XI. Funding Inequity and California's Special Legal Status

Public Law 280 and the Breakdown of Law

in California Indian Country

Since 1953, special jurisdictional rules have operated in California, as well as several other states. Congress mandated these rules in a statute known as Public Law 280.[1] Public Law 280 withdrew federal criminal jurisdiction on reservations in the designated states, and authorized those same states to assume criminal jurisdiction and to hear civil cases against Indians arising in Indian Country. In states without Public Law 280, the federal government has authority over most reservation crimes except for minor crimes involving only Indians; tribes have criminal jurisdiction over crimes committed by Indians, some of which overlaps with federal criminal jurisdiction; and the states lack civil and criminal jurisdiction over Indians in Indian Country.

California tribes suffer not only from funding inequities, but also from the jurisdictional effects of Public Law 280. Indeed, as the discussion below will demonstrate, the two problems are interrelated. This section highlights the problems associated with Public Law 280 and ultimately recommends a fundamental revision of its terms.

Any account of the jurisdictional effects of Public Law 280 must differentiate the symbolic, the direct, and the indirect consequences. Symbolically, Public Law 280 was an affront to tribes because it unilaterally abrogated treaty rights held by some of the affected tribes, and because it diminished tribal sovereignty of all the affected tribes without their consent. It accomplished these results by greatly enlarging the powers of certain states, including California, on Indian reservations.[2] In treaties with some of the affected tribes, the federal government had promised that reservations would be set aside for their sole and exclusive use and occupancy. Those words have been interpreted to exclude the possibility of most state jurisdiction on the reservations.[3] Even tribes without treaties, which includes most California tribes, had been guaranteed freedom from state jurisdiction on their reservations through Supreme Court decisions resting on tribal sovereignty and the Indian Commerce Clause of the United States Constitution.[4]

Public Law 280 overturned those treaty promises and judicial rulings without tribal consent. Indeed, many tribes actively opposed passage of the law, at least to the extent their meager funds could support travel to Congressional hearings.[5] There was little likelihood that the Supreme Court would find Public Law 280 unconstitutional because of this lack of consent, as the Court usually upheld Congressional power over Indian affairs. But the failure to secure tribal consent demonstrated such disrespect for tribal governments that President Eisenhower was moved to comment on that defect at the time he signed the bill into law.[6] His statement acknowledged that Public Law 280 sent a loud message that Congress would cast aside tribal rights in favor of state power. Brute force rather than negotiations among governments was the model.

Apart from this symbolism, the direct effects of Public Law 280 were twofold: First, it extended state criminal jurisdiction and civil judicial jurisdiction over reservation Indians in certain states; second, it eliminated special federal criminal jurisdiction over reservation areas in most of those states. Thus, the law substituted state legal authority for federal on all the designated reservations. Historically, states resented the special rights and status of tribes under federal law, and the federal government often intervened to protect the tribes.[7] Public Law 280 did not strip the tribes of most of these rights, and did not erase the trust status of their lands. But by giving the states additional authority on reservations, it empowered an often hostile force.

In view of the fact that federal courts were not authorized to hear many civil and criminal disputes arising on reservations in the pre–Public Law 280 era,[8] Public Law 280 also expanded the realm of non–Indian control over reservation activities. State courts suddenly could hear reservation–based civil disputes and criminal cases that federal courts would not have entertained in the past and that tribes would have treated as within their sole purview. The direct effects of Public Law 280 were not the only effects, however. Although this law only addressed the question of which governments had power to resolve criminal and civil disputes on reservations, its passage signaled a change in the philosophy shaping federal Indian policy. No longer would the federal government profess (if not discharge) responsibility for the welfare of tribes and tribal members.[9] Instead, states would be asked to assume that responsibility, just as they were assuming responsibility for the education, welfare, and health care of needy non–Indians. Public Law 280 was just a small step toward the realization of that vision. But the federal Indian bureaucracy –– the Bureau of Indian Affairs –– used it as an excuse for redirecting federal support on a wholesale basis away from tribes in the "Public Law 280 states" and toward all other tribes.[10]

Nowhere was this reallocation of funds more evident than in California, where the Congress also singled out 41 small reservations (out of more than 100 in the state) for termination –– meaning that these tribes would no longer be recognized by the federal government, and lands would no longer enjoy federal trust protection. Together, termination and Public Law 280 formed a toxic brew, eating away at the funds authorized by federal law for Indian welfare, education, and health care in California. Moreover, for California, the advent of Public Law 280 meant that tribes were never "dealt in" to many of the new federal Indian programs that Congress and the Bureau of Indian Affairs instituted in the 1960s and 1970s, largely in response to social movements of that period. The most striking illustration of this phenomenon is funding for tribal law enforcement and tribal courts. Until the middle of this century, federal Courts of Indian Offenses handled dispute resolution on many reservations, ruthlessly imposing non–Indian norms on tribal members. In the 1960s, tribes in the non–Public Law 280 states began to form their own judicial and law enforcement systems, partly to fend off state jurisdiction and partly to express their own sovereignty. Federal funding for tribal courts and police escalated sharply outside of California, fueled by a growing number of United States Supreme Court decisions affirming exclusive tribal jurisdiction over reservation–based disputes. In California, however, the Bureau refused to support tribal justice systems, on the ground that Public Law 280 made tribal jurisdiction unnecessary and perhaps even eliminated such tribal authority. In fact, courts, attorneys general, and federal administrators have affirmed that tribal legal authority survived Public Law 280.[11] But legal authority requires infrastructure and institutions, and Public Law 280 stood in their way.

These symbolic, direct, and indirect consequences combined to produce much distress for tribes; but they also produced a massive irony. The legislative history of Public Law 280 is laden with references to the problem of "lawlessness" on reservations.[12] Traditional tribal justice systems were described as weakened and ineffectual, and federal mechanisms were considered too limited in their jurisdiction and too costly to expand. Reservations were described as places of rampant crime and disorder. Public Law 280 was supposed to provide the solution to this problem of "lawlessness" by empowering state civil and criminal courts to do what the tribal and federal systems supposedly could not.[13] Ironically and tragically, however, Public Law 280 has itself become the source of lawlessness on reservations. Two different and distinct varieties of lawlessness are discernible. First, jurisdictional vacuums or gaps have been created, often precipitating the use of self–help remedies that border on or erupt into violence. Sometimes these gaps exist because no government has authority. Sometimes they arise because the government(s) that may have authority in theory have no institutional support or incentive for the exercise of that authority. I will call this kind of lawlessness the "legal vacuum" type. Second, where state law enforcement does intervene, gross abuses of authority are not uncommon. In other words, power is uncabined by the law that is supposed to constrain it. I will call this kind of lawlessness the "abuse of authority" type.

