10.12.22MUTUAL AID AGREEMENT - MARICOPA.PDF

Maricopa County — Formal (2022-11-02)

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LAW ENFORCEMENT MUTUAL AID AGREEMENT
Between
THE TOHONO O’ODHAM NATION
And
MARICOPA COUNTY

This LAW ENFORCEMENT MUTUAL AID AGREEMENT (the “Agreement”) is entered
into between the TOHONO O'ODHAM NATION, (hereinafter referred to as the “NATION”) and
the MARICOPA COUNTY, a political subdivision of the State of Arizona, (hereinafter referred to
as “MARICOPA”).

WHEREAS, it is to the mutual benefit of the parties that they enter into an agreement of
mutual aid and assistance in the field of law enforcement; and

WHEREAS, MARICOPA and the MARICOPA County Sheriff’s Office are authorized by
A.R.S. § 13-3872 and A.R.S §§ 11-951 et seq. to enter into this Mutual Aid Agreement and provide
law enforcement assistance of sworn peace officers, other personnel and resources as they determine are
available in order to more efficiently and economically facilitate law enforcement services and
provide for the maximum amount of protection for public health, safety and welfare of its citizens;
and

WHEREAS, 25 U.S.C. §§ 2801 et seq., through this Agreement, permits federal and tribal law
enforcement agencies with primary jurisdiction over crimes committed by Indians within the exterior
boundaries of the NATION to request law enforcement assistance from the MARICOPA County
Sheriff’s Office (for the purposes of this Agreement, the federal and tribal law enforcement agencies
referred to above include: the Federal Bureau Investigation (FBI), the U.S. Department of the Interior,
Bureau of Indian Affairs, Law Enforcement Division (BIA), and the police officers of the Tohono
O’odham Nation); and

WHEREAS, the NATION, pursuant to the authority contained under the Tohono O'odham
Constitution, Article VI, Section 1(f), Section 1.3 of the Tohono O'odham Nation's Criminal Code
and pursuant to 25 U.S.C. §§ 2801 et seq., is authorized to enter into this Agreement in order to more
efficiently and economically facilitate law enforcement services and provide for the maximum
amount of protection for public health, safety and welfare of its citizens; and

WHEREAS, MARICOPA, by Board of Supervisors Action, C-50-23-___-X-00, and the
NATION, by Resolution No. _________________, true and correct copies of which are attached,
have each approved this Agreement.

NOW, THEREFORE, it is mutually agreed by the parties:

I.
PURPOSE AND INTENT.
The purpose of this Agreement is for MARICOPA and the NATION to provide each other with
law enforcement mutual aid services as necessary and as resources permit. MARICOPA,
through the MARICOPA County Sheriff’s Office, operates and maintains a law enforcement
agency within the geographical boundaries of MARICOPA. T he NATION, through the

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Tohono O’odham Police Department, operates and maintains a tribal law enforcement agency
within the Nation’s geographical boundaries.

II.
TERM.
The initial term of this Agreement shall be for a period of three (3) years, commencing on
the date the last party signs this Agreement. Unless otherwise terminated by the parties
pursuant to the terms hereinafter, this Agreement may be automatically renewed for no more
than two additional three-year terms (second and third terms). Thereafter, the Agreement may
be renewed only by the mutual written agreement of the parties.

