Cost of Tribal Crime Has Montana County Struggling

HELENA, Mont. (CN) – A federal law enacted more than 60 years ago as part of a push to assimilate Indian reservations in the United States has forced states and counties to pay millions to prosecute crimes committed by Native Americans, but states are finally starting to push back against the law.

In 1953, President Dwight Eisenhower signed the bill that enacted Public Law 280 – a federal law meant to help control crime on Indian reservations. Public Law 280 handed over to several states criminal and civil jurisdiction in Indian country. Six states were compelled to enter into the agreement: California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska. There were 10 non-mandatory states that later opted in to Public Law 280: Nevada, Florida, Idaho, Iowa, Washington state, South Dakota, Montana, North Dakota, Arizona and Utah.

But as tribes have grown and costs of criminal prosecution have increased, states and counties under Public Law 280 want financial help – or they want out of the agreement.

A Montana legislator recently introduced a bill that would force the state to reimburse counties for their criminal prosecution costs under Public Law 280. But last week, the state House voted 100-0 to reject the bill, saying that the state had no line-item budget to cover those costs.

The bill’s sponsor, Greg Hertz, R-Polson, said the bill’s intent was to draw attention to the fact that the federal government imposes a financial burden on states and counties that participate in the Public Law 280 program.

The Flathead Indian Reservation is in Lake County, and the reservation contributes to what county officials call an overburdened justice system to prosecute felony tribal crimes. The county and Confederated Salish and Kootenai Tribes have had a good working relationship in co-managing crime under Public Law 280, but the county says it cannot afford to pay for what amounts to a small portion of the population committing most of the felonies.

The tribal members make up about 20 percent of Lake County’s population, but account for roughly 80 percent of the felonies committed there, county commissioner and former county sheriff Bill Barron said. The county, with a population of about 22,000, processes about 500 felonies a year – far higher than other counties in Montana with larger populations.

When Montana entered into the agreement under Public Law 280 decades ago, Lake County could afford to pay for prosecution and incarceration of Native American criminals. That’s changed, as the reservation enrollment has grown to about 7,000 people and the county is facing an overburdened jail that must be rebuilt, Lake County deputy attorney Wally Congdon said.

Under Public Law 280 the agreement is between the states and the federal government. But it rests on the counties’ shoulders to pay for the law enforcement costs. In Lake County, those costs are over $2 million, the county attorney’s office said.

Some states were able to retrocede from the law, or give back management of misdemeanor crimes to the individual tribes.

National Trend Against Public Law 280

Carole Goldberg, a professor of law at UCLA, is one of the preeminent authorities on Public Law 280. She said more states and counties are trying to roll back their Public Law 280 agreements with the federal government.

“Certainly the recession of 2008 increased states’ interest in divesting themselves of Public Law 280 jurisdiction, as the law was an unfunded federal mandate and states and counties are unable to generate property tax revenue from trust lands,” Goldberg, who co-wrote the book “Captured Justice: Native Nations and Public Law 280,” said in an interview.

Although state jurisdiction of crime was imposed without tribal consent, Congress has since 1968 barred states’ extension of Public Law 280 without tribal consent.

No tribe has given its consent since that date, Goldberg said, and state retrocessions have occurred in Oregon, Washington, and Nevada. Goldberg said a few years ago, Washington state passed a law obligating it to act upon tribal requests for retrocession, and since that time the Yakama Nation has pursued retrocession.

“As the Washington law demonstrates, Public Law 280 is in retreat,” Goldberg, a Jonathan D. Varat Distinguished Professor of Law at UCLA, said.

In 1965, the Confederated Salish and Kootenai Tribes wanted to discontinue the arrangement, but the Bureau of Indian Affairs declined their request, according to the Lake County attorney’s office. In 1994, Montana declined to have the county handle misdemeanor crimes, so the tribal government handles that on the Flathead Indian Reservation.

Lake County is the only county in Montana to have jurisdiction over tribal members for felony crimes and youths in need of care.

