Opinion
CR 00-30089, 2001 D.S.D. 36
October 16, 2001
ORDER
Defendant filed a motion to dismiss (Doc. 26) which motion is based on claims of double jeopardy, claimed violations of constitutional rights of due process and equal protection, and a claimed bill of attainder. The parties initially briefed the issues. U.S. Magistrate Judge Moreno conducted a hearing at which certain facts were stipulated and defendant was permitted to supplement the record (H. Tr. 8-10, Doc. 30). The magistrate filed and served a report and recommendation (Doc. 35), recommending that the motion be denied.
I conducted a de novo review of the transcript of the hearing and all the files and records herein. Defendant timely filed objections and a request for a remand, or more correctly for a recommittal (Doc. 45). One basis for the recommendation to deny the motion was the Eighth Circuit's en banc decision in United States v. Weaselhead, 165 F.3d at 1209. The opinion of the district court, United States v. Weaselhead, 36 F. Supp.2d 908 (D.Neb. 1997), was affirmed by an equally divided court. The portion of the report and recommendation of the magistrate relying in part on the en banc decision was rejected by me as an erroneous statement of the law. The en banc decision is not binding precedent. Decisions by an equally divided court decide only the particular case. They have no precedential effect. They have a res judicata effect but not a stare decisis effect. See Loeffler v. Tisch, 806 F.2d 817 (8th Cir. 1986), United States v. Grey Bear, 863 F.2d 572 (8th Cir. 1988), Redding v. Minnesota, 881 F.2d 575 (8th Cir. 1989) andUnited States v. Payne, 940 F.2d 286 (8th Cir. 1991).
As to the balance of the report and recommendation, I acted pursuant to 23 U.S.C. § 636 (b) (l )(C) to recommit the matter to the magistrate for two reasons. First, neither the parties nor the magistrate initially gave consideration to a case decided by the United States Supreme Court on June 25, 2001, Nevada v. Hicks, 121 S.Ct. 2304. Nor was any consideration given to Hicks by any judge in United States v. Enas, 255 F.3d 662 (9th Cir. 2001). While Hicks is a civil case and thus not "on point", the various Justices discuss in Hicks the various aspects of tribal court jurisdiction. It can be argued that the opinion of the Supreme Court is that any tribe's adjudicative jurisdiction over nonmembers is at most only as broad as the jurisdiction granted legislatively by Congress. Second. I initially believed that the additional evidence sought by the defendant might be relevant. At a minimum, I believed that the defendant was entitled to have all such evidence a part of the record, either as admitted into evidence or as an offer of proof. I therefore, on July 26, 2001, recommitted the matter (Doc. 46) with instructions to the magistrate.
The magistrate proceeded in accordance with the order of recommittal. Defendant filed and served an offer of proof (Doc. 85). The magistrate served and filed a supplemental report and recommendation (Doc. 93). Defendant served and filed objections (Doc. 97) to the supplemental report and recommendation. I have again given de nave consideration to all documents and records in this case.
The issue squarely before the court has not been directly decided by the United States Supreme Court or by the United States Court of Appeals for the Eighth Circuit. Despite the Hicks case and the other Supreme Court cases indicating skepticism as to any claimed "inherent sovereignty" of Indian tribes acting through their tribal courts, it is not the function of a district court to predict what the Supreme Court xviii do in a given case. It is a virtual certainty that this ruling on the motion to dismiss, however decided, will be appealed and the Eighth Circuit will again be presented with the "opportunity" to rule on the same issue presented in United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998). Although the panel decision was vacated on December 4, 1998, it is difficult to add to the scholarly discussions in both the panel opinion by Chief Judge Wollman and the dissent by Judge Morris Sheppard Arnold. It is also difficult to add to the scholarly opinion of United States District Judge Thomas Shanahan in United States v. Weaselhead, 36 F. Supp.2d 908 (D.Neb. 1997). We do not know, based upon a different make-up of the Court of Appeals, whether the views of Chief Judge Wollman or Judge Morris Sheppard Arnold xvill carry the day. Indeed, their views of the law may have changed.
