Tribal penalty doesn’t pre-empt state charge, court rules

Herald Staff and Wire Services

OLYMPIA – A conviction in tribal court does not protect a Tulalip Indian from state poaching charges, the state Supreme Court unanimously ruled on Thursday.

Anthony Moses Sr., a Tulalip tribal member who lives on the reservation near Marysville, was charged in Cowlitz County, accused of poaching several elk on private property in February 1998. The elk were killed on posted private property more than 100 miles south of the tribe’s reservation.

“Most of the elk survived until the next morning, and they were in pretty bad agony,” said Pam Loginsky, a staff attorney with the Washington Association of Prosecuting Attorneys, who argued the case for the state.

Thursday’s ruling did not come as a surprise, said John McCoy, director of governmental affairs for the Tulalip Tribes.

“The court has had a history of not ruling in favor of tribes,” he said.

“In the overall bigger picture, we should get full faith and credit in our tribal court system. We don’t believe there should be double jeopardy for anybody.”

The Cowlitz County court convicted Moses in 1999 of hunting big game out of season, shooting from a public road, wastage of cow elk and hunting with artificial light. He was sentenced to 75 days in jail and fined $11,210.

But the Tulalip Tribes had brought similar charges in the meantime. Moses pleaded guilty, was fined $2,500 and had his tribal hunting privileges revoked for one year, all before the state conviction.

He sought dismissal of the state case – including the larger fine – citing the legal principle of double jeopardy, which generally protects people from being prosecuted for the same crime by two different governments.

Moses’ lawyer, John Hays, argued that the double prosecution violated a 1998 decision by the court that overturned the state drunken driving conviction of two U.S. Navy sailors who had already been punished under military law.

While acknowledging tribal sovereignty, the high court upheld the lower courts’ rejection of Hays’ dismissal motion, saying the state’s double jeopardy law doesn’t specifically include tribal courts in the same way it recognizes the federal government.

“Washington’s double jeopardy statute will not shield tribal members from Washington prosecutions where their actions violate the laws of both sovereigns,” Justice Charles Johnson wrote.

McCoy said the tribes will review Thursday’s decision, but an appeal would need to come from Moses and his private attorney.

Telephone calls to Hays and the tribe’s attorneys were not immediately returned Thursday.

The court’s decision prevents tribal members from seeking refuge in tribal courts, where penalties for crimes as serious as first-degree murder are limited by federal law to a year in jail, Loginsky said.

Loginsky said dual prosecutions are unusual because prosecutors typically hash out jurisdictional issues before charges are brought.

Justices didn’t consider the other issue in the case – whether the tribe had jurisdiction over a crime so far from its land.

Tribes have jurisdiction over their members who hunt on land where they have treaty rights, but the Tulalips’ treaty area is confined to parts of King, Pierce, Snohomish and Skagit counties, well north of Cowlitz County, said Capt. Murray Schlenker of the Washington Department of Fish and Wildlife enforcement division.

McCoy said the boundaries are up to interpretation.

– Herald writer Kate Reardon contributed to this report.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Local News

Traffic moves across the US 2 trestle between Everett and Lake Stevens on Wednesday, Oct. 9, 2024. (Olivia Vanni / The Herald)
$25M has been spent studying US 2 trestle. Are we any closer to a fix?

Over the past decade, half a dozen studies have examined the infamous arterial connecting Everett and Lake Stevens.

The former Waits Motel property along 13th Street and Lombard Avenue on Thursday, Oct. 17, 2024 in Everett, Washington. (Olivia Vanni / The Herald)
Everett takes steps to redevelop Waits Motel property

This month, the city presented plans to sell the property to the highest bidder, with conditions. Some council members opposed.

Logo for news use featuring the municipality of Snohomish in Snohomish County, Washington. 220118
Charges: Suspect shot man 6 times south of Snohomish

On Friday, prosecutors charged two men in connection with the Sept. 14 killing of Joshua Wilson, 29.

From left to right, Rick Larsen and Cody Hart.
‘MAGA Republican’ looks to unseat Everett’s Larsen in Congress

The candidates to represent Everett in Congress differ on hot button issues including abortion and gun control.

The Arlington City Council will discuss asking voters to consider annexing its fire department to North County Fire & EMS. (North County Fire)
North County EMS is underfunded and understaffed, workers say

The fire agency that serves about 45,000 people has lacked emergency medical leadership for six months.

From left to right, Lt. Cmdr. Lindsay Evans and Lt. Serena Wileman. (Photos provided by the U.S. Navy)
Navy crash victims from Whidbey, both 31, identified

On Tuesday afternoon, Lt. Cmdr. Lyndsay “Miley” Evans and Lt. Serena “Dug” Wileman crashed near Mount Rainier.

Wildfire smoke builds over Darrington on Friday, Sept. 11, 2020 in Darrington, Wa. (Olivia Vanni / The Herald)
Darrington, Marysville tackle wood smoke to address poor air quality

Officials have launched local programs to help. But residents may need more support.

The Everett Herald’s newest environmental issues reporter Eliza Aronson. (Olivia Vanni / The Herald)
The Herald welcomes new environment reporter

Eliza Aronson joined the Everett newsroom this week.

Participants in the Guinness World Record Beard Chain Attempt lineup to get their beards clipped together to be measured at Pacific Rim Park on Friday, Nov. 1, 2024 in Everett, Washington. (Olivia Vanni / The Herald)
Country’s longest beards descend on Everett in pursuit of record

The grizzled group of 40 didn’t reach the mark they wanted Friday, but they had a good time anyway.

Matt Saldivar, a lead mechanic at Boeing for 5 years, smiles while picketing with other Boeing workers on strike on Monday, Sept. 16, 2024 in Everett, Washington. (Olivia Vanni / The Herald)
Boeing: Strike vote will have no effect on planned layoffs

The company said notices to 17,000 workers will be delivered this month, with their last day set for Jan. 17.

The Washington state Capitol building in February. (Bill Lucia / Washington State Standard)
Voters are about to remake WA Legislature. Here are 7 races to watch.

Democrats hope to grow their majorities in the state House and Senate. The path may be through a local race.

Authorities rescued a woman in her 70s from Lake Stevens on Friday morning. (Photo provided by Snohomish Regional Fire and Rescue)
Police rescue woman from submerged car in Lake Stevens

When authorities found the woman, she had no pulse. But paramedics were able to regain a pulse and she was taken to the hospital.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.