Greywater v. Joshua
| Decision Date | 10 May 1988 |
| Docket Number | No. 87-5233,87-5233 |
| Parties | Mary Jo GREYWATER, Appellant, v. Honorable Lawrence R. JOSHUA, Jr., Chief Judge of the Devils Lake Sioux Tribal Court; Carl McKay, Chairman of the Devils Lake Sioux Tribe; Ken Sayers, Devils Lake Sioux Tribal Prosecutor; Melvin Greybear, Captain of Police, Devils Lake Fort Totten Agency; and Donald Morgan, Superintendent of the Bureau of Indian Affairs Devils Lake Fort Totten Agency, Appellees. Anthony CHARBONEAU, Jr., Appellant, v. Honorable Lawrence R. JOSHUA, Jr., Chief Judge of the Devils Lake Sioux Tribal Court; Carl McKay, Chairman of the Devils Lake Sioux Tribe; Ken Sayers, Devils Lake Sioux Tribal Prosecutor; Melvin Greybear, Captain of Police, Devils Lake Fort Totten Agency; and Donald Morgan, Superintendent of the Bureau of Indian Affairs Devils Lake Fort Totten Agency, Appellees. Raymond BUCKLES, Appellant, v. Honorable Lawrence R. JOSHUA, Jr., Chief Judge of the Devils Lake Sioux Tribal Court; Carl McKay, Chairman of the Devils Lake Sioux Tribe; Ken Sayers, Devils Lake Sioux Tribal Prosecutor; Melvin Greybear, Captain of Policy, Devils Lake Totten Agency; and Donald Morgan, Superintendent of the Bureau of Indian Affairs Devils Lake Fort Totten Agency, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jesse C. Trentadue, Salt Lake City, Utah, Rodney K. Smith, Widener Univ. Law School, Wilmington, Del., Maureen White Eagle, Devils Lake N.D., appellant.
Reid Chambers and Edward J. Shawaker, Washington, D.C., for appellees.
Before LAY, Chief Judge, and HEANEY and MAGILL, Circuit Judges.
Mary Jo Greywater, Anthony Charboneau, Jr., and Raymond Buckles (Petitioners) appeal from the district court's 1 dismissal of their petitions for writs of habeas corpus filed pursuant to the Indian Civil Rights Act, 25 U.S.C. Sec. 1303. We reverse the decision of the district court.
Petitioners are enrolled members of the Turtle Mountain Band of Chippewa Indians. On June 22, 1985, they were arrested on the Devils Lake Indian Reservation in North Dakota. Petitioners were charged under the Devils Lake Sioux Tribal Code with possession of alcohol in a motor vehicle, public intoxication, and disorderly conduct. Charboneau was also charged with resisting arrest. Petitioners moved the Sioux Tribal Court to dismiss the charges against them, maintaining that the Tribal Court has no criminal jurisdiction over nonmembers of the Devils Lake Sioux Tribe. The Tribal Court denied these motions.
Petitioners then each filed for writs of habeas corpus in the United States District Court. They argued that the Devils Lake Sioux Tribal Court does not have criminal jurisdiction over nonmembers of the Devils Lake Sioux Tribe. The United States and the Devils Lake Sioux Tribe moved to dismiss the petitions for failure to exhaust tribal court remedies. The magistrate recommended that the motions to dismiss be denied. The district court, however, rejected this recommendation and ordered the petitions dismissed without prejudice, pending exhaustion of tribal court proceedings. This appeal followed.
The fundamental issue before us is whether the Devils Lake Sioux Tribal Court possesses inherent sovereignty to exercise criminal jurisdiction over nonmember Indians of its tribe. In United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), the United States Supreme Court stated that Wheeler, 435 U.S. at 326, 98 S.Ct. at 1087-88. One could reasonably assume that this "holding" would settle the issue before us. However, notwithstanding this explicit statement by the Supreme Court, the Ninth Circuit Court of Appeals has recently held that Indian tribes may exercise criminal jurisdiction over nonmember Indians. Duro v. Reina, 821 F.2d 1358 (9th Cir.1987). In addition, the Devils Lake Tribal Court is supported by the United States with a well-written and persuasive brief in urging that the Supreme Court did not mean what it said in Wheeler. Although we acknowledge the complexity of the issue, until the Supreme Court says that we are wrong, we are persuaded that the Court intended to say what it said in Wheeler. We therefore hold that the district court erred in requiring exhaustion of tribal court remedies and that the Petitioners' writs of habeas corpus should have been granted. Moreover, we hold that the Devils Lake Sioux Tribal Court does not have criminal jurisdiction over non-member Indians of the Devils Lake Sioux Tribe. 2
We first turn to the question whether Petitioners should be required to exhaust tribal court remedies before proceeding in federal court. We hold that Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), is direct authority that exhaustion of tribal court remedies is not required.
