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Opinion 97061

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

authority?

ANSWER: Yes.




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

allowance.




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

states,




"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

state law.




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.




Very truly,




DON STENBERG

Attorney General




Jennifer S. Liliedahl

Assistant Attorney General