Confederated Bands and Tribes of the Yakima Indian Nation v. State of Washington , 550 F.2d 443 ( 1977 )

SNEED, Circuit Judge:

The Yakimas argue before this court en banc that PL-280 did not authorize Washington to assume partial jurisdiction and that Rev.Code Wash. § 37.12.010 is accordingly invalid.

We must first decide whether the Supreme Court’s summary dismissals in Tonasket v. Washington, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387 (1975) and Makah Indian Tribe v. Washington, 397 U.S. 316, 90 S.Ct. 1115, 25 L.Ed.2d 335 (1970) foreclose the issue. We can dispose of Tonasket quickly because the Supreme Court of Washington did not address the partial assumption question (as it did the disclaimer issue) after the United States Supreme Court vacated its prior decision and remanded the case for reconsideration in the light of McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); accordingly, the partial assumption issue was not before the Supreme Court when it dismissed the second appeal. Makah is somewhat more troublesome because Makah clearly involved a partial assumption of jurisdiction under Rev. Code Wash. § 37.12.010 in connection with highways. We think Makah is not dispositive for two reasons. First, the jurisdictional statement to the Supreme Court did not specify the partial assumption issue as a “Question Presented,” and partial assumption was mentioned only in passing in the supporting text. Second, the State’s motion to dismiss or to affirm was directed to the disclaimer issue. Accordingly, we construe the dismissal order to resolve the disclaimer issue only.

Washington’s primary reliance is placed on the following language from Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 655 (9th Cir. 1966) (hereinafter Quinault II):

“The third claim which plaintiffs purport to state in their complaint is that chapter 36, Laws of 1963, amending chapter 240, Laws of 1957, is void because it represents only a partial assumption of state jurisdiction over Indian reservations, whereas Public Law 280 does not authorize partial assumption of jurisdiction.

“. . . We do not read that act as constituting only a partial assumption of jurisdiction. The state therein indicates its willingness to extend criminal and civil jurisdiction over all Indians and Indian territory, reservations, country and lands within the state, it being provided, however, that as to some matters concerning some Indians, there must first be a tribal resolution and a gubernatorial proclamation. In chapter 240, Laws of 1957, this Indian resolution and governor’s proclamation procedure applied to all exertions of state jurisdiction.

“In our opinion, the indicated condition precedent to the exertion of state jurisdiction as to some matters concerning some Indians involves no violation of Public Law 280. If the Quinault Tribe of Indians feels aggrieved because state jurisdiction is not presently being exerted to the full extent possible under chapter 36, all it has to do is provide the governor with a tribal resolution of the kind called for in section 5 of that act (RCW 37.12.-021). A governor’s proclamation would necessarily follow, and a full exertion of state jurisdiction would be achieved.” 368 F.2d at 657-58.

The ultimate holding of Quinault II supports the State’s argument, and we choose to affirm it. While Quinault II, strictly speaking, avoided the assumption-of-partial-jurisdiction issue by treating Washington’s assumption as total, it is reflective of a long-standing opinion that PL-280 authorizes the assumption of partial subject matter, and partial geographic, jurisdiction.¹ Examination of the relevant legislative history does not disprove this interpretation of PL-280 and, in fact, provides some degree of support. More critically, reversal of Quinault II at this late stage, along with a new interpretation of PL-280, could lead to unfortunate law enforcement problems for thousands of native Americans.

I

To hold, as the dissent would have us do, that any partial assumption of criminal jurisdiction by the states is violative of PL-280 would overturn the jurisdictional systems under which live approximately 16,000 Indians in the State of Washington and 5,000 Indians in Idaho. The jurisdictional systems under which 115,000 Indians in Arizona and 22,000 Indians in Montana live would also be jeopardized.² The effects of such an immediate jurisdictional upheaval would be far-reaching and quite unpredictable for the approximately 158,000 Indians potentially affected by this decision.

