On January 17, 2014, Washington Governor Jay Inslee signed a Proclamation to return most civil and criminal authority over Indians on the reservation from the State back to the Yakama Nation. Most of the 29 Indian tribes in Washington are subject to differing levels of State civil and criminal jurisdiction pursuant to Public Law 83-280, 18 U.S.C 1162 (P.L. 280). Congress passed P.L. 280 in 1953 which eventually allowed fifteen states to assert civil adjudicatory and criminal jurisdiction in Indian country without tribal consent. Although P.L. 280 allows states to retrocede, or give back, jurisdiction they once assumed, the law does give tribes the power to initiate that process.
The Washington Governor’s Proclamation may be found here:
http://www.governor.wa.gov/office/proclamations/14-01.pdf
In 2012, Washington passed a law to allow tribes to start the retrocession process at the state level. RCW 37.12.160. We reported on that development in our General Memorandum 12-040 of March 6, 2012 (“Washington State Legislature Passes Bill Allowing Tribes to Initiate Public Law 280 Retrocession”). Under the new law, a tribe begins the process by submitting a retrocession request to the Governor and a plan for the tribe’s exercise of jurisdiction to the Washington governor. The Governor then has 90 days to start a consultation process with the tribe as well as local municipalities. The Governor must issue a proclamation approving all, part of, or rejecting the tribe’s plan for re-assumption of jurisdiction within one year of the tribe’s original request. The Governor must then forward the proclamation to the Secretary of the Interior which then triggers the normal federal retrocession process. See 25 U.S.C. § 1323; Exec. Order No. 11435.
The Yakama Nation’s request is the first time Washington has used the new law. The Yakama Nation’s request includes full civil and criminal jurisdiction over Indians within its reservation boundaries including school attendance, public assistance, domestic relations, and juvenile delinquency, as well as partial criminal jurisdiction over motor vehicles operating on public roads. The Proclamation also acknowledges that the State will retain criminal jurisdiction over non-Indian defendants.
The Tribe wanted Washington to retain jurisdiction over the commitment of sexual predators and mental illness. The Proclamation does explicitly retain State jurisdiction over sexual predators. However, it does not explicitly say whether it retains jurisdiction over mental illness, so there is some uncertainty about that. Retrocession will not take effect until the Secretary of the Interior has approved the State’s request.
The Washington Governor’s Proclamation and approval of the Yakama Nation request provides a template for other Washington tribes to begin the re-assumption of civil and criminal jurisdiction that was lost to the State because of P.L. 280. The 2012 Washington law also provides other states with a model for placing the power to return civil and criminal jurisdiction back in tribal hands.
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