Not Reported in Am. Tribal Law, 2005 WL 6437828 (Eastern Cherokee Sup.Ct.), 4 Cher.Rep. 9
Supreme Court of the Eastern Band of Cherokee Indians.
EASTERN BAND OF CHEROKEE INDIANS, Appellee,
Arnulfo TORRES, Defendant/ Appellant.
Nos. CR 03–1443, CR 03–1529, CR 03–1530, CR 03–1531, CR 03–1819.
Submitted July 23, 2004.
Decided April 12, 2005.
Appeal from the Cherokee Court.
Attorneys and Law Firms
James W. Kilbourne, Jr., Tribal Prosecutor, Eastern Band of Cherokee Indians, for the Tribe.
Russell L. McLean, III, Waynesville, North Carolina, for the Defendant/Appellant.
Before HARRY C. MARTIN, Chief Justice, BRENDA TOINEETA, and STEVEN E. PHILO, Chief Judge, Cherokee Court, sitting by designation.
These cases were consolidated for trial in the Cherokee Court on December 10, 2003. The defendant moved to dismiss the charges for lack of jurisdiction of the defendant on the grounds that he is not an Indian. The Court entered an order denying the motion to dismiss on January 27, 2004, and notice of appeal to this Court was filed on February 10, 2004. The appeal was argued in this Court on July 23, 2004.
All parties stipulated that defendant Torres is a citizen of the republic of Mexico (United Mexican States).
Defendant Torres was charged with driving while impaired and failure to stop for a stop sign on September 10, 2003. While released on bond for these charges, defendant on September 21, 2003 was charged with driving while impaired and driving while license revoked. Again, on pre-trial release, defendant was charged with second-degree child abuse of an enrolled member on November 13, 2003. During this time period, defendant was living at 4031 Wrights Creek Road (the residence of an enrolled member), which this Court takes judicial notice is located in Indian Country within the Qualla Boundary (the reservation of the Eastern Band of Cherokee Indians in North Carolina).
The record discloses that defendant was associating with at least two female enrolled members of the Eastern Band of Cherokee Indians, and that the alleged child abuse occurred at 4031 Wrights Creek Road.
The traffic violations occurred on public highways in Indian Country within the Qualla Boundary. Defendant’s breathalyzer test on September 21, 2003 gave a result of .17 Alcohol Content. The defendant’s alcohol content at the September 10, 2003 arrest was .11. Both arrests were at intersections of tribal roads with U.S. 19 and in populated areas, Defendant is 37 years of age and had been issued a North Carolina driver’s license.
The population of the Qualla Boundary, both permanent and temporary, is becoming larger and more diverse. Approximately 8,500 enrolled members live on the Qualla Boundary. More people visit Cherokee than any place in North Carolina, some three (3) million visitors a year. This case is not a unique, stand-alone case. It is not unusual for foreigners to appear in the Cherokee Court, in civil, criminal and infraction cases.
We now turn to the issue of jurisdiction.
This is a case of first impression. The issue for decision is: Does the Cherokee Court, an independent tribal court of the Eastern Band of Cherokee Indians, a federally recognized Indian tribe, have jurisdiction to try and to punish the defendant Torres, a citizen of Mexico who is not an Indian, for violating the criminal laws of the Eastern Band of Cherokee Indians? We answer the issue, yes.
Our research does not disclose any authority directly addressing this issue. We consider that the better reasoned analysis requires and supports the conclusion that the Cherokee Court does have criminal jurisdiction over non-Indians who are not citizens of the United States, i.e. aliens.
In reviewing issues of jurisdiction the Court is guided by Chapter 7, Section 2 (2000) of the Cherokee Code. Section 2(c) states: “The Judicial Branch shall not have jurisdiction over matters in which the exercise of jurisdiction has been specifically prohibited by a binding decision of the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit or by an Act of Congress.”
Our research does not disclose any Act of Congress specifically prohibiting the exercise of criminal jurisdiction by Indian tribal Courts over non-Indians who are not citizens of the United States. Nor do we find any such decision of the United States Court of Appeals for the Fourth Circuit.
