b'Authority to Solicit Gifts\nThe express statutory authority to accept gifts, contained in section 403(b)(1) of the Office of\nGovernment Ethics Authorization Act of 1996, includes the implied authority to solicit gifts.\n\nJanuary 19, 2001\n\nMEMORANDUM OPINION FOR THE DIRECTOR\nOFFICE OF GOVERNMENT ETHICS\nThis memorandum responds to your request for our opinion whether section 403(b)(1) of the Office of Government Ethics Authorization Act of 1996\nauthorizes the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d) to solicit gifts. We conclude\nthat the express statutory authority contained in section 403(b)(1) to accept gifts\nincludes the implied authority to solicit gifts.\nSection 403(b)(1) provides that \xe2\x80\x9c[t]he Director is authorized to accept and\nutilize on behalf of the United States, any gift, donation, bequest, or devise of\nmoney, use of facilities, personal property, or services for the purpose of aiding or\nfacilitating the work of the Office of Government Ethics.\xe2\x80\x9d Pub. L. No. 104-179,\n110 Stat. 1566 (1996) (codified as amended at 5 U.S.C. app. \xc2\xa7 403(b) (Supp. IV\n1998)). You have asked \xe2\x80\x9cwhether this express authority to \xe2\x80\x98accept and utilize\xe2\x80\x99 a\ngift implies the authority to solicit a gift.\xe2\x80\x9d Letter for Randolph D. Moss, Acting\nAssistant Attorney General, Office of Legal Counsel, from Stephen D. Potts,\nDirector, Office of Government Ethics at 1 (July 30, 1999).\nI.\nWe have previously considered this basic question in connection with our\nissuance of two written opinions. The opinions did not resolve the question,\nhowever. Although we concluded in each opinion that the relevant agency had the\nauthority to solicit gifts, we based our conclusions on the language and structure of\nthe particular statutes in question, which contained specific additional language\xe2\x80\x94\nbeyond the general gift acceptance language of a provision like section\n403(b)(1)\xe2\x80\x94supporting the existence of solicitation authority. See Memorandum\nfor Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger,\nAssistant Attorney General, Office of Legal Counsel, Re: Authority to Solicit Gifts\n(Dec. 9, 1993) (\xe2\x80\x9cNussbaum Opinion\xe2\x80\x9d) (solicitations by National Endowment for\nthe Arts and National Endowment for the Humanities); Establishment of the\nPresident\xe2\x80\x99s Council for International Youth Exchange, 6 Op. O.L.C. 541 (1982)\n(solicitation by United States Information Agency). 1 The General Accounting\n\n1\nYou cited the Nussbaum Opinion in your letter. In that opinion, we concluded that the gift\nacceptance provision in the National Foundation on the Arts and the Humanities Act of 1964, which\n\n55\n\n227-329 VOL_25_PROOF.pdf 65\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nOffice has viewed this implied solicitation authority question as unsettled. See\nGeneral Accounting Office, 2 Principles of Federal Appropriations Law 6-147 (2d\ned. 1992) (\xe2\x80\x9c[a] question which appears to have received little attention is whether\nan agency with statutory authority to accept gifts may use either appropriated\nfunds or donated funds to solicit the gifts\xe2\x80\x9d).\nAlthough no written opinion of this Office has resolved the question whether\nexpress statutory authority to accept gifts includes the implied authority to solicit\ngifts, we did provide oral advice on this question in 1997 in connection with gift\nacceptance language in 28 U.S.C.A. \xc2\xa7 524(d)(1) (West Supp. 1997) that was very\nsimilar to section 403(b)(1). Section 524(d)(1) provided that \xe2\x80\x9c[t]he Attorney\nGeneral may accept, hold, administer, and use gifts, devises, and bequests of any\nproperty for the purpose of aiding or facilitating the work of the Department of\nJustice.\xe2\x80\x9d We determined in 1997 that, as of 1996, when Congress enacted the\nJustice Department provision, a number of other federal agencies had been\noperating for many years under substantially the same general statutory language\nand had interpreted the language to contain an implicit grant of authority to solicit\ngifts. We confirmed this longstanding administrative construction by discussing\nthe subject with attorneys in the general counsel offices of the Departments of\nState, Treasury, and Commerce\xe2\x80\x94agencies that had all engaged in the solicitation\nof gifts on the basis of general gift acceptance provisions that say no more than\nthat the agency \xe2\x80\x9cmay accept gifts,\xe2\x80\x9d and that in the case of Treasury and Commerce\nwere virtually identical to the Justice provision. 2 We also learned that these\nprovisions were all enacted well before the Justice Department provision. 3\nThe State Department\xe2\x80\x99s interpretation that its gift acceptance authority includes\nthe authority to solicit gifts is reflected in Department regulations, see 2 FAM 960\n(\xe2\x80\x9cOfficial Gifts to the Department of State\xe2\x80\x9d); 2 FAM 965 (\xe2\x80\x9cSolicitation\xe2\x80\x9d), and\n\ndid not explicitly authorize solicitation, nonetheless authorized the National Endowment for the Arts\nand the National Endowment for the Humanities to solicit gifts. In reaching that conclusion, we relied\non two rationales: (1) the solicitation authority might be inferred from the need for coordination of\npublic and private support for the Endowments that was made clear by the text and structure of the\nstatute; and (2) the longstanding administrative construction of the statute by the Endowments had been\nthat it included solicitation authority. In the circumstances, we did not need to consider whether a\nbroader rationale was available.\n2\nSee 22 U.S.C. \xc2\xa7 2697(a) (1994) (\xe2\x80\x9cThe Secretary of State may accept on behalf of the United States\ngifts made . . . for the benefit of the Department of State . . . or for the carrying out of any of its\nfunctions.\xe2\x80\x9d); 31 U.S.C.A. \xc2\xa7 321(d)(1) (West Supp. 1997) (\xe2\x80\x9cThe Secretary of the Treasury may accept,\nhold, administer, and use gifts and bequests of property, both real and personal, for the purpose of\naiding or facilitating the work of the Department of the Treasury.\xe2\x80\x9d); 15 U.S.C. \xc2\xa7 1522 (1994) (\xe2\x80\x9cThe\nSecretary of Commerce is hereby authorized to accept, hold, administer, and utilize gifts and bequests\nof property, both real and personal, for the purpose of aiding or facilitating the work of the Department\nof Commerce.\xe2\x80\x9d).\n3\nSee Foreign Service Act of 1980, Pub. L. No. 96-465, \xc2\xa7 2201, 94 Stat. 2071, 2153 (most recent\nenactment); Deficit Reduction Act of 1984, Pub. L. No. 98-369, div. A, \xc2\xa7 445, 98 Stat. 494, 816;\nCommerce Dept. Gift Acceptance Act, Pub. L. No. 88-611, \xc2\xa7 1, 78 Stat. 991, 991 (1964).\n\n56\n\n227-329 VOL_25_PROOF.pdf 66\n\n10/22/12 11:10 AM\n\n\x0cAuthority to Solicit Gifts\n\nState informed us that it has long engaged in solicitation, including an active\nfundraising campaign in the 1980s by its Fine Arts Committee to raise funds to\nrenovate State\xe2\x80\x99s diplomatic reception rooms. We learned from the Treasury\nDepartment that under gift acceptance authority conferred by statute in 1984, its\nCommittee for the Preservation of the Treasury Building engaged in a fundraising\ncampaign in 1986-1987. Treasury provided us with Treasury memoranda from\n1986 that outline its solicitation plans and record its consultations with State about\nits solicitation practices over the years. Finally, we learned from the Commerce\nDepartment that it had an unwritten policy of soliciting gifts. Commerce once\nsolicited funds for a particular program through a Federal Register notice, and\nCongress responded by enacting an appropriations rider prohibiting solicitation for\nthat program where there would be a conflict of interest. That rider did not\nchallenge the basic proposition that Commerce had the general authority to solicit\ngifts.\nIn summary, we determined in the course of our 1997 review of this issue that\nthe Departments of State, Treasury, and Commerce had long understood their\ngeneral statutory authority for gift acceptance to include the authority to solicit\ngifts. We concluded as a legal matter that Congress\xe2\x80\x99s enactment of the Justice\nDepartment\xe2\x80\x99s gift acceptance provision in 1996 should be interpreted against the\nbackground of this longstanding and publicly available administrative construction\nof substantially the same statutory language. We therefore concluded that the\nJustice Department\xe2\x80\x99s express authority to accept gifts also included the implicit\nauthority to solicit gifts. 4\nII.\nWe reach the same conclusion with respect to the OGE statutory provision.\nLike the Justice Department provision, it was enacted in 1996 and should be\ninterpreted against the background of the longstanding administrative construction\nof similar gift acceptance statutory language. Cf. Lorillard v. Pons, 434 U.S. 575,\n580-81 (1978) (\xe2\x80\x9cCongress is presumed to be aware of an administrative or judicial\ninterpretation of a statute and to adopt that interpretation when it re-enacts a statute\nwithout change . . . . So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had\nknowledge of the interpretation given to the incorporated law, at least insofar as it\naffects the new statute.\xe2\x80\x9d) (citations omitted). The statutory provision authorizing\nthe OGE Director to \xe2\x80\x9caccept and utilize\xe2\x80\x9d gifts is substantially the same as the\nJustice Department provision authorizing the Attorney General to \xe2\x80\x9caccept . . . and\nuse\xe2\x80\x9d gifts, as well as the provisions concerning the Departments of State, Treasury,\n\n4\nThis interpretation is reflected in a Department of Justice order. See DOJ Order 2400.2, Solicitation and Acceptance of Gifts to the Department (Sept. 2, 1997).\n\n57\n\n227-329 VOL_25_PROOF.pdf 67\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nand Commerce that are discussed above. The legislative history of the OGE\nprovision does not discuss the question of soliciting gifts, and we have found\nnothing in that legislative history that suggests a basis for not following the\nlongstanding Executive Branch administrative construction of gift acceptance\nlegislation.\nWhen Congress passed OGE\xe2\x80\x99s gift provision in 1996, the Executive Branch\xe2\x80\x99s\nconsideration of similar provisions had been, as explained above, the basis for\nquite public solicitation efforts by federal agencies. Congress\xe2\x80\x99s enactment of\nOGE\xe2\x80\x99s provision should be interpreted in light of those public efforts.\nAccordingly, for the foregoing reasons, we conclude that OGE\xe2\x80\x99s statutory\nauthority to accept and utilize gifts includes the implied authority to solicit gifts.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice of Legal Counsel\n\n58\n\n227-329 VOL_25_PROOF.pdf 68\n\n10/22/12 11:10 AM\n\n\x0c'


