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It is pretty clear that police officers employed by American Indian tribes do not have criminal jurisdiction over non-Indians, according to a 1978 decision by the U.S. Supreme Court known as Oliphant v. Suquamish Indian Tribe.
Some subsequent rulings have upheld this principle, adding some clarification. A 1990 decision of the court, for instance, said tribal police can exclude undesirable non-Indians from tribal lands and can detain offenders and transfer them to proper authorities.
But, considering the Supreme Court decisions, tribal police should not have unchecked authority to arrest wrongdoers in Connecticut's vast casinos and prosecute them.
We non-Indians should be grateful for that. After all, tribal governments are distinct entities, and non-Indian Americans might hope that when they are arrested it is by a law enforcement agency of a government accessible to all.
If you had a civil claim of false arrest or abuse of authority by an arresting tribal police officer you would apparently be limited to pursuing that complaint in tribal court, in the same way you can only bring slip-and-fall cases from the Connecticut casinos to tribal courts.
Some of these simple legal principles seem to have been lost in recent negotiations between the administration of Gov. Malloy and the Mashantucket Pequot and Mohegan tribes, who apparently want to assume more law enforcement responsibility in their casinos.
This new power play by the tribes runs in the face of 20 years of precedence and practice in Connecticut, which has been closely following the dictates of the court-imposed compact that allows the tribes to have casino gambling in the first place.
Since Foxwoods opened in 1992, Connecticut State Police has assumed principal law enforcement responsibility at the casinos, and the tribes reimburse the state for the cost.
There are currently between 30 and 40 state police officers assigned to the two casinos, at a combined annual cost of about $4 million to $5 million, according to state budget officials.
The tribes may appeal this assessment in Superior Court if they feel it is unfair, according to the compact.
I gather the tribes may have a legitimate complaint that they are being charged too much for law enforcement, since rules allow senior state police officers to choose their assignments, and the casinos are a popular choice. The tribes end up paying for the most senior and expensive officers.
The tribes should negotiate a compromise to those high costs of state law enforcement, or file a court appeal.
But the alternative solution they are proposing - to substitute more tribal officers for Connecticut police - should be considered unacceptable by the state.
This is murky legal ground. The state shouldn't go there.
When I posed some questions about the proposal, I got a call back from Benjamin Barnes, secretary of the Office of Policy and Management, who said talks with the tribes are under way, and not all the issues are resolved. The state wants to respect their sovereignty, he said.
Barnes did acknowledge that there may be some legal hurdles to overcome, and he suggested the General Assembly would ultimately have to approve a granting of new police powers to the tribal police departments, which he said would have to meet all state policing standards.
I also got calls back from the Mohegan attorney general, Helga Woods, and the Mohegan chief of staff for governmental affairs, Chuck Bunnell, who both said the tribal police may arrest non-Indians, the Oliphant v Suquamish Supreme Court decision notwithstanding.
They noted the arrest powers of tribal law enforcement are specifically cited in the compact with the state, which also says: "persons arrested by officers of the tribal law enforcement agency for violations of criminal laws of the state shall be transferred as promptly as may be feasible to the jurisdiction of state law enforcement officers."
Still, it is not clear that building the principal law enforcement at two of the country's largest casinos on that section of the compact would stand up to a court challenge supported by Supreme Court decisions. I think the high court would have the last word.
The Mohegan attorney general also noted that tribal police are deputized by federal authority and may make arrests of Indians and non-Indians on federal charges.
A spokeswoman for the federal Bureau of Indian Affairs suggested that a way tribal police could arrest non-Indians is if they are deputized by local law enforcement, making them, in essence, officers for those agencies. She also agreed the state might pass a law giving tribal officers some jurisdiction under state authority in some cases.
The Mashantucket Pequots released this statement in response to questions about the proposed changes in law enforcement: "The government-to-government relationship between the Mashantucket Pequot Tribe and the State of Connecticut has led to this agreement to have the Mashantucket Tribal Nation's Federally Trained Tribal Police Department expanding its role at our gaming enterprise. ... The Mashantucket Pequot Tribal Nation Police force is fully trained and very competent to continue the policing of the tribe's gaming enterprise."
Even if you don't mind the tribe's notion of tribal officers apprehending and arresting non-Indian wrongdoers and holding them in a tribal jail until they can be turned over to Connecticut authorities for prosecution, I think there are other problems with the proposal.
It wasn't that long ago that noted civil rights attorney John Williams represented two state police officers who claimed that Foxwoods executives tried to use political influence to block their investigation into organized crime.
"I think it is absolutely clear that (the detective's) job is to make sure organized crime does not get its nose under the tent at Ledyard, and there are some people employed by the tribe with a vested interest in seeing that he does not do that job," Williams said then.
That was back in the mid 1990s. Tribal administrations and casino management have turned over a lot in the meantime.
And there have been no organized crimes arrests since then.
I suspect some in the Connecticut State Police might attribute that fine record at least in part to their complete and fully-staffed access to the casinos.
This is the opinion of David Collins.