N.D.Okla.: Indian tribes are essentially governed by the 4A and exclusionary rule; here, hotel housekeeper and security officer were not acting as LEOs

Defendant moved her bags out of her Indian casino hotel room to her car. She left her purse intending to come back and get it. She, however, was late, and hotel housekeeping entered the room after the noon check out time and found her purse. The housekeeper called security who came to take charge of the purse. The security officer opened the purse to look for ID and found drugs, too. The search by hotel security was not in the nature of a law enforcement search governed by the Indian Civil Rights Act, adopting the Fourth Amendment. United States v. Nealis, 2016 U.S. Dist. LEXIS 50233 (N.D.Okla. April 14, 2016):

Under ICRA, Indian tribes “in exercising the powers of self-government” must accord individuals the same rights as secured under the Fourth Amendment. See 25 U.S.C. § 1302(2). Courts have interpreted this provision as including the exclusionary rule. See State v. Madsen, 2009 SD 5, 760 N.W.2d 370, 377 (S.D. 2009); People v. Ramirez, 148 Cal. App. 4th 1464, 1475, 56 Cal. Rptr. 3d 631 (2007). Under the statute, the phrase

“powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.

25 U.S.C. § 1301(2).

2. Section 1302(2) reads as follows:

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.

25 U.S.C. § 1302(2). Courts have interpreted this language as imposing limitations identical to the Fourth Amendment. See United States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir. 2005); United States v. Lester, 647 F.2d 869, 872 (8th Cir. 1981); State v. Madsen, 2009 SD 5, 760 N.W.2d 370, 376 (S.D. 2009); People v. Ramirez, 148 Cal. App. 4th 1464, 1470-71, 56 Cal. Rptr. 3d 631 (2007).

Here, Nealis contends that the Indigo Sky’s employees, including its housekeeping and security staff, are tribal government officials subject to ICRA. In support of this argument, she notes that the Eastern Shawnee Tribe owns and operates the Indigo Sky and has “clothed [it] with all the privileges and immunities of the … Tribe.” [Dkt. #23-10, p. 3]. In response, the government submits that ICRA only applies to tribal officials exercising “powers of self-government” and that hotel staff does not fall within this definition.

The court agrees with the government. Whatever reach the Fourth Amendment may have with regard to state employees performing nongovernmental functions, ICRA expressly limits its application to tribal actors performing traditional government functions. Hotel staff does not fall within this category. Although there may be circumstances in which a tribal security guard, because of his or her station or specific duties, could be considered as an arm of the tribe’s “powers of self-government,” such circumstances are not present here. Security Officer Orman was a hotel employee. His duties were no more expansive than that of a private security guard employed at a private establishment. See Wade v. Byles, 83 F.3d 902, 906-07 (7th Cir. 1996) (concluding that a private security guard at a residential building owned by the Chicago Housing Authority was a private actor for Fourth Amendment purposes because, among other reasons, he “possessed powers no greater than those of armed security guards who are commonly employed by private companies to protect private property”). Under such circumstances, the court finds that housekeeping’s entry into the defendant’s room and security’s subsequent inspection of her purse were private actions not subject to ICRA.