Bureau of Indian Affairs officers can't be sued for arresting non-Indian in Montana

Wednesday, July 12, 2017  

A non-Indian woman cannot sue Bureau of Indian Affairs police officers who arrested her on a tribal warrant in Montana, a federal appeals court has ruled.

Sherri Roberts was arrested on three occasions and jailed twice for failing to show up to hearings in the court system of the Northern Cheyenne Tribe. She contended that her constitutional and legal rights were violated because, as a non-Indian, she cannot be prosecuted by the tribe.

But in a unanimous decision, the 9th Circuit Court of Appeals said Northern Cheyenne law allows non-Indians to consent to tribal jurisdiction. Even though Roberts disputes whether she granted consent, a panel of three judges said the BIA officers did nothing wrong by following an otherwise "valid" warrant.

"Because the BIA officers did not violate clearly established constitutional law when they arrested Roberts pursuant to a facially valid warrant issued by the tribal court, they are entitled to qualified immunity," the July 10 decision stated.

Despite the victory for the officers, who were represented by the Department of Justice, the lawsuit raises an important question about tribal criminal jurisdiction over non-Indians. The 9th Circuit said the question has yet to be resolved.

"The extent to which a non-Indian may consent to tribal jurisdiction is not settled law," the court pointed out in the short decision.

In Oliphant v. Suquamish Indian Tribe, the U.S. Supreme Court held that tribes lack "inherent" authority to arrest, prosecute and punish non-Indians unless authorized by a treaty or an act of Congress. Tribal advocates consider the 1978 ruling to be one of the most disastrous because it describes tribal authority over non-Indians as "inconsistent" with their status as "conquered and dependent" nations.

Congress has since stepped in with the Violence Against Women Act. Provisions of the 2013 law recognize the "inherent" authority of tribes to arrest, prosecute and sentence non-Indians who abuse their domestic partners.

But the law would not apply in the situation facing Roberts. Her tribal case arose after she allegedly failed to remove livestock from land that was being leased on the Northern Cheyenne Reservation.

Following her first arrest in April 2009, Roberts appeared in tribal court on two occasions but says she never consented to the tribe's jurisdiction. After she failed to show up to another hearing in 2010, a tribal judge issued a bench warrant and she was arrested and placed in a detention facility on the reservation.

A third arrest and detention came in 2011 when Roberts missed yet another hearing. A tribal judge subsequently sentenced her for aggravated trespass and she lost $750 in bond payments and was ordered to pay a $25 in fees to the court.

Roberts does not appear to have filed any lawsuits against the tribe or the tribal judge who handled her case. Other non-Indians and non-Indian entities who challenge tribal jurisdiction typically take their disputes to federal court in hopes of stopping proceedings in tribal court systems.

However, Roberts sued the Lame Deer Public School District on the reservation, where she was once employed as a vocational agricultural teacher. She claimed she was wrongly terminated but the 9th Circuit ruled against her in March of this year. That dispute arose just a few months after her tribal arrest and both cases were connected to her work as an adviser for a chapter of the Future Farmers of America on the reservation.

According to the Northern Cheyenne Tribal Government News, Roberts completed the "Indianpreneurship Program" at the Chief Dull Knife College in April 2010. Her participation occurred as she said she was contesting the tribe's jurisdiction over her.

An individual named "Sherri Roberts" whose biographical information matches up with the Sherri Roberts in Montana is now working for the Government of Saskatchewan in Canada. The biography refers to experience in "teaching high school and vocational agriculture" but does not say where.

Turtle Talk has posted documents from the BIA officer case, Roberts v. Elliot.

9th Circuit Court of Appeals Decisions:
Roberts v. Elliot (July 10, 2017)
Roberts v. Lame Deer Public Schools (March 13, 2017)