Law enforcement up for grabs on Flathead Reservation starting Monday (2024)

Starting Monday, Lake County officials say they will no longer accept Flathead Reservation tribal members in their jail.

The county will not pay costs to house tribal juvenile defenders. And it will stop performing autopsies on tribal members, among other things.

The change is the latest consequence of a years-long conflict between Lake County and the state of Montana regarding a nearly 60-year-old law enforcement agreement.

On Monday, the state will likely assume felony criminal jurisdiction over tribal members on the Flathead Reservation. Gov. Greg Gianforte has disputed this, citing a technicality. He's also said he intends to pull the state out of the agreement, which would kick jurisdictional authority to the federal government.

UCLA law professor Carole Goldberg likened the situation in Montana to a “hot potato.”

“Who’s going to get caught with it?” she asked. “Is it the tribes, the feds, the county or the state?”

The conflict surrounds Public Law 280, which transferred legal authority on some reservations from the federal government to state governments. Six states, not including Montana, were initially required to adopt the law without tribal consent. In those states, if a tribal member commits a felony on a reservation, state law enforcement— rather than the Bureau of Indian Affairs or FBI— has jurisdiction.

The agreement, which did not require tribal consent, has long been controversial.

Goldberg, co-author of “Captured Justice: Native Nations and Public Law 280,” is considered the preeminent authority on Public Law 280. To understand the law, she said one must first look at what was going on in the country when it passed. At the time, the official U.S. policy toward Indian Country was “termination,” meaning the explicit goal was to disband tribes and sell tribal land.

“(The intent with Public Law 280) was to impose a criminal law upon tribal members to prepare them for a future time— presumably not in the far-distant future— when they would no longer be protected by a federal trust responsibility, when they would no longer have land held in trust for the tribe, they would no longer have a government-to-government relationship with the United States,” Goldberg said, adding that Public Law 280 was billed as a response to “lawlessness” on reservations.

In effect, Public Law 280 eroded tribal sovereignty, expanded state jurisdiction over tribes and virtually eliminated federal criminal authority on tribal lands. The federal government, however, did not appropriate money— for things like police forces, jails or courts— to states that enacted Public Law 280.

“After World War II, President Dwight Eisenhower is trying desperately to reduce expenditures by the federal government, and (Public Law 280) was one to be offloaded,” Goldberg said. “Today, we would call it an unfunded federal mandate. They didn’t have the terminology then.”

Even as federal policy shifted to support tribal self-determination in the 1970s, termination-era laws, like Public Law 280, remain in effect and have lasting consequences.

“The federal government has refused to provide financial support … on reservations where Public Law 280 prevails,” Goldberg explained. “(The consequences of that) were never envisioned … because Public Law 280 envisioned that these tribes wouldn’t even exist in the future.”

Lake County flip-flops

While states in the 1960s largely welcomed the opportunity to police tribes, attitudes have since shifted, mostly due to cost.

The Confederated Salish and Kootenai Tribeshave operated under Public Law 280 since 1965, so since then, Lake County law enforcement has exercised jurisdiction over felony crimes committed by tribal members on the Flathead Reservation.

The tribes technically share felony jurisdiction with the state, but their police force, courts and sentencing abilities are limited. If a tribal officer charged a tribal member with a felony, the tribal court may be able to sentence the person to a maximum of about nine years— assuming the court has the resources to sustain that kind of sentence.

Lake County overlaps the Flathead Reservation. Fifty years ago, county officials supported Public Law 280, saying it would help address lawlessness on the reservation. In the decades since, however, the county has lost significant tax revenue, and its attitude toward Public Law 280 has changed. Lake County has said Public Law 280 costs taxpayers about $4 million each year, and the county can no longer afford to pay for it.

A 2017 Courthouse News article traces the county’s initial frustration with Public Law 280 to 2015 when the CSKT purchased Kerr Dam, a major facility on the Flathead River. Following the transaction, the county lost about $2 million in state tax revenue, according to the article.

County officials have tried to get reimbursed for enforcing Public Law 280 through legislation and litigation. Those efforts, however, have largely failed.

The complex history of Lake County and PL 280

While some states were required to adopt Public Law 280, in Montana, it was optional.

In 1963, the Montana Legislature passed a law allowing counties, or the entire state, to opt in to Public Law 280. Unlike the original law, this one required consent from the involved tribes.

Of the 12 tribes in Montana, only the Confederated Salish and Kootenai Tribes (CSKT) on the Flathead Reservation supported it.

