Courthouse Steps Oral Argument: United States v. Cooley

Listen & Download

On March 23, 2021, the Supreme Court will hear oral argument in United States v. Cooley.  The Court will address whether the Ninth Circuit erred in upholding the suppression of evidence obtained when an Indian tribe police officer temporarily detained a non-Indian crossing a reservation on a public right of way and discovered evidence of federal crime during the stop.  Defendant Cooley argues the evidence should be suppressed because the officer’s stop and search exceeded the scope of jurisdiction permitted by the Indian Civil Rights Act of 1968.

Joining us to discuss the Oral Argument is Anthony J. Ferate, Of Counsel at Spencer Fane LLP.  

 

 
Featuring: 
Anthony J. Ferate, Of Counsel at Spencer Fane LLP.
 
 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, March 24th, we discuss the Supreme Court's oral argument in United States v. Cooley. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Mr. Anthony J. Ferate, Of Counsel at Spencer Fane LLP. After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go a long and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. Mr. Ferate, the floor is yours.

 

Anthony Ferate:  Well, thank you very much. And it's great to be with you all again. I was just with The Federalist Society on one of these Teleforums a couple of weeks ago. What's even better is we're going to talk about some of the cases, some of the case law that I've discussed on previous Teleforum in the past in relation to this one.

 

      Today we're talking about United States v. Cooley which was actually argued just yesterday at the U.S. Supreme Court. And, really, to give a brief summary of the conversation, what started as an innocent Terry stop by a police officer employed by the Crow Tribe on the Tribe's reservation turned into a U.S. Supreme Court argument that exhibited the strain of the Tribe's sovereignty against the strain of non-tribal members seeking the protection of its rights on reservations.

 

      As with any criminal law case, one of the most important things is to understand the facts. The facts are obviously important in a criminal or civil case, but there's such nuance that's really essential to some of these decisions and some of the cases that I want to spend a little time going through those with you a little bit.

 

      If you look at the Crow Reservation on a map, you would find that in the in south central portion of Montana is the Crow Reservation. It borders Wyoming. It borders a national forest in Wyoming, really along that northern tier of Wyoming and that southern portion of Montana. The Reservation was originally about 8 million acres and has been reduced by treaty down to about 2.6 million acres, very, very large swath of land. It covers about three counties in Montana, a very, very large area of the state.

 

      The Tribe and its members have been active litigants in the Supreme Court for many years. The Crow are very sophisticated in the way that they litigate cases and work on issues before the Court. It may not necessarily be just because they want to advance issues, but it seems to be that between they and the State of Montana there seem to be constant issues that raise questions. The most recent one that we deal with is Herrera v. Wyoming. That case was about two years ago before the U.S. Supreme Court, and it was decided in favor of Crow Tribal member Mr. Herrera. And another case that we will deal with while we're on this call is U.S. v. Montana, and that one involves the Crow Tribe as well.

 

      So I really encourage you to take a look or review a map of the Crow Tribe. Go into Google and type in Crow Reservation, and you'll really see the full dimension of this land. And what you'll see is that there are really two central highways, a portion of another one slightly up in the northwestern corner of the Reservation. But there's a really two central highways that pass through the Reservation, and it's Interstate 90, which travels essentially from Boston to Seattle, and U.S. 212, a federal highway that has a portion of it that links into I-90 in the eastern portion of the Reservation.

 

      The incident in question here occurred in a very remote portion of U.S. 212. The area is not known to have cellular service, a very remote and very difficult portion of the land. But the area is considered Indian country under 18 U.S.C. § 1151(a) which really says that any reservation and any roads that go through the reservation are considered Indian country for purposes of the statute.

 

      In February 2016, Crow Police Officer Saylor came across a truck on the shoulder of the remote area on Highway 212. After some time trying to convince the driver to roll down the window -- he would partially roll it down, and it would be rolled back up. And the officer would shine his flashlight into the dash to see if the driver sitting in the driver side and then going, he finally convinced the driver to roll down the driver side window at least partially at that point.

