Tribal Police and Jurisdication: Crime Writing

Officer X is back with a post about Tribal Police and jurisdiction. We’ve got a lot to get through, so I’ll step out of the way. Dazzle us with your vast knowledge, Officer X! We greatly appreciate your time and effort to help our stories ring true. For further research, I’ve added numerous links to this post.

In previous posts I discussed the most common areas of jurisdiction utilized in American fiction: federal and state. Two remaining and more complex jurisdictional areas exist: Tribal and Military. Each needs to be covered individually. So, I will start with focusing on Tribal jurisdiction, which by far is the most difficult and confusing jurisdiction to understand.  Most lawyers I know dread dealing with the complexities of Tribal jurisdiction. On the other hand, the few that know Tribal jurisdiction love the challenge.

Tribal jurisdiction can involve federal, state, and even military jurisdictions, depending on the case.

I have worked in and around Indian Country (yes, that is the legal name) throughout my career, and I have family and friends that live on Indian reservations and are members of federally recognized tribes. To understand Tribal jurisdiction, one must first understand who is considered an “Indian.”

WHO IS AN INDIAN?

Indian, for jurisdictional purposes, is not solely a racial genetic identity. Indian is a combination of racial identity, blood quantum (the total percentage of your blood that is Tribal native due to bloodline), and federal recognition.

A jurisdictional Indian, must belong to a federally recognized tribe and have enough blood quantum to be placed on that particular tribe’s rolls. They are then registered with the Bureau of Indian Affairs (BIA) and receive a specific BIA number, which is used similarly to a social security number to receive benefits provided by various federal Native American programs.

Each tribe sets their blood quantum. The Cherokee Nation of Oklahoma sets their blood quantum as any direct descendants from a person placed on the Dawes Rolls (a list created by Senator Henry L. Dawes under the Dawes Commission in the late 1800’s).

The Flathead Tribe of Montana requires a ¼ blood quantum. Each tribe varies. Depending upon one’s Tribal descendants, a full-blood Indian of mixed Tribal blood may not be considered by any one tribe to be an Indian under the law, while someone who is 1/64 Cherokee is considered Indian under that same federal law.

I have a good friend who is ½ blood Indian but no more than 1/8 member of any tribe, so he is not considered Indian under the jurisdictional definition.

To complicate the matter further, tribes have the ability to dis-enroll members.

Currently, in the Western United States, there are some tribes, who as they gain larger proceeds from casino and other business ventures, that are dis-enrolling members. These tribes are basing the dis-enrollments on the loose histories, listing certain families as descendants of captured and enslaved Indians who were set free as part of treaty negotiations with the US Government, but chose to remain with the tribe.  Some tribes also possess the power to dis-enroll members based on their criminal activity. This rule is usually based on a set of “banishment” procedures contained within Tribal code. Once dis-enrolled or banished, the individual is stripped of their BIA number and no longer considered Indian for jurisdictional purposes.

INDIAN COUNTRY

Indian country is meant to include all land within the limits of any Indian reservation under the jurisdiction of the United States, including rights-of-way running through the reservation and all dependent Indian communities/villages within the borders of the US.

While the term “Indian country” may not sound politically correct, it is the official legal language of the territorial jurisdiction of the various native tribes of the United States, and can be found under 18 USC 1154 and 1156.

Indian country was established by treaties between various Indian Nations and the US Government, which originally put these nations under the exclusive jurisdiction of the federal government.

Also realize that the size of tribes vary.  The Navajo Nation is the largest, stretching across four states and consisting of around 308,000 members. Last I heard, the Augustine Band of Cahuilla of California is roughly between eight and eleven members, and is the smallest.

POLICING

The US Department of Interior’s Bureau of Indian Affairs (BIA) became the federal oversight entity of the hundreds of reservations across the US, and in doing so created their law enforcement organization, which is now housed under BIA’s Office of Justice Services (OJS) (formerly Department of Law Enforcement).

The BIA uniformed officers patrol the reservations.  The BIA also employs criminal investigators as well, who also investigate felony crimes on reservations and often partner with the Federal Bureau of Investigations (FBI) on major criminal investigations. The FBI still oversees most of the major criminal investigations within Indian country. Agents are specifically assigned for this purpose.

The natural assumption is that federally recognized tribes fall within the federal jurisdiction, which is policed by BIA and the FBI and prosecuted by the federal. However, this is not entirely accurate.

