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Tribal police drag messy Indian sovereignty cases back to the court

On Tuesday, the Supreme Court will hear oral argument in United States v. Cooley. At issue is whether the court should exclude evidence that a tribal police officer collected while detaining and searching a non-Indian driver stopped alongside a federal highway that runs through the reservation. Cooley is a long overdue case that could potentially clarify what Indian tribal governments’ lack of criminal jurisdiction over non-Indians means for tribal policing. It is also a reminder of just how different, complex and even bizarre federal Indian law can get. If this were a “normal” police stop-and-search case, we would be asking only whether the officer had reasonable suspicion of criminal activity under the familiar standard set forth in Terry v. Ohio. But because the highway involved is within the boundaries of an Indian reservation, the officer is a tribal police officer and the defendant is a non-Indian, Cooley is anything but simple.

Cases like Cooley make Indian Country seem like a truly different country with fundamentally different laws than the rest of the United States. Not only is the court considering whether tribal officers even have Terry stop-and-search authority over non-Indians, but the on-the-ground realities of assessing Indian status also play a large — and somewhat awkward — role in the case. Indeed, the district court held that the police officer broke the law by not letting his initial assumption about the defendant’s race change his conduct. The U.S. Court of Appeals for the 9th Circuit, by contrast, held that the officer’s mistake was that the first words out of his mouth weren’t “Are you an Indian, sir?” And at oral argument on Tuesday, the Supreme Court may consider everything from the impact of conquest on the Crow tribe’s inherent sovereignty, to different spheres of government powers, treaties and statutes, to just how tribal officers can or should determine Indian status on the spot.

Cooley is a messy and complex case – even by Indian law standards – that the court may struggle to resolve cleanly. For court watchers coming off last term’s decision in McGirt v. Oklahoma, this will likely be a sobering wake-up call as the court tries to navigate not the clear terms of a treaty or the developments of history but the mess it’s made with its common law.

The factual background

Just after 1 a.m. on Saturday, Feb. 26, 2016, Crow Highway Safety Officer James Saylor was driving eastbound on federal Highway 212 on the Crow Indian Reservation, when he noticed a white Dodge Ram pickup truck filled with personal belongings and bearing out-of-state plates idling on the side of the road. Helping drivers in crisis along this particularly remote stretch of 212 with spotty cell reception is a common part of Saylor’s job. So he stopped and knocked on the driver’s side of the truck  to ask if everything was OK. After shining his flashlight through the heavily tinted windows and observing an unclear response, Saylor asked the driver to roll down his window. The driver, Joshua Cooley, rolled down his window approximately six inches. Through the partially open window, Saylor observed three things: a little boy climbing onto Cooley’s lap; that Cooley had bloodshot, watery eyes; and that Cooley “appeared to be non-native.” Cooley told Saylor that he pulled over to rest because he was tired, but otherwise he was fine.

It is at this point that federal Indian law enters the picture, because Indian tribes do not have criminal jurisdiction over non-Indians. The courts below diverge, and the justices will likely discuss on Tuesday, precisely what Saylor should or could have done from this point forward. He could have left after Cooley assured him everything was fine. He could have asked if Cooley was an Indian. He could have walked back to his car and called county or federal police to investigate the truck. But he didn’t do any of those things.

What Saylor did do was continue talking with Cooley. Cooley explained that he was driving back from a nearby town where he tried to buy a vehicle. The deal fell through, but the seller loaned him the white truck to get home. Saylor told Cooley the story didn’t add up, and asked him to lower the window further, which Cooley did. Through the window, Saylor observed two semiautomatic rifles sitting in the front passenger seat. Cooley said the rifles belonged to the owner of the truck. At this point, Saylor asked for Cooley’s ID. Cooley began pulling wads of cash from his pockets before stopping with his hand near his pocket, his breathing suddenly shallow and rapid, and looking straight ahead with a “thousand-yard stare.”

Cooley’s behavior indicated, in Saylor’s experience, that he might be about to use force, so Saylor unholstered his service pistol and ordered Cooley to show his hands and carefully produce his license. Saylor walked to the passenger side of the car where he discovered not only the two rifles, but a loaded semiautomatic pistol with a round in the chamber sitting in the center console close to Cooley’s right hand. After Saylor ordered Cooley and his son out of the truck, conducted a pat down and escorted Cooley to the patrol car, Cooley produced the kind of empty plastic bags that are commonly used to distribute methamphetamine, and mentioned that someone might be coming to meet him. Saylor radioed for backup from federal and county police from the patrol car before securing the truck. In the course of removing the firearms from the front seat, he discovered in plain view a glass pipe and plastic bag of methamphetamine.

Based on the methamphetamine and guns Saylor found in the truck, Cooley was charged in federal court with both drug trafficking and firearms-related charges. Cooley moved to suppress the evidence as the fruit of an illegal search.

