INDIANS ‑- RESERVATIONS ‑- STATE FIREWORKS LAW ‑- SALE OF BY ENROLLED MEMBERS ‑- MAXIMUM PERMIT FEE

INDIANS ‑- RESERVATIONS ‑- STATE FIREWORKS LAW ‑- SALE OF BY ENROLLED MEMBERS ‑- MAXIMUM PERMIT FEE.

(1) Enrolled members of an Indian tribe not subject to state jurisdiction pursuant to chapter 37.12 RCW can sell fireworks on the Indian reservation notwithstanding the provisions of chapter 228, Laws of 1961, the state fireworks law, and not be subject to criminal actions by local enforcement officials.

(2) The law may be enforced on the reservation by local law enforcement officials as to all other persons.

(3) The local public agency cannot charge more than $10.00 for a fireworks permit fee under § 88, chapter 228, Laws of 1961 (RCW 70.77.555).

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                                                                    May 4, 1962

Honorable Marian C. Gleason
State Representative, 27th District
1503 South 9th Street
Tacoma 5, Washington

                                                                                                              Cite as:  AGO 61-62 No. 129

Dear Mrs. Gleason:

            By letter previously acknowledged you requested the advice of this office on three questions which we paraphrase as follows:

            (1) Can enrolled members of an Indian tribe not subject to state jurisdiction pursuant to chapter 37.12 RCW sell fireworks on the reservation notwithstanding the provisions of chapter 228, Laws of 1961, the state fireworks law, without being subject to criminal action by local law enforcement officials?

            (2) If the answer to question (1) is in the affirmative, can local law enforcement officials control the sale of fireworks on the reservation as to persons other than enrolled members of the tribe?

            (3) Can a local public agency charge as a permit fee a percentage of the total business done by the permittee when the amount of the fee will exceed that prescribed by § 88, chapter 228, Laws of 1961 (RCW 70.77.555)?

             [[Orig. Op. Page 2]]

            We answer your first question in the affirmative, your second in the affirmative as qualified in the analysis, and the third in the negative.

                                                                     ANALYSIS

            Question (1):  The state of Washington has no civil or criminal jurisdiction over the enrolled members of an Indian tribe for acts occurring within the exterior boundaries of the reservation, unless such tribe has elected to come under the jurisdiction of the state, pursuant to chapter 37.12 RCW.  SeeState ex rel. Adams v. Sup.Ct., 57 Wn. (2d) 181, 356 P. (2d) 985 (1960);In re Colwash, 57 Wn. (2d) 196, 356 P. (2d) 994 (1960);In re Arquette v. Schneckloth, 56 Wn. (2d) 178, 351 P. (2d) 921 (1960); andSeymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424 (1962).  Therefore, the enrolled members of such a tribe can sell fireworks on the reservation notwithstanding the provisions of the state fireworks law (chapter 70.77 RCW).

            Question (2):  While our answer to question (1) in effect answers your second inquiry insofar as enrolled members of the tribe are concerned, some explanation is warranted as to persons other than enrolled members of the tribe.  The state's lack of jurisdiction goes only to acts committed on the reservation by an enrolled member of the tribe(In re Arquette v. Schneckloth, supra,) and to actscommitted on the reservation by a non-Indian against an enrolled member of the tribe.  Williams v. United States, 327 U.S. 711, 66 S.Ct. 778 (1946).  As to all other persons the state does have jurisdiction on the reservation.  See AGO 57-58 No. 113 [[to Board of Prison Terms and Paroles on August 20, 1957]], a copy of which is attached.  See alsoState v. Lindsey, No. 113, a copy of which is attached.  See alsoState v. Lindsey, 133 Wash. 40, 233 Pac. 327 (1925);State v. Smokalem, 37 Wash. 91, 79 Pac. 603 (1905); and Hilderbrand v. United States, 261 Fed. (2d) 354 (1958).

            We have set forth the various situations where the state does and does not have jurisdiction for the reason that the state fireworks law (chapter 70.77 RCW) makes the manufacture, sale, possession, and transporting of all fireworks unlawful and provides criminal penalties unless the individual concerned possesses the appropriate license and permit.  Therefore, while the state can do nothing to prevent an enrolled member of an Indian tribe not subject to state jurisdiction from selling fireworks on the reservation, it can prevent non-Indians and unenrolled or emancipated Indians from doing so.  Likewise, it can prevent non-Indians and unenrolled or emancipated Indians from manufacturing, possessing, or transporting fireworks on the reservation unless the appropriate license and permit has been secured.

             [[Orig. Op. Page 3]]

            To summarize then, the local law enforcement officials can enforce the state fireworks law on the reservation to the extent outlined above.

            Question (3):  RCW 70.77.555, part of the 1961 State Fireworks Law, replaces the former law relating to fees which was repealed by the 1961 enactment.  RCW 70.77.555 provides that "[a] local public agency shall not charge more than ten dollars as a permit fee for any one year."  The language is couched in negative terms and must be construed as mandatory.  3 Sutherland, Statutory Construction, § 5814 and cases cited therein.  Therefore, under the 1961 law, a local public agency cannot charge as a permit fee a percentage of the total business done by the permittee, which results in a fee in excess of ten dollars.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

EARL E. YATES
Assistant Attorney General