Volume 110

The Law and Economics of Crime in Indian Country

by Adam Crepelle

 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 movement; rather, the case arose from a tribal police officer’s encounter with a white man. Footnote #1 content: 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. Footnote #2 content: Cooley, 919 F.3d at 1139.   Officer James Saylor of the Crow Nation Police Department stopped to check on the vehicle because cellular service was unreliable on the reservation, and he did not want to leave the driver stranded; he did not suspect foul play. Footnote #3 content: 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.’”).   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.” Footnote #4 content: Id. (quoting Saylor).   Cooley stated he was passing through the reservation after meeting either Thomas Shoulder Blade or Thomas Spang. Footnote #5 content: Id.   Saylor knew both men and believed Spang was involved with narcotics. Footnote #6 content: Id.   Suspicions raised, Saylor continued asking questions. Footnote #7 content: See id.   Cooley grew frustrated, slowly lowered his hand, and froze into a “‘thousand-yard’ stare.” Footnote #8 content: Id. at 1139–40.   

Saylor’s training told him this was a sign of danger. Footnote #9 content: Id. at 1140.  He drew his pistol and ordered Cooley to raise his hands. Footnote #10 content: Id.  Cooley obeyed. Footnote #11 content: Id.  After obtaining Cooley’s driver’s license, Saylor tried to have dispatch search Cooley’s name, but poor service prevented transmission. Footnote #12 content: Id.  Saylor proceeded to inspect the vehicle and spotted a pistol where Cooley had lowered his hand moments earlier. Footnote #13 content: See id.   Saylor ordered Cooley out of the vehicle. Footnote #14 content: Id.  After Saylor patted him down, Cooley emptied his pockets, revealing bags of the type commonly used to transport meth. Footnote #15 content: Id.  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. Footnote #16 content: Id.  While waiting for backup, Saylor went to turn off Cooley’s truck. Footnote #17 content: Id.  He discovered a pipe and meth. Footnote #18 content: Id.  The Bureau of Indian Affairs (BIA) police and local sheriff arrived sometime later. Footnote #19 content: Id.  The BIA officer asked Saylor to search the truck, Footnote #20 content: Id.  and he discovered more meth. Footnote #21 content: Id.  Cooley was arrested and charged with multiple federal crimes. Footnote #22 content: Id.