Beware of the federal task force. While a combined law enforcement entity might make sense in combatting crime in non-tribal communities, the federal task force is a Trojan Horse when it enters Indian country. That is because hiding within the federal task force are state and local cops, which under auspices of criminal law enforcement, are looking to extract monies from tribal lands—in multiple ways.
The Department of Justice and its FBI and Marshals Service are increasingly recruiting state and local cops to so-called fugitive and other task forces. According to the Marshals: “The purpose of regional fugitive task forces is to combine the efforts of federal, state, and local law enforcement agencies to locate and apprehend the most dangerous fugitives and assist in high profile investigations.” While that certainly sounds noble, and Indian country generally needs all the police help it can get, federal task forces are problematic for tribal communities.
Federal task forces do not necessarily include tribal law enforcement agencies, at least insofar as task force activities relate to Indian country. In fact, some task forces purposefully exclude tribal cops from raids or entries on Indian lands – we are all related and cannot be trusted. And if those task force dynamics were not bad enough, DOJ invites state and local police to join those squads and in turn, welcomes them along on incursions into Indian country. State cops, on tribal lands. Enough said. But wait, it gets even worse.
Under banner of the Federal Asset Forfeiture Program, DOJ entices state and local police agencies to federal task forces by promising them a piece of any seized assets. 25 U.S.C. § 524(c)(1). And according to the Fed’s dubiously titled State and Local Equitable Sharing Program, when state or local cops primarily accomplishes a task force asset forfeiture on tribal lands, DOJ gives them at least 80% of the seized assets.
Make no mistake: DOJ’s task force program is designed to incentivize state and local law enforcement’s participation in DOJ activities, including in Indian country. And during this economic climate, tax-starved local cops are all too happy to join federal task forces, and in turn help invade Indian country, as a fundraising activity.
If you think I am exaggerating, consider the website for the FBI’s Secondhand Smoke Task Force, which has already invaded at least one Indian reservation:
Part of the seized property in Operation Secondhand Smoke was a 100,000-square-foot warehouse located in Tupelo, valued at $1.6 million. Because the Tupelo Police Department played an active role in the investigation from the beginning, that warehouse is in the process of being forfeited to the town, and will become the site of the department’s new headquarters. (The Marshall County Sheriff’s Department, also part of the investigation from the start, stands to receive as much as $1 million in forfeitures.)
“We’re ecstatic about getting a new headquarters,” said Tony Carleton, chief of the Tupelo Police Department . . .
“This case really facilitated the relationship between the FBI and the police department,” [FBI Special Agent Carl] Cuneo explained, “. . . the partnerships are continuing to pay off.”
Indeed, it is all about the pay off for those state and local police agencies that collaborate on federal task forces in Indian country.
This is especially true as federal cops assist state cops in extracting state tobacco taxes from Indian tobacco economies. As Ryan Dreveskracht has observed, states have “ramped up . . . enforcement by trailing vehicles that leave the Reservations, inspecting tax stamping agents’ inventories, and secretly conducting surveillance on Reservation smoke shops.” Although such state enforcement activities are nothing new, the states’ more recent collusion with federal task forces (and Big Tobacco) is a trend that should disturb more than just Indian country. Indeed, “[n]othing brings out old-school authoritarianism and brutality in government officials like taxes.”
So between federal forfeiture fund sharing, and state tax collection, federal and state task force members are looking to fundraise from a tribal community near you.
But critically, just because a state and local task force cop might have some form of federal badge or commission, it does not necessarily follow that they possess authority to enter tribal lands. That is because unlike Congress, which enjoys plenary power over Indian affairs, the Federal Executive Branch has no “generalized power to make rules governing Indian conduct” or to “limit sovereignty” by importing state process into Indian country. Miccosukee Tribe of Indians of Florida v. U.S. (S.D. Fla. 2000).
More specifically, DOJ and its agencies lack “authority to promulgate [criminal] procedures for domesticating, serving or enforcing state process in Indian country,” including through the formation of federal task forces. Id; see alsoOrganized Village of Kake v. Egan (1961); Logan v. Andrus (N.D. Okla. 1978). In other words, the FBI and Marshalls simply do not have the power to license state or local cops to act as federal agents in Indian country. And neither the Major Crimes Act, nor Public Law 280, nor any other federal statute gives any DOJ agency that power.
The Federal Task Force is a Trojan Horse. Be careful allowing it onto your lands.
Gabriel S. Galanda is a Round Valley Indian Tribal member and a partner with the Seattle office of Galanda Broadman, PLLC. Gabe defends tribal governments, businesses and members from attack by federal, state and local government. He can be reached at firstname.lastname@example.org.