REVIEW OF THE LITERATURE
Although Public Law 280 has allocated criminal jurisdiction on reservations to
some states for more than fifty years, researchers and government sources have provided
surprisingly little information about its effectiveness in crime control and the degree of
tribal community satisfaction with its operation. There have been no systematic efforts to
compare law enforcement and criminal justice on reservations subject to Public Law 280
with their counterparts on non-Public Law 280 reservations.
Furthermore, there have
been no attempts to exploit opportunities for research design and comparison presented
by the fact that some tribes in mandatory Public Law 280 states were initially excluded
from application of the Act; some reservations straddle Public Law 280 and non-Public
Law 280 states; and some reservations initially covered under mandatory or optional
provisions of Public Law 280 have subsequently been returned to federal jurisdiction
through the process of retrocession.
Anecdotal information in congressional testimony, government reports, and
journalistic accounts suggest a generally negative view of state jurisdiction stemming
from tribal communities subject to Public Law 280.1 Tribal dissatisfaction with state
criminal authority can also be inferred from the fact that no tribe has consented to state
jurisdiction under Public Law 280 since amendment of the law in 1968 to require such
prior consent. More than fifty years after the enactment of that law, however, we have
very little systematic understanding of Public Law 280’s affect crime rates, resources
allocated to law enforcement and criminal justice, responsiveness of law enforcement to
community priorities, and the suitability of state jurisdiction to particular cultural, legal,
and logistical challenges presented on reservations. We also lack systematic knowledge
about the circumstances that create greater or lesser tribal community satisfaction with
state jurisdiction, and the circumstances that lead to state retrocession of Public Law 280
jurisdiction back to the federal government. The fact that no federal or state agencies
collect law enforcement and crime data specifically for reservations affected by Public
Law 280 doubtless has contributed to this serious informational void.
This review of the literature canvasses the very limited government and research
data focusing specifically on Public Law 280. In addition, however, we look to general
research findings regarding the determinants or preconditions for successful law
enforcement on reservations,
whether those reservations are subject to state or federal
criminal jurisdiction. We attempt, then, to derive hypotheses about why state jurisdiction
in Indian country in particular may succeed or fail.
18
1 See 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.
Empirical Studies of Law Enforcement and Criminal Justice Under Public Law 280
Public Law 280’s affect on law enforcement and criminal justice in Indian country
has not been the subject of extensive empirical research. Indeed, there are only two
studies of major significance. In 1974, University of Washington Professor Ralph
Johnson interviewed 250 tribal members from twenty Washington State tribes, as well as
federal, state, and local judicial and law enforcement personnel to document perceptions
of Washington State Indians concerning state jurisdiction.2 Johnson found half of the
Indians surveyed felt state, county, and local police treated them poorly or indifferently,
and that interviewees were most concerned with juvenile matters followed by violent
crimes, traffic laws, narcotics, trespass, and theft. It is difficult to generalize about Public
Law 280 from this study, however, because Washington State has a distinctive and
unusually complex form of criminal jurisdiction on reservations located in that state.3
The other significant study, conducted in 1995, similarly focused on the effects of
Public Law 280 in an individual state.4 Professors Goldberg and Champagne sent a
survey, part of which addressed tribal satisfaction with state law enforcement, to all 103
federally recognized California tribes.5 Of the nineteen tribes that responded, seventeen
complained of serious gaps in protection from county law enforcement, and one-third
complained that county officials fail to respect tribal culture and sovereignty. Problems
with drugs and violent crimes received frequent mention. Additionally, Professors
Goldberg and Champagne carried out several intensive case studies to determine the dayto-day operation of Public Law 280 in California. They concluded from the case studies
that Public Law 280 caused lawless behavior because of jurisdictional vacuums and
abusive exercise of state power. In particular, limited and uncertain state jurisdiction
under Public Law 280, coupled with the absence of tribal justice systems and law
19
2 National American Indian Court Judges Association, Justice and the American Indian, Volume 1:
The
Impact of Public Law 280 upon the Administration of Justice on Indian Reservations (1974).
3 See Chapter 1; Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 43
(1979). Significantly, Washington later retroceded criminal jurisdiction over several of the tribes included
in that study.
4 Policing of Native communities in Alaska, which is one of the mandatory Public Law 280 states, is largely
conducted by state-appointed Village Public Service Officers (VPSOs). Although this form of policing has
received some scholarly attention, even the leading researcher on this topic has acknowledged that “[n]o
recent evaluation or description of the program as a whole exists. We know little of how well it works, how
VPSOs perform their job and how their communities react and interact with them, or whether the
aspirations and goals set by the originators of the program are being achieved.” Otwin Marenin, “Policing
the Last Frontier,” in Marianne O. Nielsen & Robert A. Silverman, eds., Native Americans, Crime, and
Justice (Westview Press, 1996)
. Furthermore, nearly all Alaska Native communities were placed outside
the scope of Public Law 280 in 1998 by the decision of the United States Supreme Court in Alaska v.
Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), which eliminated most of the Indian
country in the state. See discussion at note 87, infra.