The Supreme Court of the United States has addressed the criminal jurisdiction of Indian Courts in four opinions during the last twenty-five years. The Court has reviewed jurisdiction over non-Indian citizens of the United States, Oliphant v. Suquamish Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978); jurisdiction over member Indians, United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); and jurisdiction over non-member Indians, Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); United States v. Lara, 541 U.S. 193, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). Each of these cases specifically involved the rights of citizens of the United States. Throughout its extensive history of jurisprudence regarding Indian tribal sovereignty, the Supreme Court has never considered the powers and status of the Tribes with regard to non-citizens of the United States. The Cherokee Court, drawing upon history and references from precedent concluded that the Eastern Band of Cherokee Indians maintained the “inherent authority” to prosecute non-citizens of the United States.
The appellant relies entirely on Oliphant. He only cites two additional authorities, Duro and Chapter 14, Section 1.5 of the Cherokee Code. Appellant argues that Oliphant holds that Indian tribal courts do not have jurisdiction to try any non-Indians on criminal charges. Stated again, that Indian tribal courts only have criminal jurisdiction over Indians. Appellant fails to perceive the issue before the Court.
] It is true that since the Marshall trilogy, McIntosh, Cherokee and Worcester, the United States Supreme Court has referred to Indian tribes as “dependent sovereign nations”. This Court agrees that Indian tribes are prohibited from exercising those powers of autonomous states that have been expressly terminated by the United States Congress and those powers inconsistent with their status, as dependent sovereign nations. Oliphant. Congress has not expressly limited the jurisdiction of Indian tribal courts over non-Indians in criminal cases.
This Court holds that neither Congress nor the United States Supreme Court nor the Fourth Circuit Court of Appeals has specifically prohibited the jurisdiction of Indian Tribal courts over non-Indian aliens of the United States on criminal charges.
A careful reading of Oliphant supports this conclusion. The Court in Oliphant does not address this issue directly. Oliphant and Belgarde were not aliens, but were citizens of the United States. Historically, the United States in its treaties and agreements with Indian tribes from the earliest days had two basic goals: to gain land from the Indians, and to protect citizens of the U.S. The first treaty, the 1778 treaty with the Delaware nation, stated that neither party to the treaty could “proceed to the infliction of punishments on the citizens of the other ...” Treaty with the Delaware’s, Article IV, 7 Stat. 14. In the Treaty with the Shawnees, Article III, 7 Stat. 26 (1786) we find the reference to “any citizen of the United States ...”; like provision in the Treaty with the Choctaws, Article IV, 79 Statue 22 (1780) “any citizen of the United States”. Surely, the United States did not intend to protect English, Spanish, Dutch and other aliens, from the Indians.
The Court’s restriction of its holding in Oliphant to “non-Indian citizens of the United States” has a significant historical basis, and is consistent with the Court’s concerns of liberty, justice and fairness justifying the Court’s ruling prohibiting the exercise of criminal jurisdiction over non-Indian citizens of the United States. The Court has traditionally recognized this distinction between citizens and non-citizens. Over a century ago, the Court indicated that the general “object” of Congressional statutes regarding Indian country was “to reserve to the courts of the United States [criminal] jurisdiction of all actions to which its own citizens are parties on either side.” In re Mayfield, 141 U.S. 107, 115–116, 11 S.Ct. 939, 35 L.Ed. 635 (1891) (quoted in Oliphant, 435 U.S. at 204, 98 S.Ct. at 1019, 55 L.Ed.2d at 219) (emphasis added).
In nine separate places in the majority opinion in Oliphant, Justice (now Chief Justice) Rehnquist refers to “non-Indian citizens of the United States.” The defendants in Oliphant were “non-Indian citizens of the United States.” As stated above, and in Oliphant, history supports the conclusion that in its relations with Indians, the United States was protecting the citizens of the United States and not all non-Indian people. It is noted that the Congressional Review Commission in 1977 concluded that “there is an established legal basis for tribes to exercise jurisdiction over non-Indians.” 1 Final Report of the American Indian Policy Review Commission 114, 117, 152–154 (1977). The committee did not refer to the question of jurisdiction oyer non-Indian aliens.
