United States v. Cooley

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 345–356
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 1, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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OCTOBER
TERM, 2020
345
Syllabus
UNITED STATES v. COOLEY
certiorari
to the united states court of appeals for
the ninth circuit
No. 19–1414. Argued March 23, 2021—Decided June 1, 2021
Late one night Offcer James Saylor of the Crow Police Department ap-
proached a truck parked on United States Highway 212, a public right-
of-way within the Crow Reservation in the State of Montana. Saylor
spoke to the driver, Joshua James Cooley, and observed that Cooley
appeared to be non-native and had watery, bloodshot eyes. Saylor also
noticed two semiautomatic rifes lying on Cooley's front seat. Fearing
violence, Saylor ordered Cooley out of the truck and conducted a pat-
down search. Saylor also saw in the truck a glass pipe and a plastic
bag that contained methamphetamine. Additional offcers, including an
offcer with the federal Bureau of Indian Affairs, arrived on the scene
in response to Saylor's call for assistance. Saylor was directed to seize
all contraband in plain view, leading Saylor to discover more metham-
phetamine. Saylor took Cooley to the Crow Police Department where
federal and local offcers further questioned Cooley. Subsequently, a
federal grand jury indicted Cooley on drug and gun offenses. The Dis-
trict Court granted Cooley's motion to suppress the drug evidence.
The Ninth Circuit affrmed. It reasoned that a tribal police offcer
could stop (and hold for a reasonable time) a non-Indian suspect if the
offcer frst tries to determine whether the suspect is non-Indian and, in
the course of doing so, fnds an apparent violation of state or federal
law. The Ninth Circuit concluded that Saylor had failed to make that
initial determination here.
Held: A tribal police offcer has authority to detain temporarily and to
search non-Indian persons traveling on public rights-of-way running
through a reservation for potential violations of state or federal law.
Pp. 349–355.
(a) As a “general proposition,” the “inherent sovereign powers of an
Indian tribe do not extend to the activities of nonmembers of the tribe.”
Montana v. United States, 450 U. S. 544, 565. The Court identifed in
Montana two exceptions to that general rule, the second of which fts
almost like a glove here: A tribe retains inherent authority over the
conduct of non-Indians on the reservation “when that conduct threatens
or has some direct effect on . . . the health or welfare of the tribe.” Id.,
at 566. The conclusion that Saylor's actions here fall within Montana's
second exception is consistent with the Court's prior Montana cases.

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346 UNITED
STATES v. COOLEY
Syllabus
See Strate v. A–1 Contractors, 520 U. S. 438, 456 n. 11; see also Atkinson
Trad
ing Co. v. Shirley, 532 U. S. 645, 651. Similarly, the Court has held
that when the “jurisdiction to try and punish an offender rests outside
the tribe, tribal offcers may exercise their power to detain the offender
and transport him to the proper authorities.” Duro v. Reina, 495 U. S.
676, 697. Ancillary to the authority to transport a non-Indian suspect
is the authority to search that individual prior to transport, as several
state courts and other federal courts have held. While that authority
has sometimes been traced to a tribe's right to exclude non-Indians,
tribes “have inherent sovereignty independent of th[e] authority arising
from their power to exclude,” Brendale v. Con federated Tribes and
Bands of Yakima Nation, 492 U. S. 408, 425 (plurality opinion), and here
Montana's second exception recognizes that inherent authority. In ad-
dition, recognizing a tribal offcer's authority to investigate potential
violations of state or federal laws that apply to non-Indians whether
outside a reservation or on a public right-of-way within the reservation
protects public safety without implicating the concerns about applying
tribal laws to non-Indians noted in the Court's prior cases. Finally, the
Court doubts the workability of the Ninth Circuit's standards, which
would require tribal offcers frst to determine whether a suspect is non-
Indian and, if so, to temporarily detain a non-Indian only for “apparent”
legal violations. 919 F. 3d 1135, 1142. The frst requirement produces
an incentive to lie. The second requirement introduces a new standard
into search and seizure law and creates a problem of interpretation that
will arise frequently given the prevalence of non-Indians in Indian res-
ervations. Pp. 349–353.
