United States v. Cooley

947 F.3d 1215 (Mem)

UNITED STATES of America, Plaintiff-Appellant,

v.Joshua James COOLEY, Defendant-Appellee.

No. 17-30022

United States Court of Appeals, Ninth Circuit.

Filed January 24, 2020

ORDER

The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35.

The petition for rehearing en banc is denied. Attached are a dissent from and a concurrence respecting the denial of rehearing en banc.

BERZON and HURWITZ, Circuit Judges, concurring in the denial of rehearing en banc:

Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise , 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing ("dissent") is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion.

I

This case involves an unusual factual scenario and a technical issue of Indian tribal authority. It certainly does not present a "question of exceptional importance" meriting en banc consideration. Fed. R. App. P. 35(a)(2). There is no conflict among the circuits regarding the question presented here, the opinion is not in conflict with a Supreme Court decision, and the practical implications are limited. The opinion recognizes that tribal officers can stop non-Indians on state and federal rights-of-way across Indian reservations long enough to determine whether they are Indians, and also can detain them long enough to turn them over to state or federal authorities if they were obviously—apparently—violating state or federal law when stopped. So in the case of a speed demon or a drunk driver, Indian authorities can intervene. The issues in this case arise only when a tribal officer, as here, who is not cross-deputized on non-Indian lands, takes it on himself to investigate whether a non-Indian on a federal or state highway right-of-way committed some crime that is not apparent—in other words, a crime that has nothing to do with demonstrated danger on the highway.

II

Nor does the panel opinion "conflict[ ] with a decision of the United States Supreme Court." Fed. R. App. P. 35(b)(1)(A). The dissent maintains that the panel opinion missed a whole category of Supreme Court authority for Indian law enforcement officers—Category Two in the dissent’s taxonomy. Dissent at 1226–28. According to the dissent, that category allows tribal officers to Terry stop and investigate non-Indians who are on alienated fee land or federal and state highways that cross Indian reservations. But Category Two does not exist.

As the panel opinion explains, the first basis of authority for tribal officers derives from the inherent power of Indian tribes, as sovereigns, to enforce criminal law against tribal members or nonmember Indians ("Indians") on tribal land. United States v. Lara , 541 U.S. 193, 197–200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). Tribes have no criminal jurisdiction over non-Indians, even when they are in Indian country. Oliphant v. Suquamish Indian Tribe , 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).

The second source of tribal officers’ enforcement authority is tribes’ "undisputed power to exclude persons whom they deem to be undesirable from tribal lands."

Duro v. Reina , 495 U.S. 676, 696, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). That power includes the authority of tribal officers to investigate and "eject" non-Indians who "disturb public order on the reservation." Id. at 697, 110 S.Ct. 2053 ; see United States v. Becerra-Garcia , 397 F.3d 1167, 1175 (9th Cir. 2005) ("Intrinsic in tribal sovereignty is the power to exclude trespassers from the reservation, a power that necessarily entails investigating potential trespassers.").

The Supreme Court has definitively ruled, however, that this power to exclude—and so the authority to investigate non-Indians—does not extend to land within the borders of Indian reservations that is non-Indian, including fee land owned by non-Indians and federal and state highways within reservations. Strate v. A–1 Contractors held that "for [non-Indian] governance purposes," state (and federal) rights-of-way are equivalent to "alienated, non-Indian land" and so "[t]ribes cannot assert a landowner’s right to occupy and exclude" from such rights-of-way. 520 U.S. 438, 454, 456, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

As this Court summarized in Bressi v. Ford , those two sources of authority are the only ones available to tribal officers:

Unlike the case within most of the reservation, the Nation is not a gate-keeper on a public right of way that crosses the reservation. See Strate v. A–1 Contractors, 520 U.S. 438, 455–56 [117 S.Ct. 1404, 137 L.Ed.2d 661] .... The usual tribal power of exclusion of nonmembers does not apply there. See id.

