Amicus Curiae Brief — United States, Petitioner v. Joshua James Cooley

No. 19-1414

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------UNITED STATES OF AMERICA,

Petitioner,

vs.

JOSHUA JAMES COOLEY,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------BARBARA BERGMAN

Co-Chair, Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1201 East Speedway Boulevard

Tucson, Arizona 85721

(520) 621-3984

bbergman@email.arizona.edu

JON M. SANDS

Federal Public Defender

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal

Public Defender

850 West Adams Street,

Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

(602) 382-2800 facsimile

keith_hilzendeger@fd.org

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

IDENTITY AND INTEREST OF AMICUS

CURIAE ............................................................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

2

ARGUMENT ........................................................

4

1.

2.

3.

Congress has authorized the Secretary of

the Interior to enter into agreements with

tribal governments under which tribal

law-enforcement officers are certified to

enforce generally applicable federal criminal laws in Indian country .......................

4

By extending to tribal governments the

power to enforce generally applicable federal criminal law in Indian country, Congress has exercised its power to delegate

law-enforcement authority to the tribes

without undermining tribal sovereignty .....

7

The government’s fear that special lawenforcement commissions will undermine

tribal sovereignty is misplaced ................. 14

CONCLUSION..................................................... 19

ii

TABLE OF AUTHORITIES

Page

CASES

Boney v. Valline, 597 F. Supp. 2d 1167 (D. Nev.

2009) .................................................................... 8, 17

Cabazon Band of Mission Indians v. Smith, 388

F.3d 691 (9th Cir. 2004) ....................................... 7, 17

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

(1831) ................................................................... 2, 11

Duro v. Reina, 495 U.S. 676 (1990) ..................... passim

Hagen v. Utah, 510 U.S. 399 (1994) ........................ 18

Hopland Band of Pomo Indians v. Norton, 324

F. Supp. 2d 1067 (N.D. Cal. 2004) ............... 4, 6, 8, 13

Los Coyotes Band of Cahuilla & Cupeño Indians

v. Jewell, 729 F.3d 1025 (9th Cir. 2013) ....................4

Michigan v. Bay Mills Indian Community, 572

U.S. 782 (2014) ..........................................................2

Montana v. United States, 450 U.S. 544 (1981) ...........2

Negonsott v. Samuels, 507 U.S. 99 (1993) ..................10

Oliphant v. Suquamish Indian Tribe, 435 U.S.

191 (1978) ................................................................15

Salazar v. Ramah Navajo Chapter, 567 U.S. 182

(2012) .......................................................................13

Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978) .........................................................................2

State v. Nelson, 90 P.3d 206 (Ariz. Ct. App. 2004) .......18

United States v. Anderson, 391 F.3d 1083 (9th

Cir. 2004) ...................................................................7

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Begay, 42 F.3d 486 (9th Cir.

1994) ..........................................................................7

United States v. Bryant, 136 S. Ct. 1954 (2016)...........2

United States v. Cleveland, 356 F. Supp. 3d 1215

(D.N.M. 2018) ...................................................... 8, 17

United States v. Cooley, 919 F.3d 1135 (9th Cir.

2019) ........................................................................14

United States v. Enas, 255 F.3d 662 (9th Cir.

2001) ...................................................................... 2, 3

United States v. Errol D., 292 F.3d 1159 (9th Cir.

2002) ..........................................................................7

United States v. Lara, 541 U.S. 193 (2004) .... 2, 9, 10, 11

United States v. Mazurie, 419 U.S. 544 (1975) ..... 11, 12

United States v. Mitchell, 502 F.3d 931 (9th Cir.

2007) ..........................................................................7

