Ross v. Neff

• Decision Date: 04 June 1990
• Docket Number: No. 88-1404,88-1404
• Citation: 905 F.2d 1349
• Parties: Ronnie ROSS, Plaintiff-Appellant, v. Russell NEFF, in his Official Capacity as Sheriff of Adair County, Oklahoma; Billy Jack McLemore, individually and in his Official Capacity; and County of Adair, Oklahoma, a political subdivision of the State of Oklahoma, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1349

905 F.2d 1349

Ronnie ROSS, Plaintiff-Appellant, v. Russell NEFF, in his Official Capacity as Sheriff of Adair County, Oklahoma; Billy Jack McLemore, individually and in his Official Capacity; and County of Adair, Oklahoma, a political subdivision of the State of Oklahoma, Defendants-Appellees.

No. 88-1404.

United States Court of Appeals Tenth Circuit.

June 4, 1990.

Rehearing Denied July 19, 1990.

Joseph C. Self of Sexton Law Firm, Fort Smith, Ark., for plaintiff-appellant.

Mark Green of Green and Green, Muskogee, Okl., for defendant-appellee.

Before LOGAN, MOORE, and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Ronnie Ross brought two separate Fourth Amendment based claims against the defendants Deputy Billy Jack McLemore, Sheriff Russell Neff and Adair County, Oklahoma, pursuant to 42 U.S.C. Sec. 1983. ¹ In one, Ross alleges that defendants violated Ross' rights when McLemore illegally arrested him on Indian Tribal Trust land, because Oklahoma peace officers have no jurisdiction in Indian country. Second, Ross asserts an independent constitutional claim based on McLemore's alleged use of excessive force in making the arrest. He argues that the county was party to both violations: the first because it was its custom or policy to allow officers to make arrests in Indian country; and the second because of its failure to train and supervise McLemore and its custom and policy allowing its deputies access to and use of firearms.

The trial court directed a verdict in favor of the county. After an initial trial ending in a mistrial, Deputy McLemore eventually prevailed on a jury verdict. ² The central issue on appeal is whether the district court erred as a matter of law in holding that McLemore was acting within his jurisdiction when he arrested Ross. This holding, of course, entirely removed Ross' Sec. 1983 claim based on the allegedly extra-jurisdictional arrest from the jury's consideration. We conclude that the court did err. We hold, however, that McLemore was entitled to qualified immunity on this claim, and that the court's error did not taint the jury verdict on the excessive force claim. Furthermore, the directed verdict in favor of the county on the excessive force claim was proper. Accordingly, we remand only the extrajurisdictional arrest claim against the county for trial. ³

I Background Facts

Plaintiff Ross, a Cherokee Indian, spent most of the day of July 4, 1986, with friends and relatives at the W.W. Keller Ballpark (a/k/a Greasy Ballpark) in Adair County, Oklahoma. The Greasy Ballpark is located on Cherokee Indian Tribal Trust land. The land was then under a five-year lease, approved by the local office of the Bureau of Indian Affairs, to the South Greasy Community Park Association. The record does not reflect whether the Association is a tribal organization, although its president, Mose Killer, is a Cherokee Tribe member.

Sometime in the early evening of July 4, 1986, Killer called the Adair County Sheriff's Department to request that the police "make an appearance" at the park. III R. 56. He testified that he was concerned that some people were driving too quickly down the driveway to exit the ballpark grounds; he was also concerned about traffic on the driveway being blocked by persons loitering and drinking beer at the ballpark after the end of the day's activities.

Deputy McLemore reported to the ballpark, where he attempted to arrest Ross for public intoxication. The evidence is disputed whether Ross resisted arrest. We need not resolve the factual conflict, however, to decide the legal question at issue. ⁴ In any event, an altercation occurred during which McLemore shot Ross in the leg, which later required amputation.

II Jurisdiction to Arrest

The deputy's jurisdiction to arrest is an issue of law which we review de novo. See, e.g., In re Tri-State Equipment, Inc., 792 F.2d 967, 970 (10th Cir.1986).

