--- Am. Tribal Law ----, 2024 WL 2862464 (Eastern Cherokee Ct.)
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Cherokee Court of the Eastern Band of Cherokee Indians.
EASTERN BAND OF CHEROKEE INDIANS,
v.
MICHAEL JAMES JOHNSON, Defendant.
CASE NO.: 24CR9572
|
Dated: August 15, 2024
MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
MEMORANDUM OF DECISION AND ORDER
MONTY C. BECK Chief Judge
The matter currently before the Court is Defendant Michael James Johnson’s Motion to Dismiss for Lack of Jurisdiction, filed June 21, 2024. The Court held a hearing on the motion on July 2, 2024. Defendant was present and represented by counsel. The Eastern Band of Cherokee Indians (hereinafter “Tribe” or “EBCI”) was represented by the Senior Tribal Prosecutor. In the hearing, the parties verbally stipulated that the charge at issue here is currently being brought pursuant to the special Tribal criminal jurisdiction authorized under the covered crime of obstruction of justice.
The Court, having considered the motion, Defendant’s brief, arguments of counsel, the record in this case, and relevant law, denies Defendant’s motion for the reasons set forth herein.
I. BRIEF FACTUAL AND PROCEDURAL HISTORY
On June 1, 2024, Sergeant C. Owle of the Cherokee Indian Police Department (“CIPD”) filed the Criminal Complaint in 24CR9572, charging Defendant with Providing or possessing contraband in violation of C.C. § 14-70.18. Magistrate D. Wiggins thereafter found probable cause that on or about the offense date, and within the jurisdiction of the EBCI, Defendant committed the offenses charged in 24CR9570, 24CR9571, and 24CR9572. Warrant, WR24-9269.1 Magistrate Wiggins conducted Defendant’s Initial Appearance in accordance with Rule 6(b) of the Cherokee Rules of Criminal Procedure and determined that Defendant was a non-Indian, United States (“U.S.”) citizen charged with offense(s) that are Covered Crime(s) as defined in the Indian Civil Rights Act. Initial Determination of Jurisdiction and Habeas Form, 24CR9570, 24CR9571, 24CR9572. After being advised of his rights, see Ch. R. Crim. P. 6(b)(4), Defendant was notified in writing of the privilege to seek the writ of habeas corpus. Habeas Form. See Ch. R. Crim. P. 6(b)(4)(L) (right to file petition for habeas corpus in Cherokee Supreme Court and then to Federal Court under the procedures in the Indian Civil Rights Act). See also 25 U.S.C. §§ 1303, 1304(g).
Defendant, through counsel, filed a motion to dismiss in 24CR9572, arguing that the Court lacks criminal jurisdiction because the charged offense - on its face and as applied to Defendant - is not one of the covered crimes to which the EBCI could exercise special Tribal criminal jurisdiction over non-Indians pursuant to the Violence Against Women Reauthorization Act of 2022 (“VAWA 2022”), Pub. L. 117-103, div. W, title VIII, sec. 804, § 204, 136 Stat. 840, 898-904 (codified as amended within the Indian Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301-1304 (2022)).2 In response, the Tribe contends that there is proper criminal jurisdiction under the covered crime of obstruction of justice as the charged offense involves interfering with the administration or due process of the laws of the Tribe. No question or challenge was raised regarding the situs of the alleged crime, and no question or challenge was raised regarding Magistrate Wiggins’ initial determination that Defendant is a non-Indian, U.S. citizen.
II. QUESTION PRESENTED
Does the Cherokee Court have jurisdiction to try and punish the Defendant, a non-Indian, U.S. citizen, for the crime of Providing or possessing contraband in violation of C.C. § 14-70.18?
III. ANALYSIS
Tribal criminal jurisdiction, similar to the mercurial nature of federal Indian law and policy, does not exist within a vacuum; the jurisdictional framework flows in part from the plenary power of Congress to acknowledge, recognize, and affirm the inherent powers of Indian tribes.3 Jurisdiction in this case therefore involves consideration of the EBCI’s inherent sovereign power to prosecute individuals who commit crimes within the EBCI territorial jurisdiction: “[i]t touches on the Tribe’s ability to protect and seek justice for its tribal members.” Eastern Band of Cherokee Indians v. Jose Martinez, 15 Am. Tribal Law 45, 47 (E. Cherokee Sup. Ct. 2018). A complete analysis of the Tribe’s inherent sovereign powers involves interpreting the customs and traditions regarding jurisdiction,4 which derive in part from the Cherokee Nation and predate the official government-to-government relationship between the EBCI and the U.S. federal government.5 This analysis must also reference the broader historical, legal, and technical framework of federal Indian law which has evolved into the current jurisdictional authority affirmed under VAWA 2022.
