U.S. Department of Justice Office of Justice Programs

D National Institute of Justice E C .

0 5

Research in Brief

Public Law 280 and Law Enforcement in Indian Country—Research Priorities

www.ojp.usdoj.gov/nij U.S. Department of Justice Office of Justice Programs 810 Seventh Street N.W. Washington, DC 20531

Alberto R. Gonzales Attorney General

Regina B. Schofield Assistant Attorney General

Glenn R. Schmitt Acting Director, National Institute of Justice

This and other publications and products of the National Institute of Justice can be found at:

National Institute of Justice www.ojp.usdoj.gov/nij

Office of Justice Programs Partnerships for Safer Communities www.ojp.usdoj.gov DEC. 05 Public Law 280 and Law Enforcement in Indian Country—Research Priorities

Acknowledgments Special thanks to Duane Champagne, Professor of Sociology and American Indian Studies at the Uni­ versity of California–Los Angeles (UCLA), who assisted with methodolo­ gy issues and arranging funding to support the pilot study. Thanks also to Joe Doherty with the UCLA School of Empirical Research Group, who guided the authors in designing the data collection instrument.

Findings and conclusions of the research reported here are those of the authors and do not necessarily reflect the official position or policies of the U.S. Department of Justice. This Research in Brief is based on the authors’ paper commissioned for the National Institute of Justice (NIJ) Strategic Planning Meeting on Crime and Justice Research in Indian Country, held October 14–15, 1998, in Portland, Oregon. Support was provided by NIJ, with transfer of funds from the Bureau of Justice Assistance, the Office of Community Oriented Policing Services, the Office for Victims of Crime, the Office of Juvenile Justice and Delinquency Prevention, and the Office on Violence Against Women.

NCJ 209839 RESEARCH IN BRIEF / DEC. 05

ABOUT THIS REPORT

Enacted in 1953, Public Law unreported or underreported 83–280 (PL 280) shifted Fed­ in PL 280 jurisdictions, vic­ eral jurisdiction over offenses timization surveys may be involving Indians in Indian needed to supplement avail­ country to six States and able data on reported­crime gave other States an option rates in these jurisdictions. to assume such jurisdiction. Research is also needed on: Affected tribes and States have faced obstacles in ❋ Measurable aspects of the complying with the statute, quality of State law en­ including jurisdictional uncer­ forcement under PL 280, tainty and insufficient funding such as police response for law enforcement. Yet, times to crime reports scant research exists on this from reservations. issue. In 1998 the National ❋ Institute of Justice (NIJ) Documentation of Federal sponsored a review that funding and services to identified significant gaps in tribes in PL 280 jurisdic­ data concerning crime and tions, including such factors law enforcement on PL 280 as jurisdictional vacuums. reservations. ❋ Concurrent tribal jurisdiction and enhancement of State/ What did the tribal relationships through cooperative agreements. researchers find? Data collection difficulties may hamper future research: Who should read Some States and localities this report? may not document response Federal, State, and local times to reservation­initiated elected officials and policy­ crime reports, and PL 280 makers; tribal officials and data needed from the Bureau advocates; law enforcement of Indian Affairs may be and other criminal justice inseparable from statistics professionals, including for non­PL 280 jurisdictions. researchers. Because crime may be

ii PL 280 AND LAW ENFORCEMENT

Carole Goldberg and Heather Valdez Singleton

Public Law 280 and Law Enforcement in Indian Country— Research Priorities

States lack criminal jurisdic­ tion over crimes committed “Indian country” is defined at This summary is based by or against Indians in Indian 18 U.S.C. 1151 as follows: upon: Goldberg, Carole, country unless Federal legis­ . . . (a) all land within the limits and Heather Valdez Sin­ lation expressly grants such of any Indian reservation under gleton, “Research Priori­ authority. Absent that legisla­ the jurisdiction of the United