(b) Cooley's arguments against recognition of inherent tribal sover-
eignty here are unpersuasive. While the Court agrees the Montana
exceptions should not be interpreted so as to “ `swallow the rule,' ”
Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S.
316, 330, this case does not raise that concern due to the close ft be-
tween Montana's second exception and the facts here. In addition, the
Court sees nothing in existing federal cross-deputization statutes that
suggests Congress has sought to deny tribes the authority at issue. To
the contrary, existing legislation and executive action appear to operate
on the assumption that tribes have retained this authority. Pp. 354–355.
919 F. 3d 1135, vacated and remanded.
Breyer, J., delivered the opinion for a unanimous Court. Alito, J.,
fled a concurring opinion, post, p. 355.
Deputy Solicitor General Feigin argued the cause for the
United States. With him on the briefs were Acting Solici-

Cite
as: 593 U. S. 345 (2021)
347
Opinion of the Court
tors General Wall and Prelogar, Acting Assistant Attorney
Gene
ral Burns, Frederick Liu, and David M. Lieberman.
Eric R. Henkel, by appointment of the Court, 592 U. S.
–––, argued the cause for respondent. With him on the brief
were John Rhodes and Jeffrey T. Green.*
Justice Breyer delivered the opinion of the Court.
The question presented is whether an Indian tribe's police
offcer has authority to detain temporarily and to search a
non-Indian on a public right-of-way that runs through an In-
dian reservation. The search and detention, we assume,
took place based on a potential violation of state or federal
law prior to the suspect's transport to the proper nontribal
authorities for prosecution.
We have previously noted that a tribe retains inherent
sovereign authority to address “conduct [that] threatens or
has some direct effect on . . . the health or welfare of the
tribe.” Montana v. United States, 450 U. S. 544, 566 (1981);
see also Strate v. A–1 Contractors, 520 U. S. 438, 456, n. 11
*Briefs of amici curiae urging reversal were fled for the Cayuga Na-
tion et al. by Charles W. Galbraith, Keith M. Harper, Sam Hirsch,
Zachary C. Schauf, Dorothy Alther, and Jedediah Parr; for Current and
Former Members of Congress by Benjamin J. Horwich and April Youpee-
Roll; for Indian Law and Policy Professors by Colette Routel and Heather
Whiteman Runs Him; for the National Congress of American Indians
et al. by Jennifer H. Weddle, Troy A. Eid, and Paul Spruhan; for the
National Indigenous Women's Resource Center et al. by Mary Kathryn
Nagle; for the Ute Indian Tribe of the Uintah and Ouray Reservation by
Jeffrey S. Rasmussen and Frances C. Bassett; and for Dennis K. Burke
et al. by Eric B. Boettcher and Eric J. Magnuson. Pete Heidepriem,
Scott N. Heidepriem, Matthew A. Tysdal, and Seth C. Pearman fled a
brief for the Lower Brule Sioux Tribe et al. as amici curiae urging
vacatur.
Briefs of amici curiae urging affrmance were fled for the Citizens
Equal Rights Foundation by Lawrence A. Kogan; for the National Associa-
tion of Criminal Defense Lawyers by Jon M. Sands, Keith J. Hilzendeger,
and Barbara Bergman; and for the Ninth Circuit Federal Public and Com-
munity Defenders by Daniel L. Kaplan.
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348 UNITED
STATES v. COOLEY
Opinion of the Court
(1997). We believe this statement of law governs here.
And
we hold the tribal offcer possesses the authority at
issue.
