Supreme Court allows tribal law enforcement to search non-tribal members

Clair McFarland, Riverton Ranger via Wyoming News Exchange
Posted 6/9/21

The United States Supreme Court has ruled that tribal law enforcement officers can search non-tribal offenders on public roadways that pass through Indian reservations.

This item is available in full to subscribers.

Please log in to continue

Log in

Supreme Court allows tribal law enforcement to search non-tribal members


RIVERTON — The United States Supreme Court has ruled that tribal law enforcement officers can search non-tribal offenders on public roadways that pass through Indian reservations. 

The June 1 opinion was unanimous, with Justice Stephen Breyer writing the opinion. Breyer referenced a drug and weapons case involving defendant Joshua James Cooley, who was stopped by Crow Police Department officer James Saylor on the Crow Reservation in Montana, on a public highway. 

Saylor found Cooley had watery, bloodshot eyes, two semi-automatic rifles on his vehicle’s front seat, and a glass pipe and plastic bag containing methamphetamine. 

As is common procedure on that reservation and on the Wind River Indian Reservation as well, Saylor called for county authorities to continue the investigation, while he detained Cooley. 

After the others arrived, Saylor was directed to seize illegal items, during which time he discovered more meth. 

While prosecuted for the 2016 offense, Cooley argued for and won a suppression of drug evidence, on the grounds that Saylor had no right to search for additional items during his seizure of plain-sight contraband. 

When the government appealed the suppression, the Ninth Circuit appellate court agreed with Cooley. 

But the U.S. Supreme Court disagreed. 

“As a general proposition,” Breyer wrote, “the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe.” 

Locally, the Wind River Police Department, which is organized by the Bureau of Indian Affairs, has upheld a practice of stopping non-native offenders seen in a criminal offense, and calling Fremont County Sheriff ’s Office or Wyoming Highway Patrol personnel to continue the investigation and, if necessary, arrest the offender. 

The high court’s opinion now has granted tribal police the right to search the offender, but only if the officer has a reason to believe a search is necessary to prevent danger to himself or others. 

“A tribe retains inherent authority over the conduct of non-Indians on the reservation when the conduct threatens or has some direct effect on the health or welfare of the tribe,” Breyer continued. 

The Supreme Court also gave tribal officers the right to transport non-native offenders, and detain them “temporarily.” 

The decision does not appear to give tribal police, distinctly, the right to detain non-Indians in tribal jails, but that issue may be clarified by later rulings. 

Justice Samuel Alito wrote in his concurring remarks that tribal officers with probable cause can detain a motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene.” 

“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,” the opinion reads, referencing drunk drivers, transporters of contraband, and other offenders. 

Still, tribal jurisdiction over non-natives is limited to temporary detention, a search if safety demands it, then a transfer to state authorities – because, non-natives “have no part in tribal government and no say in the laws and regulations that govern tribal territory.” 

Before being asked by the Eastern Shoshone Tribe to abandon the effort, state Sen. Cale Case, R-Lander, and a contingent of other legislators serving on the Select Committee on Tribal Relations penned a bill draft that would have given the WRPD the ability to jail non-Indian offenders for a “reasonable” amount of time. 

The lawmakers had hoped that local courts would clarify, if needed, just how long is reasonable.

Although the right to search offenders was not the chief mission of the bill draft, it would have been permitted under the cross-deputization as well. 

Reflecting on the decision, Case said it “doesn’t seem to change much” as far as local process, except for the added right of tribal officers to search the offender before state law enforcement arrive on scene. 

“It kind of clarifies that they can stop someone for an offense and hold them until non-native law enforcement got there. I guess the issue of the search is pretty significant, but to me, if search is in the context of only holding them until someone else got there, I’m not sure that makes any difference.”