On January 18, 2017, the United States Department of Justice through John C. Cruden, Assistant Attorney General, and Sam Hirsch, Principal Deputy Assistant Attorney General, sent a memorandum to all U.S. Attorneys in so-called “optional” PL 280 states (Washington, Idaho, Montana, and Florida) advising them that the official position of the Justice Department is that the United States retains concurrent criminal jurisdiction in those states. The memorandum resolves “a longstanding question” as to whether the United States has concurrent jurisdiction to prosecute crimes under federal criminal statutes in states such as Washington, Idaho, Montana, and Florida, which “opted in” to criminal jurisdiction in Indian country under Section 7 of Public Law 83-280 (PL 280).
The memorandum clarifies that the Justice Department “no longer adheres to the position [the Office of the Solicitor General] took more than 35 years ago on this issue.” In Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) (Yakima), DOJ argued that the United States had ceded federal jurisdiction to Washington, an optional
PL 280 state. A year later, the Office of the Solicitor General declined to authorize an appeal in a criminal case against an Indian in Washington because the State had optional jurisdiction under PL 280.
In support of its position the Justice Department cited the DOJ manual as well as a provision of its regulations codified at 28 C.F.R 50.25(a)(2) that states that its “view” is that concurrent jurisdiction exists in optional PL 280 states. More importantly, the Justice Department interprets the text of PL 280 to suspend federal criminal jurisdiction in
Indian country only in the “mandatory” states. The Justice Department also concludes that its position of concurrent jurisdiction is supported by the well-established presumption against implied repeals. Finally, the Justice Department argues that while the “mandatory” PL 280 states were consulted prior to passage of the law, the “optional” PL 280 states were not. This distinction supports the argument that Congress intended to treat criminal jurisdiction in “mandatory” and “optional” PL 280 states differently.
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