SCOTUS Examines The Jurisdictional Maze Hamstringing Tribal Law Enforcement
U.S. Highway 550 runs from Montrose, Colo., to Bernailillo, N.M. If you drive all 300 miles of it, you'll weave in and out of tribal land more than a dozen times.
One of the places you'll pass through is Zia Pueblo, where Gov. Jerome Lucero, who is also an officer with the Pueblo's police department, said a stretch of the highway running through the reservation gives his department trouble.
"We have a lot of jurisdictional issues on U.S. 550," he said. "When I pull someone over, I have to take into consideration whether they're Native or non-Native."
Tribal police departments face a major barrier in keeping their communities safe. In most cases, they lack jurisdiction to arrest non-Native people. And their authority even to detain and investigate non-Natives they suspect of committing crimes on tribal land is extremely limited.
Lucero said this poses a threat to public safety on and off reservations. To explain, he recalls pulling over a driver that was travelling at 30 mph in a 70 mph zone on the highway.
"That gave me a red flag, so I initiated my lights and sirens. But it took me about a mile to get his attention," Lucero said.
And when he approached the vehicle, there were more red flags.
"His pupils were restricted. They were so tiny, like a pin dot. And he didn't even know where he was going. He thought he was still in Albuquerque," said Lucero.
In fact, the man was about 40 miles north of the city.
"When I looked around his vehicle, I could see visually that he had heroin in the middle console, and a bunch of syringes in his door," Lucero said.
Normally, this would add up to probable cause to arrest him for driving while intoxicated. And if the man had been a citizen of a federally recognized tribe, Lucero would have done just that. But because he was non-Native, and Lucero was a tribal officer, Lucero didn't have the authority even to detain him.
So, he asked the driver to stay put and called for backup from non-tribal law enforcement, first from the Sandoval County Sheriff's Office.
"County didn't want to come out. They just flat out said that they were busy," Lucero said.
The New Mexico State Police didn't have an officer to spare, either. After four hours of waiting, Lucero was out of options. He impounded the man's vehicle and dropped him off in the off-reservation town of Bernalillo.
"He was a free man," Lucero said.
Situations like this aren't unique in Indian Country. This year, a similar case, from the Crow Reservation in southern Montana, came before the U.S. Supreme Court.
Joel Williams, an attorney with the Native American Rights Fund, says the case began when a Crow tribal police officer approached a pickup truck that was parked on the shoulder of a remote stretch of highway at 1 a.m.
"The police officer noticed that there was a child in the back seat and firearms in the front seat," Williams said. "And in the course of having a discussion with the driver, the officer noticed that he appeared to be either intoxicated or maybe under the influence of drugs."
According to a brief filed with the Supreme Court, the officer noted that the driver, James Cooley, had "watery, bloodshot eyes," was slurring his speech, and became agitated with the officer's questions about why he was parked on the side of the highway.
The officer escorted Cooley and the child into his patrol car, according to the brief, and, while he was waiting for a county officer to come make the arrest, removed the guns from Cooley's truck.
"And he found what appeared to be methamphetamine and a pipe in the vehicle," Williams said.
Cooley was arrested that night by a county officer, and later indicted on federal drug and weapons charges. But because he was not a tribal citizen, a district court judge in Montana threw out the evidence collected by the tribal officer, citing a lack of jurisdiction.
The case went to the 9th U.S. Circuit Court of Appeals, which agreed. According to Williams, that ruling set a dangerous precedent.
"Now, unless a tribal police officer is actually witnessing a crime occuring, essentially, then they're not going to have that authority [to investigate]," Williams said.
Williams says this new standard widens an existing law-enforcement loophole that can allow non-Natives to commit crimes - from speeding and illegal trash dumping to sexual assault and domestic violence - with impunity.
"If a tribal police officer can't even, say, investigate their reasonable belief that someone might be committing a violent crime against a Native woman in Indian Country, gosh, that really poses a very serious public safety issue," Williams said.
Before the Supreme Court, attorneys for the driver, Joshua Cooley, argued that addressing that public safety issue shouldn't impede on the rights of non-Natives.
Attorney Eric Henkel said in oral arguments that tribes were seeking to exercise their authority over non-Natives "free of political accountability," since non-Natives lack elected representation in tribal governments.
"If Mr. Cooley's civil rights are violated [by a tribal officer], there's nothing he can do because of tribal sovereign immunity and because this is all occurring outside the structure of the constitution," Henkel said.
The Supreme Court is expected to rule in this case some time this month. If it sides with Cooley and upholds the 9th Circuit ruling, tribal police officers say their jobs will become even more complicated, and the reservations they serve will become less safe.
But even if the court rules the other way, tribal officers won't gain new jurisdiction. They will simply maintain limited authority to detain non-Natives while waiting for backup from other agencies and investigate suspected crimes by non-Natives on tribal land.
Gov. Lucero of Zia Pueblo said that's not enough. He's called on Congress to draft legislation that fully addresses the jurisdictional maze that prevents tribes from bringing non-Native criminals to justice.
"We don't have jurisdiction here on our reservation, but when us Native Americans get off the reservation, they have full jurisdiction over us," Lucero said. "So what's the difference? It makes my heart sad to see that happening to us Native Americans."
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.