United States v. Wheeler, 435 U.S. 313 (1978) ..... 3, 10, 15

Vallo v. United States, 298 F. Supp. 2d 1231

(D.N.M. 2003) ....................................................... 17

Washington v. Confederated Bands and Tribes of

Yakima Nation, 439 U.S. 463 (1979) .......................10

STATUTES AND REGULATIONS

5 U.S.C. § 3374(c)(2) ....................................................17

18 U.S.C. § 1114 ..........................................................17

18 U.S.C. § 1152 .................................................. 9, 18

iv

TABLE OF AUTHORITIES—Continued

Page

18 U.S.C. § 1153 .................................................. 9, 18

21 U.S.C. § 872(a)(1) .....................................................5

21 U.S.C. § 873(a) ..........................................................5

25 U.S.C. § 450a(a) ......................................................13

25 U.S.C. § 1301(2) ......................................................10

25 U.S.C. § 1302(7) (1986) ..........................................11

25 U.S.C. § 2801 ..........................................................12

25 U.S.C. § 2803(3)(B) ...................................................6

25 U.S.C. § 2804 .................................................... 17, 18

25 U.S.C. § 2804(a)(1) ......................................... 5, 8, 12

25 U.S.C. § 2804(a)(2) ...................................................6

25 U.S.C. § 2804(a)(3) .................................................12

25 U.S.C. § 2804(a)(3)(B) ..............................................6

25 U.S.C. § 2804(f )(1)(A) .............................................17

25 U.S.C. § 2805 ..........................................................13

25 U.S.C. § 2815 ..........................................................16

Ariz. Rev. Stat. § 13-3874(A).......................................18

Indian Alcohol and Substance Abuse Prevention

and Treatment Act of 1986, Pub. L. No. 99570, § 4217, 100 Stat. 3207 (1986) ..........................11

Pub. L. No. 101-511, § 8077(b)–(d), 104 Stat.

1856 (1990) ..............................................................10

Pub. L. No. 102-137, 105 Stat. 646 (1991) .....................10

Pub. L. No. 111-211, § 232, 124 Stat. 2261 (2010)...... 5, 16

v

TABLE OF AUTHORITIES—Continued

Page

Tribal Law and Order Act of 2010, Pub. L. No.

111-211, § 231(b), 124 Stat. 2261 (2010) ..................5

25 C.F.R. § 12.21 ...........................................................6

25 C.F.R. § 12.22 .........................................................15

25 C.F.R. § 12.35 .........................................................12

OTHER AUTHORITIES

Byron Dorgen, The Tribal Law and Order Act of

2009, S. Rep. No. 111-93 (2009) ............................ 4, 5

Developments in the Law—Indian Law, 129

Harv. L. Rev. 1652 (2016) ...................... 15, 16, 17, 18

Internal Law Enforcement Services Policies, 69

Fed. Reg. 6321 (2004) ..............................................13

Kevin Morrow, Bridging the Jurisdictional

Void: Cross-Deputization Agreements in Indian Country, 94 N.D. L. Rev. 65 (2019) ........... 16, 19

Order, United States v. Tauz Abner Henderson,

No. 3:18-cr-8112-PCT-DJH (D. Ariz. Jun. 11,

2018) ........................................................................17

William C. Canby, Jr., American Indian Law

(6th ed. 2015) .............................................................9

1

IDENTITY AND INTEREST

OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional bar association that works on behalf of criminal

defense attorneys to ensure justice and due process

for those accused of crime or misconduct. NACDL was

founded in 1958. It has a nationwide membership of

many thousands of direct members, and up to 40,000

counting affiliates. NACDL’s members include private

criminal defense lawyers, public defenders, military

defense counsel, law professors, and judges. NACDL is

the only nationwide professional bar association for

public defenders and private criminal defense lawyers.

NACDL is dedicated to advancing the proper, efficient,

and fair administration of justice. NACDL files numerous amicus briefs each year in the U.S. Supreme Court

and other federal and state courts, seeking to provide

amicus assistance in cases that present issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal justice system as a whole.

Accordingly, NACDL has a particular interest in ensuring that non-Indian citizens who interact with

tribal law-enforcement officers are afforded all the

1

No counsel for any party authored this brief either in whole

or in part. No party or party’s counsel made a monetary contribution intended to fund the preparation or submission of this brief.

No person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

This brief is filed pursuant to the written consent of counsel for

the petitioner and the respondent obtained on February 4, 2021,

and February 14, 2021, respectively.

2

rights that they enjoy when interacting with federal,

state, and local law-enforcement officers.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

For two centuries, this Court has said that “Indian

tribes are domestic dependent nations that exercise

inherent sovereign authority.” Michigan v. Bay Mills

Indian Community, 572 U.S. 782, 788 (2014); see

also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17

(1831). Due to this “unique situation,” Indian tribes

“cannot exercise the full measure of their sovereign

powers.” United States v. Lara, 541 U.S. 193, 218 (2004)

(Thomas, J., concurring). This arrangement gives rise

to a dilemma.

On the one hand, because they are “separate

sovereigns pre-existing the Constitution, tribes have

historically been regarded as unconstrained by those

constitutional provisions framed specifically as limitations on federal or state authority.” United States v.

