643 F.2d 521 (8th Cir. 1981), 80-1082, Davis v. Muellar

Docket Nº:80-1082.
Citation:643 F.2d 521
Party Name:Thomas D. DAVIS, Appellant, v. Bryant MUELLAR, as Sheriff of Rolette County, North Dakota, Appellee.
Case Date:March 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 521

643 F.2d 521 (8th Cir. 1981)

Thomas D. DAVIS, Appellant,

v.

Bryant MUELLAR, as Sheriff of Rolette County, North Dakota, Appellee.

No. 80-1082.

United States Court of Appeals, Eighth Circuit

March 6, 1981

Submitted March 14, 1980.

Rehearing and Rehearing En Banc Denied April 3, 1981.

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Timothy A. La France, Native American Rights Fund, Boulder, Colo., for appellant.

Vance Gillette, Bismarck, N. D., for amicus curiae.

Arne F. Boyum, Rolette County State's Atty., Rolla, N. D., for appellee.

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Before HENLEY and McMILLIAN, Circuit Judges, and HARPER, [*] Senior District Judge.

HENLEY, Circuit Judge.

Thomas D. Davis appeals the district court order, 481 F.Supp. 888, denying his petition for a pretrial writ of habeas corpus, 28 U.S.C. § 2241(c)(3), by which he sought release from North Dakota state custody on grounds that his arrest and state custody were, and are, in violation of a tribal extradition ordinance. We affirm.

Davis is an enrolled member of the Turtle Mountain Band of Chippewa Indians. The tribal extradition ordinance, first approved by the United States Bureau of Indian Affairs on June 13, 1967, mandates the following procedure in arresting a tribal member for a crime committed off the reservation: the state officials present the arrest warrant to tribal officials, the tribal officials make the arrest, and the Indian accused has an extradition hearing as a prerequisite to state custody. Turtle Mountain Tribal Code § 1.0710. 1

The Turtle Mountain Indian Reservation is composed of two townships in Rolette County, North Dakota. Indian land in the County, but outside the reservation, makes up another two townships. The resulting patchwork of Indian and state jurisdiction requires close cooperation between Indian and state officials, and there is no reason to believe that in general such cooperation does not exist. Specifically, with respect to the arrest of Davis subjective bad faith is denied.

On the night of October 9, 1978 Davis allegedly made a telephone call from the Reservation in which he threatened to kill one Kim Albert the next day at the Town of Rolla. 2 The alleged threat was reported

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to Rolette County officials who determined to arrest Davis the following morning.

On the morning of October 10, 1978 the tribal police department, obviously acting in cooperation with the Rolette County sheriff's office, notified Davis at his place of employment on the reservation that the county officers wished to speak with him and asked him to come to the Tribal Law and Order Office, which he did. After a short time a deputy sheriff arrived and Davis was arrested without a warrant. The record reflects that Davis refused to waive extradition and requested a hearing. However, no tribal judge was available nor was one to be available that day. In those circumstances Rolette County officials elected to take Davis into custody even though they were aware of the requirements of the extradition ordinance.

After Davis was placed in state custody, a complaint was filed, a warrant was issued, and bond was set at $1,500.00. Later that afternoon, Davis's wife posted bond at the Rolette County sheriff's office in Rolla. Davis was released, but the terms of his bond required him to appear in the state courts. 3

Davis presented his unlawful arrest claims to North Dakota state courts in four separate appearances. At his preliminary hearing in county justice court, Davis moved for a dismissal on the basis that the state arrest and custody of him on the reservation violated his rights under the tribal extradition ordinance and frustrated the federal guarantee of tribal self-government. This motion was denied, and he was bound over to the state district court. Then, Davis petitioned the state district court for a writ of habeas corpus, releasing him from state custody until the tribal extradition ordinance had been complied with. The writ was denied on the ground that he was not "in custody." 4 At the time of his arraignment in state district court, Davis again moved to dismiss on the basis of violation of tribal extradition laws but was denied relief. Finally Davis sought a writ of prohibition from the Supreme Court of North Dakota to restrain the impending district court prosecution. Without reaching the issue of the lawfulness of the arrest, the state supreme court denied the writ, noting that prohibition is granted only sparingly and only where there is no adequate remedy by appeal. Davis v. O'Keefe, 283 N.W.2d 73, 76 (N.D.1979).

