FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 17-30022
                Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           1:16-cr-00042-
                                                      SPW-1
 JOSHUA JAMES COOLEY,
               Defendant-Appellee.                    ORDER


                     Filed January 24, 2020

   Before: Marsha S. Berzon, Stephanie Dawn Thacker, *
          and Andrew D. Hurwitz, Circuit Judges.

                          Order;
        Concurrence by Judges Berzon and Hurwitz;
                 Dissent by Judge Collins




    *
      The Honorable Stephanie Dawn Thacker, United States Circuit
Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by
designation.
2                  UNITED STATES V. COOLEY

                          SUMMARY **


                          Criminal Law

    The panel filed an order denying a petition for panel
rehearing and denying on behalf of the court a petition for
rehearing en banc, in a case in which the panel affirmed the
district court’s order granting a motion to suppress evidence
obtained as a result of the defendant’s encounter with a Crow
Indian Reservation police officer while the defendant’s truck
was parked on the shoulder of United States Route 212,
which is a public right-of-way that crosses the Reservation.

   Concurring in the denial of rehearing en banc, Judges
Berzon and Hurwitz wrote that even within the questionable
genre of dissents from denial of rehearing en banc, Judge
Collins’s dissent is an outlier that misrepresents the legal
context of this case and wildly exaggerates the purported
consequences of the panel opinion.

    Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Bea, Bennett, and Bress, wrote that
the panel’s extraordinary decision directly contravenes long-
established Ninth Circuit and Supreme Court precedent,
disregards contrary authority from other state and federal
appellate courts, and threatens to seriously undermine the
ability of Indian tribes to ensure public safety for the
hundreds of thousands of persons who live on reservations
within the Ninth Circuit.



    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. COOLEY                       3

                           ORDER

   The panel has voted to deny the petition for panel
rehearing and petition for rehearing en banc.

    The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed R. App. P. 35.

    The petition for rehearing en banc is denied. Attached
are a dissent from and a concurrence respecting the denial of
rehearing en banc.



BERZON and HURWITZ, Circuit Judges, concurring in the
denial of rehearing en banc:

    Even within the questionable genre of dissents from
denial of rehearing en banc, see Martin v. City of Boise,

, 588 (9th Cir. 2019) (Berzon, J., concurring in
denial of rehearing en banc), Judge Collins’s dissent to the
denial of rehearing (“dissent”) is an outlier. It misrepresents
the legal context of this case and wildly exaggerates the
purported consequences of the panel opinion.

                               I

    This case involves an unusual factual scenario and a
technical issue of Indian tribal authority. It certainly does not
present a “question of exceptional importance” meriting en
banc consideration. Fed. R. App. P. 35(a)(2). There is no
conflict among the circuits regarding the question presented
here, the opinion is not in conflict with a Supreme Court
4                UNITED STATES V. COOLEY

decision, and the practical implications are limited. The
opinion recognizes that tribal officers can stop non-Indians
on state and federal rights-of-way across Indian reservations
long enough to determine whether they are Indians, and also
can detain them long enough to turn them over to state or
federal authorities if they were obviously—apparently—
violating state or federal law when stopped. So in the case of
a speed demon or a drunk driver, Indian authorities can
intervene. The issues in this case arise only when a tribal
officer, as here, who is not cross-deputized on non-Indian
lands, takes it on himself to investigate whether a non-Indian
on a federal or state highway right-of-way committed some
crime that is not apparent—in other words, a crime that has
nothing to do with demonstrated danger on the highway.

                              II

    Nor does the panel opinion “conflict[] with a decision of
the United States Supreme Court.” Fed. R. App. P.
35(b)(1)(A). The dissent maintains that the panel opinion
missed a whole category of Supreme Court authority for
Indian law enforcement officers—Category Two in the
dissent’s taxonomy. Dissent at 25–27. According to the
dissent, that category allows tribal officers to Terry stop and
investigate non-Indians who are on alienated fee land or
federal and state highways that cross Indian reservations.
But Category Two does not exist.

    As the panel opinion explains, the first basis of authority
for tribal officers derives from the inherent power of Indian
tribes, as sovereigns, to enforce criminal law against tribal
members or nonmember Indians (“Indians”) on tribal land.
United States v. Lara, 

, 197–200 (2004). Tribes
have no criminal jurisdiction over non-Indians, even when
they are in Indian country. Oliphant v. Suquamish Indian
Tribe, 

, 195 (1978).
                 UNITED STATES V. COOLEY                      5

    The second source of tribal officers’ enforcement
authority is tribes’ “undisputed power to exclude persons
whom they deem to be undesirable from tribal lands.” Duro
v. Reina, 

, 696 (1990). That power includes the
authority of tribal officers to investigate and “eject” non-
Indians who “disturb public order on the reservation.” 

see United States v. Becerra-Garcia, 

,
1175 (9th Cir. 2005) (“Intrinsic in tribal sovereignty is the
power to exclude trespassers from the reservation, a power
that necessarily entails investigating potential trespassers.”).

    The Supreme Court has definitively ruled, however, that
this power to exclude—and so the authority to investigate
non-Indians—does not extend to land within the borders of
Indian reservations that is non-Indian, including fee land
owned by non-Indians and federal and state highways within
reservations. Strate v. A–1 Contractors held that “for [non-
Indian] governance purposes,” state (and federal) rights-of-
way are equivalent to “alienated, non-Indian land” and so
“[t]ribes cannot assert a landowner’s right to occupy and
exclude” from such rights-of-way. 

, 454, 456
(1997).

    As this Court summarized in Bressi v. Ford, those two
sources of authority are the only ones available to tribal
officers:

           Unlike the case within most of the
       reservation, the Nation is not a gate-keeper on
       a public right of way that crosses the
       reservation. See Strate v. A–1 Contractors,
       

, 455–56 . . . . The usual tribal
       power of exclusion of nonmembers does not
       apply there. See 

STATES V. COOLEY

         On the other hand, the state highway is
    still within the reservation and is part of
    Indian country. 18 U.S.C. § 1151(a). The
    tribe therefore has full law enforcement
    authority over its members and nonmember
    Indians on that highway. See United States v.
    Lara, 

, 210 . . . . The tribe
    accordingly is authorized to stop and arrest
    Indian violators of tribal law traveling on the
    highway. In the absence of some form of state
    authorization, however, tribal officers have
    no inherent power to arrest and book non-
    Indian violators. See Oliphant v. Suquamish
    Indian Tribe, 

. . . . This
    limitation has led to obvious practical
    difficulties. For example, a tribal officer who
    observes a vehicle violating tribal law on a
    state highway has no way of knowing
    whether the driver is an Indian or non-Indian.
    The solution is to permit the officer to stop the
    vehicle and to determine first whether or not
    the driver is an Indian. In order to permit
    tribal officers to exercise their legitimate
    tribal authority, therefore, it has been held not
    to violate a non-Indian’s rights when tribal
    officers stop him or her long enough to
    ascertain that he or she is, in fact, not an
    Indian. See 

. If the
    violator turns out to be a non-Indian, the
    tribal officer may detain the violator and
    deliver him or her to state or federal
    authorities. Id.; see 

n.
    11 . . . .
                 UNITED STATES V. COOLEY                       7

            This rule permitting tribal authority over
        non-Indians on a public right-of-way is thus
        a concession to the need for legitimate tribal
        law enforcement against Indians in Indian
        country, including the state highways. The
        amount of intrusion or inconvenience to the
        non-Indian motorist is relatively minor, and
        is justified by the tribal law enforcement
        interest. Ordinarily, there must be some
        suspicion that a tribal law is being violated,
        probably by erratic driving or speeding, to
        cause a stop, and the amount of time it takes
        to determine that the violator is not an Indian
        is not great. If it is apparent that a state or
        federal law has been violated, the officer may
        detain the non-Indian for a reasonable time
        in order to turn him or her over to state or
        federal authorities. 

891, 895–96 (9th Cir. 2009) (emphases added). In
sum, only “[i]f it is apparent that a state or federal law has
been violated” may “the [tribal] officer . . . detain the non-
Indian for a reasonable time in order to turn him or her over
to state or federal authorities.” 

(emphasis added).

    No Supreme Court or Ninth Circuit case since Strate has
divined a third source of tribal authority over criminal
activities of non-Indians—the power to investigate criminal
activity by non-Indians on alienated fee land or federal and
state rights-of-way. The dissent nonetheless insists that
implicit in the limited authority of tribal officers is the power
to stop known non-Indians on reasonable suspicion,
pursuant to Terry v. Ohio, 

(1968), and then
investigate whether any law enforcement violation has
occurred. Dissent at 25–27. If that authority existed, then
8               UNITED STATES V. COOLEY

tribal police could stop, investigate, and detain known non-
Indians anywhere within the boundaries of a reservation for
any reasonably suspected crime.

