Means v. Northern Cheyenne Tribal Court

• Decision Date: 27 August 1998
• Docket Number: 97-36013,Nos. 97-35952,s. 97-35952
• Citation: 154 F.3d 941
• Parties: 98 Cal. Daily Op. Serv. 6645, 98 Daily Journal D.A.R. 9255 David MEANS, Plaintiff-Appellant-Cross-Appellee, v. NORTHERN CHEYENNE TRIBAL COURT, Glenn Littlebird, Presiding Judge for the Northern Cheyenne Tribal Court, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 941

154 F.3d 941

98 Cal. Daily Op. Serv. 6645, 98 Daily Journal

D.A.R. 9255

David MEANS, Plaintiff-Appellant-Cross-Appellee, v. NORTHERN CHEYENNE TRIBAL COURT, Glenn Littlebird, Presiding Judge for the Northern Cheyenne Tribal Court Defendants-Appellees-Cross-Appellants.

Nos. 97-35952, 97-36013.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1998.

Decided Aug. 27, 1998.

Clarence Belue, Billings, Montana, for plaintiff-appellant-cross-appellee.

Steven A. Kelly, Lame Deer, Montana, for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CV-97-075-JDS.

Before: HUG, Chief Judge, REINHARDT, Circuit Judge, and REED, District Judge. ^*

Opinion by Judge REED; Concurrence by Judge REINHARDT.

REED, District Judge:

Appellant David Means, a member of the Sisseton-Wapatan (Sioux) Tribe of Indians, is currently free on bail pending criminal prosecution in the Tribal Court of the Northern Cheyenne Indian Tribe. After being arrested and freed on bail, but prior to trial, Means sought habeas relief from the district court on jurisdictional grounds. He argued that the Tribal Court does not have criminal jurisdiction over him, as a nonmember Indian, for the crimes with which he is charged. The district court reviewed his petition, but denied relief. The court's holding was based on a federal statute enacted after all of the acts with which Means is charged were allegedly committed, and which purportedly "recognizes and affirm[s]" the criminal jurisdiction of all tribal courts over all Indians, whether or not members of the same tribe.

Further criminal proceedings in the Tribal Court have been stayed by this court pending disposition of these appeals. Means appeals the district court's denial of his petition, while the Tribal Court and its Presiding Judge, Glenn Littlebird (collectively, "the Tribal Court" or Appellees), cross-appeal the issue of whether the district court properly entertained Means' pre-trial habeas petition, or whether "principles of federalism and comity" require that defendants actually be convicted in tribal court before the federal courts intervene.

I. FACTS AND PROCEDURAL HISTORY

On January 10, 1997, a complaint was filed in the Northern Cheyenne Tribal Court charging David Means with fifteen counts of aggravated sexual assault, under Section 7-4-7E of the Northern Cheyenne Tribal Code. Each count carries a maximum possible penalty of one year in jail and a $5000.00 fine. ¹ All counts are alleged to have occurred between 1978 and 1988, and the alleged victims are two of Means' nieces. The comparatively recent filing of the criminal complaint in this case appears to stem from the fact that the victims have only recently "recovered" memories of the abuse, which is alleged to have happened when they were children.

At all times relevant to this case (that is, from prior to 1978 through the present), Means has lived within the Northern Cheyenne Indian Reservation in Montana. However, he is not a member of the Northern Cheyenne Tribe. He is an "Indian," though, since he is a member of the Sisseton-Wapatan (Sioux) Tribe. ² Thus Means is a "non-member Indian" from the Northern Cheyenne Tribal Court's point of view. As will be discussed in detail below, jurisdiction over crimes committed in "Indian country" ³ is divided among tribal, state, and federal courts, depending on the status of the perpetrator and the victim as either non-Indians or Indians-and potentially, at least, as either non-member Indians or tribal members. Thus Means' status as a non-member Indian is crucial, but again, does not appear disputed.

Means was arrested on the same day that the complaint against him was filed. Bail was set initially at $50,000 cash; reduced to $30,000 cash by the court upon Means' motion; further reduced to $5000 on appeal; increased back to $30,000 on "full appeal"; and eventually reduced again to $10,000 by stipulation of the parties. Means has been free on bail since January 31, 1997, but he is apparently prohibited from leaving the reservation or the State of Montana, and from contacting children.

