Court: Tribal cops can detain off reservation

By Gene Johnson
Seattle, Washington (AP) October 2010

The Washington Supreme Court said last week that tribal police can pursue non-Indian drivers suspected of traffic infractions beyond a reservation’s boundaries and detain them until other authorities arrive.

The court’s ruling was a reconsideration of an opinion it issued last year, in which it unanimously reached the same conclusion. The court withdrew the earlier opinion because of an error, and this time, the judges split 6-3.

The majority said that under the 1855 Treaty of Point Elliot between the U.S. and area tribes, it was OK for a Lummi Nation officer to continue pursuing a suspected drunken driver, Loretta Eriksen, beyond the reservation’s boundaries in 2005 and detain her until Whatcom County deputies arrived. The treaty required tribes to turn over lawbreakers to U.S. or state authorities, the justices said.

They also said the stop was justified under the doctrine of “fresh pursuit,” which allows officers to cross jurisdictional lines when there’s a threat to life or property.

“To allow drunk drivers to escape the law by crossing a reservation boundary would unnecessarily endanger lives by incentivizing high-speed dashes for the border,” Justice Richard Sanders wrote for the majority.

Some lawyers said that although the ruling referenced the ability of tribal police to make traffic stops beyond a reservation’s boundaries, it seemed likely that the same logic would apply for officers pursuing suspects in other crimes.

Justices on both sides agreed that letting drunk drivers get back behind the wheel simply because they’re not tribal members was a terrible idea.

But the minority argued that the treaty provided tribes no authority to detain non-Indians beyond their borders. It simply required tribes to turn over suspected lawbreakers who sought haven on a reservation, they said.

They also said the doctrine of “fresh pursuit” applies only to felonies. DUI is a gross misdemeanor.

In her dissent, Justice Mary Fairhurst said she agreed that a tribal officer could pursue Eriksen beyond the reservation’s boundaries. But once the officer determined Eriksen wasn’t enrolled in the tribe, he should have let her go, she said – a conclusion that troubled her.

“It is ludicrous that a suspected drunk driver who has been stopped outside a reservation’s boundaries by a tribal police officer must be allowed to get back on the road if she is not a tribal member,” Fairhurst wrote. “However, I cannot avoid my duty to faithfully interpret the law.”

The Legislature recently passed a law that said tribal police could be designated general authority peace officers – meaning they’d have power to enforce state laws – if they sent their officers to the State Patrol academy, provided the state with proof of public liability insurance and agreed to waive sovereign immunity if officers were sued in state or federal court.

Lummi police officers have not been so designated.

Eriksen’s lawyer, William Johnston of Bellingham, said last week's ruling was problematic because, if tribes have inherent authority to detain non-Indians, there was no reason for them to comply with the state law, which took effect in 2008. He questioned whether a tribe would allow itself to be sued in state court if an officer conducting a pursuit off reservation caused an accident.

“Sooner or later, there is going to be a hot pursuit, and in that hot pursuit, somebody’s going to be hurt who is not a criminal,” he said.

Mary Neil, a lawyer for the Lummis, said the tribe has insurance for such cases.

“It’s not about wanting to enforce state law,” she said. “It’s about wanting to protect the roads and communities from a drunk driver.”

Robert Anderson, the director of the Native American Law Center at the University of Washington, said many tribes waive sovereign immunity for tort actions against tribal governments and have insurance to cover awards for damages.

Lawsuits can be brought in tribal courts, he said.

“It seems to me like the remote possibility of an uncompensated injury is a risk more than outweighed by recognizing tribal law enforcement authority to pursue offenders off the reservation and detain them if they are non-Indians suspected of a crime,” Anderson wrote in an e-mail.