Senate
Bill 6524 and House Bill 2476 Authorizing
Tribal
Police Officers Washington State General Peace Officer
Powers
Chelan County Sheriff(CCSD) - Sheriff Mike Harum writes:
I am sending this to
you in response to many discussions I have had around the state reference HB
2476 and SB 6524, Authorizing tribal police officers to act as general authority
Washington State Peace Officers. I believe Washington State Sheriffs can
develop a model policy to address the needs of all and provide a working
template for the Tribes to better serve the citizens of Washington State. These bills would make poor public
policy and create a tremendous liability on the
State.
Although there is a
need to address law enforcement issues in Washington Indian communities, the
proposed bill to provide tribal officers state law enforcement peace officer
powers does not resolve law enforcement issues and raises concerns about
compromising the sovereignty of the Indian Tribes of Washington State,
especially the small non-gaming tribes. Non-Indians with police experience are
looking to gaming tribes for job opportunities because that is where the money
is. The law enforcement needs of small, non-gaming tribes are not the priorities
of the authors of the proposed bill. Instead, they are concerned with the needs
of the gaming tribes. But the "one size fits all" approach is not appropriate
for addressing the diverse tribal law enforcement issues in Washington State.
One of the most
significant problems with the proposed bill is that it causes tribes to
relinquish crucial aspects of their sovereignty. Pursuant to the bill, the
tribal police officers are required to be certified by the Washington State
Criminal Justice Training Commission (CJTC), and provide liability
insurance.
By allowing the State
of Washington
to define who is a tribal "peace officer," rather than allowing each tribe to
make that determination according to its own tribal law, the bill effectively
eliminates tribal government contribution to the certification
process.
I
continue to read and converse with my Colleagues, Prosecutors and US Attorneys.
They all question the ability of a tribe to waive sovereign immunity without
“expressed unequivocally” as stated below.
I also
find it very difficult to believe a tribe would agree to this waiver as written
in the bill, as well as I do not believe they can without congressional
involvement. As indicated in the bill “This bill requires tribal governments to
carry liability insurance and waive sovereign immunity to the extent of such
coverage so as to allow an action for damages.” I believe this is not a
complete waiver. What occurs if the claim is beyond the insurance
coverage?
A tribe
may waive immunity under quasi-sovereignty.
But it
cannot be merely implied. A tribe would have to make the intent very
clear.
Absent
"a clear waiver [of immunity] by the tribe or congressional abrogation",
OklahomaOklahoma, 498
U.S. 505, 509, 111 S.Ct. 905, 112
L.Ed. 2d. 1112 (1991), it is clear that Indian tribes possess the "common law
immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v.
Martinez, 436 U.S.
49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed. 2d. 106 (1978). The sovereignty of the
Mohegan Tribe of Indians of Connecticut is further expressly set forth in
the Mohegan Constitution, which provides that the Tribe shall have all the
inherent sovereign rights and powers of an independent, indigenous sovereign
nation. Mohegan Const., Art. II. While Indian Tribes can waive their sovereign
immunity, "such waiver may not be implied, but must be expressed unequivocally."
McClendon v. United
States, 885 F.2d. 627, 629 (9th Cir. 1989).
"The issue of tribal sovereign immunity is jurisdictional in nature." McClendon
v. United States, Id.
"Where there is any doubt about [the] meaning or
intent [of the statute in derogation of sovereign immunity, it is] given the
effect which makes the least rather than the most change in sovereign immunity."
Federal Deposit Insurance Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102,
quoting White v. Burns, 213 Conn. 307, 312
(1990). Tax Commission v. Citizen Band
Potawatomi Indian Tribe of
There
are cases that appeared to have been clear waivers but were held as procedurally
and/or jurisdictionally void for their lack of clarity, as illustrated in
previous cases in Washington State.
The bill does not
address the issue of the enforcement of tribal law by state/local police. The
bill permits tribal "peace officers" to enforce state law on tribal lands, and
even to be called off the reservation to assist state/county officers. It does
not require state/county police officers to have basic training in Indian law or
be familiar with the law of the local tribes. Nor does it allow tribes that have
peace officers to call on state/county police in an emergency. While Public Law
280 provides for concurrent criminal jurisdiction with tribes, the reality is
that state and county law enforcement officers are reluctant to enter Indian
lands in Washington for several reasons, including
confusion over jurisdiction, the remoteness of some tribal communities, a lack
of resources and a rejection of outside police services by certain tribal
councils. It is likely that this pattern of a lack of police services will
increase if the local police agencies are informed that tribes are establishing
their own police agencies.
