PABLO — At the Confederated Salish and Kootenai Tribes (CSKT) Winter Quarterly Meeting, CSKT Deputy Executive Officer Jordan Thompson and Lynsey Gaudioso from the CSKT Legal Department updated Tribal Council on the current state of Public Law 280, as well as other important information regarding the policy and its history.
Last month, the Lake County Commission unanimously passed a resolution to withdraw from Public Law 83-280 (also known as Public Law 280 or PL 280). It is unclear what effects this may have for those living on the Flathead Reservation, but it could lead to a change in how policing is carried out within the region.
PL 280 is a holdover from the Termination Era, an era of US history when the federal government sought to terminate the special trustee relationship between tribal nations and the US, reversing policies from the Self-Government Era.
According to Gaudioso, PL 280 did two things. First, it gave mandatory jurisdiction on reservations to the state in six states — Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin — known as the mandatory PL 280 states.
It also allowed other states to opt in to replace the federal government, which Montana would do in 1963, when Montana enacted a law, establishing “criminal jurisdiction over Indians and Indian territory of the Flathead Indian reservation and country within the state[.]”
At this time, tribal consent was not required for a state to opt in. In 1968, it was amended to become voluntary. CSKT opted in voluntarily, which is rare, and it is the only Tribal Nation in Montana to do so.
In 1993, CSKT retroceded from the State’s misdemeanor jurisdiction, giving CSKT exclusive misdemeanor jurisdiction over tribal members (both from CSKT and other tribes) on the Flathead Reservation. Jurisdiction over tribal members who commit a felony is shared with the state and prosecuted by the appropriate county.
The Lake County commissioners passed a resolution of intent to withdraw from PL 280 in 2016, citing the high cost of maintaining PL 280 as the reason. The following year, legislation was introduced to reimburse Lake County for PL 280 costs, under the assertion that Lake County would otherwise fully retrocede from PL 280. The bill failed and PL 280 remained in place.
The same year, CSKT introduced its own bill that would allow permit CSKT to “withdraw consent to be subject to the criminal jurisdiction of the state of Montana.” It was passed in the Montana State legislature and signed by Governor Bullock on May 19, 2017.
Unable to receive the reimbursement for PL 280 costs that the Lake County Commission sought from the state, Lake County is currently initiating three different efforts to try to get paid for its Public Law 280 costs said Thompson. These include litigation and withdrawal from enforcing PL 280.
“My understanding is Lake County hasn't found any solutions for its proclaimed funding issues,” said Thompson.
Lake County filed a lawsuit against the state in Lake County District court in July 2022, declaring that the state is obligated to cover the costs of law enforcement and implementation of PL 280. “The lawsuit is really about funding and whether the state has to refund Lake Country for 280 costs,” said Gaudioso.
In December of last year, a resolution of intent to withdraw was passed by Lake County. On January 3rd, Lake County passed a final resolution to withdraw that would go into effect May 2023.
“The commissioners have stated that they would prefer for the state to fund them, and they said at that meeting on Tuesday [Jan. 3] that the reason they changed the effective date to May is to allow for the state legislature to possibly pass a bill during the state legislative session,” said Gaudioso.
“If Lake County’s withdraw were to go through in May... the state would have to take over implementing 280 or jurisdiction would be retroceded to the federal government,” said Gaudioso.
“Right now, Lake County enforces felony jurisdiction. The state could enforce felony jurisdiction, or the federal government could enforce felony jurisdiction, all of those being concurrent with the Tribes’ ability to enforce felony jurisdiction,” said Thompson, regarding possible outcomes of the resolution.
“It's a possibility that policing could be changed if this resolution goes forward,” said Thompson. Although, he said that outcomes are very unclear at this point in time. “The Tribes are just exploring all of the different possibilities,” he said.
“The official position of the [CSKT] Tribal Council is that they've requested official consultation from Lake County and they're currently exploring possibilities,” Thomspon added.
“If you're an Indian on the Flathead Indian Reservation and you commit a felony, you're going to Lake County to get prosecuted and sentenced. If this goes through, you’re not going to be going to Lake Country anymore,” said Thompson. Where one would go to get prosecuted and sentenced in that situation would depend on whether the state decides to take over PL 280, or if it decides to retrocede to the federal government.