by Duane Champagne and Carole Goldberg. Durham, NC: Carolina Academic Press, 2012. 244pp. Paper $30.00 ISBN: 978-1-61163-043-5. Reviewed by Kevin Bruyneel, Associate Professor of Politics, History and Society Division, Babson College. kbruyneel [at] babson.edu.
pp.531-535
Constitutionally and historically, the governmental and legal relationship between the United States and Indigenous nations has been one premised upon a ‘nation-to-nation’ relationship, which meant that Indigenous nations dealt solely and directly with the U.S. federal government – such as in treaty-making – not the sub-national U.S. state governments. Thus, for most of U.S. history, state governments have had little formal governmental, legal, and jurisdictional relationship to Indigenous nations. But this changed in 1953, as the passage of PL 280 first mandated and then allowed for a number of states to take over from the federal government jurisdictional control of matters such as policing and the administration of the courts and criminal justice on the reservations of Indigenous tribes whose territory resided entirely or partially within a state’s borders. The states of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin by federal mandate assumed jurisdiction over, in particular, policing and the administration of criminal justice and the courts on the reservations within their borders. Over the next two decades, Nevada, Washington, Florida, Montana, and Idaho also opted in to this jurisdictional role. Carole Goldberg, Professor of Law at UCLA, and Duane Champagne of the Turtle Mountain Band of the Chippewa Nation and Professor of Sociology at UCLA have written a comprehensive and important book on this under-studied feature of U.S. Indian law and policy.
PL 280 was passed during what is called the Termination and Relocation Era in U.S. Indian policy history, roughly spanning from the 1950s to around the mid-1970s. During this time, the main objective of U.S. Federal Indian policy was to forcibly assimilate Indigenous people into U.S. society by, among other policies, terminating tribes and relocating Indigenous people from tribal reservations to urban locales. The policy priorities of PL 280 fit into this era due to its emphasis on devolving jurisdictional purview over tribal reservations from the federal government to a number of states, thereby serving to undermine the nation-to-nation premise of U.S.-Indigenous political and legal relations, and as such undermine the status of Indigenous sovereignty. But the long range story of U.S. Indian policy is defined by shifts between policy regimes that emphasize assimilation and those that emphasize some form of tribal self-government, although not the inherent sovereignty Indigenous nations claim and seek to practice. Thus, in the more recent history of the PL 280 policy regime – over the last two to three decades – a number of states and Indigenous tribes have engaged in the process of “retrocession,” [*532] which returned jurisdictional matters back to the federal government. Looked at through this wider historical perspective, then, in the long, complicated, and continuing story of U.S. Indian Policy, PL 280 has played an important role in redefining the modern relationship between federal, state, and tribal sovereignty in many parts of the United States. This complexity is conveyed in Captured Justice. The book does not place PL 280 into the wider history of U.S. Indian policy, which might have been helpful to do for a general reader, but at the same time the book is set out less as historical study or a study of the politics of U.S. settler colonial rule than as a sociological and legal study of the policy’s effectiveness, as seen through the eyes of those living under it and who are charged to carry it out.
As Champagne and Goldberg note, although PL 280 became law over 50 year ago and has impacted at least 11 states, one-quarter of the reservation-based Indigenous population, and half of the recognized Indigenous tribes in the United States, “very little systematic, empirical research has been conducted to determine its effectiveness or its reception among the communities it addresses” (p.3). To attend to this gap in the scholarship, Goldberg and Champagne have engaged in considerable and commendable qualitative and quantitative empirical research so as to arrive at their findings. The authors conducted a wide-ranging series of interviews, with 350 people in all, including reservation residents, tribal officials, and local, state, and federal law enforcement and criminal justice officials. This interview base included people living and working on PL 280 reservations and those on non-PL 280 reservations, for comparative purposes. Altogether, the interviews spoke to experiences across 17 different reservation sites. While Champagne and Goldberg modestly claim that their findings are not generalizable, one would have a tough time imagining a research model that could gain the breadth and depth of empirical coverage that this book offers. Out of these interviews, the core purpose of the book is to understand how all relevant parties to PL 280 jurisdiction view the policy’s effectiveness.
Their general finding is that PL 280 has not worked out well, in particular as it concerns the lack of safety and the overall sense of unfairness and injustice experienced by Indigenous people who reside on reservations that live under PL 280 state jurisdiction, and also with regards to the way in which state-level jurisdiction has served to undermine and diminish the status and practice of tribal sovereignty. Champagne and Goldberg premise their general findings around six conditions they see as required for PL 280 jurisdictional administration to be effective. These conditions are: i) cultural compatibility between Indigenous and state and local officials regarding the roles, purposes, and practices of jurisdictional arrangements; 2) the control Indigenous tribes have over policing and other jurisdictional matters, and here they speak more generally about the status of tribal sovereignty; 3) management effectiveness; 4) fairness in the administration of justice and policing on reservations; 5) the level of funding and resources available for policing and criminal justice institutions and personnel; and 6) the status of [*533] government to government relations, also termed inter-jurisdictional cooperation, between tribal and state institutions. Rarely are few if any of these conditions met to the satisfaction of Indigenous residents of reservations and tribal officials, whereas the results are more mixed in the responses of local, state, and federal officials.
