Ruling limits tribal officers' authority

Police officers for Native American tribes do not have the same authority to stop and question non-Indians traveling on state roads within the reservation as they do tribal members, the 9th U.S. Circuit Court of Appeals ruled Tuesday.

The judges said roadblocks set up on state roads are permissible - but only to the extent that the stop is limited to determine if the person is an Indian.

Judge William Canby Jr., writing for the unanimous court, said if there are "obvious violations," like driving drunk, tribal police officers may detain the person for eventual delivery to state officers.

"But inquiry going beyond Indian or non-Indian status, or including searches for evidence of a crime, are not authorized on purely tribal authority in the case of non-Indians," Canby wrote.

The judges did note that tribal officers also are certified to enforce state laws. And, in this case, they cited the motorist for violating two state laws: failing to produce a license and refusing to cooperate with a police officer.

Canby said, though, that in acting under authority of state law, the tribal officers made themselves subject to U.S. constitutional constraints on search and seizure.

The judge said that means they cannot claim immunity under the principle of tribal sovereignty. And that, he said, opens the door for motorist Terrence Bressi, stopped at a 2002 Tohono O'odham roadblock on state Route 86, to pursue his claim in federal court that the actions of the officers violated his civil rights.

"If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law," the judge said.

In a prepared response, Jonathan Jantzen, the tribe's attorney general, said the decision does not prohibit future roadblocks designed to enforce tribal laws, even those set up on state roads. Jantzen said, though, his office is reviewing the ruling to determine what changes, if any, will be necessary to ensure they are operated in compliance with federal laws.

According to court records, the roadblock was set up pursuant to tribal authority to check for motorists' sobriety, driver's licenses, registration and possession of alcohol.

Bressi was stopped at that roadblock. In separate papers, Bressi said he works at the lunar and planetary laboratory at the University of Arizona and was returning to his home in Tucson after working that day at Kitt Peak.

According to court papers, Bressi insisted the stop was unconstitutional and refused to provide a driver's license or other identification. After about four hours, during which Bressi was handcuffed and taken to the side of the road, the officers issued the two citations for violating state law.

U.S. District Court Judge John Roll threw out Bressi's complaint that his civil rights had been violated. The judge said the officers were acting pursuant to tribal law, and tribes had immunity from being sued in federal court.

But Canby said it's not that simple, as the roadblock was on a state road.

"Unlike the case within most of the reservation, the (Tohono O'Odham) Nation is not a gatekeeper on a public right of way that crosses the reservation," Canby said.

"On the other hand, the state highway is still within the reservation and is part of Indian country," he continued. Canby said a practical way of dealing with issues of authority is to allow tribal officers to stop anyone apparently violating tribal law, since there is no way to know whether the person is an Indian or not.

He said the inconvenience to non-tribal members is "relatively minor and is justified by the tribal law enforcement interest."

That intrusion, the judge said, becomes greater in cases of roadblocks on state highways, where the likelihood is substantial that a large proportion of those stopped will not be Indians.

Canby said the tribe's interest in stopping all vehicles with Indian drivers to check for violations of tribal drunken-driving and safety laws can be accommodated by limiting stops by tribal officers to determining whether the motorist is an Indian and, if not, holding that person only for obvious violations of state law.

That, the judge said, did not happen here.

He said officers realized quickly that Bressi was not driving impaired. And Canby said there is no dispute that the officers did not confine their questioning to his Indian status.

Bressi was never prosecuted on the two charges.

The first complaint was dismissed because the citation did not reach the court in time. The second was dropped because prosecutors could not produce records the court sought.