An Introduction into Public Law 280

By Dorothy Alther, Executive Director

If you are a California Native American chances are you have heard of Public Law 280 (PL 280) at some point in your life.  But what does PL 280 really mean to you, to your tribes, and California tribal communities? The following is a short introduction and overview of PL 280. Please note that PL 280 is complex[1] and reports, books, law review articles, and lengthy court opinions have been written on the topic.

Jurisdiction in California “Indian Country”[2] Before PL 280.  Prior to PL 280, the state’s criminal and civil jurisdiction in California Indian County was limited to cases where all the parties were non-Indians. For example, the state only prosecuted a crime committed in Indian Country where both the defendant and victim were non-Indians.  In civil cases, the state only heard cases where the act occurred in Indian County if both the plaintiff and defendant were non-Indian.

Thus, prior to PL 280, crimes involving a Native American were prosecuted by the federal government and/or tribal government, depending on the nature of the crime and if the accused was a non-Indian. Civil cases arising in California Indian Country where one of the parties was a Native American would be heard in tribal court.

Confusing I know, but the main point to remember is that in California prior to the passage of PL 280, the state had very limited jurisdiction in Indian Country.

PL 280 Changed the Jurisdictional Scheme in California Indian Country.  PL 280 was passed in 1953 and consists of two jurisdictional laws[3] which grants state concurrent (shared)criminal and limited civil jurisdiction with the tribes in California, Nebraska, Oregon, Wisconsin and Minnesota (commonly referred to as the “mandatory states”) and Alaska was added in 1958.

Remember prior the PL 280, these mandatory states had no criminal or civil jurisdiction in Indian Country unless all parties were non-Indians.  PL 280 changed the rules.

Under the criminal portion of PL 280, Congress removed two federal criminal jurisdictional statutes[4] used by the federal government to prosecute crimes in Indian Country. This does not mean that there are no federal criminal laws applicable in California Indian Country, but PL 280 removed the two main federal statutes specific to crimes occurring in Indian Country.  Now, crimes committed in California Indian Country are criminally prosecuted in state court.  Tribes can also prosecute the same crime in tribal court if the defendant is Native American.[5]

On the civil side of PL 280, state jurisdiction is more limited and was designed to open the door for Native Americans to file private civil suits in state court regardless of whether the defendant is a Native American or a non-Indian and the cause of action occurred in Indian Country.

PL 280 did not Change all the Rules.  Although PL 280 opened the door for state concurrent jurisdiction in California Indian Country, it did not remove the door from its hinges, at least in the area of civil jurisdiction.  Under the civil PL 280 statute, Congress lists a number of exceptions to state jurisdiction in Indian Country, for example there is no state jurisdiction: to tax trust lands, probate allotted lands, regulate or encumber trust lands, or determine the right to possess or ownership of trust land or property.

What PL 280 did not do:

  1. PL 280 did not “divest” (take away) tribes of their criminal and civil jurisdiction. Tribes can establish their own courts, have their tribal law enforcement and pass tribal laws enforceable on their reservations;
  2. PL 280 does not allow the state to impose its civil “regulatory” laws on the reservation (i.e. environmental laws, labor laws, building or fire codes, hunting and fishing regulations, and other laws designed to regulate land use); and
  3. PL 280 does not allow city or municipalities to impose their ordinances on the reservation.

CILS offers trainings and community presentations to tribes and tribal communities that take a deeper dive into the more complex and controversial issues of PL 280. CILS can provide direct representation to tribes and individuals in case involving state actions that are in violation of PL 280. CILS can also assist in preparing and advising  tribes in developing tribal courts and codes while navigating the nuances of PL 280.  Due to the COVID-19 pandemic our trainings and presentations are virtual but please contact to learn more about our services and trainings.

 

Bishop Office:

873 N. Main Street, Suite 120
Bishop, CA 93514
Tel: (760)873-3581;
(800)736-3582
Fax: (760)873-7461
Map

Escondido Office:
609 S. Escondido Boulevard
Escondido, CA 92025
Tel: (760)746-8941;
(800)743-8941
Fax: (760)746-1815
Map

Eureka Office:
324 F Street
Eureka, CA 95501
Tel: (707)443-8397;
(800)347-2402
Fax: (707)443-8913
Map

Sacramento Office:
117 J Street, Suite 201
Sacramento, CA 95814
Tel: (916)978-0960;
(800)829-0284
Fax: (916)400-4891

Map

 

[1] As a frequent presenter on PL-280 many presentations can take well over three hours.

[2] Federal law “Indian Country” is as “reservations, allotments and dependent Indian communities.” 18 U.S.C. § 1151.

[3] 18 U.S.C. § 1162 (Criminal) and 28 U.S.C. § 1360 (Civil)

[4] Major Crimes Act 18 U.S.C. § 1153 and Indian Country Crimes Act (aka General Crimes Act) 18 U.S.C. § 1152.

[5] In 1978 the Supreme Court held that tribes could not prosecute or punish non-Indians in tribal court. Oliphant v. Suquamish, 435 U.S. 191 (1978).  However, Congress has passed recent legislation to allow tribes to prosecute non-Indians under some circumstances for the act of domestic violence.

