In exchange for these concessions, tribes generally negotiate reciprocal liability
insurance and, less frequently, sovereign immunity provisions.28 A probable explanation
for the general absence of immunity waivers by counties is that, as noted, such immunity
has often already been waived through a state’s tort claims acts or similar legislation.
Whether such a waiver would be good with respect to tribal court is questionable.29
Another type of provision that some tribes have negotiated requires county
officers to complete courses designed to increase their cultural sensitivity. For example,
the Hoopa Valley Tribe has required Humboldt County officers to complete a course in
Hoopa tribal law and history (and, when practical, training in cultural and racial
diversity).30 Most deputization agreements, however, do not call for the county to
familiarize itself with the culture of the people it agrees to police.
383
24 See, e.g., 18 U.S.C. §§ 1154-56, 1165 (federal law expressly applying to Indian country); 25 U.S.C. §
2804(a) (authorizing Secretary of the Interior to enter into law enforcement related contracts). See also
Hopland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067, 1076-77 (N.D. Cal. 2004)
(rejecting
government’s argument that federal law is inapplicable on reservations in PL 280 states and holding that
ISDEAA contemplates law enforcement contracts with tribes).
25 25 U.S.C. § 450f, Notes. See also 25 U.S.C. § 2804(a), (f) (Indian Law Enforcement Reform Act)
(providing that tribal personnel entering into law enforcement agreements with the Secretary of the Interior
shall be considered federal employees for FTCA purposes).
26 28 U.S.C.§ 2680.
27 See U.S. General Accounting Office, Federal Tort Claims Act: Issues Affecting Coverage for Tribal SelfDetermination Contracts (July 2000), available at http://www.gao.gov/archive/2000/rc00169.pdf (last
visited Nov. 10, 2006); Sandra J. Schmieder, “The Failure of the Violence Against Women Act’s Full Faith
and Credit Provision in Indian Country: An Argument for Amendment,” 74 U. Colo. L. Rev. 765, 787
(2003).
28 See Joint Powers Agreement between Hoopa Valley Tribe and Humboldt County (1995).
29 See Nevada v. Hicks, 533 U.S. 353 (2001).
30 Deputization Agreement between the Hoopa Valley Tribe and Humboldt County (2003). In its 2004
Deputization Agreement between the Yurok Tribe and County of Humboldt, the County agreed that “absent
budgetary constraints,”
deputy sheriffs “shall complete a course of training in cultural and racial diversity,
emphasizing Yurok culture,” substantially similar to the course already required under California Penal
Code § 13519.4.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
Apart from deputization provisions, deputization agreements routinely call for (i)
the county to make its jails available for Indian and non-Indian suspects arrested by tribal
officers;31 (ii) the parties to make their officers available as witnesses when needed to
assist the other party’s prosecution; and (iii) the parties to share information and data
useful for solving and preventing crime. Also present in some agreements are
arrangements for a joint radio dispatch or 911 system, or for cooperation in responding to
dispatches.32 Rarely, however, do the agreements expressly grant a tribe access to the
California Law Enforcement Telecommunications System (CLETS), or its equivalent,
which provides all law enforcement user agencies with the capability of obtaining
information directly from federal, state, and local computerized information files. The
Yurok Tribe, for example, has a 2005 agreement with Humboldt County, California,
which provides that, once tribal officers are deputized and complete CLETS training, the
tribal police department “will be authorized to receive data from criminal information
databases, CLETS, and other computerized information systems.” The county agrees not
to “unreasonably delay” tribal access to such information, and the agreement goes so far
as to define “receive” to mean that tribal officers “are allowed to obtain the information
from these databases under the same or similar circumstances” as the county sheriff
deputies.
Though deputization agreements are reasonably common, they rarely address in
what situations, if any, commissioned tribal officers may enforce state law off the
reservation. Because these agreements are negotiated largely to address criminal activity
in Indian country, the most relevant scenario would involve a person who commits a
crime on the reservation and flees off the reservation: is the tribal officer authorized to
pursue and arrest the suspect outside of Indian country for conduct committed inside?
Many state laws provide that any deputized police officer acting in fresh and continued
pursuit of a person suspected of committing a crime within the officer’s primary
territorial jurisdiction may pursue and arrest the suspected felon in any other jurisdiction
in the state.33
Another situation would be one where the crime has been committed on the
reservation but the potential witnesses are located outside that territory. One deputization
384
31 See, e.g., 2005 Law Enforcement Agreement and Joint Program Plan between the Lac du Flambeau Band
of Lake Superior Chippewa Indians and Vilas County.
