By Gabriel S. Galanda
Polarity accurately describes the historic legal relationship between the State of Washington and those tribal governments indigenous to our state. Tribal sovereignty, i.e., "the right of reservation Indians to make their own laws and be ruled by them,"1 has always been antipodal to state sovereignty as a matter of Anglo-American jurisprudence. So much so, that by the late 1800s nascent states were deemed the Tribes' "deadliest enemies" by none other than the U.S. Supreme Court.2 And over the ensuing century, tribal and state governments waged a zero-sum battle over who would regulate Indian Country.
But today, in what is the era of Indian self-determination as a matter of both federal policy and tribal behavior, tribal/state opposition is waning. As noted by leading Indian law scholar, Professor Matthew T. Fletcher:
States and tribes are beginning to smooth over the rough edges of federal Indian law - jurisdictional confusion, historical animosity between states and Indian tribes, competition between sovereigns for tax revenue, economic development opportunities, and regulatory authority - through cooperative agreements. In effect, a new political relationship is springing up all over the nation between states, local units of government, and Indian tribes.3
Washington tribal/state relations and the new political relationship between our state's sovereigns are indeed evolving. Still, based on the Washington Supreme Court's three most recent Indian law decisions, more progress is required to achieve tribal/state congruity throughout official state policy. In particular, the increasingly cooperative relationship between the Tribes and State must be better appreciated when the Court next evaluates regulatory power or adjudicatory jurisdiction in Washington Indian Country.
In what is perhaps the most influential decision in all of federal Indian law, Worcester v. Georgia, U.S. Supreme Court Chief Justice John Marshall declared that state law "can have no force" within an Indian nation's territorial jurisdiction.4 That proclamation most certainly polarized tribes and states throughout the country, including Washington, from the moment it became a state in 1889 and for the next 100 years.
Throughout the first half of the 20th Century, millions of acres of land were stolen from Washington Indians.5 Indian women here were sterilized through the 1930s.6 And until modern times, tribal children were removed from their parents, taken out of state and washed of their cultural identity, before being used for manual labor in "Indian schools."7
If such forces of overt "assimilation" and "termination" policy toward Indians were not enough to permanently polarize Indian and non-Indian society, tribal/state governmental relations were deeply wedged in 1963, when Washington unilaterally assumed full criminal jurisdiction and partial civil jurisdiction over Indians on remaining Indian lands pursuant to federal Public Law 280. University of Washington Professor Robert T. Anderson attributes the State's grab of tribal inherent authority to "local racism and jurisdictional jealousy."8
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