Negotiating jurisdiction: Retroceding state authority over Indian country granted by Public Law 280

Washington Law Review

Volumn 87, Issue 4, 2012, Pages 915-964

  Anderson, Robert T ^a  

^a University of Washington School of Law   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84871871012     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (380)

1. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.... ")
2. Wash. Const. art. I, § 1 ("All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. ")
3. United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring) ("The Constitution is based on a theory of original, and continuing, consent of the governed. ").
4. Compare Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (Georgia has no jurisdiction over non-Indians within Cherokee Reservation).
5. United States v. Sioux Nation of Indians, 448 U.S. 371, 415 (1980) ("[T]ribal lands are subject to Congress' power to control and manage the tribe's affairs. But the court must also be cognizant that 'this power to control and manage [is] not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it [is] subject to limitations inhering in... a guardianship and to pertinent constitutional restrictions.'").
6. See also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980) ("Long ago the Court departed from Mr. Chief Justice Marshall's view that 'the laws of [a state] can have no force' within reservation boundaries.... ") (quoting Worcester, 31 U.S. at 520).
7. See generally Cohen's Handbook of Federal Indian Law § 6.01, at 499-514 (Nell J. Newton, Robert Anderson et al. eds., 2005) [hereinafter Cohen]. The 2012 edition of Cohen's Handbook of Federal Indian Law was released as this Article was in the final editing stages. While the page numbering has changed, most of the section numbers remain the same and are included here for ease of reference.
8. For a detailed examination of these consent principles, see Richard B. Collins, Indian Consent to American Government, 31 Ariz. L. Rev. 365 (1989).
9. Matthew L.M. Fletcher, Tribal Consent, 8 Stan. J. C.R. & C.L. 45 (2012)
10. Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588.
11. Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588.
12. United States v. Kagama, 118 U.S. 375, 384 (1886) ("Because of the local ill feeling, the people of the states where they [Indians] are found are often their deadliest enemies. ").
13. The Supreme Court upheld this complex arrangement in Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463 (1979).
14. Cohen's Handbook of Federal Indian Law § 6.01, at 499-514.
15. U.S. Const. art. I, § 8, cl. 3.
16. See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573, 1577-81 (1996) (describing the foundational principles of federal Indian law).
17. 31 U.S. (6 Pet.) 515 (1832).
18. 31 U.S. (6 Pet.) 515 (1832) at 559-61; see generally Cohen's Handbook of Federal Indian Law § 6.01[2], at 501-03.
19. "The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force. " Worcester, 31 U.S. at 559-61.
20. Earlier, in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), the Court ruled that the Cherokee Nation was not a foreign nation within the meaning of Article III of the Constitution and thus could not invoke the Supreme Court's original jurisdiction to challenge Georgia's laws purporting to regulate the Nation.
21. 18 U.S.C. § 1151 (2006).
22. See Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 527 (1998).
23. See Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1293 (D.C. Cir. 2000) (surveying various definitions of "reservation").
24. 25 U.S.C. § 177 (2006).
25. Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823)
26. see also Cohen's Handbook of Federal Indian Law, § 15.04[2], at 971 ("The Court described the tribal interest in land variously, as a 'title of occupancy,' 'right of occupancy,' and right of possession.... "). The common shorthand term for these property rights is "aboriginal title. "
27. See Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 233-34 (1985)
28. Oneida Indian Nation v. Cnty. of Oneida, 414 U.S. 661, 669 n.5, 676 (1974).
29. Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835). Of course, the Supreme Court in 1955 created a gaping hole in the fabric of aboriginal title when it held that "unrecognized Indian title" in southeast Alaska was not protected by the Just Compensation Clause of the Fifth Amendment. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)
30. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)
31. see Joseph Singer, Erasing Indian Country: The Story of Tee-Hit-Ton Indians v. United States, in Indian Law Stories 229 (Carole Goldberg et al. eds., 2011).
32. Francis Paul Prucha, American Indian Treaties 1 (1994).
33. See, e.g., Act of June 5, 1850, ch. XVI, 9 Stat. 437 (authorizing the President "to appoint one or more commissioners to negotiate treaties with the several Indian tribes in the Territory of Oregon, for the extinguishment of their claims to lands lying west of the Cascade Mountains; and, if found expedient and practicable, for their removal east of said mountains; also, for obtaining their assent and submission to the existing laws regulating trade and intercourse with the Indian tribes in the other Territories and of the United States").
34. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)
35. Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979).
36. For example, Congress confiscated the Black Hills of South Dakota through an "agreement" that amounted to a taking of the tribe's recognized title to the land in violation of the Fifth Amendment. United States v. Sioux Nation of Indians, 448 U.S. 371, 377-83 (1980).
37. See Treaty with the Duwamish et al., art. 7, 12 Stat. 927 (1855); Treaty with the Omahas, art. 1, 10 Stat. 1043 (1854).
38. Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 566 (codified as 25 U.S.C. § 71 (2006) ("No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.... "). Existing treaty rights were not impaired. The United States continued to negotiate agreements with Indian tribes, which were then ratified by Congress. See, e.g., Winters v. United States, 207 U.S. 564 (1908) (construing agreement with the tribes of the Fort Belknap Reservation).
39. General Allotment (Dawes) Act of 1887, 24 Stat. 388. The Dawes Act gave the President authority to divide communal tribal lands into individual parcels to be held by tribal members. These "allotments" were protected from taxation and could not be sold without the consent of the Secretary of the Interior for a period of twenty-five years. After that they were to be held in fee simple status. 25 U.S.C. § 348 (2006).
40. Cohen's Handbook of Federal Indian Law, § 1.04, at 75-84.
41. Cohen's Handbook of Federal Indian Law, § 1.04, at 78-79.
42. See, e.g., Solem v. Bartlett, 465 U.S. 463 (1984).
43. See Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989)
44. Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962)
45. Judith V. Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995).
46. Wheeler-Howard Act, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-79)
47. see Cohen's Handbook of Federal Indian Law, § 1.05, at 86-88.
48. Cnty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992). Today, Indian land holdings are estimated at 55.4 million acres, with approximately 44.4 million owned by tribes and eleven million held in the form of individual allotments.
49. Cohen's Handbook of Federal Indian Law, § 15.01, at 965, § 16.03[4][a], at 1048.
50. H.R. Con. Res. 108, 83d Cong. (1953) (directing the Secretary of the Interior to recommend tribes for termination)
51. Cohen's Handbook of Federal Indian Law, § 1.06, at 95. In general, "[termination] would mean that Indian tribes would eventually lose any special standing they had under Federal law: the tax exempt status of their lands would be discontinued; Federal responsibility for their economic and social well-being would be repudiated; and the tribes themselves would be effectively dismantled. " Richard M. Nixon, Special Message to Congress on Indian Affairs (July 8, 1970), H.R. Doc. 91-363, at 1.
52. But see Menominee Tribe v. United States, 391 U.S. 404 (1968) (termination of Menominee Indian Tribe did not abrogate tribal rights to hunt and fish free of state regulation).
53. Cohen's Handbook of Federal Indian Law, § 1.06, at 95.
54. Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 249 (2005). Part III.
55. Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 249 (2005).
56. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
57. See Kevin K. Washburn, American Indians, Crime, and the Law, 104 Mich. L. Rev. 709 (2006) (giving an insightful and descriptive critique of the adverse effects of federal policies in the criminal justice area). Tribal sentencing authority was limited to six months in jail and a $500 fine per offense, Pub. L. No. 90-284, § 202(7), 82 Stat. 77 (1968), and now stands at one year in jail and a $10,000 fine, with the option to increase the penalties to three years per offense with a $15,000 fine, provided certain conditions are met. 25 U.S.C. § 1302 (2006).
58. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 200 (2012) [hereinafter Captured Justice].
59. Cohen's Handbook of Federal Indian Law, § 3.04, at 182-99.
60. Act of June 25, 1948, ch. 645, 62 Stat. 757 (codified at 18 U.S.C. § 1151 (2006).
61. Act of June 30, 1834, ch. 161 § 1, 4 Stat. 729.
62. United States v. John, 437 U.S. 634, 649 n.18 (1978) (citing Bates v. Clark, 95 U.S. 204 (1877)
63. Cohen's Handbook of Federal Indian Law, § 3.04[2][b], at 184-88.
64. 437 U.S. 634.
65. 437 U.S. at 649 n.18.
66. 18 U.S.C. § 1151 (2006) (emphasis added).
67. See Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 358 (1962) (rejecting the State of Washington's argument that the words "notwithstanding the issuance of any patent" extends only to land patented to an Indian).
68. Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. (1962). at 358-59.
