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Crow Nation Policing Case Heard Before U.S. Supreme Court

Patrick Semansky

In 2016, a Bureau of Indian Affairs officer is patrolling the highway near Crow Agency. He finds a car pulled over on the side of the road. He approaches the vehicle and finds a man displaying signs of intoxication with drug paraphernalia nearby and a gun.

When the man, Joshua James Cooley, is charged with drug-related crimes, his lawyer successfully argues that the evidence from that night should be suppressed because the tribal police officer shouldn’t have had authority over Cooley, a non-Indian.

On Tuesday, the Supreme Court heard the case to determine what authority tribal police have when detaining and searching, particularly when dealing with non-Natives.

The question at the center of U.S. v. Cooley is: When can tribal officers detain and search non-Native suspects when patrolling Indian Country?

Missoula-based Attorney Eric Henkel, the counsel of record for Joshua James Cooley, told the high court Tuesday: "The issue here is about inherent tribal authority over non-Indians. Through decades of consistent opinions, this court has delineated the scope of that authority to exclude police power over non-Indians. Especially on non-tribal lands such as the public right of way here where Officer Saylor seized and searched Mr. Cooley."

The U.S. Government’s attorney, Eric Feigin, argued that if the justices wrote a ruling siding with Cooley’s argument, Indian Country police in Montana and the nation will be extremely restricted.

"[It] substantially chills tribes’ ability, even to enforce their own laws against their own members and endangers everyone on Indian reservations."

During arguments, Justices tried to understand the practical implications of limiting tribal authority over non-Natives. Here’s Justice Samuel Alito questioning Attorney Henkel about what a tribal officer could do if they had reasonable suspicion that a non-Native, like in Cooley’s case, is under the influence.

"He could certainly ask the individual to stay there while he contacts law enforcement. But can he officially detain? No, I do not think so," Henkel responded.

"It’s voluntary. All right," Alito continued. "So, does it depend on the severity of the offense? What if it is a situation where he has reasonable suspicion that this person is a murderer?"

"If he's got reasonable suspicion that this person's a murderer?" Henkel asked.

"Yeah, mhmm," Alito said.

"No, I don't think that’s enough because reasonable suspicion is such a low threshold," Henkel said.

Attorney Mary Kathryn Nagle says until this point, it’s been common practice for tribal officers to stop and detain non-Indian suspects within the reservation and then transfer them to relevant authorities to be prosecuted and jailed.

"No one here is asking the Supreme Court to give tribes anything. We're asking them to maintain the status quo," Nagle said.

Nagle, who filed an amicus brief for the U.S. Government in the case, represents the Indigenous Women’s Resource Center and says the earlier rulings on Cooley’s case remove tribal authority, despite tribal officers receiving the same training as their federal and state counterparts.

Monte Mills, director of the Marjorie Hunter Brown Indian Law Clinic at the University of Montana, is not involved in the case. Mills 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 decade of the Supreme Court limiting tribal sovereignty while Congress is moving in the opposite direction.

"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."

The Supreme Court’s decision on U.S. v. Cooley will be written sometime in the coming weeks or months.

Kaitlyn Nicholas is Yellowstone Public Radio's Report for America Indigenous affairs reporter.

Copyright 2021 Yellowstone Public Radio

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