Elma’s city council at a special meeting Thursday, July 27 voted unanimously in favor of entering into a year long contract with the Chehalis Tribal Jail for the housing of certain inmates arrested in Elma.

The McCleary City Council also is extending a contract with the Chehalis Tribal Jail.

Elma originally intended to enter into a two month extension of last year’s contract with the Chehalis Tribal Jail. However, city attorney Dan Glenn was told the Chehalis Tribe Jail did not want to extend the contracts with the cities of Elma, McCleary and Oakville beyond July 31, 2017. It was up to the city to decide if it wanted to enter into a similar contract from last year or pass on contracting with the jail.

The practice of cities and counties entering into contracts with tribal jails has been questioned recently with the death of an inmate at the Nisqually Tribal Jail in April 2016. A lawsuit has been launched due to the circumstances surrounding the death of 19-year-old inmate Andrew Westling. Former Attorney General Rob McKenna has voiced a legal opinion, which was reported in a Seattle Times article on Jan. 9, 2017, questioning the overall legality of cities and counties entering into jail contracts with sovereign nations.

“The contract is not authorized by Washington law,” McKenna wrote in his legal opinion. “First, the City and County Jail Act, RCW 70.48, provides only for contracts between and among cities and counties for the provision of jail services. The City and County Jails Act does not authorize cities or counties to enter into contracts with Indian tribes or Indian reservations for the provision of jail services.”

Glenn told The Vidette that the claimant in the Nisqually/Yelm case retained McKenna to research the topic and express his opinion.

The Grays Harbor County Sheriff’s Office is providing police services to the city of Oakville which also recently weighed in on contracting with tribal nations. Sheriff Rick Scott said he took McKenna’s opinion into account when making a recommendation against entering into a contract.

“Out of the abundance of caution, I told the city I was not comfortable using Chehalis, pending the outcome of the litigation,” Scott said.

Cities such as Elma and McCleary, have opted to enter into jail contracts with tribal nations to save money. The current daily rate to house an inmate at Grays Harbor County Jail is about $72, but Chehalis charges about $50. Scott said Oakville will be charged the Chehalis rate to house inmates at the county jail.

Glenn said that as of now there is no concrete answer to the question of legality.

“State law giving state entities (counties and cities) authority to operate jails would not appear to be applicable to tribal nations such as the Chehalis Tribe since they are characterized as sovereign nations,” Glenn said in an email. “Also, the Interlocal Cooperation Act’s language is very broad and specifically includes the authority to enter into agreements with tribal nations.”

Glenn said concrete answers would come once a court rules on the matter.

“Until a court rules on the matter, which has not occurred at this time, an opinion, whether mine or Mr. McKenna’s, is exactly that — an opinion,” he said.

McCleary Mayor Brent Schiller said McCleary is pursing the contract because, as a small town, they have to look at various options for jailing. The litigation, Schiller said, is in such early stages that it would be premature for the city to make judgment based solely on the litigation.

“We are pursuing the contract because it is still a viable option for the City of McCleary, and the Grays Harbor County Jail is getting full,” he said.

Earlier this year, the Grays Harbor County Sheriff’s Office notified the county commissioners that they are seeking a jail contract with another county for additional beds due to overcrowding.

Elma Police Chief Susan Shultz said she has no reservations about entering into a jail contract with Chehalis Tribal Jail.

“They have been a complete asset to our department and I think that it’s good to work between the municipality and the tribe and come to a good working relationship,” she said.