Has Tacoma illegally entered into an agreement with the Nisqually Indian Tribe to house jail inmates?

Last week, the Seattle Times had an article about a federal lawsuit being brought against City of Yelm over the death of a 19 year old who was housed in a jail operated by the Nisqually Indian Tribe.  Andrew Westling was arrested in the city of Yelm for allegedly being a minor in possession of alcohol and spitting on a customer at a gas station minimart. After being arrested, Westling was brought to the Nisqually Corrections Center because the City of Yelm had entered into a contract to house their inmates in the tribal jail. The article indicates that after being booked, Westling told a jail officer he had a heart condition and that he felt like his heart was thumping out of his skin, but that no one asked a doctor or nurse to check him, nor did jail officers seek medical attention or call 911. 24 hours after Westling was booked into the jail, he was found dead in his cell.

Westling’s parents are suing City of Yelm (but not the Tribe because of tribal immunity) and have hired former Attorney General Rob McKenna, who says the contract between the City and Tribe is illegal because Washington law allows for contracts only between cities and counties for jail services — not with Indian tribes or reservations.

City of Yelm is not the only city to use the Nisqually Corrections Center as a cheap place to house inmates. City of Tacoma also has a contract with the Tribe, where Tacoma agrees to pay the Nisqually Indian Reservation $67.50 a day for each inmate the City sends to the Tribe. The contract references RCW 70.48 and RCW 39.34 for the legality of the arrangement. However, RCW 70.48.090(1) says “[c]ontracts for jail services may be made between a county and a city, and among counties and cities.”

So has Tacoma entered into an illegal contract, just as City of Yelm? The statue says “may” rather than “shall” so is there some wiggle room for the City? Related issues include whether tribes can enter into contracts with cities and counties to house their inmates in city and county jails? Can Department of Corrections (DOC) enter into an arrangement with a county to house DOC inmates in the county jail (for, say, a probation violation)? Some of these issues may be flushed out by the federal lawsuit involving Westling’s death.