What explains this phenomenon of lawlessness spawned by a statute designed specifically to combat lawlessness? The capacity to contrast Public Law 280 states with all others offers a kind of natural (somewhat controlled) experiment. Three recent incidents in California Indian Country, and implicit comparisons with what would have happened in non–Public Law 280 states, set the stage for an explanation.

Incident 1: Sludge Dumping at Torres–Martinez[14]

Located in California's Coachella Valley near the desert town of Indio, the Torres–Martinez Reservation is about half tribally owned and half allotted. In 1989, a tribal member leased her family's 120–acre allotment to a company that proposed to use the site to dump, dry, and compost human waste from treatment plants in San Diego, Orange, and Los Angeles counties. Complaints soon surfaced from tribal members living nearby. The sludge pile stank. It attracted legions of flies. It fouled the local water supply with bacteria and heavy metals. As it dried and was hauled away, it formed great clouds of dust, which choked nearby residents and coated surrounding homes. Meanwhile, the allottee who had leased the land moved off the reservation.

What could the complaining tribal members do to get rid of the sludge? The 400–person Torres–Martinez tribe had not been asked to and had not approved the lease. This failure to seek prior permission is not surprising, given the structure and operation of the tribal government. Although the tribe has a five–member Tribal Council headed by a tribal chair, it has no constitution. Neither does it have codes or ordinances prescribing the conditions for approval of leases or imposing restrictions on activities that might harm the environment. There is no tribal law enforcement agency, and no tribal court or other form of justice system. When disputes arise within the tribe, the only recourse available is to the Tribal Council, which ordinarily refers the matter to the next meeting of the General Council –– all the members of the tribe convened together. The criteria applied at such meetings are not specified in advance, but a spokesperson for the Tribal Council described the unwritten tribal policy as "you can do what you want on your property as long as it doesn't bother other people or the environment."[15] At another point, a spokesperson stated, "She doesn't need our permission for a little business, but the tribe has to decide whether something this big is OK."[16]

Eventually, in February, 1994, the general council adopted a resolution that the dumping facility should be closed. But the allottee and the dumping companies disputed the Council's authority over allotted land, especially given the absence of a tribal code provision or constitution; and there was no court or other form of justice system available to enforce the Council's resolution. The dumping just went on.

Internal conflicts within the Torres–Martinez tribe partly account for the lack of legal infrastructure. There are divisions among allottees and non–allottees, as well as among traditional family groups, leading many to have qualms about creating a powerful tribal government. But part of the responsibility lies at the feet of Public Law 280, which, as described above, prevented tribal justice systems from sprouting in California Indian Country the way they did elsewhere in the United States.

State law could not help the complaining tribal members either, even with the powers the state acquired from Public Law 280. Provisions in Public Law 280 itself preclude states from exercising any authority, civil or criminal, that would affect the status or use of trust land.[17] This exception to state jurisdiction was included in Public Law 280 because the federal government was not relinquishing its trust responsibility over Indian lands, even in states covered by that law. It was merely inserting state justice systems onto the reservations, not terminating the tribes altogether. (Of course, Congress did terminate some reservations in separate legislation enacted soon afterward.) In other words, Public Law 280 was intended to be a point on the path toward termination, but not termination itself. This exception language in Public Law 280 was enough to prevent state jurisdiction over the sludge dumping at Torres–Martinez; but there were other obstacles to state authority as well. In 1976, the United States Supreme Court interpreted Public Law 280's grant of state civil jurisdiction in a highly restrictive manner.[18] According to the Court, states only acquired the authority to hear civil lawsuits against reservation–based Indian defendants, not to apply state civil regulatory statutes, such as health codes and animal control laws, on reservations. Indeed, even if criminal penalties formed some part of these regulatory codes, code enforcement was outside state authority. If the complaining tribal members had sought to invoke California's solid waste disposal laws, they would have run into the argument that these laws are regulatory and therefore inapplicable to the reservation. Moreover, county zoning laws could not be employed against the dump, because other court decisions have limited the jurisdiction conferred by Public Law 280 to state laws; city and county laws are outside Public Law 280 because they are local rather than state–wide in scope.[19] And even though federal environmental laws offer states authority over dumping if certain conditions are satisfied, these same federal laws draw limits on state authority at reservation boundaries.

In the early 1990s, the California legislature doggedly sought to pass legislation allowing the state to control reservation dumping. Legislators pursued this course even in the face of legal opinions from the Department of the Interior, the Environmental Protection Agency, and California's own Legislative Analyst maintaining that the state had no such authority under Public Law 280 or any other federal law. Eventually California's governor bowed under the weight of legal reasoning and vetoed the bill. The legislature then substituted a statute that would facilitate agreements between tribes and the state over control of dumping, a recognition of the tribes' sovereign status.[20] This struggle over dumping legislation only underscores, however, the powerlessness of the state to aid the complaining tribal members at Torres–Martinez. The complaining members may have resisted the idea of state assistance on grounds of tribal sovereignty anyway; but even had they been willing to set those compunctions aside, they would have been confronted with the absence of state power to do anything about their problem.

Because the sludge situation at Torres–Martinez involved leasing and use of trust land, the federal government ought to have been available as a source of redress. As trustee of the allotment in question, its approval was required before the lease could be valid. Responsibility for determining whether to approve such leases rests with the Bureau of Indian Affairs. The National Environmental Policy Act also requires the Bureau to conduct an environmental assessment before approving any leases. Thus, if there was no federal approval, the Bureau should have been able to void the lease and stop the lessee's use of the property. As trustee for the remaining tribal land, the federal government was also obliged to take legal action against threats to that land, such as pollution of ground water or general nuisance. Thus, if the sludge pile was creating environmental hazards, the federal government had authority to sue to enjoin it.

In practice, however, the federal government played a passive role at Torres–Martinez. In 1990, the Superintendent for the local Bureau of Indian Affairs agency issued a cease and desist order against the dumpers. Bureau officials made no effort to enforce the order, however. Following the General Council's resolution in early 1994, the Tribal Council again requested action from the Bureau. Another cease and desist order was issued, but again, the dumpers ignored it and no enforcement action followed. By the summer of 1994 the Bureau received a proposed new lease for the dump-site, and referred it to the White House Council on Environmental Quality for guidance about whether the lease could be approved before an environmental assessment was completed. Relying on their perception that the tribal members were divided about the dump-site, Bureau officials did nothing to expedite a decision.

