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Kolby KickingWoman
Indian Country Today

The Supreme Court unanimously ruled Tuesday that a tribal police officer can temporarily detain and search non-Natives on public rights of way that go through tribal land.

The case, United States v. Cooley, involved Joshua James Cooley, a non-Native man parked on the side of Highway 212 that runs through the Crow Reservation in southeastern Montana. Crow tribal police officer James Saylor approached the truck and found “watery, bloodshot eyes” and two guns lying on the front seat of the vehicle.

After ordering Cooley out of the truck and a subsequent patdown search, Saylor saw a glass pipe and plastic bag containing meth inside the truck.

A federal grand jury indicted Cooley on drug and gun offenses but he moved to have the evidence found by Saylor suppressed claiming that it was found during an illegal search.

Justice Stephen Breyer cited a past case, Montana v. United States, in that a “tribe may also retain inherent power to exercise civil authority over the conduct of nonIndians 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.”

(Previous: Supreme Court hears another sovereignty case)

The key phrase he noted that particularly applied to the matter before the court was, 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,” Breyer wrote.

In short, the court was not convinced by Cooley’s arguments.

Breyer authored the nine-page opinion along with a concurring, one paragraph opinion by Justice Samuel Alito.

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Joining the opinion of the other nine justices, Alito broke it down to a quick three points:

  • One, a tribal police officer has the authority to stop a non-Native motorist if there is reasonable suspicion the motorist has violated federal or state law.
  • Two, a search can be conducted only to the extent necessary for the tribal police officer to protect themselves and others.
  • Three, if there is probable cause, a tribal police officer can detain a non-Native for a reasonable amount of time in which it takes a non-tribal police officer to arrive at the scene.

In a statement to Indian Country Today, Amy Weisgram, an attorney at the international law firm Dorsey & Whitney in its Native American law practice group, said the decision moves the United States a step closer to recognizing a tribe’s inherent authority and sovereignty.

She added it puts non-Natives who commit state or federal crimes in Indian Country on notice.

“The U.S. v. Cooley decision will assist ongoing efforts to decrease violence against American Indian and Native Alaskan women under the Tribal Law and Order Act, as well as efforts to curb the drug-related criminal activity disproportionately impacting Indian Country," Weisgram said.

In a similar vein, Dan Lewerenz, an attorney at the Native American Rights Fund, said the Supreme Court found a more practical way to look at the issue and in a way that affirmed tribal authority. Lewerenz is a citizen of the Iowa Tribe of Kansas and Nebraska.

“I think the most important thing is that the Supreme Court affirmed that tribes have the right to look out for the safety of their communities, or maybe better put tribes have the authority to look out for the safety of their communities,” Lewerenz said. “The Ninth Circuit had fashioned an unworkable rule that really put tribal safety at risk.”

Having listened to the arguments in mid-March, Lewerenz didn’t expect a unanimous decision at the time but wasn’t surprised when the opinion came out. He said the issues presented to the court were pretty straightforward and not as controversial as other federal Indian law cases that had origins in treaty interpretations.

Despite a string of victories at the nation’s high court, Lewerenz said it’s too early to label the wins as a trend and it’s far too early to predict what kind of effect Justice Amy Coney Barrett will have.

“I think that we have to take cases one at a time. We have to understand which arguments are persuasive to which justices, and that's going to be a continuing evolving project.” 

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