Goldberg: Public Law 280 isn’t the proper economic stimulus for Indian country
By
Carole Goldberg
|
| Despite the prosperity tribal gaming has brought to some Native nations over the past 20 years, poverty and unemployment rates remain high on many reservations. |
Apart from being insulting to tribal courts, Anderson’s study is seriously questionable for three distinct reasons. First, tribal governments, not Congress, are in the best position to make any trade-offs that may exist between greater tribal sovereignty and higher reservation incomes. Tribal sovereignty holds many benefits for tribes, especially the power to address issues such as cultural continuity and the demands of a changing, interdependent world market. Tribal sovereignty also protects tribal citizens from discrimination and hostility in state court systems, something that tribal members have complained about in interviews and surveys I have carried out on state criminal jurisdiction in Indian country.
For those reasons and others, state jurisdiction under Public Law 280 has not been especially popular in Indian country. Since Congress amended it in 1968, tribal consent has been required before a state can opt for jurisdiction on reservations. Thus any tribe that wants the benefits that Anderson touts from state jurisdiction can urge the state to step in. It is striking, however, that no tribe has given its consent to state jurisdiction in the four decades since that amendment passed. Also in 1968, Congress for the first time authorized states to return, or “retrocede,” their Public Law 280 jurisdiction back to the federal government. Although Indian nations were not granted control over this process, they have been in a position to lobby their state legislatures to support retrocession. Despite the many political hurdles tribes must overcome, since 1968, 29 tribes have successfully prevailed upon their states to retrocede.
Of course, tribal communities may not be acting in their best economic interests in rejecting Public Law 280. Another possibility, however, is that no link exists between state jurisdiction and higher reservation incomes. That brings up the second reason to question Anderson’s conclusions. The underlying research is flawed in several ways.
Here are just some of the more technical problems. There are errors in labeling some tribes (such as those in Oregon) as Public Law 280 or non-Public Law 280. The research fails to control for important factors, such as population growth on different reservations over time. The research also ignores the fact that some tribes that figure into its results, such as the Menominee in Wisconsin, were left out of Public Law 280 because of historical events, such as termination, that can account for the tribes’ later economic difficulties.
A more basic research flaw is that the connection Anderson draws between state jurisdiction and “credible commitments” doesn’t square with the law or with the way business litigation actually operates in Indian country. The most significant economic factors on most reservations are the tribes themselves; yet most courts have concluded that Public Law 280 did not open state courts to lawsuits against tribes.
How can state courts facilitate “credible commitments” if they can’t even hear the most important reservation-based litigation? And even where Public Law 280 may make suits against tribes or tribal officials easier for the non-Indian parties to bring, tribes have to be willing to give up or “waive” their sovereign immunity in order for the litigation to proceed. Yet, Anderson has not demonstrated that tribes subject to state jurisdiction are more likely to grant such waivers.
The third problem with Anderson’s conclusion is that the choice between tribal sovereignty and economic development is a false one. President Obama can strengthen tribal sovereignty and economies simultaneously by providing federal technical assistance and funds to tribal justice systems. That is long overdue. Congress has never fully appropriated even the modest funds it authorized more than a decade ago for tribal courts. Yet in 2008 alone, state and local courts received more than $4 billion in federal aid. With proper levels of assistance, tribal courts can support reservation economies in ways that reflect tribal values and priorities. State court jurisdiction can’t substitute for that.
Carole Goldberg is a professor of law at UCLA and justice in the Hualapai Court of Appeals.
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Sunday, Nov 22 at 11:13 PM Wisconsonite wrote ...
PL 280 was a means for ending the "wild Indian" problems on the reservations and also took a load off of the government without having to foot the bill. I also think this goes back to colonial times when the government thought that "all Indians can't manage their own affairs" and that all Indians should be treated as "wards and guardians", which was reinforced in the Marshall trilogy.
32521771Friday, Mar 27 at 9:57 AM Wanbli wrote ...
280 is a white facist military law to keep us shakle and in a state of fear. It's a U.S. interventionism policy that dehumanizes and reppressed free indigenous nations from using their intrensic human rights, (God Given Rights)to goven their live as truly divine free sovereign indigenous nationhoods. But, the globalist have already design a law that will trump this one. More burtal and satanic ever in the history of the human race. We indig-nationhoods that still love each other will chrush it!
