The nation’s highest court has taken up its first Indian law case of the term, with a surprising number of justices seemingly ready to stand up for the sovereign authority of tribal governments, at least when it comes to policing on reservations.

During oral arguments in United States v. Cooley on Tuesday, several members of the U.S. Supreme Court took interest in bolstering public safety in Indian Country. They voiced concerns about the ability of non-Indians to come onto tribal land and get away with criminal activity.

“Consider the situation where the tribal officer has reasonable suspicion that a driver is driving under the influence and would present a danger if allowed to continue to drive, but the officer is pretty certain this person is not an Indian,” Justice Samuel A. Alito, Jr. said during the hearing.

“What can the tribal officer do there? Just let the person go?” Alito wondered, seemingly in awe of the idea that such an individual would in fact be allowed to keep driving simply by being non-Indian.

The question wasn’t the only one of its kind during the hearing, which ran over the 60 minutes allowed for arguments. Justice Clarence Thomas, who is widely considered to be the most conservative member of the court, took the non-Indian offender situation to an even greater extreme.

“Let’s change the facts,” Thomas told the attorney for a non-Indian who claims a police officer from the Crow Tribe had no authority to investigate his client for suspicions actions on the reservation in Montana.

“Rather than the police officer looking and determining that the respondent was nervous and that he may have had bloodshot eyes, rather, he fit the description of a serial killer … a serial killer who did not commit any of the crimes on the reservation but happened to be exactly where respondent was,” Thomas continued.

“Would you make the exact same argument in that case?” asked Thomas.

Unsurprisingly, the response from the attorney for Joshua James Cooley did not appear to sit well with some of the justices. Eric R. Henkel told the court that a tribal police officer might have to let the potential serial killer go, regardless of the danger posed to the local community.

“I do not think that the tribal officer would have authority to investigate and search, beyond just trying to determine the person’s identity and whether they fit the description,” said Henkel, an attorney from Montana.

The tribal officer, in other words, would just have to wait for other authorities, maybe a local sheriff or a federal agent, to come in and assist with the investigation.

Justice Stephen G. Breyer, who hails from the more liberal wing of the court, seemed to have a problem with that kind of policing. He repeatedly pushed Henkel to explain why someone who merely appears to be non-Indian could get away with criminal behaviors.

“You can’t just look at them and see whether they’re Indian or not,” Breyer noted. “People look different, so I think that would be a tough one to do.”

Under longstanding federal law and policy, American Indians and Alaska Natives are considered to belong to a distinct political class. The characterization is not based on race — but on their status as citizens of Indian nations with government-to-government relationships with the United States.

Prior decisions from the Supreme Court, however, have limited the ways in which tribes, as separate sovereigns, can exercise authority over non-Indians. They cannot arrest, prosecute or sentence non-Indians except in certain situations involving domestic violence offenses.

In this dispute, the Crow Tribe isn’t even seeking to hold Cooley accountable for bringing methamphetamine and a multiple firearms to the reservation, all while driving a car with a young child as a passenger. The drug trafficking and weapons charges he is facing were filed in federal court.

Instead, the federal government wants the nation’s highest court to acknowledge that tribal police officers, as primary responders on their lands, should be able to carry out their duties just like their colleagues in other jurisdictions.

“Indian tribes, like other sovereigns, have the core inherent authority to investigate and detain suspects within their borders for the violation of another sovereign’s law,” Eric Feigin, a U.S. government attorney, said in his opening remarks to the justices.

“As this court has recognized and as Congress has recognized, these areas are policed primarily often by tribal officers,” Feigin said later on during the hearing.

“And if they lack this authority, it’s going to endanger everyone on the reservation,” said Feigin, a deputy solicitor general at the Department of Justice.

Justice Amy Coney Barrett, who is the newest member of the court, appeared to be interested in the inherent sovereignty argument, at least in the law enforcement context. She asked the non-Indian defendant’s attorney to explain why tribes should be treated any different from states, or even the federal government.

In doing so, it was clear Barrett had read up on Supreme Court decisions that limited tribal authority over non-Indians in civil matters. She seemed to place criminal activity, and the ability to look into it, in a different light.

“Why is it unfair, on that rationale, simply to submit him to the authority of a police officer in a temporary stop?” said Barrett, who joined the court last October following the passing of Ruth Bader Ginsburg.

Barrett’s presence on the bench has pushed the high court in a more conservative direction. Of the nine justices, six were nominated by Republican presidents. Of those, three were picked by Donald Trump, whose record on Indian issues was less than stellar, as he often took action without consulting tribes affected by his policies.

Yet the court’s most recent tribal rights decision was written by one of his picks. Justice Neil Gorsuch, whose experience in Indian law is unprecedented, wrote the widely celebrated ruling in McGirt v. Oklahoma, which confirmed that the reservation of the Muscogee (Creek) Nation continues to exist.

On Tuesday, Gorsuch expressed concerns only with the way the Department of Justice framed the Cooley case. He said he would have argued it from an even more pro-tribal sovereignty angle.

“I guess I would have approached this thinking that tribal sovereignty remains until and unless Congress has withdrawn it in some fashion,” Gorsuch informed the government attorney.

Later, Gorsuch tried to get the non-Indian defendant’s attorney to admit that being stopped by a tribal officer isn’t such a big deal, and that it only becomes an issue if the officer engaged in behavior that violates the constitutional rights of a non-Indian.

But since tribes can’t be sued without their consent due to sovereign immunity, Gorsuch was told that the only way out was for the Supreme Court to ignore the evidence of drugs and firearms in Cooley’s car on the Crow Reservation.

“I think there’s virtually no remedy other than exclusion of evidence in this circumstance,” Cooley’s attorney said.

The second Indian law case on the Supreme Court’s docket is Yellen v. Confederated Tribes of the Chehalis Reservation, a bitter dispute over the ability of Alaska Native corporations to receive COVID-19 funding from the federal government. Arguments have been scheduled for April 19.

The court’s current session began last October. Decisions in Cooley and Chehalis are expected before the term concludes, usually before the end of June.

The court, however, has a history of making Indian Country wait. The ruling in McGirt, which was decided by a narrow vote of 5 to 4, wasn’t issued until the very last day of the October 2019 term, which itself ran later than usual due to the impacts of the coronavirus on the nation.

While the underlying facts of McGirt were connected to a criminal case in the state of Oklahoma, the outcome itself centered on interpretations of actions taken by Congress. The liberal leaning justices sided with the Muscogee (Creek) Nation, with Gorsuch providing the key vote in favor of the tribe.

The last Supreme Court dispute that was directly connected to criminal prosecutions in Indian Country was U.S. v. Lara from 2004. Unlike McGirt, the vote wasn’t even close — it was 7 to 2 in support of the right of tribes to exercise jurisdiction over all Indians. The dissenting votes came from an unusual combination of one conservative learning justice and a liberal one.

U.S. Supreme Court: United States v. Joshua James Cooley (March 24, 2021)
SCOTUSBlog: Supreme Court takes up messy tribal sovereignty case (March 22, 2021)
Native America Calling: Oliphant: four decades of hampered tribal jurisdiction (March 4, 2021)
U.S. Supreme Court sets oral argument in ‘bad men’ treaty rights case (February 4, 2021)