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\r\n<\/p>\r\nThe nation’s highest court will hear arguments in United States v. Cooley<\/em><\/a>, a case that impacts the treaty rights of the Crow Tribe<\/a>, on March 23.\r\n <\/p>\r\nThe U.S. Supreme Court<\/a> announced the hearing in an order on Monday. It marks the first argument in an Indian law case of the current term.\r\n <\/p>\r\nAt issue in Cooley<\/em> 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<\/a> 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.\r\n <\/p>\r\n“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\u2019 laws,” the Department of Justice<\/a> wrote in the opening brief for the U.S. government<\/a> on January 8. \r\n <\/p>\r\n\u201cThat authority, which Congress has regulated but never eliminated, is critical to the interests of the United States, the States, the tribes, and the public,\u201d the brief continued.\r\n <\/p>\r\n20210108153036386_19-1414tsUnitedStates<\/a>\r\n <\/p>\r\nMore specifically, the brief notes that the 1868 Treaty with the Crow<\/a> recognizes the right of the tribe to investigate non-Indians for alleged wrongdoing. Such \u201cbad men among the whites\u201d can then be prosecuted by the U.S., so long as \u201cproof\u201d is provided — in this case, it’s the evidence obtained during the traffic stop.\r\n <\/p>\r\n\u201cUnder that provision, ‘bad men among the whites’ are non-Indian offenders,\u201d the brief argues. \r\n <\/p>\r\nSimilar provisions are found in other tribal treaties<\/a> — 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.\r\n <\/p>\r\n\u201cThose ‘bad men’ provisions, like the other treaty provisions discussed above, reinforce the tribes\u2019 retention of inherent authority to exercise certain policing functions with respect to non-Indians within the reservation,\u201d the 57-page brief reads.\r\n <\/p>\r\nAgainst 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<\/a> by tribal nations, inter-tribal organizations, advocates for Native women, current and former members of Congress and a bipartisan group of former federal prosecutors.\r\n <\/P>\r\n\u201cFor the past fifty years, Congress has consistently taken action to affirm tribal authority\u2014not restrict it,\u201d a brief led<\/a> by the National Indigenous Women’s Resource Center<\/a> and signed by 11 tribal nations and dozens of supporting organizations reads. \u201cRepeatedly, 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.\u201d\r\n <\/P>\r\n20210115140949495_19-1414 Amicus Brief of NationalIndigenousWomensResourceCenter<\/a>\r\n <\/P>\r\nThe non-Indian in the case is Joshua James Cooley<\/a>. He has not yet filed his response to the government’s opening brief on the merits.\r\n <\/p>\r\nBut 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<\/a> 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.\r\n <\/p>\r\n\u201cSaylor never asked Cooley whether he was an Indian or otherwise ascertained that he was not. Instead, he reached a conclusion about Cooley\u2019s status as a non-Indian based on physical appearance alone,\u201d the unanimous decision from March 2019<\/a> stated. \u201cOfficers cannot presume for jurisdictional purposes that a person is a non-Indian \u2014 or an Indian \u2014 by making assumptions based on that person\u2019s physical appearance.\u201d\r\n <\/p>\r\nJust two years ago, the Supreme Court heard another case impacting the Crow Tribe’s treaty rights. In Herrera v. Wyoming<\/em><\/a>, the justices held that tribe\u2019s off-reservation hunting rights were never abrogated<\/a>.\r\n <\/p>\r\nThe vote in Herrera<\/em> 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<\/a>, who died in September at the age of 87.\r\n <\/p>