On December 6, 2011, the Department of Justice published a final rule in the FEDERAL REGISTER (attached) which allows an Indian tribe to request that the federal government reassume criminal concurrent jurisdiction in mandatory Public Law 280 (PL 280) states. The final rule also sets the standards by which the U.S. Attorney General will determine whether or not to grant the tribe’s request. A tribe may initiate a request beginning on the effective date of the rule, January 5, 2012.
The authority for Indian tribes to request that the United States reassume concurrent criminal jurisdiction in Indian Country was a key component of the landmark Tribal Law and Order Act of 2010 (PL 111-211). Section 221, which provided this authority, was sought by Indian tribes to partially reverse over a half century of termination-era law that transferred federal criminal jurisdiction to six states without any tribal consent. This section, however, does not affect the state’s criminal jurisdiction over a tribe’s Indian Country. Thus, the outcome of a successful tribal request will be a system of shared criminal jurisdiction involving the federal, state, and tribal governments. Under the final rule, Section 221 applies to tribes located in mandatory PL 280 states, because it is the position of the Department of Justice that the federal government has always retained concurrent criminal jurisdiction in the non-mandatory PL 280 states. Section 221 also leaves the decision of whether to accept or reject a tribe’s request to the discretion of the U.S. Attorney General. We have previously described in detail the Department of Justice proposed version of rule and today we report on the major changes adopted in response to public comments.
Among the changes the Department accepted:
• Require the Office of Tribal Justice to notify the Governor and appropriate state and local agencies within 30 days of receiving an assumption request, rather than “promptly”
• Limit the comment period for state and local agencies to 45 days
• Allow the Office of Tribal Justice to share with a tribe redacted copies of comments on the tribal request and allow the tribe an opportunity to respond to comments in writing
• Change the first criteria for whether the Attorney General should grant an assumption request from whether the decision would increase availability of law enforcement resources to whether the decision would improve public safety and criminal law enforcement and reduce crime
• Remove the ability of a tribe to request that the federal government assume jurisdiction over a subset of violations of the General Crimes and Major Crimes Acts or in a limited geographic portion of the tribe’s Indian Country
Among the provisions the Department rejected:
• A provision calling for information, including funding and staffing details, on the effectiveness of federal criminal jurisdiction
• Requiring a public meeting on the tribal request
• Requiring the Deputy Attorney General and the Office of Tribal Justice to meet personally with the tribe to discuss outside comments and recommendations
• Criteria for evaluating current law enforcement agencies’ successes or failures
• Consent to tribal requests be conditioned on the inclusion of specific features in that tribe’s justice system, such as due process protections for defendants, publicly available criminal codes, procedural and evidentiary rules, protections for victims’ rights, and procedures to protect victim information
• Periodic review of consent decision by the Attorney General
Please let us know if we may provide further information on the final rule or assistance in preparing an assumption request.