UNDERSTANDING JURISDICTION ON TRIBAL LANDS by Twin Graphics

UNDERSTANDING JURISDICTION ON TRIBAL LANDS

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ll CHAPTER ONE

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KEY POINT

Gives the reader the

Learning points

meaning of words in plain , simple terms.

that are key to understanding PL 280.

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DIG DEEPER

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NERDY STUFF

Suggestions on where

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to go for greater depth on a subject.

to see what was actually said.

guys and gals who love to know more details .

A USER-FRIENDLY PL 280 RESOURCE GUIDE

A User-Friendly PL 280 Resource Guide Team:

CopyrightÂŠ 2012 by Nexus Community Solutions FOURTH EDITION: December 2014

TECHNICAL & PRODUCTION EDITOR Wendy Olson TECHNICAL INPUT Alex Tortes Cindy Pierce PRODUCTION MANAGER, COVER DESIGN & ALL CREATIVE CONCEPTS Cindy Pierce

All rights reserved. No part of this book may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the publisher or except as used under the principles of fair use. Much of this publication contains compiled information from a variety of sources. Each source has been clearly cited and we encourage the purchase (where applicable) of these books, articles, etc. for the purpose of further study. Every effort has been made to ensure the information in this resource guide is complete and accurate. Discovery of any errors or omissions will be updated/changed in future editions of this guide. Any trademarks, seNice marks, or product names are assumed to be the property of their respective owners and are used only for reference.

ISBN-13: 978-0615683645 ISBN-10: 0615683649 Printed and bound in the United States of America.

Vser-friendly

Resource Guide

EE Alex Tortes & Cindy Pierce

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UNDERSTANDING

JURISDICTION ON

TRIBAL

LANDS

RESOURCE GUIDE WRITTEN FOR: TRIBAL COMMUNITIES Tribal Councils Court Personnel

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Chapter One

Getting Started

First Things The first thing to do to understand Public Law 280 (PL 280) is to actually read it - completely through in its entirety. If you haven't done this yet, we encourage you to stop right now and jump to the Appendix section of this book (Appendix A, pgs. 346-349) where you will find the complete text of PL 280. It doesn't take very long to read - and you'll be glad that you

did. (Pause) What did you think? Not too long, eh? The text is rather simple and straightforward ... PL 280 doesn't even use cumbersome vocabulary or fancy words. So, what's the big deal about PL 280 anyways?

What's the Sig Deal? The very fact that you are reading this book shows that you know there is much more to understand about PL 280 beyond simply reading the text. Truth be told, Public Law 280 is very difficult to understand without knowing the context of when and why it was written. In other words, to understand PL 280, one needs to know its

"legislative history" -the historical background of a law

Chapter One

''l!_gislative history. " â&#x20AC;˘

Getting Started

When a law is created, the events leading up to it are kept as historical records. These records can be things such as: various committee reports and hearings, analysis from data that was compiled, and debates and comments made during the process. All of this comprises what is called the "legislative history" of a law. This is important stuff because it helps us understand the contemporary concerns and issues surrounding the law, and why it was enacted. In fact, sometimes it gets quite interesting to read the debates of the legislators as they hash things out before a law is approved or amended. "amended" -to add to or change in some way

Courts look into the legislative history of a law when they interpret the law during a court case. They will look at why a law was passed (intent of the law) in order to know how it should be applied.

The idea is It begi11s with a11 idea ...

debated a11d a11alyzed. These thi11gs

are recorded.

If the idea receives Co11gressio11al sÂŤpport, it becomes law.

