Confederated Salish and Kootenai Tribes: In 1963, pursuant to Public Law
280, the Montana Legislature introduced a bill that would authorize the state to exercise
jurisdiction over Montana’s seven Indian reservations. The bill required Montana to
procure tribal consent before exercising jurisdiction, even though PL 280 then did not
require states to do so.90 Only the Confederated Salish and Kootenai Tribes of the
Flathead Reservation gave their assent. The Tribes were motivated in part by the federal
government’s failure to adequately police the reservation. Leo Siras, the Chair of the
Tribes’ Law and Order Committee,
described the law enforcement problems to the State’s
Judiciary Committee:
I can testify that the matter of law and order on criminal/
civil jurisdiction is festering like cancer and getting
progressively worse. I could cite many examples of this. ...
After the most careful study and consideration ... we on the
Flathead Tribal Council are convinced we need this piece
of legislation.91
The Tribes’ assent to state jurisdiction also stemmed from a paucity of resources. In
1965, “they had 11 employees, two of whom were police officers, and the entire annual
tribal budget was less than $250,000,”92 a mere $25,000 of which went to law
enforcement.93
“The tribal court system was barely functioning.”94 As a result, in May
1965, the Tribes agreed to Montana’s exercise of concurrent jurisdiction over onreservation criminal and limited civil matters.95
426
90 The amendments to Public Law 280 in the 1968 Civil Rights Act required states to obtain tribal consent
before exercising jurisdiction. See 25 U.S.C. § 1326.
91 Bonnie Bozarth, “Public Law 280 and the Flathead Experience,” Journal of the West, 46, 47, Vol. 39, No.
3 (Summer 2000).
92 Id. at 47.
93 Id. at 46.
94 Id. at 47.
95 See Larrivee v. Morigeau, 602 P.2d 563, 566-67 (Mont. 1979) (discussing eight subjects over which
Tribes ceded concurrent civil jurisdiction).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
The Montana legislation requiring tribal consent to jurisdiction also permitted the
Tribes to withdraw their approval within two years by “appropriate resolution.”96 The
tribes attempted to revoke their consent almost immediately. In 1966, the Tribal Council
passed a resolution rescinding their earlier consent, but the BIA superintendent, whose
approval was required on every piece of proposed tribal legislation, opposed it.97
Subsequent attempts were, for various reasons, also unsuccessful.98
By 1991, circumstances had changed in two significant ways. First, the Tribes
were angry over “the extremely high percentage of Salish Kootenai Tribal members
incarcerated in the State prison,”99 and the statistics demonstrating that Lake County gave
harsher sentences to Indians than non-Indians.100 Second, by 1991, the Tribes had the
necessary resources and expertise to assume exclusive jurisdiction over the criminal and
civil affairs of Indians on the Flathead reservation:
The tribes had more than 1,200 employees and an annual
budget of over $70 million. They had one of the largest
tribal law enforcement programs in the state, with officers
trained at the Montana Law Enforcement Academy or the
Federal Law Enforcement Training Center. They had a trial
court, appellate court, and youth court with three full-time
judges, a part-time judge, visiting judges, prosecutors,
defenders, paralegals, social workers, and probation
officers.101
In February 1991, in response to the Tribes’ push for full retrocession of
jurisdiction conferred by the 1965 agreement, state representative Angela Russell
introduce House Bill 797, which would allow the Tribes to withdraw their consent to the
state’s criminal and limited civil jurisdiction over Indians within the Flathead
reservation.102 HB 797 met strong opposition from Lake County, a large, mostly nonIndian populated county that is almost entirely within the boundaries of the Flathead
427
96 Mont. Code Ann. § 2-1-306 (1992).
97 Bozarth, supra note 91, at 47.
98 Id.
99 Testimony of Rhonda R. Swaney, Chairwoman Confederated Salish And Kootenai Tribes of the Flathead
Nation, before the Committee of Indian Country Affairs of the United States Senate (Sept. 24, 1996).
100 Plummer, Maggie, “House Committee Hears Testimony On Partial Retrocession Bill: Committee Vote
Expected Monday Or Tuesday,” Char - Koosta News, Mar 19, 1993, p.1 (Tribal attorney quoted as saying:
“Statistics...indicate that our people have been left in Lake County Jail for as long as 27 days before even
getting to a hearing.”).
