Hearing to determine if ex-BIA agent is Indian

A federal judge in Spokane says he will hold an evidentiary hearing to determine whether a former Bureau of Indian Affairs special agent meets the legal definition of being an Indian.

Senior U.S. District Court Judge Justin Quackenbush, in an order issued last week, said he must decide if Duane Garvais is an Indian before ruling whether the Spokane Tribe of Indians has jurisdiction to proceed with criminal charges against the ex-BIA agent.

Under federal law, Indian tribes have jurisdiction over Indians, but not non-Indians. Federal courts have jurisdiction over offenses committed by or against Indians in “Indian Country.”

“While congress has not set forth the specific jurisdictional boundaries of Indian Tribal Courts, it has recognized the authority of tribal governments to prosecute and try Indians,” Quackenbush said in his order.

But before a tribal court may exercise jurisdiction and convict a person of a criminal offense, the tribal prosecutor must establish that the defendant is an Indian to prove the crime occurred, the federal judge said.

The definition of being an Indian under federal law involves a complex formula, developed from various legal cases.

The matter ended up before Quackenbush in U.S. District Court last year after Garvais filed a civil rights suit and a petition for a writ of habeas corpus after being arrested on charges filed by Spokane Tribal Court. Garvais contends the charges against him were trumped up after he began uncovering alleged corruption within the Spokane tribe’s police department.

The Spokane tribe passed a resolution criticizing Garvais, prompting the BIA to transfer, then fire, Garvais as a federal law enforcement agent.

Garvais separately is appealing his dismissal as a BIA agent.

The evidentiary hearing isn’t scheduled yet, but is expected to be held in June or July before Quackenbush in U.S. District Court, after attorneys for the Spokane tribe and Garvais file their respective legal briefs.

Garvais’ attorney, Leslie Weatherhead, had hoped to have the federal judge rule that the Spokane tribe has no criminal jurisdiction over the former BIA agent because he is not an enrolled member of any federally recognized tribe and because he is protected by “supremacy clause” immunity afforded federal law enforcement officers.

If the federal judge ultimately rules that Garvais meets the legal definition of being an Indian, his attorney could then argue that the immunity afforded federal law enforcement agents bars the Spokane tribe from proceeding with its criminal charges.

Supremacy clause immunity was used to block a Boundary County, Idaho, prosecutor from bringing criminal charges against an FBI agent who fatally shot Vicky Weaver during the 1992 Ruby Ridge standoff.

That case, taken to the U.S. 9th Circuit Court of Appeals, didn’t become etched in case law because an appeal was withdrawn.

Before the evidentiary hearing, Garvais must decide whether he wants to invoke his Fifth Amendment right against self-incrimination and remain silent, the judge said in his order. In interviews, Garvais has said he is of Native American ancestry, just not an enrolled tribal member.

If Garvais waives his constitutional right and testifies at the hearing, attorneys for the Spokane tribe will have the opportunity to ask him questions beforehand, under oath at a deposition hearing, Quackenbush ruled.

But if Garvais elects to remain silent, the Spokane tribe won’t be able to use Garvais’ prior statements or his court documents to help prove to the court that he is an Indian and, therefore, subject to tribal courts.

Reached for comment Tuesday, Weatherhead said he had not decided whether Garvais would invoke his constitutional right and refuse to testify at the evidentiary hearing.

Spokane attorney Mark Vovos, hired to represent the Spokane tribe, said in legal filings that the court should draw an “adverse inference” if Garvais elects to remain silent in the habeas corpus case, which is civil in nature.

Vovos also argued that the Spokane tribe’s laws, which Garvais is accused of violating, apply to any person.

“It is not a requirement under the (tribal) code that anyone who commits a crime be an ‘Indian,’ and therefore that is not an element of the crime,” Vovos said.

“Mr. Garvais should not be allowed to hide behind the Fifth Amendment just because he brought this proceeding before the (U.S. District) Court,” Vovos said. “To allow him to do so would inhibit the tribe’s fact-finding rights and would impede truth sought by this court.”