Clear As Mud PL 280 has been used and abused for years. It has frustrated and confused many a law enforcement officer and baffled even the most seasoned of judges. If there is one area oflaw that has been all over the place, it would be in the area of Indian law. If you have ever used the expression, "It's as clear as mud," when commenting about Indian legislation, you are actually in good company! One US Supreme Court Justice, when reaching a decision about a case involving Indians, put it this way:

"Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases." US Supreme Court Justice, Clarence Thomas 2004 United States v. Lara

Chapter One

â&#x20AC;˘

Getting Started

This Dr. Jekyll and Mr. Hyde way of doing business in Indian country has created a messy situation when it comes to understanding laws relating to Native Americans. And so, we are compelled to look at the legislative history of PL 280. In order to properly display the main feature of this book, PL 280, a sequential historical unfolding of events will be helpful. If you were one who just cringed when you read the word "historical,'' have no fear! This account of events will not get bogged down with an overload of historical information. However, the history buffs out there will be given ample direction where they can dig deeper on their own (follow the Dig Deeper symbol

1: ).

Historical background (legislative history) is necessary for understanding PL 280.

Chapter One

â&#x20AC;˘

Getting Started

SovereigntM Blooper Right away it must be pointed out that we won't get too far digging into the background of Public Law 280 without knowing about "tribal sovereignty." A lack of understanding in this area would be like learning to fly without having any concept about gravity. Tribal sovereignty is a foundational key component in PL 280. Here are things you will need to know: ~What

does tribal sovereignty mean?

~Where

did tribal sovereignty come from?

~~o~still e x i s t ? 5 3

~ If s0, 1>ÂĽhat~it mean to'te?

"Tribal sovereignty means that, its sovereign. I mean, you 're a - you 've been given sovereignty, and you 're viewed as a sovereign entity. And therefore the relationship between the federal government and tribes is one between sovereign entities. " Former President Bush s response when asked to define "tribal sovereignty " by Mark Trahant, Seattle Post Intelligencer __a_t _Unity: Journalists of Color 2004 Convention in Washington, D.C.

T Unfortunately, the former president found out too late that he was not prepared to articulate the definition of "tribal sovereignty." How many of us would be prepared to give an accurate definition on the spot, if asked? In spite of the humor of that presidential blooper, there was something said that was completely on target: "[T} he relationship between the federal government and tribes is one between sovereign entities. " Chapter One

â&#x20AC;˘

Getting Started

PL 280 will not be understood apart from a knowledge of tribal sovereignty.

Since it is crucial to understand tribal sovereignty as we delve into PL 280, let's take a closer look to see what it is all about ...

Chapter One

â&#x20AC;˘

Getting Started

Complete text of:

Public Law 83-280 (18 USC§ 1162, 28 USC§ 1360, 25 USC§ 1321, § 1322, § 1323, § 1324, § 1325, § 1326)

Next 4 pages ...

Public Law 83-280 (18 USC§ 1162, 28 USC§ 1360, 25 USC§ 1321, § 1322, § 1323, § 1324, § 1325, § 1326)

18U.S.C.§1162. STATE JURISDICTION OVER OFFENSES COMMITTED BY OR AGAINST INDIANS IN THE INDIAN COUNTRY (a) Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory: State or Territory of Indian country affected Alaska . . . . . . . . . . . . . . . . All Indian country within the State, except that on Annette Islands, the Metlakatla Indian community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended. California . . . . . . . . . . . . . . All Indian country within the State Minnesota ............. All Indian country within the State, except the Red Lake Reservation Nebraska .............. All Indian country within the State Oregon ................ All Indian country within the State, except the Warm Springs Reservation Wisconsin . . . . . . . . . . . . . All Indian country within the State (b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. (c) The provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section as areas over which the several States have exclusive jurisdiction. (d) Notwithstanding subsection (c), at the request of an Indian tribe, and after consultation with and consent by the Attorney General(1) sections 1152 and 1153 shall apply in the areas of the Indian country of the Indian tribe; and (2) jurisdiction over those areas shall be concurrent among the Federal Government, State governments, and, where applicable, tribal governments.

28 U.S.C. ยง 1360. STATE CIVIL JURISDICTION IN ACTIONS TO WHICH INDIANS ARE PARTIES (a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State:

State of Alaska . . . . . . . . . . . . . . . . California . . . . . . . . . . . . . . Minnesota ............. Nebraska .............. Oregon ................ Wisconsin . . . . . . . . . . . . .