    In support of this supposed broad authority, the dissent
quotes Duro’s statement that “[t]ribal law enforcement
authorities have the power to restrain those who disturb
public order on the reservation, and if necessary to eject
them.” Dissent at 26 (quoting 

). But
Duro was explaining the tribal power to exclude, as the
preceding sentence 

–97. Duro,
decided before Strate, did not delineate a separate power to
detain and investigate non-Indians on alienated non-Indian
land within a reservation’s boundaries or on federal and state
rights-of-way (which were not at issue in Duro).

   The dissent relies on two other sources for its vehement
accusations that the panel ignored its supposed Category
Two. The first is a brief and tentative footnote in Strate:

       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.
       Cf. State v. Schmuck, 121 Wash.2d 373, 390
       . . . (en banc) (recognizing that a limited tribal
       power “to stop and detain alleged offenders
       in no way confers an unlimited authority to
       regulate the right of the public to travel on the
       Reservation’s roads”), cert. denied, 

. . . 

n.11. This footnote, as Bressi explained, at
most preserved the right of tribal officers to detain non-
                   UNITED STATES V. COOLEY                             9

Indians when, in the course of pulling over an unknown
offender, the officer identifies the individual as non-Indian
but the state or federal legal violation is 

.

    That was not the case here. Cooley was not “stopped on
the highway for conduct violating state 

n.11. He was not driving when approached by the tribal
officer and was not seen “violating state law.” Instead, the
tribal officer undertook to investigate him for non-apparent,
non-traffic-related criminal activity and searched his
vehicle. The opinion in this case is entirely consistent with
the Strate footnote. 1

   The dissent’s other key accusation is that the panel
opinion disregarded a pre-Strate case from this Court, Ortiz-
Barraza v. United States, 

(9th Cir. 1975). But
Ortiz-Barraza is plainly no longer good law.

    In Ortiz-Barraza, a non-Indian was stopped by a tribal
officer and detained in the absence of an obvious legal
violation. Ortiz-Barraza rested squarely on Indian tribes’
“power to exclude trespassers from the reservation,” 

see 

same power that Strate later held
does not extend within reservation boundaries to alienated
fee land or federal and state 

.
Further, Ortiz-Barraza concluded that the “[r]ights of way
running through a reservation remain part of the reservation
and within the territorial jurisdiction of the tribal police.”

    1
      The dissent also points to Strate’s citation of State v. Schmuck,
121 Wash.2d 373 (1993) (en banc). That Strate cites Schmuck to
emphasize the limits of an officer’s power to “stop and 

n.11, reinforces our holding that Officer Saylor acted beyond the
scope of the Tribe’s sovereign authority when he conducted a search of
Cooley.
10               UNITED STATES V. 

. Strate held directly to the contrary on that
point as 

.

                             III

    The dissent also maintains that even if Officer Saylor did
act beyond his authority in detaining Cooley to investigate
whether he was violating some law, “Saylor did not act
outside his territorial jurisdiction,” Dissent at 40, so United
States v. Henderson, 

(9th Cir. 2018), is not,
as the panel held, controlling.

    Wrong. Because Cooley is not an Indian, the highway
was “equivalent, for [non-Indian] governance purposes, to
alienated, non-Indian land” when Saylor conducted his
investigation and search. 

. Henderson
held that a magistrate judge who “issued a warrant in excess
of her jurisdictional authority” violated the Fourth

–17. In imagining some
fundamental difference between the magistrate in
Henderson and the tribal officer here, the dissent once again
ignores that Strate held state and federal highways within
reservations outside the jurisdiction of tribal officials with
regard to non-Indians.

    Nor is it true that “the problem here (if any)” is that
Saylor’s “actions were not within the scope of his authority.”
Dissent at 41. Saylor had no authority to act for the state at
all because he was not a state actor. 

.
That Saylor could have been a state actor had he been
deputized as one is irrelevant; the Federal Rules of Criminal
Procedure could have authorized the magistrate in
Henderson to issue warrants to search computers located
outside her district, and they subsequently were amended to
do just that. See Fed. R. Crim. P. 41(b)(6). Saylor’s limited
jurisdiction under federal Indian law as a tribal officer—not
                 UNITED STATES V. COOLEY                      11

the unrealized potential for a voluntary agreement between
the Crow Tribe and the State of Montana broadening his
authority—is what is relevant. For that reason, Virginia v.
Moore, 

, 176 (2008), which held that “state
restrictions do not alter the Fourth Amendment’s
protections,” has no application here.

                              IV

    The Supreme Court has in the last few decades
prescribed distinct limits on tribal authority over non-Indians
even within the geographical boundaries of Indian
reservations. It is the dissent, not the panel, that has
expanded tribal authority well beyond those limits by
“mix[ing] up . . . distinct sources of tribal authority over non-
Indians.” Dissent at 29.

   For the foregoing reasons, we concur in the denial of
rehearing en banc.



COLLINS, Circuit Judge, with whom BEA, BENNETT, and
BRESS, Circuit Judges, join, dissenting from the denial of
rehearing en banc:

    The panel’s extraordinary decision in this case directly
contravenes long-established Ninth Circuit and Supreme
Court precedent, disregards contrary authority from other
state and federal appellate courts, and threatens to seriously
undermine the ability of Indian tribes to ensure public safety
for the hundreds of thousands of persons who live on
reservations within the Ninth Circuit. I respectfully dissent
from our failure to rehear this case en banc.
12              UNITED STATES V. COOLEY

    For more than 40 years, we have held that, when a non-
Indian is reasonably suspected of violating state or federal
law anywhere within the boundaries of an Indian reservation
(including state or federal highways traversing the
reservation), tribal police officers have the authority to
conduct on-the-spot investigations of the sort authorized
under Terry v. Ohio, 

(1968). See Ortiz-Barraza
v. United States, 

, 1180–81 (9th Cir. 1975).
Under this well-settled law, the tribe’s conceded lack of
criminal jurisdiction over such non-Indians, see Oliphant v.
Suquamish Indian Tribe, 

(1978), does not
deprive the tribe of the authority to conduct Terry-style
investigations of non-Indians and, if probable cause arises,
to then turn the non-Indian suspect over to the appropriate
state or federal authorities for criminal prosecution. Ortiz-

–81. Over the intervening years,
numerous courts have expressly endorsed Ortiz-Barraza’s
conclusion that tribes may detain and investigate non-
Indians for suspected violations of state and federal law,
correctly recognizing that “the power to maintain public
order by investigating violations of state law on the
reservation . . . is clearly an incident of general tribal
sovereignty.” State v. Pamperien, 

, 505 (Or.
Ct. App. 1998); see also United States v. Terry, 

, 579–80 (8th Cir. 2005); State v. Schmuck, 

, 1340–42 (Wash. 1993); State v. Haskins, 

, 1195–96 (Mont. 1994).

    Without even so much as a mention of our controlling
decision in Ortiz-Barraza, the panel in this case sweeps
away four decades of settled law and instead announces that
Indian tribes now “lack the ancillary power to investigate
non-Indians” for reasonably suspected violations of state or
federal law that occur on state or federal highways, or on
non-Indian fee lands, within the reservation. United States
                UNITED STATES V. COOLEY                     13

v. Cooley, 

, 1141 (9th Cir. 2019) (emphasis
added). According to the panel, tribal officers’ previously
straightforward authority to stop any driver, Indian or non-
Indian, based on the familiar reasonable suspicion standard,
see Heien v. North Carolina, 

, 60 (2014), has
now been replaced by the following convoluted series of
rules that turn on what the officer does or does not know
about the driver’s tribal status:

   •   A tribal officer only has the authority to “stop those
       suspected of violating tribal law on public rights-of-
       way”—not state or federal law—and even then only
       “as long as the suspect’s Indian status is unknown”
       (or is known to be Indian). 

       (emphasis added).

   •   Once a tribal officer has stopped a driver whose
       status is unknown, the officer’s “initial authority is
       limited to ascertaining whether the person is an
       Indian.” 

in the course of the “limited interaction” necessary
       to determine that the driver is a non-Indian, the
       officer happens to discover an “‘obvious’ or
       ‘apparent’ violation[] of state or federal law,” he or
       she may continue to detain that person until the
       appropriate state or federal officials can take custody.
       

       This limited detention
       authority, however, “does not allow officers to
       search a known non-Indian for the purpose of finding
       evidence of a crime.” 

   •   But if the non-Indian has not committed an
       “obvious” violation of state or federal law, then the
       officer may not detain the person further, conduct
14                 UNITED STATES V. COOLEY

         any investigation of the non-Indian, or conduct any
         searches. 

     •   If the officer nonetheless persists, then the officer is
         acting outside his or her jurisdiction, and the officer’s
         conduct is presumptively unreasonable under Fourth
         Amendment principles. 

1 The
         officer, however, may still exercise the very limited
         authority that a private citizen would have had
         “under the common law of the founding era.” 

That authority is limited to seizing a violator
         whom the officer has “personally observed” commit
         a “felony,” and does not include any authority to
         conduct searches. 

& n.9 (emphasis
         added).

