Restoration Magazine

On Tuesday, June 1, 2021, the United States Supreme Court unanimously found in United States v. Cooley that a Crow Tribal police officer had the authority to search and detain a non-Indian, Joshua James Cooley, suspected of committing a crime on a highway crossing through the Crow Reservation. Cooley had challenged the authority of Tribal law enforcement to stop and detain non-Indians suspected of committing crimes within the borders of a reservation. In the majority (and unanimous) opinion authored by Justice Stephen Breyer, the Court overturned the Ninth Circuit Court of Appeals’ decision which concluded that Tribal law enforcement may only stop and detain a non-Indian suspect if it is “apparent” or “obvious” that a crime is being committed. The NIWRC filed an amicus brief in support of the United States as part of its VAWA Sovereignty Initiative, arguing that if the Ninth Circuit’s decision was allowed to stand, it would significantly impair the ability of Tribal law enforcement to address domestic violence crimes perpetrated by non-Indians in Tribal communities, and ultimately if left unturned, the Ninth Circuit’s decision would only exacerbate the crisis of Murdered and Missing Indigenous Women and Girls (“MMIWG”).

The District Court and Ninth Circuit Decisions

At the district court level, Cooley sought to suppress evidence of contraband seized by a Crow Nation police officer who came across Cooley while patrolling the Crow Reservation. While on a routine patrol late at night, a Crow Nation police officer stopped at Cooley’s truck, which was parked on the side of a state highway that runs through the reservation, and questioned Cooley regarding his travel plans. The officer noticed two firearms in the front passenger seat of Cooley’s truck and a child sitting in the back. The officer also noticed that Cooley’s eyes were bloodshot. When Cooley began feeling around the inside of his pockets, the officer ordered Cooley out of the car for a search. The search resulted in the seizure of a handgun, glass pipe, and a bag containing methamphetamine. Cooley was taken to the Crow Police Department for further questioning and subsequently indicted by a federal grand jury on drug and gun offenses.

Cooley’s argument before the District Court was that the evidence of contraband seized by the Crow police officer during the search was inadmissible because the Tribal officer did not possess the requisite authority to seize him. The District Court agreed with Cooley’s argument and found it is unreasonable for a Tribal police officer to seize a non-Indian suspect on “a public right of way that crosses the reservation unless there is an apparent state or federal law violation.” Even though the officer observed that Cooley’s eyes were bloodshot and watery, and two firearms were in plain view in his truck, the District Court concluded that none of these factors individually, or cumulatively, were enough to constitute an “obvious” state or federal law violation, and therefore the Tribal officer had no authority to seize the contraband. The District Court then granted Cooley’s motion to suppress the drug evidence and the United States appealed the decision to the Ninth Circuit Court of Appeals.

On appeal, the Ninth Circuit agreed with the District Court and adopted the same confined view of Tribal sovereignty, holding that it is beyond the authority of a Tribal officer on a public right of way crossing a reservation to detain a non-Indian “without first attempting to ascertain his status” as an Indian or non-Indian. The Ninth Circuit issued a “probable-cause-plus” standard for Tribal police authority over non-Indians on public rights of way which cross reservation boundaries. The “probable-cause-plus” standard issued by the Ninth Circuit meant that Tribal police, such as the Crow officer who searched James Cooley, would have to inquire from a suspect whether they were Indian before proceeding with a search. The Ninth Circuit’s two-step process would begin with an initial determination as to whether or not the stopped individual was an Indian, and if the individual was non-Indian, the Tribal police would have to release the suspect unless it was “obvious” or “apparent” that federal or state law was violated.

The United States filed a petition to have the Ninth Circuit panel’s “probable-cause-plus” opinion reheard en banc (before the full circuit court as opposed to a three-judge panel). The Court of Appeals denied this petition as well. Several Ninth Circuit judges issued a dissenting opinion to this decision, stating that the panel’s “extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts and threatens to seriously undermine the ability of Indian Tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit.”

The Crow Nation led dozens of Tribal amici curiae in support of the United States’ petition for certiorari in the United States Supreme Court. On July 24, 2020, the NIWRC filed a key amicus brief in support of a grant of certiorari, asserting that:

• NIWRC’s work to eliminate domestic violence against Native women and children is directly implicated by the Ninth Circuit Court of Appeal’s decision eliminating the authority of tribal law enforcement to conduct a reasonable suspicion Terry stop on a non-Indian traveling within reservation borders. According to the new standard now articulated by the Ninth Circuit, until or unless tribal law enforcement witness an obvious or apparent violation of state or federal law, tribal law enforcement remains without the requisite authority to briefly stop and conduct a limited investigation of a non-Indian when there is reasonable suspicion they have committed a crime.

