Grant Christensen has posted “Getting Cooley Right: The Inherent Criminal Powers of Tribal Law Enforcement,” forthcoming in the UC Davis Law Review, on SSRN.
While the Supreme Court regularly decides cases defining the limits of the criminal jurisdiction of tribal courts, when it heard United States v. Cooley in 2021 it had not decided a case about the procedural powers of tribal law enforcement in more than a century. Across more than five decades lower courts at all levels struggled to decide whether the inherent criminal powers of tribal law enforcement are coterminous with the jurisdiction of tribal courts or whether tribal officers may have their own set of inherent powers distinct from the power to prosecute. This Article examines the inconsistent split in authority that existed before Cooley and anticipates the future misreading of inherent criminal power by lower courts. It argues that now that the Court has divorced the inherent criminal power of tribal law enforcement from the criminal jurisdictional power of tribal courts, tribal officers may stop, detain, search, and investigate anyone whose criminal conduct poses a danger to the health and welfare of the tribal community. The Article bolsters its application by using the first cases decided by lower courts in the post-Cooley era as artifacts to examine the full implications of the recognition of inherent criminal power exercised by tribal law enforcement.