     •   Likewise, if before any stop is made, the tribal officer
         already knows that the suspected violator is a non-
         Indian, the officer’s power is limited to the citizen’s-
         arrest authority of seizing those whom the officer
         personally observed commit a felony. 

         1146.

    By allowing tribal officers to detain non-Indians only for
“obvious” violations of state or federal law or for felonies
committed in the officer’s presence, the net effect of the
panel’s remarkable decision is to replace the easily
administered reasonable suspicion standard that has applied
for decades under Ortiz-Barraza with a novel and complex


     1
       Although the Fourth Amendment does not apply directly to Indian
tribes, see Duro v. Reina, 

, 693 (1990), Congress has
subjected tribes to Fourth Amendment standards by statute under the
Indian Civil Rights Act (ICRA). See 25 U.S.C. § 1302(a)(2).
                 UNITED STATES V. COOLEY                    15

set of standards, all of which are more demanding than
ordinary probable cause.

    Judge Berzon’s and Judge Hurwitz’s concurrence in the
denial of rehearing en banc belatedly attempts to defend the
panel’s stealth overruling of Ortiz-Barraza by contending
that our holding in that case was abrogated by the U.S.
Supreme Court’s intervening decision in Strate v. A–1
Contractors, 

(1997). See Concurrence at 9–
10. That is demonstrably wrong. Far from undermining
Ortiz-Barraza, Strate reaffirms its continued validity by
expressly endorsing the authority of tribal officers to conduct
traffic stops of “nonmembers” for “conduct violating state
law,” and to do so on all “roads within a reservation,
including rights-of-way made part of a state 

n.11 (emphasis added). Indeed, as support for
this conclusion, the U.S. Supreme Court quoted the
Washington Supreme Court’s express endorsement of such
“limited tribal power ‘to stop and detain alleged offenders’”
in Schmuck, see 

n.11 (quoting

), and on that very same cited
page, Schmuck in turn explicitly based its recognition of that
authority on our decision in Ortiz-Barraza. 

(“We agree with the Ninth Circuit.”). At a
minimum, Ortiz-Barraza is easily reconciled with Strate,
and the panel therefore wholly lacked authority to flout that
controlling Ninth Circuit precedent. Miller v. Gammie,

, 900 (9th Cir. 2003) (en banc) (three-judge
panel may disregard prior precedent only when it is “clearly
irreconcilable” with intervening Supreme Court or en banc
authority).

     The panel’s decision in this case is plagued by a further
critical legal error that independently warrants en banc
review. Having concluded that the tribal officer in this case
16                  UNITED STATES V. COOLEY

acted outside the scope of what, “under the law of the
founding era, a private citizen could lawfully” have done, the
panel suppressed the evidence “obtained as a result” of that

, 1148. 2 But the panel’s
limitation of tribal officer authority to that of founding-era
private citizens rests on an erroneous analogy to searches
and seizures conducted outside of an officer’s geographic
jurisdiction. Even if one assumes arguendo that the panel is
correct in concluding that tribal officers who have not been
cross-deputized under state law may not conduct Terry-style
inquiries of non-Indians on state or federal highways within
the reservation, the proper analogy would be to a law
enforcement officer who lacks state-law authority to take
particular actions within his or her territorial jurisdiction.
The law is settled, however, that such deficiencies in state-
law authorization are irrelevant to the Fourth Amendment
evaluation of the reasonableness of a search or seizure. See,
e.g., Virginia v. Moore, 

, 171–76 (2008);
Martinez-Medina v. Holder, 

, 1037 (9th Cir.
2011); Saunders v. Silva, 473 Fed. App’x 769, 770 (9th Cir.
2012); see also Johnson v. Phillips, 

, 238 (8th
Cir. 2011).

   Moreover, the panel’s deeply flawed decision involves
questions of extraordinary practical importance that merit en
banc review. Although the concurrence claims that this case
involves a “technical issue of Indian tribal authority” whose
“practical implications are limited,” see Concurrence at 3–4,
nothing could be further from the truth. The elimination of

     2
       This, in turn, involved the further novel holding that violations of
ICRA warrant the remedy of suppression to the same extent as a Fourth
Amendment violation. 

–45. The Government,
however, conceded this issue in its opening brief, and it has not raised
that issue in its petition for rehearing.
                 UNITED STATES V. COOLEY                    17

tribal Terry-stop authority with respect to non-Indians on fee
lands and public highways—which the panel replaces with
standards that are higher than probable cause—is a very big
deal, because it threatens to have a dramatic effect on public
safety within the many Indian reservations in this circuit.
Although reservations vary widely, there are some in which
a large percentage of the reservation’s land area is non-
Indian fee land, and some that have very significant numbers
of non-Indian residents. The panel thus strips tribes of a
critical element of their sovereign authority to maintain
public order with respect to what, in some cases, will be a
significant portion of the people or land within the
reservation. The concurrence may be right that the “practical
limitations” of the panel decision are “limited” for those of
us who do not live on Indian reservations, but for the
hundreds of thousands who do, it makes a great deal of
difference if tribal law enforcement lacks on-the-spot
authority to detain and investigate non-Indians based on the
familiar reasonable suspicion standard. If Supreme Court
precedent truly required that we blow such a gaping hole in
tribal law enforcement, then we would be obligated, as an
“inferior Court[],” to do so. See U.S. Const., art. III, § 1.
But nothing in Strate requires the panel’s troubling disregard
of sovereign tribal authority. On the contrary, adherence to
Supreme Court and Ninth Circuit precedent forbids what the
panel has done here.

    I respectfully dissent from our refusal to rehear this case
en banc.

                              I

                              A

    Around 1:00 AM on February 26, 2016, after completing
his shift, Crow Tribal highway safety officer James Saylor
18                UNITED STATES V. COOLEY

was driving eastbound along U.S. Highway 212, a federal
right-of-way on the Crow Indian Reservation in southern
Montana. 3 Saylor passed a white Dodge pickup truck parked
on the westbound shoulder of the highway with its
headlights on, and since that area was known to him as “a
very dangerous stretch of road,” Saylor decided to go back
and conduct a “welfare” check. In pulling up behind the
Dodge, Saylor intentionally did not activate his overhead
lights because he “didn’t want the occupants of the vehicle
to feel as though [he] was detaining them.”

     As he approached the vehicle, Saylor heard that the
Dodge’s engine was running and saw that it had Wyoming
license plates. He also noticed that the pickup truck had “a
lot of stuff in the bed of the truck,” which was filled almost
to the “bed rails with different items.” The passenger
compartment had dark windows, and it also “appeared to be
lifted with some kind of lift or leveling kit” and had
“oversized tires.” Saylor knocked on the side of the truck,
and the rear driver-side window briefly rolled down and then
rolled back up. Saylor “expected the front driver’s side
window to roll down after that, as if maybe somebody had
hit the wrong button,” but it did not. During the brief period
the rear window was down, Saylor thought he saw a small
child “crawling around in the back.”

    Saylor shined his flashlight through the tinted front
driver-side window, and he saw a man (Cooley) who then
gave him what appeared to be a thumbs-down sign. Saylor
“didn’t know what he was trying to convey, if his window
wouldn’t go down, or if he wasn’t okay.” Saylor asked
Cooley if he could get his window down, and Cooley

    3
      This summary is based primarily on the testimony of Officer
Saylor at the suppression hearing. See 

n.1.
                UNITED STATES V. COOLEY                    19

lowered it about 4–6 inches. Saylor could see that Cooley
“had watery, bloodshot eyes,” and that he “appeared to be
non-native.” Saylor also saw a toddler (who turned out to be
Cooley’s son) crawl from the back seat onto Cooley’s lap.
Saylor asked if everything was OK, and Cooley responded
that he had pulled over because he was tired. That was not
uncommon in Saylor’s experience, although it also was not
“uncommon to come across a motorist that is impaired and
has pulled over because of that impairment.” Not having
excluded the latter possibility, Saylor decided that “as long
as [Cooley] was willing to talk with me, I was willing to talk
with him to make sure of the welfare of him and the child.”

    Saylor asked where Cooley had driven from, expecting
that he might have stopped after a long drive. Cooley
responded, however, that he had driven from Lame Deer,
which Saylor knew to be a town that was less than half an
hour away in the adjacent Northern Cheyenne Indian
Reservation. (Saylor had previously served as a Bureau of
Indian Affairs (BIA) police officer on that reservation for
several years.) Saylor asked, “what he was up to in Lame
Deer,” and Cooley responded that he had gone there to buy
a vehicle from someone named “Thomas,” either “Thomas
Spang” or “Thomas Shoulder Blade.” Saylor recognized
both names—Thomas Spang had been involved in drug
trafficking and Thomas Shoulder Blade had been a BIA
employee.