Bryant, 136 S. Ct. 1954, 1962 (2016) (quoting Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). For

this reason, tribes have retained inherent power to

“punish tribal offenders,” to “determine tribal membership, to regulate domestic relations among members,

and to prescribe rules of inheritance for members.”

Montana v. United States, 450 U.S. 544, 564 (1981). But

on the other hand, “tribal autonomy is not sovereignty

in the ordinary sense.” United States v. Enas, 255 F.3d

3

662, 666 (9th Cir. 2001) (en banc). “It exists only at the

sufferance of Congress and is subject to complete defeasance.” United States v. Wheeler, 435 U.S. 313, 323

(1978). “Congress can limit tribal power and, conversely, can add to it.” Enas, 255 F.3d at 666. When a

tribe exercises a power that is “inconsistent with” its

dependent status, that power only can come “by delegation from Congress, subject to the constraints of the

Constitution.” Duro v. Reina, 495 U.S. 676, 686 (1990)

(emphasis added).

In this case, an officer empowered to enforce only

tribal law detained and searched a non-Indian on

tribal land, and uncovered evidence of criminal activity

that later became the subject of a prosecution in federal court. The encounter began as a welfare check; the

officer had no indication when the encounter began

that there was any criminal activity afoot. The court of

appeals suppressed the evidence that the tribal officer

uncovered because the officer was acting outside the

scope of the tribe’s authority to enforce the law against

non-Indians. But Congress has allowed tribes to affirmatively request and obtain the authority to enforce

generally applicable federal criminal law against all

persons on the reservation, Indian and non-Indian

alike. Because these agreements delegate power to the

tribes to enforce federal law, they enhance tribal lawenforcement authority without undermining tribal

sovereignty in any way. For want of such a cross-deputization agreement here, this Court should affirm the

decision of the court of appeals.

---------------------------------♦---------------------------------

4

ARGUMENT

1. Congress has authorized the Secretary of

the Interior to enter into agreements with

tribal governments under which tribal lawenforcement officers are certified to enforce

generally applicable federal criminal laws

in Indian country.

“The enforcement of federal criminal statutes . . .

on tribal lands has traditionally been the responsibility of the Department of the Interior’s Bureau of Indian Affairs.” Hopland Band of Pomo Indians v.

Norton, 324 F. Supp. 2d 1067, 1072 (N.D. Cal. 2004).

“In 1990, Congress enacted the Indian Act Law Enforcement Reform Act . . . in response to many of the

concerns with the system of justice in place on Indian

lands.” Byron Dorgen, The Tribal Law and Order Act

of 2009, S. Rep. No. 111-93, at 10 (2009). This Act authorized the Bureau of Indian Affairs “to enter into

deputation agreements with tribes to enforce federal

law, maintain a qualified force and to deputize qualified tribal police officers to enforce federal law on

Indian lands.” Hopland Band of Pomo Indians, 324

F. Supp. 2d at 1072. However, as of 2009 the BIA had

not “established specific criteria, timeframes for approval, or provided training opportunities or technical

assistance to tribal officers to obtain” the authority to

enforce federal law in Indian country. Dorgen, supra,

at 11.

The Tribal Law and Order Act of 2010 “generally

sought to improve cooperation between federal law enforcement and tribes.” Los Coyotes Band of Cahuilla &

5

Cupeño Indians v. Jewell, 729 F.3d 1025, 1032 (9th Cir.

2013) (citation omitted). This effort grew out of a federal-tribal “pilot program to train tribal, state, and local law enforcement officers on-site in Southwestern

Colorado in the enforcement of federal criminal laws.”

Dorgen, supra, at 11. Ultimately the pilot program

“grew into 14 separate training sessions throughout

Indian country, attended by more than 400 officers

representing 35 tribes and 17 states.” Id. Because of

the success of these programs, Congress included in

the Tribal Law and Order Act provisions that required

the Secretary of the Interior to codify a certification

program in regulations and expand the opportunities

available to tribal law-enforcement officers to obtain

permission to enforce federal law. Id. at 12.

Specifically, Congress authorized the Secretary

of the Interior to “establish procedures to enter into

memoranda of agreement” for tribal law-enforcement

personnel to aid in the enforcement of federal law in

Indian country. Tribal Law and Order Act of 2010, Pub.

