Could a tribal law enforcement officer arrest a tribal member off the reservation on a tribal court warrant, and could an Idaho state officer arrest someone off the reservation based on a tribal court warrant?

Plain-English summary

Magistrate Judge Gaylen L. Box of the Sixth Judicial District asked the AG two related but distinct questions: what is required for a tribal law enforcement officer to arrest a tribal member off the reservation on a tribal arrest warrant, and what is required for an Idaho state officer to arrest someone off-reservation based on a tribal court warrant. Deputy AG W. Corey Cartwright, writing for AG Alan G. Lance, walked through the federal and state landscape and concluded that neither arrest could occur without state statutory authorization.

For the tribal officer scenario, the opinion recognized that Indian tribes are sovereign nations whose authority generally ends at the external boundaries of the reservation. The opinion cited Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) and its progeny, and the more recent narrow exception in Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974) for off-reservation tribal fishing-rights enforcement at "usual and accustomed" sites. Outside those limited exceptions, a tribal warrant has no force off the reservation. To give it force, the state legislature must (a) recognize tribal warrants by statute and (b) deputize tribal officers to act in a state-officer capacity. Maine's 15 M.R.S.A. § 706 is one model (state courts may take cognizance of duly authenticated tribal arrest warrants of the Passamaquoddy Tribe and Penobscot Nation); South Dakota's Title 23, Chapter 24B is another, more comprehensive approach.

For the state officer scenario, state officers acting on a tribal warrant need state statutory authority because the warrant itself is from a foreign jurisdiction, and Street v. Cherba, 662 F.2d 1037 (4th Cir. 1981) and State v. Bradley, 106 Idaho 358, 679 P.2d 635 (1983) confirm the general rule that warrants from one jurisdiction have no force in another absent enabling law. The opinion suggested two routes: dedicated legislation along Maine's or South Dakota's lines, or a compact under existing Idaho Code § 67-4002, which authorizes state and local agencies to enter into agreements with Idaho tribes for joint exercise of powers. The compact approach was workable but had unanswered questions: Idaho Code § 19-603 generally bars warrantless misdemeanor arrests outside the officer's presence, and Idaho Code § 67-4003 prohibits the chapter from being used to grant tribes powers they would not otherwise have. New legislation with statewide application was the AG's preferred solution.

The opinion also took care to reject the federal district court's reasoning in Schauer v. Burleigh County, 1987 WL 90271 (D.N.D. 1987), which had held that a county sheriff's off-reservation arrest of a tribal member on a tribal warrant did not violate state law. The first part of Schauer's analysis "does not withstand scrutiny," the AG said, because states and tribes are not equivalent sovereigns and the fact that state officers may arrest on the reservation for off-reservation crimes does not mean tribal officials can arrest off the reservation for on-reservation crimes.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does a tribal warrant lose force at the reservation boundary?

Because tribal sovereignty under federal law is generally territorial: tribes have jurisdiction over their members and certain non-member Indians within the external boundaries of the reservation. Outside those boundaries, tribal authority depends on whatever federal or state law specifically grants. The narrow Settler v. Lameer exception covers only on-site enforcement of tribal fishing regulations at "usual and accustomed" off-reservation fishing sites that the tribe retained by treaty. There is no general off-reservation tribal arrest authority.

What did Maine and South Dakota do?

Maine's 15 M.R.S.A. § 706 takes the simple approach: when a duly authenticated tribal arrest warrant from the Passamaquoddy Tribe or Penobscot Nation is presented to a District Court judge or magistrate, the judge issues a state warrant in the District Court's name. The state then handles the arrest. South Dakota took a comprehensive approach in Title 23, Chapter 24B, with detailed extradition-style procedures for fugitive Indians. Both approaches give tribal warrants real off-reservation force while keeping state oversight of how they are executed.

What about Idaho Code § 67-4002 as a workaround?

