Elizabeth Reese Previews Oral Argument in US v Cooley for SCOTUSblog

Tribal Police Drag Messy Indian Sovereignty Cases Back to the Court

On Tuesday, the Supreme Court will hear oral argument in United States v. Cooley. At issue is whether the court should exclude evidence that a tribal police officer collected while detaining and searching a non-Indian driver stopped alongside a federal highway that runs through the reservation. Cooley is a long overdue case that could potentially clarify what Indian tribal governments’ lack of criminal jurisdiction over non-Indians means for tribal policing. It is also a reminder of just how different, complex and even bizarre federal Indian law can get. If this were a “normal” police stop-and-search case, we would be asking only whether the officer had reasonable suspicion of criminal activity under the familiar standard set forth in Terry v. Ohio. But because the highway involved is within the boundaries of an Indian reservation, the officer is a tribal police officer and the defendant is a non-Indian, Cooley is anything but simple.

Cases like Cooley make Indian Country seem like a truly different country with fundamentally different laws than the rest of the United States. Not only is the court considering whether tribal officers even have Terry stop-and-search authority over non-Indians, but the on-the-ground realities of assessing Indian status also play a large — and somewhat awkward — role in the case. Indeed, the district court held that the police officer broke the law by not letting his initial assumption about the defendant’s race change his conduct. The U.S. Court of Appeals for the 9th Circuit, by contrast, held that the officer’s mistake was that the first words out of his mouth weren’t “Are you an Indian, sir?” And at oral argument on Tuesday, the Supreme Court may consider everything from the impact of conquest on the Crow tribe’s inherent sovereignty, to different spheres of government powers, treaties and statutes, to just how tribal officers can or should determine Indian status on the spot.

Cooley is a messy and complex case – even by Indian law standards – that the court may struggle to resolve cleanly. For court watchers coming off last term’s decision in McGirt v. Oklahomathis will likely be a sobering wake-up call as the court tries to navigate not the clear terms of a treaty or the developments of history but the mess it’s made with its common law.

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