Is it better to have federal or state administration of criminal justice in Indian country? The question bears asking because reservation communities are increasingly faced with making that distinction.
By law, criminal justice in tribal communities in the United States must be managed by either state or federal authorities. Historically, it has been Washington that has held sway. The Major Crimes Act of the 1880s not only imposed federal authority over major crimes in Indian country, it supplanted the traditional and tribal ways of managing major crimes.
Then came the passage of Public Law 280 in 1953, which moved authority for criminal justice from federal to state governments. Initially, five states (California, Minnesota, Nebraska, Oregon and Wisconsin, later joined by Alaska) were organized as mandatory PL 280 states. Eventually, other states were given the option to adopt the law.
PL 280 was built on the premise that county-state administration of criminal justice would serve better than federal or tribal jurisdiction. It is doubtful, however, that this claim was deeply vetted as policy, since it is most likely termination was ultimately the main purpose of the act.
Whatever the reason, the pendulum has been swinging back the other way for some time. The Indian Civil Rights Act of 1968 established that Indian reservations must give consent before a state can accept PL 280 jurisdiction. Because no tribal communities have voluntarily accepted PL 280 jurisdiction, it would seem that tribal communities prefer federal criminal jurisdiction to county and state control.
Then came the Tribal Law and Order Act of 2010. This important legislation enables tribes in PL 280 states to seek more federal jurisdiction if they do not think they are being well served by county and state police and courts.
It should be noted that President Dwight D. Eisenhower objected to the 1953 version of PL 280 since the original law enabled states to adopt criminal jurisdiction over Indian reservations without agreement from tribal communities. The Indian Civil Rights Act also provided Indian tribes with an exit from PL 280 through a mechanism called retrocession. However, tribes cannot independently retrocede from PL 280 without agreement from state governments.
In 2012, the Native Nations Law & Policy Center of the University of California, Los Angeles offered research that suggested many tribes would like to retrocede from PL 280. However, the research also indicated that federal resources are not readily available to support a return to federal jurisdiction.
More to the point was what the research found about the prevailing attitudes toward the respective authorities. These attitudes are decidedly mixed. By all indications, tribal communities in PL 280 jurisdictions don’t like how they are administered by county officials and by the courts. They also regard federal courts as distant, culturally insensitive and discriminatory. Yet the communities do prefer federal police to county police. One reason is that federal police, many of whom live on reservations, are Indians themselves, with greater cultural understanding of tribal communities. By contrast, state police are not only less culturally understanding and socially engaged, they are seen as more discriminatory.
It is for that reason that to the extent possible, many tribal communities have moved to exit from state or federal criminal jurisdiction by establishing their own tribal police, courts and sometimes jails. As it is, tribal governments enjoy concurrent criminal jurisdiction within both federal or state administrations.
In regard to both the Major Crimes Act and Public Law 280, Congress has not withdrawn tribal government powers of administering criminal justice. Many, however, if not most, tribal governments—owing to financial, organizational or size issues—are unable to assert their inherent and concurrent powers over criminal justice.
Reading the future of tribal administration, especially of criminal justice services, is difficult indeed. It is hard to say if the ideal solution lies on the federal, state or tribal level, or perhaps some combination of them. But this much can safely be said: The system works best when it is cooperative, respectful of tribal sovereignty, culturally understanding, fair and seriously devoted to concurrent jurisdiction. 0