Opinion
OP 23-0706
01-02-2024
CLIFFORD OLD-HORN, Petitioner, v. DON BELL, Sheriff, Lake County Detention Center, Respondent.
ORDER
Clifford Old-Horn has filed a Petition for Writ of Habeas Corpus, indicating an illegal sentence, excessive bail while in jail, and illegal incarceration. He requests his immediate release.
Old-Horn explains that this Court should reconsider our prior denial of his writ for habeas corpus relief. Old-Horn v. Lake County Detention Center, No. OP 23-0654, Order (Mont. Nov. 21,2023) (Old-Horn I), He provides that "on November 20,2023, [the] Lake County Board of Commissioners sent a certified letter to Governor Greg Gianforte, formally announcing their intention to withdraw from Public Law 280." Old-Horn states that he committed his felonies in 2005 "within Lake County Jurisdiction[]" He further states that he "believe[s] his confinement in Lake County Detention Center is [illegal], therefore [his] bail would be excessive[.]" Old-Horn requests his immediate release or that his matter be remanded to the tribal court.
In our prior Order, this Court denied his petition for relief because he had not demonstrated want of bail, pursuant to § 46-22-103, MCA, and because his pending case was the cause of his incarceration. Old-Horn I, at 2. Not much has changed since our last order; Old-Horn is incarcerated in the Lake County Jail for his pending probation revocation. Old-Horn I, at 2.
Lake County still has concurrent felony jurisdiction. 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 to withdraw completely "their consent to be subject to criminal jurisdiction of the State," but that had not happened in 2019 or presently. Lozeau, ¶11.
Although the Lake County Board of Commissioners notified Governor Gianforte on November 20, 2023, that Lake County would withdraw its consent to enforce Public Law 280, 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 yet issued a proclamation. Subsection (4) of the statute provides further that subsection (3) of the statute does not alter the existing jurisdiction or authority of the State of Montana. Section 2-1-306(4), MCA.
Old-Horn has not presented a prima facie case for habeas corpus relief. Lake County's notice of withdrawal does not affect his sentence, imposed prior to any notice, tribal resolution, or Governor proclamation. He has not demonstrated an illegal sentence. Old-Horn is not entitled to release.
IT IS THEREFORE ORDERED that Old-Horn'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 Clifford Old-Horn personally.