indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Judge denies tribal jurisdiction over Indian descendant
Wednesday, December 8, 2004

Despite the U.S. Supreme Court's holding that tribes have sovereignty over all Indians, a federal judge has denied a Washington tribe criminal jurisdiction over a man who is Indian by blood but not enrolled in a tribe.

This past April, the high court affirmed that an act of Congress recognizes "the inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians." The decision in U.S. v. Lara was seen as a victory for tribal sovereignty.

But "all Indians" doesn't include Duane Garvais, a former Bureau of Indian Affairs criminal investigator who has been locked in a legal battle with the Spokane Tribe of Washington. In a ruling issued last Thursday, U.S. District Judge Justin Quackenbush said Garvais, 38, doesn't fall under the Lara case even though he has Indian blood and has identified himself as an Indian throughout his adult life.

"[T]he fact that a person has Indian blood alone does not create federal court jurisdiction over such a person ... or tribal court jurisdiction," Quackenbush wrote in the 12-page decision.

The ruling frees Garvais from charges filed against him in Spokane tribal court. He was accused of mishandling undercover drug funds but claims the case is politically motivated because he uncovered police corruption on the reservation.

No charges were ever filed but Garvais became the target of criticism from the Spokane Tribe, which passed a resolution requesting that he be transferred. The BIA ended up moving him to a couple of new positions before putting him on paid administrative leave in late 2002.

While on leave, he was arrested on the Colville Reservation under the Spokane Tribe's warrant. He immediately challenged the tribe's jurisdiction, saying he wasn't an "Indian" for purposes of federal law.

The challenge prompted the BIA to investigate why Garvais was granted Indian preference in his position as a criminal investigator. In February of this year, the agency removed him because he wasn't Indian or a member a federally recognized tribe. The decision was upheld by the Merit Systems Protection Board in July.

That wasn't the first time Garvais held himself out as an Indian. In 1986, he joined the U.S. Marine Corps at the age of 20 and was listed in documents as an Indian. After being discharged in 1990, he went to work for the Confederated Colville Tribes. He is 1/16th Colville but not eligible for enrollment because the tribe has a 1/4th blood quantum requirement.

Six years later, Garvais married, and eventually divorced, a Colville tribal member who said he participated in Indian activities, including pow-wows and sweat lodges. And as a documented Colville descendant, he received health care from the tribe even though he lacked membership.

But Quackenbush said all this information wasn't enough to show that Garvais is Indian for purposes of tribal court jurisdiction. "The evidence revealed that Garvais is not and never has been an enrolled member of any federally recognized tribe, nor has he ever been eligible for such enrollment," the decision said.

Although lack of tribal membership is not the only factor he considered, Quackenbush said it weighed heavily in the case. "Garvaisí connections to Indian life were for a limited duration," he wrote.

The case is one of several to challenge whether tribes have jurisdiction over all Indians as recognized by Congress through a piece of legislation commonly referred to as the "Duro fix." The act, passed in 1990, was a response to a Supreme Court decision that said tribes can only try and prosecute their own members.

The Lara decision affirmed that Congress has the power to define "metes and bounds of tribal sovereignty." But Indian legal experts say it only settled whether dual tribal and federal prosecution for the same crime violates the Double Jeopardy clause of the U.S. Constitution. Other cases, such as one involving American Indian Movement activist Russell Means, are based on Due Process and Equal Protection challenges.

As for Garvais, he has filed a civil rights lawsuit against the Spokane Tribe, which is pending before Quackenbush. A trial is set for August 2005.

Get the Decision:
In Re: Duane Garvais (December 2, 2004)

U.S. v. Lara Decision:
Syllabus | Opinion [Breyer] | Concurrence [Stevens] | Concurrence [Kennedy | Concurrence [Thomas] | Dissent [Souter]

