Legal eagle

              The Oklahoma Indian Affairs Commission lists thirty-nine different Indian
Tribal Nations with offices in Oklahoma. Jurisdiction for crimes committed
within Indian Country is a convoluted, complex, and unsettled issue faced by
Oklahoma law enforcement officials across the state. It is subject to the inter-play
of state, federal, and tribal law. It is often dependent upon the tribal
status, or lack thereof, of both the offender and the victim, and the exact na-ture
and location of the crime. This issue of the Legal Eagle explores the in-vestigative
authority of non-Indian/state law enforcement officers in “Indian
Country” for crimes for which investigative and prosecutorial authority
and jurisdiction clearly rests with state authorities. It does not seek to ex-plore
in detail the first necessary determination of whether jurisdiction for a
particular offense rests with state, federal, or tribal authorities.
A summary quick reference summary guide for determining such issues is
provided in Appendix I of this issue, but law enforcement officials should al-ways
consult with their legal advisors should they have any doubt or question
about their jurisdiction and authority in a particular situation.
“Indian country” is defined in 18 U.S.C. § 1151(a)-(c) to include:
(a) all land within the limits of any Indian reservation under the juris-diction
of the United States Government, notwithstanding the issu-ance
of any patent, and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or subse-quently
acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way run-ning
through the same.
Investigative authority of non-Indian/state investigators while in Indian
Country for crimes for which they have jurisdiction is equally complicated
i n t r o d u c t i o n
O S B I
L E G A L
U N I T
• Jimmy Bunn Jr.
Chief Legal
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• Sunne Riedel Day
Legal Counsel
• Carol Furr
Legal Counsel
• Michal Criddle
Administrative
Programs Off.
I N S I D E T H I S
I S S U E :
Introduction 1
Search Warrants 2
Arrest Warrants 4
Other Investigative Acts 5
Cross-Deputization
Agreements 6
Prosecution Venue 6
Appendix 7
I N V E S T I G A T O R Y A U T H O R I T Y F O R S T A T E
C R I M E S I N I N D I A N C O U N T R Y
OSBI
Legal Eagle
Volume 22 , Issue 5 November 2011
V o l u m e 2 2 , I s s u e 5 P a g e 2
P a g e 2 O S B I
and convoluted. It is so complicated that even courts struggle with what the law really is. See Ross v.
Neff, 905 F.2d 1349. Thus, law enforcement officials should always confer with their legal advisors be-fore
undertaking any investigatory action on Indian Land. However, some general rules have emerged in
determining investigative authority for non-Indian investigators who find themselves in Indian Country
If Congress has granted general criminal jurisdiction in Indian Country to the state, state officers have the
same jurisdiction in Indian country as they do in the rest of the state. General criminal jurisdiction has
been given to some states through 18 U.S.C. §§ 1162, 3243. Oklahoma has not been granted criminal
jurisdiction by Congress. Congress created a way for states to acquire criminal jurisdiction without tribal
consent through Pub.L. No. 83-280, 67 Stat. 588 (1953), known commonly as Public Law 83-280. Okla-homa
did not act upon that law, and now Title IV of the Civil Rights Act of 1968, 25 U.S.C. §§ 1321-
1326 (1970), requires consent of the affected Indian tribes. Oklahoma has still not acted to assume juris-diction
through this extra procedure. Ross v. Neff, 905 F.2d 1349, 1352. Since Oklahoma has not ex-pressly
been given general criminal jurisdiction or acted pursuant to congressional authorization, there is
no general local jurisdiction for investigatory acts in Indian Country. Id.
However, the Supreme Court has held that states have not lost their jurisdiction by federal law on Indian
Country of crimes committed outside of Indian Country. Nevada v. Hicks, 533 U.S. 353, 355-6 (2001).
Federal law does not prescribe or suggest that state officers cannot enter into Indian Country to investi-gate
or prosecute crime committed outside of Indian Country. Id.
S e r v i c e o f s e a r c h w a r r a n t s
For service, there appears to be two primary concerns. The first consideration is whether the state has
jurisdiction over the underlying offense. The second is whether the tribe has provisions within its tribal
code regarding state service of process.
There is a split among the courts of the United States as to a state’s ability to act in Indian-country.