Although the Fourth Amendment does not apply to tribal governments, a statutory analogue, the Indian Civil Rights Act, does protect persons from “unreasonable searches and seizures” by an Indian tribe. Cooley argues that the court should read this provision of ICRA to find that whenever an officer acts outside the tribe’s jurisdictional authority, not only do they act unreasonably, but the remedy should be to exclude the evidence. The United States is arguing against the motion to suppress, and thus for Saylor’s — and necessarily the Crow Tribe of Indians’—authority to search Cooley.

An initial question that the United States conceded below, but that Cooley maintains in his briefing just in case, is whether the “exclusionary rule” should apply to ICRA. In Santa Clara Pueblo v. Martinez, the Supreme Court famously read ICRA’s provisions as creating only one explicit remedy in federal court: habeas corpus. Over a dissent from Justice Byron White urging the court to fashion an equitable remedy, the court deferred to Congress’ plenary power over Indian affairs and the text of ICRA as authorizing only that explicit remedy. The exclusionary rule is a judicially fashioned federal remedy for violations of the Fourth Amendment, but exists nowhere in the explicit text of ICRA. It is possible the court will raise this issue despite the concession below, since the applicability of the exclusionary rule one way or another would significantly change what kind of protections non-Indians receive in interactions with tribal police.

The sovereign power to police as inherent and retained or implicitly divested

The heart of this case is the scope of Indian tribes’ power to police non-Indians. Beginning with the earliest Indian law cases, the Supreme Court has struggled with the question of just what tribal governments can and cannot do as conquered but surviving nations within the United States. Since tribes were once fully independent nations, but are now “domestic dependent nations,” the court started off with a fairly bright-line rule that tribes retained those powers that weren’t explicitly given up, taken or obviously lost when they were conquered (e.g., the power to sell their land or independently wage war). Powers given up (usually by treaty) and powers taken (usually by Congress in an exercise of its plenary power over tribes) were clear enough. But this final category, the powers that a tribe must have lost implicitly, has evolved significantly in a way that may prove difficult for the court in Cooley.

In 1978, in Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribal governments do not have the power to criminally prosecute non-Indians for crimes committed on their territory. The court held that such power was “inconsistent with their status,” since the United States would obviously not allow its citizens’ liberty to be put in jeopardy — especially by such purportedly “lawless” sovereigns — without political representation in the tribe, except under conditions sanctioned by Congress. Since Congress had not affirmatively granted tribes the power to prosecute non-Indians, tribes lacked the authority to do so.

Oliphant didn’t overrule the retained-sovereignty framework, but it blurred the explicit-removal-of-powers requirement and partially turned it on its head, with tribes now asking Congress to affirmatively give them back certain powers. With Oliphant, and a series of cases that followed, the court continued to limit the powers of tribal governments — in particular over non-Indian persons or property — by finding that these powers likewise were part of this third category of powers: those implicitly lost by tribal governments. These “implicit divestiture” cases, as they are called, have parsed tribal powers from many different angles, resulting in two distinctive lines of doctrine concerning tribes’ criminal versus civil jurisdiction.

After Oliphant took the first big chunk out of tribal criminal jurisdiction, the court in Duro v. Reina clarified that not only did tribes lack the power to prosecute non-Indians, they similarly lacked the power to prosecute Indians from other tribes until Congress affirmatively reaffirmed that power. Congress did, and then in United States v. Lara, the court upheld the legislative fix, making tribal criminal jurisdiction a matter of “Indian status” instead of membership in the prosecuting tribe. Congress has generally exercised its plenary power more often in the tribal criminal jurisdiction framework. Congress has, for example, placed limits on tribal court sentencing and required federal courts to play a substantial role in prosecuting certain crimes – like Cooley’s – committed in “Indian country,” which a federal statute defines as including all land within the boundaries of a reservation, regardless of who owns or controls that land.

In the civil jurisdiction cases, the court did not hold that tribes could never adjudicate or regulate the civil conduct of non-Indians. Instead, these cases have chipped away slowly at everything but the tribes’ inherent sovereign power to ensure the integrity of their self-governance and welfare of their citizens — read extremely narrowly. Congress didn’t step in to extend tribal civil authority over other Indians as it did in the criminal context, making these cases about jurisdiction over tribal members versus non-members instead of Indians versus non-Indians. Importantly for Cooley, these cases also focus on who owns the land, reasoning that some tribal government powers are tied up in the tribe’s power to exclude, and thus those powers are diminished when the land at issue is non-member owned “fee land” (reservation land no longer held in trust by the United States but privately owned) or a public right-of-way such as the highway in Cooley.

