M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 663 (2012)
When enacted in 1953, President Eisenhower expressed “grave doubts” about provisions of Public Law 280 (“P.L. 280”), a law empowering states to assert jurisdiction over Indian Country without tribal consent. Consistent with President Eisenhower’s doubts, the State of Washington enacted legislation in 1957 that enabled its courts to assert P.L. 280 jurisdiction over Indian Country only if a tribe requested the State to exercise such power. Yet, Washington soon amended its law in 1963 and baldly asserted limited P.L. 280 jurisdiction over all of Indian Country, regardless of tribal consent. In 1968, recognizing the inappropriateness of nonconsensual assertions of state authority over tribes, the federal government amended P.L. 280 to require tribal consent and to create a path for retrocession of state authority.7 Despite the changes in federal law, however, Washington has never acted to rectify its assertion of nonconsensual authority over tribal nations.
In the 2011 Washington legislative session, a joint executive-legislative workgroup on tribal retrocession studied the desirability of enacting a law that would require Washington to retrocede P.L. 280 jurisdiction back to the federal government when specifically requested by an affected tribe.8 This article advocates for such changes and the return of Washington law to its original consent-based grounds. In doing so, the article explains how Indian Country criminal jurisdiction would work with such changes, how it currently operates under P.L. 280 generally and within Washington specifically, and why a mandatory retrocession provision ought to be adopted for both moral and pragmatic reasons.