Supreme Court largely sides with State in PL 280 ruling

“Justiciable” was the word floating around the Lake County Courthouse last Tuesday as Lake County officials looked for a ray of hope in the otherwise unfavorable Supreme Court ruling regarding Public Law 280.

The High Court ruled in its 21-page opinion that Lake County can sue the State of Montana for the costs associated with prosecuting and imprisoning tribal members accused of felonies on the Flathead Reservation, which is where the term “justiciable” comes in. But the county can’t seek payment in arrears, and it’s still up to the Legislature to allocate funds to help pay for the 60-year-old law enforcement agreement between Lake County, the Confederated Salish and Kootenai Tribes and the State of Montana.

According to last week’s ruling, “Lake County will be reimbursed only if the Legislature chooses to appropriate the money.”

Under the agreement, the county covers the costs of prosecuting and detaining tribal members accused of felonies. While Sanders, Flathead and Missoula counties are also signatories, far fewer tribal members reside within those counties, so the financial burden is considerably less. The Tribes continue to prosecute and detain tribal members for misdemeanors, and some felonies.

Lake County contends that the costs of caring for inmates and investigating and prosecuting felonies has risen considerably since the agreement was inked in the mid-1960s, and that the state should help relieve local taxpayers, who foot most of the bill.

The Flathead Reservation is the only reservation in Montana that participates in PL 280. The remaining six fall under the jurisdiction of tribal and federal law enforcement agencies.

Lake County has been billing the Department of Justice for reimbursement of costs associated with PL 280 since May, which has so far amounted to nearly $967,000.

County Commissioner Gale Decker says charges are based upon “the number of beds per day that were occupied by tribal inmates, medical costs, including prescriptions, and transports to Deer Lodge,” home to the Montana State Prison. The county has noted on its claims that those amounts do not reflect the total costs, “due to the lack of manpower to do the calculations.”

Despite the Supreme Court ruling, the county plans to continue submitting monthly bills.

What’s next?

As of Tuesday, the county hadn’t discussed the ruling with its legal counsel, and Decker said the path forward was uncertain. It could include pursuing another lawsuit that would utilize the invoices to try and prove that the state has imposed an “unfunded mandate” upon the county.

Another option is for Lake County to again assert its intention to withdraw from the agreement. Under state law, the governor then has six months to issue a proclamation to that effect.

The county did announce that it was pulling out of PL 280 a year ago, but Gov. Greg Gianforte refused to issue the proclamation, citing a clerical error on the county’s part.

Another formal attempt of withdraw “would start the six-month clock ticking again,” said Decker, and might “put to bed the controversy over whether the governor was notified properly.”

Such a move “might also put some pressure on the Legislature to take some action.”

The matter has been before the Legislature multiple times, including 2021 when the legislative body acknowledged the state’s responsibility to fund PL 280 but only authorized $1 to do so, and again in 2023, when the Legislature passed a bill that would have partially reimbursed the county while giving the Tribes, county and state two years to come up with a funding solution. The governor vetoed that measure, concerned that it would encourage other counties to also pursue funding aid for law enforcement.

As to pursuing a legislative solution this time around, Decker says that remains an option, although the county hasn’t confirmed with local legislators whether or not such a bill is forthcoming.

In a story about the conundrum published Dec. 2 in the online Montana Free Press, Sen. Greg Hertz of Polson said he plans to push for legislation in the next session that would help the county cover costs related to Public Law 280.

“The statute is clear that the state is responsible for the cost of Public Law 280,” Hertz told MFP. “I think Public Law 280 is an example of how it should be done everywhere. The CSKT likes it, tribal members like it, and Lake County residents like it. It’s just that the local taxpayers can’t pay for it any longer.”