    Saylor thought it was odd that Cooley had been
attempting to purchase a vehicle so late at night, and he also
thought it was odd that Cooley did not have another adult
with him. As Saylor explained at the suppression hearing,
when buying a car, “I’ve always had another passenger with
me to drive my new purchase, especially if I’m going in a
vehicle that I already own, unless I’m trading it in.” Saylor
20              UNITED STATES V. COOLEY

questioned Cooley further, and Cooley responded that the
vehicle he was supposed to buy “had broken down and that
Thomas had allowed him to use the vehicle that he was in.”
This response puzzled Saylor even more, because he “didn’t
understand why somebody would allow the use of a vehicle
with all the personal belongings that [he had] seen in the
bed.” He also did not understand why Thomas Spang or
Thomas Shoulder Blade would have a vehicle registered in
Wyoming; in his experience, most Northern Cheyenne
members either had “a Northern Cheyenne license plate
through the State of Montana, or they wouldn’t have any
registration at all.”

    Saylor was having a hard time understanding Cooley,
because the engine was running and because Cooley “was
even sounding as though he had some slurred words.”
Saylor asked Cooley to lower the window so that he could
hear better, and Cooley did so. At that point, Saylor saw
what appeared to be “two semiautomatic rifles” on the front
passenger seat. Having weapons in a vehicle was not
uncommon in Montana, in Saylor’s experience, but he was
further puzzled when Cooley said that the guns belonged to
Thomas. As Saylor explained at the hearing, “I have never
known an instance . . . where somebody has lent somebody
else their vehicle with all of their property to include
firearms.”

    At this point, Saylor asked Cooley for his 

Cooley did not retrieve his ID, but instead began
pulling out of his pocket “small denomination bills” and
putting them in a compartment in the console area. The third
or fourth time Cooley reached for his pocket, Saylor “noticed
a change in his demeanor.” Rather than glance in Saylor’s
direction, as he had done on the other instances, Cooley
“started staring straight forward out of the windshield of his
                UNITED STATES V. COOLEY                    21

truck, as if he was looking through his son” on his lap.
Cooley’s “breathing really became shallow and rapid, and he
had a moment where he just wasn’t doing anything, wasn’t
moving.” As someone who taught other officers as a “use-
of-force instructor,” Saylor thought this seemed like what is
sometimes called a “thousand-yard stare,” which can be a
sign of an imminent assault. At that point, Saylor drew his
weapon, but did not point it at Cooley. Saylor ordered him
to keep his hands visible and to slowly retrieve his ID “and
only his ID.” Cooley then produced a Wyoming driver’s
license. Saylor tried to call in the license on the spot with
his hand-held radio, but he could not get a signal. Although
Saylor thought the radio in his patrol car would work, he
concluded that for safety reasons he could not simply go
back to his vehicle.

    Instead, Saylor went around the back of the Dodge to the
passenger side, so that he would have some ability to shield
himself if the encounter turned violent. Saylor then opened
the passenger door and confirmed that no one else was in the
vehicle. Saylor saw that, “in the area where [Cooley] had
been reaching his hand” earlier, there was a loaded
semiautomatic pistol. Saylor asked why Cooley had not
mentioned the pistol, and Cooley said that he had not known
it was there. Saylor reached for the pistol and disarmed it,
and he could see that the rifles were unloaded.

    Saylor testified that, at a minimum, he wanted to run the
driver’s license at his patrol car, and so he ordered Cooley
out of the truck. After patting down Cooley, Saylor moved
to place Cooley and his son in the patrol unit. Cooley asked
if he could first empty his pockets, and in addition to bills,
Cooley removed small Ziploc bags that Saylor thought were
commonly used “for the packaging and sale of narcotics,
specifically, in [his] experience, methamphetamines.”
22               UNITED STATES V. COOLEY

Recalling that at some point in their conversation Cooley had
vaguely mentioned that somebody might be coming to meet
him at the side of the road, Saylor decided to radio for
backup and to secure the scene before running a records
check. Saylor retrieved the rifles and pistol from the Dodge,
turned off the ignition, and took the keys. In leaning to reach
the keys, he noticed “glass, smoking pipe and [a] plastic
baggie containing what appeared to be methamphetamine.”
Other officers soon arrived, including a county deputy. A
subsequent search of the vehicle disclosed more than
50 grams of methamphetamine.

                               B

    Cooley was indicted in the district court on drug-
trafficking and firearms charges, and he moved to suppress
evidence from his encounter with Saylor. The district court
conducted a hearing and granted Cooley’s motion to
suppress.

    The Government appealed and the panel affirmed. See
Cooley, 

. The panel held that, because tribes
lack the authority to exclude non-Indians from state or
federal highways that run through a reservation, tribes “lack
the ancillary power to investigate non-Indians who are using
such public rights-of-way.” 

According to the
panel, a tribe may stop anyone suspected of violating tribal
law on public rights-of-way “as long as the suspect’s Indian
status is unknown.” 

Once a suspected violator
is stopped, the officer “will typically need ‘to ask one
question’ to determine whether the suspect is an Indian.” 

If the suspect turns out to be a non-Indian,
then (according to the panel) the tribal officer may conduct
no further investigation, and the officer may continue to
detain the non-Indian only if it is then “obvious” or
“apparent” that the non-Indian has committed a state or
                 UNITED STATES V. COOLEY                     23

federal crime. 

1147–48. In that circumstance,
the panel stated, the non-Indian may be detained long
enough to turn him or her over to the appropriate state or
federal authorities. 

If the officer persists in the
absence of an obvious violation, then the tribal officer’s
actions are presumptively unreasonable under Fourth
Amendment principles, as made applicable under ICRA. 

The only exception would be that the officer
could still exercise the citizen’s-arrest authority of a private
citizen under the “common law of the founding era.” 

That, according to the panel, limits the officer to
arresting for felonies committed in the officer’s presence and
forbids the officer from conducting any searches. 

& n.9.

    Because Saylor’s actions clearly exceeded the panel’s
narrow conception of tribal police authority, the panel held
that Saylor violated the Fourth Amendment principles made
applicable to tribes under ICRA. 

The panel
therefore affirmed the order granting Cooley’s motion to
suppress.

                              II

    To set the panel’s analysis in context, and to make the
panel’s errors more apparent, it helps first to summarize the
various sources of tribal authority over non-Indians within
the boundaries of a reservation.

                               A

    “Tribal authority over the activities of non-Indians on
reservation lands is an important part of tribal sovereignty.”
Iowa Mut. Ins. Co. v. LaPlante, 

, 18 (1987). That
authority, however, is subject to significant limitations.
Chief among these is the settled rule that “Indian tribal
24               UNITED STATES V. COOLEY

courts” may not exercise “criminal jurisdiction over non-
Indians.” 

(emphasis added).
Thus, even with respect to conduct by non-Indians within the
reservation, a tribe may neither apply its substantive criminal
law to non-Indians nor try a criminal charge against a non-
Indian.

     As to a tribe’s civil jurisdiction, the tribe’s authority
depends upon whether the non-Indian’s conduct occurred
“on tribal land” within the reservation or on land that, while
still within the reservation, has been “alienated” in fee
simple to a non-Indian. 

. Tribes
“retain considerable control over nonmember conduct on
tribal land,” 

but “the civil authority of
Indian tribes and their courts with respect to non-Indian fee
lands” only extends to non-Indians in the two situations set
forth in Montana v. United States, 

(1981). See

(emphasis added). A state highway
running through a reservation is considered, for
jurisdictional purposes, to be equivalent to reservation “land
alienated to non-Indians.” 

    Under the first Montana exception, a tribe may exercise
regulatory and adjudicatory jurisdiction over “‘activities of
nonmembers who enter consensual relationships with the
tribe or its members, through commercial dealing, contracts,
leases, or other arrangements.’” 

(quoting

). “The second exception to
Montana’s general rule [of no civil jurisdiction over non-
Indians on non-Indian fee lands] concerns conduct that
‘threatens or has some direct effect on the political integrity,
the economic security, or the health or welfare of the tribe.’”

(quoting 

). To fall within
this second exception, regulatory or adjudicatory jurisdiction
must be “‘necessary to protect tribal self-government’” or
                 UNITED STATES V. COOLEY                      25

“crucial to ‘the political integrity, the economic security, or
the health or welfare’” of the tribe. 

(quoting

, 566).

                               B

    Against this general framework of tribal authority over
non-Indians, the case law recognizes three distinct sources
of tribal authority to investigate and detain non-Indians
within the boundaries of a reservation.

                               1

    First, tribes retain, on tribal land, “a landowner’s right
to occupy and exclude” non-Indians entirely, see 

, and this “power to exclude trespassers from
the reservation . . . necessarily entails investigating potential
trespassers.” United States v. Becerra-Garcia, 

, 1175 (9th Cir. 2005) (emphasis added). Once
identified, such trespassers can be detained for the limited
amount of time necessary to expel them from the reservation.

                               2

    Second, a tribe’s sovereignty includes an additional,
more limited power of expulsion that extends even to non-
Indians on alienated fee lands. The fact that tribes lack
criminal jurisdiction to try non-Indians does not mean that
they must stand idly by and let non-Indians “violate the law
with impunity” within the reservation. Duro v. 

