JENNY ROUGH, HOST: In 1876, tensions between Indian tribes and white settlers were mounting. Chief Plenty Coups of the Crow tribe could see westward expansion well underway.
That June, the Battle of the Little Bighorn took place. Possibly the most famous of the Indian Wars. Also known as General Custer’s last stand. This past June marked the 145th anniversary of that battle.
MARY REICHARD, HOST: So we packed our bags and traveled up to Montana, to the Crow Reservation.
JR: Yes, and together we attended a Little Bighorn battle reenactment.
PUTT THOMPSON: People are impressed by the river and the setting. That it was actually part of the historical site of the battle. So when you see 75 horses crash into that river, you get the feel of what it might have been like 145 years ago.
MR: Putt Thompson came to Crow country in the 1970s and fell in love with the windswept land and way of life. He owns the Custer Battlefield Trading Post and Café.
JR: Today, the Real Bird family owns the land where the battle took place and hosts the reenactment. Henry Real Bird emcees.
HENRY REAL BIRD: Welcome to Little Bighorn…
MR: The cavalry wears bluecoats with brass buttons. The Indians in breechcloths, riding their horses bareback. One Indian stands out. He wears a stunning white-feathered headdress.
HENRY REAL BIRD: Playing the role of Crazy Horse, Gary Plenty Buffalo!
JR: Crazy Horse was a Sioux tribe leader. This might seem confusing at first, but at the time, the Crow were enemies of the Sioux and Cheyenne. And allies of the United States government.
THOMPSON: The Crow were here working with the military to essentially secure this as Crow Reservation.
MR: In the days leading up to the battle, Crow scouts, riding with Custer, spotted Crazy Horse’s encampment near the banks of the Little Bighorn River. Custer and his soldiers attacked.
JR: The Sioux and Cheyenne annihilated the U.S. Army and killed Custer.
HENRY REAL BIRD: Custer yellow hair was wounded and his heart was cut out. Yes, Custer yellow hair and his men never saw the sun set on June 25, 1876.
MR: A short-lived victory. In time, all the tribes ceded land to the United States. Today, the Crow Reservation is about 2.2 million acres in southern Montana. The smaller Northern Cheyenne Reservation borders it to the east.
Thompson says it’s possible the Crow came to regret their dealings with Custer. Listen to how Henry Real Bird describes Custer’s actions against tribal people in a different encounter:
HENRY REAL BIRD: This is the same bad man, yellow hair, who killed the women and children at Black Kettle’s camp on the Washita six winters before.
JR: He called Custer “bad man.” That term comes from a provision in an 1868 Treaty between the Crow Tribe and the U.S. government. The treaty and the bad-man provision persist today.
HEATHER WHITEMAN RUNS HIM: The bad man clause is pretty simple.
This is Heather Whiteman Runs Him, director of the Tribal Justice Clinic at the University of Arizona College of Law.
HEATHER WHITEMAN RUNS HIM: You’ll see it in many, many treaties between the United States and Indian tribes. So it provides that the tribe shall deliver bad men bad white men who are among the tribe to the United States government upon proof. And then that the United States will appropriately punish or deal with the crimes they’ve committed among Indian people.
She’s a Crow citizen. And? Her great-great-grandfather...
HEATHER WHITEMAN RUNS HIM He was a scout for Custer at the Little Bighorn. He was sort of a Native celebrity for the time.
MR: Now, let’s shift gears, a scene change. Five years ago, Joshua James Cooley, a non-Indian, drove his truck onto the Crow Reservation in the middle of the night and parked on the side of a road. Turns out, up to no good.
JR: A bad man, you might say. What happened next led to a case that came before the United States Supreme Court.
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JR: In one sense, the Indian Wars are long over. In another sense, they’re not. Tensions between indigenous and non-indigenous people still exist.
AUDIO: [IRON EYES CODY] Ah, the Blackfoot, the Crow, the Cheyenne, the Sioux, and Apache...
MR: I’ve been covering the Supreme Court for ten years. Each year, the court hears a handful of cases involving Native Law disputes. I remember being shocked when I realized we’re still fighting over this. Who owns what? Who is in charge of what? It’s still cowboys and Indians.
JR: On our Montana trip, we met Dion Killsback. He’s Northern Cheyenne, and lives on that reservation. But as a lawyer, he represents both Cheyenne and Crow. On his back deck, he looks out over the Wolf Mountains.
DION KILLSBACK: They provide us everything we need to survive. Water. Deer, elk, antelope, fish. Berries. Roots. The same thing that we fought for back then, and that’s just for the right to live as we have lived since time immemorial, that’s the same fight we have today.
JR: And that highway you hear in the background?
DION KILLSBACK: Highway 212. It’s the Cooley case. This is the same road where Cooley was stopped.
MR: The case centers on a traffic stop that took place on that highway. It runs through the Crow reservation.
JR: Joshua James Cooley, a non-Indian, says a Crow tribal safety officer had no authority to search and detain him. Here’s Eric Henkel, Cooley’s lawyer at oral arguments, conducted last March by phone.
ERIC HENKEL: Indian tribes do not possess sovereign authority over non-Indians. Tribal sovereignty is confined to managing tribal land, protecting tribal self-government, and controlling internal relations.
JR: Before we go further, let’s review the facts. Around 1 a.m. on February 26, 2016, officer James Saylor patrols along Highway 212 within the Crow Reservation. He sees a white pickup truck parked on the shoulder.
MR: It’s dark. Remote. Cell phone service, spotty. He decides to conduct a welfare check. Make sure the truck isn’t broken down. The driver isn’t sick or injured. The truck has tinted windows. Saylor shines a flashlight inside. Cooley sits in the driver’s seat. Saylor asks Cooley to roll down his window. And Cooley does—partially. That’s when a toddler crawls from the backseat onto Cooley’s lap.
JR: Cooley says he’s tired. He pulled over to rest. Officer Saylor notices Cooley appears to be non-Indian, but doesn’t ask. Remember that—that’s key. As Officer Saylor and Cooley talk, Cooley says he just tried to purchase a car in Lame Deer, Montana. But the car was broken, so the seller loaned him the white truck. The story seems fishy. It’s the middle of the night and the so-called loaner truck has Wyoming plates.
MR: Cooley’s eyes are bloodshot. His speech slurred. Saylor suspects Cooley is impaired and asks him to roll down the window further. When he does, Saylor spots two semi-automatic rifles on the passenger’s seat. Saylor asks for i.d., and Cooley reaches into his pockets and pulls out wads of cash. Cooley also had a loaded .45 caliber handgun by his side. When Officer Saylor saw that, he ordered Cooley and the child to the police car. And radioed for backup. Federal and state officers arrived on the scene.
JR: The toddler’s mother—Cooley’s ex-wife—lives about an hour away, in Sheridan, Wyoming. Her name is Anna. Before bed that night, she had silenced her cell phone. Then fell asleep.
ANNA: It was 1:30 in the morning, and I woke up with a start, and it was completely dark except for the screen from my phone was lit up.
A Montana number. One she didn’t recognize.
ANNA: And I just immediately knew something was wrong.
MR: The unknown caller had left a voicemail.
ANNA: And it said: This is Crow Agency police. We have Josh in custody. I'm calling in regards to him and your son. Please give me a call back.
Anna says that the entire night is a blur. But she remembers how she felt driving to the Crow Agency police.
ANNA: My racing heart. The feeling in my gut. I was crying on the interstate.
JR: She arrived at the Crow police station around 2:30 a.m.
ANNA: I pulled up and the truck was up on a tow truck. It was wrapped in evidence tape.vI parked.vRan to the building. Someone had told me to step inside this room and they will go get my son.
Cooley and her son were still in the back of Saylor’s police car.
ANNA: So they went and got them out of the back of the vehicle and brought Josh and my son to me. I couldn't even explain my thoughts and feelings at that moment. I just wanted my baby. And I just remember that Josh said, “He’s okay. He’s not hurt.”
MR: Turns out, when Officer Saylor escorted Cooley to the police car on the side of the road and did a pat-down, Cooley took small, empty plastic baggies out of his pocket. Saylor returned to the white truck and saw a glass pipe in plain view. A search revealed Cooley had 356 grams of methamphetamine in his truck.
CORALEE SCHMITZ: Methamphetamine is highly addictive.
JR: Coralee Schmitz is an addiction counselor and the chief operations officer at the Rimrock Foundation in Billings.
SCHMITZ: More addictive than other types of amphetamines because of the chemical reaction that happens within the brain. When meth comes along, dopamine is released at a really high level.
She says south Montana is a meth hot spot.
SCHMITZ: A lot of the mom and pop meth labs are not as in existence as they once were ten years ago. Most of them were shut down. The majority of it is coming in from out of state, primarily Mexico.
MR: Two thousand miles away. Turns out, I-90 is known as Montana’s drug superhighway.
SCHMITZ: Our area is a direct corridor from Mexico into Canada, so we have significant methamphetamine use coming straight up from Mexico. So when this gentleman was arrested it was a very interesting case.
The tribal justice expert you met earlier, Heather Whiteman Runs Him recently witnessed the devastating effects of meth on this community.
HEATHER WHITEMAN RUNS HIM: I just spent two-and-a-half months on my reservation. We do have a really serious epidemic of crime and meth abuse. It’s really hard to describe how hard hit our community is.
She says the area needs options. Treatment centers on the reservation. And more law enforcement to keep the community safe.
JR: The night of Cooley’s stop, Officer Saylor coordinated with state law enforcement and federal law enforcement. So, a Crow tribal safety officer searched and detained Cooley. At the Big Horn County Jail, state law enforcement charged Cooley. But then the feds took over the case. When it comes to tribal, state, and federal government investigative authority, think of a venn diagram: circles overlap in some places, but not others.
MR: Here, Cooley committed drug crimes that violated Crow tribal law, Montana state law, and U.S. federal law. But only two of those authorities could charge Cooley and bring him to trial: state and federal. Crow law enforcement cannot charge and try non-Indians for crimes. We’ll explain why in a minute. Picturing the venn diagram: federal and state overlap here; tribal does not. In this case, the state dropped its charges once the feds took over.
LEIF JOHNSON: My name is Leif Johnson. And I’m the acting U.S. Attorney for the District of Montana. And I did work on the Cooley case here.
JR: The U.S. Attorney’s Office represents the United States in federal cases. It prosecutes individuals for breaking the law. Johnson says the federal government determines on a case-by-case basis whether and when to step in.
JOHNSON: In this case clearly there was evidence that this could be a federal offense. Drugs and guns. If there’s evidence of drug trafficking or an intention to traffic or a conspiracy to traffic, and then also guns. If there’s unlawful possession of firearms that have traveled in interstate commerce we have jurisdiction there as well.
MR: But at trial, the lower court suppressed all that evidence: the guns, the cash, the meth. On appeal the Ninth Circuit affirmed. This local news report explains why:
NEWS REPORTER: The court concluded Officer Saylor’s observations of bloodshot eyes, wads of cash, and seemingly untruthful responses from Cooley did not warrant a search. Ultimately, the courts ruled “the power to detain non-Indians on public-rights-of-way for ‘obvious’ or ‘apparent’ violations of state or federal law does not allow an officer to search a known non-Indian for the purpose of finding evidence of a crime.”
JR: As we said a moment ago, tribes don’t have authority to charge and try a non-Indian for crimes. That’s settled law. Here, the Ninth Circuit ruled that tribal law enforcement cannot even search and detain a suspect who is non-Indian. Back to the venn diagram, the Ninth Circuit pulled the tribal circle farther away from the state and federal circles.
MR: The question before the Supreme Court: Did the lower court make a mistake by doing so? Was it wrong to suppress that evidence? Wrong to hold that an officer of an Indian tribe lacked the investigative authority to search and detain Cooley? To answer that question, Crow lawyer Killsback walks us through how Indian law evolved.
DION KILLSBACK: There are three sovereigns in the United States, the federal government, which is the United States, and the states, which are the 50 states, and then the tribal governments. And there are 574 tribes.
JR: Tribes are referred to as a nation within a nation. But not to be thought of like a foreign country. In the 1800s, Chief Justice John Marshall wrote a trilogy of Supreme Court cases on Indian law. And one of those cases categorized tribes differently than foreign nations.
