Kolby KickingWoman
Indian Country Today

For the first time since the start of the October 2020 term, the Supreme Court is set to hear an Indian Country case Tuesday morning.

At issue in the case, United States v. Cooley, is whether evidence found by a tribal police officer was lawfully obtained. The case came from the United States Court of Appeals for the Ninth Circuit where the panel of judges affirmed a lower court ruling that the search was unlawful.

At approximately 1 a.m. Joshua James Cooley and his child were parked on the shoulder of Highway 212 within the Crow Indian Reservation boundaries in southeastern Montana, according to court documents.

Crow Police Department highway safety officer, James Saylor, passed the vehicle, turned around and pulled up behind it. Saylor said in his experience he regularly came upon motorists who needed assistance and that the particular area specifically along Highway 212 had poor cell phone service, according to documents.

In the process of interacting with Cooley, Saylor formed a reasonable suspicion that Cooley was involved in criminal conduct. However, tribes do not have criminal jurisdiction over non-Indians and this was not a formal traffic stop and began as a welfare check.

Originally, Cooley only lowered his window about six inches to talk to Saylor. After asking Cooley a number of questions, Saylor asked that he roll his window down further at which point Saylor noticed two semi-automatic rifles in the passenger seat.

Saylor ordered Cooley out of the vehicle and escorted him along with his child to his patrol car. Upon getting to the patrol car, Cooley took out a few small, empty plastic bags that Saylor recognized are commonly used for methamphetamine, according to documents.

While waiting for backup from county and Bureau of Indian Affairs officers, Saylor returned to Cooley’s vehicle to turn off the engine. It was there he found a glass pipe in the cab of the truck, a plastic bag that appeared to have methamphetamine in it, according to documents.

After backup arrived, documents say the BIA officer directed Saylor to do an additional search of the vehicle where more methamphetamine was found.

Cooley was charged in the District of Montana with one count of possession with intent to distribute methamphetamine and one count of possession of a firearm in furtherance of a drug trafficking crime.

According to documents, Cooley motioned to suppress the evidence found by Saylor and argued that Saylor was acting outside of his jurisdiction when he seized Cooley.

The district court granted Cooley’s motion and reasoned “that a tribal officer cannot detain a non-Indian on a state or federal right-of-way unless it is apparent at the time of the detention that the non-Indian has been violating state or federal law, and that Saylor therefore had no authority to seize Cooley when and where he did.”

Documents also say “the district court noted that when Saylor first observed Cooley through the truck’s partially open driver’s window, Cooley ‘seemed to be non-Native,’ and held that Saylor had no authority to detain Cooley from thenceforward.”

Joel Williams, Cherokee, an attorney for the Native American Rights Fund, said the case might get a little more attention after the McGirt decision last summer but that the legal issue at hand in Cooley is distinctly different from McGirt.

Williams added he will be paying attention to the questions asked during oral arguments from the pro law enforcement justices Clarence Thomas, Samuel Alito and Brett Kavanaugh.

“They also tend to just sort of overall vote in favor of tribal interests, the least,” Williams said. “It'll be very interesting to hear how they approach their questions, how they're thinking about this case.”

Like many cases that make their way to the Supreme Court, especially Indian Country cases, the ramifications can have a much larger impact.

If the ninth circuit panel ruling is upheld, it could put tribes in a precarious position, Williams said.

“It creates a really unworkable situation for law enforcement in Indian Country, because it would so severely curtail the ability of the tribal police to to detain people that are reasonably believed to be breaking the law in some way,” he said.

Williams added that tribal police are often the first responders and the forefront of public safety for Natives and non-Natives alike.

“Because tribal police are so often the first responders and sort of at the forefront of public safety in Indian Country, not just on behalf of Indian people but on behalf of all people, it can really pose some serious public safety concerns,” Williams said.

Oral arguments will be live-streamed on CSPAN at 10 a.m. EDT. 

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