Supreme Court case tests reach of tribal law enforcement

MISSOULA, Montana (AP) — The U.S. Supreme Court has agreed to hear a case stemming from a meth bust that raised questions about whether non-Natives carrying out crimes on state and federal highways running through reservation lands are out of reach from tribal law enforcement’s authority.
The court will hear a case that came out of the 2016 arrest of Joshua Cooley by a Crow tribal law enforcement official on a U.S. highway, technically off the Crow Tribe’s lands yet within its reservation borders. Cooley, who is not Native, argued tribal law enforcement didn’t have authority to search his pickup when they found meth, firearms and wads of cash.
That argument held up through the 9th U.S. Circuit Court of Appeals, which said tribal law enforcement does hold some authority to help enforce state and federal law against non-Natives on non-reservation lands, but only if they have “apparent” or “obvious” evidence of a crime.
That high bar to clear for an arrest is not required of any other officer in the country, and shouldn’t undercut tribal law enforcement’s ability to pursue criminals, said Jennifer Weddle, attorney for the National Congress of American Indians.
“This is a case about tribal law enforcement’s ability to protect the public by engaging in routine investigations, on equal footing with all other law enforcement officers in the United States,” Weddle told the Montana State News Bureau in a phone interview last week.
Tribal nations, domestic violence advocates and federal prosecutors argue the recent finding by the Ninth Circuit could kneecap tribal law enforcement’s ability to protect its communities. But they hold hope with the U.S. Supreme Court, where federal Indian law experts say the tide in recent years has turned away from decisions that scale back tribal sovereignty and toward rulings that hold the government accountable to the treaties it signed generations ago.
The Crow Tribe, meanwhile, has raised its Second Treaty of Fort Laramie with the United States in hopes that the U.S. Supreme Court will hold the federal government to its promise. The treaty, signed in May 1868, ensures the tribe’s ability to remove “bad men” from the reservation. On Nov. 20, the Supreme Court accepted the U.S. Department of Justice’s petition to hear the case. Cooley, of Wyoming, is defended in the case by Eric Henkel of Christian, Samson and Baskett, PLLC, in Missoula, and John Rhodes of the Federal Defenders of Montana.
Suppressed search
At 1 a.m. on Feb. 26, 2016, James Saylor, then a Crow Tribal highway safety agent working through a federal contract, pulled up behind a pickup truck parked on the side of U.S. Highway 212. The truck’s lights were on and its engine was running, so Saylor approached for a welfare check, according to court records.
The driver, later identified as Cooley, rolled the tinted window down, but only enough for Saylor to see the top of his face. The driver’s eyes were “watery (and) bloodshot,” and Saylor noted the man appeared to be non-Native. Then he saw a child climb from the backseat into the driver’s lap, according to court documents.
Cooley told Saylor he had pulled over because he was tired, but added he was in the area to buy a vehicle from a man with the last name of either “Spang” or “Shoulder Blade.” Saylor knew men with both names, but his senses tightened: Shoulder Blade was a probation officer, while Spang was a suspected drug trafficker. When Cooley lowered the window further at Saylor’s request, the officer saw two semiautomatic rifles in the passenger seat. Cooley provided a license, but Saylor’s attempt to call in the license number failed due to a lack of cellphone connectivity, according to court records. Cooley then “vaguely mentioned that somebody might be coming to meet him at the side of the road.”
According to court records, Saylor then put Cooley and the child in his patrol car. A search through Cooley’s pickup produced methamphetamine, the rifles, a pistol and “wads of cash,” according to federal court filings. A grand jury later indicted Cooley in U.S. District Court in Montana with intent to distribute methamphetamine and possessing a firearm in furtherance of a drug-trafficking crime.
Nearly a year later, U.S. District Court Judge Susan Watters granted a motion by Cooley’s defense to suppress the evidence gathered in the arrest, writing Saylor had acted outside his authority in his investigation of Cooley when searching through the pickup. The Ninth Circuit upheld Watters’ decision and denied federal prosecutors’ request for a rehearing, but laid out a framework that would allow tribal law enforcement to have investigated such a case, as long as the crime had been “apparent,” or “obvious.”
Judge Daniel Collins, in his dissenting opinion, criticized the panel for adopting a standard “more demanding” than reasonable suspicion or probable cause, the threshold taught to every law enforcement officer who’s ever passed through a police academy.
