Supreme Court Allows Tribal Police to Detain Non-Indians

A Ninth Circuit decision, which limited tribal police authority on public highways within reservation boundaries, has been overturned by the U.S. Supreme Court, allowing tribal police the ability to detain non-Indian suspects. Previously, the Supreme Court held that tribal police had little authority over non-Indians, reports AP News.

The unanimous decision Tuesday was a turning point for Native American law cases at the High Court, amounting to a break from a reliance on “racist precedents” for guidance,  Mary Kathryn Nagle of Pipestem Law LLC, counsel for amicus National Indigenous Women’s Resource Center told Law360.

“Non-Indians…have had this expectation that they can go onto tribal lands and commit crimes with impunity, because the tribe won’t have criminal jurisdiction to prosecute them,” said Nagle, a citizen of the Cherokee Nation of Oklahoma.

Colette Routel of the Mitchell Hamline School of Law, counsel for amici Native American law and policy professors, called the 9-0 decision “pretty rare” for Native American cases.

“The court had the opportunity to decide this case on narrow grounds that may not have applied to all of Indian Country,” Routel told Law360.

“But the Supreme Court decided to render a decision that was broader than that and applies to all of Indian Country by deciding for the first time ever that the second Montana exception was satisfied.”

The original case concerns former highway safety officer James Saylor of the Crow Tribe of Montana who was prevented from temporarily detaining and search Joshua James Cooley, a non-Indian. Cooley was later arrested by county law enforcement and indicted on drug trafficking and firearm charges.

Explaining the decision, Supreme Court Justice Stephen Breyer cited a precedent from a 1981 case, Montana v. United States, in which the court ruled tribes couldn’t regulate hunting and fishing on reservations unless conduct threatens or directly impacts the health or wellbeing of the tribe.

“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 said.

“We see nothing in these provisions that shows that Congress sought to deny tribes the authority at issue, authority that rests upon a tribe’s retention of sovereignty as interpreted by Montana, and in particular its second exception.”

This summary was prepared by TCR Justice Reporting intern Gabriela Felitto

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June 2, 2021 at 07:31AM