Relevant Links:
Spokane Tribe - http://www.spokanetribe.com

Related Stories:
Tribal authority over all Indians still unsettled question (06/23)
Federal judge to hold hearing on man's 'Indian' status (05/20)
Supreme Court affirms tribal powers over all Indians (04/20)
Supreme Court hears tribal powers case (01/22)
BIA agent put on leave alleges retaliation (01/19)
Supreme Court case on jurisdiction attracts attention (01/08)
Bill's tribal jurisdiction provisions contested (07/31)
Tribes air homeland security concerns (7/30)
DOJ's Supreme Court brief backs sovereignty (7/30)
Tribal jurisdiction faces test before Supreme Court (07/03)
Homeland security push leaves tribes behind (05/12)
Inouye ties sovereignty to homeland security (02/25)
Native youth victimization outpaces nation (07/17)
Natives top violent crime list again (4/8)
One in 10 hate crimes target American Indians (10/1)
DOJ: American Indians highest injured (6/25)
DOJ: Violent crime plagues Indian Country (3/19)
Violence in Indian Country (6/15)

Copyright © 2000-2004 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Parents of Lakota 57 respond to not guilty verdict in Rapid City (9/2)
Grand Ronde Tribes to disenroll 86 descendants of treaty signer (9/2)
Lakota Country Times: New food bank on Pine Ridge Reservation (9/2)
Mark Trahant: FCC invents new law for tribal lands in Oklahoma (9/2)
Native Sun News Editorial: Republican attacks on Hillary Clinton (9/2)
Vi Waln: Rosebud Sioux Tribe needs to establish 'virtual' school (9/2)
Steven Newcomb: The religious basis of Doctrine of Discovery (9/2)
Frank Bibeau: Ojibwe people assert treaty rights in Minnesota (9/2)
Carly McIntosh: Feeling love from elders at naming ceremony (9/2)
Winnebago Tribe reports results of primary election for council (9/2)
President Obama set for visit to Native communities in Alaska (9/2)
Alaska Native students being left behind in their own backyard (9/2)
Opinion: Alaska will lose appeal in BIA land-into-trust lawsuit (9/2)
Native children being removed at alarming rates in Manitoba (9/2)
Crow Tribe opens apartment complex for homeless veterans (9/2)
Mississippi Choctaw leader faces challenge in election drama (9/2)
Mohegan Tribe elects incumbents and newcomer for council (9/2)
Donald Trump wanted a casino with Seminole Tribe in Florida (9/2)
New Mexico tribes proposed casino in downtown Albuquerque (9/2)
Construction worker dies at site of Jamul Indian Village casino (9/2)
Lakota Country Times: Not guilty verdict after Lakota 57 trial (9/1)
President Obama meets Native leaders after landing in Alaska (9/1)
Rhonda Pitka: Alaska Natives put priority on subsistence rights (9/1)
Transcript: Obama remarks following Native leaders roundtable (9/1)
94-year-old Alaska Native elder greets Obama with Denali song (9/1)
Politicians in Ohio oppose return of Alaska Native name for peak (9/1)
Passamaquoddy Tribe takes a step toward marijuana cultivation (9/1)
Center for Native American Youth seeks new executive director (9/1)
Supreme Court takes up petition in Kialegee Tribal Town dispute (9/1)
NCAI pushes for court rehearing in tribal labor sovereignty case (9/1)
Education Department awards $50.4M in grants to tribal colleges (9/1)
Native Sun News: Teens attacked on Rosebud Sioux Reservation (9/1)
Clara Caufield: Cheyenne brothers and sisters share language (9/1)
Terese Marie Mailhot: Shutting down a new generation of hate (9/1)
Jennifer Fielder: Tribes struggling to break free from bondage (9/1)
Brian Pierson: Big decision in Seminole Tribe's taxation case (9/1)
Navajo Nation hires firm to pursue Gold King Mine spill lawsuit (9/1)
Young tribal members cited for wild rice harvest in Minnesota (9/1)
Lake named for war secretary who pushed for removal of tribes (9/1)
Tribal college students participate in NASA challenge in Virginia (9/1)
La Jolla Band welcomes visitors to longest zip line in California (9/1)
Chukchansi Tribe still aiming for reopening of casino this month (9/1)
Cherokee Nation contributed $11M to upgrade road near casino (9/1)
President Obama restores Alaska Native name of highest peak (8/31)
BIA announces $1.75M in grants fot tribal education programs (8/31)
Multiple Capitol Hill hearings set into disaster at Gold King Mine (8/31)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.