Arizona Tribal Police Authority | Can a Tribal Police Officer Detain and Search a Non-tribal Individual?
How far can tribal police authority extend? Arizona has twenty federally recognized tribes. Many of these tribes have resorts and casinos that actively invite non-tribal persons to come onto tribal land. Most have public right-of-ways (state and federal highways) that cross through tribal land. As a criminal defense attorney, I am routinely asked about the limits of a tribal police officer’s authority over non-tribal individuals.
In Arizona, police officers are certified by a statewide agency known as the Peace Officers Standards and Training Board, commonly referred to as “POST.” Once a police officer has received POST certification, that officer has authority anywhere within the State of Arizona. [See A.R.S. § 13-3871 through § 13-3875]. Arizona Revised Statutes § 13-3874 notes that any tribal police officer who has received an Arizona POST certification “shall possess and exercise all law enforcement powers of peace officers in this state.” For that reason, many tribal police departments require all their officers to be Arizona POST-certified thereby giving tribal police authority over all citizens.
Even if a tribal police officer in Arizona is not POST certified, however, federal law gives tribal police authority to temporarily detain and search non-tribal individuals who are suspected of violating state or federal law.
In 2016, a tribal police officer observed a truck parked on the side of Highway 212 in Montana (a public right-of-way located within the Crow Reservation). Believing the occupants might need assistance, the tribal officer stopped and spoke with the driver, Joshua Cooley. Not only did Mr. Cooley appear to be intoxicated, but the officer observed “two semiautomatic rifles lying on the front seat.” United States v. Cooley, 141 S.Ct. 1638, 1642, 210 L. Ed 2d 1, 5-6 (2021).
Fearing violence, the officer ordered Mr. Cooley out of the truck and conducted a pat down search. While waiting for backup officers to arrive, the Crow officer observed drugs in plain view. Additional officers, including a federal officer with the Bureau of Indian Affairs, arrived at the scene. A search of Mr. Cooley’s vehicle by the Crow Police led to the discovery of more drugs and additional weapons. 141 S. Ct. at 1642, 210 L. Ed 2d at 6. Mr. Cooley was ultimately charged with gun and drug offenses in federal court.
More than forty years ago, the United States Supreme Court declared that tribes lack power to prosecute non-tribal individuals. See Oliphant v. Suquamish Tribe, 435 U.S. 191. As a result, Mr. Cooley moved to suppress the gun and drug evidence because he believed the Crow officers lacked authority to detain and search his vehicle.
In upholding the temporary detention and accompanying search of Cooley’s vehicle, the Supreme Court affirmed that a “tribe retains inherent sovereign authority to address conduct that threatens or has some direct effect on the health or welfare of the tribe.” 141 S.Ct. at 1641, 210 L. Ed 2d at 5. “Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him [or her] to the proper authorities.” “The authority to search a non-Indian prior to transport is ancillary to this authority” to detain and transport. 141 S.Ct. at 1644, 210 L. Ed 2d at 11.
Our attorneys have vast experience in defending non-tribal individuals who have been temporarily detained by tribal police. If you were detained or searched by a tribal officer but ultimately charged in state or federal court, please give us call at (480) 833-2341.
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