Tort Claims

CAUTION: Wet Floors = Tribal Tort Claims

By Mark Vezzola, CILS Escondido Directing Attorney

What is a tort? A tort is something someone does or fails to do that harms the person or property of another. Negligence, for example, is a type of tort, as is conversion, making someone else’s property your own. What do torts have to do with Indian tribes? Torts occur every day and everywhere, including on Indian reservations, including Indian casinos. Consider all the possible ways to get injured in a casino, a place full of large, metal machines with blinking lights and zippy sounds, area rugs and mats, cleaning equipment, and patrons maneuvering between a maze of slot machines, shops, and restaurants.

Imagine an Indian casino patron entering a restroom and slipping on the wet floor. Maybe someone forgot to leave out a caution sign. Perhaps there was a sign outside the door, but the patron missed it because he was glued to his smartphone. Maybe the patron ignored the sign because he just had to go. Chances are there will be at least two sides to the story of what happened. Thorough documentation and investigations are necessary to ferret out the truth. But how do you get there? Whatever happened, this is a tort claim the patron will likely pursue, especially if he sustained bodily injury.

The most important thing to know about casino tort claims is that they are governed by tribal law. Even though tribes, as sovereign nations, are protected from lawsuits by a doctrine called sovereign immunity, those with Class III gaming (games of chance, high stakes, etc.) agreed to waive this immunity in compacts made with the state of California. Each tribe with a casino is required to have a tort claim process for injured patrons and insurance coverage. For this reason, gaming tribes have laws specifically for casino tort claims. While provisions vary from tribe to tribe, they all have at least one thing in common: the claims cannot be heard in state courts.

In the case of the patron who slipped on the restroom floor, how would he initiate a claim for monetary damages? First, an injured party must follow the claim process, which usually involves filing a claim form describing the event, the extent of injury, and the amount of any monetary losses, under penalty of perjury within the applicable statute of limitations, usually 180 days. Based on that information and a review of the evidence, the tribe or its insurer will issue a decision about liability. If the claim is denied, the claimant usually has a right to appeal, either by requesting binding arbitration or submitting the matter to tribal court, whichever tribal law allows. That body will make a final decision.

Warning: Tribes should be aware that some lawyers are looking for ways around tribal sovereign immunity. In Lewis v. Clarke, 581 U.S. ___ (2017), the Supreme Court ruled tribal employees are not protected by the tribe’s sovereign immunity when sued as individuals. Citing Lewis, lawyers representing injured parties are filing suits in state and federal courts against tribal employees, including security officers and paramedics.

How can tribes protect themselves? Careful code drafting and vigorous defense of tort claims are key. CILS can help tribes with both and represent tribes and tribal employees in court or arbitration and by staying abreast of developments under both state and tribal law.

 

Census Extension Backtrack

By Alexis Lindquist, CILS Escondido Staff Attorney

SHUTTERSTOCK

American Indians were excluded from the first six censuses from 1790 through 1850. The original mandate in the US constitution excluded Indians because they were not taxed. This theory was based on the premise that American Indians had a political allegiance to their own tribes and thus were not truly a part of the United States.

The US Census Bureau started counting Indians in 1860, but only those that were considered assimilated were officially counted. There was not a census for every reservation or group of American Indians every year. Only persons who maintained a formal affiliation with a tribe under federal supervision are listed on these census rolls.

Fast forward to 2020, and American Indians are still having issues being counted on the census. In a recent push to move the census count along, the US Census Bureau moved its deadline from October to September 30th, 2020 — backtracking from its previous decision to extend field operations due to the global pandemic. The shortened deadline disparately affects American Indians because of the large amount of remote and rural reservation land. Census Bureau employees must take extraordinary measures to reach homes that can be difficult to access with a “boots on the ground” approach, a time-consuming process that has been hampered due to COVID-19. The smaller deadline window could cause a grim outcome for an accurate census count.

It is important to remember that not everyone can fill out their census paperwork from their smartphone on their couch. In remote areas there may be a lack of internet or broadband connectivity or even a physical address in which to mail a paper questionnaire. Many people living on Indian reservations have only P.O. boxes — a place in which the US Census Bureau won’t mail questionnaires. For American Indians living in these remote areas, it is critical for census workers to physically knock on doors to get an accurate count. The process of going to remote areas is not only time consuming, but it is nearly impossible given the current pandemic which has created barriers to travelling and speaking in person.

The census is required by the US Constitution to determine the number of seats each state gets in the House of Representatives. An accurate population count is needed for tribes to receive adequate social services and representation in Congress. When American Indian communities are undercounted, hospitals, schools, roads and water systems are underfunded, and this year there has been a historically low response rate in undercounted areas. Tribal regions in particular are currently showing a self-response rate well below the national average of 63%[1]. Many federal programs, including Rural Domestic Violence Assistance and Rural Education programs, are aimed at helping people in rural areas and funding for those programs is often determined by census statistics.

Tribal governments play a critical role in ensuring a complete and accurate count of the American Indian population. If your tribe needs paper questionnaires delivered, contact your regional census center.

