I work for a Tribal agency, albeit it Washington not Arizona. But, I can tell you that when it comes to jurisdictional issues between Tribes and states, the agreements and laws are individualized. In other words, what is true for Tribe/Reservation A cannot be relied on to be true for Tribe/Reservation B, even in the same State. However, it would be rare for a Tribe that has a state or interstate freeway that passes through the reservation boundaries not to have an agreement granting state LE enforcement authority on said freeway. In some cases, the Tribes have ceded sovereignty for the freeway corridor – meaning the freeway is not even considered Tribal land. Other Tribes do not even have their own LE and depend on state or local agencies for ALL LE activities on Tribal lands.
The bottom line is, you are going to have to find out the specifics of the agreement between that specific Tribe and the state. You cannot rely on agreements regarding other Tribes.
True. I completely agree. What I'm really hoping for though is as a defense tactic during the hearing, when the officer states he works for AZ DPS and has jurisdiction to operate on the highway in question I'm going to object and ask that the officer/prosecutor provide factual evidence of this jurisdiction as it is within the boundaries of the Indian reservation and is sovereign land.
I'm hoping that they aren't going to have any of this paperwork with them and won't be able to prove jurisdiction. Simply saying they have it doesn't mean anything unless they can prove it with evidence.
You might want to double check that strategy before you go into court. More than likely the officer will point to that section of Arizona law that gives him authority anywhere in the state to take action for violations committed in his presence. The burden of proving his authority is somehow negated when he crosses that invisible boundary onto an Indian reservation will then fall to you.
Try this another way. Call the DPS office covering the area in question and ask for the Public Affairs Officer or Public Information Officer. Ask him for information on DPS authority to cite on state highways running through the reservation in question. While he is not an attorney, his is used to fielding all sorts of inquiries from the media and the public. I have not doubt he can point you to the information you are seeking. You can then research it from there.
Oh?
The burden shifts to the court to prove jurisdiction. Rosemond v. Lambert, 469 F2d 416
The law provides that once State and Federal Jurisdiction has been challenged, it must be proven. Main v. Thiboutot, 100 S. Ct. 2502 (1980)
Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted. Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150
I'd rather not tip my hat contacting the citing authority (AZ DPS) as I'd prefer to contact the Salt River Reservation's police department and ask about any governmental agreements they have with other law enforcement departments.
Oy vey! You seem to forget, the officer doesn't have to satisfy you as to his authority, he only needs to satisfy the court.
So, what does it take to satisfy the court? Usually, referencing public law that addresses the matter will meet the requirement. It's not necessary for the person testifying to bring their law books to court. That's what the court is for. The court is knowledgeable as to the law and has their own set of law books to double check things if they forget.
So if questioned by you, the officer will probably testify that he cited you pursuant to ARS 13-3883B, which gives him the authority to do so in Arizona. You can ask whether he had special permission to cite non-Indians on sovereign Indian Territory and no doubt he will tell you either he is unaware of permission being required, or if he's really sharp (because hie patrol area includes the reservation), he will point you to United States v. McBratney, 104 U.S. 621 (1881), and Draper v. United States, 164 U.S. 240 (1896), which are United States Supreme Court decisions that ruled state courts have jurisdiction to punish wholly non-Indian crimes in Indian country. In any case, it will then be up to you to the refute his testimony and establish some special permission is required.
At this point, the court (and not you) will determine whether the burden of proof has been met.
Asking a question, solely for the purpose of demanding documents in substantiation of the response you get, when you know ahead of time those documents will not be present in court, is called playing gotcha. It is bad form and not looked upon kindly by the court, especially when you have the opportunity to subpoena those documents prior to court and refuse to do so just to play Perry Mason with the witness. Think twice before you make yourself look stupid in front of the judge. Remember, the purpose of a trial is to arrive at the truth of the matter and not to prove who is the quickest of wit.
AFAIK subpoena's are not available in civil traffic situations. You only have FOIA.
I also fail to see how asking for corroborating evidence of testimony is bad form. If the officer testifies that the LIDAR device was calibrated but brought no documentation to prove it.. it's hearsay. Why doesn't this logic hold true if he says he is allowed to operate on sovereign land? If he is unaware of any IGA's between AZ DPS and the Salt Pima Reservation that isn't my burden to prove he is allowed to operate, it's the states. And if he is sharp he can quote those rulings. But I doubt he will have those memorized.. and if he doesn't... and the prosecutor doesn't know them either, or can't give documentation to show otherwise... I fail to see how objecting in that instance is bad form.
The problem is that U.S. Supreme Court and Court of Appeals cases state that where a crime is committed by a non-Indian against another non-Indian on Indian land the state that has jurisdiction over that. See United States v. McBratney, 104 U.S. 621, 624, 26 L. Ed. 869 (1881). The Supreme Court later in a footnote to another case indicated that this applies to victimless offenses committed on Indian land as well. “Within Indian country, State jurisdiction is limited to crimes by non-Indians against non-Indians, see New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946), and victimless crimes by non-Indians.” Solem v. Bartlett, 465 U.S. 463, 465, 104 S. Ct. 1161, 1163, 79 L. Ed. 2d 443 (1984). And in a fairly recent case by the 10th Circuit Court of Appeals, the Court reaffirmed that position, explaining:
The Supreme Court has not directly considered the issue of whether the federal courts possess jurisdiction over victimless crimes committed by non-Indians on Indian land. However, the Court has suggested in dicta that the McBratney rule applies to victimless crimes as well. The Court summarized the delimitation of state and federal jurisdiction over crimes in Indian country in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). “Within Indian country, State jurisdiction is limited to crimes by non-Indians against non-Indians, and victimless crimes by non-Indians.” Id. at 465 n. 2, 104 S.Ct. 1161 (citing Martin, 326 U.S. 496, 66 S.Ct. 307); see Ross v. Neff, 905 F.2d 1349, 1353 (10th Cir.1990) (noting the “Supreme Court has expressly stated that state criminal jurisdiction in Indian country is limited to crimes committed ‘by non-Indians against non-Indians ... and victimless crimes by non-Indians' ”) (quoting Solem, 465 U.S. at 465 n. 2, 104 S.Ct. 1161). The absence of federal jurisdiction over victimless crimes perpetrated by a non-Indian in Indian country is explicit in the dicta of Solem and implicit in the holding of McBratney.
United States v. Langford, 641 F.3d 1195, 1199 (10th Cir. 2011). Based on these cases, the state has the authority to cite you, a non-Indian, for a victimless offense (like speeding) that you commit on Indian land. Unless you can point to some Arizona law that restricts the state’s jurisdiction I think you will lose this argument.
It is interesting to note that the Navajo enforcement agreement that you found and linked focuses on circumstances in which the state may arrest an Indian and when the tribe may arrest a non-Indian, which appears to reflect the jurisdictional limits discussed above. There was no need in the agreement to grant the state power to arrest a non-Indian for a crime not committed against an Indian because the state possesses that power already. Nor was there a need to state that a tribe may arrest an Indian for crimes committed on Indian land, as the tribe possesses that power already.