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September 01, 2017

Unraveling Public Law 280: Better Late than Never

by Carole Goldberg

When one tribal member throws a punch at another on reservation land, which government can prosecute— tribal, federal, or state? Although the tribe invariably has jurisdiction, the federal government does not. Only more serious offenses can be prosecuted by a U.S. attorney under these circumstances. And state jurisdiction is out of the question unless Congress allows it. In 1953, Congress passed Public Law 280, giving six states criminal jurisdiction they would otherwise not have and allowing other states to opt in. In those six states, Congress also withdrew most federal Indian Country criminal jurisdiction. The law was part of a larger federal policy, post-World War II, to “terminate” tribes. More than 300 tribes and nearly a quarter of reservation Indians were affected.

Public Law 280 is now almost 65 years old. Ordinarily a jurisdictional regime has planted deep roots by the time it has been in place that long, making radical change nearly impossible. Expectations have developed, budgets have become entrenched, and resignation to the status quo has set in. Not so for Public Law 280. Decades after its enactment, in a very different policy environment, Public Law 280 is unraveling.

Tribal criticism of Public Law 280 set in early but with only limited effect. Tribes in the six states named in the law (Alaska, California, Minnesota (except Red Lake), Nebraska, Oregon (except Warm Springs), and Wisconsin (except Menominee)), as well as tribes in others states that opted in (Washington, Florida, Montana, and Idaho), had not agreed to swap federal criminal jurisdiction for the much broader state criminal jurisdiction. The affront to tribal sovereignty alone was ground for criticism. To make matters worse, state criminal justice has functioned poorly on reservations. Local authorities have sometimes failed to serve tribal communities and sometimes have reacted with excessive harshness. Furthermore, since the 1970s, Unraveling Public Law 280: Better Late than Never when tribal law enforcement and court systems were developing and receiving federal funding support, Public Law 280 tribes were told they did not need the federal funds because states had taken over. Growth of tribal justice systems suffered in Public Law 280 states. Limited relief from these consequences of Public Law 280 came in 1968 with amendments that made future state jurisdiction subject to tribal consent and permitted states to withdraw from the arrangement. No tribes have agreed to state jurisdiction since that change. But tribes already saddled with state jurisdiction could not extricate themselves unless they could persuade their state(s) to go along.

Four recent developments signal that Public Law 280 is unraveling.

Political challenges are gaining force.

The Tribal Law and Order Act of 2010 acknowledged deficiencies in state criminal justice by allowing Public Law 280 tribes to request restoration of federal criminal jurisdiction (on top of state jurisdiction). Several tribal requests are pending or have already been accepted, including White Earth in Minnesota. A January 2017 memo from the Justice Department to U.S. attorneys also affirmed continued concurrent federal jurisdiction in the opt-in Public Law 280 states. Finally, the bipartisan Indian Law and Order Commission, strongly recommended in its 2013 report that tribes be allowed to opt out of Public Law 280, regardless of state “permission.”

The funding picture is improving.

Although the U.S. Department of the Interior still refuses to fund tribal justice systems for Public Law 280 tribes, the Justice Department has been supplying grants since the 1990s. Moreover, some Public Law 280 tribes have been successful at gaming and other economic enterprises, directing revenues to building tribal police and courts. The Indian Law and Order Commission Report also recommended parity of funding for Public Law 280 tribes, and recent federal legislation funded a study of the associated costs.

States are becoming more receptive to retrocession.

The economic success of some gaming tribes has produced political influence at the state level. One product of that influence has been legislation to facilitate removal (retrocession) of state Public Law 280 jurisdiction at tribal initiative. After Washington passed such a law in 2012, the Yakama Nation quickly moved to achieve that long-desired goal.

Cooperative arrangements are enhancing the tribal role.

Even where Public Law 280 jurisdiction persists, states are ceding more authority to tribes, such as the joint tribal-state court serving the Leech Lake community in Minnesota and the state laws giving tribal police state peace officer status in states such as Oregon. Termination policy was disavowed in 1970. Since then, Congress and presidents of both parties have voiced respect for tribal self-determination. The unraveling of Public Law 280 is long overdue.

Carole Goldberg is the Jonathan D. Varat Distinguished Professor of Law at UCLA. She served as one of President Barack Obama’s appointees to the Indian Law and Order Commission, and in 2013 received the Federal Bar Association’s Lawrence R. Baca Lifetime Achievement Award for Excellence in Federal Indian Law.

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