Around 1:30 a.m. on August 10, 2005, while on patrol in the Lummi Reservation, Officer Mike McSwain of the Lummi Nation Police Department observed a car driving toward him with its high beams on.1 As the car approached, the driver, later identified as Loretta Lynn Eriksen, failed to dim her lights in response to McSwain’s signaling with his own high beams. The car then drifted over the center line and came within a few feet of his patrol car.2 After Eriksen’s car drifted back into its lane, McSwain turned around, switched on his overhead lights, and followed her car.3 The vehicle stopped at a gas station off the reservation, and McSwain witnessed a passenger jump out of Eriksen’s car and run around the front to the driver’s side as Eriksen crawled into the passenger seat.4 McSwain approached the car and noted that “Eriksen smelled strongly of intoxicants, had bloodshot and watery eyes, and spoke in slightly slurred speech.”5 When asked why she had switched seats, Eriksen claimed that she had not been driving.6 McSwain ascertained that Eriksen was not a tribal member, called for a Whatcom County deputy sheriff, and detained Eriksen in the back of his patrol car. When the deputy sheriff arrived, he arrested Eriksen, who was later charged with driving under the influence (DUI).7
In the district court, Eriksen argued her case should be suppressed because McSwain did not have the authority to stop and detain her outside the bounds of the reservation.8 In 2009, Eriksen’s case reached the Washington Supreme Court, which ruled in a unanimous opinion that McSwain had the inherent sovereign authority, as well as statutory authority under the state’s fresh pursuit statute, to stop and detain Eriksen.9 The court reconsidered the case a year later, and a divided court upheld the conviction only on inherent sovereignty grounds.10 In 2011, the court reconsidered the case yet again, this time holding that “[t]he Lummi Nation’s inherent sovereign powers do not include the authority to stop and detain outside the tribe’s territorial jurisdiction for a traffic infraction.”11 Therefore, the court determined that McSwain was powerless to prevent a suspected drunk driver from continuing on her way once she crossed the reservation border and that the “policy problems” created by such a holding, “such as the incentive for intoxicated drivers to race for the reservation border,” must be addressed “by use of political and legislative tools.”12
While the procedural posture of the Eriksen cases is unusual, the court’s confusion and changing opinions regarding the tribe’s authority to pursue suspects off the reservation are hardly surprising. Law enforcement in Indian country is infamously a “jurisdictional maze,” “complicated by the conflicting claims of three sovereigns to law enforcement authority.”13 Adding to the complexity is the fact that the maze is not static; the federal government has changed the jurisdictional landscape numerous times by delegating pieces of its authority to the states14 and recognizing previously latent inherent tribal authority.15
Additionally, the jurisdictional maze is complex in part because most tribes are only recently in a practical position to exert their policing power and criminal jurisdiction.16 The rise of modern tribal police forces can be traced back to the 1970s, when the federal government began a policy of self-determination that included several acts granting funds to support the creation of tribal police forces.17 In the last twenty years especially, tribal police departments have experienced rapid growth.18 As the number of tribal police officers grows, it becomes more likely that situations will arise that require confronting unresolved jurisdictional issues.19
This Chapter addresses one of those murky, uncertain areas of criminal jurisdiction related to Indian country: the authority of tribal police officers to stop and detain criminal suspects pursued from Indian country to state land in “fresh pursuit.” Section A reviews tribal law enforcement’s criminal jurisdiction and lays out the practical gap in law enforcement stemming from the limitations on tribal officers’ authority. Section B explores and rejects the possibility of remedying the law enforcement gap through judicial recognition of tribes’ inherent authority to engage in fresh pursuit. Section C examines the primary ways in which state and local actors have addressed the policing gap — through local agreements and state statutes — as well as the barriers impeding these methods from fully addressing the issue. Section D argues that congressional action is needed to best handle the concerns created by tribal officers’ inability to engage in fresh pursuit. Section D also considers the political and constitutional hurdles to Congress granting tribal officers this power, and proposes some guiding principles for future legislation on the issue.