III.
PARTIES TO THE AGREEMENT.
The parties to this Agreement shall include the following: MARICOPA and the NATION.

IV.
ACKNOWLEDGMENTS.
A. The parties to this Agreement formally recognize the authority of the NATION’s Police
Department to provide primary law enforcement services on the NATION. Primary law
enforcement services on the NATION shall include, but are not limited to: the enforcement
of Tribal laws and ordinances upon its Tribal members and Indian residents; responding to
calls for law enforcement services within the NATION’s boundaries; investigating reported
violations of Tribal law and ordinances; and providing for the security of persons who reside
upon or travel onto the NATION.
B. The parties to this Agreement formally recognize the authority of the BIA, its subdivisions
and individual agents, as well as the FBI, to investigate violations of Federal Law committed
on NATION lands.
C. Federal Indian Law and applicable Arizona State law, i.e., A.R.S. §§ 13-386, and 13-3871 -
3875, govern the authority of off-reservation Law Enforcement agencies (MARICOPA
County Sheriff’s Office, Medical Examiners, MARICOPA County Attorney, their bureaus,
divisions and individual members) to enforce Arizona State laws over non-Indians who reside
upon, or travel onto, the NATION. Federal Indian law and applicable Arizona State law also
govern the authority of Reservation Law Enforcement Agencies (the NATION’s Police
Department and the NATION’s Prosecutor’s Office, their bureaus, divisions and individual
members) to enforce Arizona State laws over individuals who reside upon or travel onto, non-
reservation lands within the State of Arizona. The parties agree to the following in terms of
jurisdiction:
i.
Crimes by a Non-Indian against an Indian in Indian Country. States and the
federal government have concurrent jurisdiction over crimes committed by non-
Indians against Indians in Indian Country. Oklahoma v. Castro-Huerta, 597 U.S. ___
(2022). If the crime in question is defined by a federal enclave statute, prosecution of
the non-Indian proceeds under the Indian Country Crimes Act, 18 U.S.C. § 1152. If
there is no federal enclave crime, state substantive law is incorporated by reference,
through the Assimilative Crime Act, 18 U.S.C. § 13. The Major Crimes Act, 18
U.S.C. § 1153, does not apply because it covers only crimes committed by Indians.
The Tribal courts may not prosecute under the rule in Oliphant. See Oliphant v.
Suquamish Indian Tribe, 435 U.S. 191 (1978). The Violence Against Women

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Reauthorization Act of 2013 (hereinafter “VAWA 2013”), Pub. L. 113-4, Title IX
§§901-910(2013), as codified 25 U.S.C. §1304, authorizes tribes to exercise special
domestic violence criminal jurisdiction (hereinafter “SDVCJ”) over non-Indian
defendants for certain specified crimes. The Violence Against Women
Reauthorization Act of 2022 (hereinafter “VAWA 2022”), which takes effect on
October 1, 2022, authorizes tribes to exercise special tribal criminal jurisdiction
(hereinafter “STCJ”) over non-Indian defendants for certain additional specified
crimes.
ii.
Crimes by a Non-Indian against a Non-Indian in Indian Country. The McBratney
rule holds that crimes by a non-Indian against a non-Indian in Indian Country go to
state court. Federal courts and tribal courts have no jurisdiction. See U.S. v.
McBratney, 104 U.S. 621 (1881).
iii.
Victimless/Consensual Crimes by a Non-Indian in Indian Country. Federal courts
have jurisdiction over crimes covered by federal enclave law or state law (via the
Assimilative Crimes Act) under the Indian Country Crimes Act. The state courts have
concurrent jurisdiction pursuant to Castro-Huerta. The rationale under McBratney
would allow state jurisdiction only if no interest of the tribe, its members or property
is involved and if federal policy towards Indians in not impacted. Cf. Oliphant, supra.
iv.
Sex Offender Registration and Notification Act. P.L. 109-248 Title I of the Adam
Walsh Child Protection and Safety Act of 2006 (SORNA) requires minimum
standards for sex offender registration and notification in the United States, including
within Tribal reservation boundaries. The parties agree to collaborate on sharing
relevant information on registered sex offenders as may be required by SORNA.

