By Ron Feemster
February 19, 2013
A bill to allow Bureau of Indian Affairs (BIA) police to ticket non-Native American speeders and drunk drivers on the Wind River Indian Reservation died in the House Judiciary Committee this year, even after months of painstaking work by the interim committee that wrote it.
Advanced as a common-sense move to make law enforcement more efficient and the reservation a safer place, the bill enjoyed significant support in Wyoming’s law enforcement community. Officials from the Riverton police to the Fremont County Sheriff, Wyoming Highway Patrol and the U.S. Attorney’s office in Cheyenne told WyoFile that some version of the law would improve policing on the reservation and in the surrounding communities.
However, Wyoming’s elected officials have proved hypersensitive to any measure that expands federal authority in the state, not least because many voters oppose it.
“I helped draft the language of the bill,” said Skip Hornecker, the Fremont County Sheriff. His deputies must now drive onto the reservation to issue tickets to non-Natives stopped for speeding or drunk driving by BIA police, a task that takes them away from other duties. “I have no issue with the bill. It provides another level of law enforcement. My concern is expanding federal law enforcement against the will of my constituents.”
Hornecker is an elected official — sheriffs are the only law enforcement officers in the state who answer directly to voters — and he knows that House Bill 27 was the latest in a long line of failed bills that aimed to solve, at least in part, a two-decade old jurisdiction problem on the reservation.
Unless state law changes, BIA officers who stop non-Native motorists who speed or drive drunk on the reservation cannot give them a citation directly. And while that limitation on federal authority may suit Hornecker’s constituents, and even his personal views, it creates more work for his deputies and the highway patrol.
The problem is a hole in the fabric of jurisdictions covering the reservation. BIA officers can only write citations into tribal or federal court. However, non-Natives cannot be tried in tribal court, and the federal courts cannot prosecute traffic offenses, which federal law sees as “victimless crimes.” So when BIA officers stop non-Native drivers on the reservation, they must call the county sheriff or the highway patrol to make an arrest or issue a citation into state court. The BIA officer is then a complainant, but not an arresting officer in the court case.
The BIA officer and the motorist awaiting a ticket can spend up to a half hour parked on the side of the road before a sheriff’s deputy arrives, according to the Hornecker’s estimation. Deputies typically arrive from Lander, Riverton or Dubois. A few Natives claim that the wait can be much longer. Sometimes, they suspect, overworked BIA officers may simply send a speeding driver on his way with a warning — an undocumented warning, since the BIA cannot write even warning citations to non-Natives.
“I can guarantee you that the drunk drivers are stopped and taken off the road,” said Hornecker. “It’s an issue of public safety.”
Leaders in the Native community acknowledge progress in the prosecution of drunk driving, largely because the number of BIA police increased nearly five-fold during a hiring surge under the Obama administration. But some wonder if the system for ticketing non-Natives is too cumbersome to work in practice.
“I don’t want to be argumentative with the sheriff,” said Keja Whiteman, who serves on the Fremont County Commission. “But frankly I don’t think it’s happening. I’d be interested to see how many non-Indians have been ticketed for speeding on the reservation.”
Whiteman, a reservation resident who also testified before the interim committee that wrote the bill, sees cross-deputizing BIA officers as a means to make law-enforcement more efficient and economical on and off the reservation.
“Does the sheriff’s office have the people to do work that the BIA could do?” Whiteman asks. “If the BIA officer could write the citation into state court, the process would be finished. We’re all short of personnel and budget. Why do we want a system that requires double work?”
But Whiteman sees a larger benefit in enabling the BIA to crack down directly on speeding and drunk driving.
“There’s a perception that a small number of non-Natives have,” she said, “that the reservation is a lawless place and they can do anything they want. A small piece of the larger problem would be addressed by allowing BIA officers to deal directly with speeding and drunk driving.”
Twenty years ago, BIA officers carried two citation books and routinely ticketed non-Natives into state court, according to Kip Crofts, the U.S. Attorney for the District of Wyoming. That changed when a circuit judge in Riverton dismissed a ticket that a BIA officer wrote to a non-Native.