However, the majority trend is to allow state service of process, search warrants, and arrest warrants in
Indian country if the state has jurisdiction of the underlying offense and the tribal code has no provision
regarding service of state process. If the tribal code does have provisions regarding state service of proc-ess,
those should be followed. To determine state authority for service of process in Indian country,
courts usually use the infringement test set out in Williams v. Lee, 358 U.S. 217 (1954). See, e.g., State
Securities, Inc., v. Anderson, 506 P.2d 786, 788 (N.M. 1973); Little Horn State Bank v. Stops, 555 P.2d
211, 213 (Mont. 1976), cert. den., 431 U.S. 924 (1977). The infringement test states, “Essentially, absent
governing Acts of Congress, the question has always been whether the state action infringed on the right
of reservation Indians to make their own laws and be ruled by them.” Williams, 358 U.S. at 220.
Nevada v. Hicks is the major Supreme Court case discussing searches by state officers in Indian country;
however, the actual holding addressed whether the tribal court could regulate the conduct of state officers
executing state search warrants by bringing them into tribal court as defendants in civil law suits, making
them vulnerable to penalties for violation of the civil rights of tribes or tribal members. 533 U.S. 353
(2001). Even though the court dealt with tribal court jurisdiction over civil claims, the analysis of state
criminal investigative jurisdiction was essential to its holding. Id. at 357-65. Significantly, the court
held that states retain jurisdiction to execute state criminal process in Indian country for off-reservation
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crimes. Id. at 363. Process was defined as, “any means used by a court to acquire or exercise its juris-diction
over a person or over specific property.” Id. at 364 (quoting Black's Law Dictionary 1084 (5th
ed. 1979)). The reasoning was that allowing service of state process in Indian Country is necessary to
preventing such areas from becoming “an asylum for fugitives from justice.” Id. The Court found tribal
authority to regulate state officers executing process related to the off-reservation violation of state law
was not essential to tribal self-government or internal relations. Id. The Court also found that the
state’s interests in execution of process are considerable and does not impair tribal self-government any
more than federal enforcement of federal law impairs state government. Id.
Oklahoma State Courts have not issued a decision directly on point. Based upon similar reasoning
within a civil case, however, Oklahoma law appears to be consistent with the general rule that a state
may issue and execute search warrants within Indian-country if the state has jurisdiction over the under-lying
offense and there are no tribal code provisions regarding how to execute such state search war-rants.
In LeClair v. Powers, the Oklahoma Supreme Court stated, “Indian country is not a federal en-clave
off limits to state process servers.” 632 P.2d 370, 374 (Okla.1981). The Court held that service of
state process in Indian country did not interfere with self-governing activities of the Indian tribe because
it did not violate a governing provision of the tribal code. Id. at 375–76. In LeClair, service of process
was executed in a divorce proceeding on a husband in an Indian hospital. Id. at 372. The state court
had jurisdiction over the husband, even though he was an Indian allegedly residing on Indian land dur-ing
the pendency of the proceedings, because the parties did not live on Indian country during their mar-riage.
Id. at 373-4. It was also unsettled whether the wife was Indian. Id. at 374. Based upon LeClair
and Hicks, it appears Oklahoma non-Indian investigators likely can execute search warrants within In-dian
country as long as state courts have jurisdiction of the underlying offense and there are either no
related tribal code provisions, or as long as those established tribal procedures are followed.
The Idaho Supreme Court held that a state court had jurisdiction to issue a search warrant to be executed
in Indian country for a crime allegedly committed by a tribal member off Indian Country. State v.
Mathews, 986 P.2d 323 (Idaho 1999), cert denied, 528 U.S. 1168 (2000). The Court found tribal sover-eignty
was not infringed by the state court when it issued a search warrant that was executed in Indian
Country because the state had jurisdiction over the underlying crime, an off-reservation murder, and
tribal law did not have procedures for executing the warrant within Indian Country. Id. at 337. The
Court also found no federal preemption because no federal law existed regarding service of state search
warrants in Indian Country. Id. at 337.