ties: Law Enforcement in tion, tribal and Federal law States Government, notwith­ Public Law 280 States,” enforcement generally share standing the issuance of any unpublished paper, Wash­ authority over those crimes, patent, and including the ington, DC: U.S. Depart­ although a realm of exclusive rights­of­way through the ment of Justice, National reservation, (b) all dependent Institute of Justice, Octo­ tribal jurisdiction also exists. Indian communities within the ber 14–15, 1998, NCJ A significant number of Indi­ borders of the United States 209926, available at an tribes fall under State whether within the original or www.ncjrs.org/pdffiles1/ jurisdiction under Public subsequently acquired territory nij/grants/209926.pdf. 1 Law 83–280 (PL 280). thereof, and whether within or without the limits of a state, and (c) all Indian allotments, What is Public the titles to which have not Law 280? been extinguished, including rights­of­way running through Congress passed PL 280 in the same. About the Authors 1953. The statute mandated shifting Federal criminal juris­ Carole Goldberg is diction over offenses involv­ Professor of Law at provision enabling a State that the University of ing Indians in Indian country had previously assumed juris­ California–Los Angeles to certain States and gave diction over Indians under the (UCLA) and Director other States an option to law to return all or some of of UCLA’s Joint Degree assume such jurisdiction in its jurisdiction to the Federal Program in Law and the future. State jurisdiction Government, contingent American Indian Studies. over Indians outside Indian on approval from the U.S. Heather Valdez Singleton country was unchanged. is Research Associate, Department of the Interior. The amendment did not per­ UCLA American Indian Retrocession. A 1968 mit Indians either to veto Studies Center. amendment to PL 2802 State initiatives to retrocede contained a retrocession or to impose retrocession RESEARCH IN BRIEF / DEC. 05

on unwilling States. Subse­ identified some key areas for quent bills to allow tribally future research: initiated retrocession have failed in Congress and State ❋ Quantitative research com­ legislatures. paring reported­crime rates in Indian country affected Need for more research. by PL 280 with rates in Tribes and States have voiced reservations not so affect­ concerns about some of PL ed and with rates in other 280’s consequences, includ­ parts of PL 280 States. ing perceived jurisdictional uncertainty and insufficient ❋ Quantitative research bear­ funding for law enforcement. ing on the quality of State Despite these concerns and law enforcement services the law’s importance to Fed­ under PL 280. eral Indian policy and law ❋ enforcement, little research Documentation and evalua­ has been done to determine tion of Federal law enforce­ the law’s impact. The authors ment funding and services

A CURRENT ALSSESSMENT OF AW ENFORCEMENT IN INDIAN COUNTRY

The National Institute of Justice (NIJ) is cur­ ❋Evaluate retrocession, concurrent jurisdic­ rently supporting an investigation of the tion, and cooperative agreements as options experiences of Indian tribes and local law en­ to alleviate problems in PL 280 jurisdictions. forcement agencies under PL 280. Researchers ❋Explore possible administrative and legisla­ are studying 17 reservations in 10 States with tive responses to PL 280. and without PL 280 jurisdiction. Project objec­ tives are to— The researchers will produce a final report to NIJ and will disseminate relevant data and ❋Compare crime rates on reservations sub­ findings to study participants through telecon­ ject to PL 280 with rates on reservations ferences and written summaries of findings not subject to PL 280. relevant to particular sites. Services will be ❋Determine the quality and availability of offered to tribes that request help in drafting law enforcement and criminal justice under documents such as cooperative agreements. PL 280. Study results are expected by 2006. ❋Evaluate Federal law enforcement and criminal justice funding and services to PL 280 tribes.

2 PL 280 AND LAW ENFORCEMENT

to tribes subject to PL 280 Assessment of Law Enforce­ jurisdiction. ment in Indian Country”).

❋ Qualitative assessment of law enforcement under PL PL 280 highlights 280, e.g., examining Affected States and tribes. whether and to what PL 280 transferred Federal extent jurisdictional criminal jurisdiction in Indian vacuums exist. country to six States that ❋ Evaluation of the impacts could not refuse jurisdiction, of retrocession and concur­ known as “mandatory” rent tribal jurisdiction. States (see exhibit 1). The law did not provide for the ❋ Review of cooperative consent of affected tribes. agreements in PL 280 Thus, criminal laws in those States, such as between States became effective over tribe and State. Indians within as well as out­ side Indian country. PL 280 A major study sponsored by provided no financial support the National Institute of Jus­ for the newly established tice is investigating some of State law enforcement these areas (see “A Current responsibilities.

