Legal Limitations on State Criminal Jurisdiction
Public Law 280 incorporated some limitations on the reach of state jurisdiction.
A thorough airing of the complex legal questions spawned by these limitations is beyond
the domain of this Report.12 However, insofar as those complexities may bear on the
quality of law enforcement and criminal justice in Public Law 280 states, they warrant
mention and brief description. For example, these limitations dictate which government
— state, tribal, or federal — has control over and financial responsibility for criminal
matters in Indian country. Furthermore, because of the withdrawal of federal
responsibility and most federal support for tribal law enforcement and criminal justice in
states affected by Public Law 280,
gaps in state law enforcement authority raise the
specter of potentially dangerous jurisdictional gaps and vacuums. The legal uncertainties
and jurisdictional gaps created by these limitations have sometimes generated conflict
between tribal and state authorities, and sometimes have provided the incentive for
cooperative measures. The most relevant legal issues are:
· Only statewide, not local, criminal laws are enforceable. According to the
federal courts,
Public Law 280 authorizes enforcement of statewide criminal laws
only, not county or city laws. Thus, matters that may typically be within the
purview of local law, such as dog control, fall outside Public Law 280’s grant of
11
12 For a more complete discussion of these questions, see Carole Goldberg-Ambrose and Timothy Carr
Seward, Planting Tail Feathers: Tribal Survival and Public Law 280 (UCLAAmerican Indian Studies
Center 1997); Nell Newton et al., Cohen’s Handbook of Federal Indian Law § 6.04 (LexisNexis, 2005 ed.).
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.
state jurisdiction. County and local law enforcement officers, however, are
typically the agents empowered to enforce statewide criminal laws.
· Only state criminal laws, not regulatory laws, are enforceable. While this
limitation is not expressly stated in Public Law 280, the United States Supreme
Court has issued several opinions articulating this restraint on the exercise of state
power. Determining which state laws are criminal and which ones regulatory has
not been easy for courts or police, however. Some of the areas where confusion
has been greatest involve traffic offenses, fireworks, and illegal dumping.
· States may not use their Public Law 280 criminal jurisdiction to alter the
status of trust lands or to restrict federally protected hunting and fishing
rights. These restrictions on states’ Public Law 280 jurisdiction derive from
express exceptions in the statute itself. While the most obvious implication for
criminal jurisdiction is the restriction on enforcement of some state criminal laws
relating to hunting and fishing, other significant consequences are that states have
no jurisdiction to effect evictions from trust property as a means of excluding
disruptive individuals or to penalize activities that pollute trust land, such as
illegal dumping.
Coexistence of State and Tribal Law Enforcement and Criminal Justice
As noted above, Public Law 280 does not supplant tribal jurisdiction. In practice,
however, the frequent denial of federal funding support for tribal law enforcement and
criminal justice in Public Law 280 states has retarded the development of those agencies
as compared with similar institutions in non-Public Law 280,
excluded, or retroceded
tribes. With the arrival of tribal gaming in the 1990s, a growing number of tribes in
Public Law 280 states have been using their own funds to establish tribal police forces.
New sources of support from the U.S. Department of Justice (US DOJ), such as COPS
grants for community-oriented policing, have also enabled tribes in Public Law 280 states
to create their own forces. While most of these tribes use their officers to enforce state
rather than tribal criminal codes, the emergence of tribal police on reservations in Public
Law 280 states represents a significant potential increase in the resources available for
reservation law enforcement and opens the possibility of tribal control and accountability.
The growing prevalence of tribal courts also has made it possible for PL 280 tribes that
are not currently exercising criminal jurisdiction to envision assuming that responsibility.
This growth in tribal law enforcement and criminal justice capability also raises
coordination issues where state and tribal authority overlap.
We have attempted to measure the prevalence of tribal law enforcement agencies
in Public Law 280 states. According to the Bureau of Justice Statistics (BJS) report,
Tribal Law Enforcement 2000, there were 171 tribal law enforcement agencies in
operation in that year. Of the top 20 agencies ranked by number of sworn personnel, only
three were in Public Law 280 states. Two of these tribal agencies were in Florida, an
optional state. The third tribe was in Washington, another optional state, and was subject
12
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.
only to partial state jurisdiction under Public Law 280. A more complete account of the
presence of tribal law enforcement agencies where Public Law 280 applies can be
gleaned by combining reports from the Bureau of Justice Statistics
’ 1996 Law
Enforcement Management and Administration Statistics (LEMAS) Directory and BIA
Law Enforcement Program Report Surveys from 1997 to 1999. Those reports show a
total of 167 tribal law enforcement agencies nationwide, close to the Law Enforcement
2000 figure of 171. Of those agencies, 29 are connected with tribes that are subject to
Public Law 280 because of their location in mandatory Public Law 280 states: 10 in
Alaska, 4 in California, 1 in Nebraska, 3 in Oregon, 5 in Minnesota, and 7 in Wisconsin.
