Artful Land Care

Busting Reclamation Anvils

In Doctrine of Discovery, YCM on September 6, 2014 at 6:59 pm

14.09.06

September 6, 2014

The Yakama Nation is in the process of reclaiming jurisdiction in five areas of civil and criminal justice. Since 1953 Washington State has held authority over school attendances, public assistance, domestic relations, juvenile delinquency, and motor vehicle operations by way of a federal law known as Public Law 280. In 2012 the Nation filed a petition with the State, which led to then-Governor Gregoire to sign a bill approving a procedure for the Nation to reclaim jurisdiction in those five areas. January of this year saw Governor Inslee issue a proclamation return jurisdiction to the Nation.

When Belinda and I first started looking for land to buy on the reservation in 1999, a number of folk questioned our sanity (That is, after we answered the slew of questions that came along wondering how we could buy land on the reservation in the first place.). They questioned our buying because one day the Yakama Nation might regain total jurisdiction and that might lower land prices. The background question seldom asked was, could you really trust the Tribe to support your best interest?. The second question is a hard one to answer and one to grabble another day. The first one though is much easier.

When Governor Inslee wrote his proclamation, he said jurisdiction could return to the Yakama except for when it involves non-Indians operating motor vehicles on the reservation. The State would retain jurisdiction in these civil cases and well as in criminal cases involving “non-Indian defendants, non-Indian plaintiffs, and non-Indian victims.”

What Inslee withholds in his proclamation is foundational to why non-Indians have little worry (if they are going to worry) about the Yakama regaining total jurisdiction of the land “within the exterior boundaries of the Yakama Reservation (See Proclamation).” Remembering the legal structure of the United States, in turn the States, and in turn the Tribal Nations within the exterior boundaries of the United States is based in the Christian Doctrine of Discovery (CDoD), and this structure specifically benefits the national U.S. structure and its non-Indian citizens, there is little need for non-Indians to worry that a Tribal Nation will reclaim meaningful jurisdiction over their deeds and misdeeds. Until non-Indian U.S. citizens (and it is important to say I am talking about both white folk and folk of color) recognize the privilege given them by the current system (and through it the power they hold over American Indians) and choose to engage in significant structural change, there is about as good a chance of Tribal Nations gaining meaningful jurisdiction over all people on reservations as busting an anvil.

Today, as well as in 1999, Belinda and I have little worry about being white non-Indian landowners on the Yakama Reservation. While we like to think our non-worry is due to who we know our Yakama neighbors and friends to be and their care for our wellbeing, we also know our society is a long way from a significant change in U.S.-Tribal relationships.

[If this conversation interests or bothers you, I recommend you attend Winter Talk 2015: Indigenous Languages: Lost and Found at Phillips Theological Seminary, February 9-11, 2015.]

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PROCLAMATION BY THE GOVERNOR
14-01

WHEREAS, on March 19, 2012, Governor Christine Gregoire signed Engrossed Substitute House Bill 2233, “Creating a procedure for the state’s retrocession of civil and criminal jurisdiction over Indian tribes and Indian country”; and

WHEREAS, Engrossed Substitute House Bill 2233, which became Chapter 48, Laws of 2012, creates a process by which the state of Washington (hereafter, “the State”) may retrocede to the United States all or part of the civil and criminal jurisdiction previously acquired by the State over a federally recognized Indian tribe, and the Indian country of such tribe, under federal Public Law 280, Act of August 15, 1953; and

WHEREAS, on March 13, 1963, in accordance with federal Public Law 280, Act of August 15, 1953, the State assumed partial civil and criminal jurisdiction, subject to the limitations in RCW 37,12,021 and RCW 37.12.060, within the Indian country of the Confederated Tribes and Bands of the Yakama Nation (hereafter, “Yakama Nation”) pursuant to Chapter 36, Laws of 1963; and

