Kelsey v. Pope

• Decision Date: 05 January 2016
• Docket Number: No. 14–1537.,14–1537.
• Citation: 809 F.3d 849
• Parties: Norbert J. KELSEY, Petitioner–Appellee, v. Melissa Lopez POPE, et al., Respondents, Daniel T. Bailey, Chief Judge of the Little River Band of Ottawa Indians Tribal Court, Respondent–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

809 F.3d 849

Norbert J. KELSEY, Petitioner–Appellee,

v.Melissa Lopez POPE, et al., Respondents,Daniel T. Bailey, Chief Judge of the Little River Band of Ottawa Indians Tribal Court, Respondent–Appellant.

No. 14–1537.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 8, 2015.

Decided and Filed: Jan. 5, 2016.

Rehearing En Banc Denied Feb. 8, 2016.^*

ARGUED:Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, Michigan, for Appellant. Alistair E. Newbern, Vanderbilt Appellate Litigation Clinic, Nashville, Tennessee, for Appellee. ON BRIEF:Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, Michigan, Dan Himmelfarb, Mayer Brown LLP, Washington, D.C., for Appellant. Alistair E. Newbern, Vanderbilt Appellate Litigation Clinic, Nashville, Tennessee, for Appellee. Eugene R. Fidell, New Haven, Connecticut, John L. Smeltzer, United States Department of Justice, Washington, D.C., Ruthanne M. Deutsch, Georgetown University Law Center Appellate Litigation Program, Washington, D.C., for Amici Curiae.

Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge.^*

OPINION

McKEAGUE, Circuit Judge.

Norbert Kelsey, a member of the Little River Band of Ottawa Indians (the "Band"), was convicted in tribal court of misdemeanor sexual assault for inappropriately touching a tribal employee at the Band's Community Center. The Community Center is located on land owned by the Band but is not located within tribal reservation boundaries. Kelsey appealed his sentence in tribal court, arguing that the Band lacked criminal jurisdiction over his off-reservation conduct. After his sentence was affirmed, he filed a petition for habeas relief in United States District Court, arguing that the Band lacked jurisdiction over his off-reservation conduct and that his appeal in tribal court violated due process protections afforded by the Indian Civil Rights Act. See 25 U.S.C. § 1302(a)(8).

The district court granted habeas relief, holding that the Band lacked criminal jurisdiction to try and punish Kelsey's off-reservation conduct but declined to rule on Kelsey's due process challenge. We reverse and hold that the Band has jurisdiction because it has not been expressly or implicitly divested of its inherent sovereign authority to prosecute members when necessary to protect tribal self-government or control internal relations. We also hold that Kelsey's due process challenge under the Indian Civil Rights Act fails. Accordingly, we vacate the district court's decision to grant habeas relief.

I

The Band's Governmental Structure. The Band is a federally recognized Indian tribe, 25 U.S.C. § 1300k–2(a), located in northwest Michigan's Manistee and Mason Counties. Id. at § 1300k–4(b); see also Grand Traverse Band of Ottawa and Chippewa Indians v. Office of U.S. Att'y for the W. Dist. of Mich., 369 F.3d 960, 961–62 (6th Cir.2004) (providing an extensive historical discussion of the relationship between the federal government and the Band dating back to the Treaty of Greenville in 1795). Pursuant to federal recognition, "all laws and regulations of the United States of general application to Indians or nations, tribes, or bands of Indians, including the ... ‘Indian Reorganization Act’ " are applicable to the Band. 25 U.S.C § 1300k–2(a). Under federal law, Indian tribes "shall retain inherent sovereign power," 25 U.S.C. § 476(h)(1), with "the inherent authority to establish their own form of government, including tribal justice systems." 25 U.S.C. § 3601(4). Section 1300k–6 governs the establishment of the Band's constitution, which includes the creation of its tribal justice system. Id.

The Band has adopted a strict separation-of-powers Constitution, including an independent Tribal Judiciary. R. 1–6, Tribal Constitution, art. VI, § 9, PID 57. Article VI, Section 8 of the Tribal Constitution enumerates the judicial power of the Tribal Court, vesting the Tribal Court with the authority "[t]o adjudicate all civil and criminal matters arising within the jurisdiction of the Tribe or to which the Tribe or an enrolled member of the Tribe is a party." Id. Additionally, the Band's Constitution extends the power of judicial review to the Tribal Court "[t]o review ordinances and resolutions of the Tribal Council ... and rule void those ordinances and resolutions deemed inconsistent" with the Band's Constitution. Id.