. On the contrary, a tribe’s sovereignty
includes the 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 over
them:
26               UNITED STATES V. COOLEY

       Tribal law enforcement authorities have the
       power to restrain those who disturb public
       order on the reservation, and if necessary, to
       eject them. Where jurisdiction to try and
       punish an offender rests outside the tribe,
       tribal officers may exercise their power to
       detain the offender and transport him to the
       proper authorities.

This more limited power to eject lawbreakers
does not rest on the general landowner-based power of
exclusion from tribal lands, because it expressly extends to
“land alienated to non-Indians,” including “rights-of-way
made part of a state highway.” 

&
n.11.

    Moreover, this “power of the [tribe] to exclude non-
Indian state and federal law violators from the reservation
would be meaningless were the tribal police not empowered
to investigate such violations,” and so “[o]bviously, tribal
police must have such power.” Ortiz-

(emphasis added). This power to investigate, in turn,
embraces the power to temporarily detain a non-Indian based
on reasonable suspicion, and to conduct the sort of limited
on-the-spot investigation permitted by Terry v. 

. See also United States v. 

–80 (holding that “tribal police officers do not lack
authority to detain non-Indians whose conduct disturbs the
public order on their reservation” and that “[a]t the time that
the tribal officers stopped Mr. Terry they clearly had a
reasonable and articulable suspicion that ‘criminal activity
may be afoot’”) (quoting Terry v. 

);

& n.4 (“tribal law enforcement
officers have the authority to investigate on-reservation
violations of state and federal law as part of the tribe’s
                 UNITED STATES V. COOLEY                     27

inherent power as sovereign,” and this power extends to non-
Indians “stopped on a state highway”); 

(tribe’s power “to restrain non-Indians who commit
offenses within the exterior boundaries of the reservation
and to eject them by turning such offenders over to the
proper authority” includes the ancillary “authority to
investigate violations of state and federal law”) (emphasis
added) (citing Ortiz-

); 

(“[T]he Tribe’s authority to stop and detain
is not necessarily based exclusively on the power to exclude
non-Indians from tribal lands, but may also be derived from
the Tribe’s general authority as sovereign.”) (emphasis
omitted).

    In Ortiz-Barraza, a tribal police officer on a reservation
adjoining the border with Mexico developed a reasonable
suspicion that a pickup truck had crossed the international
border and might be engaged in “smuggling of 

–81. The officer followed the vehicle onto
the state highway that ran through the reservation, and he
approached the vehicle, which had stopped, to briefly
investigate his suspicions. 

During the ensuing
encounter, the officer frisked Ortiz-Barraza, searched his
vehicle, and discovered marijuana. See 

We
held that the officer had the authority to conduct this
investigation of a non-Indian based on reasonable suspicion,
and we specifically rejected the argument that a different
conclusion was warranted because the encounter had taken
place on a state highway. 

see also 

–06 & n.4; 

–41.

                               3

    Third, we have recognized an additional category of
extremely limited investigatory power over non-Indians that
is purely ancillary to the tribe’s authority to apply tribal law
28              UNITED STATES V. COOLEY

to tribal members. In Bressi v. Ford, 

(9th Cir.
2009), a tribal police department erected a roadblock across
a state highway within the reservation in order to “check for
sobriety, drivers’ licenses, registration, and possession of
alcohol.” 

Because the roadblock was on a state
highway, which is considered to be equivalent to alienated
non-Indian fee land, the tribal officers’ detention and
investigation of all drivers, including non-Indians, could not
be justified under the general power to exclude non-Indians
from tribal lands. 

And because the roadblock
was “suspicionless,” and “[a]ll vehicles are stopped,” 

(emphasis altered), the detention and investigation of
all drivers, including non-Indians, could not be justified as
an exercise either of “the power to restrain those who disturb
public order on the reservation,” 

, or
the “power . . . to exclude non-Indian state and federal law
violators from the reservation,” Ortiz-

(emphasis added).

    Nonetheless, we stated that an across-the-board
roadblock could be upheld as being purely ancillary to the
tribe’s “full law enforcement authority over its members and
nonmember Indians on that highway.” 

(emphasis added). Because, however, the tribe’s
power to enforce tribal law against tribal members does not
extend to non-Indians, a roadblock “established on tribal
authority” would be “permissible only to the extent that the
suspicionless stop of non-Indians is limited to the amount of
time, and the nature of inquiry, that can establish whether or
not they are Indians.” 

–97. Consequently, when a
detention is based solely on such “purely tribal authority,”
only “apparent” or “obvious violations” of law may prolong
the detention of a non-Indian, and any “inquiry going beyond
Indian or non-Indian status, or including searches for
evidence of crime, are [sic] not authorized” in the “case of
                    UNITED STATES V. COOLEY                             29

non-Indians.” 

Bressi, the tribal officers “did
not confine themselves to inquiring whether [Bressi] was or
was not an Indian,” their actions fell outside the scope of
their authority as tribal officers. 

4

                                    III

    The panel’s decision here mixed up these distinct sources
of tribal authority over non-Indians and thereby erroneously
held that the second power described above—the power to
detain and investigate reasonably suspected non-Indian
violators of state and federal law—does not exist. Because
Ortiz-Barraza squarely holds to the contrary, the panel’s
opinion can only be correct if Ortiz-Barraza is “clearly
irreconcilable” with intervening Supreme Court authority.
Miller v. 

. That “high standard” is
not met here. United States v. Delgado-Ramos, 

, 1239 (9th Cir. 2011). Although the panel did not
mention Ortiz-Barraza at all, the concurrence now asserts
that Ortiz-Barraza has been overruled by the Supreme
Court’s decision in Strate. See Concurrence at 9–10. That
is plainly incorrect.




     4
        In Bressi, the tribal officers also happened to have been
empowered under Arizona law to enforce state law within the

. Accordingly, the specific holding of Bressi
was that, because the roadblock could not be characterized as “purely a
tribal endeavor,” the officers’ conduct of the roadblock took place under
color of state law and therefore subjected them to suit under § 1983 to
the extent that the roadblock did not comply with Fourth Amendment
standards. 

897; see also 

(noting that § 1983 would
not have applied to the tribal officers in that case if they had been acting
under color of tribal law).
30               UNITED STATES V. COOLEY

                               A

    The panel’s confused analysis jumbles together these
various distinct tribal powers and ends up generating a
convoluted set of rules that will prove difficult for tribal
officers to administer and that will leave significant gaps in
their practical ability to ensure public safety on Indian
reservations.

    The panel’s critical mistake was that it held that a tribe’s
power to investigate potential crimes by non-Indians rests
solely on the general tribal power to exclude non-Indians
from tribal lands, i.e., the first power described above.

; see also Concurrence at 9–10.
Because Strate holds that a tribe lacks such a general power
of exclusion with respect to a “state or federal highway” on
a right-of-way through the reservation, the panel reasoned,
“[t]ribes also lack the ancillary power to investigate non-
Indians who are using such public rights-of-way.” 

. But as explained below, Strate coupled its
holding that state highways are equivalent to fee lands with
an express reaffirmation of the power of tribal officers to
conduct traffic stops of non-Indians for violations of state
law. See infra at 34–35. That is, Strate expressly reaffirmed
the second power described above and recognized in Ortiz-
Barraza.

    Having already crossed wires between the first two
distinct tribal powers discussed above, the panel then
crossed wires with the third power as well, by further
claiming that the tribe’s authority to enforce substantive
tribal law against tribal members (the distinct power
discussed in Bressi) is the sole source for a tribal officer’s
authority over non-Indians suspected of violating state or
federal law on public highways. 

;
see also Concurrence at 8–9. According to the panel, a tribal
                 UNITED STATES V. COOLEY                     31

officer may only conduct stops for suspected violations of
“tribal law,” but since the tribal status of most violators will
not be known until the driver is pulled over, the officer may
stop any driver “as long as the suspect’s Indian status is
unknown.” 

(emphasis added); see
also Concurrence at 8–9. When a tribal officer thus stops a
person without knowing whether he or she is an Indian, the
officer’s “initial authority is limited to ascertaining whether
the person is an Indian,” and if the person is not, then the
officer lacks any investigative authority and can only
continue to detain the non-Indian if it is “‘apparent’ or
‘obvious’ that state or federal law is being or has been
violated.” 

(emphasis added)
(quoting 

–97). Thus, if a tribal officer
pulls over a vehicle based merely upon reasonable suspicion
of drunk driving, then once the officer has determined that
the driver is not an Indian, the officer may conduct no
investigation to dispel the suspicion or to ripen it into
probable cause—no questions, no breathalyzer, no walking
in line, etc. See Concurrence at 4 (if a suspected drunk driver
turns out to be a non-Indian, the driver may be detained only
if he or she was “obviously—apparently—violating state of
federal law when stopped”) (emphasis added).

    As noted above, the panel held that this Bressi power to
detain suspected tribal law violators exists only “as long as
the suspect’s Indian status is unknown.” 

(emphasis added); see also Concurrence at 8–9. In
the panel’s view, when a tribal officer proceeds to detain and
investigate a person that he or she knows to be a non-Indian,
the tribal officer’s actions are analogous to those of an
officer acting outside of his or her geographic jurisdiction.