Means moved to dismiss the action for lack of jurisdiction on April 9, 1997. The tribal court denied his motion, and Means appealed. The Northern Cheyenne Court of Appeals apparently affirmed the tribal court's decision "by order ... dated June 20, 1997." On July 2, 1997, Means filed a complaint in federal district court, which he amended on July 10 to include a claim for habeas corpus relief under 25 U.S.C. § 1303. The district court treated the complaint as a petition for a writ of habeas corpus, which it denied on October 2, 1997. Shortly thereafter, on October 9, 1997, Means timely filed the instant appeal. The Tribal Court and its presiding judge, Glen Littlebird, then filed a notice of cross-appeal on October 23, 1997.

II. DISCUSSION

Means' primary contention is that the Tribal Court does not have jurisdiction to try him for the crimes of which he stands accused. The Tribal Court, on the other hand, claims that its jurisdiction over these crimes is proper, based on the 1990 Amendments to the Indian Civil Rights Act. Since the crimes at issue are alleged to have occurred before 1990, however, the 1990 ICRA amendments will only serve as a basis for jurisdiction if they apply retroactively to conduct completed prior to the amendments' passage. If the amendments do not apply retroactively, the Tribal Court will not have jurisdiction to try Means for these crimes, and Means' petition must therefore be granted-since, as we discuss below, there is no basis for the Tribal Court's assertion of jurisdiction over Means other than the 1990 amendments to the ICRA.

A. Retroactivity of the 1990 Amendments to the Indian Civil Rights Act

1. Standard of Review

A district court's decision on whether a statute may be applied retroactively is a question of law reviewed de novo. Chenault v. United States Postal Serv., 37 F.3d 535, 537 (9th Cir.1994). Likewise, a district court's denial of a petition for a writ of habeas corpus is reviewed de novo. Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 951 (9th Cir.1998).

2. Analysis

In determining whether a statute should be applied retroactively, the starting point must of necessity be the statute itself. Here, the statute at issue is the Indian Civil Rights Act, or ICRA, codified at 25 U.S.C. §§ 1301-1341. More specifically at issue are the 1990 amendments to 25 U.S.C. § 1301. The current text of this section is set forth below, with language added in 1990 underlined:

§ 1301. Definitions

For purposes of this subchapter, the term--

(1)"Indian tribe" means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;

(2)"powers of self-government" means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians;

(3)"Indian court" means any Indian tribal court or court of Indian offense; and

(4)"Indian" means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to commit an offense listed in that section in Indian country to which that section applies.

25 U.S.C. § 1301, as amended by Pub.L. No. 101-511, § 8077 (1990) (emphasis added).

While the new language appears merely to acknowledge the existing state of the law, the 1990 amendments ⁴ were added by Congress in direct response to the Supreme Court case of Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). See, e.g., Impact of Supreme Court Ruling in Duro v. Reina: Hearing on S. 962, S. 963 Before the Senate Select Comm. on Indian Affairs, Senate Hearing 158, pts. 1 & 2, 102 Cong., 1st Sess. (1991). Duro had held that an Indian tribe does not have criminal jurisdiction over Indians who are not members of that tribe. Duro, 495 U.S. at 679, 110 S.Ct. 2053. Thus the amendments to the ICRA did constitute a change in the existing law.

(i) The law prior to the 1990 amendments

Immediately prior to the passage of the 1990 amendments, Duro was clearly the governing law. Prior to Duro, however, it was not clear whether Indian tribal courts could exercise criminal jurisdiction over all Indians, or just over the members of their own tribes. On the other hand, it has been clear since the late 1970s both that Indian tribes cannot exercise criminal jurisdiction at all over "non-Indians," Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), and that tribes can exercise criminal jurisdiction over their own members. United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). In Duro, the Supreme Court explicitly resolved the remaining issue of "non-member Indians," which it described as "at the intersection of these two precedents." Duro, 495 U.S. at 684, 110 S.Ct. 2053.

Duro involved a member of the Torres-Martinez Band of Mission Indians, who had been living on the Salt River Indian Reservation with his girlfriend, a member of the Salt River Pima-Maricopa Indian Community. While within Salt River's boundaries, Duro allegedly shot and killed a member of the Gila River Indian Tribe. Since both the defendant and the victim were Indians, and since the crime had occurred within Indian country, federal murder charges were brought under the authority of the Major Crimes Act, 18 U.S.C. § 1153. However, when the federal charges were dropped, charges were brought in the Pima-Maricopa Indian Community Court for the "illegal firing of a...