day one part a pdf

Public Law 280 Training

A User-friendly PL 280 Resource Guide


Alex Tortes &

Cindy Pierce

Presented by:

1

The number in the triangle on the top right corner of the page indicates the page in the Resource Guide.


▪ Introductions

▪ What do you know about Public Law 280?

▪ What do you hope to gain through this training?

2-Day Training Goals

1.Participants identify the key points of jurisdiction on tribal lands.

2.Participants have a working knowledge of foundational concepts/laws regarding jurisdiction on tribal lands

3. Participants obtain tools for practically working on tribal lands

“Housekeeping”

1.Please turn off or mute your cell phones

2.Feel free to ask questions, make comments and share your experiences

3. Other … ?

This class is for you !

Class Quiz

OUR GOAL IS TO COMPARE KNOWLEDGE BETWEEN THE BEGINNING TO THE END OF THE TRAINING.

1.Fill out the quiz

2.Don’t put your name on the quiz

3. Pass them in

4. Instructors will shuffle them and hand them back to score

The Term “Indian” 4

We have used the term “Indian” to refer collectively to all indigenous people in North America.

The use of the term Indian is consistent with the majority of federal and state laws.

* We do acknowledge the fact that the label “Indian” was designated because of the mistaken belief by the European explorers that they were encountering people from the Indies.

George Bush / Sovereignty - video clip

Define Tribal Sovereignty

What is Tribal Sovereignty? 9

Trying to understand Public Law 280 without an understanding of “tribal sovereignty” . . .

. . . Would be like learning to fly . . .

without any concept of gravity!

Things You Will Need to Know : 9

▪ What does tribal sovereignty mean?

▪ Where did tribal sovereignty come from?

▪ Does tribal sovereignty still exist?

▪ If so, what does it mean to me?

Tribal Sovereignty 17

their own, and governing themselves by their own laws.”

“America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of

Worcester v. Georgia, 31 US 515, 543 (1832)


▪ Independent, free from any other sovereign

▪ Self-governing; Governing themselves by their own laws


“immemorial” – long past; beyond the limits of memory, tradition or recorded history

“inherent” – natural, true, real, an intrinsic part of

▪ Has existed since time immemorial.

▪ Is inherent, not given.

Early Tribal Governments -‐

What did early tribal governments look like?

Are there examples from history?

Example of the Iroquois Confederacy -‐

Example of the Iroquois Confederacy -‐

This was acknowledged by Congress on Oct. 4, 1988 in House Concurrent Resolution 331

“The original framers of the

Constitution . . . Most notably,

George Washington and

Benjamin Franklin, are known to

have greatly admired the

concepts of the Six Nations of

the Iroquois Confederacy .”

Recognizing Tribal Sovereignty 19

A tribe’s sovereignty was never given to them by the federal government. No law created the Indians’ power to govern themselves.

Indian tribes pre-date the United States. Treaties, agreements and statutes simply recognized the fact that Indian tribes already had such power.

Formal v. Informal 153

• For thousands of years tribal communities used custom and tradition to govern their people.

• The Europeans viewed tribal custom and tradition as informal judicial processes.


The differences between the tribal and non-tribal European judicial processes were between what was viewed as formal versus informal.

and not by formal judicial processes; emphasis on restitution rather than on punishment.”

“Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure

Oliphant v. Suquamish Indian Tribe, 435 US 191, 197 (1978)


• Informal does NOT mean inferior.

• How well did the laws and justice system work?

• The quote on page 154 indicates the informal justice system was more effective than the formal justice system.


Is tribal sovereignty individual?

Can an individual American Indian say,

“I am a sovereign Indian”?

A tribe’s sovereignty – their inherent right of self-government – is not based on individual ethnicity.

One can’t say, “I am a sovereign Indian.”

But, what can be said is, “WE are a sovereign Indian tribe / nation.”

Two “I”s in INDIAN 36

Tribal sovereignty in relation to the United States government, is based on actual historic,

government-to-government dealings.

A tribe’s sovereignty – their inherent right of self-government – is not based on individual ethnicity.

