Law & Principles
Ray Carter | October 27, 2021
Experts say cross-deputization no solution for McGirt
When the U.S. Supreme Court held in McGirt v. Oklahoma that a major reservation was never disestablished in Oklahoma and that state law enforcement could not prosecute crimes involving American Indians on those lands, it created jurisdictional chaos that critics warn has fueled increased crime.
While the state of Oklahoma is trying to address those problems through a court effort to have McGirt overturned, others have argued law-enforcement issues can be resolved through cross-deputization agreements between tribal governments and various state entities.
But in an amici curiae brief filed with the U.S. Supreme Court in support of reconsideration of McGirt, the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Association of Oklahoma Narcotic Enforcers, and 27 District Attorneys specially warn that cross-deputization agreements are a flawed response at best.
“Although the tribes and federal government have ‘cross-commissioned’ or ‘cross-deputized’ many (but hardly all) Oklahoma police officers and investigators as tribal officers and federal officials, this has not removed jurisdictional uncertainty,” the brief stated. “And cross-deputization comes with problems of its own.”
Law enforcement officials warned that cross-deputization agreements may leave non-Indian participants facing increased legal liability for actions taken by tribal police.
“Some tribes have agreed to cross-deputize local police only if their tribal police receive reciprocal authority,” the brief stated. “Many local officials, however, fear the attendant liability risk. Tribes have absolute immunity from monetary judgments. … Local governments do not, but they lack the resources to train or oversee cross-deputized tribal police, placing municipalities at risk of liability for the conduct of tribal officers.”
The warning from Oklahoma law enforcement contrasts with some public statements made by tribal leaders.
In television ads paid for by United For Oklahoma, a coalition of tribes, Muscogee Nation Principal Chief David Hill boasted, “Our cross-deputization has grown from 30-plus up to 80. It’s public safety first. We have to keep the citizens’ safety in Oklahoma.”
In another ad, Cherokee Nation Principal Chief Chuck Hoskin, Jr. stated, “We have been so good, I think, at working with local law enforcement, sharing resources, sharing training, working out jurisdictional issues. We’ve done that for years.”
Concerns that cross-deputization leaves non-Indian governments facing increased liability for the actions of individuals not under the direct control of state and local governments have prompted reassessment of or refusal to engage in cross-deputization agreements in Oklahoma and elsewhere.
In 2018, Osage County Sheriff Eddie Virden ended a cross-deputization agreement with Osage Nation police officers, citing liability concerns.
“The way it was explained to me, the tribe as a sovereign nation cannot be sued, so if anything happens, the defense lawyers go after the counties,” Virden told The Bigheart Times.
In 2013, the Albuquerque Journal reported on two lawsuits that waded into the cross-deputization issue. One, a federal lawsuit against two former Pojoaque tribal police officers who were cross-commissioned as Santa Fe County sheriff’s deputies, alleged the officers had engaged in unreasonable seizure, malicious prosecution, and battery stemming from a drunk-driving arrest. A second state lawsuit alleged that the Santa Fe County Sheriff’s Office was negligent in issuing commissions to Pojoaque Pueblo police officers.
A 2010 article in the American Indian Law Review at the University of Oklahoma College of Law—titled "Another Blow to Tribal Sovereignty: A Look at Cross-Jurisdictional Law-Enforcement Agreements Between Indian Tribes and Local Communities”—warned, “One significant problem raised by many who oppose cross-jurisdictional law-enforcement agreements is the likelihood of tort actions that arise if an officer acts inappropriately and the question of where liability for that conduct will rest.”
The law review article noted that 38 of 39 county sheriffs in the state of Washington had opposed state legislation that would have expanded tribal police officers’ power to arrest non-Indian criminal suspects on reservations.
“The sheriffs oppose the proposed law because they are worried about their liability in the event of a lawsuit concerning a tribal officer’s actions,” the law review article stated.
Concerns about inappropriate police action were tied to law-enforcement officials questioning whether tribal police forces are provided training comparable to that of state law enforcement officers, although tribal authorities dispute such contentions.
However, the American Indian Law Review article also noted that many tribal authorities view various proposed cross-deputization agreements as an attack on tribal sovereignty.
“The requirement that tribal police officers go through the same training as non-Indian police officers not only challenges the concept of self-determination for Indians,” the article stated, “but also lessens the powers of the tribal police force by essentially adding another officer to a local police force rather than to the tribal police force.”
The article also declared, “Cross-jurisdictional law-enforcement agreements would not only cause distrust in police forces as traditional tribal police officers are replaced by non-Indian police officers on tribal lands, but would also significantly reduce the amount of self-governance and sovereignty that Indians have an inherent right to possess.”
Among the conclusions offered by the author of the article, Andrew G. Hill, special projects editor for the American Indian Law Review, was a warning to tribes to avoid cross-deputization agreements.
“No shortcut or perceived increase in effectiveness is worth putting an entire tribe’s inherent sovereignty in jeopardy,” Hill wrote.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.