V.
MUTUAL AGREEMENTS.
A. Under this Agreement, MARICOPA agrees to the following:
i. Requesting Aid. When deemed necessary and appropriate, the MARICOPA County
Sheriff or his designee(s) may call upon law enforcement officers of the NATION
for back up or assistance in emergencies or life threatening situations, provided that
the call does not conflict with the then-current duties of the NATION officer.
ii. General Aid. Any law enforcement personnel of MARICOPA responding to a
request for assistance from the NATION shall maintain a secondary “back up”
presence and not initiate any law enforcement action unless specifically requested to
do so by an Agent of the FBI, the BIA, or the ranking NATION’s Police Department
official at the scene.
a. For the purpose of this Agreement “immediate back up” shall be limited to those
instances in which insufficient personnel from an agency of primary jurisdiction,
is present at the scene of an “in progress” crime to provide for the safety of
uninvolved third parties, or individual law enforcement officers and agents or
other parties as necessary and appropriate.
1. In such instances, personnel providing “back up” officers will act as assisting
personnel, providing an additional law enforcement presence, in a secondary
role, and will take action only at the request of an officer or agent whose
department or agency retains primary jurisdiction or as reasonable safety

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needs and concerns make necessary. Personnel of the MARICOPA County
Sheriff’s Office or the MARICOPA County Attorney shall not initiate
independent law enforcement action on the Reservation.

b. The NATION’s Police Department will not request assistance from MARICOPA
where personnel from agencies with primary jurisdiction over crimes committed
by Native Americans on Tribal lands are available and can provide an appropriate
and timely response.
1. The NATION’s Police Department will not request back up assistance during
routine calls for services or in cases where off-duty personnel of the
NATION’s Police Department are available and can provide an appropriate
and timely response.
2. Personnel of the MARICOPA County Sheriff’s Office will not personally
serve, or be otherwise involved in the service of misdemeanor warrants for the
arrest of Native Americans on Tribal lands.
iii. Availability of Resources. The provision of assistance is subject to the providing
party’s assessment of availability of resources and ability to render aid. The party
providing aid shall undertake its best efforts to render such aid as it is able to provide
consistent with its own service needs at the time, taking into consideration the
providing party’s existing commitments within its own jurisdiction and applicable
law. The providing party shall be the sole judge of what aid it has available to furnish
to the requesting party pursuant to this Agreement.

B. Under this Agreement, the NATION agrees to the following:
i. Requesting Aid. When deemed necessary and appropriate, the NATION Police Chief
or his designee(s) may call upon law enforcement personnel of MARICOPA for
back up or assistance in emergencies or life threatening situations, provided that the
call does not conflict with the then-current duties of the MARICOPA official.
ii. General Aid. Any law enforcement personnel of the NATION responding to a
request for assistance from MARICOPA shall maintain a secondary “back up”
presence and not initiate any law enforcement action unless specifically requested to
do so by the ranking MARICOPA official at the scene.
iii. Availability of Resources. The provision of assistance is subject to the providing
party’s assessment of availability of resources and ability to render aid. The party
providing aid shall undertake its best efforts to render such aid as it is able to provide
consistent with its own service needs at the time, taking into consideration the
providing party’s existing commitments within its own jurisdiction and applicable
law. The providing party shall be the sole judge of what aid it has available to furnish
to the requesting party pursuant to this Agreement.

VI.
SUPERVISION.

At all times throughout the duration of this Agreement, MARICOPA shall have sole supervisory
authority over County personnel and the MARICOPA County Sheriff’s Office shall have sole

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supervisory authority over MARICOPA County Sheriff’s Office personnel. Likewise, the
NATION shall have sole supervisory authority over NATION personnel and the NATION’s
Police Department shall have sole supervisory authority over NATION Police Department
personnel.