 

      When he rolled down the window partially, the officer witnessed the driver's bloodshot eyes, slurred speech, reported that he appeared to be non-Indian, and there was a child in the back seat. Then Officer Saylor noticed the rifle. There was a couple of rifles sitting on the passenger seat. He asked the driver for his identification. The driver, then, as he was trying to find his identification, pulled out several wads of cash out of his pocket, and there was also some -- began some erratic behavior. There was a behavior that officers sometimes call the thousand mile stare. Officers often are trained to watch for such behavior because it can suggest that somebody's about to become violent. So the officer unholstered his pistol and removed the driver from the car.

 

      He also found that near the driver's right hand there was a pistol sitting in that area. There had been some fidgeting by the driver near that. It's not clear that that was an indicator that he was reaching for it, but the loaded pistol was sitting right near the driver's right hand.

 

      After placing the driver and the child in the police car, Officer Saylor went to go secure the area. He called for BIA. He called for the local sheriff to come to the location and then went back to the vehicle, and he removed the firearms and placed them on the hood of his car. He discovered while he was doing that many plastic baggies and a glass pipe. Those are often associated with drug use, and particularly the baggies are used for sale. In this case, the officer also found methamphetamine in the vehicle.

 

      County officers and BIA officers then arrived at the scene. And in coordination of these officers, they transported -- specifically Officer Saylor was asked to transport the driver to the Crow Police Department where BIA and county officers did question him. And then he was arrested by the county officers and tried in federal court.

 

      The charges that he was brought up on were in the U.S. District Court for Montana, and there were two charges. One was for a single count of possessing methamphetamine with the intent to distribute, and the other was a single count of possessing a firearm in furtherance of a drug trafficking crime.

 

      On motions, the defendant argued that the evidence should be suppressed because Officer Saylor as a tribal officer held no authority over non-Indians. And the district court granted the suppression saying that bloodshot eyes, wads of cash are not an established as a sufficient basis to establish an obvious sale, obvious state or federal law violation.

 

      The appeal went up to the Ninth Circuit, and they distinguished the tribal land from a public right-of-way on public land. You'll recall I said earlier that under 18 U.S.C. § 1151(a), Indian country is considered to be all reservation land including rights of way through. But the Ninth Circuit distinguished that a little bit, saying that the tribal land is separate from public rights-of-way on public land.

 

      A tribal officer, the Ninth Circuit said, can investigate non-Indians solely based on authority to exclude non-Indians from tribal land. But a tribe cannot exclude non-Indians from a state or federal highway. Next, they said that a stop of a non-Indian by a tribal officer on a state or federal highway "must be a brief and limited one. Authorities will typically need to ask one question to determine whether the suspect is an Indian."

 

      The test that the Ninth Circuit created was in their terms "apparent" and "obvious" violation of state or federal law only to detain and that the detention could only last a "reasonable time" to hand over to authorities. What's noteworthy about this is that this is very different from the current Terry stop probable cause standard, and really what the Ninth Circuit did with their ruling was give or really limit, I suppose, the authority of a tribal officer to ask one question: are you a non-member, or are you a member.

 

      In dissent by the -- in dissent on the Ninth Circuit, when it went up for en banc hearing, there was an opinion written that referred to this "are you a member or non-member" as a really problematic issue from the perspective that if you've committed a crime, it's potential that you may lie to the officer as to whether or not you are a member or a non-member. If you're a non-member, they have no authority to pursue you under this Ninth Circuit rule, and as long as you're not creating an apparent or obvious violation of state or federal law, they have no right to detain you, and you, in theory, would be allowed to go on your way.

 

      So that's how the Ninth Circuit approached the question. We went on to U.S. Supreme Court, and we had arguments on that yesterday, a great volume of briefing. There were a number of amicus briefs in the case, mostly in support of DOJ's position, but there were a number of them on behalf of Mr. Cooley as well. Counsel for Department of Justice argued an inherent authority to police that the reservation and -- that the police on the reservation, they could conduct a Terry stop. They have that in their inherent authority granted to them as a dependent nation, or a dependent sovereign is the term that used in the courts, and that that inherency was derived simply from their existence as a tribe. I believe that there may have been a question during argument as to where that inherency comes from. I believe it was perhaps Justice Kavanaugh who asked does that come from the Constitution. I believe the answer the DOJ gave to that was yes, that is does come from the Constitution. I think that perhaps the more precise answer would have been to suggest it came from treaty or from recognition of sovereignty, but that was the answer that was given, and it was accepted by Justice Kavanaugh.

