COOPERATIVE AGREEMENT FOR MUTUAL ASSISTANCE IN LAW ENFORCEMENT

Transcription

1 COOPERATIVE AGREEMENT FOR MUTUAL ASSISTANCE IN LAW ENFORCEMENT This Agreement is made and entered into by and between those Utah public agencies listed hereafter as signatories to this Agreement, the United States Bureau of Indian Affairs, Uintah and Ouray Agency, and the Ute Indian Tribe of the Uintah and Ouray Reservation. WITNESSETH: WHEREAS, under the Utah Inter-local Cooperation Act, Chapter 13 of Title 11, Utah Code Annotated (1953, as amended), the state agencies and subdivisions which are signatories to this Agreement are public agencies duly authorized to enter into agreements with and among each other and with Indian Tribes and federal agencies for the purpose of undertaking joint and cooperative action to provide and further law enforcement services and police protection; and WHEREAS, the Bureau of Indian Affairs is also a public agency as defined in the Utah Inter-local Cooperation Act and is authorized pursuant to 25 U.S.C. Sections 2803(8) and 2804(a) to assist and enter into agreements with other agencies for the cooperative provision of law enforcement services in Indian country and in nearby areas; and WHEREAS, the Ute Indian Tribe of the Uintah and Ouray Reservation is a federally recognized Indian Tribe, and possesses authority pursuant Article VI of its Constitution to provide for the maintenance of law and order within said Reservation, which responsibility (other than the enforcement of Tribal wildlife laws) has been delegated to the Bureau of Indian Affairs pursuant to Tribal Resolution ; and WHEREAS, recent decisions of the United States Supreme Court and United States Court of Appeals for the Tenth Circuit have defined the present extent of the Uintah and Ouray Reservation and have resulted in a checkerboard pattern of Reservation and non- Reservation land, making practical law enforcement difficult without the kind of a cooperative undertaking provided for herein; and WHEREAS, both Tribal members and non-tribal residents of the area covered by this Agreement will be better served by a system of law enforcement, which ensures that violations of the law are consistently and appropriately handled, with the objective that law enforcement be prompt, fair and efficient and that life, liberty and property be protected, both on the Uintah and Ouray Indian Reservation and in the rest of the Uintah Basin area; and

2 WHEREAS, the signatory parties find that the protection of health, safety and welfare of the public and the interest of prompt and efficient law enforcement makes desirable and beneficial the establishment of a cooperative agreement pursuant to which violations of the law are dealt with regardless of where they occur and cooperation and mutual assistance characterize the relationship between participating law enforcement agencies; and WHEREAS, the governing body of each of the signatory parties has, where appropriate, by resolution agreed to adopt this Agreement; and WHEREAS, the parties to this Agreement note that the applicability of Federal, State, or tribal laws in Indian country may depend on whether the suspect or the victim is a Tribal member and that Utah statutes and local ordinances are not applicable to Tribal members in Indian country; and WHEREAS, the parties agree that nothing in this Agreement makes any law applicable to a certain person or certain conduct where it would not otherwise be applicable; and WHEREAS, the parties to this Agreement recognize that when State law enforcement officers arrest a criminal suspect, the officers may not know whether or not the suspect or the victim is a Tribal member, or whether or not the arrest or the suspected crime has occurred in Indian country, as defined by 18 U.S.C. 1151, and applicable case law; and WHEREAS, the parties acknowledge that there is great difficulty in determining immediately the proper jurisdiction for the filing of charges; NOW, THEREFORE, the purpose and intent of this Agreement is to provide a framework for cooperatively engaging in law enforcement in those areas within the original confines of the Reservation which have been held to no longer be part of the Reservation. For the purposes aforesaid, it is hereby covenanted and agreed between and among the parties signatory to this Agreement as follows: 1. Definitions a. "Agency having actual jurisdiction" shall mean that law enforcement agency which is authorized under Federal, State or case law to exercise law enforcement activity: 1) in a particular location; 2) over a particular person; and 3) over a particular offense. b. "Non-tribal lands" or "Non-Reservation lands" shall mean those lands within the original boundaries of the Uintah and Ouray 2