Land held in trust for Indian use, like the Greasy Ballpark, is "Indian country" as that term is defined in 18 U.S.C. Sec. 1151. United States v. John, 437 U.S. 634, 648-49, 98 S.Ct. 2541, 2548-49, 57 L.Ed.2d 489 (1978); Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665, 668 (10th Cir.1980). Indian country is subject to exclusive federal or tribal criminal jurisdiction "[e]xcept as otherwise expressly provided by law." 18 U.S.C. Sec. 1152. Congress has granted general criminal jurisdiction to some states over Indian country within their borders, see, e.g., 18 U.S.C. Secs. 1162 (various states), 3243 (Kansas), but no such provision has been made for Oklahoma. Congress has also provided, now in 25 U.S.C. Sec. 1321, "a statutory method by which a state, with the consent of the tribe, can assume jurisdiction over Indian country." United States v. Burnett, 777 F.2d 593, 597 (10th Cir.1985). Oklahoma, however, has not acted to assume jurisdiction by this method. See Citizens Band Potawatomi Indian Tribe v. Oklahoma Tax Commission, 888 F.2d 1303, 1307 (10th Cir.1989); Burnett, 777 F.2d at 597; State v. Klindt, 782 P.2d 401, 403 (Okla.Crim.App.1989). If there has been no express delegation of jurisdiction to the state, a fortiori, there has been no grant of local jurisdiction. Because the state of Oklahoma has neither received by express grant nor acted pursuant to congressional authorization to assume criminal jurisdiction over this Indian country, Adair County, its sheriff, and its subordinate police officers had no jurisdiction to arrest Ross at the Greasy Ballpark. See United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.1990) (county district court exceeded its authority in issuing search warrant for property within Indian country).

Defendants argue that, despite the plain language of 18 U.S.C. Sec. 1152, a state may assert criminal jurisdiction over Indians in Indian country whenever such action would not undermine tribal or federal interests. On numerous occasions the Supreme Court has stated that "even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973) (citing cases). Such statements, however, have uniformly been made in civil cases, in connection with a determination that paramount federal law does not expressly exclude state jurisdiction. See, e.g., Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959) ("Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.") (emphasis added). Congress has provided, however, for exclusive federal jurisdiction over crimes committed by Indians in Indian country, through the broad reach of 18 U.S.C. Secs. 13 (allowing federal enforcement, on federal enclaves, of state and local laws, such as the public intoxication ordinance involved here), 1152, and 1153. There is no question but that 18 U.S.C. Sec. 13 would allow federal enforcement of the local ordinance against public intoxication involved in this case. See In re Denetclaw, 83 Ariz. 299, 320 P.2d 697, 700-01 (1958). The "borrowing" provision of this act, however, does not grant states independent authority to enforce their own laws over Indians on Indian land. See Cohen's Handbook of Federal Indian Law 379-80 (R. Strickland ed. 1982) (hereinafter Cohen ); United States v. New Mexico, 590 F.2d 323, 329 (10th Cir.1978), cert. denied, 444 U.S. 832, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). The Supreme Court has expressly stated that state criminal jurisdiction in Indian country is limited to crimes committed "by non-Indians against non-Indians ... and victimless crimes by non-Indians." Solem v. Bartlett, 465 U.S. 463, 465 n. 2, 104 S.Ct. 1161, 1163 n. 2, 79 L.Ed.2d 443 (1984).

Defendants also urge this court to recognize state criminal jurisdiction over the Greasy Ballpark, lest the park become "a land in which there is no law." Brief of Appellees at 4 (quoting statement of trial judge, IV R. at 247). We cannot tell from the record whether either the federal government or the Cherokee tribe have officers who police this Indian country. But even if both the federal government and the Cherokee tribe have abdicated responsibility for law enforcement at the Greasy Ballpark, this void does not empower Oklahoma or Adair County to assume general criminal jurisdiction simply because it is the nearest police authority. Avenues to extended jurisdiction must come from the legislature, not from the courts and not from the fiat of county governments.

In In re Denetclaw, a somewhat similar case, the Arizona Supreme Court addressed the issue of whether the state could enforce traffic ordinances against Indians on highways within the boundaries of the reservation. The Denetclaw court held that, pursuant to 18 U.S.C. Sec. 13, "federal jurisdiction over offenses, either felonies or misdemeanors, committed by an Indian in Indian country is exclusive and not concurrent with state jurisdiction." 320 P.2d at 700. The court, therefore, discharged the Indian defendant because the state lacked jurisdiction to make the traffic stop. The court recognized the "jurisdictional gap" that was being left but stated,

"[w]e are bound to follow the law as we find it irrespective of the apparent 'void' this will leave in safeguarding the rights of the traveling public. At present the State Highway Patrol and Sheriff's deputies are, insofar as we know, the only agencies patrolling county and state highways that cross Indian lands ... It is further well known that the federal officers neither police nor attempt to prosecute traffic violations by Indians on our highways under the Assimilative Crimes Act, although unquestionably the federal courts would have jurisdiction over such offenses.... We might ask what procedure is left to...