Opinion
OP 23-0707
01-02-2024
JUNIOR GARDIPE, Petitioner, v. LAKE COUNTY SHERIFF DON BELL, Respondent.
ORDER
Junior Gardipe petitions this Court for habeas corpus relief alleging his sentence is illegal due to fact that "Lake County on the 20th day of November [rescinded] its consent to enforce criminal jurisdiction on behalf of the State of Montana over the Confederated Salish and Kootenai Tribes. . . ." Gardipe states that he is a tribal member of the Confederated and Salish Tribes and contends that his prosecution and judgment are invalid due to a lack of subject matter jurisdiction. Gardipe requests that this Court vacate his judgment and sentence. He includes a copy of the final judgment.
On November 29, 2023, the Lake County District Court committed Gardipe to the Montana State Prison for a five-year term for felony criminal possession of dangerous drugs. The court awarded 167 days of credit for time served in the Lake County Detention Center.
The Lake County District Court's decision is on appeal in this Court. Lake County v. State of Montana, No. DA 23-0689, Notice of Appeal filed Nov. 28, 2023.
Gardipe has not presented a prima facie case for habeas corpus relief. He has not demonstrated an illegal sentence. Lake County has felony criminal jurisdiction over Gardipe. Lozeau v. Anciaux, 2019 MT 235, ¶ 10, 397 Mont. 312, 449 P.3d 830. We pointed out in Lozeau that the Montana Legislature amended § 2-1-306, MCA, to allow the
Confederated Salish and Kootenai Tribes (CSKT) to withdraw completely "their consent to be subject to criminal jurisdiction of the State, including felonies." Lozeau, ¶ 11. However, CSKT has never exercised that authority and Gardipee's argument that Public Law 280 was never properly consented to is incorrect. Lozeau, ¶ 11.
The Lake County Board of County Commissioners also has statutory authority to withdraw, after consulting with tribal government, by following a statutory process set forth in § 2-1 -306, MCA. While the Lake County Board of County Commissioners notified Governor Gianforte that Lake County would withdraw its consent to enforce Public Law 280 on November 20, 2023, that withdrawal has not taken effect. Pursuant to § 2-1-306(3), MCA, "[w]ithin 6 months after receipt of the resolution, the governor shall issue a proclamation to that effect." The Governor has not issued a proclamation yet.
We conclude that Gardipe is not entitled to habeas corpus relief. Lake County's notice of withdrawal does not affect his sentence, which was imposed prior to any notice, tribal resolution, or Governor proclamation. Therefore, IT IS ORDERED that Gardipe's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record; to Sheriff Don Bell; and to Junior Gardipe personally.