Settler v. Yakima Tribal Court

• Decision Date: 22 December 1969
• Docket Number: No. 22815.,22815.
• Parties: Alvin SETTLER, Appellant, v. YAKIMA TRIBAL COURT, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.2d 486 (1969)

Alvin SETTLER, Appellant, v. YAKIMA TRIBAL COURT, Appellee.

No. 22815.

United States Court of Appeals Ninth Circuit.

December 22, 1969.

Francis Conklin (argued), Spokane, Wash., for appellant.

James B. Hovis (argued), of Hovis, Cockrill & Roy, Yakima, Wash., for appellee.

Before BARNES, ELY and HUFSTEDLER, Circuit Judges.

BARNES, Circuit Judge:

Alvin Settler seeks review of a decision of the United States District Court for the Eastern District of Washington dismissing his petition for a writ of habeas corpus. Appellant based his petition on the authority conferred by 28 U.S.C. § 2241 (1964).¹ The jurisdiction of this court on appeal is grounded on 28 U.S.C. § 1294 (1964). Appellee's motion to dismiss this appeal has been quashed.²

This case involves the important question of whether, in a case arising before the effective date of the Indian Civil Rights Bill of 1968, 25 U.S.C.A. § 1301 et seq. (Supp.1969), a federal district court has jurisdiction to hear a petition for a writ of habeas corpus from one convicted by a Yakima Indian Tribal Court.

Appellant, an American Citizen and a member of the Confederated Tribes and Bands of the Yakima Indian Nation, was convicted on September 29, 1967 by the Yakima Tribal Court of twice violating off-reservation Indian Tribal Fishing Regulations (causes #11316 and 11358) and once disobeying the lawful orders of the Indian Tribal Court relating to off-reservation fishing regulations (cause #11336). He was sentenced as follows: (#11316) $80.00 plus $2.50 court costs or a thirty-day suspension from any fishing activities; (#11336) $50.00 and $2.50 costs or 30 days; (#11358) $120.00 and $2.50 costs or 90 days.

Appellant then appealed to a tribal appellate court and posted a bond pending appeal. Before he perfected that appeal and while it was still pending, however, appellant petitioned the federal district court for a writ of habeas corpus, claiming that the tribal court proceedings were in violation of his Fifth and Sixth Amendment rights. In dismissing that petition, the court reasoned that it had no jurisdiction over the subject matter or to hear the petition since a treaty, ratified on March 8, 1859, between the United States and the Yakima Indian Nation conferred on that Indian Nation exclusive jurisdiction of the fishing rights delineated in the treaty.³

The contentions advanced by appellant herein are twofold. First, he claims that the case of Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965), is controlling. In Colliflower this court held a federal district court has jurisdiction to issue a writ of habeas corpus for the purpose of determining the validity of detention of an Indian convicted of criminal trespass by the Tribal Court of the Fort Belknap Indian Community. Second, he claims that although the Treaty of 1859 gives the Yakima Nation the right to take fish at "all usual and accustomed places" off the Indian Reservation, it does not confer upon that Nation exclusive jurisdiction to regulate such fishing so as to divest a federal district court of subject-matter jurisdiction where it is claimed that the scope and procedural means of regulation were violative of the federal Constitution.

Appellee contests this appeal on four primary grounds, none of which have merit.

I.

The first ground is that relied upon by the district court: A federal district court has no jurisdiction to entertain a petition for writ of habeas corpus respecting internal tribal matters. Appellees claim that unless Congress has established restraints on Indian self government (as it did in the Indian Civil Rights Act of 1968, 25 U.S.C.A. § 1301 et seq. (Supp.1969)), the tribe retains sovereign authority over its internal affairs and thereby exercises final authority. They claim that regulation of Indian fishing is such an internal affair. Furthermore, they would distinguish the Colliflower case as follows: (1) Colliflower involved prosecution of an Indian for criminal trespass rather than for an "internal matter" such as regulation of fishing; and (2) Colliflower turned on the fact that the Fort Belknap Indian Tribal Court functioned in part as a federal agency, whereas the Yakima Tribal Court does not function as such. They make the latter distinction on the basis that the Fort Belknap Courts were federally funded (a specific finding of the Colliflower court), while the Yakima Courts are not.

