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Questions and Answers about Public Law 280
by Carole Goldberg
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Carole Goldberg is Professor of Law at UCLA Law School and Director of UCLA's
Joint Degree Program in Law and American Indian Studies. Professor Goldberg's
most recent book is Planting Tail Feathers: Tribal Survival and Public Law 280.
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How did Public Law 280 change the rules of jurisdiction
for reservations and others in Indian Country?
Before Public law 280 was enacted, the federal government and the tribal
courts shared jurisdiction exclusive of the states, over almost all civil and
criminal matters involving Indians on the reservations. With the enactment
Public Law 280, affected states received Criminal jurisdiction over reservation
Indians. In addition, Public law 280 opened state courts to civil litigation
that previously had been possible only in tribal or federal courts. In the six
states actually named in Public Law 280, the federal government gave up all of
its special criminal jurisdiction over involving Indian perpetrators or victims.
Did Public Law, 280 change the trust status of Indian land
or exclude Indian land or exclude Indians in affected states from receiving
benefits under federal Indian programs?
Public Law 280 did not affect the trust status of Indian Lands. Neither
did it exclude Indians in affected states from receiving benefits under federal
Indian programs, such as the Indian Health Service or Indian education grants.
However. the Bureau of Indian Affairs has sometimes used Public Law 280 as an
excuse for reducing or eliminating funding for federal Indian programs in
affected states. For example, when California came under Public law 280, the
Bureau eliminated funding for certain education programs. This response by the
Bureau cannot be justified by the language of Public Law 280, and the Bureau has
begun restoring the benefits that were withdrawn after enactment of Public Law
280.
Which states are affected by Public Law 280?
The "mandatory" states, required by Public Law 280 to assume
jurisdiction, are Alaska, California, Minnesota (except Red Lake), Nebraska,
Oregon (except Warm Springs). and Wisconsin. The "optional" states, which
elected to assume full or partial state jurisdiction, are Arizona (1967),
Florida (I961), Idaho (1963, subject to tribal consent), Iowa (1967), Montana
(1963), Nevada (1955), North Dakota (1963, subject to tribal consent), South
Dakota (1957-61), Utah (1971), and Washington (1957-63).
Did tribes have to give their consent before Public Law
280 would take effect?
For the six states named in Public Law 280, state jurisdiction was put
into effect without securing prior consent of the affected tribes. Some of the
"optional" states voluntarily chose to assume jurisdiction only over tribes that
consented. In 1968 Public Law 280 was amended to require consent for any future
state jurisdiction under Public Law 280. However, tribes could not undo state
jurisdiction established between 1953 and 1968.
What is retrocession? How can
retrocession be initiated under Public Law 280?
Initially, Public Law 280 did not contain a provision permitting the
states and the tribes to demand the return or "retrocession of state Public Law
280 jurisdiction to the federal government. However, in order to relieve the
states' financial difficulties with Public Law 280, the 1968 Civil Rights Act
enabled the states that had assumed Public Law 280 to offer the return of all or
any measure of the jurisdiction to the federal government. The federal
government would have the final say on whether to accept the retrocession. Not
only were the Indians given no veto power over state-initiated retrocession,
they had no way of imposing retrocession on an unwilling state that had acquired
jurisdiction.
Are there any limits to state
authority under Public Law 280?
States may not apply laws related to such matters as environmental
control, land use, gambling, and licenses if those laws are part of a general
state regulatory scheme. Public Law 280 gave states only law enforcement and
civil judicial authority, not regulatory power. It also denied states power to
legislate concerning certain matters, particularly property held in trust by the
United States and federally guaranteed hunting, trapping, and fishing rights.
The state cannot tax on the reservations. The United States Supreme Court has
interpreted Public law 280 as a statute designed to open state courts to civil
and criminal actions involving reservation Indians, not to subject reservations
to the full range of state regulation. Finally, there are some matters so
central to the very definition of the tribe, such as enrollment and certain
domestic relations matters, that even state courts may be excluded from hearing
such matters.
Are municipal and county laws applicable under Public Law
280?
Public law 280 may have rendered only statewide law applicable to
reservation Indians, excluding municipal and county laws There are some judicial
decisions that reject the application of local law to Indian reservations under
P.L. 280. The rationale that courts have used to justify excluding local laws is
that Public Law 280 was not intended to deny tribes their basic governmental
functions.
Have any federal laws enacted after
Public Law 280 reduced state authority on reservations?
Certain federal statutes enacted alter Pubic Law 280 have reduced the
amount of jurisdiction available to states under the 1953 law, simultaneously
increasing tribal sovereignty or federal power. In 1978, Congress enacted the
Indian Child Welfare Act, which gives tribes exclusive jurisdiction over certain
child custody proceedings involving Indian children. The act also regulates some
other aspects of child custody. The Indian Gaming Regulatory Act of 1988 is
another federal statute that supersedes or preempts P.L. 280. It makes
enforcement of state gambling laws a federal rather than a state responsibility.
Can tribes have their own courts and systems of laws in
Public Law 280 states?
Indian tribes have inherent sovereign authority. Most courts and
attorneys general have found that under Public Law 280, the tribes have retained
civil jurisdiction over activities within Indian Country as well as criminal
jurisdiction over Indians. A few states, such as California, dissent from this
view.
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