Throughout the 19th Century the U.S. Cavalry perpetrated the genocide of Indian People. Today’s Cavalry—federal, state and local police—are no longer committed to extermination. But American cops’ flagrant disregard for tribal self-governance when carrying out law enforcement activities on Indian lands, threatens the existence of Indian People.
Thankfully Indian inherent sovereignty and treaty rights can halt non-tribal cops who encroach upon Indian country under the guise of the Major Crimes Act or Nevada v. Hicks and while doing so, threaten tribal territorial autonomy and Indian civil rights.
The linchpin to Indian defense against the modern Cavalry is this: written federal and tribal protocols for inter-governmental law enforcement communication and coordination. To be sure, written—even privately written—federal protocols require the Department of Justice and its FBI, ATF and Marshals Service to cooperate with Indian authorities; while tribally codified procedures dictate how state police, county sheriffs and municipal cops must behave in Indian Country.
As an overarching matter, the federal Tribal Law and Order Act (TLOA) aptly recognizes that “the complicated jurisdictional scheme that exists in Indian country . . . requires a high degree of commitment and cooperation among tribal, Federal, and State law enforcement officials.” Pub. L. No. 111-211, § 202, 124 Stat. 2262 (2010). Accordingly, federal and tribal law enforcement protocols not only protect tribal sovereignty, but they make abundant sense. They can also lead to the best-case scenario: negotiated government-to-government law enforcement protocols, tailor-made to meet both governments’ needs and to fit a particular tribal community.
Part 1 of this two-part series discusses how federal law enforcement protocols in Indian Country can help tribes fend off the Cavalry and demand the United States’ respect for tribal self-rule.
The TLOA requires DOJ to “ensure meaningful and timely consultation with Tribal leaders in the development of regulatory policies and other actions that affect the trust responsibility of the United States to Indian Tribes, any Tribal treaty provision, the status of Indian Tribes as sovereign governments, or any other Tribal interest.” 28 CFR § 0.134(c)(7). In other words, the FBI, ATF and Marshals Service must consult with tribes prior to any federal law enforcement matter of tribal interest.
Since at least 1995—meaning well before the TLOA or President Obama’s Consultation Memorandum—DOJ’s Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes has required the FBI to “consult with tribal leaders in its decisions that relate to or affect the sovereignty, rights, resources or lands of Indian tribes.” The FBI promises that it “will conduct such consultation in light of its mission.”
As DOJ’s Policy suggests, many tribal governments enjoy treaty rights, specifically “no depredations” provisions, which require tribal authorities to hand over Indian suspects to federal authorities for trial; and/or the United States to protect Indians from unlawful acts by “white men” on tribal lands. Express or implicit in such bilateral treaty promises is the notion that federal authorities will consult with tribal authorities regarding the acts of those offenders, before they are to be “delivered up” to appropriate authorities.
It is in that same spirit, Section VI(B)(1)(b) of the U.S. Attorney General’s Guidelines For Domestic FBI Operations encourage FBI agents to share information with tribal authorities, in advance of any FBI agent’s entry upon Indian lands. Likewise, a DOJ-BIA Memorandum of Understanding, at Section IV(6), requires DOJ to notify the BIA when it “receives information indicating a violation of law falling within the investigative jurisdiction of the other agency.” The federal Indian trust relationship, if not treaty obligation, in turn requires the BIA to share that information with the affected tribe.
More local to any particular reservation, the TLOA requires every U.S. Attorney’s Office with Indian Country in its district, to develop an operational plan for “ongoing government-to-government relationship [and] improve[d] communications with each tribe.” In turn, local FBI and ATF agents and Marshals must honor the communications requirements of an inter-local operational plan.
Critically, the Feds must follow such DOJ Indian Country law enforcement protocols, as well as Indian treaty provisions—or the agencies can be sued under the federal Administrative Procedures Act (APA). That is because Section 702 of the APA operates to waive the United States’ sovereign immunity when federal cops fail to follow codified protocols. Presbyterian Church v. United States (9th Cir. 1989).
(Federal cops may also be personally exposed to liability for harm to tribal members associated with breach of federal protocols, per Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics (1971).)
What’s more, federal law enforcement agencies often follow internal, unpublished policies. While the Fed takes the position that its secret regulatory protocols cannot legally bind an agency or its agents, federal courts disagree. As one federal circuit appeals court aptly put it: “To say that the government may escape the consequences of actions [by] taking care not to publish [its] regulation, smacks too much of a ‘heads-I-win – tails-you-lose’ approach unworthy of our government.” New England Tank Industries of New Hampshire, Inc. v. U.S. (Fed. Cir. 1988).
And make no mistake about it, DOJ (like Interior) has its own unwritten or secret—even email—policies of tribal implication. See Los Coyotes Band of Cahuilla & Cupeno Indians v. Salazar (S.D. Cal. 2011) (ruled for the tribe under the APA where a federal agency failed to comply with an unwritten—“sort of an internal”—policy).
Finally, as the United States begins to honor the free, prior and informed consent mandate of the U.N. Declaration on the Rights of Indigenous Peoples, consider the international legal mandate that Indigenous Peoples at least be consulted prior to any nation-state entry upon their lands. For example, the Restatement (Third) Foreign Relations Law of the United States affirms the good faith requirement of pre-notification and consultation before the United States ever enters a treaty partner’s territory.
Since law enforceable domestically against the United States via the APA includes “common law claims based on the present-day law of nations,” U.S. v. Dire (4th Cir. 2012), we are trending towards domestic enforcement of international good-faith consultation norms against federal agents who misbehave in Indian Country.
With all of that said, and when all is legally and politically said and done between a tribe and its federal trustee, there exists an opportunity for today’s Cavalry to be converted into tribal partners—in order to help make Indian Country a better and safer place.
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.