Indian country affected All Indian country within the All Indian country within the All Indian country within the All Indian country within the All Indian country within the All Indian country within the

State State State, except the Red Lake Reservation State State, except the Warm Springs Reservation State

(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. (c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.

25 U.S.C. ยง 1321. ASSUMPTION BY STATE OF CRIMINAL JURISDICTION (a) Consent of United States (1) In general The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State. (2) Concurent jurisdiction At the request of an Indian tribe, and after consultation with and consent by the Attorney General, the United States shall accept concurrent jurisdiction to prosecute violations of sections 1152 and 1153 of title 18 within the Indian country of the Indian tribe. (b) Alienation, encumbrance, taxation, and use of property; hunting, trapping, or fishing Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.

25 U.S.C. ยง 1322. ASSUMPTION BY STATE OF CIVIL JURISDICTION (a) Consent of United States; force and effect of civil Jaws The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State. (b) Alienation, encumbrance, taxation, use, and probate of property Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute, or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. (c) Force and effect of tribal ordinances or customs Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.

25 U.S.C. ยง 1323. RETROCESSION OF JURISDICTION BY STATE (a) Acceptance by United States The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of title 18, section 1360 of title 28, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section. (b) Repeal of statutory provisions Section 7 of the Act of August 15, 1953 (67 Stat. 588), is hereby repealed, but such repeal shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal.

25 U.S.C. ยง 1324. AMENDMENT OF STATE CONSTITUTIONS OR STATUTES TO REMOVE LEGAL IMPEDIMENT; EFFECTIVE DATE Notwithstanding the provisions of any enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil or criminal jurisdiction in accordance with the provisions of this subchapter. The provisions of this subchapter shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes, as the case may be.

25 U.S.C. ยง 1325. ABATEMENT OF ACTIONS (a) Pending actions or proceedings; effect of cession No action or proceeding pending before any court or agency of the United States immediately prior to any cession of jurisdiction by the United States pursuant to this subchapter shall abate by reason of that cession. For the purposes of any such action or proceeding, such cession shall take effect on the day following the date of final determination of such action or proceeding. (b) Criminal actions; effect of cession No cession made by the United States under this subchapter shall deprive any court of the United States of jurisdiction to hear, determine, render judgment, or impose sentence in any criminal action instituted against any person for any offense committed before the effective date of such cession, if the offense charged in such action was cognizable under any law of the United States at the time of the commission of such offense. For the purposes of any such criminal action, such cession shall take effect on the day following the date of final determination of such action.

25 U.S.C. ยง 1326. SPECIAL ELECTION State jurisdiction acquired pursuant to this subchapter with respect to criminal offenses or civil causes of action, or with respect to both, shall be applicable in Indian country only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the Interior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults.

UNDERSTANDING JURISDICTION ON TRIBAL LANDS

Get Un-complicated!

The goal of this guide is to take the "mystery" out of jurisdiction on tribal lands and help the reader unravel the tangled jurisdictional maze that is seen in Indian Country today. Public Law 83-280 (PL 280) impacts over half of all federally recognized Tribes. PL 280 became a law quite a long time ago, yet has managed to remain elusive for over half a century. We say, ''No more hiding in the shadows or being camouflaged in highbrowed legalese!" Let's grab Public Law 280 by the collar and confront it face-to-face. Allow us to present you with A User-FriendlyPL280ResourceGuide ...

Enjoy Learning. A User-friendly PL 280 Resource Guide offers a unique perspective on Public Law 280. The book's distinctive style and easy-to-read format, along with its fun illustrations, makes for enjoyable learning!

BOOK

FEATURES:

~err ~ SAY IT SIMPLY!

KEY POINT

DIG DEEPER

QUOTES

NERDY STUFF

Gives the reader the meaning of words in plain, simple terms.

Learning points that are key to understanding PL 280.

Suggestions on where to go for greater depth on a subject.

Going to the source to see what was actually said.

Sections dedicated to the guys and gals who love to know more details.

ISBN 97806 15683645

90000 >

AVAILABLE ON: