U.S. Supreme Court
The U.S. Supreme Court is seen in September 2020 following the passing of Justice Ruth Bader Ginsburg. Photo by Indianz.Com (CC BY-NC-SA 4.0)
U.S. Supreme Court upholds tribal law enforcement authority over non-Natives
United States v. Cooley originated on the Crow Reservation in 2016.
Friday, June 11, 2021
Montana Free Press

The United States Supreme Court last Tuesday reversed a lower court ruling limiting tribal law enforcement authority to stop and search non-Native residents. The high court’s unanimous decision in United States v. Cooley, which originated on the Crow Reservation in southeast Montana, was heralded as a win for tribal sovereignty and law enforcement authority.

In the June 1 opinion issued by Justice Stephen Breyer, the court found that restricting tribal law enforcement officers from stopping, searching and temporarily detaining non-Native people could compromise officers’ ability to protect the “health or welfare of the tribe.” That language stems from a previous case, Montana v. United States, in which the court ruled against the Crow Tribe’s ability to regulate fishing and hunting by non-tribal members on land that is not owned by the tribe. That limitation on the tribe’s enforcement authority, Breyer wrote, was issued with important exceptions, including a provision for responding to threats against a tribe’s health or welfare.

“To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats,” Breyer wrote in the Cooley decision. “Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.”

Indianz.Com Audio: U.S. Supreme Court – United States v. Joshua James Cooley – March 23, 2021

The Cooley case arose in 2016. A Crow Police Department officer found a man with a child in the backseat of his truck pulled over on the side of U.S. Highway 212, which runs through the Crow Nation.

The officer, James Saylor, found that the man, Joshua Cooley, had “watery, bloodshot eyes” and did not appear to be Native American. After a search of Cooley and the vehicle, Saylor found methamphetamine, a glass pipe and two semi-automatic rifles.

While he was later indicted on federal drug and gun offenses, Cooley’s defense successfully argued to suppress the evidence Saylor had collected, citing the officer’s lack of investigative authority over a non-Native person on a public road. The 9th Circuit Court of Appeals later upheld that decision, prompting the case to be appealed to the U.S. Supreme Court.

The Crow Tribe did not immediately issue a statement in response to the court’s ruling. Chairman Frank White Clay could not be reached for comment.

During oral arguments in the case, the Department of Justice attorney representing the petitioner argued that tribal law enforcement agents should be allowed to exercise authority over non-Native people, saying the 9th Circuit’s ruling puts tribal members at risk.

“These areas are policed primarily often by tribal officers. And if they lack this authority, it’s going to endanger everyone on the reservation,” DOJ attorney Eric J. Feigin said in late March.

The attorney representing the defendant, Eric H. Henkel, sought to convince the justices that tribes do not have authority over non-Native people and that Congress has “plenary authority over Indian affairs.” In his opinion, Breyer did not side with the defendant’s argument, saying “no treaty or statute has explicitly divested Indian tribes of the policing authority at issue,” and that the case at hand fit within the exemptions outlined in the court’s previous Montana ruling.


Mara covers Montana’s social welfare and criminal justice systems, including public health matters such as substance use disorders and mental health care. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.

Note: This story originally appeared on Montana Free Press. It is published under a Creative Commons license.

U.S. Supreme Court Decision: U.S. v. Cooley
Syllabus | Opinion [Breyer] | Concurrence [Alito] | Full Document

Briefs: United States v. Cooley
Here are the briefs on the merits in support of tribal interests in United States v. Cooley.

Brief of Petitioner United States

Amicus Brief of National Indigenous Women’s Resource Center

Amicus Brief of the Lower Brule Sioux Tribe, et al.

Amicus Brief of Ute Indian Tribe

Amicus Brief of Indian Law and Policy Professors

Amicus Brief of National Congress of American Indians, et al.

Amicus Brief of Current and Former Members of Congress

Amicus Brief of Former US Attorneys

Amicus Brief of the Cayuga Nation, et al.

9th Circuit Court of Appeals Decisions
United States v. Cooley [Panel Decision] (March 21, 2019)
United States v. Cooley [Denial of En Banc] (January 24, 2020)

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