A June 1, 2021, Supreme Court ruling held that tribal police can temporarily detain a non-native on tribal lands if they are potentially violating state or federal law.
United States v. Cooley determined that a Crow Police Officer on a Montana reservation had the right to detain a non-native man on suspicion of drug and gun offenses. Before the ruling, tribal law enforcement did not have the jurisdiction to arrest, charge and prosecute non-Natives for traffic violations or violent crimes.
This policy was established by the 1978 Supreme Court case Oliphant v. Suquamish Indian Tribe that stripped tribal nations of criminal jurisdiction over non-Natives.
According to the new ruling, tribal officers can temporarily arrest and detain suspects, but must hand them over to the proper state or federal authorities.
However, Police Officer Jerome Lucero from the Zia Pueblo reservation in New Mexico said that the authority to detain only goes so far, and wishes that tribal law enforcement would have the ability to charge and prosecute for crimes as well.
In a recent NPR report, Lucero explained how he detained a non-native for obvious drug offenses and traffic violations but could not charge him – he had to call Mexico State Police first who refused to send an officer, saying they did not believe they could arrest a man on tribal land.
He also called the County Sheriff’s Office but was ignored. “I started calling around for help and [the County Sheriff’s Office] didn’t even want to come out. They just flat out said they were busy,” Lucero said.
After waiting for four hours, Lucero had to let the man go.
Although Lucero is happy with the outcome of the ruling, he believes that a loophole for criminals remains when non-tribal law enforcement is not willing or able to take over the case.
Assistant professor at Stanford Law School Elizabeth Reese, who focused on Indian law and is a citizen of the Nambé Pueblo, said that the loophole allows criminals to operate freely.
“That federal officers might not get there for hours and hours and hours if at all, that state police might not want to get involved, that this whole network is an indefensible morass of complexity and unworkability that creates lawlessness and impunity for criminals,” she said.
Reese is hopeful that the recent decision is a step toward dismantling the 1978 case and returning criminal jurisdiction over non-natives to tribal law enforcement.
“In that oral argument, and in that unanimous opinion, I hear a court that’s very concerned about the public safety questions — about the serial killer on the highway that can’t be pulled over, and the drunk drivers getting back on the road,” Reese said. “There is this question in my mind about whether this step in Cooley is creating a slow-moving boulder collision course with Oliphant. That could come in the next few years, decades, who knows. Indian law moves slowly.”
Congress is also stepping in to empower tribal law enforcement with a new bill, the Violence Against Women Act, which aims to give tribal officers jurisdiction over non-Native domestic and sexual abusers on tribal land.
However, NPR said that a law giving complete jurisdiction over non-Natives would be a hard sell to Congress, who would likely oppose it based on the fact that non-Natives lack political representation on reservations.
