Yellowbear v. Wyoming Attorney General

Decision Date23 July 2009
Docket NumberCase No. 06-CV-082-B.
Citation636 F.Supp.2d 1254
PartiesAndrew John YELLOWBEAR, Jr., Petitioner, v. WYOMING ATTORNEY GENERAL and Fremont County Sheriff, Jack "Skip" Hornecker, Respondents.
CourtU.S. District Court — District of Wyoming

Barry A. Bachrach, Bachfuch Law Office, Leicester, MA, Timothy C. Kingston, Graves Miller & Kingston, Cheyenne, WY, W. Keith Goody, Cougar, WA, for Petitioner.

David L. Delicath, Meri V. Ramsey, Wyoming Attorney General's Office, Cheyenne, WY, for Respondents.

Rick L. Sollars, Western Law Associates, Lander, WY, for Amicus.

Andrew W. Baldwin, Berthenia S. Crocker, Baldwin & Crocker, Sara R. Robinson, Lander, WY, Conly J. Schulte, Monteau & Peebles, Omaha, NE, Donald R. Wharton, Walter R. Echohawk, Native American Rights Fund, Boulder, CO, Kimberly

D. Varilek, Eastern Shoshone Tribe, Office of Attorney General, Fort Washakie, WY, for Intervenors.


CLARENCE A. BRIMMER, District Judge.

This matter comes before the Court on Petitioner's Motion for Summary Judgment (Doc. No. 117) and Respondents' Cross-Motion for Summary Judgment (Doc. No. 122). A hearing on the motions was held on May 14, 2009, at 10:30 a.m. W. Keith Goody appeared on behalf of Petitioner, who appeared by telephone. David Delicath appeared on behalf of Respondents. Having carefully considered the submitted briefs, the materials on file, and the arguments presented at hearing, and being fully advised in the premises, the Court hereby FINDS and ORDERS the following:


Petitioner Andrew Yellowbear, Jr., is an enrolled member of the Northern Arapaho Tribe, which resides on the Wind River Indian Reservation ("Reservation") along with the Eastern Shoshone Tribe. On April 1, 2006, Petitioner was convicted in Wyoming district court of two counts of felony murder and two counts of being an accessory to felony murder, all based on the physical abuse and death of his twenty-two-month-old daughter. The crime took place at 900 Forest Drive, Riverton, Wyoming. Petitioner was subsequently sentenced to life without parole on June 1, 2006. Throughout the pendency of the state court case and since his conviction, Petitioner has consistently, but unsuccessfully, argued that the State of Wyoming ("State") lacked jurisdiction over the matter on the ground that his crime occurred in "Indian country." It is Petitioner's contention that the Act of March 3, 1905, ch. 1452, 33 Stat. 1016 ("1905 Act"), which opened land (the "1905 Act area") in the Reservation to settlement by non-Indians, did not effect a diminishment of the Reservation and did not affect its Indian country status. Since the location of the home at 900 Forest Drive lies within this 1905 Act Area, Petitioner argues that his crime took place in Indian country and the State accordingly lacks jurisdiction. Instead, according to Petitioner, jurisdiction over his crime rests exclusively with the federal government.

Prior to trial, Petitioner unsuccessfully explored several avenues to have the case dismissed on the grounds that the State lacked jurisdiction over his alleged crime. He first raised the claim in a 28 U.S.C. § 2254 petition for a writ of habeas corpus to this Court on September 2, 2004. Yellowbear v. Wyo. Att'y Gen., No. 04-CV-243-B (D.Wyo. filed Sept. 2, 2004). This Court dismissed the petition on the grounds that Petitioner was a pre-conviction prisoner, he had not exhausted his claims, and relief pursuant to 28 U.S.C. § 2241 was unavailable on the grounds of non-exhaustion and Younger abstention. The Tenth Circuit Court of Appeals declined to grant a certificate of appealability. In November 2004, Petitioner unsuccessfully challenged the State's jurisdiction in Wyoming circuit court before the case was bound over to the district court for trial. Petitioner challenged jurisdiction again in November 2005, when he filed a Motion to Dismiss, which was denied by the district court after briefing and oral argument. Petitioner then sought a writ of review and a stay of proceedings from the Wyoming Supreme Court, both of which the court denied.

