Bill to fund Public Law 280 passes first legislative hurdle

After a hearing that included testimony from several local officials, the Senate Judiciary Committee advanced legislation last week that could help Lake County fund law enforcement under Public Law 280.

The bill was passed out of committee along party lines last Thursday, with Republicans voting in favor.

Senate Bill 127, submitted by Polson Senator Greg Hertz, would require the state and Lake County to negotiate an amount of reimbursement for the county’s costs in assuming felony jurisdiction over tribal members on the Flathead Reservation. The bill also stipulates that if the county and state don’t agree upon a funding solution, the state will assume criminal jurisdiction for tribal members on the reservation beginning July 1.

In his introduction, Hertz reminded the committee that he had introduced similar legislation last session. Although it was passed and signed by the governor, the Legislature only appropriated $1.

Hertz’s new bill aims to make sure the state either commits more money or is forced to take responsibility for felony law enforcement, prosecution and detention of tribal members in Lake County.

Currently, Lake County pays an estimated $5 million a year for public safety, which includes funding for the sheriff’s department, prosecutors, the county jail and court facilities.

In his opening testimony Hertz estimated it would cost the state $100 million just to set up a criminal justice system for tribal members on the reservation. The county, he pointed out, has proven it can do the job for far less.

Several witnesses, ranging from county commissioners to Lake County Sheriff Don Bell, told the committee how the county is reeling under the weight of additional law enforcement duties, stipulated in the 1960s when the state, Confederated Salish and Kootenai Tribes and Bureau of Indian Affairs agreed to state jurisdiction over crimes committed by tribal members as permitted under Public Law 280. The Flathead Reservation is the only tribal nation in Montana that opted to implement the law; on other reservations, felonies are investigated and prosecuted by federal agents.

At the time the agreement was signed, his predecessors were told “there would be no cost to the county, that we wouldn’t see a big change,” Lake County Commissioner Bill Barron told senators. “We now know that’s not quite right.”

Testifying remotely, Lake County Attorney James Lapotka outlined the burden that additional law enforcement duties impose on the jail and court system here. He said the five criminal attorneys in his office filed 408 felony cases last year, while the police force is trying to address a burgeoning fentanyl epidemic.

“Every week our officers arrest people with hundreds of fentanyl pills,” he said. And while his department works closely with federal prosecutors in Missoula, “They’re only able to help in about 2% of those cases, when they involve thousands of fentanyl pills and illegal weapons or five, 10, or 20 pounds of meth.”

He described the county’s single district courtroom, shared by two judges, as “woefully inadequate,” and noted that Lake County is again being sued for inadequate conditions in the jail “where we currently have 56 inmates in a facility we’re only supposed to have 42 in.” Given the cramped quarters, “we can’t prosecute people who won’t show up for court. We’re only able to incarcerate the most violent felons.”

Commissioner Gale Decker told committee members that Lake County spends 30-40% of its property tax revenues on public safety. “We’ve just come to a point where our taxpayers can no longer afford it.”

County officials all spoke in favor of continuing the agreement, provided that a funding mechanism can be worked out with the state.

“I’m here because I’m concerned about public safety in Lake County and unfortunately that’s tied to dollars,” said Barron, who served two terms as Lake County sheriff before being elected county commissioner. “We truly believe it’s the state’s responsibility and we don’t think that responsibility has been met.”

In early January, the three county commissioners unanimously voted to withdraw the county from Public Law 280, effective May 30, if no funding arrangement can be made with the state.

“That was the hardest vote I’ve ever made in my life,” Barron told the committee. “But I think it was totally necessary. My hope is we can save PL 280. It just works very well.”

The current sheriff, Don Bell, echoed those sentiments. Bell is a tribal member who spent more than 23 years with CSKT law enforcement before joining the county, where he’s serving his third term as sheriff and oversees a department with 24 deputies.

“I believe PL 280 works very well throughout the community,” he said.

“It’s the most fair and best system for our community and provides the most public safety and equality here on the reservation,” Lapotka said. “No one involved our criminal justice system wants to see that go away.”

Sen. Theresa Manzella said that while she was inclined to support the bill, she was concerned about the precedent it might set if other reservations decided to enter a similar arrangement.

Barron suggested that the state could learn from Lake County’s experience and, if another reservation wanted to enter a PL 280 agreement, could “say to the feds ‘yes, we’d be interested in this but you’re going to have to fund it.’”

Asked whether the county had considered suing the state for recompense, Hertz told senators that a lawsuit is “in the courts now.”

As for approaching the feds for help, Decker said the county has no legal standing to do so, since PL 280 is an agreement between the state and the federal government.

Sen. Dan Salomon of Ronan aptly described the matter as “a very thorny issue.”

“We have to do something,” he said. “I encourage you to listen carefully and see if we can start the process to get a solution.”

On the House side, Rep. Joe Read of Ronan has introduced two companion bills: HB 478, which would reimburse Lake County for providing law enforcement on a portion of the Flathead Reservation; and, in case those negotiations fail, HB 479, which would appropriate funds to the Department of Justice to assume law enforcement duties on the reservation. The working amount for the first bill is $42 million for the upcoming biennium, and for the second, $72 million as an ongoing appropriation. Both bills have been referred to their respective committees – HB 478 to Appropriations, and HB 479 to Judiciary.

Read told the Senate committee that his estimate for the state assuming jurisdiction was probably too low. He said the Montana Sheriffs and Peace Officers Association had advised him to start at $100 million to cover the costs of setting up a police force, jail and court system.

Sen. Susan Webber asked the county commissioners if they’d had formal discussions with tribal officials about PL 280. Decker reported that the commissioners had met about a year ago with tribal representatives and Lt. Governor Kristen Juris, and that he has met individually with Tribal Chairman Tom McDonald.

“He hasn’t formally said ‘Lake County we support your efforts to keep PL 280 in place,’” Decker said. “I know they’ve had multiple internal discussions about it.”

The Tribes assumed misdemeanor jurisdiction over tribal members in the 1990s, and Sheriff Bell told the committee he assumed that would continue regardless of the outcome of the county’s negotiations with the state over felony jurisdiction.

In his closing statement, Hertz told the Judiciary Committee, “You can see it would be much more effective to sit down with the county and come to an agreement on partial funding of this going forward,” as opposed to the estimated $100 million it would cost the Department of Justice to set up its own police force and justice system for the reservation.

“And that’s just a one-time investment – then they have the ongoing cost to pay for services needed,” Hertz said. “This is a very good bill and just keeps moving the process forward.”