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American University Law Review
August, 1998


CONCURRENT TRIBAL AND STATE JURISDICTION UNDER PUBLIC LAW 280

Vanessa J. Jimenez*
Soo C. Song**

INTRODUCTION

Every nation's survival and self-governance hinges on its ability to maintain law and order and secure "comfortable, safe, and peaceable living" among its citizens. Indian nations are no different. Tribal governments need to maintain an adequate measure of justice and peace among their members if they are to survive and develop as viable entities. Tribal justice systems, including tribal courts and law enforcement, are essential institutions of tribal self-government. Currently, many tribal justice systems-widely varied in their relative sophistication and form-find themselves at a pivotal point in their development. Although increasing in number and prominence, uneven political, legal, and financial support impedes the ability of many tribal justice systems to function in full parity with state and federal systems. The challenges facing tribal justice systems are significant and complex: a chronic shortage of resources and technical assistance; an increase in the level and severity of violent crime, including youth and gang violence; disputes and conflicts related to economic development initiatives; congressional limitations on tribal court sentencing authority; insufficient facilities for incarceration and rehabilitation; and confusion over jurisdictional lines between federal, state, and tribal authorities.

Recognizing these and other challenges in his recent directive on "Law Enforcement in Indian Country," President Clinton expressed concern that "many Indian citizens receive police, investigative, and detention services that lag far behind even this country's poorest jurisdictions." Similarly, the U.S. Department of Justice has noted that "[t]here is a public safety crisis in Indian country" and that the "violence and crime interfere with the ability of Indian tribes to achieve meaningful self-governance and assure peace and stability in their communities." The President's August 1997 directive to Secretary of the Interior Bruce Babbitt and Attorney General Reno culminated in the creation of an Executive Committee on Indian Country Law Enforcement Improvements. The primary task of the Executive Committee was to draft a report on the present state of law enforcement in Indian country. Research and consultation with Indian tribal leaders by the Executive Committee in the latter months of 1997, pursuant to the President's directive, detailed the following systemic deficiencies with law enforcement in Indian country:

  • Law enforcement, as presently organized, often fails to meet basic public safety needs;
  • Serious and violent crime is rising significantly in many parts of Indian country-in stark contrast to national trends;
  • The single most glaring problem is a lack of adequate resources in Indian country; and
  • The current criminal justice system results in poor coordination and delivery of services.
In response to the Executive Committee's findings, the Justice and Interior Departments have urged an infusion of resources, proposed a reconfiguration of federal Indian country law enforcement services within the Bureau of Indian Affairs ("BIA"), and agreed to maintain primary responsibility for law enforcement with the BIA, provided that the Bureau obtain adequate funding and implement necessary reforms.

The recent emphasis on criminal justice in Indian country at the highest levels of the Federal Government might suggest that the inadequacy of law enforcement in tribal communities is a new phenomenon. This is not so. As early as 1975, a "Task Force on Indian Matters" within the Department of Justice found that "law enforcement on most Indian reservations is in serious trouble." The Task Force also found that most reservations received inadequate police services given their size and extraordinarily high rate of crime. Most significantly, the Task Force found that the complex and often ambiguous overlap of federal, state, and tribal jurisdiction in Indian country left each component of the system uncertain as to the extent of its authority. The Task Force concluded that the root of many of the problems of Indian country law enforcement was the confusion caused by the very federal laws intended to establish clear lines of civil and criminal jurisdictional authority among tribal, federal, and state governments.

These historic underlying problems in the administration of justice in Indian country continue to the present day and demand an immediate response. Law enforcement on Indian lands has never been successfully ameliorated through federal policy. With each successive generation, the criminal justice problem in Indian country manifests itself with renewed intensity and viciousness, periodically invoking heightened federal scrutiny and media attention. It is the purpose of this Article to demonstrate that restructuring or funding alone will not provide an adequate resolution to the problems of law enforcement in Indian country without directly addressing one of the most controversial and detrimental federal statutes affecting Indian tribes: Public Law 83-280 ("Public Law 280").

In 1953, ostensibly acting to remedy lapses in law enforcement in Indian country, Congress exercised its power to delegate the Federal Government's jurisdiction over Indian country to the states and enacted Public Law 280. Public Law 280 fundamentally disrupted the traditional allocation of Indian country law enforcement responsibility among the federal, state, and tribal governments by authorizing six states-Minnesota, Alaska, California, Nebraska, Wisconsin, and Oregon (known as the "mandatory states") -to assume partial Federal Government criminal and civil jurisdictional responsibilities over Indian country. The tremendous impact of Public Law 280 stems from the fact that while it initially addressed only six states, these states alone contain within their borders 359 of the over 550 federally recognized tribes and Native Villages.

