        FILE
        IN CLERICS O,ICI!      _
IIJIABE COURT, IWECFW...-mN
       DA     JU.L 2 {~ 2013




                     PREME COURT OF THE STATE OF WASHINGTON

                                          )
  STATE OF WASHINGTON,                    )
                                          )            No. 87376-3
                            Respondent,   )
                                          )            ENBANC
  v.                                      )
                                          )            Filed:
                                                                -----------------
  MICHAEL ALLEN CLARK,                    )
                                          )
                            Petitioner.   )
  _______________________)

            FAIRHURST, J.-This case presents a question about the State's ability to

  search tribal trust land for a crime committed on a reservation over which the State

  has jurisdiction. While the State lacks explicit statutory authorization to issue

  search warrants for tribal lands, federal law has not preempted the State's ability to

  do so, and the Confederated Tribes of the Colville Reservation (Colville Tribes)

  had not, at the time of this search, utilized their inherent sovereignty to regulate the

  manner in which state agents could execute state search warrants on the Colville

  Indian Reservation. This absence of preemption or tribal regulation allowed the

  State to search Michael Allen Clark's property. Consequently, we affirm Clark's




                                              1
State v. Clark, No. 87376-3

conviction for theft because the trial court properly denied his motion to suppress

evidence gathered on tribal trust land without a tribal warrant.

      I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      On October 13, 2009, a break-in occurred at a facility owned by the Cascade

and Columbia River Railroad (CCRR). The facility sits on fee land within both the

city of Omak and the Colville Indian Reservation.

      An Omak detective later arrested Clark, an enrolled member of the Colville

Tribes, at his home for a different crime. Clark resided on tribal trust land also

located within both the city of Omak and the Colville Indian Reservation. Based on

information gathered at the scene of this arrest, the detective sought a search

warrant for Clark's residence to look for evidence related to the CCRR break-in. 1

Though attempting to search tribal trust land, the detective sought the warrant from

the Okanogan County District Court (OCDC) instead of the Colville Tribal Court

or the United States District Court for the Eastern District of Washington. The

OCDC issued the search warrant and police seized evidence related to the break-in.

The State charged Clark with burglary in the second degree, theft in the first

degree, and malicious mischief in the third degree.




       1
        Clark does not assign error to the determination that probable cause supported the
decision to issue the warrant to search his residence.
                                            2
State v. Clark, No. 87376-3

      Clark moved to suppress the seized evidence, argumg that the Colville

Tribal Court had jurisdiction over his property, not the OCDC, rendering the

warrant and search invalid. The trial court denied this motion.

      The jury convicted Clark only of theft in the first degree. Clark appealed,

assigning error to the trial court's denial of his motion to suppress? The Court of

Appeals, Division Three, rejected Clark's claim in a published opinion. State v.

Clark, 167 Wn. App. 667, 274 P.3d 1058 (2012).

       Clark petitioned for review, which we granted. State v. Clark, 175 Wn.2d

1005, 285 P.3d 885 (2012). In addition to briefing from the parties, we have

received amicus briefs from the Washington Association of Prosecuting Attorneys,

the American Civil Liberties Union of Washington, and the Colville Tribes.

                               II.    ISSUES PRESENTED

       Does the State's jurisdiction over crimes committed on fee land within an

Indian reservation allow it to issue and execute a valid state search warrant for

tribal trust property?

                                     III.    ANALYSIS

       Clark argues that the trial court erred by denying his motion to suppress the

evidence that police gathered at his residence. He contends that the tribal court had

       2
         Clark also assigned error to the trial court's refusal to reconfigure the jury to include
members of the Colville Tribes living on the Colville Indian Reservation. The Court of Appeals
rejected this argument, State v. Clark, 167 Wn. App. 667, 673-75,274 P.3d 1058 (2012), and we
denied review of this issue.
                                                3
State v. Clark, No. 87376-3

jurisdiction over his property and therefore the State could not authorize or execute

the search without obtaining, or attempting to obtain, the permission of the tribal

court. Suppl. Br. ofPet'r at 2.

      A warrant issued without authority is inherently void and cannot authorize a

search. Bosteder v. City of Renton, 155 Wn.2d 18, 29, 117 P.3d 316 (2005),

superseded by statute on other grounds, Wright v. Terrell, 162 Wn.2d 192, 170

P.3d 570 (2007). Generally, a search conducted without authorization by a warrant

violates the Fourth Amendment to the United States Constitution. 3' 4 State v.