A brief review of the history of the Cherokees reveals that in negotiating with the Cherokees the primary intent of the United States was the protection of the liberties of citizens of the United States. Six of the first nine treaties executed by the Cherokees and the United States contained special provisions applicable only to United States citizens. The first article of the Hopewell Treaty includes: “... the Cherokees shall restore all ....citizens of the United States .... to their entire liberty.” 7 Stat.18 Article 8. Article X holds that “all travelers, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokee to trade with them”. No right of trade was granted for non-citizens. In the Treaty of the Holston River, 7 Stat. 39 (1791) the activity of citizens of the United States is restricted without reference to those not citizens, thus leaving non-citizens who venture into Indian Country to their own devices for protection. See also, Second Treaty of the Holston River (1798), Article VII, 7 Stat. 62 (freedom of travel); Fourth Treaty of Tellico (1805), Article II, 7 Stat. 95, (travel); Second Treaty of Washington (1816), Article II, 7 Stat. 139, (freedom of navigation of rivers and waters within the Cherokee Nation); (use of ferries and public houses.) Id.
When considering the inherent powers of tribes, the United States Supreme Court has held that tribes retain all powers of autonomous states except those which have been expressly terminated by Treaty or Act of Congress, or which are inconsistent with their status as domestic dependent nations. Oliphant, 435 U.S. at 208, 98 S.Ct. at 1021, 55 L.Ed.2d at 221. With the exception of limitations on the power to transfer of land and to exercise external political sovereignty, considerable sovereign power remains within the Tribes. “Indian Tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.” Lara, 541 U.S. 193 at 204, 124 S.Ct. at 1636 (quoting United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)). This sovereignty exists in large part to protect the political integrity, the economic security, or the health or welfare of the Tribe. Montana v. U.S., 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). The Court has held the exercise of tribal power legitimate where it concerns “a tribe’s authority to control events that occur upon the tribe’s own land,” Lara, 541 U.S. 193 at 204, 124 S.Ct. 1628, 158 L.Ed.2d 420. Over a century ago, the courts of the United States recognized that the Cherokees “have and exhibit the same interest in the enforcement of the law and in the protection of personal and property rights as the United States citizen resident therein. In some sense they have the higher interest, because they are owners of the soil, and constitute the more fixed and permanent population.” Carter v. United States, 1 Indian Terr. 342, 37 S.W. 204 (Indian Terr., 1896).
The Court in Oliphant holds “But from the formation of the Union and the adoption, of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty.... By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress”. Oliphant, 435 U.S at 210, 98 S.Ct. 1011,
The law of Oliphant can be summarized in the following: “Such an exercise of jurisdiction over non-Indian citizens of the United States would belie the tribes’ forfeiture of full sovereignty in return for the protection of the United States”. Oliphant supra. By accepting the protection of the United States, Indian tribes did not relinquish their inherent sovereign powers of criminal jurisdiction over non-Indians who were not citizens of the United States, such as Torres.
In Oliphant, all the authority relied upon (treaties, opinions and statutes) sought to protect the liberty of United States citizens from Indians. The Court was not concerned with the protection of aliens in dealing with Indians. Nor has the United States Supreme Court specifically expressed the protection of aliens as a reason to limit the sovereignty of Indian tribes.
The Court in United States v. Lara, supra, re-affirms many of the principles supporting our decision in Torres, e.g “....The common law conception of crime as an offense against the sovereignty of the government”; “Indian tribes are unique aggregations possessing attributions of sovereignty over both their members and their territory.” In several places the Court in Lara again refers to the interest of the United States in protecting citizens of the United States: “... whether the ... Due Process or Equal Protection Clauses prohibit tribes from prosecuting a non-member citizen of the United States.”; “non-member Indian citizens of the United States ...”, “We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, non-member Indians, for trial by political bodies Chat do not include them.” Kennedy, J. concurring, states: “Lara, after all, is a citizen of the United States. To hold that Congress can subject him, within our domestic boundaries, to sovereignty outside the basic structure of the Constitution is a serious step.... The National Government seeks to subject a citizen to the criminal jurisdiction of a third entity ... subject American citizens to the authority of an extra-constitutional sovereign ...”. Lara, 541 U.S. 193 at 212, 124 S.Ct. 1628. Justice Souter, in dissent, cites Oliphant for it’s holding that “Indian tribes therefore necessarily give up this power to try non-Indian citizens of the United States ...”.