b'(Slip Opinion)\n\nThe Scope of State Criminal Jurisdiction over Offenses\nOccurring on the Yakama Indian Reservation\nIn partially retroceding the criminal jurisdiction that it had obtained under Public Law\n280, the State of Washington retained criminal jurisdiction over an offense on the\nYakama Indian Reservation when the defendant or the victim is a non-Indian, as well\nas when both are non-Indians.\nJuly 27, 2018\n\nMEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY SOLICITOR\nDEPARTMENT OF THE INTERIOR\nYou have asked us to examine the scope of state criminal jurisdiction\non the Yakama Indian Reservation in the State of Washington. Specifically, you have asked whether Washington, in retroceding criminal jurisdiction to the United States over offenses on the reservation involving\nIndians, retained jurisdiction over criminal offenses only when both the\ndefendant and the victim are non-Indians, or also when either the defendant or the victim is a non-Indian. 1\nIn 1963, Washington assumed jurisdiction over criminal offenses on the\nYakama Reservation under Public Law 280, a 1953 federal statute. See\nPub. L. No. 83-280, \xc2\xa7 7, 67 Stat. 588. In 2014, the Governor of Washington partially retroceded that jurisdiction in a proclamation accepted by the\nUnited States. See Acceptance of Retrocession of Jurisdiction for Yakama\nNation, 80 Fed. Reg. 63,583, 63,583 (Oct. 20, 2015) (\xe2\x80\x9cRetrocession\nAcceptance\xe2\x80\x9d); see also 25 U.S.C. \xc2\xa7 1323(a). Your question turns on the\ninterpretation of the Governor\xe2\x80\x99s proclamation in light of the federal statutory framework.\nThe two pertinent paragraphs of the Governor\xe2\x80\x99s proclamation addressing Washington\xe2\x80\x99s partial retrocession of criminal jurisdiction both state\nthat, \xe2\x80\x9c[w]ithin the exterior boundaries of the Yakama Reservation,\xe2\x80\x9d\nWashington retains \xe2\x80\x9cjurisdiction over criminal offenses involving non-\n\n1 Although your request also refers to civil jurisdiction, you note that you are making\nyour request for \xe2\x80\x9cthe sake of enhanced public safety,\xe2\x80\x9d which we understand from separate\ndiscussions to be the primary concern animating your inquiry. Letter for Steven A. Engel,\nAssistant Attorney General, Office of Legal Counsel, from Daniel H. Jorjani, Principal\nDeputy Solicitor, Department of the Interior, Re: Scope of Federal Jurisdiction on the\nYakama Indian Reservation at 1 (Mar. 30, 2018) (\xe2\x80\x9cRequest Letter\xe2\x80\x9d). We therefore focus\non criminal jurisdiction, although aspects of our analysis touch upon civil jurisdiction.\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nIndian defendants and non-Indian victims.\xe2\x80\x9d Proclamation by the Governor\n14-01, \xc2\xb6\xc2\xb6 2, 3, at 2 (Jan. 17, 2014) (\xe2\x80\x9cProclamation 14-01\xe2\x80\x9d). In a letter\ntransmitting the proclamation to the Department of the Interior (\xe2\x80\x9cDOI\xe2\x80\x9d),\nthe Governor explained that \xe2\x80\x9cthe intent\xe2\x80\x9d in the relevant paragraphs \xe2\x80\x9cis\nfor the State to retain jurisdiction . . . where any party is a non-Indian.\xe2\x80\x9d\nLetter for Kevin Washburn, Assistant Secretary of Indian Affairs, DOI,\nfrom Jay Inslee, Governor, State of Washington, Re: Yakama Nation\nRetrocession Petition at 2 (Jan. 27, 2014) (\xe2\x80\x9cGov. Inslee Letter\xe2\x80\x9d). 2 In\nnotifying the Confederated Tribes and Bands of the Yakama Nation\n(\xe2\x80\x9cYakama Nation\xe2\x80\x9d) of the United States\xe2\x80\x99 acceptance of the retrocession,\nDOI stated that, with respect to \xe2\x80\x9cthe extent of retrocession,\xe2\x80\x9d the proclamation was \xe2\x80\x9cplain on its face and unambiguous,\xe2\x80\x9d but DOI did not set out its\nview of that plain meaning. Letter for JoDe Goudy, Chairman, Yakama\nNation Tribal Council, from Kevin K. Washburn, Assistant Secretary,\nDOI at 5 (Oct. 19, 2015) (\xe2\x80\x9c2015 DOI Letter\xe2\x80\x9d). 3\nIn a November 2016 guidance memorandum, DOI\xe2\x80\x99s Bureau of Indian\nAffairs (\xe2\x80\x9cBIA\xe2\x80\x9d) took the position that, under the proclamation, Washington had retained criminal jurisdiction on the Yakama Reservation only\nover those cases in which both the defendant and the victim are nonIndian. Memorandum for Darren Cruzan, Director, Office of Justice\nServices, from Lawrence S. Roberts, Principal Deputy Assistant Secretary, BIA, Re: Guidance to State, Local, and Tribal Enforcement Agencies\non Yakama Retrocession Implementation at 1 (Nov. 30, 2016) (\xe2\x80\x9cBIA\nGuidance\xe2\x80\x9d). In the letter requesting our opinion, DOI now \xe2\x80\x9cconcedes the\nscope of jurisdiction retroceded by the State is somewhat ambiguous,\xe2\x80\x9d but\notherwise stands by the interpretation set forth in the 2015 DOI Letter and\nthe 2016 BIA Guidance. 4 Request Letter at 1.\n2\n\nWashington reiterated this position in later correspondence, see Letter for Sally Jewell, Secretary of the Interior, from Gov. Jay Inslee (Apr. 19, 2016), and in state prosecutions, see, e.g., State v. Zack, 413 P.3d 65, 70 (Wash. Ct. App. 2018), petition for review\nfiled, No. 95792-4 (Wash. Apr. 9, 2018).\n3 The proclamation, Governor Inslee\xe2\x80\x99s transmittal letter, and the 2015 DOI Letter are\nall reprinted as appendices to the decision in Zack. See 413 P.3d at 71\xe2\x80\x9381.\n4 The scope of criminal jurisdiction on the Yakama Reservation implicates the interests\nof the Environmental and Natural Resources Division (\xe2\x80\x9cENRD\xe2\x80\x9d), see 28 C.F.R. \xc2\xa7 0.65(b)\n(delegating to ENRD responsibility for \xe2\x80\x9call civil ligation . . . pertaining to Indians, Indian\ntribes, and Indian affairs); the Office of Tribal Justice (\xe2\x80\x9cOTJ\xe2\x80\x9d), see id. \xc2\xa7 0.134(b) (designating OTJ as \xe2\x80\x9cthe principal point of contact . . . to listen to the concerns of Indian Tribes\nand other parties interested in Indian affairs\xe2\x80\x9d); and the United States Attorney\xe2\x80\x99s Office for\nthe Eastern District of Washington (\xe2\x80\x9cUSAO\xe2\x80\x9d), where the reservation is located. These\n\n2\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\nHaving considered the language of the proclamation and the relevant\ncontext, we conclude that the interpretation offered by Washington is the\ncorrect one. This conclusion is consistent with the only published judicial\ndecision directly addressing this issue. See State v. Zack, 413 P.3d 65, 70\n(Wash. Ct. App. 2018), petition for review filed, No. 95792-4 (Wash.\nApr. 9, 2018).\nI.\nWe begin with a brief overview of federal, state, and tribal criminal jurisdiction on Indian reservations before turning to the jurisdiction Washington assumed under Public Law 280 and then partially retroceded.\nA.\nCongress has defined \xe2\x80\x9cIndian country\xe2\x80\x9d as including, in part, \xe2\x80\x9call land\nwithin the limits of any Indian reservation under the jurisdiction of the\nUnited States Government.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1151(a). \xe2\x80\x9cCriminal jurisdiction\nover offenses committed in \xe2\x80\x98Indian country\xe2\x80\x99 is governed by a complex\npatchwork of federal, state, and tribal law.\xe2\x80\x9d Negonsott v. Samuels, 507\nU.S. 99, 102 (1993) (internal quotation marks and citation omitted). The\nfederal government\xe2\x80\x99s criminal jurisdiction derives primarily from the\nGeneral Crimes Act, 18 U.S.C. \xc2\xa7 1152, and the Major Crimes Act, id.\n\xc2\xa7 1153. The General Crimes Act makes applicable in Indian country those\nfederal criminal statutes that are applicable in places, other than the District of Columbia, under the exclusive jurisdiction of the United States.\n\ncomponents submitted views on the issue to the Deputy Attorney General (\xe2\x80\x9cDAG\xe2\x80\x9d) and\nthe Solicitor General in 2016. See Memorandum for the Deputy Attorney General and\nthe Acting Solicitor General, from Sam Hirsch, Principal Deputy Assistant Attorney\nGeneral, ENRD, Re: State and Federal Criminal Jurisdiction on the Yakama Reservation\n(Nov. 23, 2016) (\xe2\x80\x9cENRD Memorandum\xe2\x80\x9d); Memorandum from Tracy Toulou, Director,\nOTJ, Re: Yakama Retrocession (Dec. 23, 2016) (\xe2\x80\x9cOTJ Memorandum\xe2\x80\x9d). In connection\nwith this opinion request, we offered each component the chance to supplement its views.\nSee E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Eric Grant, Deputy Assistant Attorney General, ENRD, Re: Yakama\nMaterials Due 4/2 to Dan Koffsky (Apr. 2, 2018 4:37 PM); E-mail for Daniel L. Koffsky,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Tracy Toulou, Director, OTJ, Re: Yakama (Apr. 2, 2018 5:03 PM) (\xe2\x80\x9cOTJ E-mail\xe2\x80\x9d); Memorandum for Daniel\nL. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Joseph H.\nHarrington, United States Attorney, Eastern District of Washington, Re: Yakama Nation\nJurisdiction Issue (Apr. 2, 2018).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nId. \xc2\xa7 1152. It does not apply to \xe2\x80\x9coffenses committed by one Indian against\nthe person or property of another Indian,\xe2\x80\x9d id.\xe2\x80\x94a category of cases over\nwhich the tribe will generally retain exclusive jurisdiction, see United\nStates v. Lara, 541 U.S. 193, 204\xe2\x80\x9305 (2004). The Major Crimes Act,\nhowever, provides for federal jurisdiction over an Indian who has committed, in Indian country, any of the serious crimes on an enumerated list,\nwhatever the status of the victim. 18 U.S.C. \xc2\xa7 1153.