Opinion
CR 2000-30089
July 12, 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.
[¶ 39] On July 26, 2001, the District Court remanded the instant case for further proceedings pursuant to 28 U.S.C. § 636(b)(1)(C). Docket No. 46. In its Remand Order, the District Court directed that this Court consider the case, and in particular, the Motion for Dismissal filed by defendant, James Archambault, also known as James Skunk (Archambault), in light of the United States Supreme Court's recent decision in Nevada v. Hicks, 121 SCt 2304 (2001). The District Court also directed that Archambault be afforded the opportunity to offer additional evidence purporting to show a "dependent relationship" between the Cheyenne River Sioux Tribe, its tribal court and law enforcement, and plaintiff, United States of America (government). In accordance with the District Court's directives, this Court has permitted the parties to brief and argue the Hicks case and has allowed both Archambault and the government to supplement the record with additional or rebuttal evidence.
The Honorable Charles B. Kornmann, United States District Judge, presiding.
II.
[¶ 40] This Court has carefully reviewed Hicks, including the various concurring opinions thereof, and believes that it does not control the double jeopardy claim raised by Archambault in his Motion and that the Court's reasoning and analysis with respect to this claim, set forth at pages 2-9, ¶¶ III-VIII of the Report and Recommendation, Docket No. 35, should be reaffirmed, with one exception.
Hicks does not appear to involve or otherwise deal with Archambault's due process, equal protection and bill of attainer claims and the Court's discussion of these issues, found at pages 9-11, ¶¶ IX-X of the Report and Recommendation, is likewise reaffirmed.
Footnote 4 on page 9 of the Report and Recommendation should be modified to reflect that the conclusion reached in the Report on the double jeopardy issue coincides with the district court's decision in United States v. Weaselhead, 36 F. Supp.2d 908 (D Neb. 1997), aff'd by an equally divided court, 165 F.2d 1209 (8th Cir.) ( en banc), cert. denied, 528 U.S. 829 (1999), and the Court adopts and relies on the rationale of that court in making its recommendation on this issue.
[¶ 41] In Hicks, the United States Supreme held that a Nevada tribal court did not have jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribal member suspected of having violated state law while off the reservation. 121 SCt at 2309-13. Applying the all too familiar principles of Montana v. United States, 450 U.S. 544 (1981), the Supreme Court determined, among other things, that:
(1) tribal authority to regulate state officers executing process relating to state offenses that occurred off the reservation was not essential to tribal self-government or internal relations — to "the right to make laws and be ruled by them"; and
(2) Congress did not strip states of their inherent jurisdiction on reservations with regard to off-reservation violations of state criminal laws.Id. at 2313. Hicks did not address, much less resolve, the ultimate source of authority by which tribal courts exercise jurisdiction over nonmember Indians who commit crimes while on the reservation or whether the government, by virtue of the Double Jeopardy Clause, is barred from prosecuting a nonmember Indian, following his tribal convictions, for an equivalent offense in federal court. Instead, the Court's holding was "limited to the question of tribal-court jurisdiction over state officers enforcing state law", and explicitly left "open the question of tribal-court jurisdiction over nonmember defendants in general". Id. at 2309 n. 2; see also, id. at 2319 (Souter, J. concurring); id. at 2324 (Ginsburg, J. concurring).
[¶ 42] In addition to Hicks, the Court has read and considered Atkinson Trading Co. v. Shirley, 121 SCt 1825 (2001), a recent case cited to by the Hicks Court. In Atkinson, the Supreme Court, applying the Montana framework, held that an Indian tribe lacked authority to impose a hotel occupancy tax upon nonmember guests for activity that occurred on non-Indian fee land located within reservation boundaries. 121 SCt at 1832-35. In doing so, the Court found that the tribe failed to establish that the occupancy tax was commensurately related to any consensual relationship or necessary to vindicate the political integrity, economic security, health or welfare of the tribe and therefore was unlawful. Id. at 1834-35. Atkinson, like Hicks, did not broach, much less decide, the dual sovereignty/double jeopardy issue which is the gravamen of Archambault's Dismissal Motion.
[¶ 43] Inasmuch as Hicks and Atkinson are factually and legally distinguishable from the case at hand, they do not govern, much less change, the Court's earlier Report and Recommendation.