101 Bozarth, supra note 91, at 47.
102 “Departed Year was Full of News,” Char - Koosta News, Jan 10, 1992, p. 1.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
reservation, and All Citizens Equal, a reservation-based organization and long-standing
opponent of tribal authority.
103 The opponents feared that retrocession would lead to gaps
in criminal prosecution caused by the anticipated lax prosecution by the federal
government of major crimes,104 thereby inviting “lawlessness and economic loss.”105
There was also concern that “retrocession would allow a minority of tribal members to
govern the majority of non-tribal members, who could neither vote nor otherwise directly
participate in tribal government.”106
Senate Minority Leader John Mercer, a staunch opponent of tribal jurisdiction,
voiced the concerns of his fellow Lake County residents: “The Tribes can’t govern
15,000 people who have no say in how they’re governed.” Eventually, HB 797 “died in
April when the State Senate Judiciary Committee, chaired by Sen. Dick Pinsoneault ...
failed to give the bill a favorable recommendation.”107 Recognizing the magnitude of the
retrocession issue, the Montana Legislature called for the state Committee on Indian
Affairs to hold public hearings involving federal, state, county, and tribal representatives
as part of a study of retrocession, with findings and recommendations to be presented
during the next legislative session.108
Because the Montana legislature meets every two years, the Tribes had that long
to redouble their efforts in preparation for the legislature’s 1993 sitting. During the 1993
term, at the Tribes’ request, the legislature enacted Senate Bill 368, a more modest
version of 1991s proposed retrocession. Rather than seek full retrocession as in 1991, the
1993 bill authorized the tribes to exercise only partial criminal jurisdiction over
misdemeanors committed by Indians on the reservation. Despite its call for limited
retrocession, SB 368 set off a firestorm of opposition, principally from Lake County
officials and its non-Indian residents, though some tribal members also expressed
reservations about the proposed retrocession, feeling that the Tribal Council had not
solicited tribal members’ views before pushing to regain partial criminal jurisdiction.109
The bill easily passed in the Senate, but met fierce resistance in the House, spearheaded
by former Minority Whip and then-current House Speaker John Mercer, whose
428
103 Ken Toole, Drumming Up Resentment: The Anti-Indian Movement in Montana (Jan. 2000), available at
http://www.mhrn.org/news/Drumming.html (last visited April 24, 2005).
104 See Indian Major Crimes Act, 18 U.S.C. § 1153. While tribes have concurrent jurisdiction over such
offenses, under the Indian Civil Rights Act, their sentences are limited, per offense, to one year in jail and a
$5,000 fine. 25 U.S.C. § 1302(8).
105 Bozarth, supra note 91, at 49.
106 Bozarth, supra note 91, at 49.
107 Toole, supra note 103.
108 Bozarth, supra note 91, at 50.
109 Plummer, Maggie, “Public Comments on Retrocession,” Char-Koosta News,
Feb. 12, 1993, p.1.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
opposition to the bill prompted fellow representative Bob Gervais to call him a racist.110
Mercer’s efforts were initially successful, defeating the bill in March 1993.
In response, the Tribal Council passed a resolution “declar[ing] an economic
boycott against Lake County businesses,”111 and “directing department heads to buy outof-county as much as possible, and requesting the same of the general membership.”112
In addition, the Tribes moved their money “to banks in Missoula or Kalispell [Counties],
whose governments ha[d] shown support for SB 368.”113 “The tribes also threatened to
shut down the airport in Mercer’s district, part of which sits on tribally controlled land,
withhold their signature from a critical document that could affect drinking water
supplies in another reservation town, and close the south half of Flathead Lake and
reservation lands to non-Indian use
.”114 The resolution also called for the Tribes to “stop
granting easements or rights of way to Lake County until the retrocession issue is
resolved.”115
Due in part to the economic pressure, Lake County officials met with tribal
representatives to hammer out an agreement on how the retrocession process would be
implemented. On the heels of this meeting, the Montana legislature adopted an amended
version of SB 368,116 allowing the Tribes to reassume exclusive jurisdiction over
misdemeanor crimes committed by Indians and providing for continued, concurrent statetribal jurisdiction over felony crimes committed by Indians.117
To facilitate the transition of jurisdiction over criminal misdemeanors from the
State to the Tribe, the Tribes met with state, county, and city officials to discuss
429
110 Toole, supra note 103; “New Retrocession Bill Passes,” Char-Koosta News, Apr. 23, 1993, p.1.
111 Toole, supra note 103.
112 “SB 368, boycott discussions dominate quarterly meeting: SKC-TV will recap meeting Friday at 6
p.m.,” Char-Koosta News, Apr. 9, p. 1.
