State jurisdiction overlooked problem in criminal justice debate

July 13, 2007
Professor Carole Goldberg
UCLA School of Law

Criminal justice in Indian country comes in two distinct flavors - one blends federal and tribal authority, while the other blends state and tribal authority. Reservations across the country are subject to one or the other. But crime reports and most federal hearings on Indian country criminal justice focus only on the federal/tribal reservations. That's a mistake, because the state/tribal reservations encompass nearly one-quarter of the reservation-based tribal population and just over half the tribes in the lower 48 states, not to mention all Alaska Native villages. Any response to crime in Indian country needs to take account of the special problems posed by state jurisdiction.

A logical question to ask at this point is why some reservations are covered by state criminal jurisdiction and others are not. The federal termination policy of the 1950s holds the answer. Under principles of federal Indian law dating back to the 1830s, states have no authority over reservation-based crimes committed by or against Indians. That general rule is subject to one big exception, however. Congress can give states criminal jurisdiction that they would otherwise lack. In the post-World War II years, the federal government was pushing a policy of forced assimilation of Indian people, partly to save the federal government money that it was spending on its trust responsibilities, including criminal justice. Some tribes were slated for full termination - loss of federal recognition, federal services and federal trust status for their lands. Other tribes were targeted for state criminal and civil jurisdiction as a stepping stone to later termination.

To rationalize the empowerment of states, Department of Interior officials stirred up fears of ''lawlessness'' in Indian country. Even if those charges were true, state jurisdiction wasn't the only solution to the problem. Congress could have given greater support to tribal police and justice systems. But in the heyday of termination policy, that alternative had no legs.

At first, Congress passed individual laws granting state jurisdiction over specific tribes, such as the Sac and Fox Reservation in Iowa, or the tribes in individual states, such as New York. Then, in 1953, Congress enacted a comprehensive law that immediately imposed state jurisdiction on the reservations in five named states (California, Minnesota, Nebraska, Oregon and Wisconsin, with Alaska added in 1958), and set up a process for all other states to opt in. This law has come to be known as Public Law 280. Although a few tribes in the named states were excluded from state jurisdiction under Public Law 280, those tribes that became part of the new regime had not been consulted, and their consent had not been obtained. Furthermore, as Public Law 280 was initially written, tribes had no say over states opting into state criminal jurisdiction. That was changed in 1968, when Congress said all future state decisions to join Public Law 280 must follow an affirmative vote by tribal members. But during the period from 1953 to 1968, several states, including Washington, Idaho and Florida, had successfully opted for state jurisdiction, either over all matters or a limited set of offenses. And the 1968 amendment left that entire state jurisdiction in place.

There is a final group of tribes in the grip of state criminal jurisdiction, but not as a result of termination policy. These are tribes that achieved federal recognition or land claims settlements over the past 30 years, and had to agree to state jurisdiction in order to have their sovereignty acknowledged by the federal government or some of their lands returned to them. The Mashantucket Pequot Tribe in Connecticut and the Ysleta del Sur Pueblo in Texas fall into this category, but there are at least a dozen others like them.

Five common problems plague all the tribes subject to state criminal jurisdiction. First, these Indian nations have to share more criminal authority with another government. Even after tribes convinced the federal courts that their own criminal jurisdiction survived passage of Public Law 280 and similar laws, the affected Indians are still subject to state authority as well. Public Law 280 and its clones apply nearly all state criminal laws to Indians on reservations. In contrast, on reservations where tribes share criminal authority with the federal government, federal criminal jurisdiction does not cover all offenses, especially less serious crimes committed by one Indian against another. On the non-Public Law 280 reservations, only the tribes can prosecute those crimes (or choose not to). Public Law 280 is thus a more severe blow to tribal sovereignty.

Second, Public Law 280 and similar laws did not provide federal funding to support state jurisdiction. These laws were some of the original unfunded federal mandates. The fact that Indian trust lands are not subject to state and local property taxes should have led the federal government to provide compensating payments, as it does for education. Not surprisingly, many states and counties have shortchanged law enforcement and criminal justice for Indian country.

Third, longstanding tensions between states and tribes have sometimes spilled over into the criminal justice arena. A University of California - Los Angeles study of Public Law 280, based on interviews with hundreds of reservation residents, found many instances where tribal members complained of anti-Indian bias, against Indian victims as well as perpetrators, in police conduct and court proceedings.

Fourth, federal financial support for tribal police and courts in Public Law 280 jurisdictions has lagged far behind support for other tribes. Funding data gathered by UCLA's Native Nations Law & Policy Center from the Department of the Interior reveals that tribes subject to state jurisdiction receive less than 20 percent per capita for tribal law enforcement and criminal justice as compared with other tribes. Not surprisingly, the result has been far fewer tribal police departments and court systems on reservations subject to state jurisdiction. This lack of local control has meant less cooperation with law enforcement efforts, less attention to tribal priorities for community safety (typically drug enforcement and domestic violence concerns), and less accessible police and courts. Because there are some exceptions and gaps in state law enforcement authority under Public Law 280, the absence of a tribal criminal justice system has sometimes meant a total vacuum of criminal jurisdiction, leading to the very ''lawlessness'' that Public Law 280 was designed to address.

Fifth, although Public Law 280 allows criminal justice on any given reservation to be switched from the state/tribal arrangement back to the standard federal/tribal variety, this process, known as retrocession, is under total state control. If states are resistant, there is nothing tribes can do. And even if a tribe can persuade the state, as the Tulalip Tribe did with the state of Washington, the Department of the Interior has taken the position that it will not fund any new tribal and federal law enforcement responsibilities.

Some of the difficulties associated with Public Law 280 have been mitigated by U.S. Justice Department initiatives to promote development of tribal police and courts. Other problems could be alleviated by greater cooperation between tribal and state authorities, through cross-deputization agreements and otherwise; but some local non-Indian communities, like Mille Lacs County in Minnesota, reject the very existence of tribes, and rebuff any overtures. Some tribes with gaming revenue have resorted to paying county sheriffs for services that the counties are already obligated to provide under the law, just so the community can receive more responsive policing.

Until we put state jurisdiction on reservations under the spotlight, just as we do the federal/tribal system, community safety in Indian country will continue to suffer.

Carole Goldberg is professor of law at UCLA, where she directs the joint degree program in law and American Indian studies, and serves as faculty chair of the Native Nations Law and Policy Center.