PL 280

Important New Empirical Research on PL280’s Impact on Indian Reservation Crime and Economies

Matthew L.M. Fletcher

Valentina P. Dimitrova-Grajzl, Peter Grajzl, and A. Joseph Guse, have posted “Jurisdiction, Crime, and Development: The Impact of Public Law 280 in Indian Country” on SSRN. Here is the abstract:

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments in selected parts of Indian country. Where enacted, the law fundamentally altered the pre-existing legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socio-economic outcomes. The law’s controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law’s endogenous nature. We examine the law’s impact on crime and on economic development in U.S. counties with significant American Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law’s politico-historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law’s adverse impact is robust and noteworthy in magnitude.

This is perhaps the most important piece of empirical scholarship on Public Law 280 in that the researchers are not recognized as supporting either side, as far as I can tell.

Brent Leonhard on PL 280 Retrocession in Washington State

Matthew L.M. Fletcher

M. Brent Leonhard has posted his paper, “Returning Washington PL 280 Jurisdiction to its Original Consent-Based Grounds,” on SSRN . It is forthcoming in the Gonzaga Law Review.

Here is the abstract:

When enacted in 1953, President Eisenhower expressed “grave doubts” about provisions of Public Law 83-280 (PL 280) that allowed a state to assert jurisdiction over Indian country without tribal consent. Consistent with President Eisenhower’s doubts, the State of Washington enacted legislation in 1957 to assert PL 280 jurisdiction over Indian country provided a tribe requested the State exercise such power. However, in 1963 the State amended its law and baldly asserted limited PL 280 jurisdiction over all of Indian country regardless of tribal consent. Five years later, recognizing the inappropriateness of non-consensual assertions of state authority over tribes, the federal government amended PL 280 in 1968 to require tribal consent and to create a path for retrocession of state authority. Despite changes in federal law, the State of Washington has never acted to rectify its assertion non-consensual authority over tribal nations.

In the 2011 Washington legislative session a joint executive-legislative workgroup on tribal retrocession was formed to study the desirability of enacting a law that would require the State to retrocede PL 280 jurisdiction back to the federal government when specifically requested by an affected tribe. This paper advocates for such changes in Washington’s law, which would effectively return the law to its original consent-based grounds. In doing so, it explains how Indian country criminal jurisdiction would work with such changes, how it currently works under PL 280 generally and Washington specifically, and why a mandatory retrocession provision ought to be adopted for both moral and pragmatic reasons.

Note about Minnesota Workers’ Comp Case

Matthew L.M. Fletcher

Here is the notice about this case.

An excerpt:

Case name: Swenson v. Nickaboine d/b/a Northland Quality Builders, No. A10-380 (Minn. 02/02/11).

Ruling: The Minnesota Supreme Court held that the workers’ compensation laws could cover a worker injured while working on an Indian reservation.

Our postings about the opinion release, and the briefs.

State v. Yallup — Wash. Court of Appeals Decides PL 280 Criminal Jurisdiction Case

Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Elon Yallup challenges his conviction for felony driving while under the influence (DUI), arguing that the State cannot enforce the implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. We conclude that the implied consent statute is primarily a criminal statute rather than a civil regulatory statute as that distinction is applied by the United States Supreme Court in cases interpreting Public Law 280.

Appellant brief is here.

Respondent brief is here.

News Coverage of Wisconsin Oneida Proposal to Expand Tribal Court Jurisdiction

Matthew L.M. Fletcher

From the Green Bay Press Gazette, via Pechanga:

A legislative proposal to revamp the Oneida judicial system and define its authority is part of a larger trend among Native American tribes across the country to establish their own law enforcement and judicial systems.

* * *

The authority and jurisdiction of modern tribal courts is complex.

Wisconsin is one of six states where a 1953 federal measure called Public Law 280 gave criminal jurisdiction over tribal areas to the states from the federal government, and also allowed state courts jurisdiction over civil matters on reservations.

The law was a product of the termination era — a period in the 1950s and ’60s when the federal government severed relationships with many tribes, said Matthew Fletcher, a professor and director of the Indigenous Law and Policy Center at Michigan State University.

However, Congress didn’t appropriate any money to these states to increase the law enforcement necessary to enforce the jurisdiction, leading local officials to often ignore problems on reservations, Fletcher said.

When federal Native American policy shifted toward self-determination, giving tribes more control over their governance, tribes began developing their own law enforcement systems and courts. As they did, questions arose about jurisdiction.

Continue reading →

Minnesota Supreme Court Affirms State Jurisdiction over Tribal Traffic Offenses

Matthew L.M. Fletcher1 Comment

…over a dissent from Justice Alan Page. The case is State v. Davis. An excerpt:

State court has subject-matter jurisdiction over appellant‟s traffic violations because Congress has not preempted Minnesota from enforcing its traffic laws against appellant in state court.

And from the dissent:

The MCT is the governing unit federally recognized by the Bureau of Indian Affairs, and the individual bands such as the Leech Lake Band and the Mille Lacs Band are merely “component reservations” of the MCT. Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 18,555 (Apr. 4, 2008). Yet the court concludes with little explanation that the MCT has no tribal interest in self-governance. Nor does the court cite any authority for the distinction it makes between Indian tribes and Indian bands. I would also note that there is no indication in this record that the MCT has no interest in self-governance or has chosen to relinquish its interest in self-governance. Absent a showing that the MCT has chosen to relinquish its interest in self-governance, it is presumptuous for us to impose such a choice on the MCT. Because we held in Stone that no exceptional circumstances exist requiring a preemption analysis for tribal members who are alleged to have been speeding on tribal territory and because Davis is an MCT member whose alleged speeding offense occurred within the MCT‟s territory, I conclude that the state has no jurisdiction over Davis.

State v. Beasley — Idaho Court of Appeals Affirms Conviction at Fort Hall

Matthew L.M. Fletcher

Here is the opinion. An excerpt:

The district court did not err by denying Beasley’s motion to dismiss. Trooper Winans was not outside his jurisdiction when he arrested Beasley, as the state and the Shoshone-Bannock tribes share concurrent jurisdiction over Interstate 15 where it crosses the Fort Hall Indian Reservation. Furthermore, the tribal extradition code does not apply to arrests by state agents in areas of concurrent jurisdiction. Therefore, the arrest was not illegal and the district court was not required to relinquish jurisdiction over Beasley. Beasley’s judgment of conviction is affirmed.