United States v. Cooley: Inherent Rights Are Not Exceptions

On March 23, 2021, the United States Supreme Court heard oral argument for United States v. Cooley—a case that originated in Crow country within the boundaries of Montana. The case challenged a tribal officer’s authority to investigate a non-Indian* pulled off on the side of a state highway that passes through reservation boundaries. The Ninth Circuit determined the tribal officer had the obligation to first identify the person’s Indian status before detaining him and searching his vehicle. You may read a more robust factual background of Cooley in a previous Criminal Injustice System post here.

On June 1, 2021, SCOTUS found tribal officers do have the authority to temporarily detain and search non-Indian persons within reservation boundaries. While the Court’s opinion acknowledges the danger an alternative holding presents to tribes, and it expressly considers the safety of tribal members, its analysis once again disregards the inherent sovereignty of tribes. Rather than accepting tribal investigatory authority as an inherent retained right, the Court regulates this authority to an exception and not the general rule. 

Tribes have the inherent authority to self-govern. This authority survived the initial treaty-making process with the United States but has since been attacked time and again by the federal government throughout various lines of Federal Indian law precedent. 

For a case such as Cooley, where potential repercussions deal heavily with criminal jurisdiction, it is important to start with Oliphant v. Suquamish. In Oliphant, SCOTUS severely limited tribes’ criminal jurisdiction despite a treaty understanding that this right was retained within their inherent sovereignty. Post Oliphant, the determination of tribal criminal jurisdiction depends on (1) the location of the crime, (2) the Indian status of both the perpetrator and the victim, and (3) the type of crime under investigation. Despite the limits placed on tribal sovereignty in Oliphant and the cases that follow, the Court never explicitly deprived tribal police of their basic investigatory powers on highways that pass through Indian country. The Court has repeatedly stated it “does not question the ability of tribal police to patrol the highway.” Strate v. A-1 Contractors; Atkinson Trading Co. v. Shirley

The regulatory and adjudicative authority of tribes has also been limited in the context of civil jurisdiction. The Supreme Court diminished tribes’ inherent power to exercise civil jurisdiction over torts committed by non-tribal members and reduced tribes’ power to regulate the conduct of nonmembers in Indian country. In a landmark case, Montana v. United States, the Court recognized two exceptions to the general rule that tribes lack inherent power to exercise regulatory and adjudicative authority over non-members: (1) a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements; and (2) a tribe may retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Thus, if a nonmember tortiously injures another nonmember on non-Indian fee land within a reservation, the tribe would lack subject matter jurisdiction over the resulting lawsuit absent one of the two Montana exceptions (i.e., a consensual relationship with the tribe or an activity that threatens the political integrity, economic security, or health or welfare of the tribe). See Strate v. A-1 Contractors

In Cooley, SCOTUS conflates long-standing civil and criminal jurisdiction analyses to piecemeal a response to the question of the somewhat gray area of tribal police authority. Because the Court had previously separated tribal police authority from criminal jurisdiction, a strict criminal jurisdiction analysis of these facts would be incorrect. Therefore, it made sense to analyze this issue under a different approach. The issue for tribal sovereignty arose when the Court’s different approach fit policing authority into an exception-based test instead of a retention of inherent sovereignty, as seen in its previous interpretation of investigatory powers. Strate v. A-1 Contractors; Atkinson Trading Co. v. Shirley. The Court missed the opportunity to clearly and explicitly reaffirm tribal police authority as an inherent right. Instead, this power was regulated to an “exception” under Montana

Notably, the Court implemented the second prong of the Montana test for the first time. Until Cooley, no set of facts met the standard required by this particular exception. Though tribal police authority does clearly deal with the health, welfare, and safety of tribes, this new precedent incorrectly requires compliance with an exception. Cooley offers a previously unknown understanding of the standard required to meet this exception, but using Cooley as an opportunity to define this exception infringes on tribal sovereignty. The analysis never should have made it to an exception because the issue involved an inherent right. 

Cooley, though a good end result, created a problematic precedent that identifies the exercise of tribal police authority as an exception. Accepting investigatory police authority as a retained inherent right is a more direct path to the same outcome and acknowledges tribal nations as sovereigns. The consequences of this mangled analysis could severely diminish tribes’ continued efforts to self-govern.

L. Moose
*This post uses the legal terms “non-Indian” and “Indian” and references federal Indian status. The author both acknowledges and condemns the origins of this term and the forced assimilation of Indigenous peoples by Western colonization.

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