OPINION ANALYSIS

Affirmation of inherent tribal power to police blurs civil and criminal Indian law tests

On Tuesday in United States v. Cooley, the Supreme Court upheld a power that tribal governments have long assumed they possessed as a basic necessity of ensuring public safety. The court held that tribal governments — and thus their police officers — retain the power to temporarily stop, and if necessary, search non-Indians traveling on public rights-of-way (highways) through reservations for suspected violations of federal or state laws. The unanimous opinion was authored by Justice Stephen Breyer. The decision represents an important affirmation of tribal inherent sovereign power by the new court and the first time the court has ever found that a tribe’s interest in addressing a threat to its political integrity, economic security, health or welfare was strong enough for the tribe to exert government authority of any kind over a non-Indian.

The defendant in the case, Joshua James Cooley, was arrested after a tribal police officer noticed his truck idling on the side of a highway that runs through the Crow Indian Reservation in Montana. While questioning Cooley to figure out if he needed any help, the officer suspected Cooley may have drugs, and then suspected he might resort to violence, leading the officer to draw his weapon, detain Cooley, and search the vehicle for weapons. The officer found both drugs and guns in the car, leading to a federal drug and firearms prosecution.

Cooley argued that the evidence was illegally obtained because the officer was a tribal officer, and therefore lacked the power to detain and search Cooley because Cooley is a non-Indian. The defense suggested that the officer should have assessed Cooley’s Indian status and then let him go upon realizing he was a non-Indian unless the officer actively witnessed him committing a crime — a framework the prosecuting jurisdiction, the United States, argued was unworkable and unsafe for officers and tribal communities.

Indian tribes are sovereign entities unlike any other. Once fully independent nations, they are now domestic dependent sovereigns within the United States whose authority over their lands and the people who come onto their lands is now necessarily limited by that status.

Breyer’s opinion begins by embracing the court’s long history of describing and upholding tribal government powers as “retained inherent sovereign authority.” While it seems like little more than a nod to clearly binding precedent, there have been recent attempts to persuade the court to depart from this doctrine and instead require Congress to affirmatively delegate or grant tribal governments power over non-Indians. Indeed, Cooley argued as much in his brief, and a few justices raised questions about this at oral argument, leaving some wondering whether there would be a concurrence or dissent noting this difference of opinion on tribal powers. Cooley’s unanimous re-affirmation of the retained inherent sovereignty understanding of tribal powers is a resounding rebuke of this attempted redirection in this age-old doctrine.

Nor was the court convinced by Cooley’s argument that tribal government powers derive from their power to exclude persons from their land, and therefore must be lessened on areas where tribes cannot exclude, such as public rights-of-way like the highway in Cooley. While noting that prior cases had traced tribal powers from their powers to exclude, the court held that tribes “have inherent sovereignty independent of th[e] authority arising from their power to exclude,” including the policing authority at issue in Cooley. The court also noted the special circumstances of this application of tribal sovereignty to non-Indians — specifically that it involved a tribal sovereign enforcing not tribal but federal or state criminal law. As such, the fairness “concern” from prior cases that “non-Indians who do not belong to the tribe and consequently had no say in creating the laws that would be applied to them” is not present.

When asked to determine which inherent powers tribal governments still retain, the court has been more than a bit inconsistent over the last 200 years, applying different tests to different circumstances and creating or emphasizing different points of analysis. Indeed, Justice Brett Kavanaugh noted at oral argument in this case that the Tribal Law and Order Commission and a group of former U.S. attorneys who worked in Indian country describe the laws created by the court and Congress to govern authority over criminal conduct on reservations as so complex, conflicting, and illogical that they are nothing short of an “indefensible morass.”

Cooley marks an important foray into these murky waters for this newly composed court. Breyer’s short and unanimous opinion is a noticeable departure that seems written to make no more of a mess of things. Indeed, after raising the “indefensible morass” point at oral argument, Kavanaugh suggested precisely a solution that partially made it into this opinion. He said “one of the things we should be trying to do here is to do no harm,” and while “not very analytically satisfying” to Kavanaugh, a clean way to resolve the case would be to rely on the prior dicta that had been the court’s only guidance on tribal policing power up until this case. Kavanaugh suggested that the court could simply “stick with what we said in those cases” since “it does not make a morass, as it was described, any worse.” Breyer’s opinion explicitly notes and cites the court’s earlier dicta from Strate v. A-1 Contractors, Atkinson Trading Co. v. Shirley, and Duro v. Reina, as the court having “reserved a tribe’s inherent sovereign authority to engage in policing of the kind before us.” While the general impulse not to further complicate things may explain this reliance on dicta, the length, and the unanimity of this opinion, whether it will indeed do no more harm to the complexity of Indian law jurisdiction remains to be seen.