\nIn the absence of federal legislation providing otherwise, Indian tribes\ngenerally have\xe2\x80\x94and States generally do not have\xe2\x80\x94criminal jurisdiction\nover Indians within Indian reservations. 5 See Lara, 541 U.S. at 199\xe2\x80\x93200;\nSolem v. Bartlett, 465 U.S. 463, 465 n.2 (1984). Indian tribes, however,\nhave no \xe2\x80\x9cinherent jurisdiction to try and to punish non-Indians.\xe2\x80\x9d Oliphant\nv. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978). Although no statute\nspeaks precisely to the question, the Supreme Court has concluded that a\nState has criminal jurisdiction over a non-Indian who commits a crime\nagainst a non-Indian on an Indian reservation within that State. See, e.g.,\nNew York ex rel. Ray v. Martin, 326 U.S. 496, 500 (1946); Draper v.\nUnited States, 164 U.S. 240, 242\xe2\x80\x9343 (1896); United States v. McBratney,\n104 U.S. 621, 624 (1882). \xe2\x80\x9cAs a practical matter, this has meant that\ncriminal offenses by or against Indians have been subject only to federal\nor tribal laws, except where Congress in the exercise of its plenary and\nexclusive power over Indian affairs has expressly provided that State laws\nshall apply.\xe2\x80\x9d Washington v. Confederated Bands & Tribes of the Yakima\nIndian Nation, 439 U.S. 463, 470\xe2\x80\x9371 (1979) (\xe2\x80\x9cYakima Indian Nation\xe2\x80\x9d)\n(internal quotation marks and citation omitted).\nB.\nAgainst this backdrop of overlapping federal and tribal jurisdiction,\nCongress enacted Public Law 280 \xe2\x80\x9cin part to deal with the problem of\nlawlessness on certain Indian reservations, and the absence of adequate\ntribal institutions for law enforcement.\xe2\x80\x9d Yakima Indian Nation, 439 U.S.\nat 471. Although earlier legislation had conveyed jurisdiction to certain\nStates in specific circumstances, Public Law 280 \xe2\x80\x9cwas the first federal\n\n5\n\nThe Yakama Reservation includes both land that is held in trust by the United States\nfor the benefit of the Yakama Nation or its individual members (or otherwise restricted\nfor sale by the United States) and land that is owned in fee by Indians or non-Indians. See\nBrendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 415\n(1989).\n\n4\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\njurisdictional statute of general applicability to Indian reservation lands.\xe2\x80\x9d\nYakima Indian Nation, 439 U.S. at 471; see id. at 471 n.8 (citing earlier\nstatutes).\nPublic Law 280 provided for additional state criminal jurisdiction in\ntwo ways. First, it provided that five (and later six) named States \xe2\x80\x9cshall\nhave jurisdiction over offenses committed by or against Indians\xe2\x80\x9d in certain specified areas \xe2\x80\x9cto the same extent that such State has jurisdiction\nover offenses committed elsewhere within the State,\xe2\x80\x9d and that \xe2\x80\x9cthe criminal laws of such State shall have the same force and effect within such\nIndian country as they have elsewhere within the State.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 1162(a). In the areas where the named States obtained mandatory jurisdiction, Public Law 280 made the General Crimes Act and Major Crimes\nAct inapplicable. See id. \xc2\xa7 1162(c).\nSecond, for other States, including Washington, Public Law 280 offered an alternative path to jurisdiction by providing the \xe2\x80\x9cconsent of the\nUnited States\xe2\x80\x9d for \xe2\x80\x9cany other State . . . to assume jurisdiction at such time\nand in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.\xe2\x80\x9d Pub. L.\nNo. 83-280, \xc2\xa7 7, 67 Stat. at 590. Through action of its legislature, a State\ncould therefore \xe2\x80\x9cunilaterally extend[] full jurisdiction over crimes and\ncivil causes of action\xe2\x80\x9d occurring on an Indian reservation. Yakima Indian\nNation, 439 U.S. at 499. Such a State could also choose to assume only\npart of the offered jurisdiction, limiting either the geographical reach or\nsubject matters of its jurisdiction. Id. at 496\xe2\x80\x9397.\nWashington opted to assume some jurisdiction under Public Law 280.\nIn 1963, the State enacted legislation generally assuming criminal and\ncivil jurisdiction \xe2\x80\x9cover Indians and Indian territory, reservations, country,\nand lands in accordance with [Public Law 280].\xe2\x80\x9d Wash. Rev. Code Ann.\n\xc2\xa7 37.12.010 (West 2003). But this general assumption of jurisdiction\nexplicitly did \xe2\x80\x9cnot apply to Indians . . . when on their tribal lands or\nallotted lands within an established Indian reservation and held in trust\nby the United States or subject to a restriction against alienation imposed\nby the United States\xe2\x80\x9d unless certain subject matters were involved. 6 Id.\nThe Yakama Reservation accordingly was brought under state criminal\njurisdiction according to the terms of this statute: Washington assumed\n6\n\nThe subject matters over which Washington assumed more extensive jurisdiction\nwere \xe2\x80\x9c(1) Compulsory school attendance; (2) Public assistance; (3) Domestic Relations;\n(4) Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent\nChildren; and (8) Operation of motor vehicles.\xe2\x80\x9d Wash. Rev. Code Ann. \xc2\xa7 37.12.010.\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\ngeneral criminal jurisdiction over Indians and non-Indians alike on fee\nland within the Yakama Reservation but did not assume general jurisdiction over Indians on trust or restricted land, where it took on only narrowly specified jurisdiction. 7 Id.; see also Yakima Indian Nation, 439 U.S. at\n475\xe2\x80\x9376.\nIn 1968, Congress amended Public Law 280 and repealed the option for\nadditional States to assume jurisdiction. 25 U.S.C. \xc2\xa7 1323(b). For Washington and other States that had already assumed jurisdiction, Congress\nauthorized the United States to \xe2\x80\x9caccept a retrocession by [the] State of\nall or any measure\xe2\x80\x9d of the jurisdiction previously acquired. Id. \xc2\xa7 1323(a).\nThe President delegated the authority to accept such a retrocession to\nthe Secretary of the Interior, in consultation with the Attorney General.\nExec. Order No. 11435 (Nov. 21, 1968), 33 Fed. Reg. 17,339 (Nov. 23,\n1968).\nIn 2012, Washington adopted a law by which an Indian tribe can request that the State retrocede its Public Law 280 jurisdiction to the United\nStates. See Wash. Rev. Code Ann. \xc2\xa7 37.12.160 (West Supp. 2018). A\ntribe must submit a petition for retrocession, and the Governor is then\nauthorized to issue a proclamation \xe2\x80\x9capproving the request either in whole\nor in part.\xe2\x80\x9d Id. \xc2\xa7 37.12.160(4).\nThe Yakama Nation submitted a petition on July 17, 2012, requesting\n\xe2\x80\x9cfull retrocession of civil and criminal jurisdiction on all of Yakama\nNation Indian country\xe2\x80\x9d and in five of the subject matters where the State\nhad specifically assumed jurisdiction. See Proclamation 14-01, at 1.\nGovernor Inslee issued a proclamation on January 17, 2014, granting in\npart and denying in part the Yakama Nation\xe2\x80\x99s petition. See id. at 2. On\nOctober 19, 2015, DOI accepted that proclamation on behalf of the United\nStates. See Retrocession Acceptance, 80 Fed. Reg. at 63,583.\nII.\nThe scope of Washington\xe2\x80\x99s retrocession of criminal jurisdiction on the\nYakama Reservation is controlled by the terms of the Governor\xe2\x80\x99s 2014\nproclamation, as accepted by the United States. Relying on the text of the\n7\n\nAs ENRD notes, under a Washington Supreme Court decision, only members of\nthe Yakama Nation are considered \xe2\x80\x9cIndians . . . on their tribal lands or allotted lands\xe2\x80\x9d for\npurposes of section 37.12.010; Indians from other tribes are accordingly subject to\nWashington\xe2\x80\x99s general criminal jurisdiction even on the lands specified in the statute.\nSee ENRD Memorandum at 6 n.20 (citing State v. Shale, 345 P.3d 776 (Wash. 2015)).\n\n6\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\nproclamation itself and the applicable law, we conclude that Washington\nhas retained jurisdiction over criminal offenses where any party is a nonIndian, as the Washington Court of Appeals recently held in State v. Zack,\n413 P.3d at 70. 8 The extrinsic evidence also strongly supports this conclusion.\nA.\nThe paragraphs in the retrocession proclamation directly pertaining to\nyour inquiry provide as follows:\n2. Within the exterior boundaries of the Yakama Reservation, the\nState shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and\nHighways cases in the following manner: Pursuant to RCW\n37.12.010(8), the State shall retain jurisdiction over civil causes of\naction involving non-Indian plaintiffs, non-Indian defendants, and\nnon-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.\n3. Within the exterior boundaries of the Yakama Reservation, the\nState shall retrocede, in part, criminal jurisdiction over all offenses not addressed by Paragraphs 1 and 2. The State retains jurisdiction over criminal offenses involving non-Indian defendants and\nnon-Indian victims.\nProclamation 14-01, \xc2\xb6\xc2\xb6 2\xe2\x80\x933, at 2 (emphasis added). 9\nBIA Guidance issued in 2016 interprets paragraphs 2 and 3 of the proclamation to mean that \xe2\x80\x9cWashington State retains jurisdiction only over\ncivil and criminal causes of action in which no party is an Indian.\xe2\x80\x9d BIA\nGuidance at 1. The BIA Guidance does not explain the reasoning that led\nto this conclusion, but it appears to rest on reading the \xe2\x80\x9cand\xe2\x80\x9d that appears\n8 As we explain above, Washington did not claim all of the jurisdiction that Public\nLaw 280 would have permitted. For example it did not assume jurisdiction over certain\ncrimes committed by Indians against Indians on trust or restricted lands. In defining\njurisdiction retained in criminal matters involving certain parties, the proclamation\nnaturally did not \xe2\x80\x9cretain\xe2\x80\x9d any jurisdiction that Washington had never assumed.\n9 In paragraph 1 of the operative section of the proclamation, Washington retroceded\n\xe2\x80\x9cfull civil and criminal jurisdiction in\xe2\x80\x9d four subject matters: \xe2\x80\x9cCompulsory School Attendance; Public Assistance; Domestic Relations; and Juvenile Delinquency.