Department of Justice Proposes Rule on Assumption by the Federal Government of Concurrent Criminal Jurisdiction in "Mandatory" Public Law 280 States

On May 23, 2011, the Department of Justice (DOJ) published a proposed rule in the FEDERAL REGISTER (attached) to establish procedures through which certain Indian tribes (whose Indian Country is subject to state criminal jurisdiction pursuant to the “mandatory” provisions of PL 83-280) can ask the federal government to assume concurrent criminal jurisdiction. The deadline for comments on the proposed rule is July 7, 2011.

The proposed rule would implement Section 221 of the Tribal Law and Order Act of 2010 (PL111-211) which amends mandatory provisions of PL 83-280 to provide that, upon the request of an Indian tribe and the consent of the United States Attorney General, the United States shall accept concurrent criminal jurisdiction over the tribe’s Indian Country. This provision partially addresses the longstanding controversy over the imposition of state criminal jurisdiction in some parts of Indian Country during the Termination Era. For a summary of the Tribal Law and Order Act (TLOA), see General Memorandum 10-100 (July 29, 2010).

In 1953, Congress enacted Public Law 83-280, better known as simply “PL 280,” which transferred federal criminal jurisdiction in Indian Country to six states (the “mandatory” states) without any tribal consent (18 U.S.C. § 1162). PL 280 also allowed other states, eventually ten states (the “optional” states), to assume complete or partial criminal jurisdiction over Indian Country, again without tribal consent. An amendment enacted as part of the Indian Civil Rights Act of 1968 (25 U.S.C. § 1323(a)) requires tribal consent before any more states can assume jurisdiction, a change that effectively ended the ability of new states to assume PL 280 jurisdiction. The 1968 amendment also allows states to return, or retrocede, jurisdiction back to the federal government. The discretion to seek retrocession lies totally with the state. To date, nearly 30 tribes have successfully asked states to retrocede some or all jurisdiction over crimes back to the federal government. The preamble to the proposed rule includes a background explanation of criminal jurisdiction in Indian Country generally, the changes wrought in some places by PL 280, and the relevant provisions of the TLOA.

For years tribes and tribal organizations have sought a legislative remedy to allow them, rather than states, to initiate and complete the retrocession process. Section 221 of the TLOA provides tribes with a partial victory. The TLOA allows tribes to request the U.S. Attorney General to consent to assume concurrent federal jurisdiction over Indian Country in “mandatory” PL 280 states. As originally introduced, the bill would have required the U.S. to automatically reassume jurisdiction at tribal request, without the requirement for consent of the Attorney General.

The proposed rule would govern the Attorney General’s decision on whether to assume federal jurisdiction pursuant to tribal request. The Attorney General will weigh seven factors in making the decision, including whether assumption will increase: the availability of law enforcement resources; access to judicial resources; access to detention and correctional resources; and information received from federal agencies, tribal consultation, and state and local law enforcement agencies. Significantly, the proposed rule would not permit the requesting tribe to appeal a decision to deny the assumption of concurrent federal criminal jurisdiction.

The DOJ held a number of regional tribal consultations on the TLOA last year and received comments from tribes on the assumption of federal jurisdiction. The DOJ’s proposed rule responds to those tribal comments and further clarifies several issues not specifically addressed in the TLOA. The FEDERAL REGISTER notice highlights eight changes from an earlier draft of the rule.

First, the DOJ would act on tribal assumption requests in two cycles per year, each with a five-month timeframe for decisions, rather than just one cycle.

Second, a tribe would be able to ask the Attorney General to assume federal jurisdiction over a limited set of crimes or over crimes in a limited geographic portion of the tribe’s Indian Country. This interpretation is consistent with the practice in several states, such as Washington, in which a state has retroceded jurisdiction over certain offenses back to the federal government but has not retroceded all jurisdiction.

Third, the DOJ construes that the TLOA applies only to the six “mandatory” states and not the ten “optional” states. The reason for this is that the DOJ believes that in the ten “optional” states, PL 280 never removed the federal government’s concurrent jurisdiction. Therefore, the DOJ believes tribes in an “optional” PL 280 jurisdiction need not request federal assumption.

Fourth, once a tribe makes an assumption request, the DOJ would seek comments (not just an expression of support or opposition) from a host of other federal agencies, including the Executive Office of U.S. Attorneys (EOUSA); the Federal Bureau of Investigation (FBI); the Bureau of Indian Affairs (BIA); the Office of Tribal Justice (OTJ);, the Bureau of Prisons (BOP); the Office of Community Oriented Policing Services (COPS); and the Department of Homeland Security (DHS). In addition to seeking comment from federal agencies, the DOJ would also seek public comment, tribal comments, and comments from state and local law enforcement agencies. Under the proposed rule the decision would be made after written recommendations are received by OTJ, EOUSA, and the FBI, but the rule would not mandate that such agencies provide comments within a certain deadline or provide a requesting tribe the opportunity to respond to comments received.

Fifth, although the DOJ would consider comments received from state and local governments and agencies, the proposed rule expressly states that assumption of federal jurisdiction would not require consent of any state or local government. The assumption of federal concurrent jurisdiction would not eliminate a state’s jurisdiction.

Sixth, if a tribe’s request is denied the tribe would not be permitted to appeal the decision but would be permitted to submit a renewed request, and the proposed rule now specifies that the DOJ would provide technical assistance to any tribe wishing to submit a renewed request.

Seventh, the proposed rule now specifies that, if the DOJ consents to assumption of concurrent jurisdiction, the assumption of federal jurisdiction would take effect at a date within 12 months, and, if feasible, within six months.

Eighth, the proposed rule would now require that notice of a DOJ decision consenting to federal jurisdiction be published in the FEDERAL REGISTER.

Please let us know if you would like further information on the proposed regulations or assistance in the preparation of comments.