Public Law 280 did not mandate this passive federal role, but it did enfeeble the federal bureaucracy in California to the point where it could not effectively discharge its trust responsibilities. As such, Public Law 280 amplified a pattern of federal bias against California Indians that dates back to the 1850s, when Congress refused to ratify treaties negotiated with California tribes. Studies conducted as long ago as the 1920s document that California Indians have not received a proportionate share of funding from the Bureau of Indian Affairs.[21] The absence of treaties offers part of the explanation, but so does the decimation of tribal populations during the latter nineteenth and early twentieth century. California Native peoples were slaughtered, displaced, and starved; their social/political structures were disrupted; and their numbers targeted for extinction. When it became evident that they would not disappear, many were settled on small, undesirable reservations or rancherias scattered about the state, with the individuals at each such locale labeled a "tribe." It should come as no surprise that such a large number of diverse tribes, totaling over 100, was not well situated to sway the federal bureaucracy to provide funds and services. Mobilization of each individual "tribe" was hindered by the patchwork of tribal peoples that had been roughly stitched together at each site. Coordinating multiple tribes was nearly impossible without strong organization at the tribal level. And with so many tribes, the transaction costs of such coordinated action were just too high. A single tribe with the same number of members as the many tribes in California would have had far more influence.

With the passage of Public Law 280, the situation worsened. Entire federal Indian programs in areas such as welfare, health and education, and law enforcement were withdrawn from California.[22] As a consequence, California has a much smaller federal Indian bureaucracy in relation to its budget and population served than other parts of the United States. Only three agency offices serve the entire state and its more than 100 tribes, making lack of communication and responsiveness major obstacles to effective action. In contrast, most significant tribes across the country have their own agencies of the Bureau. The Sacramento Area Office, which services the entire state, is also understaffed by comparison with area offices elsewhere in the country.[23] Thus diminished in California, the Bureau was ill–equipped to investigate the problem at Torres–Martinez or to seek legal action from the United States Attorney in San Diego. And dealing with the remote and overworked Bureau staff was not an effective outlet for tribal grievances.

With the tribe, the state, and the federal government all hobbled by Public Law 280, the eruption of lawlessness was predictable. Tribal members at Torres–Martinez organized a protest group and began hounding the Bureau and the EPA with complaints. After the group organized a one–day blockade of the dump site in August, 1994, the house of a prominent group member was sprayed by bullets from an automatic weapon. Despite calls to the local sheriff, there was no state law enforcement response. Two months later, the protesters, now joined by over 100 environmental activists, members from other tribes, and local members of the United Farm Workers Union, piled old tires, railroad ties, chain–link fencing, and empty barrels at the entrance, bringing the 1,000 ton/day sludge deliveries to a halt. A tent encampment also materialized on the site, the protesters signaling their determination to resist the smelly invasion. As rumors circulated of attack by the allottees and their tribal allies, protesters fortified the encampment and prepared for confrontation. County sheriffs cruised the area but held back from arresting the protesters. At one point, trucks carrying the allottees and some sludge executives tried to break the blockade. After almost two dozen sheriff's deputies moved in, the blockaders stepped aside to allow the truck entrance. Then the blockade resumed.

At last, the federal government roused itself to action. At the request of the B.I.A., the United States Attorney for the Southern District of California filed suit to enjoin the dumping, claiming it was being conducted without federal lease approval and that it constituted a nuisance. Within two weeks of the start of the protest, a federal judge issued a temporary restraining order. A preliminary injunction followed six weeks after that. In the meantime, allies of the allottee seized the tribal hall during a meeting to nominate candidates for the next Torres–Martinez election and locked out the current chair, a sludge opponent. Notwithstanding this disruption, the current chair won reelection.

Lawlessness of the "legal gap" type is the central current of both this story and several of its tributaries. The chief instance of lawlessness, of course, is the blockade, itself a response to the legal vacuum that had been created on the reservation. Had legal authority been more fully realized in the tribal or federal government, the blockade –– a self–help action fraught with possibilities of lawless violence –– probably could have been avoided. If, for example, the tribe had developed a leasing code, an environmental review process, and some dispute resolution system, a decision could have been made to allow or not to allow the dump; and that decision would have benefited from community acceptance of the process. Alternatively, if the federal government had provided greater support for the Bureau officials in California, so they could enforce the laws of trespass and nuisance, the complaining tribal members might not have become so frustrated with federal inaction.

Yet this dominant tale of lawlessness should not be allowed to obscure the subplots. Lawlessness is also evident when members of the group opposing the dump were subjected to threats and intimidation, with no response from local law enforcement authorities. Even a spray of bullets across the home of Marina Ortega, the opposition leader, could not evoke a police presence. And as rumors of attack darkened the protesters' camp, they prepared fortifications rather than bother calling the sheriff.

Such stories are unfortunately common on reservations in Public Law 280 states such as California. John Mazzetti, Vice Chair of the Rincon tribe, testified in 1989 before the Senate Select Committee on Indian Affairs:

[T]he County Sheriff's Office response to criminal activity is almost non–existent. When the Sheriff's Office receives a call regarding gunfire and someone being shot, it often takes them more than one hour to respond to the incident, if at all. With criminal activities of a lesser degree, often the County Sheriff does not respond at all, leaving the reservation with little or no protection.

The San Diego County Sheriff has stated officially that he does not like to provide services to Indian Tribes....Perhaps the reason for this is due to the reservation not having a taxable base to draw funds from in order to defer the cost of providing law enforcement.[24]

Many tribes suggest that uncertainty about the reach of state jurisdiction under Public Law 280 is the source of sheriffs' reluctance to enter reservations. In fact, Public Law 280 creates a large gray area where state jurisdiction is doubtful, largely where a criminal law is part of a broader state regulatory scheme. This ambiguity in the law is not incidental or merely a drafting problem, however; it is a direct consequence of Congress's attempt in Public Law 280 to steer a middle course between terminating tribes and preserving tribal sovereignty. The problem of unresponsive county sheriffs, as understood in this way, is inherent in Public Law 280.

John Mazzetti's statement suggests another diagnosis for the problem of unresponsive county officers, however. By empowering the state only partially –– giving it law enforcement responsibility but not regulatory or taxing authority –– Public Law 280 bred resentment and neglect among state and local authorities. As Mazzetti points out, the sheriff had costly duties (especially where reservations were remote from county centers), but no means to fund them. Moreover, because the reservations in Public Law 280 states stood apart from state regulatory policy, state and local officials did not view tribal members as part of their political community. This lack of communality seems to have rendered local officials less inclined to protect citizens on reservations. When this absence of fellow feeling combined with the traditional hostility between local communities and tribal Indians, regardless of Public Law 280, the product was a void in county law enforcement.