The Supreme Court granted the United States’ petition for a writ of certiorari to review the Ninth Circuit’s decision on November 20, 2020.

The NIWRC’s Amicus Brief

On January 15, 2021, the NIWRC, joined by 11 Tribal Nations and 44 non-profit organizations committed to justice and safety for Native women, filed an amicus brief in the United States Supreme Court in support of petitioner United States in Cooley. Notably, the family of Kaysera Stops Pretty Places, an 18-year-old Crow citizen murdered in Big Horn County, Montana in August of 2019, also signed onto the NIWRC’s brief. The brief was the NIWRC’s eighth amicus brief filed pursuant to the VAWA Sovereignty Initiative, aimed at educating federal courts, including the United States Supreme Court, on the connection between sovereignty and safety for Native women and protecting the Violence Against Women Act’s restoration of Tribal sovereign authority to prosecute non-Indian offenders.

The NIWRC began its brief by noting the Supreme Court’s own recognition in United States v. Bryant (2016) that “‘compared to all other groups in the United States,’ Native American women ‘experience the highest rates of domestic violence.’” Though recent advocacy efforts have resulted in the restoration of three categories of inherent Tribal criminal jurisdiction over non-Indians in the Violence Against Women Act (VAWA) 2013, the NIWRC argued that the Ninth Circuit’s decision in Cooley threatened to preclude Tribal law enforcement from fully implementing restored criminal jurisdiction over non-Indians due to the unworkable “probable-cause-plus” standard. If left untouched, the brief argued, the Ninth Circuit standard would be nearly impossible to implement consistently and would serve only to incentivize criminals to lie about their identity.

The brief argued that not only was the “probable-cause-plus” standard impractical, but the legal reasoning behind the Ninth Circuit’s decision was flawed. The Ninth Circuit justified its new standard on the flawed premise that Tribal Nations exercise no criminal jurisdiction over non-Indians after the Supreme Court’s 1978 ruling in Oliphant v. Suquamish Indian Tribe. However, VAWA 2013 directly contradicts this assertion because in VAWA 2013, Congress unmistakably acted to close jurisdictional loopholes by restoring the ability of Tribal Nations to exercise criminal jurisdiction over non-Indians for crimes of domestic violence, dating violence, and criminal violations of protective orders. Even though Congress recognized in VAWA 2013 that the Tribal police of a VAWA-implementing Tribe have full authority to arrest non-Indians who commit domestic violence crimes on a reservation, the Ninth Circuit standard in Cooley would leave an open-ended question as to whether Tribal police would have to ascertain the suspect’s Indian status before effectuating a Terry stop, even if they had reasonable suspicion that the suspect committed a crime of domestic violence.

Because many reservations are home to a predominantly non-Indian population, including many of the 26 VAWA-implementing Tribal Nations, the Ninth Circuit’s unworkable standard for Tribal law enforcement in effectuating stops of non-Indians suspected of committing a crime on reservations threatened to jeopardize Native women’s safety further.

The NIWRC argued the “apparent” and “obvious” requirement of “probable-cause-plus” was ungrounded in any state or federal legal doctrine and not taught to law enforcement at training academies. The brief asked the court to consider “…if a law enforcement officer is patrolling Fort Peck’s Reservation—where the Tribe has implemented VAWA’s SDVCJ—and he sees a Native woman with severe bruising on her face and extremities, does that make the situation sufficiently ‘apparent’ or ‘obvious’ to detain her non-Indian husband for questioning? Or must the officer wait until the Native woman suffers a more serious injury, such as a stab wound or broken leg, or a homicide before the commission of the crime becomes sufficiently ‘obvious’”? In issuing a standard which would force Tribal law enforcement to wait until domestic violence became “apparent” or “obvious” to execute a search, the Ninth Circuit’s decision threatened the lives of Native women.