For example, Washington has performed certain services since 1963. Doubts about whether tribal or federal authorities would be ready to step in immediately are quite reasonable. Consider highway traffic law enforcement and juvenile delinquency, two specific areas where state jurisdiction would be invalidated under the view of the dissenters. Both are complicated fields. Patrol cars and officers are necessary if the highways are to be efficiently patrolled. Skilled personnel, as well as specialized detention facilities, are needed to handle the problems presented by the delinquency of juveniles. It is very doubtful that the tribe or the federal government immediately could provide these resources. Even if the states are providing only minimal services, it is unlikely that tribal or federal authorities could equal or surpass that level in the near future.

Other “option states” within the circuit would confront similar uncertainties and confusion. “Option states” not within the circuit, moreover, could not view such action with indifference. Until the dissent’s position was acted upon by their circuit, and possibly ruled upon by the Supreme Court, any partial assumption of jurisdiction, not arranged pursuant to procedures of the 1968 legislation, would be under a cloud.³

II

Despite these consequences we would not hesitate to overrule Quinault II if it were plainly and unequivocally inconsistent with the applicable legislative history of PL-280. But it is not. At worst, this history simply does not directly address the partial assumption issue.⁴ There are, however, aspects of PL-280 and its legislative history that suggest assumption of partial jurisdiction is valid and that Quinault II, as here interpreted, is sound.

First of all, partial geographic jurisdiction was specifically provided by the Act with respect to certain mandatory states, by excluding specific reservations from coverage.⁵ There is no reason to suppose that option states were not to have the power to be similarly flexible. Exclusion of an entire reservation is different, of course, from “checker-boarding.” There is, however, nothing to indicate that a state given the option to assume jurisdiction was required either to exclude-entire reservations or to assume jurisdiction with respect to all Indian country within its territorial limits. Congress, by vesting states with an option, evidenced that at that time it did not know how jurisdiction in such states should be arranged. Experimentation undoubtedly was expected and that is what has occurred.

It is also reasonable to conclude that experimentation with respect to subject matter jurisdiction was intended. This is indicated by the fact that the Department of Interior conferred extensively with the representatives of mandatory states and the Indian tribes before presenting a bill to Congress in 1953.⁶ Both the mandatory states and the tribes therein had agreed to an assumption of complete civil and criminal jurisdiction prior to submission. However, very few of the option states and tribes therein were consulted. By failing to consult extensively and by vesting option states with the power to assume jurisdiction, it is reasonable to assume that Congress was prepared to permit various jurisdictional arrangements to be developed at the state level. No restraints on these arrangements were imposed by PL-280.

To assume no such restraints with respect to geography or subject matter were intended is consistent with the assimilative thrust of the 1953 legislation. Congress in PL-280 intended to relinquish federal jurisdiction over Indian people residing on reservations as quickly as possible. Relinquishment in option states simply had not been worked out in 1953.⁷ So far as Congress then knew it might never be worked out; but it is clear that Congress had hopes. Nothing could be more reasonable than to assume that Congress anticipated that various jurisdictional arrangements would be developed in option states. And this is what happened. We suggest that Congress anticipated, in a broad sense, this general direction of events that occurred in the option states.

Nor do we believe that the danger of states assuming only the beneficial aspects of jurisdiction while rejecting those more burdensome was so clear and present that Congress in 1953 reasonably could not have considered vesting in option states the power to experiment. Indeed, the failure of Congress in 1953 to repeal earlier grants of partial subject matter jurisdiction clearly suggests the contrary.⁸ Of particular importance to this case is the fact that Washington’s partial assumption of jurisdiction reflects quite burdensome undertakings not likely to be defrayed from revenues derived from Indians.

This fiscal imbalance, undoubtedly present under Washington’s scheme, illumines an aspect which strongly suggests recognition by Congress of the necessity to permit experimentation with partial assumptions. This aspect is that the propensity of a state to assume jurisdiction is a function of its fiscal strength and the magnitude of the burden assumption imposes. It follows that the propensity of each state is different. Only by permitting the option states to experiment with assumptions of partial jurisdiction could Congress allow each state to fit its burdens to its capacities.

