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Tribes may ask state to cede jurisdiction to feds

POULSBO — The state Legislature has passed a bill allowing Native American tribes to return to federal jurisdiction for certain law enforcement procedures.

Known as “retrocession,” tribes may ask Gov. Chris Gregoire for the state to cede to the U.S. its jurisdiction over law enforcement or civil and criminal proceedings.

Public Law 280, passed in 1953, made it mandatory for six states (Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin) to exercise criminal and civil jurisdiction over tribal lands, and gave nine other states the option to assume jurisdiction, including Washington. The state enacted RCW 37.12.021 in 1963, allowing tribes to opt-in to this law.

PL 280 was approved during what is known as the “Termination Era” between the U.S. government and Native American tribes. Rit Bellis, lead attorney for the Suquamish Tribe, said “termination” means the federal government wanted to end its trust responsibilities with tribes and disestablish reservations.

The state took over eight main areas: compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and operation of motor vehicles.

This bill would return some of those powers to the federal government in an assistance capacity. The state would retain jurisdiction in licensing of drivers and motor vehicles, and cases involving sexually violent predators.

However, due to the unclear nature of the PL 280, and the economic improvements of many tribes in Washington over the last 60 years, this year’s bill will not change much in tribal court life for Port Gamble S’Klallam and Suquamish.

“No power was taken away from tribes by PL 280 or is granted by restoring it,” Bellis said. Many tribes opted in because they were unable to afford law enforcement and court services, he added.

“We [had] a huge vacuum in law enforcement,” Bellis said. The federal government wasn’t providing police services, and back in the ’60s, tribes didn’t have the funds to provide adequate law enforcement.

“Every tribe is in a so-much-better position economically now than [they] were in 1960s,” he said. “We’re already independently providing services [tribes] asked the state for in the ’60s.”

Bellis said Suquamish requested jurisdiction be retroceeded back to the federal government in 1971.

“For myself, I think the benefits [of this bill] if any will be a level of clarity, about who’s responsible for what,” Bellis said. “PL 280 created more confusion than it has solved.

“It’s an academic exercise. [Now] it becomes clear where tribes will look to for funding assistance for law enforcement.”

Port Gamble S’Klallam never opted in or recognized the law as valid, Port Gamble S’Klallam tribal attorney Gina Stevens said. According to Chairman Jeromy Sullivan, the tribe became one of the first self-governing tribes in 1992, taking control over several federal programs, including housing and needy families. It is also the first tribe in the country to maintain its own Foster Care and Adoption program.

“Nobody can care for [Port Gamble] S’Klallam people better than our tribe,” Stevens said.

Both tribes have fully-functional tribal courts which deal with civil matters, like divorce, and criminal matters, and tribal members can use either the tribal or state court system.

While some state residents are concerned this bill would also enable tribes jurisdiction over neighboring non-members, Bellis said it is a “non-issue.”

“Tribes nationwide don’t have criminal jurisdiction over non-Indians,” Bellis said; that was decided in 1978 by a Supreme Court case, Oliphant v. Suquamish Indian Tribe.

The state House passed the amended Senate version, 59-38, on March 6.

 

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