A. BRIEF HISTORY OF CRIMINAL JURISDICTION OVER INDIAN COUNTRY
A complete history of criminal jurisdiction over Indian Country is beyond the scope of this order; the Court begins here with the confusing and impractical framework for criminal jurisdiction which arose in the nineteenth century, largely through Congress’s passage of the General Crimes Act, Act of Mar. 3,1817, 3 Stat. 383 (current version at 18 U.S.C. § 1152) and the Major Crimes Act, Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 362 (current version at 18 U.S.C. § 1153).6 The acts generally provide-for federal criminal jurisdiction over Indian Country, conditioned largely on “Indian” or “non-Indian” statuses of the persons involved as well as the types of crimes involved. The passage of the Major Crimes Act was later regarded as Congress’s “direct response” to a decision of the U.S. Supreme Court affirming tribal criminal jurisdiction.7 However, opinions of the U.S. Supreme Court at this time also held, even in the absence of congressional authorization, that states had criminal jurisdiction over crimes committed in Indian country by non-Indians against non-Indians.8 This jurisdictional framework has explicitly affected the EBCI and questions as to the sources and extent of jurisdiction over the territory of the EBCI culminated in the twentieth century. For example, the U.S. Supreme Court’s decision in United States v. John, 437 U.S. 634, 98 S.Ct. 2541 (1978) (holding that the Major Crimes Act provided exclusive federal criminal jurisdiction over Indians for specific offenses committed within Indian Country), was determined to be applicable to North Carolina and the EBCI by the North Carolina Attorney General and the U.S. Department of Interior. Res. No. 199 (1978). EBCI Tribal Council noted the “serious jurisdictional problems” which followed “from the disclaimer of jurisdiction by the State of North Carolina, and the unavailability of federal law enforcement personnel for the Cherokee Indian Reservation”. Res. No. 199 (1978). Tribal Council responded to the “serious jurisdictional problems” by initiating the process to establish a Court of Federal Regulations in Res. No. 200 (1978). As part of this action, Tribal Council stated that “it is the opinion of Tribal officials that law enforcement responsibilities will have to be assumed by the Tribe” for which “the proper enforcement of laws on the Reservation will require the establishment of a court system within the Reservation”. Res. No. 200 (1978).9
Following the foundation of the general federal framework for criminal jurisdiction, the twentieth-century U.S. Supreme Court turned to the inherent powers of tribal courts. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011 (1978), the U.S. Supreme Court decided the question of tribal courts’ inherent criminal jurisdiction based on the U.S. Supreme Court’s own past decisions involving lower federal courts as well as the policy of the Executive Branch and Congress; the former often involving colonialist or imperialist rhetoric,10 to the exclusion of documented tribal history.11 The U.S. Supreme Court held that Indian tribes were implicitly divested of aspects of sovereignty and do not have inherent power “to try non-Indian citizens of the United States except in a manner acceptable to Congress.” Oliphant, 435 U.S. at 210 (emphasis added). In Wheeler v. United States, 435 U.S. 313, 98 S.Ct. 1079 (1978), the U.S. Supreme Court held that Indian tribes had not been divested of the inherent sovereign power to punish its own members and therefore due to their status as a separate sovereign the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution does not bar prosecution of an Indian in federal court when the person has previously been prosecuted for a lesser included offense in tribal court. Inherent sovereign power was interpreted as “those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” Wheeler, 435 U.S. at 323. Contra Oliphant, 435 U.S. at 212 (Marshall, J., dissenting) (“I agree with the court below that the ‘power to preserve order on the reservation is a sine qua non of the sovereignty that the Suquamish originally possessed.’ In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation.”) (citation omitted). As part of its discussion of the separate sovereign status of Indian tribes and the federal government, the U.S. Supreme Court acknowledged in Wheeler that tribes “have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal custom and can differ greatly from our own.” 435 U.S. at 331-332 (citation omitted).
