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A California odyssey: Senate Bill 911

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SACRAMENTO, Calif. ?The year and a half-long odyssey of Senate Bill 911 is closer to a resolution though problems still remain. The bill, which would give tribal police officers the same status as county and municipal law enforcement, is running into problems over the issue of liability.

The Senate bill, sponsored by Sen. Richard Alarcon, D-Sylmar, is the result of 18 months of effort by the California Attorney General's Office of Native American Affairs, which has attempted to mediate a solution.

A few contentious issues have been resolved. One major hurdle was the state of California Police Officer Certification and Training (POST) standards for tribal officers. Some tribal law enforcement groups had concerns that by requiring POST certification, they would have to remove valuable officers for training that they could ill-afford to lose from the field.

Olin Jones, co-director of the Office of Native American Affairs, said a consensus has more or less been reached on the issue of POST certification.

At an early August meeting a subcommittee of state law enforcement and tribal representatives came to an agreement that would require California tribal law enforcement to adhere to the POST certification.

"Everyone decided that the bottom line is that you must have POST certification to be a full-fledged law enforcement officer in this state," Jones said.

The unresolved and more contentious issue deals with a limited waiver of sovereign immunity to allow persons injured or mistreated by police officers to have a legal recourse against tribal governments. Many tribes feel any waiver would erode their hard-won sovereignty.

Sally Palmer, the legislative analyst for the Cabazon tribe, said tribes have offered to give a limited waiver of sovereign immunity that would essentially put a $5 million cap on all liability lawsuits filed.

Justice Department sources say the main problem is that the California State Sheriff's Association opposes the cap limit because other state law enforcement agencies have unlimited liability and do not think it is fair to allow tribal police to have a lower liability.

However, Palmer and Cabazon Chairwoman Brenda Soulliere both say the $5 million cap is more than fair. Furthermore, Soulliere points out that even the more high-profile peace officer liability suits do not exceed $5 million.

"Look at the Rodney King case, for example," Soulliere said. "That was settled for $3.8 million. It is highly doubtful that we would even have a case that would exceed that."

Palmer said that the $5 million figure was taken from gaming compacts tribes signed with Gov. Gray Davis. In the gaming compacts, civil liability on tribal lands was set at $5 million and Palmer said the tribes arrived at that number to keep the amount of liability consistent.

Palmer and Soulliere say there is precedent for setting a liability cap for tribes. For example, the Quechan Nation at Fort Yuma on the California-Arizona border entered into an agreement with Imperial County in which the tribe is limited to a $3 million liability for its peace officers, who are also Imperial County Sheriff's deputies.

Other than liability, the bill's backers say the measure creates a unique solution to the problems tribes have faced with internal law enforcement.

The bill basically calls for tribes to set up law enforcement situations that best serve each individual tribe. This point is especially important because of the range of issues for each individual tribe.

The larger Southern California tribes, led by Cabazon, reportedly are spearheading the issue. For them the issue has recently taken on increased urgency in the wake of several large-scale casino complexes that have proliferated on the periphery of the Southern California metropolitan areas.

Increased visitors means increased crime and many of the tribes have an unarmed security staff that can only make citizen's arrests.

Barona Vice Chairman Donald LaChappa said his tribe very much wants to "get this done." Barona has recently, among other things, opened a casino, hotel and large parking structure. He said it is getting increasingly difficult to get a handle on the law enforcement problems with the large number of visitors.

Though the casino-hotel complex offers one of the more visible reasons for full-fledged tribal peace officers, some of the other law enforcement problems go back several decades. LaChappa said there is a lake on the reservation where water levels go up and down with the seasons and poachers have been taking ancient tribal artifacts.

"The problem is that we have to rely on citizen's arrest in such cases. What if some big guy is doing the taking (of artifacts) and some little guy is trying to stop him. He'll get knocked down. By the time a cop can get out there, the guy's already made off with the artifacts," LaChappa said.

More rural Northern California tribes also have a special interest in the bill. Many reservations are remote and difficult to police from afar. Often it takes sheriff's deputies hours to respond to reservation calls.

