Harvard Law Review Harvard Law Review Harvard Law Review

Federal Indian Law

United States v. Cooley

For over two centuries, Indian tribes have been relegated to a tenuous position within the American constitutional system.1×1. See, e.g., United States v. Kagama, 118 U.S. 375, 381 (1886) (“The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character.”). As the Supreme Court has attempted to give shape to Chief Justice Marshall’s description of tribes as “domestic dependent nations,”2×2. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). tribes have had to navigate jurisdictional pitfalls that states, by comparison, are never required to traverse. This hurdle is perhaps most evident with respect to tribes’ ability to regulate nonmembers,3×3. The term “nonmember” denotes a person who is not a member of a respective tribe. See Matthew L.M. Fletcher et al., Tribal Powers over Nonmembers – Part 1, ALI Adviser (Apr. 17, 2018), https://thealiadviser.org/american-indian-law/tribal-powers-over-nonmembers-part-1 [https://perma.cc/2LJ8-96Y7]. This term is distinct from “non-Indian,” which is a more complex inquiry that “varies according to the legal context.” 1 Cohen’s Handbook of Federal Indian Law § 3.03 (Nell Jessup Newton ed., 2017). where the Court’s complex precedent has created significant challenges.4×4. See generally Robert N. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976). Last Term, in United States v. Cooley,5×5. 141 S. Ct. 1638 (2021). the Supreme Court held that tribal police officers can conduct limited investigatory stops of non-Indians traveling on public rights-of-way within reservations.6×6. Id. at 1641. In doing so, the Court secured the ability of tribal police to protect their communities without being burdened by another jurisdictional restriction. More broadly, Cooley’s functionalist approach may support greater assertions of tribal authority over nonmembers in other important areas, though the precise implications of the Court’s decision were left unclear.

When Officer James Saylor first spotted a truck pulled over on the shoulder of Highway 212, he suspected nothing unusual. Saylor, a tribal officer with the Crow Indian Reservation in Montana, knew that cellphone reception could be spotty in that part of the reservation, and he pulled over to make sure the driver was okay.7×7. See United States v. Cooley, No. CR 16-42-BLG, 2017 WL 499896, at *1 (D. Mont. Feb. 7, 2017). Saylor, however, quickly became suspicious.8×8. See United States v. Cooley, 919 F.3d 1135, 1139 (9th. Cir. 2019). The driver — Joshua Cooley, who, as Saylor noted, “seemed to be non-native”9×9. Id. — offered a strange explanation for why he was on the road, and Saylor noticed two semiautomatic rifles on the front passenger seat.10×10. See id. at 1139–40. Saylor would later testify that the presence of the rifles alone, “especially in Montana, [wa]sn’t cause for too much alarm.” Id. at 1140. After asking Cooley to produce identification, Saylor noticed Cooley’s breathing grow short, and Cooley’s “thousand-yard stare” caused Saylor to fear Cooley was potentially preparing to assault him.11×11. See id. at 1140. Saylor ordered Cooley to freeze and again requested that he produce identification, after which Saylor opened Cooley’s passenger door; there, Saylor spotted a pistol near the driver’s seat.12×12. See id. At this point, Saylor ordered Cooley to exit the truck and conducted a pat down, during which Saylor found small plastic bags that he knew were “commonly used to package methamphetamine.”13×13. Id. Having called for backup from the Tribe and the county, Saylor searched the truck and found a “glass pipe and a plastic bag that appeared to have methamphetamine in it.”14×14. Id. After additional state and federal officers arrived, subsequent searches revealed more methamphetamine. Id.

