Washington SCT (On Reconsideration) Holds 5-4 that Tribal Law Enforcement Authority Stops at Rez Boundaries

The majority opinion is here, and the two dissenting opinions are here and here. The majority holds (reversing itself from opinions in 2009 and 2010) that a criminal suspect (here a reckless driver) is utterly free and clear from tribal jurisdiction once the suspect leaves the reservation. Tribal police cannot even hold the suspect until state officials arrive.

One of the dissents raises an interesting point. This outcome strongly encourages anyone — even tribal members — from making a crazy, reckless beeline for the reservation boundary.

Our first posting on this case (with links to briefs) is here. Here are the previous opinions:

166_Wash.2d_953

170_Wash.2d_209

First it was 9-0, then 6-3, and now 5-4 the other way. What happened?

5 thoughts on “Washington SCT (On Reconsideration) Holds 5-4 that Tribal Law Enforcement Authority Stops at Rez Boundaries

  1. Brent Leonhard September 2, 2011 / 1:10 pm

    Lame. This is what we wrote in the Oregon Supreme Court Kurtz amicus brief on this issued:

    The United States Supreme Court has recognized the “authority of tribal police to patrol roads within a reservation, including rights of way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law.” Strate v. A-1 Contractors, 520 US 438, 456 n 11, 117 S Ct 1404, 137 L Ed 2d 661 (1997). Part and parcel of this inherent sovereign power to enforce laws in Indian country is the necessary means to actualize that authority. See Settler v. Lameer, 507 F.2d at 238 (“The power to regulate is only meaningful when combined with the power to enforce.”); Barrett v. Union Bridge Co., 117 Or 566, 576, 245 P 308 (1926) (“It is a familiar principle of law that every grant of power carries with it the use and necessary means of its exercise.”).
    The hot pursuit doctrine permits a police officer to perform an arrest outside of their jurisdiction without otherwise violating a defendant’s constitutional rights. See Welsh v. Wisconsin, 466 US 740, 750, 104 S Ct 2091, 80 L Ed 2d 732 (1984). The Ninth Circuit has determined that “[u]nder the doctrine of hot pursuit, a police officer who observes a traffic violation within his jurisdiction to arrest may pursue the offender into Indian country to make the arrest.” U.S. v. Patch, 114 F3d 131, 134 (9th Cir 1997), cert den, 522 US 983, 118 S Ct 445, 139 L Ed 2d 381 (1997). Certainly, there is no practical difference between a state police officer pursuing an individual into Indian country and a tribal police officer pursing an individual who is fleeing Indian country. As a necessary means to enforce law in Indian country, tribal police officers must have the inherent authority to pursue and arrest suspects fleeing Indian country in fresh pursuit of crimes that occurred within Indian country. If the case were otherwise, every criminal being pursued by tribal law enforcement would be encouraged to run for the border to avoid arrest.

  2. MikeG September 6, 2011 / 1:13 pm

    Last opinion was 5/4 not 6/3 (Alexander’s dissent would have affirmed Ericksen’s conviction on the basis that the tribal officer had a right to undertake a citizens’ arrest outside the reservation while the dissent of Owens, joined by Chambers and Johnson [Charles] would have continued with the holding in the original 9/0 opinion that the officer’s off-reservation pursuit was a necesary incident of on-reservation tribal auhtority relying upon Montana and Washington’s Mutual Aid Peace Officers Act of 1985 (RCW 10.93)).

  3. Charles September 15, 2011 / 10:52 am

    The readers should recognize that there are multiple ways for tribes in Washington to obtain cross-deputization powers that would allow hot pursuit. Many have used this practical path, rather than asserting an inherent power that would gore the sovereign powers of the states to control police activities within its borders.

  4. Sean July 21, 2012 / 2:10 am

    Only one Tribe has successfully done so because state police and local law enforcement refuse to cross deputize. Meanwhile, state police are free to continue fresh pursuit of suspect into Tribal land. But this decision now says it doesn’t work the other way. This is about racism, not sovereign power. The first decision was correct and this edited third draft is a travesty.

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