Rather than simply relying on the dicta and being done with it, the court held that the test developed previously by the court for determining tribal civil jurisdiction over non-members governs the outcome in Cooley. The court reasoned that the test “fits the present case, almost like a glove.” In Montana v. United States, the court set out the general rule that tribes do not have the power to regulate the civil conduct of non-members unless one of two exceptions is met. That second exception acknowledges that tribes must also retain power over non-member conduct if that conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” The court reasoned that the power to temporarily detain and search non-Indians on tribal highways is precisely the kind of authority over non-Indians that tribes must retain in order to protect against a threat to their health and welfare. Without the power to stop and search non-Indians on tribal highways, Breyer wrote, it would be “difficult for tribes to protect themselves against ongoing threats” such as “non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.”

This extension of Montana to more than strictly civil cases is noteworthy for three reasons. First, Montana is clearly becoming the court’s favored Indian sovereignty test though it blurs the lines between the court’s civil and criminal jurisdiction jurisprudence. This blurring is the most complex for non-member Indians who are considered “non-members” in Montana’s civil jurisdiction analysis but “Indians” for criminal jurisdiction. Presumably Montana’s expansion in Cooley to a non-Indian criminal conduct scenario — and use of non-Indian throughout a decision applying Montana — suggests the court views the two categories as interchangeable within the test’s application (or simply did not think about the distinction since it was not explicitly raised in the case). But time will tell if this picture can stay analytically clean or if this kind of blurring is precisely the kind of stuff morasses are made of.

Second, Montana was not the United States’ preferred test, and thus route to victory. Rather, it was an argument in the alternative because Montana is a difficult test to satisfy where tribes have traditionally not fared well. The general rule is a presumption against tribal jurisdiction over non-Indians that tribes must overcome by gaining consent or proving an adequate threat in federal court. As noted earlier, this is the first time the court has ever found that a tribe satisfied the second Montana exception. This is an important victory for public safety on Indian reservations, but also raises the question of just how high the bar is for Montana’s second exception if the only case that satisfies this test developed to resolve the scope of a tribe’s civil powers over non-member conduct — think taxes, private damage claims, fishing permits and zoning — is not a case about civil conduct at all, but potentially criminal conduct that is an obvious threat to public safety. Indeed, the opinion has a paragraph seeming to assuage any concerns that this is a broad expansion of Montana’s exceptions, instead reiterating they are “limited.”

And yet, finally, the court’s embrace of the Montana test’s second exception is also a novel willingness to consider the public safety implications at all in a case involving criminal conduct. That is a notable departure from earlier sovereignty cases involving crime on reservations. In Oliphant v. Suquamish Indian Tribe, the court rejected the relevance of the drastic consequences that holding tribes lacked criminal jurisdiction over non-Indians would have for public safety on reservations. The Cooley opinion not only acknowledges tribal governments need to protect themselves against non-Indian criminal threats, but considers the practical realities of tribal policing in rejecting the U.S. Court of Appeals for the 9th Circuit’s solution. The 9th Circuit’s rule required tribal officers to first ascertain Indian status, and let non-Indians go unless the officers observed an “apparent” violation of state of federal law. The Supreme Court rejected the solution’s “workability” by explaining that if officers are simply required to ask suspects about their Indian status it would “produce an incentive to lie” and the requirement that violations are “apparent” is a not only new but it was “not obvious” what that means.

Even the court’s rejection of a congressional preclusion argument discussed the practical realities facing Indian tribes trying to effectively cover their territories. The court dismissed the argument that Congress had already spoken on the issue and defined tribal policing authority through the laws it has passed allowing tribal police to become cross-deputized. The court was “not convinced” by this argument since these laws are “overinclusive” in addressing tribal police authority to arrest — presumably an exercise of criminal law held beyond the scope of inherent tribal jurisdiction after Oliphant — and “underinclusive” because they require additional agreements that are “not easy to reach.”

One practical reality of policing that seems conspicuously absent is what the standard is after Cooley for tribal police to detain and search non-Indians like Cooley. The 9th Circuit held that the “reasonableness” of a search or seizure was tied up in the limits of a sovereign’s authority. After holding that tribal officers generally lacked authority over non-Indians, the 9th Circuit reasoned that officers could still justify their detention as reasonable if it was likened to the common-law authority of private citizens to seize perpetrators after witnessing an obvious or apparent violation of law. On remand, with the initial sovereign authority of the tribal officer clarified, the 9th Circuit will have to revisit and clarify the scope of the Indian Civil Rights Act’s Fourth Amendment analogue’s “reasonableness” standard and whether it is exactly the same as the reasonable suspicion and probable cause standards enshrined in the Fourth Amendment. Justice Samuel Alito’s one-paragraph concurrence noted that he views the court’s opinion as holding “no more” than that tribal police have that same authority. However, his note limiting the case to its facts and emphasizing the limits of tribal police authority over non-Indians likely suggests a concern that tribal police may attempt to exercise authority seemingly beyond stops for reasonable suspicion of violating federal or state law — say, for example, by setting up checkpoints on their highways that stop all motorists and ask them to turn around instead of coming onto the reservation in order to limit the spread of COVID-19, precisely as the Crow tribe did earlier this year. We will have to wait and see what Montana’s second exception has in store for such a scenario — whether a global pandemic is enough of a “threat” to tribal health and welfare to justify tribal police briefly stopping all non-Indian drivers.