DION KILLSBACK: So Justice Marshall created what we call a domestic dependent nation, and that domestic dependent nation is what we have today.
So tribes exist within the United States on fairly unique footing. A quasi-sovereign. When it comes to the U.S. Constitution—particularly the first 10 amendments known as the Bill of Rights—what does that mean?
MR: Let’s talk about the Fourth Amendment. That prohibits the federal government from unreasonable searches and seizures. It also binds that prohibition onto the states through the Due Process clause of the 14th Amendment. But a tribal government is not a federal or state government.
DION KILLSBACK: The United States Constitution does not apply to tribes. It only applies to the federal government and the state governments. It does not apply to the tribal governments.
But the U.S. Constitution does say that Congress has the power to regulate commerce with Indian tribes. The Supreme Court has interpreted that to mean Congress has plenary authority over Indian affairs. Very broad power. Power to pass legislation that affects Indian tribes. Congress exercised that power in 1968 when it passed the I-C-R-A, the Indian Civil Rights Act.
JR: Here’s how U.S. Attorney Johnson explained it:
JOHNSON: Congress in the Indian Civil Rights Act enacted basically, a mirror set of protections for individual liberties, but by statute. So they basically use the Indian Civil Rights Act to ensure that tribes were subject to the same general restrictions with regard to the protection of civil rights.
So when it comes to unreasonable searches and seizures, the three circles in our venn diagram do overlap. But which law applies depends on which government is acting. In Indian country, the Fourth Amendment to the U.S. Constitution restrains a law enforcement officer who works for the state or federal government from conducting an unreasonable search and seizure. And a tribal law enforcement officer would be restrained under the I-C-R-A. That act contains Fourth Amendment language.
MR: But here’s where the law gets tricky:
JOHNSON: Tribes don't have any criminal jurisdiction over non Indians. And that’s been the case since the Oliphant decision back in 1978. So tribes are limited in their powers in dealing with non-Indian persons, very limited.
This is what we mentioned earlier: tribes cannot charge and try non-Indians. Whiteman Runs Him, the great-great-grandaughter of the Crow scout, lays out what happened in the case that decided that, Oliphant v. Suquamish.
HEATHER WHITEMAN RUNS HIM: In that case, a couple of non-Native men had gone into the Suquamish reservation and t\hey misbehaved very badly, so the tribe sought to exercise jurisdiction over them and the court at the time looked at the case and said, Well, no. The tribe can’t exercise criminal jurisdiction over non-Native people, even if they’re in Indian country.
The rationale behind it: The court said it didn’t want to subject people who have no say in the legislative process of the tribe to be subject to the criminal law that process creates.
HEATHER WHITEMAN RUNS HIM: But didn’t cite to anything affirmatively where the tribe had ever ceded its ability to exercise that type of authority over non-Indians who entered their territory. But based on that analysis, since that point in time it’s been very difficult for tribes to find ways to protect their citizens and their lands and their resources from offenses committed by non-Natives.
JR: Oliphant is a landmark decision—and a highly controversial one. It is important to note that in Oliphant, the Supreme Court limited its holding to not permitting criminal prosecution of non-Indians by tribal law enforcement. U.S. Attorney Johnson again:
JOHNSON: Oliphant’s limitation was based on the power of the tribe to try and punish those people, like to bring them to tribal court and punish them in tribal court. And the power in this case was quite different. It was the power to police reservation roads and stop and detain.
That’s the core of Cooley’s challenge: the tribe’s actions to search and detain him. Is that an area in our Venn diagram where federal, state, and tribal law authority all overlap or do they not? Cooley says no.
MR: One more twist: Even though Oliphant and Cooley are both criminal cases, civil case law also speaks to the issue of when tribal authority overlaps and when it doesn’t. And the civil rules are different!
JR: It’s complicated, but here’s the general rule: No overlap of federal and tribal regulatory jurisdiction except in two small areas. Other Native law cases address laws about state highway rights of way and land status, an issue here. Remember, when tribal police encountered Cooley, he’d pulled over his car.
JENNIFER WEDDLE: Is the vehicle still on the highway right-of-way, or is it off on the grass? And then what is the land status of the grass? Is it a trust land? Is it fee land? Is it allotted? And it becomes this complete maze which no one is going to try to figure out on a rural road in the middle of the night facing an individual with a lot of guns, drugs, cash, and an unsecured toddler.
