Exclusive of What? the Historical Context of the 1970 "metlakatla" Amendment to Pl 280

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 23

§ 23 Alaska L. Rev. 1. EXCLUSIVE OF WHAT? THE HISTORICAL CONTEXT OF THE 1970 "METLAKATLA" AMENDMENT TO PL 280

Alaska Law Review
Volume 23
Cited: 23 Alaska L. Rev. 1

EXCLUSIVE OF WHAT? THE HISTORICAL CONTEXT OF THE 1970 "METLAKATLA" AMENDMENT TO PL 280

ANDY HARRINGTON ^[*]

I. INTRODUCTION

II. THE METLAKATLA AMENDMENT AND THE DIVESTITURE INTERPRETATION OF PL 280

A. Relevance of the Divestiture Interpretation in Alaska and Elsewhere

B. Case Reliance on the Metlakatla Amendment as Support for the Divestiture Interpretation

III. INDIAN COUNTRY, RESIDUAL JURISDICTION, AND THE DIVESTITURE INTERPRETATION

A. Indian Country and the Federal Policy Underlying Conferral of Jurisdiction to State Courts in PL 280

B. Background to the 1958 Addition of Alaska as a PL 280 Jurisdiction

C. Early History of the Divestiture Interpretation

D. History of the Divestiture Interpretation in Pre-ICWA Alaska

E. Residual Tribal Jurisdiction under PL 280 in post-ICWA Alaska

IV. HISTORY OF THE METLAKATLA AMENDMENT

A. PL 280 and the Metlakatla Reservation

B. Metlakatla and the Indian Civil Rights Act

C. Metlakatla and the State Retrocession Bill

V. THE METLAKATLA AMENDMENT

A. The 1970 Amendment and Subsection (a)

B. The 1970 Amendment and Subsection (c)

VI. CONCLUSION

FOOTNOTES

This Article examines the legal and historical contexts of the 1970 "Metlakatla" amendment to PL 280. This amendment is frequently relied upon by proponents of a divestiture interpretation of PL 280 -- an interpretation that PL 280 left the affected Indian Tribes within mandatory PL 280 states with no residual civil or criminal jurisdiction. The author argues that the conventional reliance upon that amendment to support a divestiture interpretation is based on flawed premises and that a more complete analysis of the language, background, and legislative history materials (both state and federal) pertaining to the amendment should lead to the conclusion that the amendment is in fact more consistent with a non-divestiture interpretation.

I. INTRODUCTION

Public Law 83-280 (PL 280) ^[1] was primarily intended to enable state criminal prosecutions for crimes committed within Indian country and, secondarily, to open state courthouse doors to civil ac-[*pg 2] tions arising from within Indian country. PL 280 has been described as a "complicated statute which has been very controversial . . . often . . . misunderstood and misapplied . . . [with a] practical impact . . . way beyond that which was legally required, intended, and contemplated." ^[2] At the root of the debate is whether, in conferring jurisdiction on state courts, PL 280 stripped tribes in Alaska of their jurisdiction.

This divestiture interpretation of PL 280 has been rejected in virtually all jurisdictions. ^[3] Though it is still occasionally raised in various courts and has met a friendly reception in Alaska's state courts, ^[4] the divestiture interpretation's continuing vitality in Alaska is not clear.

Supporters of the divestiture interpretation often cite Public Law 91-523, ^[5] a 1970 amendment to PL 280 's criminal provision enacted in response to concerns raised by the Metlakatla Indian Community in Alaska ("Metlakatla Amendment"). ^[6] This Article reviews the arguments used to link the Metlakatla Amendment to the divestiture interpretation by focusing on the legislative history of the amendment and its relation to prior amendments. Ultimately, this Article concludes that the Metlakatla Amendment neither ratified nor codified the divestiture interpretation into PL 280.

[*pg 3]

II. THE METLAKATLA AMENDMENT AND THE DIVESTITURE INTERPRETATION OF PL 280

A. Relevance of the Divestiture Interpretation in Alaska and Elsewhere

Is any discussion of PL 280 in Alaska necessary? Many might initially respond in the negative. In 1998, the United States Supreme Court in Alaska v. Native Village of Venetie Tribal Government ^[7] held that the Alaska Native Claims Settlement Act (ANCSA) ^[8] had greatly reduced the acreage which could be considered Indian country in Alaska. ^[9] As the Alaska Supreme Court noted the following year in John v. Baker, ^[10] " P.L. 280, which grants states jurisdiction over disputes in Indian country, has limited application in Alaska because most Native land will not qualify for the definition of Indian country." ^[11] The opinion went on to hold that PL 280 was, thus, irrelevant to a tribe's claim to inherent membership-based jurisdiction outside Indian country. ^[12]

