Wetsit v. Stafne

• Citation: 44 F.3d 823
• Decision Date: 10 January 1995
• Docket Number: No. 94-35255,94-35255
• Parties: GEORGIA LEIGH WETSIT, Petitioner-Appellant, v. Hon. A.T. STAFNE; Emmit Buckles, Chief Prosecutor, Fort Peck Tribes, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 823

44 F.3d 823

GEORGIA LEIGH WETSIT, Petitioner-Appellant, v. Hon. A.T. STAFNE; Emmit Buckles, Chief Prosecutor, Fort Peck Tribes, Respondents-Appellees.

No. 94-35255.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 6, 1994.

Decided Jan. 10, 1995.

Timothy J. Cavan, Cavan, Smith & Cavan, Billings, MT, for petitioner-appellant.

Reid P. Chambers, Sonosky, Chambers, Sachse & Enderson, Washington, DC, for respondents-appellees.

Appeal from the United States District Court for the District of Montana.

Before: NOONAN, O'SCANNLAIN and LEAVY, Circuit Judges.

NOONAN, Circuit Judge:

Georgia Leigh Wetsit appeals the decision of the federal district court denying her petition for habeas corpus brought against the chief judge and chief prosecutor of the Fort Peck Tribes. The case presents a question of tribal jurisdiction over major crimes committed by a member of the tribe, a question that has hitherto not been resolved by a federal court. We affirm the judgment of the district court.

FACTS

Wetsit is a member of the Fort Peck Tribes. Early on Christmas morning 1992 she stabbed to death her common law husband Donald Whitright, also a member of the tribe. The killing occurred in Wolf Point Mountain within the boundaries of the Fort Peck Indian Reservation. On January 22, 1993, she was indicted in federal district court for the crime of voluntary manslaughter under the Major Crimes Act, 18 U.S.C. Sec. 1153. She was acquitted by a federal jury. She was then charged with manslaughter for the same killing by the authorities of her tribe. Her motion before the tribal court to dismiss the charge was denied. On October 21, 1993, in a jury trial lasting no more than a few hours, she was convicted of the crime, sentenced to one year of incarceration, fined $2,500, and ordered to participate in mental health treatment and a domestic abuse program. She did not appeal her conviction. She had been represented by counsel in the federal district court, but was unrepresented by counsel at any stage of the tribal proceedings.

Wetsit then brought this action seeking habeas corpus under the Indian Civil Rights Act, 25 U.S.C. Sec. 1303. She alleged that the federal courts have exclusive jurisdiction of manslaughter as one of the crimes enumerated in the Major Crimes Act, therefore the tribal court lacked jurisdiction. The tribe Upon the district court's issuance of a certificate of probable cause to appeal the dismissal of her petition, Wetsit filed the instant appeal.

moved to dismiss the petition contending that the tribal court possessed jurisdiction and also that Wetsit had failed to exhaust her tribal remedies by not appealing her conviction to the tribal appellate court. The district court held that out of comity the action should be dismissed because of Wetsit's failure to exhaust her remedies.

ANALYSIS

Jurisdiction. The case is all but decided by United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), in which Justice Stewart, writing for a unanimous court, declared: "It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members.... Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions." Id. at 322, 98 S.Ct. at 1085. Quoting a leading treatise on the subject and preserving the emphasis in the original, he stated: "The powers of Indian tribes are, in general, 'inherent powers of a limited sovereignty which has never been extinguished '." Id., quoting F. Cohen, Handbook of Federal Indian Law, 122 (1945). The reason that Wheeler is not entirely dispositive is that our issue was explicitly left open, id. at 325, n. 22, 98 S.Ct. at 1087, n. 22, as the issue before the Court was whether the Double Jeopardy Clause of the Fifth Amendment barred the prosecution of an Indian in a federal district court under the Major Crimes Act after he had previously been convicted in a tribal court of a lesser included offense arising out of the same incident. The Court was not asked to decide whether the Major Crimes Act had deprived the tribal court of jurisdiction to try the offense. But the thrust of the Court in Wheeler was unmistakable. It was formally stated that the tribes had not given up their power to prosecute their members for tribal offenses "by virtue of their dependent status." Id. at 326, 98 S.Ct. at 1088. The court cited with approval Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896), holding that a tribe might criminally punish a tribe member for murder and did so acting "as an independent sovereign." Id. 435 U.S. at 329, 98 S.Ct. at 1089.

The reasoning of Wheeler was applied and affirmed in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), which again left our issue explicitly undecided. Id. at 680, n. 1, 110 S.Ct. at 2057, n. 1. Duro held that an Indian tribe could not exercise criminal jurisdiction over an Indian who was not a member of the tribe. The capital distinction insisted upon by the court was between members in the tribe and all others. The criminal jurisdiction retained by a tribe for members of the tribe was justified "by the voluntary character of tribal membership and the concomitant right of participation in a tribal government, the authority of which rests on consent." Id. at 694, 110 S.Ct. at 2064. The continuing vitality of Talton v. Mayes was affirmed. Id. at 681, n. 2, 110 S.Ct. at 2058, n. 2. Although Wheeler had not decided the precise question before the Duro court,...