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Court struggles with the “indefensible morass” it’s made in Indian law

On Tuesday, the Supreme Court heard oral argument in United States v. Cooley. The case concerns whether tribal police officers may detain or search non-Indians suspected of violating state or federal law on public highways running through reservations, and if so, in what circumstances. Tribal police officers’ authority flows from tribal governments, and so this case is also about the scope of tribal governments’ sovereign powers over non-Indians.

The court has previously held in Oliphant v. Suquamish Indian Tribe that tribal courts do not have criminal jurisdiction over non-Indians, and that tribal criminal law does not apply to them. Instead, non-Indians are subject to state or federal criminal law (depending on the crime and Indian status of the victim) and prosecuted in state or federal courts for any illegal conduct. Nonetheless, tribal law-enforcement agencies remain the local police force on Indian reservations and are usually the first responders, though the Indian status of a suspect and victim — and therefore what law applies, and which court system will eventually prosecute — is often unknown when police arrive on the scene.

Cooley addresses very real-world questions about tribal policing. But it also is controlled by a complex and convoluted series of federal common-law cases that have attempted to define the scope of tribal sovereignty for decades. Tuesday’s argument was divided between precisely these two aspects of Cooley. Half of the justices’ questions were about defining the scope of tribal sovereignty, and the other half were about what is possible, safe or workable for tribal police on the ground — in other words, tribal sovereignty in theory vs. practice.

Cooley’s particular combination of facts and law has the potential to provoke both internal conflicts for individual justices and to create strange bedfellows across the court. Tuesday’s argument revealed a court that seems deeply conflicted on just about every aspect of this case from top to bottom, except possibly the outcome.

Toward the middle of the argument, Justice Samuel Alito perfectly captured the court’s struggle with theorizing tribal sovereignty when he asked Deputy Solicitor General Eric Feigin to provide a “general test for distinguishing between those aspects of sovereignty that tribes retained and those that they did not” by completing the following sentence: “Tribes retain those aspects of sovereignty that ______.” This did seem to be the million dollar question on Tuesday — though it isn’t the first time the court has tried to answer it, not by any means.

Tribes can give up sovereign powers, or Congress can explicitly take them away. However, there are also powers that the Supreme Court has determined tribes simply cannot still possess because they would be inconsistent with the tribes’ status as domestic dependent nations. This latter set of powers is what has given the court so much trouble. The court has attempted to define these powers from various angles and with different formulations in the civil, criminal, adjudicatory and regulatory contexts, but never the executive law enforcement context of policing power raised in Cooley. Most of the important federal Indian law cases over the last 50 years — and the cases cited during the argument in Cooley — could be characterized as a long internal debate within the court about how to answer Alito’s question.

Chief Justice John Roberts started the argument by raising the issue of the source of tribal power over non-Indians. The government’s test emphasizes that tribal powers are retained inherent powers. The formulation it proposes relies on language from a 1980 case, Washington v. Confederated Tribes of Colville Indian Reservation, which says tribes are divested of powers when “the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government.” Roberts suggested he thinks the Colville formulation has been overruled, and quoted language from a footnote in South Dakota v. Bourland. The Bourland footnote characterizes the holding of the court’s leading framework for determining tribal civil jurisdiction over non-members — from Montana v. United States — as holding that tribes lacked inherent power over non-members unless Congress expressly delegated them those powers.

Justices Brett Kavanaugh and Sonia Sotomayor made similar comments later on, hinting that tribal powers are either given by Congress, delegated, or should come from the Constitution. Feigin mostly reiterated broad general support for inherent tribal sovereignty from the court’s precedent. Interestingly, it was Justice Clarence Thomas who picked up on this issue and stepped in with the best defense of inherent tribal sovereignty over non-members — albeit very subtly — by raising the court’s decision in United States v. Lara, which Thomas suggested addressed Roberts’ question and undercut parts of Montana. Feigin seemed to have missed the subtle handoff from Thomas, but Thomas is right that Lara explicitly took on the Bourland footnote and the language in Montana where the court had previously described tribal powers as “delegated” by Congress. Lara states that the Bourland and Montana language was subsequently overruled by Congress when it stepped in after Duro v. Reina to instead “recognize” and “affirm” tribal governments’ “inherent” authority to prosecute non-member Indians. Lara recognized that Congress had properly exercised its power to “change ‘judicially made’ federal Indian law” and correct the court’s description of “delegated” tribal power to clarify that tribal powers — even over non-members — are inherent.

Setting aside the source of tribal powers, the justices’ questions showcased that tribal policing power is not a clean fit for the court’s earlier case law that has attempted to define the scope of tribal sovereignty. The criminal adjudicatory jurisdiction cases aren’t too helpful. As Feigin explained in a discussion with Justice Stephen Breyer, the court’s primary reasoning behind Oliphant — that it would be unacceptably unfair to subject non-Indians to laws or court systems they had no hand in — did not apply here since non-Indians are represented in the creation of the state or federal law they are being prosecuted under.

The government argued that the court should look to the formulation from Colville for an answer, but none of the justices seemed particularly taken with it. Even Justice Neil Gorsuch, who may be solidifying his status as the court’s most pro-tribal sovereignty justice, said he would have argued for the clean rule that tribes retain all powers that haven’t been explicitly divested by Congress and thus for throwing out most of this messy case law entirely. That sent Gorsuch and Feigin into a debate about the conflicting implications of various acts of Congress on the scope of officer authority.