\xe2\x80\x9d Proclamation\n14-01, \xc2\xb6 1, at 2.\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nbetween references to \xe2\x80\x9cnon-Indian defendants\xe2\x80\x9d and references to \xe2\x80\x9cnonIndian victims\xe2\x80\x9d as requiring each party to be non-Indian for Washington\nto retain jurisdiction. ENRD, taking the same position as the Governor of\nWashington and the Washington Court of Appeals in Zack, instead reads\n\xe2\x80\x9cand\xe2\x80\x9d to signify that Washington has jurisdiction if any listed party is a\nnon-Indian. See ENRD Memorandum at 21\xe2\x80\x9323; Gov. Inslee Letter at 1\xe2\x80\x932;\nZack, 413 P.3d at 69.\nThe dispute thus centers on how to interpret \xe2\x80\x9cand\xe2\x80\x9d in paragraphs 2 and\n3 of the proclamation. In one typical usage, which BIA would apply here,\n\xe2\x80\x9cand\xe2\x80\x9d connects two elements that must both be present for the larger\nstatement to obtain. See Webster\xe2\x80\x99s Third New International Dictionary 80\n(1993) (def. 4). This usage of \xe2\x80\x9cand\xe2\x80\x9d is often said to be logically \xe2\x80\x9cconjunctive.\xe2\x80\x9d See id. (cross-referencing \xe2\x80\x9cconjunction\xe2\x80\x9d); see also id. at 480 (def.\n7a of \xe2\x80\x9cconjunction\xe2\x80\x9d). When the Constitution provides that \xe2\x80\x9cNo Person\nshall be a Representative who shall not have attained to the Age of twenty\nfive Years, and been seven Years a citizen,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 2,\nit is specifying just such a conjunctive relationship: both the condition of\ntwenty-five years of age and the condition of seven years of citizenship\nmust be present for a person to be a Representative.\nThere is, however, another potential reading of \xe2\x80\x9cand.\xe2\x80\x9d Governor Inslee\nhas described his use of \xe2\x80\x9cand\xe2\x80\x9d in the disputed sentences as meaning\n\xe2\x80\x9cand/or,\xe2\x80\x9d Gov. Inslee Letter at 2, a formulation \xe2\x80\x9cdenoting that the items\njoined by it can be taken either together or as alternatives.\xe2\x80\x9d 1 Oxford\nEnglish Dictionary 449 (2d ed. 1989) (conj.1 def. B.I.3.c). That, too, is\nan established usage of \xe2\x80\x9cand.\xe2\x80\x9d See, e.g., Webster\xe2\x80\x99s Third New International Dictionary at 80 (def. 2(6): \xe2\x80\x9cused as a function word to express . . .\nreference to either or both of two alternatives . . . esp. in legal language\nwhen also plainly intended to mean or\xe2\x80\x9d). That usage is often said to be\n\xe2\x80\x9cdisjunctive,\xe2\x80\x9d but it would be more precise to describe it as an example\nof an \xe2\x80\x9cinclusive disjunction,\xe2\x80\x9d in which either element or both elements\ncan be present. Id. at 651 (def. 2 of \xe2\x80\x9cdisjunction\xe2\x80\x9d). For instance, when\nthe Constitution states that \xe2\x80\x9cCongress shall have Power . . . To declare\nWar, grant Letters of Marque and Reprisal, and make Rules concerning\nCaptures on Land and Water,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 11, the authorizations are disjunctive in the sense that Congress may declare war without\ngranting letters of marque and reprisal, but inclusive in the sense that\nCongress might choose to enact all three kinds of measures or any combination of them. Similarly, in the context of Public Law 280 itself, the\nSupreme Court has construed the authorization of state assumption of\n8\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\n\xe2\x80\x9ccivil and criminal jurisdiction\xe2\x80\x9d as permitting a State to assume civil or\ncriminal jurisdiction or both. See Zack, 413 P.3d at 69 n.10 (citing Yakima\nIndian Nation, 439 U.S. at 496\xe2\x80\x9397); see also ENRD Memorandum at 23\n(same). 10\nAs we have previously observed, \xe2\x80\x9c[d]etermining which usage [of \xe2\x80\x98and\xe2\x80\x99]\nwas intended in a particular provision requires . . . an examination of\nthe context in which the term appears.\xe2\x80\x9d Whether False Statements or\nOmissions in Iraq\xe2\x80\x99s Weapons of Mass Destruction Declaration Would\nConstitute a \xe2\x80\x9cFurther Material Breach\xe2\x80\x9d Under U.N. Security Council\nResolution 1441, 26 Op. O.L.C. 217, 219 (2002); see Territorial Legislature, 18 Op. Att\xe2\x80\x99y Gen. 540, 540 (1887) (\xe2\x80\x9cIt is right to interpret the\nword \xe2\x80\x98and\xe2\x80\x99 with a disjunctive meaning when such meaning entirely coincides with the rest of the statute and with the evident intention of the\nlegislature.\xe2\x80\x9d). Accordingly, we turn to an examination of the proclamation\nas a whole.\nWe start by examining the immediate context in which \xe2\x80\x9cand\xe2\x80\x9d appears.\nThe proclamation provides that the State retains jurisdiction over \xe2\x80\x9ccriminal offenses involving non-Indian defendants and non-Indian victims.\xe2\x80\x9d\nThe use of the plural throughout this sentence provides some support to\nthe meaning that the Governor understands the sentence to convey. The\nphrase \xe2\x80\x9ccriminal offenses involving\xe2\x80\x9d is followed by two different categories of offenses (those involving non-Indian defendants and those involving non-Indian victims). By contrast, describing the State as retaining\n\xe2\x80\x9cjurisdiction over a criminal offense involving a non-Indian defendant\nand a non-Indian victim\xe2\x80\x9d would have been a more natural way to point\ntoward the BIA\xe2\x80\x99s interpretation, which would cover only the category of\ncases in which each case had both a non-Indian defendant and a nonIndian victim.\nBy itself, this immediate context, while suggestive, is not decisive. But\nwhen the proclamation is considered as a whole and in the context of the\npetition that the Yakama Nation submitted to the Governor, the meaning\nof \xe2\x80\x9cand\xe2\x80\x9d comes into a sharper focus that decidedly favors the Governor\xe2\x80\x99s\n10 Although legal drafters are often warned against interchanging \xe2\x80\x9cand\xe2\x80\x9d with \xe2\x80\x9cor,\xe2\x80\x9d see\nBryan A. Garner, Garner\xe2\x80\x99s Dictionary of Legal Usage 56 (3d ed. 2011), they have often\nfailed to heed the warning, see, e.g., Webster\xe2\x80\x99s New International Dictionary 98 (2d ed.\n1943) (def. 1.f of \xe2\x80\x9cand\xe2\x80\x9d: \xe2\x80\x9cIn legal language and is interpreted as if it were or, and vice\nversa, whenever this construction is plainly required to give effect to the intention of the\nperson using it.\xe2\x80\x9d). Like others interpreting legal provisions, we must recognize that the\ndisfavored usage may be the one that the drafter intended.\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nview. Under the state law that authorized the retrocession, upon receipt of\na petition, the Governor had to \xe2\x80\x9cissue a proclamation, if approving the\nrequest either in whole or in part.\xe2\x80\x9d Wash. Rev. Code Ann. \xc2\xa7 37.12.160(4).\nThe petition of the Yakama Nation, and subsequent government-togovernment meetings, asked \xe2\x80\x9cthe State to retrocede all jurisdiction\xe2\x80\x9d that\nWashington had assumed \xe2\x80\x9cover the Indian country of the Yakama Nation\xe2\x80\x9d\npursuant to Public Law 280. Proclamation 14-01, at 1\xe2\x80\x932. The proclamation itself, after a series of whereas clauses, declares Governor Inslee\xe2\x80\x99s\ndetermination to \xe2\x80\x9cgrant in part, and deny in part, the retrocession petition.\xe2\x80\x9d Id. at 2. Paragraphs 2 and 3 both explain that the State is retroceding \xe2\x80\x9cin part\xe2\x80\x9d certain criminal jurisdiction \xe2\x80\x9c[w]ithin the exterior boundaries\nof the Yakama Reservation\xe2\x80\x9d and that it is \xe2\x80\x9cretain[ing] jurisdiction over\ncriminal offenses involving non-Indian defendants and non-Indian victims.\xe2\x80\x9d Id.\nThe proclamation expressly declined to retrocede some of the jurisdiction over the Yakama Reservation that Washington had assumed under\nPublic Law 280. But, as noted above, the States already had jurisdiction,\nquite apart from Public Law 280, over crimes committed on Indian reservations by non-Indians against non-Indians. See Martin, 326 U.S. at 500;\nDraper, 164 U.S. at 242\xe2\x80\x9343; McBratney, 104 U.S. at 624. If we were to\nread the proclamation as the BIA Guidance suggests, the proclamation\nwould retain only that species of jurisdiction on the Yakama Reservation\nthat predated Public Law 280. That would be inconsistent with the state\nlaw\xe2\x80\x99s declared purpose of retroceding some of the jurisdiction acquired\nunder Public Law 280. See Wash. Rev. Code Ann. \xc2\xa7 37.12.160(9)(b)\n(\xe2\x80\x9c\xe2\x80\x98Criminal retrocession\xe2\x80\x99 means the state\xe2\x80\x99s act of returning to the federal\ngovernment the criminal jurisdiction acquired over Indians and Indian\ncountry under federal Public Law 280[.]\xe2\x80\x9d). The proclamation, therefore,\nshould be read as retaining jurisdiction other than the jurisdiction over\nany crime on the Yakama Reservation that involves both a non-Indian\ndefendant and a non-Indian victim.\nNor do we think that the retention language in paragraphs 2 and 3 signals that Washington sought to retrocede all of the criminal jurisdiction it\nhad assumed under Public Law 280. See OTJ Memorandum at 4 n.10.\nParagraphs 2 and 3 both open by stating that Washington is retroceding\njurisdiction \xe2\x80\x9cin part.\xe2\x80\x9d A retrocession of all but the criminal jurisdiction\nexisting before Public Law 280 would not have been a retrocession \xe2\x80\x9cin\npart\xe2\x80\x9d of the jurisdiction assumed under Public Law 280; it would have\n\n10\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\nbeen a retrocession in full. 11 As a consequence, the interpretation offered\nunder the BIA Guidance would conflict with the explicitly partial nature\nof the retrocession proclaimed in the relevant paragraphs and would\nrender superfluous each paragraph\xe2\x80\x99s concluding description of the jurisdiction that Washington was \xe2\x80\x9cretain[ing].\xe2\x80\x9d Cf. Mastrobuono v. Shearson\nLehman Hutton, Inc., 514 U.S. 52, 63 (1995) (reciting a \xe2\x80\x9ccardinal principle of contract construction: that a document should be read to give effect\nto all its provisions and to render them consistent with each other\xe2\x80\x9d);\nUnited States v. Menasche, 348 U.S. 528, 538\xe2\x80\x9339 (1955) (\xe2\x80\x9cIt is our duty\nto give effect, if possible, to every clause and word of a statute.