Despite all of these challenges, the Census Bureau claims to ensure that every person in the United States is counted. Now the issue is… time.

[1] US Census Bureau Website, www.census.gov.

Statewide Virtual Summit, “Ensuring Equitable Engagement in Regional Water Planning”

Dear Tribal Leaders and Tribal Representatives and Grant Managers,

Share with your Tribal networks and other interested partners who may be interested in the “Pre-Orientation Summit”scheduled on September 10, 2020 10:00 a.m. to 11:30 a.m.   This pre-orientation summit will gather partners who may not be actively involved in IRWM or other grant funding to be prepared for the ‘Statewide Virtual Summit: Ensuring Equitable Engagement in Regional Water Planning” taking place on October 8, October 13 and October 14, 2020.

We are encouraging attendance at both events – September 10, 2020 and the series scheduled on October 8, 13 and 14, 2020.

As a preview to the Statewide Virtual Summit, “Ensuring Equitable Engagement in Regional Water Planning” scheduled for October 8th, 13th and 14th, the Integrated Regional Water Management (IRWM) Roundtable of Regions invites you to join us to learn more about:

  • Integrated Regional Water Management: the benefits of regional planning and who should participate in IRWM;
  • How to participate in your region’s IRWM; and
  • The role of the IRWM Roundtable of Regions and their “Disadvantaged Communities Working Group”

The webinar will also feature local representatives from three IRWM regions who will share their perspective on the benefits, successes, and challenges of participating in their region’s IRWM program.

Who Should Attend this Webinar?

Registration is in the flyer link.

For more information contact Jodie Monaghan at jodie@jmconsultants.net or tribalpolicyadvisor@water.ca.gov.

Tribal Elections

By Mica Llerandi, CILS Escondido Staff Attorney

2020 is a big election year. With the COVID-19 pandemic, many state and tribal governments are looking to voting by mail (VBM) as a safe way to conduct elections. However, Native voter advocates raise concerns that VBM disenfranchises Native voices.[1] Tribes who are reviewing their ordinances and grappling with ways of keeping their voters safe should consider the issues raised here.

Tribal Ordinances

Before making any changes to the election process, tribes should first review their election ordinances and governing documents. Tribes should determine whether a change requires a new ordinance or an amendment to the constitution. For example, if a tribe determines VBM is the best option to protect the health of voters, the tribe should verify that ordinances or the constitution support VBM for all voters, not just those residing out of tribal lands.

Tribes should also review the emergency provisions of their election ordinances. Many state and federal election officials thought the November election would not be affected by COVID-19, but now are scrambling to determine how to conduct the general election in a safe manner. In response, some tribes have cancelled elections[2] and others are using CDC guidelines to ensure safe election polling locations.[3] With uncertainty looming for the November general election, tribes should examine how an outbreak could affect their ability to conduct in-person voting.

With the pervasive use of technology in our daily lives, tribes should consider how their election process might be supported or affected by new technology. For example, social media is beneficial for disseminating information, but unregulated use of social media could also result in tacit endorsements of tribal candidates.[4] Tribal ordinances written 20 years ago may not fully contemplate the impact of the internet or social media on tribal elections.

Election Committees

Tribes should ensure election committees are operating independently but with oversight. Some suggestions for elections committees include establishing standards for appointment, staggering terms, and requiring training or a handbook on duties. Tribal law should include oversight mechanisms and remedies to ensure election officials are discharging their duties with integrity, honesty, and transparency.

Election Process

Tribes should review the election process from beginning to the end. Some things to examine include:

(1) Verifying date and deadline calculations are clear (i.e. distinction between calendar or business days);

(2) How to account for human error in tallying votes (i.e. ballot counting occurs 3 times);

(3) Whether the process is open and transparent (i.e. who can be present during the tallying?); and

(4) How to handle unusual results (i.e. ordinance only explains what to do in a two-way tie, but not a three-way tie).

Tribes should review their ordinances regularly to ensure a clear and fair voting process.

Conclusion

Tribal elections are vital to tribal governance and sovereignty. Tribal elections demonstrate to outside entities that tribes are legitimate and fully functioning governments. For members, individual participation has a visible impact on tribal governance. Tribes should continuously scrutinize their elections to ensure the process is appropriate, fair, and transparent. CILS assists tribes with revising and drafting tribal election ordinances, conducting tribal elections, and advising and representing election committees. If your tribe needs any assistance with tribal elections, CILS is ready and able to assist.

[1] Articles discussing the negative impacts of VBM for tribal voters can be found here and here.

[2] Noel Lyn Smith. Complaint Filed Against Navajo Nation over canceled primary election. Farmington Daily Times. https://www.daily-times.com/story/news/local/navajo-nation/2020/08/13/navajo-nation-faces-complaint-over-canceled-primary-election/3365989001/ (accessed on August 14, 2020).

[3] Center for Disease Control and Prevention. Considerations for Election Polling Locations and Voters. https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (accessed on August 14, 2020).

[4] Native Vote. Native Vote Toolkit 2018. http://www.nativevote.org/wp-content/uploads/2018/06/Native-Vote-Toolkit-2018.pdf, at p.17 (accessed on August 14, 2020).