Judge’s ruling favors state in Public Law 280 dispute

Flathead County District Court Judge Amy Eddy ruled against Lake County on Nov. 9 in an ongoing legal battle with the state of Montana over who should fund Public Law 280.

“The commissioners are disappointed in the judgment,” said Lake County Commissioner Gale Decker on Monday. “We thought we were going to get a favorable decision.”

A litigation strategy session was slated for this week to decide “whether or not to appeal to the Supreme Court,” he added. 

Public Law 280, signed by Congress in 1953, allowed states to assume criminal jurisdiction over Indian Country. In Montana, the Confederated Salish and Kootenai Tribes was the only tribal government to enter into such an arrangement with the state, prompted by the federal government’s failure to provide effective law enforcement on the Flathead Reservation. That agreement was signed in 1965 by tribal, state and county officials, and continued unchanged until 1993.

In 1994, the Tribes assumed criminal misdemeanor jurisdiction over members while the county continued to investigate and prosecute felony crimes involving tribal members. In 2017, Lake County commissioners proposed to withdraw from Public Law 280, citing escalating costs due to the significant number of felonies committed by tribal members, and the higher level of incarceration in proportion to the tribal population.

Commissioners also said the county’s limited tax base meant taxpayers weren’t able to keep up with the increasing cost of providing law enforcement and suggested that the state, the other signatory in the agreement, should help pay for it.

In response, the 2017 Legislature allowed the Tribes to withdraw its consent to state felony jurisdiction, but not the county. In 2021, Montana code was amended again, this time to allow the county to withdraw from the agreement.

At the same time, the Legislature authored an amendment requiring the state to reimburse Lake County for the costs associated with criminal jurisdiction on the reservation annually “to the extent funds are appropriated by the Legislature,” and then proceeded to appropriate $1.

The matter came up again last January, with Lake County asserting its intention to withdraw from the agreement effective May 26, which would have given Gov. Greg Gianforte six months (until Nov. 26) to issue a proclamation acknowledging the county’s decision.

The 2023 Legislature passed House Bill 479 on May 2, which would have appropriated $2.5 million a year during the biennium, insisted Lake County remain in the agreement, asserted that the state had no obligation to help fund the county’s law enforcement efforts, and created a task force within the Department of Justice to make recommendations to the governor and Legislature about how to move forward. Gianforte vetoed it.

In response to the governor’s veto, Lake County commissioners postponed their resolution to withdraw from Public Law 280, pending the outcome of the court case.

In her ruling, Judge Eddy reiterates her position that the $1 appropriated to Lake County in 2021 by the Legislature was “patently absurd.”

She criticizes the efforts of the 2023 session as well.

“It is unfortunate that, during a legislative session noteworthy for its unprecedented budget surplus, the parties were unable to reach an agreement to provide for the ongoing safety and security of the Flathead Indian Reservation and Lake County – particularly as Lake County’s enforcement of the state’s criminal jurisdiction on the Flathead Reservation has been described by Gov. Gianforte as ‘a model of success,’” wrote the judge.

But Eddy concluded that it’s not the court’s duty to mediate the dispute.

She wrote that state law does not obligate Montana to appropriate a dollar amount to reimburse Lake County’s costs. Instead, the responsibility rests with the Legislature to appropriate those funds “as it sees fit.”

“If the financial burden Lake County bears is unacceptable, which by all accounts it appears to be, its remedy is to withdraw,” Eddy concluded.

The amended resolution to withdraw from Public Law 280, passed May 25 by the county commissioners, authorizes them to deliver the resolution to the governor within 30 days of the court ruling, which then gives the governor six months to issue a proclamation.

In her ruling, Eddy noted that “while the mechanics and effect of Lake County withdrawing its consent have not been addressed by either party, it is clear that … the state is obligated to provide for criminal jurisdiction on the Flathead Reservation, with or without the consent of Lake County.”

The estimated cost to the state of assuming felony jurisdiction over tribal members has ranged from $5 million to $35 million annually.