A California state appellate court just issued a decision on a really fascinating issue: If tribal police on an Indian reservation conduct a unlawful search of a visitor to the reservation, are the fruits of the search suppressed in a subsequent state court prosecution? The Fourth Amendment generally does not apply to tribal governments, but in 1968 Congress passed a statutory form of the Bill of Rights that does apply to tribes. The Indian Civil Rights Act, 25 U.S.C. ยง 1302, largely replicates the various constitutional protections for individual rights. Section 1302(2) covers the Fourth Amendment:
No Indian tribe in exercising powers of self-government shall . . . violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
The question is, does that text incorporate all of the Fourth Amendment, and in particular the suppression remedy? Apparently no court has squarely and comprehensively addressed this issue until this week.
In People v. Ramirez, handed down on Wednesday, tribal officers at a casino on an Indian reservation searched a car without probable cause and found drugs inside. The owner of the car was prosecuted in state court and moved to suppress the drugs. The California court’s conclusion: the Indian Civil Rights Act does include a suppression remedy for violations.
The court relied on the notion that when Congress uses common law terms, it should be assumed to have incorporated the common law. The court concluded that the Fourth Amendment was basically common law, and that at the time Congress passed the law the Fourth Amendment was understood to have had a strong exclusionary rule. Congress passed the Indian Civil Rights Act in 1968, more than 50 years after recognizing a suppression remedy for violations of the Fourth Amendment at the federal level and 6 years after expanding it to the states. The court then concluded that the existing balancing test to determine the scope of the suppression remedy favors a suppression remedy here: the suppresson remedy is needed to deter tribal officers from abusing the Fourth Amendment-style right.
It’s always interesting when Congress enacts a statute that tracks constitutional language. It’s generally understood that Congress can incorporate constitutional rules by tracking constitutional language, but exactly which rules are incorporated can be unclear. Do all of the rules apply, or only some? And if only some, which ones? And if judicial interpretations of the Constitution change, does the meaning of the staute follow the substantive law that Congress “intended” to adopt at the time? Or does the meaning of the statute change instantaneously as new constitutional decisions are handed down? Great questions.
I think the California court probably reached the right result in this case, although its reasoning seems convoluted. Looking at the Act as a whole, it’s pretty clear that Congress intended to incorporate all of the different constitutional protections. The absence of any specific language on remedies or scope suggests it was meant to be a wholesale adoption. I can’t think of a constitutional reason why Congress couldn’t do that, so I would think it’s permitted and the most natural reading of the statute.
That’s my gut sense, at least; I’d never heard of this Act until reading the Ramirez decision, so I’m certainly open to learning more. Thanks to FourthAmendment.com for the link.