United States v. Cooley (19-1414)

argument 19-1414

United States v. Cooley

Supreme Court of the United States 1h 8m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court’s view on inherent tribal authority to investigate and detain non‑Indians?

John G. Roberts 0:00

We will hear argument this morning in Case 1914-14, United States v. Cooley. Mr. Fagan.

Unknown 0:09

Thank you, Mr. Chief Justice, and may it please the Court. Indian tribes, like other sovereigns, have the core inherent authority to investigate and detain suspects within their borders for the violation of another sovereign's laws. Every single source that this court looks to in assessing inherent tribal authority confirms that limited ability. The executive has entered into numerous treaties that presuppose it. Congress has ratified those treaties and passed affirmative legislation that reflects it. Courts have repeatedly upheld it. And on-the-ground law enforcement practice has long depended on it. The Ninth Circuit's decision here upsets all of those understandings. Its tribal sovereignty analysis would logically suggest that tribes are reduced to no more than private citizens in policing rights-of-way and non-Indian land on their reservations.

Unknown 1:08

And I think that's the position respondents are taking. But even the Ninth Circuit realized how untenable that would be, so it created a novel, complicated, and ultimately unworkable law enforcement regime. The decision below replaces familiar Fourth Amendment standards codified in the Indian Civil Rights Act with an unprecedented standard that nobody is going to know how to apply, officers or courts. 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.

Unknown 2:09

it should be reversed.

John G. Roberts 2:12

Mr. Fagan, you got my attention when you began by saying every single source says that tribes have this inherent authority. I would have thought Montana said the exact opposite. You know, you do argue at the outset there's this inherent authority and nothing took it away. But as we said in South Dakota versus Borland describing it, Montana. This is a quote. It said, after Montana, tribal sovereignty over non-members cannot survive without express congressional delegation and is therefore not inherent. So I would have described that as at least one source that says the opposite of what you said.

Unknown 2:59

Well, Your Honor, I do think this court has recognized inherent authority without express congressional authorization. And as we discussed in our brief, we think the overall standard is the one announced in Colville and in cases before and after, which

John G. Roberts 3:18

is... And I'm not saying that we haven't recognized some inherent authority, but this is the question of tribal sovereignty over non-members, and I assume that would extend to criminal jurisdictions.

Unknown 3:36

Well, let me make a couple of points directly about Montana, Your Honor. I think Montana is how Colville shakes out in the civil, regulatory, and adjudicatory context. But even if, Your Honor, we're inclined to apply Montana in these circumstances, which don't involve criminal jurisdiction but on-the-ground policing, nobody is... is trying or punishing crimes here. I think it would fit within the second Montana exception because it interferes with self-governance.

John G. Roberts 4:08

No, I understand that as an alternative theory, and we can talk about that. But you say Montana applies to legislative and civil and regulatory. On what basis would you suggest that executive power, such as is being exercised here, is subject to a different rule than legislative and judicial power.

Unknown 4:34

Well, I think the court essentially recognized that there's a distinction, or at least nodded at such a distinction in both Strait and Atkinson when it expressly noted that it wasn't questioning this particular power that we're discussing here today, which is the power to stop and detain someone on public rights of way that run through a reservation.

John G. Roberts 4:59

Thank you, counsel. Justice Thomas?

Clarence Thomas 5:02

Thank you, Mr. Chief Justice. Mr. Fagan, the Ninth Circuit analogized the police officer here to a private citizen.