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Montana News

US Supreme Court Case Makes Space For Sovereignty In Police Work But Is It Enough?

The U.S. Supreme Court v. Cooley decision earlier this month upheld the practice of detaining non-Native suspects on tribal roadways. The practice of detaining non-Natives until the authorities arrive from neighboring districts is common practice on many reservations throughout the US.

Monte Mills is a professor of law at University of Montana. He says this ruling enforces tribal sovereignty on public highways.

“When it comes to questions of public safety and the ability and authority of tribes to investigate and so what's necessary when they come up on non-Indians, at least on public highways on the reservation in this case,” Mills says.

Joshua Cooley, who’s white, made the argument that because he was stopped on the Crow reservation on a public highway, that tribal police did not have the right to search him. Though the tribal officer found firearms and methamphetamine, Cooley argued that the evidence should be thrown out.

The U.S. Ninth Circuit Court of Appeals ruled earlier this year that the officers did not have jurisdiction to conduct the search.

But with the Supreme Court’s decision, reservations can continue to police their own borders, pulling over non-Native suspects. Something Mills says the tribes were already doing.

“And across all reservations everywhere in Indian Country, there are likely tribal officers stopping non-Indians who are speeding or driving under the influence,” Mills says.

Tribal officers can now be more confident in their actions searching non-Natives on reservation land. But he says questions remain about what effect the ruling will have in the immediate future.

Laurie Kindness with Western Native Voice hopes this court case shines a light on how many people are missing on Crow reservation, where Cooley was arrested.

“There's been so much heartache after what we’ve been through like with colonialism,” Kindness says.

In Montana Native people make up 7% of the population but 26% of the missing, according to state data. Because Interstate 90 cuts through Crow land, the popular highway is subject to tribal law, but --

“Nobody's even gone through the process to investigate because there is so much separation between jurisdictions,” Kindness says.

Kindness says she wants to see more attention paid to the missing people from Crow reservation and thinks there's potential in this decision to combat the MMIP crisis.

Law Professor Monte Mills said in an email, yes the potential is there but it’s complicated.

Tribal courts don’t have jurisdiction to try non-Natives in many cases. And with reservations so large and with so few police officers, some tribes enter into agreements with neighboring police departments and state highway patrol.

Patricia Iron Cloud Runs Through sits on the tribal executive board for the Fort Peck tribes. She says that the court ruling is an important decision, especially for tribes who lack ways to police their reservations.

“We noticed in 2001 that we couldn't pick up the non-Natives if they had committed some type of crime against our people. And we had to wait for a non-Native entity to come like highway patrol or country officer and they could be on the other side of the reservation which is 100 miles,” Iron Cloud Runs Through says.

Iron Cloud Runs Through is talking about how non-Natives can often get away with violent crimes on reservation land. Federal legislation like the Violence Against Women Act -- for which reauthorization is currently stalled in Congress -- offers some tribal jurisdiction over non-Natives in cases of domestic abuse.

Iron Cloud Runs Through says cross deputizing officers was a good move to help combat crime on the Fort Peck Reservation.

“And to be able to get ahold of the drug deals that are going down, or the human trafficking or the sex trafficking, that’s going down and on any reservation, you know to have help there and have an agreement there and understand they can help us,” Iron Cloud Runs says.

But she also says that a common critique of cross deputization and giving non-tribal entities power on the reservation is that it can infringe on a tribe's sovereign rights.

Cheyenne advocate Annita Lucchesi is the Executive Director of Sovereign Bodies Institute. Lucchesi helps curate the Missing Murdered Indigenous Women Database. She says that the Supreme Court’s ruling on Cooley is a far cry from what is needed.

“To me it's less about jurisdictional complexity and more about systematic negligence and bias. And so when I think about creative solutions to this issue, my answer is tribal sovereignty,” Lucchesi says.

She says that legislation like the Violence Against Women Act is a good example of tribes having the power to try non-Native offenders in the way of domestic partner violence. But that act has limits and it isn't enough.

“The system doesn't work for us and the system isn't ours. And until we accept that and start being constructive about building something else, we’re never going to get anywhere,” Lucchesi says.

Sovereign Bodies Institute created a flow chart available on their website to help figure out jurisdictional questions on reservation land.

Copyright 2021 Yellowstone Public Radio