It is true that tribes in non–Public Law 280 states complain about the nonresponsiveness of federal law enforcement, suggesting that Public Law 280 did not worsen the situation on reservations. But in non–Public Law 280 states, the tribes at least retain criminal jurisdiction over Indian offenders, so long as the penalty imposed is no greater than one year in prison and a $5,000 fine.[25] With the support the federal government has provided for tribal law enforcement and courts, the tribes are not so dependent on outside authority to maintain public peace. In the more serious cases, tribes may still need to rely on the federal government. But although federal agents, prosecutors, and courts are often located further from reservations than their state counterparts, federal authorities have often established cross–deputization agreements with tribal police, enabling the tribe to ensure greater responsiveness. Furthermore, the federal budgeting process and trust responsibility open the way for tribes to put effective pressure on federal officials to provide proper services. Substituting state for federal criminal jurisdiction thus weakened criminal law enforcement as a whole.

A final instance of lawlessness is manifest in the dispute over the Torres–Martinez tribal election, which led to one faction locking the other out of a tribal meeting. Violence was simmering, near to a boil. Close tribal observers note that economic forces have led to destabilization of the Torres–Martinez. Allottees and other tribal members are at odds over whether the tribe should be able to control activities on the allotments. These sharp differences may simply be an amplification of traditions of decentralization and kin group autonomy that long existed among many Southern California tribal groups. Nonetheless, in their current form, these divisions spill over into tribal elections, where members are tempted to use force because they perceive there is no legal authority to restrain corruption, chicanery, or failure to follow tribal rules.

Following contemporary tribal self–determination policy, the federal government generally stands aside from tribal election disputes, unless the outcome warrants withdrawal of federal recognition. The state has no say in such matters, unless they explode into violence. Thus the burden of supplying law fell to the tribe. Had California tribes benefited from the kind of government infrastructure support that tribes in non–Public Law 280 states received, there might have been election codes and justice systems in place to help resolve such conflicts. Codes would have established a political balance among competing interests in advance of a particular dispute. A justice system would have offered a less political method of dispute resolution once the conflict erupted over the election. Torres–Martinez had none of these.

Public Law 280 is largely to blame for this legal vacuum. It led the federal government to take California tribes less seriously as governments, denying them money to develop codes and courts. For example, in most years California receives not a single dollar of the $10,000,000 allocated annually by the Department of Interior for Indian judicial services. Less than 1 percent of the national B.I.A. law enforcement budget is allocated to California, which has at least 6 per cent of the total Indian service population. As one tribe recently complained, Public Law 280 "has hampered our protection from the local police and developing our own police."

At this point, according to close tribal observers, the Torres–Martinez tribe is so deeply divided that members are actually fearful that a tribal justice system will concentrate too much power in the tribal government. It is possible, of course, that traditions of decentralization and family autonomy within the tribe may have made the tribal members wary of a centralized justice system even without the dumping conflict and lack of federal support. But such traditions prevail among many tribes; and those traditions have not stood in the way of tribal court development in non–Public Law 280 states. The majority of tribes in non–Public Law 280 states have seen the advantages of tribal justice systems as institutions that protect tribal sovereignty and promote a more orderly community.[26] If the federal government had supported California tribes the way it supports tribes in non–Public Law 280 states, it is likely that groups such as Torres–Martinez would have come to the same conclusion.

Incident 2: Evicting undesirables at Coyote Valley[27]

The name Polly Klaas is indelibly linked with parental fears. In late 1993, this young girl was abducted from her bedroom while her terrified girlfriends looked on and her mother slept in a nearby room. After a two–month search that mobilized the local community and evoked national attention, her mutilated body was found. Soon afterward, a career criminal named Richard Davis was arrested for the crime on the Coyote Valley Reservation, near Ukiah, California, home to about 200 Pomo Indians. Davis, a non–Indian, was staying at his sister's house.

Davis's sister and her family had been living on the reservation for several years, renting a home from a tribal member. Concerns soon developed within the tribe about her drug dealing and other misbehavior, and the tribe began trying to evict her. Yet in a striking parallel to the situation at Torres–Martinez, legal recourse was unavailable, and Public Law 280 was largely to blame.

The tribe, the state, and the federal government were all effectively disabled by Public Law 280 from helping the Coyote Valley people. The tribe lacked a justice system or police arm that could carry out an eviction, in no small part because Public Law 280 served as an excuse to deny federal support for such institutions. A state court eviction proceeding could not be pursued because trust land was involved, and, as described above, Public Law 280 specifically denies states authority over such lands. State police possessed the power to arrest and prosecute Ms. Davis for the underlying drug violations, but following a familiar pattern in California Indian Country, no police response was forthcoming when tribal members complained. The B.I.A. superintendent for Northern California acknowledged that "under Public Law 280 jurisdiction is local, but 280 has eroded over the years. Local law enforcement is reluctant to come onto reservations because of cultural differences."[28] As at Torres–Martinez, the federal government did theoretically hold power to grant relief. The Coyote Valley tribe could have brought an eviction action in the nearest federal court. But forcing simple evictions into federal court is like requiring a college degree for a menial job. It is too costly, time–consuming, and rigorous to justify the ultimate benefit.

Art Bunce of the All Mission Indian Housing Authority in Escondido,California testified before the Senate Select Committee on Indian Affairs in 1989, complaining of the unauthorized influx of illegal drug manufacturers onto San Diego–area reservations. Even though some of these operations were in HUD–financed homes, the Housing Authority could not effectively evict them. As Bunce stated,

[T]he eviction procedure when actually used in earnest is extremely cumbersome....The Federal courts are overworked, understaffed, and the few cases the housing authority has brought for evictions in drug related cases are taking about 9 months so far and we haven't even gotten to the state of pre–trial conference yet. If that continues...the community will continue to have to endure the danger posed by drug operations, some operating in brazen openness on the reservation.[29]

Bunce recommended an amendment to Public Law 280, or at least a revision of the procedural rules for federal courts that would allow summary or expedited eviction proceedings of the sort routinely conducted in California municipal courts. Absent such an amendment, Public Law 280 had left the tribes with no competent means of effecting evictions.

Bunce's plaintive plea forecast the problem at Coyote Valley, where the tribe tried in vain for two years to stop the drug–related activity of Davis's sister. In another parallel to Torres–Martinez, the lack of effective legal redress at Coyote Valley (that is, the condition of lawlessness on the reservation) gave rise to self–help bordering on violence. At the time of Davis's arrest, the FBI removed Davis's sister and her family from their home for questioning and so that a search could take place. Afterwards, the FBI attempted to return the family to the reservation. But during the period while she was in police custody, the tribe had mobilized. One dozen armed deputies of the Coyote Valley Tribal Council, hastily empowered for the occasion, positioned themselves at the entrance of the reservation, limiting access only to tribal members. For more than an hour, these deputies faced approximately 60 armed law enforcement personnel at the roadblock before tensions eased and the family was taken away. Tribal members recall fearing an exchange of fire. Within a week, the tribe reached an agreement with federal and local authorities that Davis's sister and her family would not be resettled on the reservation. Violence was narrowly averted.

