The call came in Tuesday at 12:36 p.m. Some men had been yelling and screaming for about an hour across from the Tensed post office.
Four Coeur d’Alene Tribe police officers responded and detained a 57-year-old man for marijuana possession. The man was not a tribal member, so the officers had no authority to book him into the Benewah County Jail. They held him until 1:15 p.m., when a county deputy arrived from St. Maries.
That is the Coeur d’Alene Tribe’s account of the incident.
This is Benewah County Prosecutor Doug Payne’s version:
A member of the Coeur d’Alene Tribe called tribal police regarding three tribal members who were harassing an elderly man. Four tribal police cars responded, but the people creating the disturbance were gone. The tribal police officers rightfully detained the man who was the victim of the suspected harassment for possession of marijuana but “never followed up with the people who were the cause of the call.”
The divergent views illustrate a growing conflict between the Benewah County Sheriff’s Office and the tribe, spurring the tribe to push for a new state law this year. The proposed legislation calls for tribes and county sheriffs to reach cooperative agreements for law enforcement on reservations. If they can’t agree within six months, tribal officers could begin enforcing state law on reservations, as long as officers are state-certified and send all cases to state courts. The tribes also must carry liability insurance and waive their sovereign immunity in the event they are sued in the case of officer wrongdoing.
Payne said tribal police had the right to arrest the man for possession of marijuana on Tuesday and could have saved the Benewah County deputy an hourlong round-trip drive. He said the tribe has had that right for years under Idaho code that allows citizens to arrest others when they see crimes committed.
But Marc Stewart, a tribal spokesman, said the tribe hasn’t been able to arrest nontribal members since Benewah County in 2007 revoked an agreement that cross-deputized officers. Now tribal officers encountering nontribal criminals must rely on Benewah County and other agencies for arrests. Stewart said tribal police officers have told him they regularly release people who should be arrested because Benewah County is either unwilling or unable to show up.
“If there was an agreement and people were cooperating, all this would be moot,” Stewart said. “These kinds of problems and confusing situations wouldn’t be necessary. Since the agreement was revoked, the tribe has been working for three years to get it back.”
In an interview last week, Sheriff Bob Kirts said he revoked the agreement because tribal police officers were booking nontribal members into tribal court. The legislation would require tribal officers to book nontribal members into state courts. Kirts said no criminals have been released as a result of his department not responding to calls.
A handful of tribal police reports provided by Stewart show Benewah County stating it had no deputies available to respond or show the Idaho State Police responding to calls for assistance when Benewah County did not. One report, from earlier this month, shows that a nontribal member with a suspended license and multiple driving violations was released.
“When the other agencies come, it’s because Benewah County is not,” Stewart said. “Officers have said, ‘I had to let these people go.’ ”
Kirts said the tribe wants complete authority over the reservation. He said the county’s average response time is 19 minutes and that there have only been five times that his deputies have not responded to calls for assistance from the tribe. Likewise, he said, there’s “at least five times when we requested their assistance and they failed to show up.”
Stewart said he’d like to see documentation of those calls. He said Benewah County calls the tribal police every day and they try to respond in a timely manner. “This really demonstrates the need for cooperative law enforcement,” Stewart said. “Sheriff Kirts is making the argument for it by saying there are problems.”
Kirts said he granted the tribe three years ago the right to arrest nontribal members in emergencies and in drunken driving incidents. But he said tribal officers have done neither. Stewart said Kirts never informed the tribe of that until a few months ago, when Kirts hand-delivered a letter backdated to Feb. 6, 2007, stating that it granted those privileges.
Payne, the prosecutor, said Kirts gave him a copy of that letter back in 2007. “I do not accept the tribe’s denial that they got that letter,” said Payne, who also acted as Kirts’ spokesman on Wednesday.
Payne said among his concerns about the legislation are that it would create a unilateral agreement that would not be fair to county sheriffs, because they still would not be able to arrest tribal members on reservations. In addition, he said, no system is in place to hold tribal police accountable.
“No elected official would have any authority over these officers,” he said.
Helo Hancock, the tribe’s legislative director, said the cross-deputization pact provided reciprocity. The tribe’s agreement with Kootenai County allows sheriff’s deputies to arrest tribal members on reservations and tribal officers to arrest nontribal members. Although the proposed legislation does not include that, it’s something that could be negotiated, Hancock said.
“We certainly wouldn’t be opposed to offering that because we’ve done it in the past,” Hancock said.
In addition, Hancock said, accountability for tribal officers is built into every part of the legislation. In the case of wrongdoing by tribal officers, their state certification could be revoked, tribes would be open to state or federal lawsuits and the Legislature would have the ability to repeal the law if it didn’t work, he said.
“You have a state-certified officer arresting you by state law and taking you to state court,” Hancock said. “It’s not as if these guys can run rogue. They’re subject to the same standards and the same discipline.”