Background:

History of Public Law 280 and the State's Assumption of Jurisdiction Over Indians and Indian Country.

As of the early 1950s, the federal government and Indian tribes jointly exercised civil and criminal jurisdiction over Indians and Indian country. However, in 1953 Congress enacted Public Law 280 (PL 280), partly in response to the perception that joint federal/tribal jurisdiction led to inadequate law enforcement in Indian country. Under PL 280, both civil and criminal jurisdiction over Indians and Indian country were transferred from the federal government to selected states. Other specified states were given the option to assume such jurisdiction in the future. The selected states that were granted immediate jurisdiction, i.e., the "mandatory states," were Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. The so-called "optional" states" under PL 280 were Washington, Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, and Utah.

Public Law 280 also established that for a state to acquire civil or criminal jurisdiction over the Indians and Indian country within its borders, it must pass legislation explicitly assuming such jurisdiction. The State of Washington did exactly that in 1963 when the Legislature enacted RCW 37.12.010, authorizing the state to assume civil and criminal jurisdiction over Indians and Indian country within its territory. However, under this statute the assumption of jurisdiction by the state requires a tribe's consent. Such consent requires that the tribe formally request the state to assume such jurisdiction. Upon receiving this request, the Governor must issue a proclamation affirming the state's civil and/or criminal jurisdiction over Indians and Indian country in accordance with applicable federal laws.

Although the state's 1963 legislation establishes that the state's jurisdiction over a tribe occurs only upon the request of a tribe, the statute explicitly identifies eight substantive areas of criminal and civil law over which the state retains jurisdiction even without a tribe's consent: compulsory school attendance; public assistance; domestic relations; mental illness; juvenile delinquency; adoption proceedings; dependent children; and operation of motor vehicles on public streets, alleys, roads, and highways.

Amendment of PL 280 and the Authorization of State Retrocession.

In 1968 Congress amended PL 280 to include a so-called "retrocession" provision authorizing a state that has previously assumed jurisdiction over Indians and Indian country to return all or some of its civil and/or criminal jurisdiction back to the federal government, subject to the approval of the United States Department of the Interior. The term "retrocession," therefore, refers to the process of a state returning its tribal jurisdiction back to the United States.

Civil and Criminal Retrocession Under State Law Following the Amendment of PL 280.

Following the amendment of PL 280, the state Legislature enacted a legal procedure by which a tribe can request the state to retrocede criminal jurisdiction over Indians and Indian country. However, the state has never enacted legislation authorizing the retrocession of civil jurisdiction by the state.

In order to request that the state retrocede its criminal jurisdiction to the federal government, an Indian tribe must submit a resolution to the Governor expressing its desire for state retrocession of criminal jurisdiction acquired by the the state over Indians or Indian country. Upon receipt of the resolution, the Governor may issue a proclamation retroceding the state's criminal jurisdiction back to the United States. The power of the Governor to authorize criminal retrocession is discretionary. In effect, then, the Governor has veto power over any criminal retrocession proposal put forth by an Indian tribe or group. In turn, in order for retrocession to become effective, the Governor's retrocession proclamation must be submitted to a duly authorized federal officer and then approved by the Secretary of the Interior. However, it should be noted that the state's retrocession statutes categorically prohibit the retrocession of either civil or criminal jurisdiction over the following eight areas:

compulsory school attendance;
public assistance;
domestic relations;
mental illness;
juvenile delinquency;
adoption proceedings;
dependent children; and
operation of motor vehicles on public streets, alleys, roads, and highways.

After retrocession, the federal government rather than the tribe has jurisdiction over so-called major crimes committed by Indians on Indian lands. Major crimes under the federal law include homicide, assault, rape, kidnapping, arson, burglary, and robbery, among other felonies.

Over the years, seven tribes in Washington have sought and received retrocession of state jurisdiction over criminal acts by Indians committed on tribal lands. These tribes are the Quileute, Chehalis, Skokomish, Muckleshoot, Tulalip, Swinomish, and the Colville Confederated Tribes of Washington.

Civil Retrocession.

State law neither authorizes the state to retrocede its civil jurisdiction over Indians and Indian country nor does it provide any mechanism for tribes to request such retrocession.

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Summary of Bill:

An altogether new procedure is created by which an Indian tribe may cause the state to retrocede its civil jurisdiction over the Indians and Indian country of that tribe. Under this new retrocession procedure, the governing body of a tribe must submit a resolution to the Governor expressing its desire that the state retrocede the civil jurisdiction acquired under PL 280 and state statute. Then, within 60 days of receiving the tribal resolution, the Governor must issue a proclamation retroceding to the United States its civil jurisdiction over the Indians and Indian country of the tribe requesting retrocession. The proclamation becomes effective only after it is accepted by a duly designated federal officer and then approved by the Secretary of the Interior.

In addition to the federal acquisition of civil jurisdiction over Indians and Indian country, retrocession accomplished through this procedure gives the federal government civil jurisdiction over the following areas explicitly identified in state statute: compulsory school attendance; public assistance; domestic relations; mental illness; juvenile delinquency; adoption proceedings; dependent children; and the operation of motor vehicles on public streets, alleys, roads, and highways.

Staff Summary of Public Testimony:

(In support) The Indians in this state have always exercised a significant degree of civil and criminal jurisdiction over their tribes and lands except for a few statutory exceptions. There is currently no reason for tribes to be subject to the civil or criminal jurisdiction of the state. State jurisdiction is an outmoded concept that does not work. The retrocession process returns jurisdiction back to the tribes in conjunction with the federal government. The jurisdictional issues in this bill apply only within the boundaries of Indian lands. Many tribes have developed the infrastructure and institutions necessary for effective law enforcement and the handling of civil legal matters. For example, the Yakama tribe has invested tens of millions of dollars into its law enforcement apparatus, correctional facilities, and court facilities. Accordingly, the Yakamas have the programs and institutions they need to withdraw from state jurisdiction. Furthermore, state jurisdiction over school attendance issues has backfired by making it very difficult for tribes to take the lead in enforcing truancy laws. This has lead to an epidemic of children not attending school. This bill would resolve the problem. Most tribes have voluntarily entered into interlocal agreements with local law enforcement agencies to ensure effective law enforcement in tribal areas. Tribal courts have greatly improved over the years. New federal law would enhance the federal response to major crimes and would relieve the burden on local law enforcement. Criminal jurisdiction extends only to Indians. This bill benefits the tribes as well as the interests of the general public. President Obama recently issued an executive order giving tribes more latitude in dealing with their own issues regarding the courts as well as law enforcement.

(Opposed) None.