Garcia-Sa/gada, 170 Wn.2d 176, 184, 240 P.3d 153 (2010). The remedy for a

Fourth Amendment violation is the exclusion of the illegally obtained evidence.

State v. Eserjose, 171 Wn.2d 907, 913 n.5, 259 P.3d 172 (2011).

       Washington's statutory authority over reservation lands derives from a

federal delegation of jurisdiction. Pub. L. No. 83-280, 67 Stat. 588 (1953)

(hereinafter PL-280); Washington v. Confederated Bands & Tribes of the Yakima

Indian Nation, 439 U.S. 463, 470-71, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979).



       3
          Clark does not specify the constitutional basis for his argument. We presume he claims
the search violated the Fourth Amendment to the United States Constitution due to his references
to the "Constitution" and federal search and seizure cases. Suppl. Br. of Pet'r at 2.
        4
          The Fourth Amendment provides:
        The right of the people to be secure in their persons, houses, papers, and effects,
        against unreasonable searches and seizures, shall not be violated, and no warrants
        shall issue, but upon probable cause, supported by oath or affirmation, and
        particularly describing the place to be searched, and the persons or things to be
        seized.
                                               4
State v. Clark, No. 87376-3

Washington accepted only a limited portion of the jurisdiction offered by

Congress,

      obligat[ing] and bind[ing] itself to assume criminal and civil
      jurisdiction over Indians and Indian territory, reservations, country,
      and lands within this state in accordance with the consent of the
      United States given by the act of August 15, 1953 (Public Law 280,
      83rd Congress, 1st Session), but such assumption of jurisdiction shall
      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) Compulsory school attendance;
             (2) Public assistance;
             (3) Domestic relations;
             (4) Mental illness;
             ( 5) Juvenile delinquency;
             (6) Adoption proceedings;
             (7) Dependent children; and
             (8) Operation of motor vehicles upon the public streets, alleys,
      roads, and highways: PROVIDED FURTHER, That Indian tribes that
      petitioned for, were granted and became subject to state jurisdiction
      pursuant to this chapter on or before March 13, 1963 shall remain
      subject to state civil and criminal jurisdiction as if chapter 36, Laws of
      1963 had not been enacted.

RCW 37.12.010 (reviser's note omitted).

      Under RCW 37.12.010, the State has jurisdiction over crimes committed on

fee lands within the borders of a reservation or on trust or allotment lands outside a

reservation's borders. State v. Pierre, 66 Wn.2d 703, 704, 404 P.2d 788 (1965);

State v. Cooper, 130 Wn.2d 770, 775-76, 928 P.2d 406 (1996). The State lacks

jurisdiction over crimes committed on trust or allotment land within reservation

                                          5
State v. Clark, No. 87376-3

borders. RCW 37.12.010. The CCRR theft occurred on fee land within the

reservation's borders; consequently, RCW 37.12.010 provides the State with

jurisdiction over Clark's crime.

      While RCW 37.12.010 provides the State with criminal jurisdiction over the

CCRR break-in, it does not explicitly authorize the State to issue and execute a

search warrant for tribal trust land pursuant to this jurisdiction. See id. (no explicit

provision allowing state courts to issue search warrants for tribal lands to

investigate crimes for which the State has jurisdiction); State v. Matthews, 133

Idaho 300, 986 P.2d 323, 335 (1999) (reasoning that a similar, limited assumption

of jurisdiction under PL-280 did not provide Idaho with the explicit statutory

power to authorize searches of Indian country for crimes over which it had

criminal jurisdiction).

       However, the absence of explicit statutory authorization does not mean that

the OCDC lacked the authority to issue a search warrant for trust property or that

the Omak police lacked the authority to execute this warrant. The State may exert

its authority on reservation lands, even without statutory authorization, subject to

certain limitations. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141,

100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980); Powell v. Farris, 94 Wn.2d 782, 785-87,

620 P.2d 525 (1980). First, Congress' plenary power over tribal affairs allows it to

preempt the application of state law to tribal members or tribal lands. Bracker, 448

                                           6
State v. Clark, No. 87376-3

U.S. at 142; McClanahan v. State Tax Comm 'n, 411 U.S. 164, 172, 93 S. Ct. 1257,

36 L. Ed. 2d 129 (1973). Second, tribal sovereignty may also prevent the exertion

of state authority in Indian country. Bracker, 448 U.S. at 142 (citing United States

v. Mazurie, 419 U.S. 544, 557,95 S. Ct. 710,42 L. Ed. 2d 706 (1975)). Because of

this sovereignty, states may exert their authority over reservation lands only where

doing so does not undermine tribal self-governance by "infring[ing] 'on the right

of reservation Indians to make their own laws and be ruled by them."'

