Tribal Police Can Detain Non-Natives, Supreme Courts Says, But Can't Arrest Tribal forces can investigate and hold non-Native Americans while waiting for back up from state police or federal officers, but they can't arrest them. Tribes say that means criminals going free.

Supreme Court Rules Tribal Police Can Detain Non-Natives, But Problems Remain

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The U.S. Supreme Court last week struck down a challenge to the policing powers of Native American tribes, but many tribal leaders say the ruling doesn't go far enough and leaves in place a system that does not really work. The Mountain West News Bureau's Savannah Maher reports from New Mexico.

SAVANNAH MAHER, BYLINE: On a recent highway patrol shift, police officer Jerome Lucero recalls pulling over a driver who was going 40 miles per hour under the speed limit.

JEROME LUCERO: He had heroin in the middle console on top, with a bunch of syringes in his door and stuff.

MAHER: Normally, this would be probable cause for an arrest. But Lucero, a tribal officer for the Pueblo of Zia, had to think twice.

LUCERO: Yes, I have to take it into consideration if they're Native or non-Native.

MAHER: Tribal law enforcement typically lack jurisdiction to arrest, charge and prosecute non-Natives, whether they're speeding or committing a violent crime. Last week, the Supreme Court ruled unanimously that tribal officers can at least detain non-Natives while waiting for backup. That's what Lucero did on this traffic stop. But he says that authority only goes so far. When he radioed for non-tribal law enforcement to come take over...

LUCERO: They didn't even want to come out. They just flat out said that they were busy.

MAHER: After four hours of waiting, Lucero was out of options. He impounded the man's car and dropped him in the nearest off-reservation town.

LUCERO: He was a free man.

MAHER: Lucero is also the governor of Zia Pueblo, its top political leader, and he says the right to detain is vital. But when non-tribal police aren't willing or able to help, what's left is a gaping loophole for non-Native criminals. Elizabeth Reese, a law professor at Stanford, says this loophole is a dangerous reality on reservations across the country.

ELIZABETH REESE: Federal officers might not get there for hours and hours and hours, if at all, that state police might not want to get involved.

MAHER: And Reese says this problem was created by the U.S. Supreme Court. In a 1978 ruling known as Oliphant, the court stripped tribes of criminal jurisdiction over non-Natives. In that case, the justices reasoned it wasn't their role to mitigate the public safety issues that would arise. But last week, Reese says, the current Supreme Court justices signaled they did consider what's happening on the ground.

REESE: I hear a court that's very concerned about the serial killer on the highway that can't be pulled over and the drunk drivers getting back on the road.

MAHER: So Reese wonders if the court might reconsider the 40-year-old Oliphant precedent.

REESE: In the next few years, decades, who knows? Indian law moves slowly.

MAHER: Attorney Mary Kathryn Nagle sees this coming, too.

MARY KATHRYN NAGLE: This is the beginning of the end of Oliphant.

MAHER: But Nagle, who represents the National Indigenous Women's Resource Center, isn't just looking to the Supreme Court to solve this jurisdictional problem.

NAGLE: Congress has the constitutional authority to do this.

MAHER: The latest version of the sweeping Violence Against Women Act would grant limited tribal authority over non-Native domestic and sexual abusers, but that bill is stalled in the Senate. And Nagle says a more complete jurisdictional fix would likely face even steeper opposition.

NAGLE: I think what's preventing the tiny handful of people who can't get behind tribal jurisdiction is just prejudice.

MAHER: Governor Lucero of the Zia Pueblo agrees there's prejudice at work here and a double standard.

LUCERO: We don't have jurisdiction here on our reservation, but when us Native Americans get off the reservation, they have full jurisdiction over us. So what's the difference? Makes my heart sad to see that happening to us Native Americans.

MAHER: Whether it comes from Congress or the courts, Lucero welcomes a solution. Until his department has full jurisdiction to police non-Natives, he says his community won't be truly safe.

For NPR News, I'm Savannah Maher in Albuquerque.


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