Defendant Archambault, like Mr. Weaselhead, is an Indian prosecuted by a tribe (in this case the Cheyenne River Sioux Tribe) as to which he is not an enrolled member. Archambault, like Weaselhead, pled guilty to having violated the tribal code and was later prosecuted for the exact same conduct by the United States government. Archambault admitted in tribal court to having assaulted and injured his domestic companion, a member of the Cheyenne River Sioux Tribe, and that the assault occurred on the reservation. Archambault, like Weaselhead, claims double jeopardy, the claim being that the tribe had no inherent authority to prosecute him and that the only basis for such authority comes from a federal statute. Thus, as the argument goes, the two prosecutions stem from the same authority, the United States government, the bottom line being that only one sovereign is involved as to Archambault. Obviously, if the tribal prosecution was based on inherent tribal sovereignty, two sovereigns are involved as to Archambault and there is no double jeopardy.
Tribes have historically prosecuted nonmember Indians for misdemeanor offenses committed within the territory of such tribe. Congress recognized this fact as part of the legislative history in the enactment of Pub.L. No. 102-137. See 137 Cong.Rec. E2165-04 in which then Congressman George Miller stated the acknowledgment of the Congressional committee that tribes "have always been able to exercise misdemeanor criminal jurisdiction over all Indians on tribal lands." Such prosecutions came to a halt in the Eighth Circuit with the decision inGreywater v. Joshua, 846 F.2d 486 (8th Cir. 1988), holding that a tribe has no inherent sovereignty to prosecute nonmember Indians. "We find the Devils Lake Sioux Tribe's exercise of criminal jurisdiction over nonmember Indians beyond what is necessary to protect the rights essential to the Tribe's self-government and inconsistent with the overriding interest of the federal government in ensuring that its citizens are protected from unwarranted intrusions upon their personal liberty. We thus conclude that the Tribe's authority to prosecute nonmember Indians is nonexistent." Id, at 493. Greywater cited and relied upon United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). Greywater, while acknowledging Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), engaged in no discussion of the Montana factors. Greywater, in refusing to adopt the rationale of Duro v. Reina, 821 F.2d 1358 (9th Cir. 1987), correctly forecast the reversal of the Ninth Circuit in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Tribes across the United States then ceased prosecuting Indian non-tribal members. There was at that time, as we know, no Congressional action with regard to any claimed inherent sovereignty of tribes to prosecute nonmember Indians.
Congress acted promptly by virtue of Pub.L. No. 102-137 to amend the Indian Civil Rights Act, codified at 25 U.S.C. § 1301-03 (1994), by expressing the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians in Indian Country. See 25 U.S.C. § 1301 (2). Congress specifically found that this was a power of self-government which Congress recognized and affirmed as having always existed and which had never been "taken away" by Congress.
There are perhaps three possibilities as to what Congress did as a matter of law. First, Congress simply acted to expressly grant and legislatively delegate to tribes the authority to prosecute nonmember Indians, curing what Duro found did not exist. Second, the Congressional finding of inherent sovereignty by tribes over nonmember Indians is a nullity, the reason being that Duro was decided based upon the United States Constitution. Third, Congress did not delegate anything or act in a substantive manner but simply defined what the federal common law has always been. The ultimate question becomes: who is permitted to define what sovereign powers tribes may have lost or may have retained upon being incorporated into the United States? Is it Congress or is it the judiciary?
