like other sovereign have the core inherent authority to investigate and detain suspects within their borders for the violation of another sovereign law every single source but this court looks to in assessing inherent tribal authority confirms that limited ability executive entered into numerous treaties that presupposes congress has ratified those treaties and passed affirmed of legislation that reflects that courts have repeatedly upheld it and on the ground law enforcement practice long depended on it the th circuit's decision here upsets all of those understanding it's tribal sovereignty  suggest the tribes are reduced to no more than private citizens in placing rights of way and non indian land on their reservation and i think that's the position respondents taking but even the th circuit realized how untenable that would be so it created a novel complicated and ultimately unworkable law enforcement regime the decision volo replaces familiar th amendment codified in the indian civil rights act with an unprecedented standard that nobody is going to know how to apply officers or courts it will also force tribal officers to curtail otherwise reasonable policing activities when a suspect claims to be non indian but the officer isn't sure about indian status or the status of the land that he's on the holding laugh any meaningful support substantially chill tribes ability even to enforce their own laws against their own members and endanger the everyone on indian reservation it should be reversed mr fagan you got my attention when you said began by saying every single source says that tribes have this inherent authority i would have thought montana said the exact opposite  montana tribal sovereignty over nonmembers cannot survive without express congressional delegation and is therefore not inherent so i would have described that as at least one source that says the opposite of what you said well your honor i do think this court has recognized inherent authority without express congressional authorization and as we discussed in our brief we inherent authority but this is the question of tribal sovereignty over nonmembers and i assume that would extend to criminal jurisdiction will let me make a couple points directly about montana your honor i think understand that as an alternative theory then we can we can talk about that but you say montana applies to legislate isn't civil and regulatory on what basis would use suggested that executive power such as is being exercised here is something to a different rule than legislative and judicial power well i think the court essentially recognize that there is a distinction or at least not  such a distinction and both straight and had consent when it is expressly noted that it wasn't questioning this particular power that we're discussing here today which is the power to stop it paying someone of the tribe and i think you probably wouldn't still apply but i think that it's another inconsistency in the th circuit opinion that i think makes another respect and i don't think that citizens arrest authority is at all workable or at all what anyone has ever contemplated among other things i don't think citizens arrest authority by anyone's lights would include the ability to do terry stop based on reasonable suspicion which is what traffic stops are let alone frisk for a weapon and i think everyone's assum montana could you discuss that just a bit well you're on i don't think that montana no longer applies to the situation that applied after legislation and we're not asking this court to say that in montana curtailed in any way because i don't think the court needs to say that i think it's pretty clear from straight and i believe your honor is it's just an inherent sovereign authority that sovereigns can investigate and detaining at least briefly and reasonably for violations of other sovereign laws in the context of states for example you have the interstate rendition clause of the constitution that presupposes states can enforce each other's laws this court's decisions in the ray and miller that make i think fairly clear that states can enforce federal law that reflects justice prior well except in international law principles the procedural law that is understood to apply when there is a handover of someone is the procedural law of the state that is doing the handing over not the status accepting delivery that that nation is only applying its substantive law and the authority that we're asking for here for tribes and we think tribes of always had been and everyone's always assuming that they had is a more limited authority than even the courts recognize that states have it's not the authority to do a full blown arrest it's not a rest i'm their own authority that kicks off in adjudicatory process it's just  investigation and detention in a complimentary role if the state or the federal government says no we don't want this person the tribe out so why don't we go why do they have the authority to enforce or arrest anyway or hold people who they believe reasonably are violating montana law but then they can't try the person  us a general test for distinguishing between those aspects of sovereignty that tribes retained and those that they did not so if you  inconsistent with the overriding interest of the federal government and the court gave three examples of things that would be inconsistent namely foreign relations or control over the alienation of tribal land to non non indians or the authority you claim the tribes retain go further than some flee detaining a non indian on reasonable suspicion i think you just said an answer to justice sovereignty would be consistent with the overriding interest the rd rule government not quite sure what that has to do with much shouldn't we be looking at what rights the indian sent the tribal indians have been given and here it seems to me that in fair and in a detention and hold right is the right to investigation  the th circuit basically said that they can investigate to find out if someone is an indian or not and if they are an