Further development is shown in other areas of the reservation that demonstrate the capacity of the Winnebago Tribal Government. By 1985, ...
Further development is shown in other areas of the reservation that demonstrate the capacity of the Winnebago Tribal Government. By 1985, twelve tribal members had been certified as qualified police officers by the Bureau of Indian Affairs and/or the Nebraska State Police Academy. The Chief Judge of the Winnebago Tribal Children’s Court, an enrolled member of the Tribe, had a law degree from the University of Nebraska. In addition, pursuant to the Indian Child Welfare Act of 1978, the Tribe reassumed jurisdiction over child custody proceedings and heard nearly 300 cases. To address health and infrastructure needs,
the Tribe promulgated codes in child welfare, fish and game, natural resources, and hazardous waste or disposal areas. The Tribe also developed codes for building, environment, taxation, and criminal and civil matters. Tribal social service programs also operated in the areas of substance abuse and child welfare. Rehabilitation and related counseling services were enacted for those dependent on drugs, and foster care and group homes were made available for needy children. Additionally, the Tribe 418 40 Colton, supra note 33, at 27. 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. had an emergency medical team,
a tribal health department, a community college, pre-school and other adult level educational programs, and employment assistance services.41 In February 1985, state senator James Pappas introduced Legislative Resolution 57, recommending retrocession of civil and criminal over the Winnebago Reservation. Despite the obvious problems with the prevailing law enforcement scheme, opposition to retrocession was, again, fervent. The most vociferous opponents were non-Indian residents of the reservation, who owned 80% of the land within the original boundaries of the reservation and who had the support of the county’s sheriff and its Board of Supervisors. The Board expressed the concern of its citizens that the Tribe would use its civil jurisdiction to tax and condemn the land of non-Indians.42 Senator James Goll, whose district included the Winnebago reservation, opposed retrocession because he believed it created racial segregation and would not guarantee a competent substitute for state law enforcement.43 Senator Wiley Remmers opposed the resolution because it would delay the Tribe’s assimilation into American culture and “perpetuate reservation life that is not a credit to anybody.”44 Initially, opposition was not limited to non-Indians. Some tribal members were concerned about inadequate funding, inadequately trained tribal personnel, poor level of responsiveness from BIA, cronyism within the Tribe, and the potentially divisive effects that assuming jurisdiction would have on internal tribal relations. Moreover, there was a prevailing feeling among some that a tribal court was no different from the Anglo system, so why bother. In the end, however, the tribal members overwhelmingly supported retrocession. LR 57’s civil jurisdiction component was a magnet for the most vociferous opposition because of concerns surrounding “tribal court authority over major civil lawsuits involving non-Indians.”45 In addition, many voiced concerns that subjecting non-Indians to a tribal court system with foreign procedures and limited federal court 419 41 Colton, supra note 33, at 27-30. 42 Wilkinson, supra note 33, at 794. On March 28, 1985, the Nebraska Attorney General issued an opinion indicating that the tribe would not gain additional powers of taxation and condemnation as a result of retrocession. Neb. Att’y Gen. Op. No. 085587, March 28, 1985, available at http://www.ago.state.ne.us/ (last visited August 18, 2007). 43 Kevin Dugan, "Winnebago Tribe Given Independence," U.P.I., Jan. 16, 1986. 44 Id. 45 Wilkinson, supra note 33, at 794. 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. oversight would imperil the non-Indians’ civil liberties.46 Retrocession of criminal jurisdiction raised fewer problems because it would merely restore the Tribe’s jurisdiction over tribal members.47 Eventually, Senator Pappas and other pro-retrocession senators abandoned the fight for civil jurisdiction to protect the return of criminal jurisdiction. When finally put to a vote in the Nebraska legislature, LR 57 to retrocede criminal jurisdiction passed by a bare majority, 25-21.48 The Tribe, the BIA and the Nebraska State Patrol (a statewide police agency), then agreed to enter into a full cross-deputization agreement covering the Winnebago Reservation, which would go into effect on the date of retrocession. That day came in July 1986, when the Department of the Interior accepted Nebraska’s retrocession of criminal jurisdiction over the Winnebagos.49 Since the passage of Resolution 57, “the positive impact of attaining a semblance of self-government has been reflected in the strides and achievements the Winnebago have made.”50 The Tribe has established a thriving economic empire through its economic arm, Ho-Chunk Inc., which has used the profits from the Tribe’s casino to finance reservation housing, medical facilities, and improvements to the high school.51 Indeed, through diversified investments, Ho-Chunk Inc. boosted “the Tribe’s discretionary annual income ... from a mere $150,000 [in 1991] to $50 million” in 2001.52 The Winnebago Tribe has also negotiated an agreement with the State that authorizes tribal police officers who have passed a state law enforcement training course to write traffic citations on nontribal members.53 420 46 See Hearing Before the Judiciary Committee of Nebraska, at 23 (statements of Senator Beutler) (Apr. 17, 1985); Wilkinson, supra note 33, at 792. 