Tribe can’t prosecute ex-BIA agent, judge rules

The Spokane Tribe of Indians does not have criminal jurisdiction over a former U.S. Bureau of Indian Affairs agent who uncovered evidence of suspected crimes by his fellow BIA officers, a federal judge has ruled.

Ex-BIA agent Duane Garvais is not a member of any federally recognized Indian tribe and although his bloodline has Native American roots, it doesn’t make him eligible for such enrollment, Senior U.S. District Court Judge Justin Quackenbush ruled Thursday.

For those reasons, the judge said in his 12-page ruling, the Spokane Tribe has no legal jurisdiction over Garvais, 38, who now lives off the reservation in Stevens County.

The judge’s ruling grants Garvais’ petition for a writ of habeas corpus, giving him federal court protection from prosecution by the Spokane Tribal Court.

It also clears the way for a companion civil rights damages lawsuit Garvais has filed against the Spokane Tribe and the BIA. The civil rights suit is set for trial next August before Quackenbush in U.S. District Court in Spokane.

Spokane attorney Mark Vovos, hired to represent the Spokane Tribe, said Friday he wasn’t sure if his client would appeal to the U.S. 9th Circuit Court of Appeals. An appeal would have to be filed within 30 days. “That’s up to the tribe,” Vovos said.

Garvais said the judge’s ruling “is a validation of what we’ve been saying all along. The matters of law are clearly indicated, and the judge agreed.”

The former federal law enforcement officer said the case “has caused me and my two children an unbelievable amount of mental, physical and emotional stress.”

“I’d like to thank my family and friends, and mother, particularly, for their support and prayers during this last 2½ years,” Garvais said.

One of his attorneys, Leslie Weatherhead, said the judge’s ruling leaves very little, if anything, as grounds for an appeal.

“We can now close that chapter and move on,” Weatherhead said, referring to his client’s desire to seek civil rights damages from the Spokane Tribe for an illegal arrest and prosecution.

The tribe filed tribal criminal charges against Garvais and had him arrested in August 2003, accusing him of misappropriating funds used in undercover drug investigations.

The Spokane Tribe filed its own charges against Garvais after the U.S. attorney’s office declined to file federal charges, saying there was insufficient evidence of any wrongdoing on Garvais’ part.

Garvais said the tribal charges against him were trumped up and retaliatory after he uncovered suspected corruption within the BIA police department on the Spokane reservation.

As he attempted to pursue the alleged corruption, the Spokane Tribal Council passed a resolution asking the BIA to transfer Garvais to another reservation. Garvais was transferred, placed on administrative leave, and then fired last February by the BIA. The agency said he didn’t meet hiring criteria for being an Indian.

After Garvais challenged the legality of his arrest in U.S. District Court, the Spokane Tribe maintained it had legal jurisdiction to prosecute Garvais because he met the legal definition of being an Indian. Tribal courts do not have jurisdiction over non-Indians.

The ruling by Quackenbush came almost four months after he held an evidentiary hearing in which the Spokane Tribe, represented by Vovos and two tribal attorneys, sought to prove Garvais met the legal, federal definition of an Indian.

His attorneys, Weatherhead and Toby McLaughlin, argued that they should only have to prove Garvais isn’t a member of any federally recognized Indian tribe.

But the judge fashioned the evidentiary hearing to include an examination of Garvais’ lineage to determine the percentage of his Indian ancestry.

“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,” Quackenbush said in his ruling.

While membership in a federally recognized tribe “is an important consideration” in determining if someone is an Indian, Quackenbush said there are other factors to consider, including ancestral bloodlines.

At the August hearing, there was no evidence showing Garvais met the legal definition of being an Indian, even though he has talked about his Native American roots, participated in sweat-lodge activities and said he had an enrollment application pending with the Assiniboine Tribe, the judge said.

Witnesses with knowledge of Garvais’ background said he had no Spokane tribal blood and only one-sixteenth ancestral blood from the Colville Confederated Tribes, the judge said.