Primarily, the government says that the court’s framework from Montana should not apply since it is limited to civil jurisdiction. However, the government argued in the alternative that if Montana does apply, the tribe has the power to police under Montana’s second exception, which allows for tribal jurisdiction over non-members if the non-member’s conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” It is unclear how many votes there might be for this approach. Roberts suggested that he assumes Montana is a broad rule about tribal sovereignty over non-members which would extend to criminal jurisdiction. He suggested that this case seems like the “prototypical case for the exception” since it would threaten tribal self-rule to do nothing about crime on their reservation.

Eric Henkel, who argued for Joshua Cooley, tried to dismiss these concerns as not sufficiently tied to the self-governance or internal relations questions that control Montana. The government, though, said an adverse ruling would have a “chilling effect on enforcement even against Indians” since Indian status and land status are often unknown and impossibly difficult for an officer to assess on the ground. Sotomayor expressed doubts that this situation amounted to “the extreme impact on sovereignty that Montana references.” However, as described in my case preview, applying Montana to a case that involves criminal conduct could be tricky since the civil vs. criminal jurisdiction frameworks apply to different classes of persons, and Oliphant suggests the public-safety or welfare concerns preserved in Montana’s second exception are irrelevant to the inherent jurisdiction analysis over criminal conduct.

Not only did the government struggle coming up with an appealing enough alternative to Montana, it struggled to find an analytically satisfying theory for why executive policing power should be treated any differently than adjudicatory and regulatory power. On this point, the government seemed to have only the dicta from Duro, Strate v. A-1 Contractors, and Atkinson Trading Co., Inc. v. Shirley, which acknowledged and did not question the presumptively separate existence of tribal policing authority. Justice Amy Coney Barrett seemed unpersuaded by the line the government attempted to draw between temporary executive detention and an arrest that kicks off the adjudicatory process. This reliance on dicta, however, led to what may be a strange potential route for the court. Kavanaugh cited an amicus brief submitted by former U.S. attorneys describing criminal jurisdiction in Indian country as “an indefensible morass of complex, conflicting, and illogical commands layered in over decades via congressional policies and court decisions.” He asked whether, despite it not being analytically satisfying, the court ought to just issue a narrow result affirming the dicta from Duro, Strate, and Atkinson, on the principle of doing no more harm. Barrett also seemed to show some support for this approach, especially in the absence of the representation concerns that motivated Oliphant.

From Tuesday’s argument, it is not clear that any of the court’s prior tests for tribal sovereignty cleanly fit Cooley, or that the justices are coalescing around a particular theory. This suggests the case could yield a messy set of opinions, a particularly narrow one, or else get resolved by the justices hashing a great deal of this out in conference.

Just like Alito earlier on, Justice Stephen Breyer posed a question that perfectly encapsulated the second half of the concerns in Cooley when he asked Henkel, “What exactly do you think the tribal officer can do and what can’t he do and why?” Henkel argued that a tribal officer first has to determine Indian status, and then could only detain non-Indians who are obviously violating the law. Thomas, Breyer and Alito pressed Henkel on a range of hypotheticals involving tribal police interactions with non-Indians they reasonably believe to be serial killers (no detention without imminent threat of violence), obviously drunk drivers (detention if there is ongoing active breach of peace), less drunk drivers (no detention or sobriety tests), and persons fleeing the scene (police can ask them to stay). It was clear that none of these justices were satisfied with Henkel’s answers. His proposed solutions for determining Indian status by just asking, expecting Indians to carry cards, or police calling up tribal offices to consult membership rolls seemed unworkable. Nor did the answer that tribal police have to let a non-Indian go even if the officer has reasonable suspicion that the person is a murderer or about to drive drunk go over well. 

However, Gorsuch and Sotomayor both raised issues concerning the remedies that could apply for violations of the rights of non-Indians who are detained or searched by tribal police. As Henkel explained in a dialogue with Gorsuch, tribal governments and their officers have sovereign immunity from most suits. Sotomayor pointed out that the Indian Civil Rights Act — including any remedies tied to it — might not even apply if an officer is acting beyond the scope of his authority. Thus, ICRA’s protections might only kick in if the court holds that the officers have authority in the first place. Based on Tuesday’s argument, it is clear that the justices care a lot about the rights of non-Indians and the safety of tribal police and reservation residents. But the messy realities of assessing facts on the ground and the law governing tribal government actors could make it difficult for the court to protect both as much as it wants to. The court seems directed toward a ruling for the government but the path they choose to get there could vary dramatically, with equally dramatic implications for tribal sovereignty.

The Cooley argument showcased a rare side of the current Supreme Court: one that is not necessarily divided, but deeply conflicted on how to resolve a case. Maybe not about everything, though.

There did seem to be one thing the court was settled on: Nobody liked what the U.S. Court of Appeals for the 9th Circuit did to resolves these issues. Barrett expressed doubts about implementing its novel framework allowing tribal police officers to detain non-Indians after assessing their status only for “apparent” or “obvious” violations of law. Thomas asked how the 9th Circuit could simultaneously hold that tribal officers are acting with no more authority than private citizens and nonetheless apply ICRA. Sotomayor seemed genuinely puzzled by the invention of a partial power to detain in order to assess Indian status.

Recommended Citation: Elizabeth Reese, Court struggles with the “indefensible morass” it’s made in Indian law, SCOTUSblog (Mar. 26, 2021, 8:31 PM),