On July 5, 2005, Heidi Foster, an employee of the Band's medical clinic and member of a neighboring tribe, attended a meeting of tribal elders at the Band's Community Center. The Community Center, located just across the street from the reservation, is constructed on land purchased by the Band in fee simple in 1997 but is not within "Indian country" as defined by 18 U.S.C. § 1151. At this meeting, Kelsey, then an elected member of the Band's nine-person Tribal Council, made inappropriate physical contact of a sexual nature with Foster.

In June 2007, the Band charged Kelsey with misdemeanor sexual assault and harassment under its internal criminal laws. On January 21, 2008, the Tribal Court convicted Kelsey of sexual assault and subsequently sentenced him to six months in jail. The Tribal Court held his sentence in abeyance while Kelsey complied with the court-imposed probation requirements, including a $5,000 fine, community service, and a prohibition from speaking to female employees of the tribe. Less than two weeks after Kelsey's sentence, the Tribal Court entered a partial stay of the judgment pending appeal to the Tribal Court of Appeals.

On appeal, Kelsey challenged the Tribal Court's jurisdiction, arguing that the Band lacked authority to exercise criminal jurisdiction over his specific conduct because it occurred outside of the Band's Indian country. The Tribal Court of Appeals affirmed tribal criminal jurisdiction over Kelsey's offense based on the Band's inherent sovereign authority to prosecute its members. It also found that a jurisdictional mandate in the Tribal Constitution required extending jurisdiction to Kelsey's off-reservation conduct. In its order, the Tribal Court of Appeals noted the significant impact this case had on the Band's internal affairs and self-governance.¹

The Tribal Court of Appeals also considered Kelsey's argument that the Band's own internal laws precluded jurisdiction, specifically a territorial limitation in Section 4.03 of the Band's Criminal Offenses Ordinance. The Court of Appeals reviewed that ordinance, found it inconsistent with jurisdiction in other internal ordinances and the Tribal Constitution, and removed Section 4.03's territorial limitation for being "unconstitutionally narrow."

The Tribal Court of Appeals then rejected Kelsey's jurisdictional defense based on Section 4.03 and affirmed the Tribal Court's exercise of jurisdiction.

In November 2009, Kelsey filed a petition for a writ of habeas corpus in the Western District of Michigan, making two principal arguments: (1) the Band lacked inherent sovereign authority to assert criminal jurisdiction over his conduct because it occurred outside of the Band's Indian country, and (2) the Tribal Court of Appeals' decision to "change the Band's criminal laws and apply those laws retroactively" was unexpected and indefensible in violation of the due process protections under the Indian Civil Rights Act.

The petition was first considered by a magistrate judge, who concluded that the Band had been implicitly divested of any inherent authority to assert criminal jurisdiction over members for off-reservation conduct. Additionally, the magistrate judge determined that the Tribal Court of Appeals' decision to remove the territorial limiting provision in the Criminal Offenses Ordinance violated Kelsey's due process rights because it "retroactively" expanded tribal criminal jurisdiction over Kelsey's offense.

The district court adopted the magistrate judge's report and recommendation in part, holding that Indian tribes were implicitly divested of criminal jurisdiction over off-reservation member conduct, finding that issue dispositive, and declining to address Kelsey's due process claim. R. 41, Opinion at 5–6, Page ID 584–85. Accordingly, the district court granted habeas relief for lack of tribal jurisdiction. Id. Because Kelsey's probationary period is suspended pending resolution of this action, and because he is prevented from traveling outside of Michigan without Tribal Court permission at this time, he is in custody for purposes of this habeas action. McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir.1989).

II

The question of "whether a tribal court has exceeded the lawful limits of its jurisdiction" is one arising under federal law. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 853, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) ; see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (holding that a tribal court's determination of its jurisdiction may be challenged in district court). Because of this federal law analogue, habeas claims brought under the Indian Civil Rights Act, 25 U.S.C. § 1303, are most similar to habeas actions arising under 28 U.S.C. § 2241. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 890–91 (2nd Cir.1996). We review a district court's grant of habeas relief under § 2241de novo. Rice v. White, 660 F.3d 242, 249 (6th Cir.2011).

III

Governing Framework. We must assess whether the Band properly asserted extraterritorial criminal jurisdiction over Kelsey. The Band has stipulated for the purposes of this action that the Community Center where Kelsey's conduct took place was not within the boundaries of "Indian country."² 18 U.S.C. § 1151 (2012) (defining "Indian country"). Both parties (and the supporting amici ) accept the baseline proposition that, as dependent sovereigns, Indian tribes exercise inherent sovereign authority and retain "those aspects of inherent sovereignty not expressly limited by Congress or treaty or implicitly divested by virtue of their domestic dependent status." Kelsey Br. ...