The roadblock at Coyote Valley had another purpose besides excluding the sister of Richard Davis. Tribal members wanted to register their outrage over the manner in which Davis had been arrested. Local law enforcement and FBI officers had swooped down on his sister's house without so much as notice to the tribal leaders. This disregard for the welfare of the tribal community and disrespect for tribal sovereignty seriously distressed the tribal members.

The same motifs of "legal vacuum" lawlessness that sounded at Torres–Martinez echo at Coyote Valley. There is the jurisdictional gap created when no governmental authority has effective control over evictions. There is also the absence of local law enforcement response when the tribal community is threatened, as by the alleged drug dealing by Davis's sister. Finally, there is the inevitable sequence of self–help and tense confrontation when the frustrated community can no longer tolerate its vulnerability. As explained above, Public Law 280 plays a significant part in creating each of these problems.

Coyote Valley also experienced the "abuse of authority" form of lawlessness when local law enforcement stormed into the reservation without notifying the tribe. Even though Davis was a notorious and violent offender, tribal leaders could have been alerted to this invasion of their territory. But Public Law 280 made such acts of comity less likely. First, the absence of a tribal police force meant there was no partner on the reservation for the federal and local police. Second, Public Law 280 diminished the stature of the tribe in the eyes of federal and local police, making them less attentive to the interests of the tribe. As a result, tribal members may have been endangered, and antagonism between the tribe and surrounding non–Indian community members increased.

Incident 3: Confrontations with police at Round Valley[30]

Round Valley, about 150 miles north of San Francisco, is one of the earliest and largest reservations established in California, dating back to the 1850s. Indians from several different groups –– Yuki, Wailacki, Pomo, Concow, Nomlacki, and Pit River –– settled there, some of them brought on a deadly forced march, others refugees from the war of extermination waged by non–Indians during the 1850s and 1860s. Today, approximately 1,200 Indians reside at Round Valley. In the spring of 1995, three homicides shook that community and exposed the enormous obstacles impeding effective law enforcement on California reservations.

To understand these homicides and their relationship to reservation law enforcement, it is necessary to view reservation life in historical perspective. In the nearly 150 years since Round Valley was established, the community fractured. Traditionalists, many of them educated members who had returned to the community, were on one side. They wanted to preserve and restore traditional cultures, assert tribal sovereignty, and achieve greater economic independence. On the other side were more assimilated members, connected with the Christian Church as a result of missionary activity, and integrated into the local non–Indian economy. A deep divide, coursing with animosity, came to separate these two group, and ultimately implicated the local non–Indian population. In particular, traditionalists perceived that the local non–Indians, who opposed the return to traditionalism, favored the more assimilated group, particularly when it came to law enforcement.

The first homicide at Round Valley involved a victim from one of these two Round Valley groups and accuseds from another. Teenage boys of the traditionalist Peters family had been contending with teenage boys of the more assimilated Britton family. According to the Peters family, one of their boys, Byron, had been jumped and severely beaten by several members of the Britton family a month before the killing. Byron's father contacted the local sheriff's office by telephone on several occasions, asking for a deputy to come out to take their complaint. The Peters family claims the deputies never arrived at the appointed times. As the harassment continued, Byron retaliated on his own, shooting at a truck driven by members of the Britton family. As a result, he was sent to juvenile hall. Although no one was hurt, this incident galvanized older men of the families to become involved. Complaints continued against members of the Britton family and their allies, including several incidents where shots were reportedly fired and threats yelled outside the Peters family home. The Sheriff's Department made no arrests and merely told the Britton group to stop.

On the day of the killing, Byron's father, Leonard Peters, got into a fistfight with Neil Britton, one of the boys most often accused of causing trouble. Leonard's nose was bloodied, and he left with his friend Bear Lincoln, member of another traditionalist family. Leonard's brother, Arylis, heard of the incident while engaged in some heavy drinking. He went looking for Neil Britton, but instead encountered Neil's father, Gene, in the high school parking lot. After a heated confrontation, Gene Britton climbed into his car and Arylis shot him through the car's back window. Whether it was self–defense (because Gene Britton was grabbing for a gun in his car) or murder is contested.[31]

Mendocino County sheriff's deputies could not find Arylis immediately to arrest him. While two deputies searched on the reservation, they encountered Leonard Peters and Bear Lincoln on a dark and remote mountain road. Gunfire ensued, leaving Peters and one of the deputies dead. Police accounts of these killings differ dramatically from those offered by family and community members. According to the surviving deputy, Peters was killed by the police acting in self–defense, and the deputy was killed when Bear Lincoln ambushed them from the side of the road. According to the Peters family and its allies, who had examined the crime scene, the police must have killed Peters when they took his walking stick for a gun; the deputy died when he was hit by his partner's fire, and the accusation of Bear Lincoln was a cover–up. Relying on their own account, the police launched a massive manhunt for Bear Lincoln.

Immediately, Mendocino County police descended on the Round Valley Reservation in force. Round Valley tribal members described themselves as "living in a state of terror given the severe and illegal harassment" suffered at the hands of these officers. According to their press release of April 20, 1995, the incidents of police misconduct included

(1) pulling the Lincoln family from a pickup truck and placing guns at their heads, including a five-year-old child, a three-year-old, and two infants;

(2) throwing the 65–year-old crippled mother of Bear Lincoln to the ground and verbally and physically abusing her, leaving her severely bruised;

(3) knocking out the windows of the home of Bear Lincoln's mother and discharging firearms in her home, hitting the cradleboard of one of her infant grandchildren;

(4) entering at least fifty homes without warrants or consent with guns cocked, searching each room;

(5) pointing a machine gun at a 99–year-old elder as the police searched her house and her young grandchildren watched in horror;

(6) pulling a 95–year-old man out of his truck at gunpoint and roughing him up for no reason;

(7) stopping countless vehicles at gunpoint;

(8) interrogating minors in their homes while their parents were away at a press conference;

(9) searching homes while only minors were present, with guns pointed at the minor children;

(10) taking minors into custody without the parents' knowledge;

(11) throwing a mentally disabled man to the ground and harassing him.

Over 50 complaints were filed with the Sheriff's Department. To protect their children from this police activity, many tribal parents evacuated them from the reservation.

