SCOTUS Affirms Tribes' Limited Police Authority Over Non-Natives

Jun 4, 2021
Originally published on June 2, 2021 12:50 pm

The U.S. Supreme Court on Tuesday ruled that tribal police can search and detain non-Native people traveling on public roads through reservation lands.

Across Indian Country, a jurisdiction maze has meant that when a tribal police officer pulls over a non-Native person, the officer most likely can't detain them or even search them – even if the cop has a strong suspicion that the driver was committing a crime.

And that's a restriction that doesn't exist for non-tribal police.

But in a unanimous decision, the Supreme Court ruled that tribal police can temporarily detain and investigate non-Native people on public roads if they're under suspicion of breaking state or federal laws.

Monte Mills, an Indian law professor at the University of Montana, says the ruling is a step forward in affirming tribal sovereignty.

"Tribal communities really depend on local law enforcement, including tribal officers, to be able to take reasonable measures to stop and investigate and even detain folks in their normal course of business," Mills said.

In most cases, though, tribal police still can't charge and prosecute non-Natives with a crime. Instead, they must turn detainees over to county, state or federal authorities.

"Tribes don't have the authority, except in limited circumstances that Congress has approved, to prosecute non-Indians and apply tribal law," Mills said.

The decision reverses an appellate ruling in favor of Joshua James Cooley, who's non-Native.

Cooley was charged with drug and gun crimes after a tribal police officer, in 2016, searched his truck parked along a highway that crosses the Crow Reservation in southern Montana. Cooley argued – and the District Court and the 9th U.S. Circuit Court of Appeals agreed – that evidence obtained during his encounter with Crow police could not be admitted.

But Justice Stephen Breyer, writing for the court, said "no treaty or statute has explicitly divested Indian tribes of the policing authority at issue."

"To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats," Breyer wrote.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.

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