The U.S. Supreme Court in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2953 (1990), superseded by statute, Pub. L. No. 101-511, title VIII, sec. 8077(b), § 201(b), (c), 104 Stat. 1856, 1892 (codified as amended in ICRA, 25 U.S.C. § 1301(2) (1990)), held that tribes did not retain inherent sovereign power to prosecute a nonmember Indian. As explained by Justice Brennan in dissent, the U.S. Supreme Court’s decision “concedes that Indian tribes never expressly relinquished such power. Instead, the Court maintain[ed] that tribes implicitly surrendered the power”, 495 U.S. at 698 (emphasis in original), and partly rested on an overly broad reading of the holding in Oliphant that “tribes did not have the power to exercise criminal jurisdiction over non-Indians because such power was inconsistent with the overriding national interest.” Duro, 495 U.S. at 700 (emphasis in original). Congress responded by amending ICRA to clarify and affirm that powers of self-government also “means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians”. § 201(b), 104 Stat. at 1892 (codified as amended at 25 U.S.C. § 1301(2)). This amendment was later upheld as an adjustment of tribes’ inherent sovereign power and authority and was not a delegation of federal power. United States v. Lara, 541 U.S. 193, 197-210 (2004).
B. CRIMINAL JURISDICTION IN THE CHEROKEE COURT
The Cherokee Court derives its jurisdictional powers and authority through the EBCI’s inherent sovereignty. C.C. § 7-2(a) (“The jurisdiction of the Eastern Band of Cherokee Indians, including the Judicial Branch, extends to all persons, activities, and property within the territory of the Eastern Band based upon inherent territorial or popular sovereignty. The territory of the Eastern Band is comprised of all lands within the Qualla Boundary, all lands held by the United States for the benefit of the Eastern Band or any member of the Eastern Band, and all other lands acquired by the Eastern Band, notwithstanding the issuance of any right-of-way. ... Every person who enters the territory shall, by entering, be deemed to have consented to the jurisdiction of the Eastern Band of Cherokee Indians.”). In Section § 7-2(b) of the Cherokee Code, this Court was granted “original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Charter, laws, customs, and traditions of the Eastern Band of Cherokee Indians”. The Code defines the contours of this Court’s jurisdiction in C.C. § 7-2(c): “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.” (emphasis added). Accordingly, the Cherokee Supreme Court recognized 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.” Eastern Band of Cherokee Indians v. Torres, 4 Cher. Rep. 9, 11 (E. Cherokee Sup. Ct. 2005).
In Martinez, 15 Am. Tribal Law 45 (E. Cherokee Sup. Ct. 2018) (affirming the holding in Torres, 4 Cher. Rep. 9 (E. Cherokee Sup. Ct. 2005)), the Cherokee Supreme Court held that the Tribe could exercise criminal jurisdiction over non-Indian, non-U.S. citizens who committed crimes on Tribal lands. This jurisdiction is consistent with U.S. Supreme Court precedent, federal legislative actions concerning the ability of tribes to punish those who commit crimes within their borders, and the Tribe’s retained inherent authority to protect its members. Martinez, 15 Am. Tribal Law at 49-51. The Cherokee Supreme Court explained this exercise of tribal criminal jurisdiction in light of Oliphant:
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 dependent sovereign nations. ... [W]e 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 dependent sovereign nations. The Cherokee Nation had such jurisdiction in 1492; it has it today. ...
15 Am. Tribal Law at 49 (quoting Torres, 4 Cher. Rep. at 10-11). Generally, therefore, a criminal case is properly within the Court’s jurisdiction if a defendant is charged with having committed a crime over which the Cherokee Court has jurisdiction, and jurisdiction over the matter is not specifically prohibited.
