Supreme Court Ruling Confirms Tribal Inherent Authority and Makes Tribal Communities Safer

By Dorothy Alther, CILS Executive Director

On June 1, 2021, the Supreme Court, in a unanimous decision, issued its ruling in U.S. v. Cooley finding that tribes have inherent authority to stop non-Indians on a right-of-way within the boundaries of an Indian reservation who are suspected of committing a state or federal crime. Once stopped, Tribal police officers, acting with probable cause, have the authority to conduct a limited investigation and if evidence of a crime is discovered, the Tribal officer can detain the non-Indian until he or she can be transferred or transported to the custody of state or federal law enforcement.  To those less familiar with Indian Country this ruling might seem to be so obvious that it was unnecessary for the Supreme Court to have announced it in a unanimous ruling.  However, while tribal authority over non-Indians on Tribal land has long been settled, that authority over non-Indians on non-Tribal lands, such as right-of-way, has been less clearly defined until now.

The Cooley case involved a Crow Tribal police officer who encountered a non-Indian stopped on a state highway within the Crow reservation early one morning.  After questioning the driver, the Tribal officer became suspicious of the driver’s story and explanation of where he been and why he was parked on the highway. After detaining the driver and a child who was in the vehicle, the Tribal officer conducted a search of the vehicle and discovered firearms, drugs, and drug paraphernalia. The driver and child were turned over to a local sheriff deputy and Bureau of Indian Affairs police officer, as was the evidence seized during the Tribal officer’s search.  A federal court dismissed the drug and firearm charges against the driver finding the Tribal officer lacked authority to conduct the search, therefore the evidence obtained during the search was inadmissible.  The case was appealed to the Ninth Circuit Court of Appeals, which upheld the suppression of the evidence ruling that Tribal authority over a non-Indian on non-Tribal lands, such as right-of-way, was limited to the Tribal officer first determining whether the driver is Indian. If the driver is non-Indian, a Tribal officer cannot search the driver’s person or vehicle unless there is “apparent or obvious” evidence that a state or federal crime has been committed.  If no such evidence is present, the Tribal officer must release the driver.

In overruling the Ninth Circuit Court, the Supreme Court applied a test created in the 1981 case of Montana v. United States, which provides two exceptions to the general rule that a tribe lacks jurisdiction over non-Indian on non-tribal lands within the reservation. The first exception is when the non-Indian consents to Tribal jurisdiction. Under the second exception, tribal jurisdiction can be extended to non-Indians on non-tribal lands if the person’s conduct “… threatens or has a direct effect on … the health or welfare of the tribe.”  The Supreme Court found that the Montana two exception fit the current case like a “glove.”

CILS paid close attention to this case due to its close work with Tribal governments, particularly Tribal police departments, and representing the California Tribal Police Chiefs Association (CTPCA).  The Ninth Circuit Court decision in Cooley raised practical and safety concerns for Tribal officers who routinely encounter non-Indians on the many state and county right-of-ways that crisscross California Indian Country. The United States, who prosecuted defendant Cooley, sought Supreme Court review of the Ninth Circuit decision seeking not only reversal but clarification on inherent Tribal authority over non-Indians found on non-Tribal lands within the reservation that have or are committing crimes.

CILS, on behalf of the CTPCA, filed an amicus (friend of the court) brief in partnership with the law firm Jenner & Block LLP in support of the federal government’s effort to overturn the Ninth Circuit Court’s decision.  Our brief focused on the day-to-day practical impacts the Ninth Circuit’s ruling would have on Tribal law enforcement officers and public safety in the tribal communities they are sworn to protect. The Supreme Court took note of our argument that negotiating county MOUs or other cross-deputations agreements are not the “be all” solution to Ninth Circuit Court’s ruling.

The Supreme Court’s decision in Cooley has given Tribes, their Tribal police officers the clarity needed when encountering non-Indians committing crimes on non-Tribal lands within a Tribe’s reservation.  The decision also establishes additional definition on the reach of inherent Tribal authority over non-Indians in general and to the application of the Montana two exception. The Supreme Court decision is clearly a win for Tribes, Tribal law enforcement and to Tribal community safety.

The U.S. v. Cooley decision here

If you have further questions regarding the holding or the impacts of the decision on your tribal law enforcement department please contact Dorothy Alther at dalther@calindian.org or Jedd Parr jparr@calindian.org.

 

Historical Perspective: CILS’ Protection of Tribal Fishing Rights

By Jay Petersen, CILS Sacramento office Senior Staff Attorney

Over the years, CILS has played an important role in protecting Tribal fishing rights against large-scale irrigation, hydroelectric power, and surface water storage needs.

In the 1980’s, California and the United States mounted numerous prosecutions against Tribal members fishing in the Klamath River under the pretext of protecting dwindling fish populations. State and federal courts appointed CILS attorneys from the Oakland, Ukiah, and Eureka offices to defend Tribal members in felony prosecutions based on restrictions against some fishing methods and off-Reservation fish sales.  CILS’ successful defense work in these prosecutions helped end the unwarranted and unlawful prosecution of Tribal members harvesting their fish on their Reservation. One CILS case stands out.  (People v. McCovey)

People v. McCovey: Backstory

The Klamath River felony prosecutions took place against the backdrop of a series of United States Supreme Court decisions from the 1970’s to the early 1980’s that vindicated Tribal fishing rights against the rights of competing fishing interests and significantly limited the scope of state restrictions against Tribal fishing. It is believed these cases, arising in Washington State, encountered more strenuous resistance to their enforcement than any series of United States Supreme Court decisions other than the 1960’s racial desegregation decisions.

