508 F.2d 1293 (8th Cir. 1975), 74-1290, Big Eagle v. Andera

Docket Nº:74-1290.
Citation:508 F.2d 1293
Party Name:Regina BIG EAGLE and Willard Big Eagle, Appellants, v. Leonard E. ANDERA, Individually and in his official capacity as Judge of the Crow Creek Sioux Tribal Court, et al., Appellees.
Case Date:January 08, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1293

508 F.2d 1293 (8th Cir. 1975)

Regina BIG EAGLE and Willard Big Eagle, Appellants,


Leonard E. ANDERA, Individually and in his official capacity

as Judge of the Crow Creek Sioux Tribal Court, et

al., Appellees.

No. 74-1290.

United States Court of Appeals, Eighth Circuit

January 8, 1975

Submitted Oct. 16, 1974.

Page 1294

Gary R. Thomas, Ft. Thompson, S.D., Steven L. Pevar, S.D. Legal Services, Mission, S.D., for appellants.

David L. Bergren, Ft. Pierre, S.D., for appellees.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.


Regina Big Eagle and her brother, Willard Big Eagle, both enrolled adult members of the Crow Creek Sioux Tribe of South Dakota, filed habeas corpus petitions, pursuant to 25 U.S.C. 1303 (1970), in the United States District Court for the District of South Dakota. They sought to be released from serving sentences 1 for violation of the Tribe's disorderly conduct statute, 19, Crow

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Creek Sioux Tribe Penal Code, 2 and the Tribe's contributing to the delinquency of a minor statute, 9, Crow Creek Sioux Tribe Penal Code. 3 They contended that they were unjustly confined because, inter alia, both statutes violate (1) the due process guarantee of the Indian Bill of Rights, 25 U.S.C. 1302(8), 4 insofar as they are so vague that persons of ordinary intelligence must guess at their meaning, and (2) the free speech guarantee of the Indian Bill of Rights, 25 U.S.C. 1302(1), 5 insofar as they may punish protected speech. The district court rejected these contentions and denied the petitions by a memorandum decision filed April 1, 1974. Petitioners appeal from that decision.

The evidence heard by the district court in this case focused upon the proceedings that took place in Tribal Court before Tribal Judge Walter Peck. The petitioners and Judge Peck, a respondent below, 6 gave oral testimony before the district court on procedures which had been followed in the Tribal Court. 7 Although the respondents presented no evidence of how the questioned statutes had been applied in the Tribal Court to persons other than the petitioners, the district judge, in rejecting the constitutional attack on the statutes, said:

The case of Wainwright v. Stone, (414 U.S. 21,) 94 S.Ct. 190 (38 L.Ed.2d 179) (1973), is controlling wherein it was held: The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation 'we must take the statute as though it read precisely as the highest court of the State has interpreted it.' Id. at 192. There was no evidence that these statutes were applied in any vague or inconsistent manner. No bad faith or harassment has been shown. In fact, the record is clear that both statutes have been interpreted consistently and it cannot be said that men of common intelligence must guess at its meaning or differ as to its application.

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The Tribe, in urging us to affirm the district court, makes the following statement in its brief on the challenge to the disorderly conduct statute:

Victoria Aikens acted as Chief Judge for 15 years prior to 1972, and during that time without exception, prosecution under the disorderly conduct statute was limited to cases involving fighting and intoxication. There has never been a prosecution under this statute or a conviction for 'disturbing or annoying any public or religious assembly,' and the application of the statute in that regard has been consistent. In the instant case, the facts revealed that the defendants were not charged with disturbing or annoying any public or religious assembly.

Appellants also urge that the term 'disorderly condition' is overbroad. The question may be answered quite simply. In the entire history of the Tribal Court system, no one has ever been charged with being in a...

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