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Teepees in Crow Agency, Montana, where the headquarters of the Crow Tribe are also located. Photo: Robert Blyth
U.S. Supreme Court sets oral argument in ‘bad men’ treaty rights case
Thursday, February 4, 2021

The nation’s highest court will hear arguments in United States v. Cooley, a case that impacts the treaty rights of the Crow Tribe, on March 23.

The U.S. Supreme Court announced the hearing in an order on Monday. It marks the first argument in an Indian law case of the current term.

At issue in Cooley is whether tribal police officers have the ability to temporarily detain and search non-Indians. The dispute arose out of a traffic stop on the Crow Reservation in Montana and resulted in a discovery of methamphetamine and a firearm — as well as a young child — in a vehicle that was seen driving erratically.

“Tribes have always had, and continue to retain, the inherent sovereign authority to reasonably investigate and temporarily detain people within their borders for violations of other sovereigns’ laws,” the Department of Justice wrote in the opening brief for the U.S. government on January 8.

“That authority, which Congress has regulated but never eliminated, is critical to the interests of the United States, the States, the tribes, and the public,” the brief continued.


More specifically, the brief notes that the 1868 Treaty with the Crow recognizes the right of the tribe to investigate non-Indians for alleged wrongdoing. Such “bad men among the whites” can then be prosecuted by the U.S., so long as “proof” is provided — in this case, it’s the evidence obtained during the traffic stop.

“Under that provision, ‘bad men among the whites’ are non-Indian offenders,” the brief argues.

Similar provisions are found in other tribal treaties — no less than 8 government-to-government agreements are cited in the brief. And some treaties are more explicit in requiring “bad men” to be turned over to the U.S., the government is telling the high court.

“Those ‘bad men’ provisions, like the other treaty provisions discussed above, reinforce the tribes’ retention of inherent authority to exercise certain policing functions with respect to non-Indians within the reservation,” the 57-page brief reads.

Against this backdrop, Indian Country has lined up to support the federal government and the Crow Tribe’s treaty rights. On January 14 and January 15, shortly before Joe Biden was sworn in as the 46th president of the United States, eight briefs were filed by tribal nations, inter-tribal organizations, advocates for Native women, current and former members of Congress and a bipartisan group of former federal prosecutors.

“For the past fifty years, Congress has consistently taken action to affirm tribal authority—not restrict it,” a brief led by the National Indigenous Women’s Resource Center and signed by 11 tribal nations and dozens of supporting organizations reads. “Repeatedly, Congress has recognized its own trust duty and obligation to respect and uphold this authority because of the connection between sovereignty and safety for Native women.”

20210115140949495_19-1414 Amicus Brief of NationalIndigenousWomensResourceCenter

The non-Indian in the case is Joshua James Cooley. He has not yet filed his response to the government’s opening brief on the merits.

But Cooley, who was indicted on federal drug trafficking charges based on the “proof” delivered by Crow tribal police officer James Saylor, was able to convince the 9th Circuit Court of Appeals to disregard that proof. The ruling centered on the defendant’s status as a non-Indian, not on the dangers he posed to the reservation or its inhabitants.

“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 unanimous decision from March 2019 stated. “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.”

Just two years ago, the Supreme Court heard another case impacting the Crow Tribe’s treaty rights. In Herrera v. Wyoming, the justices held that tribe’s off-reservation hunting rights were never abrogated.

The vote in Herrera was a narrow 5 to 4, with Justice Neil Gorsuch siding with the more liberal-leaning members of the court in delivering a victory for tribal interests. Joining the minority was the the late Justice Ruth Bader Ginsburg, who died in September at the age of 87.

Gorsuch and Ginsburg were also in the majority in a more recent tribal win. By a 5 to 4 vote last June, the court held that the reservation promised to the Muscogee (Creek) Nation by treaty was never diminished by Congress.

The passing of Ginsburg allowed Donald Trump to appoint yet another member to the court, his third pick in fact. The arrival of
Justice Amy Coney Barrett has fractured the narrow majority that had sided with Indian Country in the prior cases.

Cooley is the first of two Indian law cases on the court’s docket. The second is Mnuchin v. Confederated Tribes of the Chehalis Reservation, which is joined with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation.

At issue in Chehalis is whether Alaska Native corporations qualify for shares of an $8 billion COVID-19 relief fund that was designated by Congress for “tribal governments.” The D.C. Circuit Court of Appeals concluded that the corporations, which are for-profit entities organized under Alaska law, are not tribal governments.

The Trump administration appealed the decision to the Supreme Court before Biden came on board. The Native corporations also appealed.

A hearing has not yet been scheduled in the case.

‘Bad men’: 1868 Treaty with the Crow
Negotiations for the 1868 Treaty with the Crow concluded at Fort Laramie, in Dakota Territory, on May 7, 1868. It was ratified by the U.S. Senate on July 25, 1868, and proclaimed on August 14, 1868.

Article 1 of the treaty contains the “bad men” provision. It follows:

If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the [local federal] agent and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

Briefs: United States v. Cooley
Here are the briefs on the merits in support of tribal interests in United States v. Cooley.

Brief of Petitioner United States

Amicus Brief of National Indigenous Women’s Resource Center

Amicus Brief of the Lower Brule Sioux Tribe, et al.

Amicus Brief of Ute Indian Tribe

Amicus Brief of Indian Law and Policy Professors

Amicus Brief of National Congress of American Indians, et al.

Amicus Brief of Current and Former Members of Congress

Amicus Brief of Former US Attorneys

Amicus Brief of the Cayuga Nation, et al.

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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