VII.
PROCEDURES, SCOPE AND LIMITATIONS.
A. Law Enforcement Authority on the Tribal Lands. Personnel of the MARICOPA County
Sheriff’s Office shall not become involved in the investigation of any offense committed
within the NATION unless the perpetrator has been reasonably identified as a non-Indian, or
as otherwise duly requested and authorized by Federal and/or Tribal authorities. For those
certain cases involving a non-Indian perpetrator, MARICOPA is authorized to hold and
prosecute the non-Indian perpetrator.
B. Deaths on Tribal Lands. The MARICOPA County Sheriff’s Office may assist in the
investigation of deaths which occur on Tribal lands in the following cases:
i.
When the decedent is non-Indian.
ii.
When the decedent is an Indian and the death was the result of criminal means or
suspected criminal means being investigated by an agency that has primary
jurisdiction on the Reservation.
a. The authority of a MARICOPA official shall be limited to those instances where
he or she is acting in concert with, and in assisting capacity to an investigation
being conducted by the FBI, the BIA, or the NATION’s Police Department.
iii.
Pursuant to subsection ii.a. above, MARICOPA County Sheriff’s Office personnel
acting in concert with and assisting with investigations shall decrease proportionately
as the capability of the NATION increases or shall decrease to the extent that the
NATION deems appropriate. The agencies agree to maintain consistent
communication when the need for, and availability of, resources change.
C. Hot Pursuit. Upon crossing into the NATION, the Non-Tribal law enforcement officer in
hot-pursuit shall immediately notify and maintain contact with the NATION’s Police
Department until a NATION’s Police Department officer responds to the scene.
D. Consistency with Applicable Laws. The provisions of these procedures shall be interpreted
and construed so as to effectuate its general purpose to make uniform any and all applicable
tribal, state and federal laws; provided that under no circumstances shall the provisions of
this Agreement be interpreted to authorize the extradition, pursuit, or arrest of any person
within the exterior boundaries of the NATION without complying with this Agreement.
E. Special Law Enforcement Commissions. The NATION’s Police Department may sponsor
those officers identified by the MARICOPA County Sheriff’s Office in an application for a
federal Special Law Enforcement Commission pursuant to a Deputation Agreement with the
Bureau of Indian Affairs Office of Justice Services for the purpose of providing assistance in
the enforcement of Federal criminal statutes and Federal hunting and fishing regulations
within the exterior boundaries of the NATION or individual Indian allotments standing
within MARICOPA.

VIII. LIABILITY, INSURANCE AND INDEMNITY.

Nothing in this Agreement shall be construed to mean that any of the parties hereto have, by
executing this Agreement, waived any immunity or subjected themselves to any liabilities to
which they would not be otherwise subjected by law. 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 parties and no third party or parties
shall have the right of action hereunder for any cause whatsoever. The provisions of this entire
section shall survive the termination of this Agreement. The parties further agree as follows:
A. Liability. Each party shall be responsible and liable for damages caused by the acts or
omissions of its officers, agents or other employees during that party’s participation under
this Agreement. The employees of each party to this Agreement shall remain under the
ultimate control of said party. Each party shall remain responsible for its employees' salaries
and employee-related benefits, discipline and similar matters and shall be solely responsible
for its employee's civil wrongs, and each employee shall be deemed to be performing regular
duties for the primary employer party while engaged in this Agreement.
Accordingly, when providing mutual assistance, the NATION shall be solely responsible and
liable for any and all claims, losses, liability(ies), demands, judgments (including all costs,
expenses, and attorney’s fees) resulting in any bodily injury (up to and including death) of
any person (including employees) arising out of the performance of the NATION’s Police
Department and/or NATION personnel.
Likewise, when providing mutual assistance, MARICOPA shall be solely responsible and
liable for any and all claims, losses, liability(ies), demands, judgments (including all costs,
expenses, and attorney’s fees) resulting in any bodily injury (up to and including death) of
any person (including employees) arising out of the performance of MARICOPA County
Sheriff’s Office and/or MARICOPA personnel.
B. Workers Compensation, Employee Rights and Benefits. For purposes of workers’
compensation, an employee of a party to this Agreement, who works under the jurisdiction
or control of, or who works within the jurisdictional boundaries of another party pursuant to
this Agreement, is deemed to be an employee of both the party who is his primary employer
and the party under whose jurisdiction or control or within whose jurisdictional boundaries
he is then working, as provided in A.R.S. § 23-1022(D). The primary employer party of such
employee shall be solely liable for payment of worker’s compensation benefits for the
purposes of this section. Each party to this Agreement shall further comply with the
provisions of A.R.S. § 23-1022(E) by posting the required public notice.
The employees of each party to this Agreement shall remain under the ultimate control of
that respective party. Employees of each party participating under this Agreement are not
considered employees of any other party except in the case of the exception listed in the
paragraph above. Each party shall remain liable for its employees’ salaries, employee-related
benefits, discipline and civil liabilities and each employee shall be deemed to be performing
regular duties for the primary employer party while performing services under this
Agreement. All personnel retain all pension and disability rights, salaries, and all rights of
regular employment while acting under authority conferred pursuant to this Agreement.