\xe2\x80\x9d (internal\nquotation marks and citation omitted)).\nMoreover, paragraph 2 of the proclamation retroceded both \xe2\x80\x9ccivil and\ncriminal jurisdiction\xe2\x80\x9d over the operation of motor vehicles. With respect\nto civil jurisdiction, it provides that \xe2\x80\x9cthe State shall retain jurisdiction\nover civil causes of action involving non-Indian plaintiffs, non-Indian\ndefendants, and non-Indian victims.\xe2\x80\x9d Proclamation 14-01, \xc2\xb6 2, at 2. If\nthe BIA\xe2\x80\x99s interpretation of \xe2\x80\x9cand\xe2\x80\x9d were applied to the clause addressing\nretained civil jurisdiction, which immediately precedes the clause about\nretained criminal jurisdiction, the proclamation would permit Washington\nto assert civil jurisdiction only when there are (1) a non-Indian plaintiff,\n(2) a non-Indian defendant, and (3) a non-Indian victim. In other words,\nin a motor-vehicle collision between non-Indians, the State could entertain civil jurisdiction only if the \xe2\x80\x9cplaintiff \xe2\x80\x9d and the \xe2\x80\x9cvictim\xe2\x80\x9d were different persons. Under the BIA\xe2\x80\x99s reading, there could be no other reasonable\nground for specifying the \xe2\x80\x9cplaintiff \xe2\x80\x9d and the \xe2\x80\x9cvictim\xe2\x80\x9d separately. We can\ndiscern no rationale for such an odd jurisdictional reservation. Instead,\nit is much more straightforward to read the \xe2\x80\x9cand\xe2\x80\x9d so that the clause reserves civil jurisdiction when any possible party is a non-Indian. That\nreading supports the adoption of the same reading for the adjoining clause\nof paragraph 2, retaining criminal jurisdiction, and the parallel clause at\nthe end of paragraph 3. Cf. McLane & McLane v. Prudential Ins. Co. of\n\n11\n\nDOI, in requesting consultation with the Attorney General under Executive Order\n11435, described the proclamation as \xe2\x80\x9cgranting in part retrocession of criminal jurisdiction over the [Yakama Nation].\xe2\x80\x9d Letter for Eric Holder, Attorney General, Department of\nJustice, from Kevin K. Washburn, Assistant Secretary, DOI at 1 (June 16, 2014) (emphasis added). See also Letter for JoDe Goudy, Chairman, Yakama Nation Tribal Council,\nfrom Kevin K. Washburn, Assistant Secretary, DOI at 1 (Dec. 17, 2014) (\xe2\x80\x9cGovernor Jay\nInslee signed a proclamation granting, in part, retrocession of criminal jurisdiction over\nthe Yakama Nation\xe2\x80\x99s Reservation, to the United States Government.\xe2\x80\x9d (emphasis added)).\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nAmerica, 735 F.2d 1194, 1195 (9th Cir. 1984) (noting the presumption\nthat words have the same meaning throughout a contract); Envtl. Def. v.\nDuke Energy Corp., 549 U.S. 561, 574 (2007) (noting the same presumption in the statutory context). 12\nAccordingly, we believe that the text of the proclamation should be understood as retaining Washington\xe2\x80\x99s jurisdiction over criminal offenses\nwhen at least one party is a non-Indian.\nB.\nCourts examining state retrocession under 25 U.S.C. \xc2\xa7 1323(a) have\ngenerally focused on the acceptance of the retrocession by the United\nStates rather than the particular terms of the State\xe2\x80\x99s offer of retrocession.\nSee United States v. Lawrence, 595 F.2d 1149, 1151 (9th Cir. 1979)\n(declining to examine validity of retrocession proclamation under state\nlaw because \xe2\x80\x9c[t]he acceptance of the retrocession by the Secretary . . .\nmade the retrocession effective, whether or not the Governor\xe2\x80\x99s proclamation was valid under Washington law\xe2\x80\x9d (internal quotation marks and\ncitation omitted)). Here, however, DOI\xe2\x80\x99s notice simply declared that the\npartial retrocession \xe2\x80\x9coffered by the State of Washington in Proclamation\nby the Governor 14-01\xe2\x80\x9d had been accepted. Retrocession Acceptance, 80\nFed. Reg. at 63,583; see also Letter for Jay Inslee, Governor, State of\nWashington, from Lawrence S. Roberts, Acting Assistant Secretary, DOI\nat 1 (June 20, 2016) (\xe2\x80\x9c[R]etrocession was accepted according to the terms\nof the Proclamation of the Governor 14-01.\xe2\x80\x9d). Moreover, DOI expressly\ndeclined to identify the scope of the phrases in the proclamation that are\nnow in dispute, deeming them \xe2\x80\x9cplain\xe2\x80\x9d and \xe2\x80\x9cunambiguous.\xe2\x80\x9d 2015 DOI\nLetter at 5. 13 Accordingly, the proclamation itself remains the best evi12 ENRD also points out that a clause of the proclamation reports the Yakama Nation\xe2\x80\x99s\n\xe2\x80\x9cacknowledg[ment] that [Washington] would retain criminal jurisdiction over non-Indian\ndefendants,\xe2\x80\x9d which would be accurate (albeit incomplete) under Washington and ENRD\xe2\x80\x99s\ninterpretation but would be inaccurate under the BIA Guidance. ENRD Memorandum at\n22\xe2\x80\x9323 (citing Proclamation 14-01, at 2). The Yakama Nation\xe2\x80\x99s contemporaneous statements strongly suggest that our reading of the proclamation is the one that was understood\nat the time.\n13 The Executive Order under which DOI accepted the retrocession directs that the\nSecretary of the Interior \xe2\x80\x9ceffect[]\xe2\x80\x9d the retrocession through a notice in the Federal Register that \xe2\x80\x9cshall specify the jurisdiction retroceded.\xe2\x80\x9d See 33 Fed. Reg. at 17,339. If DOI\nwished to dispute the Governor\xe2\x80\x99s view of the scope of the retrocession that Washington\nhad offered, that would have been the time to do so.\n\n12\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\ndence of the scope of the retrocession accepted by DOI, and, for the\nreasons set forth above, we believe that Washington retained jurisdiction\nin the manner that it has claimed.\nWe note, however, that extrinsic evidence supports this interpretation.\nSeveral documents reflect the negotiations and internal discussions that\nled up to the issuance of the proclamation and its acceptance, as well as\nsubsequent discussion of the proclamation\xe2\x80\x99s meaning. See, e.g., ENRD\nMemorandum at 8\xe2\x80\x9320 & app. The earliest documents demonstrate an\nalmost immediate focus on crimes committed by non-Indians against\nIndians on the Yakama Reservation. For example, several months after\nthe Yakama Nation submitted its petition for retrocession, the Washington\nAssociation of Prosecuting Attorneys wrote then-Governor Christine\nGregoire expressing skepticism about the wisdom of \xe2\x80\x9cwithdrawal of state\njurisdiction over non-Indians who commit crimes against Indian victims\nwithin the reservation.\xe2\x80\x9d Letter for Christine Gregoire, Governor, Washington, from Russell Hauge, Kitsap County Prosecuting Attorney, Washington Association of Prosecuting Attorneys (Sept. 14, 2012). And, after\nconvening a government-to-government meeting with the Yakama Nation,\nas required by state law, see Wash. Rev. Code Ann. \xc2\xa7 37.12.160(3),\nGovernor Gregoire memorialized Washington\xe2\x80\x99s understanding that the\nYakama Nation\xe2\x80\x99s petition \xe2\x80\x9cdid not seek retrocession of state criminal\nauthority over non-Indians who commit crimes against Indians.\xe2\x80\x9d Letter\nfor Harry Smiskin, Chairman, Yakama Nation, from Christine Gregoire,\nGovernor, Washington at 1 (Jan. 10, 2013); see also supra note 12 (discussing a clause in Governor Inslee\xe2\x80\x99s proclamation that is most consistent\nwith that understanding). Thus, as the discussions about retrocession\nbegan, key Washington stakeholders\xe2\x80\x94state prosecutors\xe2\x80\x94expressed concern about a retrocession of the State\xe2\x80\x99s criminal jurisdiction over nonIndians on the Yakama Reservation, and Washington separately recorded\nits understanding that such a retrocession would be beyond the scope of\nwhat the Yakama Nation had requested.\nSome of the records also suggest that DOI\xe2\x80\x99s acceptance of the scope of\nretrocession implicitly embraced Washington\xe2\x80\x99s view. In its acceptance\nletter, DOI discussed a March 2015 FBI report analyzing \xe2\x80\x9cthe implications of retrocession.\xe2\x80\x9d 2015 DOI Letter at 4. That report\xe2\x80\x99s analysis\nreflected an understanding that the proclamation sought to retrocede\njurisdiction only over criminal activity between Indians, and the report\nis cited without reservation in the DOI letter. See ENRD Memorandum\nat 18\xe2\x80\x9319; 2015 DOI Letter at 4. Accordingly, even as DOI pronounced the\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nproclamation \xe2\x80\x9cplain\xe2\x80\x9d and \xe2\x80\x9cunambiguous,\xe2\x80\x9d DOI relied on an FBI report\nthat agreed with our reading, and DOI did not identify any contrary position taken by anyone else at the time. 14\nIn any event, no document provides as clear a picture about the intended scope of the proclamation as the transmittal letter that Governor Inslee\nsent to DOI ten days after he signed the proclamation. Under the state\nstatute setting out the retrocession procedure, the Governor had the exclusive authority to determine, within the outer limits of the tribe\xe2\x80\x99s request,\nthe scope of Washington\xe2\x80\x99s proposed retrocession. The statutory process\nby which the Governor reached his decision included consultations with\nothers, but the ultimate decision was his. The Governor had to make\nthe retrocession decision within a certain period after receiving the\nYakama Nation\xe2\x80\x99s petition and had to convene a \xe2\x80\x9cgovernment-togovernment meeting\xe2\x80\x9d with the Yakama Nation\xe2\x80\x99s representatives. Wash.\nRev. Code Ann. \xc2\xa7 37.12.160(3)\xe2\x80\x93(4). The statute permitted the state legislature to conduct hearings and \xe2\x80\x9csubmit advisory recommendations and/\nor comments to the governor,\xe2\x80\x9d but the \xe2\x80\x9clegislative recommendations\xe2\x80\x9d\nwould not be \xe2\x80\x9cbinding on the governor or otherwise of legal effect.\xe2\x80\x9d Id.\n\xc2\xa7 37.12.160(5). The only action with legal effect was the Governor\xe2\x80\x99s\nissuance of \xe2\x80\x9ca proclamation\xe2\x80\x9d \xe2\x80\x9capprov[ing] the [retrocession] request\neither in whole or in part.