Abstract

Excerpted From: Ivy K. Chase, Tribal Authority to Issue Search Warrants to Non-tribal Entities or on Non-Indian Land Within Reservation Boundaries, 49 American Indian Law Review 15 (2025) (255 Footnotes) (Full Document)

At a U.S. Senate hearing for the Committee on Indian Affairs in 2010, Sen. Jon Tester said, “We have had many, many hearings in this Committee about public safety and the crime rate and what is going on in Indian Country. All of it is very distressing.” Communities within Indian Country face some of the most dangerous living conditions in the country. In 2014, “the crime rate at the Pine Ridge Reservation in South Dakota was four times the national average.” That same year, the Standing Rock Reservation had “a violent crime rate seven times higher than the national average” while “[t]he violent crime rate at the Blackfeet Nation in Montana [was] five times higher than the average U.S rate.” In 2015, the Wind River Reservation's violent crime rate also rose “up to seven times the national average.”

Despite awareness of these statistics, the crime rates on some reservations are still increasing. In 2017, “the Cheyenne River Reservation experienced a 20% increase in crime rate” while already facing “twice the national average for aggravated assault cases.” And in 2020, the homicide rate on the Standing Rock Reservation reached eight times the national average. Both Native men and women are nearly twice as likely to have experienced violence in the last year than non-Hispanic whites. Further, 97% of female victims and 90% of male victims “have experienced violence at the hands of at least one interracial perpetrator,” and “70% of murders in Indian Reservations are committed by non-natives.” These statistics “raise[] concerns about the safety and security of the people living on” reservations.

Violent crimes are being committed by non-Indians within Indian Country, yet the tribes may lack the most basic investigative tools to protect their communities. Nearly fourteen years after Senator Tester's comment, scholars, tribal leaders, and members of the federal Indian law field must be cautious when trying to amend public safety in Indian Country because of the many jurisdictional questions yet to be answered or addressed by either the courts or Congress. Among those questions is whether tribes have the authority to issue warrants to search Non-Tribal Entities (NTEs) or on non-Indian lands located within the reservation. For purposes of this Comment, tribal jurisdiction to prosecute the underlying crime is assumed. It is well established that tribes do not have jurisdiction over conduct that occurs off the reservation between non-native parties. However, the question before us concerns issuing warrants to search NTEs within the boundaries of a reservation for crimes involving Native persons.

On July 13, 1787, the Congress of the Confederation adopted the Northwest Ordinance, which “spelled out a plan that was subsequently used as the country expanded to the Pacific.” Regarding Native nations, the Ordinance clarified:

The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.

The Northwest Ordinance illustrates that, since the creation of Congress, there has been a duty of good faith and peace towards Native Americans. Yet, a report done by the Bureau of Justice in 1996 shows that “American Indians [] experience per capita rates of violence which are more than twice those of the U.S. resident population.” Additionally, “[a]t least 70% of the violent victimizations experienced by American Indians are committed by persons not of the same race.” Thus, 70% of violent crimes toward Indians are done by non-Indians, triggering a complex analysis of tribal jurisdiction. The way the law stands, tribes likely have no authority to issue search warrants to enter non-tribal properties to investigate violence towards their people and their community. The utmost good faith is then not “always ... observed towards the Indians” and their rights have been disturbed. However, because of the absence of precedent or legislation on this issue, an opportunity exists to preserve peace, prevent wrongs, and focus on the safety, health, and wellbeing of native peoples.

Although Indian Country extends across the entire United States, tribal sovereignty is at its apex within a tribe's territory. The United States Code defines Indian Country, or tribal territory, as “(a) all land within the limits of any Indian reservation ... (b) all dependent Indian communities ... and (c) all Indian allotments.” What the technical definition leaves out is the vast diversity within Indian Country and between tribes. Tribes are independent sovereigns, separate and distinct from each other. The uniform and “cookie cutter” approach to Indian law questions causes inconsistency within the field because what may be the answer for one tribe might be ineffective to another. It is essential, when examining such a broad issue, to consider the different types of reservations and jurisdictional approaches across Indian Country and avoid grouping all Indians into one box.

This Comment is meant to be a guide to analyze the question of whether tribes can issue warrants to search NTEs or non-Indian land within the boundaries of the many different types of reservations. Although there is a lack of precedent that is directly on point, there are cases that indicate it is not currently within a tribe's authority. But the need for tribal authority to investigate and protect native communities is too overwhelming to accept that answer absent a court case or legislation clearly stating so.

Part II of this Comment will explore the complex history and current status of criminal and civil jurisdiction in Indian Country and will review the cases that influence the analysis of whether tribes can issue warrants to search NTEs or on non-Indian land within the reservation. The cases described in Part II establish the probable conclusion that tribes do not have this authority given the current state of federal Indian law. Part III discusses how there are no statutes or case law that explicitly took away a tribe's right to issue warrants to search NTEs or on non-Indian land within the reservation. Part III also discusses the importance that tribes be able to issue such search warrants despite the general consensus that tribal courts do not feel comfortable issuing these search warrants. Yet many tribal court judges agree with the assertion that tribes should be permitted to issue the search warrants. Finally, Part IV examines the different solutions that would permit issuing such search warrants with less apprehension of litigation. These solutions include cross-deputization agreements and congressional action.

[. . .]

Through cases like Oliphant and Montana, as seen in Part II, the Supreme Court has severely limited tribal jurisdiction over non-Indians. Because of these limitations, as the law currently stands, tribal courts may lack authority to issue warrants to search NTEs and on non-Indian land within the reservation. Oliphant clearly would not allow it. And although Cooley extended Montana to search and seizures, it is unclear if that extension includes search warrants. Even if it does, the two Montana exceptions are rarely found to be met by federal courts.

However, Part III discussed that just because the case law may not be favorable to the action does not mean that is how the law should be. Tribes should have the authority to issue warrants to search NTEs and on non-Indian land within the reservation because it is an integral part of the criminal investigative process. Crime rates on reservations are generally higher than the national average, and tribes need to have the right to use all tools necessary to protect their communities, especially when the individuals causing the harm are non-Indians. This issue should fall within the second Montana exception because the ability to issue search warrants is necessary to protect the health and wellbeing of the tribe.

Part IV explored two solutions that can permit tribal courts to issue warrants to search NTEs and on non-Indian land within the reservation, despite the unfavorable case law. If the courts will not recognize the importance of the tribe having this authority, the tribe can work with state or local governments to enter cross-deputization agreements and restore that authority through these agreements. Additionally, Congress has the power to step in and ensure that tribes have the power to issue warrants to search NTEs and on non-Indian land within the reservation. Congress has the power, but it is time for them to act on it before the Supreme Court again strips tribes of their authority to govern the land they were forced onto.

Third-year student, University of Oklahoma College of Law.