HOUSE BILL REPORT

ESSB 6147

As Reported by House Committee On:

State Government & Tribal Affairs

Title: An act relating to state jurisdiction over Indian tribes and Indian country.

Brief Description: Concerning state jurisdiction over Indian tribes in Indian country.

Sponsors: Senate Committee on Government Operations, Tribal Relations & Elections (originally sponsored by Senators Prentice, Pridemore, Swecker, Hargrove, Chase, Nelson and Kline).

Brief History:

Committee Activity:

State Government & Tribal Affairs: 2/15/12, 2/20/12 [DPA].

Majority Report: Do pass as amended. Signed by 7 members: Representatives Hunt, Chair; Appleton, Vice Chair; Darneille, Dunshee, Hurst, McCoy and Miloscia.

Minority Report: Do not pass. Signed by 4 members: Representatives Taylor, Ranking Minority Member; Overstreet, Assistant Ranking Minority Member; Alexander and Condotta.

Staff: Thamas Osborn (786-7129).

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 criminal and civil 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 criminal and civil 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.

Under PL 280 it was also established that for a state to acquire criminal or civil 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. Under this statute, the state assumed jurisdiction outright, without tribal consent, over "Indians and Indian territory, reservations, country, and lands within the state." However, on trust or restricted lands "within an established Indian reservation," the statute limits state jurisdiction to eight subject areas: (1) compulsory school attendance; (2) public assistance; (3) domestic relations; (4) mental illness; (5) juvenile delinquency; (6) adoption proceedings; (7) dependent children; and (8) operation of motor vehicles upon 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 criminal and/or civil 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 jurisdiction over an Indian tribe back to the United States government.

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

Despite the 1968 amendment of PL 280, 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 civil retrocession.

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 partially retrocede criminal jurisdiction over Indians and Indian country. This procedure requires the approval of the Governor and the Legislature and applies only to specific tribes identified in statute. The specified tribes are the Quileute, Chehalis, Skokomish, Muckleshoot, Tulalip, Swinomish, and the Colville Confederated Tribes of Washington.

Under this statutory procedure, in order to request that the state retrocede its criminal jurisdiction back 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 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.

After retrocession, the federal government rather than the tribe and/or the state, 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, as well as other serious felonies. 

Tribes that remain subject to state jurisdiction may enter into arrangements with local law enforcement agencies for providing law enforcement on tribal lands.  However, tribes subject to full state criminal jurisdiction are not eligible for federal funding for law enforcement purposes.  Those tribes that have sought and obtained retrocession of state jurisdiction have become eligible for federal law enforcement funding.

Governor's Retrocession Workgroup.

In June of 2011 the Governor convened a Joint Executive-Legislative Workgroup (Workgroup) in order to examine both civil and criminal tribal retrocession issues. The Workgroup was created in response to the tribal retrocession bills considered by the House and the Senate during the 2011 legislative session and consisted of a broad range of gubernatorial appointees, including:

• tribal leaders;

• legislative members from the House and Senate;

• designees from the United States attorney's offices for the eastern and western districts of Washington;

• a designee of the Washington State Attorney General;

• professors of Indian Law from the University of Washington and the Seattle University;

• state, local, and tribal law enforcement officials;

• an official from the Office of Superintendent of Public Instruction; and

• various executive branch and state agency officials.

The Workgroup conducted a series of meetings during the summer and fall of 2011, the last of which involved the consideration of legislative options.

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Summary of Amended Bill:

Overview of the Retrocession Act.

In broadest terms, the act creates what is, in essence, a three-step retrocession procedure in which the Governor is granted plenary power to approve or deny a proposed retrocession. The three procedural steps are as follows:

• A tribe must submit a retrocession resolution to the Governor.

• The Governor must approve or deny the retrocession through a process that includes government-to-government meetings with the tribe, as well as nonbinding recommendations from the two houses of the Legislature.

• If the Governor approves of the proposed retrocession, a formal retrocession request is forwarded to the United States Department of the Interior, which has ultimate authority with respect to the authorization of a proposed retrocession.