 

      The Court really focused with DOJ on the struggle between inherent authority and some actual basis. The justices seemed to have difficulty trying to determine whether or not they could justify creating or going with some sort of inherent authority. There isn't a lot of specific case law that they can point to on that, and really they seemed to be struggling to find some actual basis. You have Roberts, Alito, you actually had a number of other justices as well kind of probing this question, but why not Montana v. Crow or Montana v. U.S. is the actual case as referred to. That really comes with the question -- that was an early 1980 case, and the real question that existed there was what sort of inherent power, what sort of jurisdiction exists for the tribes, and that was actually in conflict with the State of Montana. And so the inherent power was actually discussed, and that inherent power exists in relation to the political integrity, the economic security, or the health and welfare of the tribe.

 

      The Plains Commerce of 2008 decision by Chief Justice Roberts really kind of dived a little more into that and discussed that if something invades or intrudes on the internal relations of the tribe or threatens tribal self-rule, such activities can be regulated. Now that was in a civil sense, but it did provide a little bit of additional color to Montana. Justice Sotomayor questioned the United States pretty pointedly discussing that she was not confident that even Montana assists with the justification here for the tribe, for the Crow, in this instance.

 

      Justice Gorsuch raised the question on the Major Crimes Act and what if the Major Crimes Act were involved. It was obviously not in this case, but what if the Major Crimes Act was involved. It's a very different question in the sense that the Major Crimes Act specifically does say that the U.S. government will try Native Americans on Native American land that commit particular enumerated crimes, they will try them in the federal court. Conversely, non-Indian's that commit acts against Native Americans on Indian country land are also to be tried for those enumerated acts within the federal courts.

 

      So I think that the difference for that issue is that those crimes have to be tried in the federal court, and certainly that the tribe -- it would not affect the outcomes of the facts that we have presented here in this case.

 

      Mr. Cooley's attorneys focused more on deputization of officers. And as I read through the materials in this and as I read through some of the -- and listened to the argument on this, I really had that question in my head to a great extent as well as what about deputization. The attorneys for Mr. Cooley tried to answer some of those, but I don't know that they had a important grasp on necessarily anybody other than Justice Breyer who spent a lot of time trying to dwell on that conversation.

 

      The real difficulty, oftentimes, for tribes with deputization efforts are a couple of fold. One, certainly the tribes oftentimes are happy to have that deputization to deal with non-Indians on their land. But oftentimes because of the cost of certification, other reasons such as that, the possibility that once somebody is trained in the training that's required for such a cross-deputization, that they may actually go get hired away by another jurisdiction, some of those issues oftentimes raise concerns for tribes to engage in some of these matters. And so that's some of the difficulty that was not discussed at the hearing, but some of the difficulty that can occur with cross-deputization agreements and may restrict tribes' ability or in some cases willingness to actually engage in those. And of course the attorneys for Mr. Cooley also discussed the Ninth Circuit decision as being the correct approach under case law.

 

      The Court seemed extremely skeptical of the argument for Mr. Cooley. Sotomayor, who of course, as I mentioned was skeptical of the DOJ argument, actually raised her voice to counsel for Mr. Cooley, really kind of taking a moment to say I don't think that the Department of Justice correctly argued this one, but she left it as that's their decision. Like I said a little bit ago, I think Justice Breyer was really struggling greatly with the argument on this. He didn't really know what to do. He had good questions, but ultimately, I don't know where he ended up with the cross-deputization if you actually listen to the argument. It's not clear what he thought of that as an outcome. But I think he sounded more as if he was leaning in support of Department of Justice's argument in this case in some capacity, in some capacity.

 

      I think a few of the impressions that I was left with as a result of the briefing, as a result of familiarity with the issues, and the results of yesterday's argument was that while if you go to the briefing of the cert phase, there is an 1868 Treaty of Fort Laramie that you read about that the Crow Tribe signed. It's the same treaty that was involved Herrera v. Wyoming. And there was language in reference to the "Bad Men" clause as to whether or not the tribe had authority to bring the bad men to justice to the United States government. And there was some debate about that, but ultimately, Mr. Cooley's attorneys brought up it had not been raised at the Ninth Circuit. It had not been raised at the district court. So I believe ultimately that's the reason it was not argued at the U.S. Supreme Court. But I think that it's really important language, so I highly recommend that you go look at that Bad Men Clause discussion in the briefing at the cert phase. But I also recommend that you go to the amicus briefs of the Sioux and the Utes. They have a very good discussion of those, and they shouldn't be ignored. 

