Lawsuit filed by Lake County against the state
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LAKE COUNTY — This week a lawsuit was officially filed against the State of Montana by attorney Lance Jasper with the law firm Reep, Bell, and Jasper on behalf of Lake County for unfulfilled obligations of Public Law 280.
Public Law 280 was passed by legislation in 1963, whereby the State of Montana agreed to “assume criminal jurisdiction over Indians and Indian territory of the Flathead Indian Reservation.”
Since the passing of PL 280, according to the lawsuit, the state has repeatedly acknowledged the existence of their obligation, such as in 1994 when the Confederated Salish and Kootenai Tribes agreed to assume jurisdiction over misdemeanor crimes by tribal members within the Flathead Reservation. During this proclamation, the Governor of Montana, Marc Racicot at the time, recognized “the State of Montana obligated itself to assume criminal jurisdiction over Indians on the Flathead Reservation ... ”
According to the lawsuit, Lake County is the most affected county in Montana by public law 280 jurisdiction, because most of the reservation and the CSKT population resides within it. Sources state Lake County was also not part of the talks that led to this agreement.
Although the state agreed to assume criminal law jurisdiction over CSKT tribal members, it has failed to satisfy its obligation, instead leaving it to local government in Lake County. “Because the State itself lacks the infrastructure and has not supplied adequate funding, Lake County and its taxpayers were forced to incur costs,” the lawsuit reads. Since the CSKT assumed misdemeanor jurisdiction in 1994, they have also shouldered a considerable portion of the financial burden.
Since 1963, the cost of services related to criminal jurisdiction has risen exponentially. Initially the cost was $30,000 to $40,000 including misdemeanors, but has now grown to over $4.3 million per year for the exercise of felony jurisdiction alone. The lawsuit contends these costs include prosecution, detention and prevention of crime, enforcement of criminal and traffic codes, youth placement and detention, costs of care for detainees, operation and maintenance of detention facilities, personnel, and transportation of inmates.
“As a county, we’re well aware that the cost of PL 280 has escalated dramatically over the past 10 years, so we began this quest to find some other entities that would help with the cost of it, and that has been unsuccessful,” District Two Commissioner Steve Stanley said.
In 2021, Montana’s legislature passed House Bill 656, introduced by representative Joe Read, described as “an act requiring county reimbursement for assumption of criminal jurisdiction within the Flathead Indian Reservation.” As passed, the bill stated, “Unless the Confederated Salish and Kootenai Tribes or Lake County withdraws consent to enforcement … the state shall reimburse Lake County for assuming criminal jurisdiction under this section annually to the extent funds are appropriated by the Legislature. The annual amount of reimbursement must be adjusted each year based on the consumer price index.”
In 2017, representative Greg Hertz, in conjunction with the State, prepared a fiscal analysis for proposed House Bill 450 that estimated the cost to reimburse Lake County would have been $4.011 million in fiscal year 2018, rising to $4.383 million by 2021. The draft of House Bill 656 included a section providing an appropriation of “$2,191,621 from the general fund to the Department of Justice in each year of the biennium beginning July 1, 2021, to reimburse Lake County for assuming criminal jurisdiction within the Flathead Reservation.”
The lawsuit explains that while the language of the draft remained the same in the passed bill, the dollar amount was reduced from $2,191,621 to $1.
While House Bill 656 purports to allow Lake County to withdraw its consent to enforce criminal jurisdiction over CSKT, the lawsuit points out that the State of Montana lacks detention facilities, law enforcement personnel, prosecutorial offices, and “many of the other fundamental necessities that would be required to fulfill the obligations the State assumed under (PL) 280.”
“Lake County’s withdrawal of consent presents a paradoxical Catch 22,” the lawsuit goes on to state, “i.e., its residents must continue to fund a criminal justice obligation that should by rights be borne by the State, or cease fulfilling the State’s obligation and suffer law enforcement chaos.”
The process of arriving at the lawsuit began with a 27-page letter sent by the county to the Governor on Feb. 8 warning him of the county’s position.
“It’s been several months in putting the complaint together,” District Three Commissioner Gale Decker commented. “There was an attempt to do some negotiation with the state over the PL 280 costs. That negotiation really didn’t go anywhere. At that point we determined that filing a lawsuit was the next step.”
“The effort to get money started back in about 2002 or 2003,” stated Stanley. “We started trying to work with the senators and congressmen on a federal level and that didn’t get us anywhere at all… The state accepted responsibility for (PL 280), and then they haven’t paid a dime toward the county on it.”
The lawsuit complaint outlines one count of Unfunded Mandate, one count of Unjust Enrichment, and one count of Declaratory Judgment against the State. It asks for the relief of an award of damages “representing the past and present costs incurred by Lake County in fulfillment of the State of Montana’s obligations,” an award of restitution “representing the past and present value of services it provided in fulfillment of the State of Montana’s obligations, and for a declaratory judgment “establishing the State’s obligation to reimburse Lake County for costs incurred in going forward in fulfillment of the State of Montana’s obligations.”
The state will have approximately 42 days to respond from the date of the filing. “We’ll get a response from the state, and that’ll direct our path forward from there,” Decker said.