Public Law 280

New Scholarship Arguing PL 280 is Unconstitutional

Matthew L.M. Fletcher

Kyle Conway has published “Inherently or Exclusively Federal: Constitutional Preemption and the Relationship Between Public Law 280 and Federalism” in the University of Pennsylvania Journal of Constitutional Law (SSRN link). Here is the abstract:

The basic principles of Indian-law jurisprudence often appear disconnected with basic principles of American constitutional law. Indian law, however, has a special significance to important issues of state and federal power. This Article seeks to build on the work of prior scholars who have sought to connect Indian law to American constitutional values.

Public Law 280 is a federal law that gives states control over certain aspects of Indian affairs that were traditionally within the scope of the federal government. This Article argues that Public Law 280 is unconstitutional under a doctrine of constitutional preemption. Constitutional preemption is grounded in the system of overlapping sovereignty that forms the structure of the Constitution and should be understood as prohibiting the federal government from delegating inherently and exclusively federal powers to the states. The power to manage Indian affairs is entrusted exclusively to the federal government, and Congress cannot constitutionally delegate it to the states.

The constitutional difficulties raised by Public Law 280 are particularly relevant in an era when issues of federalism are at the forefront of legal discussion. It is often accepted that courts may limit the federal government’s authority to exercise powers reserved to the states, but we should also take seriously the idea that courts may limit the states’ authority to exercise powers reserved to the federal government.

 

United States to Assert Concurrent Criminal Jurisdiction over White Earth Reservation

Matthew L.M. Fletcher1 Comment
First Assumption of Federal Jurisdiction Under Historic Tribal Law and Order Act
The Department of Justice has granted a request by the White Earth Nation for the United States to assume concurrent criminal jurisdiction on the 1,300 square mile White Earth reservation in northern Minnesota, Deputy Attorney General James M. Cole announced today.
The decision was the first action of its kind under the landmark Tribal Law and Order Act of 2010 (TLOA), which granted the Justice Department discretion to accept concurrent federal jurisdiction to prosecute major crimes within areas of Indian country that are also subject to state criminal jurisdiction under Public Law 280. Public Law 280 is the 1953 law that mandated the transfer of federal law enforcement jurisdiction for certain tribes to six states, including Minnesota. The decision, relayed yesterday in a letter to the tribe signed by Deputy Attorney General Cole, will take effect on June 1, 2013. Tribal, state, and county prosecutors and law enforcement agencies will also continue to have criminal jurisdiction on the reservation.
“Our goal in granting this request is to strengthen public safety and security for the people of White Earth,” said Deputy Attorney General Cole. “We look forward to partnering with the tribe and our state and local counterparts to support White Earth in ensuring justice on the reservation.”
“The public safety challenges facing our tribal communities are serious and complex,” said U.S. Attorney for the District of Minnesota B. Todd Jones. “The United States Attorney’s Office will continue working closely and collaboratively with our tribal and local partners towards our common goal – improving public safety. It is our hope that with the additional jurisdiction, our Office will be able to support our tribal and county partners for the benefit of all communities.”
The Department of Justice already has jurisdiction to prosecute crimes such as drug trafficking and financial crimes wherever they occur in the United States – including on the White Earth reservation. The change announced today will expand this existing jurisdiction on the reservation to allow federal prosecution of major crimes such as murder, rape, felony assault and felony child abuse.
The decision followed careful consideration of the request and information provided by the White Earth Nation, as well as by the Justice Department’s Office of Tribal Justice, the Executive Office for United States Attorneys, the U.S. Attorney’s Office for the District of Minnesota, the FBI, the U.S. District Court, state and local law enforcement partners and other sources.
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Office of Public Affairs

Walking on Common Ground — New Publications on Tribal Courts & PL 280

Matthew L.M. Fletcher1 Comment

Promising Strategies: Tribal State Court Relations
Tribal courts and state courts interact across an array of issues, including child welfare, cross jurisdictional enforcement of domestic violence orders of protection, and civil commitments. Since the early 1990s, initiatives by judges’ organizations within both judicial systems have focused on an agenda of greater mutual understanding and cooperative action. This publication spotlights some of the most successful strategies within these initiatives. Click here to read full document.