Whether these incidents occurred at all, and if so, whether they occurred because the victims were reservation Indians are pertinent questions in assessing Public Law 280. A pending civil rights class action on behalf of the Round Valley residents and a Justice Department investigation that is almost completed will help answer the first question. With respect to the second question, there is reason to believe that police harassed reservation residents more than they would have harassed others. When the Round Valley people protested police practices to the local Board of Supervisors, one member stated, "This wouldn't have been handled like this if it happened in Mendocino or Point Arena (non–Indian communities). It's because it's Covelo (on the Round Valley Reservation)."[32]

The current Mendocino County Sheriff claims that the department now responds equally to calls on and off the reservation. But even he concedes that the department has a long history of problems with the Indians at Round Valley, including ones where the deputies were found to have engaged in excessive force and to have been drunk on duty. In May, 1987, for example, resentment against police abuse sparked a riot, as 100 reservation residents smashed windows in the small downtown area of the reservation town of Covelo. A few weeks after the riot, a violent encounter between a tribal member and a deputy left the deputy stabbed and the tribal member severely beaten. The tribal member was acquitted of attempted murder, the jury finding that the deputy had been drunk and had provoked the entire incident. When the jurors insisted on a Grand Jury investigation of the Sheriff's Department, the Sheriff retaliated by withdrawing officers from the area altogether.

Four months after the police began their intense hunt for Bear Lincoln, he turned himself in to the San Francisco Police Department, all the while insisting on his innocence. A grand jury indictment for murder was thrown out because the prosecutors had failed to reveal to the grand jury certain inconsistent statements made by the surviving sheriff's deputy. The case still awaits a preliminary hearing to determine whether there is enough evidence to warrant a trial.

The experience at Round Valley illustrates both the "legal vacuum" and the "abuse of authority" forms of lawlessness. The gap in legal authority was evident when local law enforcement failed to respond to conflicts building up on the reservation. Repeating the complaints of John Mazzetti quoted above, the Round Valley residents, particularly the traditionalists, could not count on protection from the police when they were physically threatened and abused. Public Law 280 gave local police the power to act in criminal matters, but rightfully balked at handing states the kind of all–purpose authority that would lead them to view the Indians as fully part of their community. The upshot, following a familiar pattern, was self–help and violence. In this case, the pattern unfortunately escalated into homicide. When the Brittons were not effectively restrained from bothering Peters family members, one of the Peterses fired his gun at a truck, and another killed a man.

The "abuse of authority" type of lawlessness is evident in the allegations regarding police response to the death of a tribal member. California tribal members have often complained that when police do attend to tribal problems, they lack cultural sensitivity, disrespect tribal sovereignty, and employ excessive force.[33] Typically this form of lawlessness arises because the holders of power do not see themselves as accountable to reservation communities, either because those communities are a small political minority or because they do not contribute to the local property tax base. Another possible explanation for such lawlessness is that state officials do not view themselves as part of the same political community as tribal members, who owe allegiance to their tribal governments and often receive special exemptions from state law under federal statutes such as those involving environmental regulation, gaming, and child welfare. When that political separateness is coupled with cultural differences, it is predictable that police will treat the Indians as outsiders, and hence more harshly.

Public Law 280 set up just such a situation. It exempts reservation Indians from property taxes, leaves tribal governments intact (if underfunded), and excludes tribes from considerable amounts of state regulatory law. And the separation between tribes and surrounding communities has been exaggerated by federal court decisions and legislation that have come about since Public Law 280's enactment. Forty years ago, the present extensive regime of special federal statutes regulating Indian affairs did not exist. Indians did not enjoy freedom from state laws relating to gaming, waste disposal, or adoptive placement, as they now do. No one predicted, at the time Public Law 280 was enacted, that tribal sovereignty would receive the doctrinal support it does under current law, support that is available to tribes in Public Law 280 states along with others. What was envisioned was a relatively rapid assimilation of tribes in Public Law 280 states into the state culture, economy, and polity. Several dozen California tribes were terminated soon after Public Law 280 was enacted, and the expectation was that other tribes would follow within decades.

Those expectations were not realized, largely because most tribes in America were not covered by Public Law 280, and the successful political movements and legal victories led by those tribes swept up the tribes in Public Law 280 states with all others. Thus, most of the terminated tribes in California have been unterminated (reinstated) through successful litigation and legislative efforts spearheaded by federally funded Indian legal services.[34] Tribes in Public Law 280 states have been strengthened by national legal decisions, both legislative and judicial, affirming tribal sovereignty. With enhanced sovereignty has come economic independence through activities such as gaming. And there has been a powerful revival of native cultures through federal education, language renewal, and repatriation legislation, to name just a few. Leaving tribes to the care of local officials does not make sense under present circumstances. It is too likely that police who feel less political, cultural, and economic affinity with tribal members will treat them disrespectfully when tensions arise, as police allegedly did at Round Valley. A state police force that is thwarted by federal courts from seizing tribal gambling machines may feel too greatly tempted to assert its authority in those areas where it still has the power to do so.

Responses to Questionnaires and Advisory Council Hearings

Responses to a questionnaire that was sent to all the recognized tribes in California reveal concern about both types of lawlessness discussed in this section –– the "legal vacuum" type and the "abuse of authority" type. Of the nineteen tribes that responded, all but two complained of serious gaps in protection from county law enforcement. An oft–repeated theme is that sheriffs fail to respond when they are called, or respond hours after the incident, when it is far too late to intercept the wrongdoer. Calls for help with vandalism, assaults, drunk driving, and drug dealing often go unanswered. In one incident where fighting broke out at a HUD house, the sheriffs called back thirty minutes after a complaint was filed to ask whether any guns were involved. By the time the deputies arrived, the assailants were gone. Only when non–Indians are involved or the financial interests of the county are at stake (as with enforcement of truancy laws) do county law enforcement officers seem to show sufficient interest.

The "abuse of authority" type of lawlessness takes two rather distinct forms: disregard for tribal sovereignty and culture, and police harassment. One third of the tribes complained that county officials fail to respect tribal culture and sovereignty. Some protested trespassing by sheriff's deputies, often in patrol cars going at high speeds. Others noted a pattern of state intrusion on tribal sovereignty, as when local officials seek to enforce county building, sign, or animal control ordinances that are "regulatory" in nature and hence outside the scope of state authority under Public Law 280. Repeated litigation was necessary to fend off these incursions. Finally, some tribes mentioned that local law enforcement officials fail to respect the judgment of tribal members or leaders when questions arise about the necessity or means of making arrests for minor crimes. There are times when an understanding of tribal social structures and traditions is required in order to ascertain whether an offense has really occurred. Due to a lack of funding and incentive, state and local law enforcement officials rarely have the training that would enable them to appreciate tribal culture. One tribe reported that the local tribal chairmen's association had held several workshops on Public Law 280 in the past four years, but the county officials who were invited usually failed to attend.