MR: A mush of cases. A different analysis depending on civil or criminal. Plus, ongoing tensions between sovereigns. It all led to the question here: Could Officer Saylor search and detain Cooley? The U.S. government argued yes. Even though Officer Saylor didn’t have all-out authority to arrest and prosecute, he had limited policing authority to deal with threats. He wasn’t completely powerless.
Here's lawyer Eric Feigin, arguing the case for the government at the Supreme Court.
ERIC FEIGIN: And the authority that we're asking for here for tribes and that we think tribes have always had and that everyone's always assumed that they had is it's not the authority to do a full-blown arrest. It's just investigation and detention in a complementary role.
Justice Samuel Alito grilled the government about where the line falls. Does it go beyond what Officer Saylor did?
JUSTICE SAMUEL ALITO: Does the authority you claim the tribes retain go further than simply detaining a non-Indian on reasonable suspicion? Suppose a tribal officer is not stopping a car on the highway but is driving around the reservation and sees through the window of a house owned by a non-Indian on a parcel of land that this individual owns, and sees that there is drugs in plain view. What can the officer do under those circumstances?
FEIGIN: I do think that the officer can go in and do a detention there, and then he has to obviously act reasonably when he does so.
JR: Justice Elena Kagan wasn’t sure about the government’s litigation strategy. The government argued that the tribe’s power to search and detain is inherent. It’s what any sovereign would expect to be able to do in order to protect its citizens and territory.
But Kagan brought up Montana v. United States. That’s a civil case that also took place on the Crow reservation. The court held tribes lack the authority to regulate hunting and fishing by non-Indians who owned land on the reservation. It made two exceptions. One of them being Indian tribes can regulate the activity of non-Indians for reasons of public safety. Why not argue that?
JUSTICE ELENA KAGAN: I guess what I'd like to know is, if there are these two alternative ways that you could have written your brief. And one is the inherent authority way, which you, in fact, used. And the other is the Montana exception 2 way. Why did you make the choice that you did?
FEIGIN: Our primary argument is because we just don't think Montana applies. I think it really only governs civil, adjudicatory, and regulatory jurisdiction.
KAGAN: I guess what I’m really asking is what are these are these different implications? I mean, I'm just sort of not understanding why you're pushing down one road rather than the other?
FEIGIN: Your Honor, I'm not sure it ultimately makes a difference in the outcome in this case, but the federal government does have a very strong interest in preserving tribal authority and tribal sovereignty where appropriate.
JR: Let’s return to the 1868 Treaty between the Crow Tribe and the U.S. government, discussed at the beginning of this episode. The one with the bad man provision. That straightforward rule allows a tribe to turn over “bad men” to the United States for punishment, as Whiteman Runs Him explained.
HEATHER WHITEMAN RUNS HIM: So it seems like a pretty basic provision, right? That hey, if some of your people are acting up with us, we’ll detain them. We’ll bring proof to you of the wrongs that they have done. We’ll deliver them to you and you will deal with them.
Treaty rights persist. Why not simply rely on the bad man provision here—and poof! Case resolved. Lawyer Jennifer Weddle:
WEDDLE: In part, because this was always a federal prosecution. So the Crow Tribe wasn’t participating in any of the proceedings, this was simply the U.S. Attorney’s Office prosecuting a drug dealer. They did not make the treaty arguments at the District level or the Ninth Circuit level.
MR: U.S. Attorney General Leif Johnson added this:
JOHNSON: So from a strategic point of view, it’s always hard to anticipate if this case is going to go to the Supreme Court and why wouldn’t you make that argument? Well, in the Ninth Circuit, we had controlling precedent, or what we argued was controlling precedent. So there wasn’t really a need to go into the treaty history of the bad man provision, which are very interesting.
But by the time the case reached the highest court in the land, the strategy changed. The government did make treaty arguments.
JOHNSON: We did interject that in the Supreme Court briefing, but you also have to understand we were making essentially the same argument which was that the tribes had certain inherent powers when they first entered treaties with the United States, the courts have always recognized that.