McClanahan, 411 U.S. at 179 (quoting Williams v. Lee, 358 U.S. 217, 220, 79 S.

Ct. 269,3 L. Ed. 2d 251 (1959)); Powell, 94 Wn.2d at 786-87.

       The first limitation, federal preemption, poses no barrier to the State's ability

to serve criminal process on a suspect or defendant on reservation lands. No

federal statute bars the State from doing so. Matthews, 986 P.2d at 337. Further, we

cannot say that Congress has shown any intent to prevent the states from serving

criminal process on reservations given PL-280's intent to devolve law enforcement

duties from the federal government to the states. Yakima Indian Nation, 439 U.S. at

498.

       However, Clark's appeal does implicate the second limitation on the State's

ability to exert its authority on reservation lands: tribal sovereignty. "[T]he

principle that Indians have the right to make their own laws and be governed by

them requires 'an accommodation between the interests of the Tribes and the

                                           7
State v. Clark, No. 87376-3

Federal Government, on the one hand, and those of the State, on the other."'

Nevada v. Hicks, 533 U.S. 353, 362, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001)

(quoting Washington v. Confederated Tribes of the Colville Indian Reservation,

447 U.S. 134, 156, 100 S. Ct. 2069, 65 L. Ed. 2d 10 (1980)). In the context of a

state's execution of criminal process on reservation lands, this accommodation

requires consideration of the jurisdiction associated with the location of the

criminal act and any governing tribal criminal procedures.Jd. at 361-65; Matthews,

986 P.2d at 337.

      The Supreme Court considered whether tribal sovereignty can prevent the

execution of state criminal process for suspected off-reservation crimes in Hicks.

The dispute in Hicks arose after Nevada game wardens searched Hicks' tribal

allotment land within the borders of the Fallon Paiute-Shoshone Reservation.

Nevada v. Hicks, 196 F.3d 1020, 1022 (9th Cir. 1999). Hicks was an enrolled

member of the tribe. Jd. The searches were part of an investigation into alleged

poaching occurring off the Fallon Paiute-Shoshone Reservation. Hicks, 533 U.S. at

356. The game wardens obtained state and tribal warrants and served the warrants

in the presence of tribal officers. Hicks, 196 F.3d at 1022-23. Hicks sued the state

of Nevada, the game wardens, the tribal court judge, and other tribal members in

tribal court for damages inflicted on his property during the searches. Hicks, 533




                                         8
State v. Clark, No. 87376-3

U.S. at 356. Nevada and the game wardens sought a judgment declaring that the

tribal court lacked jurisdiction. Id. at 357.

      The Supreme Court framed the issue before it as "whether a tribal court may

assert jurisdiction over civil claims against state officials who entered tribal land to

execute a search warrant against a tribe member suspected of having violated state

law outside the reservation." Id. at 355. The Court answered this jurisdictional

question by looking to whether inherent tribal sovereignty allowed the tribe to

regulate Nevada officials serving state criminal process or whether federal law

preempted Nevada's ability to do so. Id. at 357-58. The Court determined that

neither tribal sovereignty nor federal law prevented the State from serving criminal

process for an off-reservation crime after examining its precedent, the interests

involved, and federal law governing jurisdiction on Indian reservations. I d. at 360-

66.

       The parties and supporting amicus curiae disagree as to the applicability of

Hicks to Clark's appeal. The State and its supporting amicus curiae contend that

Hicks controls Clark's appeal. Clark and his supporting amicus curiae dismiss the

discussion of the execution of criminal process in Hicks as inapposite for several

reasons.

       Clark and his supporting amicus curiae first argue that the portion of Hicks

concerning the State's ability to execute criminal process on reservation lands is

                                                9
State v. Clark, No. 87376-3

dictum. This is incorrect. Because the Hicks Court relied on its discussion of tribal

sovereignty and federal preemption to reach its holding, this portion of Hicks is

binding law. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S. Ct. 1114,

134 L. Ed. 2d 252 (1996) ("When an opinion issues for the Court, it is not only the

result but also those portions of the opinion necessary to that result by which we

are bound."). Recognizing this, we have already cited Hicks approvingly when

affirming the State's ability to exert its authority on a tribal member living on

reservation lands for an off-reservation crime. State v. Cayenne, 165 Wn.2d 10, 14-

15, 195 P.3d 521 (2008) (affirming the State's ability to place sentencing

conditions on an Indian living on reservation lands for an off-reservation crime).