Trying to reduce its role and responsibility for policing Indian communities, the federal government enacted Public Law 280 (officially titled Public Law 83-280) in 1953. This transferred jurisdiction from the federal government (courts) to the state governments, and allowed state-level felony laws to be applied in the same manner as federal law in Indian country.

Initially, PL 280 was intended for Oregon, California, Wisconsin, Nebraska, and Minnesota, but the language in the law allowed for any federally recognized tribe to agree with the state where their reservation was located to allow the state to have jurisdiction.

Many of these communities were poor and contained a large population of non-Indian members. They needed a judicial system to help the tribes maintain law and order on the reservation. Over time and under self-determination, with funding from the US Department of Justice and BIA, most tribes have set up their police and court systems. Those courts, however, are limited to misdemeanor-level crimes.

And this is where the jurisdictional nightmare begins. While many of the state governments agreed to PL 280, the counties in which the cases were to be prosecuted were caught off-guard, while others couldn’t afford to fight appeals regarding jurisdictional issues, so they refused to take cases from Indian country.

To make matters worse, most reservations have a mixed populous, consisting of Indian and non-Indian residents. Under federal law and case law, non-federally commissioned Tribal police officers have no powers to arrest non-Tribal members. (Oliphant Vs. Suquamish Indian Tribe 1978)

Non-BIA commissioned Tribal police officers under federal court rulings only have jurisdiction over members of federally recognized tribes and can only enforce the Tribal law, which can only carry a maximum of one year in jail.

THE TRIBAL LAW AND ORDER ACT

Until The Tribal Law and Order Act (TLOA), created under the Bush administration and signed into law by the Obama administration, tribes had no authority to create and enforce felony level offenses within their Tribal laws.

Tribal laws and codes only allowed for the maximum incarceration time of one year (basically a misdemeanor). Due to the high declination rate by the US Attorney’s Office and the reluctance of state and local departments to intercede in Indian country crimes, fifty percent of homicides and seventy-five percent of sexual assaults went unprosecuted.

I know of several cases where a Tribal member was a perpetrator of sexual assault, and the Tribal courts were left with the prosecution. In those cases, the suspects, once convicted, received only a year in jail for what should have been five years to life in prison for aggravated rape.

Since the TLOA was created, tribes are now able to write felony level offenses in their code books; these charges can imprison an offender for up to three years in prison. As of 2017, the felony level offenses are just barely getting codified due to the Tribal codes, courts, and correctional systems having to adjust to the potential long-term incarceration periods.

CROSS-DEPUTIZATION

Many Tribal police departments and county sheriff’s offices cross-deputize each other’s officers so there are no jurisdictional issues over the arrest and the officers can determine which court to refer the case to afterward.

Oklahoma is a good example of cross-deputization. For years, various tribes sold off parts of their reservation, creating a patchwork of Tribal and non-Tribal locations down to every other house being of a different jurisdiction.  So, to remedy this issue, the County Sheriff and Tribal police cross-deputized their officers and after an arrest is affected, the officers then determine whether to send the offender to local or Tribal court.  Interestingly enough, there is no law enforcement database that can crosscheck a suspect with BIA registrations. Therefore, it’s often up to the suspect to identify himself as a Tribal member. Which leads to a lot of confusion. Let’s face it, criminals aren’t known for their honesty.

Many states are starting to adopt cross-deputization. It still varies from state to state and sometimes from county to county.  For writers interested in Indian country mysteries, you must know your state laws pertaining to Tribal peace officer authority.

NATURAL RESOURCE ENFORCEMENT

Within Indian country, natural resource enforcement is another area that also poses jurisdictional complexities. Depending on treaty rights, some Tribal members have immunity from state prosecution when hunting and fishing off-reservation. These tribes have special provisions in their treaties that call for access to usual hunting and fishing areas that in the past allowed members to leave the confines of reservation to hunt and fish for subsistence.

In 1979, the Boldt decision in the Pacific Northwest not only reaffirmed this right but also concluded that the tribes (under the treaty being reviewed) were allotted to harvest fifty percent of all fish wildlife in the state of Washington.

Under that decision, the tribes are supposed to co-manage the resources with the state to determine seasons and harvest amounts. The decision went so far as to say that the tribes were responsible for policing their members during these seasons. Also, the members were subject to Tribal law rather than state law.

FOR WRITERS

For writers, Indian country is an amazing setting for characters. There is a uniqueness to Indian country that doesn’t exist anywhere else in the US. Author Craig Johnson of Longmire fame does a pretty good job of covering this environment in his novels. As does Tony Hillerman. Indian country, like any other place, has both good and bad sides.