III.
[¶ 44] Yet, insofar as these cases are precedentially instructive, they do not detract from or otherwise weaken, the Court's prior conclusion that the government is not precluded, by the Double Jeopardy Clause, from going forward with its prosecution against Archambault.
As is suggested in its original Report and Recommendation, this Court believes that the panel decision in United States v.Weaselhead, 156 F.3d 818 (8th Cir. 1998) was wrongly decided. At least one other court and several commentators, who have reviewed the case, agree. See United States v. Enas, 255 F.3d 662, 674-75 (9th Cir. 2001) ( en banc); 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 Roadmap for Improving Interactions Among Tribal, State and Federal Governments, 31 McGeorge L. Rev. 973, 1000-01 (2000); Christopher B. Chaney, The Effect of the United States Supreme Court's Decisions During the Last Quarter of the Nineteenth Century on Tribal Jurisdiction, 14 BYU 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).
[¶ 45] Montana recognizes that a tribe may retain inherent power to exercise jurisdiction over a nonmember when his 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. These interests are plainly implicated where, as here, a nonmember Indian engages in violent criminal activity within the boundaries of a tribe's own reservation. Without question, the apprehension, prosecution and punishment of such an offender are essential attributes of tribal sovereignty and necessary, if not crucial, to protect the health and safety of tribal members. Indeed, a tribe's authority to prosecute violent domestic crimes, committed by nonmember Indians against its own members while on the reservation, has always been an inherent facet of tribal self-government and an integral part of the tribe's sovereign duty to "preserve and protect" its people and the homeland. See Enas, 255 F.3d at 664-65, 675 (holding that a tribe had the inherent authority to prosecute a nonmember Indian for assaulting a tribal member while on the reservation and that federal assault charges, stemming from the same incident and filed after the nonmember's tribal assault conviction, were based on a separate power source and therefore did not violate the Double Jeopardy Clause); 25 U.S.C. § 1301(2) (expanding the definition of "powers of self government" and, in the process, recognizing and affirming "the inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians"); see also, Mousseaux v. United States, 806 F. Supp. 1433, 1441-43 (DSD 1992), aff'd in part and remanded in part on other grounds, 28 F.3d 786 (8th Cir. 1994).
Copies of the relevant FBI 302's, tribal offense reports and other materials detailing Archambault's alleged criminal conduct, are found in the record. See Docket No. 70. The record also indicates that Marie DeWitt, the victim in the tribal Domestic Violence offense Archambault was convicted of, is an enrolled member of the Cheyenne River Sioux Tribe (CRST). Docket No. 87. DeWitt is the alleged victim in the instant case (which, of course, arises out of and is based on the Domestic Violence charge Archambault pled guilty to in tribal court on October 19, 2000). See Docket Nos. 27 (Ex.A), 70.
Congress, at the same time, added a definition of the term "Indian" devoid of any requirement of tribal membership within the tribe exercising criminal jurisdiction. See 25 U.S.C. § 1301(4).
[¶ 46] The Supreme Court in Montana and other cases also recognized that tribes retain sovereign interests in activities that occur on land owned and controlled by a tribe, especially when these interests involve violations of tribal law and injuries to the tribe's own members in a domestic relations setting. Hicks, 121 SCt at 2310, 2316 (acknowledging that tribal ownership is a significant factor in the Montana analysis that may be dispositive unless outweighed by other interests); Strate v. A-1 Contractors, 520 U.S. 438, 454-55 (1997) (agreeing "that tribes retain considerable control over nonmember conduct on tribal land" but concluding that because the defendant's alleged tortious conduct occurred on land that was equivalent to "alienated non-Indian land" tribal court jurisdiction was lacking); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 142 (1982) (tribe has taxing authority over tribal lands leased by nonmembers); Montana, 450 U.S. at 557 (a tribe may prohibit or regulate the activities of nonmembers on land belonging to the tribe or held by the United States in trust for the tribe); see also, Atkinson, 121 SCt at 1831-32 (a tribe's inherent power to tax does not extend to nonmember activity occurring on non-Indian fee land). A tribe's authority to punish Indian nonmembers for criminal conduct perpetrated against tribal members on tribal property is essential to tribal self-government and/or internal relations given the multitude of nonmember Indians who live on reservations and the number and frequency of crimes that occur in this context each day. See and compare Hicks, 121 SCt at 2316 (tribal self-government and internal relations are not threatened or otherwise affected by "a narrow category of outsiders"); Atkinson, 121 SCt at 1834-35 (operation of a hotel on non-Indian fee land did not endanger the tribe's political integrity).
