On March 23, 2021, the U.S. Supreme Court will hear oral arguments in a case that could have an enormous impact on the ability of tribes and their law enforcement officers to maintain safety on Indian reservations across the United States. The Supreme Court will hear an appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in United States v. Cooley.
Departing from decades of precedent, the Ninth Circuit’s decision effectively bars tribal police from detaining most non-Indians suspected of criminal activity. The Ninth Circuit held that when a tribal officer suspects someone is committing a crime on a reservation road or non-trust land, the tribal officer’s first question should be, “Are you an Indian?”
If the suspect states they are not an Indian, then the tribal police officer must let the suspect continue on their way. According to the Ninth Circuit, the only time a tribal officer may detain a non-Indian is if it is “obvious” or “apparent” that the suspect has committed a crime.
Before the Ninth Circuit issued its ruling, many state and federal courts had already considered the same legal issues. Those courts held that tribes, acting through their police officers, have the inherent sovereign authority to detain a suspect, using the same police procedures that all United States police officers use. They also held that tribal officers have the authority to hold a non-Indian suspect until that suspect can be turned over to state or federal officers for prosecution.
The facts in the Cooley case demonstrate why tribal law-enforcement officers need this authority, the same as other law enforcement officers. In that case, a tribal officer saw a vehicle stopped on the shoulder of a road in a remote area of the Crow Indian Reservation. The officer stopped to see if the driver was OK. Using standard police procedures, the officer developed suspicions that Cooley might have been intoxicated and was a meth dealer waiting for one of his buyers to arrive.
Cooley showed the officer a driver’s license, which indicated he was not an Indian. Again, using standard police procedures, the officer then discovered methamphetamines, a large amount of cash, guns, and a child in Cooley’s vehicle.
According to the Ninth Circuit, the tribal officer should have let Cooley drive away with the drugs, cash, guns, and child — because the officer had determined that Cooley was a non-Indian before finding the drugs, cash, guns, and child.
If allowed to stand, the Ninth Circuit’s decision would have a devastating impact on law enforcement, and on the ability of tribes to maintain safety and security in their communities and on Indian reservations. Other courts would have noted that the tribal police officer’s law enforcement work was exemplary, and that the result was a conviction of a meth dealer and protection of all Crow Indian Reservation residents.
Patterson Earnhart Real Bird & Wilson LLP is assisting with briefs to urge the Supreme Court to uphold the sovereign police power of Indian tribes, allowing them to detain suspects using the same police procedures that all United States police officers use. For more information about us, visit www.nativelawgroup.com. To learn more about this specific issue and how we can assist, contact attorney Jeff Rasmussen in our Colorado office at (303) 926-5292.