Lessons from the Case Studies
The five case studies of Omaha, Winnebago, Salish & Kootenai, Ely Colony, and
Tulalip retrocessions, as well as the one study of an unsuccessful retrocession campaign
at Shoshone-Bannock, share some common features. Regarding reasons for retrocession,
one or two concerns dominate: The tribes may be receiving inadequate services from
state and county law enforcement, and/or they may be seeking to make their law
enforcement and criminal justice regimes more consistent with their overall assertions of
sovereignty. Where the concern is inadequate services, the problems may relate to lack
of availability of police, cultural insensitivity of county law enforcement and criminal
justice agencies, discrimination against Indians in the county system, or some
combination of the three. The relative significance of all these reasons is unclear and
seems to vary from case to case
.
The most serious obstacle to retrocession in these cases has been resistance from
local governments, followed next by financial considerations. In the one case where
retrocession did not go forward, the local sheriff was supportive, but other state and local
officials (e.g., the prosecutor) were resistant, largely because they did not trust the
Shoshone-Bannock Tribes to deliver effective law enforcement. Interestingly, even
where local governments do not have adequate resources to maintain effective law
enforcement and criminal justice services on reservations (as in the Winnebago and
Salish & Kootenai cases), they have sometimes attempted to maintain their jurisdiction,
often at the behest of non-Indians living on the reservation (who may be receiving more
satisfactory services). Money to fund tribal and federal law enforcement and criminal
justice post-retrocession has recently become another difficult point in navigating the
retrocession process. As the Ely Colony case suggests, the Department of the Interior has
become increasingly reluctant to provide money for this purpose, leaving tribes (like
Tulalip) to foot most of the bill for their new jurisdictional arrangement.164
The successfully retroceding tribes in our five case studies deployed a variety of
strategies to overcome state, local, and federal resistance to retrocession. The most
common approach was to address the concerns of local communities,
either through
439
163 Id.
164 In the case of the very recent Santee Sioux retrocession in Nebraska, the Tribe received a COPS
(community-based policing) grant from the United States Department of Justice the year before the
retrocession, to help it in preparing for the changeover of jurisdiction. See Press Release, “Rep. Osborne
Announces $180,000 Grant Awarded to Santee Sioux Tribe,” August 26, 2005.
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.
careful limitations on the scope of retrocession165 or through cooperative agreements or
contracts allowing county officials to participate in reservation law enforcement. For
example, Omaha excluded traffic offenses on public roads from its retrocession, the
Winnebago excluded civil jurisdiction altogether, and Salish & Kootenai excluded
felonies.
Most retroceding tribes established cross-deputization agreements with local
governments or, in the case of Ely Colony, a contract for the county to provide law
enforcement services. These agreements helped ease non-Indians’ concerns about the
efficacy of tribal law enforcement. Where local communities were more resistant, tribes
turned to public relations campaigns and even, in one case, a boycott of local non-Indian
businesses. Increased tribal political and economic power, as a result of gaming and
other economic development ventures, has recently improved tribal prospects for
securing state support of retrocession.
In all the successful retrocession cases, there seems to be a high level of tribal
satisfaction with the results. Not only has tribal sovereignty been enhanced through more
active involvement of tribal government in community affairs, but law enforcement has
been rendered more accountable to the community and is more trusted to address
community concerns. Thus, there is more frequent police patrolling, and a higher level of
community cooperation with law enforcement and criminal justice systems that more
closely match community values. The ultimate consequence has been a drop in crime in
several of the case study tribes. More stable legal institutions have also been associated
with enhanced economic development, as in the case of Winnebago.