Delegating Police Powers
January 27, 2010

I wasn't sure what the best way was to show this information because it came in an email so I just copied the text of Prosecuting Attorney Payne's letter to other prosecutors along with the message attached in front.  The subject is self-explanatory in Mr. Payne's letter.

Next week an important issue will come before the IPAA as the Coeur d Alene Tribe promotes legislation to grant state law enforcement power to tribes. This issue may seem unimportant to counties that are not concurrent with a reservation but it involves issues beyond county/tribal relations. This issue has come to a critical juncture. The Tribe believes they have sponsorship and support to pass the bill while yesterday the sheriffs association voted to  oppose it. It is important for prosecutors to understand what is at stake. PLEASE FORWARD  this message to all Idaho prosecutors in the hope they will be able to discuss the issue at the conference next week;

Fellow prosecutors;

    An Act, called the State and Indian Tribal Cooperative Law Enforcement Act has been generated by the Coeur d Alene Tribe's legal staff and is being heavily promoted by them. This proposal would grant to all tribal police in Idaho the power to stop, arrest, cite and otherwise enforce state law  on  NON-tribal persons.  The Shoshone Bannocks have reportedly said they will not participate in the debate or exercise such authority and the Nez Perce have taken no position. The Sheriff's Association has expressed fear this bill has some support in the legislature and yesterday voted unanimously to oppose it. The IPAA should also oppose the bill for similar reasons.

    1. These new officers would not be under the authority of the state police, local sheriff or be accountable through any chain of command to any publicly elected official. This would violate Art. IV sec. 20 of the Idaho Constitution requiring that all "functions and powers" of state government be allocated within its departments;

    2. This act would violate art. XVIII sec. 6 by creating defacto sheriff's deputies without the sheriff's authority;

    3. The act would effectively replace the sheriff as the primary law enforcement officer in parts of Idaho contrary to I.C.31-2202 and 2227;

    4. The act would create state police officers not under the authority of the director of the Department of Law Enforcement in violation of I.C. 67-2901;

    5. The act would deprive non-tribal Idaho citizens of their right to the representative government guaranteed by the U.S. Constitution and by  art. I sec.2 and 19, and by art. XVIII sec.6 of the Idaho Constitution.

    6. Law enforcement officers exercise great discretion and implement their department's policies on many issues and during constant contact with the public. It is an important part of representative government that the police are themselves policed not only by the courts, but by a chain of command that ultimately ends with an elected official who answers to the people governed. Idaho law and history reflect a pattern of always insuring police officers are not outside this accountability. In addition to the above authorities, see I.C. 18-711 and  the Idaho Constitution,  art. XIV sec.6.

    It is important to all Idahoans not to establish a precedent of delegating state law enforcement power to anyone not answerable to the people subjected to that power. Idahoans need confidence that the policies and objectives being pursued by  law enforcement are not those of an entity outside of, and possibly adverse to, their own elected government. More important than saving money on law enforcement is leaving to our posterity a self-correcting government structure. One that when subjected to corrupt persons or purposes, as all governments eventually are, can be cured by the ballot. To delegate law enforcement power to anyone outside the authority of elected government is inconsistent with the structure of Idaho's government and the principles of our republic.

    Counties have been enforcing state law on reservations for 120 years and there appears no immediate emergency. Curiously this bill is being rushed to the floor. At the very least this bill involves so many and such important issues that it should not be rushed into. Please oppose this bill and require a careful study of any legislation which distances people from their own government.

    Yours in the public service,   Douglas Paul  Payne,   Benewah County Prosecuting Attorney