By: Mikaela Koski*
Abstract
American Indian reservations make up more than 56 million acres in the United States. The rules governing enforcement of criminal law in Indian Country are complex. While tribal law enforcement officers have authority within a tribe’s reservation, they have reduced authority on public roads that run through the reservations, especially when they interact with an individual who lacks Indian status. The Supreme Court recently ruled on the extent of this reduced tribal law enforcement authority in United States v. Cooley.
In 2019, the Ninth Circuit created a rule in Cooley that restricted a tribal law enforcement officer’s ability to conduct limited stops and related searches on public roads. To continue an interaction with a stopped individual who lacked Indian status, the tribal officer must have observed an “obvious” or “apparent” law violation in the time it took to inquire about the person’s Indian status. The novel “obvious” or “apparent” standard, a higher standard of proof than both reasonable suspicion and probable cause, never received further elaboration from the Ninth Circuit. The Supreme Court vacated the Ninth Circuit’s Cooley decision in June 2021.
This Comment argues Congress should codify the inherent tribal authority recognized by the Supreme Court in Cooley. After first discussing tribal sovereignty and authority, this Comment explains competing interpretations articulated in the various Cooley decisions, from the district court to the Supreme Court. It then argues that Congress should codify and, therefore, preserve a tribal officer’s inherent authority to temporarily stop and search a non-Indian on a public road running through a reservation. The legislation should also clarify the relevant standard of proof for such interactions, and affirm the validity of the second Montana exception, related to public safety, in the criminal context.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2022.