Whither Hot Pursuit?: Eriksen's Silver lining

On September 1, 2011, the Washington State Supreme Court issued what seems, at first glance, to be a striking blow to the tribal police power. In State v. Eriksen, No. 80653–5, 2011 WL 3849504 (Wash. Sep 01, 2011), the Court ruled quite simply that Tribal police officers do not have the authority to stop and detain suspects off of the Reservation:

The inherent sovereign power [to stop a non-Indian driver on a public road within the reservation and detain him until state officers arrive] does not logically extend beyond reservation boundaries.   The State is correct that preventing tribal police from stopping and detaining drivers off the reservation would “undercut the Tribe's ability to enforce tribal law” by encouraging drivers to race for the reservation border and escape detention. . . . While this is troubling on a policy level, the concept of territorial jurisdiction necessarily limits any sovereign’s ability to fully enforce its laws.

Id. at *3.  Using the example of an adjacent state’s authority to do the same, the Court then cited to State v. Barker, 25 P.3d 423 (Wash. 2001), where it held that:

Oregon’s ability to enforce its traffic code was undercut when we held that an Oregon officer could not stop and detain an offender who crossed the state border.  That impediment to enforcement alone did not mean that Oregon’s sovereignty was compromised.  Rather, the limitation on Oregon’s authority to enforce its laws flowed necessarily from Oregon’s own geographic boundaries.

Id. at *4.

Eriksen had a very odd procedural posture.  In 2009, the Court approved the use of off-Reservation Tribal police power in these circumstances, holding that, based upon the “inherent power of [tribal] self-governance, which includes the power to prescribe and enforce internal criminal laws,” tribal governments have the authority “to enforce [their] laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”  State v. Eriksen, 216 P.3d 382, 387, 393 (Wash 2009).  The appellant then moved for reconsideration, and in 2010 the Court again held that tribal governments possess the “sovereign authority [to] detain . . . non–Indian offenders who violate traffic laws until state authorities can assume custody.”  State v. Eriksen, 241 P.3d 399, 403 (Wash. 2010) (en banc).  The plaintiff then moved to reconsider a second time, which resulted in the immediate case overruling the other two.

Professor Fletcher rightly asks in his post on Turtle Talk, “[f]irst it was 9-0, then 6-3, and now 6-3 the other way.  What happened?”  What did happen?  Or, more importantly, what does this ruling mean for Washington State Tribes?

The unfortunate consequence of this ruling, as noted by one of the dissents, is that it gives incentive for anybody being pursued by Tribal police to make a hazardous run for the boarder.

However, upon further appraisal, the decision has its upsides too.  First, it shows that the Washington State Supreme Court is willing to entertain a true government-to-government relationship with tribes when it comes to the Tribal police power.  The discussion of Oregon’s police power was not happenstance.  Just as “the limitation on Oregon’s authority to enforce its laws flowed necessarily from Oregon’s own geographic boundaries,” Washington State does not have the authority to cross into Oregon and enforce its laws.  It follows, then, that the same is true on the Reservation.  Implicitly, Eriksen stands for the proposition – indeed, a chestnut rule that has lately been ignored by some state agencies – that Washington State agencies do not have any authority to cross into the Reservation in a law enforcement capacity.  Although in recent years some courts have attempted to whittle away at this rule, the Court’s opinion in Eriksen exhibits an eagerness to honor it.

Second, Eriksen provokes the necessity of expanding the authority of Tribal police in order to fill gaps in the State’s current crime control regime.  Particularly important here, litigation wise, was that the State and the tribe were working together.  The State argued that the tribes do have the power to enforce law outside of the Reservation.  Clearly, tribal jurisdiction in this instance is something that everyone (aside from the defendant) wanted.

Notably, Eriksen comes on the heels of the Oregon legislature passing a law that gives Tribal police the power lacking under Washington’s new judicially-derived rule.  SB-412, signed into law on July 22, 2011, modifies Oregon’s statutory definition of “police officer” to hinge on training, rather than the personal judgments of local sheriffs.  Under this law, Tribal police have the same authority as other Oregon police – on and off of the Reservation, and in-between.

Given the odd procedural history of the suit, one cannot help but wonder if the Oregon law isn’t the answer to the “what happened” question posed by Professor Fletcher.  More importantly, one can only hope that the Washington State legislature views the decision in this light. As it currently stands, Wash. Rev. Code Ann. § 10.92.020 does allow that “[a] tribal police officer recognized and authorized to act as a general authority Washington peace officer under this section has the same powers as any other general authority Washington peace officer to enforce state laws in Washington, including the power to make arrests for violations of state laws.”  That power is limited, however, in that it “coextensive with the exterior boundaries of the reservation, except that an officer commissioned under this section may act . . . beyond the exterior boundaries of the reservation” only:

(1) Upon the prior written consent of the [state] sheriff or chief of police . . . ; (2) In response to an emergency involving an immediate threat to human life or property; (3) In response to a request for assistance pursuant to a mutual law enforcement assistance agreement with the [state]; (4) When the officer is transporting a prisoner; (5) When the officer is executing an arrest warrant or search warrant; or (6) When the officer is in fresh pursuit . . . .

Id. at § 10.93.070; see also generally Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity and the New Regionalism, 78 Wash L. Rev. 93, 120 n.108 (2003).  Further, because the accreditation process is left up to the judgments of local sheriffs, rather than on the basis of the officer training, only the Swinomish Police Department has obtained Washington State accreditation under the current law.

If anything, in Eriksen the Washington State Supreme Court has signaled that the current system of tribal/state policing does not work.  Working with tribal governments to foster a mutually beneficial crime control system?  In a manner that respects tribal sovereignty?  Could the Washington State Supreme Court be signaling an endorsement of these (not so) novel ideas?  I hope so.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.