L. No. 111-211, § 231(b), 124 Stat. 2261, 2273 (2010)

(codified at 25 U.S.C. § 2804(a)(1)).2 Under these memoranda, the Secretary may authorize employees of a

tribal law-enforcement agency to carry out the same

2

Congress also authorized the DEA to “provide grants and

technical assistance to tribal police to address drug trafficking in

Indian country.” Dorgan, supra, at 23; Pub. L. No. 111-211, § 232,

124 Stat. 2261, 2278–79 (2010) (codified at 21 U.S.C. § 872(a)(1)).

It also required the DEA to “place tribal officers on the advisory

panel to develop and coordinate educational programs to fight

drug trafficking.” Dorgan, supra, at 23; Pub. L. No. 111-211,

§ 232, 124 Stat. at 2278–79 (2010) (codified at 21 U.S.C. § 873(a)).

6

law-enforcement duties as the law-enforcement agents

of the BIA. See 25 U.S.C. § 2804(a)(2). Those duties are

set forth in § 2803, and include making warrantless

felony arrests for an offense against the laws of the

United States committed in Indian country. 25 U.S.C.

§ 2803(3)(B) (“the offense is a felony and the employee has probable cause to believe that the person

to be arrested has committed, or is committing, the

felony”). These memoranda must identify individual

tribal officers who have met “minimum requirements

to be included in special law enforcement commission

agreements” and are thus authorized to enforce federal

law in Indian country. 25 U.S.C. § 2804(a)(3)(B). “Once

a deputation agreement is in place, a tribal police officer, if found on a case-by-case basis to be qualified,

may be commissioned by the BIA, which would allow

him or her to carry firearms and make warrantless arrests.” Hopland Band of Pomo Indians, 324 F. Supp. 2d

at 1072.

The Department of the Interior promulgated regulations to implement the directives in the Tribal Law

and Order Act. Under 25 C.F.R. § 12.21, the BIA “may

issue law enforcement commissions to other Federal,

State, local and tribal full-time certified law enforcement officers to obtain active assistance in enforcing

applicable Federal criminal statutes, including Federal

hunting and fishing regulations, in Indian country.”

The BIA “will issue commissions to other Federal,

State, local and tribal full-time certified law enforcement officers only after the head of the local government or Federal agency completes an agreement with

7

the Commissioner of Indian Affairs asking that BIA issue delegated commissions. The agreement must include language that allows the BIA to evaluate the

effectiveness of these special law enforcement commissions and to investigate any allegations of misuse of

authority.” Id. § 12.21(a). Tribal officers who hold these

special law-enforcement commissions have “the same

law enforcement authority as officers of the BIA, and

tribal police officers carrying Commissions are authorized to enforce all Federal criminal law applicable to

Indian country.” Cabazon Band of Mission Indians v.

Smith, 388 F.3d 691, 695 (9th Cir. 2004) (cleaned up).

This includes the authority to investigate “violations of

federal criminal laws of general, nationwide applicability.” United States v. Mitchell, 502 F.3d 931, 946 (9th

Cir. 2007) (citing United States v. Anderson, 391 F.3d

1083, 1085–86 (9th Cir. 2004); United States v. Errol D.,

292 F.3d 1159, 1164–65 (9th Cir. 2002); United States

v. Begay, 42 F.3d 486, 499 (9th Cir. 1994)).

2. By extending to tribal governments the

power to enforce generally applicable federal criminal law in Indian country, Congress has exercised its power to delegate lawenforcement authority to the tribes without

undermining tribal sovereignty.

This Court has drawn a distinction between the

inherent authority that tribal officers rely on to enforce

tribal law and the delegated authority tribal officers

rely on under a special law enforcement commission

to enforce federal law. The statutory scheme that the

8

Tribal Law and Order Act put in place fits comfortably

within this scheme to delegate federal authority to

tribal law-enforcement agencies, not to expand the

inherent authority of those agencies. Such a delegation need not—and does not—undermine tribal sovereignty.

The power to enforce generally applicable federal

criminal laws in Indian country lies primarily with the

federal government. “The BIA is in charge of enforcing

federal criminal statutes on tribal lands. The BIA provides this law enforcement service directly unless it

transfers the authority to do so to someone else.” Hopland Band of Pomo Indians, 324 F. Supp. 2d at 1075.