I
Late at night in February 2016, Offcer James Saylor of the
Crow Police Department was driving east on United States
Highway 212, a public right-of-way within the Crow Reser-
vation, located within the State of Montana. Saylor saw a
truck parked on the westbound side of the highway. Believ-
ing the occupants might need assistance, Saylor approached
the truck and spoke to the driver, Joshua James Cooley.
Saylor noticed that Cooley had “watery, bloodshot eyes” and
“appeared to be non-native.” App. to Pet. for Cert. 95a.
Saylor also noticed two semiautomatic rifes lying on the
front seat. Eventually fearing violence, Saylor ordered
Cooley out of the truck and conducted a patdown search.
He called tribal and county offcers for assistance. While
waiting for the offcers to arrive, Saylor returned to the
truck. He saw a glass pipe and plastic bag that contained
methamphetamine. The other offcers, including an offcer
with the federal Bureau of Indian Affairs, then arrived.
They directed Saylor to seize all contraband in plain view,
leading him to discover more methamphetamine. Saylor
took Cooley to the Crow Police Department where federal
and local offcers further questioned Cooley.
In April 2016, a federal grand jury indicted Cooley on drug
and gun offenses. See 21 U. S. C. § 841(a)(1); 18 U. S. C.
§ 924(c)(1)(A). The District Court granted Cooley's motion
to suppress the drug evidence that Saylor had seized. It
reasoned that Saylor, as a Crow Tribe police offcer, lacked
the authority to investigate nonapparent violations of state
or federal law by a non-Indian on a public right-of-way cross-
ing the reservation.
The Government appealed. See 18 U. S. C. § 3731. The
Ninth Circuit affrmed the District Court's evidence suppres-
sion determination. The Ninth Circuit panel wrote that
tribes “cannot exclude non-Indians from a state or federal
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349
Opinion of the Court
highway” and “lack the ancillary power to investigate non-
Indians
who are using such public rights-of-way.” 919 F. 3d
1135, 1141 (2019). It added that a tribal police offcer none-
theless could stop (and hold for a reasonable time) a non-
Indian suspect, but only if (1) the offcer frst tried to deter-
mine 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. Id., at 1142. Non-
Indian status, the panel added, can usually be determined
by “ask[ing] one question.” Ibid. (internal quotation marks
omitted). Because Saylor had not initially tried to deter-
mine whether Cooley was an Indian, the panel held that the
lower court correctly suppressed the evidence.
The Ninth Circuit denied the Government's request for re-
hearing en banc. We then granted the Government's peti-
tion for certiorari in order to decide whether a tribal police
offcer has authority to detain temporarily and to search non-
Indians traveling on public rights-of-way running through a
reservation for potential violations of state or federal law.
II
Long ago we described Indian tribes as “distinct, inde-
pendent political communities” exercising sovereign author-
ity. Worcester v. Georgia, 6 Pet. 515, 559 (1832). Due to
their incorporation into the United States, however, the
“sovereignty that the Indian tribes retain is of a unique and
limited character.” United States v. Wheeler, 435 U. S. 313,
323 (1978). Indian tribes may, for example, determine tribal
membership, regulate domestic affairs among tribal mem-
bers, and exclude others from entering tribal land. See,
e. g., Plains Commerce Bank v. Long Family Land & Cattle
Co., 554 U. S. 316, 327–328 (2008). On the other hand, owing
to their “dependent status,” tribes lack any “freedom inde-
pendently to determine their external relations” and cannot,
for instance, “enter into direct commercial or governmental
relations with foreign nations.” Wheeler, 435 U. S., at 326.
Tribes also lack inherent sovereign power to exercise crimi-
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350 UNITED
STATES v. COOLEY
Opinion of the Court
nal jurisdiction over non-Indians. See Oliphant v. Suqua-
mish
Tribe, 435 U. S. 191, 212 (1978). In all cases, tribal
authority remains subject to the plenary authority of Con-
gress. See, e. g., Michigan v. Bay Mills Indian Commu-
nity, 572 U. S. 782, 788 (2014).