Intertwined, of course, are possible constitutional questions as to whether nonmember Indians may be treated differently than nonmember non-Indians. It is beyond dispute that non-Indians may not be prosecuted criminally in any tribal court. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The matter is further complicated by the fact that the Bill of Rights does not apply to Indians in tribal courts. See Duro, 495 U.S. at 693, 110 S.Ct. 2053, andTalton v. Maves, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1396) (although dealing with the question of whether cases in tribal court could be prosecuted without an indictment by a grand jury). We know that the Indian Civil Rights Act of 1968 does not guarantee the same rights that other Americans have. There is no right to counsel at public expense for Native Americans who are indigent and charged in tribal court. This is despite the fact that our reservations, in terms of poverty, are national disgraces. I take judicial notice of the fact that the vast majority of tribal courts in the District of South Dakota do not provide lawyers for indigents. Some provide lay assistance. Some provide nothing. Some provide a lawyer, the public defender. Other than being locked in a tribal jail for some period of time, there are possible collateral consequences to being convicted in tribal court. While tribal court convictions do not count in computing the criminal history of a person who is later convicted and sentenced in federal court, such convictions may be considered under U.S.S.G. § 4A1.3 (adequacy of criminal history category). See U.S.S.G. § 4A1.2(i). The government sometimes argues for an upward departure based upon a defendant's previous convictions or even charges pending in tribal court. Upward departures are sometimes ordered based on tribal court histories. Such convictions are certainly matters to be considered by the sentencing judge. See U.S.S.G. § 1B1.4 under which the judge "may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." See 18 U.S.C. § 3661.
Archambault argues that Congress did nothing other than legislatively delegate to the tribe the authority to prosecute him as a nonmember Indian. A very troubling aspect to this argument is that it can be contended that Congress could not constitutionally so delegate without extending all constitutional protections. This full panoply of protections, as discussed above, is not found in tribal courts or by virtue of the Indian Civil Rights Act. What is the possible basis for the contention that Congress could not delegate any such thing? "Our cases suggest constitutional limitations even on the ability of Congress to subject American citizens to criminal proceedings before a tribunal that does not provide constitutional protections as a matter of right. Cf. Reid v. Covert, 354 U.S. 1 (1957). . . We decline to produce such a result through recognition of inherent tribal authority." Duro, 495 U.S. beginning at 693. Examining such language, Indian tribal members are of course "American citizens" being brought before a tribunal, albeit of their own tribe, that does not provide constitutional protections as a matter of right. Given the fact that Congress had not then acted to even arguably delegate any authority to prosecute nonmember Indians, I interpret the quoted language as nothing more than dicta. I certainly decline any thought of judicially amending the Indian Civil Rights Act to conform to the Bill of Rights.
Archambault has attempted to establish that the tribal court was, in effect, a creature or arm of the United States government (and thus without sovereignty as to criminal prosecutions) because of the annual multi-million dollar federal appropriations made to the tribe for police, courts, and prosecutors. The magistrate found that this evidence had no relevance and I agree. Common sense tells us that the vast majority of the expenditures are in connection with the tribe prosecuting its own enrolled members rather than Indian nonmembers. Carried to its logical conclusion, the argument of the defendant would mean that, given the federal appropriations to states, counties and municipalities for law enforcement purposes, states would not be separate sovereigns but merely agents of the federal government. This simply makes no sense.
The magistrate, in recommending that the motion to dismiss be denied, relied largely on Montana v. United States, 450 U.S. 544 (1981). UnderMontana, a tribe may retain inherent power to exercise jurisdiction over a nonmember Indian when that person's conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U.S. at 566. Montana dealt with hunting and fishing rights of non-Indians on land owned in fee by non-Indians, although contained within the reservation boundaries. Here, Archambault and the victim lived as "husband and wife" in a house owned by the tribe or more correctly an Indian Housing Authority. Their three children lived with them. I acknowledge and agree with the statements of the magistrate that the tribe's political integrity would be threatened greatly if the tribe would be unable to prosecute a nonmember Indian who has assaulted a tribal member on the reservation. The question of the power to prosecute a nonmember Indian in tribal court is not, however, the issue. There is no question that a tribe has the authority to do that. whether by virtue of inherent jurisdiction that has always existed (as confirmed by Congress) or by virtue of a legislative delegation of such power by Congress to the tribe. The tribe's ability to prosecute violent nonmember Indians is not in question. If the 1990 amendments to the Indian Civil Rights Act constitute only a delegation of power to tribal courts, it would be clear that nonmember Indians who have been prosecuted in tribal court under circumstances in which jeopardy has attached could not again be charged with essentially the same offense in federal court.