Section 67-4002 lets Idaho public agencies enter into agreements with the Indian tribes enumerated in § 67-4001 for "transfer of real and personal property and for joint concurrent exercise of powers," provided the agreement substantially complies with the joint-powers procedures in §§ 67-2327 to 67-2333. The opinion thought this could in principle support an agreement to detain persons subject to tribal warrants and deliver them to tribal officers. But it flagged two problems. First, Idaho Code § 19-603 generally limits warrantless misdemeanor arrests to offenses committed in the officer's presence, which conflicts with arresting on a tribal misdemeanor warrant. Second, § 67-4003 bars the chapter from being used to "increase . . . governmental power of . . . the state of Idaho . . . [or] the Indian tribes," and giving state officers authority to make tribal-warrant arrests they could not otherwise make might cross that line.

Why did the AG reject Schauer v. Burleigh County?

Schauer was a § 1983 civil-rights case brought by a woman arrested by Burleigh County sheriff's deputies on a Turtle Mountain Tribal Court warrant. The federal district court granted the county summary judgment, reasoning that since state officers had authority to arrest within reservations for off-reservation crimes, by analogy state officers could arrest off the reservation on tribal warrants. The AG rejected the analogy. States and tribes are not equivalent sovereigns. State authority to act on the reservation comes from state sovereignty plus the absence of contrary federal law; tribal authority does not run off the reservation in the absence of enabling state or federal law. Two other state attorneys general (Arizona Op. I88-131 and Wisconsin Op. 10-81) had reached the same conclusion.

What did this mean for tribal members in Idaho in 1995?

Practically, it meant that tribal officers serving warrants for tribal-court offenses could not lawfully follow a fleeing defendant off the reservation, and Idaho sheriff's deputies could not pick up a tribal-member fugitive off the reservation just because the tribe had issued a warrant. The result was a significant gap that could only be closed by legislation or by formal compacts between the state and the affected tribes. The AG's preferred solution was a comprehensive statute modeled on South Dakota's chapter 24B.

Background and statutory framework

The federal framework for tribal-state jurisdiction has multiple layers. Tribes are sovereign within the external boundaries of their reservations, subject to congressional limitations. The Major Crimes Act, 18 U.S.C. § 1152, places certain serious offenses under federal jurisdiction; Public Law 280 (67 Stat. 588 (1953)) authorized states to take on civil and criminal jurisdiction over reservations, and Idaho exercised that option in 1963 (codified at Idaho Code § 67-5101). For misdemeanors against tribal members, tribal court jurisdiction generally controls within the reservation.

The Idaho Constitution and statutes have not historically dealt with cross-jurisdictional execution of tribal court orders. Idaho Code § 19-701 covers fresh-pursuit by foreign-state officers into Idaho; Idaho Code § 19-701A covers Idaho officers' fresh pursuit into other Idaho subdivisions; Idaho Code § 19-4514 covers interstate extradition. None of these address tribal-state movement, and absent specific authority, the general rule from State v. Bradley applies: a warrant from one jurisdiction has no force in another.

The opinion was written at a time when a number of Idaho counties were dealing with tribal-warrant questions on an ad hoc basis. The Sixth Judicial District covers parts of southeastern Idaho, including areas near the Fort Hall Indian Reservation, which made the question particularly live for Magistrate Judge Box. The opinion's recommendation of comprehensive legislation reflected a desire to give county sheriffs and tribal officers a clear, statewide rule rather than a patchwork of local arrangements.

