On March 23 of this year, the Supreme Court heard oral arguments in United States v. Cooley. SCOTUS’s decision will determine the extent of a tribal officer’s authority to detain and search a non-Indian suspected of violating state or federal law within Indian country. If SCOTUS decides to limit tribal officer authority, it further infringes on the inherent sovereignty tribes possess to govern themselves. In a state as big as Montana (147,040 sq. mi.), the implications of prohibiting a tribal officer from detaining a suspect are especially drastic when considering the immediate safety of people on reservations in conjunction with the length of time it takes for a state or federal officer to arrive on scene.
In Cooley, a tribal officer conducted a welfare check on a man pulled over on a public right of way within the boundaries of the Crow Reservation. Because the man “seemed” non-Indian, the tribal officer called for county officer assistance. Due to the man’s suspicious behavior (found parked off road in the middle of the night with a toddler crawling around the cab of his truck), visible firearms, and a myriad of other potentially dangerous factors, the tribal officer needed to detain him until other officers arrived. In response to the suspicious behavior, especially the visible firearms, the tribal officer investigated the contents of the vehicle and found methamphetamine and drug paraphernalia. The Ninth Circuit determined, without first making an effort to determine the man’s Indian status, the tribal officer did not have the jurisdiction to keep him and search his vehicle while awaiting transfer to officers of a different jurisdiction. If this decision is upheld by SCOTUS, not only will it further infringe on tribal criminal jurisdiction, it will greatly endanger the people living on reservations.
Though the question is whether the officer had the right to detain and search the non-Indian, not if the tribe had the right to prosecute the non-Indian, to appreciate the gravity this decision carries it is important to keep in mind the gaps created by a patchwork of prosecutorial jurisdiction in Indian country.
Tribes possess the authority to self-govern. This concept of sovereignty is inherent, it was not “granted” by the United States but instead reserved by the tribes during the treaty-making process. Despite the United States promising to recognize the inherent sovereignty of tribes in exchange for millions of acres of land, in practice, tribal sovereignty has been threatened or diminished time and again by the federal government. In Oliphant v. Suquamish, SCOTUS attacked the sovereignty of tribes when it limited their criminal jurisdictional authority. After Oliphant, when determining a valid assertion of tribal criminal jurisdiction three factors must be addressed: (1) the location of the crime (2) the Indian status of both the perpetrator and victim (3) the type of crime under investigation.
Where was it? To answer this threshold question, one must understand what constitutes Indian country and the difference between criminal and civil proceedings. Statute defines Indian country, for the purposes of jurisdiction, as Indian reservations, dependent Indian communities, and Indian allotments which are still under Indian title. The difference between criminal and civil jurisdiction is the tribes’ criminal jurisdiction applies to all lands within the reservation. Civil jurisdiction does not, and a location analysis relies on further factors not applicable to Cooley.
Who did it? For tribes to assert criminal jurisdiction, the perpetrator must have official Indian status. Defining Indian status is not an easy precise test. Tribes set their own standards for enrolled members. If both perpetrator and victim are officially recognized as Indians, the tribal courts enjoy exclusive authority over misdemeanor crimes. If the criminal activity falls within the Major Crimes Act (MCA), even if all parties are of official Indian status, the federal government may assert jurisdiction. An Indian perpetrator acting against a non-Indian victim creates concurrent jurisdiction between the federal government and the tribe. However, a non-Indian perpetrator acting against an Indian victim falls exclusively under federal authority, without tribal concurrent jurisdiction.
What happened? The final consideration is the type of crime committed. Regardless of the first two parts of this test, the federal government has jurisdiction over crimes within the Major Crimes Act.
Apart from a blatant disregard for tribal sovereignty, this framework is responsible for a notable gap in prosecution. Many of the crimes that should be addressed by federal jurisdiction slip through unprosecuted. These jurisdictional loopholes have a particularly harmful effect on Indigenous women. The Violence Against Women Act attempted to address this issue by allowing tribes to prosecute non-Indian perpetrators of domestic violence, violence against a partner, or violation of a restraining order if the violence occurred against an Indian within Indian country. However, this leaves tribes without authority to prosecute Indian victims of intraracial sexual assaults outside of established relationships. Since the overwhelming majority (at least 70%) of violence against Indigineous women comes from non-Indian perpetrators and an estimated 90% of Indigenous women who experience sexual violence are harmed by an interracial perpetrator, VAWA does not completely address the problem. The safety concerns of Indigenous women in between these jurisdictional gaps is only heightened if a decision in Cooley limits the ability of a tribal officer to detain and investigate.
An officer cannot rely solely on appearance to classify someone as Indian. But it can take days to prove status. If tribal officers cannot detain and investigate an offender while this information is pending, the door opens for perpetrators to take advantage of Indian country. Additionally, if an officer is limited to investigating persons only of Indian status, the incentive to lie to law enforcement when questioned skyrockets, especially if an officer cannot search for tribal identification. Tribal authority is the quickest response to crimes within Indian country, but if they become reluctant to detain or investigate potential perpetrators for fear of retribution, the safety of tribal members and others living within reservation boundaries suffers.
The forthcoming decision in Cooley is incredibly important to the safety of Montana reservations. With respect to inherent sovereignty, tribes should have the authority to detain and investigate anyone within their reservation. But especially considering the safety of people within these reservations, tribal officers must be able to police the area within the boundaries of their reservations. This is how all other police jurisdictions operate, and there is no valid reason to hold tribes to a heightened standard. By further denying tribal authority the right to detain, investigate, and remove potential perpetrators from reservations, tribes are left with no means to adequately protect their own people. Indigenous people are already disproportionately victims to violent crimes, and a decision to further limit tribal authority only perpetuates this issue.
– L. Moose
Further Sources
United States v. Cooley SCOTUSblog
United States v. Cooley Turtle Talk
MMIW Sources for further consideration of the implications of this case
https://www.facebook.com/CSKTMMIP/
University of Montana School of Law Law Review Previews on United States v. Cooley
Criminal Injustice System 
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