113 Id.
114 Selden, Ron, “Salish-Kootenai Chairman Michael T. Pablo Dead at 51,” Indian Country Today, Aug.
30, 1999, p.A1.
115 Plummer, Maggie, “Tribes Use Economic Pressure To Push Retrocession Issue,” Char-Koosta
News, Apr 2, 1993, p.1.
116 Sec. 1, Ch. 542, L. 1993, codified as Montana Annotated Code § 2-1-306.
117 “New Retrocession Bill Passes,” Char-Koosta News, Apr. 23, 1993, p.1. See also The Tribal Nations of
Montana: A Handbook for Legislators, published by the Montana Legislative Council (March 1995),
available at http://leg.state.mt.us/textonly/publications/research/past_interim/handbook.asp#Footnote30
(last visited August 18, 2007).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
anticipated “problem areas and issues” that retrocession would create.118 The goal was to
create a law enforcement agreement among the jurisdictions that would be affected by
retrocession. Among the significant issues were:
... how to handle lesser misdemeanor charges that are
included in felony charges; which law enforcement agency
should be first to respond to dispatch calls; who
investigates which crimes, and how do agencies
communicate on important investigations ... how to make
charging decisions; whether or not cross-deputization is a
good idea; whether or not penalties in the Tribal and state
systems should be similar.
119
In September of 1994, the Tribes entered into a memorandum of agreement,
pursuant to the State-Tribal Cooperative Agreements Act, with the State of Montana;
Flathead, Missoula, and Sanders Counties; and the cities of Hot Springs, Ronan, and St.
Ignatius to implement the retrocession legislation.120
The Tribes’ resolution to withdraw from P.L. 280 provides
for cooperation between state, tribal, and local law
enforcement agencies and includes language allowing
continued state misdemeanor criminal jurisdiction in
limited areas, such as a guilty plea entered in state court,
pursuant to a plea bargain agreement that reduces a felony
crime to a misdemeanor, or in the case of a conviction in
state court on a lesser included offense in a felony trial.
For felonies committed by Indians, both the state and tribes
retain concurrent jurisdiction, but either may transfer
prosecution to the other if consideration of the factors
specifically outlined in the agreement warrants transfer.
121
430
118 Plummer, Maggie, “Tribal Retrocession Resolution Expected in Early December: Coming Down the
Home Stretch,” Char-Koosta News, Oct. 15, 1994, p.1.
119 Id.
120 Stewart Wakeling, Miriam Jorgensen, Susan Michaelson, and Manley Begay, Policing on American
Indian Reservations: A Report to the National Institute of Justice, 35 & n.22 (July 2001), available at http://
www.ncjrs.org/pdffiles1/nij/188095.pdf (last visited August 18, 2007). The agreement was renewed in
April 2003. See “Renewal of Memorandum of Agreement Between The State Of Montana, Flathead
County, Missoula County, Sanders County, City Of Hot Springs, City Of Ronan, Town Of St. Ignatius And
The Confederated Salish And Kootenai Tribes Of The Flathead Nation,” in Laws of the Confederated
Salish and Kootenai Tribes,
Codified January 1, 2000 (revised April 15, 2003), 320-38, available at http://
www.cskt.org/documents/laws-codified.pdf (last visited August 18, 2007).
121 The Montana Legislative Council, The Tribal Nations of Montana: A Handbook for Legislators (March
1995), available at http://leg.state.mt.us/textonly/publications/research/past_interim/
handbook.asp#Footnote30 (last visited August 18, 2007).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
The only affected governmental entity refusing to sign the agreement was Lake County,
which objected to the agreement’s provision permitting tribal officers to ticket non-Indian
traffic offenders.122 With the proclamation of Montana’s governor on September 30,
1994, the requested retrocession went into effect; the Department of the Interior accepted
the retroceded jurisdiction in June 1995.123