\xe2\x80\x9d 15 Id. \xc2\xa7 37.12.160(4). We therefore find most\nprobative the Governor\xe2\x80\x99s contemporaneous statements about what he\nintended his own proclamation to mean. See Gov. Inslee Letter at 2 (\xe2\x80\x9cThe\nintent set forth in paragraph two . . . is for the State to retain jurisdiction\nin this area where any party is non-Indian[.]\xe2\x80\x9d); id. (\xe2\x80\x9c[T]he intent [in\nparagraph three] is for the State to retain such jurisdiction in those cases\n14\n\nDOI described the advice from the U.S. Attorney as \xe2\x80\x9ckey to our consideration of\nretrocession\xe2\x80\x9d and cited a letter submitted by the USAO to the Acting Deputy Attorney\nGeneral. DOI Letter at 3. But the cited letter explicitly requested clarification from DOI\nabout the scope of retrocession. Letter for Sally Quillian Yates, Acting Deputy Attorney\nGeneral, Department of Justice, from Michael C. Ormsby, United States Attorney, USAO,\nRe: Possible Retrocession of the Yakama Nation in Washington State at 6 (May 5, 2015).\n15 The statute also provides that \xe2\x80\x9c[i]n the event the governor denies all or part of the\nresolution, the reasons for such denial must be provided to the tribe in writing.\xe2\x80\x9d Wash.\nRev. Code Ann. \xc2\xa7 37.12.160(4). Four days after signing the proclamation, Governor\nInslee sent a letter providing reasons for denying part of the Yakama Nation\xe2\x80\x99s petition.\nSee Letter for Harry Smiskin, Chairman, Yakama Nation, from Jay Inslee, Governor,\nState of Washington, Re: Yakama Nation Retrocession Petition (Jan. 21, 2014). That\nletter did not shed light on the current dispute because it either paraphrased the sentences\nin question directly, or it paraphrased them while replacing \xe2\x80\x9cand\xe2\x80\x9d with \xe2\x80\x9cnot . . . or.\xe2\x80\x9d Id. at 1.\n\n14\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\ninvolving non-Indian defendants and/or non-Indian victims.\xe2\x80\x9d). The Governor was uniquely situated to explain his own intent at the time of the\nproclamation.\nThus, the extrinsic evidence confirms our conclusion from the text of\nthe proclamation and its legal context.\nIII.\nNeither the BIA Guidance nor OTJ has identified compelling reasons to\ninterpret the proclamation differently. The BIA Guidance cites the 2015\nDOI Letter notifying the Yakama Nation that the partial retrocession had\nbeen accepted. See BIA Guidance at 1. As noted above, however, that\nletter described the proclamation as \xe2\x80\x9cplain on its face and unambiguous\xe2\x80\x9d\nand deferred further interpretation to the \xe2\x80\x9ccourts.\xe2\x80\x9d 2015 DOI Letter at 5.\nThe BIA Guidance also contends that its conclusion \xe2\x80\x9cis consistent\xe2\x80\x9d with\none district court decision. BIA Guidance at 1 n.2 (citing Klickitat Cty. v.\nU.S. Dep\xe2\x80\x99t of the Interior, No. 1:16-CV-03060-LRS, 2016 WL 7494296\n(E.D. Wash. Sept. 1, 2016)). The cited opinion notes that \xe2\x80\x9c[t]he particular\nareas of civil and criminal jurisdiction [for retrocession] were set forth in\nthe proclamation . . . and that is what DOI accepted.\xe2\x80\x9d Klickitat Cty., 2016\nWL 7494296, at *5. But the decision in Klickitat County had to do with a\nchallenge to the proclamation\xe2\x80\x99s handling of the boundaries of the Yakama\nReservation, and the opinion does not consider the scope of Washington\xe2\x80\x99s\nretrocession of criminal jurisdiction within those boundaries. See id.\nOTJ reads \xe2\x80\x9cand\xe2\x80\x9d as the BIA does, see OTJ Memorandum at 2, and suggests that the purpose of 25 U.S.C. \xc2\xa7 1323(a) was to encourage full retrocession of jurisdiction previously assumed under Public Law 280, and that\nthe retrocession should be read to cause a \xe2\x80\x9cchange in jurisdiction from a\nFederal perspective,\xe2\x80\x9d OTJ Memorandum at 4. This argument assumes that\nthe federal government did not already have concurrent jurisdiction where\nthe State had assumed jurisdiction under Public Law 280. 16 In any event,\n16\n\nIn a January 2017 memorandum that has been made public, ENRD notified several\nU.S. Attorneys of the Acting Solicitor General\xe2\x80\x99s decision that \xe2\x80\x9cthe litigating position\nof the United States is that the United States does have . . . concurrent criminal jurisdiction\xe2\x80\x9d over \xe2\x80\x9cIndian-country crimes that fall within an \xe2\x80\x98optional [Public Law] 280\xe2\x80\x99\nState\xe2\x80\x99s jurisdiction under Section 7 of [Public Law 280].\xe2\x80\x9d Memorandum for United States\nAttorneys in \xe2\x80\x9cOptional\xe2\x80\x9d Public Law 280 States from John C. Cruden, Assistant Attorney\nGeneral, ENRD, and Sam Hirsch, Principal Deputy Assistant Attorney General, ENRD,\nRe: Concurrent Federal Criminal Jurisdiction Under 18 U.S.C. \xc2\xa7\xc2\xa7 1152 and 1153 in\n\xe2\x80\x9cOptional\xe2\x80\x9d Public Law 280 States at 1 (Jan. 18, 2017).\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nthere were important changes to state jurisdiction effectuated by the\nretrocession. For example, under Public Law 280, Washington had assumed jurisdiction generally over \xe2\x80\x9cIndians and Indian territory, reservations, country, and lands,\xe2\x80\x9d including certain crimes committed by Indians\non trust or restricted lands. Wash. Rev. Code Ann. \xc2\xa7 37.12.010; see Yakima Indian Nation, 439 U.S. at 475\xe2\x80\x9376; see, e.g., State v. Yallup, 248\nP.3d 1095, 1099 (Wash. Ct. App. 2011) (upholding state conviction of\nYakama tribe member for criminal motor vehicle offenses occurring on\nthe Yakama reservation); State v. Abrahamson, 238 P.3d 533, 539 (Wash.\nCt. App. 2010) (same for different tribal member and reservation). The\nproclamation reaches this significant class of crimes and retrocedes jurisdiction over them. See Proclamation 14-01, \xc2\xb6 3, at 2. Whether or not that\nchange in the State\xe2\x80\x99s criminal jurisdiction alters the cases that the federal\ngovernment may prosecute, it is still a genuine change that is significant\n\xe2\x80\x9cfrom a Federal perspective,\xe2\x80\x9d OTJ Memorandum at 4, because, by curtailing state jurisdiction, it promotes tribal self-government. See Santa Clara\nPueblo v. Martinez, 436 U.S. 49, 62\xe2\x80\x9363 (1978) (explaining that the title\ncontaining 25 U.S.C. \xc2\xa7 1323(a) was \xe2\x80\x9chailed . . . as the most important\npart\xe2\x80\x9d of the Indian Civil Rights Act of 1968, which was intended to\n\xe2\x80\x9cpromote the well-established federal policy of furthering Indian selfgovernment\xe2\x80\x9d and to \xe2\x80\x9cprotect tribal sovereignty from undue interference\xe2\x80\x9d\n(internal quotation marks and citation omitted)).\nOTJ also relies on practice, noting that most previous retrocessions\ninvolved \xe2\x80\x9call\xe2\x80\x9d or \xe2\x80\x9cessentially all\xe2\x80\x9d criminal jurisdiction obtained under\nPublic Law 280. See OTJ Memorandum at 3, 4 n.11. But section 1323(a)\nexpressly contemplates that a State has discretion to retrocede \xe2\x80\x9call or\nany measure of the criminal or civil jurisdiction, or both, acquired by\nsuch State pursuant to the provisions of [Public Law 280].\xe2\x80\x9d 25 U.S.C.\n\xc2\xa7 1323(a) (emphasis added). Finally, OTJ suggests that DOI has \xe2\x80\x9cbroad\nauthority to determine on what terms the United States would resume\xe2\x80\x9d\njurisdiction. OTJ Memorandum at 5. While that is true as far as it goes,\nthe text of section 1323(a) does not suggest that, in deciding whether to\n\xe2\x80\x9caccept a retrocession by any State,\xe2\x80\x9d the United States may accept more\nthan the State has offered.\nOTJ further maintains that DOI, rather than the Department of Justice,\n\xe2\x80\x9cshould determine the scope of the retrocession.\xe2\x80\x9d OTJ E-mail at 1. DOI\neffectively set the scope of the retrocession by accepting the proclamation, and our analysis does not disparage DOI\xe2\x80\x99s authority over that acceptance. See Retrocession Acceptance, 80 Fed. Reg. at 63,583. Nor does\n16\n\n\x0cState Criminal Jurisdiction over Offenses on the Yakama Indian Reservation\n\nour interpretation detract from DOI\xe2\x80\x99s authority, by the act of acceptance,\nto make a State\xe2\x80\x99s offer effective. See OTJ Memorandum at 4\xe2\x80\x937. Because\nour analysis of the proclamation is being provided at DOI\xe2\x80\x99s request,\ncomes after DOI accepted the offer of retrocession, and concerns the text\nof the proclamation accepted, it does not trench on any power by DOI \xe2\x80\x9c\xe2\x80\x98to\n. . . define and construe\xe2\x80\x99\xe2\x80\x9d section 1323(a), which confers the authority to\naccept offers of retrocession. Oliphant v. Schlie, 544 F.2d 1007, 1012 (9th\nCir. 1976) (quoting Brown, 334 F. Supp. at 541), rev\xe2\x80\x99d on other grounds\nsub nom. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).\nIV.\nFor these reasons, we conclude that, under the proclamation making a\npartial retrocession, Washington has retained criminal jurisdiction over an\noffense on the Yakama Reservation when the defendant or the victim is a\nnon-Indian, as well as when both are non-Indians.\nDANIEL L. KOFFSKY\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n17\n\n\x0c'