Some tribes are extremely wealthy while others are destitute. Some Tribal governments suffer outrageous amounts of corruption while others are prime examples of good governance. One cannot judge a reservation based on the activities or stereotypes of another.

Tribes, like states, write their own tax codes. This may include tax-free or low-taxed items, like cigarettes. Smuggling cigarettes off-reservation is a huge industry. Due to the gray legal area of jurisdiction, organized crime has moved in to take advantage.

Traditional Italian crime families have been known to interfere with Indian casinos, similar to Las Vegas in the 1950’s. Eastern European groups, Mexican Cartels, as well as Asian Organized crime are also seeking footholds.

My personal experience as an investigator has been with Asian and Eastern European organized crime groups getting involved in natural resource poaching and smuggling, as well as money laundering through Indian casinos.  As Asian economies increase and build a growing middle class, their consumption of highly sought after natural remedies and delicacies increase.  Eastern European groups have utilized Indian hotel and casinos for money laundering, as well as human trafficking in higher end call girls.  Mexican cartels have been utilizing reservations in California to cultivate marijuana. In Arizona, the cartels have utilized one particular southern border reservation to smuggle drugs and people.  The problem in Southern Arizona has been so bad for so long the US Customs (Now Immigration and Customs Enforcement) created a strict Indian tracking unit in 1972 named the Shadow Wolves to catch smugglers.

Indian communities are similar to all US communities in that there are doctors, lawyers, politicians, along with a criminal element within the community.  Unfortunately, due to the complex criminal justice jurisdiction, non-Indian criminals in my experience pose the largest problem within Indian country by taking advantage of loopholes in the law.  Also, be aware that not all Indian communities get along with each other; long histories and grievances between tribes remain to this day.  Indian country is a great backdrop for any fiction writer. However, if you choose to write about Tribal police and jurisdiction, make sure you do your homework.

Thank you, Officer X!

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The e-book releases Aug. 9, 2017. The paperback is still in production. I’ll let you know when Crossroad Press tells me it’s available.

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About Sue Coletta

Member of Mystery Writers of America, Sisters in Crime, and International Thriller Writers, Sue Coletta is an award-winning, bestselling, multi-published author in numerous anthologies and her forensics articles have appeared in InSinC Quarterly. In addition to her popular crime resource blog, Sue co-hosts the radio show "Partners In Crime" on Writestream Radio Network every third Tuesday of the month from 1 - 3 p.m. EDT/EST (see sidebar for details). She's also the communications manager for the Serial Killer Project and Forensic Science, and founder of #ACrimeChat on Twitter. 2017 Award-winner of Feedspot's Top 50 Crime Blogs (Murder Blog sits at #6), contact Sue for speaking engagements, book signings, reading, and events.

22 Comments

  1. Terrific research here Sue – so complex and interesting. My husband is Sioux on both sides of his family. He remembers visiting his grandfather who he described as “an old red man” in a place where there were many people. In certain lights he has a reddish glow as if he had a lamp within him. It is unnerving when he is in light that makes this happen. Usually early morning outside. I imagine author KB Schaller would be interested in this article – I’ll have to give her a heads up to read it if she hasn’t. She wrote “100+ Native American Women Who Changed the World”. There is much research in that book.

    • I bet his inner light is magnificent, MJ. Outside doesn’t surprise me. He could have a deep-seeded connection with nature, wildlife, and the elements, a bond so special and unique it’s almost magical. I’ve experienced it too.

      Thanks for the book recommendation. I’ll have to check it out.

  2. Excellent article!
    But it made me cry. One of my characters is Lakota, and I’m paralyzed. I’m searching for a Lakota native who could help me and make sure I don’t write something wrong, but no luck.
    This article showed me how much I don’t know. You US citizens are lucky; at least you know where to start your research. (just imagine you have a Mongolian character, very important one – where would you start your research?)
    I’m learning Lakota language on YouTube so I can use a word or two, but any deeper search is impossible, because I can’t tell what’s a fact, and what’s a made-up story/legend.
    The last thing I want is to write an amateurish BS, or what your people would call: ‘how Europeans see Indians’. It’s so frustrating 🙁

    • Oh, Mica. Your comment breaks my heart. If I were in your position, I’d start with reaching out to the Lakota Cultural Center. Here’s the link: http://aktalakota.stjo.org/site/PageServer?pagename=alm_about_us
      Lakota are part of Sioux Nation, so I bet Sioux Cultural Centers could also help add realism. Failing that, I can reach out to the friend who helped answer a few questions for Blessed Mayhem. He lives in the US, though, so I’m not sure how much he’d know about Lakota. That tribe is European-based. Correct?

