By Mary Hudetz
The Seattle Times
The search for a stolen “bait” car — an old, gold Honda Accord owned by local law enforcement — took officers to a home on a rural road on the Yakama Indian Reservation, where tensions have simmered for years over who gets to oversee a criminal case.
For decades, an especially complex landscape of law enforcement boundaries on many reservations has vexed tribal, state and local officers in situations like this, leaving some to puzzle — and sometimes argue in the middle of an investigation — over which agency can arrest whom.
Outside the home in the agricultural patch of south-central Washington, one of those arguments among officers began to unfold one afternoon in September 2018, provoking a dispute that had been entangled in federal courts until a court ruling this week.
A police officer from Toppenish — a town within the boundaries of the Yakama Nation but with plots of land not entirely within its jurisdiction — sought a search warrant for the home. But a tribal officer who responded to a request for backup arrived and objected.
There wasn’t enough reason to obtain a search warrant, the tribal officer wrote later. And even if there were, only tribal police had the authority to enter the home, since it was owned by a tribal member.
The Toppenish officer disagreed and got a warrant from a Yakima County Superior Court judge — a move that spurred the tribe to file a lawsuit over reservation jurisdictions.
This week, the Ninth Circuit Court of Appeals sided with the Toppenish police, Yakima County prosecuting attorney and state authorities against the tribe in a decision that could carry heavy consequences for policing on the Yakama Nation, and perhaps other reservations in the western U.S. within the appeals court’s sprawling region.
The central dispute: Do tribal officers, or those working for a law enforcement agency that operates under state law oversee an investigation on reservation land if nontribal people are involved — whether as a suspect or a victim?
It’s a question that has arisen time and again for tribes, especially those in the handful of states like Washington that assumed authority in the 1950s and 1960s over many cases once handled by federal or tribal officials.
As challenging as it is for officers, it is especially problematic for citizens in times of crisis or other emergencies, Yakama Nation police Lt. Jeff Chumley said earlier this year. “It also makes it very difficult for our people, our citizens, to have a clear view of who has jurisdiction,” he said in January.
A Seattle Times report in February outlined concerns of residents and tribal leaders about the fractured system and questions about authority. Amid confusion and disagreements over jurisdiction, for example, the Washington State Patrol (WSP) suspended its patrols in April 2016 on more than 50 miles of Highway 97 and other routes through the reservation, citing liability concerns.
The WSP still has not resumed those patrols but will soon after receiving special certifications just last week from the federal Bureau of Indian Affairs for policing on the reservation, according to a WSP spokesman.
On the Yakama Nation, the mix of law enforcement authorities and laws mean an emergency call from one property is the responsibility of the sheriff or local police, while another nearby is handled by tribal police or federal authorities, depending on the seriousness of the crime and whether the victim and suspect are Native American.
“Nowhere else in the United States do we have this patchwork of jurisdiction,” said Tim Purdon, who oversaw criminal cases in Indian Country as a former U.S. attorney in North Dakota under the Obama administration. “These added hurdles to investigation of violent crimes; they only result in less safe communities. That’s not at all a good situation.”
For the Yakama, the decision is a major setback in their attempt to assert more authority, which tribal leaders have pushed for years to regain, especially when their own people are involved.
They argue that, under a proclamation Gov. Jay Inslee issued in 2014, the state had largely given up its authority over cases where a tribal member is a party, whether as a suspect or victim.
“Unfortunately that intent was not upheld,” said Delano Saluskin, chairman of the Yakama Nation Tribal Council, in a written statement. “We are disappointed with the decision.”
Inslee, however, said that his intent had not been to give up jurisdiction in cases involving people who are not tribal members.
The tribe’s position put it at odds with the state, county prosecutor and local police departments for the towns, like Toppenish, that dot their reservation, even as the area has seen a recent crime wave, including the killings of five people in White Swan in June 2019.
In his opinion, Judge Ryan D. Nelson wrote for the court that the state has jurisdiction over crimes on the reservation when a person who is not Native American is either a suspect or the victim.
Much of Nelson’s opinion focused on the intent of Inslee’s original proclamation.
In the case of the bait car investigation, the people under investigation were Native American, according to police reports. The “victim” was actually local police who borrowed the bait car from the sheriff to use in their investigation into an uptick in vehicle thefts.
According to a Toppenish police report, a woman who was a passenger in the 1997 Honda Accord and a tribal member was taken to the police station for questioning. The police had been seeking other suspects and wanted to know whether the property was serving as a “chop shop,” or a place where stolen vehicles are stripped for parts and sold.
Officers found six key fobs for cars, and IDs and credit cards believed to belong to people whose cars had been broken into, Toppenish police said.
The Toppenish police chief did not respond to a phone message left with his office seeking comment.
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