Criminal justice capability among PL 280 tribes has grown more slowly than law
enforcement, but is on the rise as well. According to 2001 BIA data, all 10 Wisconsin PL
280 tribes have tribal courts; all 7 Oregon PL 280 tribes have tribal courts; all 9
Minnesota PL 280 tribes have tribal courts; the sole remaining PL 280 tribe in Nebraska
has a tribal court; and 4 of 107 tribes in California have tribal courts, along with 9 other
California tribes that have formed an intertribal court. Very few of these courts, among
them the Siletz Tribe of Oregon, the Metlakatla Indian Community in Alaska, and the
Mille Lacs Band of Chippewa in Minnesota, hear adult criminal matters — and when
they do, it’s common for the courts to impose only monetary penalties or restitution,
14
15 These tribes include 2 in Florida, 3 in Idaho, 1 in Montana, and 22 in Washington.
Interestingly, the
Washington forces include agencies in the four tribes that still have full Public Law 280 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.
because these tribes rarely have detention facilities. Traffic, hunting and fishing, liquor
control, environmental control, and juvenile jurisdiction are more common, as in the case
of the Hoopa Valley Tribe of California; however, even these kinds of measures are not
universal. Sometimes courts of PL 280 tribes in mandatory states, such as the Coos,
Lower Umpqua, and Siuslaw Tribe of Oregon, are authorized to exercise criminal
jurisdiction when enforcing the types of ordinances or codes listed above.
Federal funding through the U.S. Department of Justice is making court
development projects more common in the mandatory Public Law 280 states, signaling
the possibility of greater overlap with respect to criminal jurisdiction, as well. Such
overlap is already a reality in juvenile, traffic, and numerous regulatory areas. Managing
this overlapping law enforcement authority and criminal jurisdiction in Public Law 280
states is a substantial challenge and opportunity, with significant implications for issues
of control/accountability and resources for law enforcement and criminal justice in those
states. The experiences of particular PL 280 tribes and their local counties are detailed in
Chapter 12 of this Report. Here, we highlight some of the legal issues that frame these
experiences.
First, the double jeopardy protections of the United States Constitution and the
Indian Civil Rights Act, which prevent multiple prosecutions for the same offense, do not
apply when those prosecutions are carried out by separate sovereigns. Thus, prosecutions
of the same individual for the same offense by both tribe and state are permissible under
federal law. The laws of several of the mandatory Public Law 280 states specifically
deny their governments the power to prosecute where another government has prosecuted
that individual for the same crime, however.
Section 609.045 of Minnesota Statutes
Annotated states that if an act or omission involving the same facts and legal elements
has already been the subject of a conviction or acquittal by “another jurisdiction,”
prosecution under Minnesota law is barred. Similar laws exist in Alaska and16
Wisconsin,17 but not in Nevada and Oregon. Moreover, the Alaska Court of Appeals has
held that its double jeopardy prohibition precludes prosecution in state court after
prosecution for the same crime in tribal court.18 Should Minnesota and Wisconsin courts
follow suit in interpreting their state double jeopardy prohibitions, tribal criminal
15
16 Alas. Stat. § 12.20.010 (prohibiting successive prosecutions where the individual has already been
convicted or acquitted for the same offense by “any State, county, or Territory.”)
17 Wis. Law. Ann. § 939.71 (referring to a conviction or acquittal for the same offense under the laws of
“another jurisdiction”). Neither Nebraska nor Oregon, the remaining two mandatory Public Law 280
states, has a statute rejecting the dual sovereignty exception to the constitutional protection against double
jeopardy. California’s law is more ambiguous, referring to another “state or territory.” Cal. Penal Code §
656. Washington, an optional Public Law 280 state, has a statute denying successive prosecutions where
the defendant has already been convicted or acquitted for the same offense by “another state or country.”
Rev. Code Wash. § 10.43.040. In State v. Moses, 45 Wn.2d 370 (2002), the Washington Supreme Court
interpreted this language as not applying to prior acquittals or convictions in tribal court.
18 See Booth v. State, 903 P.2d 1079 (Ct. App. Alaska 1995).
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.
jurisdiction could conceivably supplant state jurisdiction under Public Law 280 there.
Recall, however, that few tribal courts in the mandatory Public Law 280 states actually
exercise adult criminal jurisdiction at this time. So long as they fail to do so, this
potential for increased tribal control over criminal justice will remain unrealized.
A second legal issue framing the exercise of overlapping tribal/state jurisdiction in
Public Law 280 states is the absence of a clear federal rule of priority, supremacy, or
coordination that structures relations between the coexisting state and tribal authorities.
In theory, at least, a PL 280 tribe could penalize an individual for engaging in acts that
state law compels, and vice versa. Thus, for example, tribal law could require tribal
police to deploy light bars on their vehicles, and state law could outlaw use of those same
light bars.
19 In contrast, where federal and state jurisdiction are shared (for example, in
the case of offenses such as racketeering that involve interstate commerce), the
Supremacy Clause of the United States Constitution provides that federal law prevails
over conflicting state law. If the two legal regimes are not in conflict, the Supremacy
Clause also provides that federal law may “occupy the field,” which means that Congress
can bar states from enacting or enforcing any laws addressing the same subject. Public
Law 280 does require states to give effect to tribal law where it’s not in conflict with state
law. But if there is a conflict, both tribe and state can presumably follow their own law.
Where two states have overlapping jurisdiction, the requirement of full faith and credit in
the United States Constitution and in certain federal statutes requires each government to
recognize the laws and judgments of the other. Yet it’s unclear whether the federal law of
full faith and credit encompasses Indian nations as well as states and the federal
government.20 Only in areas specifically addressed by federal statutes, such as domestic
violence protection orders, is there a clear mandate that state courts enforce tribal
orders.21
Arguably, the need for some kind of priority rule to ease potential conflict is much
greater in the case of tribal-state overlaps than in the case of federal-state or state-state
overlaps. Where different governments share the same laws and values, the potential for
conflict is eased. Yet the differences between Indian nations’ and states’ legal systems are
far greater than the differences between the federal and state systems.
16
19 This possibility is not hypothetical. See Cabazon Band of Mission Indians v. Smith, No. 02-56943 (9th
Cir. Nov. 3, 2004) (finding California’s prohibition on light bars unenforceable against the Cabazon Tribal
Police). The conflict between the Cabazon Band and Riverside County was in litigation for seven years
before the Ninth Circuit decided the case on the basis of general principles of federal Indian law.
20 See Nell Newton et al., Cohen’s Handbook of Federal Indian Law § 7.07 (LexisNexis, 2005 ed.).
21 See 18 U.S.C. § 2265 (states to give full faith and credit to tribal domestic violence protection orders).
Some individual states have passed laws mandating enforcement of tribal court judgments, although these
laws often limit the mandate to judgments issued by tribes within the state and/or tribes that afford
reciprocal enforcement to state court judgments. See, e.g., S.D. Codified Laws § 1-1-25(2)(b); Wis. Stat. §
806.245.
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 absence of a federally prescribed priority or coordination rule as between
Public Law 280 states and the tribes subject to their jurisdiction creates an incentive for
tribal and state governments to establish cooperative arrangements. This incentive grows
stronger as the capability and exercise of tribal law enforcement and criminal justice
authority expands, increasing the scope of overlapping jurisdiction. These cooperative
efforts in turn have bearing on issues of control/accountability and resources for law
enforcement and criminal justice in Public Law 280 states, explored in Chapters 11 and
12.