WHEREAS, after March 13, 1963, the Yakama Nation did not invoke with the State the provision of RCW 37.12.021 but chose to rely upon the rights and remedies of its Treaty of 1855 with the United States, 12 Stat. 951and federal laws; and

WHEREAS, on January 11, 1980, the Assistant Secretary-Indian Affairs, United States Department of the Interior, approved the Yakama Nation’s petition for re-assumption of jurisdiction over Indian child custody proceedings under the Indian Child Welfare Act of 1978. Effective March 28, 1980, the Yakama Nation reassumed jurisdiction over Yakama Indian child custody proceedings; and

WHEREAS, on July 17, 2012, the Yakama Nation filed a retrocession petition with the Office of the Governor. The retrocession petition by the Yakama Nation requests full retrocession of civil and criminal jurisdiction on all of Yakama Nation Indian country and in five areas of RCW 37.12.010, including: Compulsory School Attendance; Public Assistance; Domestic Relations; Juvenile Delinquency; and Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways; and

WHEREAS, Governor Gregoire convened government-to-government meetings with the Yakama Nation to discuss the Nation’s retrocession petition. In the course of those meetings, the Yakama Nation and Governor Gregoire confirmed that the Yakama Nation asks the State to retrocede all jurisdiction assumed pursuant to RCW 37.12.010 in 1963 over the Indian country of the Yakama Nation, both within and without the external boundaries of the Yakama Reservation. However, the Yakama Nation requests that the State retain jurisdiction over mental illness as provided in RCW 37.12.010(4), and jurisdiction over civil commitment of sexually violent predators under RCW 71.09, and acknowledges that the State would retain criminal jurisdiction over non-Indian defendants; and

WHEREAS, Governor Jay Inslee convened further government-to-government meetings between the State and Yakama Nation. The Governor’s Office has also consulted with elected officials from the jurisdictions proximately located to the Yakama Nation’s Indian country; and

WHEREAS, on July 9, 2013, Governor Inslee exercised the six-month extension provision for issuing a proclamation, pursuant to RCW 37.12.160; and

WHEREAS, strengthening the sovereignty and independence of the federally recognized Indian tribes within Washington State is an important priority for the State; and

NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington, by virtue of the authority vested in me by Section 37.12.160 of the Revised Code of Washington, do hereby grant in part, and deny in part, the retrocession petition submitted by the Confederated Tribes and Bands of the Yakama Nation, according to the following provisions:

  1. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede full civil and criminal jurisdiction in the following subject areas of RCW 37.12.010: Compulsory School Attendance; Public Assistance; Domestic Relations; and Juvenile Delinquency.
  2. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.
  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.
  4. Jurisdiction over Indian child custody proceedings under RCW 37.12.010(3) and Adoption proceedings and Dependent Children pursuant to RCW 37.12.010(6) and (7), which the Yakama Nation reassumed in 1980 under the Indian Child Welfare Act, shall remain under the exclusive jurisdiction of the Yakama Nation.
  5. Outside the exterior boundaries of the Yakama Reservation, the State does not retrocede jurisdiction. The State shall retain all jurisdiction it assumed pursuant to RCW 37.12.010 in 1963 over the Yakama Nation’s Indian country outside the Yakama Reservation.
  6. Nothing herein shall affect the State’s civil jurisdiction over the civil commitment of sexually violent predators pursuant to chapter 71.09 RCW and the State must retain such jurisdiction notwithstanding the completion of the retrocession process authorized under RCW 37.12.160.
  7. Pursuant to RCW 37.12.010, the State shall retain all jurisdiction not specifically retroceded herein within the Indian country of the Yakama Nation.
  8. This Proclamation does not affect, foreclose, or limit the Governor’s authority to act on future requests for retrocession under RCW 37.12.160.

Signed and sealed with the official seal of the state of Washington this 17th day of January, A.D. Two-thousand and Fourteen, at Olympia, Washington.

By: /s/Jay Inslee, Governor

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