SAN FRANCISCO (CN) – The Bishop Paiute Tribe’s case over the scope of Indian police powers may be headed back to federal court, according to indications made by the Ninth Circuit Court of Appeals Friday.
Although a federal judge initially dismissed the case, claiming it couldn’t be settled as a matter of law, two judges on the three-judge appeals panel identified separate but related reasons for remanding the case: developing the record, and obtaining “an answer” on whether Indian police officers have the power to stop, restrain and detain non-Indians on tribal land for violations of state and federal law.
“Why don’t you want that issue resolved in the federal courts?” Chief Circuit Judge Sidney Thomas asked John Kirby, an attorney representing Inyo County, its sheriff and district attorney. “There is some conflict on the ground here. Why don’t you want an answer?”
“Your position is not particularly strong,” he added, in the most telling moment of the hearing.
The Bishop Paiute Tribe, a federally recognized tribe in the upper Owens Valley above Bishop, sued Inyo County, its Sheriff William Lutze and its District Attorney Thomas Hardy in March 2015. Lutze and Hardy had arrested and prosecuted a Paiute policeman for trying to enforce a restraining order against a non-Indian on the reservation.
Tribal police officer Daniel Johnson had received a call from a tribal member on the reservation who said that his non-Indian ex-wife was violating a tribal and state domestic violence protective order by being at his home and causing a disturbance.
During his visit to the tribal member’s home, Johnson deployed his Taser against the woman, wrestled her to the ground, and injured her, according to Inyo County’s Ninth Circuit brief.
Two weeks later, Hardy charged Johnson with battery, unlawful use of a Taser, false imprisonment for detaining a non-Indian and falsely representing himself as a state official.
The charge of impersonating a state official has since been dropped, after a court found that Johnson was acting as a tribal police officer. His criminal trial for use of excessive force is set for July.
Lutze also issued a cease-and-desist order instructing tribal police officers not to enforce state laws or carry firearms off the reservation.
According to the Inyo County defendants, tribal police have no legal authority to enforce state or federal laws on or off tribal land.
The tribe, however, maintains that it has “inherent tribal authority” to enforce those laws over both Indians and non-Indians on its reservation. In its lawsuit, the tribe asked for a court order barring the sheriff’s office from arresting and prosecuting its police officers for carrying out their duties, and a declaration that they have the power on the reservation to stop, restrain and detain individuals for violations of tribal, state and federal law.
But Senior U.S. District Judge Garland Burrell dismissed the tribe’s complaint without prejudice in July 2015, based on the tribe’s agreement not to enforce state statutes in response to Lutze’s cease-and-desist order. Burrell ruled that there was no longer a dispute to be litigated between the parties.
Pushing for reversal Friday, the tribe’s attorney Dorothy Alther said the Supreme Court gave tribal police officers the authority 27 years ago to restrain and detain individuals on tribal land.
“All I really want is clarification from the federal court that officers have this authority, that they should not operate under threat of criminal prosecution,” she said. “We shouldn’t have to suffer a criminal prosecution for impersonating a state officer and false arrest.”
In response, Kirby told the panel that the county plans to continue arresting tribal officers who carry firearms off the reservation, adding that “the order that the tribe is seeking is a very general, broad abstract order.”
“It includes all law enforcement activities within all of the states in the Ninth Circuit and federal law enforcement activity,” he said. “There are an infinite number of possible circumstances that would be litigated before this court.”
“We’ve been down this road before,” Sidney responded. “Don’t you want some line of authority? You may win, you may partially win, you may lose, but don’t you want an answer?”
U.S. Circuit Judge Mary Murguia and Senior U.S. District Judge Michael Baylson also sat on the panel.
Alther is with California Indian Legal Services in Escondido. Kirby practices in San Diego.