A federal law passed in the 1950s gave six states, including Oregon, civil and criminal jurisdiction over tribal reservations. Tribal nations have argued that the law undermines their sovereignty.
Oregon tribes have been able to petition the governor to repeal the law on their land, but there’s no official procedure or timeline for that process to take place. Senate Bill 1011 would change that by laying out clear guidelines for federally recognized tribes to regain control over civil and criminal matters that take place on tribal land.
Brent Leonhard is an attorney in the Office of Legal Counsel for the Confederated Tribes of the Umatilla Indian Reservation. He joins us with more details about the bill and its implications for tribal sovereignty.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Back in the 1950s, a federal law gave six states, including Oregon, civil and criminal jurisdiction over tribal reservations. Tribal nations have long argued that the law undermines their sovereignty. They’ve been able to petition the governor to repeal the law on their land, but there’s never been an established procedure for how to do that or a timeline that a governor had to follow. A bill in the legislature could change that. It’s already passed unanimously in the state Senate and is now being considered in the House.
Brent Leonhard is an attorney for the Office of Legal Counsel for the Confederated Tribes of the Umatilla Indian Reservation. He joins us now with more details. It’s good to have you on Think Out Loud.
Brent Leonhard: Thank you for having me.
Miller: I mentioned that the bill lawmakers are now considering, it would address a federal law from 1953, and I want to start there. What was going on in that era, in terms of the federal approach to tribal sovereignty and the existence, even, of tribes?
Leonhard: In that era, it’s commonly called the “Termination Era.” What happened in 1953, the United States House of Representatives passed something called House Concurrent Resolution [108] that declared it the policy of the United States to terminate tribes. Within a few weeks, Congress passed Public Law 83-280, which is what we’re talking about now. That law conferred federal jurisdiction, federal power on states, not inherent state power, to exercise criminal and civil jurisdiction in Indian country. So, a foreign jurisdiction is asserting jurisdiction over tribes. Tribes were not given an opportunity to consent to it or request it. It was simply imposed on tribes and Oregan is among them.
It has had devastating effects, certainly when it was initially implemented. There needs to be a process for tribes to be able to request the state to return that jurisdiction back to the federal government.
Miller: When you say a foreign jurisdiction now had authority, that is the states.
Leonhard: Yes.
Miller: Can you help us understand what that means? The difference between the nation-to-nation relationships between the federal government and a sovereign tribal nation, and a state government.
Leonhard: Sure. With the Umatilla Tribe, for example, it is a tribal sovereign government and it exists prior to the existence of the state of Oregon. The state of Oregon did not have authority over the tribe’s Indian country. The tribe negotiated with the federal government through a treaty to establish the reservation. It never agreed to having a state created or asserting a state authority over their lands. The relationship between the tribe and the federal government is nation-to-nation. Under federal Indian law, there’s a domestic dependent nation status, but there’s no similar agreement between the states and tribes. States generally do not have any inherent authority over tribal nations and their lands, with the exception of non-Indians in Indian country.
Miller: What did this law, which is now known as PL 280, mean in practice in the decades that followed?
Leonhard: It’s widely recognized as having been a disaster throughout Indian country where it was implemented. At Umatilla, when they conferred that power on the states, I think, in my personal opinion, they did it because they didn’t want to take on the cost of actually having a robust criminal civil justice systems in Indian country, which was their obligation under trust responsibility and treaty negotiations ...
Miller: The federal government didn’t want to carry through on their treaty responsibilities, so they said, hey, states, you take over?
Leonhard: That’s my feeling. I do believe it was in large part financial. Then, when they gave the power to the states, I don’t think the state realized that it didn’t have any authority to impose taxes in Indian country, so there was no funding that went along with it. So now you have counties that are supposed to impose their criminal jurisdiction in Indian country without funding. And the consequence was, in large part, they didn’t. We didn’t have well-established tribal systems because the federal government didn’t fund what they’re supposed to. The states also did not exercise authority because they didn’t have the funding to do so.
It created a lot of problems. At Umatilla, up until the early ’80s when we actually did get criminal retrocession, the feeling of a number of elders I’ve talked to was that when the state did come onto the reservation, they would do so to harass tribal members and did not actually enforce the law against non-Indians who were committing crimes and offenses in Indian country.
Miller: When you heard that from tribal elders, and they would say “when the state did come,” in what form? Are we talking about sheriff’s deputies? What does it mean for the state to come on to the reservation?
Leonhard: Yes, that would have been the county law enforcement.
Miller: You mentioned that this is a key word here, “retrocession,” which is what this new law would enable a process for. We’ll get to the process in just a second, but you did note that the Confederated Tribes of the Umatilla Indian Reservation went through the process of rolling this back, retrocession, in the ’70s and ’80s for criminal jurisdiction. What did that process look like at the time?
Leonhard: My understanding was that it was completely ad hoc. There is no written process or procedure in place. My understanding is tribes lobbied the governor at the time, Governor Atiyeh, and pushed for retrocession of both civil and criminal jurisdiction at the time. And the governor was willing to do a criminal jurisdiction but not civil jurisdiction. The tribe was able to get that to happen in the early ’80s, but there’s no set process. It’s just ad hoc lobbying, pushing and advocating for retrocession.
Miller: Where do things stand today? How many tribes in Oregon have control over either criminal or civil matters, or both?
