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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:
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Federal judge to hold hearing on man's 'Indian' status (05/20)
Supreme Court affirms tribal powers over all Indians (04/20)
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BIA agent put on leave alleges retaliation (01/19)
Supreme Court case on jurisdiction attracts attention (01/08)
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