The Law and Economics of Crime in Indian Country

• Author: Adam Crepelle
• Position: Assistant Professor, Antonin Scalia Law School, George Mason University
• Pages: 569-612

The Law and Economics of Crime in Indian

Country

ADAM CREPELLE*

TABLE OF CONTENTS

INTRODUCTION 569

I. CRIME IN INDIAN COUNTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576

II. TRIBAL SOVEREIGNTY AND CRIMINAL JUSTICE . . . . . . . . . . . . . . . . . . . . . . 579

III. THE ECONOMICS OF CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586

IV. THE LAW AND ECONOMICS OF CRIME IN INDIAN COUNTRY . . . . . . . . . . . . 589

V. SOLUTIONS 601

A. JURISDICTIONAL FIX 603

B. MORE COPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606

C. IMPROVE TRIBAL ECONOMIES 609

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION

The role of race in law enforcement was before the United States Supreme

Court in its 2021 Term. The case did not stem from the Black Lives Matter move-

ment; rather, the case arose from a tribal police officer’s encounter with a white

man.

1

See United States v. Cooley, 919 F.3d 1135, 1139 (9th Cir. 2019), vacated, 141 S. Ct. 1638 (2021);

Kaitlyn Nicholas, Supreme Court to Hear Case with Implications for Policing in Indian Country,

YELLOWSTONE PUB. RADIO (Mar. 22, 2021, 7:37 PM), https://www.ypradio.org/tribal-affairs/2021-03-

22/supreme-court-to-hear-case-with-implications-for-policing-in-indian-country [https://perma.cc/9L5A-

84ZH] (“The defendant is Joshua James Cooley, a white man.”).

Joshua Cooley pulled over on the state highway that crosses the Crow

Reservation.

2

Officer James Saylor of the Crow Nation Police Department

stopped to check on the vehicle because cellular service was unreliable on the res-

ervation, and he did not want to leave the driver stranded; he did not suspect foul

* Assistant Professor, Antonin Scalia Law School, George Mason University; Director, Tribal Law

& Economics Program, at the Law & Economics Center; Associate Professor and Managing Fellow,

Native American Law and Policy Institute, Southern University Law Center; Campbell Fellow, The

Hoover Institution at Stanford University; Associate Justice, Pascua Yaqui Tribe. © 2022, Adam

Crepelle. I would like to thank Joseph Singer, Kevin Noble Maillard, Melissa Tatum, Kevin Washburn,

and Alison Geisler for their advice on this paper.

1.

2. Cooley, 919 F.3d at 1139.

569

play.

3

After Saylor knocked on the truck’s tinted window, it cracked open reveal-

ing a small child and a weary-eyed driver who “seemed to be non-native.”

4

Cooley stated he was passing through the reservation after meeting either

Thomas Shoulder Blade or Thomas Spang.

5

Saylor knew both men and believed

Spang was involved with narcotics.

6

Suspicions raised, Saylor continued asking

questions.

7

Cooley grew frustrated, slowly lowered his hand, and froze into a

“‘thousand-yard’ stare.”

8

Saylor’s training told him this was a sign of danger.

9

He drew his pistol and or-

dered Cooley to raise his hands.

10

Cooley obeyed.

11

After obtaining Cooley’s

driver’s license, Saylor tried to have dispatch search Cooley’s name, but poor

service prevented transmission.

12

Saylor proceeded to inspect the vehicle and

spotted a pistol where Cooley had lowered his hand moments earlier.

13

Saylor or-

dered Cooley out of the vehicle.

14

After Saylor patted him down, Cooley emptied

his pockets, revealing bags of the type commonly used to transport meth.

15

Cooley and the child were placed in the police car where Saylor contacted the

Crow Police Department and the Bighorn County Sheriff because Cooley did not

look Indian.

16

While waiting for backup, Saylor went to turn off Cooley’s truck.

17

He discovered a pipe and meth.

18

The Bureau of Indian Affairs (BIA) police and

local sheriff arrived sometime later.

19

The BIA officer asked Saylor to search the

truck,

20

and he discovered more meth.

21

Cooley was arrested and charged with

multiple federal crimes.

22

Cooley’s defense did not focus on innocence or probable cause. Instead,

Cooley built his defense on the premise that Saylor, and every other tribal police

officer, lacked authority to search and seize non-Indians.

