South Sound police agencies ought to review their legal contracts with the Nisqually Indian Tribe for housing inmates at the tribal jail near Yelm. Local governments need to rule out any chance their arrangements are not legal under state law, or could be challenged.
The question has arisen because an inmate sent to the tribal jail by the city of Yelm later died in custody. Ed Budge, lawyer for the family of Andrew J. Westling, who died in 2016, has cited a memo from former state attorney general Rob McKenna, who thinks the contracts are not valid under state law.
McKenna contends that state law does not specifically authorize tribes or reservations to provide jail services to cities and counties. That is because the tribes are sovereign nations subject to federal law.
John Simmons, chief executive for the tribe, said this week he could not comment at this time about the legal development.
“Within a couple of months we’ll be coming out with a statement,’’ Simmons said.
Budge has not yet filed a legal claim against Yelm over the death. The tribe’s sovereign immunity under federal law would preclude any direct claim against the Nisqually, which appears to be why Budge is targeting the city.
The Thurston County Sheriff’s Office has chosen not to send people in custody to the tribal jail, according to Undersheriff Tim Braniff.
But Lacey police do, as well as Yelm, Tumwater and a few other local jurisdictions.
Budge has contended there may be other questionable incidents at the jail. But he says he has been stymied in getting information about those because the tribe is not subject to state public records law.
Meanwhile, the city of Lacey renewed its contract with the tribe in October. The four-year agreement guarantees the city at least 21 beds each day.
City manager Scott Spence said there is language that requires each party to indemnify the other against any legal claims arising against the other.
Spence indicated there is no need to review that language, and Lacey Police Chief Dusty Pierpoint said the nearly decade-old city-tribe relationship for use of the Nisqually jail has gone well. He said there have been no recent “red flags” to cause concern.
Thurston County Prosecuting Attorney Jon Tunheim said he would advise the county government not to enter into an agreement with a tribe without some kind of indemnifying language or waiver of its immunity.
Tribes are sovereign governments and immune from legal claims for damages under federal law unless they explicitly waive the immunity.
As Lacey has proved, tribal jails can be an excellent option for housing city inmates at competitive rates. The issue is who pays if something goes wrong.