Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280

By Anderson, Robert T. | Washington Law Review, December 2012 | Go to article overview

Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280


Anderson, Robert T., Washington Law Review


Abstract:

This Article canvasses the jurisdictional rules applicable in American Indian tribal territories-"Indian country." The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed.

The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . . The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.

S. COMM. ON THE INTERIOR & INSULAR AFFAIRS, 94TH CONG., BACKGROUND REP. ON PUBLIC LAW 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).

Senator Jackson's statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The modern Indian self-determination policy is not advanced by adherence to termination era experiments like Public Law 280. The Article concludes that federal legislation should provide for a tribally-driven retrocession model and makes proposals to that end.

INTRODUCTION ....................................916

I. INDIAN TRIBES ARE SOVEREIGNS RECOGNIZED UNDER FEDERAL LAW AND FREE OF STATE JURISDICTION ABSENT TRIBAL AGREEMENT OR FEDERAL LAW TO THE CONTRARY ............... 919

II. THE EVOLUTION OF CRIMINAL JURISDICTION IN INDIAN COUNTRY FROM EXCLUSIVE TRIBAL CONTROL TO AN INCREASED STATE ROLE IS INCONSISTENT WITH SELF-DETERMINATION AND CONSENT PRINCIPLES ..................923

A. Federal Jurisdiction over Indians in Indian Country Increased as Indian Nations Succumbed to Federal Domination ........................924

B. Tribes Retain Inherent Jurisdiction over Indians ................926

C. States Have No Jurisdiction over Criminal Matters Involving Indians .....................928

III. P.L. 280 AUTHORIZED STATE CRIMINAL AND SOME CIVIL JURISDICTION IN INDIAN COUNTRY IN A MANNER INCONSISTENT WITH MODERN SELFDETERMINATION POLICIES ..................930

A. The Passage of P.L. 280 Marked a Retreat from the Policy of Support for Tribal Institutions Under the IRA ..........930

B. P.L. 280's Grant of Criminal and Civil Jurisdiction Did Not Include Civil Regulatory Authority ...........932

IV. WASHINGTON'S JURISDICTIONAL SCHEME UNDER P.L. 280 IS CONFUSING AND INCONSISTENT WITH THE CONSENT PARADIGM .............937

V. CONGRESS AMENDED P.L. 280 SO STATES MAY RETROCEDE JURISDICTION, BUT TRIBES HAVE NO FORMAL ROLE IN THE PROCESS ..............945

VI. THE MODERN SELF-DETERMINATION POLICY IS INCOMPLETE WITHOUT TRIBAL AUTHORITY TO INITIATE RETROCESSION AT THE FEDERAL LEVEL ...........951

A. Washington's 2012 Retrocession Legislation Is an Excellent Model for Negotiating Jurisdiction in Indian Country .

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