One of the most interesting and enjoyable aspects of the law is the way in which different areas of law play against each other. Historically, different areas of law developed to deal with different aspects of society. As a criminal defense lawyer, I deal mostly with the criminal code, the Constitution and the rule of evidence. Other lawyers deal with family law, torts, or property law. Occasionally, these areas intersect. When they do, the results can be fascinating.
An example of this phenomenon is seen in the recent Oregon Court of Appeals case of State v. Kurtz. In Kurtz, a driver was charged with attempted elude and resisting arrest for trying to get away from the Warm Springs Tribal Police. When the man was stopped, he was outside the reservation. Therefore, persecutors brought these criminal charges against the man in State court.
During trial, the driver argued that the government could not prove it's case because a tribal policeman does not fall under the elude or resisting arrest statutes. Both statutes make it a crime to do something to a "peace officer." The Court of Appeals agreed.
The Court held that a tribal policeman is not a "peace officer" under Oregon law because he is not organized under the State of Oregon. Under United States Federal Law, The Warm Springs Nation is a self-governing sovereign political community. This means that Warm Springs reservation is not organized under the State of Oregon. Therefore, the Warm Springs Tribal Police are not peace officers under Oregon Law.
Indian Law developed to handle the governance of Native American reservations and Native American people. Although in the past, Indian Law was primarily about controlling Native Americans, today that area of law is largely concerned with preserving the unique rights and privileges of Native American's within the broader United States legal system.
Oregon Criminal Law was developed for an entirely different reason: to control certain behaviors within the State of Oregon. In this case, the intersection of Oregon Criminal Law and Indian Law is interesting.
When Oregon Criminal law was developing to include organization under the State of Oregon in the definition of "peace officer," people likely never thought about tribal police. Likewise, when Federal Indian Law developed making Warm Springs a sovereign entity, no one likely thought about traffic stops outside the reservation. Nevertheless, the result of these two areas of law developing as they did is that tribal police are not peace officers in Oregon.