 

      I also want to recommend the Ute brief for its discussion of checkerboard jurisdiction challenges, and the reason that I want to talk about checkerboard jurisdiction is that a decision in this case for Mr. Cooley could make it extremely more difficult to have regulatory authority within a reservation. Oftentimes reservations are not a solid block of land, and this occurs oftentimes due to allotment. Allotment was a policy of the federal government in the late 1890s to give private property to Native Americans and to try to disestablish the reservations. I'm not passing judgement on whether allotment was a good idea or a bad idea. It is what it is. But what it resulted in is portions of the reservation being sold off to non-Indians and non-Indians possessing that land within the Reservation.

 

      So the difficulty that the Utes point out in their brief is many times an officer may not know whether or not, even within the reservation, whether or not they are on reservation land, Indian country land or privately held for fee non-Indian land. And so that can make a big determination as to whether or not they have the ability to make a stop in some instances, whether they have the authority to try to stop a crime being committed. But more importantly, some of those issues also come back over into the federal side and the state side as to whether or not they have authority to be involved in crimes on some of those lands. I really encourage you to read the checkerboard jurisdiction issue and that Ute brief.

 

      I find it particularly interesting after the McGirt decision which affected a significant portion of the State of Oklahoma, Tulsa, the city of Tulsa, is 80 percent within the authority of the Creek's jurisdiction. It has not even been a year since that was decided. And so that checkerboard jurisdiction discussion is really important in areas such as Tulsa and will be discovered, frankly, around the rest of the areas of the state or the eastern portions of the state as well here.

 

      So it was evident from my view of the argument that the question in their eyes, in the eyes of the Court, is not which side should win, but how to determine the outcome. Should they go with the inherent authority argument? Should they use Montana v. U.S.? Is there some other mechanism that they could use?

 

      Again, the 1968 Treaty of Fort Laramie was not discussed in argument, but could we see somebody try to use that in a concurring opinion? We could, and it would be interesting to see. As DOJ mentioned in their argument, using Montana or some other method other than inherent jurisdiction or inherent authority could affect other areas of tribal law unintentionally. Much of tribal law is based on the Supreme Court decisions that exist. Much of tribal law by one change in a Supreme Court tribal law jurisdiction can affect other areas of it unintentionally. And so to look out for that, I think, is something that the Court really is going to have to weigh. Because as we've gotten further down the line and with more case law from the Court on these issues, it's something to weigh and something to consider. Obviously, inherent authority is cleaner, but I also am not sure that the Court felt like it could fully embrace inherent authority.

 

      Possible outcomes: I think, on the actual decision for tribal authority, tribal officers to conduct traditional Terry stops, opposite of the Ninth Circuit decision, I think an 8-1 or 9-0, based on what I heard on that issue. I think that there probably will be a split of some sort on how to get there. I don't know how to gauge or weigh that at this point, but I think you're going to see some concurring opinions that are going to have to be weaved together to provide the answer.

 

      With that, I open it up for any questions, and thank you for listening to me.

 

Evelyn Hildebrand:  Wonderful. Thank you so much. At this time we will open the floor for audience questions. I'll now turn the floor over to our first caller.

 

Jennifer Weddle:  Hi. This is Jennifer Weddle. I'm with Greenberg Traurig in Denver, Colorado, and I was Counsel of Record to the tribal nation's amici in this case. May I say first thank you to our speaker because I thought you did generally an excellent job describing some of the background. And I thought it might be helpful to have some insight from the background facts that kind of explain some of the things that were left unaddressed.

 

      I chair our American Indian Law Practice Group here at Greenberg Traurig, along with my colleague Troy Eid who is a former U.S. Attorney for Colorado and also was chair of the Indian Law and Order Commission whose report you heard cited by the Solicitor General's office yesterday and whose brief as a former United States Attorney was read aloud by Justice Kavanaugh during the argument.

 

      A lot of reactions to some of the things that you said, one is on the point about cross-deputization and the Court's interest in that, the reason Officer Saylor was not cross-deputized is because he is and always was a federal officer. He is employed by the Bureau of Indian Affairs Office of Justice Services which is the law enforcement policing organization that provides law enforcement on many Indian reservations. That office is chronically underfunded, typically has very few officers. The Crow Reservation, a place the size of the State of Delaware, is usually only served by four or five officers total, let alone at any one given hour.