On the other hand, the state highway is still within the reservation and is part of Indian country. 18 U.S.C. § 1151(a). The tribe therefore has full law enforcement authority over its members and nonmember Indians on that highway. See United States v. Lara, 541 U.S. 193, 210 [124 S.Ct. 1628, 158 L.Ed.2d 420] .... The tribe accordingly is authorized to stop and arrest Indian violators of tribal law traveling on the highway. In the absence of some form of state authorization, however, tribal officers have no inherent power to arrest and book non-Indian violators. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 [98 S.Ct. 1011, 55 L.Ed.2d 209] .... This limitation has led to obvious practical difficulties. For example, a tribal officer who observes a vehicle violating tribal law on a state highway has no way of knowing whether the driver is an Indian or non-Indian. The solution is to permit the officer to stop the vehicle and to determine first whether or not the driver is an Indian. In order to permit tribal officers to exercise their legitimate tribal authority, therefore, it has been held not to violate a non-Indian’s rights when tribal officers stop him or her long enough to ascertain that he or she is, in fact, not an Indian. See Schmuck, 850 P.2d at 1337. If the violator turns out to be a non-Indian, the tribal officer may detain the violator and deliver him or her to state or federal authorities. Id. ; see Strate, 520 U.S. at 456 n. 11 [117 S.Ct. 1404] ....

This rule permitting tribal authority over non-Indians on a public right-of-way is thus a concession to the need for legitimate tribal law enforcement against Indians in Indian country, including the state highways. The amount of intrusion or inconvenience to the non-Indian motorist is relatively minor, and is justified by the tribal law enforcement interest. Ordinarily, there must be some suspicion that a tribal law is being violated, probably by erratic driving or speeding, to cause a stop, and the amount of time it takes to determine that the violator is not an Indian is not great. If it is apparent that a state or federal law has been violated, the officer may detain the non-Indian for a reasonable time in order to turn him or her over to state or federal authorities. Id.

575 F.3d 891, 895–96 (9th Cir. 2009) (emphases added). In sum, only "[i]f it is apparent that a state or federal law has been violated" may "the [tribal] officer ... detain the non-Indian for a reasonable time in order to turn him or her over to state or federal authorities." Id. at 896 (emphasis added).

No Supreme Court or Ninth Circuit case since Strate has divined a third source of tribal authority over criminal activities of non-Indians—the power to investigate criminal activity by non-Indians on alienated fee land or federal and state rights-of-way. The dissent nonetheless insists that implicit in the limited authority of tribal officers is the power to stop known non-Indians on reasonable suspicion, pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and then investigate whether any law enforcement violation has occurred. Dissent at 1226–28. If that authority existed, then tribal police could stop, investigate, and detain known non-Indians anywhere within the boundaries of a reservation for any reasonably suspected crime.

In support of this supposed broad authority, the dissent quotes Duro ’s statement that "[t]ribal law enforcement authorities have the power to restrain those who disturb public order on the reservation, and if necessary to eject them." Dissent at 1227 (quoting Duro , 495 U.S. at 697, 110 S.Ct. 2053 ). But Duro was explaining the tribal power to exclude, as the preceding sentence indicates. 495 U.S. at 696–97, 110 S.Ct. 2053. Duro , decided before Strate , did not delineate a separate power to detain and investigate non-Indians on alienated non-Indian land within a reservation’s boundaries or on federal and state rights-of-way (which were not at issue in Duro ).

The dissent relies on two other sources for its vehement accusations that the panel ignored its supposed Category Two. The first is a brief and tentative footnote in Strate :

We do not here question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law. Cf. State v. Schmuck , 121 Wash.2d 373, 390 [850 P.2d 1332] ... (en banc) (recognizing that a limited tribal power "to stop and detain alleged offenders in no way confers an unlimited authority to regulate the right of the public to travel on the Reservation’s roads"), cert. denied, 510 U.S. 931 [114 S.Ct. 343, 126 L.Ed.2d 308] (1993).

520 U.S. at 456 n.11, 117 S.Ct. 1404. This footnote, as Bressi explained, at most...