The U.S. Supreme Court is hearing a case involving Crow Nation Tuesday morning that holds implications for policing in tribal nations across Montana and the country.
The case before the Supreme Court, U.S. v. Cooley, focuses on a night in 2016 where a Bureau of Indian Affairs police officer was patrolling the state highway near Crow Agency. He saw a car pulled over to the side of the road.
“You have a very, very remote setting. And that night you really have only one officer on patrol. There's only one," says Attorney Troy Eid, former US Attorney for Colorado assisting the U.S. Government in the case and served as the chairman of the National Indian Law and Order Committee under President Obama.
“He goes up to make sure everyone's okay. He looks in. You know, the guy has all the classic signs of being intoxicated or high. When he talks to him, his speech is garbled. He's nonsensical. He said, he's out buying a car…in the middle of the night,” Eid says.
There’s also a child in the car. Then the officer notices signs of methamphetamine, and a gun in clear sight. It’s at this point, Eid says, that the officer has what’s called “reasonable suspicion” that a crime has been committed.
“He then secures the vehicle, searches the vehicle and detains the individual, the defendant, until he can get the right officer with the right jurisdiction, in this case, you know, that would be a deputy sheriff, to show up and get him," Eid says.
The defendant is Joshua James Cooley, a white man.
When Cooley was charged with drug possession and drug trafficking crimes in court, his attorney argued that the evidence the BIA officer gathered that night should be thrown out because Cooley is non-Indian. The U.S. Ninth Circuit Court of Appeals agreed, saying tribal officers needed to have “obvious” or “apparent” evidence of a crime in order to detain and search non-Indians, even within reservations.
“My read of the Ninth Circuit case as a former United States Attorney, when I first read it was, ‘Oh my gosh, the Ninth Circuit is encouraging racial and ethnic profiling, did they really mean to do that?’ And I can't believe they're doing it right now in the middle of concerns that the public has legitimately about profiling, is they're actually going to create some incentive to try to figure out if someone looks like an Indian,” Eid says.
The question before the U.S. Supreme Court in U.S. v. Cooley is: When can tribal officers detain and search non-Native suspects when patrolling Indian Country?
“Until now there was no question that we could stop and detain non-Indians traveling through the reservation if they were engaging in suspicious activity,” says Mary Kathryn Nagle, an attorney who filed an amicus brief on behalf of the National Indigenous Women’s Resource Center and is a citizen of the Cherokee Nation.
Nagle says right now if a tribal police officer finds a suspect is non-Native, they will transfer the suspect to be prosecuted and jailed by the relevant authorities. But it’s the norm for tribal police to detain and search suspects when they suspect criminal activity.
“This decision really threatens the ability of law enforcement, tribal law enforcement, to do that. And if tribal law enforcement can't do that, then that means that Native women, men, and children, Native persons and our Two-Spirit brothers and sisters, all Native people living on tribal land, are not going to have the same protections that non-Native people living off tribal lands have,” Nagle says.
Nagle says previous rulings in Cooley’s case changed the status quo to a new procedure, which threatens Native sovereignty and safety.
“They removed tribal authority and they said, ‘Actually, we're going to put tribal law enforcement in a separate category from state and federal law enforcement. Even though they all get trained at the same academies. They're going to all be trained together, but they're going to have to learn separate standards.’ But no one here is asking the Supreme Court to give tribes anything. We're asking them to maintain the status quo,” Nagle says.
Cooley’s counsel claims Indian tribes lack the sovereign authority to police non-Indians on public roadways, citing previous Supreme Court rulings, including the statement that after tribes became part of the U.S. they “lost the right of governing…persons within their limits except themselves.”
Counsel for Cooley was not immediately available for comment before deadline.
Monte Mills, director of the Marjorie Hunter Brown Indian Law Clinic at the University of Montana, who’s not involved in the case, says while Cooley’s side is arguing that tribal police should have very limited authority, the U.S. government is saying Congress has given more authority to tribes already.
“Part of what the United States is arguing in this case is, ‘Look, this isn't an issue because tribal police under the Indian Civil Rights Act basically have to guarantee the same protections that anybody would get under the Constitution,'” Mills says.
Mills says there’s been something of a theme during the last ten years of the Supreme Court limiting tribal sovereignty while Congress has been moving to give tribes more police authority to better protect tribal members, particularly women, from violent crime.
“If a decision from the Supreme Court sort of confirmed tribal authority here, then you know, it would sort of support those congressional efforts to continue to recognize broader tribal jurisdiction to protect tribal members within the reservation,” Mills says.
Mills adds there is another wrinkle in the case to consider. If the Supreme Court agrees with previous rulings on Cooley’s case, then tribal police may face more challenges during investigations.
“What the Ninth Circuit said is, ‘You have to ask if a person is Indian or not.’ And oh, by the way, there's a whole other complicated legal test for whether someone is an Indian or not beyond just a membership in a tribe. But a lot of the briefing in the Supreme Court have made the point, like, then what if the person really is an Indian, but they say, ‘No, I'm not an Indian.’ Right? They just can lie,” Mills says.
The Supreme Court’s ruling on this case will have implications for the standards tribal police across Montana and the country are held to compared to their non-tribal counterparts.
Listen to oral arguments here.
Kaitlyn Nicholas is Yellowstone Public Radio’s Report for America Indigenous affairs reporter.