32 See, e.g., Cooperative Law Enforcement Agreement between the Leech Lake Band of Ojibwe Indians
and the Counties of Beltrami, Cass, Hubbard, Itasca and the City of Cass Lake, Minnesota (2000): “The
Counties and City shall enable Band Law Enforcement Officers to participate in the radio dispatch system
of the Counties as necessary to enable Band Officers to respond to emergencies and request for assistance
on the Leech Lake Reservation.”
33 See, e.g., Nebraska Attorney General Opinion No. 02009, “Authority of Tribal Police Officers CrossDesignated as Special Deputy State Sheriffs,” March 26, 2002; Cal. Penal Code §§ 830.6(b), 832.6(a)(1)
(indicating that properly deputized tribal officers attain state peace officer status, including the ability to
enforce state law by pursuing and arresting non-Indians).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
agreement that does address this issue involves the City of Siletz and the Siletz Tribe of
Oregon (2000).
In that agreement, the City authorized law enforcement officers of the
Siletz Tribe to enforce city, county, and state law anywhere in the City of Siletz. The
2005 agreement between the Yurok Tribe and Humboldt County provides that the tribal
police department “is authorized to conduct inquiries relative to civil or criminal
investigations off the Yurok Reservation, within the territorial limits of Humboldt County,
after receiving approval from the on-duty supervisor or watch commander, which
approval will not be unreasonably delayed by the Humboldt County Sheriff.”
Another issue rarely addressed in deputization agreements is how the parties
intend to fund the promised law enforcement services. The issue of funding is no small
issue for the contracting parties, whose financial straits often prompt the negotiation of a
deputization agreement. Because deputization agreements often entail increased
patrolling and response duties, especially for tribes, it seems possible, if not likely, that
such agreements may exacerbate, rather than lessen, the financial burdens on the
contracting governments. For example, a tribe experiencing high crime rates and
receiving low levels of patrolling and response from the county may seek a deputization
agreement to increase the police presence on the reservation (as occurred at Hoopa).
Generally, parties are expected to bear all costs necessary to carry out law enforcement
duties under their deputization agreement, a point emphasized by the routine inclusion of
a provision requiring county and tribal officers to be available for any trial or hearing in
the other’s courts, but expressly denying that either party shall be entitled to any
compensation for these appearances
.34 Occasionally, though, the parties compact to share
resources. For example, agreements involving the Siletz Tribe/City of Siletz (2000) and
the Oneida Nation of Wisconsin/City of Green Bay (1996)35 promise the Tribes a portion
of the fines and/or fees that they generate through enforcing state law.
36 Even less
frequently, as in the mutual-aid agreement between the Oneida and Green Bay, the terms
allow each party to bill the other for expenses related to rendering assistance.
Wisconsin cooperative law enforcement agreements,
however, are rarely if ever
negotiated without funding in mind. Since 1955, Wisconsin’s Department of Justice has
administered some type of grant program that defrays the costs of tribal law enforcement
efforts. Since 1988, the state’s DOJ has administered the current County-Tribal Law
Enforcement (CTLE) grant program, under which any county that has at least one
federally recognized Indian reservation within, or partially within, its boundaries may
enter into an agreement with those tribes and submit a jointly developed cooperative
agreement spelling out the law enforcement issues, the services to be performed, and the
385
34 See, e.g., Agreement between Pine County and the Mille Lacs Band of Ojibwe Indians (1998).
35 The Oneida Nation of Wisconsin agreement is a mutual-aid agreement, the purpose of which is to have
Tribe and City provide assistance upon the request of the other party, not a deputization agreement.
36 In the case of Siletz, the Tribe may only receive such payment for law enforcement activities on nontribal lands within City limits.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
amount needed to implement the program.37 The Wisconsin DOJ then determines how
much each eligible applicant is entitled to, using a formula incorporating three main
criteria: (a) the population of the reservation area to be served by the program; (b) the
complexity of the law enforcement problems that the program proposes to address; and
(c) the range of services that the program proposes to provide.38 The program is funded
by a portion of the money paid to the state by tribes pursuant to gaming compacts.39 We
have not been able to identify any other state that has passed such a law providing
financial incentives for tribal-state law enforcement agreements.
