Legal Docket - A debate over national sovereignty

MYRNA BROWN, HOST: It’s Monday, April 19th, 2021 and we’re here for another week of The World and Everything in It. So glad to have you along with us today! Good morning. I’m Myrna Brown.

NICK EICHER, HOST: And I’m Nick Eicher.

The justices are back today for oral arguments after taking a break. We’re now in the final sitting for this term.

Today, two cases from March.

First up: A case at the intersection of the sovereignty of two nations: the United States, and Native American reservations.

Here are the facts.

Police officer James Saylor is a member of the Crow tribe of Native Americans. He was out on patrol along a stretch of highway that runs through the Crow reservation in southern Montana. Around 1 a.m. on a cold night in February 2016, he saw a pickup truck idling on the shoulder of the highway. Engine running, lights on. This area has spotty cell phone reception, and thinking the driver might be in trouble, Saylor pulled up behind the truck to inquire.

BROWN: The driver, Joshua Cooley, told Saylor he was just tired. Yet some of Cooley’s statements didn’t quite add up. Officer Saylor leaned on his experience, called for backup, and conducted a search of the truck. That turned up weapons and methamphetamine.

Eventually, a grand jury charged Cooley with intent to distribute meth and with possession of a firearm. But his case was later dismissed.

Our legal beagle Mary Reichard takes it from here.

MARY REICHARD, CORRESPONDENT: Here’s the reason the court dismissed the case.

Cooley’s lawyers argued that officer Saylor lacked authority to detain and search him.

Cooley is not Native American. And although Officer Saylor stopped him on a public roadway, he did so within reservation boundaries.

So Cooley wanted the evidence against him suppressed as ill-gotten. And so far, he’s prevailed on that theory.

Now the federal government and Native tribes ask the Supreme Court to overturn those decisions, because it sets a dangerous rule for indigenous people. It would complicate policing on reservations.

Here’s lawyer for the government Eric Feigin, Deputy U.S. Solicitor General.

FEIGIN: It will also force tribal officers to curtail otherwise reasonable policing activities when a suspect claims to be non-Indian or the officer isn’t sure about Indian status or the status of the land that he’s on. The holding lacks any meaningful support, substantially chills tribes’ ability even to enforce their own laws against their own members and endangers everyone on Indian reservations.

Feigin pointed to treaties, laws, case law, and long standing practice allowing for search and seizure of non-Indians on reservations.

A quick aside: Native Americans have a unique legal status in the United States. In many ways, their lands are countries within a country. But the legal details of those “many ways” have yet to be worked out, fully.

On the other side, lawyer Eric Henkel argued for Cooley, the truck driver. Henkel asked the justices to focus on the simplest case, staring them in the face.

HENKEL: The issue here is about inherent tribal authority over non-Indians. Through decades of consistent opinions, this court has delineated the scope of that authority to exclude police power over non-Indians. Especially on non-tribal lands such as the public right of way here, where Officer Saylor seized and searched Mr. Cooley.

Not this place, not this person. No jurisdiction, period.

The 9th Circuit’s rule is the right one, Henkel argued: tribal officers can stop someone, yes. But their first order of business is to find out whether that person is Native American and subject to tribal authority.
But if tribal officers can’t establish that fact, they can only detain and turn the person over to state or federal authorities for “apparent” or “obvious” violations of law. No search, no seizure allowed.
The hypotheticals came flyin’ in to test the limits of such a rule.

Justice Samuel Alito noted it’s not so easy to figure out whether someone is a tribal member or who owns what land. Suppose the tribal officer has reasonable suspicion that a person is driving drunk?

ALITO: Let's say the — the person has a European Union driver's license and shows plane tickets showing that the person arrived in San Francisco two days ago. So it's pretty clear that this person is not an Indian but would present a danger if allowed to continue. What can the tribal officer do there? Just let the person go?

HENKEL: I think, if the conduct rises to the level of a potential, you know …

Henkel answered it’s fact dependent, but imminent public safety breaches would permit a tribal officer to detain the suspect. Justice Alito pressed further:

ALITO: Can the officer ask the person to come out of the car and perform a field sobriety test?

HENKEL: I don't believe so. No, he can't.

ALITO: So he just has to let that person go?

HENKEL: He can call and radio in to state or federal authorities to come to the scene.

ALITO: Well, I thought you said that the person can't be detained during that interim period.

