Supreme Court rules tribal police can detain non-Natives

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Decision upholds status quo on CRST

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The U.S. Supreme Court handed down a ruling on June 1 that tribal police officers can stop, search, and temporarily detain non-Native Americans on tribal lands for potential violations of state or federal law.

The unanimous ruling reversed an appellate ruling in favor of a non-Native American motorist who was charged with drug-related crimes after a tribal officer searched his pickup truck on a public road that crosses the Crow Nation Reservation in Montana.

In February 2016, Crow Nation Police Officer James Saylor detained Joshua James Cooley, whom he found passed out behind the wheel of his vehicle, which was parked on the side of a road with the headlights on and motor running. Saylor noticed Cooley’s eyes were watery and blood-shot and there were two semi-automatic rifles on the front seat, so he ordered Cooley out of the truck, conducted a pat-down search and called for backup from other officers.

Saylor also saw a glass pipe and bag of methamphetamine in the truck. Upon their arrival, state and federal authorities instructed Saylor to seize the drug evidence and Cooley was eventually arrested on federal charges.

Cooley argued in court that the drug evidence seized by Saylor could not be introduced into court because a Crow Tribe police officer lacked the authority to investigate crimes by non-Indians. He included the argument that a 1978 Supreme Court ruling also limited the ability of tribal police officers to detain and search non-Indians in Indian Country.

Another case of a non-Native American defendant questioning tribal authority played out in Dewey County last year. Kenel rancher Wayne Hepper was charged in state court with eluding a police officer and failure to stop after he drove through a Cheyenne River Sioux Tribe COVID-19 checkpoint near Faith, was pursued by checkpoint deputies, and eventually stopped and was arrested by then-Deputy Sheriff Dan Assman southwest of Isabel.

In that matter, Fourth Circuit Judge Gordon Swanson decided Hepper’s case should be limited to only the criminal charge of failure to stop for an emergency vehicle and not the question of whether or not the tribe’s checkpoints were legal. He tossed out the eluding charge and called it a matter of civil law rather than criminal law.

Hepper was found guilty of failure to stop for an emergency vehicle, a Class 2 misdemeanor, and ordered to pay $68.50 in court costs, but was not ordered to pay a fine.

Previous Supreme Court decisions have held that tribal police have little authority over non-Native people, however, last week’s new ruling is based on another Supreme Court decision from 1981, declaring that a “tribe may retain power over the conduct of non-Indians within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or 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 on-going threats,” US Justice Stephen Breyer wrote for the Supreme Court. “Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.”

Cheyenne River Police Chief Chuck LeCompte said that although no formal cross-deputization or mutual aid agreement is in place, the tribal, county and state law enforcement agencies work well together and do so more often than the public may think. He doesn’t see the Supreme Court’s most recent decision changing that level of cooperation.

“If our department needs assistance with a case, most of the time it comes from the feds,” LeCompte said. “But if we need help with anything, whether it’s at an accident scene or something to do with an investigation, the county and state officers are really good about stepping up and helping where they’re needed ... and we do the same for them. We’re all on the same team, after all, with the same goal of protecting and serving the public. I know my department is grateful to have their assistance and we look forward to continuing to work together.”

Dewey County State’s Attorney Steve Aberle concurred with LeCompte, saying the high court’s decision should have no effect on how the Sheriff’s Department and adjoining agencies conduct their business and cooperate with one another, nor in how his office prosecutes cases

“The Supreme Court already addressed this in 1981,” he added. “I don’t foresee it changing anything we’re doing.”