Another indication that partial assumption is valid appears in the meaning given the statute by the Department of Interior, the department closely involved in drafting PL-280 and having the primary responsibility for Indian affairs.⁹ During hearings in connection with enactment of the 1968 amendments to PL-280, which explicitly permit partial assumptions when the Indians give their consent, an Assistant Secretary of the Interior in a letter to Representative Aspinall observed that the 1968 amendments would make “explicit an authority which we believe is now implicit— an authority to assume partial or piecemeal jurisdiction, either by geographic area or by subject matter.” Hearings on HR 15419 Before the Subcomm. on Indian Affairs of the House Comm, on Interior and Insular Affairs, 90th Cong., 2d Sess., ser. 23, at 25 (1968). Even more directly relevant is that the letter observed approvingly that Washington, Idaho, and Nevada had already assumed partial jurisdiction. This court has previously cited this letter as evidence of the Congressional intent in enacting PL-280. Though the language in United States v. Burland, 441 F.2d 1199 (9th Cir.1971), endorsing the Department of the Interior’s position is probably dictum, it is another indication of the strength of that position.¹⁰

In summary, the applicable legislative history of PL-280 provides reasonable support for Quinault II. We see no reason to overturn a reasonable interpretation of an ambiguous statute understood for a generation to be the law when the consequences of so doing are so uncertain and far-reaching.

Ill

We recognize that Washington’s checker-boarding of criminal jurisdiction might appear particularly inefficient and that its elimination may be desirable. However, it would be difficult to limit an opinion overruling Quinault II merely to such a scheme. An overruling of Quinault II inevitably would cast grave doubt on Montana’s 1963 assumption of criminal jurisdiction over only the Flathead Indian Reservation.¹¹ There is nothing in the relevant legislative history to indicate that it was the intent of Congress to proscribe assumptions of jurisdiction geographically partial within reservations but to approve assumptions of jurisdiction geographically partial between reservations.

Nor would it be easy to limit such a holding to the proscription merely of partial assumptions of criminal jurisdiction. To validate assumptions of partial civil jurisdiction in the face of such a holding would sink to the level of clumsy and heavyhand-ed legislation by adjudication. Moreover, there exists nothing in the legislative history to suggest that partial assumption in the civil area is proper while improper in the criminal area. In addition, the administration of such a distinction would prove to be quite complex. The distinction between civil and criminal jurisdiction is not easy to draw.¹² Thus, assumptions of partial civil jurisdiction would be challenged and, after time and expense, very likely would fall.¹³ With this result would arise retroactivity problems more complex than we can now imagine.

Finally, a general and all encompassing proscription of assumptions with respect to portions of the Indian country within a state would invalidate state statutory schemes in which such assumptions are conditioned upon consent of the Indians. As already indicated, Washington, Idaho, and Montana have such legislation. To invalidate only those partial assumptions where consent has not been given would be either to apply improperly the 1968 amendments retroactively or to engraft on PL-280 a requirement of consent which all concede was not intended by Congress. Invalidation where consent has been given, however, borders on perversity when it is recalled that the 1968 amendments permit such assumptions. Finally, to invalidate all geographically partial assumptions for the sole purpose of requiring renegotiation of the state-tribe relationship under the 1968 amendments would involve us in an undertaking essentially legislative in character. We decline to undertake a function so incompatible with traditional restraints on judicial action.

The power of the United States, acting executively or congressionally, to rescue any and all Indians from the states imposing their jurisdiction improperly cannot be doubted. These branches of our Government are not insensitive to Indians.¹⁴ Our intervention in this case would be both redundant and unwise.

We adhere to Quinault II and the dictum of United States v. Burland, 441 F.2d 1199 (9th Cir.1971) and remand this case to the panel before which it initially was heard to consider the other issues involved in this case.

