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Public Law 280: The path forward

by KRISTI NIEMEYER
Hagadone News Network | December 20, 2023 12:00 AM

“You have my commitment that – no matter what happens going forward – if you call 911, we're coming,” Lake County Sheriff Don Bell said during a crowded meeting at the Lake County Courthouse last Thursday.

“We don't care, frankly, who the bad guy is until we know everybody's safe,” he added.

The sheriff, county and civil attorneys, county commissioners and members of various law enforcement agencies were on hand for a public meeting to address questions and concerns about Lake County’s recent announcement that it’s pulling out of Public Law 280. The agreement between the state, county and Tribes has governed felony law enforcement on the Flathead Reservation since nearly six decades.

County Attorney James Lapotka reiterated Bell’s statement: “When you have to call 911 or when there’s a problem, the nearest available law enforcement officer – whether they're wearing green or brown or blue – is going to show up at your door and figure out what's going on. And I think, on the ground, our law enforcement officers do a phenomenal job with that.”

The same message was delivered by CSKT Police Chief Craige Couture.

“I think, realistically, we just want to reassure the public we're going to be out there, regardless,” he said.

He then asked for a show of hands from law enforcement in the room, which included tribal and city police, county officers and Highway Patrol, adding, “We're still all going to be there. The same amount of law enforcement is still going to be available to handle calls.”

Lake County formally announced that it was pulling out of the decades-old agreement last month after losing a lawsuit that would have compelled the State of Montana to help fund the arrest, investigation, prosecution and incarceration of tribal members alleged to have committed felonies on the reservation.

Commissioners say, and the state’s own assessment agrees, that enforcing Public Law 280 is costing local taxpayers an extra $4 million annually.

“To me, unfortunately, this is a financial decision,” said commissioner and former county sheriff Bill Barron, who has worked on the Blackfeet Reservation, which is not governed by PL 280, and on this reservation, which is.

“When Public Law 280 works, I think it is an outstanding way to provide law enforcement. Unfortunately, we don't have the money to support it anymore.”

The six county representatives all lambasted Gov. Greg Gianforte for vetoing a bill passed by the last legislature that would have paid the county $2.5 million a year for two years. Under House Bill 479, a study group comprised of county, tribal and state representatives would have been tasked with studying the issue and presenting their findings to the governor prior to the 2025 legislative session.

The county also recently lost a lawsuit against the state, seeking compensation for expenses incurred under the agreement. They’ve challenged that decision in the Supreme Court.

Meanwhile, the governor has six months to issue a proclamation, acknowledging the county’s decision to withdraw from the agreement.

“Can I get whoever's from the governor's office to raise their hand?” asked Lapotka rhetorically.  “If the governor was taking this seriously, he'd have appointed a special administrator for Public Law 280 jurisdiction on the Flathead Indian Reservation. He'd tap somebody in the attorney general's office and say, you're in charge of this … and we’d have a partner that we could negotiate with and we could work with.”

A LETTER addressed to the governor and shared at last week’s forum listed some of the questions and concerns the county has, including the following:

• Will the state provide its own uniformed officers? If so, will they work through Lake County or the state dispatch?

• How will the state, at the scene of a crime, determine whether an alleged defendant belongs in tribal, state or federal court?

• How and where does the state plan to detain tribal members, including juveniles? And what’s the state’s plan for housing around 25 inmates currently serving time in the Lake County jail under PL 280?

• Where will tribal defendants be tried under the new arrangement, since the two District Court judges are paid by the state, but the courtroom belongs to Lake County and the clerk of court is an elected county official?

Lapotka also voiced concerns about existing investigations and ongoing cases. He said his office files around 370 felonies each year, and up to 50% of those cases involve tribal members.

After the county pulls out of PL 280, “if they're a federally recognized tribal member, they're going to have to get processed by some agency other than mine, and they're going to be housed someplace other than our jail,” he said.

At the same time, he wonders what will happen to cases the county has already prosecuted – people who have outstanding warrants or had their probation revoked. “I've got a lot of questions that don't have answers,” he said.

To try to find answers, he reached out to his peers in other counties that are located on reservations and discovered “they're very different counties from ours and very different reservations,” he said.

The most significant difference is that in those counties with majority tribal populations, federal entities like the Bureau of Indian Affairs and FBI investigate and prosecute felonies.

“We have a much more integrated society here in Lake County on the Flathead Reservation, so those models just really aren't going to work here,” he said. “We can't just have the sheriff and all the state people stay off the reservation because we are the reservation. It's going to require some creativity.”

COUTURE DISCUSSED the ways in which tribal courts and law enforcement are poised to help with the transition. He believes that the so-called Retrocession Agreement signed in 1995 and again in 2015, that gives the Tribes exclusive jurisdiction over misdemeanor crimes by tribal members within the reservation boundaries, could be a model for the new arrangement.

“Instead of reinventing the wheel, I believe if we just stick with that for the time being, it will work,” he said.

According to Couture, the tribal jail can house around 40 inmates, and is rarely at capacity. The Tribes also have two courtrooms, two judges, several prosecutors and a public defenders office. They’ve been handling misdemeanors involving tribal members for nearly three decades, and also have authority to prosecute certain felonies.

In the past year, tribal law enforcement has handled 40 felonies and around 300 drug cases, Couture said. They work with federal agencies and the state Attorney General’s office on major crimes, especially drug cases.

Couture pointed out that between the other signatories of Public Law 280 – including Flathead, Missoula and Sanders counties – city police departments, the Highway Patrol and federal entities, nine different law enforcement agencies are at work on the reservation.  

“That’s going to continue, we're just taking on more and more responsibility,” he added.

Barron emphasized his confidence in tribal officers, who undergo the same training as all law enforcement officers in Montana.  

“We've got an outstanding tribal police program,” he said. “It's professional and it's as good of a law enforcement department as you're going to find anywhere.”

“There definitely will be some frustrations” with the transition, he added. “That's just going to be a fact. But if I thought it was going to tear this county apart and tear it down, I would never support this.”

Lapotka emphasized that cooperation between his department and the tribal court system will continue, regardless of Public Law 280. “I've been working with tribal law enforcement for 15 years now, and we have some great relationships with their prosecutors, their law enforcement officers. That's not going away,” he said. “We're just looking for this mystery new partner from Helena that hasn't shown up yet.”

Commissioner Gale Decker also emphasized cooperation and finding a local solution. “We have to figure out how to make this transition in a way that best protects the well-being and safety of all of our people here,” he said. “We are a community, we are a reservation, and most of us are not going anywhere. It’s too great of a place.”

He ended the meeting encouraging participants to email Gov. Gianforte with their questions and concerns.