Only sovereigns can enter a treaty. That’s what a treaty is: An agreement between sovereign nations. In other words, the treaty power of the tribe proves the tribe has inherent sovereign authority.
But when Cooley’s lawyer Eric Henkel took his turn at oral argument, the justices didn’t go there. Instead, Justice Stephen Breyer cast doubt on the Ninth Circuit’s ruling, the one Cooley wanted affirmed. Namely, tribes don’t have jurisdiction or authority over non-Indians, so all Officer Saylor had to determine was whether Cooley was Indian or not.
JR: Breyer asked: How in the world does a tribal officer ascertain whether someone is Indian? Here’s a clip from their exchange.
JUSTICE STEPHEN BREYER: I mean, what is the rule? What are the rules you’re advocating?
HENKEL: That the tribal officer needs to first ascertain Indian status.
BREYER: How does he do that?
HENKEL: The officer could start by asking.
BREYER: He's drunk.
HENKEL: We have eight federally recognized tribes in Montana, all of whom issue tribal identification cards, and—
BREYER: Doesn't have one.
HENKEL: You could radio tribal dispatch or state dispatch. … Then they can come out to the scene.
BREYER: But they might be busy.
JR: Let us interrupt Justice Breyer here for a moment—to return to our Montana trip—where we talked to the Crow Tribe about this very thing. A.J. Not Afraid served as Chairman of the tribe during the time the Cooley arrest took place. Think of a Chairman sort of as a modern day chief. He explained that each federally recognized tribe sets its own standards for who can be enrolled in that tribe.
A.J. NOT AFRAID: The requirements for the Crow Tribe is you have to possess a quarter of recognized Crow blood. But those requirements technically came from the federal government.
MR: At the time of Cooley’s traffic stop, Chairman Not Afraid was advocating for tribal membership to be based on lifestyle, not blood quantum. After all, lifestyle kept the Crow alive. Requiring the skills for membership will keep the Crow from losing them.
A.J. NOT AFRAID: Everything from throwing arrows to picking berries to harvesting buffalo. It’s a cultural lifestyle that is separate that, you know, keeps us Crow. Another good example is speaking Crow. If you don’t speak Crow, should you still be a member?
JR: Incidentally, Not Afraid’s Crow name?
A.J. NOT AFRAID: I’m Bird in the Cloud.
Not Afraid also mentioned the local meth problem. A rural area. Not a lot of law enforcement around.
A.J. NOT AFRAID: It was so bad, where an elder would open the door for these folks on meth, so they can walk in and steal a TV and walk out. Why didn’t you lock it? Why didn’t you call the cops? The answer was, the cops, by the time they respond, the door is busted down. I’m threatened, my family’s threatened. So if a non-member comes in, breaks down the door, does what they need to do, we have to go off reservation and file something.
MR: Criminals take advantage of the uncertainty in the law and the lack of law enforcement. He says it’s the tribe’s duty to protect those on the reservation.
A.J. NOT AFRAID: The solution is the tribes take that destiny in their own hands and use their inherent rights and ensure that they uphold their rules and laws.
MR: Hard to do with rulings like the Ninth Circuit’s: Authority hinges on ascertaining Indian status. Back at oral argument, Breyer continued to doubt the workability of that!
HENKEL: You could radio tribal dispatch or state dispatch. … Then they can come out to the scene.
BREYER: But they might be busy.
BREYER: It’s a long way away.
HENKEL: And that's exactly, I think all of these problems that are being posed are exactly why Congress provided for cross-deputization, because it eliminates all of these problems.
BREYER: And how does that work?
MR: Cross-deputization. A contract where tribal law enforcement and state or federal law enforcement agree on tribal authority. All three circles in the venn diagram would line up!
JR: I talked with Cooley’s lawyer, Eric Henkel, by Zoom after oral arguments. He described cross-deputization this way:
HENKEL: It’s a tool used by either state or federal law enforcement authorities to provide law enforcement powers and functions, or the authority to perform law enforcement functions, to individuals or agencies or entities that are not otherwise part of that state or federal government.