At the time of the charged offense, Archambault and DeWitt lived together as "husband and wife" in tribal housing they shared with their three children. Docket No. 70. The house they lived in is located in Timber Lake, South Dakota and is where Archambault allegedly assaulted DeWitt. Id. In addition, the parties stipulated that this is a criminal domestic relations case. H. Tr. (Sept. 5, 2001) 67-68. These facts are important because CRST's sovereign powers are much stronger in domestic relations matters involving a tribal member who, while living in a home provided to her by the tribe, is severely beaten by her nonmember Indian "husband". See Montana, 450 U.S. at 564 (tribes have inherent authority to punish tribal offenders and to regulate domestic relations among members).
See Allison M. Dussias, Geographically-Based and Membership-Based Views of Tribal Sovereignty: The Supreme Court's Changing Vision, 55 U. Pitt. L. Rev. 1, 97 n. 155 (1993) (pointing out, with citation to authorities, that the number of nonmember Indians who live on reservations and commit crimes there is substantial); see also, Docket No. 85 (June 11, 1990 Memorandum) (referring to the Duro v. Reina, 495 U.S. 676 (1990) decision as being "problematic" because of the fact that many reservations have "populations" of nonmember Indians).
[¶ 47] Although the Supreme Court in Duro, temporarily limited the reach of tribal authority over nonmember Indians in criminal cases, Congress, acting pursuant to its plenary power under the Indian Commerce Clause, quickly rejected the Court's holding when it amended the Indian Civil Rights Act (ICRA) on October 24, 1990, to acknowledge, confirm and prospectively restore the inherent authority of Indian tribes over all Indians, including nonmembers. It is beyond dispute that Congress is empowered to "deal with the special problems [facing] Indians" and to "legislate on [their] behalf, using its authority under the Indian Commerce Clause". Morton v. Mancari, 417 U.S. 535, 551-52 (1974); see also, Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs"). More importantly, Congress has the power to alter inherent sovereignty that Indian tribes possess because it has legislative authority over federal common law. Enas, 255 F.3d at 673-75; see also, Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313-14 (1981) ("federal common law is `subject to the paramount authority of Congress'"); Washington v. Confederated Bands Tribes of Yakima Nation, 439 U.S. 463, 501 (1979) ("[i]t is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereignty of the Indian tribes").16 Congress can also recognize tribal authority without being the source of that authority. See United States v. Wheeler, 435 U.S. 313, 328 (1978).
See U.S. Const. art. I, § 8, cl. 3.
The 1990 amendments were designed by Congress to override Duro in at least two respects. First, tribes now have criminal jurisdiction over nonmember Indians. Second, and perhaps more importantly, Congress intended to replace Duro's historical perspective, in which tribes had no power over nonmember Indians, with a different version that "recognized and affirmed" such power to be "inherent" and consistent with "two hundred years of Federal law". See 136 Cong. Rec. H13556-01, *H13596 (Oct. 24, 1990), 1990 WL 206923; see also 137 Cong. Rec. H8131-06, *H8132 (Oct. 22, 1991), 1991 WL 212368 (reaffirming that Congress determines Indian policy; Indian tribes retain all rights and powers not expressly divested by Congress; and that these principles go back to the decisions of Chief Justice John Marshall and are part of the foundation of the federal tribal relation. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)); 137 Cong. Rec. 55167-01, ** 55223-24 April 25, 1991), 1991 WL 65008 (stating that the assumption in Congress has always been that tribal governments do have such jurisdiction, and federal statutes reflect this "view" and that the amendments were intended to "recognize and reaffirm" the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians"); 137 Cong. Rec. H. 2988-02, *H2990 (May 14, 1991), 1991 WL 77806 (report on H.R. 972) (stating that the amendments "seek to assure Indian tribes of their jurisdiction over misdemeanor crimes committed on their lands by Indians who are not members of their tribe. The Committee is clarifying an inherent right which tribal governments have always held and was never questioned . . .").
