The Reach of Public Law 280 Today Affected Tribes Today, Public Law 280 structures law enforcement and criminal justice for 23% of the res...
The Reach of Public Law 280 Today Affected Tribes Today, Public Law 280 structures law enforcement and criminal justice for 23% of the reservation-based tribal population in the lower 48 states and all the Alaskan Natives. Another way of measuring its impact is that 51% of all federally recognized tribes in the lower 48 states and 70% of all recognized tribes (including Alaska Native villages) are affected by Public Law 280. Further details are necessary to understand the precise reach of Public Law 280 today. For purposes of this Report, we divide tribes into the following categories: 7 8 Although no consent has occurred within the framework of Public law 280, some tribes have consented to state jurisdiction since 1968 as part of restoration to federal jurisdiction, initial federal recognition, or a land claims settlement act. Examples include the Mashantucket Pequot in Connecticut and the Ysleta del Sur Pueblo in Texas. See Nell Newton et al.,
Cohen’s Handbook of Federal Indian Law § 6.04[4][c] (LexisNexis, 2005 ed.). 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. · PL 280 (mandatory or optional) — tribes subject to the full array of state criminal jurisdiction allowable under Public Law 280, either because they are in states named in the act (“mandatory” states) or because their state opted into Public Law 280 (“optional” states); · PL 280 Partial (optional state) — tribes in optional states, where the states chose to assert less than full criminal jurisdiction; · PL 280 Limited Territory
— tribes in Alaska, a named (mandatory) state under Public Law 280, which do not have reservations and, therefore, are covered by Public Law 280 only with respect to trust allotments or similar lands that may be located within their territory; · Excluded — tribes located in states named in Public Law 280 but specifically excluded from coverage under the legislation; · Retroceded — tribes once covered by Public Law 280, either because they were in one of the named (mandatory) states or because their state opted into Public Law 280, but which subsequently were removed from Public Law 280 jurisdiction through the state’s retrocession, or return, of that jurisdiction to the federal government; · Retroceded Partial — tribes once covered by Public Law 280, either because they were in one of the named (mandatory) states or because their state opted into Public Law 280, but which subsequently were removed from some but not all Public Law 280 jurisdiction through the state’s retrocession, or return, of that jurisdiction to the federal government; · Non-PL 280 — tribes never covered by Public Law 280. The status of tribes in the six mandatory states named in Public Law 280 for purposes of criminal jurisdiction is as follows: · Alaska (229 tribes — 1 PL 280, 228 PL 280 Limited Territory): None of the state’s original Public Law 280 jurisdiction has been retroceded, and no tribes were excluded from the statute at the outset. Public Law 280, however, applies only within “Indian country,”
and the United States Supreme Court has held that the Alaska Native Claims Settlement Act of 1972 eliminated much of the Indian country in Alaska when it abolished all but one of the reservations. Except for that one reservation, the Metlakatla Indian Community, only scattered Native 8 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. town-sites9 and trust allotments10 remain as Indian country in Alaska. As a consequence, most Alaska Native village lands are subject to state jurisdiction, not because of Public Law 280 but because they are not Indian country at all. For the Metlakatla Indian Community,
Congress has underscored what is true for all tribes under Public Law 280 — that tribal jurisdiction is concurrent or shared. Because Congress has gone out of its way to emphasize Metlakatla’s jurisdiction, and perhaps also because Metlakatla is a relatively isolated island, the BIA has been unusually supportive of that Tribe’s law enforcement and criminal justice systems. · California (106 tribes — all PL 280): None of the state’s original Public Law 280 jurisdiction has been retroceded, and no tribes were excluded from the statute at the outset. · Minnesota (13 tribes — 1 excluded, 1 retroceded, 11 PL 280): One tribe — Red Lake Band of Chippewa — was excluded from Public Law 280 at the outset. Another tribe — Nett Lake Band of Chippewa (Bois Fort Reservation) — was the subject of retrocession in 1975. · Nebraska (5 tribes — 2 retroceded, 1 retroceded partial, 2 PL 280, 1 no Indian country): Three tribes have been the subject of retrocession, the Omaha in 1970, the Winnebago in 1986, and the Santee Sioux in 2006. The Omaha retrocession was partial, leaving under state jurisdiction offenses involving the operation of motor vehicles on public roads or highways within the reservation. Of the remaining two tribes, one is subject to Public Law 280 and the other does not currently have any land base that would constitute Indian country for purposes of Public Law 280. · Oregon (9 tribes — 1 excluded, 1 retroceded, 7 PL 280): One tribe — Warm Springs — was excluded from Public Law 280 at the outset. One other tribe — the Umatilla— was the subject of retrocession in 1981. · Wisconsin (11 tribes — 1 excluded, 10 PL 280): One tribe — Menominee — was excluded from Public law 280 at the outset. Subsequently the Tribe was terminated; when it was later restored to federal recognition, the state retroceded its Public Law 280 jurisdiction. 9 9 The Bureau of Indian Affairs Realty Office in Juneau, Alaska, has over 4,000 restricted lots on record. 10 Many thousands of allotments exist throughout Alaska, each parcel being 160 acres in size. Before allotments were ceased for all but veterans in 1971, approximately 10,000 applications had been filed for over 16,000 parcels. Another 3,250 applications are still pending. Statement of Henri Bisson, State Director, Alaska State Office, Bureau of Land Management
