UNITED STATES OF AMERICA,
aka James Skunk,
[2002 DSD 14]
United States District Court
District of South Dakota-Central Division
Thomas J. Wright, U.S.
Attorney's Office, Pierre, SD
Attorney for Plaintiff.
Edward G. Albright, Federal
Public Defender's Office, Pierre, SD
Attorney for Defendant.
Moreno, Mark A., United States Magistrate Judge
[¶1] After his interlocutory appeal was dismissed by the Eighth Circuit Court of Appeals for lack of jurisdiction, Docket No. 125, defendant, James Archambault, aka James Skunk (Archambault) filed another Motion to Dismiss the indictment, with an accompanying memorandum in support thereof, Docket Nos. 132-33. In his second Motion, like the first one, Archambault seeks to dismiss the indictment on double jeopardy, equal protection and due process grounds. The gravamen of Archambault's dismissal Motion is substantively the same as his previous one. Even so, this Court has considered the Motion, together with the evidence and testimony presented in support of the same, and concludes that it should be denied for the reasons that were thoroughly discussed and analyzed by the Court and the District Court in United States v. Archambault, 174 FSupp2d 1009 (DSD 2001)(Archambault I). Nevertheless, having conducted additional research and given the matter more thought, the Court believes it is appropriate, in view of the important and controversial nature of the issues at stake, to augment what was said in Archambault I with several important points and observations.
[¶2] Preliminarily, following the District Court's order adopting this Court's reports and recommendations, a federal court in North Dakota squarely addressed the issue of whether double jeopardy bars a subsequent prosecution of a non-member Indian who had been convicted in tribal court for the same offense. United States v. Lara, No. C2-01-58, 2001 WL 1789403 (DND Nov. 29, 2001). The North Dakota court, after examining the relevant case law including Duro v. Reina, 495 US 676 (1990), United States v. Weaselhead, 36 FSupp2d 908 (D.Neb. 1999), aff'd by an equally divided court, 165 F3d 1209 (8th Cir.)(en banc), cert. denied, 528 US 829 (1999), United States v. Enas, 255 F3d 662 (9th Cir. 2001) (en banc), cert. denied, 122 SCt 925 (2002) and Archambault I, determined that:
1. The ICRA amendment was a valid recognition of the inherent power of Indian tribes to prosecute non-member Indians;
2. The prosecutorial authority of the Spirit Lake Tribe and of the United States were derived from independent sources; and
3. Because the dual sovereignty doctrine applies, subsequent federal prosecution of the defendant, for the same offense he was convicted of tribally, was not barred by the Double Jeopardy Clause.
Lara, 2001 WL 1789403 at ** 3-4.
[¶3] Moreover, in the aftermath of Nevada v. Hicks, 533 U.S. 353 (2001) and Enas, at least one commentator has revisited the double jeopardy issue raised by Archambault and "agrees with the position taken by other scholars that judicially divested tribal powers should be treated as having been preempted by federal common law" and that the decision in Enas was "correct". Alex Tallchief Skibini, Making Sense Out of Nevada v. Hicks: A Reinterpretation, 14 St. Thomas L. Rev. 347, 365 (2001); see also, Phillip P. Frickey, A Common Law For Our Age of Colonialism: The Judicial Divestiture Of Indian Tribal Authority Over Non-members, 109 Yale L.J. 1, 67-68 & n.322 (1999); Nell Jessup Newton, Permanent Legislation To Correct Duro v. Reina, 17 Am. Indian L.Rev. 109, 118-19 (1992). In this commentator's view, "Congress can reaffirm the inherent powers of Indian tribes without delegation of federal authority to the tribes." Skibini, 14 St. Thomas L. Rev. at 367.
[¶4] Congress enacted the 1990 Indian Civil Rights Act (ICRA) amendment to restore the criminal jurisdiction that Duro found that tribes had lost. The text of the amendment clearly reflects Congress's intent to authorize tribes to act in their own sovereign capacities, not as instrumentalities of the United States, in prosecuting non-member Indians. The amendment modified ICRA's definition of tribal "powers of self-government" to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." 25 USC § 1301(2) (emphasis added). Jurisdiction that is exercised as a "power[ ] of self-government" necessarily refers to jurisdiction that is based on and derived from tribal sovereignty. In passing the amendment, Congress expressly "recognized" and "affirmed" the existence of that jurisdiction as an "inherent" tribal power, not as "delegated", federal power.
