Non-Indian on Tribal Lands May Be Detained by Indian Police

United States v. Cooley, 141 S.Ct. 1638 (2021)

This recent decision by the Supreme Court may not directly impact many officers, but for those working in Indian Country (the legal term for lands within the limits of an Indian reservation or for dependent Indian communities within the United States or all Indian allotments still under the Indian titles), the decision is significant. Indian tribes are “distinct, independent political communities,” exercising sovereign authority (Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832)).

A Crow Nation police officer approached a truck parked on Highway 212, a public highway within the Crow Reservation. The officer saw that Joshua Cooley, the driver, appeared to be non-native and had watery, bloodshot eyes. The officer also noted two semi-automatic rifles, a glass pipe and a plastic bag containing methamphetamine in the truck. Other officers, including an officer with the Bureau of Indian Affairs, arrived.

The officer seized all contraband in plain view, leading to the discovery of more methamphetamine. The officers took Cooley to the Crow Police Department, where he was indicted for drug and gun crimes. Cooley asked the trial court to suppress the evidence, claiming a tribal police officer did not have authority to detain him: The “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe” (Montana v. United States, 450 U.S. 544 (1981)). The trial court ordered suppression of the evidence and the court of appeals upheld the trial court decision.

The Court also cited its earlier decisions that Indian police may detain offenders, remove them from a reservation and take them to the authorities with jurisdiction over them.

The Court of Appeals for the 9th Circuit held that sovereign tribes “cannot exclude non-Indians from a state or federal highway” and that tribes “lack the ancillary power to investigate non-Indians who are using such public rights-of-way.” The appellate court held that a tribal police officer can temporarily detain a non-Indian, “but only if (1) the officer first tried to determine whether ‘the person is an Indian,’ and, if the person turns out to be a non-Indian, (2) it is ‘apparent’ that the person has violated state or federal law.” Though they are independent sovereign governments, Indian nations do not hold sovereign power to exercise criminal jurisdiction over non-Indians (Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978)). The 9th Circuit court held that, because the Crow police officer had failed to ascertain Cooley’s status as an Indian or non-Indian, the evidence should be suppressed.

The Supreme Court vacated the court of appeals decision. In Montana v. United States, the Supreme Court held that a “tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians…when that conduct threatens or has some direct effect on the… health or welfare of the tribe.” The Court noted such threats might appear as “non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.” The Court also cited its earlier decisions that Indian police may detain offenders, remove them from a reservation and take them to the authorities with jurisdiction over them. That authority includes the right to search the offender before transporting him or her to another jurisdiction.

In resolving Cooley’s appeal, the Court held that (1) tribal officers have authority to detain temporarily and search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law; (2) tribal officers need not first determine whether a suspect is non-Indian; and (3) tribal officers may detain a non-Indian offender to await arrival of a non-tribal officer to arrive and address the violations.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

More Posts

Share this post:

Reducing Risk on the Road:
How to Keep Officers Safe During Roadway Operations

Related Posts

Back to Top