Further development is shown in other areas of the
reservation that demonstrate the capacity of the Winnebago
Tribal Government. By 1985, twelve tribal members had
been certified as qualified police officers by the Bureau of
Indian Affairs and/or the Nebraska State Police Academy.
The Chief Judge of the Winnebago Tribal Children’s Court,
an enrolled member of the Tribe, had a law degree from the
University of Nebraska. In addition, pursuant to the Indian
Child Welfare Act of 1978, the Tribe reassumed jurisdiction
over child custody proceedings and heard nearly 300 cases.
To address health and infrastructure needs,
the Tribe
promulgated codes in child welfare, fish and game, natural
resources, and hazardous waste or disposal areas. The
Tribe also developed codes for building, environment,
taxation, and criminal and civil matters.
Tribal social service programs also operated in the areas of
substance abuse and child welfare. Rehabilitation and
related counseling services were enacted for those
dependent on drugs, and foster care and group homes were
made available for needy children. Additionally, the Tribe
418
40 Colton, supra note 33, at 27.
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.
had an emergency medical team,
a tribal health department,
a community college, pre-school and other adult level
educational programs, and employment assistance
services.41
In February 1985, state senator James Pappas introduced Legislative Resolution
57, recommending retrocession of civil and criminal over the Winnebago Reservation.
Despite the obvious problems with the prevailing law enforcement scheme, opposition to
retrocession was, again, fervent. The most vociferous opponents were non-Indian
residents of the reservation, who owned 80% of the land within the original boundaries of
the reservation and who had the support of the county’s sheriff and its Board of
Supervisors. The Board expressed the concern of its citizens that the Tribe would use its
civil jurisdiction to tax and condemn the land of non-Indians.42 Senator James Goll,
whose district included the Winnebago reservation, opposed retrocession because he
believed it created racial segregation and would not guarantee a competent substitute for
state law enforcement.43 Senator Wiley Remmers opposed the resolution because it
would delay the Tribe’s assimilation into American culture and “perpetuate reservation
life that is not a credit to anybody.”44
Initially, opposition was not limited to non-Indians. Some tribal members were
concerned about inadequate funding, inadequately trained tribal personnel, poor level of
responsiveness from BIA, cronyism within the Tribe, and the potentially divisive effects
that assuming jurisdiction would have on internal tribal relations. Moreover, there was a
prevailing feeling among some that a tribal court was no different from the Anglo system,
so why bother. In the end, however, the tribal members overwhelmingly supported
retrocession.
LR 57’s civil jurisdiction component was a magnet for the most vociferous
opposition because of concerns surrounding “tribal court authority over major civil
lawsuits involving non-Indians.”45 In addition, many voiced concerns that subjecting
non-Indians to a tribal court system with foreign procedures and limited federal court
419
41 Colton, supra note 33, at 27-30.
42 Wilkinson, supra note 33, at 794. On March 28, 1985, the Nebraska Attorney General issued an opinion
indicating that the tribe would not gain additional powers of taxation and condemnation as a result of
retrocession. Neb. Att’y Gen. Op. No. 085587, March 28, 1985, available at http://www.ago.state.ne.us/
(last visited August 18, 2007).
43 Kevin Dugan, "Winnebago Tribe Given Independence," U.P.I., Jan. 16, 1986.
44 Id.
45 Wilkinson, supra note 33, at 794.
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.
oversight would imperil the non-Indians’ civil liberties.46 Retrocession of criminal
jurisdiction raised fewer problems because it would merely restore the Tribe’s jurisdiction
over tribal members.47
Eventually, Senator Pappas and other pro-retrocession senators abandoned the
fight for civil jurisdiction to protect the return of criminal jurisdiction. When finally put
to a vote in the Nebraska legislature, LR 57 to retrocede criminal jurisdiction passed by a
bare majority, 25-21.48 The Tribe, the BIA and the Nebraska State Patrol (a statewide
police agency), then agreed to enter into a full cross-deputization agreement covering the
Winnebago Reservation, which would go into effect on the date of retrocession. That day
came in July 1986, when the Department of the Interior accepted Nebraska’s retrocession
of criminal jurisdiction over the Winnebagos.49
Since the passage of Resolution 57, “the positive impact of attaining a semblance
of self-government has been reflected in the strides and achievements the Winnebago
have made.”50 The Tribe has established a thriving economic empire through its
economic arm, Ho-Chunk Inc., which has used the profits from the Tribe’s casino to
finance reservation housing, medical facilities, and improvements to the high school.51
Indeed, through diversified investments, Ho-Chunk Inc. boosted “the Tribe’s
discretionary annual income ... from a mere $150,000 [in 1991] to $50 million” in 2001.52
The Winnebago Tribe has also negotiated an agreement with the State that authorizes
tribal police officers who have passed a state law enforcement training course to write
traffic citations on nontribal members.53
420
46 See Hearing Before the Judiciary Committee of Nebraska, at 23 (statements of Senator Beutler) (Apr. 17,
1985); Wilkinson, supra note 33, at 792.
