Indian prisoners in Washington State fight seizure of tribal trust fund distributions

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SEATTLE ? Indian prisoners incarcerated by the Washington State Department of Corrections have unlawfully and unconstitutionally had a portion of their tribal trust fund distributions seized by the state, according to a lawsuit filed on behalf of a member of the Colville Reservation in north central Washington.

The Native American Project of Columbia Legal Services (CLS) in Seattle and the Legal Office of the Colville Confederated Tribes has taken on the case of Dennis Stensgar, an Indian prisoner currently incarcerated at the Monroe Correctional Complex in Washington.

In the case, Stensgar v. Lehman, the plaintiffs have requested relief and restitution for Indian prisoners who have had up to 20 percent of their incoming trust fund disbursements seized by the Department of Corrections (DOC) since 1997. The Native American Project of CLS filed suit in late March on behalf of Stensgar and other similarly situated Indian prisoners.

According to the recently revised state code, the DOC has the right, without exception, to seize and route incoming inmate funds toward court-ordered financial obligations.

Despite a U.S. District Court ruling in May 2001, Corpuz v. Lehman, in favor of returning seized trust funds to an imprisoned member of the Yakama Nation, the DOC and the Washington State Attorney General's office have not been willing to return funds seized between 1997-2001 to other Indian prisoners.

The case does appear to have had a chilling effect on present-day deductions from Indian prisoners' disbursement checks, however. According to Douglas W. Carr, Assistant Attorney General of Washington, the DOC has not taken any money out of per capita tribal disbursement checks since July 2001.

"It's our position that the legal basis for the [plaintiffs '] complaint is less than solid," said Carr. "Frankly, Native American inmates were being treated the same as all other inmates. We really don't see where they've been damaged because they've had legitimate debts paid ... and we certainly think that the concept of inmates being required to pay their fines is a legitimate and appropriate policy."

But Shelby Settles, staff attorney with the Native American Project of CLS, says that any deducted tribal trust monies should be returned to Indian prisoners, because the very act of seizing such monies was unlawful to begin with.

"This money represents the last remaining lands that belong to [these individuals] and their tribes, and it was received from the use of resources on tribal trust lands. The money is part of the political relationship that exists between the U.S. federal government and the tribes," said Settles.

Federal statute 25 U.S.C. Section 410 was originally written in 1906 to protect disbursements from the leases or sales of Indian trust lands from being seized toward debts or liabilities.

While the Attorney General's office acknowledges the existence of this statute, its answer to the complaint denies that any portion of Stensgar's monies have been taken in violation of the U.S. Constitution and federal law. The state Attorney General filed his response with the U.S. District Court, Western District of Washington at Tacoma on June 18,

"We frankly don't think that [Indian prisoners] have been damaged, but the plaintiffs obviously think differently," added Carr. The Attorney General's office has asked the court to dismiss the complaint and, furthermore, is considering the possibility of asking the Department of the Interior to approve deductions from Indian prisoners' tribal disbursement checks.

"It's certainly a possibility that [we] may ask the Secretary of the Interior to approve these deductions in the future," stated Carr.

Out of a state prison population of 15,600 inmates, roughly four percent, or 625 inmates, are of Indian descent. Statewide, only 1.6 percent of the population is Indian, according to the latest census figures.

Settles said that while her office is working to obtain class-action certification for this case, as many as 100 prisoners could eventually be involved in the lawsuit. In addition to asking for a full reimbursement of deducted monies, the plaintiffs are requesting that the court declare that this money is protected pursuant to federal law. Furthermore, the plaintiffs have requested injunctive relief from the court to prevent the DOC from making any further deductions from protected Indian trust fund disbursements.

Currently, tribes distributing protected trust disbursements include the Spokane, Yakama, Kalispel and Colville Confederated Tribes, including per capita payments resulting from the Grand Coulee Dam Settlement Act of 1994. The Act compensates the tribes for lands and resources taken by the construction and operation of the dam, and specifically exempts distributions to tribal members from any form of garnishment, seizure or local taxation.

"It's important that people understand that these prisoners will still be paying their court-ordered money, but they won't be paying it out of this protected money. The debt remains and they still have those obligations," explained Settles.

"This isn't welfare in any sense," she added. "These monies are a part of treaty rights ... and they're central to the tribes' existence.