Tribal concerns about police harassment also surface in the questionnaires, albeit in more muted form. One–quarter of the nineteen responding tribes complained of unauthorized searches, questioning of children in the absence of adults, excessive force, and general intimidation of Indians both on reservations and in town.

None of the responding tribes operates a tribal court system. According to the responses received, disputes outside the jurisdiction of state or federal courts (or ignored by those systems) are sometimes referred to tribal councils, which usually attempt to mediate while enlisting the advice of elders. This method of conflict resolution is only partially satisfactory for the tribes. Some tribes report that disputants are willing to abide by the decisions, others find less compliance. Some say the system works well only for certain types of disputes.

More than two–thirds of the responding tribes articulate a need for tribal justice systems. Some are concerned that they lack the funds, expertise, or critical size to establish such systems at this time. Even those tribes, however, would like to see conditions change and cooperative arrangements devised –– with other tribes or with the state –– so that tribal justice systems can become feasible. Without some form of tribal justice system, tribes fear that problems of alcoholism, drug use, election disputes, trespassing, domestic violence, public disturbances, child welfare, employee discipline, housing conditions, land assignments, and speeding on reservations will never receive proper attention.[35] Furthermore, tribal traditions, such as a preference for rehabilitation over punishment, cannot be given effect without a distinctly tribal justice system. Several tribes report working on the development of tribal or consortium–based court systems, usually with some project–specific federal financial support. A few are in the process of establishing memoranda of understanding with local officials to allow for cross–deputization of tribal and local law enforcement personnel.

Hearings before the Advisory Council, held between July, 1994 and May, 1995 offer much the same information as the questionnaires and reinforce their validity. With respect to the "legal vacuum," a witness from the Morongo Reservation stated, "A fund for tribal law enforcement needs to be created to allow the tribes to protect themselves when the state fails to do so." Members from the Coyote Valley and other tribes complained that drug trafficking laws, among others, are not enforced on the reservation, either because the sheriff fails to respond at all or waits on the outskirts of the reservation while local community members apply self–help. This story was repeated by a criminal investigator from the B.I.A., who noted that because the state receives no federal funds for reservation law enforcement, there is no incentive to enforce the drug laws or other criminal provisions. Not only are state law enforcement services inadequate, but the development of tribal justice systems has been hampered by the funding consequences of Public Law 280. One tribal member captured this concern when he said, "Most tribal governments and Indian organizations cannot effectively establish or administer the tribal operation, due to the insufficient allocations of funding to allow the proper administration on a continuing basis."

The hearings also include several statements decrying local officials' disrespect for tribal sovereignty, as well as their harassment of tribal members. As one tribal member stated, "The state tries to control us. And Public Law 280 has a lot to do with it, too." Because some of the hearings occurred soon after the Round Valley incident described above, numerous speakers leveled charges of police abuse. A witness from Coyote Valley, for example, asserted, "It is not acceptable to place an entire community under siege in vengeance." This same witness complained that a disproportionate percentage of tribal members, as opposed to other county residents, was being arrested for drug and alcohol related offenses, leading to a "permanent scarring" of the Indian community.

One constructive suggestion that appeared in the hearings was the creation of a series of regional "drug courts" throughout the state, which would exercise tribal jurisdiction, have governing boards appointed by tribal councils, and receive federal funding through special drug–related programs. To enforce the laws administered by the drug courts, tribal police forces would be established, their members cross–deputized with state officials to facilitate cooperative actions.

Another positive recommendation brought out in the hearings was the creation of consortium courts to hear child welfare matters, such as adoptions, foster care placements, and proceedings to terminate parental rights. The intersection of the Indian Child Welfare Act (ICWA) and Public Law 280 has generated considerable confusion, particularly with respect to categories of cases that ICWA assigns to exclusive tribal court jurisdiction.[36] Does ICWA override the state jurisdiction conferred by Public Law 280? There is no simple answer to this question, especially since ICWA provides a federal petitioning process for tribes in Public Law 280 states to "reassume" jurisdiction. Arguably, tribes do not need to "reassume" child welfare jurisdiction at all, because Public Law 280 never withdrew tribal jurisdiction,[37] and because many types of child welfare proceedings (such as termination of parental rights) never came within the state's jurisdiction under Public Law 280 because they are "regulatory" in nature.[38] Whether or not the California tribes choose to take the path of "reassumption," they cannot assert child welfare jurisdiction unless they have some form of justice system. Thus, consortium courts are one means of effectively asserting sovereignty in a system where state courts have taken control of Indian children.

Conclusion

Tribes in Public Law 280 states are at a disadvantage compared with tribes elsewhere in the United States.[39] They suffer from lower levels of federal support and an absence of compensating state support. They are subject to abuses of power and gaps in legal authority. In California, in particular, the tribes have been broken up into such small and heterogeneous groups that forming effective justice systems is usually unfeasible at the tribal level. There is indeed a crisis of lawlessness, even greater and more genuine than the one perceived by the Congress in 1953. A federal response is sorely needed.

This time, the solution should be negotiated with tribal leaders, not imposed upon them against their wishes. It should recognize that so long as tribes remain separate polities, exempt from much state law, the solution of state jurisdiction will likely fail unless mutual and cooperative arrangements are established between tribes and states. And it should acknowledge a federal obligation to make up for the retarded development of tribal institutions in Public Law 280 states, including assistance in the formation of consortia or coalitions whenever tribes deem that desirable.

Many outcomes are possible under these conditions. Retrocession of states' Public Law 280 jurisdiction back to the federal government, upon tribal initiative, is one possibility, and several tribes supported that course of action in their answers to the questionnaire. Tribally initiated retrocession is far from the only possibility, however. Some tribes may prefer to receive federal help to develop tribal law enforcement and dispute resolution institutions, which would operate concurrently and cooperatively with state entities. Other tribes may want to contract with state or local law enforcement to conduct activities that would be too expensive to duplicate. Many such cooperative relationships between states and tribes have been developed in areas such as environmental regulation and child welfare, outside the framework of Public Law 280. Some may want to assert authority over some types of matters, such as child welfare or hunting and fishing, and leave remaining matters to state or federal authorities, at least initially. Once the force of Public Law 280 is lifted, similar creativity can be unleashed, including efforts to develop justice systems that are more consistent with tribal traditions and multi–tribal consortia that take advantage of economies of scale.[40] But the federal government will have to be a supportive partner in this effort, both financially and as an honest broker between tribes and state governments.

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[1] For a description and analysis of Public Law 280, see Goldberg, "Public Law 280: The Limits of State Jurisdiction over Reservation Indians," 22 UCLA Law Review 535 (1975).

