence was insufficient to support the conviction.

         Retrocession Proclamation

         The jurisdiction issue turns on the meaning of the Governor's proclamation, with the dispositive question being the meaning of the word "and." In context, the word "and" is used in a list and should be read in the disjunctive; to do otherwise would render the proclamation internally inconsistent and nonsensical. Thus, we agree with the Governor that the meaning of the word "and" in this instance is "and/or."

         Whether a state court has jurisdiction over crimes committed on reservation land is a question of law subject to de novo review. State v. Squally,132 Wn.2d 333, 340, 937 P.2d 1069 (1997). We have been unable to find clear Washington authority addressing construction of a gubernatorial proclamation.[5] Since this particular proclamation, like many before it, flows from a statutory grant of authority to enter into negotiations upon the request of a tribe and to return ...

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