Retrocession Procedure Required Under the Act.

More specifically, the act includes the following procedural requirements that must be met before criminal and/or civil retrocession may occur:

• The governing body of a tribe must pass a resolution requesting that the state retrocede back to the federal government all or part of its civil and/or criminal jurisdiction over the tribe. Before a tribe submits a retrocession resolution to the Governor, the tribe and affected municipalities are encouraged to collaborate in the adoption of interlocal agreements, or other collaborative arrangements, with the goal of ensuring that the best interests of the tribe and the surrounding communities are served by the retrocession process.

• The tribe's retrocession resolution must be forwarded to the Governor, accompanied by information about its plan regarding its exercise of jurisdiction following the proposed retrocession.

• The Governor must convene a government-to-government meeting with the tribe within 90 days of receiving the retrocession resolution.

• Within 120 days of the Governor's receipt of the tribal resolution, the appropriate standing committees of the state House and Senate may conduct public hearings on the tribe's request for state retrocession. Following such public hearings, the designated legislative committees may submit nonbinding, advisory recommendations to the Governor.

• Within one year of her or his receipt of the retrocession resolution, the Governor must issue a proclamation either approving or denying all or part of the resolution. This one-year deadline may be extended by the mutual consent of the tribe and the Governor. Also, both the tribe and the Governor have unilateral authority to extend the one year retrocession decision deadline by another six months.

• If the Governor approves the proposed retrocession, the proclamation must be submitted to a duly designated officer of the United States Department of the Interior, which must then approve or deny the retrocession request. The proclamation does not become effective until it is approved by the federal government in accordance with federal retrocession procedures.

Notwithstanding the state's retrocession of criminal and/or civil jurisdiction, the state retains the civil jurisdiction necessary for the civil commitment of sexually violent predators.

A legal action or proceeding filed with a court or agency of the state or local government preceding the effective date of retrocession under the new process will not abate by reason of a retrocession or determination of jurisdiction.

The provisions of RCW 37.12.010 are not applicable to a civil or criminal retrocession accomplished in accordance with the requirements of the act.

The act has additional provisions clarifying that:

• the validity of any retrocession procedure commenced previously under other specified statutes is not affected;

• any tribe may utilize the retrocession procedure authorized under the act in order to complete a pending retrocession process;

• any tribe may utilize the procedure to obtain retrocession with respect to any civil or criminal jurisdiction retained by the state following a previously completed partial retrocession; and

• other specified statutes related to retrocession are not applicable to a retrocession initiated under the authority of the act.

Amended Bill Compared to Engrossed Substitute Bill:

The amended bill makes the following changes to the engrossed substitute bill:

• strikes section 1, stating legislative intent;

• strikes section 2, amending RCW 37.12.010; and

• establishes that the provisions of RCW 37.12.010 are not applicable to a civil or criminal retrocession accomplished in accordance with the requirements of the act.

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Appropriation: None.

Fiscal Note: Not requested.

Effective Date of Amended Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed.

Staff Summary of Public Testimony:

(In support) The Yakama Nation wants retrocession. The tribe has been working diligently to improve and strengthen its law enforcement capabilities. There is a new state-of-the-art detention facility on the reservation that has separate quarters for juveniles. In the next few years the tribe intends to develop its own fire department to serve areas of the county that currently are without fire protection services. This will greatly enhance fire protection for the entire area. Many local governments now support the bill. Efforts are currently under way to make cooperative law enforcement arrangements with local governments. In the broadest sense, this legislation relates to the Unites States keeping its promises to the tribes. This bill represents a good step in that direction. The tribe is ready to take this step. They have good managers and the necessary infrastructure.

(Neutral) Yakima County is now taking a neutral position on the bill. The amendments that have become part of the bill have addressed the concerns of the county.

(Opposed) None.

Persons Testifying: (In support) Virgil Lewis and Dawn Vyvyan, Yakama Nation; and Steve Robinson, Tulalip and Umatilla Tribes.

(Neutral) Briahna Taylor, Yakima County.

Persons Signed In To Testify But Not Testifying: None.