69. Trade and Intercourse Act of 1790, ch. 34, § 5, 1 Stat. 137, 138.
70. Act of Mar. 3, 1817, § 1, 3 Stat. 383 (codified as amended at 18 U.S.C. § 1152 (2006).
71. The geographic jurisdictional reach of the statute is set out in 18 U.S.C. § 7. The federal
72. 18 U.S.C. § 1152. Victimless crimes such as adultery also are not covered by the ICCA. United States v. Quiver, 241 U.S. 602, 605-06 (1916)
73. Cohen's Handbook of Federal Indian Law, § 9.02[1][c][iii], at 735-36 (citing and criticizing several lower court cases that have not followed Quiver).
74. 18 U.S.C. § 1152. An exception for Indians who had been punished by the local law of their tribe was added in 1854. Act of Mar. 27,1854, § 3, 10 Stat. 270.
75. 18 U.S.C. § 13.
76. See Williams v. United States, 327 U.S. 711, 719 (1946) (assuming that the ACA was subsumed within the ICCA)
77. Cohen's Handbook of Federal Indian Law, § 9.02[1][c][ii], at 734.
78. 18 U.S.C. § 1153.
79. The Major Crimes Act reads: (a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. (b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense. 18 U.S.C. § 1153.
80. 109 U.S. 566 (1883); see Sidney L. Harring, Crow Dog's Case, American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century 134-40 (1994)
81. Cohen's Handbook of Federal Indian Law, § 9.02[1][e] at 742.
82. Ex Parte Crow Dog, 109 U.S. at 572. While the ICCA and the MCA provide the substantive law for federal prosecutions in Indian country, at the sentencing stage the United States Sentencing Guidelines serve as a guide to the court. 18 U.S.C. § 3551 (2006)
83. Cohen's Handbook of Federal Indian Law, § 9.02[2][h], at 747-49. "The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe's governing body. "
84. United States v. Gallaher, 608 F.3d 1109, 1110 (9th Cir. 2010) (citing 18 U.S.C. § 3598).
85. Sidney L. Harring, Crow Dog's Case, American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (1994), at 110, 119, 141.
86. See, e.g., United States v. Smith, 387 F.3d 826, 829 (9th Cir. 2004) (holding that 18 U.S.C. § 1513(b), which bars retaliation against a federal witness, applies to crimes committed by and against Indians in Indian country)
87. United States v. Begay, 42 F.3d 486, 499 (9th Cir. 1994) (holding that the federal conspiracy statute, 18 U.S.C. § 371, "is a federal criminal statute of nationwide applicability, and therefore applies equally to everyone everywhere within the United States, including Indians in Indian country").
88. United States v. Lara, 541 U.S. 193, 210 (2004) (upholding congressional restoration of tribal criminal jurisdiction over non-member Indians)
89. United States v. Wheeler, 435 U.S. 313, 331-32 (1978) (recognizing inherent tribal jurisdiction over tribal members).
90. Indian Civil Rights Act, Pub. L. No. 90-284, § 202, 82 Stat. 77 (1968) (tribes were originally limited to imposing penalties of six months in jail and a $500 fine per offense) (codified as amended at 25 U.S.C. § 1302 (2006). The 1986 amendments increased the penalties. Pub. L. No. 99-570, § 4217, 100 Stat. 3207 (1986).
91. Tribal Law and Order Act of 2010, Pub. L. No. 111-211, § 234(a), 124 Stat. 2279 (relevant portions codified at 25 U.S.C. §§ 1302 (a)(7), (b) (Supp. IV 2010). Tribes are permitted to stack sentences for separate offenses up to a total of nine years and $15,000 in fines. Indian Civil Rights Act, Pub. L. No. 90-284.
92. Duro v. Reina, 495 U.S. 676, 680 n.1 (1990).
93. Wetsit v. Stafne, 44 F.3d 823, 825 (9th Cir. 1995).
94. 435 U.S. 313.
95. 435 U.S. 313; see also Talton v. Mayes, 163 U.S. 376 (1896) (tribal prosecution for murder not subject to the dictates of the Bill of Rights on the ground that tribes are separate sovereigns and not arms of the federal government).
96. Wheeler, 435 U.S. at 332.
97. Cohen's Handbook of Federal Indian Law, § 2.02, at 119-20.
98. 435 U.S. 191 (1978).
99. 435 U.S. (1978) at 210-11. For a critical analysis of the historical record relied upon by the Court, see Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 Minn. L. Rev. 609 (1979).
100. The Oliphant ruling was extended by the Supreme Court to bar tribal jurisdiction not only over non-Indians, but also over Indians who are members of other tribes. Duro v. Reina, 495 U.S. 676 (1989). Congress reversed the Court's ruling when it amended the Indian Civil Rights Act to restore the inherent criminal jurisdiction of all federally recognized tribes over "all Indians" in the governing tribe's territory. 25 U.S.C. § 1301(2) (2006).
101. State v. Schmuck, 121 Wash. 2d 373, 376, 850 P.2d 1332, 1333 (1993); cf. Strate v. A-1 Contractors, 520 U.S. 438, 456 n.11 (1997) ("We do not here question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law. ")
102. see also State v. Eriksen (Eriksen III), 172 Wash. 2d 506, 259 P.3d 1079 (2011) (holding that the stop-and-detain rule does not extend to tribal police officers who stop and detain non-Indians on state land outside of an Indian reservation, even when the stop is based on probable cause occurring within reservation boundaries)
103. Kevin Naud, Jr., Comment, Fleeing East from Indian Country: State v. Erickson and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit, 87 Wash. L. Rev. 1251, 1272-74 (2012) (discussing Eriksen III).
104. See Wash. Rev. Code § 10.92.020 (2010). The Washington State statute provides that: Tribal police officers under subsection (2) of this section shall be recognized and authorized to act as general authority Washington peace officers. A tribal police officer recognized and authorized to act as a general authority Washington peace officer under this section has the same powers as any other general authority Washington peace officer to enforce state laws in Washington, including the power to make arrests for violations of state laws.
105. Kevin Naud, Jr., Comment, Fleeing East from Indian Country: State v. Erickson and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit, 87 Wash. L. Rev. 1251, 1272-74 (2012) (discussing Eriksen III).. The second section of the statute contains provisions related to training and insurance requirements and concludes with a provision mandating arbitration if an affected county and tribe cannot reach a cross-deputization agreement after a tribal request that conforms to the statutory requirements.
106. Kevin Naud, Jr., Comment, Fleeing East from Indian Country: State v. Erickson and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit, 87 Wash. L. Rev. 1251, 1272-74 (2012) (discussing Eriksen III). § 10.92.020(2). Both tribal and state police may be certified to enforce federal law within Indian country. 25 U.S.C. § 2804 (2006). State officers may be so authorized only if the affected Indian tribe does not object.
107. Kevin Naud, Jr., Comment, Fleeing East from Indian Country: State v. Erickson and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit, 87 Wash. L. Rev. 1251, 1272-74 (2012) (discussing Eriksen III). § 2804(c).
108. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); cf. Ex Parte Crow Dog, 109 U.S. 556 (1883) (federal government had no jurisdiction to prosecute Indian for murder of another Indian absent affirmative grant from Congress).
109. Cohen's Handbook of Federal Indian Law, § 9.03[1], at 754.
110. New York ex rel. Ray v. Martin, 326 U.S. 496 (1946)
111. Draper v. United States, 164 U.S. 240 (1896)
112. United States v. McBratney, 104 U.S. 621 (1881).
113. Cohen's Handbook of Federal Indian Law, § 9.03[1], at 754-55. These are crimes that do not involve an Indian victim, individual Indian defendant, or tribal property.
114. Act of July 2, 1948, ch. 809, 62 Stat. 1224 (codified at 25 U.S.C. § 232 (2006) (grant of criminal jurisdiction over all reservations in state, but subject to savings clause excepting state authority over "hunting and fishing rights as guaranteed them by agreement, treaty, or custom, " and preempting any state fish and game licensing requirements).
115. Act of June 30, 1948, ch. 759, 62 Stat. 1161 (grant of criminal jurisdiction over Sac and Fox Reservation; concurrent federal jurisdiction reserved).
116. Act of June 8, 1940, ch. 276, 54 Stat. 249 (codified as amended at 18 U.S.C. § 3243 (2006) (grant of criminal jurisdiction over all reservations, including trust and restricted allotments in Kansas; concurrent federal jurisdiction reserved)
117. see Negonsott v. Samuels, 507 U.S. 99, 110 (1993) (construing the Kansas grant as including concurrent state jurisdiction over crimes covered by the federal Major Crimes Act).
118. For a discussion of these statutes and authorities construing them, see Cohen's Handbook of Federal Indian Law, § 6.04, at 581-84.
