Justices Raise Public Safety Concerns in Tribal Police Argument

U.S. Supreme Court justices indicated Tuesday that an appeals court ruling could harm public safety on American Indian reservations, with several justices raising concerns ranging from drunk drivers to serial killers.

The U.S. Court of Appeals for the Ninth Circuit said a tribal officer can stop a suspect on a public road running through a reservation to determine whether they’re Indian. If they’re not, then the officer can only detain the person to turn them over to state or federal authorities if it’s “apparent” or “obvious” that state or federal law is being or has been violated, the appeals court said. The Ninth Circuit covers about 80% of U.S. reservation lands.

Challenging that ruling on behalf of the Justice Department, deputy U.S. Solicitor General Eric Feigin cast it as dangerous and unworkable.

Questioning at Tuesday’s telephone argument suggests a majority of the court might agree.

What if the driver fits the description of a serial killer who didn’t commit any crimes on the reservation? Justice Clarence Thomas asked the lawyer for Joshua James Cooley, a non-Indian who’s seeking to keep the gun and drug evidence from his truck suppressed.

Justice Samuel Alito likewise asked about a driver who the tribal officer thinks is a murderer.

That alone wouldn’t be enough to detain, said the lawyer, Eric Henkel, of Christian, Samson & Baskett in Missoula, Mont.

Alito also asked about a drunk driver who has a European Union driver’s license and recently flew into San Francisco.

Multiple justices, including Amy Coney Barrett, asked what it means for a violation to be obvious or apparent under the Ninth Circuit’s rule, suggesting the answer isn’t obvious or apparent.

Justice Stephen Breyer raised a host of practical concerns, including that it can be difficult to determine someone’s Indian status just by looking at them.

“People look different,” Breyer said.

Those questions and others suggest Henkel might not be able to keep the Ninth Circuit’s ruling intact. He said cross-deputization of tribal officers can prevent problems.

DOJ’s Feigin said tribes have inherent authority to detain suspects in these situations.

Yet the justices pressed Feigin on the source of that authority and its limits, leaving unclear exactly how a majority of the court will rule. A decision is expected by late June.

The case arose from the federal prosecution of Cooley in Montana.

One night around 1 a.m. in February 2016, he was sitting in a pickup truck he had parked on the side of U.S. Route 212, which runs through southern Montana’s Crow reservation, one of the country’s largest. With him in the truck were guns, methamphetamine, and his young child.

Crow Police Department highway officer James D. Saylor went to check on the truck. Saylor eventually ordered Cooley and the child out, after an encounter that included Saylor not believing Cooley’s explanation of why he was in the area and spotting a pistol near Cooley’s right hand that Cooley said he didn’t know was there.

Saylor called for backup from federal and county officers. Cooley seemed to be non-Indian, according to Saylor. Tribes don’t have criminal jurisdiction over non-Indians.

Montana federal prosecutors brought gun and drug charges. But the Montana district court granted Cooley’s suppression motion based on Saylor’s search and seizure of him and the truck. The San Francisco-based Ninth Circuit affirmed.

The case is United States v. Cooley, U.S., No. 19-1414, oral argument 3/23/21.