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Demonstrators rally in support of the Affordable Care Act at the U.S. Supreme Court in Washington, D.C., on November 10, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)
Supreme Court accepts first Indian law case in new conservative era
Monday, November 23, 2020

For the second time in as many years, the U.S. Supreme Court will be taking up a case that impacts the treaty rights of the Crow Tribe.

In an order on Friday, the justices agreed to hear United States v. Cooley. The case is the first Indian law dispute on the docket for the high court’s current term, which began in October amid a major ideological battle that brought another conservative member to the bench.

But Cooley won’t be the first time most of the justices have been called to examine the 1868 Treaty with the Crows. Two years ago, the court determined that the tribe’s off-reservation hunting rights have never been abrogated.

Mindful of the outcome in Herrera v. Wyoming, which was decided in May 2019, the tribe is once again seeking for victory. A friend of the court brief reminds the justices that just a few short months ago, they forced the United States government to honor its trust and treaty responsibilities.

“This court should ‘hold the government to its word,’” attorneys for the tribe told the justices, quoting from the historic ruling in McGirt v. Oklahoma, one of the most consequential Indian law cases in recent history.

9th Circuit Court of Appeals: USA v. Joshua Cooley, No. 17-30022 – May 14, 2018

Unlike the situation McGirt, however, in which the Trump administration repeatedly disavowed its legal and moral obligations, the Crow Tribe has the backing of the executive branch. In fact, it was the Department of Justice that asked the Supreme Court to hear the new case, calling it a threat to the rights of Indian nations across the country.

“Requiring tribes to give up even more of their limited sovereignty merely to preserve law and order within reservation boundaries is not an adequate solution,” government attorneys wrote in their petition to the high court.

The dispute in Cooley arises from a seemingly routine traffic stop that occurred on the Crow Reservation in Montana more than four years ago. According to the government’s brief, tribal police officer James Saylor encountered a vehicle whose driver exhibited increasingly erratic behavior.

Saylor eventually discovered methamphetamine and a firearm in the car (along with a small child) and the driver was indicted in federal court on drug trafficking charges. But the case was thrown out because Joshua James Cooley was able to have the evidence suppressed on the grounds that tribal law enforcement lack criminal jurisdiction over non-Indians.

“Saylor never asked Cooley whether he was an Indian or otherwise ascertained that he was not. Instead, he reached a conclusion about Cooley’s status as a non-Indian based on physical appearance alone,” the 9th Circuit Court of Appeals wrote in a unanimous decision from March 2019. “Officers cannot presume for jurisdictional purposes that a person is a non-Indian — or an Indian — by making assumptions based on that person’s physical appearance.”

A welcome sign on the Crow Reservation in Montana. Photo: Jimmy Emerson
According to Cooley’s defense team, the dispute should end there, on the jurisdiction issue. In a brief to the Supreme Court, they argued that tribal treaty rights have never been part of the discussion until now.

“The government does not press the treaty right issue” being raised by the tribe, Cooley’s attorneys wrote, adding: “That issue was not raised, let alone considered, in either of the lower courts.”

With their order on Friday, the justices did not explain why they agreed to hear Cooley. They could have been swayed by the federal government’s presentation or by the tribal interest briefs, which included one signed by the National Indigenous Women’s Resource Center and five Indian nations, all of whom have been exercising jurisdiction over non-Indians in certain domestic violence matters.

“Forcing tribal law enforcement to wait to intervene until domestic violence becomes ‘obvious’ or ‘apparent’ will cost lives,” reads the brief, which was joined by the Confederated Tribes of the Chehalis Reservation, the Confederated Tribes of the Umatilla Indian Reservation, the Fort Peck Assiniboine and Sioux Tribes, the Pascua Yaqui Tribe and the Quinault Nation.

Although the 9th Circuit decision in Cooley was unanimous, some strong disagreements surfaced after the U.S. government asked the court to rehear the case by putting it before a larger set of judges. The Department of Justice’s petition for a rehearing en banc was rejected this past January but not everyone was on board with the development.