HENKEL: Well, if he's assess — if he's trying to ascertain Indian status.

ALITO: No, the person is not an Indian, 99 percent clear not an Indian.

HENKEL: He could certainly ask the individual to stay there while he contacts law enforcement. But can he officially detain? No, I do not think so.

ALITO: It's voluntary. All right. So does it depend on the severity of the offense? What if it is a situation where he has reasonable suspicion that this person is a murderer?

HENKEL: No, I don't think he has enough because reasonable suspicion is such a low threshold.

Henkel’s answer didn’t satisfy many justices as far as I could tell. It didn’t sit well with them to allow a criminal to continue on within a reservation on the slim tendril of questionable ethnic identification.

Feigin, for the United States, summed it up with what the tribes are asking for:

FELGIN: It's not the authority to do a full-blown arrest. It's not an arrest in their own authority that kicks off an adjudicatory process. It's just investigation and detention in a complementary role. If the state or the federal government says, no, we don't want this person, the tribe has to let him go.

I think that argument will win the day. It does seem reasonable to let tribal officers protect their own people and property within reservation boundaries, no matter the suspect’s ethnicity. However the court decides, a ruling here has ramifications for tribal sovereignty, law enforcement, and the rights of non-Indians. And it’s a chance to clarify a really fuzzy area of the law.

The last case today presents facts each of us could possibly encounter at some point. Mistakes do happen.

In 2011, a man was negotiating to buy a car from a dealer. Sergio Ramirez and the salesman came to an agreement over price. But everything came to a stop when the salesman ran a credit report on Ramirez.

He’d been flagged by a consumer credit reporting agency as a potential terrorist.

This Ramirez was not a terrorist, although he apparently shared a name with one. Still, Ramirez felt wronged, and sued the agency, TransUnion. He served as lead plaintiff in a class action of 8,000 people who were also mistakenly listed as potential terrorists or drug traffickers.

That lawsuit brought a $40 million award.

TransUnion appealed, arguing that most of the plaintiffs suffered no actual injury. The injury Ramirez suffered could be identified; that is, he was denied credit.

Thousands of people in the class had no such concrete injury. Listen to TransUnion’s lawyer, Paul Clement:

CLEMENT: I mean, if the risk didn't materialize, at that point, I think that's a cause to sort of break out the champagne, not to break out a lawsuit.

Not so fast, argued Ramirez’ lawyer, Samuel Issacharoff. It’s quite a jolt to get pegged as a terrorist. That’s not nothing. And his clients weren’t even properly notified that they’d been flagged as potential criminals. It affects their reputations.

Therefore, his clients have clear standing to sue and receive damages. Now, you’ll hear Issacharoff use the acronym “OFAC.” It stands for Office of Foreign Assets Control. That’s the government’s list that TransUnion used to flag people. TransUnion used that list along with other sources.

ISSACHAROFF: TransUnion created an explosively high risk of harm by placing OFAC designations not in the secretive desk drawer but in the readily acceptable credit files of innocent Americans. Being labeled a potential OFAC match is not a misreported ZIP code. It is the scarlet letter of our time.

Congress passed a law called the Fair and Accurate Credit Transactions Act of 2003 to protect people’s credit records. Congressional intent is therefore quite clear.

Lawyer Clement, for TransUnion, pounded on the “much ado about nothing” aspect.

CLEMENT: Nobody other than Ramirez complained. I do think there are a lot of people in this class who had it disseminated and maybe the person on the other end took a quick look at the birth dates, saw that they were radically different, and went ahead with the transaction. No harm/no foul.

If you’ve got a sense of déjà vu, perhaps you recall a case from 2016 involving Spokeo. That’s a people search website that aggregates data from different sources.

In that case, a man sued Spokeo for publishing false information about him. The case turned on whether he had standing to sue. He lost. That left plenty of unanswered questions, including the nature of harm required to have standing. Is risk of harm enough, or must it be harm actually suffered?

The justices let the hypotheticals fly on this one, too. What if a law allows damages for driving within a quarter mile of a drunk driver? You were exposed to risk, but didn’t know it. Enough to sue?

For TransUnion, the risk of harm does not matter if the risk does not materialize.

For Ramirez, Congress provided for the right to sue for violation of private rights, as in the case of defamatory statements.

Tough case, for sure, and several legal threads to sort out.

And that’s this week’s Legal Docket.

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