Greetings, Court Fans!

Three more opinions this week, as The Nine continue to chip away at OT20’s remaining backlog. Most notably, in Van Buren v. United States (No. 19-783), an interesting mix (no scare-quotes this time, as it actually is a unique line-up) led by Justice Barrett concluded that the Computer Fraud and Abuse Act (CFAA) does not apply to all individuals who misuse authorized access to a computer, but only to those who exceed their authorized access by obtaining information located in particular files, folders, or databases that are off-limits to him. We’ll have more on yesterday’s decision in Van Buren, the first major case dealing with the CFAA, next time. For now, read on for summaries of United States v. Cooley (No. 19-1414), which held that tribal police officers have authority to detain and search non-Indian persons on public rights-of-way within reservations, and Garland v. Ming Dai (No. 19-1155), which rejected a Ninth Circuit rule that courts reviewing orders denying asylum applications must a treat noncitizen’s testimony as credible in the absence of express adverse credibility findings.

United States v. Cooley (No. 19-1414) addresses the power of tribal police officers to temporarily detain and search non-Indians within reservations. In a unanimous opinion, the Court held that tribal authorities retain fairly broad power to detain and search provided it is necessary to preserve the health and welfare of the tribe.

The case began when Officer James Saylor of the Crow Police Department approached a truck parked on U.S. Highway 212, which runs through the Crow Reservation in Montana. Saylor questioned the driver, Joshua James Cooley, and observed that he appeared to be non-native and had watery, bloodshot eyes. He also happened to notice two semiautomatic rifles on the front seat. Fearing violence, Saylor ordered Cooley out of the car and conducted a pat-down search, during which he found drugs. After Cooley was indicted in federal court on gun and drug charges, the District Court granted Cooley’s motion to suppress the drug evidence on the ground that Saylor lacked authority to detain and search Cooley, a non-Indian. The Ninth Circuit affirmed, concluding that tribal police officers can stop and detain non-Indian suspects but only if they first try to determine whether the suspect is non-Indian and, in the course of doing so, find an apparent violation of state and federal law. Because Saylor didn’t inquire whether Cooley was a non-Indian, the Ninth Circuit found the search invalid.

The Supreme Court unanimously reversed, in a decision by Justice Breyer. Breyer acknowledged that, as a “general proposition,” the inherent sovereign powers of an Indian tribe do not extend to nonmembers of the tribe. But there are two exceptions to that rule, one of which “fits the present case, almost like a glove”: A tribe retains inherent power to exercise civil authority over the conduct of non-Indians on 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 tribe.” Here, Saylor acted to preserve the health and welfare of the tribe, which he reasonably thought might be imperiled if Cooley—apparently drunk and armed—was let alone. Breyer approvingly cited several state court decisions recognizing that tribal police must have the power to detain drunk drivers, for example, as well as the Court’s own decisions permitting tribal police to detain suspects for the purpose of transporting them to proper authorities. Though the Ninth Circuit gave lip service to this authority (and the need for tribal police to preserve the health and welfare of the tribe), its standard is unworkable. If tribal police could only detain suspects for violations observed in the course of determining whether they’re tribe members, it would give actual tribe members an incentive to lie and claim to be non-Indian. And permitting officers to detain and search only in connection with “apparent” legal violations would introduce a new standard into general search-and-seizure law, and with it new interpretation problems.

Justice Alito penned a brief concurrence explaining that he joined the Court’s opinion “on the understanding that it holds no more than the following: On a public right-of-way that traverses an Indian reservation and is primarily controlled by tribal police, a tribal police offer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene.” Whether lower courts will also share that understanding (considering Alito’s vote was not necessary to the judgment) remains to be seen.

Next up, in Garland v. Ming Dai (No. 19-1155), Justice Gorsuch led a unanimous Court in scrapping a longstanding Ninth Circuit immigration rule that, in the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a noncitizen’s testimony as credible and true. Agreeing with numerous Ninth Circuit judges who’ve objected to the rule, Justice Gorsuch concluded that it has no place in a reviewing court’s analysis. While there is a rebuttable presumption of credibility in appeals, judicial proceedings in immigration cases are not “appeals.” Under the INA, the “sole and exclusive means for judicial review of an order of removal” is through a “petition for review,” not an “appeal.” Therefore, while a presumption of credibility might arise in appeals from immigration judges to the BIA, there is no such presumption in the antecedent proceedings before the immigration judge, or in subsequent petitions for review before a federal court. Enough said.

We expect more opinions Monday, so we’ll be back then with the latest, as well as our summary of Van Buren. Until then, enjoy the weekend!

Tadhg and Dave