Here, no treaty or statute has explicitly divested Indian
tribes of the policing authority at issue. We turn to prece-
dent to determine whether a tribe has retained inherent sov-
ereign authority to exercise that power. In answering this
question, our decision in Montana v. United States, 450 U. S.
544 (1981), is h igh ly relevant. In that case we asked
whether a tribe could regulate hunting and fshing by non-
Indians on land that non-Indians owned in fee simple on a
reservation. We held that it could not. We supported our
conclusion by referring to our holding in Oliphant that a
tribe could not “exercise criminal jurisdiction over non-
Indians.” Montana, 450 U. S., at 565. We then wrote that
the “principles on which [Oliphant] relied support the gen-
eral proposition that the inherent sovereign powers of an
Indian tribe do not extend to the activities of nonmembers
of the tribe.” Ibid.
At the same time, we made clear that Montana's “general
proposition” was not an absolute rule. Ibid. We set forth
two important exceptions. First, we said that a “tribe may
regulate, through taxation, licensing, or other means, the ac-
tivities of nonmembers who enter consensual relationships
with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements.” Ibid. Second,
we said that a “tribe may also retain inherent power to exer-
cise 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 eco-
nomic security, or the health or welfare of the tribe.” Id.,
at 566 (emphasis added).
The second exception we have just quoted fts the present
case, almost like a glove. The phrase speaks of the protec-
tion of the “health or welfare of the tribe.” To deny a tribal
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351
Opinion of the Court
police offcer authority to search and detain for a reasonable
ti
me any person he or she believes may commit or has com-
mitted a crime would make it diffcult for tribes to protect
themselves against ongoing threats. Such threats may be
posed by, for instance, non-Indian drunk drivers, transport-
ers of contraband, or other criminal offenders operating on
roads within the boundaries of a tribal reservation. As the
Washington Supreme Court has noted, “[a]llowing a known
drunk driver to get back in his or her car, careen off down
the road, and possibly kill or injure Indians or non-Indians
would certainly be detrimental to the health or welfare of
the Tribe.” State v. Schmuck, 121 Wash. 2d 373, 391, 850
P. 2d 1332, 1341, cert. denied, 510 U. S. 931 (1993).
We have subsequently repeated Montana's proposition
and exceptions in several cases involving a tribe's jurisdic-
tion over the activities of non-Indians within the reservation.
See, e. g., Plains Commerce Bank, 554 U. S., at 328–330; Ne-
vada v. Hicks, 533 U. S. 353, 358–360, and n. 3 (2001); South
Dakota v. Bourland, 508 U. S. 679, 694–696 (1993); Duro v.
Reina, 495 U. S. 676, 687–688 (1990); Brendale v. Confeder-
ated Tribes and Bands of Yakima Nation, 492 U. S. 408,
426–430 (1989) (plurality opinion). In doing so we have re-
served a tribe's inherent sovereign authority to engage in
policing of the kind before us. Most notably, in Strate v.
A–1 Contractors, 520 U. S. 438, 456–459 (1997), we relied
upon Montana's general jurisdiction-limiting principle to
hold that tribal courts did not retain inherent authority to
adjudicate personal-injury actions against nonmembers of
the tribe based upon automobile accidents that took place on
public rights-of-way running through a reservation. But we
also said:
“We do not here question the authority of tribal police
to patrol roads within a reservation, including rights-of-
way made part of a state highway, and to detain and
turn over to state offcers nonmembers stopped on the
highway for conduct violating state law. Cf. State v.
Schmuck, 121 Wash. 2d 373, 390, 850 P. 2d 1332, 1341 (en
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352 UNITED
STATES v. COOLEY
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banc) (recognizing that a limited tribal power `to stop
and
detain alleged offenders in no way confers an un-
limited authority to regulate the right of the public to
travel on the Reservation's roads'), cert. denied, 510
U. S. 931 (1993).” 520 U. S., at 456, n. 11.
We reiterated this point in Atkinson Trading Co. v. Shir-
ley, 532 U. S. 645, 651 (2001), there confrming that Strate
“did not question the ability of tribal police to patrol the
highway.”