The district court relied primarily upon National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), in requiring tribal court exhaustion. In National Farmers Union, the Supreme Court required the non-Indian petitioners to exhaust their tribal court remedies before proceeding in federal court. However, National Farmers Union involved a civil proceeding. In fact, in National Farmers Union, the Supreme Court discussed its earlier refusal to require exhaustion of tribal court remedies in criminal cases as opposed to exhaustion in civil cases. See id. at 854-55, 105 S.Ct. at 2453 (citing Oliphant ). Suffice it to say, this involves a criminal case and we feel Oliphant's implicit holding is that exhaustion is not a predicate to the exercise of federal court jurisdiction in a criminal case where the ultimate sentence may exceed one year imprisonment.
There are additional reasons that militate against exhaustion under the circumstances of this case. In National Farmers Union the Supreme Court pointed out that exhaustion in a civil case should not be required where the record demonstrates futility and lack of ultimate due process. National Farmers Union, 471 U.S. at 856, n. 21, 105 S.Ct. at 2454, n. 21. In the present case the Sioux Tribal Court denied Petitioners' motion to dismiss for lack of jurisdiction without a hearing and without a record. This is far removed from the suggestion in National Farmers Union that exhaustion could serve to further illuminate the jurisdictional issue by an evidentiary hearing and briefing. Id. at 856, 105 S.Ct. at 2454. Encouraging the exercise of sovereignty by a tribal court through development and upgrading of its procedures is not served where the tribal court itself fails to do so. See id. at 856-57, 105 S.Ct. at 2454. Here although Petitioners did not attempt to appeal the Tribal Court ruling to the Tribal Appeals Court, there would have been no record to review. Furthermore, there are strong grounds in the record to suggest that Petitioners did not receive a fair hearing in the Tribal Court on their motion to dismiss. The tribal court judge, moreover, allegedly chided Petitioners that as nonmembers of the Sioux Tribe they would not receive a fair trial because only Sioux would be on the jury. The facts surrounding the arrest and charges lend additional corroboration to this concern. The person driving the car at the time of the arrests was a member of the Devils Lake Sioux Tribe as were the arresting officers. The passengers all were nonmember Chippewa Indians; only the nonmembers were arrested.
We hold under Oliphant that exhaustion of tribal remedies is not required to enable Petitioners to challenge the jurisdiction of the tribal court.
We turn next to the fundamental issue of whether the criminal jurisdiction of the Devils Lake Sioux Tribal Court extends to Indians who are not members of the Devils Lake Sioux Tribe where the nonmembers are accused of committing an offense on the Devils Lake Indian Reservation. Although federal law has historically recognized Indian tribes as "unique aggregations" possessed with the inherent powers of sovereign nations to govern both their members and their territory, see Montana v. United States, 450 U.S. 544, 563, 101 S.Ct. 1245, 1257, 67 L.Ed.2d 493 (1981); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832), the right of Indian nations to govern their own affairs is neither unlimited nor protected in all instances. Specifically, Indian tribes are prohibited from exercising those sovereign powers that are expressly terminated by Congress or "inconsistent with their status" as dependent nations. Oliphant, 435 U.S. at 208, 98 S.Ct. at 1021. Because Petitioners do not allege, nor do we find, that Congress has explicitly terminated the Devils Lake Sioux Tribe's authority to prosecute nonmember Indians, the determinative issue in this case is whether that power has been divested by necessary implication of the Sioux Tribe's status as a dependent nation.
In Oliphant, two non-Indians were charged with committing crimes on the Suquamish Indian Reservation. The Supreme Court ruled that the Suquamish tribal court did not have criminal jurisdiction to try and to punish them. Id. at 212, 98 S.Ct. at 1022. The Court rejected the Suquamish tribal court's argument that it possessed the authority to try non-Indians as part of its retained inherent power of government over the reservation. Id. at 195-96, 98 S.Ct. at 1014. The Court concluded that tribal criminal jurisdiction over non-Indians was never included in the concept of inherent tribal sovereignty, and that even if Congress did not intend to take criminal jurisdiction away from Indian tribes, the exercise of that jurisdiction over non-Indians is incompatible and, thus, secondary to the sovereignty of the...
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