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Criminal jurisdiction on the Flathead Reservation: Two bills killed, one survives, amended


Criminal jurisdiction on the Flathead Reservation: Two bills killed, one survives, amended

Mar 30, 2023 | 10:30 pm ET
By Nicole Girten
Criminal jurisdiction on the Flathead Reservation: Two bills killed, one survives, amended
The Montana State Capitol on March 21, 2023. (Photo by Nicole Girten/Daily Montanan)

Lake County may still get funding for law enforcement on the Flathead Indian Reservation, just maybe not as much as they’d originally hoped.

One of three bills concerning who pays for overseeing federal criminal justice there survived executive action in the House Appropriations Committee on Wednesday. The other two were tabled by the committee with Chair Rep. Llew Jones, R-Conrad, saying they were unnecessary following the passage of the first.

Public Law 280 is an agreement the state opted into decades ago for Lake County to oversee criminal jurisdiction on the Flathead Indian Reservation, and it only currently applies to felonies. The legislation that advanced would appropriate funds to run criminal jurisdiction that Lake County has argued – and has also filed suit over – is the financial responsibility of the state.

The bill left standing is House Bill 479, sponsored by Rep. Joe Read, R-Ronan. It was heavily amended in the last week to now reflect a one-time $5 million biennial payment, through the Department of Justice, to the county for providing law enforcement services.

Montana authorized overseeing criminal jurisdiction in the Flathead Reservation in 1963 under Public Law 280, which passed a decade prior in Congress. The law allowed for the transfer of criminal jurisdiction to states where reservations are located. The Flathead Reservation is the only reservation in Montana under PL 280, with the majority population residing in Lake County.

Misdemeanor offenses have been overseen by the Confederated Salish and Kootenai Tribes since 1994.

The state is solely responsible for overseeing felonies there now, and Lake County said that because the state itself doesn’t have the infrastructure and has not supplied funding, the county was forced to help — and incur costs.

Lawmakers tried to help last session. However, the PL-280 legislation that passed was appropriated at $1– down from an originally proposed $2.2 million.

This session, the CSKT continues to have no official comment on related legislation, a spokesperson for the tribe said in an email Thursday.

Sen. Shane Morigeau, D-Missoula, who is also CSKT, voted in favor of the, now- dead, Senate Bill 127 from Sen. Greg Hertz, R-Polson, after first voting against it on the floor during second reading. The bill would have created a mechanism by which if the state and county don’t agree to the amount of funds needed for law enforcement, the state would take over jurisdiction.

Morigeau voted in favor of the bill after getting assurances about how the funds would be used from Hertz in the Senate Finance and Claims hearing.

“He was willing to be a partner with the tribes and was willing to look at recidivism, ways to reduce recidivism, mental health, addiction, homelessness, those sorts of things,” Morigeau said in an interview Thursday.

The new bill, though, doesn’t have specific parameters around how the funds would be spent.

“I feel like we have to have some checks and balances with the money,” he said, saying he still needs to do some research on the bill. “I don’t think a bill that’s just essentially a blank check passes the sniff test for that.”

In an interview, Hertz said he wouldn’t be opposed to working with Read to propose an amendment to specify how the funds would be used.

“I think it probably needs to be clear what the money should be used for,” Hertz said.

The bill still in play, HB 479, was heard in the House Judiciary on Monday, and during executive action the committee adopted an amendment requested by Read that completely changed the language of the bill. The bill first appropriated $37.5 million annually through the Department of Justice to the county, as reflected in a now-outdated fiscal note.

Read wasn’t present during Executive Action to explain the reason for the change.

The amendment gutted the language of the bill to switch it to a one- time payment of $27.5 million.

Then on Wednesday, the House Appropriations Committee amended it to be an annual payment of $2.5 million for the next two years.

In a legal filing, the county said they spend about $4 million annually to comply with PL-280.

Read, who sits on Appropriations, said in committee this week when the amendment to drop the payment to $5 million was proposed, he initially was against it, but had a change of heart, because it preserved the language of the bill and it needed to pass before the deadline next week for appropriations bills to make it from one chamber to another.

“And we’ll wait for the Senate to go over there and give me 25 bucks instead of the dollar,” Read said.

Hertz worked closely with Read on all of these bills. However, his bill, Senate Bill 127, died. Speaking to the downward shift in the funding in Read’s bill, Hertz said he was looking to the pending lawsuit between Lake County and the state for potential to cover past expenditures the county accrued.

“The legislation right now is just looking at the future,” he said.

Hertz said the appropriation goes through the Department of Justice and then the county because the DOJ is both the top law enforcement agency in the state and would also assume responsibility for PL-280 agreement if the county were to pull out.

Rep. Bill Mercer, R-Billings, said in explaining the latest amendment in House Appropriations the state does not have an obligation to fund law enforcement services in Lake County, although it has an interest in trying to preserve the status quo for the next two years.

“The state doesn’t believe that it is A) bound to remain in the relationship and B) that it is likely to do anything to provide future support,” Mercer said.

Lake County Commissioners have said it would cost the state $100 million to set up their own jurisdiction over the reservation if the county were to back out.

“We are pleased that members of the Montana State Legislature are making progress on this issue and will remain engaged with them as the process moves forward,” commissioners said in an emailed joint statement on Thursday.

Two men of the CSKT testified against the two proposals that failed during the hearing on the bills last week.

Gov. Greg Gianforte said the administration has been involved in resolving the situation, pointing to the work of Lt. Governor Kristen Juras who has gone to the Flathead Indian Reservation to speak with stakeholders.

“We’re watching the deliberations in the legislature closely, and then we’ll see what ends up getting to us,” Gianforte said during a press conference on Thursday. “We need to get to a resolution because … law enforcement has to be properly funded.”

The bill will go to the House floor next.