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C. Insurance. Each party to this Agreement agrees that it and its insurance carrier, if any, shall
be liable for all legally determined damages caused by its own personnel. The NATION
agrees to continue certification necessary to maintain coverage afforded the NATION’s
Police Department personnel under the Federal Tort Claims Act, 28 U.S.C. § 2680. Each
party agrees to obtain sufficient insurance coverage, or to adequately self-insure to meet its
responsibility hereunder. The provisions of this section shall survive the termination or
expiration of this Agreement.
D. Cooperative Defense. In the event that litigation is initiated by a third party against any
party, it is hereby agreed that no party will resolve or take action in that litigation which is
detrimental to the position of any other party, except when such other party’s position is in
direct violation of the law. In addition to any insurance coverage required by this Agreement,
each party agrees that it will be solely responsible for and will assume sole liability for its
employee’s acts or omissions of any kind, while performing any service or activity under this
Agreement. In the event that a claim is made against any party for acts or omissions of any
kind, it is the intent of the parties to cooperate fully in the defense of said claim or claims and
to cause their insurers to do likewise, to the extent practicable
E. Indemnity. To the fullest extent permitted by law, each party to this Agreement shall defend,
indemnify, and hold harmless the other and its departments, officers, officials, agents, and
employees from and against any and all claims, losses, liability, costs or expenses (including
reasonable attorney’s fees) arising out of bodily injury or death of any person or any property
damage, but only to the extent that such claims which result in vicarious, derivative or other
form of liability to the indemnitee, are caused by the act, omission, negligence, misconduct
or other fault of the indemnitor or its officers, agents, personnel, professionals or employees.
F. No Right, Interest, Entitlement or Cause of Action Created. No employment right,
property interest, liberty, civil or personal entitlement of any kind shall be created by the
extending, acceptance or holding of a cross-deputation pursuant to this Agreement. No
personnel of a party shall have a cause of action against the other party, its officers or
employees, for failure to deliver or for arbitrary revocation of a cross-deputation. Each party
agrees to indemnify and hold harmless every other party from all such claims by its own
personnel.
G. Preservation of Immunities, Exemptions, Laws, and Policies of Primary Jurisdiction.
All the immunities from liabilities, exemptions from laws, ordinances, and policies and
procedures which personnel employed by the various parties hereto have in their own
jurisdictions, shall be effective in the jurisdiction in which they are acting, to the extent
allowed by law.

IX.
TERMINATION.
This Agreement may be canceled or terminated by either party at any time upon thirty
(30) days prior written notice by certified mail.