b'Assistance of Counsel in Removal Proceedings ( II )\nThe Attorney General\xe2\x80\x99s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N.\nDec. 710 (Att\xe2\x80\x99y Gen. 2009); Assistance of Counsel in Removal Proceedings ( I ), 33\nOp. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.), is vacated.\nThe Acting Director of the Executive Office for Immigration Review shall initiate\nrulemaking procedures as soon as practicable to evaluate the pre-Compean framework\nfor reviewing claims of ineffective assistance of counsel in deportation proceedings\nand to determine what modifications should be proposed for public consideration.\nPending the issuance of a final rule, the Board of Immigration Appeals and Immigration\nJudges should apply the pre-Compean standards to all pending and future motions to\nreopen removal proceedings based upon ineffective assistance of counsel.\nJune 3, 2009\n\nOPINION IN REMOVAL PROCEEDINGS\nMATTER OF ENRIQUE SALAS COMPEAN, RESPONDENT\nMATTER OF SYLLA BANGALY, RESPONDENT\nMATTER OF J-E-C-, ET AL., RESPONDENTS\nOn January 7, 2009, Attorney General Mukasey overruled in part the\ndecisions of the Board of Immigration Appeals (\xe2\x80\x9cBoard\xe2\x80\x9d) in Matter of\nLozada, 19 I. & N. Dec. 637 (BIA 1988), and Matter of Assaad, 23 I. & N.\nDec. 553 (BIA 2003), and affirmed the Board\xe2\x80\x99s orders denying reopening\nin Matter of Compean, A078 566 977 (BIA May 20, 2008), Matter of\nBangaly, A078 555 848 (BIA Mar. 7, 2008), and Matter of J-E-C- (BIA\nApr. 8, 2008). See Matter of Compean, Bangaly & J-E-C-, 24 I. & N.\nDec. 710 (Att\xe2\x80\x99y Gen. 2009) (\xe2\x80\x9cCompean\xe2\x80\x9d); Assistance of Counsel in Removal Proceedings ( I ), 33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.).\nIn Lozada, the Board established the procedural requirements for filing\na motion to reopen deportation (now removal) proceedings based upon a\nclaim of ineffective assistance of counsel and required the alien to show\nthat he was prejudiced by the action or inaction of his counsel. Lozada, 19\nI. & N. Dec. at 639\xe2\x80\x9340. The Compean decision acknowledged that the\nLozada framework had \xe2\x80\x9clargely stood the test of time,\xe2\x80\x9d having been\nexpressly reaffirmed by the Board fifteen years after its initial adoption.\nCompean, 24 I. & N. Dec. at 731; see also Assaad, 23 I. & N. Dec. at 556\xe2\x80\x93\n57 (affirming the application of Lozada to removal proceedings). Nonetheless, Compean both rejected Lozada\xe2\x80\x99s constitutional reasoning and\n57\n\n\x0c33 Op. O.L.C. 57 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nordered the Board not to rely upon the Lozada framework, even as a\ndiscretionary matter. Instead, Compean set forth, as an exercise of the\nAttorney General\xe2\x80\x99s administrative discretion, a new substantive and\nprocedural framework for reviewing all such claims and a formulation of\nthe prejudice showing different from that followed by many courts, despite the limited discussion of the Lozada framework in the briefs submitted in Compean by the parties and amici curiae. Compean further provided that this new administrative framework should apply \xe2\x80\x9chenceforth,\xe2\x80\x9d\neven though the decision acknowledged it might conflict with the Lozada-based approach taken by a number of federal courts of appeals. See\nCompean, 24 I. & N. Dec. at 730 & n.8.\nFor the reasons stated herein, I have determined that it is appropriate to\nreconsider the January 7, 2009 decision.\nEstablishing an appropriate framework for reviewing motions to reopen\nimmigration proceedings based on claims of ineffective assistance of\ncounsel is a matter of great importance. I do not believe that the process\nused in Compean resulted in a thorough consideration of the issues involved, particularly for a decision that implemented a new, complex\nframework in place of a well-established and longstanding practice that\nhad been reaffirmed by the Board in 2003 after careful consideration. The\npreferable administrative process for reforming the Lozada framework\nis one that affords all interested parties a full and fair opportunity to\nparticipate and ensures that the relevant facts and analysis are collected\nand evaluated.\nAccordingly, I direct the Acting Director of the Executive Office for\nImmigration Review to initiate rulemaking procedures as soon as practicable to evaluate the Lozada framework and to determine what modifications should be proposed for public consideration. After soliciting information and public comment, through publication of a proposed rule in the\nFederal Register, from all interested persons on a revised framework for\nreviewing claims of ineffective assistance of counsel in immigration\nproceedings, the Department of Justice may, if appropriate, proceed with\nthe publication of a final rule.\nIn Compean, the introduction of a new procedural framework depended\nin part on Attorney General Mukasey\xe2\x80\x99s conclusion that there is no constitutional right to effective assistance of counsel in removal proceedings.\nBecause that conclusion is not necessary either to decide these cases\n58\n\n\x0cAssistance of Counsel in Removal Proceedings ( II )\n\nunder pre-Compean standards or to initiate a rulemaking process, this\nOrder vacates Compean in its entirety. To ensure that there is an established framework in place pending the issuance of a final rule, the Board\nand Immigration Judges should apply the pre-Compean standards to all\npending and future motions to reopen based upon ineffective assistance of\ncounsel, regardless of when such motions were filed. The litigating positions of the Department of Justice will remain unaffected by this Order.\nFinally, prior to Compean, the Board itself had not resolved whether its\ndiscretion to reopen removal proceedings includes the power to consider\nclaims of ineffective assistance of counsel based on conduct of counsel\nthat occurred after a final order of removal had been entered. Given the\nabsence of a pre-Compean standard of the Board to apply pending issuance of a final rule, I resolve the question in the interim by concluding\nthat the Board does have this discretion, and I leave it to the Board to\ndetermine the scope of such discretion.\nTurning to the merits of the particular cases at issue, I find that, for the\nreasons stated by the Board, its orders denying reopening of the three\nmatters reviewed in Compean were appropriate under the Lozada framework and standards as established by the Board before Compean. On that\nbasis, I concur with Attorney General Mukasey\xe2\x80\x99s decision to affirm the\nBoard\xe2\x80\x99s decisions denying reopening of these matters. Compean, 24\nI. & N. Dec. at 743.\nERIC H. HOLDER, JR.\nAttorney General\n\n59\n\n\x0c'


b'Apportionment of False Claims Act\nRecoveries to Agencies\nWhether an agency\xe2\x80\x99s revolving fund is entitled to receive from a False Claims Act recovery (in\naddition to single damages equal to the actual amount of the payment made as a result of the false\nclaim) pre-judgment or pre-settlement interest on that payment and investigative and administrative\ncosts attributable to the false claim depends on whether the fund is authorized to borrow money at\ninterest, earn interest on its own investments, and pay its own investigative and administrative\nexpenses.\n\nMarch 12, 2004\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF PERSONNEL MANAGEMENT\nAND THE GENERAL COUNSEL\nU.S. POSTAL SERVICE\nThis memorandum addresses what portions, beyond single damages, of a\nmonetary settlement or judgment awarded the United States under the False\nClaims Act (\xe2\x80\x9cFCA\xe2\x80\x9d) can be received by the agency that paid the false claim from\na revolving fund.1 Our opinion responds to separate requests submitted to this\nOffice for our opinion concerning (1) whether the Employees Health Benefits\nFund (\xe2\x80\x9cOPM Fund\xe2\x80\x9d) administered by the Office of Personnel Management\n(\xe2\x80\x9cOPM\xe2\x80\x9d) may receive a portion of an FCA recovery representing lost interest,2 and\n(2) whether the Postal Service Fund administered by the U.S. Postal Service\n(\xe2\x80\x9cPostal Service\xe2\x80\x9d) may receive the entirety of such a recovery.3 Both opinion\nrequests concern false claims resulting in payments from revolving funds operated\nby the agencies in question.\nAs discussed below, we conclude that whether a revolving fund is entitled to\nreceive (in addition to single damages equal to the actual amount of the payment\nmade as a result of the false claim) pre-judgment or pre-settlement interest on that\npayment and investigative and administrative costs attributable to the false claim\ndepends on whether the fund is authorized to borrow money at interest, earn\n\n1\nThis opinion is limited to the revolving fund context and does not address the distribution of FCA\nrecoveries where the false claim was paid from agency appropriations. In preparing this opinion, this\nOffice has consulted with the Civil Division, which litigates False Claims Act cases involving false\nclaims submitted to agencies of the government. The Civil Division has not submitted written views,\nbut has reviewed this opinion and concurs in its conclusions and analysis.\n2\nSee Letter for Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, from\nJanice R. Lachance, Director, U.S. Office of Personnel Management (Jan. 18, 2001).\n3\nSee Memorandum for Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, from\nRobert D. McCallum, Jr., Assistant Attorney General, Civil Division, forwarding Letter for Stephen D.\nAltman, Assistant Director, Civil Fraud, Civil Division, from Eric Scharf, Managing Counsel, Civil\nPractice Section, U.S. Postal Service (Feb. 7, 2002).\n\n25\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ninterest on its own investments, and pay its own investigative and administrative\nexpenses. Because the Postal Service Fund is authorized to borrow money at\ninterest, to earn interest on its investments, and to pay investigative and other\nadministrative expenses from the fund, it is entitled to receive from the FCA\nrecovery pre-judgment or pre-settlement interest it paid or interest it failed to earn\nas a result of the false claim, as well as investigative and administrative costs\nattributable to the false claim. This conclusion also applies to the OPM Fund,\nexcept that because the OPM Fund is not authorized to borrow funds, OPM may\nreceive amounts allocable to interest only to the extent that the Fund was earning\ninterest at the time the false claim was paid and so long as it continues to earn\ninterest. Neither agency may receive any portion of an FCA recovery that does not\nreflect actual loss to its Fund but instead represents multiple damages or penalties.\nI.\nUnder the False Claims Act, a person who submits a false claim \xe2\x80\x9cis liable to the\nUnited States Government for a civil penalty of not less than $5,000 and not more\nthan $10,000, plus 3 times the amount of damages which the Government sustains\nbecause of the act of that person,\xe2\x80\x9d except that only double damages are assessed if\ncertain conditions set forth in the statute are met. 31 U.S.C. \xc2\xa7 3729(a) (2000). The\nCivil Division\xe2\x80\x99s practice has been to allocate only single damages to the agencies.