 

      In February 2016, Officer Saylor had been detailed to the Crow Tribe on a federal highway safety grant. And that was detailed in Footnote 2 of our Tribal Nations Amicus Brief. What that means is Officer Saylor was a federal officer wearing a federal badge and a federal uniform in a federal police vehicle with federal training and a federal radio when he encountered Mr. Cooley. The only difference was he also has an Office of Highway Safety decal on his patrol car and his paycheck was paid by the Crow Tribe after it has received the grant money from the United States. There was no reason to cross-deputize him because he is and always was a federal law enforcement officer. I just wanted to make that clear.

 

Anthony Ferate:  No, and I appreciate knowing that because, candidly, I don't see why this case advanced past the district court, frankly. I don't even see why the evidence was suppressed, frankly, if that was the case. So I appreciate the detail on that.

 

Jennifer Weddle:  Yeah, happy to share it. And then I would say there's an amazing dissenting opinion from the Ninth Circuit from Judges Collins, Bress, Bea, and Bennett. Judge Collins authored that opinion, and it isI would call it a brilliant work of art in describing how far afield the Ninth Circuit panel went in going full on into the deep dive of judicial activism in reading into 30 and 40 years of common law, not understanding it, and creating a incredible Byzantine structure for law enforcement officers to follow that puts hundreds of thousands of Native Americans who live on reservations in the Ninth Circuit at risk.

 

Anthony Ferate:  Yeah, and I had that in my notes, but I was starting to go long, and so I didn't dive into that. But I agree with you that that dissent was a phenomenal piece of work. I think they did a great job in that dissent, and I'm just sad that it was a dissent more than anything. They did a great job. I agree with you.

 

 Jennifer Weddle:  Well, I will always sleep with Judge Collins' opinion under my pillow because I love it so much. The other point I just wanted to make is that the struggle between the Court -- between the justices on what's the path here. You heard Justice Gorsuch go back to what is a first principle of Indian law that -- the mantra we say to ourselves is what hasn't been taken away remains, namely the Indian tribes retain all the powers they had as nation states at the time of the founding of the United States unless and until Congress has acted to limit that sovereignty in some way. And of course, Congress has not done that with respect to tribal investigative or policing authority. In fact, it's gone the other way as the members of Congress amicus brief showed, as the National Indian Women's Resource Center brief showed. Congress has been acting to expand and enhance tribal policing and investigative authority not restrict it.

 

      And in fact, that was the flip side of the separation of powers argument that Mr. Cooley was making that somehow the fact that Congress has given this additional tool of cross-deputization agreements to tribes is an implied limitation on tribal policing authority in the first instance. And I would say the true separation of powers argument is the exact opposite. Unless and until Congress says there's a limitation, there isn't one. And I think that is where Justice Gorsuch starts from, and that's why he was talking about inherent authority. I think, frankly, that's why the Department of Justice took that position as well.

 

      The treaty argument is an argument in the alternative here, that in its treaty with the United States, the Crow Tribe expressly reserves this additional investigative and policing authority and the express ability to provide evidence to federal agents to eject bad men. And I would say Mr. Cooley is the prototypical bad man, a drug dealer with a lot of guns, and an unrestrained toddler on a dark road at night. And Office Saylor acted exactly in accord with his training to protect the peace and to protect Crow people.

 

Anthony Ferate:  Yeah. I don't disagree with anything that you said. I think it will be interesting if this is assigned to Justice Gorsuch because I think he will definitely want to write it from the inherent authority view. I don't know if you viewed it the same way I did. I just saw some reluctance, I guess, to go there from some of the other justices. I do think it's probably going to be some sort of a split concurrence in some form. What were your thoughts from what you heard on that?

 

Jennifer Weddle:  It could be a split decision. Honestly, I thought it was one of the best sessions of questioning I've ever heard from the Court. They were informed, unified, insightful. It was, from an Indian law practitioner's dream, the dream oral argument from my point of view. I think Chief Justice Roberts pointing to well isn't this a prototypical second Montana exception which is the health, welfare, economics, security of the tribe exception, which the Court has historically read narrowly. It seems like preventing a drug dealer from selling drugs and riding around the reservation high with a lot of guns is a prototypical health and welfare exception. That's one way that Mr. Cooley [crosstalk 00:34:30].

