Supreme Court throws out double jeopardy argument in poaching case

By Paul Queary The Associated Press
Friday January 11, 2002

OLYMPIA, Wash. — A conviction in tribal court does not protect a Tulalip Indian from state poaching charges, the Washington Supreme Court ruled Thursday in an unanimous decision. 

Anthony Moses Sr., a Tulalip tribal member, 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 Marysville 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. 

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 — 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. 

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. 


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