119. See, e.g., Crow Boundary Settlement Act of 1994, Pub. L. No. 103-444, 108 Stat. 4632 (codified at 25 U.S.C. § 1776)
120. Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95, 101 Stat. 704 (codified at 25 U.S.C. § 1771) (state granted jurisdiction with no mention of tribal or federal jurisdiction)
121. Mashantucket Pequot Indian Claims Settlement Act, Pub. L. No. 98-134, 97 Stat. 851 (codified at 25 U.S.C. §§ 1751-60) (state granted jurisdiction with no mention of tribal or federal jurisdiction)
122. Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, 94 Stat. 1785 (codified at 25 U.S.C. §§ 1721-35) (state granted jurisdiction subject to exception for internal matters), construed in Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir. 1999)
123. Rhode Island Indian Claims Settlement Act, Pub. L. No. 95-395, 92 Stat. 813 (codified at 25 U.S.C. §§ 1701-16) (state granted jurisdiction).
124. Cohen's Handbook of Federal Indian Law, §§ 1.05-.06, at 85-97;
125. Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations, at 1-89. (2005).
126. H.R. Con. Res. 108, 83d Cong. (1953). Although this policy was eroded in the 1960s and was repudiated by President Nixon in 1970, Congress did not formally revoke it until 1988. 25 U.S.C. § 2501(f) ("Congress repudiates and rejects House Concurrent Resolution 108 of the 83d Congress and any policy of unilateral termination of Federal relations with any Indian nation. ").
127. Cohen's Handbook of Federal Indian Law, § 1.07, at 97-113.
128. The court in Ute Distribution Corp. v. United States, 938 F.2d 1157, 1159 n.1 (10th Cir. 1991), observed that: These tribes included: the Southern Paiutes of Utah (Act of Sept. 1, 1954, ch. 1207, 68 Stat. 1099 (repealed 1980) (formerly codified at 25 U.S.C. §§ 741-760); the Alabama and Coushatta Indians of Texas (Act of Aug. 23, 1954, ch. 831, 68 Stat. 768 (codified at 25 U.S.C. §§ 721-728); sixty-one tribes and bands in western Oregon (Act of Aug. 13, 1954, ch. 773, 68 Stat. 724 (repealed 1977 with respect to Siletz Tribe) (codified as amended at 25 U.S.C. §§ 691-708); the Klamaths of Oregon (Act of Aug. 13, 1954, ch. 732, 68 Stat. 718 (repealed 1978 with respect to Modoc Tribe) (codified as amended at 25 U.S.C. §§ 564-564x); the Menominee Tribe of Wisconsin (Act of June 17, 1954, ch. 303, 68 Stat. 250 (repealed 1973) (formerly codified at 25 U.S.C. §§ 891-902); and the mixed-blood Utes of the Uintah and Ouray Reservations in Utah).
129. Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 (2006) and 28 U.S.C. § 1360 (2006).
130. Congress also provided that the Major Crimes Act and Indian Country Crimes Act would no longer be applicable in the six mandatory states. 18 U.S.C. § 1162. In 2010, however, Congress gave Indian tribes authority to request the application of those statutes by making a request to the Attorney General. Tribal Law and Order Act of 2010, Pub. L. No. 111-211, § 221(b), 124 Stat. 2272 (codified at 18 U.S.C. § 1162(d) (Supp. I 2010). Regulations implementing the statute can be found at 28 C.F.R. § 50.25 (2012). In the preamble to the Rule, the Justice Department stated that: "As indicated above, the Department concludes that the United States has concurrent jurisdiction over General Crimes Act and Major Crimes Act violations in areas where States have assumed criminal jurisdiction under 'optional' Public Law 280. " 76 Fed. Reg. 76,037, 76,039 (Dec. 6, 2011). The Eighth Circuit reached the same conclusion in United States v. High Elk, 902 F.2d 660 (8th Cir. 1990). But see United States v. Burch, 169 F.3d 666 (10th Cir. 1999) (holding that statute incorporating voluntary assumption component of P.L. 280 preempted federal jurisdiction under MCA). United States v. Johnson, No. CR80-57MV (W.D. Wash. May 13, 1980) (holding that the Major Crimes Act did not apply to prosecution over which Washington State assumed jurisdiction). The United States appealed, but withdrew its appeal before a decision on the merits. United States v. Johnson, No. 80-1391 (July 23, 1980). For a critical examination of the issue
131. Cohen's Handbook of Federal Indian Law, § 6.04[3][d], at 567-68.
132. The criminal jurisdiction disclaimer provides in full: Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. 18 U.S.C. § 1162(b) (2006). The civil jurisdiction counterpart provides: Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. 28 U.S.C. § 1360(b) (2006).
133. Act of Aug. 15, 1953, Pub. L. No. 83-280, § 7, 67 Stat. 588, 590 ("The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof. ").
134. Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. Rev. 535, 544-46 (1975)
135. see David M. Ackerman, Cong. Research Serv., Background Report on Public Law 280, at 22 (94th Cong. 1st Sess. (1975) [hereinafter Public Law 280] (describing opposition of the Colville and Yakima Tribes of Washington because of "a 'fear of inequitable treatment in the State courts and fear that extension of State law to their reservations would result in the loss of various rights'")
136. see also Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 489 n.33 (1979) (noting Yakima opposition to state jurisdiction since 1952).
137. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, (2012), at 11 (citing Carole Goldberg-Ambrose, Planting Tail Feathers: Tribal Survival and Public Law 280 (1996).
138. See Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty 247, 247 (Carpenter, Fletcher, Riley eds., 2012) [hereinafter Searching for an Exit].
139. Cohen's Handbook of Federal Indian Law, § 6.03[a], at 544-45 n.308.
140. Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. Rev. at 541. (1975)
141. Bryan v. Itasca Cnty., 426 U.S. 373 (1976).
142. Bryan, 426 U.S. at 388-91.
143. 426 U.S. 373. For a history of the litigation, see Kevin K. Washburn, How a $147 County Tax Notice Helped Bring Tribes More Than $200 Billion in Indian Gaming Revenue: The Story of Bryan v. Itasca County, in Indian Law Stories 421(Carole Goldberg et al. eds., 2011).
144. 426 U.S. 373. For a history of the litigation, see Kevin K. Washburn, How a $147 County Tax Notice Helped Bring Tribes More Than $200 Billion in Indian Gaming Revenue: The Story of Bryan v. Itasca County, in Indian Law Stories 421(Carole Goldberg et al. eds., 2011). at 390.
145. 480 U.S. 202 (1987).
146. 480 U.S. 202 (1987). at 205-06.
147. 480 U.S. 202 (1987) 102.
148. 480 U.S. 202 (1987) 103.
149. 480 U.S. 202 (1987) at 208.
150. 480 U.S. 202 (1987) at 209.
151. 480 U.S. 202 (1987) at 209-10 (footnote omitted).
152. 480 U.S. 202 (1987). at 211.
153. See generally Cohen's Handbook of Federal Indian Law, § 6.04[3][b], at 546-53.
154. Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146 (9th Cir. 1991).
155. Confederated Tribes of Colville Reservation v. Washington, 938. at 148
156. see also Cohen's Handbook of Federal Indian Law, § 6.04[3][b], at 549 n.346.
157. State law is "applicable only as it may be relevant to private civil litigation in state court. " Cabazon, 480 U.S. at 208. Rules of decision can be the common law rules utilized in private tort or contract litigation, or the statutes that provide substantive law for the resolution of such disputes.
158. See Cohen's Handbook of Federal Indian Law, § 6.04[3][b], at 548
159. cf. Gobin v. Snohomish Cnty., 304 F.3d 909 (9th Cir. 2002) (holding that county lacked zoning authority over Indian fee land within Indian country).
160. Doe v. Mann, 415 F.3d 1038, 1058-59 (9th Cir. 2005).
161. In Comenout v. Burdman, 84 Wash. 2d 192, 525 P.2d 217 (1974), the court upheld state jurisdiction over child dependency matters under the 1963 statute, but it is important to note that the case was decided prior to the criminalprohibitory/ civil-regulatory dichotomy in Bryan v. Itasca County, 426 U.S. 373 (1976).
162. 70 Op. Att'y Gen. Wis. 237, 241, 246-48 (1981). But see In re Commitment of Burgess, 665 N.W.2d 124, 132 (Wis. 2003) (involuntary commitment of an individual, who is found to be a "sexually violent person" under chapter 980, is "civil" rather than "criminal" based on the purposes of the chapter to provide treatment and to protect the public). See Burgess v. Watters, 467 F.3d 676 (7th Cir. 2006) (declining to issue habeas corpus petition despite doubts that involuntary commitment scheme was within P.L. 280's jurisdictional grant).
163. Mann, 415 F.3d at 1059.
164. 28 U.S.C. § 1360(b) (2006) (civil); 18 U.S.C. § 1162(b) (2006) (criminal).
165. 28 U.S.C. § 1360(b); 18 U.S.C. § 1162(b).
166. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 (1980) (evaluating preemption of state jurisdiction over non-Indian conducting business with Indian tribe by balancing the relative federal, tribal, and state interests in light of traditional notions of tribal independence from states).
167. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764 (1985) (state taxation of Indians in Indian country generally preempted)
168. see Cohen's Handbook of Federal Indian Law, § 6.03, at 520-37. Of course, as noted above, P.L. 280 alters these doctrines to the extent it opens the courthouse door to adjudicate civil causes of action in state courts and to apply state law to resolve such disputes.
169. Montana v. United States, 450 U.S. 544 (1981)
170. see also Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001)
171. Strate v. A-1 Contractors, 520 U.S. 438 (1997)
172. see also Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001)
173. Strate v. A-1 Contractors, 520 U.S. 438 (1997)
174. Cohen's Handbook of Federal Indian Law, § 6.02[2], at 515-20.
175. 25 U.S.C. §§ 2701-21 (2006). See generally Cohen's Handbook of Federal Indian Law, § 12, at 857-88.
176. 18 U.S.C. §§ 1166-68.
177. 18 U.S.C. § 1166(a) ("Subject to subsection (c), for purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of gambling, including but not limited to criminal sanctions applicable thereto, shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State. ").
178. 18 U.S.C. § 1166(c). Definitions of gaming classes can be found at 25 U.S.C. § 2703(6)-(8) (2006). Class III gaming is commonly known as casino-style gaming and is the most lucrative and prevalent form of gaming nationally and in Washington.
179. "The United States shall have exclusive jurisdiction over criminal prosecutions of violations of State gambling laws that are made applicable under this section to Indian country, [unless a tribal-state compact provides otherwise]. " 18 U.S.C. § 1166(d) (2006). The compacting process related to the allocation of state and tribal jurisdiction is governed by 25 U.S.C. § 2710(d)(3)(C) (2006).
180. 54 F.3d 535 (9th Cir. 1994).
181. 54 F.3d 535 (9th Cir. 1994) at 539-40.
182. 1957 Wash. Sess. Laws 941, ch. 240. The operative section of that statute is carried forward at Wash. Rev. Code § 37.12.021 (2010): Whenever the governor of this state shall receive from the majority of any tribe or the tribal council or other governing body, duly recognized by the Bureau of Indian Affairs, of any Indian tribe, community, band, or group in this state a resolution expressing its desire that its people and lands be subject to the criminal or civil jurisdiction of the state of Washington to the full extent authorized by federal law, he or she shall issue within sixty days a proclamation to the effect that such jurisdiction shall apply to all Indians and all Indian territory, reservations, country, and lands of the Indian body involved to the same extent that this state exercises civil and criminal jurisdiction or both elsewhere within the state: PROVIDED, That jurisdiction assumed pursuant to this section shall nevertheless be subject to the limitations set forth in RCW 37.12.060.
183. 1963 Wash. Sess. Laws 346, ch. 36 (codified at Wash Rev. Code § 37.12.010)
184. see also M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 663, 704-12 (2012) (discussing the 1957 and 1963 statutes).
185. This is a paraphrase of Wash. Rev. Code § 37.12.010 (2010). The verbatim text provides: The state of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 have been invoked, except for the following [eight areas].... For the enumerated eight areas
186. The eleven are: Muckleshoot, Squaxin Island, Nisqually, Skokomish, Suquamish (Port Madison), Tulalip Tribes, Quinault Indian Nation, Confederated Tribes of the Chehalis Reservation, Quileute Indian Reservation, Swinomish Tribal Community, and Confederated Tribes of the Colville Reservation. 1 Nat'l Am. Indian Court Judges Ass'n, Justice and the American Indian: The Impact of Public Law 280 upon the Administration of Criminal Justice on Indian Reservations 78-81 (1974). The Swinomish and Colville requests for state jurisdiction were made after 1963, and thus under that statute, which carried forward most of the voluntary consent provisions of the 1957 statute. See Colville Business Council Res. 1965-4 (Jan. 13, 1965) (full jurisdiction, except fish and game regulation) (on file with Washington Law Review); Swinomish Indian S. Res. (Mar. 23, 1963) (criminal jurisdiction only) (on file with Washington Law Review). The 1963 version dropped the requirement for the Yakima, Colville, and Spokane tribes that any assumption be approved by a two-thirds vote at a tribal referendum.
187. Cf. 1963 Wash. Sess. Laws 346, ch. 36; 1957 Wash. Sess. Laws 941, ch. 240.
188. The Muckleshoot, Squaxin Island, Skokomish, and Nisqually Indian tribes remain subject to full state jurisdiction. The seven tribes who achieved limited retrocession are: Tulalip Tribes, 65 Fed. Reg. 75,948 (Dec. 5, 2000) and 65 Fed. Reg. 77,905 (Dec. 13, 2000); Confederated Tribes of the Chehalis Reservation, Quileute Indian Reservation, and Swinomish Tribal Community, 54 Fed. Reg. 19,959 (May 9, 1989); Confederated Tribes of the Colville Reservation, 52 Fed. Reg. 8372 (Mar. 17, 1987); Suquamish (Port Madison), 37 Fed. Reg. 7353 (Apr. 13, 1972); Quinault Indian Nation, 34 Fed. Reg. 14,288 (Aug. 30, 1969).
189. 53 Wash. 2d 789, 337 P.2d 33 (1959).
190. The state's enabling act provided: That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.... Act of Feb. 22, 1889, 25 Stat. 676 (emphasis added). It was mirrored in the state constitution. Wash. Const. art. 26.
191. Act of Aug. 15, 1953, ch. 505, § 6, 67 Stat. 590 ("Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act. ").
192. Paul, 53 Wash. 2d at 794, 337 P.2d at 37.
193. Quinault Indian Nation v. Gallagher, 368 F.2d 648, 657-58 (9th Cir. 1966). The Quinault case is interesting for the fact that a group purporting to be the tribal council requested full state jurisdiction in 1958, and the state promptly assumed jurisdiction. Almost immediately, a petition signed by sixty-eight members repudiated the original request. The Washington State Supreme Court later upheld the assumption per the original request. State v. Bertrand, 61 Wash. 2d 333, 341, 378 P.2d 427, 432 (1963). Other cases challenging Washington's mode of assumption are Makah Indian Tribe v. State, 76 Wash. 2d 485, 457 P.2d 590 (1969), Tonasket v. State, 84 Wash. 2d 164, 525 P.2d 744 (1974), and Comenout v. Burdman, 84 Wash. 2d 192, 199, 525 P.2d 217, 221 (1974). As early as 1972 there was a statewide tribal effort in Washington to obtain the retrocession of state jurisdiction under P.L. 280. See State Indian-Rights Leaders Ask Control Over Reservations, Seattle Times, Sept. 14, 1972, at A5 [hereinafter Indian-Rights Leaders Ask Control]; Leaders of 30 State Tribes Agree on Goals for Indians, Seattle Times, Sept. 16, 1972, at A11. For a detailed discussion of tribal objections to P.L. 280
194. See Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty, at 247-49, 263-64. (Carpenter, Fletcher, Riley eds., 2012) [hereinafter Searching for an Exit].
195. Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 493, 500-02 (1979), rev'g 552 F.2d 1332 (9th Cir. 1977). The panel decision was prompted by an earlier en banc remand to determine the equal protection issue. 550 F.2d 443 (9th Cir. 1977) (en banc).
196. This is a paraphrase of Wash. Rev. Code § 37.12.010 (2010). The verbatim text provides: The state of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 have been invoked, except for the following [eight areas].... For the enumerated eight areas
197. Wash. Rev. Code § 37.12.010.
198. Wash. Rev. Code § 37.12.010.
199. Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 493, 500-02 (1979), rev'g 552 F.2d 1332 (9th Cir. 1977). The panel decision was prompted by an earlier en banc remand to determine the equal protection issue. 550 F.2d 443 (9th Cir. 1977) (en banc).
200. 109 Wash. App. 244, 34 P.3d 912 (2001).
201. 109 Wash. App. at 252, 34 P.3d at 916.
202. 144 Wash. App. 945, 185 P.3d 634 (2008).
203. 144 Wash. App. at 955, 185 P.3d at 639. The court rejected state jurisdiction because "the State has not shown that the Quinault Tribe relinquished its interest in the land. " The state was not attempting a prosecution for a traffic offense, but for unlawful possession of a firearm-a crime that did not involve "operation of motor vehicles upon...[public] highways. "
204. 144 Wash. App. at 956, 185 P.3d at 639. The court distinguished Somday v. Rhay, 67 Wash. 2d 180, 184, 406 P.2d 931, 934 (1965), which upheld full state jurisdiction over a highway right-of-way running across fee simple non-Indian land. The court reasoned that because the tribe had surrendered its entire interest in the surface and subsurface, the state could rely on its blanket assertion of jurisdiction over Indians on non-Indian fee lands.
205. 173 Wash. 2d 672, 273 P.3d 434 (2012).
