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

• Publication year: 2021

NEGOTIATING JURISDICTION: RETROCEDING STATE AUTHORITY OVER INDIAN COUNTRY GRANTED BY PUBLIC LAW 280

Robert T. Anderson (fn*)

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 AND 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. PL. 280 AUTHORIZED STATE CRIMINAL AND SOME CIVIL JURISDICTION IN INDIAN COUNTRY IN A MANNER INCONSISTENT WITH MODERN SELF-DETERMINATION POLICIES...................................................930

A. The Passage of PL. 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 PL. 280 IS CONFUSING AND INCONSISTENT WITH THE CONSENT PARADIGM.....................................................937

V. CONGRESS AMENDED PL. 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................................................................................951

B. Federal Law Should Be Changed to Provide a Tribally-Controlled Process for Negotiating the Balance of Jurisdiction in Indian Country..............................................956

CONCLUSION....................................................................................963

INTRODUCTION

The United States was founded upon the principle of the "consent of the governed,"(fn1) although this proposition has dubious validity with respect to Indian tribes and their citizens. Despite early respect for tribal sovereignty and complete independence from state jurisdiction, the Supreme Court recognized nearly unlimited power in Congress to unilaterally alter the jurisdictional arrangements in tribal territories.(fn2) This power over Indian tribes and their territory was exercised without the meaningful consent of the affected tribes, and thus is morally suspect.(fn3) Nevertheless, Congress utilized its authority to assert federal control of criminal matters in Indian country, and later to authorize some state criminal and civil jurisdiction over tribes and their territories.

In 1953, Congress passed Public Law 280 (P.L. 280),(fn4) which required six states to assert jurisdiction over Indian country, and opened the door for other states to do the same if they wished.(fn5) It provided no role for the affected tribes in state decisions to assert jurisdiction. The unilateral imposition of state jurisdiction has long been regarded as offensive to tribal governments and Indian people because the states, as opposed to the federal government, in many ways remain the "deadliest enemies" of the tribes.(fn6) In 1963, Washington State asserted jurisdiction over Indian country and Indian people in a complex fashion that bewilders all who enter the jurisdictional maze.(fn7) This assumption of state jurisdiction ignores the democratic consent principle and is inconsistent with modern policies promoting tribal self-determination.(fn8) The separate sovereign status of tribes, manifested in the commerce clause of the Constitution(fn9) and the foundational decisions of the Supreme Court,(fn10) supports continued recognition of tribal territories as areas where tribal law is paramount to the exclusion of state law. However, recognizing that Congress and the Supreme Court have in fact frequently authorized the assertion of state authority, Indian tribes are positioned as supplicants to Congress, or the states themselves, when requesting that state jurisdiction over Indian country be withdrawn-or retroceded. Indeed, some states view their jurisdiction over Indian country as the historic norm when in fact it is a relatively recent development.

This Article outlines the legal history of federal-tribal relations, primarily in the criminal jurisdiction context, and examines in some detail the congressional authorization of state jurisdiction over Indian country nationwide and in the Washington-specific context. It reveals the extreme complexity of civil and criminal jurisdiction over Washington's Indian country, and describes recent progressive state legislation that provides tribes with a path to remove state authority, albeit dependent on the good will of the Governor of the state. The Article next reviews several options for adjusting state and tribal jurisdiction in the areas governed by the Indian Child Welfare Act and the Indian Gaming Regulatory Act. It concludes with the recommendation that Congress provide a tribally-driven option for removing state jurisdiction over Indian country. There should be a process of negotiation and information sharing with the states that obtained this non-consensual jurisdiction, but in the end a tribal request for the retrocession of state jurisdiction should be between the affected Indian tribe and the United States. The process should provide an opportunity for interest-based discussions to ensure that the exercise of criminal and civil jurisdiction in Indian country is carried out in a way that best serves all citizens.

Part I of this Article provides historical context for the modern jurisdictional rules applicable to Indian tribes and their territory. Part II explains the baseline criminal and civil jurisdictional rules that operate in Indian country. Part III outlines the manner and scope of P.L. 280's jurisdictional grant to the states. Part IV reviews how Washington asserted jurisdiction under P.L. 280, and reveals the complex jurisdictional scheme. Part V details the state legislation that became effective in June 2012, and established a process for the elimination of some or all state jurisdiction upon the request of an affected Indian tribe. Part VI explores the legal and policy issues implicated in what is essentially a negotiation of federal, tribal, and state sovereignty under P.L. 280's framework. It also suggests approaches to federal legislation to guide the process in a manner consistent with modern tribal self-determination policy.

...