U.S. v. Archambault, CR 00-30089.

• Decision Date: 18 October 2001
• Docket Number: No. CR 00-30089.,CR 00-30089.
• Parties: UNITED STATES of America, Plaintiff, v. James ARCHAMBAULT, a/k/a James Skunk, Defendant.
• Court: U.S. District Court — District of South Dakota

174 F.Supp.2d 1009

UNITED STATES of America, Plaintiff, v. James ARCHAMBAULT, a/k/a James Skunk, Defendant.

No. CR 00-30089.

United States District Court, D. South Dakota, Central Division.

October 18, 2001.

Report and Recommendation July 13, 2001.

Supplemental Report and Recommendation September 12, 2001.

Thomas J. Wright, Assistant United States Attorney, Pierre, SD, for plaintiff.

Thomas P. Maher, Pierre, SD, for defendant.

ORDER

KORNMANN, District Judge.

[¶ 1] Defendant filed a motion to dismiss (Doc. 26) which motion is based on claims of double jeopardy, claimed violations of constitutional rights of due process and equal protection, and a claimed bill of attainder. The parties initially briefed the issues. U.S. Magistrate Judge Moreno conducted a hearing at which certain facts were stipulated and defendant was permitted to supplement the record (H.Tr.8-10, Doc. 30). The magistrate filed and served a report and recommendation (Doc. 35), recommending that the motion be denied.

[¶ 2] I conducted a de novo review of the transcript of the hearing and all the files and records herein. Defendant timely filed objections and a request for a remand, or more correctly for a recommittal (Doc. 45). One basis for the recommendation to deny the motion was the Eighth Circuit's en banc decision in United States v. Weaselhead, 165 F.3d at 1209. The opinion of the district court, United States v. Weaselhead, 36 F.Supp.2d 908 (D.Neb.1997), was affirmed by an equally divided court. The portion of the report and recommendation of the magistrate relying in part on the en banc decision was rejected by me as an erroneous statement of the law. The en banc decision is not binding precedent. Decisions by an equally divided court decide only the particular case. They have no precedential effect. They have a res judicata effect but not a stare decisis effect. See Loeffler v. Tisch, 806 F.2d 817 (8th Cir.1986), United States v. Grey Bear, 863 F.2d 572 (8th Cir.1988), Redding v. Minnesota, 881 F.2d 575 (8th Cir.1989), and United States v. Payne, 940 F.2d 286 (8th Cir.1991).

[¶ 3] As to the balance of the report and recommendation, I acted pursuant to 28 U.S.C. § 636(b)(1)(C) to recommit the matter to the magistrate for two reasons. First, neither the parties nor the magistrate initially gave consideration to a case decided by the United States Supreme Court on June 25, 2001, Nevada v. Hicks, ___ U.S. ___, 121 S.Ct. 2304, 150 L.Ed.2d 398. Nor was any consideration given to Hicks by any judge in United States v. Enas, 255 F.3d 662 (9th Cir.2001). While Hicks is a civil case and thus not "on point", the various Justices discuss in Hicks the various aspects of tribal court jurisdiction. It can be argued that the opinion of the Supreme Court is that any tribe's adjudicative jurisdiction over non-members is at most only as broad as the jurisdiction granted legislatively by Congress. Second, I initially believed that the additional evidence sought by the defendant might be relevant. At a minimum, I believed that the defendant was entitled to have all such evidence a part of the record, either as admitted into evidence or as an offer of proof. I therefore, on July 26, 2001, recommitted the matter (Doc. 46) with instructions to the magistrate.

[¶ 4] The magistrate proceeded in accordance with the order of recommittal. Defendant filed and served an offer of proof (Doc. 85). The magistrate served and filed a supplemental report and recommendation (Doc. 93). Defendant served and filed objections (Doc. 97) to the supplemental report and recommendation. I have again given de novo consideration to all documents and records in this case.