After being charged with two federal drug offenses in the U.S. District Court for the District of Montana, Cooley moved to suppress the evidence obtained by Officer Saylor’s search.15×15. United States v. Cooley, No. CR 16-42-BLG, 2017 WL 499896, at *1 (D. Mont. Feb. 7, 2017). Relying on Ninth Circuit precedent, the district court held that tribal officers “have no authority to investigate violations of state and federal law by non-Indians on a public right of way that crosses the reservation.”16×16. Id. at *3 (citing Bressi v. Ford, 575 F.3d 891, 896 (9th Cir. 2009)). Instead, the court held that tribal officers were required to first ascertain whether a suspected offender was Indian or non-Indian.17×17. See id. If the person was non-Indian, the officer could detain the driver only for “apparent” violations of state or federal law.18×18. See id. The court noted that the “apparent” standard appeared to be “more stringent than particularized suspicion and probable cause.” Id. The court concluded that, because Saylor had “quickly determined” that Cooley was non-Indian based on Cooley’s appearance,19×19. Id.; see id. at *1. and because Cooley had not “obvious[ly]” violated a state or federal law, Saylor had acted beyond his authority.20×20. Id. at *4. Finally, the court held that the Indian Civil Rights Act of 196821×21. 25 U.S.C. §§ 1301–1304. (ICRA) “imposes identical limitations” on tribal police as the Fourth Amendment imposes on state and federal police.22×22. Cooley, 2017 WL 499896, at *4. Because Saylor had acted beyond his authority, the court concluded that the evidence obtained from his search and seizure was “fruit of the poisonous tree” and had to be excluded.23×23. Id. (quoting United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989)).

The Ninth Circuit affirmed.24×24. See United States v. Cooley, 919 F.3d 1135, 1148 (9th Cir. 2019). Writing for the panel, Judge Berzon reiterated that Saylor had been required to determine whether Cooley was Indian before investigating him further.25×25. See id. at 1142. The panel disagreed with the district court’s conclusion that Saylor could have “determined that Cooley was a non-Indian just by looking at him,”26×26. Id. at 1141. given that Indian status is a “political classification, not a racial or ethnic one.”27×27. Id. at 1142. Nevertheless, because Saylor never asked Cooley about his Indian status, the panel agreed that Saylor had acted beyond his jurisdiction.28×28. Id. at 1143. The panel further affirmed that Saylor could have investigated Cooley only if it had been “apparent” or “obvious” that Cooley had violated state or federal law.29×29. Id. at 1142. The panel concluded that the district court properly suppressed the evidence under the exclusionary rule embedded in ICRA.30×30. See id. at 1143. The panel differed slightly from the district court in noting that “tribal officers’ extra-jurisdictional actions do not violate ICRA’s Fourth Amendment parallel only if, under the law of the founding era, a private citizen could lawfully take those actions.” Id. at 1148. On this view, the panel reasoned, Saylor still lacked authority to seize Cooley. See id.

Following the panel’s ruling, the en banc Ninth Circuit denied the government’s petition for rehearing.31×31. See United States v. Cooley, 947 F.3d 1215, 1216 (9th Cir. 2020). Judges Berzon and Hurwitz concurred, reasoning that tribal officers’ authority over non-Indians stems from only two sources: (1) the power to enforce criminal law against Indians on tribal land;32×32. Id. (Berzon & Hurwitz, JJ., concurring in the denial of rehearing en banc). and (2) the “undisputed power to exclude persons whom they deem to be undesirable from tribal lands.”33×33. Id. (quoting Duro v. Reina, 495 U.S. 676, 696 (1990)). The first power clearly did not apply because Cooley was non-Indian; and the second did not apply because the Supreme Court had held that the power to exclude did not reach public rights-of-way.34×34. See id. at 1216–17; Strate v. A-1 Contractors, 520 U.S. 438, 456 (1997).