indian presumably they would have all the rights of further investigation but i don't know why the  circuit limited view of what the right of detention means should control us well and there are isn't that a simple argument in all the arguments that about sovereignty that everyone's been having if it's interaction right the indians have been given there's no constitutional violation in just being held for the police to determine whether or not you're guilty from reaching that by the analytical task you've described but i do think that as a general matter we do have some interest in th reaffirming the existence of inherent tribal authority which i think pervades this court's cases and i think that some compass has the authority that we're talking about today and i do think that that actually the most straightforward and the best way to raise this result i am not here contending that congress affirmatively granted the authority here i think that  tribes have always had it they've always been understood to have it if you look at their report for example the law professors historical brief they exercised it and it's one of my colleagues thinks that montana controls lose no your honor as i explained to the chief justice if montana control then we don't think it does but if it does i think this fits under self governance because it chills enforcement even of mr fagan if you could continue with this point i guess what i'd like to know is if there were these two attorney delays that you could have written your brief and one is the in hearing to sarve the way in which you in fact used and the other is the montana exception to what is the different consequences of the court proceeding along either of these pads and why did you make the choice that you did well your honor just to be clear i do think the montana exception to choice is an exercise in hair and authority so i don't know that or saying anything terribly different the reason we didn't may the argument that this is familiar with what kind of land you're on st of all and i think the th circuit is ruling would probably apply to non indian feel and this court decided numerous cases in which that issue the issue of land status reaches this court it's also just mr franken i really was just asking about and you said we just don't think montana applies other than sort of analytics purity in your mind you have that may ultimately makes a difference in the outcome in this case but the federal government does have a very strong interest in preserving tribal authority and tribal sovereignty where appropriate score as president it's really support result on the court could could leave that for another day and simply as if if the courts prefer as simply as soon as montana exception is the major crimes act to do to indian sovereignty and there it's clear that congress has withdrawn jurisdiction to try certain people in certain locations within indian country fine my question i am approaching it that way mr fagan is where is the line the major crimes act clearly precludes  states or tribes from trying certain individuals non native persons for major crimes in indian country but you say it's ok on the other hand to for a tribal officer to conduct a terr there's a long distance between a terry stop and a trial where does where does the major crimes act kick in to reduce tribal sovereignty i'm not actually a certain that i  food cake office is something that is considered the beginning of the gated kotori process so we're not urging here the tribes have full blown arrest authority which i think would be understood as the beginning of the adjudicatory process so i think the line would be around where we have described it in our brains which is a limited detention an investigatory authority that simply for the purpose of allowing state or federal authorities at some point to take over and conduct and erast i think that is confirmed by the statutes in twenty five u s c twenty and i guess my question again is where does that sovereign authority and it's been preserved and why would it stop it terry is opposed to arrest your honor if you think it continues here come from the constitution the authority here comes from the inherent tribe be inherent sovereign authority in the tribes possessed before they were incorporated and united states that they've never cases construing inherent tribal authority which i think reflect the tribes to retain some authority i think the constitution simply recognizes that i don't think it's i don't think the authority we're that's right and i i would just emphasize kavanaugh that i do think it is recognized by both of those sources but i don't think that it is we're not looking to some specific provision of either of them as the source of the authority i think the way the court has looked at this kind of question is whether it's been withdrawn it's just discourse it was just saying and nothing has withdrawn it the other side says this is in effect a separation of powers case and that congress has given the executive the authority to enter into a crosstab it is a nation and that hasn't been done here and that  greater authority here and acquire this agreement that would have monitoring and compliance requirements for tribes that present difficulties and rd of the that there will be some kind of formative conferral of authority of tribal officers are to conduct arrests as effectively stand in the shoes of a federal officer  immediately as soon reasonable contacting state and federal authority well this is my problem i'm not suggesting that i think we should say that it stretches that far but i'm trying to figure out what rationale says that the tribes would retain the story to do a terry stop but not to address particularly when you think about the fact that i mean eleven reason for the practical problems that you identify is that it's difficult for federal or state authorities to police the public rights of way they go through reservations so if a  an arrest but not formally considered an arrest and we do think the tribe can do that is our brief makes