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How to Protect Tribal Lands From Our Deadliest Enemies

In 2001, the U.S. Supreme Court dealt a severe below to Indian sovereignty when it decided Nevada v. Hicks, suggesting to states and counties that when their cops are investigating off-reservation crimes, they need not obtain tribal court warrants to conduct searches or arrests on tribal land. The reach of Hicks, however, has been greatly exaggerated, most notably by state cops and prosecutors.

As the editors of the Cohen Handbook on Federal Indian Law correctly observe, “Hicks [did] not disturb the general rule that state officers have no authority to investigate crime involving Indians occurring within Indian country.” Better yet, Hicks did not disturb the common law rule that states must generally honor tribally codified procedures before conducting law enforcement activities in Indian country.

Indeed, as I explain in this Part 2 of my two-part series, codified tribal law enforcement protocols provide a forceful way to defend against encroachment by Indians’ historic deadliest enemies—states—and to cause today’s state Cavalry to respect tribal sovereignty.

This summer, in State v. Clark (Washington, 2013), the Washington State Supreme Court affirmed that state law enforcement officers must follow codified tribal procedures governing the execution of state criminal process on tribal lands.

In Clark, the court affirmed a Colville Indian’s conviction for an off-reservation theft, even though state police did not obtain a tribal warrant before searching his home on reservation trust land. The court found the facts to be “quite similar to those of Hicks: state police searched tribal property for an off-reservation crime.” But in the court’s rationale lies a stark silver lining for Indian Country. That is the court’s explanation “that the State does not infringe tribal sovereignty by searching reservation lands unless it disregards tribal procedures governing the execution of state criminal process.”

In other words, if a tribal government has promulgated clear tribal procedures governing the execution of any state criminal process on the tribe’s lands (see 18 U.S.C. 1151), state and local cops must follow those procedures. This rationale applies to state searches, arrests or extraditions of Indians or non-Indians, as well as to situations “where Hicks is distinguishable, such as where the crime occurs on reservation land over which the State has jurisdiction.”

This moral is especially true for Treaty tribes, which, by virtue of reserved territorial rights, can require state authorities to obtain permission before entering their lands. Indeed, the Clark court went out of its way to point out that it did not “foreclose the possibility that the State would infringe tribal sovereignty by disregarding governing [Treaty-based] procedures.” Citing State v. ex rel. Merrill v. Turtle (9th Cir. 1969).

Ultimately, the Clark decision teaches all tribal governments should promulgate codes with procedures for investigations, searches, arrests or extraditions by state or local police who might have criminal jurisdiction on tribal lands. The procedures should dictate how tribal police or other authorities must be involved in those activities, and how to obtain warrants from tribal court judges.

Among any tribal law enforcement procedures, state police can be required to communicate and coordinate with tribal authorities before carrying any such law enforcement activities on tribal lands. As the South Dakota Supreme Court explained: “the state [cannot] extend its jurisdiction into the boundaries of the Tribe’s Reservation without consent of the Tribe or a tribal-state compact.” State v. Cummings (S.D. 2004). In other words, a state must consult with a tribe in order to obtain its consent—on whatever terms the tribe sees fit—prior to entry upon tribal lands.

In the best-case scenario, a tribe’s law enforcement procedures could take the form of an inter-local agreement or memorandum of understanding with its neighboring counties or municipalities, as Cummings suggests in reference to “a tribal-state compact.” See also Oklahoma Tax Comm’n v. Citizen Band of Potawatomi (1991). If a local government is unwilling to enter into such an inter-governmental arrangement, the tribe’s passage of its own codified procedures might eventually motivate its neighbors to ultimately work out a bilateral agreement that governs the interaction between tribal and non-tribal law enforcement actors on tribal lands.

In all, tribally codified procedures and consultation requirements that govern state or local law enforcement activity on Indian lands, are strong means to countervail Nevada v. Hicks, and protect tribal homelands from incursion by our deadliest enemies.

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.