1. Legal Landscape. — Tribal courts’ jurisdiction over crimes committed in Indian country is governed by competing claims of federal, tribal, and state sovereignty manifested in a complex array of laws that create a system of jurisdiction based on location,20 type of crime,21 race of the perpetrator,22 and race of the victim.23 As this Chapter is concerned primarily with the authority of tribal police officers in a specific situation, a comprehensive explanation of the entirety of this jurisdictional maze is beyond its scope;24 relevant here is the extent of tribal police jurisdiction. The dependence of tribal court jurisdiction on the race of the parties involved creates complications when policing in Indian country: officers do not know whether their courts have jurisdiction over a suspect until ascertaining whether the person is an Indian. Therefore, courts have recognized that in order for tribes to effectuate their inherent authority to make and enforce laws over Indians within Indian country, tribal officers must have broader jurisdiction than tribal courts — they must have the authority to make investigatory stops of anyone within Indian country and detain suspects over whom tribal courts do not have jurisdiction until a state officer arrives and takes over.25 As a result, although tribal officers face uncertainty as to their arrest power, which depends on whether a suspect is Indian, their power to stop and detain any individual in Indian country is much more assured.
However, the current jurisdictional framework is inadequate to handle the issue of fresh pursuit.26 Fresh pursuit refers to the common law right of law enforcement officers to pursue felons across jurisdictional boundaries.27 Whether a pursuit is “fresh” depends on the totality of the circumstances, but immediacy and continuousness are universally required.28 It is currently unclear in many states whether tribal police have the authority to engage in fresh pursuit onto state land. Almost all courts to confront the issue of whether state officers have the authority to engage in fresh pursuit of an Indian suspect into Indian country have determined the state officer has the power.29 But only the Washington Supreme Court, in Eriksen I and Eriksen II, has found tribal officers have that power independent of some other authority.30 The issue has rarely reached appellate courts,31 but when it has courts have either found statutory authority32 or, like the Washington Supreme Court in State v. Eriksen (Eriksen III),33 found no authority.34
2. Practical Landscape. — Tribal officers’ inability or uncertain authority to engage in fresh pursuit creates a practical gap in policing.35 Fresh pursuits of drunk drivers are particularly concerning. Under the current laws in many states, once a suspect crosses the border tribal officers have no authority to stop a drunk driver from continuing to drive,36 incentivizing drivers to engage in reckless races for the border that undermine safety both within and without Indian country. Tribal officers are forced to watch drunk drivers continue on their way, powerless to do anything but notify other law enforcement agencies of the crime.37
Alcohol-related offenses are exceptionally problematic on tribal lands. American Indians and Alaskan Natives have the highest alcohol-related motor vehicle mortality rate of all racial and ethnic populations.38 In 2012, approximately forty-two percent of fatal crashes involving American Indians and Alaskan Natives were alcohol related, compared to thirty-one percent in the total United States population.39 The Bureau of Indian Affairs (BIA) estimated that in 2009, fifty-two percent of all traffic fatalities on reservations involved alcohol.40 That same year only thirty-two percent of traffic fatalities in the United States involved a drunk driver.41 And, more generally, American Indian and Alaskan Native adult motor vehicle–related death rates are 1.5 times higher than those of whites or blacks.42 According to the BIA’s safety assessment of reservation highways, to combat the widespread problem of DUIs on reservations, enforcement of drinking and driving laws “must be aggressive,” and tribes “need to establish a zero tolerance attitude about the behavior.”43 But without the power to engage in fresh pursuit, the ability of tribal law enforcement to fully enforce tribal drunk driving laws is seriously undermined.44
Tribes hold a unique legal status “between foreign and domestic states,”45 which the Supreme Court has described as that of “domestic dependent nations.”46 Tribes are “separate sovereigns pre-existing the Constitution”47 that have been “folded into the United States and its domestic legal framework.”48 As a result of tribes’ dependent status, Congress has exclusive, plenary power over them.49 Thus, tribes possess all the powers of any other independent nation except those (1) ceded by treaty, (2) withdrawn by Congress, or (3) incompatible with tribes’ domestic dependent status.50 The precise reach of the third category is unclear, but tribes’ power is especially strong when its exercise “is necessary to protect tribal self-government or to control internal relations.”51 The further a tribe reaches outside its land and members, the more likely a court will be to determine the tribe’s assertion of authority is incompatible with its domestic dependent status.52 This retained sovereignty is inherent — it is not a delegation of federal power, but an independent source of authority.53 For example, when a tribe prosecutes, convicts, and punishes a member for violating tribal law it is acting as an independent sovereign, exercising its innate power to govern itself.54