Exhibit 1. States affected by PL 280

Mandatory Statesa Optional Statesb

Alaska Arizona California Florida Minnesotac Idahoc Nebraskac Iowa Oregonc Montanac Wisconsinc Nevadac North Dakotac South Dakota Utah Washingtonc a. Tribes excluded from State jurisdiction by PL 280 were Confederated Tribes of the Warm Springs Reservation in Oregon and the Red Lake Band of Chippewa Indians in Minnesota. b. Some of the optional States made their acceptance of PL 280 jurisdiction contingent on tribal or individual Indian consent that was never forthcoming. Other optional States accepted jurisdiction over very limited subject areas. c. Contains some tribes that have retroceded.

3 RESEARCH IN BRIEF / DEC. 05

The law also permitted other 48 States. The U.S. Census States, at their option and Bureau estimates an Indian without consulting tribes, to population of about 2,786,652 choose to assume complete (including Alaska Natives), or or partial jurisdiction over 0.9 percent of the estimated crimes committed by or U.S. population in 2003.3 All against Indians in Indian but an estimated 106,450 live country. Ten States chose in the contiguous 48 States. to do so; these are referred Almost half of this population to as “optional” States (see does not live on a reservation exhibit 1). In 1968, an amend­ and is therefore subject to ment to PL 280 required trib­ State authority independent al consent before additional of PL 280. States could extend jurisdic­ tion to Indian country. Since About 23 percent of the 1968, no tribe has consented. reservation­based tribal popu­ lation in the contiguous 48 Through PL 280’s retroces­ States and all Alaska Natives4 sion provision, several fall under PL 280. The statute mandatory and optional covers 28 percent of all feder­ States have returned jurisdic­ ally recognized tribes in the tion over nearly 30 tribes to contiguous 48 states and 70 the Federal government, percent of all federally recog­ thereby reinstating tribal/ nized tribes (including Alaska Federal responsibility for law Native villages). enforcement. Criminal jurisdiction. Many PL 280’s scope in terms of unusual challenges confront affected tribes and Indian policing in Indian country population is put into per­ (see “Overview of Policing in spective once the broad con­ Indian Country”). One is tours of Indian country are determining criminal jurisdic­ sketched. Federally recog­ tion, which may lie with Fed­ nized tribes are spread eral, State, or tribal agencies across 56 million acres in depending on such consider­ the contiguous 48 States and ations as the identity of the millions of additional acres in alleged offender and victim Alaska. Of the 562 federally and the nature and location recognized tribes, more than of the offense. 330 live in the contiguous

4 PL 280 AND LAW ENFORCEMENT

OPIVERVIEW OF OLICING IN NDIAN COUNTRY

Aside from jurisdictional issues, policing on Indian reservations faces many difficulties that law enforcement elsewhere generally need not confront, at least to the same extent. Data collected by the Bureau of Justice Statistics, for example, suggest that violent victimization among American Indians and Alaska Natives exceeds that of other racial or ethnic subgroups by about 2.5 times the national average.a According to a National Institute of Justice­supported study, a typical police department in Indian country serves a population of 10,000 residing in an area about the size of Delaware patrolled by no more than 3 officers at any one time.b Even so, many reservation residents live in areas with characteristics of suburban and urban locales. Researchers found that the over­ all workload of Indian country police departments has been increasing significantly in intensity and range of problems—driven by rising crime, heightened police involvement in social con­ cerns related to crime, and increased demand for police services. The study reported that most police departments in Indian country are administered by tribes under contract with the Bureau of Indian Affairs (BIA). The second most common type of department management is direct BIA administration. Under the former arrangement, law enforcement personnel are tribal employees; under the latter, they are Federal employees. State and local authorities supply police services to tribes not affected by retrocession in PL 280 States. Of Indian country police departments surveyed, the researchers found:c

Officers that were Native American 66% Officers that were women 12% Native American officers who were members of the tribe they serve 56% Officers who were unable to speak the language native to the community they serve 87%

