Lake County officials look for answers on Public Law 28 withdrawal from U.S. Attorney

Frustration seemed to be the tenor this week at the Lake County Courthouse as public officials contemplate their withdrawal from Public Law 280, which has given the county felony jurisdiction over tribal members on the Flathead Reservation for nearly 60 years.  

The county announced in November that it was pulling out of the agreement, and in a letter dated March 1, Gov. Greg Gianforte acknowledged that decision on behalf of the State – which is the other signatory in the law enforcement agreement, along with the Confederated Salish and Kootenai Tribes and Flathead, Missoula and Sanders counties.

That means Lake County’s participation in PL 280 jurisdiction ends in just over two months, on May 20, with no clear plan in place for proceeding, at least from Lake County’s perspective.

Jesse Laslovich, U.S. Attorney for the District of Montana, is meeting with the commissioners at 1 p.m. next Tuesday, March 19, and the commissioners, Sheriff Don Bell and County Attorney James Lapotka are hoping he can provide some insight on key concerns going forward.

“We need to work with our partners at the federal government to figure out a workflow,” said Lapotka Monday. “So if a tribal member commits a felony, what is the process to hand that person off to the feds? Who's going to come get them? Where are they going to be incarcerated? And who's going to lead those investigations? I think those are our biggest concerns.”

Sheriff Don Bell wonders what will happen after May 20 to the 20 tribal inmates currently incarcerated in the Lake County Jail, and what will happen to tribal members already convicted by the county who violate the terms of their probation.

On the ground, however, he believes the process won’t look that different on May 21.

“If a tribal member commits a felony within the county, we’ll still bring them here and process them. After that, I think it's up in the air,” he said.

“Who's going to handle those major crimes? If there's under a hundred fentanyl pills, are we going to turn it over to the Tribes and if it's more than a hundred fentanyl pills and a gun does it go to the feds?”

He maintains that capacity at the tribal jail is limited and says federal agencies – the Bureau of Indian Affairs and FBI – lease jail space in Missoula and send federal prisoners to out-of-state penitentiaries to serve time.

Also, what happens to tribal prisoners whose trials are already scheduled to occur after May 20?

“We need to figure that all out so that we know what the playbook is on May 21,” Lapotka said. “If a tribal member commits a serious violent felony, we need to know who to call and what's going to happen so that we can keep systems in place to keep the citizens safe.”

“My goal is that the citizens see no difference in how (the Sheriff’s Department) is operated,” Bell said. “If they call 911, we're going to respond, as long as the commissioners give me the tools to do that.”

The county commissioners, who initiated withdrawal from PL 280 after efforts to get the state to help pay for it were thwarted by the Legislature, the courts and the governor’s veto pen, are also looking for answers to the transition process.

Commissioner Gale Decker said they’ve reached out to the Tribes and State about a transition plan, but as of Monday, no meetings had been scheduled with either entity. “The potential withdrawal impacts all of our people on the reservation – native and non-native alike,” Decker said.

In a letter released to the press last Tuesday, CSKT Police Chief Craige Couture said the Tribes “provide the core of law enforcement as a critical benefit across the Reservation, using CSKT dollars and CSKT personnel.”

He goes on to say they “remain dedicated to the longstanding collaborative partnerships we have established with other jurisdictions, which is evidenced by the fact that we already conduct the majority of criminal investigations on the Reservation – using CSKT resources and funding.”

Decker called the latter statement “a little bit misleading.”

“They do prosecute a lot of misdemeanors, and some drug-related felonies, which take them off of our plate,” he said. “But the county prosecutes the majority of felonies on the reservation.”

The press release also mentioned a “recent memorandum of understanding” that reaffirms the Tribes’ commitment “to work collaboratively with other jurisdictions to ensure public safety across the Flathead Indian Reservation.” The list mentioned federal, state, county and city governments, including Lake County.

Commissioner Bill Barron, a former Lake County sheriff who also worked in Glacier County on the Blackfeet Reservation, pointed out that PL 280 remains in place even after the county steps out. “It’s still here,” he said. “It’s just a matter of who is picking up the jurisdiction.”

He’s also hoping Laslovich will help shed light on the path forward.

“I think honestly that's going to be one of our most enlightening meetings, because he will lay out what they (federal law enforcement) will do and what they won't do.”

Bell has spent 32 years in law enforcement and 23 of those were with the Tribes. Regardless of what happens May 20, “I’m going to do my due diligence to all the citizens of Lake County,” he said. “My goal is to keep citizens as safe as we can.”

Still, without a transition plan in place, he predicts “crime is going to raise because there's going to be stuff that's going to fall through the cracks.”

Lapotka predicts a long wind down

Lapotka says his preference for the county’s departure from PL 280 “is doing this in a controlled step-down or phased process.”

But that requires partnerships and agreements on how to navigate the post-PL 280 landscape. “I look forward to working with whoever wants to work with us,” he said. “I don't know what we're going to hear from the United States Attorney next week. I'm hopeful that we're going to make some new friends there and figure out that process.”

Under the current system, tribal, state and federal courts have concurrent, or shared jurisdiction over felonies committed by tribal members on the reservation.

“We all have the authority to act, and it's by a local convention that we have it worked out that there's a hierarchy or a preference for who does what and for the most part we play well together,” Lapotka says.

The Tribes exercise exclusive jurisdiction over misdemeanors and have concurrent jurisdiction over felonies but have limited felony sentencing options.

While Lapotka plans to stop filing felony charges against tribal members on May 21, his department intends to continue prosecuting those cases filed prior to that date.

“We have people in our jail that are scheduled to have trials this summer. They have speedy trial rights,” he said. “There's all sorts of inter-jurisdictional problems that would spring up if we tried to pass that off onto another entity or another jurisdiction.”

He also doesn’t anticipate letting tribal inmates out of jail for cases that are still pending. “It’ll just be for new crimes going forward.”

“There isn't another facility that's going to hold a state inmate for a state charge other than the county jail,” he added.

He also anticipates a long wind down from PL 280, with the county attorney’s office continuing to monitor those cases involving tribal members that have been adjudicated in District Court. “That backlog is going to take a very long time to work through,” he said.

Lapotka also made it clear that he still believes PL 280 is the best solution for local law enforcement and says abandoning the agreement “is not good for the people of Lake County.

“It's unfortunate that the governor doesn't seem to want to work with us,” he added. “And it's unfortunate that we can't afford to keep doing what we're doing.”