Judge Collins dissented.35×35. Judge Collins was joined by Judges Bea, Bennett, and Bress. In addition to the two categories of tribal authority noted by the concurrence, Judge Collins argued that tribes also have “authority to restrain criminal conduct within the reservation and to detain violators so that they may be prosecuted by those who do have criminal jurisdiction” and that this power extends to alienated fee land within a reservation.36×36. Cooley, 947 F.3d at 1227 (Collins, J., dissenting from the denial of rehearing en banc). He concluded that this necessarily includes the power to conduct limited investigatory stops.37×37. Id. Finally, he argued that the panel’s decision would have “life-or-death consequences for many of the hundreds of thousands of persons who live on Indian reservations located within this circuit,” which warranted rehearing en banc.38×38. Id. at 1236. Judge Collins noted that the panel’s decision would harm tribes given (1) the dearth of state and federal law enforcement on many reservations; (2) the large proportion of non-Indians living within some reservations; and (3) the absence of (or aversion to) cross-deputization agreements among tribal law enforcement and state and federal analogues. Id. at 1236–38.

The Supreme Court reversed.39×39. See Cooley, 141 S. Ct. at 1646. Writing for a unanimous Court, Justice Breyer began by outlining the general scope of tribal sovereignty. Although tribes retain the authority to, for instance, “determine tribal membership, regulate domestic affairs among tribal members, and exclude others from entering tribal land,”40×40. Id. at 1642 (citing Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S. 316, 327–28 (2008)). they are limited in their ability to “exercise criminal jurisdiction over non-members.”41×41. Id. at 1643 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978)). Since Congress had not divested the Tribe of the authority to conduct limited investigatory stops of nonmembers, Justice Breyer noted that the Court’s decision in Montana v. United States42×42. 450 U.S. 544 (1981). was “highly relevant” in determining whether tribes had this power.43×43. Cooley, 141 S. Ct. at 1643. While Montana established the “general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers,”44×44. Montana, 450 U.S. at 565. it also laid out two exceptions. The second of these holds that tribes may retain inherent power to regulate nonmembers’ conduct that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”45×45. Id. at 566. The first exception is described infra p. 416.

Justice Breyer reasoned that Officer Saylor’s conduct fit the second Montana exception “almost like a glove.”46×46. Cooley, 141 S. Ct. at 1643. He explained the situation plainly: “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 ongoing threats.”47×47. Id. And not only had the Court “repeatedly acknowledged the existence of the [Montana] exceptions” in subsequent cases,48×48. Id. at 1645. but it had also “reserved a tribe’s inherent sovereign authority” to conduct such policing activity on state highways within reservation bounds.49×49. Id. at 1644; see also Strate v. A-1 Contractors, 520 U.S. 438, 456–59 (1997) (“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 officers nonmembers stopped on the highway for conduct violating state law.” Id. at 456 n.11). Furthermore, the Court had recognized that tribes retained the power to detain nonmembers and to “transport [them] to the proper authorities.”50×50. Cooley, 141 S. Ct. at 1644 (quoting Duro v. Reina, 495 U.S. 676, 697 (1990)). Just as temporary detention of nonmembers was rooted in the Tribe’s power to exclude,51×51. See Duro, 495 U.S. at 696–97. Justice Breyer reasoned, Officer Saylor’s conduct was rooted in the Tribe’s inherent sovereign powers as recognized by the second Montana exception.52×52. Cooley, 141 S. Ct. at 1644.

The Court also noted that Cooley’s detention did not subject him 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.”53×53. Id. at 1645. This case, therefore, did not present concerns that Cooley was being subjected to criminal laws he “had no say in creating.”54×54. Id. at 1644 (citing Duro, 495 U.S. at 693). Justice Breyer also questioned the workability of the Ninth Circuit’s “apparent violation” standard, noting it would both incentivize suspects to lie about their Indian status and “introduce[] a new standard into search and seizure law.”55×55. Id. at 1645. Finally, the Court rejected the idea that cross-deputization agreements between tribal and federal police should serve as the only vehicle to provide tribal officers the authority to conduct these types of stops, noting that such agreements were overinclusive, underinclusive, and “difficult to reach.”56×56. Id. at 1646; see id. at 1645–46. These agreements, Justice Breyer reasoned, are overinclusive in that they enable tribal police also to enforce federal law and underinclusive in that they cover only violations of federal law — not state law. Id. Justice Alito concurred briefly to note that he understood the Court’s opinion to apply only to the particular type of investigatory stop and search that Saylor had executed.57×57. See id. at 1646 (Alito, J., concurring).