C. SPECIAL TRIBAL CRIMINAL JURISDICTION
In 2013, Congress reaffirmed the inherent sovereign power of federally recognized Indian tribes to exercise special domestic violence jurisdiction. Violence Against Women Reauthorization Act of 2013 (“VAWA 2013”), Pub. L. No. 113-4, title IX, sec. 904, § 204, 127 Stat. 54, 120-23 (2013) (codified as amended within ICRA, 25 U.S.C. § 1304 (effective 2015)). Tribal Council “authorized the prosecution of non-Indians in the Cherokee Tribal Court under [VAWA 2013] when they enacted Tribal Council Resolution No. 526 (2015).” Martinez, 15 Am. Tribal Law at 50 fn.2. Under special domestic violence jurisdiction, the Tribe successfully prosecuted non-Indians in cases of domestic and dating violence and violations of protection orders.12 VAWA 2022 was signed into law by President Biden on March 15, 2022, and became effective for offenses committed within the territory of the EBCI on October 1, 2022.13 VAWA 2022 provided that “the powers of self-government” of an Indian tribe electing to exercise special Tribal criminal jurisdiction over the Indian country of that tribe, “include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special Tribal criminal jurisdiction over all persons.” 25 U.S.C. § 1304(b)(1) (emphasis added). The EBCI elected to exercise special Tribal criminal jurisdiction on September 1, 2022, and amended the Cherokee Code to “expand criminal jurisdiction over non-Indians in [sic] Cherokee Court in a manner consistent with the re-authorization of VAWA in 2022, to improve the safety and welfare of Tribal citizens.” Ord. 367 (2022).
Special Tribal criminal jurisdiction is the criminal jurisdiction which a tribe “may exercise under [25 U.S.C. § 1304] but could not otherwise exercise.” 25 U.S.C. § 1304(a)(14). In other words, special Tribal criminal jurisdiction exercised under 25 U.S.C. § 1304 is inherent criminal jurisdiction over a non-Indian, U.S. citizen in a manner acceptable to Congress. See Oliphant, 435 U.S. at 210. In 25 U.S.C. § 1304(c), under a subsection titled “Criminal conduct”, special Tribal criminal jurisdiction specifically connects criminal conduct which occurs within a tribe’s territorial jurisdiction to covered crimes. 25 U.S.C. § 1304(c) (“A participating tribe may exercise special Tribal criminal jurisdiction over a defendant for a covered crime that occurs in the Indian country of the participating tribe.”). Accord C.C. § 14-1.1 (“The following criminal offenses and penalties contained herein shall apply to all persons, natural or legal of any kind, over whom the Eastern Band of Cherokee Indians has criminal prosecutorial jurisdiction when such offenses occur within the territorial jurisdiction of the Eastern Band of Cherokee Indians.”). In 25 U.S.C. § 1304(a)(5), Congress explained that the meaning of “covered crime” embraces nine terms,14 which are each defined individually. See 25 U.S.C. § 1304(a).
The covered crime of obstruction of justice is set forth in 25 U.S.C. § 1304(a)(9).
The term ‘obstruction of justice’ means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that involves interfering with the administration or due process of the laws of the Indian tribe, including any Tribal criminal proceeding or investigation of a crime.
(emphasis added). A tribe however “may not exercise special Tribal criminal jurisdiction over an alleged offense, other than obstruction of justice or assault of Tribal justice personnel, if neither the defendant nor the alleged victim is an Indian.” 25 U.S.C. § 1304(b)(4)(A) (emphasis added). A tribe exercising special Tribal criminal jurisdiction is recognized to be acting pursuant to the tribe’s inherent sovereign powers. 25 U.S.C. § 1304(b)(1). Inherent powers are not created by the U.S. Constitution, federal treaties, or acts of Congress; rather they are powers which were always held by the tribe. See Lara, 541 U.S. at 197-208. See also 25 U.S.C. § 1301(2) (defining “powers of self-government”). It is in this sense that the terms “any violation of the criminal law of the Indian tribe” in 25 U.S.C. § 1304(a)(9) and “offense” in 25 U.S.C. § 1304(b)(4)(A) must be understood.
Tribal Council is empowered to adopt laws and regulations under Section 23 of the EBCI Charter and Governing Document (1986), and it is through this authority that offenses are proscribed within the Cherokee Code. Cf. Denezpi v. United States, 596 U.S. 591, 597, 142 S.Ct. 1838 (2022) (“An offense ... is ‘defined by law.’ And a law is defined by the sovereign that makes it, expressing the interests that the sovereign wishes to vindicate. Because the sovereign source of a law is an inherent and distinctive feature of the law itself, an offense defined by one sovereign is necessarily a different offense from that of another sovereign.”) (citations omitted). Therefore, in reading the statutory text and context, the plain meaning of the term “offense” in 25 U.S.C. § 1304(b)(4)(A) is understood to refer to an offense defined here by the Tribe (i.e., “any violation of the law of the Indian tribe”) which proscribes criminal conduct over which the exercise of special Tribal criminal jurisdiction is affirmed within 25 U.S.C. § 1304.
