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January 28, 2016
  Kelsey v. Pope -- Sixth Circuit
Case name: Norbert Kelsey v. Melissa Pope

Headline: Off-reservation Offenses Remain Under the Jurisdiction of Tribal Courts.

Area of law: Indian Civil Rights Act; Tribal law

Issue presented: Does a tribal reservation maintain criminal jurisdiction over its members if the offense occurs off the tribal reservation?

Brief summary: A tribal member of the Ottawa Indians (Band) was convicted in tribal court of misdemeanor sexual assault for inappropriately touching a tribal employee at the Band's Community Center. The Community Center is located on land owned by the Band but is not located within the tribal reservation. He appealed his sentence in tribal court, arguing that the tribal court lacked jurisdiction over his off-reservation conduct. When his sentence was affirmed, he filed a petition for habeas relief in United States District Court, arguing lack of jurisdiction and a violation of due-process protections under the Indian Civil Rights Act. The district court granted habeas relief, holding that the Band lacked criminal jurisdiction to try and punish the tribal member's off-reservation conduct, but the district court did not rule on his due-process challenge. The Band appealed, and the Sixth Circuit reversed and held that the Band has jurisdiction because it has the inherent sovereign authority to prosecute members when necessary to protect tribal self-government or control internal relations.

Extended summary: The Band is a federally recognized Indian tribe located in northwest Michigan's Manistee and Mason Counties. Under federal law, Indian tribes "shall retain inherent sovereign power," with "the inherent authority to establish their own form of government, including tribal justice systems." The Band has also implemented a Tribal Constitution. Within the constitution, the Tribal Court is vested with the authority "[t]o adjudicate all civil and criminal matters arising within the jurisdiction of the Tribe or to which the Tribe or an enrolled member of the Tribe is a party."

The Community Center, located just across the street from the reservation, is constructed on land purchased by the Band in fee simple in 1997 but is not within "Indian country" as defined by 18 U.S.C. ยง 1151. In 2005, the tribal member, then an elected member of the Band's nine-person Tribal Council, made inappropriate physical contact of a sexual nature with an employee of the Band's medical clinic during a meeting at the Community Center. The tribal member was later charged with misdemeanor sexual assault and harassment under its internal criminal laws. In 2008, the Tribal Court convicted the tribal member of sexual assault and sentenced him to six months in jail.

On appeal, the tribal member challenged the Tribal Court's jurisdiction, arguing that the Band lacked authority to exercise criminal jurisdiction over his specific conduct because it occurred outside the Band's Indian country. The Tribal Court of Appeals affirmed tribal criminal jurisdiction over his offense based on the Band's inherent sovereign authority to prosecute its members. It also found that a jurisdictional mandate in the Tribal Constitution required extending jurisdiction to his off-reservation conduct.

The tribal member filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Michigan, making two principal arguments: (1) the Band lacked inherent sovereign authority to assert criminal jurisdiction over his conduct because it occurred outside of the Band's Indian country, and (2) the Tribal Court of Appeals' decision violated his due-process rights under the Indian Civil Rights Act. The district court held that Indian tribes were implicitly divested of criminal jurisdiction over off-reservation member conduct. The Band appealed.

Both parties accepted that, as dependent sovereigns, Indian tribes exercise inherent sovereign authority. The Sixth Circuit therefore assessed the question of extra-territorial criminal jurisdiction by breaking this governing framework into three separate inquiries: (1) Do Indian tribes have inherent sovereign authority to exercise extra-territorial criminal jurisdiction? (2) If so, has that authority been expressly limited by Congress or treaty? (3) If not, have the tribes been implicitly divested of that authority by virtue of their domestic dependent status?

First, the Sixth Circuit observed that a tribe's sovereign authority to punish its members is "a power that this Court has called inherent." The court agreed with the Band's view that tribes have "inherent authority to prosecute tribal members for offenses substantially affecting [tribal] self-governance interests," even when those offenses take place outside Indian country. Furthermore, Indian tribes have the inherent sovereign authority to try and punish members on the basis of their tribal membership.

Second, the court concluded that there is no statute or treaty that expressly divests the Band of its inherent authority to try and punish its members for off-reservation conduct.

Third, while courts have repeatedly restricted tribal criminal jurisdiction over nontribal members, the Supreme Court has consistently affirmed that the "power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status."

Accordingly, the Sixth Circuit held that because prosecuting this tribal member's conduct was "necessary to protect tribal self-government or control internal relations," the Band retained authority to assert criminal jurisdiction over his off-reservation conduct. The Sixth Circuit thus reversed the district court's grant of habeas relief for lack of tribal jurisdiction.

Panel: Circuit Judges John M. Rogers and David W. McKeague, and District Judge Edmund A. Sargus, Jr.

Date of issued opinion: January 5, 2016

Docket number: 14-1537

Decided: Vacated and reversed.

Counsel: ARGUED: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. ON BRIEF: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, Dan Himmelfarb, MAYER BROWN LLP, Washington, D.C., for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. Eugene R. Fidell, New Haven, Connecticut, John L. Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Ruthanne M. Deutsch, GEORGETOWN UNIVERSITY LAW CENTER APPELLATE LITIGATION PROGRAM, Washington, D.C., for Amici Curiae.

Author of opinion: Circuit Judge McKEAGUE

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0001p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:05 PM     6th Circuit  

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