Shane Day and Sarabeth Anderson have posted their working paper, “Determinants of Successful American Indian Resistance to the Establishment of State Government Jurisdiction Under Public Law 280: A Comparative Case Study of the Processes of Exemption and Retrocession” on SSRN.
Here is the abstract:
Public Law 280 is a federal law passed in 1953 that grants state governments criminal and some civil jurisdiction over American Indian reservations. In doing so, PL 280 violated the nation-to-nation relationship between Indian tribes and the Federal government and opened the door to greater state interventionism on tribal lands. However, implementation of the law has been quite uneven, resulting in a complex matrix of inter-jurisdictional relationships and conflict. For instance, six states were initially granted “mandatory” PL 280 authority over tribes, with additional states able to apply for jurisdiction under PL 280 through an appeal to Congress. However, in both “mandatory” and “optional” states, certain tribes have been exempted from state jurisdiction. Certain tribal authorities, such as the Red Lake and Warm Springs Reservations, were granted initial exemptions during the initial implementation of the law. Amendments to PL 280 in 1968 also opened up an avenue for tribes to apply for a repeal of state authority, a process known as retrocession. While there is an ample amount of published scholarship examining the history and effects of PL 280, very little work has been conducted in examining cases in which state jurisdiction under PL 280 was initially denied to the states nor cases in which it was subsequently retroceded. This paper presents a typology of state-tribal relationships under PL 280, and seeks to answer the questions of why certain tribes were successful in receiving initial exemptions under PL 280, and why certain tribes, but not others, have been successful in attaining subsequent retrocessions. The paper also outlines a proposed case-based research design and process tracing methodology designed to delve deeper into the various processes and situations identified in our typology.
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