The federal courts have been upholding tribal sovereign powers for over a hundred years.55 This isn’t to say that the judiciary has always championed tribal authority,56 but the Supreme Court has upheld under the inherent authority framework tribes’ core governmental powers: the power to tax57 and the power to assert criminal58 and civil59 jurisdiction over all members and, under some circumstances, nonmembers.60 Thus, when seeking recognition of tribes’ ability to exert their power, it is natural to look to the judiciary to recognize the power under tribes’ inherent authority. Under the inherent authority theory, tribes have the power to engage in fresh pursuit out of Indian country as a part of their intrinsic sovereignty, and because (1) that power is not inconsistent with their “domestic dependent” status, (2) tribes have not relinquished it via treaty, and (3) Congress has not abrogated it, the authority still resides with the tribes.61 The first two Eriksen opinions exemplify the inherent authority approach. Both opinions frame the fresh pursuit authority as an extension of the tribe’s law enforcement power within its reservation.62 The court explained that “[t]ribes have an inherent power of self-governance, which includes the power to prescribe and enforce internal criminal laws,”63 and without the power to pursue suspects out of Indian country an offender could race for the border, undermining self-governance and public safety.64 Therefore, “the fresh pursuit doctrine must apply to tribes because the doctrine is a necessary means of actualizing the tribe’s inherent power to enforce its internal laws.”65
Inherent authority to engage in fresh pursuit is very appealing: it respects tribal sovereignty and forecloses state interference with that authority. Indeed, scholars usually argue for this conclusion.66 However, there are serious flaws with this theory, the most problematic of which is that fresh pursuit is not a part of sovereignty under international or interstate law. Internationally, nations have the customary right of fresh pursuit out of their territorial waters, but pursuit over land borders is permitted only with the express consent of the countries involved.67 Similarly, states do not have inherent authority to engage in fresh pursuit into other states.68 Tribes cannot be said to retain the power of fresh pursuit when it does not seem to be a piece of the sovereign pie in the first place. The traditional analysis to determine whether tribes retain the authority to exercise a certain power — determining whether the power has been ceded by treaty, abrogated by Congress, or is incompatible with tribes’ dependent status — is irrelevant because that inquiry assumes that the power is an aspect of sovereignty. Because fresh pursuit outside of a nation or state’s territory is not a part of sovereignty, it cannot be an inherent power retained by the tribes; they have not lost the power because they never had it in the first place. Furthermore, though there is a common law right to intrastate fresh pursuit,69 comparing Indian country to just another municipality within a state would be an untenable affront to tribal sovereignty70 and incompatible with the legal status of tribes.71
Moreover, even if the power to engage in fresh pursuit were an original piece of sovereign power, the case here for inherent authority would be unlikely to prevail in the judiciary. In the first two Eriksen opinions, the Washington Supreme Court applied the civil jurisdictional test from Montana v. United States72 to determine whether tribal officers had the inherent authority to stop and detain non-Indians outside of Indian country.73 The Montana test is used to determine a tribe’s civil regulatory authority over non-Indians, but the Court has imported it to the civil adjudicatory context as well.74 It is unclear whether Montana is the proper test for inherent authority over non-Indians in a criminal context, but because Montana is the only test the Court has provided to determine when a power would be inconsistent with tribes’ dependent status, the importation of Montana to criminal jurisdictional analysis is a natural extension of the current caselaw. In Montana the Supreme Court explained that tribes retain inherent sovereign power to exercise civil regulatory jurisdiction over non-Indians on their reservations when jurisdiction relates to activities arising from (1) “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements”75 or (2) conduct “within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”76 But the second Montana exception has subsequently been construed extremely narrowly, and language in recent cases suggests the exception might be limited to situations in which “tribal power must be necessary to avert catastrophic consequences.”77 The ability to engage in fresh pursuit out of Indian country certainly affects the safety of the tribe because without it suspects are incentivized to race for the border.78 Yet the fact that tribes have thus far survived without this power belies the claim that it is “necessary to avert catastrophic consequences.”
