Tribal Officer’s Search of Non-Native Makes for Thorny Arguments

Federal prosecutors need a Supreme Court reversal after jurisdiction concerns torpedoed the fruits of a tribal officer’s traffic search.

(Image by Hebi B. from Pixabay via Courthouse News)

WASHINGTON (CN) — Heightened standards for tribal law enforcement officers to search non-Indians brought a wave of hypotheticals Tuesday from the justices of the U.S. Supreme Court.

“What if that person is driving under the influence?”

“What if that person is a murderer?”

“What if that person has a bloody knife on the seat next to them?” Justice Samuel Alito asked.

As opposed to the reasonable-suspicion standard that non-tribal officers must satisfy to conduct a search, the Ninth Circuit ruled that tribal police officers can detain and search non-Indians only if there is an “obvious” or “apparent” violation of the law.

Tribes, scholars and federal officials have deemed the ruling dangerous. 

“The Ninth Circuit created a novel, complicated and ultimately unworkable law enforcement regime,” Eric J. Feigin, a U.S. deputy solicitor general, said this morning at oral arguments. “It would curtail policing activity that everyone depends on.”

Underpinning the appeal is the search of a pickup truck in southern Montana shortly after 1 a.m. on Feb. 26, 2016. Tribal police officer James Saylor saw the truck idling on the shoulder of the highway traversing Crow Reservation. Despite perceiving that the driver, Joshua James Cooley, was non-Native, he pulled over and questioned him.

The Wyoming resident had bloodshot eyes, two rifles in the passenger seat, a small child in the car with him, and a story that didn’t add up. Saylor conducted a search then that turned up a loaded semiautomatic pistol and evidence of methamphetamine. After radioing for backup, he also found a glass bag and plastic bag of methamphetamine.

Federal prosecutors quickly charged the driver, but Cooley moved to suppress the evidence on the grounds that Saylor was acting outside the scope of his jurisdiction. The trial court granted his motion, and the Ninth Circuit affirmed, saying that the officer should have confirmed whether he was an Indian or non-Indian before proceeding. 

With the government now seeking a Supreme Court reversal, Cooley says the court must defer to the Indian Civil Rights Act, which protects a tribal person from “unreasonable searches and seizures.”

“The government insists that tribes have unlimited authority to police all persons and to enforce all tribal, state and federal laws governing Indian country,” Eric Henkel, an attorney for Cooley with the Missoula firm Christian, Samson & Baskett, said during Tuesday oral arguments. “The government claims this sweeping police authority over all U.S. citizens is consistent with overriding federal interests, even though tribes exercise that authority outside the constitution, free of political accountability and cloaked with immunity from civil liability.”

In a slew of amicus briefs, however, tribes from around the nation, federal officials and scholars warn of the chilling effect that such a ruling could have on combating crime on Indian reservations.  

“If someone’s committing a crime, they’re going to say they aren’t an Indian, even if they are an Indian,” said Mary Kathryn Nagle, an attorney for National Indigenous Women’s Resource Center. “It’s going to be less safe, and it’s going to create a situation where Native women and Native children are going to be more vulnerable. It ties the hand of tribal law enforcement.” 

As the justices peppered the defense lawyer with hypothetical scenarios about what situations would allow a tribal police officer to detain someone, Henkel responded that reasonable suspicion is not enough to detain someone — unless there is an imminent threat of violence — but the tribal officer could call state or federal law enforcement to come to the scene. 

As the government sees it, though, federal courts lack the power to diminish tribal authority. 

Feigin said tribal authority exists unless it has been divested by Congress — no such divestment has occurred here. Cooley’s attorney argued on the other hand that tribes have been divested of any authority to detain and investigate non-Indians.

Henkel said that Cooley isn’t challenging tribal sovereignty. Rather, he asks the court to “respect tribal sovereignty as this court has previously defined it.”

The court is confronting complicated jurisdictional rules. Unlike any other criminal situation around the country, who has the authority to prosecute you depends on who you are not where you are.

“The justices are grappling with the scope of tribal sovereignty,” said Monte Mills, director of the Margery Hunter Brown Indian Law Clinic at the University of Montana. “Naturally it presents complications for the Supreme Court. Because of their own jurisprudence, it’s harder to draw clear lines.” 

Mills says these encounters between tribal law enforcement and non-tribal citizens — and vice versa — happen every day. But, in many instances, the jurisdictional complications have been worked out through formal or informal agreements. 

“With a historical and traditional understanding, tribal law enforcement are empowered to investigate where they determine they don’t have jurisdiction to prosecute,” Mills said. “They can protect their communities regardless of the identities of who committed the offenses.”

A ruling from the justices, which could have broad implications for what tribal policing means for Indian tribal governments, is due by the end of June. 

“One of the things we should be trying to do here is to do no harm because there’s lots of ripple effects from a broad decision,” Justice Brett Kavanaugh said this morning. 

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