Retrocession from Public Law 2801 Before Congress amended Public Law 280 (PL 280) in 1968, tribes could be subjected to state criminal jur...
Retrocession from Public Law 2801 Before Congress amended Public Law 280 (PL 280) in 1968, tribes could be subjected to state criminal jurisdiction under its terms without their consent. Furthermore, once a state was named in the Act or opted into its jurisdictional regime, PL 280 treated the decision as final and irreversible. As we have shown, both tribes and states have had significant, though not identical, concerns about the efficacy of the PL 280 system for administration of criminal justice in Indian country. Thus, it was predictable that soon after the passage of PL 280, both states and tribes would complain that there was no way for either type of government to change the arrangement back to the original situation, that is,
to return state criminal jurisdiction to the federal government, reinstating the prior regime. Congress attempted to rectify this omission with a provision in the Indian Civil Rights Act (ICRA) of 1968.2 ICRA authorized states to “retrocede” PL 280 jurisdiction, or return criminal jurisdiction to the federal government. The effect of complete retrocession would be to reinstate the complex criminal jurisdiction regime that operates in Indian country that has never been subject to PL 280. That alternative regime entails: • exclusive tribal jurisdiction over non-major crimes between Indians and over victimless crimes by Indians; • shared federal and tribal jurisdiction over major crimes committed by Indians and over non-major crimes committed by Indians against nonIndians;
• exclusive federal jurisdiction over crimes committed by non-Indians against Indians; • exclusive state jurisdiction over crimes committed between non-Indians and probably also over victimless crimes by non-Indians.3 ICRA’s provision for retrocession is brief : The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction or both, acquired by such State pursuant to (Public Law 280) ...4 409 1 Heather Valdez Singleton contributed substantially to the writing of this chapter. 2 25 U.S.C. §§ 1321-1326. 3 This regime is described in Chapter 1 and in Nell Newton et al., Cohen’s Handbook of Federal Indian Law, Chapter 9 (LexisNexis, 2005 ed.). 4 25 U.S.C. § 1323. 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. Note that ICRA provides for state initiated retrocession, so that tribes seeking retrocession must first lobby and persuade their state governments.
5 Once state approval is secured, the process then moves to the Department of the Interior (DOI) for review. There are no guidelines regulating how DOI should review retrocession petitions, other than a federal Executive Order specifying that the Secretary of the Interior shall consult first with the Attorney General.6 Questions for This Chapter: Why So Few Retrocessions, Why Have Some Succeeded, and What Has Retrocession Accomplished? Of the over 150 tribes under PL 280 jurisdiction in the lower 48 states, only 31 have successfully retroceded since 1968, and only seven of those are from the five “mandatory” PL 280 states other than Alaska. There have been no retrocessions by the more than 235 tribes and Native villages in Alaska. Retrocessions in Mandatory PL 280 States Alaska None California None Minnesota Bois Forte [40 FR 4026 (1975)] Nebraska Omaha [35 FR 16,598 (1970)] (except for motor vehicle offences) Winnebago [51 FR 24,234 (1986)] Santee Sioux [71 FR 7994 (2006)] Oregon Burns Paiute [44 FR 26,129 (1979)] Umatilla
[46 FR 2195 (1981)] Wisconsin Menominee [41 FR 8516 (1976)] Retrocessions in Optional PL 280 States Florida None Idaho None Montana Salish Kootenai [60 FR 123 (1995)] (misdemeanors only) 410 5 For a discussion of why Congress may have failed to allow for tribally initiated retrocession, even as it was requiring tribal consent for future extensions of PL 280, see Carole Goldberg-Ambrose (with Timothy Carr Seward), Planting Tail Feathers: Tribal Survival and Public Law 280 at 60-64 (UCLAAmerican Indian Studies Center, 1997). 6 Executive Order 11435, Nov. 21, 1968 (Lyndon B. Johnson). 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. Nevada Battle Mountain Colony Carson Colony Dresslerville Colony Elko Colony Goshute Reservation Lovelock Colony Odger’s Ranch Reno-Sparks Colony Ruby Valley Allotment South Fork Reservation Washoe Tribal Farms Washoe Pinenut Allotment Winnemucca Colony and Yomba Reservation [40 FR 27,501 (1975)] Ely Indian Colony [53 FR 5837 (1988) Washington Quinault [34 FR 14,288 (1969)] Port Madison [37 FR 7,353 (1972)] Colville [52 FR 8,372 (1987)] Chehalis, Quileute, and Swinomish [54 FR 19,959 (1989)] Tulalip [65 FR 75948 (2000)] As this list shows, in Nevada,
14 tribes retroceded in one group and, in Washington, three in one group. So, if we count discrete retrocession campaigns, the number shrinks to 16 retrocessions. Considering the widespread evidence of tribal dissatisfaction with state criminal jurisdiction under PL 280, it’s remarkable that so few tribes have retroceded. One purpose of this chapter is to investigate the reasons for the small number of retrocessions. Is the retrocession process too expensive, time consuming, confusing, or politically difficult? In other words, is there something about the way the process is structured that precludes or inhibits tribes from achieving retrocession? Are there other reasons why tribes have not successfully retroceded? For example, tribes may not wish to establish their own criminal codes and courts, something that they would likely have to do after retrocession, given that federal criminal jurisdiction in Indian country is not as extensive as states’ PL 280 jurisdiction.7 Perhaps tribes have been able to overcome the problems presented by PL 280 by means short of retrocession, especially through cooperative agreements with local counties. Conversely,
what might explain why some tribes have succeeded in achieving retrocession? What concerns have motivated their retrocession initiatives, and what has proven most important to their positive results? Besides understanding the reasons for so few retrocessions and the success of some tribes, we also want to investigate the experience of tribes that have chosen to retrocede. Has community satisfaction with law enforcement and criminal justice 411 7 This point is explained in Chapter 1. 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. increased? Does the community perceive that public safety is greater after retrocession than before? Case Studies of Retrocession There is not an extensive literature on retrocession. However, from published sources, both scholarly and journalistic, we have been able to develop several case studies of tribes that succeeded in achieving the removal of state jurisdiction and the reinstatement of federal criminal jurisdiction, and one instance of failed efforts. These studies reveal the obstacles to success, as well as the strategies that successful tribes deployed to reach their goal.
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