Two “I”s in INDIAN 36

A Special Relationship 39

“Down through the years through written treaties and through formal and informal agreements, our government has made specific commitments to the Indian people. For their part, the Indians have often surrendered claims to vast tracts of land … In exchange, the government has agreed to provide community services such as health, education and public safety.”

“The special relationship between Indians and the federal government is a result ...of solemn obligations which have been entered into by the United States government.

President Nixon, Special Message on Indian Affairs, July 8, 1970

Code for “Indian” 38

▪ Federal laws are compiled into the United States Code (USC).

▪ The USC is arranged by subject matter called “titles”.

▪ There are more than 50 subject matters (or titles) in the USC.

▪ One of these titles – Title 25 – is entitled “INDIANS”.

▪ This reveals the unique political status between the federal government and Indians.

Sovereignty & Jurisdiction 46

• Indian tribes possess the inherent authority to establish their own form of government, including tribal justice systems.

• Tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health and safety and the political integrity of tribal governments.

Congressional findings:

25 USC, section 3601 – The Indian Tribal Justice Act

• Congress, through statutes, treaties, and the exercise of administrative authorities, has recognized the self-determination, self-reliance, and inherent sovereignty of Indian tribes.

Sovereignty & Jurisdiction 47

Tribal sovereignty gives a tribe authority to manage their territories and their people.

This includes the ability to make and enforce laws within their jurisdiction.

“Before the coming of the Europeans, the tribes were self-governing sovereign political communities. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.”

US v. Wheeler, 435 US 313, 323 (1978)

Major Crimes Act (1885) 150

Prior to the Major Crimes Act, the tribes had exclusive jurisdiction to try and punish their tribal members.

The Major Crimes Act was enacted by Congress as a result of the Crow Dog Decision. The original Major Crimes listed were:

The Major Crimes Act of 1885 introduced, for the very first time, federal jurisdiction over Indian v. Indian crimes.

✓ Murder ✓ Manslaughter ✓ Rape ✓ Assault w/intent to kill

✓ Arson ✓ Burglary ✓ Larceny

broad authority to legislate with respect to Indian tribes . . . and has exercised this authority to establish a complex jurisdictional scheme for the prosecution of crimes committed in Indian country.”

Jurisdictional Complexity

Things get quite interesting – and complex – as we begin to examine jurisdiction in Indian country, specifically, criminal jurisdiction.

48

“For more than two centuries, the Federal Government has recognized Indian tribes as domestic sovereigns that have unique government-to-government relationships with the United States. Congress has

Office of the Attorney General, Department of Justice, Assumption of Concurrent Federal Criminal Jurisdiction in Certain Areas of Indian Country, Federal Register / Vol. 76, No. 234, Dec. 6, 2011

54Jurisdictional Complexity

One United States court c a l l e d t h e s t a t u t o r y framework that governs the application of federal criminal laws in Indian country “tangled.”

54Jurisdictional Complexity

Our goal:

Untangle the jurisdictional maze that is seen in Indian country today.

-

Take the “mystery” out of Public Law 280.

-

Jurisdictional Complexity 54

Criminal jurisdiction in Indian country, under the authority of PL 280, will be understood by looking at the evolution of criminal jurisdiction in Indian country.

TIMELINE

Let’s untangle it.

53Evolution of Criminal Jurisdictionin Indian Country – Part 1

53Evolution of Criminal Jurisdictionin Indian Country

55Beginning Point

55Beginning Point

and governing themselves by their own laws … The Indian nations had always been considered as distinct, independent political communities … from time immemorial ...”

“America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own,

Worcester v. State of Georgia, 31 US 515, 543, 559 (1832)

Beginning Point 55

Today tribal, federal and state jurisdictions exist in Indian country . . .

What happened in history to introduce federal and state jurisdictions on tribal lands?

Something New 57

The European explorers brought something brand new – something that would, in time, greatly affect jurisdiction for Indian tribes.

This new thing was the

“Doctrine of Discovery”

which introduced “exclusive

jurisdiction.”

