The actual authority of certain law enforcement officers is sometimes unclear in today’s climate. The most obvious example in the news today is the authority and identity of Immigration and Customs Enforcement (“ICE”) agents patrolling the states from California to Florida.
Another example, closer to home in Oklahoma, is officers cross-deputized with tribal nations operating on tribal property, often as security in large casinos, patrolling streets on reservation lands, or responding as backup for other officers on tribal property. Local cities and towns often cross-deputize their police officers with tribal marshals under an agreement permitting enforcement of both tribal and state laws.
A recent landmark United States Supreme Court opinion, McGirt v. Oklahoma, found that the land reserved for the Muscogee Nation by Congress in the 19th century has never been disestablished by law and, as such, remains tribal lands. Since this case, this rationale has been applied to determine at least nine other tribal nations are also sovereign, covering a large part of Oklahoma.
Title 42 U.S.C., § 1983 provides a mechanism for persons who claim their constitutional rights have been violated. Specifically, if a law enforcement officer, “acting under color of state law” is accused of certain violations — for example an unlawful use of force — then § 1983 provides a person with a cause of action to seek relief in a court of law. The key element here, however, is that the officer is “acting under color of state law.”
Native American tribes, though, are sovereign nations. As such, when an officer or deputy is “cross-deputized” to operate on tribal land, then his or her actions while acting at the direction of the tribe is actually not done “under color of state law,” but rather under the color of that sovereign nation’s law.
When a cross-deputized officer makes an arrest of a tribal member on tribal land, the courts look to the source of the legal authority for that officer to be there, rather than what uniform they are wearing, what car they are driving, or the filing of a local police report. These outward appearances do not serve to place the officer’s actions back under state authority if the reason they were there in the first place was under tribal authority.
As recently as this month, a federal magistrate judge in Muskogee reasoned that where the officer’s authority to detain someone derived solely from that officer’s cross-deputized status with a tribe, then an “outward indicia” of state authority was not relevant. The arrest in that case was on tribal land against a tribal member, so the cross-deputized officer was acting then under “color of tribal law” and not state authority. The important questions, then, are where the act took place, to whom, and under what authority was the officer acting, regardless of what the public at large may assume by how that officer presents to the public.
This article appeared in the June 20, 2025, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.
