People v. Hill
| Decision Date | 10 December 2002 |
| Citation | 194 Misc.2d 347,754 N.Y.S.2d 826 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>CLINTON R. HILL, Defendant. |
| Court | New York District Court |
Robert J. Anello and Gerald H. Taylor for defendant.
Donald F. Cerio, Jr., District Attorney (Melissa Countryman Stearns of counsel), for plaintiff.
The defendant, Clinton R. Hill, is charged with harassment in the second degree pursuant to section 240.26 (1) of the Penal Law alleging that on July 7, 2002, the defendant, an Oneida Indian, did intentionally subject Diane Schenandoah, also an Oneida Indian, to physical contact by slamming into her with his stomach several times, moving her backward several feet, backing her up into her mother, Maisie Schenandoah, causing the elder Ms. Schenandoah to fall. The facts alleged occurred within the recognized territory of the Oneida Nation of New York. A criminal summons was issued by this court on July 11, 2002, and the defendant appeared with counsel at court on July 19, 2002, wherein a not guilty plea was entered and defense counsel requested an adjournment of proceedings to August 15, 2002 so that trial counsel and cocounsel could be afforded the opportunity to file pretrial motions and appear in support thereof.
On August 7, 2002, defense counsel filed omnibus motions with this court dated August 3 and 5, 2002 and made returnable at the August 15, 2002 motion date.
On August 13, 2002, a supplemental affidavit and motion were received from defense counsel advising that the defendant had appeared before the Oneida Nation Tribal Court on July 30, 2002 on charges of assault in the third degree, harassment in the second degree, and disorderly conduct in violation of applicable sections of the Oneida Nation Penal Law. Upon arraignment at tribal court, the defendant pleaded not guilty and requested a jury trial. A tribal court jury trial was then scheduled for August 7, 2002. A jury was impaneled and on August 8, 2002, the prosecution rested after the alleged victim and her mother refused to comply with a subpoena issued by the tribal court. The charges of assault and harassment were disposed of by an order of acquittal. The disorderly conduct charge was adjourned in contemplation of dismissal.
Thereafter, the defendant presented the supplemental motion to dismiss on the basis that the defendant would otherwise be placed in double jeopardy pursuant to article I, § 6 of the New York State Constitution and New York Criminal Procedure Law §§ 40.20 and 40.30.
Because defendant's other motions would be rendered academic depending on the determination of the double jeopardy issue, that matter will be addressed first.
At the federal level, it has been decided that a tribal court criminal prosecution does not preclude subsequent federal prosecution and that the concept of "dual sovereignty" is applicable in such a scenario (United States v Wheeler, 435 US 313 [1978]). The notion of tribal sovereignty as defined by the Court in Wheeler, described sovereignty of a unique and limited character, existing only at the sufferance of Congress and being subject to a complete defeasance, should Congress so act. The tribes however possess aspects of sovereignty not withdrawn by treaty or statute as an element of retained tribal sovereignty.
When a tribe criminally punishes a tribal member for violating tribal law, the tribe acts as an independent sovereign and not as an arm of the government (Wheeler, supra at 312), and accordingly, a federal prosecution does not bar prosecution by a separate sovereign and vice versa. (See Bartkus v People of State of Ill., 359 US 121; Abbate v United States, 359 US 187.)
The nature of sovereignty, limited sovereignty and/or dependent status has been the subject of numerous commentaries and analyses. Recent discussions of sovereignty explicitly state that a tribe or tribal court is not an instrumentality or arm of the United States Government (see United States v Archambault, 206 F Supp 2d 1010 [D SD 2002]). That court (at 1013) cites Wheeler and F. Cohen, Handbook of Federal Indian Law (1945) "that [tribal] sovereignty and self-government are only restricted if the federal government * * * expressly extinguishes those rights * * * [and that] inherent powers of a limited sovereignty ha[ve not] been extinguished." (Internal quotation marks omitted.) See Archambault (at 1015) for a discussion of congressional intent discussing at length the clarification of the status of tribes as "domestic independent nations" (HR Rep No. 61, 102nd Cong, 1st Sess, at 7 [1991]). These commentaries are useful in discussing and determining the central question presented hereafter.
There is no fundamental question that New York has jurisdiction to try Indians for crimes committed on Indian reservation lands. This power was granted the State by Congress in 1948 by the enactment of 25 USC § 232. There is also no fundamental question whether a federally recognized New York tribe has the authority to constitute its own court and assert concurrent jurisdiction with the state courts. (See for instance People v Edwards, 78 AD2d 582 [4th Dept 1980].)