The statute that authorizes the Secretary of the Interior to issue special law-enforcement commissions, 25

U.S.C. § 2804(a)(1), “differentiates between authorizing Tribal law enforcement agencies to enforce United

States laws and authorizing Tribal law enforcement

agencies to enforce Tribal laws.” United States v. Cleveland, 356 F. Supp. 3d 1215, 1286 (D.N.M. 2018). Without a commission, an officer may only exercise inherent

tribal authority. See Boney v. Valline, 597 F. Supp. 2d

1167, 1181 (D. Nev. 2009) (“Defendant was enforcing

the Tribe’s laws against the Tribe’s members. As a

result, Defendant would not qualify as an investigative or law enforcement officer of the United States

Government.”). The commission allows a tribal officer to exercise delegated federal authority. See, e.g.,

Cleveland, 356 F. Supp. 3d at 1287 (noting that Navajo

tribal law-enforcement officers with commissions may

enforce “all federal laws applicable within Indian

9

country,” including violations involving 18 U.S.C.

§§ 1152 and 1153).

This Court has said that Congress knows how to

adjust the contours of inherent tribal sovereignty. In

Duro v. Reina, this Court held that inherent tribal powers in the criminal sphere did not permit a tribe to try

a non-member Indian in its courts. 495 U.S. 676, 688,

693 (1990). This Court also added that its holding

would not leave a “jurisdictional void” because Congress could allow states to step in by amending Public

Law 280,3 because “tribal governments that share law

enforcement concerns” could “enter into reciprocal

agreements giving each jurisdiction over the other’s

members,” and because 18 U.S.C. § 1152 “could be

construed” to reach the crimes committed by a nonmember Indian against an Indian on the latter’s reservation. 495 U.S. at 697. “If the present jurisdictional

scheme proves insufficient to meet the practical needs

of reservation law enforcement,” the Court added,

“then the proper body to address the problem is Congress, which has the ultimate authority over Indian affairs.” Id. at 698.

Shortly after this Court decided Duro, Congress

amended the Indian Civil Rights Act of 1968 to overturn the result in that case by allowing “a tribe to prosecute Indian members of a different tribe.” United

States v. Lara, 541 U.S. 193, 198 (2004) (citing Act of

3

“In what is commonly known as Public Law 280, 67 Stat.

588, Congress gave five (later six) states extensive criminal and

civil jurisdiction over Indian country, and permitted all other

states to acquire it at their option.” William C. Canby, Jr., American Indian Law 265 (6th ed. 2015).

10

Nov. 5, 1990, Pub. L. No. 101-511, § 8077(b)–(d), 104

Stat. 1856, 1892–93 (1990); Act of Oct. 28, 1991, Pub.

L. No. 102-137, 105 Stat. 646, 646 (1991)). This new

statute, the Court said, “does not purport to delegate

the Federal Government’s own federal power. Rather,

it enlarges the tribes’ own powers of self-government

to include the inherent power of Indian tribes, hereby

recognized and affirmed, to exercise criminal jurisdiction over all Indians, including nonmembers.” Id.

(quoting 25 U.S.C. § 1301(2)) (cleaned up). In the context of a double-jeopardy challenge to a federal prosecution that followed a tribal prosecution arising out of

the same criminal episode, in Lara this Court was

called on to decide whether the “source of the power to

punish nonmember Indian offenders” was “inherent

tribal sovereignty or delegated federal authority.” Id.

at 199. It held that the tribal prosecution was an exercise of inherent tribal sovereignty under the auspices

of Congress’s Duro-fix legislation. Id. at 210.

By passing the Duro-fix statute, Congress expressly recognized the “inherent power of Indian tribes

. . . to exercise criminal jurisdiction over all Indians.”

Act of Nov. 5, 1990, Pub. L. No. 101-511, § 8077(b), 132

Stat. 1856, 1892 (1990) (codified at 25 U.S.C. § 1301(2)).

The Court in Lara said that Congress could properly

“adjust the tribes’ status” in this way. Lara, 541 U.S. at

200. The “Constitution grants Congress broad general

powers to legislate in respect to Indian tribes, powers

that we have consistently described as plenary and exclusive.” Id. (citing Negonsott v. Samuels, 507 U.S. 99,

103 (1993); Washington v. Confederated Bands and

Tribes of Yakima Nation, 439 U.S. 463, 470–71 (1979);

Wheeler, 435 U.S. at 323). This plenary power allows

11

Congress to “enact legislation that both restricts and,

in turn, relaxes those restrictions on tribal sovereign

authority.” Id. at 202. Congress’s expansion in 1986 of

a tribal court’s “inherent law enforcement authority (in

respect to tribal members)” to impose a maximum sentence of a year in custody and a fine of $5,000 was one

example of an exercise of this plenary power. Id. at 203

(citing Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, Pub. L. No. 99-570,