–48. Because the “common law of
the founding era often deemed searches and seizures
unreasonable when police officers acted outside the bounds
32              UNITED STATES V. COOLEY

of their sovereign’s jurisdiction,” the panel reasoned, such
an extra-jurisdictional search or seizure would violate Fourth
Amendment principles (made applicable to Indian tribes by
ICRA, 25 U.S.C. § 1302(a)(2)) unless the officer’s actions
fall within the citizen’s-arrest authority of private citizens
under the “common law of the founding era.” 

Under those common law principles, the panel held, a tribal
officer in such circumstances could only detain a non-Indian
whom the officer has “personally observed” to have
committed a “felony.” 

Although the
panel suggests that this citizen’s-arrest power to stop and
detain known non-Indians “roughly comports with” the
Bressi power to continue to detain those who, after being
stopped, are discovered to be non-Indians who have
committed an “obvious” state or federal law violation, 

that suggestion is wrong. Given that, according to the
panel, the citizen’s-arrest power to stop and detain a known
non-Indian extends only to felonies, it will not extend to a
wide array of serious and dangerous traffic offenses that are
only misdemeanors. Because, for example, a first-time DUI
in Montana is generally only a misdemeanor punishable by
not “more than 6 months” in prison, see Mont. Code Ann.
§ 61-8-714(1)(a), the panel’s reasoning presumably means
that a tribal officer cannot stop a drunk driver on a state
highway if the officer knows the driver is a non-Indian.

    Moreover, by holding that a tribal officer’s on-the-spot
authority thus differs dramatically depending upon the
officer’s knowledge of Indian status (both before a stop, as
well as after a stop), the panel’s decision creates a further
practical problem by placing enormous weight on a factor
that will often be ill-suited for such on-the-spot resolution.
Because the panel does not allow a tribal officer to rely on a
“person’s physical appearance,” officers will likely have to
“rely on a detainee’s response when asked about Indian
                  UNITED STATES V. COOLEY                      33

–43. The incentive to lie, of course,
will be significant, and because (according to the panel)
there is no authority to investigate or search a non-Indian,
the officer presumably cannot search (for example) for a
tribal identification card (if the person happens to have one).
And even if the person claims to be an Indian, the panel
ominously suggests that the officer may not be in the clear
even then: the panel expressly reserves the question of what
authority a tribal officer has when he or she “asks whether
the individual is an Indian and is told, incorrectly, that he is.”

n.10.

    Considering all of these practical difficulties and issues
raised by the panel’s opinion here, I am reminded of Justice
Scalia’s remark: “There are many questions here, and the
answers to all of them are ridiculous.” Grady v. Corbin, 

, 542 (1990) (Scalia, J., dissenting). But all of these
intractable practical issues evaporate if we adhere—as we
must—to our decision in Ortiz-Barraza, because it correctly
holds that a tribal officer has the on-the-spot power to briefly
detain and investigate a reasonably suspected lawbreaker
regardless of whether he or she is known to be a non-Indian.
Under Ortiz-Barraza, issues over tribal status only affect
who ultimately can charge and prosecute the person and not
the Terry v. Ohio authority to temporarily detain and
investigate the person. If a detainee’s tribal status cannot be
satisfactorily resolved on the spot, the officer can
nonetheless continue with the Terry investigation and, if the
officer’s reasonable suspicion ripens into probable cause, the
tribal status of the arrestee can then be sorted out as soon as
practicable (at the stationhouse, if necessary).

   Of course, if the Supreme Court in Strate truly foisted
upon us the byzantine regime described in the panel’s
opinion, then we are bound to implement it, regardless of
34              UNITED STATES V. COOLEY

what Ortiz-Barraza held. But Cooley’s suggestion that
Strate overruled Ortiz-Barraza does not survive even casual
scrutiny. On the contrary, Strate reinforces the correctness
of Ortiz-Barraza.

                              B

    Three observations about Strate suffice to make clear
that the panel’s rejection of tribal investigative authority
over non-Indians on state and federal highways is wrong.

                              1

    First, Strate itself refutes the panel’s assumptions that
(1) an across-the-board tribal power to conduct Terry-style
investigations of non-Indians for violations of state or
federal law can only rest on the general power to exclude
non-Indians from tribal lands, and (2) any such power is
therefore inapplicable to state or federal highways within
reservations. After concluding that a state highway running
through a reservation is more akin to alienated, non-Indian
land than to tribal land, the Strate Court immediately added
the following observation in a footnote:

       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.
       Cf. State v. Schmuck, 121 Wash. 2d 373, 390,
       

, 1341 (en banc) (recognizing
       that a limited tribal power “to stop and detain
       alleged offenders in no way confers an
       unlimited authority to regulate the right of the
                    UNITED STATES V. COOLEY                            35

         public to travel on the Reservation’s roads”),
         cert. denied, 

(1993).

n.11 (emphasis added). The power
thus expressly reaffirmed by the Supreme Court—namely, a
tribal officer’s affirmative power to “stop[]” a “nonmember”
on a state “highway for conduct violating state law”—cannot
have been based on the general power to exclude from tribal
lands (the first power described above), because the highway
is not considered to be equivalent to tribal lands, but rather
to reservation land that has been alienated to non-Indians.

Nor does it rest on the authority to enforce tribal
law against tribal members (the third power described above,
which was addressed in Bressi), because the Court explicitly
described it as a power to conduct traffic “stop[s]” of
“nonmembers” for violations of “state law.” 

n.11
(emphasis added). 5 This is precisely the additional category
of authority recognized in Ortiz-Barraza, and it is expressly
affirmed by the Supreme Court in Strate.

                                    2

    Second, the Court’s explicit recognition that tribal
officers may conduct traffic stops of non-Indians for
violations of state law on state highways within reservations
can only be understood against the familiar backdrop of the
settled law governing such stops. The predicate necessary
to conduct a traffic stop and to temporarily detain the driver

    5
       The concurrence is therefore wrong in positing that the power
reaffirmed in Strate is the one recognized in Bressi rather than the one
addressed in Ortiz-Barraza. See Concurrence at 8–9. Nothing in
Strate’s straightforward and express recognition of tribal traffic stop
authority over non-Indians for violations of state law can be said to adopt
the bizarre and complex collection of rules that the panel purports to
derive from the very limited Bressi power. See supra at 12–14.
36               UNITED STATES V. COOLEY

is not, as the panel would have it here, an “obvious” violation
of state law (much less a felony committed in the officer’s
presence), 

–47; rather, “officers need
only ‘reasonable suspicion’—that is, ‘a particularized and
objective basis for suspecting the particular person stopped’
of breaking the law.” 

(emphasis
added) (citation omitted). Moreover, “[a] seizure for a
traffic violation justifies a police investigation of that
violation. ‘[A] relatively brief encounter,’ a routine traffic
stop is ‘more analogous to a so-called “Terry stop” . . . than
to a formal arrest.’” Rodriguez v. United States, 

, 354 (2015) (emphasis added) (citation omitted). Thus,
by explicitly endorsing traffic stops of non-Indians for
violations of state law on state highways within the
reservation, the Supreme Court implicitly but unmistakably
endorsed the concomitant power to conduct an on-the-spot
investigation of a reasonably suspected state-law violation.

                              3

    Third, Strate’s citation of Schmuck further confirms both
of these observations and puts definitively to rest any
suggestion that Strate overruled Ortiz-Barraza. Schmuck
refutes the panel decision’s core premises, which are that
(1) the Terry-style investigative authority recognized in
Ortiz-Barraza can only be justified as an exercise of the
tribe’s plenary power to exclude non-Indians from tribal
lands, and (2) therefore (after Strate) that authority does not
extend to state highways and other non-tribal lands within
the 

–42.

    As Schmuck explained, “the Tribe’s authority to stop and
detain is not necessarily based exclusively on the power to
exclude non-Indians from tribal lands, but may also be
derived from the Tribe’s general authority as 

. Noting that the standards set forth in
                   UNITED STATES V. COOLEY                           37

–66, define a tribe’s authority over
non-Indians on fee land within the reservation, the Schmuck
court held that the on-the-spot power to stop and detain non-
Indian violators of state law rested on the tribe’s power
“‘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 

(emphasis
in original) (quoting 

) (relying on
the “second” Montana exception to the general rule against
asserting regulatory jurisdiction over non-Indians on fee
land); see also Duro v. 

(“Tribal law
enforcement authorities have the power to restrain those who
disturb public order on the reservation, and if necessary, to
eject them” by transporting them, if non-Indians, “to the
proper authorities”). On that basis, Schmuck expressly
“agree[d] with the Ninth Circuit” when we held in Ortiz-
Barraza that a tribe has “the power to detain when a non-
Indian is traveling on a public 

–41.
The “public roads remain part of the Reservation and are
within the territorial jurisdiction of the Suquamish tribal
police, at least for the limited purpose of asserting the
Tribe’s authority to detain and deliver alleged offenders.”

