Public Law 280 and the Indian Gaming Regulatory Act: Could Two Wrongs Ever Be Made into a Right?
Twetten, Daniel, Journal of Criminal Law and Criminology
As central North America gradually became the United States and the United States gradually became a world military and political leader, Indians were marginalized, killed, and cheated.(1) Yet the United Slates recognized in its Constitution the unique position of tribes.(2) Within sixty years of the birth of the United States, its highest court pronounced tribes "distinct communit[ies], occupying [their] own territory"(3) and named the federal government caretakers of the natives it had displaced and brutalized.(4)
In discharging its duty to care for the tribes, the federal government struck a balance with tribes regarding tribal justice systems. After the passage of the Major Crimes Act in 1885,(5) the Bureau of Indian Affairs, through the Courts of Indian Offenses,(6) maintained jurisdiction over major crimes committed on Indian lands. Tribes retained exclusive jurisdiction over lesser crimes and exercised concurrent jurisdiction over many of the major crimes.(7) However, Congress wiped out this arrangement in 1953 when it passed Public Law 280,(8) granting to six states exclusive jurisdiction over all crimes committed in Indian country in those states.(9)
Public Law 280 created many problems for tribal justice systems, ultimately resulting in higher crime rates for tribes in Public Law 280 states than for tribes in non-Public Law 280 states.(10) As Carol Goldberg-Ambrose, a leading scholar on Public Law 280, puts it: "Tribes had not exactly thrived under the prior regime of federal authority and responsibility. But when the states took over, with their alternating antagonism and neglect of native peoples, tribes had to struggle even harder to sustain their governing structures, economies, and cultures."(11)
Any reform of current laws governing jurisdiction over Indian lands must come from Congress, which has long held plenary power over matters concerning Indian lands.(12) Congress' plenary power allows federal management of nearly all Indian concerns.(13) Congress' plenary power flows from the Indian Commerce Clause,(14) which the Supreme Court has interpreted to give Congress the exclusive right to govern Indian affairs and to deny the states any power to regulate Indian lands.(15)
Congress exercised this power in 1988 when it passed the Indian Gaming Regulatory Act ("IGRA") in response to the steady growth of Indian gaming (e.g., gambling) throughout the previous decade.(16) State concerns were well represented in IGRA, presumably because state interests are better represented than Indian interests in Congress. Despite significant erosion by federal courts,(17) IGRA continues to govern Indian gaming today. Indian gaming generates around $7 billion in annual revenues.(18) The rampant poverty on many Indian reservations(19) is mitigated somewhat by this cash flow.
The potential stream of revenue from IGRA is currently cramped, however. Federal courts interpreted IGRA in such a manner that tribes have struggled to open new gaming facilities.(20) Lifting court-imposed restrictions on Indian gaming growth could potentially result in greater revenues for tribes, which in turn could facilitate tribal development.
Congress should amend IGRA to direct money generated by Indian gaming toward tribal justice development, and amend Public Law 280 to return criminal jurisdiction to tribes. Doing so would allow tribes to fund their own tribal justice systems, rather than rely upon conditional funding, and therefore significantly enhance tribal sovereignty. By amending Public Law 280 and IGRA, Congress could fulfill its Constitutional responsibility toward Indians by creating something for and among Indians. Such a policy would stand in stark contrast to the sad history of degradation and racism perpetrated upon Indians by the United States.(21)
This Comment is presented in four parts. Part I details the Congressional motivation behind Public Law 280, the law's design, and its effects. …