Doctrine of Discovery 57

The rule:

Whichever European nation got to the land first and claimed it – won the “right of title”

The Doctrine of Discovery was like a big game of Monopoly – where the players played for keeps! TM

“Right of Title” 58

The Right of Title meant no other European nation could intrude on claimed land …

For settlement, or

To purchase land from the natives

-

-

According to the Doctrine of Discovery, the indigenous people held the right of occupancy – but the European power held the title to the land.


Bloody conflicts after bloody conflicts continued as the imperial wars played out on the American continent.

Native Americans were caught up in the mess, fighting for their own territories and with their alliances.

“The English, the French, and the Spaniards, were equally competitors for their (Indian’s) friendship and their aid.”

Worcester v. State of Georgia, 31 US 515, 544 (1832)


When the American colonists won their independence from Great Britain they gained “right of title” to the land Great Britain had previously claimed.

Exclusive Jurisdiction

The United States, therefore, became the government who could now exclusively deal with the Indians within this newly acquired territory.

NOTE: The federal government still holds title to Indian lands.

Peace & Friendship 68

“The utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them …”

Northwest Ordinance, July 13, 1787 ~ Continental Congress

A Flood of Settlers 70

The US government may have outlined an orderly way of settling the frontier, but reality was quite a different story.

By 1790 Kentucky had a white population of about 74,000 settlers.

Around 300,000 people had passed through the Cumberland Gap by the year 1800. (Less than 20 years after the US became a nation.)

-

-

Indian tribes were pressured into land cession treaties, forcing Native Americans into small reservations.

Sable Colors 71

In 1794, Secretary of War, Henry Knox wrote to the President stating how he observed that non-Indians had generally “grown to hate” the Indians and many “were eager to pounce upon them and their lands.” He also told how, especially the younger Indians, sought revenge and often hurt innocent non-Indians.

Henry Knox believed the settlement of the frontier lands had been “more destructive to the Indian natives than the conduct of the conquerors of Mexico and Peru … a future historian may mark the causes of this destruction of the human race in sable colors.”

* Quotes of Henry Knox from the book “General Washington’s General” by North Callahan, p.337

Confirmed by the Court 73

This sad portrayal of life in some areas of the western frontier was also referred to by the US Supreme Court in the 1886 case, US v. Kagama.

This court case spoke of the “local ill feeling” of the non-Indians towards the Indians.

Therefore, it was explained how the federal government had the duty to protect the Indians due to the fact that “the people of the States” where the Indians live “are often their deadliest enemies.”

Indians – A Federal Affair 88

“Indian affairs” was officially made a federal affair and responsibility by an act of Congress. One of the first federal departments established by the US Congress was the War Department.

Congress outlined the position of the Secretary of War to head this federal department. One of the responsibilities categorized under this department was Indian affairs.

Trading Laws 92

Trading with Indians was very important to the early American economy. The very first federal law the United States made regarding federal criminal jurisdiction on tribal lands was a trading law.

Federal law required an official license to trade with Indians.

It also protected Indians from non-Indian abuse. This law provided that a non-Indian would be punished for a crime committed on tribal lands in the same way as if the crime had been committed off tribal lands.

A Federal First

The Evolution of Jurisdiction 92in Indian Country

-‐Evolution of Criminal Jurisdictionin Indian Country – Part 2

75The Pennsylvania Mutiny of 1783

Has anyone heard of it?

What does it have to do with tribal lands?


Congress was working on important matters at Independence Hall in Philadelphia, Pennsylvania.

They received a message: group of soldiers were demanding payment for their service in the American Revolutionary War.

Congress did not respond to the demands.

3 days later Independence Hall was taken over by hundreds of armed solders. They blocked the door and would not allow Congress to leave.

Members of Congress asked the state to protect them. Unfortunately, the state did not activate their state militia.

Congress was eventually able to leave safely to a new location.

-

-

-

-

-

-


After this hair-raising incident Congress decided they needed to create a special area – a seat of government – that was totally separate from state control.

That way, if anything threatened the federal government again, they would have the power to protect themselves.