[¶5] The legislative history of the 1990 ICRA amendment provides additional support for this conclusion. The Senate Report, for instance, explains that the amendment was intended "to recognize and reaffirm the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians." S. Rep. No. 168, 102d Cong., 1st Sess. 4 (1991) (emphasis added). Likewise, the House Report states that "this legislation is not a federal delegation of jurisdiction but a clarification of the status of tribes as domestic independent nations." H.R. Rep. No. 61, 102d Cong., 1st Sess. 7 (1991) (emphasis added). (fn1)
[¶6] This Court can find nothing in the Supreme Court's decisions that precludes Congress from recognizing or restoring an aspect of the inherent sovereign power of tribes that otherwise could not be exercised after their incorporation into the Union. To the contrary, the Court has indicated on a number of occasions that Congress may authorize an "exercise of tribal power" that would be inconsistent with the dependent status of the tribes in the absence of such authorization. See e.g., Hicks, 533 US at 359-60; Montana v. United States, 450 US 544, 564 (1981).
[¶7] Archambault contends that under Duro, the relationship between the sovereign authority of the United States and that of Indian tribes is "constitutionally based" and cannot be altered by Congress. This contention is an erroneous one. The Constitution does not define the precise extent of residual tribal sovereignty. Rather, sovereignty of tribes has been subject to adjustment by federal treaties and statutes; where Congress has not spoken on the issue, tribal sovereignty is a matter of federal common law. Cherokee Nation v. Georgia, 30 US (5 Pet.) 1, 16-19 (1831) (Marshall, C.J.); see also, Duro, 495 US at 688-92 (assessing the extent of tribal criminal jurisdiction by reference to non-constitutional sources including statutes, treaties and federal court practice); Oliphant v. Suquamish Indian Tribe, 435 US 191, 206 (1978) (observing that "'Indian law' draws principally on the treaties drawn and executed by the executive branch and legislation passed by Congress", which "beyond their actual text form the backdrop for the intricate web of judicially made Indian law"). The Supreme Court has "always recognized that federal common law is 'subject to the paramount authority of Congress'". Milwaukee v. Illinois, 451 US 304, 313 (1981) (quoting New Jersey v. New York, 283 US 336, 348 (1931)). The 1990 ICRA amendment, therefore, represents an appropriate exercise of Congress's authority to modify federal common law.
[¶8] The Supreme Court has made clear that Congress may, in the exercise of its "plenary" authority over Indian affairs, see Morton v. Mancari, 417 US 535, 551-52 (1974), remove restraints that may otherwise exist under federal law to tribes' exercise of their inherent sovereign powers. See e.g., Negonsott v. Samuels, 507 US 99, 103 (1993) (Congress has "plenary authority to alter" the allocation of criminal jurisdiction in Indian country); Santa Clara Pueblo v. Martinez, 436 US 49, 56 (1978) ("Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess."); United States v. Mazurie, 419 US 544, 556-59 (1975) (Congress may authorize a tribe to regulate the sale of alcoholic beverages by non-Indians on privately-owned lands within a reservation's boundaries). Moreover, when one Congress, with the consent of a tribe, has terminated federal recognition of a tribe, a subsequent Congress may repeal the termination act and reinstate all of the tribe's preexisting rights and privileges. (fn2)
[¶9] The fact that Duro makes reference to due process and equal protection concerns, see 495 US at 692-96, does not make it a "constitutionally-based" decision. Admittedly, the Duro Court did indicate that Congress might be constrained by the due process and equal protection components of the Fifth Amendment (fn3) from subjecting United States citizens to criminal proceedings before a tribunal that does not provide the full panoply of federal constitutional rights. 495 US at 693-94. But the actual question of whether Congress could constitutionally take such a step with respect to tribal courts was not before the Court in that case. (fn4)
[¶10] The 1990 ICRA amendment does not, on its face, violate equal protection or due process guarantees. The Supreme Court has rejected equal protection challenges to statutes that treat Indians and non-Indians differently - including statutes governing criminal and civil jurisdiction in Indian country - where the classification is rationally related to the United States' unique trust responsibilities to Indians. United States v. Antelope, 430 US 641, 645-50 (1977); see also, United States v. Eagleboy, 200 F3d 1137, 1138-40 (8th Cir. 1999) (policy that exempted member, but not non-member, Indians from possessing migratory bird parts was based on the special trust obligations owed by the government to tribes and did not violate equal protection statutes) Alaska Chapter, Associated General Contractors v. Pierce, 694 F2d 1162, 1166-70 (9th Cir. 1982) (upholding constitutionality of Indian preference revision in 25 USC § 450e(b) where the classification was rationally related to Congress's trust responsibility toward Indians). For example, the Court upheld 18 USC § 1153, which subjects Indians, but not non-Indians, to federal prosecution for certain offenses committed in Indian country. Antelope, 430 US at 642-43, 50. In doing so, the Court explained that § 1153, like other federal laws that treat Indians differently from non-Indians, is "based neither in whole nor in part upon impermissible racial classifications," but instead is "rooted in the unique status of Indians as 'a separate people' with their own political institutions." 430 US at 646-47; see also, Eagleboy, 200 F3d at 1139-40; United States v. Keys, 103 F3d 758, 761 (9th Cir. 1996). The Court noted that the Indian defendants did not seriously contend that the statute failed to satisfy the rational basis standard applicable to non-suspect classifications. Antelope, 430 US at 647, n.8. (fn5) The ICRA amendment's recognition of tribal criminal jurisdiction over "all Indians" is rationally related to Congress's twin goals of promoting tribal self-government and eliminating the potentially significant jurisdiction gap in law enforcement left by Duro.
