Issues
Does a tribal police officer have authority to temporarily stop and search a non-Indian on public rights-of-way within tribal territories based on a potential violation of state or federal law?
This case asks the Supreme Court to rule on whether a tribal police officer has authority to temporarily stop and search a non-Indian on public rights-of-way within Indian jurisdiction based on a potential violation of state or federal law. Petitioner United States argues Indian tribes have broad sovereign authority to protect people and property within its borders, which includes the authority to temporarily stop and search non-Indians in Indian jurisdiction for potential state- or federal-law violations. Respondent Cooley counters that Indian tribes have no such authority because they do not have inherent sovereign authority to conduct this type of stop and search; in addition, neither Congress nor the courts have given tribal officers the authority to do so. The outcome of this case has significant policy implications raising concerns of the proper balance between public safety and individual rights on Indian jurisdiction. The case also implicates the scope of tribal sovereignty and the proper role of Congress and the courts in delineating the extent of tribal authority over non-Indians within tribal territory.
Questions as Framed for the Court by the Parties
Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.
Facts
On the morning of February 26, 2016, Officer James Saylor of the Crow Tribe Police Department was driving on a section of U.S. Highway 212 within the boundaries of the Crow Indian Reservation in Montana. United States v. Cooley at 4. Around 1:00 a.m., Officer Saylor observed a white pickup truck parked on the shoulder of the highway and pulled over to check on the welfare of the truck’s occupants. Id. Officer Saylor shined his flashlight into the front window and observed the respondent, Joshua James Cooley. Id. Officer Saylor asked Cooley to roll down his window and Cooley complied. Id. The officer noticed that Cooley “seemed to be non-Native” and had “bloodshot” eyes. Id. at 5. Office Saylor also noticed a young child in the vehicle. Id. The officer began questioning Cooley. Id. While Cooley reported that he had recently purchased the vehicle, Officer Saylor was puzzled by various discrepancies in Cooley’s story. Id. The officer then noticed two rifles in the front passenger seat of the vehicle. Id. at 6.
Officer Saylor continued to question Cooley and asked him to produce his identification. Id. According to Officer Saylor’s testimony, as Cooley searched his pockets, his breath became shallow and he began to stare intensely forward. Id. at 6. The officer later testified that in his experience, this so-called “thousand yard stare” often indicates that a suspect is about to use force. Id. Officer Saylor drew his service pistol and ordered Cooley to raise his hands, Cooley complied. Id. Moving to the passenger side of the vehicle, Officer Saylor opened the passenger side door and observed a handgun under the center console that appeared loaded. Id. The officer then took the pistol from the truck and removed its magazine before ordering Cooley out of the vehicle. Id. at 6–7. Cooley complied with Officer Saylor’s request and the officer performed a pat down of Cooley but found no additional weapons. Id. at 7. Officer Saylor ordered Cooley, who was carrying the young child, into the back of his patrol car. Id. Before the officer placed Cooley in the back of the patrol car, Cooley emptied the contents of his pockets—several empty plastic bags and cash—onto the hood of the patrol car. Id.
After placing Cooley in the patrol car, Officer Saylor radioed for backup from the tribal and county police as he believed that Cooley was non-Native. Id. Officer Saylor then returned to the truck, turned off the engine, and seized the firearms from the passenger seat. Id. In returning to the truck, Officer Saylor observed a pipe and a plastic bag which appeared to contain methamphetamine. Id. Officers from the Federal Bureau of Indian Affairs (“BIA”) and the county soon arrived at the scene and Cooley was moved to the Crow Police Department for questioning. Id. A further search of Cooley’s truck later uncovered additional methamphetamine. Id.