In affirming the right of tribal police officers to perform investigatory stops of nonmembers, Cooley offered a clear win for tribes and tribal policing. By rejecting the Ninth Circuit’s heightened “apparent violation” standard, Cooley ensured that tribal officers need not contend with another twist in an already-dense “jurisdictional maze.”58×58. Clinton, supra note 4, at 504. Further, the Court’s decision potentially offers even more far-reaching wins for tribal sovereignty by providing, for the first time, an example of tribal authority over nonmembers that satisfies the second Montana exception. Although the Court did not clarify when this exception is met, its more functionalist approach to the Montana framework could provide future courts a means to uphold tribal authority where tribes seek to protect themselves from harms posed by nonmembers.

Unlike U.S. states and sovereign nations, which may generally exercise police powers over all who enter their territory, tribes have “attributes of sovereignty over both their members and their territory” but are severely limited with respect to nonmembers.59×59. Duro, 495 U.S. at 688 (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)); see id. at 685. The Court’s jurisprudence has narrowed the jurisdictional space available to tribes, conditioning tribal authority on not only the status of the targeted person or entity,60×60. Compare Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978) (denying tribe’s ability to prosecute non-Indians), with United States v. Lara, 541 U.S. 193, 196 (2004) (upholding tribe’s ability to prosecute nonmember Indians). but also the status of the land where the tribe seeks to assert authority61×61. Compare Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001) (rejecting tribe’s authority to tax activity on non-Indian fee land), with Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 133, 159 (1982) (upholding tribe’s authority to tax activity on tribal land). and the type of authority the tribe seeks to exercise.62×62. Compare Nevada v. Hicks, 533 U.S. 353, 374 (2001) (denying tribal court jurisdiction to adjudicate lawsuit arising from nonmember conduct on tribal land), with Merrion, 455 U.S. at 159 (upholding tribe’s authority to tax nonmembers on tribal land). Commentators have described the Court’s jurisprudence as being “as incoherent as it is complicated”63×63. Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1, 5 (1999); see id. at 28. and have criticized it for creating an “indefensible morass of complex, conflicting, and illogical commands” for tribal police in particular.64×64. Indian L. & Ord. Comm’n, A Roadmap for Making Native America Safer ix (2013). Tribal leaders have similarly criticized the Court’s jurisprudence for creating jurisdictional voids that actively restrict tribes’ abilities to keep their communities safe.65×65. See id.; Angela R. Riley, Crime and Governance in Indian Country, 63 UCLA L. Rev. 1564, 1568 (2016).

Two cases in particular have guided the Court in determining tribal authority over nonmembers. In Oliphant v. Suquamish Indian Tribe,66×66. 435 U.S. 191 (1978). the Court held that tribes “do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.”67×67. Id. at 208. Conceding that tribes “retain elements of ‘quasi-sovereign’ authority,”68×68. Id. (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831)). the Court still concluded that criminal prosecution of non-Indians was inconsistent with the fact that the tribes had “submitt[ed] to the overriding sovereignty of the United States.”69×69. Id. at 210. Three years later, in Montana v. United States, the Court held that “the principles on which [Oliphant] relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers.”70×70. Montana v. United States, 450 U.S. 544, 565 (1981). Unlike in Oliphant, however, the Court identified two exceptions to this general rule. First, a tribe “may regulate . . . the activities of non members who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”71×71. Id. Second, a tribe “may also retain inherent power to exercise 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 economic security, or the health or welfare of the tribe.”72×72. Id. at 566.