MR: Here, if cross-deputization had been invoked, the state of Montana would’ve entered an agreement with the Crow Tribe. Such contracts can be a big help with streamlining law enforcement on reservations. Here’s Jennifer Weddle again, the Native American law practitioner.
WEDDLE: For the Crow Tribe, the reservation is greater than the size of the state of Delaware. And at the time Mr. Cooley was arrested, Officer Saylor was the lone law enforcement officer patrolling that vast geographic area. That is very typical in Indian country.
A cross-deputization agreement would have been a reasonable, practical way to give Officer Saylor investigative authority. If the tribe wanted to align the circles in the venn diagram, that was the way. But no contract existed. Cooley argued that failure kept the circles apart. But Weddle says such agreements aren’t the only way.
WEDDLE: Cross deputization agreements are simply one option on a menu of options that Congress has made available for law enforcement in Indian country. And it’s true the Crow Tribe could engage in such cross deputization arrangements, but there was absolutely no need to do that.
JR: Sometimes the government directly provides its own law enforcement to tribes. That happens through the alphabet-soup federal law-enforcement agency known as the B-I-A O-J-S, Bureau of Indian Affairs, Office of Justice Services. An officer from the B-I-A patrols the reservation.
But that’s not exactly what happened here. Saylor did receive training as a BIA officer and did drive a BIA vehicle. But the Crow Tribe had secured a Highway Safety Grant and employed Saylor with funds from that grant. In other words, he was on the Crow Tribe’s payroll. The grant helps the tribe deal with its shortage of officers. Gets more boots on the ground. But doing so made Saylor’s role that of a tribal officer, not a BIA federal officer. It’s hard to know where he fits in our Venn diagram. Is there overlap or not? The uncertainty causes confusing cases like this one!
MR: All right. Well, the hardest hurdle Cooley’s lawyer Henkel had to contend with at oral arguments? The hypotheticals about what a tribal officer is supposed to do when a non-Indian commits a crime. Justice Alito:
JUSTICE SAMUEL ALITO: Consider the situation where the tribal officer has reasonable suspicion that a driver is driving under the influence and would present a danger if allowed to continue to drive. What can the tribal officer do there? Just let the person go? 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 could certainly ask the individual to stay there while he contacts law enforcement, but can he officially detain? No.
And Justice Clarence Thomas:
JUSTICE CLARENCE THOMAS: Let's change the facts in this case just a bit. … [40:50] He fit the description that the police officer heard over his radio of a serial killer. But other than that all the facts are the same.
HENKEL: I think in that circumstance the tribal officer could detain.
HENKEL: It sounds like he has reliable information coming from presumably state or federal law enforcement about this wanted individual. That circumstance, to me, is far different from what we had here, where, after an initial welfare check, Officer Saylor proceeded to ultimately pull Mr. Cooley out of the car at gunpoint and investigate him for suspected drug activity. There was certainly no apparent or obvious crime, as the Ninth Circuit found, and I think that's a critical difference between what happened here and your hypothetical.
MR: In other words, if the crime is apparent or obvious, Officer Saylor could detain him. The same way an average individual can make a citizen’s arrest if they see an obvious crime, like a purse snatcher. But, Cooley argued, if the crime is not obvious, Officer Saylor has to let Cooley go.
JR: That raises practical problems. If Officer Saylor reasonably suspects the driver is under the influence, a child is in danger, but it’s not obvious, he has to let the person drive off? That seems to lack common sense. Then again, courts aren’t supposed to decide cases based on results and then work backward. They’re supposed to decide cases on the facts and the law.
After oral argument, Henkel reflected on those practical problems.
HENKEL: The United States and the various amici support that they had, they had a lot of really good strong arguments grounded in public policy. From where I am, sitting as a lawyer, obligated and devoted to represent Mr. Cooley, I have to make the legal arguments, and the legal arguments, to me, were quite clear. I found it quite easy to draw a line between policy and law. I think that the Supreme Court, in the Oliphant decision, back in 1978, flatly rejected policy arguments, because it's a common argument to make.
Meaning, if you don’t recognize tribal authority it’ll cause chaos on the reservation. But no matter. The Court decides cases on the law and defers to Congress’ plenary authority to change the law. In this case, the Court ruled unanimously, 9-0, in favor of the United States and against Cooley. Justice Breyer delivered the opinion of the Court. Justice Alito wrote a one-paragraph concurring opinion.
