Indian Country Jurisdiction
for Public Safety Dispatchers
by Alan Mentzer
| Former Chief of Police Alan Mentzer is a Professor and Chairman of the Criminal Justice Department of the Truckee Meadows Community College in Reno, Nevada. |
Table 1: Indian Country
Jurisdiction In Criminal
Cases
Table 2: Test For
Determining Criminal
Jurisdiction In Indian
Country
Related Article:
Tribal Law Enforcement
in New Mexico
| Illustrations: (select thumbnail to view detail image) |
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This article can be found on
page 36 of the Sept/Oct 1997
issue of 9-1-1 Magazine.
Dispatcher: "9-1-1 dispatch, do you need police, fire, or medical assistance?"
Citizen: "Help! There's a dog chasing kids and it just bit one bad. Send someone to Fourth and Jackson Streets in Wadsworth."
Dispatcher: "Yes, ma'am, I'll have Tribal police, deputies, and an ambulance on the way. Do you know if it's an Indian or non-Indian dog?"
While this conversation may sound bizarre to public safety operators in locations outside Indian Country, this is not an unheard conversation in dispatch centers who provide services to Native American Reservations. While the dispatch center will send the closest unit to stabilize an emergency, the ownership of the vicious dog may decide whether this incident is handled by Tribal police or deputy sheriffs and whether the case is adjudicated in Tribal or State court.
Even for experienced dispatchers working multi-jurisdiction communication centers, there remains a great deal of confusion when dispatching calls-for-service in areas within and adjacent to Indian Country. Misunderstanding jurisdiction has led to criminal cases being dismissed, cover units being refused, and failures to serve the public properly.
What is "Indian Country?"
"Indian Country" is defined by Chapter 18, section 1151 of the United States Code. In simple terms, Indian Country is any land granted by treaty or allotment to Native American nations, tribes, reservations, communities, colonies, or individuals and recognized by the federal government. There are about 285 Federally recognized reservations, colonies, and communities in the United States. Reservations may consist of two or more traditional Tribes because of relocation dating from the 1800s.
Most Reservations are in isolated rural settings. But there are several Reservations, like the Salt River Pima-Maricopa Community outside Phoenix, Arizona or the Reno-Sparks Indian Colony in Nevada, which are located within major metropolitan areas.
Indian Country Jurisdiction
Congress in 1953 enacted Public Law 88-280 (P.L. 280) which eliminated criminal jurisdiction for Tribes in California, Nebraska, and Wisconsin. It also eliminated criminal jurisdiction in Oregon and Minnesota except the Warm Springs (Oregon) and Red Lake (Minnesota) reservations. In Alaska, only the Annette Islands and the Metlakatla Indian Community retained sovereignty in criminal matters.
These Tribes' previous criminal jurisdiction over Indians was conveyed to state authorities. Indian lands in these states are policed by local or state officers and adjudicated in state courts; Tribes retained civil authority over non-Indians in P.L. 280 states.
Indian Country in non-P.L. 280 states has been policed in two ways. The traditional manner was the use of police officers from the U.S. Bureau of Indian Affairs (BIA). The current trend is for Tribes to administer their own police departments like any other governmental entity. In a few instances, Tribes have contracted police services from local or state agencies.
In non-P.L. 280 states there exists what the Indian Country Section of the International Association of Chiefs of Police calls a "tripartite" system of law enforcement. Criminal jurisdiction is shared between Tribal, state, and federal authorities. Table 1 graphically explains this matrix of jurisdiction.
In deciding jurisdiction, one of the first things that a dispatcher has to determine is whether the crime took place on Indian Country. This requires a dispatcher to be aware of Tribal boundaries. The second question is whether the victim or suspect is Indian or non-Indian. In a time when most professional public safety agencies pride themselves on being "color blind" in their service to the public, ethnicity in Indian Country is the major issue in deciding jurisdiction. To further complicate matters, there is no one definition of what being Indian is.
Who is an Indian?
Native Americans are legally defined as members of one of the 545 federally recognized Indian Tribes. A Native American Tribe is a group which share a common social, political, religious, and geographic heritage. Each of these Tribes decides its own requirements for membership. Some Tribes demand 50% or 25% blood ancestry while other require only proof of lineage to a Tribe.
Indians are not required to live on reservations, but many do so by choice. Native Americans can be elected to public office, are subject to the military draft, and pay taxes. Contrary to popular beliefs, Indians do not receive monthly checks from the government just for being Indian and the vast majority of Tribes are not earning major revenues from gambling or mining. There are many "Urban Indians" who maintain their cultural identities, but are generations removed from living on a Reservation.
