U.S. Supreme Court Decision Reinforces Tribal Sovereignty

As Appeared in News from Sokaogon Chippewa Community

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On June 1, 2021, the United States Supreme Court unanimously ruled in favor of Tribes in a case about the authority of Tribal law enforcement in situations where Non-Native people may pose a threat to the health and welfare of the Tribe.

According to the opinion by Justice Stephen Breyer, the court ruled that Tribal law enforcement can stop and search a Non-Native person “traveling on public rights-of-way running through a reservation for potential violations of state or federal law.” The ruling vacated the Court of Appeals for the Ninth Circuit’s ruling and remanded the case for further proceedings based on an exception in the 1981 Supreme Court ruling Montana v. United States.

In Justice Breyer’s opinion of the Court, he wrote, "Long ago we described Indian Tribes as “distinct, independent political communities” exercising sovereign authority.” “… Here, no treaty or statute has explicitly divested Indian Tribes of the policing authority at issue. We turn to precedent to determine whether a Tribe has retained inherent sovereign authority to exercise that power. In answering this question, our decision in Montana v. United States, 450 U. S. 544 (1981), is highly relevant."

Justice Breyer's opinion continued, "... we made clear that Montana’s 'general proposition' was not an absolute rule. We set forth two important exceptions. First, we said that a "Tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the Tribe or its Members, through commercial dealing, contracts, leases, or other arrangements." Second, we said 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 second exception we have just quoted fits the present case, almost like a glove. The phrase speaks of the protection of the 'health or welfare 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.”

Andrew Kennard with Native News Online wrote, "Breyer’s opinion lays out the case and relevant court rulings. Due to the 1978 ruling Oliphant v. Suquamish Tribe, Tribes do not have jurisdiction over most crimes committed by Non-Indigenous people on reservations. The now overruled Ninth Circuit judgement concluded that Tribal officers can investigate Non-Indigenous people on public roads “only if (1) the officer first tried to determine whether ‘the person is an Indian,’ and, if the person turns out to be a Non-Indian, (2) it is ‘apparent’ that the person has violated state or federal law,” according to Breyer’s opinion. Native American Rights Fund staff attorney Dan Lewerenz said these Ninth Circuit’s standards were “very practically unworkable.”

“They would have almost required Tribal officers to look the other way if they didn’t have 100 percent proof right off the bat that they were dealing with an Indian who had committed a crime,” Lewerenz said. “And if there was any ambiguity, then they’d have to let people go, and that puts Tribal communities at risk. And the Supreme Court said there’s a better way to think about this. And that better way will mean more protection for Tribal communities.”

The National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) applauded the decision.

“Protecting our Tribal citizens is one of the most basic services we can provide, and today every member of the Supreme Court agreed,” said Fawn Sharp, President of the National Congress of American Indians.

“This 9-0 decision is one of the strongest affirmations of Tribal sovereignty in a generation and helps secure Native communities. For too long, Non-Native criminals escaped justice from crimes committed on Tribal lands, but today’s unanimous decision in United States v. Cooley is monumental in changing that. We applaud this decision and look forward to advocating for our member Tribes as they improve safety and security in Tribal communities as a result of this new precedent.”