it clear we think they can hold us they don't probable cause or reasonable period of time for handover unless and honor i just want to emphasize how unworkable the regime is that the th circuit in responding to contemplate would be it would require an on certain on the spot determination of someone's tribal status or any and status which is often impossible to do land status which is often impossible to do i don't really think there have been any cases flushing out the apparent or  obvious standard contemplated by the th circuit or really exploring the mere authority of private citizen's arrests which is what st spondon would leave them with and it would curtail all policing activity that everyone depends sorry to council on mr ankle thank you mr chief justice and may i please the court this case is resolved by the fundamental proposition that indian tribes do not possess sovereign authority over non india and the algorithm has plenty area for already over indian affairs the decision below should be affirmed because the detention search and arrest of a non indian by a tribal officer exceeds tribal self government authority i have three basic points to make today  st indian tribes do not have inherent police power over non india especially on non tribal lands nd congress addressed this issue by giving the executive branch broad authority to cross deputized tribal officers to investigate police federal crime  congress as planned area already the government disregards the unique and limited character of inherent tribal sovereignty is not only at this court of by an inherent tribal authority to regulate and police the conduct of non indian entities that unlimited authority to police all persons and to enforce all tribal state and federal laws governing indian country and government claims this sweeping police authority over us citizens is consistent with overriding federal interest even though try to exercise that authority outside the structure of the constitution free of political accountability and quote with immunity from civil liability the government's position is untenable ignore that tribal sovereignty is confined to manag protecting tribal self government and controlling internal relation in this case because the exercise of police authority over mr cooley was unrelated to any of the limited interest the crow try to exceed in its sovereign authority the decision below should be but even under montana there are exceptions exceptions in which we've recognized that there is continuing in theory to storage and i wonder why the nd exception doesn't apply here that exception i when the conduct at issue threatens tribal self government self rule which we've talked about in terms of political integrity economic security health and welfare but what could threaten that more than the idea that you can't do anything about somebody within the reservation that you have good reason to believe is violating criminal law it would seem to me that's the prototypical case for the exception well mr chief justice i think that context but when you're talking about on the ground of criminal activity i wonder if the exception should not be as narrow as it is in those other contexts well  look at the status of the land this is a state highway running through a reservation there is no landowners right to exclude mr cooley was parked on the shoulder he nothing about what he was doing when he was parked there had anything to do with you know tribal internal relations or tribal self government and so i think it's important to start from the general proposition about what the  what tribal sovereignty age which it's confined to managing tribal land protecting tribal self governing controlling internal relations and here none of that was implicated officer sailor it was in foreseen non tribal laws killer the police officer was alerted to a serial killer who did not commit any of the crimes on the reservation but happened to be exactly where the respond was would you would you make the exact same argument in that case well i just as thomas i think it would be important to know how the tribe came to know about this serial killer  ideas the only facts i've changed in your case in this case is that rather than the respondent being there with bloodshot eyes and sleepy individual but i do not think that a trial officer would have authority to investigate and search beyond just trying to determine the person's identity and whether they fit the description so why does he have the of fardy to th to detain there but not here when he has suspicions about simply not entirely weapons and drugs well because i what we had here where after an initial welfare check the officer sailor launched into a full fledged criminal investigation where he proceeded to ultimately call mr cooley out of the car gunpoint and investigate him for suspected drug activity and then put him in the back of the patrol unit and then went and searched the vehicle i think there are there is there is nothing there there was there was certainly no apparent or obvious crime of the  circuit found and i think that's a critical difference between what happened here and your hypothetical where there's presumably state or federal law enforcement putting out some sort of notice and striking tries to look for this person if the officer is concerned about the too strong well if we're talking about being in montana for example we have a federally recognized tribes in montana all of whom issue trial identification cards and doesn't have one they could go radio and he could get a driver's license and go radio into tribal this batch to have the tribal look like he's going to take off as soon as you get out of the car go away from the car you can detain him there you can detain while you radio do you radio you can radio trialed a statue or status badge they all have that and they know everybody who's in the drive and they say yes we have a man named mr smith in this drive them what they're saying come out of the same situation is in the minority of situations i think in the vast majority of