In Ordinance 367 (2022), Sec. § 14-1.1 of the Code - which sets forth the application of criminal offenses and penalties to persons subject to the criminal jurisdiction of the Cherokee Court - was amended in two relevant parts. First, the provision was amended to clarify the intent to exercise the Tribe’s criminal jurisdiction over all crimes committed within the Tribe’s territorial jurisdiction.
The following criminal offenses and penalties contained herein shall apply to all persons, natural or legal of any kind, over whom the Eastern Band of Cherokee Indians has criminal prosecutorial jurisdiction when such offenses occur within the territorial jurisdiction of the Eastern Band of Cherokee Indians. That territorial jurisdiction shall include all lands held in trust for the Eastern Band of Cherokee and all other lands owned by the Eastern Band of Cherokee.
C.C. § 14-1.1 (emphasis added). A sub-provision was then enacted to reference the Tribe’s election to exercise special Tribal criminal jurisdiction as codified within ICRA.
Beginning on October 1, 2022, the Tribe will exercise special tribal criminal jurisdiction for all offenses that are covered crimes as authorized in the Indian Civil Rights Act (25 U.S.C. § 1304). All criminal offenses included in C.C. Chapter 14 shall be considered covered crimes if they include any of the following types of criminal offenses: (A) assault of Tribal justice personnel; (B) child violence; (C) dating violence; (D) domestic violence; (E) obstruction of justice; (F) sexual violence; (G) sex trafficking; (H) stalking; or (I) a violation of a protection order.
C.C. § 14-1.1(a)(1). The Court determines that C.C. § 14-1.1. and C.C. § 14-1.1(a)(1) are consistent with the plain meaning of special Tribal criminal jurisdiction in 25 U.S.C. § 1304, such that jurisdiction is proper for all offenses which meet the necessary conduct identified in a covered crime and are authorized under 25 U.S.C. § 1304. The phrase within C.C. § 14-1.1(a)(1) that “[a]ll criminal offenses included in C.C. Chapter 14 shall be considered covered crimes if they include any of the following types of criminal offenses ...” is therefore understood within the context of the provision to mean that all criminal offenses shall be considered covered crimes if they include the conduct necessary for any of the following types of covered crimes as authorized in the Indian Civil Rights Act (25 U.S.C. § 1304). To interpret otherwise would require disregarding that “the Tribe will exercise special tribal criminal jurisdiction for all offenses that are covered crimes as authorized in the Indian Civil Rights Act (25 U.S.C. § 1304)”, C.C. § 14-1.1(a)(1) (emphasis added), as well as the mandatory language that the “[t]he following criminal offenses and penalties contained herein shall apply to all persons ... over whom the Eastern Band of Cherokee Indians has criminal prosecutorial jurisdiction when such offenses occur within the territorial jurisdiction of the Eastern Band of Cherokee Indians.” C.C. § 14-1.1 (emphasis added).
The Court must therefore look to the charged offense here to determine if the conduct “involves interfering with the administration or due process of the laws of the [EBCI], including any Tribal criminal proceeding or investigation of a crime.” 25 U.S.C. § 1304(a)(9) (emphasis added). See generally Kawashima v. Holder, 565 U.S. 478, 483-484, 132 S.Ct. 1166 (2012) (explaining that the scope of the statutory phrase “an offense that ... involves fraud or deceit ... is not limited to offenses that include fraud or deceit as formal elements” but “refers more broadly to offenses that ‘involve’ fraud or deceit - meaning offenses with elements that necessarily entail fraudulent or deceitful conduct.”).
D. APPLICATION TO THE CASE AT HAND
The Defendant here was charged with Providing or possessing contraband in violation of C.C. § 14-70.18. The charge arose following Defendant’s arrest for Violations of exclusion resolutions and orders, 24CR9570, and Resisting, delaying, or obstructing officers, 24CR9571, while Defendant was being administratively processed by the Cherokee Detention Center prior to Defendant’s initial appearance before a magistrate. See C.C. § 4-22 (how arrest is made); Ch. R. Crim. P. 6(a)(1).