Cooley was charged with multiple federal drug and firearm offenses in the District of Montana. Id. Cooley moved to suppress the evidence obtained as a result of his encounter with Officer Saylor, arguing that the officer had exceeded the Crow Tribe’s authority under the Indian Civil Rights Act of 1968 (“ICRA”). Id. The district court granted Cooley’s motion reasoning that a tribal officer cannot detain a non-Indian on a state or federal right-of-way unless it is evident at the time that the suspect has been violating state or federal law. Id. at 7–8. The Ninth Circuit Court of Appeals affirmed the district court’s ruling. Id. at 23. The Court of Appeals determined that Officer Saylor violated the ICRA’s prohibition on illegal searches and seizures by detaining Cooley, a non-Indian, on a federal or state right-of-way. Id. at 22. The court stated that while Officer Saylor could have detained Cooley for an “apparent” or “obvious” violation of state or federal law, the ICRA does not authorize tribal officers to detain non-Indians for mere evidence of possible violations. Id. at 10–11.
The United States then petitioned the Supreme Court of the United States for a writ of certiorari, which the Court granted on November 20, 2020.
Analysis
INDIAN TRIBES’ SOVEREIGN AUTHORITY OVER NON-INDIANS
Petitioner United States argues that the Ninth Circuit’s holding diminishes the sovereign authority of Indian tribes to detain individuals within their territory who are suspected of violating the laws of other jurisdictions. Brief of Petitioner, United States at 16. The United States notes that, as sovereign entities, Indian tribes have the power to protect people and property within their territory from security threats and that the incorporation of the tribes into the United States did not deprive them of their sovereign status. Id. at 16–17. According to the United States, it is “undisputed” that a sovereign entity has the inherent authority to detain and investigate individuals suspected of violating the laws of other sovereigns. Id. at 18. To support this contention, the United States cites the example of state law enforcement, who are empowered to detain and investigate individuals suspected of violating federal law. Id. While Indian tribes have “dependent status” in the political order, the United States contends that they retain all sovereign powers not withdrawn by treaty or statute or implicitly lost due to such dependent status. Id. at 19. Accordingly, the United States notes that no treaty or statute has withdrawn from the tribes the inherent sovereign power to investigate and detain non-Indians within reservations for suspected violations of state and federal law. Id. Likewise, citing the Court’s precedent in Washington v. Consolidated Tribes of the Colville Indian Reservation (“Colville”), the United States argues that the tribes’ dependent status only divests them of powers which conflict with the interests of the federal government—which is not the case here because investigating and detaining non-Indians suspected of violating federal or state law furthers the interests of the federal government. Id.
In response to the United States, Respondent Cooley argues that inherent tribal sovereignty does not include police power over non-Indians on public rights-of-way. Brief of Respondent, Joshua James Cooley at 13. Cooley notes that the Court has repeatedly held that it is “presumptively invalid” for tribes to attempt to regulate nonmembers, especially on “non-Indian fee land.” Id. Cooley argues that Officer Saylor’s search and seizure fell outside tribal authority because the officer knew that Cooley was non-Indian and Court precedent explicitly limits tribal sovereignty over non-Indians in ways federal and state sovereignty is not limited. Id. at 14. Cooley rejects the United States’ position that tribes retain sovereignty to police federal crime on non-Indian land because it furthers the interests of the national government. Id. at 18. Cooley contends that the government’s reliance on this standard articulated in Colville is misplaced because (1) the existence of an inherent police power in a dependent sovereign entity such as a tribe contradicts the founders rejection of a federal police power; (2) Colville deals with taxation authority, which is likely granted to the tribes by statute; (3) Colville involved non-Indians on tribal land rather than on a public right-of-way; and (4) the court has already rejected the existence of inherent tribal authority over non-Indians on fee lands in South Dakota v. Bourland and Montana v. United States. Id. at 19–20. Focusing on South Dakota and Montana, Cooley asserts that there is no Court precedent which supports the United States’ argument that tribes retain any level of inherent policing authority over non-Indians. Id. at 16–17.