      Clark and his supporting amicus curiae also maintain that Hicks' discussion

of the State's ability to search reservation lands is dictum because it does not speak

for the Court. This is incorrect as well. Six members of the Court signed the

majority opinion in full; none of these justices withheld their signatures from part

II, the portion discussing the execution of the search warrants. Hicks, 533 U.S. at

354. While Justice Souter filed a concurring opinion signed by Justices Kennedy

and Thomas, these justices signed the majority opinion, and their concurrence

explicitly stated their agreement "with the Court's analysis as well as its

conclusion." Id. at 375 (Souter, J., concurring). Justice Ginsburg, who also signed

the majority, authored a concurrence as well. Id. at 386 (Ginsburg, J., concurring).

                                          10
State v. Clark, No. 87376-3

Her concurrence merely noted some of the issues left open by Hicks, none of

which is relevant to Clark's appeal. See id. (Ginsburg, J., concurring).

      Clark and his amicus curiae next contend that Hicks is distinguishable for

two reasons. First, they claim that Hicks presented the Court with a question about

extensions of tribal, not state, power. They therefore argue that it does not govern

Clark's appeal, which concerns the State's ability to extend its authority within a

reservation. Some courts have distinguished Hicks in this fashion. See, e.g., South

Dakota v. Cummings, 2004 SD 56, 679 N.W.2d 484, 487-89 (2004). But, by

approvmg of Hicks' reasoning in Cayenne, we have implicitly rejected the

argument that we may distinguish Hicks in this way.

      Finally, Clark and amicus curiae assert that Hicks is distinguishable because

the Nevada game wardens sought tribal permission to execute the warrants.

However, the Hicks Court rejected any attempt to require tribal permission,

referring to tribal warrants as "unnecessary." 533 U.S. at 372. Clark's argument

attaches constitutional significance to attempting to obtain a warrant, but asking

permission to search is irrelevant to the Fourth Amendment: either a warrant is

required or it is not. In any event, Clark appears to concede that the State could

have executed the warrant even if the Colville Tribes refused to grant a tribal

warrant by arguing that the State needed to at least attempt to obtain tribal

permission. Executing the state warrant on the reservation after the Colville Tribes

                                          11
State v. Clark, No. 87376-3

refused to consent would surely offend the Colville Tribes' sovereignty more than

searching without first seeking a tribal warrant.

      While we reject Clark's attempt to distinguish Hicks in the manner described

above, we do believe his case is distinguishable from Hicks and Cayenne. Clark's

crime occurred on the Colville Reservation; the suspected crime in Hicks and the

crime in Cayenne occurred off-reservation. This is significant because, unlike

crimes committed off-reservation, the State does not have exclusive jurisdiction

over crimes by Indians occurring on their reservations. "Indian tribes retain

'attributes of sovereignty over both their members and their territory."' Bracker,

448 U.S. at 142 (quoting Mazurie, 419 U.S. 544 at 557). PL-280 did not divest

tribes of this sovereignty when delegating federal jurisdiction to the states. State v.

Schmuck, 121 Wn.2d 373, 393-96, 850 P.2d 1332 (1993). Tribal sovereignty

provides a tribe with concurrent jurisdiction to punish its members for violations of

tribal law occurring on the tribe's reservation. Id. at 395 (citing Walker v. Rushing,

898 F.2d 672, 675 (8th Cir. 1990)). Clark is an enrolled member of the Colville

Tribes. His crime occurred on the Colville Indian Reservation, and the Colville

Tribal Code criminalizes theft. 5 The Colville Tribes and the State share concurrent

criminal jurisdiction. The shared criminal jurisdiction requires that the


       5
         "Any person who shall take the property of another person with intent to steal shall be
guilty of Theft." Colville Tribal Code 3-1-5 5, available at http://www.colvilletribes.com/3 _1_
criminal_code.php (last visited July 11, 2013).
                                              12
State v. Clark, No. 87376-3

accommodation between the interests of the State and the Colville Tribes take a

different form than the accommodation found in Hicks and Cayenne.