206. 173 Wash. at 685, 273 P.3d at 440
207. see also State v. Sohappy, 110 Wash. 2d 907, 757 P.2d 509 (1988) (holding that state did not have jurisdiction over an "in-lieu" fishing site that was created under federal law to replace Indian fishing grounds developed by construction of the Bonneville Dam). These cases could both have been decided on the alternative ground that P.L. 280's disclaimer of jurisdiction over treaty fishing rights precluded state jurisdiction. That is, assuming P.L. 280 applied in full, it does not authorize jurisdiction over Indian treaty fishing rights. 18 U.S.C. § 1162(b) (2006). Another ground for denying state jurisdiction is based on the fact that the reservation Indian country was established after 1968 when tribal consent was made a prerequisite to state assumptions of jurisdiction.
208. Cohen's Handbook of Federal Indian Law, § 18.03[2][b], at 1126-27. Any state jurisdiction over treaty hunting, fishing, or gathering activity by Indians, whether on or off-reservation, must conform to the "conservation necessity standards" set out by the U.S. Supreme Court.
209. Cohen's Handbook of Federal Indian Law, § 18.04[3][b], at 1143-46
210. Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 682 (1979).
211. 173 Wash. 2d 235, 267 P.3d 355 (2011).
212. 173 Wash. at 239, 267 P.3d at 357.
213. Pub. L. No. 90-284, §§ 402, 406, 82 Stat. 79 (1968) (codified at 25 U.S.C. §§ 1322(a), 1326 (2006)
214. see Cohen's Handbook of Federal Indian Law, § 6.04[3][f][ii], at 577-78.
215. 132 Wash. 2d 333, 343, 937 P.2d 1069, 1074 (1997).
216. Similarly, in State v. Cooper, 130 Wash. 2d 770, 928 P.2d 406 (1996), the court ruled that state jurisdiction extended to off-reservation allotments that were in existence when the nonconsensual 1963 law passed. The court stated: "We assume, without deciding, that the subsequent establishment of a new Indian reservation vitiates the pre-existing RCW 37.12.010 assumption of state jurisdiction with respect to Indian lands within the boundaries of the new reservation. " The court elaborated: "Four reservations were formed after 1968, and their membership never elected to come under state jurisdiction. The Jamestown-Klallam, Nooksack, Sauk Suiattle and Upper Skagit reservations are not subject to RCW 37.12.010. " (citing Pamela B. Loginsky, Criminal Jurisdiction Issues, in Wash. State Bar Ass'n, Continuing Legal Educ. Comm. & Indian Law Section, Perspectives on Indian Law, at 4-8 (1992). The list should also include the Stillaguamish, Cowlitz, and Snoqualmie Tribes, who were formally acknowledged after 1968, and whose reservations were similarly established after 1968. The Cowlitz Tribe does not yet have a reservation.
217. 25 U.S.C. § 715d (authorizing state jurisdiction over Coquille Tribe in Oregon-a mandatory P.L. 280 state).
218. Bryan v. Itasca Cnty., 426 U.S. 373, 392 (1976)
219. Cohen's Handbook of Federal Indian Law, § 6.04[3][f][ii], at 577-78
220. M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds, 47 Gonz. L. Rev., at 712-14 (2012) (discussing the 1957 and 1963 statutes).
221. Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 249 (2005). Part III.
222. Cohen's Handbook of Federal Indian Law, § 6.04[3][b], at 546-53 for a detailed discussion of the scope of jurisdiction granted by P.L. 280.
223. Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146 (9th Cir. 1991)
224. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 17-18 (2012) (discussing Washington jurisdictional scheme). [hereinafter Captured Justice].
225. 144 Wash. App. 945, 185 P.3d 634 (2008).
226. 157 Wash. App. 672, 238 P.3d 533 (2010).
227. State v. Yallup, 160 Wash. App. 500, 508, 248 P.3d 1095, 1099 (2011).
228. 938 F.2d 146 (9th Cir. 1991).
229. Yallup, 160 Wash. App. at 503, 248 P.3d at 1097. When a state officer wishes to conduct a search in territory where the state lacks jurisdiction under P.L. 280, the proper recourse is to obtain a warrant from the tribal court. Cf. South Dakota v. Cummings, 679 N.W.2d 484 (S.D. 2004).
230. 157 Wash. App. 672, 238 P.3d 533 (2010).
231. 157 Wash. App. at 685, 238 P.3d at 539.
232. State v. Yallup, 160 Wash. App. 500, 508, 248 P.3d 1095, 1099 (2011).
233. Wash. Rev. Code § 46.63.020 (2010). The legislature made a long list of exceptions to the rule, but did not include § 46.20.308(2)(a), which is the implied consent suspension statute.
234. Yallup, 160 Wash. App. at 506, 248 P.3d at 1098.
235. 938 F.2d 146 (9th Cir. 1991).
236. 938 F.2d 146 (9th Cir. 1991).
237. Yallup, 160 Wash. App. at 503, 248 P.3d at 1097. When a state officer wishes to conduct a search in territory where the state lacks jurisdiction under P.L. 280, the proper recourse is to obtain a warrant from the tribal court. Cf. South Dakota v. Cummings, 679 N.W.2d 484 (S.D. 2004).
238. Yallup, 160 Wash. App. at 503, 248 P.3d at 1097. When a state officer wishes to conduct a search in territory where the state lacks jurisdiction under P.L. 280, the proper recourse is to obtain a warrant from the tribal court. Cf. South Dakota v. Cummings, 679 N.W.2d 484 (S.D. 2004).
239. Prior to assumption of jurisdiction, it was clear that juvenile courts lacked jurisdiction to enter dependency and delinquency determinations involving Indian children within Indian country. See State ex rel. Adams v. Superior Court, 57 Wash. 2d 181, 356 P.2d 985 (1960). Adams was a companion case to In re Colwash, 57 Wash. 2d 196, 356 P.2d 994 (1960). After the 1963 assumption of jurisdiction, the court in Comenout v. Burdman, 84 Wash. 2d 192, 201, 525 P.2d 217, 222 (1974), upheld state jurisdiction over child dependency matters. The case was decided before the U.S. Supreme Court developed the civil/regulatory limitation on state jurisdiction in Bryan v. Itasca Cnty., 426 U.S. 373 (1976). If viewed as a civil regulatory proceeding due to the coercive effect on parental rights, jurisdiction over such matters may no longer be with the state.
240. Doe v. Mann, 415 F.3d 1038, 1058-59 (9th Cir. 2005).
241. Mann, 415 F.3d at 1059.
242. Juvenile courts have exclusive jurisdiction under Washington law over matters "[r]elating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020 through 13.40.230[.]" Wash. Rev. Code § 13.04.030(1)(e) (2010). To the extent that a juvenile has committed a traffic or civil infraction, state court jurisdiction would not exist because the state's authority is limited to criminal jurisdiction and does not include civil regulatory authority. Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146 (9th Cir. 1991).
243. 25 U.S.C. § 231 (2006). The implementing regulations at 25 C.F.R. § 273.52 (2012) refer to P.L. 280 as if it conferred similar authority, but the regulation was adopted in 1975 and thus predates the decision in Bryan v. Itasca Cnty., 426 U.S. 373, which made it clear that civil regulatory jurisdiction was not granted by P.L. 280.
244. Cohen's Handbook of Federal Indian Law, § 6.04[5][a], at 586; cf. Colwash, 57 Wash. 2d at 198-99, 356 P.2d at 996 (holding that state jurisdiction over truancy matters under 25 U.S.C. § 231 would not extend to dependency proceeding).
245. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 17-18 (2012) (discussing Washington's jurisdictional scheme).
246. see also M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 698-701 (2012) (discussing the 1957 and 1963 statutes).
247. Quinault Indian Nation v. Gallagher, 368 F.2d 648, 657-58 (9th Cir. 1966).
248. David Suffia, Indian Leader Says Meeds Lied About Effects of Policing, Seattle Times, May 31, 1978, at G7. Mr. Tonasket was also the Chairman of the Confederated Tribes of the Colville Reservation.
249. 1 Am. Indian Policy Review Comm'n, Final Report to Congress, 205-06 (1977) (discussing events leading to a draft retrocession bill introduced in 1975 by Senator Henry Jackson).
250. United States v. Lawrence, 595 F.2d 1149, 1151 (9th Cir. 1979).
251. Indian Civil Rights Act of 1968, Pub. L. No. 90-284, § 403, 82 Stat. 79 (codified at 25 U.S.C. § 1323 (2006).
252. Exec. Order No. 11,435, 33 Fed. Reg. 17,339 (Nov. 23, 1968).
253. See Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty, at 265-66. (Carpenter, Fletcher, Riley eds., 2012) [hereinafter Searching for an Exit].
254. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 166 (2012) (discussing Washington's jurisdictional scheme). There are 170 tribes in the lower forty-eight states that are subject to state authority under P.L. 280. Carole Goldberg & Duane Champagne, Native Nation Law & Policy Ctr., Final Report: Law Enforcement and Criminal Justice Under Public Law 280, at 9-11 (2007) [hereinafter Final Report], available at http://cdn.law.ucla.edu/SiteCollectionDocuments/ centers%20and%20programs/native%20nations/pl280%20study.pdf. The Federal Register announcements accepting retrocession are as follows: (1) full civil and criminal jurisdiction: fifteen Nevada tribes, 40 Fed. Reg. 27,501 (June 30, 1975)
255. Ely Indian Colony, 53 Fed. Reg. 5837 (Feb. 26, 1988); Menominee, 41 Fed. Reg. 8516 (Feb. 27, 1976); Burns Paiute, 44 Fed. Reg. 26,169 (May 4, 1979)
256. Omaha, 35 Fed. Reg. 16,598 (Oct. 16, 1970); Santee Sioux, 71 Fed. Reg. 7994 (Feb. 15, 2006); (2) criminal retrocession only: Umatilla, 46 Fed. Reg. 2195 (Jan. 8, 1981), Winnebago, 51 Fed. Reg. 24,234 (July 2, 1986)
257. Bois Forte Band of Chippewa, 40 Fed. Reg. 4026 (Jan. 27, 1975)
258. and (3) partial criminal retrocession: Confederated Salish and Kootenai Tribes, 60 Fed. Reg. 33,318 (June 27, 1995)
259. The Muckleshoot, Squaxin Island, Skokomish, and Nisqually Indian tribes remain subject to full state jurisdiction. The seven tribes who achieved limited retrocession are: Tulalip Tribes, 65 Fed. Reg. 75,948 (Dec. 5, 2000) and 65 Fed. Reg. 77,905 (Dec. 13, 2000); Confederated Tribes of the Chehalis Reservation, Quileute Indian Reservation, and Swinomish Tribal Community, 54 Fed. Reg. 19,959 (May 9, 1989); Confederated Tribes of the Colville Reservation, 52 Fed. Reg. 8372 (Mar. 17, 1987); Suquamish (Port Madison), 37 Fed. Reg. 7353 (Apr. 13, 1972); Quinault Indian Nation, 34 Fed. Reg. 14,288 (Aug. 30, 1969).
260. The current statute, Wash. Rev. Code § 37.12.120 (2010), provides: Whenever the governor receives from the confederated tribes of the Colville reservation or the Quileute, Chehalis, Swinomish, Skokomish, Muckleshoot, or Tulalip tribe a resolution expressing their desire for the retrocession by the state of all or any measure of the criminal jurisdiction acquired by the state pursuant to RCW 37.12.021 over lands of that tribe's reservation, the governor may, within ninety days, issue a proclamation retroceding to the United States the criminal jurisdiction previously acquired by the state over such reservation. However, the state of Washington shall retain jurisdiction as provided in RCW 37.12.010. The proclamation of retrocession shall not become effective until it is accepted by an officer of the United States government in accordance with 25 U.S.C. Sec. 1323 (82 Stat. 78, 79) and in accordance with procedures established by the United States for acceptance of such retrocession of jurisdiction. The Colville tribes and the Quileute, Chehalis, Swinomish, Skokomish, Muckleshoot, and Tulalip tribes shall not exercise criminal or civil jurisdiction over non-Indians.
261. The Muckleshoot, Squaxin Island, Skokomish, and Nisqually Indian tribes remain subject to full state jurisdiction. The seven tribes who achieved limited retrocession are: Tulalip Tribes, 65 Fed. Reg. 75,948 (Dec. 5, 2000) and 65 Fed. Reg. 77,905 (Dec. 13, 2000); Confederated Tribes of the Chehalis Reservation, Quileute Indian Reservation, and Swinomish Tribal Community, 54 Fed. Reg. 19,959 (May 9, 1989); Confederated Tribes of the Colville Reservation, 52 Fed. Reg. 8372 (Mar. 17, 1987); Suquamish (Port Madison), 37 Fed. Reg. 7353 (Apr. 13, 1972); Quinault Indian Nation, 34 Fed. Reg. 14,288 (Aug. 30, 1969).
262. H.B. 1773, 62d Leg., Reg. Sess. (Wash. 2011).
263. H.B. 1773, 62d Leg., Reg. Sess. (Wash. 2011). § 3.
264. H.B. 1773, 62d Leg., Reg. Sess. (Wash. 2011). § 4.
265. See Exec. Order No. 11,435, 33 Fed. Reg. 17,339 (Nov. 23, 1968).
266. H.B. 1773, H. Amd. 343, 62d Leg., Reg. Sess. (Wash. 2011).
267. See Final B. Rep., E.S.H.B. 2233, 62d Leg., Reg. Sess., at 3 (Wash. 2012). For information about the task force see http://www.leg.wa.gov/jointcommittees/JELWGTR/Pages/default.aspx. The Task Force included the author of this Article and Professor Douglas Nash of Seattle University School of Law as academic advisors.
268. Letter from Christine O. Gregoire, Frank Chopp & Lisa Brown to Eric Johnson, Exec. Dir., Wash. State Ass'n of Cntys., (May 26, 2011) (on file with Washington Law Review).
269. Joint Executive-Legislative Workgroup on Tribal Retrocession, Wash. State Legislature, http://www.leg.wa.gov/JointCommittees/JELWGTR/Documents/2011-11-16/ Agenda.pdf (Nov. 16, 2011). The agendas for all four meetings reveal the wide array of witnesses who assisted the Task Force. Wash. State Legislature.
270. H.B. 2233, 62d Leg., Reg. Sess. (Wash. 2012).
271. S.B. 6417, 62d Leg., Reg. Sess. (Wash. 2012).
272. Final B. Rep., E.S.H.B. 2233, 62d Leg., Reg. Sess., at 5 (Wash. 2012).
273. E.S.H.B. 2233, 62d Leg., Reg. Sess., at 5 (Wash. 2012) (codified at Wash. Rev. Code §§ 37.12.160-.180 (2012).
274. Wash. Rev. Code § 37.12.160(1).
275. Wash. Rev. Code § 37.12.160(2) ("The resolution must express the desire of the tribe for the retrocession by the state of all or any measures or provisions of the civil and/or criminal jurisdiction acquired by the state under this chapter over the Indian country and the members of such Indian tribe. Before a tribe submits a retrocession resolution to the governor, the tribe and affected municipalities are encouraged to collaborate in the adoption of interlocal agreements, or other collaborative arrangements, with the goal of ensuring that the best interests of the tribe and the surrounding communities are served by the retrocession process. ").
276. Wash. Rev. Code § 37.12.160(3).
277. Wash. Rev. Code § 37.12.160(4).
278. Wash. Rev. Code § 37.12.160(5).
279. Wash. Rev. Code § 37.12.160(6).
280. Wash. Rev. Code § 37.12.160(8). This section was the last amendment to the bill. An earlier Senate amendment would have required the Governor (and in some cases other state agencies) to certify that actions and agreements on the foregoing matters (including inter-local agreements) were actually in place. E.S.H.B. 2233, S. Amd. 153, 62d Leg., Reg. Sess. (Wash. 2012). The House refused to concur in the Senate version and a Senate substitute bill was passed to provide that the Governor should simply consider the issues in making her decision on a retrocession proclamation. E.S.H.B. 2233, S. Amd. 282, 62d Leg., Reg. Sess. (Wash. 2012). This version passed the Senate on March 5, 2012 and the House concurred on March 6, 2012. H.B. Rep. E.S.H.B. 2233, 62d Leg., Reg. Sess., at 1 (Wash. 2012).
281. Wash. Rev. Code § 37.12.170(1).
282. Wash. Rev. Code § 37.12.170(2).
283. Wash. Rev. Code § 37.12.180. The preexisting partial retrocession is available for the two tribes that have not utilized the partial retrocession process-Skokomish and Muckleshoot.
284. Wash. Rev. Code § 37.12.100. Curiously, that statute does not extend to the other two tribes that requested full P.L. 280 jurisdiction under the 1957 statute: Squaxin Island and Nisqually.
285. Wash. Rev. Code § 37.12.180. The preexisting partial retrocession is available for the two tribes that have not utilized the partial retrocession process-Skokomish and Muckleshoot.
286. Wash. Rev. Code § 37.12.100. Curiously, that statute does not extend to the other two tribes that requested full P.L. 280 jurisdiction under the 1957 statute: Squaxin Island and Nisqually.
287. Wash. Rev. Code § 37.12.160(2) ("Before a tribe submits a retrocession resolution to the governor, the tribe and affected municipalities are encouraged to collaborate in the adoption of interlocal agreements, or other collaborative arrangements, with the goal of ensuring that the best interests of the tribe and the surrounding communities are served by the retrocession process. ")
288. Wash. Rev. Code § 37.12.160(8) (recommending state and local input regarding "the operation of motor vehicles upon the public streets, alleys, roads, and highways" after retrocession).