JUDICIAL PRECEDENT AND HISTORICAL PRACTICE
The United States next argues that both judicial precedent and historical practice support tribal authority to stop and investigate non-Indian suspects on public rights-of-way within Indian Country. Brief of Petitioner at 22, 26. The United States notes that the Supreme Court has never held that tribal officers’ authority to patrol rights-of-way on reservations excludes non-Indians. Id. at 22. While Court precedents such as Duro v. Reina place limits on a tribe’s adjudicatory and regulatory authority, such precedents do not restrict a tribe’s investigatory and detention authority. Id. The United States notes that Duro explicitly grants tribal authorities the power to detain an offender and transport him or her to the proper authorities even when the tribe lacks the authority to prosecute that offender. Id. Likewise, the United States cites the Court’s precedent in Strate v. A-1 Contractors, which precluded a tribe from adjudicating a civil tort claim arising from an accident on a public right-of-way between two non-Indians, but clearly distinguished restrictions on adjudication from the tribe’s power to police the activities of non-Indians on such public roads. Id at 23–24. The United States then argues that the rationale used by the Court to restrict the jurisdiction of tribal courts to tribal members does not apply to tribes policing non-Indians within the boundaries of Indian reservations. Id. at 24. The United States reasons that non-Indians are not subject to the jurisdiction of tribal courts because they can play no part in tribal government and thus have no say over how tribal governments operate, whereas in cases where tribal police investigate and detain non-Indians, that there is no such concern because these individuals will be subject to the authority of state or federal courts. Id. at 24.
Additionally, the United States cites historical precedent to contend that there has been a longstanding understanding between the federal government and the tribes that tribal authorities would have police power over non-Indians within their territory. Id. at 24. The United States notes that many treaties between the federal government and various tribes require the tribes to detain and turn over to state or federal authorities non-Indians who were suspected of violating state or federal laws. Id. at 26–28. The United States further asserts that many other treaties guaranteeing federal prosecution of non-Indians who committed crimes in Indian Country are predicated on the assumption that the tribes have the authority to detain such individuals and produce evidence to support a prosecution. Id. at 29–31.
Cooley rejects the United States’ argument that judicial precedent distinguishes between a tribe’s adjudicatory power and its policing power. Brief of Respondent at 20. Cooley argues that a tribe’s power to police its territory cannot exceed its power to adjudicate cases and that this limitation should be even greater when the federal government has empowered the tribes to enforce federal law. Id. at 21. Cooley notes that the Court held in Duro that tribal sovereignty does not extend to non-Indians in the area of criminal enforcement. Id. at 21–22. Cooley also dismisses the United States’ use of Strate to distinguish between tribal adjudicatory authority and tribal policing authority by noting that Strate limits rather than affirms tribal sovereign authority over rights-of-way by declaring that tribes lack the right to “occupy and exclude [non-Indians]” from public rights-of-way. Id. at 22. Further, Cooley notes that the distinction between tribal adjudication and policing power in Strate is dicta as it was made in a footnote and, therefore, should not be considered binding law by the Court. Id. at 23. Cooley also cites Strate to argue that Court precedent does not support inherent sovereign authority of tribes to police non-Indians on public rights-of-way because a tribe’s inability to police his conduct (pulling over on the side of the road) is not “catastrophic for tribal self-government” and is not needed to preserve “the right of reservation Indians to make their own laws and be ruled by them” as required by Strate. Id. at 24–25.
Furthermore, Cooley rejects the United States’ assertion that historical treaties between the federal government and various Indian tribes suggest that the tribes retain an inherent sovereign authority to police non-Indians within their reservations. Id. at 30. First, Cooley argues that because the issue of so called “bad man” clauses in historical treaties was not raised before either the district court or the court of appeals, the Court should not consider the issue. Id. at 30–31. But even if the court were to consider that argument, Cooley argues, it should find that the “bad man” clauses were intended to create a private right of action for Indians whose person or property was harmed by non-Indians, rather than to establish a tribal police power. Id. at 31. Cooley argues that treaties such as the 1868 Crow Treaty did not offer any policing role to the tribes when processing personal injury claims and thus should not be read as evidence of an inherent tribal police power over non-Indians. Id. at 34. Cooley also contends that lower courts have consistently affirmed this view of tribal treaties by interpreting “bad man” clauses to refer to a private right to redress through federal channels rather than as a recognition of a tribal police power. Id. at 34–35.