Notes a. Perry, Steven W., American Indians and Crime, Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, December 2004, NCJ 203097: iii; 4–6. Violent victimization comprises rape/sexual assault, robbery, and aggravated/simple assault. The report (p. 10) notes that of Indian victims of violent crime who could perceive whether offenders had used alcohol and/or drugs, 71 percent indicated that such usage was a factor in the crimes. That compares to 51 percent for violent crimes against all races. b. Wakeling, Stewart, Miriam Jorgensen, Susan Michaelson, and Manley Begay, Policing on American Indian Reservations, Washington, DC: U.S. Department of Justice, National Institute of Justice, July 2001, NCJ 188095: vi; avail­ able at www.ncjrs.org/pdffiles1/nij/188095.pdf. c. Ibid.: 25.

5 RESEARCH IN BRIEF / DEC. 05

Exhibit 2 shows how those ❋ Regulatory versus pro­ considerations pertain to hibitory laws. The U.S. criminal jurisdiction in PL Supreme Court has 280 States. For example, law declared that “regulatory” enforcement often must con­ rather than “prohibitory” sider such questions as: Is State criminal laws are out­ the alleged perpetrator or vic­ side the scope of jurisdic­ tim Indian or non­Indian? Is tion conferred by PL 280.5 the crime major or minor; This distinction eludes clear victimless or not? Did the definition and has generat­ offense occur in a PL 280 ed considerable litigation. mandatory or optional State? ❋Local versus State laws. Court decisions have attempt­ Some judicial decisions ed to define the jurisdictional reject application of local contours of PL 280; however, law to residents of Indian they have also raised some reservations under PL 280.6 areas of uncertainty: The U.S. Supreme Court

Exhibit 2. Indian country criminal jurisdiction as conferred by PL 280

Offender Victim Jurisdiction

Non­Indian Non­Indian State jurisdiction is exclusive of Federal and tribal jurisdiction. Non­Indian Indian Mandatory State has jurisdiction exclusive of Federal and tribal jurisdiction. Optional State and Federal Government have jurisdiction. There is no tribal jurisdiction. Indian Non­Indian Mandatory State has jurisdiction exclusive of Federal Government but not necessarily of the tribe. Optional State has concurrent jurisdiction with the Federal courts. Indian Indian Mandatory State has jurisdiction exclusive of Federal Government but not necessarily of the tribe. Optional State has concurrent jurisdiction with tribal courts for all offenses and concurrent jurisdiction with the Federal courts for those offenses listed in 18 U.S.C. 1153. Non­Indian Victimless State jurisdiction is exclusive, although Federal jurisdiction may attach in an optional State if impact on individual Indian or tribal interest is clear. Indian Victimless There may be concurrent State, tribal, and in an optional State, Federal jurisdiction. There is no State regulatory jurisdiction.

Source: U.S. Department of Justice, “Jurisdictional Summary,” U.S. Attorneys’ Manual, Title 9, Criminal Resource Manual 689. Retrieved October 24, 2004, from the World Wide Web: www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/ crm00689.htm.

6 PL 280 AND LAW ENFORCEMENT

has not ruled on this responsibilities. It also did question. not expressly abolish tribal justice system jurisdiction, ❋ Concurrent tribal jurisdic­ diminish the Federal Govern­ tion. Most Federal and trib­ ment’s overall trust responsi­ al justice systems that have bility to tribes, or reject addressed the issue of con­ Federal obligations to provide current tribal jurisdiction in services to tribes other than PL 280 States have deter­ Federal law enforcement. mined that such jurisdiction exists. PL 280 contains no language removing tribal Tribal and State jurisdiction. The U.S. concerns Supreme Court has not ruled on this matter either. Some tribes have voiced But the Office of Tribal Jus­ complaints that Federal fund­ tice, U.S. Department of ing was reduced for decades Justice, concluded in 2000 as a result of PL 280. In that “Indian tribes retain recent years, the U.S. concurrent criminal jurisdic­ Department of Justice has tion over Indians in PL 280 provided funding to tribes in States.”7 PL 280 States, including funds for victims of crime, ❋ Gaming offenses. Lan­ violence against women, guage in the Indian Gaming community­based policing, Regulatory Act of 1988 and court development. suggests that Federal crim­ Other concerns voiced by inal jurisdiction will super­ PL 280 tribes include the sede State jurisdiction in absence of effective law PL 280 States with respect enforcement, infringement to gaming offenses. That of tribal sovereignty, and con­ has been contested by fusion about jurisdiction several States, including when criminal activity has California.8 occurred or presents a threat.