Davis then took his claim to federal court. He petitioned the United States District Court for the District of North Dakota for a writ of habeas corpus based on the tribal extradition ordinance. By an order dated December 27, 1979, the district court denied the petition on the grounds that Davis had not exhausted state remedies because he had not yet been tried and convicted and that there were no special circumstances to override the exhaustion requirement. An administrative panel of this court granted a certificate of probable cause and directed that the state criminal proceeding be stayed pending appeal.

I. Federal Judicial Intervention.

At the outset we are confronted with the question whether this court should assume jurisdiction and decide this case on its merits.

Davis contends that the special circumstances of this case negate the need for exhaustion of state remedies. Alternatively, he contends that state remedies have been exhausted. He asserts that the

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unique status given tribal sovereignty constitutes a special circumstance. 5

Public policy and 28 U.S.C. § 2283 6 discourage federal court interference with state court proceedings. Younger v. Harris, 401 U.S. 37, 40-41, 91 S.Ct. 746, 748-749, 27 L.Ed.2d 669 (1971). Younger, which dealt with a federal stay or injunction of a pending state criminal prosecution, was based on "the notion of 'comity,' that is, a proper respect for state functions." Id. at 43-44, 91 S.Ct. at 750. The same policy has been applied to federal habeas corpus relief from a state criminal trial. E. g., Kolski v. Watkins, 544 F.2d 762, 766 (5th Cir. 1977); United States ex rel. Scranton v. New York, 532 F.2d 292, 295 (2d Cir. 1976); United States ex rel. Tyler v. Hall, 444 F.Supp. 104, 106 (E.D.Mo.1978). However, the rule of comity does not limit the power of the federal courts to dispense with the exhaustion requirement altogether where "special circumstances" exist. E. g., Braden v. Thirtieth Judicial Circuit Court, 410 U.S. 484, 489, 93 S.Ct. 1123, 1126-1127, 35 L.Ed.2d 443 (1973) (speedy trial rights); Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886); United States ex rel. Russo v. Superior Court, 483 F.2d 7, 12 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 313 (1973) (double jeopardy).

The federal district court held that requiring Davis to defend himself in a criminal trial would not justify habeas corpus relief under the "both great and immediate" irreparable injury test of Younger. As the district court noted, while Davis has exhausted his pretrial state remedies he could appeal a state conviction on the ground of the unlawfulness of the arrest. 7 And as Younger teaches, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution could not by themselves be considered "irreparable" in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751.

As stated, it is urged here that serious questions of tribal sovereignty and state-tribal relations are raised to such an extent as to constitute special circumstances justifying dispensing with exhaustion requirements as contemplated by Braden and Russo.

The Turtle Mountain Band of Chippewa Indians has appeared amicus curiae and has undertaken to raise questions as to the extent to which the state must recognize sovereignty and control of the tribal government over the reservation's inhabitants. Thus, it may be said that in a sense we are to be concerned not only with the personal injury to Davis but with broader tribal interests as well.

Tribal sovereignty undoubtedly includes the power to establish a court system. American Indian Policy Review Commission, 95th Cong., 1st Sess., Final Report (Comm.Print 1977), at 99 (hereinafter Final Report), and the trust responsibility of the federal government includes protecting tribal sovereignty. Id. at 104. 8 Indeed, the

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federal courts historically have protected tribal sovereignty from state interference. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832). Moreover, considerations of comity underlying Younger to a degree may be said to apply to tribal governments as well. 9 And if we were presented with a claim filed to protect the extradition process prior to surrender of the individual petitioner to the demanding state considerations of comity and concern for tribal sovereignty might well dictate exercise of federal jurisdiction.

Such a pre-surrender case decided before Younger was Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970). In Merrill after the Navajo Tribal Court declined to extradite a reservation Indian to Oklahoma, Arizona honored an extradition demand by Oklahoma and arrested the Indian on the reservation. The habeas corpus petition was...

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