Lake County sues state to recoup Public Law 280 funds

Following through with a threat made earlier this year, the Lake County commissioners on July 14 filed a lawsuit against the state that argues the county is owed millions of dollars for its role in providing law enforcement on the Flathead Reservation.

The suit filed in Lake County District Court comes on the heels of a letter sent to Montana Gov. Greg Gianforte in February that urged the state to find a resolution to the funding gap the county claims it’s been forced to cover under Public Law 280. Along with the letter, attorneys submitted a draft of the lawsuit it planned to file if the state was unresponsive.

Congress enacted Public Law 280 in 1953 to transfer criminal jurisdiction over Native Americans to several states from the federal government. The Montana Legislature authorized such jurisdiction in 1963, and the Confederated Salish and Kootenai Tribes passed an ordinance in 1965 that agreed to accept Public Law 280. The Flathead Reservation is the only tribal reservation in Montana under such jurisdiction.

The county lawsuit argues that the state, not the county, is obligated to fund jurisdiction of Public Law 280, pointing to verbiage in the legislation that says “The state of Montana hereby obligates and binds itself to assume … criminal jurisdiction” over the reservation.

The state’s unwillingness to fund the jurisdiction equals an “unfunded mandate,” the suit alleges.

“Although the state purported to assume criminal law jurisdiction over CSKT tribal members in 1965, it has in fact failed to satisfy its obligation, instead leaving it to the local government unit, Lake County, to provide and fund the vast majority of services necessary to the exercise of [Public Law 280],” the county suit claims.

“Because the state itself lacks the infrastructure and has not supplied adequate funding, Lake County and its taxpayers were forced to incur costs,” the suit continues.

Lake County officials estimate that cost to be as much as $4.3 million annually for law enforcement, protection and detention related responsibilities.

A bill brought forward during the 2021 legislative session by Ronan Rep. Joe Read addressed reimbursement for Lake County — suggesting nearly $2.2 million annually — but ultimately ended up appropriating just a single dollar in the final draft.

The bill, however, did give the county the option of withdrawing from Public Law 280 with six months notice, transferring jurisdiction to the FBI and Bureau of Indian Affairs.

The county suit argues this is an unreasonable option, given the state’s inability to fulfill the law enforcement needs left behind.

“If the county were to invoke this provision, it would leave Lake County law enforcement in a state of chaos…” the suit says.

“In the absence of Lake County’s provision of services, Montana citizens living and traveling through Lake County would face a law enforcement vacuum of catastrophic proportions.”

Withdrawal would also damage long-standing relationships between the Tribes and county, the suit argues.

State Sen. Greg Hertz, R-Polson, said the topic has been in front of the Legislature every session since 2015, and he expects it will remain active in 2023.

Hertz said finding broad support has been a challenge with only one tribal reservation in the state falling under Public Law 280 jurisdiction.

“It’s difficult,” Hertz said in an interview Monday. “You have one county that primarily benefits.”

He also expects the state and Governor's Office will push back on any legislation that changes status quo.

“The state has relied on Lake County to fund this since it was passed in the 60s,” Hertz said. “They’ll probably fight hard” to keep the financial burden on Lake County taxpayers.

Still, he said the “unfunded mandate” is something the state needs to address.

“I hope other legislators see that point,” he said.

The suit asks for reimbursement “representing past and present costs incurred by Lake County, an award for restitution, and declaratory judgment that establishes the state’s obligation to reimburse Lake County going forward.

Lake County is being represented by attorneys with the Missoula firm Reep, Bell and Jasper.