      • Oh, oh, that link is exactly what I need! Sorry I wasn’t clear – my character IS Lakota Sioux who migrated to Los Angeles. He isn’t my MC, but he is in top 5, and is really important.
        I have deep respect for Indian culture and I want to fight ugly stereotypes. That character is successful, modern and tech-oriented, but still deeply connected with his heritage and culture. THAT part was trouble, because as a foreigner, I can’t tell customs and real legends from made-up Hollywood stories.
        I will dive into that info you provided and try to find a native who would be willing to help me. But, if that fails, I’ll ask you to connect me with your friend, if that isn’t a problem for you.
        And now I have one more reason to eagerly wait your book! Can’t wait to see how you handled it.
        THANK YOU!

        • Yay!!! I’m so glad you have a solid starting point. Not a problem. Let me know if you need me to reach out.

          The one thing I had to decide in my book was how deeply to dive into his heritage. It definitely defines who he is, but society outside the tribe also contributes to who our character becomes and how they live. Just something to think about while writing. Life on a reservation is far different than life off the reservation. For my character, back in the day life wasn’t easy on the reservation.

  3. Amazing post, Sue, on a difficult topic. I live in south Florida where we have Seminole and Miccosukee tribes in close proximity. As someone who works in the legal profession by day, I have been exposed to some of the jurisdictional distinctions. It’s never easy, or clear cut and the law is always evolving. Well done!

    • Thanks, Kait, but the credit belongs to Officer X. I was just as amazed by how clearly he explained the distinctions. When I think of Florida I don’t normally associate the area to having a large Native American community. ‘Course, the last time I vacationed there was 1976. Might be time for another revisit. 🙂

  4. Great post, Sue & Officer X. Very informative & well-explained. These jurisdictional overlaps seem complicated but the idea of cross deputizing sounds like a simple and brilliant solution. Just a bit of input from north of the border – in Canada, there’s no jurisdictional difference anywhere. Indian reserves and military bases have no special treatment. The law equally applies across the land… except for foreign embassies. If a Russian decides to off someone within the embassy walls, they’re good to go unless the Russians prefer to prosecute. Go figger.
    Garry Rodgers recently posted…MOUNT EVEREST — WORLD’S HIGHEST AND MOST DEADLY OPEN GRAVEYARDMy Profile

  5. Fascinating post. This sounds like a big mess, if you ask me. And we all know that the bigger the mess, the bigger the injustince, unfortunately.
    JazzFeathers recently posted…Thursday Quotables – Raisins and Almonds (Miss Fisher Murder Mysteries)My Profile

  6. I’m a fan of Tony Hillerman’s books and have read numerous non-fiction accounts of Native Americans from the post Civil War era through the Ghost Dance rebellion. I’ve also watched hoop dance performers in Arizona that left me speechless.
    Such an amazing culture! Thanks Sue to you and Officer X for a look at Tribal Police and Jurisdiction!
    Mae Clair recently posted…Old Writings and Decades PastMy Profile

    • My grandfather was half Native American, my grandmother also had Native American blood, which makes this subject near and dear to my heart. I’m fascinated by the culture too, Mae!

  7. So interesting. There are reservations in my hometown, and all around northern Nevada. I was an employee during a small mining war in the 1970s, and I remember them sending a BIA cop out along with the deputies. We asked why he was there. It was because he had federal jurisdiction, and we didn’t have access to an FBI agent at that remote location.
    C. S. Boyack recently posted…Frankie the Fish, on #LisaBurtonRadioMy Profile

    • Wow. How awesome that you have experience with BIA, Craig. Ever think about writing a story set in the ’70’s with the war as the main focus? I bet it’d be a fascinating read.

      • It only lasted two days. I was staking claims for a mining company on private ground. The rancher did not own the mineral rights, but sought to defend his land anyway. We ran into mounted cowboys with rifles. While the big brains sorted it all out, we had lunch under the aspens with the rancher’s kids. We all went to high school together, and all had to return for senior year. I remember it made a national news blurb, and our local paper. I’ve looked for a reference online, but never found one.
        C. S. Boyack recently posted…Do I need a plan?My Profile

  8. This is really fascinating! Jurisdiction is a big issue, and it’s just as important in Native American Nations as it is anywhere else. I’m doing final revisions now on a novel that involves a jurisdiction twist, actually (‘though admittedly, not a tribal jurisdiction twist). It’s always interesting and helpful to get the facts. Thanks, both!

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