The case involved a man shooting his rifle across the Wind River from the reservation side into Riverton. Bullets were striking buildings on the Riverton side and a deputy sheriff there asked a BIA officer to write the shooter a ticket. The ticket was dismissed because BIA officers are not listed as peace officers in the Wyoming statutes.
“I’m not saying that the judge wasn’t right,” Crofts said. “He was. But the technical legal rule created an unworkable situation and we are still trying to find a solution.”
At that time, Crofts said, an old state statute enabled state law enforcement to deputize people less formally than the law would require today. “It was kind of like deputizing a posse in a Western movie,” Crofts said.
To be a workable solution under the law, a bill allowing BIA officers to write state tickets would have to create a procedure to qualify federal officers as Wyoming peace officers. House Bill 27 provided for admitting the federal officers into Peace Officer Standards Training or “POST” certification.
The Wyoming Law Enforcement Academy in Douglas routinely runs a POST certification program for law enforcement personnel hired from other states. Much of the course aims to teach new hires the fine points of law that are unique to Wyoming.
“We would not expect any federal officers to have trouble with the POST training,” said John Powell, a retired highway patrol officer, now legislative liaison for the Wyoming Peace Officers Association. “Federal law enforcement training is excellent.”
If House Bill 27 had passed, active law enforcement would not have begun until formal memorandums of understanding had been drafted and signed by the state attorney general and the proper federal authorities. According to Crofts, there was room to iron out issues that might have troubled local or federal officials.
“I doubt that the law enforcement community was the problem for this bill,” Crofts said. “And I don’t think the problem was anti-Indian sentiment. I think it was anti-federal.”
House Bill 27 was the latest among many failed bills aimed at simplifying jurisdiction on the reservation. Some bills have reached the floor of the legislature over the past 10 years, but none has passed. This one did not even get out of committee.
“It didn’t get a hearing because it didn’t have the votes,” said Keith Gingery (R-Jackson), chair of the House Judiciary Committee. “It didn’t have the votes on the floor or in the committee. We lay back a lot of bills when we realize that there’s going to be a lot of debate and the bill isn’t going anywhere.”
Supporters note that the bill was drafted on the basis of extensive testimony from the Native community as well as state, county and BIA law enforcement at meetings of the Interim Judiciary Committee in Ethete, Evanston and Douglas. Although it is rare that a bill sponsored by an interim committee fails to get out of committee during the session, one special circumstance made it difficult for this bill to advance.
“None of the people on the interim committee ended up on this [House Judiciary] committee,” Gingery noted. “That’s what sometimes happens. This speaker decided to dump everyone off of that committee. I got put on the committee as chairman even though I was not on the interim committee. None of us heard any of that testimony.”
Gingery was sparing with specifics about why the bill might have trouble. He pointed to some members’ desire to approach the tribes about becoming a PL-280 state, which would allow the state to take over all law enforcement on the reservation.
And, asked again why he felt the bill would not get out of the committee, he pointed to one member, Rep. Dave Miller (R-Riverton).
Underlying any legislation about the reservation are the old and sensitive issues about the boundaries of the reservation, Miller said. The non-Indian view, he explained, is that the reservation stops south of Riverton at the Wind River. Natives see the reservation extending to Thermopolis, in Miller’s view.
“But I don’t think it’s a Native/non-Native issue,” he said. “I just think there’s too much law enforcement enforcing a lot of these rules anyway. Not necessarily Native or local.”
Asked if there were too many people enforcing drunk driving, Miller reconsidered. “Not necessarily drunk driving,” he said. “This could be simply going 66 in a 65 on the highway. And you can be stopped and issued a ticket. That’s happening more and more on the highway as government becomes less and less well funded.”
At the end of a short interview, Miller reiterated his view that his goals are less traffic law enforcement and less legislative activity that affects the reservation.
“I try not to make law on the reservation,” Miller said. “And I don’t think our laws apply on the reservation. They have equal footing with the state, so they can choose to enforce or not enforce state laws. That’s the way I understand it.”