The bill, however, is not yet in its final form. Meetings mediated by the California Attorney General's office are scheduled in several localities around the state so tribal governments and law enforcement can provide input. The meetings will provide bases for amendments to the bill.

Jones said different sub-committees within a Tribal and State Law Enforcement Working Group have been established to address each of the main points in the issue.

The first deals with liability, the second with general law enforcement issues, the third with POST and the final two deal with federal and telecommunications issues.

"We've decided to do fixed regional meetings across the state and we'll invite some folks from subcommittees along with Sen. Alarcon or members of his staff where we'll take general comment," Jones said.

Furthermore, Jones stressed the fact his office is neutral on the issue in general, though he feels the problem of lack of consistent tribal law enforcement is a serious one.

Floyd Stokes, chief of police for the Hoopa tribe in Humboldt County, knows how serious it is. Stokes' department is the only one in California that enjoys the benefits of allowing its officers full peace officer status.

The problem is this status is precarious and subject to the whims of the local sheriff. In this case, Sheriff Dennis Lewis is responsible for the fact Hoopa tribal police have full deputy status. Stokes said they have been lucky with Lewis, but fears his replacement may not be so friendly to Hoopa tribal law enforcement needs.

This is precisely the reason that Stokes said he supports the Senate bill. He said it would allow tribal police forces to have a status roughly equal to that of a county sheriff. Stokes maintains tribal police entities would still have close communication ties with other local law enforcement entities.

To reinforce his point, Stokes tells of an incident before the cross-deputization of the Hoopa tribal police. He said a Hoopa woman came home to find that her house had been burglarized. There was broken glass all over the kitchen and blood of the perpetrator on the floor. She said it took two days for sheriff's deputies to respond, and when they did, they chastised her for cleaning up the mess in her kitchen.

On the issue of POST certification, most tribes and law enforcement leaders agree there is a small degree of difference between tribes and law enforcement agencies.

In Stokes' department, the officers meet the state criteria but do not, as a department, have POST certification. Many smaller tribal police forces like the one at Hoopa can ill afford to lose officers for several weeks while they obtain the certification.

One of the bill's provisions would allow tribal police officers to pursue suspects off reservation. Stokes likens this provision of the bill to that of federal police on government grounds who are allowed to chase suspects off federal property.

Since many California reservations are "checkerboarded" or non-contiguous there is a problem of tribal officers traveling on off reservation roads to respond to calls on another parcel.

Cabazon is one such checkerboarded reservation and at least one Cabazon police officer was arrested by the local sheriff's department for impersonating an officer while driving on a non-reservation stretch of highway. The bill seeks to clear up any such misunderstandings by allowing tribal officers access to areas off reservation while performing their duties.

Another issue in this complex web of jurisdiction is which penal codes are most applicable for certain situations. California is a Public Law 280. PL-280 is a federal statute that largely removes federal responsibility for tribal law enforcement and gives it to the states.

Six states, including California are subject to this law.

Sen. Alarcon said the bill would weave together complex jurisdictional issues of federal, state and tribal laws, thus giving tribal police officers perhaps the greatest scope of law enforcement duties of any law enforcement agencies.

Alarcon refutes press reports that he is leading the state Senate effort because tribes have contributed large amounts of money to his last campaign. He said he received more than $30,000 from tribes, but added this is only a small portion of the more $400,000 he received in total. He said he believes law enforcement may have contributed a similar dollar amount.

"I'm doing this because we have inadequate tribal law enforcement in California. As a former history teacher, I don't segregate this from the negative history of the U.S. dealings with the Indians. We have a debt to pay to the Native American community because we have not effectively provided for tribal law enforcement," Alarcon said.

For now, Alarcon said the dialogue process is proceeding and he expects some amendments and changes to the bill. He already made some to reflect the consensus of the Tribal and State Law Enforcement Working Group subcommittee meetings.

As of Sept. 5, the amended bill was re-referred to the Senate Public Safety committee. Alarcon said he hopes the bill will reach the Senate floor in January, but for now no date has been set.