Congress wrote into the US Constitution the power to create a federal enclave for the seat of government along with any other enclaves necessary for federal purposes. (Art. 1, sec. 8, cl. 17)

The seat of government was initially called the “City of Washington.” Later, when Congress incorporated the city into a larger area, it was referred to as the “District of Columbia” (D.C.) with the capital of this district named, “Washington.”

-

-

-

-

76Federal Enclaves

The power to create these special areas under the authority of the United States Constitution, also gave Congress the power to create and enforce laws necessary for these areas.

The federal enclaves were situated within the boundaries of a state – yet they were totally separate from state jurisdiction.

104Alike . . . But Different

Although Indian territory was not technically a federal enclave, Congress applied federal enclave law on tribal lands in 1817 because they saw the similarities between these unique areas:

Similar to the federal enclaves, Indian country was its own separate area free from state jurisdiction, even though situated within a state’s boundaries.

In similar fashion to Congress’ sole and exclusive right in dealing on the enclaves, the federal government claimed sole and exclusive right in dealing with the Indians on their lands.

-

-

104Alike . . . But DifferentCongress, however, recognized the significant and distinctive difference between the federal enclaves and Indian country.

Enclave law (General Crimes Act 18 USC 1152) was applied to tribal lands in a limited manner.

The General Crimes Act gives federal jurisdiction over inter-racial crime on tribal lands.

Indian v. Indian crime continued to be under the exclusive jurisdiction of the tribe.

-

-

-

TRIBAL SOVEREIGNTY

105Federal Enclave Law

107Fill-in-the-Gap Act

150The Major Crimes Act

Beginning Point -‐

Where is STATE jurisdiction?

Beginning Point -‐

197Public Law 83-280

The legislation designed to ease the financial burden on the shoulders of the federal government, introduced a heavy weight on the several state governments who were suddenly faced with new and unique challenges.

PL 280 is a federal law, not a state law.

“Congress, we are told, passed Pub. L. 280 not as a measure to benefit the States, but to reduce the economic burdens associated with federal jurisdiction on reservations.”

Washington v. Confederate Bands and Tribes of the Yakima Indian Nation, 439 US 463, 498 (1979)

Enacted by the United States Congress in 1953

6 States were mandated by the federal government to provide criminal and civil jurisdiction in Indian country.

-

-

-

-

-

-

CALIFORNIA

OREGON

NEBRASKA

MINNESOTA

WISCONSIN

ALASKA

51%

70% of federally recognized tribes

197Public Law 83-280Enacted by the United States Congress in 1953

These 6 states are referred to as the “Mandatory PL 280 States.”

In 1953, all other states were given the option to take over civil and criminal jurisdiction from the federal government.

CALIFORNIA

OREGON

NEBRASKA

MINNESOTA

WISCONSIN

ALASKA

-

-

-

-

-

-

Any state which opted to take jurisdiction (even partial jurisdiction) became known as the “Optional PL 280 States.”


Unfortunately, PL 280 became an UNFUNDED FEDERAL MANDATE.

In theory, state-level public safety and judicial services were supposed to benefit the tribes by being more accessible to tribal communities.

A few years earlier, federal responsibilities in the areas of health and education to tribal communities were transferred over to state-run programs.

Federal money was delegated to the states for these new responsibilities.

These state-run programs were often superior to the federally run programs.

-

-

-


Public Law 83-280

Lack of funding created tensions between state and tribal governments regarding quantity and quality of services provided.

It failed to fund the States

Resulted in lack of law enforcement (still exists today!)

ALSO, tribal communities resented the fact that PL 280 did not include tribal consent before a state was given jurisdiction in their Indian country.

-

-

*

Indian communities criticized PL 280 because:

199Enacted by the United States Congress in 1953

Public Law 83-280

The 34th President of the United States, Dwight Eisenhower, was not pleased with the fact PL 280 did not include “a requirement of full consultation” with the Indians “in order to ascertain” their “wishes and desires.”

He recommended “that at the earliest possible time in the next session of the Congress, the Act be amended to require such consultation with the tribes prior to the enactment of legislation subjecting them to state jurisdiction.”

Unfortunately, the tribal consent requirement was not added to PL 280 until 15 years later.

199Enacted by the United States Congress in 1953

day one part a pdf

Documents