State Statutes Limiting the Dual Sovereignty Doctrine: Tools for Tribes to Reclaim Criminal Jurisdiction Stripped by Public Law 280?


Tribal sovereignty suffered greatly by the 1953 passage of Public Law 280, which gave certain states jurisdiction over the Indian country within their borders. However, recent cases show that tribes can preempt this state jurisdiction, and thereby reclaim some measure of sovereignty, if they prosecute crimes first—so long as the surrounding state has a statute abrogating the dual sovereignty doctrine and the tribal prosecution satisfies the various requirements of that statute. Not all affected states have these statutes; in those that do, the statutes are often difficult to trigger. This Comment answers the ensuing questions: Which Public Law 280 states have such statutes? What are their requirements? If tribes can avail themselves of these statutes, should they go out of their way to do so? This Comment argues that tribes should think carefully about enlisting the protections of these statutes. Taking active steps to do so would require tribes to make their laws and prosecutions mirror those of the surrounding state, thus requiring tribes to abandon their own conceptions of justice.

About the Author

Managing Editor, UCLA Law Review, Volume 54. J.D., UCLA School of Law, 2007; B.A., Dartmouth College, 2000.

By uclalaw