Continuing its remote hearings, via telephone, the Supreme Court tomorrow looks into the power of Indian tribes to make arrests of non-Indian suspects on roads or streets within the reservation. As usual, the audio portion of the hearing (but not the video) will be broadcast on c-span.org/supreme court
Hearing starts at 10 a.m., and will last about an hour:
United States v. Cooley
Background: One of the main characteristics of a self-governing nation is its power to keep order, to enforce its laws, within its borders. That is as true for an Indian tribal nation as for America’s national government. But tribal sovereignty has limits that go with the Native American communities’ status as “dependent” nations, not entirely self-governing. The Supreme Court will be exploring some of those limits in Tuesday’s hearing.
In America, since the Founding in 1789, Indian tribes have always been nations within the nation, and thus have always had some attributes of sovereignty, the ability to govern themselves. In the earlier years, they were regarded as independent nations, and the United States government negotiated treaties with them, supposedly as equal sovereigns. But after movements to coerce the “assimilation” of tribal peoples into dominant American culture, the tribes became significantly dependent upon the national government to look after their interests. That relationship has often been quite one-sided, with the national government clearly the dominant – and very often not a sympathetic — partner.
Still, to this day, the officially recognized tribes have their own government structures, their own laws, and their own capacity to enforce their laws against crime. That law enforcement power is clearly the greatest when they are dealing with members of the tribe. But the tribes’ reservations are not tight enclosures, so non-Indians from time to time appear on the reservations, especially on state roads that cross reservation lands. That is the setting for Tuesday’s case.
Late at night, in February 2016, a police officer of the Crow Tribe of Montana – James Saylor — was patrolling on a public highway that runs through the tribe’s reservation. He came upon a pickup truck at the side of the road, and stopped to check it out. It turned out to be occupied by Joshua James Cooley and a small child. Soon, the officer noticed two rifles in the front seat, and began sensing that Cooley may have used drugs or liquor because his speech was slurred and his eyes were bloodshot and watery.
Ordering Cooley out of the truck, the officer saw him place small, empty plastic bags on the hood of the pickup. The officer would later say that the bags were familiar to him as the kind that often would contain the drug methamphetamine. He also said later that he found a glass pipe and a bag of methamphetamine between the seats.
Taken to the Crow Agency Police Department, Cooley was questioned by an official of the federal Bureau of Indian Affairs and by an officer from the county. Ultimately, Cooley was charged with one count of possessing methamphetamine and one count of having a gun to further drug trafficking – both crimes under federal law. Cooley’s lawyer later sought to block the evidence gathered at the side of the road where the arrest occurred, arguing that the tribal officer had no authority to arrest him or conduct a search, because Cooley was not an Indian and the officer acted to enforce federal or state law, not tribal law.
Federal courts ruled for Cooley, ultimately concluding that Officer Saylor did not have a sufficient basis for believing that Cooley had committed a crime under federal or state law. Blocking the evidence gathered at the scene, those courts said that a tribal officer’s authority over a non-Indian was invalid unless there was an “apparent” or “obvious” violation of non-Indian law. Tribal officers may stop those driving on public roads within the reservation, but only long enough to determine if those persons were Indians. A tribal officer can only make an arrest for a federal crime, these courts ruled, if that crime was committed in the officer’s presence. Thus, the evidence of crime was barred.
The federal government, acting in its capacity as the legal representative of the Crow Tribe and Officer Saylor, appealed the case to the Supreme Court. Its main argument is that the lower court rulings severely narrowed the authority of tribes to enforce federal law on reservation lands, and did so by adopting a complex, multi-step test to determine whether an officer had a sufficient basis for believing that such a federal crime had occurred.
The question before the Court: Will the Court clarify the scope of Indian tribes’ power to enforce federal or state laws, and to make arrests, when a suspect is a non-Indian but is arrested while on reservation lands?
Significance: The Supreme Court has spent decades trying to sort out the authority of Indian tribes to enforce their laws on reservation lands. It has made clear that the tribes have full power to enforce their own laws against members of their tribes. But the tribes generally have not been granted very wide authority to enforce federal or state laws, even within the boundaries of their reservations, against non-Indians.
The federal and state governments, however, have depended upon tribes to assist in the enforcement of federal laws, arguing that the federal government does not itself have the resources to exercise the police power on reservations.
The Court no doubt will be probing deeply into the nature of tribal sovereignty. As the federal government’s appeal noted, “The ability to protect people and property within its borders is a fundamental aspect – perhaps the most fundamental aspect – of a sovereign’s power. Although Congress has circumscribed the inherent sovereign power of Indian tribes in certain ways, it has not left them wholly dependent on state or federal largesse to police illegal activity by non-Indians on public roads within a reservation.” Tribal officers must have authority to arrest and briefly detain non-Indians suspected of crime, before turning them over to federal or state authorities to actually prosecute, the government argued.
On Wednesday, the Court will finish this week’s hearings by returning to the question of constitutional limits on the power of police to enter a home to investigate possible crimes.