[¶11] As for any due process concerns, ICRA itself guarantees that a defendant in tribal court shall not be "[d]eprived" ... of liberty without due process of law." 25 USC § 1302(8). While ICRA does not guarantee every right secured by the Constitution, Archambault does not allege that the tribal court deprived him of a constitutional right. Even if a federal due process right not provided by ICRA or tribal law, such as the right to appointed counsel for indigent defendants, must be assured before a tribal court may exercise jurisdiction over a non-member Indian, the solution is not to disable tribal criminal jurisdiction, but simply to require that the tribe elect between providing counsel and foregoing incarceration as a sentencing option. See Argersinger v. Hamlin, 407 US 25 (1972). (fn6)
[¶12] In any event, the appropriate way for Archambault (or any other non-member Indian for that matter) to raise equal protection and due process objections to the exercise of criminal jurisdiction by a tribe or to the procedures applicable in tribal court is to present and seek a ruling on these objections as part of his tribal prosecution. Then, if the tribal court does not provide him relief, his objections can be made to the District Court vis a vis a petition for habeas corpus under 25 USC § 1303 challenging "the legality of [his] detention by order of an Indian tribe." Archambault at no time ever raised any such objections during or in connection with his tribal court proceedings.
[¶13] Whether or not Duro definitively adjudicated the extent of tribal sovereignty as of the date of that decision (May 29, 1990), and whether Congress had the authority to retroactively "overrule" such an interpretation of law by the Supreme Court are issues that need not be resolved here. It will suffice to say that this case involves only a prospective change in the scope of tribal sovereignty. No issue of retroactivity is presented. See Rivers v. Roadway Express, Inc., 511 US 298, 304-05 (1994) ("Congress's decision to alter the rule of law established in one of our cases - ... to 'legislatively overrul[e]' - does not, by itself, reveal whether Congress intends the 'overruling' statute to apply retroactively to events that would otherwise be governed by the judicial decision. ... Because retroactivity raises special policy concerns, the choice to enact a statute that responds to a judicial decision is quite distinct from the choice to make the responding statute retroactive."); but see Mousseaux, 806 FSupp at 1441-43 (recognizing tribal court jurisdiction over offense committed by non-member Indian prior to the 1990 ICRA amendment's effective date and suggesting that the amendment conferred no new power to tribe).
[¶14] Archambault forcefully argues that the power of the Cheyenne River Sioux Tribe (CRST) to exercise criminal jurisdiction over non-member Indians like himself exists only by virtue of a "delegation" from Congress. The use of the term "delegation", however, is consistent with the notion that tribes prosecute non-member Indians pursuant to the 1990 ICRA amendment, in the exercise of tribal power, not federal power. In fact, the Supreme Court has on several occasions referred to the restoration of tribal sovereign power as a "delegation" by Congress. See Montana, 450 US at 564 (preempted "tribal power ... cannot survive without express congressional delegation"); accord, South Dakota v. Bourland, 508 US 679, 695 n.15 (1993); Merrion v. Jicarilla Apache Tribe, 455 US 130, 171 (1982).