There can be serious problems and concerns with regard to tribal prosecutions of nonmember Indians. First, tribal officials might well hesitate to promptly arrest, charge and try a nonmember Indian who has committed some serious act of violence. This is assuming, of course, that tribal authorities could readily determine that the alleged offender was not an enrolled member. This information is not always readily available or ascertainable. There is, of course, no registration system on any reservation for nonmembers residing within the confines of that reservation. Since the defendant has the right to remain silent, tribal officials might have to be in touch with numerous other tribes to determine the actual tribal membership of the person in question. Are tribal authorities to stay their hands with a drunk, disorderly and perhaps dangerous member of a family unit until they can investigate whether the suspect is a member of that tribe or some other tribe? If tribal authorities knew they were dealing with a nonmember Indian, they would certainly carefully consider the danger that a plea of guilty would later forestall any federal prosecution under the Major Crimes Act, 18 U.S.C. § 1153. If it is likely that the serious nature of a given case will later justify a federal prosecution, it would seem all the more important for tribal authorities to remove the suspect from the home or other location and place the person in custody. Yet, if the nonmember is charged and in custody for the tribal offense, how would tribal officials prevent the nonmember defendant from almost immediately entering a plea of guilty in tribal court? That is exactly what Archambault did here. A great influx of additional agents of the Federal Bureau of Investigation and Assistant United States Attorneys would be required to be available for consultation and an immediate guess as to whether some alleged criminal act might later justify a federal prosecution of a person first determined to be a nonmember Indian. The Major Crimes Act, as we know, extends federal jurisdiction over the enumerated crimes committed by "[a]ny Indian in Indian Country." Enrolled members of the tribe would be subject to two prosecutions and tribal officials could promptly act to arrest, charge and attempt to convict those known member Indians in tribal court without fear of endangering a later federal prosecution. Tribal members would be subject to the awful and discriminatory impact of the federal sentencing guidelines in federal court. Nonmember Indians would not unless they were at least conceivably allowed to "run at large" until the federal government could marshal its forces through the Federal Bureau of Investigation and the United States Attorney's office. These concerns and these potential differences as to treatment of tribal members and nonmembers (including protection of the public from violent nonmember Indians) would certainly appear to have a direct effect on the political integrity and the welfare of the tribe. We must keep in mind also that tribal courts have very limited criminal jurisdiction. They cannot impose more than one year of imprisonment or a fine of $5,000.00 or both. 25 U.S.C. § 1302 (7). Each tribe would be forced into a situation where it would be treating some of its own members more harshly than nonmembers. How long would a tribal government survive who acted in such fashion? Tribal judges and tribal prosecutors are not protected from political influences as are federal judges and federal prosecutors.
It is clear that, if Montana provides the test, the motion of the defendant should be denied because there is no double jeopardy. Montana, however, did not deal with issues of double jeopardy or inherent sovereignty for the tribe to prosecute nonmember Indians.
The report and recommendation does not discuss South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993). The issue before the Court cannot be decided without some consideration of Bourland. The panel decision in Weaselhead noted that Bourland was issued "after the changes (the legislation in which Congress acted to "undo"Duro) had been enacted and permanently codified . . ." 156 F.3d at 823. This, of course, is a fact and riot a legal theory. Bourland, however, did not involve issues of double jeopardy and inherent sovereign powers of a tribe to prosecute nonmember Indians for offenses committed on the reservation. Bourland answered the question whether this same tribe had the authority to regulate hunting and fishing by non-Indians on lands and overlying waters located within the tribe's reservation which lands had been acquired by the United States for the operation of the Oahe dam and reservoir on the Missouri River. We know that the Supreme Court did not address the tribe's regulatory jurisdiction over nonmember Indians since that issue was neither pled nor tried. See 508 U.S. at 685, n. 6. I therefore believe that Bourland does not answer or even suggest the answer to the question here presented as to inherent sovereignty. The majority opinion by Justice Thomas addressed in a rather narrow context the question of inherent tribal sovereignty.
