Our State Supreme Court recently limited the doctrine of inherent tribal sovereignty. About eleven months ago, our Supreme Court held that a tribal police officer had inherent sovereign authority, while in fresh pursuit of a driver, to stop the driver outside the Reservation for a traffic infraction the driver committed inside the Reservation. Once the officer stopped the driver, he was required to call the state authorities and hold the driver until arrival of a deputy.
State v. Erkisen, 241 P.3d 399 (2010).
About a week ago, on a motion for reconsideration, our Supreme Court reversed itself, holding that a tribe’s inherent authority stops at the Reservation boundary. Once a suspect crosses the Reservation boundary, the tribal police officer cannot pursue him or her based on inherent sovereignty alone. Rather, the tribe would only have authority to stop and detain outside the Reservation boundary if it had some kind of mutual aid pact or cross-deputization agreement with the county or other local jurisdiction.
Tribal inherent authority – essentially, the aboriginal authority the tribes possessed before the arrival of the white settlers – is limited by two principles: 1) territorial jurisdiction, and 2) membership. A tribe, like a state or any other jurisdiction, only has jurisdiction over its own territory. Thus, for example, an Oregon police officer does not have authority to arrest someone in Washington. Tribal jurisdiction is also limited to its own members. With two exceptions, tribes lack jurisdiction over people who are not members of the tribe.
This obviously creates a problem for law enforcement, which was well illustrated by this case. Here, Eriksen, the suspect driver, was driving erratically on the Lummi Indian Reservation. After seeing the Lummi police officer, she then drove outside the reservation boundary and stopped. The officer pursued her off the Reservation and held her until the arrival of a Skagit County Sheriff’s deputy.
The legal issue was whether the off-reservation traffic stop and detention was lawful. The State of Washington and the Lummi Nation both asserted that the stop and detention was lawful based on the doctrine of fresh pursuit. The Supreme Courtdisagreed, holding that fresh pursuit was only authorized if the tribal officer was a general authority Washington Peace Officer.
Per the Washington Mutual Aid Peace Officers Powers Act, a tribal police officer may exercise law enforcement authority over a non-member only if they comply with the following conditions:
1) The tribe must have professional liability insurance;
2) Neither the Tribe nor the insurance carrier may raise the defense of sovereign immunity to a tort claim brought against the officer or the Tribe;
3) The officer must be trained and certified pursuant to State law; and
4) The Tribe must have an interlocal agreement with the appropriate local law enforcement agency.
Since the Lummi Nation did not meet these conditions, its law enforcement officers were not authorized to make arrests outside the Reservation.