indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 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:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Wrapup from National Congress of American Indians DC meeting (2/27)
Native Sun News: Rapid City leader calls for tax on alcohol sales (2/27)
Mark Trahant: Beautiful trend emerges with power of Native vote (2/27)
Ivan Star: Lakota traditional history tells the true untold stories (2/27)
Audio: House Appropriations Committee hearing on BIA budget (2/27)
Senate Indian Affairs Committee to hold hearing on irrigation bill (2/27)
National Indian Gaming Commission choice gets another hearing (2/27)
Kevin Abourezk: Omaha language advocate passes on at age 58 (2/27)
Gyasi Ross: Yawna Allen shares her Native and African ancestry (2/27)
Frank Hopper: Alaska Native Brotherhood was about resistance (2/27)
Stanley Heller: Don't forget the Sand Creek Massacre in Colorado (2/27)
Cherokee Nation chief faces at least four challengers in election (2/27)
BIA and DOJ seek to mediate Cayuga Nation leadership dispute (2/27)
Non-Indians guilty for hunting incidents on Montana reservation (2/27)
Man from Te-Moak Tribe pleads guilty to voluntary manslaughter (2/27)
Administrator for Alaska tribe cuts her position out of the budget (2/27)
Opinion: Find common ground on Indian mascots in Connecticut (2/27)
Hannahville Indian Community starts $8M casino expansion work (2/27)
Wilton Rancheria still waiting for BIA movement on casino project (2/27)
Lytton Band paid $4.6M to use land as parking for Class II facility (2/27)
Opinion: Menominee Nation might turn to tokers instead of poker (2/27)
Opinion: Poarch Creeks come with slot machines and marijuana (2/27)
Updates from National Congress of American Indians meet in DC (2/26)
Native Sun News: Rosebud Sioux Tribe leader sidelined by council (2/26)
James Giago Davies: Native activism must embrace all relations (2/26)
Donna Ennis: Obama budget supports tribal self-determination (2/26)
Rich Winter: Let's keep Lakota Nation Invitational in Rapid City (2/26)
Oglala Sioux Tribe wants Lakota Nation Invitational out of Rapid (2/26)
Former Sisseton Wahpeton chairman joins marijuana company (2/26)
Hoopa Valley Tribe places marijuana referendum on April ballot (2/26)
Blog: Firm saves billions by exploiting Native 'loophole' at FCC (2/26)
Klamath Tribes aid investigation into stolen artifacts in Oregon (2/26)
Alaska Native community still waiting on funding for relocation (2/26)
Alaska Native lawmaker in hospital after emergency at capitol (2/26)
Elise Patkotak: Alaska must acknowledge high rate of violence (2/26)
Mishewal Wappo Tribe waits for decision in recognition lawsuit (2/26)
Muscogee Nation seeks 5000 workers for big casino expansion (2/26)
Little River Band expects wait for $180M off-reservation casino (2/26)
Northern Arapaho Tribe plans to open casino food court in May (2/26)
Cherokee Nation promotes citizen to manager of $80M casino (2/26)
Tribes share nearly $16M in casino revenues with New Mexico (2/26)
Connecticut tribes face threat from casinos in Massachusetts (2/26)
Updates from National Congress of American Indians meeting (2/25)
Native Sun News: Artist Del Iron Cloud wins top award at show (2/25)
Witness List: Senate Indian Affairs Committee budget hearing (2/25)
Steve Russell: Cherokees learned discrimination from colonists (2/25)
Mary Pember: Tlingit masks appraised on 'Antiques Roadshow' (2/25)
Julianne Jennings: Keep talking about race in American history (2/25)
Bill to create day to honor late Elouise Cobell stalls in Montana (2/25)
Washington tribes head to trial in dispute over fishing grounds (2/25)
Mobile dental clinic takes service to Navajo Nation communities (2/25)
Shingle Springs Band gun range draws questions from neighbors (2/25)
NCPR: St. Regis Mohawk Tribe continues land claim negotiations (2/25)
Opinion: Oklahoma attempts to rewrite role of Whites in history (2/25)
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.