BILL REQ. #:  S-4470.1 

READ FIRST TIME 02/03/12.   

     AN ACT Relating to state jurisdiction over Indian tribes and Indian country; amending RCW 37.12.010; adding new sections to chapter 37.12 RCW; creating a new section; and repealing RCW 37.12.050.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that:
     (1) A 1953 federal act, Public Law 280, 83rd Congress, 1st Session, required certain states to assume jurisdiction over criminal offenses and civil causes of action involving Indians in Indian country, and authorized other states, including Washington, to assume that jurisdiction if they opted to do so. The federal act provided that generally applicable state criminal and civil laws could "have the same force and effect within such Indian country as they have elsewhere within the state."
     (2) A 1957 Washington state act, chapter 240, Laws of 1957, directed the governor to issue a proclamation assuming state criminal and civil jurisdiction in accordance with the 1953 federal act over the lands of any Indian tribe when the governor received a resolution from the "tribal council or other governing body . . . expressing its desire that its people and lands be subject to the criminal or civil jurisdiction of the state of Washington to the extent authorized by federal law . . ." Under the 1957 state act, the state assumed jurisdiction "to the same extent" that it exercises civil and criminal jurisdiction, or both, elsewhere within the state. Pursuant to the 1957 state act, Governor Albert D. Rosellini issued proclamations assuming state jurisdiction over eleven tribes.
     (3) A 1963 Washington state act, chapter 36, Laws of 1963, provided that the state assumed jurisdiction outright, without tribal consent, over "Indians and Indian territory, reservations, country, and lands within the state," but, on trust or restricted lands "within an established Indian reservation," limited that jurisdiction to eight subject areas: Compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and operation of motor vehicles upon public streets, alleys, roads, and highways. The 1963 state act also provided that Indian tribes that petitioned for, were granted and became subject to state jurisdiction under the 1957 state act remained subject to state civil and criminal jurisdiction under that act, which was incorporated, with modifications, into the 1963 state act. Pursuant to the 1963 state act, the state assumed limited jurisdiction over all other Indian country in the state.
     (4) A 1968 federal act, Public Law 90-284 (25 U.S.C. Sec. 1323), repealed the 1953 federal act, but also provided that "such repeal shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal." The 1968 federal act also provided that no state could assume jurisdiction in the future without tribal consent and authorized the federal government "to accept a retrocession by any state of all or any measure of the criminal or civil jurisdiction, or both, acquired by the state" pursuant to the 1953 federal act and other federal law.
     (5) Beginning in 1968, the federal government accepted offers by Washington to partially retrocede criminal jurisdiction the state assumed over seven tribes. The federal government accepted an offer regarding one tribe in 1968, and another offer regarding a different tribe in 1971. Later, beginning in 1986, retrocessions have followed a process specified in a 1986 state act, amended in later years, enabling seven named tribes to request the governor to approve partial retrocession of state criminal jurisdiction, contingent upon acceptance of a state offer by the federal government. Washington governors have approved requests presented by five of the tribes named in the 1986 state act for partial retrocession of state criminal jurisdiction, and the federal government has accepted these offers.
     (6) The state should enact a new provision facilitating partial or complete retrocession of state jurisdiction over Indians and Indian country.

NEW SECTION.  Sec. 2   A new section is added to chapter 37.12 RCW to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Civil retrocession" means the state's act of returning to the federal government all or part of the civil jurisdiction acquired over Indians and Indian country under federal Public Law 280, Act of August 15, 1953, 67 Stat. 588 (codified as amended at 18 U.S.C. Sec. 1162, 25 U.S.C. Secs. 1321-1326, and 28 U.S.C. Sec. 1360);
     (2) "Criminal retrocession" means the state's act of returning to the federal government all or part of the criminal jurisdiction acquired over Indians and Indian country under federal Public Law 280, Act of August 15, 1953, 67 Stat. 588 (codified as amended at 18 U.S.C. Sec. 1162, 25 U.S.C. Secs. 1321-1326, and 28 U.S.C. Sec. 1360);
     (3) "Indian country" means:
     (a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
     (b) All dependent Indian communities with the borders of the United States whether in the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and
     (c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same; and
     (4) "Indian tribe" means any federally recognized or federally acknowledged Indian tribe, nation, community, band, or group.