The fresh pursuit problem in Indian country has not gone unnoticed; various interested parties have attempted to address the issue in their territories. The primary approaches have been agreements between tribes and local governments or state statutes that confer limited authority on tribal officers outside of Indian country.79 These solutions have the potential to resolve the fresh pursuit problem and have done so in certain situations, but both have serious practical stumbling blocks that often undermine their ability to entirely manage the problem.
1. Cooperative Agreements. — Tribes can contract around uncertainties in law enforcement authority by entering into cooperative agreements with federal, state, county, or city governments.80 Agreements may be narrowly tailored to address only the fresh pursuit issue, or more expansive to give tribal officers the authority to arrest offenders.81 Through cross-deputization agreements, governments can delegate law enforcement authority to officers of another jurisdiction.82 The most common form of a tribal cross-deputization agreement is a one-way agreement that empowers tribal officers to enforce state laws over Indians and non-Indians, but some tribes have entered into two-way cross-deputization agreements in which, for example, tribal officers are cross-commissioned as county officers and county officers are given tribal officer status.83 Through such agreements tribes and local governments can bargain for and clarify the authority of tribal officers to engage in fresh pursuit onto state land.84
It is unclear what percentage of tribal officers are authorized to engage in fresh pursuit under cross-deputization or other more limited cooperative agreements. In 2002, of the 165 tribal law enforcement agencies with at least one sworn officer with arrest powers, just over half had some sort of cross-deputization agreement with a neighboring nontribal authority.85 But there is reason to think these numbers may have increased. Two of the purposes of the Tribal Law and Order Act of 201086 (TLOA) were “to increase coordination and communication among Federal, State, tribal, and local law enforcement agencies” and “to empower tribal governments with the authority, resources, and information necessary to safely and effectively provide public safety in Indian country.”87 To that end, “[t]he Attorney General may provide technical and other assistance to State, tribal, and local governments that enter into cooperative agreements, including agreements relating to mutual aid, hot pursuit of suspects, and cross-deputization . . . .”88
Cooperative agreements can do a great deal of good in Indian country by adding at least some degree of certainty.89 There are numerous examples of law enforcement agreements that have increased safety while promoting mutual respect and tribal sovereignty,90 and many advocates of agreements between tribes and nontribal governments have detailed their benefits.91 However, some observers criticize cooperative agreements as too dependent on political goodwill, too likely to increase state jurisdictional encroachments, and too temporary to provide long-term clarity in Indian country.92 For example, California’s Humboldt County Sheriff recently unilaterally suspended a twenty-year-old cooperative agreement with the Hoopa Valley Tribe, revoking the peace-officer powers of the Hoopa Valley Tribal Police Department.93 Dissolution of the agreement came after months of fighting within the tribe and between the tribe and the state.94 Since the failure of the cooperative agreement, the county has increased its presence on the reservation, dedicating additional deputies to the area with plans to add more.95 The tribe and county indicate that they are open to a renewed agreement, but the degraded trust between the parties makes such an agreement unlikely.96
Though cooperative agreements with states rather than with local governments may alleviate some of these problems, this alternative tactic is no panacea. On the one hand, statewide agreements are unlimited in duration, wider in reach, and less susceptible to the whims of local politics.97 On the other hand, agreements between states and tribes are often complicated or even blocked by longstanding animosity between the governments and statewide hostility from non-Indians.98
Therefore, tribes cannot rely exclusively on cooperative agreements to deal with gaps in law enforcement: these agreements are not always possible. Cooperative agreements frequently require “intense and complicated negotiations . . . . Often, many barriers arise during negotiations[,]”99 which can prove particularly troublesome when relations between tribes and state and local governments are already poor. As seen in the case of the Hoopa Valley Tribe and Humboldt County, “one can attribute the infrequency of cross-deputization agreements to the suspicion and lack of trust that reportedly prevails between tribal police and surrounding law enforcement agencies.”100 Moreover, according to Troy Eid, the Chairman of the Indian Law and Order Commission, “[the Tribal Law and Order Act] is doing little to improve law enforcement cooperation between Indian Tribes and nations, on the one hand, and state and local officials on the other.”101
