Wednesday, February 24, 2010

Ninth Circuit: Border agents and O'odham police violate law at border checkpoints

US Border agents and Tohono O'odham police harass and provoke motorists at checkpoints; Ninth Circuit Court ruled Aug. 4, 2009, that they are acting beyond their jurisdiction

Federal Appeals Court Limits Tribal Roadblocks

Ninth Circuit US Court of Appeals imposes limitations on the ability of tribal governments to operate roadblocks.

The Ninth Circuit Court of Appeals issued a ruling last Tuesday imposing restrictions on the ability of Indian tribes to use roadblocks to detain motorists who are not tribal members. The court examined the case of motorist Terry Bressi who was stopped at a checkpoint on the Tohono O'odham Reservation in Pima County, Arizona while traveling on State Route 86 on December 20, 2002. Tribal police, Border Patrol and Immigration and Naturalization Service agents manned the roadblock.

When stopped, Bressi insisted that the roadblock was unconstitutional and declined to produce his papers when a tribal policeman demanded it. Instead, Bressi asked the officer if he had any probable cause to believe he was in violation of any state law. That infuriated the officer who, after a lengthy exchange, pulled Bressi out of his vehicle, handcuffed him and arrested him for failure to obey a police officer and failure to produce proof of identity. At trial, tribal officers admitted that they knew Bressi was not impaired and not an Indian subject to their jurisdiction.

By January 2003, the Pima County Justice Court dismissed all charges against Bressi. After Bressi sued the officers involved, prosecutors re-filed the criminal charges against him. The re-filed charges were again dismissed. A federal district court eventually dismissed Bressi's lawsuit, but the appeals court agreed to hear the challenge based on the complicated jurisdictional situation created by the state highway passing through the reservation. Courts over time have created a system that allows a tribe to maintain jurisdiction over its members on tribal land.

"A tribal officer who observes a vehicle violating tribal law on a state highway has no way of knowing whether the driver is an Indian or non-Indian," the court explained. "The solution is to permit the officer to stop the vehicle and to determine first whether or not the driver is an Indian. In order to permit tribal officers to exercise their legitimate tribal authority, therefore, it has been held not to violate a non-Indian's rights when tribal officers stop him or her long enough to ascertain that he or she is, in fact, not an Indian. If the violator turns out to be a non-Indian, the tribal officer may detain the violator and deliver him or her to state or federal authorities... The amount of intrusion or inconvenience to the non-Indian motorist is relatively minor, and is justified by the tribal law enforcement interest."

The Ninth Circuit asserted that the suspicionless roadblocks were not unconstitutional, but rather that they must be limited in scope.

"We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians," the court ruled.

In substance, the court ruled that Bressi was exactly right in at least one element of his roadside argument with officers. The motorist had insisted that they had no right to use the roadblock for law enforcement purposes and that, under US Supreme Court precedent, they could only be used for "public safety" purposes such as removing suspected drunk drivers from the road.

"There is no dispute in the evidence, however, that the officers, after stopping Bressi, did not confine themselves to inquiring whether he was or was not an Indian," the court ruled. "Their general request for identification was permissible as part of that determination, but they specifically requested Bressi to show his drivers' license and immediately treated his refusal as a violation of state law. Once they departed from, or went beyond, the inquiry to establish that Bressi was not an Indian, they were acting under color of state law. These actions established, beyond any dispute of fact, that the roadblock functioned not merely as a tribal exercise, but also as an instrument for the enforcement of state law."

The court remanded the case so that Bressi would have an opportunity to present facts that he believes could show the tribal government failed to adhere to the US Supreme Court's restrictions required of any law enforcement agency operating a roadblock under the color of state law. The court also made clear that the tribe has no power to exclude non-members from traveling on a state road through a reservation.

"This latter issue was somewhat of a concern because the Tohono O'odham Nation had been making thinly veiled threats of banning me from traveling along sections of SR86 that pass through the reservation for years, presumably in retaliation for bringing this legal action forward," Bressi explained on his website, Checkpoint USA. "Fortunately, the ruling makes it clear the tribe has no such authority on state highways running through tribal land."

The court dismissed a number of other claims Bressi had made against the roadblock, but Bressi believed that he has won on the most important points. The ruling is binding on tribal governments that operate in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Source: Bressi v. Ford (US Court of Appeals for the Ninth Circuit, 8/4/2009)

(1) Bressi v. Ford

No. 07-15931 (08/04/09)

Before Circuit Judges Canby and Wardlaw, and Judge Mills, District Judge for the Central District of Illinois
Civil Rights / Sec. 1983 / Authority of Tribal Police Over Non-Tribal Members on Reservation
Opinion (Canby): In 2002, the Tribal Police of the Tohono O’odham Nation (“Tribal Police”) constructed a roadblock on a portion of a state highway running through the Tohono O’odham Nation Reservation in Arizona. Under Tribal Law, the Tribal Police were authorized to detain tribal members. They were also permitted to detain non-tribal members and transport them to state or federal authorities. In December of 2002, the Tribal Police stopped Terrence Bressi at the roadblock. When asked for his name and identification, Bressi refused. The officers arrested Bressi, a non-tribal member, and turned him over to state authorities for refusing to comply with a peace officer. Bressi claimed the roadblock and his detainment were unconstitutional and sued in district court under 42 U.S.C. 1983. The district court granted summary judgment to the officers and to the United States. This appeal to the Ninth Circuit followed. The Ninth Circuit held that a state highway roadblock on a Reservation can be an acceptable use of state power, even when the detaining officers stop each motorist and not merely those exciting suspicion. Despite this, the Ninth Circuit held that the district court improperly granted summary judgment on the issue because it based its ruling on the determination that the Tribal Police had acted under the authority of Tribal Law and not state law. Because of this change, the Ninth Circuit held that Bressi was entitled to address the Sec. 1983 claims on remand. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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Censored News is published by censored journalist Brenda Norrell. A journalist for 27 years, Brenda lived on the Navajo Nation for 18 years, writing for Navajo Times, AP, USA Today, Lakota Times and other American Indian publications. After being censored and then terminated by Indian Country Today in 2006, she began the Censored Blog to document the most censored issues. She currently serves as human rights editor for the U.N. OBSERVER & International Report at the Hague and contributor to Sri Lanka Guardian, Narco News and CounterPunch. She was cohost of the 5-month Longest Walk Talk Radio across America, with Earthcycles Producer Govinda Dalton in 2008:
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