      Clark asks us to recognize the Colville Tribes' interest by adopting the test

used by the Supreme Court of Idaho in Matthews, which measures the

infringement of tribal sovereignty by looking to whether the State ignored

governing tribal procedures while serving criminal process. If the State did so, then

under Matthews the State undermined tribal self-government. The material facts of

Matthews are quite similar to those of Hicks: state police searched tribal property

for an off-reservation crime. Hicks' holding has superseded Matthews for this

particular factual scenario. However, we agree that Matthews serves as the starting

point for searches of reservation lands where Hicks is distinguishable, such as

where the crime occurs on reservation land over which the State has jurisdiction.

Consequently, we hold that the State does not infringe tribal sovereignty by

searching reservation lands unless it disregards tribal procedures governing the

execution of state criminal process. 6

       Clark argues that the State ignored a tribal provision governing the execution

of search warrants, thus infringing on the Colville Tribes' sovereignty. He points to


       6
        0ur holding is based upon accommodating the interests of the Colville Tribes with those
of the State. We have factored the Colville Tribes' statement that they have a strong interest in
ensuring that those who violate state law are punished into this accommodation. If the Colville
Tribes regulate the execution of state criminal process in a manner that meaningfully frustrates
the State's ability to punish those who break the law, a different accommodation will be
required.
                                               13
State v. Clark, No. 87376-3

a provision in the tribal code allowing the tribal court to issue search warrants and

contends the State's failure to utilize the provision undermined tribal self-

govemance. 7 However, no infringement of tribal sovereignty occurs unless the

tribal procedure governs the execution of state search warrants for crimes over

which the State has jurisdiction. Matthews, 986 P.2d at 337. The Colville Tribes

have offered a procedure that allows the State to obtain a tribal warrant in addition

to a state warrant. The provision does not govern the way the State executes its

own process. Indeed, the tribal warrant provision does not guarantee that the State

could execute its warrant as the tribal court could refuse to issue a tribal warrant.

Such refusal would meaningfully impair the State's ability to vindicate its criminal

interests and thus be inconsistent with the necessary accommodation between state

and tribal interests.

       Clark also points to a provision in the tribal code requiring tribal judicial

officers to cooperate with federal, state, county, and municipal officers, arguing

that the State violated the Colville Tribes' sovereignty by failing to utilize the

       7
       The tribal code provides:
      Every judge of the Court shall have authority to issue warrants for search and
      seizure of the premises and property of any person under the jurisdiction of the
      Court. However, no warrant of search and seizure shall be issued except upon a
      presentation of a written or oral complaint based upon probable cause, supported
      by oath or affirmation and charging the commission of an offense against the
      Tribes. No warrant for search and seizure shall be valid unless it contains the
      name or description of the person or property to be searched and seized and bears
      the signature of a judge of competent jurisdiction. Service of warrants of search
      and seizure shall be made by an officer.
Former Colville Tribal Code 2-1-35 (code in effect Oct. 13, 2009).
                                             14
State v. Clark, No. 87376-3

provision to obtain tribal permission to search. 8 This provisiOn also does not

regulate the State's ability to execute a warrant on tribal lands as it provides no

limits on, or guidance or procedures for, executing state warrants. Again, because

this provision did not regulate the State's ability to execute its warrant, the State

did not infringe the Colville Tribes' sovereignty with the search. 9

                                   IV.    CONCLUSION

       The State did not infringe the Colville Tribes' sovereignty by issuing and

executing a state warrant on Clark's residence on tribal trust land within the

borders of the Colville Indian Reservation because the Colville Tribes had not

exercised their sovereignty to regulate the State's ability to execute its process at

the time of the search. Because neither tribal sovereignty nor federal preemption

inhibited the State's ability to issue and serve the warrant, the State could validly

search Clark's property. The trial court properly denied Clark's motion to suppress

the evidence gathered through the search. We therefore affirm Clark's conviction

for theft in the first degree.


       8
         "All judges and personnel of the Tribal Court shall cooperate with all branches of the
[Bureau of Indian Affairs], with all federal, state, county and municipal agencies, when such
cooperation is consistent with this Code, but shall ever bear in mind that their primary
responsibility is to the people of the Tribes." Colville Tribal Code § 1-1-102, available at
http://www.colvilletribes.com/updatedcode.php (last visited July 11, 2013).
        9
          Clark does not argue that any treaty provision creates governing procedures for
executing a state search warrant on the Colville Indian Reservation. We do not foreclose the
possibility that the State would infringe tribal sovereignty by disregarding governing procedures
created by such provisions with our opinion today. See State ex rel. Merrill v. Turtle, 413 F.2d
683, 686 (9th Cir. 1969).
                                               15
State v. Clark, No. 87376-3




WE CONCUR:




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