Out of this web of cases, the 9th Circuit combined the right-to-exclude logic from the civil cases and the holdings from the criminal cases to develop the following rules. Tribal officers are allowed to initially stop vehicles on the highway only long enough to determine whether the driver is an Indian. If tribal officers observe a non-Indian engaged in an “apparent” or “obvious” violation of federal or state law, they may detain them only for the amount of time it takes to deliver them to state or federal police. This standard — more stringent than either reasonable suspicion or even the probable cause needed to arrest someone — was applied by the lower courts in Cooley, which disagreed only on the correct procedure for determining Indian status: phenotype or questioning.

In their briefs, both Cooley and the United States draw interchangeably from the court’s civil and criminal implicit divestiture jurisprudence to weave together a version of the jurisprudence that works for them. Moreover, they rely on primarily the same cases, albeit on separate parts of the opinions. For example, both parties rely heavily on a civil case, Strate v. A-1 Contractors, in which the Supreme Court held that a tribal court did not have jurisdiction over a civil suit between two non-member motorists involved in a traffic accident on a state highway that runs through the reservation. As Cooley emphasizes, the similar land status, specifically the tribe’s inability to exclude non-Indians from the highway, was important to the Strate court’s determination that the tribe lacked civil adjudicatory jurisdiction. Moreover, Strate rejected the argument that the risk to tribe members from reckless drivers on a highway was enough of a tie to the core of tribal sovereignty or welfare to support civil jurisdiction. However, as the United States points out, Strate in a footnote says explicitly that: “We do not here question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law.”

The United States also relies on language from Duro  saying that tribal criminal jurisdiction requires adjudication and prosecution, but which then goes on to mention tribal police officers’ power to “detain the offender and transport him to the proper authorities.” Since Duro clarified tribes lacked criminal adjudicatory powers, the government claims Duro supports  not only that tribal police power is not only separate, but broader than tribes’ criminal adjudicatory power. Cooley counters that it cannot possibly be correct that tribal police power exceeds adjudicatory power, and cites — you guessed it — language from Duro stating that tribes do not have “criminal enforcement … power” over non-Indians.

Both parties also point to subsequent enactments to support their version of retained sovereignty. Cooley relies on federal laws that allow for the cross-deputizing of police as proof that Congress contemplated another way for tribal police to have the power to stop and search non-Indians who break state or federal law. The United States points to ICRA as proof that Congress assumed police would search non-Indians, since it applies to “persons” and not just “Indians.” The government also cites the Crow treaty, which contained a provision requiring that “bad men” be delivered to the U.S. government by the tribe upon “proof” of their wrongs – language suggesting the authority of the tribe to investigate non-Indians for violations of federal crimes. The court is unlikely to find at least the ICRA argument persuasive: In Oliphant, the tribe made the same argument about ICRA, and the court rejected it. The other points, however, could be trickier fodder for oral argument.

It is unclear what the court will make of all this, and whether the justices will be frustrated, confused or accepting of the jumbling of the court’s civil and criminal Indian law cases. Implicit divestiture is a fundamentally common-law doctrine.  So as much as the parties make of all the logic and dicta in these prior cases, the court needn’t heed any of it. It could try and make sense and consistency out of either of the party’s implicit divestiture theories — or out of the inconsistencies in its own cases that the parties point to. Or, it could just make new common law for tribal police powers.

The practical realities

While many of the questions in Cooley sound like abstract questions that belong in a political theory class, the consequences of this case are very real, as many of the amici have painstakingly laid out. If the court holds that tribal police power over non-Indians is limited, it will have to confront the same question the 9th Circuit did: How does an officer operate under those limits without, well, asking or profiling? And how can a tribal police force implement an “Indian status” test that is reliable? In other words, what happens when everyone becomes a “non-Indian” when they get pulled over? Do Indians have to carry cards now? The court could easily punt on this issue in any number of ways, but whether it should is a different matter entirely.

And then there are the public safety consequences. A number of amicus briefs filed by tribes and tribal organizations explain that stripping tribal police of the power to police non-Indians would exacerbate an existing public safety crisis on Indian reservations, particularly concerning non-Indians who are already under-prosecuted for the crimes they commit there. As the United States points out, without this authority tribal officers might be in danger precisely in scenarios, like Cooley, where officers suspect that a person is about to use deadly force, and want to preemptively draw their weapons as a deterrent. Because an officer drawing their weapon is considered a seizure, requiring tribal officers to wait until an apparent or obvious violation until seizing someone makes this kind of preemptive weapons draw unlawful. Tribal officers would have to wait until after a gun is drawn on them first — an apparent and obvious violation — before drawing their own weapons. Nonetheless, Cooley undoubtedly has the best of this argument, because the court rejected precisely these kinds of drastic public safety concerns in Oliphant. The court in that case said that tribes should take it up with Congress to return powers the tribes just learned they had implicitly lost.

In Cooley, the tribes could learn they lost another power, or they could solidify one they’ve been exercising uneasily since Oliphant. It all depends on how the Supreme Court sees tribes’ power to police within the context of their conquest.