United States v. Cooley

141 S.Ct. 1638

210 L.Ed.2d 1

UNITED STATES, Petitioner

v.Joshua James COOLEY

No. 19-1414

Supreme Court of the United States.

Argued March 23, 2021

Decided June 1, 2021

Deputy Solicitor General Eric J. Feigin, Washington, D.C., for the petitioner.

Eric R. Henkel, Missoula, MT, appointed by this Court, for the respondent.

Elizabeth B. Prelogar, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for petitioner.

Jeffrey T. Green, Meredith A. Dement Claire, Northwestern Supreme Court Practicum, Chicago, IL, Eric R. Henkel, Counsel of Record, Christian, Samson & Baskett, PLLC, John Rhodes, Federal Defenders of Montana, Missoula, MT, for respondent.

Jeffrey B. Wall, Acting Solicitor General, Counsel of Record, David P. Burns, Acting Assistant Attorney General, Eric J. Feigin, Deputy Solicitor General, Frederick Liu, Assistant to the Solicitor General, David M. Lieberman, Attorney Department of Justice, Washington, D.C., for petitioner.

Justice BREYER delivered the opinion of the Court.

The question presented is whether an Indian tribe's police officer has authority to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation. The search and detention, we assume, took place based on a potential violation of state or federal law prior to the suspect's transport to the proper nontribal authorities for prosecution.

We have previously noted that a tribe retains inherent sovereign authority to address "conduct [that] threatens or has some direct effect on ... the health or welfare of the tribe." Montana v. United States , 450 U.S. 544, 566, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ; see also Strate v. A–1 Contractors , 520 U.S. 438, 456, n. 11, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). We believe this statement of law governs here. And we hold the tribal officer possesses the authority at issue.

I

Late at night in February 2016, Officer James Saylor of the Crow Police Department was driving east on United States Highway 212, a public right-of-way within the Crow Reservation, located within the State of Montana. Saylor saw a truck parked on the westbound side of the highway. Believing the occupants might need assistance, Saylor approached the truck and spoke to the driver, Joshua James Cooley. Saylor noticed that Cooley had "watery, bloodshot eyes" and "appeared to be non-native." App. to Pet. for Cert. 95a. Saylor also noticed two semiautomatic rifles lying on the front seat. Eventually fearing violence, Saylor ordered Cooley out of the truck and conducted a patdown search. He called tribal and county officers for assistance. While waiting for the officers to arrive, Saylor returned to the truck. He saw a glass pipe and plastic bag that contained methamphetamine. The other officers, including an officer with the federal Bureau of Indian Affairs, then arrived. They directed Saylor to seize all contraband in plain view, leading him to discover more methamphetamine. Saylor took Cooley to the Crow Police Department where federal and local officers further questioned Cooley.

In April 2016, a federal grand jury indicted Cooley on drug and gun offenses. See 21 U.S.C. § 841(a)(1) ; 18 U.S.C. § 924(c)(1)(A). The District Court granted Cooley's motion to suppress the drug evidence that Saylor had seized. It reasoned that Saylor, as a Crow Tribe police officer, lacked the authority to investigate nonapparent violations of state or federal law by a non-Indian on a public right-of-way crossing the reservation.

The Government appealed. See 18 U.S.C. § 3731. The Ninth Circuit affirmed the District Court's evidence-suppression determination. The Ninth Circuit panel wrote that tribes "cannot exclude non-Indians from a state or federal highway" and "lack the ancillary power to investigate non-Indians who are using such public rights-of-way." 919 F.3d 1135, 1141 (2019). It added that a tribal police officer nonetheless could stop (and hold for a reasonable time) a non-Indian suspect, 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. Id. , at 1142. Non-Indian status, the panel added, can usually be determined by "ask[ing] one question." Ibid. (internal quotation marks omitted). Because Saylor had not initially tried to determine whether Cooley was an Indian, the panel held that the lower court correctly suppressed the evidence.