289. Tribal Law and Order Act of 2010, Pub. L. No. 111-211, § 202(a)(4), 124 Stat. 2262.
290. For a discussion of the factors bearing on whether an individual is an Indian for federal jurisdictional purposes, see United States v. Bruce, 394 F.3d 1215, 1223-27 (9th Cir. 2005)
291. Bethany R. Berger, "Power Over this Unfortunate Race": Race, Politics and Indian Law in United States v. Rogers, 45 Wm. & Mary L. Rev 1957 (2004).
292. 18 U.S.C. § 1153 (2006).
293. 18 U.S.C. § 1152.
294. United States v. McBratney, 104 U.S. 621 (1881).
295. See United States v. Begay, 42 F.3d 486, 499 (9th Cir. 1994) (holding that the federal conspiracy statute, 18 U.S.C. § 371, "is a federal criminal statute of nationwide applicability, and therefore applies equally to everyone everywhere within the United States, including Indians in Indian country").
296. Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 249 (2005). Part III.
297. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 166 (2012) (discussing Washington's jurisdictional scheme). There are 170 tribes in the lower forty-eight states that are subject to state authority under P.L. 280. Carole Goldberg & Duane Champagne, Native Nation Law & Policy Ctr., Final Report: Law Enforcement and Criminal Justice Under Public Law 280, at 9-11 (2007) [hereinafter Final Report], available at http://cdn.law.ucla.edu/SiteCollectionDocuments/ centers%20and%20programs/native%20nations/pl280%20study.pdf. The Federal Register announcements accepting retrocession are as follows: (1) full civil and criminal jurisdiction: fifteen Nevada tribes, 40 Fed. Reg. 27,501 (June 30, 1975)
298. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.... ")
299. Wash. Const. art. I, § 1 ("All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. ")
300. The approach originally advanced would be better as it would put the Washington tribes in control of whether and how much jurisdiction should be retroceded by the state, albeit subject to the discretion of the Secretary of the Interior to accept or reject the proffered retrocession.
301. See Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty, at 264-68. (Carpenter, Fletcher, Riley eds., 2012) [hereinafter Searching for an Exit].
302. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 168 (2012) [hereinafter Captured Justice].
303. See Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty, at 266. (Carpenter, Fletcher, Riley eds., 2012) [hereinafter Searching for an Exit].
304. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 16-70 (2012) [hereinafter Captured Justice].
305. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 171 (2012) [hereinafter Captured Justice].
306. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 172-74 (2012) [hereinafter Captured Justice].
307. see Gabriela Stern, Senators Give Winnebagos Jurisdiction, Omaha WorldHerald, Jan. 17, 1986 (recounting rancor and racism is the legislative effort to retrocede jurisdiction). The headline from the Omaha World-Herald is premised on the common misconception that retrocession of state jurisdiction bestows additional governmental powers on affected tribes. It does not. Rather, it simply removes concurrent state jurisdiction.
308. Control of Civil Matters Called Next Logical Step, Omaha World-Herald, July 21, 1985. The article quotes one opponent: 'With civil retrocession, they would have the rule of the land,' Freese said. 'For example, they could put a $500,000 tax on a tavern business, and you either pay it or you go out of business. They could tax white-owned real estate. It could completely ruin the value of real estate.' Id. The statement is absolutely incorrect as a matter of law. Tribal authority to tax non-members and their property is governed by a federal common law test unaffected by the application of P.L. 280.
309. See Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (striking down Navajo Nation's tax on non-Indian fee simple property).
310. Wash. Rev. Code § 37.12.160(4) (2012). There is no guarantee that a Governor will grant a given retrocession petition, but one should expect good faith efforts to reach an accord.
311. Wash. Rev. Code § 37.12.160(4) (2012). There is no guarantee that a Governor will grant a given retrocession petition, but one should expect good faith efforts to reach an accord.
312. see also M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 721 (2012) (discussing the 1957 and 1963 statutes).
313. see also M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 721 (2012) (discussing the 1957 and 1963 statutes).
314. Nevada is the only state to offer unconditional retrocession to any tribe that had not consented to state jurisdiction. Nev. Rev. Stat. § 41.430 (2011)
315. Duane Champagne & Carole Goldberg, Captured Justice: Native Nations and Public Law 280, at 184-87 (2012) (discussing Nevada's retrocession scheme in general and problems encountered by the Ely Colony); Acceptance of Offer to Retrocede Jurisdiction, 40 Fed. Reg. 27,501 (June 24, 1975).
316. H.B. 1773, H. Amd. 343, 62d. Leg., Reg. Sess. (Wash. 2011).
317. There was little (if any) overt opposition to the retrocession as the Task Force worked through the various issues. More typical were concerns expressed by the Washington State Association of Counties and the Kitsap County Prosecuting Attorney's Office. Both were interested in ensuring efficient and coordinated service and law enforcement delivery after any retrocession. Memorandum from Russell D. Hauge, Kitsap Prosecuting Attorney, to Sarah Lambert, Legislative Assistant, Tribal Retrocession Work Group (Nov. 2, 2011) (on file with Washington Law Review); Letter from Wash. State Ass'n of Cntys. to Representative McCoy and Retrocession Work Group (Oct. 10, 2011) (on file with Washington Law Review).
318. See Tassie Hanna, Sam Deloria & Charles E. Trimble, The Commission on State-Tribal Relations: Enduring Lessons in the Modern State-Tribal Relationship, 47 Tulsa L. Rev. 553, 592 (2012) (discussing the virtues of intergovernmental cooperation).
319. Compare E.S.H.B. 2233, S. Amd. 2233-S. E AMS ENGR S4848. E § 1(8) (passed Senate on Feb. 28, 2012), with E.S.H.B. 2233, S. Amd. 282, 2233-S. E AMS PRID S5296.1 § 1(8) (passed Senate on Mar. 5, 2012). The engrossed Senate Bill of Feb. 28, 2012 contained the mandatory certification language, which was rejected by the House and followed by the "striker" language of March 5, 2012. A complete history of the bill's amendments can be found at http://dlr.leg.wa.gov/billsummary/default.aspx?bill=2233&year=2011.
320. If state agencies and local entities were left completely out of the process, they could be expected to weigh in with their opposition at the stage when the Secretary of the Interior deliberates whether to accept the retrocession petition. Cf. Letter from Russell D. Hauge, Kitsap Prosecuting Attorney, to Governor Christine Gregoire (Sept. 14, 2012) (on file with Washington Law Review) (suggesting that the U.S. Attorney would not have adequate resources to prosecute non-Indians if state authority over non-Indian versus Indian crimes were no longer subject to state authority).
321. David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 Rev. Const. Stud. 120, 143 (1993). Dean Getches also canvassed other federal efforts to encourage tribal-state compacting over jurisdictional matters.
322. Cohen's Handbook of Federal Indian Law, § 6.05, at 589.
323. Frank R. Pommersheim, Tribal-State Relations: Hope for the Future, 36 S.D. L. Rev. 239, 276 (1991)
324. see also Robert T. Anderson, Indian Water Rights, Practical Reasoning and Negotiated Settlements, 98 Cal. L. Rev. 1133, 1134 (2010) (discussing how uncertainty in the water rights area "has created an environment in which creative, practical solutions to conflicts have emerged in the Indian water settlements approved by Congress")
325. P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 Ga. L. Rev. 365, 373 (1994) ("Tribal-state negotiations can be comprehensive, instead of piecemeal, as is inherent in case-by-case litigation. ").
326. See Tassie Hanna, Sam Deloria & Charles E. Trimble, The Commission on State-Tribal Relations: Enduring Lessons in the Modern State-Tribal Relationship, 47 Tulsa L. Rev. 553, 592 (2012) (discussing the virtues of intergovernmental cooperation).
327. This Article provides a comprehensive history of the efforts in the modern era to reach cooperative agreements in a wide variety of areas of concern to tribes and local non-Indian governments.
328. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.... ")
329. Wash. Const. art. I, § 1 ("All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. ")
330. U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).
331. H.R. Doc. No. 91-363, at 2 (1970).
332. Pub. L. No. 93-638, 88 Stat. 2203 (1975) (codified as amended in 25 U.S.C. §§ 450-450n, §§ 455-458e (2006).
333. Cohen's Handbook of Federal Indian Law, § 22.02, at 1346-49.
334. Indian Self-Determination Amendments of 1987, Pub. L. No. 100-472, 102 Stat. 2285 (1988).
335. Indian Self-Determination Act Amendments of 1994, Pub. L. No. 103-413, 108 Stat. 4250.
336. Omnibus Indian Advancement Act, Pub. L. No. 106-568, 114 Stat. 2868 (2000).
337. 25 U.S.C. §§ 458aa-458aaa-18.
338. See, e.g., Native American Business Development, Trade Promotion, and Tourism Act of 2000, P.L. 106-464, 114 Stat. 2012 (codified at 25 U.S.C. § 4301(6) ("[T]he United States has an obligation to guard and preserve the sovereignty of Indian tribes in order to foster strong tribal governments, Indian self-determination, and economic self-sufficiency among Indian tribes. "); Exec. Order No. 13,175, 65 Fed. Reg. 67249 (Nov. 6, 2000) (affirming the federal trust responsibility to Indian tribes). An exhaustive discussion of federal programs supporting tribal selfgovernment and economic development can be found in Cohen's Handbook of Federal Indian Law, § 22, at 1335-1413.
