1 Jun 2021
By Elizabeth Reese
June 1, 2021
In its first major opinion on the extent of sovereign powers of Native American tribes in decades, the Supreme Court tenuous Tuesday at United States v. Cooley that tribal governments – and therefore their police – have the power to search and temporarily detain non-Indians suspected of breaking federal or state laws on reserves. Justice Stephen Breyer wrote the notice for the court. Judge Samuel Alito has filed a brief agreement stating that he considers the detention to be limited.
The accused in this case, Joshua James Cooley, was arrested after a tribal police officer noticed him on the edge of a federal highway that crosses the Crow Indian Reservation in Montana. The officer found evidence that led to a federal drug and firearms prosecution. Cooley argued that the evidence was obtained illegally because the tribal officer did not have the authority to detain and search him. Defense suggested the officer should have assessed Cooley’s Indian status and then let him go realizing he was not an Indian unless the officer actively saw him commit a crime – a framework that the prosecuting jurisdiction, the United States, argued was impractical and dangerous for officers and tribal communities.
The court has made it clear over the years that tribal governments no longer have certain powers, especially those that involve the rights of non-Indians. In Cooley, the court was asked to determine where tribal policing powers fell within the various frameworks it developed to determine whether tribal sovereignty still extends to certain powers. Cooley also forced the court to face some of the more complicated realities created by its precedent, such as whether it is necessary or even possible to assess a suspect’s Indian status during a routine traffic stop .
Breyer’s opinion considers, and probably extends, the scope of the court’s decision in Montana v. United States. In Montana, the court established the general rule that tribes no longer retain inherent governmental powers over the conduct of non-Indians, but identified two exceptions to this rule. Breyer explained that the second exception “fits the present case, almost like a glove”. This second exception recognizes that tribes must also retain power over the conduct of non-Indians if such conduct “threatens or has a direct effect on the political integrity, economic security, or health or welfare of the tribe. “. The power to temporarily detain and search non-Indians on tribal roads is precisely the kind of authority over non-Indians that tribes must retain in order to protect themselves from a threat to their health and well-being. Without the power to stop and search non-Indians on tribal highways, Breyer wrote, it would be “difficult for tribes to protect themselves from ongoing threats” such as “non-Indian drunk drivers, contraband carriers. or other criminal offenders operating on roads within the boundaries of a tribal reserve.
Check back soon for an in-depth opinion analysis.