23

The federal district

3. See id. (“‘A lot of travelers go through that particular stretch of highway,’ Saylor testified, ‘and

they will pull over because of various reasons, tired, bathroom, et cetera.’”).

4. Id. (quoting Saylor).

5. Id.

6. Id.

7. See id.

8. Id. at 1139–40.

9. Id. at 1140.

10. Id.

11. Id.

12. Id.

13. See id.

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. See id. (“The motion argued that Saylor was acting outside the scope of his jurisdiction as a Crow

Tribe law enforcement officer when he seized Cooley, in violation of the Indian Civil Rights Act of 1968

(‘ICRA’).”).

570 THE GEORGETOWN LAW JOURNAL [Vol. 110:569

court agreed, stating Saylor knew Cooley was not an Indian as soon as he saw

him.

24

The Ninth Circuit affirmed, though it noted appearance is not enough to

determine whether a person is an Indian.

25

The Ninth Circuit stated Saylor should

have asked Cooley whether he was an Indian.

26

In a unanimous opinion, the

Supreme Court held tribal police had the authority to detain Cooley,

27

but the

Court’s reasoning was the bigger surprise.

Rather than address the complications of tribal criminal jurisdiction, the Court

relied on tribal civil jurisdiction to conclude tribes have the inherent right to

detain non-Indians engaged in conduct that “threatens or has some direct effect

on the political integrity, the economic security, or the health or welfare of the

tribe.”

28

This seemingly broad tribal authority had only been successfully

invoked once at the Supreme Court.

29

However, the victory may be pyrrhic

because the Court did not recognize tribal authority at all. The Court merely held

tribes can detain non-Indians for apparent violations of state and federal law—

not tribal law.

30

Additionally, the Court did not define what “detain” means, an

issue that has long complicated Indian country law enforcement.

31

In the end,

Cooley did not solve much of anything.

32

See Press Release, Big Horn Cnty. Att’y, Big Horn County Attorney Public Statement in

Response to U.S. Supreme Court Decision in United States v. Joshua James Cooley (June 1, 2021),

https://bloximages.newyork1.vip.townnews.com/montanarightnow.com/content/tncms/assets/v3/

editorial/b/2b/b2bf349b-e852-5982-a747-d195a2854aaa/60b6d690d766f.pdf.pdf [https://perma.cc/

A24Y-9VF5] (noting Cooley affirmed settled law).

Public safety on reservations still turns

on whether a person is an Indian.

Basing law enforcement authority on whether someone is an Indian may seem

bizarre;

33

nevertheless, issues involving Indian status and jurisdiction routinely

24. United States v. Cooley, No. CR 16–42–BLG–SPW, 2017 WL 499896, at *4 (D. Mont. Feb. 7,

2017) (“Officer Saylor determined Cooley was non–Indian when Cooley initially rolled his window

down.”), aff’d, 919 F.3d 1135 (9th Cir. 2019), vacated, 141 S. Ct. 1638 (2021).

25. Cooley, 919 F.3d at 1142 (“Officers cannot presume for jurisdictional purposes that a person is a

non-Indian — or an Indian — by making assumptions based on that person’s physical appearance.”).

26. See id. at 1143 (“A law enforcement officer can, of course, rely on a detainee’s response when

asked about Indian status. But Saylor posed no such question to Cooley.” (citation omitted)).

27. United States v. Cooley, 141 S. Ct. 1638, 1641 (2021).

28. Id. at 1643 (quoting Montana v. United States, 450 U.S. 544, 566 (1981)).

29. Tribes can theoretically assert civil jurisdiction over non-Indians engaged in activities that

threaten the tribes’ economic or political welfare; however, the Supreme Court has held this expansive

exception is nearly impossible to meet. See Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S.

316, 333 (2008) (“[W]ith only ‘one minor exception, we have never upheld . . . the extension of tribal

civil authority over nonmembers on non-Indian land.’ The exception is Brendale v. Confederated Tribes

and Bands of Yakima Nation . . . .” (citations omitted)).

30. Cooley, 141 S. Ct. at 1644–45 (“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.”).

31. See infra text accompanying notes 225–36.

32.

33. United States v. Cruz, 554 F.3d 840, 842 (9th Cir. 2009) (“At first glance, there appears to be

something odd about a court of law in a diverse nation such as ours deciding whether a specific

individual is or is not ‘an Indian.’”).

2022] LAW AND ECONOMICS OF CRIME IN INDIAN COUNTRY 571