Warm Springs officials propose off-reservation arrest power

By Lauren Dake
Salem, Oregon (AP) March 2011

Warm Springs officials would like to change Oregon law to give tribal police officers jurisdiction off the reservation.

But some non-tribal law enforcement officials want a two-way street: If tribal officers are to get more authority off the reservation, they say, then state, county and municipal law enforcement officers should get more authority when they are on the reservation.

Under existing law, tribal officers cannot arrest anyone off a reservation.

If, for instance, there is a shooting at Rainbow Market just across the river from the Warm Springs Indian Reservation, it can take Jefferson County sheriff’s deputies a while to get to the scene.

For Warm Springs officers, it’s only a few minutes away. But unless tribal officers have been cross-deputized, they can’t make an arrest. At best, they can prevent suspects from fleeing.

Officers of the Confederated Tribes of Warm Springs and other tribes in Oregon say that giving them more authority off of reservations would improve public safety. They point out that they go through the same training and certification process as state-certified officers.

A work group that includes lawmakers, tribal officials, lawyers and representatives of other law enforcement agencies has been formed to look at SB 412, which would give tribal police officers more authority. The work group is expected to add some amendments, not yet released, to the bill. A hearing on the bill is slated for March 24.

The Oregon State Sheriffs’ Association, which opposes the bill, says there needs to be reciprocity.

There are certain laws that apply to state-sanctioned policing agencies that do not always apply to tribal officers.

John Powell, a lobbyist with the sheriffs’ association, says there are many examples, including laws governing open records and the handling of evidence. Powell wonders if the legislation would require tribal members to follow these laws and others.

“Here is an example of reciprocity. Let’s say there is a police shooting, and you want public records, and the agency is on the reservation. That’s the issue,” Powell said. “Say you are a relative of someone who has a run-in with that agency and you want to make sure evidence is being handled properly. Those are the issues.”

Powell said tribal police should be required to abide by the same laws as state law enforcement agencies.

In 2005, a Warm Springs officer was in pursuit of a vehicle that was traveling through the reservation on U.S. 26. The driver had crossed the center line and driven into the oncoming lane of traffic. The officer, Joseph Davino, continued to follow the car as it sped across the reservation’s boundary. Davino eventually arrested Thomas Kurtz, who was charged and convicted of attempting to elude a police officer and resisting arrest.

The Oregon Court of Appeals overturned the decision to charge Kurtz. Because Davino was not a police officer, the court reasoned, Kurtz could not be charged with resisting arrest or attempting to elude an officer. The court said a police officer acts on behalf of an Oregon governmental entity. Tribal police officers do not act on behalf of the state.

The Court of Appeals decision has made it difficult for tribal officers to know exactly what to do with the thousands of non-Indian motorists traveling across the reservation on U.S. Highway 26.

Sen. Floyd Prozanski, D-Eugene, the chair of the Senate Judiciary Committee, assembled the work group on the bill.

“My perspective is, if you’re going to have tribal officers taking enforcement action off the tribal lands, certain criteria need to be met,” Prozanski said. “I’m not going to go into a lot of details because a lot is in the works. I’m serious about moving something forward in the sense that we will have a hearing.”

Stan Suenaga, chief of the Warm Springs Public Safety Department, says the tribe is willing to work with the sheriffs’ association to address its concerns.

However, Suenaga says there is one non-negotiable item: The tribes will not give state-certified police officers a free pass to come onto the reservation and enforce the law. If officers from another jurisdiction needed to investigate on the reservation, tribal officers would assist them, he says.

The Warm Springs Indian Reservation is working with Oregon’s nine other American Indian tribes to change the law.