47 Hearing Before the Judiciary Committee of Nebraska, at 23 (statements of Senator Beutler) (Apr. 17, 1985). 48 Id. at 28-29. 49 51 FR 24,234 (1986). 50 Colton, supra note 33, at 33. 51 "Winnebago Tribe Prospers From Casino Profits," Hocak Worak, Aug. 8, 2001, available at http:// www.hocakworak.com/ (last visited August 18, 2007). 52 Id.; Colton, supra note 33, at 35 53 See Cross-Deputization Agreement By and Between The Bureau of Indian Affairs, The Nebraska State Patrol and the Winnebago Tribe of Nebraska (signed June 1, 2001), available at http://www.ncai.org/main/ pages/issues/governance/agreements/documents/ ne_tax_motor_fuel_tax_agreement_between_winnebago_tribe_of_nebraska_and_state_of_nebraska_januar y_2002.pdf (last visited August 18, 2007); Paul Hammel, "State Seeks Agreement on Tribal Ticketing," Omaha World Herald. Jan. 9, 2003, p. 3b. 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. Shoshone-Bannock Tribes of the Fort Hall Reservation: In 1963, Idaho opted for Public Law 280 jurisdiction, limited to seven specified subject matters: compulsory school attendance; juvenile delinquency and youth rehabilitation; dependent, neglected, and abused children; insanity and mental illness; public assistance; domestic relations; and operation and management of motor vehicles on roads maintained by the county or state.54 Then, the state was permitted to assume such jurisdiction without tribal consent; while the Shoshone-Bannock expressly objected to the extension of state jurisdiction.55
Furthermore, the Supreme Court had not yet determined that Public Law 280 encompasses criminal prohibitory jurisdiction and jurisdiction of civil actions, but does not grant states jurisdiction over civil regulatory matters.56 That later ruling was to make it questionable whether the state could exercise authority over all the seven subject areas designated in state law. 57 At the same time Idaho extended its jurisdiction over the seven subject areas, it also provided that, with tribal consent, state jurisdiction could extend further, either following negotiations with the state or through unilateral action of the tribe.58 There are five tribes in Idaho: Coeur d’Alene, Kootenai, Nez Perce, Northwestern Band of Shoshoni, and Shoshone-Bannock. Only one, Nez Perce, opened the door to additional state jurisdiction, by passing a resolution consenting to concurrent state jurisdiction over 18 criminal offenses.59 Retrocession became a possibility under Public Law 280 in 1968. Eight years later, the American Indian Policy Review Commission (AIPRC) issued its Final Report, which included harsh criticism of Public Law 280 and called for its repeal.60 Just a few years after that, an Idaho state senator from the Shoshone-Bannock area introduced a bill that would remove the state’s Public Law 280 jurisdiction over the seven subject areas for 421 54 Idaho Code § 67-5101. 55 Lori Edmo-Suppah, “Committee Prints P.L. 280 Retrocession Bill: Legislation Would Give Jurisdiction Back to Tribes in 7 Areas,” Sho-Ban News, Feb. 4, 1999, Vol. 23, Iss. 5, p. 1. 56 See Bryan v. Itasca County, 426 U.S. 373 (1976). 57 For example, in State v. George, 127 Idaho 693, 905 P.2d 626 (1995), the Idaho Supreme Court found that Idaho’s traffic laws were criminal/prohibitory rather than regulatory in nature. In several other Public Law 280 states, such as Minnesota, the courts have reached the opposite conclusion. See State v. Stone, 572 N.W.2d 725 (Minn. 1997). For further discussion of disputes regarding the scope of Idaho’s Public Law 280 jurisdiction, see Emily Kane, State Jurisdiction in Idaho Indian Country under Public Law 280, 48 Advocate (Idaho) 10 (January 2005). 58 Idaho Code § 67-5102. 59 Nez Perce Tribal Resolution 65-126 (April 13, 1965), cited in Kane, supra note 57, at 11. Nez Perce was relatively late in developing its own law enforcement and criminal justice infrastructure. See “State Solons Consider Repealing P.L. 280,” Sho-Ban News, Jan. 17, 1979, p. 3. 60 American Indian Policy Review Commission, Task Force Four Report on Federal, State, and Tribal Jurisdiction, Issues in Public Law 280 States 4-33 (1976). 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. any tribe that did not request such jurisdiction.61 Idaho’s largest tribe, the ShoshoneBannock, had also developed its own law enforcement and judicial apparatus, as well as a social services system. Reporting on this measure, the Shoshone-Bannock tribal newspaper emphasized the AIPRC’s critique of Public Law 280, particularly its connections with the reviled federal policy of termination, and its adverse affect on tribal sovereignty. 62 While the bill failed, the Shoshone-Bannock’s interest in retrocession did not wane. In 1986, for example, at a tribal Business Council meeting to discuss whether to endorse state legislation authorizing peace officer status for tribal police, council members expressed their hope that “passage of the bill would eventually result in retrocession of Public Law 280 in Idaho.
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