SCOTUS ruling Reverses 9thCCOAs previous (flawed) ruling of Tribal Police to search non-Native American vehicles on Tribal Land but Fed own ROW-easements
When I say this is a really BFD - it is and I’ll explain why...because this was a complicated matter and SCOTUS got this right...
It started as a traffic stop - the Tribal Police Officer noted the appearance of Cooley - “bloodshot and watery eyes…” when the Tribal Police Officer approached the vehicle —he noted two semi-automatic weapons laying on the front passenger 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…”
In April of 2016, a federal grand jury indicted Cooley on drug and gun offenses. See 21 U. S. C. §841(a)(1); 18 U. S. C. §924(c)(1)(A). —Defendant Cooley filed a motion to suppress the evidence concerning the guns and drugs. Cooley’s motion to suppress evidence was largely centered around an argument that the Tribal Officer did not have the authority or jurisdiction to conduct a search of a non-tribal-person. The District Court agreed and granted Cooley’s motion. There after the Government filed an appeal in the 9thCCOAs. But that too was unsuccessful as the 9thCCOAs AFFIRMED the District Court’s ruling and denied the Government’s request for an en banc hearing.…. So hi-ho hi-ho off to SCOTUS they go -
“…whether an Indian tribe’s police officer has authority to detain temporarily and tosearch a non-Indian on a public right-of-way that runs through an Indian reservation. The search and detention, we assume, took place based on a potential violation of state or federal law prior to the suspect’s transport to the proper nontribal authorities for prosecution….”
“A tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law.”
SCOTUS June 1 2021 USA v Cooley
…recognizes that inherent authority. In addition, recognizing a tribal officer’s authority to investigate potential violations of state or federal laws that apply to non-Indians whether outside a reservation or on a public right-of-way within the reservation protects public safety without implicating the concerns about applying tribal laws to non-Indians noted in the Court’s prior cases.
Finally, the Court doubts the work ability of the Ninth Circuit’s standards, which would require tribal officers first to determine whether a suspect is non-Indian and, if so, to temporarily detain a non-Indian only for “apparent” legal violations. 919 F. 3d 1135, 1142. The first requirement produces an incentive to lie. The second requirement introduces a new standard into search and seizure law and creates a problem of interpretation that will a rise frequently given the prevalence of non-Indians in Indian reservations.
Second, we said 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.” Id., at 566 (emphasis added).
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.
February of 2020 the 9thCCOAs held:
…because the case was unusual and the 9thCCOAs opted to essentially split the baby imsofar as to create a new standard for tribal police - which was/is vexing. Because the rationale used by the 9thCCOAs contravenes current standards, long accepted and affirmed by SCOTUS. Conversely if the 9thCCOAs had opined that tribal land has sovereignty to the specific Tribal Nation -then I could see why the proposed new standard might be less onerous and cumbersome.
“…tribal police officers may detain and search non-Indians only if there is an “obvious” or “apparent” violation of the law – which largely contradicts the as reasonable-suspicion standard, applicable to non-tribal officers requirement must be satisfied in order to conduct a search.
The implications of today’s SCOTUS ruling might have broad implications for “…what tribal policing means for Indian tribal governments” hence why I said this is an important ruling and consequential— just how much? For now TBD
At any rate I have to get back to my bonbons…it’s not like they are going to eat themselves
Montana v. United States, 450 U. S. 544, 566 (1981) “ …our holding in Oliphant that a tribe could not “exercise criminal jurisdiction over nonIndians.” Montana, 450 U. S., at 565. We then wrote that the “principles on which [Oliphant] relied support the general proposition that the inherent sovereign powers of anIndian tribe do not extend to the activities of nonmembers of the tribe.” Ibid.
Strate v. A–1 Contractors, 520 U. S. 438, 456, n. 11 (1997) - See Law Library of Congress link to SCOTUS’ ruling “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.”- “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
Finally! This is the right call, a Sovereign Nation must have the ability to address potential threats w/o impediment based on status, especially when public access (ie highways) is imposed . #MMIWG
I’m Oceti Sakowin (Oglala Lakota), and I can tell you the one thing I appreciate about Gorsuch is his rulings when it comes to tribes. He seems to be one of the few conservatives that care about sovereignty. I believe a former clerk of his was AI/AN, too. Thanks for sharing this!
Finally! This is the right call, a Sovereign Nation must have the ability to address potential threats w/o impediment based on status, especially when public access (ie highways) is imposed . #MMIWG
I’m Oceti Sakowin (Oglala Lakota), and I can tell you the one thing I appreciate about Gorsuch is his rulings when it comes to tribes. He seems to be one of the few conservatives that care about sovereignty. I believe a former clerk of his was AI/AN, too. Thanks for sharing this!