PL 280 did not provide for State and local law enforce­ the consent of affected tribes ment agencies’ criticisms of and did not provide financial PL 280 typically focus on the support for the newly estab­ absence of Federal funding lished State law enforcement for State law enforcement

7 RESEARCH IN BRIEF / DEC. 05

services within Indian country a 1974 survey of Indians in or on difficulties in carrying Washington, an optional out State law enforcement State, and a 1995 survey of obligations because of Indians in the mandatory uncertainty about the scope State of California.12 Neither of State jurisdiction and offi­ study exhausted the research cers’ unfamiliarity with tribal potential of PL 280. communities. The Washington study’s main purpose was to document Why more research Indian residents’ perceptions is needed of State jurisdiction.13 About half of the Indians surveyed Empirical research in the felt they were treated poorly criminal justice field tends to or indifferently by State, focus on Indians as ethnic county, or local police. Juve­ groups or on Indians in non­ nile matters were of greatest PL 280 States.9 But the short­ concern to most interview­ age of research on PL 280 ees. Their next greatest con­ has not gone unnoticed. A cerns were violent crimes, 1998 study funded by NIJ traffic laws, narcotics, tres­ noted the absence of pass, and theft. Respondents research concerning crime in expressed an unusually high Indian country in PL 280 degree of uncertainty about States and recommended the agencies responsible for “a DOJ study devoted to law enforcement in their trib­ the unique problems of law al territories, and State and enforcement on reservations local law enforcement per­ subject to PL 280.”10 Another sonnel seemed equally con­ NIJ­supported study cited cerned by the confusion. “limited research on policing Whether the problems identi­ in Indian country” and sug­ fied by the study continue to gested comprehensive plague Indian country in research on law enforcement Washington State is under PL 280.11 unknown, however, and its single­State focus limits its Qualitative studies of PL general applicability to other 280’s impact. Two major States. studies that focused on PL 280 have been completed—

8 PL 280 AND LAW ENFORCEMENT

Part of the questionnaire used Quantitative research on PL in the more recent California­ 280’s impact. No quantita­ based survey probed tribes’ tive studies of the impact of experience and satisfaction PL 280 on tribes and local with State law enforcement. law enforcement exist. Fed­ Tribal concerns about jurisdic­ eral, tribal, and State authori­ tional confusion, inadequate ties do not compile data or untimely response, and needed for such research.15 insensitive or discriminatory For example, most tribes in treatment were evident. PL 280 jurisdictions do not Mentioned frequently were report crime data to the problems with drugs and vio­ Bureau of Indian Affairs’ lent crimes. The researchers Crime Analysis Division. concluded that limited and uncertain State jurisdiction For many years, no tribal law under PL 280, coupled with enforcement agency under the absence of tribal justice PL 280 jurisdiction responded systems and law enforce­ to FBI requests for crime sta­ ment,14 created situations tistics. That began to change where no legal remedies in the mid­1990s as tribes existed. Consequently, tribal enhanced their law enforce­ members sometimes ment and justice systems engaged in self­help that with resources from the U.S. erupted, or threatened to Department of Justice’s erupt, into violence. Office of Community Orient­ ed Policing Services. Still, The California study is not a reporting crime data to the definitive qualitative assess­ FBI and accessing crime ment of PL 280 because of information systems remains its limited breadth of cover­ a challenge for tribal law age. Factors affecting tribes enforcement agencies. in California may have ren­ dered their PL 280 experi­ The authors have tried with ence atypical and thus not limited success to construct representative of the law’s usable crime data for Califor­ overall impact on PL 280 nia Indian country. County­ States. level data represent the best