Other states also allow service by state officials under similar reasoning. Landreman v. Martin, 530
N.W.2d 62 (Wis.App.1995); In re M.L.S., 458 N.W.2d 541 (Wis.App.1990) (state has a compelling in-terest
in enforcing its service of process procedures in cases where it has subject matter and personal
jurisdiction over an Indian residing on the reservation who has violated a law off the reservation and
returns to the reservation); Little Horn State Bank v. Stops, 555 P.2d 211 (Mont. 1976), cert. den., 431
U.S. 924 (1977) (service of process on an Indian on the reservation did not infringe upon tribe’s right to
self government); State Securities, Inc., v. Anderson, 506 P.2d 786 (N.M. 1973) (state court could obtain
jurisdiction over Indians while on reservation, for off-reservation conduct, by issuing and serving proc-ess
on them while they were on the reservation).
The Tenth Circuit appears to also follow the general rule. In United States v. Baker, 894 F.2d 1144,
1147 (10th Cir.1990), the Tenth Circuit suppressed evidence because the county district court exceeded
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its jurisdiction when it issued a search warrant for property on tribal Indian Country because the state
had no jurisdiction over the underlying offense being prosecuted, including authority to execute a search
warrant. In Baker, the conduct occurred on the reservation and was a violation of federal law. Thus, in-vestigative
and prosecution authority rested with federal authorities. Had investigative and prosecution
authority rested with the state because the crime occurred outside of Indian Country, the execution of
the warrant would have been authorized.
Not all jurisdictions agree with the general rule. See, e.g., Francisco v. State, 556 P.2d 1, 2 (Ariz. 1976)
(deputy sheriff had no authority to personally serve process on an Indian in Indian country); Martin v.
Denver Juvenile Ct., 493 P.2d 1093, 1094 (Colo. 1972) (state’s courts do not have jurisdiction over an
Indian served on a South Dakota reservation by South Dakota authorities, because “sheriffs and their
deputies in [South Dakota] have no authority within the closed portion of a reservation over enrolled
Indians therein.”). In South Dakota, state officials have no jurisdiction to serve process on Indians in
Indian country. Bradley v. Deloria, 587 N.W.2d 591, 593 (S.D. 1998).
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A r r e s t w a r r a n t s
The exact issue of validity of an arrest warrant executed by state officers in Indian country has
not been addressed in Oklahoma, but based upon the same reasoning and with the same constraints as
applies to search warrants, arrest warrants are also likely valid in limited circumstances. Again, the
state would need to have jurisdiction of the underlying crime, and tribal code procedures would need to
be followed if they exist.
In June of 2010, the New Mexico Supreme Court discussed Nevada v. Hicks in depth, finding it
supported a state officer’s authority to investigate an off-reservation crime while in Indian-country.
State v. Harrison, 238 P.3d 869, 878. The reasoning was that the term “process” encompasses all state
criminal process or procedure. Id (citing Black’s Law Dictionary 1325 (9th ed. 2004)). In Harrison, a
county officer stopped an Indian defendant’s vehicle in Indian country after he observed him speeding
and throw a clear bottle with yellow liquid out of the window. Id. at 880. The officer also conducted
field sobriety tests which the Court held didn’t violate tribal sovereignty. Id. at 869. Ultimately, the
Court found the traffic stop to determine the scope of authority to investigate, and the following investi-gation,
were legal. Id. The man was later arrested after the deputy secured a warrant which was exe-cuted
in compliance with tribal code procedures. Id. at 511. These procedures did not violate tribal
sovereignty. Id.
P a g e 5 O S B I
Montana has addressed the validity of a state issued arrest warrant. The Montana Supreme
Court held that execution of a state arrest warrant by a state officer for an Indian in Indian country was
valid in absence of tribal court regulations regarding the procedure. State ex rel. Old Elk v. District
Court of Big Horn, 552 P.2d 1394, 1398 (Mont. 1976). The offense had been committed outside of
Indian Country, giving jurisdiction to the state. It appears that where no tribal procedure exists, there
cannot be an infringement upon tribal sovereignty.
O t h e r i n v e s t i g a t i v e a c t s
Oklahoma Courts have not directly addressed whether an Indian may be arrested by state officers in
Indian country when the officers are in hot pursuit and the crime was committed off of Indian country.
