UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMES ARCHAMBAULT,
a/k/a James Skunk,
Defendant.
[2002 DSD 19]

Thomas J. Wright, US Attorney's Office, Pierre, SD
Attorney for Plaintiff.

Edward G. Albright, Federal Public Defender's Office, Pierre, SD
Attorney for Defendant.

Filed May 23, 2002

Hon. Charles Kornmann, U. S. District Judge

[¶1] Defendant filed a motion to dismiss (Doc. 26) which motion was 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. US 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 as they existed at that time. 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 F3d at 1209. The opinion of the district court, United States v. Weaselhead, 36 FSupp2d 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 The en banc decision is not binding precedent.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 F2d 817 (8th Cir. 1986), United States v. Grey Bear, 863 F2d 572 (8th Cir. 1988), Redding v. Minnesota, 881 F2d 575 (8th Cir. 1989), and United States v. Payne, 940 F2d 286 (8th Cir. 1991).

[¶3] As to the balance of the original report and recommendation, I acted pursuant to 28 USC. § 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, 121 SCt 2304. Nor was any consideration given to Hicks by any judge in United States v. Enas, 255 F3d 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 nonmembers 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 again gave de novo consideration to all documents and records in this case. I denied the motion of the defendant to dismiss, adopted the supplemental report and recommendation with some modifications, overruled the objections of the defendant, and rejected the offer of proof made by the defendant. See United States v. Archambault, 2001 DSD 36, 174 FSupp2d 1009.

[¶5] Defendant's then attorney did not timely file the notice of interlocutory appeal and the United States Court of Appeals for the Eighth Circuit dismissed the appeal as untimely (Doc. 125) on December 19, 2001. The mandate (Doc. 125) issued on February 5, 2002. Defendant then moved to extend the time in which to appeal (Doc. 112) which motion was also untimely and beyond the jurisdiction of the district court. I entered an Order (Doc. 115) denying the motion. I expressed puzzlement as to why the case was dismissed without remanding the case to the district court for a determination of excusable neglect in accordance with Fed.R.Crim.P. § 4(b)(4), this having been the practice previously. See United States v. Anna, 843 F2d 1146, 1147-48 (8th Cir. 1988), and United States v. Petty, 82 F3d 809, 810 (8th Cir. 1996) (per curiam). In fact, the posture of the present case at that time was remarkably similar to that in Petty. Defendant's previous counsel was permitted to withdraw and new counsel was appointed.

[¶6] Predictably, new counsel filed another motion to dismiss (Doc. 132) and we are covering largely the same ground covered previously. The magistrate judge again issued a report and recommendation (Doc. 149) after having conducted an evidentiary hearing. I have read that and I am giving de novo consideration to all the files and records herein, including three transcripts (Docs. 151, 152, and 153). I have also considered the objections filed by the defendant (Doc. 162).

[¶7] The issue squarely before the court previously and now 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 new 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 F3d 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 then 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 FSupp2d 908 (D.Neb. 1997). We do not know, based upon a different make-up of the Court of Appeals, whether the views of then Chief Judge Wollman or Judge Morris Sheppard Arnold will carry the day. Indeed, their views of the law may have changed.

[¶8] 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 springs 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.

[¶9] I will not repeat all that was said in my previous opinion and I incorporate those thoughts and conclusions by reference. See United States v. Archambault, 2001 DSD 36, 174 FSupp2d 1009.

[¶10] Magistrate Moreno has ably expanded in his report and recommendation on what he and I wrote previously. I agree fully with his additional conclusions and rationale and adopt them by reference as well. He has correctly permitted the defendant to present a proffer as to federal expenditures for law enforcement officials, prosecutors and court personnel acting on the Cheyenne River Sioux Indian Reservation.

[¶11] Again, I believe that we are dealing with a matter of federal common law. I do not believe the Congress acted beyond its authority. I do not believe that Duro was founded on constitutional principles but rather on a finding by the judiciary as to what the federal common law was. Federal common law has, since Duro, been clarified by Congress. It now exists just as Felix Cohen described it in 1945 in the first compendium of federal Indian law, Handbook of Federal Indian Law, namely that the rights of a tribe to sovereignty and self-government are only restricted if the federal government, acting through the Congress, expressly extinguishes those rights, wholly or in part. Mr. Cohen was quoted in United States v. Wheeler, 435 US 313, 322 (1978), to the effect that tribes possess "inherent powers of a limited sovereignty which has never been extinguished." By virtue of the action of the United States Congress declaring the federal common law, the tribe here exercised inherent sovereignty. There is no double jeopardy and the motion to dismiss should be denied. The motion should also be denied as to the claims of a bill of attainder and as to claims of violations of constitutional rights of due process and equal protection. Nonmember Indians will simply be subjected to the same tribal court systems as member Indians. Indians who choose to leave their own reservations and live on another reservation make such choices in a conscious manner. They will receive the same treatment and rights as all other Indians living on that particular reservation.

[¶12] Now, therefore,

[¶13] IT IS ORDERED, as follows:

1) The conclusions of the report and recommendation (Doc. 149) and the previous published opinion (Doc. 101) are adopted.

2) The objections of the defendant (Doc.162) are overruled.

3) The motion to dismiss the indictment (Doc. 125) is denied.

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