PRACTICAL APPLICATION OF THE NINTH CIRCUIT’S STANDARD
Finally, the United States argues that the Ninth Circuit’s holding undermines efforts to enforce federal and state law within the boundaries of Indian reservations. Brief of Petitioner at 35. The United States contends that the Ninth Circuit’s standard will not be possible for courts to apply consistently and will produce a chilling effect on tribal law enforcement. Id. Likewise, the United States asserts the Ninth Circuit’s opinion upsets the longstanding understanding of tribal sovereignty and could create a law enforcement vacuum encompassing a large area of state and federal highways. Id. at 35–36. According to the United States, this is because the Ninth Circuit’s opinion will preclude tribal authorities from using even basic investigative techniques when policing public rights-of-way within reservations. Id. at 36–39. The United States also notes that by requiring tribal officers to ask suspects whether they are non-Indian, the Ninth Circuit may allow Indian suspects to avoid investigation as officers will be required to take no for an answer even if the suspect is lying. Id. at 40. The United States concludes by asserting that these factors make the Ninth Circuit’s test unworkable and its adoption would create significant gaps in law enforcement on tribal lands which would endanger public safety. Id. at 44–47.
Cooley counters that the United States is inviting the Court to overrule previous precedents and announce that tribes have inherent authority to police non-Indians within all of Indian Country including public rights-of-way in order to fill a gap in the law. Brief of Respondent at 26. Cooley notes that jurisdictional gaps are not uncommon in Indian law and contends that the Court should defer to Congress as the branch of government responsible for making law and regulating relations with Indian tribes. Id. at 26. Cooley further notes that the Court rejected using jurisdictional voids as a justification for ruling a particular way on issues of Indian law in cases such as Duro and Oliphant v. Suquamish Indian Tribe. Id at 27. Cooley asserts that to accept the United States’ policy-based arguments regarding jurisdictional voids, the Court would overturn key parts of both Duro and Oliphant. Id at 27. Further, Cooley argues that Congress has already addressed a potential jurisdictional void in this case by giving the Secretary of the Interior broad powers to authorize law enforcement agencies, including those of tribes, to perform a broad variety of activities beyond the normal scope of their powers. Id at 28. Cooley contends that Congress has also authorized the Secretary of the Interior to proscribe administrative rules for enforcing federal law in Indian Country which could fill any potential jurisdictional void. Id. at 29.
Discussion
BALANCING PUBLIC SAFETY AND INDIVIDUAL RIGHTS ON TRIBAL LAND
In support of the United States, Cayuga Nation et al. notes that Terry v. Ohio allows police officers to briefly stop a suspicious person and make reasonable inquiries to confirm or dispel the officer’s suspicions on whether criminal activity is occurring. Brief of Amici Curiae Cayuga Nation et al., in Support of Petitioner at 10. Cayuga Nation et al. notes the two factors motivating the Terry court’s decision: (1) a strong public interest in detecting and preventing crime; and (2) a strong public interest in protecting an officer’s safety when engaging with unpredictable suspects. Id. at 10–11. Cayuga Nation et al. emphasizes that the rationales motivating the Terry court equally apply to tribal officers because they have the primary responsibility for maintaining law and order within the tribe’s borders. Id. at 10, 14. In addition, because tribal officers may frequently interact with non-Indians, Cayuga Nation et al. argues that the Ninth Circuit’s rule would erode public safety by hampering the tribal officers’ interactions with non-Indians. Id. at 14, 18. Cayuga Nation et al. notes three problems with the Ninth Circuit’s rule. Id. at 20. First, the rule could create an incentive for an individual to lie to claim non-Indian status and an incentive for the officer to avoid legal risk and simply end the encounter. Id. Second, the rule would ignore the complexity and difficulty of ascertaining Indian status. Id. at 21–22. Third, tribal officers would have no guidance as to when it is “apparent” or “obvious” that a state or federal law is being violated. Id. at 22. Thus, Cayuga Nation et al. concludes that the Ninth Circuit’s test is impractical and would significantly hamper tribal police investigations, which would “devastate law and order on Indian reservations.” Id. at 19.