3 Reservation over which the Ute Indian Tribe does not possess civil or criminal jurisdiction, as set forth in Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997). c. "State" shall mean the State of Utah. d. "State law" shall mean the Utah Code Annotated (1953, as amended) and any ordinance or code enacted by a political subdivision of the State that is a signatory to this Agreement. e. "Tribe" shall mean the Ute Indian Tribe of the Uintah and Ouray Reservation. f. "Tribal lands" or "Reservation lands" shall mean those lands within the original boundaries of the Uintah and Ouray Reservation over which the Tribe possesses civil and criminal jurisdiction, as set forth in Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), provided, that such term(s) shall not mean lands withdrawn for the Strawberry Reclamation Project or lands known as the "Gilsonite Strip." g. "Tribal member" shall mean a person who is an enrolled member of the Ute Indian Tribe or any other Federally Recognized Indian Tribe at the time he or she is arrested or formal charges are filed, whichever occurs earlier. All determinations of tribal membership shall be made by the Tribe and shall be final and conclusive for purposes of implementing this Agreement. 2. Training and Qualifications It is understood and agreed that notwithstanding any provisions of this Agreement, each party shall be completely and solely responsible for the qualifications, training, ability and fitness for duty of its own law enforcement officers Each of the signatory parties agrees to make training opportunities which it conducts available to law enforcement officers of the other signatory parties. All training shall be at the expense of the party employing such law enforcement officers. In addition to the training provided for herein, the State agrees to provide for its law enforcement officers (and make available to officers employed by its political subdivisions in the area) on a regular basis training which includes information on proper protocol to be used in dealing with members of the Tribe, limitations on each officer's jurisdictional authority, and an appreciation and understanding of matters of cultural importance. The BIA and the Tribe will provide similar training to their respective officers. 3

4 3. Liability Nothing in this Agreement shall be construed to mean that any of the parties hereto have, by executing this Agreement, waived any immunities or subjected themselves to any liabilities to which they would not be otherwise subjected by law. In addition, the provisions of Section Utah Code Ann., shall, if otherwise applicable, apply to the law enforcement officers affected by this agreement. No party to this agreement shall be held liable for any loss or damage by reason of its failure to effectively respond to any law enforcement problem in the territory or jurisdiction of any other party. This Agreement shall not be construed as, or deemed to be, an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. The parties further agree as follows: a. When providing mutual assistance or acting pursuant to the terms of this Agreement, the law enforcement officers responding shall not be considered for any purpose to be employees of the agency having actual jurisdiction, unless such officers are in fact employed by the agency having actual jurisdiction. All employment rights and wage compensation for work performed as officers pursuant to this Agreement shall be the responsibility of the public agency that employs the law enforcement officers. All law enforcement officers retain all pension and disability rights, salaries, workmens compensation protection and all rights of regular employment while acting pursuant to the terms of this Agreement. b. No employment right, property interest, liberty interest, civil right or personal entitlement of any kind shall be created by the extending of, or acceptance of, law enforcement assistance when acting pursuant to the terms of this Agreement. No law enforcement officer peace officer of any party shall have a cause of action against any other party, its officers or employees., for failure to deliver or for arbitrary revocation of a crossdeputization. Each party agrees to indemnify and hold harmless every other party from all such claims by its own law enforcement officer employees. Comment [MD1]: no cause of action for what??? Formatted: Font: Courier New, 11 pt, Highlight c. Under no circumstances shall any party be held liable for the acts of law enforcement officers of another party performed under the color of this Agreement. Rather, the employer of the assisting officer shall remain liable for any civil liabilities resulting from acts or conduct of such officer, and such assisting officer shall be deemed to be performing regular duties for his permanent employer while performing services pursuant to this Agreement. 4

