Funding
Deputization agreements can have a positive affect on funding for Indian country
policing because of the combination of tribal and county resources. Economies of scale
for the two departments and sharing of resources can increase the efficiency of use of
existing personnel and equipment. Perhaps even more important, the involvement of
tribal police under such agreements may facilitate access to federal sources of law
enforcement funds that would not be available to the state or county alone. There are
often tribal law enforcement programs, such as the Tribal COPS grants, that parallel state
programs. Having access to both can expand the total pie of resources for the particular
reservation. Also, more active law enforcement on the reservation by tribal police can
potentially generate fines that could be available to supplement existing law enforcement
budgets. An important question to ask about these deputization agreements,
however, is
whether they fairly allocate costs and benefits among tribes and counties. Given that
states are legally obligated to provide equal policing services to reservation communities,
it is unclear why tribes should have to hire their own forces to patrol their reservations,
and then receive no returns from the fines that the states collect as a result.
Law enforcement services agreements solve the funding problem by pouring
tribal funds into state or county policing on the reservation. As with deputization
agreements, questions can arise about whether tribes are paying for something to which
they are already entitled. Knowledgeable tribes, however, attempt to disaggregate the
enhanced services they are seeking from base level (legally required) services. Only the
most economically successful tribes can afford this particular option.
In sum, tribal-state cooperative law enforcement agreements have some capacity
to address accountability and funding issues associated with state jurisdiction on
reservations. The agreements have distinct limitations, however, especially about
accountability. Either the exercise of concurrent jurisdiction by tribes or the retrocession
of state jurisdiction to the federal government are possible ways of enhancing
accountability.
Interview Data: How Successful Are Cooperative Agreements in Mitigating
Problems Associated with Public Law 280?
Of the 11 PL 280 tribes and one straddler in our sample, 5 (42%) had deputization
agreements, 2 (17%) had law enforcement services agreements with the their local
391
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.
county, and 1 (8%) had an informal agreement with the state regarding allocation of
misdemeanors and felonies for prosecution by tribal and state courts. In all, 8 tribes in
our sample, fully 67%, had some form of cooperative agreement. We asked all
respondents from these jurisdictions several questions about their agreements, including
why they were developed, what were the benefits and problems associated with the
agreements, how the agreements could be improved, and whether they would be inclined
to renew the agreements. The analysis that follows compares types of respondents within
PL 280 jurisdictions that have cooperative agreements. Where possible, we distinguish
between the deputization agreements and law enforcement services agreements. Future
analyses should examine differences in levels of satisfaction with reservation law
enforcement and criminal justice among PL 280 reservations, depending on whether the
reservation has a cooperative agreement. Another potentially promising line of
investigation would compare the experience with cooperative agreements as between PL
280 and non-PL 280 jurisdictions.
Why Was the Cooperative Agreement Developed?
We asked respondents in PL 280 jurisdictions that had cooperative law
enforcement agreements about the reasons for development of those agreements. There
were 81 responses from reservation residents, and 16 from law enforcement officers.
Among the reservation residents, 9 (11%) said the reasons related achieving
greater authority and involvement of tribal police. These responses included statements
about enhancing tribal sovereignty and substituting tribal law enforcement for county
police in situations where county police were mistreating tribal members. Not
surprisingly, all of these responses were from reservations that had deputization
agreements rather than law enforcement services agreements, since only the former
deploy tribal police. Another 10 reservation-resident respondents (12%) indicated that
the agreements were developed to achieve better working relations between the tribe and
the county, including over issues such as liability for misconduct by police officers. Nine
reservation-resident respondents (11%) focused on jurisdictional gaps and uncertainties
as the precipitating factor for development of cooperative agreements, several mentioning
issues that arose when state and federal courts found limitations on state jurisdiction
under PL 280 (e.g., over traffic offenses). The largest number of reservation-resident
respondents, 29 (36%), emphasized enhanced law enforcement services as the reason for
entering into a law enforcement agreement. Included in these responses were statements
about achieving increased patrolling and faster response time to calls for service. Tribes
with law enforcement services agreements were disproportionately represented in this
group of respondents.50 Eleven reservation-resident respondents (14%) reported that
access to additional funding was the main reason why the cooperative agreement was
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50 Eleven of the 29 respondents in this category were from tribes with law enforcement services
agreements.
The sample includes five tribes with deputization agreements and two with law enforcement
services agreements.
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.
developed. All but 1 of these respondents was from Wisconsin, the only state that has
created financial incentives for tribes and counties to make such agreements. Finally, 4
reservation-resident respondents (5%) stated that specific events (finding drug needles at
the local school, a homicide) prompted establishment of the agreement, and 9
respondents (11%) indicated that they were unsure or could not say.
Illustrative statements from reservation residents are the following:
Over the years, the changes with Public Law 280 were first the city
couldn’t come in here, and then they could, then they couldn’t again,
then there was lawlessness, then we have our own police force. I
think all that confusion is the reason, and the change.
Basically the ruling from 1997 when the …
state recognized that
state agencies had no civil regulatory jurisdiction on enrolled
members on reservations, which resulted in the formation of tribal
police departments. The State … said tribal police departments are
to be in existence, and they might as well develop that state
legislative statute where they can enter into cooperative agreements
so they can also be used for criminal jurisdiction, as well.
Basically to get money from the state for funding our department as
well as the Sheriff’s Department.
The cooperative agreement was brought about when we had such a
large portion of the people for this area complaining that the
sheriff’s office would never respond to a lot of the calls. Granted,
[tribal police] started out just as a security department, shaking door
knobs on tribal buildings, and you know, windows, and checking,
and those types of things; then, gradually, we built our self up into a
department where we’re just as trained as the local sheriff’s office
…. [T]here’s no reason why they should look on us any different,
but it was brought about because of the response time by the
sheriff’s office to this community.
There seems to be some concern that when people out here call for
an officer, the response time is considerable, and that goes back to
the budget, lack of manpower thing. I’m sure that was one of the
major factors.
(Before the agreement there was) no patrol in the area, they only
came out when called to come out, and, when they were called to
come out, it was come in with both barrels. Very little sensitivity
393
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.
whatsoever as far as anything went. It was arrest and harass, and
very little discretion. Always automatically somebody would have
to go to jail. And we felt it was a double standard. The way we
were being treated wasn’t consistent with the way they were treating
everybody else. So, yeah, that’s one area where we felt the need to
provide better law enforcement in the community.
We were able to hire our own deputies, and I think that’s what
people wanted from day one, was the reason why the whole
agreement went through. Having them located in our community
would stop a lot of the crime that was going on, and nobody was
being arrested, nothing was being investigated, no prevention
activities.
I think that community members wanted us to become — their
argument was to exercise sovereignty. And a way of exercising
sovereignty, of course, was the development of our own law
enforcement and court system, and everything else.
Basically the community’s perception was that they weren’t going to
get a fair shake, and they wanted to have the police force of their
own that understands their cultural needs, their cultural ways of
doing things, that are unique from the outside community. But they
still wanted that ability to have protection and enforcement of their
laws if that’s what needed to be done.
Of the 16 law enforcement respondents from PL 280 jurisdictions, 5 (31%)
emphasized the desire to enlist tribal law enforcement through deputization, 3 (19%)
mentioned jurisdiction issues, another 3 (19%) pointed to enhanced service as the reason
(these were divided between jurisdictions with deputization and law enforcement services
agreements), 2 (13%) focused on specific events, and 2 others (13%) were unsure or
could not say.
Illustrative comments from the law enforcement officers are as follows:
Well, probably back then, because tribal law enforcement were not
recognized by the state as law enforcement officers, so they had to
be deputized in order to have arrest powers with non-tribal
members.
[T]here was a lot of confusion among the officers when they would
arrive somewhere as to who was responsible for what and why, and
394
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.
it got — I don’t want to say nasty — but the confusion led to a lot
of frustration, not only on the sheriff’s department side, but on the
tribal police department’s side, too.
To bring an immediate fix … to bring equal jurisdiction or equal
enforcement for a criminal or civil regulatory on the reservation, as
the result of (a court decision denying regulatory jurisdiction to the
state).
I believe that was a state getting some money through the federal
government, that if you worked together on these (issues), and I
think that’s probably what started it, was the funding.
[O]ur sheriff was looking at increasing the patrol time without
increasing his budget. And it was, like, a win-win situation …. [T]
hey have twice as many police officers as we do. ... So, it would
give our county an option to have eight more officers at any given
incident.