Non-Indian Non-Indian State jurisdiction is exclusive of federal and tribal
jurisdiction.
Non-Indian Indian Unless otherwise expressly provided, there is
concurrent federal and state jurisdiction exclusive
of tribal jurisdiction.
Indian Non-Indian Unless otherwise expressly provided, state has
Figure 1.2
Congress engineered this significant shift and expansion of outside law
enforcement responsibility on reservations for a variety of reasons. After World War II,
reducing the size of the federal budget was one of President Eisenhower’s major
priorities.
The Bureau of Indian Affairs was seen as a good candidate for budget cuts
because the ideology of the time favored assimilation and formal equality. Transferring
reservation populations from federal to state jurisdiction would foster cultural integration
of Native people as individuals and eliminate special treatment. Policy makers and
legislators further justified Public Law 280 by pointing to what they called “lawlessness”
on reservations in certain states, and therefore the need for a more pervasive police
presence by way of state jurisdiction.
While additional federal law enforcement activity
or support for strengthening tribal law enforcement might have accomplished the same
goal, either of these alternative responses would have been more costly for the federal
government.
Public Law 280 represents a particular set of solutions to two significant problems
in law enforcement and criminal justice policy: Which political body should direct the
conduct of law enforcement and criminal justice (what we will call the control/
5
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.
accountability question), and which resources should be available to support those
systems (what we will call the resource question). On the question of control/
accountability, Public Law 280 opted for greater control at the state and local government
level, and less control at the tribal and federal level. The near elimination of exclusive
tribal authority over a range of less serious offenses by tribal members is the most
obvious manifestation of reduced tribal control. But the switch from BIA law
enforcement to state also meant that tribes traded a federal police force that included
many Indian officers (due to the BIA’s Indian preference laws), for county police forces
operating under local sheriffs and with fewer Indian officers. Shifting to state jurisdiction
often opened the possibility for greater electoral control over law enforcement and
criminal justice officials
, as federal police and United States Attorneys are appointed,
while local sheriffs, district attorneys, and even judges may be elected officials. Effective
political control at the county level has typically eluded tribal communities, however, at
least until the advent of tribal gaming for tribes in some Public Law 280 states opened the
possibility of considerable campaign contributions. Occasionally the county populations
in Public Law 280 states are mostly Indian; more often, however, Indians are a minority
in their county electorates, leaving them without effective political control over their
sheriffs, district attorneys, and judges. The switch to state jurisdiction also meant a
decline in potential tribal control over law enforcement because tribes under Public Law
280 could not take advantage of the 1975 Indian Self-Determination Act to contract with
the BIA for the administration of their own law enforcement services.7
Had tribes expressed a preference for the state jurisdiction system, it could be
argued that the shift to increased outside authority at the state level was an indirect
expression of tribal control. One of the striking features of Public Law 280, however, is
the fact of its adoption and implementation without the consent of the affected tribes. In
some instances, the introduction of state jurisdiction violated specific treaty promises.
Although President Eisenhower expressed qualms about the absence of a tribal consent
provision when he signed the measure into law,
his misgivings did not impel him to veto
the legislation. However, 15 years later, in 1968, Congress amended Public Law 280 to
require that any future assertion of state jurisdiction under its terms may occur only after
a positive vote by the affected tribe. State jurisdiction already in place was left
6
7 Beginning in the mid-1990’s, some tribes in Public Law 280 states realized that they could still contract
to carry out the limited federal law enforcement functions that remained on their reservations. These
functions include enforcement of special federal laws criminalizing liquor, trespass, gaming, and other
criminal offenses focused on Indian country. See, e.g., 18 U.S.C. § 1165 (trespass for purposes of hunting
and fishing in violation of tribal law). Although these federal contracts rarely involved funding for the
major operating expenses of a tribal police department, they did confer federal peace officer status on the
tribal police officers who carried out the contract functions. And this federal peace officer status, in turn,
provided the predicate for state peace officer status, something tribal law enforcement officers have often
sought in Public Law 280 states, where it’s advantageous to be able to arrest offenders, especially nonIndians, for violation of state law.
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.
undisturbed, however, regardless of tribal preferences. Interestingly, not a single tribe has
consented to state jurisdiction since that time.8
On the question of resources to support law enforcement and criminal justice on
reservations, Public Law 280 did not supply an easy answer. A notable feature of the law
is the absence of any federal funding support for the states’ new law enforcement and
criminal justice duties. Indeed, one could describe Public Law 280 as an early version of
an unfunded federal mandate.
While this failure to authorize or appropriate federal funds
for Public Law 280 states is understandable given Congress’ goal of reducing the federal
budget, it left local governments in a difficult situation. Because reservation trust lands
are exempt from state and local property taxes, and tribal members living and earning
income on reservations are exempt from state income and sales taxes, some of the most
important sources of funding for local law enforcement and criminal justice on
reservations were unavailable. Moreover, as noted above, the Department of the Interior
largely failed to include tribes in Public Law 280 states in its growing support for tribal
police and courts during the 1970s and 1980s, leaving Public Law 280 states unable to
rely on tribal agencies to shoulder the financial responsibility.
Congress did provide some relief for states 15 years later, in the 1968
amendments to Public Law 280. Under those amendments, a state (but not a tribe) could
initiate the return, or retrocession, of its jurisdiction back to the federal government. This
return could be full or partial, as to geography or offenses; and the federal government
could choose whether or not to accept the state’s offer. Since that time, retrocession has
taken place affecting tribes in both the named, or “mandatory,” Public Law 280 states, as
well as tribes in the optional states, affecting more than 25 tribes
