Fleeing East from Indian Country: State v. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-jurisdictional Fresh Pursuit

CitationVol. 87 No. 4
Publication year2021


Kevin Naud, Jr.

Abstract: In State v. Eriksen, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court's reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute as a limit on tribal authority to enforce laws and incorrectly dismissed the validity of cross-jurisdictional fresh pursuit of a non-felon. Eriksen guts the ability of tribes to enforce their sovereign right to uphold the law and safety on the reservation. To reinforce tribal power, Congress should enact legislation similar to the "Duro Fix," a statutory recognition of inherent sovereign authority.


On September 1, 2011, the Washington State Supreme Court decided State v. Eriksen (Eriksen III)(fn1) Writing for the majority, Justice Fairhurst held that a tribal police officer lacked the inherent sovereign authority(fn2) to stop and detain a non-Indian defendant outside the tribe's territorial jurisdiction, even though pursuit began within the reservation.(fn3) Eriksen III mandates that tribal officers who are not certified to enforce Washington law under RCW 10.92.020 release non-Indian law violators who have fled the reservation with officers in fresh pursuit.(fn4) In effect, Eriksen III permits non-Indians to act with impunity on tribal land as long as they can successfully evade tribal officers.(fn5)

The Eriksen III holding will harm tribal interests. Tribes allow a large number of non-Indian visitors to enter their reservations on a daily basis to further economic development. Twenty-two of Washington's twenty-nine federally-recognized tribes operate casinos.(fn6) There are also other retail establishments located within reservations that draw visitors. The level of non-Indian traffic is extraordinary. The Tulalip reservation alone receives 42,000 guests on a weekday and over 60,000 on a weekend day.(fn7) In the face of this level of ingress, tribes without state approval to enforce state law are now limited in their ability to ensure health and safety on the reservation.

This unpalatable result should not stand because Eriksen III flies in the face of established law. Part I of this Comment provides an overview of the federal government's "plenary and exclusive" authority to define inherent sovereign authority. Part II outlines the legal analysis the Washington State Supreme Court used in recognizing tribal power to stop and detain non-Indians who violate the law on the reservation in State v. Schmuck(fn8) Part III demonstrates that Washington statutes have removed jurisdictional barriers from officers pursuing law violators. The final background section, Part IV, lays out Eriksen III's procedural history and legal arguments. This Comment argues in Part V that the Eriksen III decision is a misunderstanding of the analysis for inherent sovereign authority, a misapplication of the canons of construction for tribal treaties and statutes, a misinterpretation of the statute authorizing certification of tribal officers to enforce state law, a misappropriation of precedents and statutes regarding barriers to fresh pursuit, and a misalignment with public policy. To limit the precedential effect of Eriksen III, this Comment suggests in Part VI that Congress should use its exclusive power to define inherent sovereign authority and statutorily recognize the right of tribal officers to protect safety on their reservation through cross-jurisdictional fresh pursuit of non-Indians who break the law on tribal land.


Congress has the sole discretion to define tribal authority and to delegate jurisdiction within Indian Country.(fn9) Congress's supremacy in Indian affairs is founded in the Indian Commerce Clause(fn10) and the Treaty Clause(fn11) of the Constitution.(fn12) On this basis, the United States Supreme Court has stated repeatedly that Congress's power is "plenary and exclusive" in Indian matters.(fn13) The Court has also stated that Congress's termination of the practice of entering treaties with tribes(fn14) does not diminish its legislative authority.(fn15) This conclusion rests in part upon the historical view that Indian relations are not domestic issues, but fall under the military and foreign policy powers "necessarily inherent in any Federal Government."(fn16) Therefore, defining a tribe's inherent sovereign authority is a federal question, not a state issue.(fn17) In United States v. Wheeler,(fn18) the Court reiterated that a state's interests are not a factor in determining the extent of tribal inherent sovereign authority: The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.(fn19)

In this vein, the Court once held that "the laws of [a State] can have no force" within a reservation.(fn20) While this bar on state power is no longer binding, a state's interests still cannot dominate a tribe's interest in maintaining sovereignty over its members and its territory, or usurp the power of Congress to define tribal authority.(fn21)

As part of its purview, Congress can delegate its authority to regulate a tribe.(fn22) For instance, Congress has ceded control over criminal and civil jurisdiction in Indian Country to a few states.(fn23) In 1953, Congress mandated that six states assume jurisdiction over Indian Country(fn24) under Public Law 280.(fn25) Congress also authorized any other state to assume the same jurisdiction.(fn26) With the law, Congress hoped to both combat perceived lawlessness on reservations and diminish tribal dependence on federal resources.(fn27) Initially, Public Law 280 did not require states to seek permission from tribes before assuming jurisdiction.(fn28) Congress amended Public Law 280 in 1968 so that any subsequent assertion of jurisdiction over Indian Country required assent from the relevant tribes, but Congress did not require states to retroactively seek permission from tribes already under state authority.(fn29) However, Congress did expressly authorize retrocession of jurisdiction back to the federal government.(fn30) In total, state jurisdiction over Indian affairs within Indian Country requires Congress's permission.(fn31)

Prior to the amendment, in 1963, Washington assumed jurisdiction over Indian Country within the state.(fn32) Washington still holds this jurisdictional power but affords tribes the option to request retrocession.(fn33)


As stated in Wheeler, tribes retain "those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."(fn34) In 1993, the Washington State Supreme Court decided State v. Schmuck(fn35) In that case, the question before the Court was whether a tribal officer(fn36) had the inherent authority to stop and detain a non-Indian driving on a public road.(fn37) To answer this question, the Court undertook the analysis the U.S. Supreme Court mandated in Wheeler(fn38)

A. The Federal Government Permits Tribes to Exercise Jurisdiction over Non-Members and Non-Indians Under Certain Circumstances

In theory, the colonial process and westward expansion deprived tribes of their external sovereignty but left internal sovereignty intact.(fn39) Their internal authority is an aspect of sovereignty that has never been extinguished.(fn40) For instance, tribes have the inherent right to govern themselves and their territory.(fn41) However, due to the diminishment of their external sovereignty, tribes do not have criminal jurisdiction over non-Indians and only possess civil jurisdiction where there is a sufficient nexus between the action and the tribe's internal interests.(fn42)

Notwithstanding the power to create and enforce an internal code,(fn43) tribes do not have criminal jurisdiction over non- Indians(fn44) The U.S. Supreme Court expounded on this principle in three cases: Oliphant v. Suquamish Indian Tribe,(fn45) Wheeler,(fn46) and Duro v. Reina(fn47) In Oliphant, the Court concluded there was no evidence indicating federal recognition of tribal jurisdiction over non-members in either judicial precedents or legislative history.(fn48) As the Court made explicit in Wheeler, a tribe's diminished status meant it retained only jurisdiction over...

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