[2] The states designated for such treatment in Public Law 280 were Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. Other states could come under the terms of Public Law 280 if they took certain affirmative steps.

[3] See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

[4] See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

[5] See M. Mazzetti, Historical Overview of PL–280 in California (Office of Criminal Justice Planning: Indian Justice Program: Sacramento 1980).

[6] W. Brophy & S. Aberle, The Indian: America's Unfinished Business 186 (1966).

[7] See United States v. Kagama, 118 U.S. 375 (1886). The Court declared, "Indian tribes are the wards of the nation....Because of local ill feeling, the people of the States where they are found are often their deadliest enemies."

[8] There was no special federal statute authorizing federal civil jurisdiction over reservation–based disputes. Thus, unless diversity of citizenship or a federal question were involved, a federal court would not hear a tort or contract action arising on the reservation. The federal criminal statutes applicable on reservations did not reach minor crimes where both perpetrators and victims were Indian.

[9] In fact, the federal government had never effectively carried out its responsibilities to California tribes. Studies dating back to 1883 document federal neglect of the health, welfare, law enforcement, and educational needs of California tribes. See, e.g., Report on the Condition and Needs of the Mission Indians of California, Made by Special Agents Helen Jackson and Abbot Kinney, to the Commissioner of Indian Affairs, reprinted in H. Jackson, A Century of Dishonor Appendix XV (1885); C. Goodrich, "The Legal Status of the California Indian," 14 California Law Review 83 (1926); The Status of the Indian in California Today, A Report by John G. Rockwell, Superintendent of the Sacramento Agency to the Commissioner of Indian Affairs (1944).

[10] F. Shipek, entry in "History of Southern California Mission Indians," in W. Sturtevant, Handbook of North American Indians, California 614 (1978).

[11] See Section VIII of this report, supra.

[12] See Goldberg, supra note 1, at 540–44.

[13] Of course, state jurisdiction was not the only possible solution to these problems. Tribal institutions could have been strengthened with federal support, the tribes could have been encouraged to enter into cooperative relationships with states, or the federal government could have assumed greater responsibility.

[14] This account is drawn from information supplied by tribal members, newspaper stories, and R. Russell, "Moving Mountains," 16 Amicus Journal 39 (1995).

[15] T. Gorman, "Neighbors Blockade Sludge Mountain," Los Angeles Times, October 21, 1994, p. 3.

[16] Id.

[17] See Section VIII of this report, supra.

[18] Bryan v. Itasca County, 426 U.S. 373 (1976).

[19] Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975).

[20] California Public Resources Code secs. 44201–44210.

[21] See Section II of this report, supra.

[22] Id.

[23] Id.

[24] "Issues of Concern to Southern California Tribes," Hearing before the Select Committee on Indian Affairs, United States Senate, 101st Cong., 1st Sess. 122 (1989). Statements to similar effect span the entire period since enactment of Public Law 280. A 1991 Los Angeles Times article points out that the La Jolla Reservation in San Diego County has been overrun with drugs and violence, with six young tribal members murdered during a period of several months in the late 1980s. According to a past Tribal Chair, when members called the Sheriff's Department to report a murder, it was usually an hour before a deputy arrived. Anything short of homicide, and the wait for a sheriff's response was at least three days. Sometimes no response came at all. Even representatives of the Sheriff's Department acknowledged that the remoteness of the reservations, the cultural differences between the police and tribal members, and the uncertainties of jurisdiction law discouraged police responsiveness. A. Wallace, "No More No–Man's Land," Los Angeles Times, June 17, 1991. In 1966, a U.S. Senate Subcommittee found that "Public Law 280...[has] resulted in a breakdown in the administration of justice to such a degree that Indians are being denied due process and equal protection of the law." "Public Law 280: Legislative History," Committee on Interior and Insular Affairs, United States Senate, 94th Congress, 1st Session, 29–30 (1975). The 1976 American Indian Policy Review Commission reached the same conclusion based on its own investigations.

[25] This limit is imposed by the Indian Civil Rights Act, 25 U.S.C. sec. 1302.

[26] Over 150 tribes nationwide have tribal courts.

[27] This account is based on newspaper articles, interviews with individuals involved in the incident, and testimony given before the Advisory Council on California Indian Policy.

[28] B. Mandel, "No Proof of a Fate Worse Than Death," San Francisco Examiner A–10, December 5, 1993.

[29] "Issues of Concern to Southern California Tribes," Hearing before the Senate Select Committee on Indian Affairs, United States Senate, 101st Congress, 1st Session at 40 (1989).

[30] This account is drawn from newspaper stories, postings on the computer bulletin board known as "Nativenet," features from an internet newspaper called the Albion Monitor, testimony given to the Advisory Council on California Indian Policy, and information supplied by the tribe.

[31] Arylis was convicted of murder based on a guilty plea, although his public defender tried to withdraw the plea and substitute self–defense. The judge refused to allow withdrawal of the plea, and the matter is on appeal while Arylis serves a 21-years-to-life sentence.

[32] N. Wilson, "What Really Happened?" Albion Monitor.

[33] See Southern California Indians for Tribal Sovereignty, "Statement on Public Law 280 and Law Enforcement," delivered at Bureau of Indian Affairs Indian Priority System Budget Meeting, Riverside, California, September 11, 1991 (on file at UCLA American Indian Studies Center), detailing abuses on the Pechanga, Barona, and Viejas Reservations.

[34] See, e.g., Hardwick v. United States, No. C–79–1710 SW (U.S. Dist. Ct., N.D. Ca., July 20, 1983); Big Sandy v. Watt, No. C–80–3787 MHP (U.S. Dist. Ct., N.D. Ca.); Smith v. United States, 515 F.Supp. 56 (N.D. Ca. 1978); Duncan v. Andrus, 517 F. Supp. 1 (N.D. Ca. 1977); Table Bluff Bend v. Watt, 432 F. Supp. 255 (N.D. Ca. 1981); Public Law 103–434; Public Law 103–454.

[35] In response to a question about the major types of conflicts that come before the community or tribal organization, the following received the highest ratings: substandard housing conditions; trespass; constitutional or articles by–laws interpretations; election and enrollment procedures; land use conflicts relating to assignments or allotments; and vandalism. This list obviously does not include conflicts that are routed to state or federal courts.

[36] These are cases where the Indian child is domiciled or resides on the reservation.

[37] See Section VIII of this report, supra.

[38] Id.

[39] Answers to the tribal questionnaire reveal that California tribes believe themselves to be at a disadvantage.

[40] These consortia also offer the feature (sometimes viewed positively, sometimes negatively) of providing decision–makers who come from outside the small community within which the dispute arose.