Background
The U.S. Department of Justice's Office of Tribal Justice (OTJ) is the principal point of contact between the Department and the federally recognized Indian tribes. In 2000, OTJ issued a policy memorandum confirming the Department's position that P.L. 280 grants states concurrent — not exclusive — jurisdiction, and that tribal criminal and civil authority is not extinguished by P.L. 280. The memo was reaffirmed and updated in 2023 to incorporate post-VAWA, post-McGirt, and post-Brackeen developments.
The DOJ position is significant because P.L. 280 prosecutions and the operation of federal Indian law in PL280 states have historically been muddied by federal agencies treating PL280 as if it transferred all jurisdiction to states. The OTJ memo formally rejects that view.
Key Position
DOJ's Stated Position:
P.L. 280 grants the affected states concurrent civil and criminal jurisdiction with the federal government and the affected tribes. It does not divest tribes of their inherent authority over their members and territory, nor does it suspend the federal trust responsibility. Tribes in PL280 states retain full tribal court authority and may seek federal recognition of concurrent federal jurisdiction under the Tribal Law and Order Act (25 U.S.C. § 2801 et seq.) and 18 U.S.C. § 1162(d).
How This Supports ATN's PL280 Arguments
The OTJ memo is the federal executive branch's own statement that ATN's interpretation of P.L. 280 is correct. When ATN files retrocession petitions, FOIA requests, or 638-contract applications, the OTJ memo provides agency-deference authority that California cannot ignore.
- 1. Federal agency deference: Courts give weight to executive-branch interpretations of federal Indian law statutes.
- 2. Estoppel against contrary federal positions: Other federal agencies cannot credibly argue PL280 is exclusive.
- 3. Trust responsibility preserved: The memo explicitly says PL280 did not extinguish federal trust duties.
- 4. Retrocession support: DOJ's position is the rhetorical and legal hook for ATN's retrocession ask.
- 5. TLOA § 1162(d): The memo affirmatively encourages tribes to invoke TLOA's federal-jurisdiction reassumption mechanism.
Related Authorities
- Hoopa Valley / TLOA § 1162(d) — Federal concurrent jurisdiction reassumption
- Walker v. Rushing (8th Cir. 1990) — Judicial articulation of the same concurrent-jurisdiction principle
- VAWA STCJ — Same restoration philosophy applied legislatively