that generation there is going to be a do we cross commission tribal officer ok thank you justice alito counsel it does seem to me than you suggest what is a tribal officer supposed to do after determining pretty clearly that a person is not an indian so consider the situation where  officer has reasonable suspicion that a driver is driving under the influence and would present a danger if allowed to continue to drive but the officer is pretty certain this person is potential of ongoing to breach of the peace where public safety is in jeopardy i think that matter can stand that would fit under the th circuit's apparent standard but again it's going to be fact dependent like here in this case officer sailor said well mr coolies eyes were bloodshot but as he acknowledged that wasn't nearly enough for him to determine whether or not he was all right well so this person the person is not so drunk that it's playing out the hall is above the level but the officer has reasonable suspicion can the officer asked the person to come out of the car and perform a field sobriety test i don't believe so no he can't but he just has to let that person go he can call  radio into state or federal authorities to come to the saying well i thought you said that the person can't be detained during that interim period well if he's upset if he's trying to ascertain indian status the person is not in india ninety nine percent clear or not in india he could certainly ask the individual to stay there while you contact law enforcement but it can he officially detain you no i do not think so it's monetary all right so it does depend on the severity of the offen whether if it is a situation where he has reasonable suspicion that this person has is a murderer i mean a reasonable suspicion a person a murderer no i don't think that because reasonable suspicion is such a low threshold i mean what is that what are what are the surrounding facts it is that i think that ultimately if this if their information if somebody is a serial killer and they're about to run into a school again when when there's i could afford the medicine for them and counterpart under the indian civil rights that why is that subject to the exclusionary rule meaning assuming for the sake of argument that the indians have a patrol or any group has a patrol in their neighborhood and amy they see someone who they have reasonable suspicion about and detain them for arrest would that security would that any item seized by that person be subject to suppression yes they would why because a private security force on my private land by that but it seems to me they should have argued in the alternative but that would have been my litigation strategy i'm asking you a question that always shouldn't is why are they subject to the th amen outside of the government's concession now if the you could don't consider them sovereign and you don't consider them acting on behalf of the government because they're not deputized why are they subject to the th amendment why is anything they actors putting that aside counsel what would happen if i as a private citizen had reasonable suspicion that someone was a danger standard the government relies in some significant measure on the idea of cross and force meant authority in other words the belief that sovereigns generally have the power to respond to the core expressly rejected you drawing some sort of parallel between tribal already and what state and federal authorities they can do so bad my argument there is of course a completely overlooked the very reason that cases like montana law and this one even exist which is that the sovereign authority of indian tribes is limited in a way state and federal authority is not and don't and the way that it is more limited is because they're not full territorial sovereigns they do not have  that tribal authority is just different from state authority so that even if we were to find a lot of cross and force meant as between state officers or as between state officers and the federal government that doesn't carry over that's what you're saying yes and better if you don't contest the premise you know how generally i do not i think you know i don't i don't contest it because for example you say professor kerr and your brief and said it would be right now many states arrest lead to federal prosecutions that happens all the time but usually that is the initial state investigation is investigating state crime violations of state law which makes sense because the police powers and in the state there's more criminal doesn't actually punish particular conduct and they're acting purely to enforce federal law i think there's a potential problem there i don't think has anything to do with a case for such good morning counsel question for you that i actually would have liked to gotten to with mr fagan but time didn't permit hopefully you have some thoughts on a as well let's say just work with me and for the moment suppose that there is some permissible role here for tribal authorities and also suppose that in the course of a stop the tribal authority engages in some conduct that would violate the constitution and perhaps you haven't given us all but if you have i'm curious what remedy you think might be available against a tribal officer with his state law remedy would there be some federal rometty what thoughts do you have there i don't think there would be a remedy in terms of a private concert action for civil damages certainly travel it is not very good in old immensely and that in that situation even if you could sue him in tribal court you can get it in a state or federal court so this court doesn't sit at the end of the line there so i think they're very there's  and that was not taken advantage of here so i take that point and that's an important one for me but at the same time a couple other thoughts that all throw out there and then you can react to them the the amicus brief from the former s attorneys says that criminal jurisdiction in indian country is an indefensible morass of complex conflicting and