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A Crow Nation police vehicle in Montana. Photo: Crow Tribe Police Department
Supreme Court backs tribal sovereignty in law enforcement case
Tuesday, June 1, 2021

Note: This post will be updated throughout the day.

The nation’s highest court has unanimously sided with tribal sovereignty in one of two Indian law cases on the docket during an otherwise quiet session.

By a vote of 9 to 0, the U.S. Supreme Court on Tuesday confirmed that tribal police officers can stop and search non-Indians who are suspected of violating the law. The decision was clear-cut, with the justices sending a message of support for the “inherent” sovereignty of Indian nations.

“Long ago we described Indian tribes as ‘distinct, independent political communities’ exercising sovereign authority,” Justice Stephen G. Breyer wrote for the court.

And while the U.S. government has repeatedly restricted the ways in which tribes can exercise their sovereignty, the case in which a non-Indian was stopped by an officer from the Crow Tribe does not fall into one of those situations, according to the court. Joshua James Cooley was found with drugs, firearms and even a small child when he was pulled over on the Crow Reservation in Montana.

“Here, no treaty or statute has explicitly divested Indian tribes of the policing authority at issue,” Breyer wrote in the nine-page opinion.

Despite the overt win, the decision was tied to a precedent known as Montana v. United States. In that case, the Supreme Court held that tribes, generally, lack jurisdiction over non-Indians.

But as Breyer pointed out, an exception arises in situations where a non-Indian is engaging in conduct that ‘threatens or has some direct effect on … the health or welfare of the tribe. Activity that threatens public safety on reservations falls within the confines of Montana, the high court confirmed.

“The second exception we have just quoted fits the present case, almost like a glove,” the decision stated. “The phrase speaks of the protection of the “health or welfare of the tribe.’”

“To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats,” continued Breyer, who was nominated to the court by Democratic former president Bill Clinton. “Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.”

Indianz.Com Audio: U.S. Supreme Court: United States v. Joshua James Cooley

In light of the limits imposed on tribal sovereignty, Justice Samuel Alito wrote separately to let non-Indians know his views on the matter. Though he agreed without the outcome, he outlined a series of conditions that he said applied to law enforcement on reservations.

“On a public right-of-way that traverses an Indian reservation and is primarily patrolled by tribal police, a tribal police officer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene,” wrote Alito, who was nominated to the bench by Republican former president George W. Bush.

No other justices wrote about the decision, which took about 70 days to reach. Oral arguments were heard on March 23, with a surprising majority of the court expressing concerns about public safety in Indian Country, where tribal, local, state and federal authorities share — and sometimes compete — for jurisdiction.

The more conservative leaning members of the court in fact sounded some of the strongest alarms during the 1-hour and 10-minute hearing. They were worried that non-Indians would be able to evade accountably simply by fleeing to tribal lands, with Justice Clarence Thomas taking the situation to the extreme in a confrontation with Cooley’s attorney.

“Let’s change the facts,” said Thomas, who was named to the court by Republican former president George H. W. Bush.

“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?” Thomas asked Cooley’s attorney.

Tribes and their advocates used the case to highlight the high rates of victimization in Indian Country. Briefs from law and policy experts pointed out that Native people — in particular, women — are more likely to be the victims of crime. Most of the offenders are non-Indians, according to data reported by the federal government.

“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.”

The Supreme Court decision in United States v. Cooley in fact embraced the argument advanced by Native women. Breyer wrote that Congress has repeatedly supported tribal sovereignty, recognizing the right for their law enforcement agencies to enter into agreements with other sovereigns to address “gaps in policing authority” on reservations.

“To the contrary, in our view, existing legislation and executive action appear to operate on the assumption that tribes have retained this authority,” Breyer wrote in refuting Cooley’s attempts to undermine tribal sovereignty.

The ruling is a victory for the federal government, whose prosecutors have been pursuing charges against Cooley based on his activity on the Crow Reservation. According to the indictment, he’s being accused of one count of possession with intent to distribute methamphetamine and one count of possession of a firearm in furtherance of a drug trafficking crime.

By relying on his status as a non-Indian, Cooley had convinced a federal judge to suppress the evidence uncovered as a result of the stop and search initiated by the Crow police officer. Without proof of drug trafficking and the firearm, the U.S. Attorney’s Office in Montana would have little to go on so the Department of Justice appealed the ruling to a higher-level court.

Rather than resolving the matter, the dispute gained even more significance when the 9th Circuit Court of Appeals affirmed the granting of Cooley’s motion to suppress the evidence. The outcome thus spread the impacts across Indian Country, setting precedent for tribal sovereignty on more than 100 reservations in several Western states.

The Crow Reservation in Montana. Photo: Montanabw

The 9th Circuit’s ruling was also problematic for the U.S. government because it attempted to lay out “standards” for tribal officers who encounter a person who may or not be Indian. The Supreme Court, as the highest court in the land, effectively rebuked these guidelines on Tuesday, holding that they would encourage lying and that they were fundamentally unclear.

“Those standards require tribal officers first to determine whether a suspect is non-Indian and, if so, allow temporary detention only if the violation of law is ‘apparent,’” Breyer wrote in the decision. “The first requirement, even if limited to asking a single question, would produce an incentive to lie.”

The second requirement — that the violation of law be ‘apparent’ — introduces a new standard into search and seizure law. Whether, or how, that standard would be met is not obvious,” Breyer continued.

Cooley is the first of two Indian law cases on the Supreme Court’s docket for the current term, which started last October. The second is Mnuchin v. Confederated Tribes of the Chehalis Reservation, joined with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, which also touches on tribal sovereignty.

Indianz.Com Video: U.S. Supreme Court – Yellen v. Confederated Tribes of the Chehalis Reservation – April 19, 2021

At issue in Chehalis is whether Alaska Native Corporations, also known as ANCs, 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, as for-profit entities organized under Alaska state law, are not eligible because they are not recognized in the same manner as sovereign Indian nations.

The Donald Trump administration, whose officials wanted the ANCs to receive the coronavirus funds, appealed the decision to the Supreme Court before President Joe Biden took office in January. The Native corporations also appealed, with oral arguments taking place on April 19.

Incidentally, the Trump administration also pursued the appeal in Cooley, with government attorneys arguing that the 1868 Treaty with the Crow required the U.S. to investigate cases of “bad men among the whites” — in other words, wrongdoing by non-Indians. The case marked the second time in two years that the prior president and his team went to bat for the Crows before the Supreme Court.

A decision in Chehalis is expected before the end of June, which is when the Supreme Court typically wraps up work for its current term.

U.S. Supreme Court Decision: U.S. v. Cooley
Syllabus | Opinion [Breyer] | Concurrence [Alito] | Full Document

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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