The NIWRC’s brief in support of reversal highlighted the fact that significant portions of many reservations across the United States consist of non-Indian fee lands, and the Ninth Circuit was incorrect to characterize the checkerboard nature of reservations as unique or particular to the western United States and the Crow Reservation. Because many reservations are home to a predominantly non-Indian population, including many of the 26 VAWA-implementing Tribal Nations, the Ninth Circuit’s unworkable standard for Tribal law enforcement in effectuating stops of non-Indians suspected of committing a crime on reservations threatened to jeopardize Native women’s safety further. The brief argued that this is plainly seen in the perils many Tribal Nations face because of the Missing and Murdered Indigenous Women and Girls (MMIWG) crisis on Tribal lands. Tribal Nations cannot rely upon federal authorities to solve MMIWG cases (because they routinely decline to investigate homicides of Native women on and near Tribal lands) and the “probable-cause-plus” standard would significantly undermine the inter-jurisdictional cooperation among Tribal, state, and federal law enforcement which Congress recently mandated in Savanna’s Act. As the NIWRC pointed out, the very highway where Crow police stopped James Cooley runs through Big Horn County, where cases of 32 and counting missing or murdered Native women or girls have occurred, making Big Horn County one of the counties with the highest rates of homicide of Native women and girls in Montana, and among the highest nationwide.

Finally, the NIWRC’s brief argued that the Ninth Circuit’s decision intruded upon the exclusive authority of Congress to manage Indian affairs. The Supreme Court has held consistently in many prior cases that there is a unique trust relationship between the United States and Tribal Nations and as a result, Congress has the sole authority to limit a Tribe’s ability to police and exercise jurisdiction within reservation boundaries. The NIWRC pointed out that with this authority, Congress is currently taking action to affirm—not restrict—Tribal authority. VAWA 2013 is a powerful representation of Congress’s continued position that the high rates of violence against Native women must be curtailed with increased Tribal criminal jurisdiction over non-Indians. Congress purposefully extended VAWA jurisdiction not only to lands held in trust, but all lands within the bounds of a reservation. Through Savanna’s Act and the Not Invisible Act, both signed into law in 2019, Congress reaffirmed its commitment to empowering Tribes to better protect their communities on Tribal lands and throughout “Indian country” jurisdiction. The NIWRC argued that ultimately the Ninth Circuit’s decision would impede the policy goals Congress has issued in combating violence against Native women, and Native women and girls would suffer as a result.

The Supreme Court’s Opinion and Impact

On June 1, 2021, the Supreme Court issued a decision overturning the Ninth Circuit’s decision, and ultimately, upholding the inherent authority of Tribal Nations to stop and detain individuals on a reservation when reasonable suspicion arises that they have committed a crime—regardless of whether they are Indian. Specifically, the Supreme Court ruled that the Ninth Circuit’s standard was impractical, and that Tribal police officers may search and temporarily detain non-Indians suspected of breaking federal or state laws within reservations. The Supreme Court expressed doubts about the “workability” of the Ninth Circuit’s ruling, noting that requiring Tribal police to ask suspects a threshold question regarding whether they were Indian “would produce an incentive to lie.” Further, the Court found the “apparent” violation standard would introduce a wholly new standard into search and seizure law with no guidance as to how the standard would be met. The Court then cited the NIWRC’s brief, which contained the statistic that more than 70% of residents on several reservations are non-Indian, to support that “because most of those who live on Indian reservations are non-Indians” problems with interpreting when the “apparent” standard is met “could arise frequently.”

Interestingly, the Court did not merely reject the “probable-cause-plus” standard which the Ninth Circuit issued. Instead, Justice Breyer’s opinion went further, and re-affirmed the constitutional authority of Congress to restore the Tribal jurisdiction that Oliphant previously erased, once again concluding that “[i]n all cases, tribal authority remains subject to the plenary authority of Congress.” At a time when NIWRC and so many others are working hard to get a bipartisan VAWA through the Senate, it is highly significant that the Supreme Court, once again, has confirmed Congress’s constitutional authority to restore Tribal jurisdiction over non-Indian defendants.

In response to the Supreme Court’s unanimous decision in Cooley, the NIWRC’s Executive Director, Lucy Simpson (Diné), praised the decision and stated: “Domestic violence is rarely ‘obvious’ until it turns lethal, and then it’s too late. The unworkable standard the Ninth Circuit created would have significantly impaired the ability of Tribal law enforcement to address crimes of domestic violence and assaults perpetrated by non-Indians in Tribal communities.” Though the Ninth Circuit decision threatened to impede the work of the NIWRC and other advocates of increased Tribal criminal jurisdiction, the Cooley decision is a welcome reminder that the NIWRC’s VAWA Sovereignty Initiative constitutes a powerful tool for educating members of the United States’ Highest Court on the critical relationship between sovereignty and safety for Native women.