Therefore, we hold that Oliphant does not control the Torres appeal. Oliphant concerns Indian tribal court jurisdiction of criminal cases against non-Indian citizens of the United States. Torres concerns Indian tribal court jurisdiction of criminal cases against non-Indian aliens of the United States.
We hold that the sovereign power of inherent jurisdiction of the Eastern Band of Cherokee Indians to try and punish non-Indian aliens of the United States has not been expressly terminated by Treaty, Act of Congress, or specifically prohibited by a binding decision of the Supreme Court of the United States or the United States Court of Appeals for the Fourth Circuit.
Counsel did not brief or argue the issue of whether jurisdiction by the Eastern Band of Cherokee Indians of criminal cases against non-Indians who are not citizens of the United States, i.e. aliens, is inconsistent with the status of the Eastern Band of Cherokee Indians as a “dependent sovereign nation.” However, we find this issue to be essential to the resolution of this appeal. We have reviewed this issue, and hold that the court’s jurisdiction over non-Indian aliens on criminal charges is not inconsistent with the status of the Eastern Band of Cherokee Indians as a “dependant sovereign nation.”
After the arrival of non-Indians to what is now the United States of America and before the existence of the United States of America, the Cherokee Indians exercised inherent jurisdiction over all non-Indians found within Cherokee Country. Following the formation of the United States of America, the Cherokee Nation entered into treaties with the United States over the years recognizing its relation with the United States as a “dependant sovereign nation”, and the federal government assumed its fiduciary obligations for the Cherokees. As demonstrated previously in this opinion, this relationship resulted in the Cherokees giving up criminal jurisdiction over non-Indian citizens of the United States as being inconsistent with the status of the Cherokees as a dependant sovereign nation.
Not so, as to non-Indian aliens of the United States. In order to govern itself, manage its own affairs and safeguard its people as well as visitors (including citizens of the United States and aliens) to Cherokee Country, criminal jurisdiction over non-Indians aliens is an exercise of the inherent power of the Cherokee Nation, and is essential.
Torres, and all aliens who violate criminal laws within the United States will be subjected to a strange court, under strange laws, in a strange land, whether the court is federal, state or tribal. The Cherokee Court provided Torres with all the protection and assistance that he would have received in federal or state court, including appointment of counsel, due process, speedy trial, bond and right of appeal. In addition, after defendant exhausts all of his remedies in the Cherokee Court, he may petition the United States District Court for a writ of habeas corpus and federal appellate review. So, Torres, or any alien, is not prejudiced by receiving a trial in tribal court. See 25 U.S.C. 1301 et seq. (1968).
The decision in Oliphant holds that the inherent sovereign power of criminal jurisdiction of tribal courts over non-Indians has not been specifically curtailed by treaty or act of Congress, but that such jurisdiction is inconsistent with the status of tribes as dependant sovereign nations. As set forth above, we conclude that Oliphant is not a specific ruling as to tribal jurisdiction over non-Indian aliens. We do not find any authority (by treaty, statute or judicial opinion of the United States Supreme Court or Court of Appeals for the Fourth Circuit) holding that tribal criminal jurisdiction over non-Indian aliens is inconsistent with the status of Indian tribes as dependant sovereign nations. The Cherokee Nation had such jurisdiction in 1492; it has it today.
The facts of this case demonstrate the necessity of preserving the criminal jurisdiction of the Eastern Band of Cherokee Indians over non-Indian aliens of the United States in order to protect the safety, health, economic development, liberty and the general welfare of the Eastern Band of Cherokee Indians and all other people who live, work or visit on Tribal lands. The records of the Cherokee Court disclose that aliens of the United States are seeking and receiving the protection of the Cherokee Court in criminal cases arising on the Qualla Boundary against enrolled members of the Eastern Band of Cherokee Indians. To allow criminal jurisdiction when an alien is the victim and deny jurisdiction when an alien is the perpetrator, would indeed be inconsistent with the status of the Eastern Band of Cherokee Indians as a dependant sovereign nation.
This Court’s ruling today is in accord with the federal government’s current policy of self determination with the Indian tribes by seeking greater tribal autonomy within the framework of a “government to government relationship” with federal agencies. The present policy has a goal of decreasing tribal dependence on the federal government and the development of strong and stable tribal governments. See 25 U.S.C. Sec. 450 a(b). A contrary ruling would indeed serve to frustrate this national policy.
