The NCSL Blog

02

By Lisa Soronen

In United States v. Cooley the U.S. Supreme Court held unanimously that an Indian tribe police officer may temporarily detain and search a non-Indian on a public right-of-way that runs through an Indian reservation, based on a suspected violation of state or federal law.

The Supreme Court in Washington. One case arose from an encounter in 2016 on a federal highway in the Crow Reservation in Montana.Credit...Erin Scott for The New York TimesA tribal officer approached a vehicle stopped on a public right-of-way within the Crow Reservation to offer assistance. The officer ordered Joshua James Cooley, who appeared to be a non-Indian, out of the car and conducted a pat down search after he noticed two semiautomatic rifles lying on the front seat. While waiting for backup to arrive, the officer saw in the vehicle a glass pipe and plastic bag that contained methamphetamine.

A federal grand jury indicted Cooley on gun and drug violations. The Ninth Circuit suppressed the drug evidence holding the tribal officer had no authority to investigate “nonapparent” violations of state or federal law by a non-Indian on a public right-of-way crossing the reservation. The tribal officer in this case didn’t ask Cooley whether he was non-Indian.

The Supreme Court reversed the Ninth Circuit and held that tribal police officers may detain and search non-Indians traveling on public rights-of-way running through a reservation. Justice Breyer wrote the majority opinion. He noted that in Montana v. United States (1981), the Court articulated the “general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” But that general rule has two exceptions including “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

According to the court, this exception “fits the present case, almost like a glove.”  “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.”

The court also questioned the “workability” of the Ninth Circuit standards.

"Those standards require tribal officers first to determine whether a suspect is non-Indian and, if so, allow temporary detention only if the violation of law is “apparent.” The first requirement, even if limited to asking a single question, would produce an incentive to lie. The second requirement—that the violation of law be “apparent”—introduces a new standard into search and seizure law. Whether, or how, that standard would be met is not obvious. At the same time, because most of those who live on Indian reservations are non-Indians, this problem of interpretation could arise frequently."

The State and Local Legal Center did not file a brief in this case.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.