County Sues BIA Over Boundary Dispute and Retrocession on Yakama Reservation

Download materials in the matter of Klickitat County v. U.S. Department of Interior (E.D. Wash.):

Doc. 1 Complaint for Declaratory and Injunctive Relief

Link to previous coverage here.

Bob Anderson on PL 280 Retrocession Legislation in Washington State

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.

Brent Leonhard on PL 280 Retrocession in Washington State

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.