REMANDED.

1 . See infra p. 447. See also Tonasket v. Washington, 79 Wash.2d 607, 488 P.2d 281 (1971); Makah Indian Tribe v. Washington, 76 Wash.2d 485, 457 P.2d 590 (1969).

2 . See infra p. 448. All population statistics as of March 1970 in T. Taylor, The States and Their Indian Citizens, app. B, at 176 (Bureau of Indian Affairs 1972).

3 . To grasp the magnitude of the problem with which we are confronted, there are nineteen states having Indians residing therein which can be designated as “option states.” Of this, eight have disclaimers of Indian jurisdiction in their state constitutions (Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Washington). S.Rep. No. 699, 83rd Cong., 1st Sess. 6 (1953). Eleven, on the other hand, have no such constitutional disclaimers (Colorado, Florida, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, and Wyoming). T. Taylor, supra note 2, at 176. The eight are authorized by section 6 of PL-280 “to amend, where necessary, their state constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil or criminal jurisdiction.” The eleven, together with such of the eight as have removed their constitutional impediments, under section 7 of PL-280 are permitted “to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”

The responses of these nineteen states have not been uniform. Six states assumed some kind of partial jurisdiction (Arizona, Idaho, Iowa, Montana, North Dakota, and Washington). Ten of the remaining states have not assumed any effective jurisdiction (Colorado, Kansas, Louisiana, Michigan, Mississippi, New Mexico, North Dakota, Oklahoma, South Dakota, and Wyoming). Two other states acted after the 1968 amendments to PL-280 and so are covered by a different statutory scheme (Nevada and Utah). One state assumed complete jurisdiction (Florida). Even among the states assuming partial jurisdiction, there have been a variety of approaches. Washington’s plan is adequately described in the dissent, infra at p. 447. Idaho, in 1963, assumed partial subject matter jurisdiction in both the civil and criminal areas. Nevada originally adopted a county option approach but, following the 1968 legislation by Congress, returned all previously assumed jurisdiction if the tribe refused to consent to its continuation. Montana, in 1963, assumed only criminal jurisdiction over the Flathead Indian Reservation. Arizona, in 1967, despite its constitutional disclaimer clause, assumed jurisdiction only with respect to air and water pollution control.

4 . An exhaustive review of the legislative history surrounding PL-280 concludes that “[t]here is nothing in the legislative history surrounding the enactment of PL-280 that definitely indicates whether Congress intended to permit partial jurisdiction by subject matter.” Goldberg, PL-280: The Limits of State Jurisdiction Over Reservation Lands, 22 U.C.L.A.L.Rev. 535, 554-55 (1975).

5 . The Red Lake Reservation in Minnesota, the Warm Springs Reservation in Oregon, and the Menominee Reservation in Wisconsin were all specifically excluded.

6 . S.Rep. No. 699, 83rd Cong., 1st Sess. 6-7 (1953) — letter from Mr. Lewis, Assistant Secretary of the Interior to Mr. Miller, Chairman of the House Interior and Insular Affairs Committee.

7 . Id. at 6.

8 . 25 U.S.C. § 231 allows the Secretary of the Interior to promulgate regulations permitting state authorities to enter Indian tribal lands, reservations and allotments for the purpose of making inspection of health and educational conditions and enforcing sanitary and quarantine regulations. Though no regulations were ever promulgated under this statute it does show a Congressional intent to allow partial subject matter jurisdiction. An amendment to the statute in 1946 authorized the states “to enforce the penalties of state compulsory school attendance laws against Indian children and parents.” 25 U.S.C. § 231(a). This provision evidenced a further intent to allow the states to deal with particular subject matter areas. The failure to repeal these provisions in 1953 suggests a continuing intent on the part of Congress to allow the option states to experiment with partial subject matter jurisdiction.

