Public Law 280 and the Indian Gaming Regulatory Act: could two wrongs ever be made into a right?

• Author: Twetten, Daniel

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. Part II examines the structure of tribal courts, their role in tribal sovereignty, and their relationship to tribal cultures. Part III describes Indian gaming in general, IGRA, and IGRA's destruction by federal courts. Finally, Part IV discusses a plan to combat the raging crime rate on reservations in Public Law 280 states. This plan centers around Congressional amendments to both Public Law 280 and IGRA, the combination of which would produce a return of criminal jurisdiction over crimes committed on Indian lands to the tribes and provide a source of funding for tribal justice systems that is independent of any non-tribal government.

1. PUBLIC LAW 280--ITS PURPOSES, DESIGN, AND EFFECTS

   The United States Congress enacted Public Law 280 in 1953.(22) The law mandated that five states (not including Alaska, which was added later) assume jurisdiction for all criminal offenses committed on Indian land in those states.(23) Public Law 280 has harmed tribes in many ways in the nearly half-century since its passage. One of its most significant effects has been higher crime rates for tribes in Public Law 280 states than for tribes in non-Public Law 280 states.(24)

   1. PURPOSES

      Congress enacted Public Law 280 for three purposes--to reduce lawlessness on Indian lands, to lower federal expenditures, and to further the then-popular policy of assimilating Indians into the general American society.(25)

      Congress focused primarily on tribal crime problems when passing Public Law 280.(26) The House of Representatives originally introduced Public Law 280 as a mechanism for combating tribal crime in California.(27) The Senate eventually expanded the scope of the bill upon finding that "the enforcement of law and order among the Indians in the Indian country had been left largely to the Indian groups [and] tribes [were] not adequately organized to perform that function."(28)

      A secondary Congressional motivation in passing Public Law 280 was the reduction of federal expenditures,(29) manifested in a refusal to provide funding to the states onto which Public Law 280 forced criminal jurisdiction over Indian lands. Congress' concern for thrift impacted tribes in Public Law 280 states by eliminating virtually all criminal justice funding for tribes, as the federal government was now out of the business and the state governments did not want to commit resources without federal reimbursement.(30)

      Congress' third motivation in passing Public Law 280 was to further the existing federal goal of Indian assimilation.(31) This motivation is both implicit and explicit within Public Law 280. Looming over the law's passage were two important federal documents relating to Indian policy. First, in 1949, a report prepared by the Truman Administration recommended that the "Indian problem" would be best solved by the "gradual integration of all Indians into the general population and economy."(32) Four years later, in 1953, the House passed House Concurrent Resolution 108, which deemed it "the policy of Congress" to make Indians "subject to the same laws and entitled to the same privileges and responsibilities" as all citizens.(33) This policy of assimilation appears explicitly in the discussion surrounding Public Law 280. One senator noted that Public Law 280 was appropriate because Indians had "reached a state of acculturation and development" allowing for a smooth transition into society at large.(34)

   2. DESIGN

      Public Law 280's design is relatively straightforward.(35) Initially, Public Law 280 transferred all criminal jurisdiction over tribes in California, Minnesota, Nebraska, Oregon, and Wisconsin to those states.(36) Congress added Alaska shortly thereafter.(37) These six states are collectively known as the "mandatory Public Law 280" states, as their assumption of jurisdiction was dictated by Congress.(38)

      Public Law 280 offered every other state the option of assuming criminal jurisdiction over crimes on Indian lands.(39) Ten states opted to accept some sort of jurisdiction via Public Law 280.(40) Eight of these ten states merely assumed limited jurisdiction over particular subject matters.(41) For example, Arizona accepted jurisdiction over pollution,(42) Montana assumed criminal jurisdiction over only one reservation,(43) and Iowa assumed civil jurisdiction over only one reservation.(44) Washington assumed full jurisdiction over most judicial matters on reservations.(45) Florida is the only state that has opted to assume full Public Law 280 jurisdiction on the same level as the mandatory Public Law 280 states.(46)

      Congress amended Public Law 280 in 1968 to require tribal consent for further state assumptions of jurisdiction.(47) No state has assumed further jurisdiction over crimes committed in Indian country since this amendment.

      The 1968 amendments also allowed states to retrocede jurisdiction back to tribes.(48) Five states have returned jurisdiction to certain tribes pursuant to this amendment. Minnesota,(49) Wisconsin,(50) and Nebraska(51) each returned complete jurisdiction over crimes on one reservation to the federal government. In addition, Washington returned jurisdiction to two tribes,(52) and Nevada returned jurisdiction to nearly all tribes.(53)

      In practice, this meant that tribes received jurisdiction over minor crimes, as the federal government merely reclaimed criminal jurisdiction over major crimes while returning jurisdiction over minor crimes to the tribes.(54) This essentially returned the jurisdictional division on those tribes to the way it had been prior to Public Law 280.

      Congress has not amended Public Law 280 since 1968.

   3. EFFECTS

      Despite Congress' stated intention to "reduc[e] lawlessness" on Indian lands,(55) crime on Indian reservations has actually increased during the tenure of Public Law 280.(56) The federal government recognized as much by 1975.(57) In a revealing report, a Department of Justice task force documented the near-total breakdown of internal law enforcement among tribes, especially those in Public Law 280...