2. State Statutes. — Many states have recognized the troubling barriers to policing in and around Indian country and have taken steps to ameliorate the problem by granting some level of state authority to tribal officers. The reach of this power varies among states, ranging from granting specific powers within a reservation to officers of a specific tribe,102 to explicitly authorizing specific state or local officials to negotiate cooperative agreements103 or commission tribal officers as peace officers,104 to granting all tribal officers who meet certain requirements peace officer status.105 Most of these statutes leave open the possibility for agreements that grant tribal police authority outside of Indian country whether in fresh pursuit or not,106 and a few overtly extend grants of power to instances of fresh pursuit.107 Despite wide variety in the scope and administration of authority, almost all state statutes that grant power to tribal police require that before tribal officers can take advantage of the state’s grant of power, they undergo some sort of state training and certification process as well as hold a certain level of insurance, and tribes must assume all liability for the actions of their officers and agree to waive their sovereign immunity in claims arising from that liability.108
In certain situations these statutes can alleviate or remedy the practical gap in policing in and around Indian country. For example, in Arizona, tribal police officers who meet certain qualifications and training standards “shall possess and exercise all law enforcement powers of peace officers in [the] state.”109 In State v. Nelson,110 a tribal officer stopped a suspected drunk driver outside of Indian country and detained the suspect until a local police officer arrived and took over the investigation.111 A state appellate court upheld the validity of the tribal officer’s actions, finding that the tribal officer had the authority to stop and detain the defendant under the statute because he met the requisite qualifications and training standards.112
In addition to state statutes that explicitly grant tribal officers authority, at least one state, Oregon, has interpreted its general peace officer statute to include tribal police officers. In State v. Kurtz,113 a tribal officer pursued the defendant off the reservation after observing him commit a traffic violation.114 The defendant eventually stopped and was charged, inter alia, with resisting arrest by a peace officer.115 On appeal the defendant argued that the tribal officer was not a “peace officer” under the statute.116 The statute defined “peace officer” to include enumerated law enforcement positions “and such other persons as may be designated by law.”117 The court determined that tribal law enforcement officers fell under the “other persons” category and were therefore peace officers able to arrest a suspect who committed a traffic violation on the reservation but was not stopped until off the reservation.118 Shortly after Kurtz, the Oregon legislature passed an amendment to its definition of peace officer to include tribal officers who met various training, insurance, and other criteria similar to those in other state statutes.119
Similar to local agreements, state statutes can solve the law enforcement gap over a certain area, but unlike local agreements, statutes are usually less subject to the whims of a small number of political actors. However, most state statutes do not fully address the need for fresh pursuit authority. Some states strictly limit their grants of power to inside the reservation boundaries,120 leaving tribal police in the same situation with regard to fresh pursuit as they would have been without a statute. The statutes that require cooperative agreements or appointment by the chief of the state police before tribal police authority may be expanded adopt all the drawbacks of cooperative agreements. Such systems may result in significant improvements in policing and intergovernmental relations, but they remain just as susceptible to the whims of politics as any other cooperative agreement.121
Additionally, the statutes that avoid these issues almost all have training, liability, and insurance requirements that often make it impossible for tribal police departments to provide the resources necessary for all, or even some, of their officers to qualify for expanded authority under the statute. For instance, although Washington has a statute that grants tribal law enforcement members peace officer status with the power to arrest in fresh pursuit within the state,122 the officer in the Eriksen cases did not qualify.123 It is incredibly expensive for a tribe to operate a police department,124 and for many tribes there is no room in the budget to accommodate the added costs of these statutory requirements. However, at least one state has delegated expanded authority to tribal police without imposing conditions. Nevada allows tribal officers to exercise narrow authority, including the ability to engage in fresh pursuit, without training, liability, insurance, or other requirements.125