Similarly, we recognized in Duro that “[w]here jurisdiction
to try and punish an offender rests outside the tribe, tribal
offcers may exercise their power to detain the offender and
transport him to the proper authorities.” 495 U. S., at 697.
The authority to search a non-Indian prior to transport is
ancillary to this authority that we have already recognized.
Cf. Ortiz-Barraza v. United States, 512 F. 2d 1176, 1180–1181
(CA9 1975). Indeed, several state courts and other federal
courts have held that tribal offcers possess the authority at
issue here. See, e. g., Schmuck, 121 Wash. 2d, at 390, 850
P. 2d, at 1341; State v. Pamperien, 156 Ore. App. 153, 155–
159, 967 P. 2d 503, 504–506 (1998); State v. Ryder, 98 N. M.
453, 456, 649 P. 2d 756, 759 (1982); see also United States v.
Terry, 400 F. 3d 575, 579–580 (CA8 2005); Ortiz-Barraza, 512
F. 2d, at 1180–1181; see generally F. Cohen, Handbook of
Federal Indian Law § 9.07, p. 773 (2012). To be sure, in
Duro we traced the relevant tribal authority to a tribe's
right to exclude non-Indians from reservation land. See 495
U. S., at 696–697. But tribes “have inherent sovereignty in-
dependent of th[e] authority arising from their power to ex-
clude,” Brendale, 492 U. S., at 425 (plurality opinion), and
here Montana's second exception recognizes that inherent
authority.
We also note that our prior cases denying tribal jurisdic-
tion over the activities of non-Indians on a reservation have
rested in part upon the fact that full tribal jurisdiction would
require the application of tribal laws to non-Indians who do
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353
Opinion of the Court
not belong to the tribe and consequently had no say in creat-
i
ng the laws that would be applied to them. See Duro, 495
U. S., at 693 (noting the concern that tribal-court criminal
jurisdiction over nonmembers would subject such defendants
to “trial by political bodies that do not include them”); Plains
Commerce Bank, 554 U. S., at 337 (noting that nonmembers
“have no part in tribal government” and have “no say in the
laws and regulations that govern tribal territory”). Saylor's
search and detention, however, do not subsequently subject
Cooley to tribal law, but rather only to state and federal laws
that apply whether an individual is outside a reservation or
on a state or federal highway within it. As the Solicitor
General points out, an initial investigation of non-Indians'
“violations of federal and state laws to which those non-
Indians are indisputably subject” protects the public without
raising “similar concerns” of the sort raised in our cases lim-
iting tribal authority. Brief for United States 24–25.
Finally, we have doubts about the workability of the stand-
ards that the Ninth Circuit set out. Those standards re-
quire tribal offcers frst to determine whether a suspect is
non-Indian and, if so, allow temporary detention only if the
violation of law is “apparent.” 919 F. 3d, at 1142. The frst
requirement, even if limited to asking a single question,
would produce an incentive to lie. The second requirement—
that the violation of law be “apparent”—introduces a new
standard into search and seizure law. Whether, or how, that
standard would be met is not obvious. At the same time,
because most of those who live on Indian reservations are
non-Indians, this problem of interpretation could arise fre-
quently. See, e. g., Brief for Former United States Attor-
neys as Amici Curiae 24 (noting that 3.5 million of the 4.6
million people living in American Indian areas in the 2010
census were non-Indians); Brief for National Indigenous
Women's Resource Center et al. as Amici Curiae 19–20 (not-
ing that more than 70% of residents on several reservations
are non-Indian).

