Colville Indian Reservation

Federal Court Dismisses Colville Tribe from Non-Indian Claims to Indian Allotments (Sorta)

Matthew L.M. Fletcher1 Comment

Here are the materials in this update to Grondal v. United States (E.D. Wash.):

021612 Order

Colville Motion

Plaintiffs’ Opposition

Wapato Heritage Opposition

Colville Reply

An excerpt from the court’s order:

Plaintiffs filed their Complaint on January 21, 2009. Plaintiffs have acquired memberships in and are tenants/occupants of the Mill Bay Resort, a campground located on Lake Chelan in Chelan County, Washington. The Mill Bay Resort exists on real property known as Moses Allotment No.8, also known as Indian Allotment 151-MA-8 (“MA_8”), which consists of approximately 174.26 acres on the shores of Lake Chelan. MA-8 is part of an original allotment authorized under the Moses Agreement of July 7, 1883 as ratified by 23 Stat. 79-80, July 4, 1884 and conveyed to Wapato John through two trust patents. The history of the creation ofMA-8 and other Moses Agreement allotments has been discussed elsewhere, including in this court’s decision on summary judgment (ECF No. 144), in Wapato Heritage, LLC v. U.S., 637 F.3d 1033 (9th Cir. 2011), and in U.S. v. La Chappelle, 81 F. 152 (C.C. 12 Wash. 1897), United States v. Moore, 161 F. 513 (9th Cir. 1908), and Starr v. Long Jim, 227 13 U.S. 613 (1913).

Drug Cartels on Washington Reservations

Adrea Korthase

An excerpt from The Seattle Times:

In the backcountry of the Yakama Indian Reservation, a handful of law-enforcement officers spent part of last summer searching for two things: marijuana and the people growing it.

Tribal police and officers from the Drug Enforcement Administration (DEA) were acting on a tip about a vast marijuana plantation in the forested highlands of the sprawling reservation. Such tips often yielded abandoned fields of cannabis, but none of the culprits.

But the team hit pay dirt last August by uncovering a grow operation with 8,850 marijuana plants, as well as the suspected grower, an armed Mexican national in camouflage clothing who federal prosecutors say had been tending the plot for almost four months.

Tribal reservations, some with hundreds of square miles of rugged backcountry, have become the front line for law-enforcement eradication of marijuana grow operations in Washington, says Rich Wiley, who heads the State Patrol’s Narcotics Division. Growers are targeting the outskirts of Indian country for their marijuana farms, knowing tribal lands are sparsely populated and less policed, he said. Continue reading →

Ninth Circuit Affirms Indian Country Capital Murder Conviction

Matthew L.M. Fletcher1 Comment

Kinda, somewhat interesting case arising on the Colville Reservation, where the defendant wasn’t indicted for more than 10 years after the crime — United States v. Gallaher. Here is the court’s take:

The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe’s governing body. See 18 U.S.C. § 3598. In 2005, a federal grand jury indicted defendant-appellant James H. Gallaher, Jr., for first degree murder, more than 14 years after he killed Edwin Pooler on the Colville Indian Reservation in eastern Washington. Because the Confederated Tribes of the Colville Reservation have not reinstated the death penalty, Gallaher argues that he is not subject to the death penalty and thus the five year federal statute of limitations for noncapital crimes applies to his offense. See id. §§ 3281-82. We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case.

There was a dissenter (Judge Tashima), who argued:

In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of “Indian country” from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty. See 18 U.S.C. § 3598. The Confederated Tribes of the Colville Reservation has not elected to make the death penalty available for first degree murder on the Colville Reservation. Thus, capital punishment has been clearly eliminated for the crime for which Gallaher was indicted. Because Gallaher has not been indicted for an “offense punishable by death,” see 18 U.S.C. § 3281, the five-year statute of limitations applies, see 18 U.S.C. § 3282.

Here are the materials:

Gallaher Opening Brief

US Appellee Brief in Gallaher

Gallaher Reply Brief

Federal Court Dismisses Most Claims by Non-Indians over Indian Leases; Demands Reason Why U.S. Did Not Represent Indian Allotment Owners

Matthew L.M. Fletcher2 Comments

Here is the court order in Grondal v. United States — Grondal DCT Order. Non-Indian plaintiffs sued to prevent federal government from evicting them from Indian trust allotments after expiration/cancellation of federal leases.

Previous orders in a related case (Wapato Heritage LLC v. United States, where the U.S. sued to evict the leaseholders, are here.

Importantly, the district court ordered the United States to show cause as to why it did not enter an appearance on behalf of unrepresented Indian allotment owners in accordance with 25 U.S.C. 175. The court noted:

None of the individually named Defendants who have ownership interests in the real property known as MA-8 appeared. The court notes that the United States has not entered an appearance on behalf of any of the named individual Indian landowners. The court does not know why such an appearance has not been filed since the United States actually granted the Master Lease (as opposed to simply approving it) on behalf of at least certain landowners pursuant to its authority under 25 C.F.R. § 162.601. More importantly, 25 U.S.C. § 175 provides that “[i]n all States and Territories where there are reservations or allotted Indians the United States district attorney shall represent them in all suits at law and in equity,” although the statute is not mandatory. Siniscal v. United States, 208 F.2d 406, 410 (9th Cir.1953) (holding that 25 U.S.C.A. § 175 is not mandatory and that its purpose “is no more than to insure the Indians adequate representation in suits to which they might be parties.”) Unlike this case, in Siniscal, the Indians named were being sued as individuals and “not with reference to any right in which the United States … is in the position of trustee or guardian.” Id. At least one court has recognized where there is a possible conflict of interest between the Indians and the United States, it may be proper for the Indians to be represented by private counsel. State of New Mexico v. Aamodt, 537 F.2d 1102, 23 Fed. R. Serv.2d 810 (10th Cir.1976). The United States has not provided any reason for its failure to enter an appearance on behalf of the un-represented individual Indian landowners to make certain they have adequate representation in this action.

It appears the U.S., like most, has assumed that Section 175 is a virtual dead letter. Maybe not….