Leonhard: It’s a hodgepodge. Warm Springs Indian Reservation was not included in the PL 280, so the state did not have jurisdiction over there. Burns Paiute Tribe was successful in the ’70’s to get retrocession in criminal and civil jurisdiction. Umatilla was successful in criminal and not civil jurisdiction. The other tribes, most of them were restored tribes, and when they were restored after they were terminated, the restoration statutes subjected them to state PL 280 jurisdiction, with the exception of Cow Creek. So it’s a hodgepodge depending on which tribe, which reservation.
Miller: Let’s stick with the reservation that I imagine you know the best, the one where you work. What’s a current example of how having state jurisdiction over civil cases could affect the lives of people on the Umatilla Indian Reservation?
Leonhard: Take a domestic case where the parties are trying to establish a child visitation plan. One of them runs to the county and state court to file, and the other goes to the tribal court to file. And what you have is a race notice; whoever can get there first to have that jurisdiction establish the case and assert authority over the case …
Miller: Literally, it’s whoever files first in whichever of those two different jurisdictions? That is, they win the right to have that be the venue for this decision?
Leonhard: That’s right. If they get the notice done properly and they file it first, that’s the jurisdiction, at least that initially we’ll hear the case, even if they reside on the reservation and they’re tribal members.
Miller: That already is confusing and it doesn’t seem like it’s a clear version of justice, but what are the other knock-on effects, in addition to the initial confusion?
Leonhard: Well, I think there’s a difference in how a court will handle a matter and actually understand the issues in front of them between a tribal court, tribal judge and with tribal families, versus a state court with a state judge that’s non-Indian, that doesn’t understand the families and their situations, and it isn’t nearly as responsive.
Miller: What about on tribal reservations in Oregon where the state still has criminal jurisdiction? What are the most important issues that Oregonians should keep in mind?
Leonhard: Well, I can tell you from the Umatilla’s perspective, when the state retroceded criminal jurisdiction, the tribe was then able to access federal funding and began to establish a robust criminal justice system. It’s now one of the best in the nation, the most robust in the nation. They were able to establish their own law enforcement system, a full criminal court system with the full robust criminal laws, prosecutor, defense attorneys, and everything that goes with it. That did not exist prior to retrocession. And it’s been quite successful in the tribes being able to exercise or ensure public safety within the Umatilla Indian reservation.
Miller: As I noted, this bill passed the state Senate unanimously. It’s now being considered in the state House. What would it require the governor to do if a tribe petitioned to start this retrocession process?
Leonhard: Initially, the tribe passes a resolution to request retrocession and the governors to notify the tribe within 10 days of receiving it that they have received it. Then, within 90 days of the receipt, they set up a meeting, a consultation with the tribal nation to talk about the practicalities and realities of what that would look like, how that would work.
Once that’s done, the governor would have until 180 days of the receipt of the request to make a decision. It’s still the governor’s discretion, but hopefully they will consider heavily the travel interests and concerns. Then both parties could have another 180 days to extend it if they need to do further negotiations and discussions, and address issues that might have come up … at which time the governor makes a decision as to whether or not to petition federal government for retrocession or deny it. But if there is a denial, it has to be in writing, and the governors work and get faith with the tribe on that denial to hopefully address the issues in the future.
Miller: As you noted, this would give the Oregon governor or maybe retain for Oregon governors a huge amount of discretion. What’s your best guess for how Oregon governors would exercise that discretion? I guess to me the most basic question is, I’m wondering if you think that most governors would agree to most requests?
Leonhard: I don’t know. That’s the frank answer. It depends on the governor, it depends on the personality. But hopefully through a clear process like this, the issues and concerns can be vetted and addressed through that process clearly, rather than an ad hoc process altogether. I would love it if the tribe could be the one simply dictating everything, but I’m not sure that would pass Oregon constitutional muster, taking that power away from the state to make that decision.
Miller: Let’s say this does pass – do you think that tribes will take into account the current administration or any future (then-current) administration’s approach to tribal issues and tribal sovereignty when it comes to this? In other words, is this cut and dried for you in the way you think Oregon tribes will approach this, that they will all want to wrest control of this back and make up for a federal law that eroded their sovereignty? Or, do you think it’ll be more dependent basically on who is in the White House?
Leonhard: Well, that may be true as well, and on the federal side of things is who’s who is going to handle those issues. But in my experience with the Department of Justice and the Office of Tribal Justice within the Department of Justice, they’re nonpartisan. They look at the issues thoroughly, and certainly respect tribal concerns and issues that arise. I think if both the state and the tribe are in agreement on the retrocession, I don’t foresee that at the federal level there’s going to be a problem.
Miller: Finally, where do you see this effort in the broader landscape of the push for the return to a more meaningfully recognized tribal sovereignty?
Leonhard: Well, I think it’s a part of the push to enhance tribal sovereignty back to a state in which the tribes are fully sovereign over all their lands on all issues. It’s important, I think. With passage, you’ll probably see within a year the Umatilla Tribe requesting retrocession of civil jurisdiction, so they can fully establish and strengthen their civil justice system on the Umatilla Indian Reservation. I think efforts like this would go toward tribes being able to enhance and make more robust both their criminal and civil systems.
Miller: Brent Leonhard, thanks very much.
Leonhard: Thank you.
Miller: Brent Leonhard is an attorney in the Office of Legal Counsel for the Confederated Tribes of the Umatilla Indian Reservation. He joined us to talk about the bill in the Oregon Legislature that advocates say would help reestablish tribal sovereignty.
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