Even if the bill had passed, it would have preserved one small area in which BIA officers are not allowed to enforce state law: at roadblocks. Roadblocks to stop motorists and perform field sobriety tests are illegal in Wyoming. They are legal on the reservation and under the U.S. Constitution, notes Crofts, the U.S. Attorney. But they are banned as a “restriction of freedom” under state law, he says.
Hornecker, the sheriff, says that when BIA police call the Fremont County Sheriff to arrest a non-Native driver who failed a field sobriety test at a roadblock, the deputies must establish “independent probable cause.” Crofts doubts that this is possible. “I hope the sheriff is right,” Crofts said. “But I don’t think he is.”
If anything, the bill that Gingery’s committee laid back would have extended the protection against traffic enforcement at roadblocks: “Tribal law enforcement officers are not authorized to enforce state traffic laws as set forth in this section if the contact between the officer and the offender resulted from a roadblock within the Wind River Indian Reservation,” the bill stated.
The House Judiciary Committee and both houses passed a bill that would guarantee immunity to state and local law enforcement officers who work outside their jurisdiction on the reservation. Sponsored by Rep. Patrick Goggles (D-Ethete), an enrolled member of the Northern Arapahoe tribe whose district includes the major towns on the reservation, the new law was signed by Gov. Matt Mead on Feb. 15. It guarantees that the state represents and indemnifies a state or local peace officer who is sued in the course of his duty.
“The bill takes care of the uncertainty that my deputies feel when they answer a call on the reservation,” Hornecker said.
“The reservation is a big place and it isn’t always clear if you are on the reservation or off it,” Hornecker said. “Deputies are asking themselves, ‘Am I on the rez or off the rez? Does my immunity follow me to this call?’ Those are questions I don’t want my deputies thinking about. I want them focused the call at hand.”
The Bureau of Indian Affairs police are likely to chuckle at Wyoming’s hesitation to expand federal law enforcement authority. In their view, the largest expansion of federal law enforcement has already happened — with the full support of the state.
“We’ve given all the state’s officers federal authority,” said William LeCompte, the assistant special agent in charge at the BIA’s office in Billings, Mont. That office is known as District 5, which serves Indian Country in Montana and Wyoming. “That’s what the Wyoming citizenry has to understand. There was already an expansion of federal law enforcement. It expanded to the state and local officers we deputized.”
The Eastern Shoshone and Northern Arapahoe tribes consented to deputizing state and local officers under Title 25 of the U.S. Code, LeCompte noted. That was necessary for highway patrolmen and county sheriff’s deputies to carry a second citation book. Now he wonders why it shouldn’t work both ways.
“It’s a win-win,” LeCompte said about cross-deputizing BIA officers. “I don’t know why anybody would ignore an opportunity to have more officers in the field. The point is that we’ve got to keep the community safe, regardless of people’s skin color.”
The proposed legislation came at a time when crime on the reservation has been under scrutiny from local and even national press. As outlets like The New York Timespointed to an increase in crime on the reservation, LeCompte, who helped train many of the new BIA officers, said the most telling fact about the crime increase was not the number of crimes reported but changes in how calls for service originated. As the number of officers rose during the past three years from six to nearly 30, including supervisory personnel, more officers initiated action on patrol.
“Before the new officers arrived, we saw mostly citizen-generated calls for service,” LeCompte said. Only two or three officers were on duty. People called them when they needed police. “Nowadays, officer-generated calls are up. Officers on patrol see a situation, intervene and conduct an enforcement service.” Those calls include traffic stops, LeCompte said. The stage is set for more comprehensive law enforcement, but the Native community says it needs help from Cheyenne.
“I’m disappointed that people on the reservation and law enforcement on the reservation is not a priority for some members of the legislature,” said Whiteman.
— Ron Feemster covers the Wind River Indian Reservation for WyoFile in addition to his duties as a general reporter. Feemster was a Visiting Professor of Journalism at the Indian Institute of Journalism and New Media in Bangalore, India, and previously taught journalism at Northwest College in Powell. He has reported for The New York Times, Associated Press, Newsday, NPR and others. Contact Ron at firstname.lastname@example.org.