5 d. Each party agrees to indemnify and save harmless the other parties to this Agreement from all claims and liabilities whatsoever which may arise out of the negligence or misconduct of any law enforcement officer of that party, while such law enforcement officer is rendering services or acting pursuant to this Agreement. Each party also agrees to bear all costs for its own defense of any litigation arising out of any incident during which an assistance of another party is used. e. All the immunities from liabilities, exemption from laws, ordinances and policies and procedures that law enforcement officers employed by the various Parties hereto have in their own jurisdictions, shall be effective in the jurisdiction in which they are acting pursuant to the terms of this Agreement, to the extent allowed by law. f. Each party to this Agreement agrees that it and its contracted insurance carrier, if any, shall be liable for all legally determined damages caused by its own law enforcement officers. Each party agrees to obtain sufficient insurance coverage, or to adequately self-insure, to meet its responsibility hereunder. Such insurance shall include workmens compensation, vehicular comprehensive and collision, bodily injury, property damage, liability insurance, false arrest, and general liability insurance. 4. Commencement, Duration and Termination of Agreement This Agreement shall become effective from and after such time as it has been executed by the official representatives of each party, pursuant to resolution of the governing body of such party, where such is required, and upon approval by the authorized attorney of each party, and final approval by the Attorney General of the State of Utah. This Agreement shall continue in full force and effect, unless terminated by any party to the Agreement. Any party to this Agreement may cancel or terminate the Agreement, or withdraw therefrom, upon sixty (60) days written notice to the other parties. Additional public agencies may become parties to this Agreement upon acceptance and execution of this Agreement as set forth above, and upon approval of the governing bodies of the public agencies already parties to this Agreement. 5. Joint Law Enforcement Commission Pursuant to Section (1) Utah Code Ann., and in furtherance of these objectives, it is agreed that the chief law 5

6 enforcement officers of each of the parties hereto shall meet together not less than quarterly with the Joint Law Enforcement Commission and may establish procedures and operational plans for the rendering of mutual law enforcement assistance under this Agreement. The parties to this Agreement shall establish a Joint Law Enforcement Commission ( Commission ). The Commission shall be composed of six members ( Commissioners ). Three Commissioners shall be appointed by the Ute Indian Tribal Business Committee, with one Commissioner being appointed by agreement of the two Business Committee members from each Band (Uintah, Uncompahgre and Whiteriver). Each of the two counties that are signatory parties to this Agreement shall have the independent right to appoint one Commissioner. The third Commissioner representing the State, County and Municipalities that are Signatory Parties to this Agreement shall be appointed by mutual consent of such State, County and Municipalities parties. At the quarterly meeting, the Commission shall review the status and effectiveness of this Agreement, as well as the performance of law enforcement under the Agreement. The Commission shall make recommendations to the signatory Parties as to how the Agreement might be improved based upon this review, and the signatory Parties shall be encouraged to take appropriate action to implement the recommendations. 5. Actions Pursuant to This Agreement It is contemplated that the parties hereto shall act cooperatively in carrying out this Agreement. However, the cooperative nature of the undertaking shall not give State officers the right to patrol Reservation land off State highways, County roads and areas of non-indian owned fee lands, nor shall it give Bureau of Indian Affairs or Tribal officers the right to patrol non-reservation lands. Follow-up investigation and prosecution of criminal conduct shall be turned over to that agency having actual jurisdiction to deal with the persons involved. It is further agreed that, when rendering such assistance pursuant to this Agreement, the following guidelines shall be utilized, unless or until otherwise agreed by the Commission: a. Each of the parties to this Agreement authorizes its chief law enforcement officer, his designee, or officer commanding in his absence, to render and request mutual police aid to and from the other parties to this Agreement to the extent of available personnel and equipment. The judgment of such chief law 6