“The feds get the benefit of the bargain, but the local taxpayers are footing the bill,” Congdon said.

Cost is the driving force for Lake County to get out of Public Law 280. Commissioner Barron said the county decided to pursue having Montana abandon the arrangement as it began losing tax revenue in 2015, when the Confederated Salish and Kootenai Tribes purchased Kerr Dam, a major hydroelectric facility on the Flathead River. The county lost about $2 million in state tax revenue when the tribes – who do not pay property taxes – purchased the dam.

When the law was enacted, “it was a huge benefit to everybody,” Barron said. “We would love to keep doing it but we can’t do it without help.”

History of the Law

Public Law 280 had another goal in mind other than trying to control crime on Indian reservations, some experts claim. The law was designed to begin the dismantling of Indian reservations, according to research at the University of Alaska Fairbanks.

The university’s research says Public Law 280 was enacted during what was called “the termination era” of Indian management, when Congress began to adopt policies designed to terminate federal obligations to Native American tribes. Congress used three tools to accomplish this, according to the university: a relocation program under the Bureau of Indian Affairs, termination of some tribes and extending state jurisdiction over crime through Public Law 280.

Before Public Law 280, criminal matters were dealt with by tribal or federal law enforcement.

The federal Tribal Law and Order Act of 2010 provided for tribes in Public Law 280 jurisdictions to request concurrent federal jurisdiction on top of the state jurisdiction, out of concern that states under Public Law 280 were not fulfilling their obligations to respond to criminal justice needs on reservations, Goldberg said.

The Indian Law and Order Commission, on which Goldberg has served, recommended to Congress and President Barack Obama that tribes be given the power to opt out of Public Law 280 jurisdiction unilaterally and reinstate federal jurisdiction over tribal crimes. Although tribes in Public Law 280 states have not been provided with funds from the Bureau of Indian Affairs to develop their law enforcement and criminal justice systems, many tribes in Public Law 280 jurisdictions have been finding ways to introduce their own police departments and courts, Goldberg said. She said the tribes are using funds from the Department of Justice, revenue from economic development such as gaming, and cooperative agreements with states.

Retrocession for states from Public Law 280 was first made possible through the Indian Civil Rights Act of 1968, but only at the request of the state. And the federal government is not obliged to accept the retrocession, Goldberg said. Tribes are unable to ask for retrocession of state criminal jurisdiction on their own.

If a state is able to discontinue its agreement with the federal government over felony tribal crimes, those crimes would be handled by the FBI or Bureau of Indian Affairs and litigated in federal rather than state courts.

Local Control

Other than the financial constraints of crime control, Commissioner Barron said the current program works well, because crimes that would otherwise be prosecuted by the federal government are handled locally.

Felony convicts – tribal and nontribal – are housed in the Montana State Prison rather a federal facility. This gives inmates’ families the chance to visit with them and be part of any rehabilitation effort, Barron said. “We have the ability to keep family members together for treatment,” he said.

However, Congdon said the federal law is a “most drastic example” of an unfunded mandate that the federal government has imposed on states.

The county has had to increase the number of mills used to levy taxes in the county, “but we can’t keep doing that,” Barron said.

The county needs a new jail to house 225 inmates, but could build a jail half that size if it didn’t have to house tribal inmates, Barron said.

The loss of the tax revenue has also hurt local schools, county superintendent of schools Carolyn Hall said.

“Those taxpayers are shouldering more and more of that need on our schools,” Hall said.

Local taxpayers have seen a 24 percent increase in taxes since the dam purchase, she said.

In Montana, Lake County attorney Steve Eschenbacher said local control does help with rehabilitation. He said he is able to arrange plea deals with felons to keep them closer to families and treatment options. He said the crimes are mainly felony DUIs, drugs and domestic violence.

Tribal felonies on the Flathead Indian Reservation have doubled since 2014 to about 490 in 2016, Eschenbacher said.