By Aara Ramesh
The U.S. Supreme Court earlier this week ruled decisively in favor of tribal law enforcement, reaffirming their authority over federal crimes on their land. In a unanimous opinion written by Justice Stephen Breyer, the land’s highest court on June 1 said that tribal police have the right to detain non-Indigenous people on reservation land if there is reason to believe the person is violating state or federal law.
The case in question — United States v. Cooley — originates in February 2016, when James Saylor, an officer with the Crow Police Department, came across a truck stopped on the side of U.S. 212, the highway that runs through part of reservation land in southern Montana. It was 1 a.m. and Saylor was quick to notice that Joshua James Cooley, the defendant, appeared to be under the influence, with “watery, bloodshot eyes.” Saylor also noticed two semi-automatic rifles in the front seat of the car, a glass pipe and a bag with methamphetamine. Cooley had his young son with him in the truck as well.
Correctly deducing that Cooley was a “non-Native,” Saylor called for back up from both tribal and county police officers. When they arrived, the officers authorized Saylor to “seize any contraband in plain view,” upon which he discovered more meth. After his arrest, Cooley faced charges of possession of methamphetamine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. The Crow Tribe has been hit particularly hard by the methamphetamine epidemic.
Cooley’s defense team argued to have the drug evidence thrown out on the basis that Saylor, as a tribal police officer, had no jurisdiction to investigate “nonapparent [sic] violations of state or federal law by a non-Indian on a public right-of-way crossing the reservation.” In 2017, a district court agreed with that assessment, which was also upheld in March 2019 by the 9th U.S. Circuit Court of Appeals.
The Supreme Court said it would take on the case earlier this year. Its landmark ruling indicates that although it’s understood that “the inherent sovereign powers” of a tribal nation do apply to non-tribe individuals, in Cooley’s case, Officer Saylor did have the authority, as he was acting in protection of the tribe’s health and welfare. In the opinion, Justice Breyer wrote that the earlier decision by the lower courts “would make it difficult for tribes to protect themselves against ongoing threats.”
According to one expert, this is the first time the court has exercised the health and welfare exception to the limits placed on tribal sovereignty. Ahead of the ruling, advocates for Indigenous Peoples’ sovereignty said that if the court ruled in Cooley’s favor, it could have seriously hindered tribal law enforcement’s ability to fight crime on reservations, eroding their sovereignty.
The nation’s highest court was careful, however, to restrict the scope of its ruling. It specified that a non-Indigenous motorist may be stopped on “a public right-of-way that traverses a Native American reservation and is primarily patrolled by tribal police,” but the officer must have probable cause that the driver is violating state or federal laws. The court also said that the officer can conduct a search of the person and the vehicle “to the extent necessary to protect themselves or others.” If the officer has sufficient doubt, he or she may detain the person until a non-Tribal officer can arrive on the scene (within a reasonable timeframe). It also does not mean that tribal officers now have had their jurisdiction extended when it comes to policing non-Natives — they are still restricted to their lands.
According to federal law, federal and tribal courts have the authority to prosecute crimes involving Natives on reservations, meaning that many tribes have worked to enhance their own law enforcement agencies and justice systems, to handle the volume of cases. According to one member of the Crow Tribe, Whiteman Runs Him, there are usually only between two and four police officers who patrol the 2.5 million acres of the reservation’s land. Crimes committed by non-Natives on reservation land are prosecuted by the state.
The ruling is particularly significant because some tribal police officers report that there are times when non-Tribal officers are either too busy to be able to assist, or do not have people on hand. This seriously affects tribes’ ability to enforce a range of laws, be that in terms of motorists speeding or driving on Indian Country land under the influence, all the way to murder, drug abuse, sexual assault and domestic violence.
Indigenous People are facing somewhat of a crisis when it comes to violence being committed against Native Americans nationwide. The rates of Natives who go missing, are killed, or suffer sexual abuse are disproportionately higher than the national average. According to one report from the Department of Justice, 65% of rape cases that were reported on reservation land in 2011 were not prosecuted. Roughly one in three Indigenous women are raped during their lifetimes, and in 86% of these cases, the rapist is non-Native.
This is not the first time that the Supreme Court has sided with Indigenous Nations. It has been increasingly ruling on cases related to tribes’ authority over crimes committed on their own lands.
On July 9, 2020, the court declared that around 50% of eastern Oklahoma, home to 500,000 tribal citizens, is technically still part of Indian Country. The narrow 5–4 decision was delivered in a child-rape case. In the majority opinion, Justice Neil M. Gorsuch wrote that the U.S. Congress had given the Muscogee (Creek) Nation a reservation and had to abide by the treaty. Before it became a state, Oklahoma was designated a reservation by Congress. After it joined the union, Congress repeatedly infringed upon the boundaries agreed in treaties signed in the 1800s. “We hold the government to its word,” Gorsuch said.
By acknowledging that the Muscogee (Creek) Nation was technically never disestablished, the court sent down a ruling that had serious implications for Oklahoma’s legal system. It threw into doubt previous cases where tribal citizens were convicted of felonies in state courts. This decision effectively expanded tribal authority in Oklahoma, recognizing the Indigenous Americans’ jurisdiction over a significant portion of the state.
The complicated mix of laws that governs crimes committed on reservations by both Indigenous and non-Indigenous people has created what some term a “jurisdictional maze.” This makes it difficult for all manner of law enforcement officers from effectively carrying out their jobs and stopping people from committing crimes with impunity. This is the latest development in a centuries-old balancing act between public safety needs and the tribes’ rights to self-government.