The U.S. Supreme Court on Monday issued a unanimous ruling in a case affirming the sovereignty of federally-recognized Indian tribes to maintain a small subset of police powers over non-tribal individuals.
The case, stylized as United States v. Cooley, posed a novel question before the nation’s high court in late March: can a tribal officer detain a non-Indian on a federal roadway if it is not apparent at the time of the detention that the non-Indian has been violating the law?
In Monday’s opinion, Justice Stephen Breyer answered that question for the nine justices with a resounding “Yes.”
“We have previously noted that a tribe retains inherent sovereign authority to address ‘conduct [that] threatens or has some direct effect on . . . the health or welfare of the tribe,'” Breyer wrote. “We believe this statement of law governs here. And we hold the tribal officer possesses the authority at issue.”
The facts of the case itself are fairly simple: Crow Highway Safety Officer James Saylor saw a vehicle on the side of the road and stopped to assist. The driver, Joshua Cooley, a non-Indian, allegedly gave off the appearance of being under the influence, and Saylor claimed to have seen guns on the front seat and a child crawling on Cooley’s lap. Additional searches turned up methamphetamine.
Cooley was charged with drug crimes in federal court. He moved to suppress the evidence as the fruit of an illegal search, and two lower courts agreed — including the Ninth Circuit Court of Appeals.
“Here, no treaty or statute has explicitly divested Indian tribes of the policing authority at issue,” the Supreme Court’s opinion notes — explaining that tribes “lack inherent sovereign power to exercise criminal jurisdiction over non-Indians” as a result of nearly 200 years of precedent that have steadily clawed away at the power afforded to the Indian nations which have “dependent status” subject to the broader United States.
The most relevant piece of case law to the court’s present inquiry, however, is the 1981 case of Montana v. United States which held that tribes cannot regulate hunting and fishing by non-Indians on reservation land owned by non-Indians based on the principle that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.”
Breyer also noted an important caveat [emphasis in original]:
At the same time, we made clear that Montana’s “general proposition” was not an absolute rule. We set forth two important exceptions. First, we said that a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Second, we said that a “tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”
Here, the conduct giving root to Cooley’s claim, the court reasoned, was more or less precisely the sort of conduct that tribes should be allowed to police at a basic level in order to maintain public safety.
“The second exception we have just quoted fits the present case, almost like a glove,” Breyer explained — referring to the above-quoted passage in italics. “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. 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.”
In essence, the Cooley decision was little more than a reiteration of longstanding jurisprudence and a dismissal of the Ninth Circuit-endorsed test that cabins trial sovereignty on the “apparent” nature of the alleged crime in progress — here, again, alleged driving under the influence and drug-running.
The opinion lays out this reasoning:
[W]e have doubts about the workability of the standards that the Ninth Circuit set out. 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.” 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. At the same time, because most of those who live on Indian reservations are non-Indians, this problem of interpretation could arise frequently.
Breyer cites another high court ruling from 1997 which also fits the Cooley fact pattern: “We do not here question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law.”
Right-of-center Justice Samuel Alito, who was one of the biggest skeptics during oral argument, authored a terse concurring opinion which sought to limit the reach of the Cooley ruling.
“I join the opinion of the Court on the understanding that it holds no more than the following,” the concurrence clarifies. “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.”
[image via Mark Ralston/Getty Images]
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