Public Law 280 reaches "a breaking point"

Public Law 280, a unique agreement that has shaped law enforcement in Lake County and on the Flathead Reservation for nearly 60 years, has reached “a breaking point,” according to county officials.

The agreement’s future may be dictated by a tangled web of legal and legislative actions, brought into sharper focus Monday when the Lake County Commissioners unanimously approved a resolution of intent to withdraw from the agreement.

A public hearing will be held at 2 p.m. Jan. 3 in the courthouse’s Large Conference Room, and if the resolution is approved, it gives the county authority to withdraw from the agreement in six months, by early July.

The timing of the action is no accident, according to County Commissioner Gale Decker. “We want the Legislature to understand that we want the question (of who is responsible for paying for Public Law 280) answered before we complete our budget for the next fiscal year.”

PL-280, which began as an agreement between the Bureau of Indian Affairs, the state and the Confederated Salish and Kootenai Tribes, has given the State of Montana criminal jurisdiction over tribal members since 1965. The county has never been reimbursed for the costs that it incurs to arrest, investigate, prosecute and house prisoners, although commissioners say early on, those expenses were minimal.

Now however, according a fiscal analysis conducted by the state in 2017, the price tag for the county is over $4 million a year, and the bulk of it is paid by local taxpayers. Complicating matters further, about 50% of the property in the county is held in tribal trust and therefore tax exempt.

The county argues that paying for PL-280 is diverting resources from other critical county services, including infrastructure, and places an undue burden on a thin tax base.

The county hired the Missoula law firm of Reep, Bell and Jasper to pursue ways to recoup some of those expenses and sued the state last summer for recompense.

At Monday’s meeting, attorney Lance Jasper said the county has reached out to the governor’s office but didn’t get “the attention we had hoped for.”

“We really felt like this was something that could be talked about, understood and immediate help could be garnered,” he said. “It seemed like a no-brainer given how well Public Law 280 was actually working compared to other reservations in the state.”

The Flathead Reservation is the only reservation in Montana to utilize Public Law 280. The others rely on federal law enforcement, including the BIA and FBI, to investigate and prosecute felonies. The agreement also covers members of other federally recognized tribes who may commit crimes on this reservation.

Jasper pointed out that because the original agreement is between the state and BIA, Lake County has no standing when it comes to seeking compensation from the federal government. That action would need to come from the state, he said.

In his opening comments Monday, Decker assured the audience that if the county withdraws, “Public Law 280 doesn’t go away. It just means some other entity will be required to provide funding to implement this agreement.”

The county, which oversees felony jurisdiction of tribal members, and CSKT, which took over misdemeanor jurisdiction in the 1990s, “have borne the cost of Public Law 280. It’s time for other parties to the agreement to help with the cost.”

Decker also characterized Gov. Greg Gianforte as uncooperative. “Although he’s sitting on a $2.5 billion surplus, it’s apparent he’s unwilling to dedicate a portion of that to Public Law 280.”

According to a statement issued Friday by Gianforte's spokeswoman Brooke Stroyke, “the Legislature, not the governor, has the authority to fund Public Law 280.”

Representative Joe Read of Ronan carried legislation in the last session that sought $2 million annually from the state to help fund the agreement. It eventually passed, but with an allocation of just $1.

According to Jasper, language in the 2021 statute did succeed in placing the burden for funding PL-280 on the state and also provides a mechanism for the county to withdraw from the agreement, which hadn’t previously existed.

Jasper said that Sen. Greg Hertz of Polson has submitted unofficial draft legislation for the upcoming session. If passed, that bill would require the state and county to agree on reimbursement and barring that, would insist that the state take over criminal jurisdiction duties on the reservation.

Either through litigation or legislative action, Jasper said the county will soon know whether the state must reimburse it, take over responsibility for felonies committed by tribal members on the reservation, or if the status quo continues, and “we have to swallow it and deal with it.”

“Every effort been made to get reasonable people to fund this and it’s been ignored,” he added. “The situation is ripe to get an answer.”

“We have a good thing going here. It’s just become very, very expensive,” County Attorney James Lapotka said at Monday’s meeting. He added that he’s worked both as a prosecutor and defense attorney under the agreement since 2008 and believes “it works really well here because it provides maximum local control. We’ve got our local county prosecutors who work with tribal prosecutors, local sheriff deputies working with local tribal police.”

However, his office currently prosecutes around 400 felony cases in district court each year, and Lapotka says a significant percentage of those involve tribal members. At the same time, the county is seeing an “epidemic of fentanyl” and other drugs arriving from out of state, and a related spike in crime.

“We have a full jail and people not showing up for court,” he said. “We’re struggling and we’re doing the best we can and we take the obligation for public safety very seriously, but it’s becoming untenable.”

Sheriff Don Bell predicts handing over jurisdiction to another entity would be problematic. “In other places where Public Law 280 went away, the crime rate soars,” he said during Monday’s meeting. “That’s my worry.”

He said the county jail is consistently beyond its capacity of 46 inmates, and about 50% of its occupants are tribal members. He added that at least 1,000 felony arrest warrants are pending.

The jail is currently the subject of a class-action lawsuit, alleging inhumane treatment.

Other expenses paid for by the county include the cost of medications, ambulance transports and mental health evaluations.

“In my opinion Public Law 280 is a good thing for this county. It’s worked well for a long time,” Bell said. “We just need the State of Montana to cover what they’re responsible for.”

Commissioner Bill Barron, a former county sheriff who has worked under both systems, believes PL-280 offers the best form of reservation law enforcement if it’s adequately funded.

“Right now, it’s no better than not having it,” he said. “You arrest people, you turn them loose, and they go commit more crimes.”

Commissioner Steve Stanley pointed out that Lake County’s dispatch center fielded 2,783 calls last month and the ambulance service responds to around 3,000 calls a year. The issue, he said, is not tribal vs. nontribal.

“You wonder why we have the problems we have today? Population. And that’s not going to get less,” he said. “We need to give our staff, our deputies, our courts, our lawyers the tools to do their job – and the tools to do their job are very simple. It’s money.

“I’m stunned as a commissioner that the state and this county can’t sit down face to face and solve problems,” he added. “I’m very supportive of what the commission is doing but I’m really sad we’re where we are today.”

“The taxpayers are continuing to bear the burden and at some point, that needs to stop,” said Bruce Cartwright of Ronan. “The state and feds made this agreement and we’re left holding the bag. This taxpayer is not real happy about that.”

Monday’s motion triggered a public comment period, which continues through the meeting on Jan. 3. The commissioners may be reached by email at lakecommissioners@lakemt.gov or by calling 406-883-7204.