Fleeing East from Indian Country: State V. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit

By Naud, Kevin | Washington Law Review, December 2012 | Go to article overview

Fleeing East from Indian Country: State V. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit


Naud, Kevin, Washington Law Review


Abstract:

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.

INTRODUCTION

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Fleeing East from Indian Country: State V. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.