The 1980’s felony prosecutions grew out of strong resistance to Tribal fishing rights. In the McCovey case, CILS attorneys represented a Yurok fisherman, Walter McCovey Jr. He was charged in State court with felonies based on allegations that he sold fish off-reservation in violation of state law. The California Supreme Court decided that McCovey’s felony prosecution was unsupported by any evidence showing adverse impacts of Tribal fishing on California’s fish resources. As a result, the Court dismissed the felony charges against McCovey, finding that California’s prosecution was incompatible with Tribal fishing rights and prohibited by federal law.

 Outcomes and Lessons Learned

The McCovey decision cemented the idea that protecting threatened fish populations cannot be achieved through the random felony prosecution of Tribal members. Tribes must be involved in managing their fishing resources, and effective Tribal resource management can prevent adverse impacts to competing fishing interests like California’s.

The current climate disruption and drought cycles will continue to pit the protection of threatened fish populations and Tribal fishing rights against competing fishing interests. Thanks to CILS’ representation in the McCovey case and in similar cases, felony prosecutions of Tribal members cannot be used as a primary conservation tool to protect the fish populations that are so central to Tribal culture and economics in the Klamath River Basin.

  • See People v. McCovey 36 Cal.3d. 521 (1984) [State criminal prosecution of Tribal member for off-reservation fish sales alleged to violate state law dismissed for lack of jurisdiction].

AB 1869 – Eliminating Criminal Adminstrative Fees

This bill repeals the authority to collect many of these fees, among others. The bill makes the unpaid balance of these court-imposed costs unenforceable and uncollectible and requires any portion of a judgment imposing those costs to be vacated. If you qualify or have questions contact any CILS office nearest to you.

AB 1869 Flyer

Efforts at Justice for Missing and Murdered Native Women

By Jedd Parr, CILS Sacramento office Directing Attorney

Over the last several years, the prevalence of violence suffered by Native Americans, particularly at the hands of non-Indian perpetrators, has finally become more widely acknowledged.  Violence affects both men and women, but especially women.  Although the data can be incomplete, it has been reported that Native American women are afflicted by violence at a frequency up to ten times the national average.  According to the National Institute of Justice, over 84% of Native women have experienced violence at least once in their lifetimes – nearly 40% within the past year alone.[1]

One of the most troubling issues in this area is missing and murdered Native women whose deaths or disappearances go unsolved.  Official data on just how often this occurs is lacking, but anecdotally, people familiar with the problem know it is all too frequent.

There are several contributing factors.  On Indian reservations, one significant roadblock is that tribes generally lack criminal jurisdiction over non-Indians,[2] per the Supreme Court’s 1978 decision in Oliphant.[3]  This decision makes tribal communities reliant on outside federal or state law enforcement agencies for the apprehension and prosecution of crimes committed by non-Indians.  Complex jurisdictional issues, absence of community trust in external law enforcement, and high rates of cases being declined for prosecution all add to many of these cases going unsolved.

In California, a state subject to Public Law 280, confusion over jurisdictional issues often leads to a decreased law enforcement presence on Indian reservations in general, as well as a lack of communication between tribes and state and local law enforcement agencies.  However, a study by the Urban Indian Health Institute identified numerous unsolved cases in off-reservation, urban settings.[4]  This data suggests the problem is not just rooted in the above on-reservation factors but in broader concerns such as unreliable data collection systems, racial misclassifications, and bias in media coverage of cases involving Indian women.

Recently there have been efforts on the national and state level to address some of these concerns.  In November 2019, a federal Task Force was convened under the name “Operation Lady Justice.”  Its stated goals include consultations with tribes, model protocols such as best practices for law enforcement and improved data collection and use, and public education and outreach.[5]  In September 2020, California passed Assembly Bill 3099 (Ramos), which sets forth similar goals.  Although these measures have only just begun, with outstanding questions about whether they are comprehensive enough and how effective they can ultimately be, one can hope they represent at least the first steps towards confronting this tragic crisis.

[1] https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men#table2

[2] With the exception of “special domestic violence criminal jurisdiction” under the Violence Against Women Act, which requires a number of potentially costly expenditures by tribes before it can be exercised.

[3] Oliphant v. Suquamish Indian Tribe (1978) 435 U.S. 191.

[4] https://www.uihi.org/wp-content/uploads/2018/11/Missing-and-Murdered-Indigenous-Women-and-Girls-Report.pdf

[5] https://operationladyjustice.usdoj.gov/

Tribal Courts in the Time of Covid

Please join two of NCTCC’s esteemed judges, Hon. Abby Abinanti and Hon. Michelle Krieger, to learn about how their Tribal Courts have responded to COVID and how “virtual” sessions have become the new reality in the courts of Indian Country. This is the latest offering in NCTCC’S popular, free Zoom training series.

This training will contain information specific to Tribal courts in which Judge Abinanti and Judge Krieger hear cases: Yurok Tribe, Bear River Band of the Rohnerville Rancheria, Hoopa Valley Tribe, and Karuk Tribe. The Judges do not intend to speak for all Tribal courts in Indian Country. 

Please join us at 1:00 pm on January 15, 2021. After you register for the event you will receive Zoom login information.

This training is made possible by a generous grant from California Rural Indian Health Board.