5 Carole Goldberg & Duane Champagne, “A Second Century of Dishonor: Federal Inequities and
California Tribes” (Report prepared for the Advisory Council on California Indian Policy, 1996), available
at http://www.aisc.ucla.edu/ca/Tribes.htm (last visited August 18, 2007).
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.
enforcement due to lack of federal funding, created situations where there was no legal
remedy for problems such as dumping of noxious wastes on tribal land and unauthorized
occupation of tribal rental housing. Because of these legal vacuums, tribal members
sometimes engaged in self-help that erupted, or threatened to erupt, into violence.
In a more general study of tribal-state relations, Ashley and Hubbard provide brief
case studies of law enforcement on several reservations subject to Public Law 280.6
These reports suggest greater tribal satisfaction with county law enforcement where the
tribe and the county are able to establish cooperative arrangements to share authority and
resources, and the county is willing to recognize the tribe’s governmental powers within
its own territory.
One way to understand law enforcement and criminal justice under Public Law
280 is by examining the experience of tribes that have been subject to state jurisdiction
and later returned to federal jurisdiction as a result of retrocession. As indicated in
Chapter 1, only states may initiate this process; but, by and large, retrocession has only
occurred where Indian nations have taken the initiative in lobbying state government.7
Both the conditions that led tribes to seek retrocession in the first place, and the
comparative effectiveness of law enforcement and criminal justice before and after
retrocession, could illuminate the impact of Public Law 280 on reservation communities.
However, there has been little systematic research on the causes and effects of
retrocession. Only a few individual tribal case studies exist.8 These studies indicate that
tribes that mobilized to effect retrocession were troubled by lack of communication
between tribal and county officials; failure of the county to provide for the cultural and
rehabilitative needs of Indian arrestees; tribal concerns about disparate and retaliatory
treatment of Indians with respect to arrests, sentencing, and provision of public defender
services; and lack of cooperation or even recognition of tribal law enforcement by county
20
6 Jeffrey S. Ashley and Secody J. Hubbard, Negotiated Sovereignty: Working to Improve Tribal-State
Relations (Praeger 2004). The tribes studied are the Campo Band of Kumeyyay Indians (California), the
Puyallup Tribe (Washington), and the Confederated Tribes of the Salish-Kootenai Reservation (Montana,
retroceded).
7 In a few cases, state concerns about the cost of reservation law enforcement drove the retrocession
process. For example, the state of Nebraska made overtures to the Omaha and Winnebago Tribes in 1969
regarding retrocession, mainly because of a lack of state financial assistance to the county, which had
acquired large additional costs for reservation law enforcement without any associated property tax base.
See Omaha Tribe of Nebraska v. Walthill, 334 F. Supp. 823, 827-28 (D. Neb. 1971).
8 See, e.g., Charles F. Wilkinson, “Civil Liberties Guarantees When Indian Tribes Act As Majority
Societies: The Case of the Winnebago Retrocession,” 21 Creighton L. Rev. 773 (1987); Stewart Wakeling,
Miriam Jorgensen, S. Michaelson, & Manley Begay, Policing on American Indian Reservations 35-36
(National Institute of Justice, 2001) (brief study of retrocession at the Salish-Kootenai Reservation); Bonnie
Bozarth, “Public Law 280 and the Flathead Experience,” 39 Journal of the West 46 (2000); Ashley and
Hubbard, supra note 6 at 84-86 (brief study of retrocession at the Salish-Kootenai Reservation); Mark
Scherer, Imperfect Victories: The Legal Tenacity of the Omaha Tribe, 1945-1995, 25-45 (Univ. of Neb.
Press 1999) (discussing events leading up to and surrounding Nebraska’s decision to retrocede jurisdiction
over the Omaha Reservation).
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.
authorities.9 However, there may be some danger in generalizing about Public Law 280
from the concerns of Indian nations that were so troubled by state jurisdiction that they
went to the trouble and expense of agitating for retrocession.
Accounts of tribal law enforcement that compare pre- and post-retrocession
experience may be a more illuminating research source. Wakeling et al. suggest that, on
the one hand, retrocession, is likely to result in greater accountability and satisfaction
with police officers. However, it can also put a greater strain on already deficient
resources. For instance, in a study of the Confederated Salish and Kootenai Tribal Police
Department, they found that Montana’s 1994 retrocession ceding exclusive jurisdiction
over misdemeanor crimes committed by Indians dramatically increased the tribal
department’s work load, with calls nearly doubling.10 Nonetheless, Wakeling et al.
concluded that “the retrocession agreement continues to challenge the department to
move beyond reliance on rapid-response policing to rethinking its strategy and role in the
community.”11 Ashley and Hubbard’s research focusing on the same Tribe led them to an
even more positive assessment of retrocession. They describe retrocession as a “winwin” for the Tribe and the state, because “[t]he state was able to eliminate a number of
minor criminals from their prisons and save money. The tribe was able to regain some of
its inherent sovereignty and provide more viable options for some of its members.”12 The
Tribe has made cross-deputization agreements with most of the surrounding state and
local authorities, establishing protocols for arrests of tribal members and non-Indians; and
the tribal and county prosecutors cooperate in allocating responsibility for felonies, which
are still under concurrent jurisdiction.