Opinion
Case No. A4-04-123, Docket No. 13.
November 22, 2004
ORDER DENYING PETITION FOR HABEAS CORPUS RELIEF
Before the Court is a petition for habeas corpus relief filed on October 6, 2004. For the reasons set forth below, the Court denies the petition.
I. BACKGROUND
The plaintiff, Vance Gillette, filed a petition for habeas corpus relief which arises out of a criminal complaint on the Turtle Mountain Reservation in Belcourt, North Dakota. On May 14, 2004, Gillette, a non-member Indian, was charged in Turtle Mountain Tribal Court with a violation of Section 26.1119 of the Turtle Mountain Tribal Code which prohibits the impeding, intimidation, or interference with the duties of Tribal employees and officials. The record indicates that Gillette was arrested on June 10, 2004.
On June 16, 2004, Gillette filed a petition for Habeas Corpus and Supervisory Writ in the Turtle Mountain Court of Appeals regarding his arrest. Gillette later supplemented his petition with a Request for Stay and Order to Show Cause and requested that the Court of Appeals bar his prosecution. On July 16, 2004, Gillette's petition was denied for failure to exhaust all available remedies because he had not yet been tried in trial court. The Court of Appeals noted that if Gillette were to be convicted, then the issues raised in his petition would be ripe for appeal. The Court of Appeals further noted that it would consider Gillette's petition in an expedited manner should a conviction occur.
On July 12, 2004, Gillette filed a motion to dismiss with the Turtle Mountain Tribal Court. Gillette's motion sought disqualification of the prosecutor, dismissal of the charges, discovery material, and appointment of a new, independent judge to handle the case. On August 18, 2004, Gillette supplemented his motion with a document entitled "Supplemental Motion to Dismiss, Renewed Motion for Change of Venue." In the supplemental motion, Gillette raised additional grounds which included lack of jurisdiction. The parties dispute what took place concerning the pending motions at the trial court level. The Defendants claim the motions were denied in pretrial hearings. Conversely, Gillette claims no action was taken on the motions.
On October 12, 2004, Gillette filed a second petition with the Turtle Mountain Court of Appeals. The Court of Appeals stated "[p]etitioner has not sent [sic] forth any new legal grounds for appellate review. Petitioner sets forth the same allegations as his previous Petition on these Judges." Accordingly, the Court of Appeals denied Gillette's second petition.
On October 6, 2004, Gillette filed a petition in this Court for habeas corpus relief under 25 U.S.C. § 1303. Gillette sets forth the following reasons for the petition: "bias, defective complaint, failure to provide a hearing on motions, and failure to provide a neutral judge." Gillette also contends the tribe lacks jurisdiction.
A jury trial was scheduled to commence on October 14, 2004, in tribal court. However, Gillette did not appear on that date. According to the parties, a new trial date has not been scheduled and Gillette is free on bond until trial.
II. LEGAL DISCUSSION
Section 1303 of the Indian Civil Rights Act provides: "The privilege of the writ of habeas corpus shall be available to any person in a court of the United States to test the legality of his detention by order of an Indian tribe." 25 U.S.C. § 1303. The Eighth Circuit has held that "as a matter of comity . . . tribal remedies must ordinarily be exhausted before a claim is asserted in federal court under the Indian Civil Rights Act; however, the requirement is not an inflexible one." Necklace v. Tribal Court of Three Affiliated Tribes, 554 F.2d 845, 846 (8th Cir. 1977) (citing Rosebud Sioux Tribe of South Dakota v. Driving Hawk, 534 F.2d 98, 101 (8th Cir. 1976); Janis v. Wilson, 521 F.2d 724, 726-27 (8th Cir. 1975); O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1144-48 (8th Cir. 1973)). The Defendants contend that Gillette has failed to exhaust the tribal remedies available because the trial has not yet taken place. However, Gillette cites the Eighth Circuit case of Greywater v. Joshua, 846 F.2d 486 (8th Cir. 1988), to support his position that exhaustion of tribal remedies is not required.
In Greywater, the petitioners were enrolled members of the Turtle Mountain Band of Chippewa Indians in North Dakota. The petitioners were arrested and charged under the Devils Lake Sioux Tribal Code on several criminal counts. The petitioners moved the Sioux Tribal Court to dismiss the charges, but the motion was denied. Subsequently, the petitioners filed writs of habeas corpus in the United States District Court alleging lack of jurisdiction. The district court dismissed the writs because the petitioners had failed to exhaust tribal remedies. On appeal, the Eighth Circuit reversed, holding "that Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 (1978), is direct authority that exhaustion of tribal court remedies is not required." InOliphant, the United States Supreme Court held that Indian tribes have no inherent authority to try and to punish non-Indians. Id. at 212; see United States v. Wheeler, 435 U.S. 313, 326 (1978) (stating that Indian tribes cannot try non-members in tribal court). The Eighth Circuit recognized the case of Duro v. Reina, 821 F.2d 1358 (9th Cir. 1987), in which the Ninth Circuit held that Indian tribes may exercise jurisdiction over non-member Indians, but the Eighth Circuit ultimately concluded that "until the Supreme Court says that we are wrong, we are persuaded that the court intended to say" that tribes could not punish non-member Indians as suggested inWheeler. Greywater, 846 F.2d 486, 488. The Eighth Circuit stated, "we feel Oliphant's implicit holding is that exhaustion is not a predicate to the exercise of federal court jurisdiction in a criminal case where the sentence may exceed one year imprisonment." Id. In so ruling, the Eighth Circuit distinguished the earlier United States Supreme Court decision ofNational Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 191 (1985).
