‘Law and Order’ on American Indian Land Faces Supreme Court Test

The Justice Department on Tuesday will try to convince the Supreme Court to “preserve law and order within reservation boundaries,” as the court hears argument over American Indian police power to detain and search non-Indians.

Backed by tribes, scholars, and politicians, federal officials are fighting what they deem a dangerous ruling by the U.S. Court of Appeals for the Ninth Circuit that sided with the criminal defendant on the search and seizure issue.

Officials want the high court to let tribes “exercise limited authority to investigate and temporarily detain non-Indians on a reservation in aid of state and federal law enforcement,” they told the justices in a court filing ahead of the argument.

The Ninth Circuit ruling upholding suppression of gun and drug evidence following a roadside stop “upended well-settled jurisprudence and well-settled practice on Indian reservations,” said Jennifer Weddle, co-chair of Greenberg Traurig’s American Indian Law Practice. She filed an amicus brief on behalf of the National Congress of American Indians and other tribal organizations.

Hoping to keep that evidence suppressed, Joshua James Cooley is backed by criminal defender groups. He says the issue is simply a jurisdictional one that doesn’t implicate policy questions or the disastrous consequences the government claims.

Tribal Authority, Safety

One night around 1 a.m. in February 2016, Cooley 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, which covers about 80 percent of U.S. reservation lands, affirmed.

Tribal officers can stop suspects to determine whether they’re Indian, the Ninth Circuit said. But if officers fail to establish that, then they can detain the person to turn them over to state or federal authorities only if it’s “apparent” or “obvious” that state or federal law is being or has been violated, the appeals court said.

The Justice Department’s brief said the ruling “erroneously diminishes the authority of Indian tribes, impedes the enforcement of state and federal law, and threatens the safety of officers, tribal members, and others on Indian reservations.”

“Many crimes on reservations are committed by non-Indians, or Indians presumably unwilling to immediately admit their Indian status to a tribal officer,” the department said.

Deputy U.S. solicitor general Eric Feigin will represent the government in the telephone argument slated to last an hour.

Cooley casts the case as a routine application of precedent.

“The issue here presents the threshold question of tribal jurisdiction,” he said in his brief to the justices ahead of the argument, which will be delivered by Eric Henkel of Christian, Samson & Baskett in Missoula, Mont.

“This Court has, through decades of consistent opinions, delineated the scope of that jurisdiction to exclude police power over non-tribal members on non-tribal lands, such as the public right-of-way where Officer Saylor seized and searched Mr. Cooley,” his brief said.

Cooley doesn’t challenge tribal sovereignty, he said. Rather, “he simply asks the Court to respect tribal sovereignty as this Court has previously defined it.”

The case is United States v. Cooley, U.S., No. 19-1414.