Opinion
CR 2000-30089
July 13, 2001
Thomas J. Wright, U.S. Attorney's Office, Pierre, S.D., Attorney for Plaintiff.
Thomas P. Maher, Maher Arendt, Pierre, S.D., Attorney for Defendant.
REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT'S MOTION FOR DISMISSAL
I.
[¶ 1] Defendant, James Archambault, aka James Skunk (Archambault), filed a Motion for Dismissal and supporting Memorandum on June 19, 2001. Docket Nos. 26-27. After plaintiff, United States of America (government), filed a written response to the Motion, Docket No. 28, and Archambault filed a Supplemental Memorandum, Docket No. 30, a hearing was held at which certain facts were stipulated to and Archambault was allowed to supplement the record. H.Tr. 8-10; Docket No. 33. Because Archambault's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of Archambault's Motion.
II.
[¶ 2] Archambault is an adult Indian male and an enrolled member of the Standing Rock Indian Tribe. Docket No. 33. On October 19, 2000, he pled guilty to domestic violence and to endangering the welfare of a child in Cheyenne River Sioux Tribal Court and was sentenced to a one year jail term, with six months suspended on conditions, and ordered to pay a fine and court costs. Docket No. 27, Ex.A.
[¶ 3] On December 14, 2001, a federal grand jury returned a single count indictment charging Archambault with assault resulting in serious bodily injury in violation of 18 U.S.C. § 1153 and 113(a)(6). Docket No. 1. The parties do not dispute that the assault charge involves the same conduct as the domestic violence offense for which Archambault had already been prosecuted, convicted and sentenced by the Cheyenne River Tribal Court. Hrg. Tr. 9.
[¶ 4] In response to the indictment, Archambault filed a Motion for Dismissal with supporting Memoranda, alleging that the subsequent federal prosecution was barred by the Double Jeopardy Clause, that his due process and equal protection rights were violated and that 25 U.S.C. § 1301 constitutes an impermissible bill of attainer. Docket Nos. 26, 27, 30.
III.
[¶ 5] The Fifth Amendment's Double Jeopardy Clause provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." This constitutional guarantee prohibits "a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense." Department of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n. 1 (1994); see also North Carolina v. Pierce, 395 U.S. 711, 717 (1969). The rationale behind the doctrine is this: if, in the course of a single act, a person violates the laws of two sovereigns, he has committed two separate crimes for which each sovereign has an independent right to prosecute him for. Heath v. Alabama, 474 U.S. 82, 88 (1985); United States v. Lanza, 260 U.S. 377, 382 (1922).
[¶ 6] This Court thus must determine whether the two entities that prosecuted Archambault, namely the Cheyenne River Sioux Tribe (CRST) and the government, are "separate sovereigns" for purposes of the Double Jeopardy Clause. In order to do so, the Court must ascertain "the ultimate source of power under which the respective prosecutions were undertaken." United States v. Wheeler, 435 U.S. 313, 320 (1978); see also, Heath, 474 U.S. at 88.
IV.
[¶ 7] When Indian tribes are involved, it is difficult to determine double jeopardy violations because tribes exercise various forms of power that emanate from different sources. On the one hand, tribes are autonomous sovereigns, that is, they retain all power that is not "inconsistent with their status" as "conquered and dependent" nations. United States v. Enas, No. 99-10049, 2001 WL 726669 at *3 (9th Cir. June 29, 2001) ( en banc), ( quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196 (1978)) This kind of authority, referred to as "inherent", Wheeler, 435 U.S. at 329, or "retained", id. at 327; Duro v. Reina, 495 U.S. 676, 679 (1990), is the power tribes need to control their own internal relations and to preserve their own unique customs and social order, Duro, 495 US at 685-86.