9 . As the agency most closely tied to the drafting and administration of Indian laws, its interpretation of a statute should be given “great weight.” See United States v. Jackson, 280 U.S. 183, 193, 50 S.Ct. 143, 74 L.Ed. 361 (1930); Stevens v. Comm’r, 452 F.2d 741, 746 (9th Cir.1971).

10 . Against this expression of the Department of Interior’s view is the statement by Representative Aspinall, quoted by the dissent, infra at p. 455. This statement asserted that the 1968 amendment permitting the assumption of partial jurisdiction represented a change in the law. Since Quinauit II, decided in 1966, is not an unreasonable interpretation of an imprecise statute, Representative Aspinall’s statement cannot be accepted as entirely accurate.

Be that as it may, his statement is not supported by the letter of Deputy Attorney General Warren Christopher cited by the dissent, infra at p. 455, n.20. This letter expressed doubt about the wisdom of recognition by the 1968 amendments of assumptions of partial criminal jurisdiction. Its relevant portion merely observed th.at the Department of Justice “has in the past emphasized the desirability from a law enforcement point of view of not adding to the complexity of the existing jurisdictional structure. For this reason, states and consenting tribes should be encouraged to shift jurisdictional responsibility en bloc whenever possible.” Hearings on H.R. 15419, supra at 28.

The best that the dissent properly can make of these bits of history is that Representative Aspinall thought the 1968 legislation changed PL-280 despite the contrary authority of Qui-nault II and that perhaps there was a difference between Justice and Interior with respect to the policy of partial assumptions of criminal jurisdiction. Deputy Attorney General Christopher’s letter cannot be construed as an official interpretation by the Department of Justice of the legality of partial assumptions of criminal jurisdiction under the 1953 legislation.

11 . Mont.Rev.Code Ann. § 83-801 (1966).

12 . In determining what aspects of the Bill of Rights apply to a particular judicial proceeding, the courts have often been plagued by the question of whether the underlying statute is “criminal” or “civil.” See, e.g., Note, The Quasi-Criminal Ordinance Prosecution in Illinois, 68 Nw.U.L.Rev. 566 (1973). Such determinations are not always simple. An example of the difficulties that could arise if we were to hold only partial assumptions of criminal jurisdiction invalid is provided by Arizona’s assumption of jurisdiction within Indian territory over air and water pollution control. See Ariz. Rev.Stat.Ann. §§ 36-1801, 36-1865 (1974). While this jurisdiction at first glance might be assumed to be civil in nature, Arizona provides that violators of the air and water standards will be guilty of misdemeanors and, in some cases, subject to a penalty of from $50 to $1,000 per day. Ariz.Rev.Stat.Ann. §§ 36.789.-01, 36-1720, 36-1864 (1974). Does this make the jurisdiction, at least in part, criminal in nature? Should this turn on whether Arizona describes its fine as a “criminal penalty” or a “civil fine”?

Rev.Code Wash. § 37.12.010 extends state jurisdiction over “compulsory school attendance; public assistance; domestic relations; mental illness; juvenile delinquency; adoption proceedings; dependent children; and operation of motor vehicles upon the public streets, alleys, roads and highways.” Which of these categories, if any, are wholly civil or wholly criminal, and how to divide up the categories that are part civil, part criminal, are questions not easily answered.

13 . This would invalidate Arizona’s assumption of jurisdiction over air and water pollution control should that assumption be regarded as civil. See Ariz.Rev.Stat.Ann. §§ 36-1801, 36-1865 (1974). See note 12 supra.

14 . In a meeting with Indian leaders on July 16, 1976, President Ford committed himself “to furthering the self-determination of Indian communities . . . without terminating the special relationship between the Federal Government and the Indian people.” He also supported the concept “of allowing Indian tribes to determine whether they and their members in addition to being under tribal jurisdiction should be under State or Federal civil and criminal jurisdiction.” The Departments of Justice and Interior are currently drafting legislation which would accomplish these goals. 12 Weekly Compilation of Presidential Documents, No. 30, at 1171-1172 (July 26, 1976).