Although the Court initially “seemed to define the Montana second exception broadly” and “call[] for a functional analysis,”73×73. Alex Tallchief Skibine, Formalism and Judicial Supremacy in Federal Indian Law, 32 Am. Indian L. Rev. 391, 400 (2007); see also John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen’s Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 744, 751 (2006). Professor Alex Tallchief Skibine suggests that functionalism in this area of federal Indian law asks courts to balance tribal, federal, state, and nonmember interests, as well as to examine congressional policy toward tribes, rather than (formalistically) applying general rules. See Skibine, supra, at 394–95. the Court’s subsequent decisions narrowed the range of acceptable circumstances in which the exception could apply and adopted an increasingly formalist reading of the exception. In Atkinson Trading Co. v. Shirley,74×74. 532 U.S. 645 (2001). for instance, the Court emphasized that the exception applied only to “severe” cases that “imperiled” the welfare of the tribe.75×75. Id. at 657 n.12; see id. at 657–59 (citing Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408, 431 (1989) (opinion of White, J.)). And in Plains Commerce Bank v. Long Family Land & Cattle Co.,76×76. 554 U.S. 316 (2008). the Court noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.”77×77. Id. at 341 (emphasis added) (quoting 1 Cohen’s Handbook of Federal Indian Law § 4.02[3][c], at 232 n.220 (Nell Jessup Newton ed., 2005)). Beyond raising the bar for the second exception, the Court’s analysis of its application became increasingly “formalistic and mechanical.”78×78. Skibine, supra note 73, at 404. In Strate v. A-1 Contractors,79×79. 520 U.S. 438 (1997). for instance, the Court conceded that someone “driv[ing] carelessly on a public highway running through a reservation [would] endanger all in the vicinity, and surely jeopardize the safety of tribal members.”80×80. Id. at 458. Yet the Court held that this danger was not sufficient by itself to justify regulation by the tribe, rigidly construing the second exception as concerned predominantly with encroachments on tribal self-governance by the states.81×81. See id. at 459; Skibine, supra note 73, at 404–05.

Given this precedent, it was unclear that Montana should apply to Officer Saylor’s conduct at all. Although the Court had previously expanded Montana’s reach to cover a broader array of tribal authority,82×82. See Nevada v. Hicks, 533 U.S. 353, 360 (2001) (holding that Montana is not limited to conduct arising from a tribe’s assertion of authority over nonmembers on non-Indian land); Strate, 520 U.S. at 453 (applying Montana to limit a tribe’s adjudicatory and regulatory authority). it had only ever applied this framework to a tribe’s civil authority — never to its criminal authority. The government’s brief relied on Montana only to the extent that it “reflect[ed] a general principle that supports the [Tribe’s] more modest ability to protect the public from imminent danger and to aid federal and state law enforcement.”83×83. Brief for the United States at 25–26, Cooley, 141 S. Ct. 1638 (No. 19-1414). Cooley’s brief argued that the second Montana exception had no bearing on the case because, for one, it “applied in the civil — not criminal — context.” Brief for Respondent at 17, Cooley, 141 S. Ct. 1638 (No. 19-1414). Instead, the government grounded Officer Saylor’s conduct in the Tribe’s “inherent sovereign authority,” which fell outside of (and thus would not be confined by) the Montana framework.84×84. Brief for the United States, supra note 83, at 13. Despite this, multiple Justices questioned Montana’s application to the case during oral argument.85×85. Oral Argument at 2:29, 7:25, 18:57, 19:37, Cooley, 141 S. Ct. 1638 (No. 19-1414), https://www.oyez.org/cases/2020/19-1414 [https://perma.cc/4XKJ-6UGF] (statements of Roberts, C.J., and Thomas, Sotomayor & Kagan, JJ.). In response, the government first denied that Montana applied and argued against it becoming “the controlling test in all circumstances” given how restrictive it was under the Court’s earlier jurisprudence.86×86. Id. at 22:18; see id. at 20:30 (“[Montana] really only governs civil, adjudicatory, and regulatory jurisdiction.”). If the Court wished to follow Montana, the government later argued, Officer Saylor’s conduct would fall under the second exception.87×87. Id. at 3:48, 1:07:14.

