Tribes, states must manage concurrent powers

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The Soboba Band of Luiseño Indians has a long history of upholding its political sovereignty. It also has a long history of legal actions and encounters with state and county authorities. Police refer to the Soboba reservation as “hostile Indian country” to this day. After the most recent shooting incident of several since 2002, Soboba chairman Robert Salgado reported county police did not respect his authority, and did not cooperate with him as the reservation’s elected leader.

The police did not recognize Soboba sovereignty during the shooting crisis and did not enjoin the tribal government’s consent, cooperation, or aid.

The actions by the Riverside police have created an uproar among California Indian tribes. California is one of the original states from the early 1950s that was included in Public Law 280. The law was enacted by a group of congressional members who wanted to extended state control of criminal and civil law to tribal communities.

They did not gain enough support for extension of P.L. 280 to all states, but six states were included in the original act. Mechanisms were included to allow more states to induct tribal communities into P.L. 280 jurisdiction. Since enactment about 10 other states have experimented with various levels of P.L. 280 jurisdiction.

The original intention of P.L. 280 was to ensure the transfer of jurisdiction to state governments and foster the processes of termination of Indian tribes. The termination policy has been formally withdrawn by Congress, but P.L. 280 remains on the books and has taken to a variety of reinterpretations in the courts.

The recent jurisdictional and policing issues on the Soboba reservation can be seen as the continuity of long standing hostilities between California and tribal governments. Generally, among states with P.L. 280 authority, state and county governments and police departments assume they have been delegated full criminal jurisdiction over reservation lands in their states. Over the past 50 years, state and local legislatures believed and still believe that criminal jurisdiction over Indian reservations has been delegated to state and county governments for P.L. 280 reservations.

Law cases, however, do not uphold this view. P.L. 280 does not abrogate the powers of tribal governments to uphold both criminal and civil law. The courts uphold the inherent rights of tribal government to administer their own criminal and civil laws.

Tribal governments in P.L. 280 states have not given up their rights to administer criminal and civil codes and acts on reservation land. Similarly, it is often thought that the Major Crimes Act abrogated tribal government powers to administer over major crimes, but it does not.

Rather tribes retain the right to administer over major crimes, but the Major Crimes Act gives the federal government first right to take up major crimes cases, and in P.L. 280 jurisdictions states have the right to take up major crimes. In P.L. 280 jurisdictions, state and tribal governments have concurrent jurisdiction, meaning that states and tribal government both have the right to prosecute criminal cases. Tribal courts are further restricted by the American Indian Civil Rights Act, which constrains sentencing to one year in jail and/or a $5,000 fine. Tribal courts can take up major crimes or criminal offenses whenever state or federal courts decline to hear such cases.

Most P.L. 280 tribal reservations have not the resources to create tribal courts or to construct tribal police departments that would enable them to enforce criminal jurisdiction. In practice, most tribal governments allowed county courts and police to administer criminal jurisdiction on reservation lands. Most tribal communities probably would prefer to have their own courts and police, but over the past 50 years few P.L. 280 tribal governments could underwrite the significant costs of criminal law administration.

Over the past 20 years, some tribes, mainly gaming communities, have acquired resources that enable them to assert their rights under both P.L. 280 and the Major Crimes Act. The recent Soboba shooting led to a conference attended by many representatives of California tribes that focused on the possibilities of withdrawing from P.L. 280 jurisdiction, a process called retrocession. Some political work is now underway in California to ease the requirements for retrocession from P.L. 280, which requires state government consent.

For many years, most tribal governments could not assert their criminal jurisdiction rights under P.L. 280, but increasingly tribal communities have greater knowledge of the law, and more financial resources, and will in the future have greater possibilities for asserting tribal government criminal powers. Concurrent criminal justice powers, however, are not well defined, and have not been fully tested in cooperative arrangements. When two jurisdictions have concurrent powers, they must develop understandings about how those powers are applied. Some wealthier tribes may opt for retrocession, and build their own justice departments. Many P.L. 280 tribal communities, however, cannot build courts and police departments and either must submit to county jurisdiction, or work out agreements of understanding about how concurrent jurisdiction can be cooperatively managed between state and tribal governments.