AGO Opinion 97061
Tribal police officer; Definition of Law Enforcement Officer under Neb. Rev. Stat. § 81-1401 (Cum. Supp. 1996) as certified under Neb. Rev. Stat. § 81-1414(2) (Cum. Supp. 1996).
DATE: November 26, 1997
SUBJECT: Tribal police officer; Definition of Law Enforcement Officer under Neb. Rev. Stat. § 81-1401 (Cum. Supp. 1996) as certified under Neb. Rev. Stat. § 81-1414(2) (Cum. Supp. 1996).
REQUESTED BY: Jeffrey P. Goltz, Deputy Richardson County Attorney
WRITTEN BY: Don Stenberg, Attorney General
Jennifer S. Liliedahl, Assistant Attorney General
QUESTION: Do tribal police officers have the authority to stop,
detain, and arrest individuals on tribal lands within the
definition of Neb. Rev. Stat. § 81-1401 (Cum. Supp.
1996), for a violation of Nebraska state law where such
state jurisdiction has not been retroceded to tribal
An inquiry has been made as to whether tribal police officers
have the authority to stop, detain, and arrest tribal individuals
on tribal lands for violating Nebraska state law, where such state
jurisdiction has not been retroceded to tribal authority. The
ability of a law enforcement officer to arrest is defined under
Neb. Rev. Stat. § 81-1401(4)(a) which states in pertinent part:
Law enforcement officer means any person who is responsible
for the prevention or detection of crime or the enforcement of
the penal, traffic, or highway laws of the state or any
political subdivision of the state for more than one hundred
hours per year and is authorized by law to make
arrests . . . .
Neb. Rev. Stat. § 81-1401(4)(a) (Cum. Supp. 1996).
The certification process granting the designation of a law
enforcement officer with the subsequent ability to arrest is stated
in Neb. Rev. Stat. § 81-1414(2):
[N]o person shall receive appointment as a law enforcement
officer unless he or she has been awarded a certificate by the
(Nebraska Commission on Law Enforcement and Criminal Justice)
attesting to the satisfactory completion of the minimum
curriculum of the training center as established by the
(Nebraska Police Standards Advisory Council) or has been
awarded a certificate attesting to the satisfactory completion
of a training program which the council finds equivalent
thereto. Any person who has not been awarded such a
certificate may receive an appointment conditioned on the
satisfactory completion of such training if he or she
immediately applies for admission to the training center and
enrolls in the next available basic training class. If such
training is not completed within one year after the
appointment, the person's employment shall not be renewed by
appointment or otherwise and such person shall no longer be
recognized as a law enforcement officer as defined in section
81-1401, except that in cases of extreme hardship, upon
application of the officer to complete the basic training
program as soon as practicable after the one-year time
Neb. Rev. Stat. § 81-1414(2) (Cum. Supp. 1996).
In addition, Neb. Rev. Stat. § 81-1414(2) defines tribal
police officers as law enforcement officers under Nebraska state
law if they have the requisite or equivalent training:
For purposes of this section, the council shall deem the
successful completion of the federal Bureau of Indian Affairs
basic police training program as administered by the Federal
Law Enforcement Training Center to constitute such equivalent
training, and officers certified by virtue of such equivalent
training may exercise full law enforcement authority
exclusively on tribal lands.
Neb. Rev. Stat. § 81-1414(2) (Cum. Supp. 1996).
Under Neb. Rev. Stat. §§ 81-1401(4)(a) and 81-1414(2) a tribal
police officer has the ability to stop, detain, and arrest an
individual as a law enforcement officer for the purposes of
Nebraska state law, if said officer has the requisite Nebraska
certification or has been through the equivalent Bureau of Indian
Affairs (BIA) police training program. A tribal police officer
without Nebraska certification but with the BIA training is unable
is exercise such enforcement abilities outside of tribal lands as
specified in Neb. Rev. Stat. § 81-1414(2).
In cases where a tribal police officer fails to have either
the requisite Nebraska certification or BIA police training, there
is federal case law giving credence to the ability of a tribal
police officer to stop and detain an individual. The United States
Supreme Court in Duro v. Reina, 495 U.S. 676 (1989), specifically
"tribal law enforcement authorities have the power to restrain
those who disturb public order on the reservation, and if
necessary, to eject them. 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."
Id. at 697. Under Duro, the court notes that, "tribes . . .
possess their traditional and undisputed power to exclude persons
whom they deem to be undesirable from tribal lands." Id. at 696.
According to the court's reasoning, tribal police officers have the
ability to stop, detain and arrest members or nonmember
individuals, on tribal lands for a disturbance of public order, and
a tribal police officer may detain such an individual for the
purpose of handing them over to state authorities for arrest under
The United States Supreme court gives further insight of a
tribal police officer's ability to stop and detain a subject for
later arrest by a state police officer. Strate v. A-1 Contractors,
117 S.Ct. 1404 (1997). The court notes, "we do not question the
authority of tribal police to patrol roads within a reservation,
including rights-of-way made part of a state highway, and to detain
and turn over to state officers nonmembers stopped on the highway
for conduct violating state law." Id. at 1414 n.11. The court in
Strate expressly states that such authority is included within the
tribal police officer to effectuate a stop and detain the subject,
until transferring him to state authorities. See Also, State v.
Schmuck, 850 P.2d 1332 (Wash. 1993), cert. denied, 510 U.S. 931
(1993) (Washington Supreme Court held that tribal officer had
inherent authority to detain non-Indian motorist who allegedly
violated state and tribal law while on the reservation until he
could be turned over to state authorities for prosecution).
In conclusion, in responding to the question as to whether a
tribal police officer has the ability to stop, detain and arrest a
suspect for violation of Nebraska state law where state
jurisdiction applies, there are two lines of authority vesting such
powers in tribal police officers. Under Nebraska State law a
tribal police officer if certified by the Nebraska Commission on
Law Enforcement and Criminal Justice, or has completed the
requisite Bureau of Indian Affairs police training, may stop,
detain and arrest a nonmember or member individual, with such
arrest authority restricted to tribal lands. The second line of
authority is granted by the United States Supreme Court, which
under the court's reasoning, allows tribal police officers to stop
and detain suspects who have violated state law, for the purposes
of releasing them into state law enforcement custody.
Jennifer S. Liliedahl
Assistant Attorney General