Finally, as with local agreements, state statutes are not always possible. This is unsurprising considering that states have traditionally had no authority in Indian country,126 and the relationships between states and tribes have often been fraught.127 Whether due to political apathy or opposition, a conscious preference for local governments to broker cooperative agreements, or some other reason, many states that have Indian tribes within their borders do not address the authority of tribal officers in their state statutes.128
The current situation in many states, in which tribal police officers may not engage in fresh pursuit out of Indian country, is untenable as a matter of safety and policy. As the Washington Supreme Court has noted, limiting tribal power in this situation “create[s] serious policy problems, such as the incentive for intoxicated drivers to race for the reservation border.”129 Recognition of inherent authority via the courts is not a realistic solution. To be sure, local agreements and state statutes address the problem across many jurisdictions and could do so for many more. The contemporary legal complications surrounding Indian country practically necessitate communication and agreements among tribes, states, and local governments. Fresh pursuit authority should be a part of those conversations, and the possibility of state statutes or local agreements to address the issue deserves full consideration. Yet, as discussed above, these measures are often unavailable, untenable, or unreliable; thus, something else is needed. Uniform, nationwide, and more durable authority enacted to best promote safety and respect the sovereignty of tribes and states is needed to impose a measure of certainty in this murky area of law enforcement. Such a grant of authority can come only from Congress.
1. Reasons for Federal Intervention. — From the founding of the United States, the federal government has mediated the relationship between Indian tribes and the states, with the role of the states in this process severely limited or nonexistent.130 The historic bar on state interference with Indian affairs has softened over time as the federal government has delegated some of its authority to the states.131 However, it is still primarily the responsibility of the federal government, not the states, to act in Indian country. In fact, Congress has shown itself increasingly willing to wade into issues of tribal courts’ criminal jurisdiction in recent years.132 Additionally, the relationship between the federal government and the tribes has historically been much less hostile than the relationship between the states and the tribes.133 Therefore, federal action in this arena would be practically advantageous over state action as well as aligned with the federal government’s historical role.
However, there are political considerations for Congress to contemplate before acting. States will likely see an expansion of tribal authority onto state land, no matter how limited, as impinging on state sovereignty. But the power proposed — to engage in fresh pursuit and detain suspects until state officers arrive and take control — is a narrow one, and the problem addressed — a practical gap in law enforcement that may permit drunk drivers to endanger themselves and others — is a serious one. The proposed legislation would not prevent state law enforcement officers from policing any part of their jurisdiction,134 grant tribes arrest or adjudicatory jurisdiction over non-Indians, or require any action or expenditure by the state.135 Moreover, the safety concerns implicated by the gap in law enforcement affect states as well as tribes. Once intoxicated drivers have exited Indian country, they are necessarily threatening the safety of others on state land. Also, by taking advantage of the resources of tribal police departments by arresting drunk drivers already detained by tribal officers, state law enforcement departments can more effectively police their own jurisdictions.
2. Federal Authority. — Congress has the authority to delegate power to tribes,136 but that power is limited. Whether Congress has the constitutional authority to pass a statute that would give tribal officers the authority to engage in fresh pursuit and detain suspects depends on the interaction between Congress’s plenary power over Indian affairs and the states’ rights under the Tenth Amendment. The Tenth Amendment states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”137 Therefore, unless the power to pass such a statute is rooted in the Constitution, the power belongs to the states.
