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SCOTUS to address scope of powers of tribal officers

United States v. Cooley, USSC No. 19-1414, cert. granted 11-20-20

Question presented:

Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

Lower court decision: 919 F.3d 1135 (9th Cir. 2019)


Scotusblog page (including links to filings and commentary)

Tribal law enforcement officers (and more specifically, those who have not been cross-deputized by a state or federal government) have limited jurisdiction over non-Indians on Indian lands. That jurisdiction is further lessened on public roadways that cross over Indian lands. Per the decision on review here:

If a tribe has granted an easement allowing public access to tribal land, the tribe cannot exclude non-Indians from a state or federal highway constructed on that easement. Tribes also lack the ancillary power to investigate non-Indians who are using such public rights-of-way. But where, as here, a public highway is within the boundaries of a tribal reservation, tribal authorities may arrest Indians who violate tribal law on the public right-of-way.

Finally, tribal authorities may stop those suspected of violating tribal law on public rights-of-way as long as the suspect’s Indian status is unknown. In such circumstances, tribal officials’ initial authority is limited to ascertaining whether the person is an Indian. The detention must be “a brief [and] limited” one; authorities will typically need “to ask one question” to determine whether the suspect is an Indian. If, during this limited interaction, “it is apparent that a state or federal law has been violated, the [tribal] officer may detain the non-Indian for a reasonable time in order to turn him or her over to state or federal authorities.

The Ninth Circuit concluded that the officer here detained Cooley, a non-Indian, in his vehicle for far too long without trying to ascertain whether he was an Indian, and that the facts available to the officer did not amount to an “apparent” federal or state law violation; this is a higher standard than the probable cause that would be required for arrest on non-tribal lands. The lower court further concluded that the source of this law–the Indian Civil Rights Act of 1968–carries the same suppression remedy for violations as the Fourth Amendment; accordingly it suppressed evidence ultimately found in the vehicle. We’ll see what SCOTUS makes of things.

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