In support of Cooley, the Ninth Circuit Federal Public and Community Defenders (“Public Defenders”) state that adopting the United States’ position would usurp Congress’ authority over tribal criminal authority; indeed, Public Defenders stress that Congress, not the courts, must ratify this type of search and seizure expansion. Brief of Amici Curiae The Ninth Circuit Federal Public and Community Defenders, in Support of Respondent at 30. Public Defenders argue that the United States errs in focusing predominantly on public safety because Congress predominantly focuses on individuals’ due process rights when it considers expanding tribal police authority. Id. Public Defenders note that traditionally, when Congress expanded tribal police authority, Congress paired the expansion with procedural requirements. Id. at 32 Indeed, Public Defenders emphasize that Congress—aware that tribal police are unconstrained by constitutional limitations—incrementally made “narrowly tailored additions'' to tribal police authority. Id. at 30, 32. Thus, Public Defenders conclude that adopting the United States’ position would interfere with Congress’ regulatory scheme regarding tribal police authority and ignore Congress’ concerns regarding individual due process rights in tribal jurisdiction. Id. at 29–30.
INTRUSION ON TRIBAL SOVEREIGNTY
In support of the United States, a group of former United States Attorneys (“U.S. Attorneys”) argue that the federal government has long encouraged tribal independence; however, the Ninth Circuit’s ruling would undermine that independence by prohibiting tribal police from acting against non-Indian suspected criminals in tribal jurisdiction. Brief of Amici Curiae Former United States Attorneys, in Support of Petitioner at 29–30. Furthermore, the United States argues that Cooley’s and the Ninth Circuit’s proposed solution of encouraging cross-deputization agreements—agreements in which the state or federal government explicitly allow certain tribal officers to act as a state or federal officer—would further erode tribal sovereignty. Brief for Petitioner at 47. Indeed, Cayuga Nation et al., though admitting that cross-deputization agreements are important, emphasizes that such agreements are problematic in practice for several reasons. Brief of Cayuga Nation et al. at 25. Cayuga Nation et al. warns that unscrupulous local governments—preying on the tribes’ priority on law and order—can use these agreements to extract unrelated concessions from tribal authorities. Id. at 25–26. In addition, the United States explains that most cross-deputization agreements also contain reciprocity provisions that tribes may see as an “affront to their sovereignty.” Brief for Petitioner at 47. Thus, Cayuga Nation et al. asserts that tribes should not have to sacrifice more of their sovereignty merely to preserve law and order within tribal jurisdiction. Id.; Brief of Cayuga Nation et al. at 29.
In support of Cooley, the National Association of Criminal Defense Lawyers (“NACDL”) disagrees with the United States’ characterization of cross-deputization agreements and argues that cross-deputization would not be an attack on tribal sovereignty—indeed, such agreements would in fact “augment tribal authority.” Brief of Amicus Curiae National Association of Criminal Defense Lawyers, in Support of Respondent at 15. The NACDL argues that the United States errs in emphasizing the problems of local–tribal agreements and should instead focus on federal–tribal agreements. Id. The NACDL notes federal–tribal agreements generally do not contain reciprocity provisions that intrude on tribal sovereignty; indeed, the NACDL emphasizes that many such agreements have promoted mutual respect and tribal sovereignty. Id. at 15–16. Further, the federal government generally gives significant incentives, such as technical assistance, for tribes to enter into cross-deputization agreements. Id. at 15. Thus, the NACDL argues that the United States overstates the “cultural tensions” resulting from such agreements, while understating the benefits tribal authorities receive from the agreements. Id. at 18–19. Therefore, the NACDL concludes that cross-deputization agreements will not intrude on tribal authority and will actually enhance tribal authority by “leveling the playing field on which tribes engage in law-enforcement activity.” Id. at 19.
Written by
Edited by
Acknowledgments
Additional Resources
- Seaborn Larson, Supreme Court Case Tests Reach of Tribal Law Enforcement, Stemming From Bust on Crow Reservation, Great Falls Tribune (Dec. 28, 2020).
- Chris Aadland, U.S. Supreme Court to Hear Case Involving Crow Nation, Montana Free Press (Dec. 21, 2020).