Native American victory. Supremes rule Tribal Police Can Search Non-Indians

In many areas the increasingly conservative US Supreme Court has rolled back civil rights and voting rights.  However, when it comes to Native Americans whose land was decimated and people slaughtered in the quest for the white man’s Manifest Destiny in the 19th Century, the Supreme Court seems to realize a terrible wrong was done.  

Several decisions have recognized the rights of the original Native Americans.

Better late than never.

Excerpted from The Oklahoman and The Wall Street Journal 6.1.2021

WASHINGTON—The Supreme Court ruled unanimously Tuesday that tribal police officers with sufficient cause can stop and search non-Indians traversing reservations, the latest in several recent decisions that in ways large and small have affirmed limited sovereignty for Native American nations.

Last July, the court ruled that Congress never dissolved five tribal reservations encompassing much of eastern Oklahoma, putting in question the state-court convictions of Indians for crimes committed in the territory. In 2019, the court held that Indian hunting rights remained intact despite the advent of Wyoming statehood in 1890. (U.S. v. Cooley)

Stephen Greetham, an attorney for the Chickasaw Nation, said Tuesday: “The Supreme Court’s recognition of both the competence and authority of tribal police to protect public safety is heartening. The ruling is sound on the law and smart on the facts.”

Cherokee Nation Attorney General Sara Hill said Tuesday that the decision “makes it clear that tribal officers can stop and search non-Indians on public highways within that tribe’s reservation and, if necessary, seize evidence of a crime and detain or transport the offender to turn over to the proper prosecuting authority. 

“The non-Indians must be tried in state or federal courts, depending on the crime, but tribal police can make the initial stop and hold the offender until federal or state police arrive or transport the offender to the proper federal or state authorities under the tribe’s own inherent authority on its reservation. That makes everyone safer. No one would want a tribal police officer to be required to let a drunk driver back on the highway because he or she was a non-Indian.”

Indian tribes have jurisdiction over Indians for crimes committed on reservations, but non-Indians typically fall under the authority of federal or state authorities. Reasoning that a non-Indian’s 2016 drug arrest in Montana stemmed from a tribal officer’s investigation, federal trial and appellate courts threw out the conviction.

Tuesday’s decision, however, found that tribes hold basic authority on reservations to safeguard the welfare of their members, including the legal power to make safety checks on suspicious cars stopped along the public right-of-way.

Tribes “lack inherent sovereign power to exercise criminal jurisdiction over non-Indians,” Justice Stephen Breyer wrote for the court, or even to “regulate hunting and fishing by non-Indians on land that non-Indians own” on a reservation. Congress holds the ultimate power over tribal authority, the court has held.

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But in decisions tracing to the republic’s early years, the Supreme Court has on occasion recognized the dependent sovereignty the tribes retained. Justice Breyer recalled an 1832 opinion by Chief Justice John Marshall affirming Cherokee prerogatives against encroachment from the state of Georgia.

Although European conquest made them subject to the crown and, now, Congress, “the Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights as the undisputed possessors of the soil from time immemorial,” Chief Justice Marshall wrote.

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More recently, a 1981 opinion noted that a tribe “may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

The officer put Mr. Cooley and his child in the patrol car and called for backup. Officer Saylor searched the truck, finding a glass pipe and a bag containing methamphetamine. Tribal, county and federal officers soon arrived, and Mr. Cooley ultimately was convicted of federal narcotics charges.

While the Crow tribe lacked authority to prosecute Mr. Cooley, its officers were empowered “to search and detain for a reasonable time any person he or she believes may commit or has committed a crime” and turn the suspect over to federal or state officers, the court said.


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