While the government’s hesitance to argue that Montana should apply in this new context was perhaps well founded, the Court’s formulation of the Montana framework in Cooley opens pathways for broader wins for tribal authority over nonmembers in subsequent cases. First, in drawing on the Montana rule and its exceptions, the Court presented the second exception exactly as it appears in Montana88×88. Cooley, 141 S. Ct. at 1643 (quoting Montana v. United States, 450 U.S. 544, 566 (1981)). — a stark contrast from earlier cases, which began from the premise that the exception is “limited” and applies only in the most “severe” cases. Second, the Court seemed to reject a rigid, formalist approach to Montana in favor of the more functionalist approach that the Montana Court arguably envisioned.89×89. See Skibine, supra note 73, at 400. In direct contrast to Strate — where the Court rejected that the second exception might be applied in cases involving reckless nonmember drivers within a reservation90×90. Strate v. A-1 Contractors, 520 U.S. 438, 458 (1997). — the unanimous Cooley Court accounted for tribal interests by noting the threats posed by “non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.”91×91. Cooley, 141 S. Ct. at 1643. Further, the Court’s rejection of the Ninth Circuit’s “apparent violation” standard as unworkable for tribal officers, and its conclusion that cross-deputization agreements would be impractical for all tribes to form, reflect a greater appreciation of the need for tribal authority in this case than the Court had shown in prior cases applying the Montana framework.

The Court’s return to Montana’s original language, as well as its functionalist approach, may prove useful for tribal litigators in future cases assessing the boundaries of tribal authority over nonmembers. While lower federal courts have found the second Montana exception satisfied in some instances,92×92. In Attorney’s Process & Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927 (8th Cir. 2010), for instance, the court upheld a tribal court’s jurisdiction to hear a tribe’s suit against a nonmember security corporation after a confrontation in which “armed agents entered onto tribal trust land without permission of the [Tribe], stormed buildings vital to the Tribe’s economy and its self government, committed violent torts against tribal members, forcibly seized sensitive information . . ., and damaged tribal property.” Id. at 939; see id. at 940. they have also rejected dozens of attempts to assert tribal authority across a range of regulatory areas, including environmental regulation,93×93. See, e.g., Evans v. Shoshone-Bannock Land Use Pol’y Comm’n, 736 F.3d 1298, 1305 (9th Cir. 2013) (finding the second Montana exception inapplicable to “groundwater contamination” and “improper disposal of construction debris”). labor,94×94. See, e.g., MacArthur v. San Juan County, 497 F.3d 1057, 1075–76 (10th Cir. 2007) (deeming the second Montana exception inapplicable in employment dispute). and protecting minors from sexual abuse.95×95. See, e.g., Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 846 F. Supp. 2d 646, 650 (S.D. Miss. 2011) (holding that the second Montana exception did not apply to case in which a nonmember allegedly molested minor tribal members), aff’d, 746 F.3d 167 (5th Cir. 2014). Some of these cases did so by focusing on the Court’s previously narrow descriptions of the second Montana exception and noting the dearth of examples of the exception applied elsewhere.96×96. See, e.g., Belcourt Pub. Sch. Dist. v. Davis, 786 F.3d 653, 660 & n.6 (8th Cir. 2015). Indeed, the Court’s pattern of rejecting the second exception’s applicability may well have dissuaded lower courts from siding with even the most compelling arguments that tribal authority was justified under the exception. By setting aside the Court’s previously narrow language, returning to a more functionalist approach, and providing (for the first time97×97. Cf. Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S. 316, 333 (2008) (“[W]e have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land.” (quoting Nevada v. Hicks, 533 U.S. 353, 360 (2001) (emphasis added))). ) an example of the second exception in action, the Cooley Court may offer lower courts greater flexibility to rule in favor of tribal authority over nonmembers.98×98. In Bressi v. Ford, 575 F.3d 891 (9th Cir. 2009), for instance, tribal police established a roadblock to check for unlawful activity, including drunk driving, on a state highway that crossed through a reservation. Id. at 894. While the Ninth Circuit upheld the tribe’s ability to stop drivers at the roadblock in order to determine their Indian status, it did not suggest that the tribe had the authority to compel non-Indians to undergo field sobriety tests. Id. at 896. After Cooley, a tribe may have a stronger argument that the second Montana exception justifies such a stop.