These numbers may understate the prevalence of tribal police agencies in the mandatory
states as of 2004, particularly in Alaska and California. US DOJ funding under the COPS
program from 2000 to 2002 shows 16 Alaska tribes or Native villages, 7 California
tribes13 and 1 Nebraska tribe receiving such grants that are not included in the BJS/BIA
lists from a few years earlier. Thus, a more accurate current total for tribal police
departments where state jurisdiction operates in mandatory Public Law 280 states would
be 26 in Alaska, 11 in California, 2 in Nebraska, 3 in Oregon, 5 in Minnesota, and 7 in
Wisconsin, and a more accurate total figure for tribal police departments would be 191,
adding the 16 tribes from Alaska, the 7 tribes from California, and the 1 tribe from
Nebraska to the 167 figure.
A more recent survey, the Census of Tribal Justice Agencies in Indian Country,
2002, published by the Bureau of Justice Statistics, provides another measure of the
prevalence of policing agencies in PL 280 jurisdictions. Although the BJS document
improperly labeled some tribes as subject to PL 280, the raw data enabled us to compute
the percentage of reporting tribal police agencies from PL 280 jurisdictions. Of the 165
responding tribes with at least one sworn officer not including Alaska, 23, or 14%, were
from mandatory PL 280 jurisdictions and had not been excluded or retroceded. That
included 7 from California, 5 from Minnesota, 1 from Nebraska, 4 from Oregon, and 6
from Wisconsin. Another 22, or 13%, were from optional PL 280 jurisdictions and had
not retroceded, including 1 from Florida, 18 from Washington, and 3 from Idaho.
Washington and Idaho, notably, are only partial PL 280 jurisdictions.
Most of the policing agencies in PL 280 tribes date from the 1980s and 1990s, and
the full potential for overlapping tribal and state police under PL 280 has yet to be
realized.14 Law enforcement agencies are still not as prevalent in PL 280 states as
elsewhere in Indian country.
Focusing on the lower 48 states, we can arrive at a figure
for the representation of tribes currently subject to state jurisdiction in mandatory Public
13
13 The California Tribal Police Chief’s Association, formed in 2003, had nine members as of the fall, 2004.
Christine Mahr, “Judge OKs Tribal Suit Venue Change,” The Desert Sun, October 6, 2004, p. 4B.
14 A number of PL 280 tribes in mandatory states are currently planning to establish police departments.
See, e.g., Yvette McGeshick, “The Tribal Law Enforcement Committee,” Potawatomi Traveling Times,
April 1, 2003, (describing Forest County Potawatomi (WI) Tribe’s plans to establish a tribal police
department within the next 18-24 months).
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.
Law 280 states among tribal police departments nationwide. The PL 280 tribes in
mandatory states, apart from Alaska, account for 40% of all tribes in the lower 48 states,
yet they represent only 14-16% of all tribal police departments. Putting it another way,
only 21% of PL 280 tribes in mandatory states outside Alaska have police departments.
In contrast, 74% of all remaining tribes in the lower 48 states, including those in the
optional Public Law 280 states, have tribal police departments. The PL 280 tribes in
optional states, with 78% having tribal police departments,15 are far closer to the non-PL
280 tribes in terms of having tribal law enforcement agencies because most of the tribes
in the optional states are not fully subject to state criminal jurisdiction (see pp. 8-11,
supra). Only 11.5% of all Alaska Native villages have tribal police departments;
however, the limited nature of their criminal jurisdiction is likely a factor in this lower
level of development.
To keep these figures and comparisons in perspective, however, it’s important to
note that fully one-half of all California reservations, as well as a few in Oregon and
Minnesota, have total populations under 100, making them unlikely candidates for police
agencies. Some of these tribes do operate police departments nonetheless, because their
gaming facilities draw in large numbers of outside customers. And others might be able
to mount police departments in collaboration with nearby tribes. Even excluding all
reservations with populations under 100 from the calculations, however, it’s still true that
tribes in mandatory PL 280 states are underrepresented among tribal police forces.
Instead of 40% of all tribes, they would be 30% of tribes with reservation populations
over 100; but these PL 280 tribes in mandatory states apart from Alaska still mount only
19% of all tribal police departments for reservations with populations over 100. Stated
another way, 35% of all PL 280 tribes with reservation populations greater than 100 in
mandatory states other than Alaska have tribal police departments. By comparison, 80%
of all other tribes in the lower 48 states with reservation populations greater than 100
have tribal police departments. Thus, while overlapping authority between tribal and
state or local law enforcement is significant in the mandatory PL 280 states, there is
considerable room for growth, and the trend appears to be in that direction.