Lessons from the Case Studies The five case studies of Omaha, Winnebago, Salish & Kootenai, Ely Colony, and Tulalip retrocessions, as w...
Lessons from the Case Studies The five case studies of Omaha, Winnebago, Salish & Kootenai, Ely Colony, and Tulalip retrocessions, as well as the one study of an unsuccessful retrocession campaign at Shoshone-Bannock, share some common features. Regarding reasons for retrocession, one or two concerns dominate: The tribes may be receiving inadequate services from state and county law enforcement, and/or they may be seeking to make their law enforcement and criminal justice regimes more consistent with their overall assertions of sovereignty. Where the concern is inadequate services, the problems may relate to lack of availability of police, cultural insensitivity of county law enforcement and criminal justice agencies, discrimination against Indians in the county system, or some combination of the three. The relative significance of all these reasons is unclear and seems to vary from case to case
. The most serious obstacle to retrocession in these cases has been resistance from local governments, followed next by financial considerations. In the one case where retrocession did not go forward, the local sheriff was supportive, but other state and local officials (e.g., the prosecutor) were resistant, largely because they did not trust the Shoshone-Bannock Tribes to deliver effective law enforcement. Interestingly, even where local governments do not have adequate resources to maintain effective law enforcement and criminal justice services on reservations (as in the Winnebago and Salish & Kootenai cases), they have sometimes attempted to maintain their jurisdiction, often at the behest of non-Indians living on the reservation (who may be receiving more satisfactory services). Money to fund tribal and federal law enforcement and criminal justice post-retrocession has recently become another difficult point in navigating the retrocession process. As the Ely Colony case suggests, the Department of the Interior has become increasingly reluctant to provide money for this purpose, leaving tribes (like Tulalip) to foot most of the bill for their new jurisdictional arrangement.164 The successfully retroceding tribes in our five case studies deployed a variety of strategies to overcome state, local, and federal resistance to retrocession. The most common approach was to address the concerns of local communities,
either through 439 163 Id. 164 In the case of the very recent Santee Sioux retrocession in Nebraska, the Tribe received a COPS (community-based policing) grant from the United States Department of Justice the year before the retrocession, to help it in preparing for the changeover of jurisdiction. See Press Release, “Rep. Osborne Announces $180,000 Grant Awarded to Santee Sioux Tribe,” August 26, 2005. 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. careful limitations on the scope of retrocession165 or through cooperative agreements or contracts allowing county officials to participate in reservation law enforcement. For example, Omaha excluded traffic offenses on public roads from its retrocession, the Winnebago excluded civil jurisdiction altogether, and Salish & Kootenai excluded felonies.
Most retroceding tribes established cross-deputization agreements with local governments or, in the case of Ely Colony, a contract for the county to provide law enforcement services. These agreements helped ease non-Indians’ concerns about the efficacy of tribal law enforcement. Where local communities were more resistant, tribes turned to public relations campaigns and even, in one case, a boycott of local non-Indian businesses. Increased tribal political and economic power, as a result of gaming and other economic development ventures, has recently improved tribal prospects for securing state support of retrocession. In all the successful retrocession cases, there seems to be a high level of tribal satisfaction with the results. Not only has tribal sovereignty been enhanced through more active involvement of tribal government in community affairs, but law enforcement has been rendered more accountable to the community and is more trusted to address community concerns. Thus, there is more frequent police patrolling, and a higher level of community cooperation with law enforcement and criminal justice systems that more closely match community values. The ultimate consequence has been a drop in crime in several of the case study tribes. More stable legal institutions have also been associated with enhanced economic development, as in the case of Winnebago.
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