47 Hearing Before the Judiciary Committee of Nebraska, at 23 (statements of Senator Beutler) (Apr. 17,
1985).
48 Id. at 28-29.
49 51 FR 24,234 (1986).
50 Colton, supra note 33, at 33.
51 "Winnebago Tribe Prospers From Casino Profits," Hocak Worak, Aug. 8, 2001, available at http://
www.hocakworak.com/ (last visited August 18, 2007).
52 Id.; Colton, supra note 33, at 35
53 See Cross-Deputization Agreement By and Between The Bureau of Indian Affairs, The Nebraska State
Patrol and the Winnebago Tribe of Nebraska (signed June 1, 2001), available at http://www.ncai.org/main/
pages/issues/governance/agreements/documents/
ne_tax_motor_fuel_tax_agreement_between_winnebago_tribe_of_nebraska_and_state_of_nebraska_januar
y_2002.pdf (last visited August 18, 2007); Paul Hammel, "State Seeks Agreement on Tribal Ticketing,"
Omaha World Herald. Jan. 9, 2003, p. 3b.
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.
Shoshone-Bannock Tribes of the Fort Hall Reservation: In 1963, Idaho opted
for Public Law 280 jurisdiction, limited to seven specified subject matters: compulsory
school attendance; juvenile delinquency and youth rehabilitation; dependent, neglected,
and abused children; insanity and mental illness; public assistance; domestic relations;
and operation and management of motor vehicles on roads maintained by the county or
state.54 Then, the state was permitted to assume such jurisdiction without tribal consent;
while the Shoshone-Bannock expressly objected to the extension of state jurisdiction.55
Furthermore, the Supreme Court had not yet determined that Public Law 280
encompasses criminal prohibitory jurisdiction and jurisdiction of civil actions, but does
not grant states jurisdiction over civil regulatory matters.56 That later ruling was to make
it questionable whether the state could exercise authority over all the seven subject areas
designated in state law.
57
At the same time Idaho extended its jurisdiction over the seven subject areas, it
also provided that, with tribal consent, state jurisdiction could extend further, either
following negotiations with the state or through unilateral action of the tribe.58 There are
five tribes in Idaho: Coeur d’Alene, Kootenai, Nez Perce, Northwestern Band of
Shoshoni, and Shoshone-Bannock. Only one, Nez Perce, opened the door to additional
state jurisdiction, by passing a resolution consenting to concurrent state jurisdiction over
18 criminal offenses.59
Retrocession became a possibility under Public Law 280 in 1968. Eight years
later, the American Indian Policy Review Commission (AIPRC) issued its Final Report,
which included harsh criticism of Public Law 280 and called for its repeal.60 Just a few
years after that, an Idaho state senator from the Shoshone-Bannock area introduced a bill
that would remove the state’s Public Law 280 jurisdiction over the seven subject areas for
421
54 Idaho Code § 67-5101.
55 Lori Edmo-Suppah, “Committee Prints P.L. 280 Retrocession Bill: Legislation Would Give Jurisdiction
Back to Tribes in 7 Areas,” Sho-Ban News, Feb. 4, 1999, Vol. 23, Iss. 5, p. 1.
56 See Bryan v. Itasca County, 426 U.S. 373 (1976).
57 For example, in State v. George, 127 Idaho 693, 905 P.2d 626 (1995), the Idaho Supreme Court found
that Idaho’s traffic laws were criminal/prohibitory rather than regulatory in nature. In several other Public
Law 280 states, such as Minnesota, the courts have reached the opposite conclusion. See State v. Stone,
572 N.W.2d 725 (Minn. 1997). For further discussion of disputes regarding the scope of Idaho’s Public
Law 280 jurisdiction, see Emily Kane, State Jurisdiction in Idaho Indian Country under Public Law 280, 48
Advocate (Idaho) 10 (January 2005).
58 Idaho Code § 67-5102.
59 Nez Perce Tribal Resolution 65-126 (April 13, 1965), cited in Kane, supra note 57, at 11. Nez Perce was
relatively late in developing its own law enforcement and criminal justice infrastructure. See “State Solons
Consider Repealing P.L. 280,” Sho-Ban News, Jan. 17, 1979, p. 3.
60 American Indian Policy Review Commission, Task Force Four Report on Federal, State, and Tribal
Jurisdiction, Issues in Public Law 280 States 4-33 (1976).
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.
any tribe that did not request such jurisdiction.61 Idaho’s largest tribe, the ShoshoneBannock, had also developed its own law enforcement and judicial apparatus, as well as a
social services system. Reporting on this measure, the Shoshone-Bannock tribal
newspaper emphasized the AIPRC’s critique of Public Law 280, particularly its
connections with the reviled federal policy of termination, and its adverse affect on tribal
sovereignty.
62 While the bill failed, the Shoshone-Bannock’s interest in retrocession did
not wane. In 1986, for example, at a tribal Business Council meeting to discuss whether
to endorse state legislation authorizing peace officer status for tribal police, council
members expressed their hope that “passage of the bill would eventually result in
retrocession of Public Law 280 in Idaho.
