BIA firing complicated by rulings

Former Bureau of Indian Affairs agent Duane Garvais, of Nine Mile Falls, says he’s confused about two apparently contradictory rulings by U.S. courts.

One court just ruled that he doesn’t meet Indian ancestry requirements, so his termination as a BIA law enforcement agent in February was justified and he shouldn’t be reinstated.

In another case, Senior U.S. District Court Judge Justin Quackenbush last week ordered an evidentiary hearing, agreeing with the Spokane Indian Tribe that Garvais appears to meet the legal and cultural definitions making him an American Indian.

The continuing, complicated legal battles for Garvais started after he identified fellow police officers on the Spokane Indian Reservation who he claimed were involved in criminal activity.

They weren’t charged, but the Spokane Tribal Council passed a resolution urging the BIA to transfer Garvais to another reservation.

The BIA then transferred Garvais to another reservation, before ultimately suspending and firing him on the basis that he shouldn’t have been given Indian preference when he was hired.

For his part, Garvais says he’s proud of his Native American ancestry, but says he’s not an enrolled member of any federally recognized tribe. He currently is working as an investigator for a tribe in Western Washington.

His mailbox at a home he maintains near Nine Mile Falls was firebombed, starting a small fire, on July 5, the night before he appeared before Quackenbush on the issue of whether the Spokane Tribe has jurisdiction to prosecute him for allegedly stealing drug-buy money.

“I just don’t understand this,” Garvais said Tuesday of the court rulings. “I prayed last night, and will leave all this in the hands of God.”

Last Thursday, U.S. Administrative Law Judge John W. Tapp issued a decision upholding the Bureau of Indian Affairs decision to terminate Garvais on Feb. 7.

He was hired as a special agent for the BIA in 1999 after being given an “Indian preference” intended to help recruit more Native Americans to the agency.

One of the preference forms asks the applicant to show proof they were living within the boundaries of a reservation in 1934. Garvais was born in 1966 and has lived on the Colville and Spokane Indian reservations.

It’s now up to the Bureau of Indian Affairs and the U.S. Department of Interior to determine who is entitled to those hiring preferences, Tapp ruled.

Garvais’ attorney argued that the Indian preference criteria were to be liberally construed.

“Appellant (Garvais) is correct, but his argument does not address the issue in this case which is the threshold issue of who is an Indian,” Tapp said in his findings.

The judge said the agency’s interpretation of the Indian preference provision was “not arbitrary or capricious and does not otherwise conflict with congressional intent. The agency was correct in concluding that (Garvais) did not qualify for Indian preference by descendancy.”

Garvais has until Aug. 12 to decide whether to appeal the ruling upholding his termination as a BIA agent.

Two days before Tapp’s ruling, Quackenbush ordered an evidentiary hearing on Aug. 9 on the question whether Garvais meets the legal definition of being an Indian.

The Spokane Tribe, represented by Spokane attorney Mark Vovos, now wants to claim jurisdiction over Garvais and prosecute him in tribal court on allegations he stole undercover drug-buy money.

The Spokane Tribe must convince the federal judge at the evidentiary hearing that Garvais is an Indian because tribal courts have no jurisdiction over non-Indians.

Even if the federal judge decides Garvais is an Indian, other pending legal questions, including the “sovereignty protection” afforded to federal law enforcement officers, would have to be addressed.

The U.S. Attorney’s Office previously declined to prosecute Garvais on those charges, determining there was no evidence warranting criminal charges.

In a third pending legal case, Garvais is suing the Spokane Tribe in U.S. District Court for violating his civil rights after he uncovered the alleged theft of tape decks and other alleged criminal conduct by tribal police.

“We’re eager to address the civil rights suit, which gets to how this whole thing started when Duane Garvais uncovered misconduct on the reservation involving fellow police officers,” said his attorney, Leslie Weatherhead.

But for now, Weatherhead said he and Garvais are puzzled by the court rulings.

“I don’t see how you can simultaneously be an Indian and not be an Indian,” Weatherhead said.