In National Farmers Union, the Supreme Court required non-Indian petitioners to exhaust their tribal court remedies before proceeding in federal court. The Eighth Circuit noted thatNational Farmers Union was a civil proceeding, and held thatOliphant should govern in a criminal case. The Eighth Circuit further distinguished National Farmers Union by rejecting the exceptions carved out by the Supreme Court. The Supreme Court enumerated several exceptions to the tribal exhaustion requirement: "We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction `is motivated by a desire to harass or is conducted in bad faith,' or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction." National Farmers Union, 471 U.S. 845, 857 n. 21 (quoting Juidice v. Vail, 430 U.S. 327, 338 (1977)). InGreywater, the Eighth Circuit found that none of the exceptions applied. Therefore, the Eighth Circuit concluded that tribal exhaustion was not required.
As the Defendants point out, the legal landscape has changed dramatically since the Greywater decision in 1988. Most notably, the Supreme Court reversed the Ninth Circuit's ruling inDuro v. Reina, 495 U.S. 676 (1990), finding that Indian tribes did not have the inherent power to try non-member Indians. Shortly thereafter, Congress amended the Indian Civil Rights Act in 1990 to read that the inherent power of Indian tribes includes the power to exercise criminal jurisdiction over all Indians. 25 U.S.C. § 1301(2) (emphasis added); see United States v. Lara, 124 U.S. 1628, 1639 (2004) ("the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians."). Thus, much of the analysis in Greywater has been supplanted by amendments to the Indian Civil Rights Act.
The rationale behind tribal exhaustion is "that Congress is committed to a policy of supporting tribal self-government and self-determination." National Farmers Union, 471 U.S. 845, 856. "Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development." Duncan Energy Co. v. Three Affiliated Tribes of Fort Berthold Reservation, 27 F.3d 1294, 1299 (8th Cir. 1994) (citing Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987)). Although National Farmers Union discussed the doctrine of tribal exhaustion in the civil setting, the rationale behind the doctrine applies equally in the criminal setting. As such, Gillette is required to exhaust his tribal remedies before seeking review from this Court by way of a habeas corpus petition filed pursuant to Section 1303.
The Defendants also contend that Gillette has failed to exhaust his tribal remedies because his case has yet to be tried. It is well-established that federal courts are generally reluctant to entertain pretrial habeas corpus petitions. See Harpster v. State of Ohio, 128 F.3d 322 (6th Cir. 1997); Carden v. State of Mont., 626 F.2d 82 (9th Cir. 1980); Benson v. Superior Court Dept. Of Trial Court of Mass., 663 F.2d 355 (1st Cir. 1981);Neville v. Cavanagh, 611 F.2d 673 (7th Cir. 1979); Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975); Drury v. Cox, 457 F.2d 764 (9th Cir. 1972). Most courts require the petitioner show that "special circumstances" exist which warrant federal intervention prior to trial. See Carden v. Montana, 626 F.2d 82, 83 (9th Cir. 1980). Gillette has failed to make such a showing.
Gillette cites to the Eighth Circuit case of Wounded Knee v. Andera, 416 F. Supp. 1236 (S.D. 1976), where the court granted a petition for habeas corpus relief based on bias. However, the petition in Wounded Knee was filed after the trial was conducted and a guilty verdict was entered against the petitioner. The petitioner requested permission to appeal the conviction but he waited six months and received no response to the request. The petitioner then filed a habeas corpus petition in federal court. The Eighth Circuit recognized that tribal exhaustion is "normally required", but under the circumstances the petitioner had exhausted all available remedies. 416 F. Supp. 1236, 1239. The Eighth Circuit said the "Petitioner did all that she reasonably could do to use the normal tribal appeals procedure."Id.
It is clear and undisputed that Gillette has not exhausted his tribal remedies. As noted by the Turtle Mountain Court of Appeals, if Gillette is convicted in tribal court he will have an opportunity to appeal the conviction to the Court of Appeals. Once tribal remedies have been exhausted, Gillette may seek redress from this Court. However, this Court must adhere to the well-established doctrine of tribal exhaustion until Gillette has exhausted the remedies available to him within the tribal court system.
III. CONCLUSION
For the foregoing reasons, plaintiff Vance Gillette's Petition for Habeas Corpus Relief is DENIED (Docket No. 1). The Court also DENIES Gillette's "Motion for TRO, Declaratory and Injunctive Relief" (Docket No. 3) and Gillette's "Motion to Disqualify Wheeler Wolf" (Docket No. 10) as moot.
IT IS SO ORDERED.