(emphasis added). 6


    6
       Earlier in its opinion, the Schmuck Court noted that, in the
circumstances of that case, in which the officer did not know whether the
person he was stopping was an Indian or a non-Indian, the power to pull
over any suspected violator could also be viewed as a necessary ancillary
power to the tribe’s authority to enforce tribal law against tribal
members (i.e., the third power described above, which was addressed in

–37. But Schmuck does not state that a tribal
officer lacks the power to stop and detain reasonably suspected
lawbreakers known to be non-Indian. On the contrary, as explained,
Schmuck states that “the Tribe’s authority to stop and detain” non-
38                  UNITED STATES V. COOLEY

    The sole authority cited by the Strate Court on the issue
of tribal traffic stops of non-Indians on state highways—
namely, Schmuck—was thus one that (1) expressly endorsed
Ortiz-Barraza; (2) explained that the tribal power to stop
non-Indians on state highways rested, not just on the power
to exclude (as the panel would have it), but also on the tribe’s
sovereign power to protect its members; and (3) expressly
rejected the view that this “limited” authority did not apply
to non-Indians on state highways. The concurrence buries
its response to Schmuck in a footnote, claiming that the
Supreme Court cited Schmuck merely “to emphasize the
limits” of tribal detention authority. See Concurrence at 9
n.1. This argument is non-responsive, because it ignores
Schmuck’s description of the power that is included within
those limits—namely, the Ortiz-Barraza power to detain and
investigate non-Indians based on reasonable suspicion. Far
from indicating a rejection of Ortiz-Barraza, the Supreme
Court’s citation of Schmuck can only be viewed as an
endorsement of our decision in Ortiz-Barraza.

                                   C

    The standard for a three-judge panel to find that
intervening higher authority has overruled one of our
precedents is high—Ortiz-Barraza must be “clearly
irreconcilable” with Strate. Miller v. 

. Here, for the reasons set forth above, there is no
conflict between Strate and Ortiz-Barraza at all. On the
contrary, Strate affirmatively supports Ortiz-Barraza. But
at a minimum, the above analysis of Strate shows that it can
easily be reconciled with Ortiz-Barraza, and under Miller v.

Indians fits comfortably within the tribe’s general sovereign authority to
protect the tribal community from criminal and dangerous behavior. 

.
                   UNITED STATES V. COOLEY                           39

Gammie, the panel was bound to read the cases consistently,
if possible, rather than to adopt a reading that purports to
overrule a prior three-judge panel decision. 7

    In the proceedings below, the district court granted
Cooley’s motion to suppress based solely on the ground that
Officer Saylor lacked the authority to detain and investigate
a non-Indian for a suspected violation of state or federal law
on a state highway. 8 Because, under Ortiz-Barraza, Officer
Saylor clearly had such authority, the district court’s order
should have been reversed.

                                  IV

   Even if the panel were correct in concluding that, as a
matter of federal Indian law, Officer Saylor lacked authority
to conduct an on-the-spot investigation of a non-Indian
motorist on a state highway within the reservation, the panel
separately erred in further holding that this absence of



    7
       The concurrence’s heavy reliance on Bressi seems almost to
suggest that Ortiz-Barraza should no longer be considered good law
because (in the concurrence’s view) it is inconsistent with Bressi. But,
of course, Bressi had no authority to overrule Ortiz-Barraza and did not
purport to do so. And if the concurrence were right in insinuating that
there is a conflict between Ortiz-Barraza and Bressi, that would be yet
another reason why we should have reheard this case en banc. In any
event, Bressi is distinguishable from Ortiz-Barraza because Bressi
addressed the scope of tribal power to conduct “suspicionless stop[s] of
non-Indians” on public 

(emphasis added).
    8
      Although the encounter here began, not as a Terry-stop, but as a
“welfare check” of the occupants of a vehicle sitting by the side of the
highway, Saylor’s subsequent actions during that encounter rested upon
the sort of detention and investigatory authority covered by Terry.
40               UNITED STATES V. COOLEY

authority violated Fourth Amendment principles applicable
to Indian tribes under ICRA, 25 U.S.C. § 1302(a)(2).

    After concluding that Saylor exceeded the scope of his
authority as a tribal officer, the panel analogized this case to
that of an officer executing a warrant, or conducting an
arrest, outside the officer’s geographic 

–48. Such a search or seizure, the panel
held, would presumptively violate Fourth Amendment
principles “even if the officer had sufficient substantive
grounds to conduct it.” 

Accordingly, the panel
concluded, Saylor’s actions were consistent with “ICRA’s
Fourth Amendment parallel only if, under the law of the
founding era, a private citizen could lawfully take those
actions.” 

(emphasis added). Because Saylor
exceeded that private-citizen authority, his eventual seizure
of Cooley during the encounter violated Fourth Amendment
principles. 

private citizens had no power
at all to search under the common law of the founding era,
Saylor’s searches also necessarily violated ICRA’s Fourth
Amendment parallel. 

reasoning fails at the very first step, because
its analogy to a geographically extra-territorial arrest is
wrong. Here, Saylor did not act outside his territorial
jurisdiction, because all of his actions took place within the
reservation and in Indian country. The concurrence suggests
that Saylor did act outside his territorial jurisdiction because
his actions took place on a highway that, under Strate, is
“‘equivalent, for [non-Indian] governance purposes, to
alienated, non-Indian land.’” Concurrence at 10 (quoting

) (footnote omitted) (alteration made
by concurrence). But alienated, non-Indian land is still land
within the reservation. 

(“‘non-Indian fee
lands’ … refers to reservation land acquired in fee simple by
                UNITED STATES V. COOLEY                    41

non-Indian owners”) (emphasis added). As a result, the
tribe’s “power over nonmembers on non-Indian fee land is
sharply circumscribed,” Atkinson Trading Co., Inc. v.
Shirley, 

, 650 (2001), but it is not non-existent.
Instead, the tribe may only exercise the limited powers set
forth in Montana’s two exceptions. 

.
Thus, the problem here (if any) is not that Saylor acted
outside his territorial jurisdiction—he did not do so—but
rather that his actions were not within the scope of his
authority to perform under the applicable law within his
geographic jurisdiction. Saylor would have had such
authority had he been “deputized” under Montana law to
enforce Montana criminal law against non-Indians within
the reservation, but as the panel noted, no such cross-
designation agreement exists between the Crow Tribe and
any state or local law enforcement agency. 

& n.2; cf. Mont. Code Ann. §§ 18-11-101 et seq.
(authorizing such “state-tribal cooperative agreements”).

    The proper analogy is thus not to an official acting
outside his or her territorial jurisdiction. See United States
v. Henderson, 

, 1117 (9th Cir. 2018)
(magistrate judge’s issuance of warrant to be executed
outside the geographic bounds of the judge’s district violated
the Fourth Amendment); see also State v. Eriksen, 

, 1083–84 (Wash. 2011) (tribal officer had no authority
to arrest non-Indian outside reservation, even though he had
pursued her from inside the reservation; limited Montana
authority over non-Indians was unavailable outside
reservation boundaries). Rather, the proper analogy is to an
officer acting without the necessary state-law authorization
to take certain investigatory actions within that officer’s
geographic jurisdiction. And under settled Supreme Court
and Ninth Circuit precedent, an officer’s lack of
authorization under state law to conduct an otherwise
42                UNITED STATES V. COOLEY

reasonable search and seizure within that officer’s territorial
jurisdiction does not violate the Fourth Amendment. See,
e.g., 

(fact that Virginia law
prohibited arresting defendant for driving on a suspended
license was immaterial to the Fourth Amendment analysis;
“while States are free to regulate such arrests however they
desire, state restrictions do not alter the Fourth
Amendment’s protections”); 

(although “deputy sheriff lacked the authority under
Oregon law to apprehend Petitioners based solely on a
violation of federal immigration law,” under “Moore, the
deputy sheriff’s violation of Oregon law does not constitute
a Fourth Amendment violation”); Saunders, 473 Fed. App’x
at 770 (although “Silva, as a Deputy Animal Control Officer
within the Yavapai County Sheriff’s Office, lacked the
authority to conduct an arrest,” such “‘state restrictions [on
arrest authority] do not alter the Fourth Amendment’s
protections’”) (alterations in original) (quoting 

); see also Johnson v. 

, 238 (although arresting officer, as “an Auxiliary
Reserve Police Officer, . . . lacked authority under state law
to conduct a traffic stop or arrest,” that did “not establish that
his conduct violated the Fourth Amendment”).

