U.S. Supreme Court Supports Inherent Tribal Police Power in Cooley Case

Jun 23, 2021 | News

On Tuesday, June 1, 2021, the U.S. Supreme Court issued a unanimous decision in United States v. Cooley holding that tribal police have the “authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way (highways) running through a reservation for potential violations of state or federal law.” The court upheld this tribal police power as part of a tribal government’s inherent sovereign authority to ensure public safety.

The Supreme Court’s decision upheld this tribal authority under second exemption of the “Montana test” first created by the Supreme Court in Montana v. United States. The second exemption allows tribes to regulate the activities of non-Indians when those activities threaten the political integrity, economic security, and health or welfare of a tribe. The decision is the first time in over four decades that the Supreme Court has affirmed tribal sovereign authority under the second Montana exemption.

The Supreme Court rejected a decision by the U.S. Court of Appeals for the Ninth Circuit that barred tribal police from detaining most suspected non-Indian criminals. The Ninth Circuit held that when a tribal officer suspects someone is committing a crime on a roadway or on non-trust land on a reservation, the tribal officer’s first question to the suspect should be, “Are you an Indian?” If the suspect states they are not an Indian, the tribal police officer must let the suspect continue on their way. According to the Ninth Circuit, the only time the tribal officer would not let the non-Indian leave is if it were “obvious” or “apparent” that the suspect had committed a crime.  

In the Cooley case, a tribal officer on the Crow Indian Reservation saw a vehicle stopped on the shoulder of a roadway in a remote area of the reservation, and the officer stopped to check on the driver. Using universal police procedures, the officer became suspicious that Cooley was drunk driving, and after witnessing two semiautomatic rifles on the front seat and fearing violence, the officer ordered Cooley out of the truck, performed a pat down, and requested backup. The officer then discovered large amounts methamphetamines, cash, guns, and a child in Cooley’s vehicle. 

The Ninth Circuit ruled the tribal officer should have determined whether Cooley was non-Indian before discovering the guns, drugs, cash and child, and therefore the guns, drugs, or cash could not be used as evidence necessary to convict Cooley of dealing methamphetamines on the reservation. The Supreme Court disagreed, holding that the tribal officer had the authority to conduct the search and detain Cooley, and that Cooley’s subsequent conviction for selling methamphetamines on the reservation was lawful. As part of its decision, the Supreme Court also reaffirmed that tribal police have the inherent authority to transport non-Indian suspects to state or federal police. 

Patterson Earnhart Real Bird & Wilson LLP actively monitors the courts, cases that may impact our client’s interests, and filed an amicus brief in the Cooley case. To learn more about this issue and how we can assist, contact attorney Jeff Rasmussen in our Colorado office at (303) 926-5292.