§ 4217, 100 Stat. 3207, 3146 (1986) (then codified at 25

U.S.C. § 1302(7)). Giving the tribes the additional inherent authority to prosecute non-member Indians,

this Court said, was similar to the inherent power recognized in Duro itself to prosecute tribal members, and

thus “consistent with our traditional understanding of

the tribes’ status as domestic dependent nations.” Id.

at 204 (citing Cherokee Nation v. Georgia, 30 U.S. (5

Pet.) 1, 17 (1831)). Finally, the Court said, Duro itself

did not address any constitutional limitation on Congress’s ability to adjust the tribes’ status. Lara, 541

U.S. at 205. Nor did Duro say that the Constitution dictates the “metes and bounds of tribal autonomy.” Lara,

541 U.S. at 205. For all these reasons, this Court said,

the Duro-fix legislation was a proper exercise of Congress’s power to adjust the tribes’ inherent authority

to include the power to prosecute non-member Indians.

Lara, 541 U.S. at 210.

In addition to approving Congress’s adjustment of

the contours of inherent tribal sovereignty, this Court

has also sanctioned Congress’s delegation of federal

authority to the tribes. For instance, in United States

v. Mazurie, this Court said that a tribe’s “independent

authority over matters that affect the internal and

12

social relations of tribal life” was “quite sufficient” to

sustain Congress’s decision to delegate “its authority

to control the introduction of alcoholic beverages into

Indian country” to a particular tribe. 419 U.S. 544, 557

(1975). And in Duro, when this Court held that tribal

courts had no inherent jurisdiction over non-member

Indians, it said that the power to do that could “come

to the Tribe by delegation from Congress.” 495 U.S. at

686. Although Congress overruled Duro by adjusting

the inherent sovereignty of the Indian tribes, when

this Court upheld the Duro-fix legislation in Lara it

did not foreclose future delegations of federal power to

the tribes that are otherwise constitutional. See 541

U.S. at 207 (explaining that Duro was “not determinative” of the propriety of “relaxing the bounds of the

inherent tribal authority that the United States recognizes”).

So delegations of federal power remain a valid

mechanism for Congress, exercising its plenary authority over Indian tribes, to enhance their law-enforcement

powers. This delegation, through the Secretary of the

Interior, extends to tribal law-enforcement officers the

power to enforce federal law in Indian country so long

as the Secretary is satisfied that those officers are

trained and thus properly qualified to do so. See 25

U.S.C. § 2804(a)(3); 25 C.F.R. § 12.35. Nothing in 25

U.S.C. § 2801 et seq., either before or after the amendments made by the Tribal Law and Order Act of 2010,

mentions an intent to expand the inherent authority of

tribal governments, with respect to either non-member

Indians or non-Indians. The tribes are free to participate in the program or not, as their own resources or

other funding may allow. See 25 U.S.C. § 2804(a)(1)

13

(allowing the Secretary of the Interior “to enter into

memoranda of agreement for the use (with or without

reimbursement) of ” tribal governments to enforce federal law in Indian country); 25 U.S.C. § 2805 (allowing

the Secretary of the Interior to promulgate “regulations relating to the applications for contracts awarded

under the Indian Self-Determination Act” to provide

federal law-enforcement services). Congress’s “clear intent” was to “further the self-determination of Indian

tribes” by giving them “the power to adequately enforce

federal law and investigation violations thereof.” Hopland Band of Pomo Indians, 324 F. Supp. 2d at 1074.

Congress’s policy of Indian self-determination encourages “maximum Indian participation” in the provision

of federal services to Indian communities “so as to

render such services more responsive to the needs

and desires of these communities.” Salazar v. Ramah

Navajo Chapter, 567 U.S. 182, 185–86 (2012) (quoting

25 U.S.C. § 450a(a)). Consistent with this policy, delegating federal power to enforce federal law by way of a

special law-enforcement commission rests on a quid

pro quo and does not affect the tribes’ inherent sovereignty in any way. See Internal Law Enforcement

Services Policies, 69 Fed. Reg. 6321, 6321 (notice

issued Feb. 10, 2004) (explaining that special lawenforcement commissions “support the sovereignty of

tribes by allowing tribal law enforcement officers to

enforce Federal law, to investigate Federal crimes,

and to protect the rights of people in Indian country”).