Those who have filed support in the federal government’s bid to overturn the Ninth Circuit decision have seized on Collins’ dissent. In an amicus brief, the National Congress of American Indians, the Crow Tribe and roughly 130 other tribes argued the decision would have sweeping and devastating effects to tribal law enforcement’s ability to ensure public safety.
According to the amicus brief, the Ninth Circuit’s jurisdiction includes over 75% of the country’s 574 federally-recognized tribes and encompasses more than 71 million reservation acres, roughly 80% of the country’s total reservation lands.
“As the dissenting opinion recognized, hundreds of thousands of Native American lives in the Ninth Circuit are endangered if the panel opinion is allowed to stand,” Weddle said.
Cooley’s defense counsel declined to comment for this story. In court records, Cooley’s attorneys argue prosecutors have conflated tribal law enforcement’s abilities to detain and transport non-Native criminals with the ability to police them. This case began, they note, as a welfare check. No crime was apparent or obvious to the officer, so the search of Cooley’s car was unwarranted, they wrote.
‘A trend that continues’
In July, U.S. Supreme Court Justice Neil Gorsuch wrote a landmark opinion for Native American sovereignty, beginning with a powerful line: “On the far end of the Trail of Tears was a promise.”
In McGirt v. Oklahoma, Gorsuch broke with conservative justices to join the court’s liberal members in finding that the Muscogee (Creek) Nation had remained a reservation after Oklahoma became a state, despite the fact that those lands had been parceled off and sold to private owners. Gorsuch said, despite history and practices and common understanding, only an act of Congress can disestablish a reservation.
Similar decisions in cases stemming from Michigan, Nebraska and Wyoming over the past six years have put the onus of “keeping promises” made to tribes on Congress, flying in the face of generations of U.S. Supreme Court decisions that retracted tribal sovereignty through the theory that “common law” trumps treaty agreements made long ago. Earlier this month, the Harvard Law Review noted “Justice Gorsuch’s McGirt opinion is a continuation of this emerging trend away from divestiture by common law.”
”(The Cooley case) may be a next step in the court’s, for lack of a better word, rediscovery of the foundational concepts of federal Indian law, like respect for tribal sovereignty,” said Monte Mills, associate professor and director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana.
It’s important to note the differences between civil matters like the McGirt case and criminal, as in Cooley’s case. But Mills said a growing number of judicial decisions holding close the promises made in treaties have inspired hope that the judiciary is turning away from past findings in civil and criminal cases that limited tribe’s authority over non-Natives within reservation boundaries, and toward decisions that allow tribes the sovereignty to protect their communities from outside forces.
“It’s more complicated when talking about the details and boundaries of tribal sovereignty because the Supreme Court, in the modern era, hasn’t been interested in honoring and respecting tribal sovereignty,” Mills said. “Hopefully, the recent cases are a trend that continues.”
The Cooley case comes at a critical time for law enforcement in Indian Country. The Sovereign Bodies Institute, which compiles data on missing and murdered Indigenous people, in February had identified 60 cases of missing or murdered women and girls in Big Horn, Rosebud and Yellowstone counties, a region that includes the Crow and Northern Cheyenne nations, the Billings Gazette reported. Meanwhile, the Crow Tribe in July formed its own police department amid a long process of federal contracting to break from the Bureau of Indian Affairs, which the tribe has said failed in its duties to protect the reservation.
In a statement issued the day the U.S. Supreme Court agreed to hear Cooley’s case, then-Crow Tribal Chairman Alvin “A.J.” Not Afraid, Jr., called the court’s willingness to hear the case “a victory for tribal sovereignty in and of itself.” He summoned the “bad men” clause of the 1868 treaty as the government’s promise to allow the tribe to remove criminals from the reservation, in this case for Saylor to turn Cooley over to Big Horn County authorities and federal prosecutors.
“Tribal officers’ abilities to make on-the-spot decisions to protect tribal members and non-Indians, to stem the flow of illegal drugs and contraband, and to uphold the 1868 treaty obligations are of fundamental importance to the Crow Tribe,” Not Afraid, Jr., said in a signed statement.
Briefs are expected to be filed in with the U.S. Supreme Court in January.
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