9 RESEARCH IN BRIEF / DEC. 05

source, but several county not affected by PL 280 and sheriffs’ offices claim that with crime rate data for other crimes committed in Indian comparable parts of the PL country often are not 280 States. reported. For particular reservations, comparisons should be Research priorities drawn between crime data before and after a State’s The lack of data on PL 280 assumption of PL 280 juris­ presents a serious impedi­ diction and before and after ment to understanding the a State or tribe retroceded unique set of problems asso­ jurisdiction under the statute. ciated with State jurisdiction If data sources are unavail­ in Indian country. As noted able, documenting the cur­ earlier, there are several rent situation would lay the areas of concern. groundwork for future longi­ tudinal studies. Measuring crime rates. Seri­ ous policy analysis must Because crime may be begin by obtaining the best underreported in a PL 280 available data on reported­ State, research on crime vic­ crime rates in Indian country timization is needed. If rele­ affected by PL 280. To evalu­ vant victimization data are ate the impact of State crimi­ not available, separate sur­ nal justice jurisdiction veys should be undertaken. compared with the Federal and tribal jurisdiction applica­ Measuring State law ble without PL 280, a desir­ enforcement response able approach would be to under PL 280. For the same document the experience in States and time periods States (mandatory and noted in the preceding rec­ optional) affected by the ommendation, researchers statute, States that assumed should determine the time partial versus complete PL required for police to respond 280 jurisdiction, and States to crime reports. If State and with and without tribal justice local law enforcement do not systems. These data should already document response be compared with the best time, the Federal Govern­ crime rate data available from ment should support and similar reservations in States fund research to provide the

10 PL 280 AND LAW ENFORCEMENT

data. To make appropriate in PL 280 jurisdictions within comparisons, documentation California was one­quarter to of Federal and tribal response one­half the funding level for times in areas of their juris­ all other Indians served by diction is necessary. the agency.16

Another useful comparison Assessing the quality of would be the frequency of law enforcement under PL complaints filed against 280. Ideally, the UCLA survey police by reservation resi­ should be replicated and its dents in PL 280 States ver­ content amplified for a sam­ sus those by residents in ple of additional tribes in Cali­ other parts of those States or fornia, a sample of tribes in by residents of non­PL 280 other PL 280 States, and a reservations. comparison sample of similar tribes in non­PL 280 States Documenting and evaluat­ and retroceded tribes. Such a ing Federal support. The comparative assessment Department of Justice across States—administered provides direct block grant in an interview format to and formula funds to States. allow for more open­ended Tribes are eligible to access responses—would identify those resources for law existing strategies and enforcement services. A arrangements that may offer review of these awards to more effective law enforce­ tribes in PL 280 jurisdictions ment solutions within the as subgrantees should framework of PL 280. assess the degree to which they access those funds and Among the many topics that whether funding under some this survey could address are law enforcement programs is governmental provision of systematically denied. For law enforcement services, example, researchers at the the responsiveness of such University of California–Los services, the quality of inves­ Angeles (UCLA) conducting a tigations, the nature and survey of California tribes for extent of tribal members’ the Advisory Council on Cali­ understanding of PL 280, fornia Indian Policy estimated identification of jurisdictional that Bureau of Indian Affairs vacuums, and views on per capita funding for Indians retrocession.