In light of this policy, it cannot be the case that

only an exercise of inherent tribal sovereignty can fill

the supposed “jurisdictional void” of underenforcement of generally applicable federal criminal law in

14

Indian country. For one thing, there is no such void to

fill—the federal government is ultimately responsible

for enforcing general federal criminal law everywhere,

including in Indian country. For another, this Court

has consistently rejected the notion that failing to recognize inherent tribal law-enforcement authority will

result in a “jurisdictional void,” such that recognizing

such inherent authority is the only mechanism available for complete law-enforcement in Indian country. It

is always the case that 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 to the proper authorities.” Duro v.

Reina, 495 U.S. 676, 697 (1990); accord United States

v. Cooley, 919 F.3d 1135, 1141 (9th Cir. 2019) (noting

that the power to exclude persons from the reservation gives tribal law-enforcement officers the power

to “deliver non-Indians who have committed crimes

to state or federal authorities”). By issuing special

law-enforcement commissions to tribal officers, the

federal government is delegating the power to enforce

federal law directly to them, rather than forcing them

to simply wait for federal authorities to respond.

3. The government’s fear that special lawenforcement commissions will undermine

tribal sovereignty is misplaced.

While Congress meant for these special lawenforcement commissions to augment tribal lawenforcement powers in Indian country, the government

sees them differently. The government characterizes

these agreements not as a benefit to the tribes, but

as an attack on their sovereignty. It says, “Tribes

15

should not have to sacrifice even more of their limited

sovereignty merely to preserve law and order within

reservation boundaries—an inherent aspect of sovereignty that they never lost in the first place.” (U.S. Br.

at 47) The government adds that “cross-deputization

agreements often contain reciprocity provisions” that,

it says, “tribes may view as an affront to their sovereignty.” (U.S. Br. at 47) But that is not the case with

respect to the BIA’s special law-enforcement commissions, which do not diminish but rather augment tribal

authority. Tribal police already have inherent authority to enforce tribal law against their own members.

See United States v. Wheeler, 435 U.S. 313, 322–23

(1978). Their domestic dependent status necessarily

divests them of the power to try non-Indians in their

courts. See Oliphant v. Suquamish Indian Tribe, 435

U.S. 191, 206–12 (1978). And federal agents enforce

tribal law only with tribal consent. See 25 C.F.R.

§ 12.22. Rather than a diminishment of tribal sovereignty, these cross-deputization agreements instead

represent an offer of expanded authority through a delegation of federal power.

“Tribes can contract around uncertainties in law

enforcement authority by entering into cooperative

agreements with federal, state, county, or city governments.” Developments in the Law—Indian Law, 129

Harv. L. Rev. 1652, 1694 (2016). The Tribal Law and

Order Act encourages the federal government to “provide technical and other assistance to State, tribal, and

local governments that enter into cooperative agreements,” including cross-deputization agreements, for

the purpose of “reducing crime in Indian country and

16

nearby communities.” Pub. L. No. 111-211, § 222, 124

Stat. 2261, 2272 (2010) (codified at 25 U.S.C. § 2815).

“There are numerous examples of law enforcement

agreements that have increased safety while promoting mutual respect and tribal sovereignty, and many

advocates of agreements between tribes and nontribal

governments have detailed their benefits.” Developments, 129 Harv. L. Rev. at 1696 & nn.90–91.

Because Congress has expressly sanctioned the

special law-enforcement commissions issued by the

Bureau of Indian Affairs, the government’s fear that

cross-deputization agreements will undermine tribal

sovereignty (U.S. Br. at 47) is misplaced. The government cites one commentator who asserts that the “biggest barriers” to cross-deputization agreements “can be

narrowed down to the liability and immunity issue and

the influence of local politics.” Kevin Morrow, Bridging

the Jurisdictional Void: Cross-Deputization Agreements in Indian Country, 94 N.D. L. Rev. 65, 89 (2019).

But this commentator focuses on what he characterizes as difficulties presented by such agreements between tribal and local governments, id., and gives

short shrift to the markedly different issues that a

special law-enforcement commission from the BIA to

enforce federal law might present.

In the context of special law-enforcement commissions, any concerns about uncertainty of liability are

already addressed in the statute that authorizes them.

