Grant Christensen on Cooley and Tribal Law Enforcement

Grant Christensen has posted “Getting Cooley Right: The Inherent Criminal Powers of Tribal Law Enforcement,” forthcoming in the UC Davis Law Review, on SSRN.

Abstract:

While the Supreme Court regularly decides cases defining the limits of the criminal jurisdiction of tribal courts, when it heard United States v. Cooley in 2021 it had not decided a case about the procedural powers of tribal law enforcement in more than a century. Across more than five decades lower courts at all levels struggled to decide whether the inherent criminal powers of tribal law enforcement are coterminous with the jurisdiction of tribal courts or whether tribal officers may have their own set of inherent powers distinct from the power to prosecute. This Article examines the inconsistent split in authority that existed before Cooley and anticipates the future misreading of inherent criminal power by lower courts. It argues that now that the Court has divorced the inherent criminal power of tribal law enforcement from the criminal jurisdictional power of tribal courts, tribal officers may stop, detain, search, and investigate anyone whose criminal conduct poses a danger to the health and welfare of the tribal community. The Article bolsters its application by using the first cases decided by lower courts in the post-Cooley era as artifacts to examine the full implications of the recognition of inherent criminal power exercised by tribal law enforcement.

Ninth Circuit Briefs in Hopland Band of Pomo Indians v. Jewell (ISDEAA Law Enforcement Funding)

Here:

Hopland Band Opening Brief

Federal Answer Brief

Hopland Reply Brief

Lower court materials here:

21 Tribal Motion for Summary J

32 US Motion for Summary J

32-1 Cruzan Declaration

34 Tribal Response

38 US Reply

55 DCT Order

We posted on this case here and here.

California Tribes Move for Summary Judgment in Suit to Force Interior to Contract for Law Enforcement Services

Here is the motion in Hopland Band of Pomo Indians v. Salazar (N.D. Cal.):

Hopland Band Motion for Summary J

The complaint is here.

California Tribes Sue Interior over Failure to Contract for Law Enforcement Services under ISDEAA

Here is the complaint in Hopland Band of Pomo Indians v. Salazar (N.D. Cal.):

Hopland Band v. Salazar Complaint

Arizona Court Holds ISDEAA Waives Tribal Immunity in State Court

Here’s the court’s opinion.

An excerpt:

In this case, the GRIC officers were acting in the course and scope of their employment, but off the geographical boundaries of Indian Country. The Federal Tort Claim Act does not apply. Their activities instead fall within the intent of 25 U.S.C. § 450f(c). To the amount of GRIC liability coverage for the Defendants’ law enforcement activities off Indian Country not covered by FTCA, the GRIC has waived its Sovereign Immunity to suit in Arizona. The Court finds persuasive the U.S.A.’s Amicus Brief legal analysis. The Tribe has waived its Sovereign Immunity for the activities of the Defendant Officers in this case.

Boney v. Valline — Suit re: Police Liability under Self-Determination Act & FTCA

Here is the opinion in this case — boney-v-valline-dct-order — where the District of Nevada held that a tribal officer who employed deadly force was enforcing tribal law, and so could not be liable under the FTCA or the Self-Determination Act.

Here are the materials:

boney-first-amended-complaint

valline-motion-for-summary-judgment

boney-opposition-to-motion

valline-reply-brief

Saginaw Chippewa Banishments

From the Mt. Pleasant Morning Sun:

Tribe banishes four

The Saginaw Chippewa Indian Tribe has begun using a very old method of dealing with problems in a new way: invoking the ancient tribal practice of banishing troublemakers from tribal lands.

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