[¶ 8] On the other hand, "[t]he sovereignty that Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance." Wheeler, 435 U.S. at 323; see also United States v. Wadena, 152 F.3d 831, 843 (8th Cir. 1998), cert. denied, 526 U.S. 1050 (1999). When Congress bestows additional power upon a tribe, Congress has delegated an aspect of the government's own sovereignty to the tribe. Duro, 495 U.S. at 687; Wheeler, 435 U.S. at 328; Oliphant, 435 US at 208.
[¶ 9] The distinction between inherent and delegated power is critical for purposes of determining a double jeopardy violation. When an Indian tribe acts pursuant to its inherent power, the dual sovereignty doctrine permits federal and tribal prosecutions for the same offense. Enas, 2001 WL 726669 at *3. But when a tribe acts based on power delegated to it by Congress, the Double Jeopardy Clause prohibits duplicative tribal and federal prosecutions. Id.
[¶ 10] The paramount question here is whether CRST, in prosecuting Archambault, was exercising its inherent power or power that was delegated to it by Congress. If the former is true, the federal prosecution can continue; if the latter is the case, the assault charge must be dismissed as violative of the Double Jeopardy Clause. Before this question can squarely be addressed, Duro and the 1990 amendments to the Indian Civil Rights Act (ICRA) and other relevant cases, from both the Eighth Circuit and elsewhere, must be examined.
V.
[¶ 11] In 1978, the Supreme Court held that the Double Jeopardy Clause did not preclude the government from successively prosecuting a tribal member defendant under the Major Crimes Act. Wheeler, 435 U.S. at 326. The Supreme Court's holding was based on the notion that Indian tribes constitute separate sovereigns for purposes of the Double Jeopardy Clause. Id. at 329-30. The Court reasoned that the exercise of criminal authority over tribal members was an aspect of non-divested inherent tribal authority and was not based on delegated federal authority. Id.
See 18 U.S.C. § 1153 and 18 U.S.C. § 3242 (giving federal courts exclusive jurisdiction over certain crimes committed in Indian country by both Indians and non-Indians).
[¶ 12] Scarcely more than two weeks before Wheeler was handed down, the Supreme Court decided Oliphant. In Oliphant, the Court determined that Indian tribes could not exercise criminal jurisdiction over non-Indians in the absence of an affirmative delegation of such power by Congress. 435 U.S. at 208. According to the Court, upon their incorporation into the United States, Indian tribes came under and were subject to the sovereignty of the United States and their rights to complete sovereignty, as independent nations, were diminished. Id. at 208-09.
[¶ 13] In Duro, the Supreme Court extended the judicial divestiture of sovereignty enunciated in Oliphant, holding that an Indian tribe could not assert jurisdiction over a defendant who was an Indian but not a tribal member. In reaching this conclusion, the Court observed that the power to prosecute non-member Indians "was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States." 495 U.S. at 693. Stated another way, tribes had no inherent power to prosecute non-member Indians.
[¶ 14] With this trio of cases, the paradigm had been completed: the inherent powers of Indian tribes included only those required for internal self-governance and in the absence of authority delegated by Congress, the sovereign rights of tribes to prosecute criminal offenders did not go beyond tribal members.
[¶ 15] Congress reacted swiftly to the Duro decision by passing the 1990 amendments to the ICRA. The amendments redefined the statute's definition of "powers of government" to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." 25 U.S.C. § 1301(2). It also created a definition of "Indian", as "any person who would be subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to commit an offense listed in that section in Indian country to which that section applies." 25 U.S.C. § 1301(4).
[¶ 16] These amendments reflect an attempt by Congress to "legislatively override" Duro by expressly recognizing and affirming that an Indian tribe's "inherent" sovereign status has always included criminal jurisdiction over non-member Indians. This intention is plain from the text of the amendments and their legislative history. See, e.g., 137 Cong. Rec. H2988-01 (May 14, 1991), 1991 WL 77806 (statement of Rep. Miller)("[T]his bill recognizes an inherent tribal right which always existed. It is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away."); H.R. Conf. Rep. No. 102-261, at 3 (1991), reprinted in 1991 U.S.C.CAN 379 ("The Committee of Conference is clarifying an inherent right which tribal governments have always held and was never questioned until the recent Supreme Court decision of Duro v. Reina, 110 SCt 2[0]53 (1990)."); see also, Mousseaux v. United States Commissioner of Indian Affairs, 806 F. Supp. 1433, 1442-43 (DSD 1992), aff'd in part and remanded in part on other grounds, 28 F.3d 786 (8th Cir. 1994).