[¶ 5] The issue squarely before the court has not been directly decided by the United States Supreme Court or by the United States Court of Appeals for the Eighth Circuit. Despite the Hicks case and the other Supreme Court cases indicating skepticism as to any claimed "inherent sovereignty" of Indian tribes acting through their tribal courts, it is not the function of a district court to predict what the Supreme Court will do in a given case. It is a virtual certainty that this ruling on the motion to dismiss, however decided, will be appealed and the Eighth Circuit will again be presented with the "opportunity" to rule on the same issue presented in United States v. Weaselhead, 156 F.3d 818 (8th Cir.1998). Although the panel decision was vacated on December 4, 1998, it is difficult to add to the scholarly discussions in both the panel opinion by Chief Judge Wollman and the dissent by Judge Morris Sheppard Arnold. It is also difficult to add to the scholarly opinion of United States District Judge Thomas Shanahan in United States v. Weaselhead, 36 F.Supp.2d 908 (D.Neb.1997). We do not know, based upon a different make-up of the Court of Appeals, whether the views of Chief Judge Wollman or Judge Morris Sheppard Arnold will carry the day. Indeed, their views of the law may have changed.

[¶ 6] Defendant Archambault, like Mr. Weaselhead, is an Indian prosecuted by a tribe (in this case the Cheyenne River Sioux Tribe) as to which he is not an enrolled member. Archambault, like Weaselhead, pled guilty to having violated the tribal code and was later prosecuted for the exact same conduct by the United States government. Archambault admitted in tribal court to having assaulted and injured his domestic companion, a member of the Cheyenne River Sioux Tribe, and that the assault occurred on the reservation. Archambault, like Weaselhead, claims double jeopardy, the claim being that the tribe had no inherent authority to prosecute him and that the only basis for such authority comes from a federal statute. Thus, as the argument goes, the two prosecutions stem from the same authority, the United States government, the bottom line being that only one sovereign is involved as to Archambault. Obviously, if the tribal prosecution was based on inherent tribal sovereignty, two sovereigns are involved as to Archambault and there is no double jeopardy.

[¶ 7] Tribes have historically prosecuted nonmember Indians for misdemeanor offenses committed within the territory of such tribe. Congress recognized this fact as part of the legislative history in the enactment of Pub.L. No.102-137. See 137 Cong.Rec. E2165-04 in which then Congressman George Miller stated the acknowledgment of the Congressional committee that tribes "have always been able to exercise misdemeanor criminal jurisdiction over all Indians on tribal lands." Such prosecutions came to a halt in the Eighth Circuit with the decision in Greywater v. Joshua, 846 F.2d 486 (8th Cir. 1988), holding that a tribe has no inherent sovereignty to prosecute nonmember Indians. "We find the Devils Lake Sioux Tribe's exercise of criminal jurisdiction over nonmember Indians beyond what is necessary to protect the rights essential to the Tribe's self-government and inconsistent with the overriding interest of the federal government in ensuring that its citizens are protected from unwarranted intrusions upon their personal liberty. We thus conclude that the Tribe's authority to prosecute nonmember Indians is nonexistent." Id. at 493. Greywater cited and relied upon United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). Greywater, while acknowledging Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), engaged in no discussion of the Montana factors. Greywater, in refusing to adopt the rationale of Duro v. Reina, 821 F.2d 1358 (9th Cir.1987), correctly forecast the reversal of the Ninth Circuit in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Tribes across the United States then ceased prosecuting Indian non-tribal members. There was at that time, as we know, no Congressional action with regard to any claimed inherent sovereignty of tribes to prosecute nonmember Indians.

[¶ 8] Congress acted promptly by virtue of Pub.L. No. 102-137 to amend the Indian Civil Rights Act, codified at 25 U.S.C. § 1301-03 (1994), by expressing the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians in Indian Country. See 25 U.S.C. § 1301(2). Congress specifically found that this was a power of self-government which Congress recognized and affirmed as having always existed and which had never been "taken away" by Congress.

[¶ 9] There are perhaps three possibilities as to what Congress did as a matter of law. First, Congress simply acted to expressly grant and legislatively delegate to tribes the authority to prosecute nonmember Indians, curing what Duro found did not exist. Second, the Congressional finding of inherent sovereignty by tribes over nonmember Indians is a nullity, the reason being that Duro was decided based upon the United States Constitution. Third, Congress did not delegate anything or act in a substantive manner but simply defined what the federal common law has always been. The ultimate question becomes: who is permitted to define what sovereign powers tribes may have lost or may have retained upon being incorporated into the United States? Is it Congress or is it the judiciary?

[¶ 10] Intertwined, of course, are possible constitutional questions as to whether nonmember Indians may be treated differently than nonmember non-Indians. It is beyond dispute that non-Indians may not be prosecuted criminally in any tribal court. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The matter is further complicated by the fact that the Bill of Rights does not apply to Indians in tribal courts. See Duro, 495 U.S. at 693, 110 S.Ct. 2053, and Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896) (although dealing with the question...