Promising Strategies: Public Law 280
In PL 280 jurisdictions, the concurrent jurisdiction of state and tribal courts over criminal prosecutions and civil actions arising in Indian Country creates many interactions and complications. Tribal and state authorities encounter one another across an array of issues, including government-to-government recognition, concurrent jurisdiction, cross-jurisdictional enforcement of domestic violence orders of protection, cross-deputization, and civil commitments. Tensions and misunderstandings have been common features of tribal and state policing relations in the past, sometimes erupting in jurisdictional conflicts. This publication highlights unique ways in which tribal and state jurisdictions have entered into collaborations to overcome barriers to effective justice provision. Click here to read full document.

Minnesota SCT Affirms State Jurisdiction to Civilly Confine Leech Lake Band Ojibwe Member

Matthew L.M. Fletcher1 Comment

Here is today’s opinion in Beaulieu v. Minnesota Department of Human Services.

Mr. Beaulieu previously challenged his confinement in federal court, materials here.

Washington Supreme Court Video of State v. Clark Oral Argument

Matthew L.M. Fletcher

Here.

Materials here.

Washington SCt Briefs in State v. Clark — Authority of State Law Enforcement on Indian Trust Land

Matthew L.M. Fletcher2 Comments

Here are the briefs in State v. Clark:

Lower court materials here.

Washington COA Holds State Courts Have Subject Matter Jurisdiction over Tribal Corporation

Matthew L.M. Fletcher6 Comments

Here is the opinion in Outsource Services Management v. Nooksack Business Corporation:

Wash COA Opinion

And the briefs:

Outsource Services Management, Respondent v. Nooksack Business Corporation, Appellant
Case Number – 67050-6
Hearing Date – 09/20/2012

Current Washington Law Review Features Several Indian Law Articles

Matthew L.M. Fletcher

Here.

A list:

Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280

Robert T. Anderson
87 Wash.L.Rev. 915

Full Article

Inextricably Political: Race, Membership, and Tribal Sovereignty

Sarah Krakoff
87 Wash.L.Rev. 1041

Full Article

Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights

Rebecca Tsosie
87 Wash.L.Rev. 1133

Full Article

Fleeing East from Indian Country: State v. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit

Kevin Naud, Jr.
87 Wash.L.Rev. 1251

Full Article

And a special treat (for me at least), an article by my legendary criminal law and criminal procedure prof:

The Rise, Decline, and Fall (?) of Miranda

Yale Kamisar
87 Wash.L.Rev. 965

Full Article

Bob Anderson on PL 280 Retrocession Legislation in Washington State

Matthew L.M. Fletcher

Robert T. Anderson has published “Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280” in the Washington Law Review. HIGHLY RECOMMENDED!

Here is the abstract:

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 (P.L.) 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 federal self-determination policy is not advanced by adherence to termination era experiments like P.L. 280. The article concludes that federal legislation should provide for a tribally-driven retrocession model, and makes proposals to that end.

Minnesota COA Decides PL 280 Case Involving DUI on White Earth Reservation

Matthew L.M. Fletcher1 Comment

Here is the opinion in State v. St. Clair:

State v St Clair

An excerpt:

In December 2011, a state trooper observed a vehicle traveling at 65 miles per hour in an area on the White Earth Indian Reservation where the speed limit was 55 miles per hour. The trooper initiated a traffic stop and identified the driver of the vehicle as appellant Linda Jane St. Clair. The trooper noticed that appellant’s driver’s license had an ignition-interlock restriction and asked her if an ignition-interlock device was installed in the vehicle she was driving. Appellant explained that the vehicle belonged to her husband and did not have an ignition-interlock device. The trooper cited appellant for violating her restricted license by driving a vehicle without an ignition-interlock device. See Minn.Stat. § 171.09, subd. 1(g). Appellant has six prior driving-while-impaired (DWI) convictions.
Appellant moved to dismiss the charge, arguing that the district court lacked subject-matter jurisdiction because she is an enrolled member of an Indian tribe and the offense occurred on her reservation. The district court denied the motion, determining that the state has subject-matter jurisdiction because a violation of Minn.Stat. § 171.09, subd. 1(g), is criminal/prohibitory.
The parties signed a stipulation in which appellant waived her trial rights and agreed that the district court could consider the law enforcement reports and her White Earth Reservation enrollment card. Based on the stipulated evidence, the district court determined that the state had proven beyond a reasonable doubt that appellant was guilty of violating Minn.Stat. § 171.09, subd. 1(g). This appeal follows.