Yet the debate over PL 280 in Alaska continues between pro-tribal advocates, who favor tribal jurisdiction, and anti-tribal advocates, who press the divestiture interpretation. Many who oppose tribal court jurisdiction in Alaska state that PL 280 abrogated tribal jurisdiction both within and outside of Indian country. Most recently, this view was articulated by former Alaska Attorney General Gregg Renkes in October of 2004 when he issued an opinion ^[13] taking the position that Native Village of Nenana v. State, Department of Health and Social Services, ^[14] even though overruled in part, ^[15] still stood for the proposition that PL 280 deprives Alaska Native Villages of any authority to initiate child protection proceedings in tribal court. ^[16] The opinion states Alaska's tribes can only exercise jurisdiction by (a) petitioning to resume jurisdiction under 25 [*pg 4] U.S.C. 1918, ^[17] or (b) petitioning to transfer a case from state court under 25 U.S.C. 1911(b). ^[18] By applying the divestiture interpretation of PL 280 to Alaska Native Villages regardless of whether they occupy Indian country perpetuates the divestiture debate despite the dearth of Indian country in Alaska after ANCSA. ^[19]

Pro-sovereignty advocates, although in strong disagreement with the Renkes opinion, would agree that PL 280 still has relevance in Alaska because the Venetie ruling did not completely eliminate Indian country in Alaska. ^[20] As long as there is some Indian country in Alaska, the question of whether PL 280 was a divestiture statute will remain relevant. The Metlakatla Reservation, the sole Alaska reservation to have survived ANCSA, is clearly Indian country within even the narrowest interpretation of the statutory definition. ^[21] Further, the approximately 900,000 acres of restricted Alaska Native allotments ^[22] and the approximately 3,800 Alaska Native townsite lots ^[23] are strong candidates for Indian country status. ^[24] PL 280 therefore has some geographical scope in [*pg 5] Alaska, although the exact delineation of that scope may need to await future court decisions.

PL 280 certainly has application within the other mandatory PL 280 states and within approximately ten states that have exercised the option PL 280 gave them to extend their jurisdiction into Indian country. ^[25] The dissent in John v. Baker opined that PL 280 eliminated tribal jurisdiction in areas over which state jurisdiction was extended. ^[26] If this view were ultimately to prevail, it would have a profound impact on tribal-state relations in those other states that have consistently recognized and upheld concurrent tribal jurisdiction. The dissent was not Alaska-specific: "Congress therefore chose to define the remaining Indian country in Alaska covered by P.L. 280and all Indian country in the other five states, except for the excepted reservations, as 'areas over which the several States have exclusive jurisdiction.'" ^[27]

Thus, it is not surprising that the Metlakatla Amendment has been utilized outside Alaska to resist residual tribal jurisdiction. For example, the Cabazon Band of Mission Indians had to argue about the Metlakatla Amendment in federal district court in 1998. ^[28] The tribe countered in part that the Amendment "was adopted to resolve a problem unique to Alaska as to the status of Indian country in that state." ^[29] The Cabazon court eventually rejected the divestiture interpretation, concluding that the Band retained its inherent criminal jurisdiction notwithstanding PL 280. ^[30] Still, the case [*pg 6] illustrates two points: first, that the Metlakatla Amendment has fueled legal arguments against tribes outside as well as within Alaska, and second, that all too often the response from non-Alaskan tribes has been that the amendment should be regarded as "unique to Alaska" and, that whatever its meaning, it should not apply to "Indian tribes in other designated states." ^[31] Any attempt to distinguish Alaska from other PL 280 states would be erroneous; PL 280 does not treat Alaska differently from other listed "mandatory" states. ^[32]

For those reasons, notwithstanding the Venetie decision and the marked diminution of Indian country in Alaska, it is not a completely academic exercise to address the 1970 Metlakatla Amendment in historical context.

B. Case Reliance on the Metlakatla Amendment as Support for the Divestiture Interpretation

The Metlakatla Amendment had two components: 1) a change to 18 U.S.C. 1162(a) to list Metlakatla as an "exception" to the areas of Indian country covered by the statute, and 2) the addition of the phrase "as areas over which the several states have exclusive jurisdiction" to subsection (c), which makes two federal criminal jurisdiction provisions...