The Tenth Circuit, addressing an Oklahoma case, held that a state officer making a warrantless arrest
for public intoxication of an Indian in Indian country did not have jurisdiction to do so. Ross v. Neff,
905 F.2d 1349, 1354 (10th Cir. 1990). Although the Court stated that an arrest outside of an officer’s
jurisdiction violates the Fourth Amendment, in a footnote the Court stated, “We do not in this opinion
intend to cast doubt upon the constitutional validity of extra-jurisdictional arrests made by police offi-cers
in ‘hot pursuit.’” Id. at n. 6. It seems unclear whether non-Indian officers in hot pursuit of an In-dian
defendant, who has committed a crime off Indian country, may continue to arrest that defendant
when he enters Indian country. Courts that have addressed the issue seem to look at whether the tribal
code has provisions for extradition. If so, then the state generally must follow those procedures and
may not make an arrest, even in hot pursuit, without violating tribal sovereignty.
Other states have addressed the hot pursuit issue. The New Mexico Supreme Court gave an in
depth analysis on the issue in 2010. The Court ultimately found that where valid extradition proce-dures
exist, the arrest of an Indian in Indian country is illegal, regardless of fresh pursuit or if state in-terests
are great due to the seriousness of the crime involved. State v. Harrison, 238 P.3d 869, 877
(N.M. 2010) (citing City of Farmington v. Benally, 892 P.2d 629, 632 (N.M.App.,1995); State v.
Yazzie, 777 P.2d 916, 918 (N.M.App.,1989)). The Court reasoned that whether state authority in-fringes
on tribal sovereignty turns on the existence of a governing tribal procedure. Id. South Dakota
has found state officers do not have authority to pursue Indians onto reservations and continue to gather
evidence unless they have tribal consent or a warrant. South Dakota v. Cummings, 679 N.W.2d 484,
489 (S.D. 2004).
Arizona found an arrest of a tribal member made on a reservation after close pursuit did not in-terfere
with tribal sovereignty because the state did not have an extradition agreement with the tribe,
and no tribal laws existed regarding state authority to arrest a tribal member in a close pursuit situation.
State v. Lupe, 889 P.2d 4 (Ariz. Ct. App. 1994). Montana found a state officer had jurisdiction to arrest
an Indian defendant on an Indian reservation after hot pursuit for a reckless driving charge the officer
observed within his jurisdiction off Indian country. City of Cut Bank v. Bird, 38 P.3d 804 (Mont.
2001). The Ninth Circuit has also held that a police officer who observes a traffic violation within his
jurisdiction may pursue the offender into Indian country to make the arrest, based upon the hot pursuit
doctrine. United States v. Patch, 114 F.3d 131, 134 (9th Cir. 1997). The Ninth Circuit did not address
whether the tribe had extradition procedures.
P a g e 6 O S B I
Because the Supreme Court stated that nothing in the federal scheme restricts officers from en-tering
a reservation to investigate or prosecute violations of state law occurring outside of Indian Coun-try,
it appears that validity of arrests made in hot pursuit will turn on the infringement test and tribal
sovereignty. If no extradition procedures or related tribal provisions exist, then arrests in hot pursuit
will likely be valid.
It appears that a valid Terry stop may be made of vehicles in Indian country breaking state law,
in order for an officer to determine if he has jurisdiction. United States v. Patch, 114 F.3d 131 (9th Cir.
1997); State v. Harrison, 238 P.3d 869, 877 (N.M. 2010). Those courts reasoned that without a brief
stop to determine one thing, whether the person is a tribal member, it is impossible for the state officer
to know whether he or she has jurisdiction. Id.
C r o s s - d e p u t i z a t i o n a g r e e m e n t s
Some of the issues involved with jurisdiction in Indian country can be dealt with through cross-deputization
agreements. Such agreements can extend jurisdiction to non Indian authorities in the In-dian
Country of a particular tribe agreeing to the same. A list of agreements, Secretary of State filing
numbers, and filing or effective dates can be found at the Oklahoma Indian Affairs Commission’s web-site.
Resources and links to find tribal codes can also be found at the Oklahoma Indian Affairs Com-mission’s
website. http://www.ok.gov/oiac.
P r o s e c u t i o n v e n u e
For crimes in Oklahoma Indian country subject to federal jurisdiction, federal courts will generally ac-quire
subject matter jurisdiction through 18 U.S.C. §§ 13, 1151-1153. Venue will be proper under
which district and division the conduct took place in, thus which district and division the Indian country
is located in. See 28 U.S.C. § 116. Indians committing crimes listed under the Major Crimes Act are
tried in the same courts as anyone else violating laws within exclusive federal jurisdiction. 18 U.S.C. §
3242.
