Anthony Broadman: Court expands state powers on tribal land

The practical result of Washington v. Shale was predictable: Washington has criminal jurisdiction over an Indian who commits a crime on the reservation trust land of a Tribe other than his own. The Court observed that such jurisdiction was probably concurrent with the Tribe’s jurisdiction (under Lara).

After a lengthy exposition of Washington’s version of P.L. 280, retrocession, and criminal jurisdiction over tribal members, the Court held that on the Quinault reservation, the federal government has accepted retrocession of state jurisdiction over members of the Quinault Indian Nation. Because the defendant was not Quinault, jurisdiction over him had not been retroceded. So the state possessed jurisdiction over him under P.L. 280.

But at least two aspects of the decision are concerning.

First, the case deals directly with the Quinault Nation’s jurisdiction over Indians on its reservation trust lands, and the tribe appears to have watched idly while a state court unilaterally limited Quinault authority. Prudentially speaking, the tribe might have wanted state jurisdiction over this particular crime: failing to register as a sex offender. But if it did, it might have entered into an extradition arrangement, asserted its sovereignty and expressly allowed the arrest and prosecution, or participated in the case and helped to fashion a remedy that did not put tribal jurisdiction in the sole hands of a state court.