11 RESEARCH IN BRIEF / DEC. 05

The qualitative assessment Even without retrocession, should also interview State some tribes have exercised and local law enforcement criminal jurisdiction within officials involved in carrying the framework of PL 280 and out PL 280’s mandate in limits imposed by the Indian order to determine patrol Civil Rights Act. Unlike retro­ practices and response cession, this strategy does times, communication and not require consent or initia­ interaction with tribal com­ tive from the State, although munities about law enforce­ it may require cooperation ment priorities and practices, from Federal funding funding associated with PL sources. If research deter­ 280 jurisdiction, and how mines that concurrent juris­ confusion about PL 280 may diction achieves many of the affect law enforcement same objectives as retroces­ practices. sion, tribes in PL 280 States may already possess the These surveys would provide means to rectify local prob­ essential preliminary data lems associated with PL 280. and identify problems requir­ But, apart from legal issues, ing more intensive study. questions arise about the effectiveness of this Evaluating the impact of approach as an alternative to retrocession and concur­ retrocession. For example, rent jurisdiction. Many concurrent jurisdiction may tribes dissatisfied with State engender conflict or competi­ jurisdiction under PL 280 tion between State and tribal have responded with retro­ institutions. Research is cession campaigns and needed to determine best development of tribal institu­ practices and methods of tions that can exercise con­ allocating law enforcement 17 current jurisdiction. and prosecutorial responsibili­ Evaluations could identify ty and to identify effective the reasons for retrocession models for cooperative campaigns; the perceived agreements to facilitate con­ benefits and disadvantages current jurisdiction. of retrocession; changes in crime rates since retroces­ Cooperative agreements. sion; and policies and prac­ Jurisdictional conflicts tices at the State, tribal, and between States and tribes Federal levels that contribute have engendered bitterness to successful retrocession. and costly litigation.

12 PL 280 AND LAW ENFORCEMENT

Tribal–State agreements may within reservations affected ease such conflicts while by PL 280. Researchers also supplying needed services to may want to review the tribal communities within a responsibilities of the U.S. framework of mutual con­ Departments of Justice and sent. Research is needed to Interior as well as other Fed­ identify and analyze existing eral agencies that might agreements in PL 280 States, assist tribes in developing assess their value for law their own justice systems. enforcement from tribal and Sate perspectives, and sug­ Also recommended for gest possible modifications review are possible congres­ and improvements. Such sional responses, such as agreements can allocate legislation clarifying the grant prosecutorial responsibility in of State jurisdiction, affirming a concurrent jurisdiction situ­ concurrent tribal jurisdiction, ation or provide for cross­ encouraging voluntary inter­ deputization. jurisdictional arrangements between tribes and States An evaluation of Federal– under PL 280, or authorizing State agreements should tribally initiated retrocession. also be included in any com­ prehensive assessment of potential benefits from coop­ Notes erative agreements. 1. Act of August 15, 1953, ch. 505, 67 Stat. 588 (codified as 18 U.S.C. 1162, 28 U.S.C. 1360, and other scat­ Summing up tered sections in 18 and 28 U.S.C.). Other Federal statutes, enacted The research suggested here before and after PL 280, provided for not only could initiate more State criminal jurisdiction over some systematic and ongoing data tribes in some States. Those statutes are not within the scope of this collection for crime rates in Research in Brief. In addition to Indian country subject to PL granting the affected States criminal 280 jurisdiction, but also gen­ jurisdiction over Indian country, PL erate better understanding of 280 opened their courts to civil litiga­ the efficacy of State criminal tion previously possible only in tribal or Federal courts. jurisdiction in Indian country. Findings could, in turn, lead 2. Act of April 11, 1968, Public Law to further study to explore 90–284, § 403, 82 Stat. 79 (codified possible Federal policies to at 25 U.S.C. 1323). improve law enforcement

