Guest Post by Thomas Gede
While the issue may be novel, the decision in People v. Ramirez (Calif. 3d DCA, 3/28/07) (finding a state court suppression remedy in a federal Indian civil rights statute for evidence seized by tribal police without probable cause from a non-Indian on Indian land) is rather strained. I do not see how the federal statute at issue constrains, preempts or imposes a duty on the state trial court or proceeding. The statute is the Indian Civil Rights Act, or ICRA, which was enacted in 1968, to address the presumed non-applicability of the Bill of Rights to the actions of tribal governments. The Supreme Court had made clear in Talton v. Mayes, 163 U.S. 376, in 1898, that the Fifth Amendment did not constrain the Cherokee Nation from using tribal grand juries whose number of members did not meet the requirements of federal constitutional law, and ultimately and more broadly, that the Bill of Rights simply do not apply to constrain tribal governments in their exercise of self-government. Congress simply restated the Bill of Rights, with certain important exceptions, as statutory law to bar tribal governments from violating the rights there stated. It is clear that the Bill of Rights still does not apply to tribal governments, but it is equally clear that Congress, exercising its plenary power in Indian affairs, does and did have the power to impose the statutory restrictions in ICRA as a limitation on the tribes' inherent powers.
Much of the case law on ICRA has focused on the tribal exercise of its inherent powers in tribal court to prosecute and punish Indians who are members of that tribe, or, as the result of the 1990 ICRA amendments recognizing tribes' inherent power over non-member Indians (the so-called Duro fix, upheld in United States v. Lara, 541 U.S. 193 in 2004), to prosecute and punish non-member Indians. The statutory restrictions on the inherent powers of the tribe found in 25 USC § 1302(2) ("No Indian tribe in exercising powers of self-government shall -- violate the right of the people . . . against unreasonable search and seizures. . .") seem clearly meant to apply to the tribe's police force no less than the tribal court, as it is the police who usually conduct searches and seizures. Most often ICRA cases go to whether there is a remedy for a tribal governmental action that purportedly violates ICRA. ICRA does not provide for a civil remedy for aggrieved complainants, and in Santa Clara Pueblo v. Martinez, 436 U.S. 49, in 1978, the Court rejected federal court review of a claim that a tribal ordinance discriminated on the basis of gender, denying the plaintiff equal protection of the law in violation of ICRA. The Court relied on the tribe's sovereign immunity and the legislative history that demonstrated Congress rejected the idea of de novo review of convictions obtained in tribal court and federal court review of alleged violations of ICRA arising in a civil context. The Martinez Court was mindful of Congress' attempt to balance individual rights with avoiding the intrusive effect of federal judicial review on tribal government. The Martinez Court drew from that history the conclusion that in providing only a habeas remedy in 25 USC § 1303, to "test the legality of [a petitioner’s] detention by order of an Indian tribe," Congress intended no other mechanism for review of ICRA violations. Ramirez, of course, does not raise the same issues of civil remedy, detention by a tribal court or jail or action of any sort against a tribal government. But Congress clearly intended to limit the remedies available under ICRA.
The prosecutor argued in the trial court that the Fourth Amendment did not govern the tribal officers' search, and the trial and appellate courts then march forth to examine whether ICRA provides the protection that the Fourth Amendment does not. It is likely true that the Fourth Amendment does not govern the tribal police officers' actions within their scope of duty on Indian land, as it is equally likely true that ICRA does in tribal court. But this case is in state court. As for the tribal police, in Duro v. Reina, 495 U.S. 676 (1990), in dicta, the Supreme Court upheld the power of "tribal officers [to] exercise their power to detain a [non-Indian] offender and transport him to the proper authorities." Tribal police do not have powers of full arrest of a non-Indian without a deputization or cross-deputization agreement with the state or local government, but the courts have recognized that tribal police are a manifestation of the inherent self-governing powers of a tribe and that they have arrest powers over Indians under tribal law and as constrained by ICRA. As noted, ICRA limits the actions of tribes, including their police.
So while there may be a violation of ICRA, and arguably not the Fourth Amendment, why did the trial and appellate court assume a state court is compelled or has a duty to afford a remedy not provided by the statute and borrowed from elsewhere? Whether the statute incorporates Fourth Amendment law or not almost seems besides the point, as the statute does not openly apply to state courts or state government in the first place. The statute is a restriction on the exercise of the powers of tribal government, not state government.
The more compelling matter is brushed aside, and that is the question of California's Truth in Evidence law, Article I, § 28(d) of the California Constitution. If there is no constitutional underpinning of ICRA (and, indeed, it is not constitutional law nor constitutionally compelled, it was passed precisely to fill, with a statute, a constitutional gap as to domestic governments to which the Constitution does not apply), then there is no supremacy argument. If the federal statute does not place a duty on the state court to follow it, 28(d) arguably applies. This case provides much grist, the mill will keep turning.
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