In United States v. Cooley, a Ninth Circuit panel denied a petition for rehearing en banc, holding that a tribal officer, who was not cross-deputized, could neither search nor detain a non-Indian on a federal or state highway right-of-way through the reservation unless that individual had committed an “apparent” crime in the officer’s presence. Narrowly defining tribal police authority, the panel ruled that the officer conducted an extra-jurisdictional search and seizure. In arriving at this conclusion, the panel refused to recognize that the Tribe’s sovereignty affords its law enforcement agencies the authority to investigate those who imperil public order on the reservation. Its standard for search and detention posed administrability challenges for tribal law enforcement and endangered the millions of non-Indians and Indians living on tribal lands in the process. Fortunately, the Supreme Court recently overruled the Ninth Circuit’s decision. A unanimous Court held that a tribal police officer could temporarily detain and search non-Indian individuals using public rights-of-way crossing the reservation for violations of state or federal law. The decision reaffirmed that the Tribe retained its inherent sovereign authority to regulate non-Indian conduct that threatens the Tribe’s welfare under the second exception in Montana v. United States. In doing so, it averted the disastrous consequences of the lower court’s decision, prioritized workable standards for tribal officers, preserved the Tribe’s ability to protect its members, and for the first time, offered insight into the Court’s criteria for what fits Montana’s second exception.

Pages 72-88



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