As such, the bill puts
the entire focus on tribal police officers being qualified according to state
law but ignores the reciprocal situation with state or county police officers.
In other words, the "cooperation" is really tribal capitulation to enforce state
laws and be available to assist state/county police officers without allowing
tribal governments the opportunity to train state/local law enforcement officers
and to have them available to the tribal communities in emergencies. Even if a
reciprocal provision was written into the bill, the lack of cultural training
for state/local law enforcement officers could result in some compromising
situations. For example, there could be an incident on a reservation that
required the assistance of non-tribal police. The nearest available unit could
be a Washington-certified officer from another reservation. If the two tribes
were not on friendly terms with one another, the presence of those tribal
officers could seriously escalate the situation. Without appropriate cultural
training, the state/local police could foresee ably creates such a scenario.
Another shortfall of
the proposed bill is that it places the entire focus on the training of tribal
peace officers in state laws and procedures and does not encourage the
development of tribal justice systems and infrastructures. The bill fails to
address such basic issues as prosecution of offenders, tribal court development
and the disposition of cases. If a tribal police officer arrests an Indian on
the reservation for violation of tribal law, but the tribe does not have a
prosecutor and court, then the arrest is meaningless; without some agreement in
place and the appropriate training, no county prosecutor or state court judge
will prosecute based solely on tribal law, and it is questionable whether a
county prosecutor will prosecute a crime arising on the reservation. If a tribal
police officer makes an arrest that is valid under the bill, is the prosecutor
bound to prosecute the case? Without the necessary tribal justice systems in
place, tribal police officers will become merely tribally-funded state police,
and, in fact, the bill encourages this result.
Another major issue
this proposed bill fails to address is how to prevent tribal leaders of certain
tribes from using the tribal "peace officers" as their own private police force
that functions solely to promote their personal objectives. While a tribal
council may have the potential to create a police force that acts as their own
squad, this bill, which emphasizes police training in state law over the
development of tribal justice infrastructures, would put the full power of state
law behind tribal peace officers with no accountability to Indian communities.
These fears are heightened by the fact that not all the Tribes in Washington State agree with this
bill.
Sovereignty is an
internationally recognized concept. A basic tenant of sovereignty is the power
of a people to govern themselves. American Indian tribal powers originate with
the history of tribes managing their own affairs. Case law has established that
tribes reserve the rights they have never given away. While the
U.S. government recognizes
American Indian Tribes as sovereign nations, the U.S.
congress is recognized by the courts as having the right to limit the sovereign
powers of tribes. However, Congress must do so in definite terms and not by
implication. This means that Tribes remain sovereign nations and possess
self-government. Tribes have a nation-to-nation relationship with the U.S.
federal government. Only Congress has plenary (overriding) power over Indian
affairs. State governance is generally not permitted within reservations. In
Worcester v. Georgia, 31 U.S. 515 (1832), which concerned the application of
Georgia state law within the Cherokee Nation, the court held that tribes do not
lose their sovereign powers by becoming subject to the power of the U.S., and
maintained that only Congress has plenary (overriding) power over Indian
affairs, and established that state laws do not apply in Indian Country. This
bill is in conflict with established tribal sovereignty and we must question the
ability of the State to impose certain requirements such as outlined in the
proposed bill.
To seriously address
the unique law enforcement needs of each of the 29 federally-recognized tribal
communities in Washington State, the tribes and state/local agencies would be
better served utilizing cross-commission by the Sheriff, rather than relying on
the State/CJTC certification process. Although the bill does not affect any
agreements currently in place between tribes and local agencies nor does it
preclude creating such agreements in the future, it revolves around the CJTC
training requirement. CJTC certification in and of itself does not translate
into effective police services.
There are a number of
CJTC certified law enforcement officers who have no business being in police
work. Some may be looking for work with gaming tribes, or they may already be
working in Indian country. The only benefit the tribes get from this bill is
access to state police powers at the behest of the state.
The
Sheriffs are very willing to work with the tribes to develop a model policy to
provide a template for working agreements for law enforcement, but we cannot
agree with this bill.
Dow Jones
