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Tribal actions in border-crossing case upheld
Thursday, February 3, 2005

In a victory for tribal law enforcement, a federal appeals court on Wednesday said Tohono O'odham Nation rangers had the right to stop and detain a non-Indian man who was later found to be transporting illegal immigrants across the reservation.

The rangers stopped the man, Efrain Becerra-Garcia, because they suspected him of trespassing, a recurring problem on the reservation. The Tohono O'odham Nation shares a 90-mile border with Mexico and is the frequent site of illegal crossings and drug smuggling.

During the stop, the rangers discovered more than twenty undocumented aliens inside Becerra-Garcia's van. But since they do not have the authority to make an arrest under either tribal or federal law, they called their own tribal police department, which in turn alerted the U.S. Border Patrol.

The Border Patrol eventually arrived and arrested Becerra-Garcia, charging him with transporting illegal aliens, a federal offense. Once in court, he challenged whether the rangers had a right to stop and detain him in hopes of having evidence of the illegal aliens dismissed.

But Becerra-Garcia did not argue the rangers acted improperly because he is non-Indian and not subject to tribal jurisdiction. Instead, he said they weren't authorized under tribal law to make a stop. Therefore, he said his Fourth Amendment right against "unreasonable" seizure was violated.

In a unanimous decision, the 9th Circuit Court of Appeals disagreed. Citing a "respect" for tribal sovereignty, a panel of three judges said the rangers acted reasonably to protect their lands from intrusion.

"Our holding is consistent with our general recognition that Indian tribes are sovereigns with the power to enforce internal laws," Judge M. Margaret McKeown, wrote for the majority. "Intrinsic in tribal sovereignty is the power to exclude trespassers from the reservation, a power that necessarily entails investigating potential trespassers."

In recent years, the Tohono O'odham Nation has experienced an explosion of border-related incidents. More than 1,500 immigrants use the remote 2.7-million-acre reservation to cross into the United States every day. Tribal authorities seize about 300 pounds of illicit drugs daily.

The problem has forced the tribe to spend more and more of its own money on border security instead of health, housing, education and other needs. With the war on terror at top priority in the country, the issue is gaining in significance.

"It's our tribal police that are at the forefront," Tohono O'odham Chairwoman Vivian Juan-Saunders once said at a forum. "When the terrorists infiltrate the United States, we don't ask what is your jurisdiction, or whose jurisdiction should assume responsibility for terrorists. We have to work collaboratively with the state and federal entities."

Tribal leaders have pushed for a bill to recognize their authority over non-Indians in homeland security incidents like the ones that occur on the Tohono O'odham Nation every day. The measure has stalled amid opposition from the Bush administration and from non-Indian groups who are concerned that the constitutional rights of non-Indians will be violated.

In its decision yesterday, the 9th Circuit noted that the U.S. Constitution doesn't apply to tribal governments. But the court nonetheless analyzed the case under the Fourth Amendment because the Indian Civil Rights Act contains a nearly identical protection.

The approach led the court to reject Becerra-Garcia's argument that tribal law categorically bars the rangers from making stops. The judges instead based their ruling on well-settled Fourth Amendment standards that require them to consider only if the stop was reasonable.

"The claim that the rangers lack specific tribal authority to stop vehicles does not transform this otherwise reasonable stop into an unreasonable one," the court wrote.

The decision is the second time in recent months that the 9th Circuit has helped tribal law enforcement. In November, the court said police officers of the Cabazon Band of Mission Indians in California could use emergency lights even when they travel off-reservation.

The Tohono O'odham Nation was not a party in the case. The U.S. government defended the tribe's actions in court.

Get the Decision:
US v. Becerra-Garcia (February 2, 2005)