X.
NOTICES.
All notices provided under this Agreement shall be written and shall be sent via certified
mail to the respective addressee(s) provided below:

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If to MARICOPA:

If to the NATION:

Maricopa County Sheriff’s Office

Chief of Police
550 W. Jackson

P.O. Box 189
Phoenix, Arizona 85003

Sells, Arizona 85634

XI.
MISCELLANEOUS.
A. Amendment. The provisions of this Agreement may be amended or modified only upon
mutual written agreement of both parties
B. Other Duties Imposed by Law. Nothing in this Agreement shall be construed as relieving
the involved public agencies of any obligation or responsibility imposed on it by law.
C. Conflicts of Interest. To the extent permitted and/or required by law, the provisions of
A.R.S. §38-511 relating to cancellation of contracts due to conflicts of interest apply to this
Agreement.
D. Waiver of Terms and Conditions. The failure of either party to insist in any one or more
instances on performance of any of the terms or conditions of this Agreement or to exercise
any right or privilege contained herein shall not be considered as thereafter waiving such
terms, conditions, rights or privileges, and they shall remain in full force and effect.
E. Compliance with Civil Rights. To the extent permitted and/or required by law, the parties
agree to comply with A.R.S. Title 41, Chapter 9 (Civil Rights), Arizona Executive Orders
75-5 and 99-4 and any other applicable federal or state laws relating to equal opportunity and
non-discrimination, including the Americans with Disabilities Act.
F. Compliance with Laws, Regulations and Policies. The parties shall comply with all
applicable federal, state and local laws, rules, regulations, standards and Executive Orders,
without limitation to those designated within this Agreement. The laws and regulations of the
State of Arizona shall govern the rights of the parties, the performance of this Agreement and
any disputes hereunder. Furthermore, the parties agree to abide by each party’s policies to
the extent appropriate and required or permitted by law.
G. No Joint Venture. It is not intended by this Agreement to, and nothing contained in this
Agreement shall, be construed to, create any partnership, joint venture or employment
relationship between the parties or create any employer-employee relationship between the
parties’ employees. Neither party shall be liable for any debts, accounts, obligations or other
liabilities whatsoever of the other party, including, but without limitation, the other party's
obligation to withhold Social Security and income taxes for itself or any of its employees.
H. No Third Party Beneficiaries. Nothing in this Agreement is intended to create duties or
obligations to or rights in third parties not parties to this Agreement or affect the legal liability
of either party to the Agreement by imposing any standard of care with respect to the
maintenance of public facilities different from the standard of care imposed by law.
I. Non-assignment. Neither party shall assign its interest in this Agreement, either in whole or
in part.

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J. Severability. If any part, term or provision of this Agreement shall be held illegal,
unenforceable or in conflict with any law, the validity of the remaining portions and
provisions hereof shall not be affected.
K. Entire Agreement. This Agreement represents the entire agreement between the parties and
supersedes all prior negotiations, representations or agreements, either expressed or implied,
written or oral. It is mutually understood and agreed that no alteration or variation of the
terms and conditions of this Agreement shall be valid unless made in writing and signed by
the parties.
L. Sovereign Immunity. Nothing in this Agreement shall be construed as an express or implied
waiver of the sovereign immunity of either party in any forum or jurisdiction.
M. Counterparts. This Agreement may be executed in any number of counterparts, all such
counterparts shall be deemed to constitute one and the same instrument, and each of said
counterparts shall be deemed original hereof.

(Signatures on following page)

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RE: LAW ENFORCEMENT MUTUAL AID AGREEMENT
Between THE TOHONO O’ODHAM NATION
And MARICOPA COUNTY

IN WITNESS WHEREOF, this Agreement has been executed and approved by the parties and
persons whose signatures appear below.

MARICOPA, a political subdivision of
TOHONO O'ODHAM NATION
the State of Arizona

By:_________________________________
By:______________________________
Bill Gates
Ned Norris Jr.
Chairman
Chairman
MARICOPA County
Tohono O’odham Nation
Board of Supervisors

Date

ATTEST

By:

Juanita Garza, County Clerk

Date

By: ________________________________
By: _______________________________
Paul Penzone
Elton Begay
Sheriff
Chief of Police
County of Maricopa
Tohono O’odham Nation

Date

APPROVED AS TO FORM
APPROVED AS TO FORM

By: _________________________________
By: _______________________________

Howard Shanker
Deputy County Attorney
Attorney General

County of Maricopa
Tohono O’odham Nation

Date