354 UNITED
STATES v. COOLEY
Opinion of the Court
III
In
response, Cooley cautions against “inappropriately ex-
pand[ing] the second Montana exception.” Brief for Re-
spondent 24–25 (citing Atkinson, 532 U. S., at 657, n. 12, and
Strate, 520 U. S., at 457–458). We have previously warned
that the Montana exceptions are “limited” and “cannot be
constr ued i n a manner that wou ld swa l low the r u le. ”
Plains Commerce Bank, 554 U. S., at 330 (internal quotation
marks omitted). But we have also repeatedly acknowledged
the existence of the exceptions and preserved the possibility
that “certain forms of nonmember behavior” may “suff-
ciently affect the tribe as to justify tribal oversight.” Id.,
at 335. Given the close ft between the second exception
and the circumstances here, we do not believe the warnings
can control the outcome.
Cooley adds that federal cross-deputization statutes al-
ready grant many Indian tribes a degree of authority to en-
force federal law. See Brief for Respondent 28–30; see gen-
erally 25 U. S. C. §§ 2803(5), (7) (Secretary of the Interior
may authorize tribal offcers to “make inquiries of any per-
son” related to the “carrying out in Indian country” of fed-
eral law and to “perform any other law enforcement related
duty”); § 2805 (Secretary of the Interior may promulgate
rules “relating to the enforcement of ” federal criminal law
in Indian country); 25 CFR § 12.21 (2019) (Bureau of Indian
Affairs may “issue law enforcement commissions” to tribal
police offcers “to obtain active assistance” in enforcing
federal criminal law). Because Congress has specifed the
scope of tribal police activity through these statutes, Cooley
argues, the Court must not interpret tribal sovereignty to
fll any remaining gaps in policing authority. See Brief for
Respondent 12.
We are not convinced by this argument. The statutory
and regulatory provisions to which Cooley refers do not eas-
ily ft the present circumstances. They are overinclusive,
for instance encompassing the authority to arrest. See
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355
Alito, J., concurring
§ 2803(3). And they are also underinclusive. Because these
prov
isions do not govern violations of state law, tribes would
still need to strike agreements with a variety of other au-
thorities to ensure complete coverage. See Brief for Ca-
yuga Nation et al. as Amici Curiae 7–8, 25–27. More
broadly, cross-deputization agreements are diffcult to reach,
and they often require negotiation between other authorities
and the tribes over such matters as training, reciprocal au-
thority to arrest, the “geographical reach of the agreements,
the jurisdiction of the parties, liability of offcers performing
under the agreements, and sovereign immunity.” Fletcher,
Fort, & Singel, Indian Country Law Enforcement and Coop-
erative Public Safety Agreements, 89 Mich. Bar J. 42, 44
(Feb. 2010).
In short, we see nothing in these provisions that shows
that Congress sought to deny tribes the authority at issue,
authority that rests upon a tribe's retention of sovereignty
as interpreted by Montana, and in particular its second ex-
ception. To the contrary, in our view, existing legislation
and executive action appear to operate on the assumption
that tribes have retained this authority. See, e. g., Brief for
Current and Former Members of Congress as Amici Curiae
23–25; Brief for Former U. S. Attorneys as Amici Curiae
28–29.
***
For these reasons, we vacate the Ninth Circuit's judgment
and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Justice Alito, concurring.
I join the opinion of the Court on the understanding that
it holds no more than the following: On a public right-of-
way that traverses an Indian reservation and is primarily
patrolled by tribal police, a tribal police offcer has the au-
thority to (a) stop a non-Indian motorist if the offcer has
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356 UNITED
STATES v. COOLEY
Alito, J., concurring
reasonable suspicion that the motorist may violate or has
v
iolated federal or state law, (b) conduct a search to the ex-
tent necessary to protect himself or others, and (c) if the
tribal offcer has probable cause, detain the motorist for the
period of time reasonably necessary for a non-tribal offcer
to arrive on the scene.
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