The Supreme Court has interpreted the Constitution to grant Congress “broad general powers to legislate in respect to Indian tribes, powers that [the Court] ha[s] consistently described as ‘plenary and exclusive.’”138 The Court has primarily situated the source of Congress’s plenary power over Indian affairs in the Indian Commerce Clause,139 but has also found supporting authority in the Treaty Clause.140
The Supreme Court has not specifically addressed the question of whether the Tenth Amendment limits Congress’s plenary power over Indian affairs.141 However, there are several reasons to believe that even if the Tenth Amendment limits Congress’s plenary power, a delegation of federal power to the tribes to engage in fresh pursuit out of Indian country onto state lands for the purpose of stopping and detaining suspects would not be proscribed. First, federal delegation of powers to the tribes is not unprecedented. For example, in United States v. Mazurie,142 the Supreme Court affirmed Congress’s power to delegate to Indian tribes the authority to regulate the distribution of alcoholic beverages by non-Indians on land held in fee by non-Indians in Indian country.143 Moreover, the D.C. Circuit upheld as a permissible delegation the Clean Air Act Amendments of 1990,144 in which Congress delegated authority to tribes to regulate air quality on all land within reservations.145 While a fresh pursuit law would admittedly be a more expansive congressional delegation in that it would grant off-reservation authority, such an extension would be minimal because the suspected criminal behavior would be observed and the officer’s pursuit would begin in Indian country.
Second, although the Supreme Court has not confronted the issue, lower courts have heard and rejected Tenth Amendment challenges to arguably more intrusive federal laws promulgated under Congress’s plenary power. For instance, although in Seminole Tribe of Florida v. Florida146 the Supreme Court declined to address the Tenth Amendment challenge to the Indian Gaming Regulatory Act’s147 (IGRA) obligation that states negotiate with tribes in good faith,148 lower courts that have decided the issue have generally rejected Tenth Amendment arguments.149 Similarly, the Indian Child Welfare Act of 1978150 (ICWA), which mandates certain procedures the state must follow when dealing with custody cases involving Indian children,151 has withstood several Tenth Amendment challenges.152 In comparison with IGRA and ICWA, the proposed fresh pursuit legislation would grant tribes an extremely narrow power153 and impose only minimally on state sovereignty. The proposed law would put no affirmative obligation on the state and would not diminish the state’s authority to police its territory. It would only prohibit the state from stopping tribal officers from exercising the authority delegated to them.
Finally, this would not be the first time that courts have recognized Congress’s authority to extend tribal authority outside the reservation. ICWA grants tribal courts concurrent jurisdiction with the state over child custody proceedings involving an Indian child who is domiciled outside of a reservation. In the absence of “good cause to the contrary,” the state must transfer the case to the tribe.154 The Supreme Court has also recognized the reach of tribal sovereign immunity to activities the tribe conducts outside Indian country and explicitly has noted it is the prerogative of Congress to alter the immunity.155
3. Elements of the Statute. — The jumbled mess that is jurisdiction relating to Indian country greatly needs the attention of a Congress with an eye toward comprehensive solutions. However, history indicates that by practical necessity Congress has enacted reform in Indian country by inches, not miles, and to address specific crises, not widespread disarray.156 A federal statute granting tribal officers the authority to engage in fresh pursuit is just that: an extremely narrow grant of authority that merely expands the ability that tribal officers already have to stop and detain within Indian country to situations of fresh pursuit. Beyond being more politically palatable, a narrow statute sidesteps the elements of state statutes that make them so difficult for tribes to implement. State statutes almost always place a series of conditions on grants of power, conditions that become increasingly important the more authority that is bestowed. States have a legitimate interest in ensuring that the police officers they delegate state power to are properly trained and insured, but this interest is greatly reduced when the power delegated is a very limited extension of what those officers can already do.
