Retrocession from Public Law 2801
Before Congress amended Public Law 280 (PL 280) in 1968, tribes could be
subjected to state criminal jurisdiction under its terms without their consent.
Furthermore, once a state was named in the Act or opted into its jurisdictional regime,
PL 280 treated the decision as final and irreversible. As we have shown, both tribes and
states have had significant, though not identical, concerns about the efficacy of the PL
280 system for administration of criminal justice in Indian country. Thus, it was
predictable that soon after the passage of PL 280, both states and tribes would complain
that there was no way for either type of government to change the arrangement back to
the original situation, that is,
to return state criminal jurisdiction to the federal
government, reinstating the prior regime.
Congress attempted to rectify this omission with a provision in the Indian Civil
Rights Act (ICRA) of 1968.2 ICRA authorized states to “retrocede” PL 280 jurisdiction,
or return criminal jurisdiction to the federal government. The effect of complete
retrocession would be to reinstate the complex criminal jurisdiction regime that operates
in Indian country that has never been subject to PL 280. That alternative regime entails:
• exclusive tribal jurisdiction over non-major crimes between Indians and
over victimless crimes by Indians;
• shared federal and tribal jurisdiction over major crimes committed by
Indians and over non-major crimes committed by Indians against nonIndians;
• exclusive federal jurisdiction over crimes committed by non-Indians
against Indians;
• exclusive state jurisdiction over crimes committed between non-Indians
and probably also over victimless crimes by non-Indians.3
ICRA’s provision for retrocession is brief :
The United States is authorized to accept a retrocession by any
State of all or any measure of the criminal or civil jurisdiction or
both, acquired by such State pursuant to (Public Law 280) ...4
409
1 Heather Valdez Singleton contributed substantially to the writing of this chapter.
2 25 U.S.C. §§ 1321-1326.
3 This regime is described in Chapter 1 and in Nell Newton et al., Cohen’s Handbook of Federal Indian
Law, Chapter 9 (LexisNexis, 2005 ed.).
4 25 U.S.C. § 1323.
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.
Note that ICRA provides for state initiated retrocession, so that tribes seeking
retrocession must first lobby and persuade their state governments.
5 Once state approval
is secured, the process then moves to the Department of the Interior (DOI) for review.
There are no guidelines regulating how DOI should review retrocession petitions, other
than a federal Executive Order specifying that the Secretary of the Interior shall consult
first with the Attorney General.6
Questions for This Chapter:
Why So Few Retrocessions, Why Have Some Succeeded, and What Has
Retrocession Accomplished?
Of the over 150 tribes under PL 280 jurisdiction in the lower 48 states, only 31
have successfully retroceded since 1968, and only seven of those are from the five
“mandatory” PL 280 states other than Alaska. There have been no retrocessions by the
more than 235 tribes and Native villages in Alaska.
Retrocessions in Mandatory PL 280 States
Alaska None
California None
Minnesota Bois Forte [40 FR 4026 (1975)]
Nebraska Omaha [35 FR 16,598 (1970)] (except for motor vehicle offences)
Winnebago [51 FR 24,234 (1986)]
Santee Sioux [71 FR 7994 (2006)]
Oregon Burns Paiute [44 FR 26,129 (1979)]
Umatilla
[46 FR 2195 (1981)]
Wisconsin Menominee [41 FR 8516 (1976)]
Retrocessions in Optional PL 280 States
Florida None
Idaho None
Montana Salish Kootenai [60 FR 123 (1995)] (misdemeanors only)
410
5 For a discussion of why Congress may have failed to allow for tribally initiated retrocession, even as it
was requiring tribal consent for future extensions of PL 280, see Carole Goldberg-Ambrose (with Timothy
Carr Seward), Planting Tail Feathers: Tribal Survival and Public Law 280 at 60-64 (UCLAAmerican
Indian Studies Center, 1997).
6 Executive Order 11435, Nov. 21, 1968 (Lyndon B. Johnson).
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.
Nevada Battle Mountain Colony
Carson Colony
Dresslerville Colony
Elko Colony
Goshute Reservation
Lovelock Colony
Odger’s Ranch
Reno-Sparks Colony
Ruby Valley Allotment
South Fork Reservation
Washoe Tribal Farms
Washoe Pinenut Allotment
Winnemucca Colony and
Yomba Reservation [40 FR 27,501 (1975)]
Ely Indian Colony [53 FR 5837 (1988)
Washington Quinault [34 FR 14,288 (1969)]
Port Madison [37 FR 7,353 (1972)]
Colville [52 FR 8,372 (1987)]
Chehalis, Quileute, and Swinomish [54 FR 19,959 (1989)]
Tulalip [65 FR 75948 (2000)]
As this list shows, in Nevada,
14 tribes retroceded in one group and, in Washington, three
in one group. So, if we count discrete retrocession campaigns, the number shrinks to 16
retrocessions.
Considering the widespread evidence of tribal dissatisfaction with state criminal
jurisdiction under PL 280, it’s remarkable that so few tribes have retroceded. One
purpose of this chapter is to investigate the reasons for the small number of retrocessions.
Is the retrocession process too expensive, time consuming, confusing, or politically
difficult? In other words, is there something about the way the process is structured that
precludes or inhibits tribes from achieving retrocession? Are there other reasons why
tribes have not successfully retroceded? For example, tribes may not wish to establish
their own criminal codes and courts, something that they would likely have to do after
retrocession, given that federal criminal jurisdiction in Indian country is not as extensive
as states’ PL 280 jurisdiction.7 Perhaps tribes have been able to overcome the problems
presented by PL 280 by means short of retrocession, especially through cooperative
agreements with local counties. Conversely,
what might explain why some tribes have
succeeded in achieving retrocession? What concerns have motivated their retrocession
initiatives, and what has proven most important to their positive results?
Besides understanding the reasons for so few retrocessions and the success of
some tribes, we also want to investigate the experience of tribes that have chosen to
retrocede. Has community satisfaction with law enforcement and criminal justice
411
7 This point is explained in Chapter 1.
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.
increased? Does the community perceive that public safety is greater after retrocession
than before?
Case Studies of Retrocession
There is not an extensive literature on retrocession. However, from published
sources, both scholarly and journalistic, we have been able to develop several case
studies of tribes that succeeded in achieving the removal of state jurisdiction and the
reinstatement of federal criminal jurisdiction, and one instance of failed efforts. These
studies reveal the obstacles to success, as well as the strategies that successful tribes
deployed to reach their goal.
