Fleeing East from Indian Country: State V. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit
Naud, Kevin, Washington Law Review
In State v. Eriken, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court's reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute as a limit on tribal authority to enforce laws and incorrectly dismissed the validity of cross-jurisdictional fresh pursuit of a non-felon. Eriksen guts the ability of tribes to enforce their sovereign right to uphold the law and safety on the reservation. To reinforce tribal power, Congress should enact legislation similar to the "Duro Fix," a statutory recognition of inherent sovereign authority.
On September 1, 201 1, the Washington State Supreme Court decided State v. Eriksen (Eriksen III).1 Writing for the majority, Justice Fairhurst held that a tribal police officer lacked the inherent sovereign authority2 to stop and detain a non-Indian defendant outside the tribe's territorial jurisdiction, even though pursuit began within the reservation. Eriksen III mandates that tribal officers who are not certified to enforce Washington law under RCW 10.92.020 release non-Indian law violators who have fled the reservation with officers in fresh pursuit.4 In effect, Eriksen III permits non-Indians to act with impunity on tribal land as long as they can successfully evade tribal officers.5
The Eriksen III holding will harm tribal interests. Tribes allow a large number of non-Indian visitors to enter their reservations on a daily basis to further economic development. Twenty-two of Washington's twentynine federally-recognized tribes operate casinos.6 There are also other retail establishments located within reservations that draw visitors. The level of non-Indian traffic is extraordinary. The Tulalip reservation alone receives 42,000 guests on a weekday and over 60,000 on a weekend day.7 In the face of this level of ingress, tribes without state approval to enforce state law are now limited in their ability to ensure health and safety on the reservation.
This unpalatable result should not stand because Eriksen III flies in the face of established law. Part I of this Comment provides an overview of the federal government's "plenary and exclusive" authority to define inherent sovereign authority. Part II outlines the legal analysis the Washington State Supreme Court used in recognizing tribal power to stop and detain non-Indians who violate the law on the reservation in State v. Schmuck.9 Part III demonstrates that Washington statutes have removed jurisdictional barriers from officers pursuing law violators. The final background section, Part IV, lays out Eriksen Iirs procedural history and legal arguments. This Comment argues in Part V that the Eriksen III decision is a misunderstanding of the analysis for inherent sovereign authority, a misapplication of the canons of construction for tribal treaties and statutes, a misinterpretation of the statute authorizing certification of tribal officers to enforce state law, a misappropriation of precedents and statutes regarding barriers to fresh pursuit, and a misalignment with public policy. To limit the precedential effect of Eriksen III, this Comment suggests in Part VI that Congress should use its exclusive power to define inherent sovereign authority and statutorily recognize the right of tribal officers to protect safety on their reservation through cross-jurisdictional fresh pursuit of non-Indians who break the law on tribal land.
I. CONGRESS HAS "EXCLUSIVE AND PLENARY AUTHORITY" TO DEFINE A TRIBE'S INHERENT SOVEREIGN AUTHORITY AND DELEGATE JURISDICTION OVER TRIBAL RESERVATIONS
Congress has the sole discretion to define tribal authority and to delegate jurisdiction within Indian Country. …