    The panel purported to distinguish Moore on the grounds
that there is no contention here that Saylor “act[ed] in
violation of state (or federal) law,” and that the defect instead
is that Saylor exceeded the sovereign powers of a tribe by
investigating 

–48 (emphasis
added); see also Concurrence at 10 (contending that Moore
only applies when state “restrictions” are violated). But as
the cases cited above show, Moore also applies when (as
here) the asserted defect is that the officer lacks the
necessary authorization under state law to conduct a
particular search or seizure within that officer’s territorial
                    UNITED STATES V. COOLEY                           43

jurisdiction. See supra at 41–42; see also 

(“In Cooper v. California, 

(1967), we
reversed a state court that had held the search of a seized
vehicle to be in violation of the Fourth Amendment because
state law did not explicitly authorize the search. We
concluded that whether state law authorized the search was
irrelevant.”) (emphasis added). Here, Saylor could have
seized Cooley, and searched his vehicle, had he been
deputized to do so under Montana law, but this purely state-
law deficiency is irrelevant under Moore. The historical
authorities on which the panel relies, which address searches
and seizures outside an officer’s geographic territorial
jurisdiction, see 

–47, bear no
resemblance to the issue in this case.

    The concurrence suggests that the distinction between
lack of authorization and lack of territorial jurisdiction
makes no sense, because even the defect in Henderson could
be recast as a lack of authorization. See Concurrence at 10.
The point is a bit ironic, because (as the panel notes in its
opinion) that is essentially the reason that the Third and
Tenth Circuits gave for declining to find that extraterritorial
arrests in another state violate the Fourth 

. 9 For the panel to suggest a converse

    9
       Thus, for example, the Tenth Circuit held that even geographically
extraterritorial arrests by an officer do not violate the Fourth Amendment
under Moore because the defect is merely the absence of authorization
under the law of the neighboring state. See United States v. Jones,

, 1312 (10th Cir. 2012) (“In particular, we specifically
reject Mr. Jones’s assertion that . . . ‘[w]hen a person is seized outside
the state jurisdictional limit of a law enforcement officer who is acting
without a warrant, that person’s Fourth Amendment constitutional right
to be free from unreasonable seizures has been violated.’”). That broader
question is not presented here, because Saylor did not act outside the
geographic boundaries of the reservation. But the Tenth Circuit’s
44                  UNITED STATES V. COOLEY

rule—that every lack of authorization should be treated as
equivalent to acting outside one’s territorial jurisdiction—
would be flatly contrary to Moore.

                                   V

    The fact that the panel’s decision conflicts with
controlling Supreme Court and Ninth Circuit precedent, and
with decisions of other appellate courts, is alone enough to
warrant our rehearing this case en banc. See Fed. R. App. P.
35(b)(1)(A). But the “exceptional importance” of the
questions presented in this case provides yet an additional
reason. See Fed. R. App. P. 35(b)(1)(B). Raising the bar for
tribal investigations of non-Indian misconduct on fee lands
from reasonable suspicion to “probable-cause-plus” is a very
big deal, and one that literally may have life-or-death
consequences for many of the hundreds of thousands of
persons who live on Indian reservations located within this
circuit. In particular, three factors underscore the significant
practical importance of the issues raised by this case.

    First, in many cases, the amount of reservation land that
is held in fee by non-Indians (and thus covered by the panel’s
rule) is high. For example, in Oliphant, the Court noted that,
for the reservation at issue there, “approximately 63%” of
the total acreage was “owned in fee simple absolute by non-

n.1. The Court likewise noted in
Montana that 28% of the land in the Crow Indian
reservation—the one at issue in this case—was “held in fee
by non-Indians.” 

.




decision in Jones underscores that the panel’s analysis reflects a circuit
split on this point.
                 UNITED STATES V. COOLEY                     45

    Second, the number of non-Indians on reservations is
also significant. According to the most recent census report,
roughly 77 percent of the 4.6 million people who live in
“American Indian areas” (which includes reservations, off-
reservation trust areas, and other tribal areas) are non-Indian.
Tina Morris, Paula L. Vines, & Elizabeth M. Hoeffel, The
American Indian and Alaska Native Population: 2010, U.S.
Census Bureau 13–14 (2012), https://www.census.gov/
history/pdf/c2010br-10.pdf (last visited Jan. 13, 2020).
Although the inclusion of non-reservation tribal areas in this
statistic precludes directly extrapolating from that statistic
the exact overall percentage of non-Indians on reservations,
it nonetheless suggests that the number is not insignificant.
Reservations appear to vary widely on this score: for the
reservations in this circuit with the largest Indian
populations, the percentage of non-Indians residing on the
reservation ranges from a high of 68% on the Flathead
Reservation in Montana to 1.2% on the Blackfeet
Reservation in Montana. See 

    Third, the volume of criminal activity within reservation
boundaries is in many cases higher than in other parts of the
country. Indian reservations “experience violent crime rates
two and a half times higher than the national average.”
Kevin Morrow, Bridging the Jurisdictional Void: Cross-
Deputization Agreements in Indian Country, 

. Rev.
65, 68 (2019). Traffic offenses are a serious issue, with the
Centers for Disease Control and Prevention concluding that
adult “motor vehicle-related death rates” for American
Indians and Alaska Natives “are more than twice that of non-
Hispanic whites or blacks.” Tribal Road Safety: Get the
Facts, Ctrs. for Disease Control & Prevention,
https://www.cdc.gov/motorvehiclesafety/native/factsheet.ht
ml (last visited Jan. 12, 2020). “Alcohol-related offenses are
exceptionally problematic on tribal lands.” Fresh Pursuit
46                  UNITED STATES V. COOLEY

from Indian Country: Tribal Authority to Pursue Suspects
onto State Land, 129 Harv. L. Rev. 1685, 1690 (2016).

    In light of these factors, the troubling consequence of the
panel’s opinion will be that tribal law enforcement will be
stripped of Terry-stop investigative authority with respect to
a significant percentage (and in some cases a majority) of the
people and land within their borders. 10 Instead, tribal
officers responding to disturbances on fee lands will be
limited, in the case of non-Indians, to intervening only with
respect to “obvious” or “apparent” crimes, or perhaps only
with respect to felonies committed within the officer’s
presence. Given the resulting practical significance to day-
to-day maintenance of public order within this circuit’s
many Indian reservations, the panel’s opinion in this case is
as disturbing as it is mistaken.

    Further, the practical problems created by the panel’s
decision are unlikely to be resolved by other sources of law
enforcement authority. In particular, states may not have the
resources to adequately monitor, on their own, the state and
federal highways that traverse Indian land. Montana’s
eighth highway patrol district, for example, encompasses
three of the state’s seven tribal reservations (the Blackfeet,
Rocky Boy’s, and Fort Belknap Reservations), but is only
policed by 17 full-time highway patrol officers as of 2018.
See Mont. Highway Patrol, 2018 Annual Report 8,
https://dojmt.gov/wp-content/uploads/2018-MHP-AR-for-

     10
        The concurrence uses three emphases to express its astonishment
at the notion that “tribal police could stop, investigate, and detain known
non-Indians anywhere within the boundaries of a reservation for any
reasonably suspected crime.” Concurrence at 7–8. Of course, that is
precisely what Ortiz-Barraza held and what has been the law in this
circuit for more than four decades. The only thing that is astonishing is
that the concurrence finds this astonishing.
                 UNITED STATES V. COOLEY                    47

web.pdf (last visited Jan. 12, 2020); Mont. Governor’s Off.
of Indian Aff., Tribal Nations, Montana.gov,
https://tribalnations.mt.gov/tribalnations (last visited Jan.
12, 2020). Unsurprisingly, it has been observed that “Tribal
officers”—not state or county officers—“are often the first
responders to investigate offenses that occur on the
reservation, even if it is ultimately determined that
jurisdiction lies in state or federal court.” State v. Kurtz,

, 1279 (Or. 2011).

     Nor is cross-deputization a panacea to the problems
wrongly created by the panel’s decision, because many
tribes seem unwilling to make the trade-off inherent in such
a relationship. For example, of the three Montana Indian
reservations that rely predominantly on their own tribal law
enforcement, apparently only one has a cross-deputization
agreement. See District of Montana Indian Country Law
Enforcement Initiative Operational Plan, The U.S.
Attorney’s Office, District of Mont. 1, 7 (2016),
https://www.justice.gov/usao-mt/page/file/934476/download
(last visited Jan. 12, 2020). More generally, “fifty-two tribes
in the continental United States are unable to enforce state
laws on their reservations without a specific local
agreement.” 

, 

. Rev. at 77. BIA
law enforcement is likewise apparently not a cure-all: the
Crow Tribe, which currently has a contract for law-
enforcement services with the BIA, recently announced that,
due to the perceived “ineffective police services” of the BIA,
it is in the process of “transitioning” that contract “to the
Crow Tribe Law Enforcement Department.” Crow Tribe of
Indians, Press Release, Facebook (Nov. 20, 2019, 5:18 PM),
https://www.facebook.com/OfficialCTINews/posts/for-
immediate-releasenovember-20-2019press-release-crow-
agency-mt-the-crow-tribe/736936106823458/ (last visited,
Jan. 12, 2020).
48               UNITED STATES V. COOLEY

    By any definition, a legal issue of such potential practical
significance to the safety and welfare of hundreds of
thousands of our fellow citizens is exceptionally important.

   I respectfully dissent from the denial of rehearing en
banc.