[¶ 17] It appears that Duro and the 1990 amendments to the ICRA are in direct conflict. The critical question, therefore, becomes whether Congress, in the face of Duro and the Supreme Court's pronouncements therein, had the authority to pass the amendments and clarify its vision of tribal sovereignty.
VI.
[¶ 18] Before delving into this separation of powers thicket, it is appropriate that consideration be given to the decisions of other courts which have discussed the interplay between Duro and the 1990 amendments and the "inherent" versus "delegated" power issue.
[¶ 19] In United States v. Weaselhead, 36 F. Supp.2d 908 (D Neb. 1997), affirmed by an equally divided court, 165 F.3d 1209 (8th Cir.) ( en banc), cert. denied, 528 U.S. 829 (1999), the Eighth Circuit wrestled with the same issue that confronts this Court. The case began in the District of Nebraska, where the defendant, an enrolled member of the Blackfoot Indian Tribe of Montana, sought to dismiss a federal indictment on double jeopardy grounds because he had previously been prosecuted and convicted in Winnebago Tribal Court. The district court held that the Winnebago Tribe exercised its inherent sovereignty when it prosecuted the defendant and that the subsequent federal prosecution of him did not violate the Double Jeopardy Clause. 36 F. Supp.2d at 915.
[¶ 20] A divided panel of the Eighth Circuit reversed. The Weaselhead majority determined that what sovereign powers Indian tribes inherently possess is a constitutional matter that must be decided by the Supreme Court and not Congress:
We conclude that ascertainment of first principles regarding the position of Indian tribes within our constitutional structure of government is a matter ultimately entrusted to the [Supreme] Court and thus beyond the scope of Congress's authority to alter retro actively by legislative fiat. Fundamental, ab initio matters of constitutional history should not be committed to "[s]hifting legislative majorities" free to arbitrarily interpret and reorder the organic law as public sentiment veers in one direction or another.
Prior to the post- Duro amendment[s], criminal jurisdiction over non-member Indians did not exist, as it had been "necessarily surrendered by tribes in their submission to the overriding sovereignty of the United States." Although Congress presumably acted within its power in delegating criminal jurisdiction over non-member Indians to the tribes, it was beyond Congress's power to declare existent a non-sovereignty based jurisdiction that the Court has declared to be nonexistent.
156 F.3d at 824 (citations omitted).
[¶ 21] Judge Morris Sheppard Arnold dissented. In Judge Arnold's view, "the question of what powers Indian tribes inherently possess . . . has always been a matter of federal common law," and as such, "Congress has the power to expand and contract the inherent sovereignty that . . . tribes possess because it has legislative authority over federal common law." 156 F.3d at 825.
[¶ 22] The Weaselhead panel decision was later vacated and the Eighth Circuit, sitting en banc, affirmed the district court's decision by an evenly-divided vote. 165 F.3d at 1209.
[¶ 23] Just recently, the en banc court in Enas, considered the issue presented in this case and unanimously held that the Double Jeopardy Clause was not transgressed by the federal prosecution of a non-member Indian. 2001 WL 726669 at **12, 18. The Enas court concluded that (1) Congress had the power to determine that tribal jurisdiction over non-member Indians was inherent, (2) acting under the 1990 amendments to the ICRA, the White Mountain Apache Tribe prosecuted the defendant pursuant to its own inherent power and (3) the federal prosecution could proceed because it was based on a separate power source, and the dual sovereignty doctrine applied and permitted successive tribal and federal prosecutions of the defendant. Id. at *12. Four judges concurred in the result, believing that there was no need to engage in a separation of powers analysis because the Apache Tribe prosecuted the defendant pursuant to its own inherent sovereign authority. Id. at 12-18.