13 RESEARCH IN BRIEF / DEC. 05

3. Population Division, U.S. Census System, 1991; Green, Donald E., Bureau, Table 4: “Annual Estimates “The Contextual Nature of American of the Population by Race Alone and Indian Criminality,” American Indian Hispanic or Latino Origin for the Culture and Research Journal United States: July 1, 2003” 17(2)(1993); and Native Americans, (SC–EST2003–04). Retrieved Crime, and Justice, Marianne October 26, 2004, from the World Nielson and Robert Silverman, eds., Wide Web: www.census.gov/ Boulder, CO: Westview Press, 1996. popest/states/asrh/tables/SC­ EST2003­04.pdf. 10. Lujan, Carol C., James Riding In, and Rebecca Tsosie, ”Justice in 4. As a result of the U.S. Supreme Indian Country: A Process Evaluation Court decision in Alaska v. Native of the U.S. Department of Justice Village of Venetie Tribal Government Indian Country Justice Initiative— 522 U.S. 520 (1998), little Indian Final Evaluation Report,” Final report country remains in Alaska. Conse­ for the National Institute of Justice, quently, little territory is left in Alaska grant number 96–IJ–CX–0097, 1998, where the State requires Federal NCJ 181048: 23. authorization to exercise Indian coun­ try jurisdiction. 11. Wakeling, Stewart, Miriam Jorgensen, Susan Michaelson, and 5. California v. Cabazon Band of Manley Begay, Policing on American Mission Indians, 480 U.S. 202, 209 Indian Reservations, NIJ Research (1987). Report, Washington, DC: U.S. Department of Justice, National 6. For example, in Santa Rosa Band Institute of Justice, 2001, NCJ of Indians v. Kings County, 532 F.2d 188095: 1, 3. Law enforcement 655 (9th Cir. 1975), the Ninth Circuit under PL 280 was not addressed by held that the county could not apply this study. zoning and building codes to tribal land. 12. Johnson, Ralph W., Justice and the American Indian, vol. 1, The 7. Office of Tribal Justice, U.S. Impact of Public Law 280 Upon the Department of Justice, “Concurrent Administration of Justice on Indian Tribal Authority Under Public Law Reservations, Rapid City, SD: 83–280,” position paper, November National American Indian Court 9, 2000, available at www.tribal­ Judges Association, 1974; Goldberg­ institute.org/lists/concurrent_tribal. Ambrose, Carole, and Duane htm. Champagne, “A Second Century of Dishonor: Federal Inequities and 8. Sycuan Band of Mission Indians v. California Tribes,” unpublished report Roache, 38 F.3d 402, 407 (9th Cir. for the American Advisory Council 1994), amended 54 F.3d 535 (1995). on California Indian Policy, March 27, 1996 (on file with the UCLA 9. See “American Indian Criminality: American Indian Studies Library). What Do We Really Know?” in This study is discussed in Goldberg­ American Indians: Social Justice and Ambrose, Carole, “Public Law and Public Policy, Donald E. Green and the Problem of Lawlessness in Thomas V. Tonneson, eds., Madison, California Indian Country,” UCLA Law WI: The University of Wisconsin Review 44(1997): 1405, 1437–41;

14 PL 280 AND LAW ENFORCEMENT

and in Goldberg­Ambrose, Carole, 15. Federal Government studies also and Timothy Carr Seward (translator), have emphasized difficulties in col­ Planting Tail Feathers: Tribal Survival lecting crime data for reservations and Public Law 280 (Contemporary outside PL 280 States. See U.S. American Indian Issues No. 6), Los Department of Justice, Office of the Angeles, CA: UCLA American Indian Inspector General, Criminal Justice Studies Center, 1997. Other studies in Indian Country, Audit Report and assessments have focused on 96–16, Washington, DC: U.S. tribal policing but do not address Department of Justice, 1996; also issues associated with State jurisdic­ see Wakeling et al., Policing on tion under PL 280 and include a very American Indian Reservations: limited number of PL 280 tribes. 13–15.

13. The study’s staff interviewed 16. See Goldberg­Ambrose and approximately 250 members of 20 Champagne, “A Second Century of Washington tribes and Federal, Dishonor.” Collecting comparable State, and local judicial and law data for other PL 280 States is diffi­ enforcement personnel in the State. cult because Bureau of Indian Affairs funding is typically distributed by 14. Jimenez, Vanessa J., and Soo C. area office, which may cover several Song, “Concurrent Tribal and State States and may not separate data by Jurisdiction Under Public Law 280,” tribe, even in PL 280 States. American University Law Review 47(1998): 1627. From pages 1660–61: 17. See, for example, Bozarth, “With the enactment of Public Law Bonnie, “Public Law 280 and the 280, legislators withdrew a signifi­ Flathead Experience,” Journal of cant aspect of the Federal Govern­ the West, 39(3)(2000): 46. ment’s responsibility for law enforcement in Indian country and took their financial support with them.”

15 The National Institute of Justice is the research, development, and evaluation agency of the U.S. Department of Justice. NIJ’s mission is to advance scientific research, development, and evaluation to enhance the administration of justice and public safety.

NIJ is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime.