Tribal-State Cooperative Law Enforcement Agreements Under Public Law 280
Given the broad-ranging complaints that reservation residents express about the
availability, quality, and sensitivity of state/county law enforcement under Public Law
280, we have sought to determine whether tribal-state cooperative law enforcement
agreements mitigate some or all of these concerns. Because we hypothesize that two of
the underlying problems that animate these concerns are lack of accountability and
inadequate resources,
1 we have focused on whether tribal-state cooperative law
enforcement agreements address these two problem areas. Because the existing literature
on such agreements touts them as remedies for legal uncertainty and gaps in law
enforcement authority,
2
we have also focused on whether PL 280 respondents find them
useful for that purpose. Our research encompasses the published literature on this
subject, and publicly available examples of such agreements3, as well as results from
analysis of the qualitative interviews that we undertook. This chapter also examines
other types of arrangements, such as state legislation conferring peace officer status on
tribal police, and federally provided special law enforcement commissions, designed to
accomplish some of the same objectives as cooperative agreements. Although
cooperative law enforcement agreements also exist in non-PL 280 jurisdictions, they
often take a different form because of the different array of federal, tribal,
and state
criminal jurisdiction. Our focus in this chapter is exclusively on PL 280 jurisdictions.
Tribal-State Cooperative Law Enforcement Agreements Under Public Law 280:
Two Distinct Types
The Bureau of Justice Statistics Census of Tribal Justice Agencies in Indian
Country, 2002,4
reveals that, of the 51 responding tribes subject to PL 280 jurisdiction in
mandatory or optional states, 24, or nearly half, have cooperative agreements with
neighboring non-tribal law enforcement authorities. When we speak of tribal-state
cooperative law enforcement agreements, we are referring to two distinct types of
contractual arrangements: 1) “deputization agreements,” where tribal police are
deputized to act as county sheriffs; and 2) “law enforcement services agreements,” where
tribal governments contract with county or city police departments to supply policing
378
1 See Chapter 3, supra, at 38.
2 See Chapter 2, supra, at 26-27.
3 Many of these agreements have been compiled by the National Congress of American Indians at http://
www.ncai.org/Law_Enforcement_Agreements.100.0.html (last visited August 18, 2007). We were able to
secure 16 different tribal-state cooperative law enforcement agreements involving tribes in PL 280
jurisdictions.
4 Steven W. Perry, Census of Tribal Justice Agencies in Indian Country, 2002 (December 2005), available at
http://www.ojp.usdoj.gov/bjs/abstract/ctjaic02.htm (last visited August 18, 2007).
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.
services within reservation boundaries.
A third variation, “cross-deputization
agreements,” where cross-deputized tribal and county law enforcement officers are
authorized to act as their county and tribal counterparts when enforcing law on the
reservation, are very rare in PL 280 jurisdictions. That is so because it’s rare to find tribal
criminal codes that would be available for county officers to enforce, and because states
and counties in PL 280 jurisdictions generally do not need tribal law enforcement
authority to enforce criminal law against Indians on reservations. The major exception is
some traffic offenses that are deemed regulatory in nature, and, therefore, outside the
state’s jurisdiction under PL 280 when violated by an Indian on the reservation.5
Deputization Agreements
What we are calling deputization agreements are sometimes referred to as
“memoranda of understanding” or “interagency agreements.” What all of these
arrangements share is a provision allowing tribal officers to secure commissions as
county sheriffs upon satisfaction of specified conditions.
Deputization agreements enable
tribal police to act as county officials in circumstances where tribes lack criminal
jurisdiction as a matter of federal Indian law, such as the commission of an on-reservation
crime by a non-Indian.6 A similar but lesser form of cooperation, generally known as a
“joint power agreement,” does not entail deputization, but each party is authorized to
furnish law enforcement assistance to the other when such help is requested.7
Before granting a commission to a tribal officer, a county sheriff’s department
usually requires several concessions. Generally, tribal officers applying for a law
enforcement commission from the local sheriff’s department (usually the county) must
meet the same qualifications required of state officers, usually including certification by
the state’s Peace Officer Standards and Training (POST) program (or its equivalent as
accepted by the POST program).
In addition, under the law of at least one PL 280 state,
Minnesota, the deputized tribal police officer must be employed by a qualified tribal
police department, which means that the department has accepted liability for its officers
on the same basis as state officers, maintains the same level of insurance required by state
379
5 See, e.g., State v. Stone, 572 N.W.2d 725 (Minn. 1997). For an example of an agreement authorizing
county officers to enforce the tribe’s civil regulatory laws against tribal members on the reservation, see
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).
6 See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The Minnesota Supreme Court has held
that federal law generally, and Public Law 280 in particular, do not preclude states and counties from
entering into deputization agreements authorizing tribal police to arrest non-Indians (as well as Indians) for
violation of state law. State v. Manypenny, 682 N.W.2d 143 (2004).
7 See, e.g., Law Enforcement/Mutual Aid Agreement Between Oneida Nation and City of Green Bay
(1996).
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.
municipalities, has waived sovereign immunity for such claims, and has agreed to abide
by state requirements regarding data practices of law enforcement agencies.8
Perhaps the most significant provisions of a deputization agreement are those
bearing on each party’s liability for the acts of its officers. With rare exception,
deputization agreements provide that tribal police enforcing state law remain, for liability
purposes, tribal employees.9 In anticipation of legal claims against its officers, a tribe
must, at a minimum, maintain a liability-insurance policy to cover claims against its
officers acting within the scope of their duties. The counties of at least one state,
Minnesota, attempt to put tribes on equal footing with the state’s municipalities.
Pursuant
to deputization agreements with their surrounding counties and requirements of
Minnesota law (see above), the Fond du Lac, White Earth, Mille Lacs, and Leech Lake
Bands have, at one time or another, agreed to be subject to liability for the acts of their
officers arising out of a law enforcement agency function to the same extent as a
Minnesota municipality,
10 for which maximum liability is $1 million per incident and
$300,000 to any one claimant.11 Likewise, the Interagency Agreement between the City
of Siletz and the Siletz Tribe (2000) provides that, for claims subject to Oregon’s Tort
Claims Act, the tribe’s liability would be capped according to the terms of that Act —
presently, $500,000 per incident and $250,000 to any one claimant.12 However, not all
states cap liability for claims against police officers; of those that do, not all extend the
cap to claims against tribal officers.
Apart from seeing to its own liability, each contracting party typically requires the
other to indemnify it for claims related to the conduct of the other’s law enforcement
380
8 Minn. Stat. § 626.93.
9 The lone exception we found is a mutual-assistance agreement between Oneida Nation of Wisconsin and
the City of Green Bay, under which “[a]n officer responding to a request for assistance is deemed an
employee of the requesting department.” It would be a mistake to conclude, however, that mutualassistance agreements treat these situations the same. The Mille Lacs Tribe’s mutual-assistance agreement
with Mille Lacs County states that an officer responding to a request for assistance remains under the
control of the responding party in all material respects —
pay, tort liability, worker’s compensation — and
“shall otherwise be deemed to be performing the regular duties of the responding party.”
10 Minn. Stat. § 466.
11 The statute also prohibits the award of punitive damages. See, e.g., Agreement between Carlton County
and the Fond du Lac Tribe (2001); Agreement between Pine County and the Mille Lacs Band of Ojibwe
Indians (1998).
12 Or. Rev. Stat. § 30.270.
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.
officers.13 At least one agreement —
between California’s Hoopa Valley Tribe and
Humboldt County — required the County to reimburse the Tribe “for the costs of
insurance coverage of personnel and equipment traceable to assisting [the County
Sheriff’s Office] in compliance with the agreement.”14 This type of cost sharing,
however, is clearly an exception.
Another significant issue addressed by most deputization agreements is sovereign
immunity. Tribal immunity tends to be a more significant point of negotiation because
most states have passed tort claims acts outlining the circumstances in which political
subdivisions and their employees may be sued.15 It’s well-established that tribal immunity
is a complete defense against suit, absent express congressional authorization or waiver
by the tribe itself.16 In the context of deputization agreements, tribal sovereign immunity
is a potential barrier to two types of suits: (1) those by individuals for torts committed by
tribal officers during exercising law enforcement authority, and (2) those by the county to
enforce the tribe’s obligations under the deputization agreement. Some agreements, such
as those between the White Earth Band and its surrounding counties,17 require the tribe
(besides maintaining liability insurance) to waive its sovereign immunity against the
former but are silent as to the latter. On the other hand, some agreements waive
immunity only with respect to contract disputes between the parties, not from tort claims
by aggrieved citizens. For example, the Siletz Tribe waived its sovereign immunity “for
the limited purpose of permitting the City [of Siletz] to sue for breach of any provision”
of the deputization agreement.18 Similarly, the Oneida Nation of Wisconsin waived its
immunity for the limited purpose of allowing the City of Green Bay to enforce any
arbitration judgment awarded under the deputization agreement.19 There are, however,
the rare agreements, such as the Deputization (2003) and Joint Powers (1995)
381
13
As one California legislative analysis indicated, “state or local liability based on actions of tribal officers
is unlikely ‘based merely on a grant of state powers. However, liability might be based on specific actions
by state or local agencies, such as holding a prisoner who was originally taken into custody by tribal
officers or based on joint law enforcement activities with tribal officers which caused injury or a
deprivation of civil rights.’
” California Department of Justice Bill Analysis — Criminal Division, Nov.
22, 2000 at 11-12. Another possibility would be county liability “based on advice given by a state or local
law enforcement agency to a tribal officer for the tribal officer’s actions.” Id. at 12 n.13.
14 Joint Powers Agreement between the Hoopa Valley Tribe and the County of Humboldt (1995).
15 See, e.g., Cal. Gov. Code § 815.2; Minn. Stat. § 466.02; Or. Rev. Stat. § 30.265; Wis. Stat. § 893.80.
16 See Kiowa Tribe v. Manufacturing Techs., 523 U.S. 751, 754 (1998).
17 See, e.g., Agreement Relating to the Use of Law Enforcement Facilities and Personnel in Cooperation
Between the White Earth Band of Chippewa Indians and Mahnomen County (2000) (subsequently voided
by the County and renegotiated).
18 Agreement between Confederated Tribes of Siletz Indians and City of Siletz (2000).
19 Law Enforcement/Mutual Aid Agreement Between Oneida Nation and City of Green Bay (1996).
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.
Agreements between the Hoopa Tribe and Humboldt County, in which the Tribe does not
seem to waive immunity for any purpose.20
Even absent a waiver of tribal sovereign immunity, victims of torts committed by
deputized, tribal law enforcement officers may still have recourse under the Federal Tort
Claims Act (FTCA), under which the United States has waived its immunity from suit for
injuries resulting from the negligent or wrongful act of a governmental employee acting
within the scope of his office.21 The 1990 amendments to the Indian Self-Determination
and Education Assistance Act of 1975 (ISDEAA),22 which had authorized tribes to
administer programs or services that otherwise would have been administered for their
benefit by the federal government, extended the FTCA to cover tribal members carrying
out self-determination contracts under the ISDEAA.23 Since some federal criminal
jurisdiction remains even over Indian Country in mandatory Public Law 280 states, tribes
affected by Public Law 280 are still able to contract with the BIA to perform some federal
382
20 Neither agreement was “intended nor shall it be so interpreted to be a waiver of sovereign immunity of
the Hoopa Valley Tribe or [its] employees,
officials and agents.”
Notably, in none of these cases does the deputization agreement identify the forum in which the Tribe
consents to be sued, a lack of specificity that could breed litigation. The failure to secure a waiver of tribal
sovereign immunity makes the county and its citizens’ ability to recover contract and/or tort damages from
the tribe dependent on the tribe’s willingness to submit to suit — an iffy proposition at best. The Supreme
Court’s decision in C & L Enters. v. Citizen Band Potawatomi Indian Tribe, 532, U.S. 411 (2001), gives
one room to argue that a tribe’s agreement to mediate or arbitrate disputes constitutes a waiver of immunity.
In that case, the Court found a waiver of tribal sovereign immunity in state court when the Tribe “expressly
agreed to arbitrate disputes with C&L relating to the contract, to the governance of Oklahoma law, and to
the enforcement of arbitral awards “in any court having jurisdiction thereof.” C&L, 532 U.S. at 414.
However, the existence of sovereign immunity does not prevent a county from seeking forward-looking
injunctive relief against the tribe by a suit against a tribal officer under the doctrine set out in Ex Parte
Young, 209 U.S. 123 (1909). See Big Horn County Elec. Coop. v. Adams, 219 F.3d 944, 954 (9th Cir.
2000) (“[S]uits for prospective injunctive relief are permissible against tribal officers under the Ex Parte
Young framework.”). See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978) (citing Ex Parte
Young to support holding that “as an officer of the Pueblo, petitioner Lucario Padilla is not protected by the
tribe’s immunity from suit”); Boisclair v. Superior Court, 801 P.2d 305, 315-16 (Cal. 1990).
21 28 U.S.C. § 2679(b). The FTCA bars claims for most intentional torts,
but recognizes an exception for
those committed by “investigative or law enforcement officers of the United States,” which are defined as
“any officer of the United States who is empowered by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.” 28 U.S.C.§ 2680(h). Thus, tribal law enforcement officers who
become BIA deputies with authority to enforce federal law would be covered by the FTCA — that is, the
United States would be substituted for suits against those BIA commissioned tribal law enforcement
officers who committed a tort within the scope of their duties. See, e.g., Deputation Agreement between
Cabazon Band and BIA (2001).
22 88 Stat. 2203, codified at 25 U.S.C. § 450a.
23 104 Stat. 1915, 1959-60, codified at 25 U.S.C. § 450f.
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.
law enforcement services.24 Thus, under the amended ISDEAA, “any civil action or
proceedings” against “any tribe, tribal organization, Indian contractor or tribal
employee,” involving claims resulting from performance under a self-determination
contract “shall be deemed to be an action against the United States” and “be afforded the
full protection and coverage of the [FTCA].”25 Unless a tribal law enforcement officer is
acting as a federal law enforcement officer,
26 or pursuant to a self-determination contract
with the federal government, s/he is outside the reach of the FTCA.2