Enas overruled Means v. Northern Cheyenne Tribal Court, 154 F.3d 941 (9th Cir. 1998) insofar as it held that Congress did not have the power to decide whether Indian tribes have always had and retained the inherent authority to exercise criminal jurisdiction over non-member Indians. 2001 WL 726669 at *7, n. 8.
VII.
[¶ 24] This Court agrees with the reasoning and rationale of the Court in Enas and that of Judge Arnold's dissenting opinion in Weaselhead.[¶ 25] It is axiomatic that when Congress and a court disagree and the issue is a constitutional one, the court's decision prevails. See Cooper v. Aaron, 358 U.S. 1, 18 (1958); Marbury v. Madison, 1 Cranch (5 US) 137, 177 (1803). In contrast, when Congress and a court are at odds over a statutory interpretation issue, Congress has the last word. M. Solimine J. Wall, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temple L. Rev., 425, 454-58 (1992) (listing 50 examples); see also, A. Mikva J. Bleich, When Congress Overrules the Court, 79 Cal L.Rev. 729 (1991) (providing an historical overview)).
[¶ 26] The Court has read and re-read Duro and is convinced that it is not a constitutional decision, but rather, like its two predecessors, Oliphant and Wheeler, is a decision based on federal common law. Although Duro is replete with references to sovereignty — a word that has constitutional implications — the decision does not rest on any constitutional provision. Enas, 2001 WL 726669 at *10. Nor does Duro state or even intimate that its holding is compelled by or rooted in any constitutional precepts. Id. If Duro and its progeny, Oliphant and Wheeler, had constitutional dimensions which constrain Congress's legislative authority, it is not readily apparent from the opinions themselves. Surely if these decisions were constitutionally based, the Supreme Court would have said so or at least mentioned the Constitution in its writings. Id.
Accord, F. 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, 177-78 (2000); L. Gould, The Consent Paradigm: Tribal Sovereignty at the Millenium, 96 Colum. L. Rev., 809, 853 (1996).
[¶ 27] Nor is Duro a statutory construction case. Although the Supreme Court in Duro did refer to several statutes in the course of its jurisdictional analysis, see e.g., 495 U.S. at 691, it was not called upon and did not have to interpret any particular statute.
[¶ 28] This case, unlike most others, involves a dispute between the judicial and legislative branches of government, not over a constitutional or statutory issue, but rather, a matter of common law based on history. Accepting, as the Court does, that the sovereignty issue decided in Duro was a matter of federal common law, see Enas, 2001 WL 726669 at *11, Weaselhead, 156 F.3d at 826, (M.S. Arnold, J., dissenting), who then holds the trump card? The answer is clear: within the realm of federal common law — and the federal common law of Indian tribes — Congress is supreme. 2001 WL 726669 at *11 ( citing Morton v. Mancari, 417 U.S. 535, 551-52 (1974)). Accordingly, Congress had the authority and acted within its bounds when it passed into law the 1990 amendments to the ICRA.
[¶ 29] As the above discussion indicates, had the Court concluded that the issue before it was one involving constitutional history, its recommendation to the District Court would most certainly be different. Indeed, there can be little doubt that a disgruntled Congress may not overrule, expressly or by the implication, a constitutional decision by retroactively modifying, through "clarifying legislation", the history upon which it is based. Id. For the reasons already discussed, this is not the situation present here.
VIII.
[¶ 30] This Court concludes that (1) the CRST proceeded under its inherent sovereignty, not under one that Congress delegated, in exercising jurisdiction over Archambault and (2) under the dual sovereignty doctrine, the government was not barred by the Double Jeopardy Clause from prosecuting him, following his tribal convictions, for assault in federal court.