Further, the Court’s holding, and the federal policy of self-determination of Indian tribes, is consistent with and supported by established norms of customary international law. See The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900); International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, (2003) (citing Dudgeon v. United Kingdom, European Court of Human Rights); Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (Ginsberg, J, concurring); International Capital Law as an Interpretive Force in Federal Indian Law, 116 Harvard Law Rev. 1751, 1762 (2003); International Law and Domestic Courts: Enhancing Self–Determination for Indigenous People, 5 Harvard Human Rights J. 65, 68 (1992).
This ruling is also supported by the traditions, customs and culture of the Eastern Band of Cherokee Indians.
The order of the Cherokee Court denying defendant/appellant’s motion to dismiss is affirmed, and this case is remanded to the Cherokee Court.1
PHILO, J., concurring.
I concur in the majority opinion.
I recognize that Section 2(c) of Chapter 7 of the Cherokee Code states, “The Judicial Branch shall not have jurisdiction over matters in which the exercise of jurisdiction has been specifically prohibited by a binding decision of the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit or by an Act of Congress.” For the reasons stated below, I urge this Court to interpret the term “specifically” in its most literal sense. By that, I mean, to hold in future cases that the trial and appellate courts of the Eastern Band of Cherokee Indians have criminal jurisdiction over parties for acts committed on our reservation except in cases where the U.S. Supreme Court or the Fourth Circuit Court of Appeals have already ruled “specifically” that jurisdiction does not exist. In other words, the burden would be on the non-Indian claiming that jurisdiction does not exist because he or she is a non-Indian to raise the issue of whether the facts of his or her case are “on all fours” with a prior U.S. Supreme Court or a Fourth Circuit Court of Appeals case dealing with Indian tribes and personal jurisdiction. And I urge that no prior federal appellate ruling be expanded by this Court beyond the exact jurisdictional facts supporting that opinion, because to do otherwise aids in the perpetuation of the policy of the federal appellate courts in this country who continue to declare Indians and their court systems are separate but unequal.
While the statement has been made within Indian communities and at Indian gatherings, it is time to state to the world, “the emperor wears no clothes.” It is time to publicly expose the foundation of Indian law established in the United States by the Congress and the U.S. Supreme Court, And the purpose of such exposure and the purpose of speaking the truth is to convince the federal appellate courts, and specifically the U.S. Supreme Court, to reverse the law relative to criminal jurisdiction of Indian courts over all non-Indians on Indian reservations, or in the alternative to motivate Congress unequivocally to reverse the law.
The federal appellate opinions holding that Indian tribal courts may not try non-Indians for criminal acts committed on then reservations are founded on only two principles, and those two principles are:
1. Might makes right, and
2. Indians cannot be trusted to treat non-Indians fairly.
There is no need to review the methods used by the non-Indians of the United States to conquer the Indians and take their lands. Suffice it to say the conquerors continue to make the law. But, there is no justification for saying Indian courts cannot be fair to non-Indian criminal defendants, any more than there is justification for saying the courts of North Carolina cannot be fair to South Carolina residents charged with crimes for acts committed in North Carolina.
As long as the U.S. Supreme Court perpetuates its policies relative to Indian tribes having no criminal jurisdiction over non-Indians, and as long as federal courts camouflage this policy behind what appears to be scholarly reasoning, and as long as Congress stands by doing nothing to reverse this policy, then wrong will continue to triumph over right. The end result will continue to be a national policy of “separate but unequal,” for Indian tribes, and their courts.1 The rot of that policy as applied to Negroes was exposed in 1954 in Brown vs. Board of Education. (citations unnecessary). It is time to expose and eliminate that rot for Indians 50 years later.
Not Reported in Am. Tribal Law, 2005 WL 6437828, 4 Cher.Rep. 9
While it is the practice of this Court for justices writing separately, by concurrence or dissent, to use their choice of words, the majority strongly urges that the sentiments expressed in the concurrence are ill-suited and inappropriate as apart of this appeal.
The Federal Courts have taken a very condescending view of Courts of Indian Offenses. One Federal District Court viewed Courts of Indian Offenses as “mere educational and disciplinary instrumentalities by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian.” United States v. Clapox, 35 F. 575, 577 (D.Or.1888)