Congress likewise made clear that the amendments were not a congressional delegation of authority, but rather a recognition of power that had always existed, i.e., an inherent power that had never been extinguished. See 137 Cong. Rec. H8131-06, *H8132, 1991 WL 212368 (noting that the amendments are not a delegation of criminal jurisdiction to Indian tribes); 137 Cong. Rec. H2988-02, *H2991, 1991 WL 77806 ("tribes have retained the criminal jurisdiction over nonmember Indians and this legislation is not a federal delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations"); 137 Cong. Rec. E2165-04, *E2166, (June 12, 1991), 1991 WL 100975 (statement of Rep. Miller) ("we make these corrections to make clear the Committee's acknowledgment of the fact that tribes — first have always been able to exercise misdemeanor criminal jurisdiction over all Indians on tribal lands; second, that Congress never took the jurisdiction away; and third, that tribes clearly retain this jurisdiction as self-governing entities and as keepers of the peace on their homelands.").
Although the issue is still open to debate, several commentators have persuasively argued that the amendments serve to reinvest tribes with criminal jurisdiction over nonmember Indians. See e.g., L. Scott Gould, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution, 28 U.C. David L. Rev. 79-80 (1994) ("the fate of [the amendments] may turn on whether the Court accepts the law as recognition of inherent sovereignty or, instead, views it as a delegation of authority. If the former, the Court must step aside because a clear statement of congressional intent displaces federal common law"); Nell Jessup Newton, Permanent Legislation to Correct Duro v. Reina, 17 Am. Indian L. Rev. 109, 113 (1992) ("[i]f the [Supreme] Court errs in determining congressional intent, Congress can correct the court"); Philip S. Deloria and Nell Jessup Newton, The Criminal Jurisdiction of Tribal Courts Over Non-Member Indians, 38 Fed. Bar New J. 70, 75 (Mar. 1991) ("where Congress is merely recognizing a power that Indian tribes have, a priori, that from time immemorial, we believe the Court should . . . defer").
Some commentators have even suggested that the amendments raise due process and equal protection issues if the same are viewed as a delegation of federal power. See e.g., Gould, 28 U.C. Davis L. Rev. at 94-121; Alex Tallchief Skibine, Duro v. Reina, and the Legislation That Overturned It: A Power Play of Constitutional Dimensions, 66 S. Cal. L. Rev. 767, 784-805 (1993).
[¶ 48] Here, the CRST prosecuted Archambault pursuant to its own inherent authority. As discussed in the Court's initial Report and Recommendation, the dual sovereignty doctrine allows two independent sovereigns to prosecute a lawbreaker separately for the same conduct without offending the Double Jeopardy Clause. See Heath v. Alabama, 474 U.S. 82, 88-91 (1985); Wheeler, 435 U.S. at 316-32; see also, United States v. Lanza, 260 U.S. 377, 382 (1922) ("an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each"). Because the Tribe and the federal government are separate sovereigns for double jeopardy purposes, the dual sovereignty doctrine permits successive tribal and federal prosecutions of Archambault for the domestic violence/assault offenses. Enas, 255 F.3d at 664-75; see also, id. at 682-83 (Pregerson, J. concurring).
IV.
[¶ 49] This result is consistent with Congress's intent when it enacted the 1990 amendments. Legislative history of these amendments evinces a clear desire on the part of Congress for § 1301 to serve as confirmation of the tribe's pre-existing jurisdiction and not as a delegation of the same. Recognizing the inherent sovereignty of CRST gives full effect to and carries out this congressional intent.
[¶ 50] Such a reading of the 1990 amendments is also consistent with other provisions of the ICRA. For example, under the ICRA, tribal courts have limited criminal jurisdiction and can only sentence criminal defendants to one year of imprisonment, a $5,000 fine, or both. See 25 U.S.C. § 1302(7). If the 1990 amendments were interpreted as an affirmative delegation of power to tribal courts, then the Double Jeopardy Clause would only permit defendants to be prosecuted once. In such a case, a nonmember Indian who brutally murders his tribal member girlfriend while on reservation property could race into tribal court, plead guilty and be sentenced as a misdemeanant, and avoid federal prosecution. By the same token, a tribal member, who commits the same crime would not be shielded by the Double Jeopardy Clause and could be prosecuted by tribal and federal authorities and sentenced much more harshly. It is questionable whether Congress really intended for this to happen. See Wheeler, 435 U.S. at 331 (stating that "[w]ere the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations would be frustrated").
