A member of the Confederated Tribes of the Colville Reservation of Washington lost his bid to escape a first degree murder charge.

James H. Gallaher is accused of murdering Edwin Pooler in April 1991. The indictment was issued in 2005, 14 years after the crime.

Gallaher argued that the delay required the dismissal of the charge because federal law imposes a five-year statute of limitations on non-capital crimes. Even though murder is a capital crime, he said his tribe hasn't allowed it for tribal members.

The Federal Death Penalty Act of 1994 allows tribes to determine whether its members can face the death penalty for capital crimes. But the 9th Circuit Court of Appeals said the law affects only punishment and does not change the nature of the offense.

"[F]irst degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case," the court said in a 2-1 decision authored by Raymond C. Fisher.

"Respect for tribal sovereignty counsels us to permit tribal governments to choose whether to allow capital punishment independently of the applicable statute of limitations," Fisher wrote later in the decision.

Judge A. Wallace Tashima dissented. He said it was clear that Congress intended for tribes to decide whether first degree murder is a capital offense.

"In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of “Indian country” from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty," he wrote.

"The Confederated Tribes of the Colville Reservation has not elected to make the death penalty available for first degree murder on the Colville Reservation," Tashina continued. "Thus, capital punishment has been clearly eliminated for the crime for which Gallaher was indicted."

Gallaher has a long criminal history. According to a May 26, 2007, article from The Spokesman Review, he has been convicted of theft of government property, of abusive sexual contact with a minor and of being a felon in possession of ammunition.

According to another Spokesman Review article, Gallaher was due to be released from prison when someone came forward with information about the Poole murder. Poole's sister said people on the reservation were afraid he would come back.

Turtle Talk has posted documents from the case, US v. Gallaher.

9th Circuit Decision:
US v. Gallaher (May 19, 2010)