(dissenting).
I dissent.
In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), the United States Supreme Court was asked to determine whether Indian tribal courts have jurisdiction over non-Indians who commit criminal acts involving Indian victims in Indian country. The Court held that tribal courts cannot exercise criminal jurisdiction over non-Indians. However, in so doing, the Court asserted that:
[t]he history of Indian treaties ... is consistent with the principle that Indian tribes may not assume criminal jurisdiction over non-Indians without the permission of Congress. 435 U.S. at 197-98, n.8, 98 S.Ct. at 1015 n.8.
A flurry of interest and concern resulted from this opinion. In New Mexico, the Legislature, in an attempt to overcome some of the possible ramifications of Oliphant, provided for cross-commission of-all Indian tribe or pueblo law enforcement officers, § 29-1-11, N.M.S.A.1978, and thus solved a potentially difficult question of criminal jurisdiction.
In the instant case, Officer Rocha, a commissioned BIA officer who had not been commissioned pursuant to § 29-1-11, acted outside his authority when he detained the defendants. While Oliphant does, as suggested in the majority opinion, acknowledge that arrests of non-Indians may be made— this is only true where authority to arrest and detain exists. Traffic Ordinance No. 8 of the Mescalero Apache Reservation, under which Officer Rocha derived his authority, at Art. IX, § 2(a), is specific about the detaining of a violator. It is this section that creates a problem with the opinion. Section 2(a) states:
(a) Except when authorized or directed to immediately take a person arrested for a violation of the traffic laws before a Judge of the Mescalero Apache Indian Court of Offenses, any officer of the law ... shall take the name, address, and operator’s license number of the vehicle involved and shall issue the violator either a verbal or written notice to appear to answer the charges against him.... The officer, upon receiving the promise . . . shall release such person from custody. (Emphasis added.)
Authorization to take a person into custody is limited, and appears in the next sentence.
The only exceptions to this provision shall be in the case of an alleged drunken, reckless, or careless driver and persons found to be in the company of an alleged drunken driver.
Defendant was not cited for any of the exceptions listed, and should therefore not have been detained by the officer. If the issue is the “reasonableness of the detention”, I believe a discussion of the limitation on Officer Rocha’s authority to detain is necessary. Where the ordinance that empowers the stop specifically prohibits detention, such a detention is illegal. I cannot agree that a search that arises out of the unlawful detention can be tolerated. The suppression order was correct and should be affirmed.