[¶15] The Supreme Court has also recognized that when Congress "delegates" authority to an entity possessing attributes of sovereignty, such as a state, the entity exercises that power in its own sovereign capacity, not as an instrumentality of the federal government. See Prudential Insurance Company v. Benjamin, 328 US 408, 438 (1946) (although a state tax on insurance companies was permissible only because of the McCarran-Ferguson Act, the tax was imposed by the state as an "exertion of its own power", and accordingly was not subject to constitutional constraints on the federal government's taxing power); see also, Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 US 391, 398-400 (1979) (an agency formed under an interstate compact authorized by Congress acts as a state, not federal, agency); Pink v. Modoc Indian Health Project, Inc., 157 F. 3d 1185, 1888 (8th Cir. 1998) (tribal sovereign authority extends to non-profit corporation established by the tribes to administer federal program), cert. denied, 528 US 877 (1999).
[¶16] Even if Congress was constitutionally barred from "recogniz[ing] and affirm[ing]" the tribes' sovereign authority to exercise criminal jurisdiction over "all Indians" on their reservations, 25 USC § 1301(2), Archambault's double jeopardy claim must nonetheless fail. Nothing in the text, purpose or legislative history of the 1990 ICRA amendment demonstrates or even suggests that Congress intended to make tribes instrumentalities of the United States for these purposes. Any such action would create innumerable difficulties for law enforcement in Indian country that Congress most assuredly could not have intended. More importantly, given the circumstances surrounding the introduction and passage of the 1990 ICRA amendment, Congress would have obviously understood that, if tribes were acting as instrumentalities of the United States in prosecuting non-member Indians, a potential double jeopardy bar would exist to a federal prosecution after a tribal prosecution involving the same offense. (fn7) See United States v. Wheeler, 435 US 313, 330-31 (1978) (noting that the prospect of avoiding a more severe federal punishment would motivate tribal members to plead guilty first to tribal offenses, which carry only misdemeanor-type penalties). Yet, Congress gave no signal of its intention to take away federal prosecutorial power in this situation.
[¶17] If Congress's attempt in the 1990 ICRA amendment to recognize the sovereign authority of tribes to prosecute non-member Indians is invalid, that would mean that CRST lacked criminal jurisdiction over Archambault. Assuming this to be true, jeopardy would not have attached in Archambault's tribal prosecution for purposes of the Double Jeopardy Clause. See California v. Mesa, 813 F. 2d 960, 963, n.5 (9th Cir. 1987) (under both federal and state law, jeopardy does not attach if the state trial court lacked subject matter jurisdiction), aff'd sub nom, 489 US 121 (1989); see also United States v. Phelps, 168 F3d 1048, 1053-54 (8th Cir. 1999) (concluding that the Double Jeopardy Clause had not been violated in a federal prosecution, which followed a prosecution in tribal court for the same conduct, because the tribe did not have jurisdiction to enforce its laws against a non-Indian defendant). Of course, if jeopardy did not attach in Archambault's tribal prosecution, a subsequent federal prosecution would not put him twice in jeopardy and thereby create a double jeopardy bar to his federal prosecution. As a result, the denial of Archambault's Motion to Dismiss should stand, irrespective of the correctness of the interpretations made by this Court and the District Court as to the validity of the 1990 ICRA amendment.
[¶18] Lastly, whether or not the United States has an all encompassing financial "presence" in CRST's court system and its law enforcement agency does not make the Tribe an "arm" of the United States. See Wheeler, 435 US at 327-28. Significantly, Archambault still has not shown whether any of the financial assistance received from the United States was used by the Tribe in connection with crimes committed by non-member Indians, and if so, the extent this was done. If the lion's share of the assistance was utilized by the Tribe for criminal matters relating to its own members, Archambault's double jeopardy claim must fail. See Wheeler, 435 US at 322-30.
[¶19] The claim must fail for another reason as well. If accepted and extrapolated out, such a claim would "federalize" almost every aspect and function of tribal government, stripping tribes, like CRST, of their soverignty. Aside from this, what about state and local agencies/programs that the United States provides all or most of the funding for? The fact that these agencies/programs are federally funded, in whole or in part, does not transform the governmental entities that run them into de facto subsidiaries of the United States.
[¶20] Regardless, the questions in this case are essentially legal, not factual, ones that involve convoluted issues of constitutional law, particularly in the realm of separation of powers. It is in this domain that Archambault's dismissal Motion should be surveyed and ultimately decided.
[¶21] For all of these reasons and those previously articulated by the District Court and this Court in Archambault I, 174 F. Supp. 2d at 1010-17, 1018-31, it is hereby
[¶22] RECOMMENDED that Archambault's Motion to Dismiss Indictment, Docket No. 132, be DENIED in its entirety and with prejudice.
Failure to file written objections to the within and foregoing Report and Recommendation for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States District Judge. See 28 USC § 636(b)(1) and Fed. R. Civ. P. 72.
