[No. 80653-5. En Banc.]
Argued May 12, 2009. Decided September 17, 2009.
William J. Johnston, for petitioner.
David S. McEachran, Prosecuting Attorney, and Ann L. Stodola, Deputy, for respondent.
En Banc
¶1 SANDERS, J. -- A Lummi Nation tribal police officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. Did the officer have authority to continue pursuing this vehicle beyond the reservation's borders and then detain the non-Indian driver until authorities with jurisdiction to arrest for DUI FACTS ¶2 Officer Mike McSwain of the Lummi Nation Police Department (LNPD) was patrolling the Lummi reservation sometime after 1:30 a.m. on August 10, 2005 when he observed a vehicle driving toward him on Slater Road with its high beams glaring. Officer McSwain flashed his headlights to remind the driver (later identified as Loretta Eriksen) to dim the brights, but the driver did not comply. Officer McSwain slowed his patrol car to prepare to turn around and pursue the driver. ¶3 After traveling roughly a quarter mile, the cars turned into a gas station located off the Lummi reservation. The second car broke off, went around the west side of the s tation, and disappeared from Officer McSwain's line of sight. Officer McSwain pulled behind the first car and observed the passenger jump from the vehicle and run to the driver's side, while the driver--soon to be identified as Eriksen--hopped over the center console and into the passenger's seat. Officer McSwain commanded Eriksen and the passenger to stop moving and put their hands where he could see them. Then he called for backup. Two LNPD patrol cars arrived less than five minutes later. ¶4 Officer McSwain then asked Eriksen why she had jumped into the passenger seat. Eriksen said--in slightly slurred speech--she had not been driving, so Officer McSwain warned her about making false statements. He also observed her eyes were watery and bloodshot and she smelled strongly of alcohol. Officer McSwain determined neither woman was a tribal member so he contacted the Whatcom County Sheriff's Office, which is standard procedure for stops involving nontribal members. ¶5 Officer McSwain asked Eriksen to step out of her car and follow him to his patrol vehicle. He noticed "she was having difficulty keeping her balance and walking" and "she began to sway back and forth [as he] started to explain to her what was going on . . . ." CP at 32 (Tr. (Jan. 26, 2006) at 17). Officer McSwain advised Eriksen that she would be detained but not arrested and a sheriff's deputy would make a final determination. McSwain did not administer any sobriety tests and testified Eriksen would not take any tests. He then handcuffed Eriksen and placed her in the back of his patrol car until the Whatcom County sheriff's deputy arrived. Officer McSwain remained on the scene until the deputy arrested Eriksen for DUI. ¶6 The trial court convicted Eriksen of DUI and denied her motion for reconsideration. The court reasoned the Lummi Nation's inherent sovereign power--which includes enforcing internal criminal laws--authorizes tribal police to continue pursuing offenders who drive off the reservation. The court concluded it would be inconsistent with this power, and Washington's policy of authorizing officers to cross jurisdictional boundaries when in "fresh pursuit," for "somebody [to] just cross the line and be scot-free." Verbatim Report of Proceedings (VRP) (Aug. 20, 2007) at 40-41. We granted Eriksen's motion for discretionary review to resolve this issue of first impression. STANDARD OF REVIEW [1] ¶7 Jurisdictional disputes on Indian reservations involve overlapping federal, state, and tribal jurisdiction. State v. Schmuck, 121 Wn.2d 373, 380, 850 P.2d 1332 (1993). [2-5] ¶8 Whether a tribe has authority to stop and detain an individual necessarily turns on an analysis of the limited sovereignty the tribe retains. Schmuck, 121 Wn.2d at 380. Tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975). "Intrinsic in this sovereignty is the power of a tribe to create and administer a criminal justice system." Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975). Tribal sovereignty is preserved unless Congress's intent to the contrary is clear and unambiguous. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980). Treaties, agreements, and statutes must be liberally construed in favor of the tribe, and all ambiguities are to be resolved in its favor. Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S. Ct. 672, 87 L. Ed. 877 (1943) ("[T]reaties are construed more liberally than private agreements . . . . Especially is this true in interpreting treaties and agreements with the Indians[, which are to be construed] 'in a spirit which generously recognizes the full obligation of this nation to protect the interests of [the Indians].'" (quoting Tulee v. Washington, 315 U.S. 681, 684-85, 62 S. Ct. 862, 86 L. Ed. 1115 (1942))). ANALYSIS ¶9 The parties agree on appeal that the incident began on the Lummi Reservation; therefore the narrow issue before us is whether Officer McSwain had authority to stop a non-Indian driver, who pulled over after she crossed the reservation's boundary, and then detain her until a deputy with jurisdiction to arrest arrived. I. Lummi Nation Has Sovereign Authority and United States Treaty Obligation To Stop and Detain Lawbreakers on the Reservation ¶10 Tribal police officers are often first responders when problems arise on reservations, but it is not always apparent during the investigation stage whether the tribe possesses jurisdiction over the offender. ¶11 This court--along with the Ninth and Eighth Circuit Courts of Appeals--has also held tribal police have inherent authority to stop non-Indians who violate the law on public roads within the reservation and detain them until they can be turned over to state authorities. See, e.g., Schmuck, 121 Wn.2d at 396; Ortiz-Barraza, 512 F.2d at 1180 (holding tribal officer was authorized to stop and search non-Indian driver on the reservation); United States v. Terry, 400 F.3d 575, 579-80 (8th Cir. 2005) (upholding overnight detention of a non-Indian in a tribal jail when state law enforcement officials could not take custody until the next morning). ¶12 As in Schmuck the Lummi Nation does not assert authority to arrest and prosecute Eriksen for DUI but merely claims the power to stop and detain her until she could be turned over to Whatcom County officials. Schmuck, 121 Wn.2d at 379. "The Nation is asserting a sovereign interest in the act of stopping and detaining any person who violates the law while on the Lummi Reservation, even if the tribal police officer cannot complete the stop until after the motorist has driven beyond the Reservation boundaries." Br. of Amicus Curiae Lummi Nation at 5. [6-8] ¶13 Absent a controlling congressional statute, tribes retain jurisdiction over events in Indian country: "Perhaps the most basic principle of all Indian law, supported by a host of decisions, is that those powers lawfully vested in an Indian nation are not, in general, delegated powers granted by express acts of Congress, but rather 'inherent powers of a limited sovereignty which has never been extinguished.'" COHEN'S HANDBOOK OF FEDERAL INDIAN LAW $ 4.01[1][a] at 206 (2005) (quoting United States v. Wheeler, 435 U.S. 313, 322-23, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978)). Therefore Congress may constitutionally execute provisions of a treaty even if so doing affects state interests. Antoine v. Washington, 420 U.S. 194, 203-05, 95 S. Ct. 944, 43 L. Ed. 2d 129 (1975) (absence of State as party to hunting and fishing agreements did not detract from validity). Congress's authority over Indian affairs is "plenary and exclusive," which refers to supremacy of federal over state law. Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979). In Schmuck we recognized that tribes retain their existing sovereign powers until Congress acts. 121 Wn.2d at 380. [9] ¶14 In 1855 the Lummi Nation and the United States entered into the Treaty of Point Elliott, which established the Lummi Reservation. 12 Stat. 927 (1855). [10-13] ¶15 As sovereigns, tribes exercise at least concurrent jurisdiction over all crimes committed by Indians in Indian country. Wheeler, 435 U.S. at 328-29. Tribes have an inherent power of self-governance, which includes the power to prescribe and enforce internal criminal laws. Schmuck, 121 Wn.2d at 381-82 (quoting Wheeler, 435 U.S. at 326). "Given the inherent mobility of a driving offense, the fresh pursuit doctrine is a necessary means of cooperatively enforcing traffic laws to ensure public safety." Vance v. Dep't of Licensing, 116 Wn. App. 412, 416, 65 P.3d 668 (2003) (emphasis added) (citing City of Tacoma v. Durham, 95 Wn. App. 876, 881, 978 P.2d 514 (1999)). It follows the fresh pursuit doctrine must apply to tribes because the doctrine is a necessary means of actualizing the tribe's inherent power to enforce its internal laws. The "power to regulate is only meaningful when combined with the power to enforce." Settler v. Lameer, 507 F.2d 231, 238 (9th Cir. 1974); accord Schmuck, 121 Wn.2d at 382 (holding "[f]undamental to enforcing any traffic code is the authority by tribal officers to stop vehicles violating that code . . ."). ¶16 In Schmuck we looked to Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981) to determine whether a tribe had inherent sovereign power over non-Indians. 