The government’s commentator notes that “[f ]ormal

cross-deputization agreements allow for certainty over

tribal officer liability.” Morrow, supra, at 90. Here, that

17

certainty is assured—certified tribal officers are

deemed employees of the Department of the Interior

for purposes of the Federal Tort Claims Act. See 25

U.S.C. § 2804(f )(1)(A) (pointing to 5 U.S.C. § 3374(c)(2),

which makes an assigned officer an employee of the

federal government under the FTCA); see also Cabazon

Band of Mission Indians, 388 F.3d at 695–96; Boney,

597 F. Supp. 2d at 1181. Uncertified tribal officers are

not federal employees in this way, nor are they “federal

officers” under 18 U.S.C. § 1114. See Cleveland, 356

F. Supp. 3d at 1288 (federal officer); Order, United

States v. Tauz Abner Henderson, No. 3:18-cr-8112-PCTDJH (D. Ariz. Jun. 11, 2018) (Dkt. #50) (unpublished)

(federal officer); Vallo v. United States, 298 F. Supp. 2d

1231, 1237 (D.N.M. 2003) (FTCA). The civil-liability

issues that apply to special law-enforcement commissions are thus clear from the statute that authorizes

those commissions.

As for the influence of “local politics” on special

law-enforcement commissions under 25 U.S.C. § 2804,

the government’s commentator is silent on this point.

Another commentator has suggested that the “infrequency of cross-deputization agreements” between

tribal and local governments can be attributed to “the

suspicion and lack of trust that reportedly prevails between tribal police and surrounding law enforcement

agencies.” Developments, 129 Harv. L. Rev. at 1697 (citation omitted). At the state level, the “troubling barriers to policing” that these local squabbles create can be

ameliorated by “granting some level of state authority

to tribal officers.” Id. Arizona, for instance, grants to

18

tribal police officers who are “appointed by the Bureau

of Indian Affairs or the governing body of an Indian

tribe as a law enforcement officer and meet the qualifications and training standards” set by a state police

certification agency the same powers that other state

peace officers enjoy. State v. Nelson, 90 P.3d 206, 209

(Ariz. Ct. App. 2004) (citing Ariz. Rev. Stat. § 133874(A)). Statutes that empower tribal officers with

the power to enforce state law “can solve the law enforcement gap over a certain area” and are “usually

less subject to the whims of a small number of political

actors.” Developments, 129 Harv. L. Rev. at 1699.

Special law-enforcement commissions under 25

U.S.C. § 2804 similarly should be less subject to the vagaries of local squabbling. The “relationship between

the federal government and the tribes has historically

been much less hostile than the relationship between

the states and the tribes.” Developments, 129 Harv.

L. Rev. at 1701 (citing Hagen v. Utah, 510 U.S. 399,

441 (1994) (Blackmun, J., dissenting)). Federal lawenforcement agents are already a familiar feature in

Indian country, because they investigate crimes prosecutable under either 18 U.S.C. §§ 1152 or 1153 when

the defendant or the victim is an Indian. The choice

that the Bureau of Indian Affairs presents to tribes

who seek special law-enforcement commissions for their

tribal officers is whether those tribes should allow federal agents to enforce generally applicable federal law

against non-Indians in Indian country, or whether

they should take on that responsibility themselves.

19

The government’s commentator says nothing about

any “cultural tensions” between tribes and the federal

government. Cf. Morrow, supra, at 92. And in this era

of Indian self-determination, when it comes to an offer

of expanded authority to stanch criminal activity that

the tribes are free to accept or refuse, it is not immediately apparent why those “cultural tensions” should

dissuade a tribe from accepting expanded authority to

police its own territory. Cross-deputization agreements

and special law-enforcement certification do not undermine tribal sovereignty—they enhance it by leveling the

playing field on which tribes engage in law-enforcement

activity.

---------------------------------♦---------------------------------

CONCLUSION

Giving a special law-enforcement commission to

tribal police would solve the problem that arose here

when Mr. Cooley’s car was searched by an officer acting

outside of his lawful authority. Because that officer

lacked such a commission, amicus respectfully urges

20

the Court to affirm the decision of the United States

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

BARBARA BERGMAN

Co-Chair, Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1201 East Speedway Boulevard

Tucson, Arizona 85721

(520) 621-3984

bbergman@email.arizona.edu

JON M. SANDS

Federal Public Defender

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal

Public Defender

850 West Adams Street,

Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

(602) 382-2800 facsimile

keith_hilzendeger@fd.org

Counsel for Amicus Curiae