For crimes under state jurisdiction, the proper court is whichever court would normally have venue over
the conduct, likely the district court in the county where the offense is committed. There appears to be
no special rules regarding particular venue with regard to offenses that the state has jurisdiction over.
Thus, when dealing with defendants for crimes committed off Indian country, regular rules regarding
proper courts for prosecution apply. Venue is likely to be determined pursuant to statutory provisions,
elements of the crime(s), and the Oklahoma Constitution.
P a g e 7 O S B I
Appendix I Quick Reference to Jurisdiction for Crimes Committed within Indian
Country
The first consideration is whether the offense was committed within Indian country as defined by
18 U.S.C. § 1151. Indian country generally includes tribal trust lands, dependent Indian communities,
and Indian allotments where Indians still hold title. If the offense was not committed within Indian coun-try,
normal rules of jurisdiction apply.
If the crime was committed within Indian country, then what is the status of the victim(s) and de-fendant(
s), and what was the nature of the crime? The following chart can be used to assist these two
questions.
VICTIM CRIMES An offense against the person
or property of a victim:
Jurisdiction
Indian Victim Major Crimes Act offenses: murder,
manslaughter, kidnapping, maiming, a
felony under chapter 109A [sexual
abuse], incest, assault with intent to
commit murder, assault with a danger-ous
weapon, assault resulting in serious
bodily injury (as defined in 18 U.S.C.
Sect. 1365), an assault against an indi-vidual
who has not attainted the age of
16 years, felony child abuse or neglect,
arson, burglary, robbery, and a felony
under sec. 661 [theft] of Title 18
Federal
Indian Victim All remaining crimes in tribal code, or
in absence of tribal code code, 25
C.F.R. Pt. 11
Federal
Non-Indian Victim Major Crimes Act Crimes Federal
Non-Indian Victim All remaining crimes in state code (with
no federal statute for offense) under the
Assimilative Crimes Act and Indian
Country Crimes Act, 18 U.S.C., Sec. 13,
1152
Federal
Non-Indian Victim All remaining crimes in tribal code, or
in absence of tribal code, 25 C.F.R. Pt.
11
Tribal
INDIAN COMMITTING CRIME IN INDIAN COUNTRY
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INDIAN COMMITTING CRIME IN INDIAN COUNTRY
VICTIMLESS CRIMES No victim’s person or property
involved in the crime
Jurisdiction
Crimes in state code (where no federal
statute for the offense) under Assimila-tive
Crimes Act, 18 U.S.C., Sec. 13,
1152
Federal
Crimes in tribal code, or in absence of
tribal code, 25 C.F.R., Pt. 11
Tribal
FEDERAL CRIMES OF GEN-ERAL
APPLICABILITY
Federal Crimes of General Ap-plicability
to All Persons
See individual statutes
Federal
NON-INDIAN COMMITTING CRIME IN INDIAN COUNTRY
VICTIM CRIMES An offense against a person or
property of a victim
Jurisdiction
Indian Victim Indian Country Crimes Act (general
laws of the United States. For example,
arson [18 U.S.C., Sec. 81], assault [18
U.S.C., Sec. 113], domestic violence
[18 U.S.C., Sec. 2261], larceny [18
U.S.C., Sec. 661], receiving stolen
property [18 U.S.C., Sec. 662], murder
[18 U.S.C., Sec. 1111], manslaughter
[18 U.S.C., Sec. 1112], kidnapping [18
U.S.C., Sec. 1201, robbery [18 U.S.C.,
Sec. 2111], and sexual abuse [18
U.S.C., Sec. 2241-2248}
Federal
Indian Victim All remaining crimes in state code (with
no federal statute for offense) under the
Assimilative Crimes Act and Indian
Country Crimes Act, 18 U.S.C. Sec. 13,
1152)
Federal
Non-Indian Victim All crimes within state code, U.S. v.
McBratney, 104 U.S. 621
State
VICTIMLESS CRIMES No victim’s person or property
involved in the crime
State
FEDERAL CRIMES OF
GENERAL APPLICABILITY
Federal Crimes of General Ap-plicability
to All Persons
See Individual Statutes
Federal