1. The legislative history indicates that Congress may have sought not only to prospectively remove the federal law impediment to the exercise of inherent tribal power, but also to retroactively overrule Duro's interpretation of federal Indian law as it stood at the time of the Supreme Court's decision. See Mousseaux v. United States, 806 FSupp 1433, 1440-43 (DSD 1992) (holding that the 1990 ICRA amendment should be given retroactive effect and that the same defeats the defendant's claims under Duro), aff'd on other grounds, 28 F3d 786 (8th Cir. 1994). As discussed later herein, see infra , 8-9, whether the 1990 ICRA amendment was intended to apply retroactively, is not an issue in this case.
2. Compare Menominee Indian Termination Act of 1954, Pub. L. No. 399, 68 Stat. 250 (1954) with Menominee Restoration Act, Pub. L. No. 93-197, 87 Stat. 770 (1973) (codified at 25 USC §§ 903-903f); see also, 25 USC § 861(b), (c) (repealing termination of federal supervision over certain Indian tribes in Oklahoma and "reinstat[ing] all rights and privileges of each of the tribes ... and their members under federal treaty, statute or otherwise"). Congress's authority to restore federal recognition to a tribe has not been questioned. Nor has it ever been suggested that re-recognized tribes exercise federal, as opposed to tribal, powers when they carry out their governmental activities.
3. Although the Fifth Amendment does not contain an equal protection clause, the Supreme Court has reverse incorporated the Equal Protection Clause of the Fourteenth Amendment into the Fifth Amendment. Bolling v. Sharpe, 347 US 497, 500 (1954). In doing so, the Court reasoned that "it would be unthinkable that the same Constitution would impose a lesser duty on the federal government." Id.
4. This brings up another important issue. Interpreting the 1990 ICRA amendment as a congressional delegation of federal authority, which Archambault maintains should be done, poses significant problems. Indeed, in light of Duro, this Court has grave doubts as to whether Indian tribes can exercise federal power delegated to them by Congress over non-member Indians without granting these Indians all of the protections guaranteed by the United States Constitution. Congress is not able to delegate what it does not have, and because it does not have the power to prosecute non-member Indians without affording them the full protection of the Constitution, it cannot in turn empower tribes to do this very thing. See Skibini, 14 St. Thomas L. Rev. at 364 & n. 114; see also L. Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Columbia L. Rev, 702, 707 (2001). Any such interpretation would subject non-member Indians and other United States citizens to tribal criminal prosecution without all of their constitutional entitlements and would, in all probability, result in a constitutional challenge under Reid v. Covert, 354 US 1 (1957) and like cases. See Duro, 495 US at 693-94.
5. Similarly, in Fisher v. District Court, 424 US 382 (1976) (per curiam), the Supreme Court held that denying tribal members access to the state court forum available to non-Indians did not "constitute impermissible racial discrimination." 424 US at 390. According to the Court, "such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government." Id. at 391 (citation omitted); see also, Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 US 463, 502 (1979) (rejecting Indian tribe's equal protection challenge to a state's partial assumption of criminal jurisdiction pursuant to Public Law 280, whereby non-Indians, but not Indians, were subject to state prosecution for crimes committed on trust or restricted land within the reservation); Morton, 417 US at 551-52 ("the unique legal status of Indian tribes under federal law" permits the government to enact legislation singling out Indians, legislation that might otherwise be constitutionally offensive).
6. A number of tribes, including the Rosebud Sioux Tribe, provide counsel to indigent criminal defendants in tribal court as a matter of tribal law or policy. See e.g. United States v. Red Bird, 146 FSupp2d 993, 997, 1007 (DSD 2001). Congress has authorized funding for entities that provide legal assistance to criminal defendants in tribal court under the Indian Tribal Technical & Legal Assistance Act of 2000, codified at 25 USC § 3663.
7. Congress would have also understood, in the face of Duro, that other potential constitutional issues could be implicated if the 1990 ICRA amendment was treated as an affirmative delegation of power to Indian tribes. Duro had made clear that non-Indians and non-member Indians were similarly situated for purposes of tribes' exercise of criminal jurisdiction, 495 U.S. at 696, so any authority delegated to tribes by Congress over non-member Indians, but not over non-Indians, might well present equal protection problems. In addition, Duro hinted that a congressionally delegated grant of criminal jurisdiction over non-members -- whether Indian, non-Indian, or both -- to tribes which was not subject to the Bill of Rights or other constitutional constraints, would contravene the Due Process Clause, 495 U.S. at 693.