The dissent's complaint that we give "barely a nod" to the Tribe's inherent sovereignty argument is simply another manifestation of its disagreement with Montana, which announced "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," 450 U.S. at 565, 101 S.Ct. at 1258. While the dissent refers to our "myopic focus" on the Tribe's prior treaty right to "absolute and undisturbed use and occupation" of the taken area, it shuts both eyes to the reality that after Montana, tribal sovereignty over nonmembers "cannot survive without express congressional delegation," 450 U.S. at 564, 101 S.Ct. at 1258, and is therefore not inherent.508 U.S. at 695 n. 15, 113 S.Ct. 2309 (internal citations omitted).
At least one court believes that the panel decision in Weaselhead was wrongly decided. See United States v. Enas, 255 F.3d 662, 674-75 (9th Cir. 2001) (en banc). Law review authors have criticized it. See Frank Pommersheim, "Our Federalism" in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts' Teaching and Scholarly Community, 71 U.Colo.L.Rev. 123, 175-79 (2000); Nancy Thorington, Civil and Criminal Jurisdiction Over matters Arising in Indian Country: A Roadmnap for Improving Interactions Among Tribal, State and Federal Governments, 31 McGeorge L.Rev. 973, 1000-01 (2000); Christopher B. Chancy, The Effect of the United States Supreme Court's Decisions During the Last Quarter of the Nineteenth Century on Tribal Jurisdiction, 14 B.Y.U. J.Pub.L. 173, 179-80 (2000); Philip P. Frickey, A Common Law For Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Nonmembers, 109 Yale L.J. 1, 85 n. 322 (1999); see also Note, Dispelling The Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead, 78 Neb.L.Rev. 162, 180-204 (1999). I have recently read "A Slippery Slope", authored by Ben Welch in the October 2001 American Indian Report. That article traces the history of important decisions and legislation affecting tribes, Native Americans and states.
I believe that we are dealing with a matter of federal common law. I do not believe the Congress acted beyond its authority. I do not believe that Duro was founded on constitutional principles but rather on a finding by the judiciary as to what the federal common law was. Federal common law has since Duro been clarified by Congress. It now exists just as Felix Cohen described it in 1945 in the first compendium of federal Indian law, Handbook of Federal Indian Law, namely that the rights of a tribe to sovereignty and self government are only restricted if the federal government, acting through the Congress, expressly extinguishes those rights, wholly or in part. Mr. Cohen was quoted in United States v. Wheeler, 435 U.S. 313, 322 (1978), to the effect that tribes possess "inherent powers of a limited sovereignty which has never been extinguished." By virtue of the action of the United States Congress declaring the federal common law, the tribe here exercised inherent sovereignty. There is no double jeopardy and the motion to dismiss should be denied. The motion should also be denied as to the claims of a bill of attainder and as to claims of violations of constitutional rights of due process and equal protection. Nonmember Indians will simply be subjected to the same tribal court systems as member Indians. Indians who choose to leave their own reservations and live on another reservation make such choices in a conscious manner. They will receive the same treatment and rights as all other Indians living on that particular reservation.
Now, therefore,
IT IS ORDERED, as follows:
1) The conclusions of the report and recommendation (Doc. 35) and the supplemental report and recommendation (Doc. 93) are adopted as modified herein.
2) The objections of the defendant (Doc.97) are overruled.
3) The motion to dismiss the indictment (Doc. 26) is denied.
4) The offer of proof (Doc. 85) is rejected.