In People v Boots (106 Misc 2d 522 [1980]), the court held in fact that the federal enactment of 25 USC § 232 specifically ceded criminal jurisdiction to New York and while some dissent has been registered at federal level (see United States v Cook, 922 F2d 1026, cert denied sub nom. Tarbell v United States, 500 US 941), it is clear that there is no federal preemption and that tribes possess concurrent jurisdiction with New York State over criminal matters arising between tribal members on Indian land. (Boots, supra at 531.)
Boots (supra) also sets forth a well-considered rejection of the defendant's current argument that 18 USC § 1153 (the Federal Major Crimes Act) preempts 25 USC § 232. This court adopts the rationale of the Boots (supra) and Edwards (supra) decisions expressly ruling that New York does have jurisdiction to try Indians for all crimes committed on Indian reservations, and agrees with the analysis and commentaries of the legislative history set forth by the court at Boots (supra at 537-538).
The defense position for dismissal rests squarely on the language set forth at CPL 40.30, which states in pertinent part that a person is:
Clearly, New York's double jeopardy protections are significantly broader than the federal counterpart. (See People v Abbamonte, 43 NY2d 74 [1977]; People v Lennon, 80 AD2d 672 [3d Dept 1981]; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL art 40, §§ 40.10, 40.20 et seq.)
Defendant maintains that there can be no dispute that the Oneida Nation Tribal Court constitutes a court of "any jurisdiction within the United States," and cites at least two decisions from other jurisdictions, People v Morgan (785 P2d 1294 [Colo 1990]) and Booth v State (903 P2d 1079 [Alaska 1995]), in support of that position.
The People maintain that Indian tribal courts do not fall within the language of CPL 40.30 suggesting that same is contrary to the intent of the enabling legislation at 25 USC § 232; contrary to concepts of quasi-sovereignty; that the offenses charged are not identical in that the offenses involved "death, injury, loss of consciousness to a different victim"; that the defendant "procured prosecution" and in doing so fell within an exception of the double jeopardy provisions of the statute (citing People v Snyder, 99 AD2d 83 [4th Dept 1984]; People v Antonelli, 250 AD2d 999 [3d Dept 1998]). Finally, the People assert suggestions of impropriety in the tribal court proceeding and have requested a hearing or inquest in this regard. This final application has resulted in the submission of numerous assertions of fact of dubious evidentiary merit from both sides as to the nature of those proceedings.
As this court has no jurisdiction to review the proceedings of a court of a "separate sovereign," the court must reject the application of the People to sit in review of the actions of the tribal court and the People's request for a hearing in that regard is denied. Further, the "procurement" argument of the People is wholly inapplicable to the instant matter. The procurement cases such as Snyder, Antonelli and People v Dishaw (54 AD2d 1122 [4th Dept 1976]) reflect scenarios wherein a defendant took advantage by pleading to a lesser offense than could have been charged without the knowledge of the appropriate prosecution, for the purpose of avoiding prosecution for a greater offense. Neither does the "sham prosecution" exception to the dual sovereignty rule have any applicability to this case. The "sham prosecution" exception is designed to address and rectify a situation wherein one sovereign did not act of its own volition due to the domination, control, or manipulation of the other to the extent that it did not act on its own and was merely a tool of the other sovereign. (See for instance, United States v Holland, 985 F Supp 587 [D Md 1997]; United States v Stokes, 947 F Supp 546 [D Mass 1996].)
The issue of whether the Oneida Nation Tribal Court is a court "of this state or any jurisdiction within the United States" (CPL 40.30 [1]) is indeed a matter of first impression in this state. Certainly, the legislation establishing peacemaker courts anticipated by Indian Law § 46 is not the source of the Oneida Nation Tribal Court's creation. It is undisputed that the New York Oneida Tribal Court was established in 1997 by virtue of a Nation ordinance, and by virtue of the tribe's vestigal sovereignty as described in Wheeler.
The...
To continue reading
Request your trial
-
Hill v. Eppolito
...commenced this CPLR article 78 action by verified petition seeking to vacate the written decision of Oneida City Court (Eppolito, J.; 194 Misc 2d 347 [2002]), dated December 10, 2002; to enjoin any further prosecution of petitioner under the pending Oneida City Court information in People v......