Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280
51 Pages Posted: 6 Dec 2012 Last revised: 14 Dec 2012
Date Written: December 5, 2012
This Article canvasses the jurisdictional rules applicable in American Indian tribal territories — “Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed.
The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.S. COMM. ON THE INTERIOR & INSULAR AFFAIRS, 94TH CONG., BACKGROUND REP. ON PUBLIC LAW 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).
Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The modern Indian self-determination policy is not advanced by adherence to termination era experiments like Public Law 280. The Article concludes that federal legislation should provide for a tribally-driven retrocession model and makes proposals to that end.
Keywords: Indian country, jurisdiction, criminal procedure, criminal law, law enforcement, sovereignty, self-determination, Indian Reorganization Act
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