Background & Facts
North Dakota is a "Public Law 280 option state" — Congress in 1953 invited it to assume jurisdiction, but only with tribal consent. North Dakota enacted a state statute conditioning its assumption of jurisdiction on the affected tribe's consent, and then required tribes to disclaim sovereign immunity as a precondition for accessing state courts.
The Three Affiliated Tribes sued an engineering firm in state court for negligent construction of a tribal water system. The state courts dismissed, citing the failure of the tribe to formally consent to state jurisdiction under North Dakota's statutory scheme.
The case bounced between the U.S. Supreme Court and the North Dakota Supreme Court — twice. The fundamental issue: when consent is the trigger for state jurisdiction, what does the consent regime look like, and who controls it?
The Court's Holding (Both Opinions)
In 1984, the Court vacated and remanded, instructing the North Dakota courts to consider whether requiring a tribe to waive sovereign immunity as a precondition for accessing state court was preempted by federal law. In 1986, after North Dakota again ruled against the tribe, the Supreme Court reversed — holding that conditioning state-court access on a sovereignty waiver impermissibly burdens tribal sovereignty and is preempted.
Key Holding:
After 1968, states can only assume P.L. 280 jurisdiction with tribal consent — and that consent regime cannot be structured to coerce waiver of sovereignty. Where consent is required and not given on the state's own conditions, state jurisdiction does not validly attach. The Court reaffirmed this rule across two separate opinions covering the same litigation.
Key Language
"Pub. L. 280 was enacted at a time when Congress's policy toward Indian tribes was substantially different from today's policy. Subsequent enactments demonstrate Congress's preference for self-determination over termination. After 1968, no State could assume any jurisdiction over Indian Country without the consent of the affected tribes."
"The 1968 amendments reflect a marked change in federal policy. Congress conditioned future state assumptions of jurisdiction on tribal consent — a recognition that the original P.L. 280 scheme had been deficient in this fundamental respect."
How This Proves P.L. 280 Requires Consent
Three Affiliated Tribes is the case where the Supreme Court said it twice — and meant it. Across two separate opinions in the same litigation, Justice O'Connor and the Court treated tribal consent as the load-bearing element of any post-1968 P.L. 280 jurisdictional analysis.
More devastating still: the Court characterized the 1968 amendment as a recognition that "the original P.L. 280 scheme had been deficient in this fundamental respect." That is the Supreme Court itself acknowledging that pre-1968 P.L. 280 — including California's 1953 imposition — was constitutionally and structurally flawed.
The logical chain for California:
- 1. SCOTUS has formally characterized pre-1968 P.L. 280 as "deficient."
- 2. SCOTUS has confirmed twice in the same litigation that consent is the constitutional pivot.
- 3. California's 1953 assumption is a textbook pre-1968, consent-free imposition.
- 4. Therefore, California's assumption is exactly the kind of "deficient" scheme SCOTUS itself flagged.
- 5. Three Affiliated Tribes is binding SCOTUS authority for treating consent as the dispositive question.
Related Cases
- Kennerly v. District Court (1971) — Strict enforcement of consent requirement
- Washington v. Yakima Indian Nation (1979) — Consent framework for state assumptions
- Bryan v. Itasca County (1976) — P.L. 280 must be read narrowly
- Indian Civil Rights Act of 1968 — The amendment Three Affiliated Tribes interpreted