Citations

• Idaho Code §§ 19-603, 19-701, 19-701A, 19-4514, 67-4002, 67-4003
• 18 U.S.C. § 1152 (Major Crimes Act); Public Law 280, 67 Stat. 588 (1953); 25 U.S.C. § 1323(b)
• 15 M.R.S.A. § 706 (1994); Title 23, Chapter 24B, South Dakota Codified Laws
• Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Johnson v. McIntosh, 21 U.S. 543 (1823)
• Williams v. Lee, 358 U.S. 217 (1959); De Coteau v. District Court, 420 U.S. 425 (1975)
• Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974)
• State ex rel. Old Elk v. District Court, 552 P.2d 1394 (Mont. 1976)
• Davis v. Muellar, 643 F.2d 521 (8th Cir. 1980)
• Schauer v. Burleigh County, 1987 WL 90271 (D.N.D. 1987)
• Street v. Cherba, 662 F.2d 1037 (4th Cir. 1981); Holbird v. State of Oklahoma, 650 P.2d 66 (Okla. Crim. App. 1982)
• State v. Bradley, 106 Idaho 358, 679 P.2d 635 (1983)
• Arizona Atty. Gen. Op. I88-131 (1988); Wisconsin Atty. Gen. Op. 10-81 (1981)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP95-04.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 95-04
To: Honorable Gaylen L. Box, Magistrate Judge, Sixth Judicial District

QUESTIONS PRESENTED

1. What is necessary to confer lawful authority on tribal law enforcement officers to arrest tribal members on tribal arrest warrants outside the reservation?

2. What is necessary for state law enforcement agencies to arrest under the authority of tribal court warrants?

CONCLUSION

1. State statutory authority to recognize tribal warrants, together with deputization of tribal law enforcement officials, would be required for tribal officers to arrest tribal members on tribal warrants beyond the external boundaries of the reservation.

2. State statutory authority, together with an agreement with the affected tribe, would be sufficient to grant state law enforcement officers authority to effect an arrest based on a tribal court warrant.

ANALYSIS

Indian tribes are sovereign nations which exist within the external boundaries of the states of the United States at the pleasure of the United States Congress. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Generally, by act of Congress and historical interpretation, Indian tribes have jurisdiction over their own members and non-member Indians within the external boundaries of their reservation. Indian tribes have no authority or jurisdiction beyond their external boundaries. Therefore, a grant of state law authority is required to permit the recognition of Indian tribal court warrants outside the boundaries of Indian reservations.

As a general rule, a warrant for arrest issued in one jurisdiction has no force or authority in a foreign jurisdiction. Street v. Cherba, 662 F.2d 1037, 1039 (4th Cir. 1981); State v. Bradley, 106 Idaho 358, 360, 679 P.2d 635, 637 (1983).

The federal district court in Schauer v. Burleigh County, 1987 WL 90271 (D.C. N. Dak. 1987) held that a Burleigh County sheriff's arrest of a tribal-court defendant off the reservation did not violate North Dakota law. The court analogized to cases finding state arrests within reservations valid. The first part of the court's decision does not withstand scrutiny. Because states and Indian tribes are not equivalent sovereigns, the fact that state officers may have authority to arrest on the reservation for off-reservation crimes does not mean that tribal officials may arrest off the reservation for on-reservation crimes.

The best solution to the problem is legislation which grants state officers authority to detain persons named in tribal court arrest warrants and deliver them to the custody of tribal officers. Maine's 15 M.R.S.A. § 706 (1994) provides a simple model: state District Court judges issue District Court warrants based on tribal court warrants of the Passamaquoddy Tribe or Penobscot Nation. South Dakota's Title 23, Chapter 24B is a more comprehensive "Extradition of fugitive Indians" statute.

Alternatively, legislation now in place may be sufficient to support a compact between the affected state jurisdictions and Indian tribes to recognize tribal warrants. Idaho Code § 67-4002 permits any compact which would not violate the constitution or other specific laws. There are some unanswered questions: Idaho Code § 19-603 does not permit an arrest for a misdemeanor not committed in the presence of the arresting officer, and Idaho Code § 67-4003 bars the chapter from being used to "increase . . . governmental power of . . . the state of Idaho . . . [or] Indian tribe." To avoid such ambiguities, new legislation with statewide application is probably the best solution.

Two other state attorneys general agree with this conclusion. See Arizona Attorney General Opinion I88-131 (1988); Wisconsin Attorney General Opinion 10-81 (1981).

DATED this 13th day of October, 1995.
ALAN G. LANCE
Attorney General

Analysis by:
W. COREY CARTWRIGHT
Deputy Attorney General