Federal Officers' Arrest Powers On Indian Reservations

The jurisdiction of federal law enforcement officers on Native American reservations is a complex issue. While tribal police have the authority to exercise criminal jurisdiction over tribal members, their ability to prosecute non-tribal members is limited. In cases where a non-tribal member commits a crime against a tribal member, the federal government has jurisdiction, and federal law enforcement officers may make arrests. However, the Supreme Court has ruled that tribes have no inherent criminal jurisdiction over non-tribal members, which has created a jurisdictional maze and challenges for tribal policing.

Federal law enforcement officers can arrest non-Indians on reservations

Tribal police who carry state commissions may arrest non-Indians for violations of state law, even when no Indians or Indian property is involved. However, non-Indians arrested for these crimes may only be tried in state courts. The US has jurisdiction over non-Indians who violate federal laws applying across the nation or who violate substantive criminal laws applicable only to Indian country.

The Bureau of Indian Affairs (BIA) Police Officers respond to calls concerning felonies and misdemeanors under federal, state, local, and tribal laws. They investigate, apprehend, arrest, and detain all persons charged with violating Title 18 of the United States Code. BIA officers enforce laws and regulations related to controlled substances and serve federal, state, local, or tribal warrants, subpoenas, and other court papers.

BIA Police Special Agents/Criminal Investigators investigate a wide range of criminal activity, including homicide, rape, sexual abuse, and assaults. These investigations may include surveillance, undercover operations, arrests, evidence collection, search warrant execution, interviewing, Grand Jury appearances, and trials in federal and tribal courts.

According to a report by the Indian Law and Order Commission, the situation on reservations is a "jurisdictional maze." While tribes can assert criminal jurisdiction over Indians, they can only prosecute non-Indians under the Violence Against Women Reauthorization Act. When a non-Indian victimizes an Indian within Indian country, the federal government has criminal jurisdiction. If a non-Indian victimizes another non-Indian in Indian country, the state has criminal jurisdiction.

Tribal police can arrest non-Indians with federal authorisation

In the United States, tribal police officers have the authority to detain non-Native Americans they suspect of committing crimes on reservations. However, they cannot arrest them. This distinction between detainment and arrest has been a source of contention, with tribes arguing that it allows criminals to go free.

The authority of tribal police to detain non-Natives stems from a recent U.S. Supreme Court ruling in United States v. Cooley. The Court unanimously upheld that tribal officers could investigate and hold non-Native people while waiting for backup from state or federal officers. This ruling brought some clarity for tribal officers who were previously bound by a 1978 Supreme Court decision in Oliphant v. Suquamish Indian Tribe, which stripped tribal nations of criminal jurisdiction over non-Natives, even on their land.

Despite the progress made by the United States v. Cooley ruling, tribal police still face challenges when dealing with crimes committed by non-Natives on their reservations. In some cases, state or local law enforcement may be unwilling or unable to respond to the scene and take over, creating a loophole for non-Native criminals. This issue was highlighted in the case of Zia Pueblo's governor and police officer, Jerome Lucero, who impounded a non-Native driver's car and had to release the individual in an off-reservation town due to the lack of support from state police.

To address these challenges, there have been provisions in recent legislation, such as the reauthorization of the Violence Against Women Act (VAWA), to allow for some tribal jurisdiction over non-Native people suspected of domestic or sexual abuse on tribal land. Additionally, the Indian Self-Determination Act of 1975 allows tribes to establish their own police departments and grants them the authority to arrest and detain non-Indians for delivery to state or federal authorities, even if their powers are generally limited to the reservation.

While tribal police can play a critical role in investigating and detaining non-Native offenders, their ability to make arrests is contingent on federal authorisation and the presence of state or federal officers.

Tribal police can arrest tribal members

The Indian Self-Determination Act of 1975 allows tribes to establish their own police departments and other services through federal grants and contracts. This includes the authority to exercise criminal jurisdiction over all tribal members and to arrest and detain non-tribal members for delivery to state or federal authorities for prosecution.

Tribal police powers are generally limited to the reservation. However, in 2021, the U.S. Supreme Court ruled that tribal officers could investigate and detain, but not arrest, non-tribal members on tribal land if they suspect them of committing a crime. They must notify state or federal law enforcement to take over the arrest. This ruling brought some clarity for tribal officers who were previously bound by a 1978 Supreme Court decision that tribal nations have no criminal jurisdiction over non-tribal members, even on their land.

Despite this progress, tribal leaders have expressed concerns about the limitations of their police powers. For example, in one case, a tribal police officer pulled over a non-tribal member for speeding but had to wait four hours for state police to arrive and make the arrest, as they lacked the authority to do so themselves. This has led to concerns about a "loophole" for non-tribal criminals on reservations.

To address these issues, Congress has considered provisions in the reauthorization of the Violence Against Women Act (VAWA) to grant limited tribal jurisdiction over non-tribal members who commit domestic or sexual abuse on tribal land. However, this bill has stalled in the Senate due to separate provisions involving gun ownership restrictions.

Tribal police can arrest and detain non-Indians for state or federal authorities

The authority of federal law enforcement officers to make arrests on Indian reservations is dependent on the specific circumstances and the nature of the offense. While federal law enforcement officers generally have jurisdiction over crimes committed on Indian reservations, the extent of their authority can vary.

Tribal police officers, like local police across the country, can arrest and detain non-Indians suspected of state or federal crimes in Indian Country. This power was affirmed by the Supreme Court, which ruled that tribal police have the authority to temporarily detain and search non-Indians on public rights-of-way through American Indian lands. This ruling clarified that tribal police can investigate and hold non-Native Americans until handing them off to federal or state authorities for prosecution.

The Indian Self-Determination Act of 1975 allows tribes to establish their own police departments and exercise criminal jurisdiction over tribal members. This includes the authority to arrest and detain non-Indians for delivery to state or federal authorities, although their powers are generally limited to the reservation. Additionally, BIA or tribal police who carry state commissions may arrest non-Indians for violations of state law, even when no Native Americans or tribal property are involved. However, non-Indians arrested by tribal police for violations of state law can only be tried in state courts.

It is important to note that tribal police cannot prosecute non-Indians for crimes committed in Indian Country. This is due to a Supreme Court ruling in 1978, which stated that tribal governments lacked the authority to prosecute non-Indians. Despite this limitation, tribal police play a crucial role in maintaining law and order on reservations and ensuring that suspected criminals are handed over to the appropriate authorities for prosecution.

Federal law enforcement officers can be called in to help with investigations

The Bureau of Indian Affairs (BIA) Police Officers are responsible for responding to calls concerning felonies and misdemeanors under Federal, State, local and tribal laws. They investigate, apprehend, arrest, and detain all persons charged with violation of Title 18 of the United States Code. BIA Police Officers receive formal training in police and criminal investigative techniques at the Federal Law Enforcement Training Center in Artesia, New Mexico. They also enforce laws and regulations related to controlled substances and serve federal, state, local or tribal warrants, subpoenas and other court papers.

In addition, BIA Police Special Agents/Criminal Investigators investigate a wide range of criminal activity, including homicide, rape, sexual abuse, and assaults. These investigations may include surveillance, undercover operations, arrests, evidence collection, search warrant execution, interviewing, Grand Jury appearances, case preparation, and trials in federal and tribal courts.

The FBI also assists with initiatives related to Missing or Murdered Indigenous Persons (MMIP), domestic violence, sex offenses, victim services, and training for tribal law enforcement officers. Federal law enforcement officers are also involved in cases of major crimes like murders or kidnappings, which are typically referred to federal prosecutors.

The Indian Self-Determination Act of 1975 allows tribes to establish their own police departments and other institutional services through federal grants and contracts. However, despite these provisions, tribal policing continues to face challenges due to jurisdictional complexities and constraints on tribal self-governance.

Frequently asked questions