This conclusion is consistent with the Eighth Circuit's en banc decision in Weaselhead. 165 F.3d at 1209. More importantly, the Weaselhead court's affirmance, en banc, of the district court's order itself provides an adequate and independent basis for denial of Archambault's Dismissal Motion and the Court adopts and relies on such a rationale as a secondary ground for making its recommendation herein.
IX.
[¶ 31] Archambault alternatively claims that 18 U.S.C. § 1153 and 25 U.S.C. § 1301-03 deny him due process and equal protection under the law. He argues that these statutory provisions are discriminatory because they "place non-member Indians in jeopardy of tribal criminal prosecution and subsequent federal prosecution for the same act." Docket No. 30 at 8. Archambault maintains the two sets of statutes "unreasonably and intentionally employ a racial classification that imposes a severe burden upon non-member Indians by granting dual prosecution in both tribal and federal courts while not granting the same jurisdiction [to] non-Indians." Docket No. 27 at 3.[¶ 32] Archambault's Fifth Amendment claims, however, have been addressed and rejected by the Supreme Court and other courts and therefore are wholly without merit. See United States v. Antelope, 430 U.S. 641, 642-50 (1977); Fisher v. District Court, 424 U.S. 382, 390-91 (1976); Morton, 417 U.S. at 551-55; see also, United States v. Eagleboy, 200 F.3d 1137, 1138-40 (8th Cir. 1999); United States v. Juvenile Male, 864 F.2d 641, 645-46 (9th Cir. 1988); Kills Crow v. United States, 451 F.2d 323, 325-27 (8th Cir. 1971), cert. denied, 405 U.S. 999 (1972); United States v. Banks, 368 F. Supp. 1245, 1248 (DSD 1973).
X.
[¶ 33] Finally, Archambault contends that 25 U.S.C. § 1301 is an unconstitutional bill of attainer. Docket No. 30 at 7. At oral argument, he conceded though, that his bill of attainer contention was tied to and dependent on his due process and equal protection claims. H.Tr. 2-3. As already demonstrated, these claims are not cognizable. This being the case, Archambault's contention, that § 1301 violates the ban on bills of attainer, must likewise fall by the wayside.
[¶ 34] The contention must fail for yet another reason as well. Simply stated, § 1301 is not a bill of attainer under Article I, § 9 of the Constitution.
[¶ 35] A bill of attainer is a law that legislatively determines guilt and inflicts punishment upon named individuals, see e.g., United States v. Lovett, 328 U.S. 303 (1946), or readily identifiable groups, see e.g., Ex parte Garland, 4 Wall (71 US) 333 (1867), "without provision of the protections of a judicial trial." Selective Service System v. Minn. Public Interest Research Group, 468 U.S. 841, 846-47 (1984); Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977); see also Planned Parenthood of Mid-Missouri v. Dempsey, 167 F.3d 458, 465 (8th Cir. 1999). In passing a bill of attainer, Congress departs from its constitutional role of providing general rules for the government of society and usurps the judicial role by determinating guilt legislatively. Fletcher v. Peck, 6 Cranch (10 US) 87 (1810). The danger of such a law is, of course, that it deprives the accused of the protections afforded by judicial process.
[¶ 36] Archambault is not the victim of a bill of attainer. Section 1301, a four-term definitions statute, does not punish Archambault without an adjudication of guilt. Selective Service, 468 U.S. at 852-53; United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir. 1986). Nor is the statute intended to further a punitive purpose or otherwise codify a desire, on the part of Congress, to punish non-member Indians like Archambault. Selective Service, 468 U.S. at 853-56; Planned Parenthood, 167 F.3d at 465. The statute therefore easily passes constitutional muster and provides Archambault with no grounds whatsoever for dismissal of his case.
XI.
[¶ 37] Based on the foregoing and in accordance with 28 U.S.C. § 636(b)(1), this Court hereby
[¶ 38] RECOMMENDS that Archambault's Motion for Dismissal, Docket No. 26, be denied in its entirety and with prejudice.