Uncharted territory: U.S. Attorney paints bleak picture of 280 withdrawal

During a meeting that lasted more than an hour, U.S. Attorney Jesse Laslovich and U.S. Assistant Attorney Ryan Weldon sought to map the law-enforcement landscape in Lake County after the county officially withdraws from Public Law 280 on May 20.

They painted a rather bleak and muddled picture. 

The Department of Justice has neither the manpower nor resources to replace county law enforcement coverage, Laslovich told Lake County commissioners and an assemblage of police officers during a meeting last Tuesday. And federal jurisdiction looks considerably different than state jurisdiction when it comes to investigating and prosecuting felonies.

Laslovich began his remarks by pointing out that Congress has recently passed legislation that cuts funding to U.S. Attorney offices across the country, “so we don't have additional positions that we can just grab from the tree to prosecute those cases.” Funding was also reduced for other DOJ affiliates, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Administration.

Weldon later remarked that the Bureau of Indian Affairs “is even more significantly under-resourced” when it comes to law enforcement.

“I appreciate that the federal government is big, certainly bigger than the state, bigger than local government, but when you narrow it down to Montana, we're actually quite small,” Laslovich said. “And frankly, the work that is currently being done by our local partners would not be able to be done by us on the same number basis.”

The DOJ prosecutes around 400 cases a year across the entire state with a staff of around 20 attorneys. In an email, Lake County Attorney James Lapotka said that his department of five attorneys prosecutes more than 400 felonies cases each year, “on top of all the non-tribal misdemeanors and juvenile criminal cases, abuse and neglect cases and involuntary commitment cases.”

Under the Department of Justice, federal law enforcement focuses on major crimes, broken into two categories: crimes of general applicability, like gun crimes, drug crimes and wire fraud, where the basis for jurisdiction is not based on Indian Country, and those that fall under the Major Crime Act, such as assault, rape or murder.

In terms of drug crimes, “We want the worst of the worst,” Laslovich said. “The people who are poisoning this county and communities across the state with large amounts of fentanyl, methamphetamine, cocaine, heroin, what have you.”

He warned county officials about the uptick in activity from drug cartels, infiltrating the western part of the state via the southern border with Mexico, the West Coast and Washington State.

“There's a market here in this state, particularly in Indian Country,” he said. 

Laslovich pointed out that Lake County, under the current system, handles the mid-range felony drug crimes. These are people who deal drugs primarily to fund their addictions.

“Unfortunately, those are people that we just are not prosecuting currently and we wouldn't be able to prosecute in the event that this becomes a non-280 jurisdiction,” he said. “Not because we don't want to – just from a resource perspective we wouldn't be able to do that.”

He also warned that until those people become major traffickers and fall under federal jurisdiction, they could become “a menace and terrorists in this community, for lack of a better word. I think that’s a real concern.”

Other crimes delineated under the Major Crimes Act – which authorizes federal criminal jurisdiction over certain crimes if the victim or defendant is “an Indian person” – include murder, assault resulting in serious bodily injury, kidnapping and most sexual offenses.

Other mid-range felonies – such as assaults or burglaries under a certain dollar value – are left to local authorities. The Confederated Salish and Kootenai Tribes investigates and prosecutes misdemeanors and some lower level felonies involving tribal members. The question remains, however, what happens with more dire felonies involving tribal members that the county would typically handle?

Not a clean transition

The Department of Justice also approaches major crimes differently. Whereas the county can arrest, indict and hold a suspect in the local jail, the federal government will typically impanel a grand jury before indicting and potentially incarcerating a suspect.

Practically speaking, that means that even in the case of a homicide, the suspect might not immediately be incarcerated, pending the outcome of an investigation and a grand-jury indictment.

In murder cases that have occurred on other reservations, Weldon said “there may be a two-month gap before we ultimately bring that individual into federal custody.”

In the absence of PL-280, law enforcement is also tasked with defining who is Indian and non-Indian. Weldon gave an example of involuntary manslaughter. If both victim and suspect are tribal members, the DOJ would typically prosecute the case under the Major Crimes Act. However, if the incident involved a tribal member and non-member, the case would be prosecuted under the state code, although the question remains: after May 20, who prosecutes?

No one seemed clear about the future role of police officers representing Lake County’s three incorporated communities: Polson, Ronan and St. Ignatius. Weldon said there are good examples of agreements between city, tribal and county governments on other reservations, adding that working across jurisdictions “is critical.”

Also unclear is who will incarcerate tribal suspects awaiting trial. Laslovich said that suspects in cases handled by the feds are usually held in detention centers in Missoula, Great Falls and Helena. He added that’s he’s been in contact with the U.S. Marshal’s Service to try to get an answer to what happens after May 20 to those tribal members typically detained in the county jail.

“This is something that we need to get organized on in the event that we're going to have more people,” Laslovich added.

He also suggested that the Department of Interior, which oversees the Bureau of Indian Affairs, would need to have a role in unwinding Public Law 280. He added that it’s possible, without an agreement with the DOI in place, “there would be a legal gray area, in our view, come May 21 in terms of the major felony crimes that are being committed.”

“I would imagine that we would get motions to dismiss from defense attorneys saying we didn't have jurisdiction because the process has not been resolved from the Department of Interior perspective.”

The transition, he added, “is just not as clean as we would like it to be.”

“This system that has existed here has worked well,” he said. “And with our non-280 reservations, I think if you talk to our tribal partners there, they would tell you it's not as good as it should be.”

The absent partner

Adding to that is how unusual the situation is. The Flathead Reservation is the only reservation in Montana governed by Public Law 280, which means that there is no model for pulling the threads of state, tribal and county jurisdiction apart, especially for an agreement that’s nearly 60 years old.

The state – also a signatory in the agreement – has been an absent partner in the conversation about how to move forward. Even Laslovich noted that he had “a brief conversation” with Lt. Gov. Kristen Juras, alerting him to the letter sent to the county by Governor Greg Gianforte a few weeks ago, but no additional communication.

In addition to acknowledging the county’s decision to pull out of PL 280, the governor’s letter also talked about the possibility of the state “retroceding” from the agreement as well. That’s a move that Weldon said would have to begin with notifying the federal government of its intention to do so. “They have to do that step of the process,” he added.

Both men emphasized the importance of working with law enforcement across jurisdictions to both extend limited resources and to more effectively investigate and prosecute crimes. They suggested that memorandums of understanding be in place beforehand, and that cross-deputizing police officers could be an important step as well.

“When partnerships are working together, that's actually when we see some real production on investigations,” Weldon said.

They also encouraged the county to reach out directly to the BIA, FBI and U.S. Marshall to get a better understanding of the resources available from those agencies, and coordinate with tribal law enforcement as well.

Laslovich also noted that the public safety and law enforcement after May 20 “is not necessarily going to get better. It may get worse.”

After that date, he said, “the conversation with James (Lapotka) would be, who's your worst? Give us your top 10 of the worst of the worst, and those are the ones we'll pursue."

“It's a terrible question, and an awful position for him to be in, where we have to have that discussion,” he added. “Because then what do we do with the ones who are really bad, but not the worst of the worst? That is a gray area.”

    U.S. Attorney Jesse Laslovich, left, and Assistant U.S. Attorney Ryan Weldon listen to a question from the back of the rooom regarding L280. (Berl Tiskus/Leader)