From the Bench: Tribal Police & Traffic Stops

It has been a few months since I have last posted. Life and a criminal caseload can be like that some times.

I wanted to get back to writing on this site with an update about a brand new United States Supreme Court decision that will have an outsized impact on the State of Wyoming, which is home to the third largest reservation in the United States: United States v. Joshua James Cooley, No. 19-1414, 593 U.S. ____ (2021), which was published on June 1, 2021.

Cooley concerns how much power tribal police officers have over non-tribe members who may be found or who are traveling on public rights-of-way that run through reservation land.

Tribes in America lack the inherent sovereign power to prosecute non-tribe members for crimes committed on reservations without Congress expressly granting tribes this authority. See Oliphant v. Suquamish Tribe, 435 U.S. 191, 212 (1978). On this point, the United States Supreme Court reasoned that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U.S. 544, 565 (1981). Accordingly, for example, tribes cannot regulate hunting and fishing by non-tribe members on land located on a reservation, but owned by a non-tribe member. Id.

At the same time, the Court recognized two exceptions to the general rule regarding the limits of tribal authority over non-tribe members. First, 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.” Montana, 450 U.S. at 565. Second, 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.” Id., at 566.

The issue presented in Cooley goes to the meaning and effects of the second exception described above. And the facts are ordinary enough.

Late at night in February 2016, Officer James Saylor of the Crow Police Department was driving east on United States Highway 212, a public right-of-way within the Crow Reservation, located within the State of Montana. Saylor saw a truck parked on the westbound side of the highway.

Believing the occupants might need assistance, Saylor approached the truck and spoke to the driver, Joshua James Cooley. Saylor noticed that Cooley had “watery, bloodshot eyes” and “appeared to be non-native.” Saylor also noticed two semiautomatic rifles lying on the front seat. Eventually fearing violence, Saylor ordered Cooley out of the truck and conducted a patdown search. He called tribal and county officers for assistance. While waiting for the officers to arrive, Saylor returned to the truck. He saw a glass pipe and plastic bag that contained methamphetamine. The other officers, including an officer with the federal Bureau of Indian Affairs, then arrived. They directed Saylor to seize all contraband in plain view, leading him to discover more methamphetamine. Saylor took Cooley to the Crow Police Department where federal
and local officers further questioned Cooley.

Cooley, (slip op. at 1-2)

Mr. Cooley was later indicted by a federal grand jury for drug and gun offenses. However, the trial court granted his motion to suppress the drug evidence seized by Officer Saylor reasoning that Saylor lacked authority to investigate “nonapparent violations of state or federal law by a non-Indian on a public right-of-way crossing the reservation.” Cooley, 593 U.S. at ____ (slip op. 2).

The United States government appealed the decision. The Ninth Circuit affirmed the trial court’s decision.

The United States Supreme Court took this case to address the sweep of tribal police officers’ authority over non-tribe members in light of the second exception articulated in Montana. Here, Justice Breyer, writing for a unanimous court, held that:

The second exception we have just quoted fits the present case, almost like a glove. 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.

Cooley, 593 U.S. at ___ (slip op. at 4)

Justice Breyer went on to articulate a few examples of “threats” posed by non-tribe members that would or could give rise to intervention by tribal police officers, including “non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.” Cooley, 593 U.S. at ___ (slip op. at 5).

In short, where some other non-tribal authority has jurisdiction to try and punish an offender, tribal officers already have the powers to detain and transport the offender to the proper authorities. See Duro v. Reina, 495 U.S. 676, 697 (1990). Cooley simply recognized tribal police officers’ authority to search these offenders before detaining and transporting them.