indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439   fax: 202 318 2182
Dynamic Homes
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...
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Oglala Sioux Tribe gears up for uranium battle (8/20)
Eyapaha Today: J. Waylon Miller leads Friends of Cesar Romero (8/20)
Sandra Fox: Fixing the education system for our Indian children (8/20)
Albert Bender: US-backed genocide in Guatemalan spurs exodus (8/20)
Mark Chavaree: Penobscot Nation fights to save namesake river (8/20)
Mark Rogers: One more day with post-traumatic stress disorder (8/20)
Still no word on Cobell payments as end of August approaches (8/20)
Native boy found safe after going missing for nearly 24 hours (8/20)
9th Circuit allows Lummi Nation to pursue fishing rights claims (8/20)
St. Regis Mohawk Tribe gains support for land claim agreement (8/20)
Delaware Tribe to discuss plans for land with officials in Kansas (8/20)
Wind River Reservation students enjoy back-to-school haircuts (8/20)
Review: Native man serves as anti-hero in 'Winter In The Blood' (8/20)
Bill introduced to extend recognition to Clatsop-Nehalem Tribe (8/20)
Governor pressed on Menominee Nation off-reservation casino (8/20)
Group seeks referendum on Tohono O'odham Nation casino deal (8/20)
Lawmakers approve Class III gaming compact with Karuk Tribe (8/20)
Enterprise Rancheria awaits action on Class III gaming compact (8/20)
Wampanoag casino opponents hope to catch Obama's attention (8/20)
Opinion: Tribal gaming creates short term and long term benefits (8/20)
Native Sun News: Oglala man's business dealings under scrutiny (8/19)
Mark Trahant: Behind the scenes of Obamacare in Indian Country (8/19)
Peter d'Errico: Book told from perspective of the colonial invaders (8/19)
Brian Pierson: Recent federal court decisions affecting Indian law (8/19)
Opinion: Elder of Wukchumni Tribe working to keep language alive (8/19)
Large crowd turns out to denounce supremacist group's activities (8/19)
Oglala Sioux Tribe suspends officer who repeatedly used stun gun (8/19)
Alaska Native man being treated after being shot by police officer (8/19)
Another guilty plea comes in Chippewa Cree Tribe corruption case (8/19)
Leader of Muscogee Nation goes on trial in theft case next month (8/19)
Court in California won't let Choctaw girl be placed with relatives (8/19)
Tribes hail Oregon decision to deny permit for coal export project (8/19)
Al Jazeera: State struggles with Native language voting material (8/19)
NPR: Osage Nation disputes wind development on mineral estate (8/19)
Chickasaw Nation sell new blend of coffee made from chocolate (8/19)
Activists won't sue over school's Warriors mascot in Minnesota (8/19)
Broadcasters won't use racist mascot of Washington NFL team (8/19)
NIGA to hold mid-year conference at Chickasaw Nation casino (8/19)
Court won't allow former casino workers to sue Morongo Band (8/19)
Official from wine group likens a tribal casino to 'foreign nation' (8/19)
MPR: City pushes for casino amid battle with Fond du Lac Band (8/19)
Editorial: Karuk Tribe casino poses competition to Coquille Tribe (8/19)
Tim Giago: Media was well represented at Wounded Knee 1973 (8/18)
Native Sun News: GOP candidate rejects Senate debate at UTTC (8/18)
Clara Caufield: A Cheyenne Voice celebrates another milestone (8/18)
US House candidate John Lewis proud of Warm Springs heritage (8/18)
Aaron Payment: Story missed the boat on Soo Tribe gaming bid (8/18)
Michael Baines: Stop fighting land decision for Alaska Natives (8/18)
Albert Bender: Fair treatment needed for indigenous migrants (8/18)
John Christian Hopkins: How I became a writer at a young age (8/18)
Neil Young and Willie Nelson stage anti-Keystone benefit show (8/18)
Authorities in Manitoba probe murder of 15-year-old Native girl (8/18)
Judge dismisses case against Fort Peck Tribes housing official (8/18)
Museum in Germany balks at repatriating scalps to tribes in US (8/18)
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.