Additionally, the federal statute should be framed as an extension of the power tribal police already possess to enforce laws for the safety and protection of Indians within Indian country, specifically to alleviate the problem of drunk drivers. This narrow justification has two advantages. First, although the fresh pursuit problem undermines safety for non-Indians outside of Indian country, as discussed above, Congress’s authority to pass such a statute derives from its plenary power over Indian affairs.157 While Congress’s power over Indian affairs is broad,158 it is not limitless. Accordingly, for the statute to withstand constitutional scrutiny, it should be justified and framed as an effort to alleviate a specific problem in Indian country undermining the safety of Indians.159 And second, by focusing on the specific issue of drunk driving in Indian country, tribes may be able to join forces with other lobbying groups such as Mothers Against Drunk Driving to pitch the proposed legislation as addressing a DUI enforcement issue with particular ramifications on Indian country rather than as an exclusively Indian issue.
In thinking about the specifics of a federal statute granting tribal officers the authority to engage in fresh pursuit, the most natural place to look — state statutes that bestow this power — are of little assistance. State statutes that address this issue have done so by granting the more general peace officer authority and are not specifically drafted for the fresh pursuit situation.160 Therefore, when seeking guidance on the narrower issue of fresh pursuit, the most apt model is not state law regarding tribal policing authority, but the Uniform Act on Fresh Pursuit regarding interstate fresh pursuit.
The Uniform Act on Fresh Pursuit (the Act) is a model statute adopted in nearly all states that allows officers of another state to engage in fresh pursuit across state lines to arrest a suspect,161 which states:
A member of a state, county, or municipal law enforcement unit of another state who enters this State in fresh pursuit and continues within this State in fresh pursuit of a person to arrest the person on the ground that the person is believed to have committed a felony in the other state has the same authority to arrest and hold the person in custody as has a member of a duly organized State, county, or municipal corporation law enforcement unit of this State to arrest and hold a person in custody on the ground that the person is believed to have committed a felony in this State.162
The Act cannot be directly imported into the Indian law context as is, but it provides a baseline example for specifically addressing the issue. Beyond the obvious swapping of parties to reflect the fact that it would be the federal government granting power to tribal officers entering state land, two additional substantive changes would need to be made. First, the authority granted would need to be cabined at a detainment power rather than sanctioning an arrest power. Second, the limitation of the power to suspected felonies would need to be amended to include both felonies and other specified crimes, because a DUI is not usually a felony163 and therefore must be specifically enumerated.
Criminal jurisdiction in and around the borders of Indian country is a maze of uncertainty that law enforcement officers of numerous jurisdictions must navigate every day across the United States. When an officer is engaged in fresh pursuit, she does not have the time to ponder the intricacies of the labyrinth. Some small flexibility is needed in tribal officers’ authority to prevent confusion and overlapping jurisdictions from thwarting effective law enforcement. However, fresh pursuit and the power to detain are not a cure-all even for this specific situation. Detainment has its limits, and if state law enforcement refuses or is unavailable to arrest the suspect, tribal officers are powerless to do anything but release the driver unless there is a cooperative agreement in place granting arrest power. But this limitation is not exclusive to fresh pursuit; the same issue arises when tribal officers detain non-Indians in Indian country. Eid relayed the following example when testifying before the Senate Committee on Indian Affairs:
One of our officers pulled over a driver, on the reservation, for DUI. The driver was a non-Indian. The State Patrol was unable to respond. The County Sheriff’s Office was then requested. They refused to come out. Their watch commander then ordered us to let the suspect go — on the reservation. I took a breath sample in the field prior to the person being released. He blew a .133 BAC. He also had two children in the car with him. Instead of having him drive off as we were ordered to do by the County, one of our officers took the keys from him and gave him a ride so that he wouldn’t kill himself, the kids or someone else.164
A federal statute authorizing tribal officers to engage in fresh pursuit and detain suspects will not obviate the need for better relationships between tribes and states and between tribes and local governments. Without mutual respect and cooperation among all law enforcement institutions involved, no change in the law will entirely solve the policing gaps in and around Indian country. A federal statute cannot be a panacea, but it would redress a significant piece of the problem and add a bit of clarity to a legal landscape that desperately needs it.