121 Wn.2d at 391. Montana held the Crow Tribe could not prohibit fishing and hunting by non-Indians because those activities did not "so threaten the Tribe's political or economic security as to justify tribal regulation"; the non-Indians owned the land in fee and were fishing from land owned by the State. Montana, 450 U.S. at 566-67. The Court asserted as a general proposition the "inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe" but also announced two exceptions to this proposition: A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Id. at 565-66 (citations omitted). Strate, 520 U.S. at 456, held this test also applies to a tribe's inherent authority over nonmembers' conduct on state highways on the reservation. ¶17 Applying Montana to this case, we conclude pursuing those who break traffic laws on the reservation bears a "clear relationship to tribal self-government or internal relations" and is therefore part of the Lummi Nation's inherent sovereign authority. Montana, 450 U.S. at 564-65. This inherent power to pursue lawbreakers does not reach "'beyond what is necessary to protect tribal self-government or to control internal relations.'" Strate, 520 U.S. at 459 (quoting Montana, 450 U.S. at 564). To the contrary, the right to pursue and detain those who break civil and criminal traffic laws on the reservation "is needed to preserve 'the right of reservation Indians to make their own laws and be ruled by them.'" Id. (emphasis added) (quoting Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959)). "The alternative would put tribal officers in the impossible position of being unable to stop any driver for fear they would make an unlawful stop of a non-Indian. Such a result would seriously undercut the Tribe's ability to enforce tribal law and would render the traffic code virtually meaningless." Schmuck, 121 Wn.2d at 383. Such a situation clearly fits within the second exception in Montana because it would threaten the health and welfare of the tribe: Allowing a known drunk driver to get back in his or her car, careen off down the road, and possibly kill or injure Indians or non-Indians would certainly be detrimental to the health or welfare of the tribe. Id. at 391. Here, Officer McSwain suspected Eriksen was driving under the influence after she drifted across the center line and came within two feet of his patrol car. McSwain testified that he ascertained Eriksen was a non-Indian only after he stopped her because he had no way of learning such information without stopping her. In Schmuck we discuss the absurd result of holding tribal officers need to release all non-Indian offenders: "To hold that an Indian police officer may stop offenders but upon determining they are non-Indians must let them go, would be to subvert a substantial function of Indian police authorities and produce a ludicrous state of affairs which would permit non-Indians to act unlawfully, with impunity, on Indian lands." Id. at 392 (quoting State v. Ryder, 98 N.M. 453, 456, 649 P.2d 756, aff'd, 98 N.M. 316, 648 P.2d 774 (1982)). Indeed, if we were to hold Officer McSwain and other officers cannot detain non-Indians who elude their authority by crossing reservation boundaries, we would enable similarly absurd results. Although Schmuck involved a DUI detention within the reservation, the court contemplated the possibility of drivers simply "refus[ing] to stop if pulled over by a tribal officer" when it rejected equating the tribal officer's authority to that of a citizen's arrest. ¶18 The superior court correctly extended Schmuck to the facts at hand; if non-Indians could elude tribal officers' inherent authority to stop and detain simply by beating them across reservation boundaries, it would effectively gut this court's holding. To determine whether tribes retain their sovereign powers, we must "look[ ] to the character of the power that the tribe seeks to exercise, not merely the location of events." John v. Baker, 982 P.2d 738, 752 (Alaska 1999). II. Police Have Well-Established Authority To Continue "Fresh Pursuit" onto Reservations and across Jurisdictional Boundaries ¶19 Division Three of the Court of Appeals, the Lummi Nation, and the Ninth Circuit have all allowed nontribal law enforcement to cross jurisdictional boundaries into Indian reservations when in "fresh pursuit" of suspects. Waters held Omak Police Department officers had authority under the fresh pursuit doctrine to arrest an enrolled member of the Colville Confederated Tribes on the Colville Reservation. 