, U.S. Department of the Interior before the Senate Energy & Natural Resources Committee, Subcommittee on Public Lands & Forests, Anchorage, Alaska, Field Hearing on S. 1466, Alaska Land Transfer Acceleration Act of 2003 and other bills, August 6, 2003. 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 status of tribes in the five states that successfully opted for Public Law 280 jurisdiction11 is as follows: · Florida (2 tribes, all PL 280): Florida opted for Public Law 280 jurisdiction in 1962. One of the two tribes, the Seminole, has four separate reservations. · Idaho (4 tribes, all PL 280 partial): In 1973, Idaho opted for Public Law 280 jurisdiction as to seven named subject areas only — compulsory school attendance; juvenile delinquency and youth rehabilitation; dependent, neglected, and abused children; insanity and mental illness; public assistance; domestic relations; and the operation and management of motor vehicles upon highways and roads maintained by the county or state. Some of these subject areas, such as domestic relations, do not implicate criminal jurisdiction. In addition, a 1976 decision of the United States Supreme Court indicates that some of these subject areas may not be permissible bases for state jurisdiction under Public Law 280 because they are regulatory in nature rather than criminal (see p. 11-12, infra). In the end, the main criminal jurisdiction that Idaho exercises through Public Law 280 is jurisdiction over child abuse, criminal traffic offenses, and acts by juveniles that would be criminal if committed by adults. · Montana (7 tribes, 6 non-PL 280, 1 retroceded partial): In 1963, Montana opted for state jurisdiction over any tribe that consented. Only one tribe consented — the Confederated Salish and Kootenai Tribes. In 1995, the state retroceded jurisdiction over felonies back to the federal government for the Confederated Salish and Kootenai Tribes. · Nevada (16 tribes, all retroceded): Nevada opted for state jurisdiction under Public Law 280 in 1967. In 1975 it retroceded jurisdiction over all but one of the tribes, and in 1988 it retroceded jurisdiction over the remaining tribe. · Washington (29 tribes, 4 PL 280, 18 PL 280 partial, 7 retroceded partial):
In 1957, Washington opted for state jurisdiction under Public Law 280 for any tribe that would give its consent. Ten tribes provided resolutions of consent under the terms of this act. In 1963, Washington amended this law to assert state jurisdiction, regardless of tribal consent, over all non-trust lands on reservations, over non-Indians on reservations, and over eight subject areas: compulsory school attendance; public assistance; domestic relations; mental illness; juvenile delinquency; adoptions; dependency matters; and operation of vehicles on public roads. The 1963 amendment also provided that Indians on trust lands could become subject to full, state criminal jurisdiction under Public Law 280 with tribal consent. Some of the eight subject areas, such as domestic relations, do not implicate criminal jurisdiction. In addition, a 1976 decision of the United States Supreme Court indicates that some of these subject areas may not be permissible bases for state jurisdiction under Public Law 280 because they are regulatory in 10 11 In some states, such as Arizona, South Dakota,
and North Dakota, assertions of state jurisdiction under Public Law 280 have been invalidated by courts. In one state, Utah, the assertion of state jurisdiction was conditioned on tribal consent, and no tribe has provided its consent. 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. nature rather than criminal (see pp. 11-12, infra). Thus, where Washington’s Public Law 280 jurisdiction is limited to these eight subjects, state criminal jurisdiction is confined to child abuse, criminal traffic offenses, and acts by juveniles that would be criminal if committed by adults. Over the years, the state of Washington has retroceded its criminal jurisdiction over seven tribes in the state, including six of those that originally consented to full Public Law 280 jurisdiction. In most instances, however, this retrocession does not affect the state’s jurisdiction over the eight compulsory subject areas, such as juvenile offenses. The tribes that have been the subject of retrocession are Tulalip (2000), Chehalis (1989), Quileute (1989),
Swinomish (1989), Colville (1987), Suquamish (1972), and Quinault (1969). With a few exceptions, the pattern of Public Law 280 jurisdiction is not uniform within states, even in the states originally named in the statute. The variations within states regarding control/accountability over law enforcement and criminal justice, as well as the variations in funding patterns for these functions, have made it possible for this research project to carry out some potentially useful comparisons (see Chapter 3 of this Report).
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