 

Anthony Ferate:  I agree. Yes.

 

Jennifer Weddle:  So what you heard from Justice Kavanaugh and also Justice Barrett is well, why is that. Why should tribal police officers have investigation authority but not arrest authority? And the answer to that question which the Solicitor General's Office was reluctant to say is because this Court took away that power in 1978 in the Oliphant v. Suquamish Tribe decision. And since then it has created the morass that is indefensible that Justice Kavanaugh talked about, and then he acknowledged that that's all analytically very unsatisfying. And Justice Barrett likewise acknowledged that and distinguished Oliphant, Montana and Strate by saying in those instances, the Court was really worried about civic participation and the unavailability of civic participation when tribal prosecutorial, civil regulatory, or civil adjudicatory authority was being exercised. But here what you have at most is a tribal officer engaging in cooperative activity that was part of a federal prosecution, and obviously Mr. Cooley participates in federal civic life as a citizen of the United States.

 

      That really boils down to what Justice Thomas has been saying for years which is Indian law is all a creature of judicial activism by the Court, and it's a hot mess, and the Court should scrap it and start over and make that specific to each tribe's treaties and relations with the United States, that all tribes are not the same, and to engage in a truly federalist separation of powers analysis to say what has Congress said about each tribe. It's a very originalist view. He might actually have the votes for it now, which is exciting from my perspective.

 

      I'm sorry. I didn't mean to highjack your webinar.

 

Anthony Ferate:  No. You're fine. And I appreciate it, and I appreciate it for two reasons. One, you brought up one of my favorite tribal law cases and that's Oliphant v. Suquamish. And it's for no particular reason other than the fact that I grew up just minutes from the Suquamish Reservation. So I know the land in question and the issues, and so I love that. The other thing I was going to bring up is just a couple of weeks ago I did a Teleforum on a Ninth Circuit decision that's on hold now around the Apaches and their ceremonial lands down in that part of -- just west of Phoenix in Arizona and the difficulties around that issue and the federal lands issues and things like that.

     

      Again, I have a deep, deep sympathy on that one. I wanted to be able to say, yeah, let's find this one for the tribe. But then my question was what does the treaty say, and I thought that I would go to the treaty and see something to help me. But in that case, I didn't. So I agree exactly with the point that you make. And for those of you listening that aren't involved in tribal law issues, the treaty has to be the basis of just about every single issue that you're dealing with on these issues to really get to the true answer.

 

Jennifer Weddle:  And the last thing I'll say before I end my high jacking of your webinar is that at base, this is a straightforward Terry stop case where the officer did absolutely nothing wrong. The only thing that is objectionable to Mr. Cooley is that Officer Saylor received his paycheck from the Crow Tribe. And I think to Justice Thomas's excellent questions yesterday, reasonable suspicion is reasonable suspicion is reasonable suspicion. And when Mr. Cooley's counsel answered that Officer Saylor would have had to let the serial killer and the drunk driver walk away, I think that was utterly ridiculous and makes the point of the Ninth Circuit's dissenting opinion that there is no reason that the Court should countenance the Ninth Circuit's invitation to require tribal officers to engage in rampant racial profiling. And there's no basis that Native American officers should be alone among law enforcement officers in the United States to have a standard other than reasonable suspicion that is based on racial identity and what is obvious or apparent, as if anybody could figure out what that is.

 

Anthony Ferate:  Yeah. I'll say first, you are welcome to comment whenever you'd like if I do another one of these again in the future, but I really enjoyed the conversation. I appreciate you sharing many of the facts as you did.

 

Evelyn Hildebrand:  Wonderful. Thank you. We'll now move to our next caller.

 

Bob Fitzpatrick:  Hi. I'm Bob Fitzpatrick from D.C. I think all my questions were answered by the dialogue between you and the attorney who called in a minute ago, so I'll just leave it at that. This has been a fantastic, as they always are, Federalist webinar. Thanks ever so much. Bye-bye.

 

Anthony Ferate:  Thank you.

 

Evelyn Hildebrand:  Great. And in the meantime while we're waiting for -- I spoke too soon.

