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.