Purpose of the Study Public Law 280 structures law enforcement and criminal justice for 23% of the reservation-based tribal population and...
Purpose of the Study Public Law 280 structures law enforcement and criminal justice for 23% of the reservation-based tribal population and 51% of all tribes in the lower 48 states, and potentially affects all Alaska Natives and their tribes or villages.1 Although this law was enacted just over 50 years ago, very little systematic, empirical research has been conducted to determine its effectiveness or its reception among the communities it addresses. Yet, anecdotal evidence from Congressional hearings, government reports, and tribal organizations suggests discontent with this law, both within Indian country and among some state and local law enforcement and criminal justice officials. Themes evident in the statements of tribal officials include:
• Infringement of tribal sovereignty; • Failure of state law enforcement to respond to Indian country crimes or to respond in a timely fashion; • Failure of federal officials to support concurrent tribal law enforcement authority; • A consequent absence of effective law enforcement altogether, leading to misbehavior and self-help remedies that jeopardize public safety;
• Discriminatory, harsh, and culturally insensitive treatment from state authorities when they do attend to Indian country crimes; • Confusion about which government is responsible and should be contacted when criminal activity has occurred or presents a threat. Tribal concerns about Public Law 280 have some counterparts in criticisms leveled at the statute by state and local law enforcement agencies. Typically these charges focus on the absence of federal funding for state law enforcement services within Indian country or on difficulties in carrying out state law enforcement obligations because of uncertainty about the scope of state jurisdiction and officers’ unfamiliarity with tribal communities. 1 1 For the text of Public Law 83-280, see Appendix J, and for frequently asked questions and answers about Public Law 280, see Appendix K. The special jurisdictional situation in Alaska is discussed at pages 7-8, infra. This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department.
Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Amid federal concerns about rising crime rates in Indian country and rising victimization rates among Indians, the National Institute of Justice funded this research to advance understanding of this law and its impact from the point of view of tribal members, as well as state and local officials. In particular, we proposed to address five questions: 1) Are crime rates higher or lower in Indian country in PL 280 states versus Indian country in non PL 280 states and elsewhere in PL 280 states? 2) Is law enforcement more or less available or well funded in PL 280 states versus non PL 280 states and elsewhere in PL 280 states? 3) What is the quality of law enforcement and criminal justice under PL 280 in terms of cultural awareness and sensitivity, fairness of treatment, responsiveness to community priorities, thoroughness of investigations, etc.? 4)
Does the presence of state law enforcement and criminal justice inhibit or impair tribal legal development? 5) How effective have cooperative agreements, concurrent jurisdiction, and retrocession efforts been to alleviate problems associated with PL 280? This study also aims to develop recommendations for policy changes that would improve law enforcement and criminal justice on the reservations affected by Public Law 280. History and Legal Background Before Congress adopted Public Law 280 in 1953, the arrangement of criminal jurisdiction in Indian country2 was complex but relatively uniform across reservations. Except for a few scattered reservations in the Midwest and the reservations in New York state, Indian country criminal jurisdiction was largely a matter for the federal government and the tribes themselves, with states limited to jurisdiction over crimes between nonIndians and victimless crimes by non-Indians. Indeed, the Supreme Court had pronounced that states lack criminal jurisdiction over criminal matters involving Indians within reservations unless Congress authorized such state authority; and before 1953,
Congress had taken no such action for reservations as a whole. In the pre-Public Law 280 era, the federal government’s criminal jurisdiction fell into three main categories: 1) a wide range of federal and state-defined offenses, major and minor, committed by an Indian against a non-Indian, or vice versa; 2) specified major offenses committed by one Indian against another; 3) designated crimes focused on the federal trust responsibility, including liquor control and hunting and fishing on tribal lands, whether committed by an Indian or non-Indian. Tribal jurisdiction encompassed all criminal activity and was exclusive as to less serious crimes committed by one Indian against another or crimes by Indians that were victimless. Only later did federal law restrict tribal criminal jurisdiction by limiting the punishments that could be 2 2 The term “Indian country” is codified at 18 U.S.C. § 1151 and means
“(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. imposed and denying tribal criminal authority over non-Indians.3 Under this legal regime for Indian country, the substantial exclusion of state criminal jurisdiction reflected constitutional and treaty-based principles establishing a special government-to-government trust relationship between the United States and the tribes. These principles, in turn, reflected the reality that states’ interests in governing power and resource control have often conflicted bitterly with tribes’ claims to governance and territory. Tribes have feared that state jurisdiction would prevent them from defining norms and administering justice according to evolving tribal traditions, and would expose tribal members to indifferent or hostile law enforcement institutions. With the passage of Public Law 280 in 1953, Congress for the first time injected state criminal jurisdiction into Indian country on a large scale. The act authorized state criminal jurisdiction over Indians and non-Indians on reservations in six named states with significant numbers of federally recognized tribes — Alaska (added when it became a state), California, Minnesota, Nebraska, Oregon, and Wisconsin. A few tribes in these states were specifically excluded as a result of their strong and effective lobbying.4 The act also allowed all other states to opt for similar jurisdiction, and several did so. At the same time, it withdrew the first two categories of federal criminal jurisdiction listed above — crimes between Indians and non-Indians, and major crimes involving only Indians. Public Law 280 did not eliminate or limit tribal criminal jurisdiction,5 although the Department of the Interior often used it as a justification for denying funding support to tribes in the affected states for law enforcement and criminal justice. For tribes in those affected states, Public Law 280 meant that state or county law enforcement replaced the Bureau of Indian Affairs police, and state criminal trials largely replaced those carried out by the federal government. Perhaps even more important than this change of criminal jurisdiction “partners” from federal to state, however, was the fact that the reach of non-tribal law enforcement and criminal justice on reservations grew longer. Before Public Law 280 — and for non-Public Law 280 tribes to this day — the more commonplace minor crimes committed by Indians, such as driving under the influence and misdemeanor assaults, were exclusively the responsibility of the tribes. With the adoption of Public Law 280,
such offenses could be penalized under state as well as tribal criminal law. 3 3 See 25 U.S.C. § 1302 (Indian Civil Rights Act, limiting tribal punishments to one year in jail and a $5,000 fine for each offense); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 4 The excluded tribes were Red Lake in Minnesota, Warm Springs in Oregon, and Menominee in Wisconsin. 5 See Vanessa J. Jimenez & Soo C. Song, Concurrent Tribal and State Jurisdiction under Public Law 280, 47 Am. U.L. Rev. 1627 (1998). This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. The Criminal Resource Manual produced by the U.S. Department of Justice for U.S. Attorneys provides a useful chart depicting the differences between federal, tribal, and state criminal jurisdiction without and with Public Law 280:6 Criminal Resource Manual 689 Jurisdictional Summary 01/14/2007 04:21 PM http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00689.htm Page 1 of 3 US Attorneys > USAM > Title 9 > Criminal Resource Manual prev | next 689 Jurisdictional Summary The following Chart sets forth in summary form which government entit
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