7 enforcement officer, his designee or officer commanding in his absence, of each party rendering aid, as to the amount of personnel and equipment available shall be final. b. Law enforcement officers of each party may act in the jurisdiction of the other parties only: (1) upon formal request; (2) where they have pursued a fleeing suspect in a "hot pursuit" situation; (3) upon any occasion of crime being committed in the presence of that officer; or (4) in executing a properly domesticated warrant issued by the jurisdiction of the law enforcement officer in the jurisdiction of another party to this Agreement, but only upon the specific request and with the consent and accompaniment of a law enforcement officer of the jurisdiction where the warrant is being served, and pursuant to the applicable law and process of that jurisdiction. c. The authority of this Section extends to all law enforcement officers who observe the commission of a felony, misdemeanor, or traffic code violation within their respective jurisdictions, and during the pursuit of the offender, crosses into the jurisdiction of a party to this Agreement. The pursuing officer shall make all reasonable efforts to contact law enforcement officials in the jurisdiction where the pursuit has entered as soon as practicable. Formatted: Line spacing: single, No widow/orphan control, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers Formatted: Font: (Default) Courier New, 11 pt, Highlight Formatted: Font: (Default) Courier New, 11 pt, Highlight Formatted: Font: (Default) Courier New, 11 pt Formatted: Line spacing: single d. Any person arrested by an officer acting pursuant to the terms of this Agreement shall immediately be brought to the attention of a responsible official of the apparent prosecuting jurisdiction. In order to ascertain the proper prosecuting jurisdiction, the officer shall attempt to determine, where practicable, whether the arrestee is a Tribal member or not. The official determination of proper jurisdiction, however, will be made by the prosecutors with actual jurisdiction and not by law enforcement. e.in the event a Tribal member who is in custody requires medical treatment, the law enforcement agency with custody may transport the Tribal member who is in custody to the nearest Indian Health Service or other health care facility. Tribal or BIA law enforcement officers shall be notified so that necessary protective services may be provided while the Tribal member is at such health facility. f. Follow-up criminal investigations shall be conducted by the agency having actual jurisdiction (unless otherwise agreed). Any law enforcement officer acting pursuant to the terms of this Agreement shall turn over information to the agency having actual jurisdiction on any criminal activity, and shall fully cooperate with the agency having actual jurisdiction to assist with the Formatted: Font: (Default) Courier New, 11 pt, Highlight 7

8 follow-up investigation as requested by such agency and authorized by his or her supervisor. g. After any person has been arrested by a law enforcement officer acting pursuant to this Agreement and has been transported to a holding facility as set forth herein, he shall thereafter be processed and dealt with pursuant to direction of the agency having actual jurisdiction over such arrested person (or responsibility to prosecute pursuant to a Diversion Agreement among the parties). Except for diverted offenses, all persons arrested shall be referred to that court having jurisdiction over such apprehended person. h. Any law enforcement officer who acts pursuant to the terms of this Agreement shall be responsible for complying with the policies and procedures of his home jurisdiction, regardless of the jurisdiction in which he is performing such law enforcement duties. i. Any warrant issued by a party to this agreement seeking search, seizure or arrest authority for persons or property located in the jurisdiction of another party to this agreement must be domesticated pursuant to the applicable law and process of the party with actual jurisdiction. All searches, seizures and arrests of persons or property shall be served or executed byinclude law enforcement officials from the jurisdiction in which the search, seizure and/or arrest is conducted, except under the four limited exceptions as provided in this section where officers of each Party may act in the jurisdiction of the other Parties. With the limited exceptions as provided in this section, law enforcement officers acting pursuant to this Agreement shall participate in serving or executing a warrant seeking the search, seizure or arrest of persons or property located in the jurisdiction of another party only upon the specific request and consent of a law enforcement officer of the jurisdiction where the warrant is being served. In all such cases, the accompanying law enforcement officer shall defer to law enforcement officials of the jurisdiction in which the search, seizure or arrest occurs, and shall comply with all applicable laws of that jurisdiction during the service or execution of the warrant. Formatted: No widow/orphan control, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers 5. Law Enforcement Officer Credentials Required It is understood and agreed that, except in extreme emergencies or when life is in immediate danger, or as otherwise authorized by his commanding law enforcement officer, all officers acting pursuant to the terms of this Agreement shall only act when in possession of proper law enforcement officer credentials. 8

