What P.L. 280 Actually Does
Public Law 280 was enacted during the termination era as a companion to House Concurrent Resolution 108 (the termination policy statement). It transferred two specific categories of jurisdiction from the federal government to six "mandatory" states:
§ 1162 — Criminal Jurisdiction
The six mandatory states "shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country" listed in the statute. This transferred criminal jurisdiction that would otherwise be federal (under the Major Crimes Act and General Crimes Act) to state courts.
§ 1360 — Civil Jurisdiction
The six mandatory states "shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country" listed. This gave state courts jurisdiction over private civil disputes — contracts, torts, domestic relations — arising in Indian Country.
What P.L. 280 Does NOT Do
This is where the entire case-law database comes in. P.L. 280 is silent on — and the Supreme Court has held it does NOT grant — the following:
NO Regulatory Authority
Bryan v. Itasca County (1976): P.L. 280 grants criminal jurisdiction and jurisdiction over private civil disputes — but no regulatory or taxing authority. States cannot use P.L. 280 to regulate tribal activities, impose zoning, or collect taxes.
NO Abrogation of Tribal Sovereignty
P.L. 280 transferred a jurisdictional forum — it did not terminate, diminish, or abrogate tribal sovereignty. Tribes retain their inherent powers of self-governance (Wheeler, Mazurie, Lara).
NO Divestiture of Tribal Courts
Walker v. Rushing (1990): P.L. 280 did not divest tribal courts of concurrent jurisdiction. Tribal courts continue to operate alongside state courts.
NO Abrogation of Sovereign Immunity
Agua Caliente v. Superior Court (2006): P.L. 280 did not abrogate tribal sovereign immunity. States cannot sue tribes even in P.L. 280 states.
NO Termination of Trust Relationship
The federal trust relationship continues in P.L. 280 states. BIA funding obligations persist (Los Coyotes). Trust land remains trust land. The federal government remains the trustee.
The 1968 Amendments (ICRA)
In 1968, the Indian Civil Rights Act amended P.L. 280 in two critical ways:
- 1. Tribal consent required. Future state assumptions of jurisdiction require the consent of the affected tribe. States can no longer unilaterally extend P.L. 280 (ICRA § 1326).
- 2. Retrocession authorized. States may retrocede (return) P.L. 280 jurisdiction to the federal government. The United States is authorized to accept retrocession (ICRA § 1323).
Key Statutory Language
§ 1162(a): "Each of the States... shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country... to the same extent that such State... has jurisdiction over offenses committed elsewhere within the State..."
§ 1162(b): "Nothing in this section... shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof."
§ 1360(b): "Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property... belonging to any Indian or any Indian tribe... that is held in trust by the United States..."
ATN's Five Arguments Against P.L. 280 Encumbrance
- I. P.L. 280 is narrower than assumed. Bryan + Cabazon: no regulatory authority. The state has only criminal and private civil jurisdiction — not the broad governance power counties and state agencies assume.
- II. Tribal consent was never obtained. California assumed P.L. 280 jurisdiction in 1953 — before the 1968 consent requirement. But Kennerly established that state court jurisdiction requires affirmative tribal consent.
- III. Retrocession is available. ICRA authorizes retrocession. TLOA § 1162(d) created a partial retrocession pathway. Hoopa Valley has already used it.
- IV. Tribal courts operate concurrently. Walker + National Farmers Union + Iowa Mutual: ATN's tribal court has concurrent jurisdiction and exhaustion is required.
- V. Constitutional vulnerability. P.L. 280 delegated sovereignty over Indian Country to states with zero standards, zero safeguards, zero funding — potentially violating the nondelegation doctrine (Gundy).
Related Cases & Authorities
- Bryan v. Itasca County (1976) — No regulatory or taxing authority under P.L. 280
- California v. Cabazon Band (1987) — Prohibitory/regulatory distinction
- Kennerly v. District Court (1971) — Tribal consent required for state court jurisdiction
- Walker v. Rushing (1990) — Tribal concurrent jurisdiction survives
- ICRA (1968) — Amended P.L. 280 to require consent and authorize retrocession
- Agua Caliente v. Superior Court (2006) — P.L. 280 does not abrogate tribal immunity
- Gundy v. United States (2019) — Nondelegation doctrine; P.L. 280 vulnerability
- Topical Brief: Tribal Consent Doctrine
- Topical Brief: Encumbrance of Indian Country