The CSKT were motivated to do so, according to Goldberg, due to the federal government’s failure to police the reservation. The tribes also lacked necessary personnel and funding to enforce jurisdiction. According to Goldberg, the CSKT at the time had just 11 employees, two of whom were tribal police officers. Of the tribes’ $250,000 annual budget, $25,000 went to law enforcement.

In 1965, the tribes agreed to share jurisdiction with the state regarding criminal offenses committed by tribal members on the reservation.

However, the tribal council withdrew its consent to Public Law 280 just one year later. But the Bureau of Indian Affairs (which was required to sign off on it) opposed the move.

In 1968, a provision in the Indian Civil Rights Act allowed states to “retrocede” or return criminal jurisdiction over reservations to the federal government. While retrocession means counties and states no longer have to pay for some law enforcement services on reservations, some states have been hesitant to give up jurisdiction over tribal members on reservations.

Retrocession, generally, has allowed tribes to build culturally informed systems of rehabilitation, which has strengthened community trust in law enforcement. It has also allowed tribes to respond to and rectify inadequate or discriminatory state policing.

“Tribes in general feel that to the extent they can take more control over these, they’re better off as a community,” Goldberg said.

In 1991, CSKT again expressed frustration with the agreement, saying there was a disproportionate number of tribal members in state prison and that tribal members received harsher sentences than non-members, according to Goldberg. By this time, the tribes also had more resources. They had 1,200 employees, a budget of more than $70 million and the largest tribal law force in the state.

A state representative brought a bill to allow the tribes to withdraw consent. Officials from Lake County strongly opposed it, arguing that a transfer of jurisdiction back to the federal government would lead to lawlessness. The bill did not pass.

In 1993, another bill was proposed. It would allow the tribes to exercise partial criminal jurisdiction over misdemeanors committed by tribal members on the reservation. Lake County officials strongly opposed the bill, and when it died, the tribes declared an economic boycott against the county. The tribes moved their money to banks in Missoula and Kalispell. They also threatened to shut down an airport, to refuse to sign a document affecting drinking water policies and to close the south half of Flathead Lake to non-tribal use.

The Legislature later adopted an amended version of the bill, allowing the tribes to reassume exclusive jurisdiction over misdemeanor crimes committed by tribal members on the reservation. To prepare for this, the tribes expanded their court system and legal services. In 1999, the agreement was renewed, though Lake County did not sign.

While tribes elsewhere have celebrated retrocession from Public Law 280 as a victory for sovereignty, retrocession looks different everywhere. Though no other reservation in Montana operates under Public Law 280, several tribes in the state have taken issue with the federal government, saying it has not provided adequate law enforcement services on tribal lands.

What happens on Monday with Public Law 280?

On Monday, Lake County is set to officially withdraw from the agreement. A withdrawal willkick criminal jurisdiction over tribal members to the state. County officials say they’ve been left in the dark as to what that will look like on the ground.

But Gianforte's legal counsel responded that the state hasn't received the commissioners' official notice of withdrawal.

"Without receipt of that resolution, the governor's obligation to issue a proclamation is not triggered," governor's General Counsel Anita Milanovich wrote on Thursday. "As such, I must conclude that a proclamation from the governor is improper at this time."

The governor has said the state will likelyinitiate a “retrocession,”which would essentially mean the federal government and tribes would share felony jurisdiction on the reservation. If approved by the U.S. Interior Secretary, this means if a tribal member committed a felony on the Flathead Reservation, the Bureau of Indian Affairs or FBI would have jurisdiction— not county police or state entities, such as the Montana Highway Patrol.

When or if that would happen was left unclear in the Thursday letters from the governor's office. Gianforte did not respond to requests for further clarification.

Meanwhile, reservation residents— tribal and non-tribal— are concerned about how this will affect their community and public safety.

Lake County Commissioner Gale Decker said the county is frustrated by the lack of communication from the governor, which he said will have public safety consequences.

“I guess we’ll wait to see what the future brings,” he said.

While the tribes have hesitated to weigh in publicly about the dispute, in March, CSKT Chairman Michael Dolson said the tribes would continue to collaborate with all entities and that public safety remains a priority.

If retrocession were approved and if the CSKT were given adequate resources to share jurisdiction, Goldberg said she has “no doubt” that the CSKT could manage shared felony jurisdiction.

At the end of the day, though, Goldberg said it all comes back to one thing— money.