Public Law 280's deleterious effects, however, are a result of the jurisdictional uncertainty that the law has created. There is no federal, state, or tribal consensus as to the scope of the jurisdictional transfer that has actually occurred as a result of the Act. One argument is that the statute effectuated not only a partial transfer of federal jurisdiction over Indian country to these six states, but also a transfer of tribal civil and criminal jurisdiction to the states. The better argument, subscribed to by the Departments of Justice and the Interior among others, is that the statute did not divest tribes of their jurisdiction, but rather provided for concurrent state and tribal jurisdiction over Indian country. Under any interpretation, the statute is confusing and perhaps ambiguous as to the scope of residual tribal jurisdiction.

While federally recognized Indian tribes throughout the nation exercise their right to self-government and vie for the respect and limited resources of federal and state governments, tribes in Public Law 280 states face an additional obstacle: they must also establish the continued existence of their jurisdiction and concurrent authority with the states. Without a common understanding of the jurisdictional foundations established by Public Law 280, tribal communities experience an uneven administration of justice in terms of respect for their authority, their eligibility for state and federal funding, the effectiveness of their justice systems, and the level of participation and cooperation with state and federal justice systems. As a result, Public Law 280 actually serves to increase lawlessness in Indian country. Even Congress has acknowledged its failure by stating that "Public Law 280 . . . [has] resulted in a breakdown in the administration of justice to such a degree that Indians are being denied due process and equal protection of the law."

Carole Goldberg, arguably the preeminent scholar of Public Law 280, has documented numerous ways in which Public Law 280 may have increased lawlessness in Indian country, particularly in California. She asserts that as the import and effect of Public Law 280 are misconstrued and misapplied, members of Indian tribes in Public Law 280 states suffer both abuses of authority by state governments and a lack of law enforcement responsiveness. For example, in Alaska, tribal justice systems struggle to fill the vacuum caused by the retreat of federal law enforcement and the state's inability or unwillingness to assume its Public Law 280 responsibilities. Public Law 280 has also complicated the delivery of law enforcement services in Nebraska. In fact, the Superintendent of the BIA's Winnebago agency has suggested that Public Law 280 is one reason why the Santee Sioux Tribe of Nebraska has struggled in their development of tribal courts and police.

Although numerous factors and conditions have precipitated the law enforcement dilemma in Indian country, Public Law 280 has been an undeniable source of persistent tribal justice inequity since its enactment. The ambiguous language used in the Act, the "sparse legislative history," the fact that the law was enacted during a period of antagonism toward tribal self-government, and the lack of a conclusive ruling by the Supreme Court on the complete jurisdictional effect of Public Law 280, have caused the confusion to proliferate.

This Article establishes that Public Law 280 provides for concurrent state and tribal jurisdiction without divesting tribal governments of their authority. Part I provides the general Indian law context of Public Law 280 by explaining tribal sovereignty, plenary power, state authority over Indian affairs, and general jurisdictional allocations in Indian country. Part II discusses the provisions of Public Law 280 with greater specificity, addresses the distinctions between the civil and criminal sections, and details the statute's policy justifications. Part III analyzes Public Law 280 as a limited transfer of Indian country jurisdiction from the Federal Government to the states without disturbing tribal criminal and civil jurisdiction, thereby, preserving concurrent tribal jurisdiction. Lastly, Part IV provides several recommendations to reform law enforcement in Indian country and ameliorate the destructive impact of Public Law 280. Part IV emphasizes that the most meaningful action the Federal Government can take to preserve law and order in Indian country is "to help Indian tribes to strengthen their own justice systems." With adequate resources, tribal governments are not only the most appropriate institutions to maintain order on reservations, but have demonstrated their capacity to keep the peace and resolve disputes on Indian lands.

For the United States' policy toward Indian tribes to have value and meaning, tribal law enforcement systems must be regarded as equal and essential components to our country's "multilayered justice system." This can only be accomplished if appropriate federal, state, and tribal authorities directly confront the issues surrounding Public Law 280 and engage in meaningful dialogue despite the political and fiscal maelstroms that may ensue. Recent law enforcement reforms such as the recommendations of the Departments of Justice and the Interior, transmitted to the President pursuant to his August 1997 directive, are noticeably silent regarding Public Law 280. This Article is written in the hope that future tribal justice reforms will include a commitment to assure that tribes in Public Law 280 jurisdictions can fully achieve meaningful self-governance.


* Associate, Skadden, Arps, Slate, Meagher & Flom, LLP; J.D., 1998, American University, Washington College of Law. The views expressed herein are not necessarily those of Skadden Arps.

** Deputy Director, Office of Tribal Justice, U.S. Department of Justice; B.A., 1992, Yale University; J.D., 1995, George Washington. The views expressed herein are those of the author only and do not represent official positions of the Department of Justice.

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