Sec. 3   RCW 37.12.010 and 1963 c 36 s 1 are each amended to read as follows:
     (1) On March 13, 1963, the state of Washington ((hereby obligates and binds itself to assume)) assumed criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands ((within this)) in the state in accordance with the ((consent of the United States given by the)) federal act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session)((, but such)). This assumption of jurisdiction ((shall)) does not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, ((unless the provisions of RCW 37.12.021 have been invoked,)) except for the following:
     (((1))) (a) Compulsory school attendance;
     (((2))) (b) Public assistance;
     (((3))) (c) Domestic relations;
     (((4))) (d) Mental illness;
     (((5))) (e) Juvenile delinquency;
     (((6))) (f) Adoption proceedings;
     (((7))) (g) Dependent children; and
     (((8))) (h) Operation of motor vehicles upon the public streets, alleys, roads and highways((: PROVIDED FURTHER, That)).
     (2) Notwithstanding subsection (1) of this section, Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to ((this)) chapter 240, Laws of 1957 on or before March 13, 1963 ((shall remain)) are subject to state civil and criminal jurisdiction as ((if chapter 36, Laws of 1963 had not been enacted)) provided in RCW 37.12.021, unless the federal government has accepted a retrocession.
     (3) As provided in 25 U.S.C. Sec. 1323, the state may request the federal government to accept a retrocession of all or any measure of the criminal or civil jurisdiction, or both, acquired by the state pursuant to the federal act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session). When considering whether to present such a request to the federal government, the state must comply with the procedure specified in section 5 of this act.

NEW SECTION.  Sec. 4   RCW 37.12.050 (State's jurisdiction limited by federal law) and 1957 c 240 s 5 are each repealed.

NEW SECTION.  Sec. 5   A new section is added to chapter 37.12 RCW to read as follows:
     (1) Upon the effective date of this section, the process by which the state may retrocede to the United States all or part of the civil and/or criminal jurisdiction acquired by the state over an Indian tribe and the Indian country of the tribe must be accomplished in accordance with the requirements of this section. However, this section does not affect the validity of any retrocession procedure commenced under RCW 37.12.100 through 37.12.140 prior to the effective date of this section.
     (2) To initiate civil and/or criminal retrocession, the duly authorized governing body of an Indian tribe must submit a retrocession resolution to the governor accompanied by information about the tribe's plan regarding its exercise of jurisdiction following the proposed retrocession. The retrocession resolution must express the Indian tribe's desire for retrocession of all or part of the civil and/or criminal jurisdiction acquired by the state pursuant to this chapter over the Indian country occupied by such Indian tribe and over the members of such Indian tribe. Before an Indian tribe submits a retrocession resolution to the governor, the tribe and affected municipalities are encouraged to adopt interlocal agreements, or other collaborative arrangements, to ensure that the best interests of the tribe and surrounding communities are served by the proposed retrocession.
     (3) Upon receiving a retrocession resolution, the governor must, within ninety days, convene a government-to-government meeting with either the governing body of the Indian tribe or duly authorized tribal representatives to consider the proposed retrocession.
     (4) Within one year of the receipt of an Indian tribe's retrocession resolution, the governor must issue a formal, written proclamation approving or denying the proposed retrocession, either in whole or in part. This one-year deadline may be extended by mutual consent of the Indian tribe and the governor. In addition, either the Indian tribe or the governor may extend the deadline once for up to six months. Within ten days of issuing a proclamation approving a proposed retrocession, the governor must submit the proclamation to the federal government in accordance with requirements for federal approval of the proposed retrocession. In the event that the governor denies all or part of the proposed retrocession, reasons for the denial must be provided to the Indian tribe in writing.
     (5) Within one hundred twenty days of the governor's receipt of an Indian tribe's retrocession resolution, but prior to the governor's issuance of a proclamation approving or denying the proposed retrocession, designated standing committees of the state house of representatives and senate may conduct public hearings to consider the proposed retrocession. The majority leader of the senate must designate the senate standing committee and the speaker of the house of representatives must designate the house standing committee. Following such public hearings, the designated standing committees may submit advisory recommendations and/or comments to the governor regarding the proposed retrocession. In no event are such recommendations binding on the governor or otherwise of legal effect.
     (6) A proposed retrocession approved in a gubernatorial proclamation does not become effective until it is accepted in accordance with procedures established by the United States for accepting a proposed retrocession of state jurisdiction.
     (7) Notwithstanding the state's retrocession of criminal and/or civil jurisdiction under this section, the state must retain the civil jurisdiction necessary for the civil commitment of sexually violent predators pursuant to chapter 71.09 RCW.
     (8) Any Indian tribe that has commenced but not completed the retrocession procedure authorized in RCW 37.12.100 through 37.12.140 may request retrocession under this section in lieu of completing that procedure. Any Indian tribe that has completed the retrocession procedure authorized in RCW 37.12.100 through 37.12.140 may use the process authorized in this section to request retrocession of jurisdiction retained by the state under RCW 37.12.120. The provisions of RCW 37.12.120 are not applicable to a civil and/or criminal retrocession that is accomplished in accordance with the requirements of this section.
     (9) An action or proceeding which has been filed with any court or agency of the state or local government preceding the effective date of retrocession of jurisdiction under this section shall not abate by reason of the retrocession or determination of jurisdiction.