339. See Cohen's Handbook of Federal Indian Law, § 102[1], at 16-17.
340. Cohen's Handbook of Federal Indian Law § 1.03[6][a], at 64-65.
341. Compare United States v. Kagama, 118 U.S. 375 (1886) (rejecting the Constitution's Indian Commerce Clause as a basis for federal jurisdiction over criminal jurisdiction in Indian country), with United States v. Lara, 541 U.S. 193, 201 (2004) ("Congress' legislative authority would rest in part, not upon 'affirmative grants of the Constitution,' but upon the Constitution's adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as 'necessary concomitants of nationality.'").
342. See Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 406-17 (1993).
343. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.... "), the consent principle is foundational to federal, state, and international law.
344. Wash. Const. art. I, § 1 ("All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. ")
345. See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (upholding unilateral abrogation of Indian treaty despite promise that it would not be changed without the consent of three-fourths of adult male Indians).
346. In Seminole Nation v. United States, 316 U.S. 286, 297 (1942), the Supreme Court concluded that the United States "has charged itself with moral obligations of the highest responsibility and trust. "
347. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
348. Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L. Rev. 779, 782 (2006). Professor Washburn was confirmed by the Senate as the Assistant Secretary of Indian Affairs on September 21, 2012. 158 Cong. Rec. S6685 (daily ed. Sept. 21, 2012); Press Release, Dept. of Interior, Salazar Applauds Senate Confirmation of Kevin Washburn as Interior's Assistant Secretary for Indian Affairs (Sept. 22, 2012), available at http://www.doi.gov/ news/pressreleases/Salazar-Applauds-Senate-Confirmation-of-Kevin-Washburn-as-Interiors-Assistant-Secretary-for-Indian-Affairs.cfm.
349. Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L. Rev. at 853 (2006). Professor Washburn was confirmed by the Senate as the Assistant Secretary of Indian Affairs on September 21, 2012. 158 Cong. Rec. S6685 (daily ed. Sept. 21, 2012); Press Release, Dept. of Interior, Salazar Applauds Senate Confirmation of Kevin Washburn as Interior's Assistant Secretary for Indian Affairs (Sept. 22, 2012), available at http://www.doi.gov/ news/pressreleases/Salazar-Applauds-Senate-Confirmation-of-Kevin-Washburn-as-Interiors-Assistant-Secretary-for-Indian-Affairs.cfm.
350. Indian Law Enforcement Improvement Act of 1975, S. 2010, 94th Cong. (1975).
351. Indian Law Enforcement Improvement Act of 1975, S. 2010, 94th Cong. (1975). § 103(c).
352. Tribal Law and Order Act of 2010, Pub. L. No. 111-211, § 234(a), 124 Stat. 2279 (relevant portions codified at 25 U.S.C. §§ 1302 (a)(7), (b) (Supp. IV 2010). Tribes are permitted to stack sentences for separate offenses up to a total of nine years and $15,000 in fines. Indian Civil Rights Act, Pub. L. No. 90-284.
353. 18 U.S.C. § 1162(d) (2006)
354. Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 (2006) and 28 U.S.C. § 1360 (2006).
355. 25 U.S.C. § 2810(d) (2006); 28 U.S.C. § 543 (2006).
356. Professors Goldberg and Champagne are two of the leading authorities on P.L. 280 and authors of the only empirical study on the effects of P.L. 280. Final Report
357. Exec. Order No. 11,435, 33 Fed. Reg. 17,339 (Nov. 23, 1968).
358. See Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty, at 268-69. (Carpenter, Fletcher, Riley eds., 2012) [hereinafter Searching for an Exit].
359. The ICWA of 1978 provides substantive and procedural protection for the benefit of Indian tribes and Indian families. Chief among these are provisions mandating the transfer of child custody proceedings from state to tribal courts at the request of a tribe or Indian custodian. 25 U.S.C. § 1911 (2006)
360. see Miss. Band of Choctaw v. Holyfield, 490 U.S. 30 (1989).
361. 25 U.S.C. § 1918 ("Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by Title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction. "). Implementing regulations are found at 25 C.F.R. pt. 13 (2012).
362. 25 U.S.C. § 1918(c) ("If the Secretary disapproves any petition under subsection (a) of this section, the Secretary shall provide such technical assistance as may be necessary to enable the tribe to correct any deficiency which the Secretary identified as a cause for disapproval. ").
363. 25 U.S.C. § 1918(b)(1) ("[T]he Secretary may consider, among other things: (i) whether or not the tribe maintains a membership roll or alternative provision for clearly identifying the persons who will be affected by the reassumption of jurisdiction by the tribe; (ii) the size of the reservation or former reservation area which will be affected by retrocession and reassumption of jurisdiction by the tribe; (iii) the population base of the tribe, or distribution of the population in homogeneous communities or geographic areas; and (iv) the feasibility of the plan in cases of multitribal occupation of a single reservation or geographic area. ").
364. Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified as amended at 25 U.S.C. §§ 2701-21).
365. 25 U.S.C. § 2710(d)(1). Casino style gaming is defined as "class III gaming" in IGRA. See 25 U.S.C. § 2703.
366. 25 U.S.C. § 2710(d).
367. 25 U.S.C. § 2710(d)(7)
368. 25 C.F.R. §§ 291.7-.11; Final Rule, Class III Gaming Procedures, 65 Fed. Reg. 17,535, 17,536 (Apr. 12, 1999) (explaining process).
369. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996) (holding that judicial supervision aspect may be barred by state sovereign immunity because Congress lacks power to waive state immunity pursuant to the Commerce Clause). A regulatory avenue was developed in response to the Supreme Court's ruling. 25 C.F.R. pt. 291.
370. See Kevin K. Washburn, How a $147 County Tax Notice Helped Bring Tribes More Than $200 Billion in Indian Gaming Revenue: The Story of Bryan v. Itasca County, in Indian Law Stories 421(Carole Goldberg et al. eds., 2011). ("Indian gaming is simply the most successful economic venture ever to occur consistently across a wide range of Indian reservations. ")., at 422
371. 25 U.S.C. § 2710(d)(3)(C).
372. 25 U.S.C. § 2710(d)(4).
373. 25 U.S.C. § 2710(d)(3)(C)(i)-(ii).
374. 18 U.S.C. § 1166(d) (2006) ("The United States shall have exclusive jurisdiction over criminal prosecutions of violations of State gambling laws that are made applicable under this section to Indian country, unless an Indian tribe pursuant to a Tribal-State compact approved by the Secretary of the Interior under section 11(d)(8) of the Indian Gaming Regulatory Act, or under any other provision of Federal law, has consented to the transfer to the State of criminal jurisdiction with respect to gambling on the lands of the Indian tribe. ").
375. See, e.g., Tribal-State Compact for Class III Gaming Between the Snoqualmie Indian Tribe and the State of Washington, § 9, Wash.-Snoqualmie Tribe, Apr. 4, 2002, available at http://www.nigc.gov/Portals/0/NIGC%20Uploads/readingroom/compacts/Snoqualime%20Indian%2 0Tribe/snoqualmiecomp040402.pdf. All Tribal-State compacts are available from the National Indian Gaming Commission at http://www.nigc.gov/Reading_Room/Compacts.aspx. Washington also has a progressive tribal cross-deputization statute. Wash. Rev. Code § 10.92.020 (2010)
376. See Wash. Rev. Code § 10.92.020 (2010). The Washington State statute provides that: Tribal police officers under subsection (2) of this section shall be recognized and authorized to act as general authority Washington peace officers. A tribal police officer recognized and authorized to act as a general authority Washington peace officer under this section has the same powers as any other general authority Washington peace officer to enforce state laws in Washington, including the power to make arrests for violations of state laws.
377. 435 U.S. 191 (1978).
378. 435 U.S. (1978) at 210-11. For a critical analysis of the historical record relied upon by the Court, see Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 Minn. L. Rev. 609 (1979).
379. See Kevin K. Washburn, American Indians, Crime, and the Law, 104 Mich. L. Rev., at 713-15 (2006) (giving an insightful and descriptive critique of the adverse effects of federal policies in the criminal justice area). Tribal sentencing authority was limited to six months in jail and a $500 fine per offense, Pub. L. No. 90-284, § 202(7), 82 Stat. 77 (1968), and now stands at one year in jail and a $10,000 fine, with the option to increase the penalties to three years per offense with a $15,000 fine, provided certain conditions are met. 25 U.S.C. § 1302 (2006).
380. S. Comm. on the Interior & Insular Affairs, 94th Cong., Background Rep. on Public Law 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).