The Ninth Circuit denied the Government's request for rehearing en banc. We then granted the Government's petition for certiorari in order to decide whether a tribal police officer has authority to detain temporarily and to search non-Indians traveling on public rights-of-way running through a reservation for potential violations of state or federal law.

II

Long ago we described Indian tribes as "distinct, independent political communities" exercising sovereign authority. Worcester v. Georgia , 6 Pet. 515, 559, 8 L.Ed. 483 (1832). Due to their incorporation into the United States, however, the "sovereignty that the Indian tribes retain is of a unique and limited character." United States v. Wheeler , 435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). Indian tribes may, for example, determine tribal membership, regulate domestic affairs among tribal members, and exclude others from entering tribal land. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co. , 554 U.S. 316, 327–328, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). On the other hand, owing to their "dependent status," tribes lack any "freedom independently to determine their external relations" and cannot, for instance, "enter into direct commercial or governmental relations with foreign nations." Wheeler , 435 U.S. at 326, 98 S.Ct. 1079. Tribes also lack inherent sovereign power to exercise criminal jurisdiction over non-Indians. See Oliphant v. Suquamish Tribe , 435 U.S. 191, 212, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). In all cases, tribal authority remains subject to the plenary authority of Congress. See, e.g., Michigan v. Bay Mills Indian Community , 572 U.S. 782, 788, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014).

Here, no treaty or statute has explicitly divested Indian tribes of the policing authority at issue. We turn to precedent to determine whether a tribe has retained inherent sovereign authority to exercise that power. In answering this question, our decision in Montana v. United States , 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), is highly relevant. In that case we asked whether a tribe could regulate hunting and fishing by non-Indians on land that non-Indians owned in fee simple on a reservation. We held that it could not. We supported our conclusion by referring to our holding in Oliphant that a tribe could not "exercise criminal jurisdiction over non-Indians." Montana , 450 U.S. at 565, 101 S.Ct. 1245. We then wrote that the "principles on which [ Oliphant ] relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Ibid.

At the same time, we made clear that Montana ’s "general proposition" was not an absolute rule. Ibid. We set forth two important exceptions. First , we said that 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." Ibid. Second , we said that a "tribe may also 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. " Id. , at 566, 101 S.Ct. 1245 (emphasis added).

The second exception we have just quoted fits the present case, almost like a glove. The phrase speaks of the protection of the "health or welfare of the tribe." 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. Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation. As the Washington Supreme Court has noted, "[a]llowing a known drunk driver to get back in his or her car, careen off down the road, and possibly kill or injure Indians or non-Indians would certainly be detrimental to the health or welfare of the Tribe." State v. Schmuck , 121 Wash.2d 373, 391, 850 P.2d 1332, 1341, cert. denied, 510 U.S. 931, 114 S.Ct. 343, 126 L.Ed.2d 308 (1993).

We have subsequently repeated Montana ’s proposition and exceptions in several cases involving a tribe's jurisdiction over the activities of non-Indians within the reservation. See, e.g., Plains Commerce Bank , 554 U.S. at 328–330, 128 S.Ct. 2709 ; Nevada v. Hicks , 533 U.S. 353, 358–360, and n. 3, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ; South Dakota v. Bourland , 508 U.S. 679, 694–696, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993) ; Duro v. Reina , 495 U.S. 676, 687–688, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990) ; Brendale v. Confederated Tribes and Bands of Yakima Nation , 492 U.S. 408, 426–430, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989) (plurality opinion). In doing so we have reserved a tribe's inherent sovereign authority to engage in policing of the kind before us. Most notably, in Strate v. A–1 Contractors , 520 U.S. 438, 456–459, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), we relied upon Montana's general jurisdiction-limiting principle to hold that tribal courts did not retain inherent authority to adjudicate personal-injury actions against nonmembers of the tribe based upon automobile accidents that took...