 

Tom Gede:  Good afternoon, A.J. This is Tom Gede from Morgan, Lewis & Bockius. And thank you for your doing this Teleforum and also listening to your air addition as well as Jennifer Weddle's. I also served on the Federal Indian Law and Order Commission with her partner Troy Eid. And so I was very much interested in where the Court was going with this and your perspective on it.

 

      Let me just throw a question at you, if I may, about the Court seemed to be struggling with the Fourth Amendment style issues relating to what constitutes a detention and presumably a suspect who can then -- is free to leave and when it might ripen into an arrest. And across that spectrum is the potential for a seizure, such as seizure of evidence or pulling a weapon. And in Indian country there are implications in that little gray area that is neither nor detention nor a full on arrest in anticipation of a prosecution. And I wondered if you could address that a little bit.

 

Anthony Ferate:  You know, you've caught something that as I was listening to the argument, I sat and thought about at the moment when Justice Barrett was actually having the conversation about when does this become an arrest, and I thought about that. But I, unfortunately, didn't think about it as a long as I should have as I was preparing. But the ultimate question on that in my mind obviously the Indian Civil Rights Act is the Fourth Amendment Addendum, I guess if you will, that folds the Fourth Amendment into Indian country.

 

      From my honest perspective, I view it just simply as the annexation, if you will, of the Fourth Amendment into Indian country. I don't really view there being any difference. I know that there are defense attorneys out there who would argue that defendants may be treated more poorly in tribal jails perhaps or may have their civil rights reduced in Indian country as opposed to state and federal jails detention. But I know there's the difficulty of you can't go and sue the tribe anywhere but in tribal courts. But they are still held to that same standard under the Indian Civil Rights Act.

 

      So I see it as a difficult dance, but I think that those rights still remain and retain, and the procedures that they have to follow in those cases still remain and exist.

 

Tom Gede:  So they're just continuing. So you do think that the Court is unlikely to shape or fashion an intermediate ground of seizure that is not a full arrest, or is this somethingI think Justice Thomas maybe suggestedthis might be a matter that should be remanded for a fuller examination of the Fourth Amendment issues?

 

Anthony Ferate:  I hear -- thank you for bringing that up because Justice Thomas did ask the question whether this should be remanded, and you heard the Department of Justice suggest that a Terry review had not been done by the Court and perhaps should be done by the Court. So rather than a full decision, it would be a decision and a ruling and remand.

 

      I think that's probably right. I did think about that as I listened, and it did make sense that a Terry analysis was not done because the Ninth Circuit just simply jumped to the conclusion that the evidence needed to be declined. And so it's possible that this could come back, and we could have that discussion.

 

      Personally, I think that I would prefer that the Court not create some new middle ground that exists for holds, if you will, on tribal land. But if they did and they crafted it carefully enough, I don't -- I'm not opposed to seeing something like that. And obviously, they won't necessarily ask me when they do it [laughs]. So you and I will just have to live with it if they do.

 

Tom Gede:  All right. Well, thank you and thanks to Jennifer.

 

Anthony Ferate:  Yeah. Thank you.

 

Evelyn Hildebrand:  While we're waiting for any other callers who would like to join the queue to ask a question, I would had the floor back over the A.J. to continue making remarks about the Supreme Court's oral argument from yesterday.

 

Anthony Ferate:  No. I think that both of the callers that raised questions thus far raised some really important questions, and they definitely brought some color to the conversation that was illuminating to me and very helpful to me.

 

      Unless there are other questions, I think I conclude the way I concluded before the callers is I do think that this is a decision that is going to go in support of tribal authority. I do believe that the officer probably conducted a proper Terry stop from the facts that I understand. I think that the question the Court is really going to deal with is how to we get to the answer here. And I understand Department of Justice's view on wanting to do it the way that they want, but I did hear some hesitancy, so it will be curious to see what the outcome is.

 

      The last caller raised an interesting issue. We could see a separate brief concurrence from Justice Barrett on to what lengths to we go on a hold and a detention and arrest, and do we have some sort of a separate hold. We could see Justice Barrett perhaps raise that because she really seems to hone in on that point.

 

      But absent any other questions, I really appreciate the opportunity to do this, and I appreciate the incredibly learned people that have chimed in during the call.

 

Evelyn Hildebrand:  Wonderful. On behalf of The Federalist Society I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating with your excellent questions and comments. We welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.