The book’s opening chapter sets out the general background of PL 280 and the complicated and varied legal statuses one can find under the umbrella of this policy regime. Then, the bulk of the book resides in Chapters 2-6, through which are conveyed and analyzed the results of the findings of the authors’ interviews and other supporting data as it concerns, in chapter order, the role of criminal justice, policing, the courts, funding, and tribal-state agreements for PL 280 reservations and for the comparative non-PL 280 reservations. The value of the study comes in how the authors thoroughly and meticulously disaggregate and assess their data in a way that tests interviewees’ experiences with some or all of the aforementioned six conditions in order to grasp and convey in what way and why such critical state and tribal functions as policing and the role of the courts are or are not deemed effective. To be honest, this can make for some dry and at times repetitive reading, as Champagne and Goldberg set out claims that seem rather obvious on their face and walk the reader through the data to support said claims. For example, early in Chapter 2 on criminal justice, the authors offer these assertions: “When tribal members are treated fairly by courts and/or police, they will express greater satisfaction with court and/or police outcomes. Furthermore, programs that are well funded should prove more operational than underfunded programs” (p.29). And in Chapter 3, on policing, their findings include the following: “Reservation residents prefer tribal police departments if there is enough funding, when tribal police departments are administered fairly and well, and cultural sensitivity is maintained” (p.91). I mean these examples not as a disservice to the book, but rather as a point of both praise and critique, as the book’s limitations are in many ways a product of its very purpose and its strengths. Readers should be prepared for what at times is a plodding prose, with statements such as those above that likely need not be empirically proven to be believed – one would presume that tribal members, like anyone, are more satisfied with policing when they are treated fairly and that they prefer tribal police departments that have adequate funding and that are well-administered. But in reading the book one soon comes to realize that this at times turgid form is a consequence of the rigor, care, and precision with which the authors attend to their subject matter.
The book’s overall value and contributions to scholarship come in three areas. First, any scholar attending to 20th century U.S. Indian policy and, of course, PL 280 in particular will benefit greatly from the empirical work and insights offered here. As noted, this level of research on the topic has never been done before, and thus it is a must-read for those seriously engaged with this topic. Second, scholars seeking to grasp the increasingly complicated terrain and functions of inter-related sovereignties – federal, state, and tribal – in and of the United States will benefit from the book’s effort to map out these lines of jurisdictional authority and reveal how [*534] they impact upon the people who matter most, those subject to their purview. Third, the book offers insight on the struggles to claim and practice tribal sovereignty in the United States. We read here not sweeping statements about the philosophical or legal meaning of sovereignty generally or as it concerns Indigenous nations in particular, but rather we get a closer read on the very practice of it and the forces which serve to diminish it, with respect to such important functions as policing and the institutions that are meant to secure justice in a community.
Overall, the book further underscores the importance of the effort of Indigenous nations and tribes to continue to claim, fight for, and practice sovereignty. The book shows that Indigenous residents of reservations and tribal officials are clearly less satisfied with institutions such as the courts and policing when the tribe’s sovereignty over these functions is impinged upon and diminished by states under the PL 280 regime. And it also reveals, in Chapter 7 on “Retrocession from Public Law 280,” how tribes have sought to both claim and in so doing practice sovereignty by endeavoring to retrocede PL 280 back to federal government jurisdiction, in order to reassert a nation-to-nation relationship so as to at least stem the tide of the diminishment of tribal sovereignty that had been occurring under state jurisdiction. While this effort to retrocede has proven difficult for many tribes, as it requires state assent, what one finds in this chapter is the active politics of sovereignty that is not as evident in the other chapters of the book. In many ways, Chapter 7’s focus on Indigenous political agency in the struggle for sovereignty makes it the most readable chapter, driven as it is by the narratives of the contentions that define sovereignty struggles. I presume that this chapter is located near the end of the book on purpose, or if not it is a happy accident, for it seems to signal the direction that Champagne and Goldberg would like tribes to take in the effort to address and overcome the problems experienced under the PL 280 regime. While the authors do not see tribal sovereignty as the all-encompassing panacea to all that troubles tribes in PL 280 contexts, they are clear that it is a necessary and fundamental element for improving governance on reservations. As they state: “Tribal political sovereignty may be a necessary condition for well-managed and fair government, but not a sufficient condition. Tribal governments will need to establish institutional and/or moral mechanisms to ensure that justice is fairly distributed within their communities” (p.108). I take them to mean that fairness, management effectiveness, and adequate funding must go along with, and likely stem from, enhanced tribal sovereignty, and in fact they should be seen as the very elements needed to strengthen and secure sovereignty in the long term so as to best serve the community.
The long and short of the lesson I take from Captured Justice is that the greater degree of sovereignty experienced and articulated by Indigenous nations the better is the administration of policing, the courts, and other institutions of governance pertinent to securing the safety and well-being of a people. This may seem like another rather obvious statement, one that should not require much evidence to establish. However, the history of U.S.-Indigenous relations [*535] and of the struggle for Indigenous sovereignty shows that this seemingly evident claim is persistently ignored, disavowed, or openly undermined by the U.S. government, a government that in its history and its structure remains a settler colonial state. Public Law 280 stands as another of these efforts to undermine the sovereignty of Indigenous nations, and in their rigorous, thorough work Champagne and Goldberg provide the necessary empirical foundation for supporting the claim that such laws do not serve the interests of the people they purport to serve, these being Indigenous people. The effort to oppose settler colonial rule as manifested in laws such as PL 280 require such foundational work so as to provide the solid ground upon which to challenge it on its own account, as not effective, and from which to see and move toward more just forms of governance, specifically that of self-governance.
Copyright 2012 by the author, Kevin Bruyneel.