We concede that as a general rule the regulation of Indian fishing is an internal affair of the Yakima Nation under the authority of the Treaty of 1859. The Indian Nation has exclusive authority to regulate the time, place and manner of Indian fishing on the reservation (just as the several states have exclusive authority to exercise the police power) in the absence of the exercise of paramount authority by the United States. The very definition, however, indicates that the Indians' exclusive authority is not boundless. The attempt by a state to prosecute its citizens in a summary and arbitrary fashion may be successfully attacked, as may an attempt to regulate certain activities of its domiciliaries without the state. Likewise (without expressing any opinion on the merits of the constitutional issues in the present case), although the Fourteenth Amendment may not apply to tribal courts, there must be and is a limit to the "exclusive" authority of the Yakima Nation to regulate Indian fishing when that regulation becomes so summary and arbitrary as to shock the conscience of the federal court, or goes beyond the scope of authority originally contemplated by the Treaty of 1859. Colliflower involved review of a criminal prosecution for trespass, and trespass by an Indian upon another Indian's land within the reservation might be said to be an "internal affair" of the Indian Nation. Yet this court held that there was room for review. We see no basis for distinguishing the present criminal prosecution for violation of a fishing regulation from the Colliflower criminal trespass prosecution. Neither species of regulation concerns affairs so "internal" that an Indian prosecuted for violation of such a regulation should be prohibited from testing the jurisdiction of the tribal court, or be denied a fair hearing in tribal courts.

Appellee's contention that Colliflower is distinguishable because the Yakima Tribal Courts are not federally funded, is unconvincing. On the one hand, the Yakima Tribal Courts are not actually financially independent from the federal government. The Yakima Nation court system and laws, according to appellant's counsel, cannot be modified without the consent of the federal government; thus, the officials who have final authority to approve or reject legal changes are paid by the federal government. On the other hand, our reading of the Colliflower case is that federal funding of the Fort Belknap Tribal Courts was merely one factor considered in finding that such courts were at least in part a federal agency. More important in the Colliflower determination was the historical origin of the tribal courts and their scope of authority. (See 342 F.2d at 379.)

Analysis reveals that the Yakima Courts have developed in part as a federal agency similar to the Fort Belknap courts. The tribal courts in either case were organized pursuant to the executive order of the Secretary of the Interior of April 10, 1883 and approved by Congress in an Appropriation Act in 1888, 25 Stat. 217. The parties here assure us that the Yakima Courts still exist under this authority. Compare Colliflower v. Garland, supra, at 372-374 with Reply Brief for Appellant at p. 3, Settler v. Yakima Tribal Court, No. 22,815, and Brief for Appellee at p. 7, id. The courts so organized were contemporaneously described as "* * * mere educational and disciplinary instrumentalities, by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian." United States v. Clapox, 35 F. 575, 577 (D.Ore.1888). Furthermore, the Yakima Law and Order Code has been taken almost verbatim from the regulations of the Bureau of Indian Affairs, 25 C.F.R. § 11.1 et seq., as was the Fort Belknap Law and Order Code. Thus, when we consider the previously mentioned inability of the Yakima Courts to make legal changes without approval by the federal government, we cannot accept appellee's contention that Colliflower is distinguishable in any significant way from the present case.

II.

The second point pressed by appellee is that this case should be dismissed even if the district court has jurisdiction since habeas corpus is not available to a petitioner who is not "in custody" within the meaning of 28 U.S.C. § 2241. We believe, however, that the writ of habeas corpus is available to one who, like appellant, has been fined by an Indian Tribal Court and has posted a bond pending procedural review by an Indian appellate court. (Note that we deal (infra, IV.) with the exhaustion of remedies issue.) Appellee cites no case directly supporting its position. In fact, in the most recent case cited, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court held that a prisoner placed on parole is "in custody" within the meaning of 28 U.S.C. § 2241 so as to give him sufficient standing to...