The Supreme Court Holds That Tribal Officers May Stop and Search Non-Indians on Tribal Lands
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
In February 2016, Officer James Saylor of the Crow Police Department was traveling on a public right-of-way that passes through the Crow Reservation in Montana. Saylor saw a truck parked on the side of the highway, and pulled up to see if its occupants needed assistance. Saylor approached the truck and spoke to the driver, Joshua James Cooley.
Saylor noticed that Cooley had bloodshot eyes an appeared to be non-native. He also saw two semi-automatic rifles lying on the front seat, and ordered Cooley out of the truck. Saylor then conducted a pat-down search. He looked into the vehicle again, and saw a glass pipe and a bag with methamphetamine.
Other officers arrived on the scene, including an officer with the Bureau of Indian Affairs. The officers directed Saylor to seize the contraband, and take Cooley to the Crow Police Department. Saylor found additional contraband in that process. At the police department, federal and local officers questioned Cooley.
In April 2016, a grand jury indicted Cooley on drug and gun offenses. Cooley filed a motion to suppress, which the district court granted. The district court reasoned that Saylor lacked authority to investigate non-apparent violations of state or federal law by a non-Indian on a public right of way crossing a reservation. The government appealed, and the Ninth Circuit affirmed.
The government petitioned for certiorari to decide whether a tribal police officer has authority to detain and search non-Indians traveling on public rights-of-way running through a reservation for potential violations of state or federal law. The Supreme Court granted the petition.
The Court has previously held that Indian tribes are “distinct, independent political communities” exercising sovereign authority. But because they are located in the United States, the “sovereignty that the Indian tribes retain is of a unique and limited character.” The Court noted that, for example, tribes lack inherent sovereign power to exercise criminal jurisdiction over non-Indians. Here, no statutory authority granted the tribes the policing authority at issue.
The Court referred to its prior decision in Montana v. United States, 450 U.S. 544 (1981), where it held that a tribe could not “exercise criminal jurisdiction over non-Indians.” However, it held that this is not an “absolute rule,” and set forth two exceptions. First, tribes may regulate the activities of non-members who enter consensual relationships with the tribe through commercial dealings or contracts. Second, tribes may exercise civil authority over the conduct of non-Indians when it threatens or effects the political integrity, economic security, or health or welfare of the tribe.
The Court examined this case under the second exception. The Court explained that to deny a tribal police officer authority to search and detain for a reasonable time any person he/she believes may commit or has committed a crime would make it difficult for tribes to protect themselves. Threats can be posed by non-Indian drunk drivers, contraband transporters, or other criminals operating on the roads. The Court mentioned that it previously recognized in Duro v. Reina, 495 U.S. 676, 687-88 (1990), that where jurisdiction to punish an offender rests outside the tribe, tribal officers may detain the offender and transport him/her to the proper authorities. Accordingly, the Court stated that the authority to search a non-Indian prior to transport is ancillary to the authority it previously recognized.
Cooley argued against expanding the second Montana exception. But the Court found that there was a “close fit” between the second exception and the circumstances at issue. Cooley also argued that Congress has specified the scope of tribal police authority through federal cross-deputation statutes. The Court disagreed on this point too, stating that it saw nothing in these provisions that showed that Congress sought to deny tribes the authority at issue.
The Court vacated the Ninth Circuit’s judgment and remanded it for further proceedings.
Read the full case: United States v. Cooley
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