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Yakama’s ‘Bittersweet’ Moment: Gaining Some Criminal Jurisdiction

Gov. Jay Inslee approved the Yakama Nation’s request for the return of jurisdiction over certain civil and criminal matters on January 17.

Even as Gov. Jay Inslee signed the document transferring jurisdiction over certain civil and criminal matters to the Yakama Nation, Yakama Chairman Harry Smiskin found the moment “bittersweet.”

He said he was surprised to learn of opposition to the transfer of jurisdiction by a neighboring public official. And the Nation’s expanded authority doesn’t include its off-reservation lands; that’s a subject for continued discussion.

Smiskin envisions a day when the law and justice systems of Native nations are viewed as equal to the law and justice systems in any American jurisdiction, when tribal police are viewed as equal to their non-Native counterparts.

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This day, January 17, was a big step in that direction.

Using a process established by the Washington State Legislature in 2012, Yakama asked the state to retrocede, or return, jurisdiction over adoption proceedings, compulsory school attendance, dependent children, domestic relations, juvenile delinquency, public assistance, and operation of motor vehicles upon public roads, streets and highways.

Yakama Nation was the first to use the process established by the Legislature. Yakama Nation’s plan for the exercise of jurisdiction heads to the U.S. Interior Department for review and approval. That could take at least two years, according to state Sen. John McCoy, D-Tulalip, who sponsored the bill establishing the process by which Native nations in Washington state can request retrocession.

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Dawn Vyvyan (pronounced Vivian), an attorney for the Yakama Nation, said retrocession enables indigenous governments “to govern their own people on their own lands” in the civil and criminal matters covered by the retrocession law. But jurisdiction is still a complicated matter.

Regarding the civil and criminal matters covered by retrocession, indigenous governments have jurisdiction only over Native Americans on their lands; non-Native people still fall under the jurisdiction of the state. The state retains jurisdiction over the civil commitment of sexually violent predators.

The federal government retains jurisdiction over seven major crimes committed by Native Americans in Indian country, including homicide, arson, burglary and robbery. However, under the Violence Against Women Act, indigenous governments can prosecute Native Americans and non-Native offenders who commit crimes against women in Indian country.

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Retrocession is but one step the Yakama Nation is taking to smooth out jurisdictional issues while strengthening its law and justice system.

The Yakama Nation and the Yakima County Sheriff’s Office developed procedures that sheriff’s deputies follow when executing arrest warrants on American Indians on Yakama Nation land. Yakama Nation police must be notified first and an officer allowed to be present, and the suspect booked into the Yakama Nation jail.

Smiskin said Yakama Nation police, who are trained at the Bureau of Indian Affairs Police Academy, will undergo additional training at the state’s Law Enforcement Equivalency Academy, qualifying them to enforce state law among Natives and non-Natives and opening the door for cross-deputization and cooperative agreements with neighboring departments.

Smiskin, a former Yakama Nation police chief, said the expanded jurisdiction and relationship building will help build trust in the Native law and justice system among non-Natives.

He said “there's a fear” among non-Natives that if they're arrested in Indian country, they're not going to be treated fairly. “That's totally a fallacy," Smiskin said.

Reversing a termination era policy

The State of Washington was one of several states that obtained jurisdiction over indigenous nations under Public Law 280, approved by Congress and signed by President Eisenhower in 1953 despite his own "grave doubts" about empowering states to assert jurisdiction over Indian country without tribal consent.

In 1968, the Indian Civil Rights Act amended PL 280 to allow tribal governments to request retrocession, but in Washington state there was no clear process for how to retrocede until 2012, when McCoy – at the time a member of the state House – sponsored HB 2233.

By many accounts, PL 280 is a failure. In a 556-page report for the U.S. Justice Department on law enforcement and criminal justice under PL 280, Dr. Carole Goldberg and Duane Champagne of UCLA’s Native Nations Law and Policy Center found that reservations not covered by PL 280 and under jurisdiction of tribal police had better response time, more thorough investigations and better community relations than PL 280 reservations under the jurisdiction of state and county police. State and county police were at a disadvantage because of lack of cultural understanding, location of their departments in proximity to the reservation, and insufficient resources.

There are cultural and social benefits to retrocession too, Vyvyan said. Under current law, a Native juvenile offender in Washington state falls under state jurisdiction, is prosecuted in the state system, and if guilty is sent to one of 21 state juvenile detention facilities.

Under retrocession, the juvenile would be prosecuted by the tribal justice system and sent to a detention facility close to home – better for family contact and cultural continuity that could reduce recidivism. In 2012 the Yakama Nation opened its new, $14 million correctional center which can house up to 70 adult and juvenile inmates. The center has sweat lodges “to not only help cure the individual physically but help them heal spiritually," Smiskin told the media at the opening.

According to University of Washington law professor Robert Anderson, Bois Forte Ojibwe, law and justice costs to county and state governments will decrease over time as indigenous governments establish systems for managing and funding the handling of civil and criminal matters.

McCoy said county and state governments benefit from stronger American Indian law and justice systems. Tribal police officers who are cross-deputized often assist departments in neighboring jurisdictions, improving response time and bolstering public safety.

And, he’s confident their presence will help build bridges of understanding between cultures.

“We all want the same thing – we want our communities to be safe,” McCoy said. “And our police, no matter what badge they wear, are just doing their jobs.”