A new state law could make it easier for Washington’s tribal governments to obtain governance over certain civil and criminal matters on their lands.
Gov. Chris Gregoire on March 19 signed HB 2233, which establishes a process by which tribal governments can ask the state to retrocede, or return, jurisdiction over certain civil and criminal matters to the U.S. government. The bill was approved by the state Senate on March 5 and the state House the next day.
If approved, tribes would have authority over adoption proceedings, compulsory school attendance, dependent children, domestic relations, juvenile delinquency, public assistance, and operation of motor vehicles upon public roads, streets and highways. The state would retain jurisdiction over the civil commitment of sexually violent predators.
“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,” according to the House Bill Analysis.
“Major crimes under the federal law include homicide, assault, rape, kidnapping, arson, burglary, and robbery, as well as other serious felonies.”
Retrocession applies only to Native people in Indian country. Non-Native people still fall under the jurisdiction of the state.
Dawn Vyvyan (pronounced Vivian), an attorney for the Yakama Nation, said the law enables tribal governments “to govern their own people on their own lands” in the civil and criminal matters covered by the retrocession law.
There are cultural and social benefits to retrocession, Vyvyan said. Under current law, a juvenile offender who happens to be American Indian would fall under state jurisdiction, would be prosecuted in the state system, and if guilty would be sent to one of 21 state juvenile detention facilities.
Under retrocession, the juvenile offender would be prosecuted by the tribal justice system and sent to a detention facility close to home – better for family contact and cultural continuity.
The Port Gamble S’Klallam Tribe, assumed governance over adoption, foster care and guardianship March 29. The Suquamish Tribe, legalized same-sex marriage in August.
Washington’s retrocession law reverses a policy from the Termination Era. Public Law 83-280, enacted in 1953, 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, which was not one of the mandatory states, assumed some 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 tribes to request retrocession.)
State Rep. John McCoy, a member of the Tulalip Tribes, sponsored HB 2233, which garnered 16 co-sponsors, among them Rep. Jeff Morris, Tsimshian, of Anacortes. According to a House Bill Analysis, seven tribes in Washington sought and received retrocession for criminal cases: Chehalis, Colville, Muckleshoot, Quileute, Skokomish, Swinomish, Tulalip. But there was never a clear process for how to retrocede, until now.
Under McCoy’s law, the governing body of a tribe must submit to the governor a retrocession resolution and a plan for the tribe's exercise of jurisdiction. Tribes are encouraged to collaborate interlocal agreements with affected municipalities; many already have interlocal and mutual aid agreements for law enforcement and fire protection service.
Within 90 days of receipt, the governor must convene a government-to-government meeting with the governing body of the tribe and consult with elected officials from counties, cities and towns in the area of the proposed retrocession.
ithin one year, the governor must issue a proclamation 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 submitted to the federal government. Retrocession will be effective after it is approved by the Secretary of the Interior, as required by federal law.
The retrocession law should also clear up some jurisdictional confusion. State jurisdiction over civil and criminal matters in Indian Country were not uniform, “and partial retrocession has already occurred with respect to some tribes, leading to a complicated and inconsistent jurisdiction scheme,” according to a summary by the law firm Hobbs, Straus, Dean & Walker. “This legislation could potentially help create greater uniformity in jurisdiction across the different reservations in Washington.”