Petitioner also looked to the Shoshone and Arapaho Tribal Court for relief in the weeks before and during trial. On March 16, 2006, that court granted Petitioner's Motion for Declaratory Judgment and declared that the State was without criminal jurisdiction over Indians in the City of Riverton. No others beside Petitioner and counsel for the Northern Arapaho Tribe appeared at the hearing on jurisdiction, although the Fremont County Attorney, the Deputy County Attorney for Hot Springs County, the state judge in the underlying case, and the Shoshone Business Council were given notice. On March 29, 2006, the tribal court declared as void and rescinded the July 2004 Order of Extradition of Petitioner from the Reservation to the State. Petitioner, appearing pro se, was the only party in attendance although the Fremont County Sheriff's Office was given notice of the hearing. Thus, at neither of these hearings was any opposition made to Petitioner's motions. Despite these efforts, the state trial proceeded.

On March 27, 2006, during trial, Petitioner again sought relief from this Court by filing the present case pursuant to 28 U.S.C. § 2241. Petitioner was subsequently convicted and sentenced. This Court again denied the petition on exhaustion and abstention grounds and Petitioner appealed to the Tenth Circuit. While the appeal was pending, the Wyoming Supreme Court unanimously affirmed the conviction. Yellowbear v. Wyoming, 174 P.3d 1270 (Wyo.2008). As a result, the Tenth Circuit Court of Appeals determined that Petitioner had exhausted his claims and that abstention concerns no longer existed. The Court of Appeals reversed and remanded the case, permitting Petitioner to recharacterize his § 2241 action as a § 2254 petition, which he has now done. Accordingly, what is now before this Court is a petition for writ of habeas corpus brought under 28 U.S.C. § 2254.

Petitioner's first and remaining claim (Claims 2 and 3 were voluntarily dismissed) is that the State lacks jurisdiction over the crime for which he was convicted, and that as a result, the state court decision regarding jurisdiction was contrary to or an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). Petitioner contends that the Wyoming Supreme Court "erroneously" determined the question of whether his crime occurred in Indian country and whether the State lacked jurisdiction. (Doc. No. 78, Pet. for Relief ¶ 15.)

Following a motion by Respondents, this Court ruled that rather than the de novo review requested by Petitioner, the more limited review available under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), was the proper standard of review in this matter because the underlying state case was adjudicated on the merits. (Doc. No. 124, Order Feb. 3, 2009 at 7.) The Court also held that the issues raised in this matter present predominantly legal questions and do not require an evidentiary hearing as contemplated under the statute. (Id. at 9.) Following the Court's order and while he was in the process of being appointed new counsel, Petitioner, acting pro se, filed his Motion for Summary Judgment. Respondents filed a Cross-Motion for Summary Judgment coupled with their response. At an April 2, 2009 scheduling conference, the parties agreed that no facts are in dispute and that this case was ready for decision through resolution of the pending motions. (Doc. No. 134, Order on Sched. Conf.)


Summary judgment is available "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The parties in this matter agree that there are no material issues of fact.1 What is left for the Court to decide is which party is entitled to judgment as a matter of law. In other words, the Court must decide whether the underlying petition for relief under § 2254 is to be granted or denied.


Although Petitioner's underlying legal challenge presents significant and difficult questions of law and sovereignty, his challenge comes in the form of collateral review, the scope of which is dictated and limited by the AEDPA-amended 28 U.S.C. § 2254(d)(1). See Burgess v. Watters, 467 F.3d 676, 681 (7th Cir.2006) (reviewing under the AEPDA standard of review an Indian's claims that the state court lacked jurisdiction under Public Law 280 to conduct involuntary civil commitment proceedings). Cf. Murphy v. Sirmons, 497 F.Supp.2d 1257 (E.D.Okla.2007) (reviewed under AEDPA standard of review the claim that crime occurred in Indian country and state court lacked jurisdiction). This Court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The present Petition challenges Petitioner's custody as being in violation of a treaty and subsequent law of the United States. Relevantly, such an application for a writ of habeas corpus:

shall not be granted with respect to any claim that was adjudicated on the merits in State court: proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an...

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2 cases
  • Tribe v. Harnsberger
    • United States
    • U.S. District Court — District of Wyoming
    • October 6, 2009 an Indian claiming that his alleged crime occurred in Indian country and not within the State's jurisdiction. See Yellowbear v. Hornecker, 636 F.Supp.2d 1254 (D.Wyo.2009). Petitioner there made the same argument as the NAT here that the 1905 Act did not diminish the Reservation and remov......
  • Yellowbear v. Hill
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 9, 2021
    ...standard of review in § 2254(d)(1), and then proceeded to deny his habeas petition on the merits. See Yellowbear v. Wyo. Att'y Gen., 636 F. Supp. 2d 1254, 1258, 1259, 1272 (D. Wyo. 2009). We affirmed the district court's disposition,Yellowbear v. Att'y Gen. of Wyo., 380 F. App'x 740, 740 (1......

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