[¶ 51] Finally, the result reached herein is consistent with federal criminal statutes relating to Indians. The Federal Enclaves Act (also known as the General Crimes Act), codified at 18 U.S.C. § 1152, assumes that tribes have the power to punish any Indian, member or nonmember. Significantly, the Act expressly excludes from its reach " any Indian committing any offense in the Indian country who has been punished by the local law of the tribe." (emphasis added). The Major Crimes Act, 18 U.S.C. § 1153, likewise makes no distinction between member and nonmember Indians. This Act gives federal courts jurisdiction over certain enumerated crimes committed by "[ a]ny Indian in Indian country. Id. (emphasis added). Based on this language, the Act has routinely been applied to all Indians without regard to tribal membership status. See William C. Canby, Jr., American Indian Law, 125-27 (3d ed. 1998).
[¶ 52] After Duro, Congress exercised its power under the Indian Commerce Clause and enacted the 1990 amendments, clearly intending to restore inherent jurisdiction of Indian tribes over all Indians. See Mancari, 417 U.S. at 553-55 (standard for determining whether statute was an appropriate exercise of Indian Commerce Clause authority was whether it was "tied rationally to the fulfillment of Congress's unique obligation toward the Indians"). Construing these amendments as recognizing and confirming the inherent authority of tribes to exercise criminal jurisdiction over nonmember Indians fulfills the express desires of Congress and is in accord with constitutional strictures.
V.
[¶ 53] By way of an offer of proof, supported by live testimony and documents obtained from the Bureau of Indian Affairs (BIA), Archambault contends:
1. That because CRST is dependent upon the government for the funding and resources necessary to maintain the Tribe's law enforcement program and court system, the government is able to exercise broad authority over tribal operations and affect, among other things, how offenses perpetrated within the Tribe's borders are investigated, prosecuted and disposed of;
2. That prior to August 6, 1948, CRST had no authority over nonmember Indians who committed crimes on the reservation; and
3. That whatever jurisdiction CRST had over nonmember Indian offenders after that date and up to the time the 1990 amendments were passed, sprung from authority delegated to it by the BIA.
Docket Nos. 45, 85, 88.
[¶ 54] The question, however, is not whether the government's assistance, in some form or manner, tainted the sovereign independence of CRST, or what authority (inherent, delegated or both) the Tribe may have had over nonmember Indians in the past.17 Rather, the critical issue is whether the Tribe acted through its inherent authority or that delegated to it by Congress when it prosecuted Archambault in 2000. Wheeler, 435 U.S. at 322; Enas, 255 F.3d at 664, 666-75. Stated another way, is Archambault being proceeded against now by the same or a separate sovereign as the one that prosecuted him in tribal court last year? These questions are legal, not factual ones and turn on whether Congress had the power to determine, as a matter of federal common law, that tribal criminal jurisdiction over nonmember Indians was inherent. Because of the obvious tension between Duro and the 1990 amendments, complex and subtle issues of constitutional law exist, particularly in the area of separation of powers. Even so, the Court remains convinced that the inherent sovereignty of tribes is a matter of federal common law which Congress had the legislative authority to alter under the Indian Commerce Clause.18 In the Court's view, Congress "had the power to do exactly what it intended when it enacted the 1990 amendments . . . ." Enas, 255 F.3d at 675. Inasmuch as the Tribe was acting pursuant to its inherent authority when it prosecuted Enas, the tribal and federal prosecutions were undertaken by separate sovereigns and did not violate the Double Jeopardy Clause.19 Id.
VI.
[¶ 55] For the reasons stated herein and that were articulated previously in the Court's July 13, 2001 Report and Recommendation, it is accordingly again
[¶ 56] RECOMMENDED that Archambault's Motion for Dismissal, Docket No. 26, be DENIED in its entirety and with prejudice.