18644657Monday, Mar 23 at 6:24 AM California Tribal member wrote ...
This article advocates expanding law enforcement and judicial authority to tribal governments that already have a poor track record on public safety matters. The recent killings and shootouts at The Soboba Reservation with the Riverside Sheriffs department, and Mexican Mafia involved violence at San Manuel Reservation are examples. Let’s not turn our reservations into law free zones where tribal members live in fear of the violent few in order to assuage the egos of tribal big shots.
18403881Sunday, Mar 22 at 10:28 AM 'aamokat wrote ...
We the disenrolled from a powerful gaming tribe in California were not allowed to have lawyers come with us to the disnerollment hearings, we were denied copis of the proceeding transcripts, and were not allowed to even take notes at hearings. We were accused, tried, and convicted of not being legitimate tribal members by the same people. Also, the evidence in our favor that was ignored would have stood up anywhere but in a "kangaroo court." The sovereignty club abuses its own people.
18380921Saturday, Mar 21 at 12:56 PM Under the name Sovereign wrote ...
2,000 California Indians face disenrollment Wednesday, April 14, 2004 According to the American Indian Movement, 2,000 California Indians are being threatened with disenrollment. You know it and so do the rest of us!
18359121Saturday, Mar 21 at 12:52 PM Sovereignty wrote ...
Sovereignty means independent and the tribe or local families in power on tribal councils have abused the word. If tribes were Sovereign they would not need outside assistance from Uncle Sam. Who would fund a township in the middle of the desert with no employment or even a store to buy groceries? Why build hud homes? Answer the BIA and UNKA Sammy. What do the Indians have that the feds want, is it Uranium, Coal or now the precious water? Sovereign Nations is a misconception
18359032Saturday, Mar 21 at 9:00 AM Bradley Dakota wrote ...
If tribes were allowed to enjoy true sovereignty things would be much different on the rez. IGRA imposed by congress hinders economic development. Exclusive tribally owned and operated, state compact requirement? Since when have governments been so adept at running business. U.S. v Dakota 796 F.2d 186 was the first blow to Indian Casino Gaming. It essentially dampered the potential effect of Indian casino gaming on all rezervations. Is IGRA capitalism or federally imposed socialism?
18352417Saturday, Mar 21 at 8:38 AM Fraud is not traditional wrote ...
Corrupt tribal leaders supported by organized crime, and the sleazy lawyers that defend them, are the real problem. Tribal members need a way to defend themselves from the thugs that have taken over many of the tribes that are awash in gaming money. Granting expanded authority to these crooks to control the courts and law enforcement on tribal lands is absolutely the wrong thing to do. Just say no to Kangaroo courts!
18351861Saturday, Mar 21 at 12:43 AM Desatoya wrote ...
The Anderson's Study is flawed in many instances, including generalizing PL 280 in a limited perception. For instance, most California tribes are today under PL 280, are they successful or failure, according to the evaluation indicators of the study? Neighboring Nevada tribes choose to retrocede PL 280 during the early 1970's are they more successful or failure? According to empirical outcomes, Nevada enjoy more sovereignty,at times more economic flexibility - success is competitiveness.
18346972Friday, Mar 20 at 3:52 PM Wanbli wrote ...
I know without a doubt and I agree that public law 280 is colonized interventionism policy in the affair of a free and sovereign indigenous societies, it paralizes indigenous growth and the creative spirit, and must be reformed in the context of real freedom. Its a paternal mechinism that reppresses its will on us. The Red Nationalist people must be impowered to create a system of governance that liberates and affirms the spiritual knowlege of lifes connection with other independent sovereigns.
18331337Friday, Mar 20 at 3:40 PM Wanbli wrote ...
Sovereignty can never exsist with a same paradeigm of a colonal system of governance, it must be a traditional continumn of governace that maintains the values, norms and ideology that is lead by the spirit of our common Creator. State compacts, not per cap's; are the reason for the attack on indigenous nations sovereignty. And, its white nationalist rules, guildlines and laws that are unethical, imperial, colonized, racist, that arodes the indigenous people's common spiritual sovereign heritage
18330691Friday, Mar 20 at 3:23 PM Its well known wrote ...
Its well known the tribal courts are 638 Contract Agents of the tribal council and I believe they are both corrupt! On my rez they banished a 17 kid, with actions of a white judge and a white prosecuter.
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