To be sure, Cooley’s beneficial impact on tribal sovereignty in future cases is far from certain. The Court’s brief opinion provides sparse guidance for why the Montana framework applied or when the second exception could be met in the future. Justice Breyer’s conclusion that the facts of the case fit the second Montana exception “almost like a glove” may limit the case’s impact to only very similar situations, such as those involving tribal policing.99×99. During oral argument, for instance, Chief Justice Roberts noted that it may “make[] sense” to read the second exception narrowly with respect to a tribe’s regulatory and adjudicatory authority, but he questioned whether to read it so narrowly with respect to a tribe’s “on-the-ground” policing. Oral Argument, supra note 85, at 38:06. While this distinction did not enter the opinion, it supports the argument that Cooley extended tribal authority in part because the case involved tribal police officers, who may be more sympathetic actors than other tribal regulators. See, e.g., Noah Feldman, Why the Supreme Court Just Expanded Police Powers — Unanimously, Bloomberg Op. (June 3, 2021, 7:00 AM), https://www.bloomberg.com/opinion/articles/2021-06-03/tribal-sovereignty-case-unites-supreme-court-on-police-powers [https://perma.cc/2FGZ-N3AF]. A lower court, for instance, may be inclined to view Cooley as a confirmation that the exception applies only in severe and particular circumstances. Further, relying primarily on the second Montana exception to justify a tribe’s conduct may limit a tribe’s ability to argue that its authority is rooted in historical practice.100×100. See, e.g., Brief for the United States, supra note 83, at 26–31. And for tribal authority that is less historically well rooted than the one at issue in Cooley, Montana could still prove to be an overly restrictive test for determining if that authority is permissible.101×101. See Developments in the Law — Indian Law, 129 Harv. L. Rev. 1652, 1694 (2016).

While the Court left Cooley’s broader impact largely unclear, the decision nevertheless provides a welcome win for tribal nations.102×102. Paired with McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Cooley may suggest that some Justices are increasingly skeptical of constraints on tribal sovereignty absent congressional authorization. See The Supreme Court, 2019 Term — Leading Cases, 134 Harv. L. Rev. 410, 600 (2020). Given the high crime rates within many reservations — often attributed to nonmembers103×103. See Sierra Crane-Murdoch, On Indian Land, Criminals Can Get Away with Almost Anything, The Atlantic (Feb. 22, 2013), https://www.theatlantic.com/national/archive/2013/02/on-indian-land-criminals-can-get-away-with-almost-anything/273391 [https://perma.cc/NL53-DPH8]. — and the ineffectiveness of state and federal policing,104×104. See Kevin Morrow, Note, Bridging the Jurisdictional Void: Cross-Deputization Agreements in Indian Country, 94 N.D. L. Rev. 65, 67–68 (2019). the Court’s decision will hopefully allow tribes to protect their communities more effectively. After several decades that have reflected a “growing gap between the Court’s current Indian law jurisprudence and the realities of tribal life,”105×105. Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Calif. L. Rev. 799, 830 (2007). Cooley at best offers a framework for authorizing future exercises of tribal sovereignty over nonmembers. At worst, it at least “does not make a morass . . . any worse.”106×106. Oral Argument, supra note 85, at 59:30 (statement of Kavanaugh, J.). But see Elizabeth Reese, Affirmation of Inherent Tribal Power to Police Blurs Civil and Criminal Indian Law Tests, SCOTUSblog (June 7, 2021, 10:29 PM), https://www.scotusblog.com/2021/06/affirmation-of-inherent-tribal-power-to-police-blurs-civil-and-criminal-indian-law-tests [https://perma.cc/82VA-VG6R] (suggesting that the Cooley Court “blur[red] the lines between the court’s civil and criminal [Indian law] jurisprudence,” which could be “precisely the kind of stuff morasses are made of”).