illogical commands layered in over decades for congressional policies and court decisions and without the consent of tribal nations and i don't think you're going to disagree with that description necessarily and so that leads me to think that one of the things we should be trying to do here is is to do no harm because there's lots of ripple effects from a broad decision and with that in mind there are statements in our decisions and der and straight that really cut directly against you as your you're well aware and you can say those are dick and that might be correct but those have guided the law long foresman for several decades i think congress and the executive could reasonably rely on those statements in the court's decision certainly the cohen treat treats those statements as authoritative in terms of guidance so why isn't the best thing we can do here just to stick with what we said in those cases it's not very analytically satisfying but it's a narrow result problem with those beyond that you're right i think they're going to and i think that they for example were talking about the exclusion power which we don't have here but the biggest problem i see under your proposal is that the them until they can be turned over to the proper authorities even if the trial itself a black criminal jurisdiction that's the black letter description i think the terms are arrested again and turned over are being used to fairly loosely and think we look at what happened here there are the detention and investigation polling as to who we out of that are putting him in the back of the patrol unit which i would argue is an arrest and going back to his vehicle multiple times to search out it's not very analytically satisfying to rely on the addict and particularly from the flight not in straight but ellen try this on you know you say one problem with our you know in the government's approach ard a reproach saying that there is some sort of retain authority to police here is that we haven't identified it sco or its source but you know montana and those cases that followed it relied pretty heavily on the unfairness of imposing tribal law on those who didn't participate in its creation and in that respect straits footnote is perfectly consistent with that because as the united states pointed out an argument and its priests you know coolly and other non members of the tribe are represented in the creation of federal law and so it doesn't cause that same problem here it's a far less of an unfairness and straights footnote can be seen to be consistent with that principle particularly if the united states is right that one way to understand montana is that that is an instance of implied preemption that cash is out when you consider the assertion of authority to adjudicate finally a civil or criminal liability or the imposition of regulations on those who didn't participate in an exercise so can you explain to me why that would not be a way to say in the laws and regulations he had oh i understand i understand that that was the promise of my question but why is it unfair on that rationale simply to submit him to the authority of a police officer in a temporary stop because all i mean outside the structure of the killer and you said well he fits the description and maybe that might be able to be detention and i assume that that might be an exercise of what the th circuit described as the apparent or obvious violation of law but that's a new phrase right we have reasonable suspicion we have probable cause how do you tell something's an apparent obvious violation of the law i think that the obvious and apparent standard is a product of the rule of common law which is that for  apparent crime but i also think there is a breach of the peace aspect when there's something imminent about to occur when there is public safety that you know in jeopardy and is in jeopardy now then there  you to step in and detain thank you thank you miserables counsel thank you mr chief justice the issue here is about inherent tribal authority over non indian three decades of consistent opinions authority created jurisdictional gap and reservation law enforcement congress has already filled the gap by providing for cross that it is asian of tribal officers the fact that relevant officials did not avail themselves of cross that it is asian in this case does not because they don't want to get crosswise with the other authorities if the officer is a non indian he can be seen which a surprising number of them are he can be sued in state court if they if tribes precludes these handovers if congress actually perceived a problem but no one's identified any history of abuses nd cross designation is simply not a solution if you look at our brief and the nation brief they detail the problems with that just because someone has a particular they're fickle and you need them with multiple agencies you can't just have one with the federal government you need one with state or local authorities as well  the rd point i wanted to make was to just reinforce why this would be an example of montana exception to assuming that it applies its because of the chilling effect on against even indians i take it that if someone were driving around with of bumper sticker that said i am not an indian they couldn't be stopped the engine terminus the problems are not solvable by a quick radio call issues like tribal status and land status are frequently living gated they have to always be result back at the station and under the th circuit's rule a sailor who is a member of the tug couldn't even protect themselves from what he thought were as a potential attack by the respondent here and then finally i'd just like to emphasize i think the incoherence of the approach that the other side is urging they say that you can detain someone who matches the description of a serial killer well how sure do you have to be that he matches the description of a serial killer where is that authority brutally murdered by ny he has to have the authority to detain thank you thank you counsel of the cases submitted