Jurisdictional Questions For The Dispatcher:
Dispatchers in non-P.L. 280 states who serve jurisdictions in or adjacent to Indian Country, should be aware of the following:
1. State Jurisdiction in Indian Country
Local and state law enforcement agencies have jurisdiction over non-Indian-against-non-Indian crimes in Indian Country. These crimes will normally be adjudicated in state court. A highway patrol trooper or deputy sheriff in Indian Country can arrest a non-Indian for reckless driving or for domestic battery and prosecute the defendant in state court. Dispatchers can send local and state officers to non-Indian crimes on a Reservation.
2. Exclusive Jurisdiction over Indian Offenders
Federal and Tribal law enforcement agencies have exclusive jurisdiction over Indian offenders in Indian Country. Tribal or BIA officers will normally arrest misdemeanor offenders within Indian Country and prosecute in Tribal Court. The FBI, BIA investigators, or Tribal investigators with federal authority, will arrest felony offenders and prosecute in federal court.
State courts have no jurisdiction to prosecute Indian offenders for offenses committed in Indian Country. Local or state agencies, absent a cross-deputization or mutual agreement, can legally detain (but not arrest) an Indian offender for Federal or Tribal officers. Local or state officers who have BIA Deputy Special Officer Commissions can not normally arrest Indian offenders for traffic or misdemeanors, but only assist in felony arrests. Under the Indian Law Enforcement Reform Act, such arrests cannot be made unless the Reservation involved has granted Tribal jurisdiction to BIA Officers or cross-deputized local or state officers.
3. Service of Warrants and Civil Process
Local and state peace officers can serve non-Indians with arrest or search warrants on non-Indians in Indian Country. They cannot serve state warrants, subpoenas, domestic violence protection orders, or other civil process on Indians in Indian Country.
Local or state officers have inadvertently made false arrests and illegal searches because the officers did not realize they were inside Tribal boundaries. The courts view Tribal sovereignty in same light as state sovereignty. A local officer entering a Reservation to make an arrest is viewed the same way as a California officer going to Oregon, arresting a suspect, and bringing him back to California without extradition proceedings.
Dispatchers will often receive telephone calls from citizens and victims about a suspect, a subject to be served process, or stolen property located at a residence in Indian Country. A dispatcher needs to be able to explain to a caller how jurisdiction greatly complicates these kinds of calls.
To make a legal arrest or properly serve state legal process in Indian Country, a state warrant or process needs to be endorsed by Tribal or federal court. Tribal or BIA officers can then make the arrest or service. This situation is really no different than warrants and process being served across state lines. A domestic violence protection order from Kansas City, Missouri cannot be immediately served in Kansas City, Kansas. A search warrant issued in Stateline-Lake Tahoe, Nevada cannot be automatically served in the adjacent City of South Lake Tahoe, California
4. Fresh Pursuits
Dispatchers need to be aware of the unique legal circumstances in cases of fresh pursuits of Indian offenders from state land onto Indian Country by local or state officers. The incident is similar to chasing a suspect from one state into another. Normally the pursuing local or state officers will continue the pursuit while notifying the Tribal jurisdiction that a pursuit has entered the reservation. Should the local or state officers stop the suspect, they can only detain the defendant until Tribal or BIA officers arrive.
A local and state officer cannot immediately remove the Indian offender from Indian Country and return him to state land. Tribal sovereignty is comparable to national or state sovereignty. An Arizona officer cannot arrest a pursued offender who was chased into New Mexico and return him to Arizona without a formal extradition hearing.
After the defendant is stopped in Indian Country, there are two courses of action for Tribal or BIA officers to follow. The first is for the Tribal officer to arrest for violations committed within the reservation (i.e., reckless driving). If the Tribal police department books its arrestees at a jail located off Indian Country, state charges may be filed once the Indian offender is off the reservation. Such an arrest made by Tribal officers, though, must be for a legitimate offense, not as a pretext arrest to circumvent extradition.
In the second case, if the arrestee is booked at a Tribal jail located within Indian Country or if no offense was committed on the reservation, a state arrest warrant needs to be sought. The state arrest warrant needs to be endorsed or a formal extradition hearing held in Tribal or federal court. Once the Tribal or federal magistrate approves extradition, Tribal or BIA officers can arrest and surrender the defendant to local or state officers. While this procedure seems unwieldy, it is the same procedure that takes place everyday between states and the U.S. and Canada.
Three-Prong Test for Determining Jurisdiction
At the Federal Law Enforcement Training Center, B.T. Baker instructs Indian Country jurisdiction to federal officers and investigators. Because of his background as both a working federal agent and attorney, he created a simple three-prong test that can help dispatchers decide appropriate jurisdiction. The use of B.T. Baker's Three-Prong test, detailed in Table 2, by telephone complaint takers or dispatchers can help clear up confusion in most multi-jurisdictional incidents.
These tools can help dispatchers have a better understanding of Indian Country jurisdiction and help them serve the public while recognizing the unique legal right of Tribal sovereignty. As professionals in Public Safety Communication, knowledge of this unique area of law will greatly assist dispatchers in providing all citizens with public safety services including America's original people.
