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An upcoming U.S. Supreme Court case involving the Crow Nation could clarify the authority of tribal police officers to investigate crimes committed by non-Indians within reservation boundaries, tribal law experts say.

This story was originally published by the Montana Free Press

United States v. Cooley centers on the detainment of a non-Indian and evidence — including guns and about 260 grams of methamphetamine — gathered by a tribal police officer from a truck stopped on the shoulder of a U.S. highway traversing the Crow reservation in south-central Montana.

The Supreme Court, which agreed late last month to hear the case, will decide whether lower courts erred in disallowing that evidence on the determination that a tribal police officer lacked authority to temporarily detain and search a non-Indian on a public right-of-way within a reservation.

While the question before the court is a narrow one, its ruling could have a major impact on how tribal police officers perform their jobs, and could hamper their ability to fight crime in Indian Country, according to Crow leaders and groups that have filed briefs supporting the federal government’s decision to seek a Supreme Court review of the case. If the Supreme Court affirms the lower court’s decision, the ability of tribal police to investigate crimes committed by non-Indians will be limited, leading to an erosion of tribal sovereignty, they’ve argued.

“Here, the issue is the scope of tribal officers’ authority to stop and detain,” said Monte Mills, director of the Margery Hunter Brown Indian Law Clinic at the University of Montana. “Then that also presents the question of tribal sovereignty and jurisdictional authority over rights of way within the reservation, at least as relates to criminal authority. It tends to open up more issues for potential change.”

The case also highlights challenges — like having to determine whether they have jurisdiction over someone they’ve stopped — that law officers must navigate in Indian Country.

“They are put in a position, like the officer here was, of trying to figure out who they’re dealing with, because their authority turns on the person who’s involved, and that is different than anywhere else,” Mills said.

Case history

The case started in 2016 when a tribal police officer on the Crow Reservation pulled up behind a truck stopped alongside U.S. Highway 212 at about 1 a.m. Inside the truck was Joshua James Cooley, a child, drugs, guns and cash, according to the government’s request that the Supreme Court hear the case. After noticing rifles in the vehicle, Cooley’s slurred speech, and a gun in his hand, the officer asked Cooley to leave the vehicle and then searched it, finding the methamphetamine and other items associated with drug trafficking. Cooley, a non-Indian, was detained by the tribal officer and later arrested by a county officer.

Cooley was charged in U.S. District Court with possession of methamphetamine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. His attorney successfully sought to have the gathered evidence suppressed on the grounds that the tribal officer lacked jurisdiction in that location over Cooley, a non-Indian.

The case eventually reached the U.S. 9th Circuit Court of Appeals, which denied the government’s appeal in 2019, ruling that tribal police officers’ ability to detain or search non-Indians depends on the existence of “obvious” or “apparent” violations of state or federal law — a stricter standard than the “reasonable suspicion” standard that non-tribal officers operate under. The court said tribal officers can stop suspects on public rights-of-way, but they must then determine whether the suspect is Indian or not. If not, the officer can detain them only if they observe an “obvious” or “apparent” violation of the law.

“The 9th Circuit’s decision already further complicated those issues, and makes it even harder for tribal or federal law enforcement officers to protect and serve, really, in their day-to-day activities,” Mills said.

If the Supreme Court upholds the 9th Circuit’s ruling, it will apply to all tribal nations nationwide. 

A Supreme Court affirmation of the ruling would be especially felt by tribes attempting to address the problem of missing and murdered Indigenous people, the Montana-based National Indigenous Women’s Resource Center said in a brief calling for the Supreme Court to overturn the lower court’s ruling. For example, the Fort Peck Assiniboine and Sioux Tribes, which joined that brief, have started to prosecute non-Indians for domestic violence incidents against Native Americans. That has been allowed since the reauthorization of the Violence Against Women Act in 2013, but could be complicated if the 9th Circuit’s ruling stands.

“Forcing tribal law enforcement to wait to intervene until domestic violence becomes ‘obvious’ or ‘apparent’ will cost lives,” the brief says.

Treaty right considerations

The case will be the second time in two years the Supreme Court has decided a case involving Crow treaty rights. In the 2019 case Herrera v. Wyoming, the court affirmed Crow off-reservation hunting rights guaranteed by an 1868 treaty.

The tribe and other organizations including the National Congress of American Indians have argued in a brief that the evidence from the Cooley case was lawfully obtained on the basis of the 1868 treaty’s “Bad Men” clause, which reserves the tribe’s right to investigate anyone, including non-Indians, and present to the federal government proof of “a wrong upon the person or property of the Indians” for potential arrest or prosecution. Further, the brief points out that federal treaties are the “supreme Law of the Land.”

“Tribal officers’ abilities to make on-the-spot decisions to protect Tribal members and non-Indians, to stem the flow of illegal drugs and contraband, and to uphold the 1868 Treaty obligations are of fundamental importance to the Crow Tribe,” former tribal Chairman Alvin “A.J.” Not Afraid said in a Nov. 20 press release praising the Supreme Court’s decision to hear the case. Not Afraid lost his re-election bid to Frank White Clay in November.

Cooley’s attorney’s have argued in a response that treaty rights should not be considered in the Supreme Court’s assessment because the issue hasn’t previously been raised in the case.  

Not Afraid’s statement said tribal police officers deserve the same respect afforded their counterparts in federal, state and local agencies. A ruling in favor of the government would help restore that respect — and authority — he added.

“Yet the District Court’s decision and the 9th Circuit’s decision have the unfortunate and unwarranted effect of treating tribal officers as inferior to their state and local counterparts,” Not Afraid said. “If allowed to stand, the panel’s ruling would severely hamper tribal law enforcement officers’ authority and deny them the same minimum respect afforded to all other officers.”

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