MR: The court vacated, or canceled, the lower court’s decision to suppress the evidence of guns, cash, and meth. The opinion pointed out two problems with the lower court’s ruling.
First, asking whether a person is Indian creates an incentive to lie. If you’re suspected of committing a crime and all you have to do to get out of it is say, I’m not Indian… well, you can imagine what would happen.
Second, to allow temporary detention only for an obvious or apparent crime introduces a new standard in search and seizure law. So that’s no good. Reasonable suspicion or probable cause determines whether a search is legal, and has been so for decades.
JR: The Supreme Court instead relied on the precedent of Montana v. United States. That’s the litigation strategy the government decided not to take! The road they didn’t push down. It applied the exception in that civil case to this criminal case: Tribes can exercise authority over non-Indians on a reservation when the conduct threatens the health or welfare of the tribe.
MR: To quote Justice Breyer: “The second exception … fits the present case, almost like a glove.” To hold otherwise, the opinion went on, “would make it difficult for tribes to protect themselves against ongoing threats.”
The Supreme Court opinion brushed over the complexity of issues like the difference between jurisdiction versus authority, and land status of a state right-of-way in a reservation.
And the Supreme Court remanded that case back to lower court and U.S. Attorney Johnson says he expects to receive an order setting a hearing. If the case survives whatever new motions may be filed, it’ll go to trial.
JR: Overall, the case pushed the circles of the venn diagram closer together. Tribal officers, state officers, and federal officers have the authority to search and detain when reasonable suspicion is present. Whether the suspect is Indian or not.
The Court’s ruling also matches the bad-man provision from the 1868 Treaty. Search and detain a bad man and turn that bad man over to the government to be tried. That’s not the rationale the Court used to decide the case. But it’s worth noting. Even so, University of Arizona native-law expert Heather Whiteman Runs Him points out why that might not be enough.
HEATHER WHITEMAN RUNS HIM: I think it’s important to also think about the sort of opposite situation where you have an Indian person who may have committed a bad act among the whites. Are they returned back to their tribe?
Overall, though, I’m left with the sense that Whiteman Runs Him, the Crow tribe, and the greater Indian community thought the Court’s analysis was a good one.
HEATHER WHITEMAN RUNS HIM: Okay, when we have somebody coming on our reservation with a car full of drugs and guns and bringing his kid along for the ride putting a child in danger. We don’t care if this kid is Indian or not. He shouldn’t be in that situation. Any tribal officer or any law enforcement officer should be able to help that child and get them to a safer situation. It’s encouraging to see that the Supreme Court will find something a non-Indian does within the boundaries of the reservation can meet that second Montana exceptions requirement.
MR: As for Anna, Cooley’s ex wife. And their son? Anna says she’s thankful for Officer Saylor’s work that night. But Cooley’s not in prison as of yet. Anna and her son are still healing.
ANNA: I mean the chaos and the emotional and the financial stress has not gone away. It’s affected him emotionally. He definitely, we’ve had to work on some of his anger. We’re still working on the healing part of it.
JR: Given that, I’ll leave us all with this final thought from Whiteman Runs Him.
HEATHER WHITEMAN RUNS HIM: We can always pray for that family. Mr. Cooley hopefully he’ll find a way to be a better father in the future. Let this child and mom kind of have some peace, which I think they probably deserve.
JR: Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.
MR: And I’m Mary Reichard. We’re the hosts each week.
JR: Our script editors are Nick Eicher and Paul Butler, who is also our producer. Technical engineer is Rich Roszel.
MR: Source material in this episode included KULR News 8 and oral arguments from SupremeCourt.gov.
JR: We want to give credit to the people who provided time and resources to help tell this story. Thanks go to Anna, Eric Henkel, Leif Johnson, Dion Killsback, Chairman A.J. Not Afraid, Putt Thompson, Jennifer Weddel, and Heather Whiteman Runs Him.
MR: Special thanks to ukulele player Steve Phillips for his rendition of “Iron Eyes Cody.”
JR: If you’ve written to us, thank you!. We love hearing from you. Our email address is: email@example.com.
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