9 6. Costs It is intended that the parties hereto shall bear their own costs arising from this Agreement. 7. Consistent with Federal and State Law, Provisions Severable, and Disputes Provisions of this Agreement shall be interpreted, where possible, to be consistent with applicable federal, state and tribal laws. If particular provisions of this Agreement shall be found inconsistent with federal, state or tribal laws, rules or regulations, such provisions shall be deemed to be severable, and the balance of the Agreement shall remain in force, unless terminated pursuant to the provisions of this Agreement. Original jurisdiction to hear and decide any disputes or litigation arising pursuant to or as a result of this Agreement shall be in the United States District Court for the District of Utah. 8. No Waiver of Sovereignty or Jurisdiction Intended It is understood and agreed that the purpose of this Agreement is to facilitate and promote predictable and efficient law enforcement within the jurisdictions of the parties signatory to this Agreement. It is further understood that no acquiescence in or waiver of claims of rights, sovereignty, authority, boundaries, jurisdiction, or other beneficial interests is intended by this Agreement; no rights or jurisdiction shall be gained or lost at the expense of the other parties to this Agreement; and actions taken in furtherance of this Agreement shall not be interpreted as having that intention or effect. 9. Prior Agreements Superseded This Agreement supersedes, rescinds and repeals any and all prior agreements and resolutions on the subject of mutual law enforcement between, among or that involve the parties hereto. To the extent that any resolution or agreement of any of the parties conflicts with this Agreement, or any portion hereof, this Agreement shall control. 10. Individual Rights Not Affected 9

10 Nothing in this Agreement shall be construed to mean that any of the parties hereto has, by executing this Agreement, waived any immunities or subjected themselves to any liabilities for which they would not otherwise be subjected by law. No party to this Agreement, nor its officers, agents or employees, shall be held liable for any loss or damage by reason of failure to perform duties pursuant to this Agreement. This Agreement shall not be construed as, or deemed to be, an agreement for the benefit of any private person or third party, and no private person or third party shall have any right of action hereunder for any cause whatsoever. 11. Savings Provisions. Nothing in this agreement shall be construed to modify or affect: 1) any treaty or other rights of the Ute Indian Tribe and its members; 2) the rights and responsibilities of the United States to the Ute Indian Tribe or its members under Federal law; 3) the rights and responsibilities of the Ute Indian Tribe over the Reservation and its members, through the Business Committee, under Federal and Tribal law; and 4) the jurisdiction of the United States, concurrent with the Ute Indian Tribe, over the Reservation, over members of the Tribe, and over any lands held in trust for the Tribe by the United States. IN WITNESS WHEREOF, this Cooperative Agreement for Mutual Assistance in Law Enforcement is duly made and executed by and in behalf of the Ute Indian Tribe of the Uintah and Ouray Reservation; United States Bureau of Indian Affairs; State of Utah; Duchesne County, Utah; and Uintah County, Utah (which acknowledgments are affixed on the following pages attached hereto) by authority of an appropriate resolution by the governing body of each such party, where required. 10

11 APPROVAL BY THE UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION Ute Indian Tribe By: Chairman / Vice Chairman, Uintah and Ouray Tribal Business Committee Approved: Attorney 11

12 APPROVAL BY THE UNITED STATES BUREAU OF INDIAN AFFAIRS Bureau of Indian Affairs By: Superintendent, Uintah and Ouray Agency 12

13 APPROVAL BY DUCHESNE COUNTY, UTAH County of Duchesne, Utah By: Chairman Board of County Commissioners ATTEST: Duchesne County Clerk APPROVED: Duchesne County Attorney Duchesne County Sheriff 13

14 APPROVAL BY UINTAH COUNTY, UTAH County of Uintah, Utah By: Chairman Board of County Commissioners ATTEST: Uintah County Clerk APPROVED: Uintah County Attorney Uintah County Sheriff 14

15 APPROVAL BY CITY OF ROOSEVELT, UTAH By: Mayor Roosevelt City Council APPROVED: Roosevelt City Attorney 15

16 APPROVAL BY ATTORNEY GENERAL, STATE OF UTAH The forgoing COOPERATIVE AGREEMENT FOR MUTUAL ASSISTANCE IN LAW ENFORCEMENT is approved this day of,. MARK SHURTLEFF Attorney General, State of Utah By: 16

17 APPROVAL BY STATE OF UTAH State of Utah By: Governor 17