Warrantless Searches for Alcohol by Native Alaskan Villages: a Permissible Exercise of Sovereign Rights or an Assault on Civil Liberties?

• Citation: Vol. 14
• Publication year: 1997

§ 14 Alaska L. Rev. 471. WARRANTLESS SEARCHES FOR ALCOHOL BY NATIVE ALASKAN VILLAGES: A PERMISSIBLE EXERCISE OF SOVEREIGN RIGHTS OR AN ASSAULT ON CIVIL LIBERTIES?

Alaska Law Review
Volume 14
Cited: 14 Alaska L. Rev. 471

WARRANTLESS SEARCHES FOR ALCOHOL BY NATIVE ALASKAN VILLAGES: A PERMISSIBLE EXERCISE OF SOVEREIGN RIGHTS OR AN ASSAULT ON CIVIL LIBERTIES?

PAT HANLEY ^[*]

I. INTRODUCTION

II. APPLICATION OF THE FOURTH AMENDMENT TO TRIBAL BORDER SEARCHES

III. APPLICATION OF THE INDIAN CIVIL RIGHTS ACT TO TRIBAL BORDER SEARCHES

IV. APPLICATION OF DOMESTIC DEPENDENT NATION STATUS TO TRIBAL BORDER SEARCHES

A. Indian Country -- Does it Make a Difference for NAVs?

B. The Power to Exclude People from NAVs

C. The Domestic Dependent Status Limitation of NAVs

V. OTHER FOURTH AMENDMENT ANALYSES

A. General Urgency of Law Enforcement

B. Consent to Searches

VI. LIKELIHOOD OF JUDICIAL REVIEW OF TRIBAL BORDER SEARCHES

VII. CONCLUSION

FOOTNOTES

This Article analyzes the legality of border searches employed by Native Alaskan villages ("NAVs") to prevent the importation of alcohol into their communities. The Article first discusses the application of the search and seizure requirements of the Fourth Amendment and Indian Civil Rights Act to NAVs, finding that the recent federal recognition of NAVs as tribes frees them from complying with the Fourth Amendment and that the requirements of the Indian Civil Rights Act are largely unenforceable due to judicial interpretation of the Act. The Article then addresses the extent of sovereign power possessed by NAVs and determines that their domestic dependent nation status reduces the scope of sovereign powers and likely would mandate against border searches. The Article advises that NAVs should not be permitted to conduct border searches due to the intrusion on personal liberty and restriction of free travel within the United States, yet concludes that it will be difficult to halt these searches as judicial review is highly unlikely.

I. INTRODUCTION

In 1980, the Alaska Legislature passed a statute permitting established villages and municipalities to prohibit the sale, importation, and/or possession of alcohol upon an affirmative majority vote of the electorate. ^[1] Presently, out of approximately 235 com- [*pg 472] munities in Alaska, seventy-eight have banned the sale and importation of alcohol, while twenty-eight have banned the possession of alcohol completely. ^[2] Some Native Alaskan villages ("NAVs"), apparently frustrated with the statute's lack of effectiveness in deterring alcohol importation and use, have adopted more assertive means of enforcement. Most NAVs are remote and not accessible by road; therefore, travel to NAVs is predominantly by small airplane. ^[3] Several NAVs in southwestern Alaska have set up stations at the village airplane runway in order to search people and their luggage for alcohol before they are permitted to enter the village. ^[4] These searches are systematic and are conducted without warrants or any showing of probable cause.

The legal analysis of these searches begins with the Fourth Amendment to the United States Constitution, which states that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. ^[5]

The Supreme Court has interpreted the Fourth Amendment as requiring the use of search warrants based on probable cause in most searches. ^[6] However, several exceptions have been allowed, in- [*pg 473] cluding the United States's right to search the baggage or automobile of every person crossing its border without probable cause or even mere suspicion. ^[7] This border search exception to the Fourth Amendment is grounded in the recognized right of the United States to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. ^[8] When the Supreme Court was confronted with the constitutionality of border searches in United States v. Ramsey, the Court clearly stated that [b]order searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself. We reaffirm it now. ^[9]

On its face, the Fourth Amendment appears to prohibit NAVs from searching incoming travelers for alcohol without the showing of probable cause necessary for the issuance of a warrant. ^[10] First, however, it must be determined whether the United States Constitution applies to the actions of NAVs. As explained below, the Constitution does not apply to the actions of recognized American Indian tribes because those tribes enjoy certain sovereign powers. However, language almost identical to the Fourth Amendment was incorporated into the Indian Civil Rights Act, which does apply to American Indian tribes.

Next, it must be determined whether the sovereign powers possessed by American Indian tribes grant them the right to conduct border searches. As discussed in this Article, the reasonable- [*pg 474] ness of Ramsey border searches does not necessarily apply to Indian border searches as there are significant differences between international borders and village borders, and Indian border searches restrict lawful travel within the United States.

Part II of this Article addresses whether NAVs are "Indian tribes" such that they possess certain sovereign powers and, thus, are free from the requirements of the Fourth Amendment. This discussion is brief, as recent Clinton Administration recognition of NAVs as Indian tribes resolves this question in the affirmative. Part III discusses the application of the Indian Civil Rights Act to NAV actions and whether it restricts Indian border searches. Part IV explores the extent of NAVs' sovereign powers and applies the domestic dependent nation status to test the validity of tribal border searches. Part V addresses whether several of the exceptions to Fourth Amendment rights, including the general urgency of law enforcement and consent to searches, can be utilized to justify NAV actions. Finally, Part VI briefly discusses the likelihood of judicial review of the NAV border searches.

II. APPLICATION OF THE FOURTH AMENDMENT TO TRIBAL BORDER SEARCHES

The most convincing arguments NAVs can assert to justify or defend warrantless searches for alcohol depend upon a finding that NAVs enjoy the status of "Indian tribes" and, as a result, are endowed with tribal sovereignty. If they do enjoy sovereignty, their actions will not be restricted by the Fourth Amendment because the United States Supreme Court has held that certain provisions of the United States Constitution do not apply to Indian tribes. For example, the Court held in Talton v. Mayes ^[11] that the Cherokee nation was not bound by the grand jury requirements imposed upon the federal government by the Fifth Amendment: "as the powers of local self government enjoyed by the Cherokee nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment." ^[12] The Court in Santa Clara Pueblo v. Mar- [*pg 475] tinez ^[13] explained the opinion in Talton by stating that [a]s separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority. Thus in Talton v. Mayes . . ., this Court held that the Fifth Amendment did not "operat[e] upon" "the powers of local self-government enjoyed" by the tribes. . . . In ensuing years, the lower federal courts have extended the holding of Talton to other provisions of the Bill of Rights, as well as to the Fourteenth Amendment. ^[14]

Judicial recognition of a tribe was outlined by the Supreme Court in Montoya v. United States, ^[15] where the Court defined a tribe as "a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." ^[16] Legislative or administrative recognition of a tribe by the federal government is also possible. ^[17] The Court has ruled that it must follow the executive branch's determination in recognizing tribes. ^[18] The Court stated that [i]n reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. ^[19]

Similarly, the Alaska Supreme Court has stated that "judicial recognition of tribal sovereign immunity" depends on "whether Congress, or the executive branch of the federal government . . . recognize[s] the particular group in question as a tribe" ^[20] and that this recognition is "a nonjusticiable political question, [and] the [c]ommunity is...