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General Memorandum 12-040

General Memorandum 12-040
Washington State Legislature Passes Bill Allowing Tribes to Initiate Public Law 280 Retrocession

Last week, the Washington state legislature passed legislation which would allow Indian tribes to seek retrocession of State jurisdiction (acquired under Public Law 83-280) back to the federal government. House Bill 2233 passed the Washington Senate on March 5, 2012, and the Washington House the following day. The bill must be signed by the Washington governor before it becomes law, which she is expected to do.

Public Law 83-280 (PL 280), enacted in 1953, as amended, transferred certain federal civil and criminal jurisdiction over Indian Country to six states on a mandatory basis and allowed other states to assume complete or partial jurisdiction in the same manner, all without the consent of the tribes involved. Washington, while not one of the mandatory states, elected to assume some civil and criminal jurisdiction in 1957 (with tribal consent) and again in 1963 (without tribal consent). In 1968, the Indian Civil Rights Act amended PL 280 to require tribal consent before any more states could assume federal jurisdiction, and also allowed states to request retrocession, or return, of their PL 280 jurisdiction to the federal government. 25 U.S.C. § 1323. The United States is authorized, but not required, to accept the retrocession. Importantly, tribes may not directly initiate retrocession under the 1968 amendment.

The Washington legislation would allow tribes to initiate a request that the State retrocede all or part of the State's PL 280 civil and/or criminal jurisdiction under State law, triggering a State request for retrocession as required under federal law, unless the governor can cite reasons for denial of the tribe's request. Under the procedure created by House Bill 2233, the governing body of a tribe must submit a retrocession resolution and a plan for the tribe's exercise of jurisdiction to the Washington governor. The bill encourages, but does not require, tribes to enter into agreements with local governments prior to submitting a request.

Within 90 days of receipt, the State governor is required to convene a government-to-government meeting with the governing body of the tribe or duly authorized tribal representatives, and to consult with elected officials from the counties, cities, and towns in the area of the proposed retrocession. Within one year, the Washington governor must issue a proclamation either approving or denying, in whole or in part, the tribe's request. If the governor denies the request, the reasons for denial must be provided to the tribe in writing. If the governor approves the request, the proclamation will be formally submitted to the federal government in accordance with the procedural requirements for federal approval of PL 280 retrocession. As introduced, the bill included a provision that would have made approval automatic if the governor did not act on the tribe's request within a year, but the substitute version of the bill which was ultimately passed did not include that provision. Retrocession will be effective after it is approved by the Secretary of the Interior as required by federal law.

Under the bill, the Washington House and Senate are permitted to conduct public hearings on a tribe's request for retrocession and may submit advisory recommendations or comments to the Washington governor. However, the legislative recommendations or comments are not binding on the governor. The governor is required to consider certain factors when a retrocession request will involve jurisdiction over motor vehicles on public roads, including whether or not the tribe has entered into agreements with neighboring jurisdictions; whether or not the tribe has a traffic policing agency, traffic codes, and courts; and whether there are appropriate traffic control devices in place. The bill expressly provides that it will not affect the State's civil jurisdiction over the civil commitment of sexually violent predators, nor will it affect any action or proceeding filed in State court prior to the effective date of any retrocession request.

State Representative John McCoy, a member of the Tulalip Tribes, was the primary sponsor of the bill, which passed the Senate by a vote of 42-6 and the House by a vote of 59-38. After similar bills failed to pass in 2011, a task force was formed to study and discuss the issue. In February, the Seattle Times reported that the idea of retrocession had "garnered broad support after a series of meetings last year by [the task force] that included law enforcement, prosecutors and representatives of counties and cities." Washington's original assumptions of PL 280 were impartial in some instances and were not uniform across tribes, and partial retrocession has already occurred with respect to some tribes, leading to a complicated and inconsistent jurisdiction scheme. This legislation could potentially help create greater uniformity in jurisdiction across the different reservations in Washington.

Please let us know if you would like additional information on this topic.

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Inquiries may be directed to:
Charlie Hobbs (chobbs@hobbsstraus.com) at (202) 822-8282
Chris Stearns (cstearns@hobbsstraus.com) at (206) 902-6680
Caroline Mayhew (cmayhew@hobbsstraus.com) at (202)822-8282

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