93 Wn. App. at 977-78. The officers had seen Thomas Waters's car peel away from a stoplight and cross the center line toward police. Id. at 973. When the officers activated their vehicle's emergency lights, Waters led them on a high-speed chase and finally stopped on tribal reservation property, where they arrested him for felony eluding, DWI (driving while intoxicated), resisting arrest, and driving with a suspended license. ¶20 Under the doctrine of "hot pursuit," the Ninth Circuit upheld the jurisdiction of a sheriff's deputy who followed a tribal member who had been "tailgating" the deputy's marked patrol car on a state highway in Indian country. United States v. Patch, 114 F.3d 131, 132-34 (9th Cir.), cert. denied, 522 U.S. 983 (1997). Taylor Patch, a member of the Colorado River Indian Tribe, argued the deputy was trespassing when he followed him to his home in Indian country. The court held the deputy had observed Patch's reckless driving and had authority to conduct a Terry ¶21 The Lummi Tribal Court also recognized the authority of a Whatcom County sheriff's deputy to come onto the reservation in pursuit of a tribal member who allegedly stole from a convenience store outside the reservation. Lummi Nation v. Scarborough, No. 2008-CRCO-2084, slip op. at 1-4 (Jan. 5, 2009). ¶22 The doctrine of fresh pursuit has also arisen in cross-jurisdictional cases across national borders. ¶23 In sum, the doctrine of "fresh pursuit" authorizes nontribal police to cross jurisdictional boundaries into Indian country; the same policy justifying this practice applies to tribal police departments as well. III. Washington Mutual Aid Peace Officers Powers Act Authorizes Tribal Police Departments To Continue "Fresh Pursuit" across Jurisdictional Boundaries [14-16] ¶24 In addition to the Lummi Nation's inherent authority to enforce its laws, which necessitates authority to continue the "fresh pursuit" of suspects, Washington state law also grants tribal police departments the power to continue pursuing beyond their jurisdiction "[i]n response to an emergency involving an immediate threat to human life or property" or when in "fresh pursuit." RCW 10.93.070(2), (6). As aforementioned fresh pursuit is a common law and statutory exception to territorial jurisdiction allowing law enforcement to pursue suspects across jurisdictional boundaries. ¶25 Until the legislature passed the Washington Mutual Aid Peace Officers Powers Act of 1985, chapter 10.93 RCW, peace officers had no authority to arrest offenders outside their municipality's geographic boundary. See, e.g., City of Wenatchee v. Durham, 43 Wn. App. 547, 549, 718 P.2d 819 (1986). A Seattle peace officer, for example, could not have made an arrest in Tacoma. chapter 10.93 RCW modified these "artificial barriers to mutual aid and cooperative enforcement of the laws . . . ," RCW 10.93.001(2), by empowering "general authority Washington peace officer[s]" to exercise authority outside their jurisdictions "[i]n response to an emergency involving an immediate threat to human life or property" or "[w]hen . . . in fresh pursuit, as defined in RCW 10.93.120." RCW 10.93.070(2), (6). ¶26 Eriksen argues RCW 10.93.120 prevents tribal officers from engaging in a "fresh pursuit" off the reservation for traffic infractions or crimes committed on the reservation. Pet. for Review at 4. She points to RCW 10.93.120(1) to argue the doctrine applies only to peace officers with authority to make an arrest and here, the tribal officer was clear he had no authority to arrest because Eriksen was non-Indian. This argument is not well-founded because RCW 10.93.120(1) must not be read in isolation from the rest of the Washington Mutual Aid Peace Officers Powers Act of 1985--especially the legislature's statement of intent and construction in RCW 10.93.001. Indeed, RCW 10.93.120(1) refers to "[a]ny peace officer who has authority under Washington law to make an arrest . . . ." (Emphasis added.) But this subsection governs "fresh pursuit" arrests. It does not follow that RCW 10.93.120(1)--which outlines when an arresting officer may proceed in fresh pursuit--precludes officers from completing stops initiated on the reservation. Moreover, it is RCW 10.93.120(2) that contains the actual definition of "fresh pursuit" to which the operative section, RCW 10.93.070(6), refers. ¶27 This definition of "fresh pursuit"--in RCW 10.93.120(2)--broadens the common-law doctrine, which previously applied only to felonies, to include all traffic or criminal law violations: "The term 'fresh pursuit,' as used in this chapter, includes, without limitation, fresh pursuit as defined by the common law." (Emphasis added.) The common law definition employed five criteria for analysis of fresh pursuit, none of which included authority to arrest. ¶28 Most importantly, RCW 10.93.120(1) is part of the Washington Mutual Aid Peace Officers Powers Act of 1985; it therefore must be "liberally construed to effectuate the intent of the legislature to modify current restrictions upon the limited territorial and enforcement authority of general authority peace officers and to effectuate mutual aid among agencies." RCW 10.93.001(3) (emphasis added). The act was passed to allow courts to consider "'the Legislature's overall intent to use practical considerations in deciding whether a particular arrest across jurisdictional lines was reasonable.'" Vance, 116 Wn. App. at 416 (emphasis added) (quoting Durham, 95 Wn. App. at 881). ¶29 RCW 10.93.070(6) is the section of the act which authorizes all "general authority Washington peace officer[s] [to] enforce the traffic or criminal law[ ] . . . [w]hen the officer is in fresh pursuit, as defined in RCW 10.93.120." (Emphasis added.) The issue is whether the LNPD falls within the definition of "general authority Washington law enforcement agency" in RCW 10.93.020, not whether its officers have power to arrest. any agency, department, or division of a municipal corporation, [or] political subdivision, or other unit of local government of this state, and any agency, department, or division of state government, having as its primary function the detection and apprehension of persons committing infractions or violating the traffic or criminal laws in general . . . . RCW 10.93.020(1) (emphasis added). While this statute is not unambiguous, the Lummi Nation--like all federally recognized tribes--is unquestionably a political entity. Chief Justice Marshall classified Indian tribes as "domestic dependent nations" whose "relation to the United States resembles that of a ward to his guardian," Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L. Ed. 25 (1831), and the Supreme Court has consistently recognized Indian tribes as "political communities." McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 168, 174, 93 S. Ct. 1257, 36 L. Ed. 2d 129 (1973) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L. Ed. 483 (1832)). But see Yukon-Kuskokwim Health Corp. v. Nat'l Labor Relations Bd., 234 F.3d 714, 344 U.S. App. D.C. 133 (2000) (holding the National Labor Relations Board did not act arbitrarily in determining exemption from coverage for states or political subdivisions did not apply to tribes with respect to activities conducted off-reservations). Moreover, the LNPD's primary function is to detect and apprehend Indians who violate the law on the reservation and to detect and apprehend non-Indians who violate the law on the reservation and then turn them over to local authorities. CONSTITUTION AND BYLAWS OF THE LUMMI TRIBE OF THE LUMMI RESERVATION, art. VI, $ 1; TREATY OF POINT ELLIOTT art. 9, 12 Stat. 927 ("[T]he said tribes agree not to shelter or conceal offenders . . . but to deliver them up to the authorities for trial." (emphasis added)). ¶30 Any interpretation of the Washington Mutual Aid Peace Officers Powers Act of 1985 that would limit the Lummi Nation's tribal sovereignty must be construed strictly: When we are faced with these two possible constructions [of a statute], our choice between them must be dictated by a principle deeply rooted in this Court's Indian jurisprudence: "[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269, 112 S. Ct. 683, 116 L. Ed. 2d 687 (1992) (second alteration in original) (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 85 L. Ed. 2d 753 (1985)). Under such a construction--which resolves ambiguities in RCW 10.93.020(1) and (3) in favor of the Lummi Nation--the LNPD is a "general authority Washington law enforcement agency" and therefore its officers may engage in "fresh pursuit" as defined in RCW 10.93.120(2). McClanahan, 411 U.S. at 174 ("'[d]oubtful expressions are to be resolved in favor [of the Indian tribe]'") (alteration in original) (quoting Carpenter v. Shaw, 280 U.S. 363, 367, 50 S. Ct. 121, 74 L. Ed. 478 (1930)); Blackfeet Tribe, 471 U.S. at 766 ("[T]he standard principles of statutory construction do not have their usual force in cases involving Indian law."). ¶31 The LNPD is the primary responder to all dispatch calls within the Lummi Reservation, regardless of Indian status. Br. of Amicus Curiae Lummi Nation, App. I (Aff. of Chief Gary James) at A-3. ¶32 In sum, LNPD officers may exercise authority outside their jurisdictions when continuing in "fresh pursuit" of a suspect because these officers are general authority Washington peace officers within the meaning of the Washington Mutual Aid Peace Officers Powers Act of 1985. RCW 10.93.070, .001; accord 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE $ 3108, at 49 n.2 (3d ed. Supp. 2008-09) (referring to "tribal police officer[s]" as "general authority Washington peace officer[s] with authority to enforce the criminal and traffic laws of the state"). CONCLUSION ¶33 The Lummi Nation Police Department has authority under the Lummi Nation's sovereign authority and under the Washington Mutual Aid Peace Officers Powers Act of 1985 to enforce its laws by continuing the "fresh pursuit" of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive. ¶34 We affirm the trial court. ALEXANDER, C.J., and C. JOHNSON, MADSEN, CHAMBERS, OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS JJ., concur.