\nOPM and the Postal Service believe they are entitled to a greater share of FCA\nrecoveries.\nOPM argues that it is entitled to receive not just single damages but also interest on that amount representing either the interest not earned by the OPM Fund\nbecause of the payment made on the false claim or the interest to be paid by the\nOPM Fund if it was operating under a deficit and had to borrow from the Treasury\nin order to make the payment. OPM acknowledges that money received by the\ngovernment must generally be deposited in the Treasury pursuant to the Miscellaneous Receipts Act (\xe2\x80\x9cMRA\xe2\x80\x9d), 31 U.S.C. \xc2\xa7 3302 (2000), but argues that single\ndamages and interest may be credited to the OPM Fund based on the \xe2\x80\x9crefund to\nappropriations\xe2\x80\x9d exception to the MRA requirement. The Postal Service makes the\nsame argument, but in addition argues that the Postal Service Fund should also\nrecover its investigative and administrative costs.4\n4\nThe Postal Service also argues, more broadly, that the Fund should receive the entirety of the FCA\nrecovery because the Postal Service is exempt from the MRA, and even if it is not exempt, the Service\nhas been specifically authorized by statute to collect penalties and therefore the Fund should receive the\nrest of an FCA recovery beyond single damages because those multiple damages constitute penalties.\nWe do not believe that those arguments are available to the Postal Service in the FCA context because\nthe recovery in a FCA suit is payable to the United States, 31 U.S.C. \xc2\xa7 3729(a) (\xe2\x80\x9cAny person who\n[submits a false claim] is liable to the United States Government\xe2\x80\x9d), not to individual agencies. Thus, it\nis beside the point that the Postal Service itself might be exempt from the MRA or might be authorized\nitself to collect penalties. The question presented by this opinion is limited to whether and to what ex-\n\n26\n\n\x0cApportionment of False Claims Act Recoveries to Agencies\n\nUnder the MRA, \xe2\x80\x9can official or agent of the Government receiving money for\nthe Government from any source shall deposit the money in the Treasury as soon\nas practicable without deduction for any charge or claim.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 3302(b).\nThe Executive Branch and the Comptroller General have construed the MRA to\nprovide an exception for \xe2\x80\x9crefunds to appropriations.\xe2\x80\x9d Treasury Department\xe2\x80\x93\nGeneral Accounting Office Joint Regulation No. 1, \xc2\xa7 2(b) (Sept. 22, 1950)\n(\xe2\x80\x9cTreasury Department\xe2\x80\x93GAO Joint Regulation\xe2\x80\x9d), reprinted in 30 Comp. Gen. 595\n(defining, as one of two classes of \xe2\x80\x9crepayments to appropriations,\xe2\x80\x9d \xe2\x80\x9c[r]efunds to\nappropriations which represent amounts collected from outside sources for\npayments made in error, overpayments, or adjustments for previous amounts\ndisbursed, including returns of authorized advances\xe2\x80\x9d). \xe2\x80\x9cThe term \xe2\x80\x98refund,\xe2\x80\x99\xe2\x80\x9d in\nGAO practice, \xe2\x80\x9cembraces a category of mostly nonstatutory exceptions in which\nthe receipt is directly related to, and is a direct reduction of, a previously recorded\nexpenditure.\xe2\x80\x9d 2 General Accounting Office, Principles of Federal Appropriations\nLaw 6-109 (2d ed. 1992) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d).5\nWe agree with the Comptroller General\xe2\x80\x99s opinion in Matter of Federal Emergency Management Agency, 69 Comp. Gen. 260 (1990) (\xe2\x80\x9cFEMA\xe2\x80\x9d), that, in the\ncontext of false claims paid out of a revolving fund operated by FEMA, the\n\xe2\x80\x9ccollections for overpayments made\xe2\x80\x9d prong of the refund exception allows the\nagency to retain single damages.6 Id. at 262. The Comptroller General also explained in FEMA that because the FEMA revolving fund earns interest on its\ninvestments, 12 U.S.C. \xc2\xa7 1749bbb-13(b)(2) (2000), and may borrow money at\ninterest from the Treasury, id. \xc2\xa7 1749bbb-13(a)(3), a false claim results in\n\xe2\x80\x9cadditional interest expense or reduced interest income.\xe2\x80\x9d 69 Comp. Gen. at 262.\n\ntent the \xe2\x80\x9crefund to appropriations\xe2\x80\x9d exception to the MRA is available to authorize the Civil Division,\non behalf of the United States, to distribute FCA recoveries to agency accounts within the Treasury\ninstead of the general fund of the Treasury. We express no opinion on the availability of these\narguments to the Postal Service in any context other than the FCA context.\n5\nWe assume arguendo throughout this memorandum the correctness of the Comptroller General\xe2\x80\x99s\nlongstanding construction of the MRA, a construction that the Executive Branch has shared or at least\nacquiesced in. Two aspects of that construction are pertinent here. First, the MRA\xe2\x80\x99s requirement that\nmoney be deposited \xe2\x80\x9cin the Treasury\xe2\x80\x9d has been understood to require a deposit in the general fund of\nthe Treasury. 2 Federal Appropriations Law at 6-106. Second, the MRA\xe2\x80\x99s mandate has been understood to be subject to a non-textual exception for \xe2\x80\x9crefunds to appropriations.\xe2\x80\x9d Id. at 6-109. A possible\nalternative interpretation of the MRA, however, would be that the MRA requires only what its text\nstates\xe2\x80\x94that miscellaneous receipts must go to the Treasury, but not to any particular fund or account in\nthe Treasury. Under this interpretation, decisions about where miscellaneous receipts are directed in the\nTreasury would be guided by the anti-augmentation principle (an agency may not augment its\nappropriations from outside sources without statutory authority) that GAO finds embedded in the MRA\nand other statutes, see id. at 6-103, but it would be understood that the principle is derived from the\nConstitution, not the MRA. You have not asked us to reconsider the longstanding construction of the\nMRA, and we express no opinion on it here.\n6\nAs we have repeatedly stated, the opinions and legal interpretations of the General Accounting\nOffice and the Comptroller General often provide helpful guidance on appropriations matters and\nrelated issues, but are not binding upon departments, agencies, or officers of the Executive Branch.\n\n27\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nWe agree with the Comptroller General that this lost interest income is \xe2\x80\x9ca direct\nconsequence of the false claims [the agency] paid and [increases] the magnitude of\nthe losses the Fund suffered as a result of paying those claims.\xe2\x80\x9d Id. at 262\xe2\x80\x9363.\nII.\nWe also agree with the Comptroller General that the agency should be reimbursed for \xe2\x80\x9c[a]ny administrative expenses that [the agency] charged the Fund in\nconnection with making or recovering these erroneous payments.\xe2\x80\x9d Id. at 263. Not\nonly are the administrative costs incurred in the processing of the false claim in the\nfirst instance clearly reimbursable, but in addition the agency\xe2\x80\x99s recovery of the\n\xe2\x80\x9cadministrative expenses in the course of investigating the validity of the false\ninsurance claims submitted and in assisting in the preparation of this case for trial,\nall of which were paid from the Fund,\xe2\x80\x9d id.; 12 U.S.C. \xc2\xa7 1749bbb-13(a)(2), would\nmake the agency \xe2\x80\x9cwhole at no additional expense to the taxpayer,\xe2\x80\x9d 69 Comp. Gen.\nat 263 (quoting Matter of Bureau of Prisons, 62 Comp. Gen. 678, 682 (1983))\n(internal quotation marks omitted). Thus, allowing the agency to retain interest on\nsingle damages and the administrative costs of false claims would not be an\nimproper augmentation of the agency\xe2\x80\x99s appropriation and is consistent with the\nTreasury Department\xe2\x80\x93GAO Joint Regulation.\nThe OPM and Postal Service Funds are both revolving funds. 5 U.S.C.\n\xc2\xa7 8909(a) (2000) (authorizing payments both into and out of the OPM Fund with\nno fiscal year limitation); 39 U.S.C. \xc2\xa7\xc2\xa7 2003(a)\xe2\x80\x93(b) (2000) (same for Postal\nService Fund). The OPM Fund is authorized to invest its money in interest-bearing\nobligations, the interest on which becomes part of the Fund. 5 U.S.C. \xc2\xa7 8909(c).\nThe OPM Fund is not authorized to borrow money at interest, but as long as the\nFund is not in deficit during the period between the payment and the recovery of a\nfalse claim, the false claim results in lost interest income. The OPM Fund pays for\nadministrative expenses \xe2\x80\x9cwithin the limitations that may be specified annually by\nCongress,\xe2\x80\x9d id. \xc2\xa7 8909(a)(2), and in fact a portion of employee contributions is\nspecifically set aside for such administrative expenses, id. \xc2\xa7 8909(b)(1). The Postal\nService Fund is also authorized to collect interest on its investments, 39 U.S.C.\n\xc2\xa7 2003(b)(4), and may borrow money, id. \xc2\xa7 2005(a) (2000), at interest, id.\n\xc2\xa7 2005(c)(5), and \xe2\x80\x9cinvestigate postal offenses and civil matters relating to the\nPostal Service,\xe2\x80\x9d id. \xc2\xa7 404(a)(7) (2000). Therefore, under the reasoning of the\nFEMA opinion, and consistent with the Treasury Department-GAO Joint Regulation, the OPM Fund and the Postal Service Fund may recover both interest income\nlost and administrative expenses incurred as a result of a false claim, and the\nPostal Service Fund may also recover interest paid as a result of the false claim.\n\n28\n\n\x0cApportionment of False Claims Act Recoveries to Agencies\n\nIII.\nFinally, we agree with the Comptroller General\xe2\x80\x99s conclusion in FEMA that the\nagency could not receive any portion of the FCA recovery that represented an\namount beyond actual losses to the agency, such as multiple damages or penalties.\nThat amount would have to be remitted to the Treasury for deposit into the general\nfund. 69 Comp. Gen. at 264. We likewise conclude that neither the OPM Fund nor\nthe Postal Service Fund may receive any amount of a FCA recovery that does not\nreflect actual loss to the fund but instead can only be viewed as multiple damages\nor a penalty.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n29\n\n\x0c'