§ 8.07 INDIAN LAW

• Jurisdiction: Washington

§ 8.07 INDIAN LAW

In 1963, pursuant to federal authority conferred by Public Law 280, Pub. L. No. 83-280, 67 Stat. 588 (1953), the state of Washington enacted legislation in which the state assumed jurisdiction over Indians and Indian lands within the state. RCW 37.12.010. The assumption of jurisdiction by Washington was upheld in Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979), against challenges that it (1) violated the Washington Constitution, (2) was impermissible under federal law because it was only a "partial assumption," and (3) violated equal protection.

There have been few Washington cases, however, adjudicating whether Washington's community property law applies to Indians on reservation lands as a result of that assumption of jurisdiction. In Makah Indian Tribe v. Clallam County, 73 Wn.2d 677, 440 P.2d 442 (1968), the court assumed that state community property law applied to personal property of an Indian wife and non-Indian husband living on a reservation, but it concluded that the characterization was irrelevant to the issue at hand—whether the county could assess a tax on that property (it could not).

The Washington Supreme Court confirmed the application of Washington's community property laws to Indian couples, as a matter of state law, in In re Estate of Cross, 126 Wn.2d 43, 48-49, 891 P.2d 26 (1995). In that case, the federal tax court certified the following question of state law to the Washington Supreme Court:

Does Washington State community property law (Wash. Rev. Code 26.16 et seq.) apply to determine property rights as between an enrolled member of the Puyallup Tribe and his non-enrolled wife with respect to unincorporated business income derived from the operation of a smokeshop on the Puyallup Indian Reservation by the enrolled member?

Id. At 44. The Supreme Court—relying on the Yakima Indian Nation decision and the legislative text and history for RCW 37.12.010—held that Washington community property law did apply, but it added an important caveat. The taxpayer argued that "various federal statutes, the Medicine Creek treaty of 1854, the oregon donation act of 1848, and article 4, section 1 of the United States Constitution" precluded the application of "Washington community property law [to] characterize the unincorporated business income earned [here]." Estate of Cross, 126 Wn.2d at 49. The state Supreme Court responded: "Because these arguments are premised under federal law and go beyond the specific question certified to this court, we do not decide those issues." Id.; see also COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 6.04[3][b][iv], at 549 n.122 (Nell Jessup Newton ed., 2012) [hereinafter COHEN] (questioning validity of Estate of Cross); Gary C. Randall & Katti Testad, Community Property Rules or American Indian Tribal Law—Which Prevails?, 31 IDAHO L. REV. 1071 (1995) (written while Estate of Cross was pending before Washington Supreme Court).

One matter the court declined to address in Estate of Cross was the problem posed by the fact that the income at issue in Cross had been earned by the taxpayer's husband from the operation of a smoke shop on Indian trust land, held in trust for her husband by the federal government. Neither did it mention that when Washington assumed jurisdiction over Indians and Indian lands as to domestic relations, its assumption of jurisdiction included an important exception: the state did not assume jurisdiction over Indian lands held in trust or lands the alienation of which was restricted by the federal government ("Indian trust lands"):

Nothing in this chapter shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights and tidelands, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall

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