What is Public Law 280?
Public Law 83-280 (commonly referred to as “Public Law 280” or “PL-280”), was originally enacted in 1953 and did two things to alter the usual allocation of criminal jurisdiction in Indian country. First, on the reservations to which it applied, it took away the federal government’s authority to prosecute Indian country crimes based on 18 USC 1152 (the Indian Country General Crimes Act) and 18 USC 1153 (the Major Crimes Act). Second, it authorized the states of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin to prosecute most crimes that occurred in Indian country. Exceptions were set forth for a few topic areas and on a few reservations, but the main result of Public Law 280 is that for most reservations in the six named states, federal criminal jurisdiction became extremely limited while state jurisdiction was greatly expanded.
What is "mandatory PL-280" and "optional PL-280"?
The term “mandatory PL-280” refers to the six states which Congress mandatorily conferred Indian country criminal jurisdiction to: Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin. Between 1953 and 1968, a number of states other than the original six, also exercised expanded criminal jurisdiction in Indian country. These jurisdictions are often referred to as “optional PL-280” jurisdictions; primarily, these include certain reservations in Florida, Idaho, and Washington.
What changes did Public Law 280 make with regard to tribal criminal jurisdiction?
None, Public Law 280 only altered the allocation of federal and state criminal jurisdiction. It did not reduce nor expand tribal criminal jurisdiction.
What is the Tribal Law & Order Act?
The Tribal Law & Order Act (TLOA) is a comprehensive federal law that attempts to improve public safety in Indian country throughout the United States. Technically speaking, the TLOA consists of Title II of Public Law 111-211. It was signed into law on July 29, 2010. The TLOA deals with crime prevention, policing, information sharing, prosecution, courts, corrections, and other Indian country criminal justice issues.
How does the Tribal Law & Order Act affect criminal jurisdiction in Indian Country subject to "mandatory" Public Law 280 jurisdiction?
Section 221 of the Act authorizes tribal governments to request that the US Department of Justice re-assume federal criminal jurisdiction over that tribe’s Indian country. If the DOJ grants the request, the federal government may once again prosecute Indian Country General Crimes Act and Major Crimes Act cases from that reservation, located in a mandatory PL-280 jurisdiction.
How does federal assumption of criminal jurisdiction on PL-280 reservations affect state jurisdiction and tribal jurisdiction?
Assumption of federal criminal jurisdiction does not change state or tribal jurisdiction. The state retains the same criminal jurisdiction delegated to it by PL-280; tribal criminal jurisdiction is not altered. The result is “concurrent jurisdiction” meaning that in some circumstances the federal, tribal, and state governments may have overlapping authority to enforce criminal laws in Indian country. If the federal government assumes jurisdiction, it will be critical that federal, tribal, and state law enforcement authorities work cooperatively in order to ensure that the public safety needs of the tribes are met in an efficient and effective way.
How does the Tribal Law & Order Act affect criminal jurisdiction in Indian Country subject to "optional" Public Law 280 jurisdiction?
Section 221 of the Tribal Law and Order Act does not affect “optional” Public Law 280 jurisdictions. Indian country subject to “optional” Public Law 280 already has concurrent state and federal criminal jurisdiction; applying for the federal government to assume criminal jurisdiction would not change anything.
What if a tribe and the state want to end a state's PL-280 jurisdiction?
In cases where the tribal and state governments agree that the PL-280 basis for state criminal jurisdiction should be eliminated, then a different process known as “retrocession” should be utilized. The Secretary of the Interior, after consulting with the US Attorney General, decides whether or not to grant retrocession requests. This process was successfully utilized by a number of tribes and states during the 1970’s and 1980’s, but is rarely used today.
Who initiates a request for assumption of federal criminal jurisdiction?
The tribal government makes the request directly to the US Department of Justice, Office of Tribal Justice. The request must be signed by the chief executive of the tribe. Unlike the “retrocession” process described above, the state need not concur in the request.
Who decides whether to grant a request for assumption of federal criminal jurisdiction?
The Attorney General of the United States has delegated the authority to make decisions on requests for assumption of federal criminal jurisdiction to the Deputy Attorney General (DAG). The DAG makes his or her decision after receiving recommendations from the Office of Tribal Justice, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. The recommendations are made after consultation with the tribe has taken place and federal, state, and local entities have had an opportunity to comment on the request.
What are the factors to be used in making a determination on a request for assumption of federal criminal jurisdiction?
The Department will assess whether assumption of federal criminal jurisdiction will make the tribal community safer. In making this determination, the Department will consider, among other things, whether or not granting the request will increase the law enforcement, judicial, and/or corrections resources available to the tribe. Comments and information received from the Federal Bureau of Investigation, the United States Attorney’s Office, Department of Homeland Security, Bureau of Indian Affairs, state/local law enforcement agencies, information received during tribal consultation, and other information may be considered.
How long will it take to get a decision?
Approximately five months. Each year, requests received by February 28 will be prioritized for decision by July 31 and requests received by August 31 will be prioritized for decision by January 31 of the following year. In some cases, a well-considered decision might take longer than anticipated.
What happens after the decision is made?
The tribe will be notified of the final decision by a written notice which will explain the basis for the decision. If the decision is to deny the request, the tribe has the option of submitting a new request at a later date. If the decision is to grant the request, then in addition to the written notice to the tribe, a notice will be published in the Federal Register to announce the assumption of concurrent federal criminal jurisdiction to the public.