In a dissent joined by three colleagues, Judge Daniel P. Collins said the case posed “life-or-death consequences for many of the hundreds of thousands of persons who live on Indian reservations located within this circuit.” The appeals court hears cases affecting tribes in seven Western states, where some of the largest reservations in the country are located.

“The panel’s extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit,” Collins wrote.

The dissent was notable in several respects. At the time of the denial of the government’s en banc petition in January, Collins had only been serving on the 9th Circuit for several months, having been nominated by outgoing President Donald Trump, a Republican.

Of the three judges who joined Collins in calling for a rehearing, Mark J. Bennett and Daniel Aaron Bress were nominated to the 9th Circuit by Trump. The other was Carlos Bea, who was a pick of Republican president George W. Bush.

On the other hand, the two 9th Circuit judges who explained why the case wasn’t worthy of another hearing were Marsha S. Berzon, who was nominated to the bench by Democratic president Bill Clinton, and Andrew D. Hurwitz, a pick of Barack Obama, another Democrat.

Indianz.Com Audio: 9th Circuit Court of Appeals – USA v. Joshua Cooley, No. 17-30022 – May 14, 2018

The disagreement points to a possible reason why the Supreme Court accepted the case. The forthcoming decision could provide guidance to judges across the nation in matters affecting law enforcement in Indian Country.

“The decision below precludes tribal officers from routine law-enforcement activities necessary to protect both the tribe and the public at large from dangerous and criminal activity within the boundaries of the tribe’s reservation,” government attorneys wrote in their reply brief, which was submitted late last month, before the petition was granted by the Supreme court.

The justices will now accept briefs as they consider the merits of United States v. Cooley. A hearing has not been scheduled but it is expected to take place early 2021, as the court has already released its calendar through the end of this year.

Oral arguments have been taking place virtually, due to the COVID-19 pandemic. Prior to McGirt v. Oklahoma, which was heard on May 11, the last Indian law case that was heard in person was Herrera v. Wyoming, back in January 2019.

Clayvin Herrera, in white cap, is seen with members of his family on the Crow Reservation in Montana. Herrera was at the center of the U.S. Supreme Court case that upheld the off-reservation treaty rights of the Crow Tribe. Photo: Ivy Allen / USFWS

In Herrera, the Supreme Court ruled in favor of the Crow Tribe’s treaty rights by a vote of 5 to 4. Justice Neil Gorsuch, whose experience in Indian law is unprecedented, joined his more liberal-leaning colleagues in siding with a Crow citizen who was cited by the state of Wyoming for hunting on treaty protected territory.

The vote in McGirt also was 5 to 4. Gorsuch wrote the landmark majority opinion, which confirmed the existence of the reservation promised to the Muscogee (Creek) Nation by treaty.

The ideological makeup of the Supreme Court, however, has been dramatically altered following the passing of Justice Ruth Bader Ginsburg in September. She had been a part of the 5-member majority in McGirt and Herrera.

The addition of Justice Amy Coney Barrett to the court threatens to undermine the pro-tribal victories by reducing the vote in treaty rights cases to just 4 members. Barrett, who was nominated by President Trump and was confirmed by the Republican-led U.S. Senate in just two weeks, lacks direct experience in Indian law.

Supporters of Donald Trump gather at the U.S. Supreme Court in Washington, D.C., on November 7, 2020, to protest the outcome of the presidential election in which Democrat Joe Biden has been declare the winner. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Trump has refused to concede the presidential race to Joe Biden despite counts and recounts showing the Democratic candidate as the winner, particularly in states where Native voters helped sway the outcome. He is also refusing to allow for an orderly transition of the executive branch to Biden and his incoming team.

In his Plan for Tribal Nations, Biden has promised to “[n]ominate judges who understand federal Indian law​, respect tribal sovereignty, and will uphold both our treaties and the U.S. Constitution.”

Depending on the timing of the argument in Cooley, the case might be presented by the outgoing Trump administration or the new Biden one.

9th Circuit Court of Appeals Decisions
United States v. Cooley [Panel Decision] (March 21, 2019)
United States v. Cooley [Denial of En Banc] (January 24, 2020)

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