In his motion, Defendant argues that the charge is not a covered crime, nor does it fall under special Tribal criminal jurisdiction and therefore the Court lacks jurisdiction. In his Brief in Support of Defendant’s Motion to Dismiss, Defendant argues that the “charge standing alone, on its face and as applied to this Defendant, does not meet the definition of ‘Obstruction of Justice’ from 25 U.S.C. 1304(a).” Def. Br. 2. The Court’s inquiry here is narrow to assess only whether the charged offense of Providing or possessing contraband in violation of C.C. § 14-70.18(b) is an offense which “involves interfering with the administration or due process of the laws of the” Tribe and not whether the alleged facts constitute such a violation. See e.g., United States v. Jabr, 4 F 4th 97, 102 (D.C. Cir. 2021) (“The jurisdictional inquiry, however, asks only whether the information alleges the violation of a federal crime, not whether the facts it alleges in fact constitute such a violation.”); United States v. Cotton, 535 U.S. 625, 630-631, 122 S.Ct. 1781 (2002) (holding that defects in an indictment do not deprive a court of its power to adjudicate a case).
The Criminal Complaint in 24CR9572 alleges in part as follows:
The defendant unlawfully as a person confined in a place of imprisonment, possessed an alcoholic beverage, controlled substance, dangerous weapon, as defined in section 14-34.10(b)(1), firearm, as defined in section 14-34.10(b)(2), implement of escape or any other thing or substance forbidden by the rules of the particular place of imprisonment.
Crim. Compl., 24CR9572. The offense of Providing or possessing contraband is set forth in C.C. § 14-70.18(b) as follows.
It shall be unlawful for any person confined in any place of imprisonment to possess any alcoholic beverage, controlled substance, dangerous weapon, as defined in section 14-34.10(b)(1), firearm, as defined in section 14-34.10(b)(2), implement of escape or any other thing or substance forbidden by the rules of the particular place of imprisonment.
Therefore, the Court turns next to the conduct of the charged offense.
The Criminal Complaint alleges that Defendant “unlawfully ... possessed an alcoholic beverage ... or any other thing or substance forbidden by the rules of the particular place of imprisonment.” Crim. Compl., 24CR9572 (emphasis added). The definition of “imprisonment” set forth in C.C. § 14-1.8 includes the “Cherokee Detention Center”.15 Detention is a Tribal law enforcement agency included within the Division of Law Enforcement, that “employs law enforcement officers to provide policing and law enforcement services.” C.C. §§ 4-2(b)b; 4-2(f). As noted by Tribal Council in Ordinance No. 549 (2023), “for decades, the Tribe has been providing policing and other law enforcement services under its inherent sovereign authority and as an important exercise of self-determination”. Indeed, as early as 1976, Tribal Council noted that “[t]he Eastern Band of Cherokee Indians has traditionally endorsed policies which are designed to expand and improve tribal law enforcement procedures,” and explained their “belie[f] that Law Enforcement Services represent a tribal priority”. Res. No. 173 (1976). Accordingly, in later ordinances Tribal Council explicitly tied the need of law enforcement to perform their duties with the criminalization of certain behavior “interfer[ing]” with law enforcement services.16 In Ordinance No. 428 (2014), Tribal Council noted that the Tribe had “constructed a detention facility on the Qualla Boundary”; that the Tribe’s criminal laws were “insufficient to properly address the unique issues created by the operation of a detention facility”; and therefore “[R]evisions and additions to the Criminal Laws of the Eastern Band of Cherokee Indians [were] necessary to protect the inmates and employees of such a facility and the public”. As part of Ordinance No. 428 (2014), C.C. § 14-70.18 was amended to modify the offense of providing contraband in (a) and add the offense of possessing contraband in (b), and the punishment set forth in (c) was amended as well.
At the hearing, Defendant argued that the only “investigation of a crime” ended at the time of his arrest for the offenses charged in 24CR9570 and 24CR9571, and consequently at the time of the alleged offense in 24CR9572 there was no ongoing investigation. Defendant’s argument effectively seeks to isolate detention from law enforcement services and place the context of C.C. § 14-70.18(b) outside of a violation of law that involves interfering with the administration or due process of the laws of the Tribe. However, it would conflict with the practical machinations of the criminal justice system for the Court to determine in effect that the door of the detention facility erects a barrier between an inmate and law enforcement and/or the inmate and the court. Generally, policing and other law enforcement services are “those services and activities conducted by law enforcement officers in the course and scope of their employment.” C.C. § 4-2(d). Detention officers are acting within the scope of their employment and addressing the unique issues faced in operating and maintaining safe facilities in regulating and searching for contraband, and the Court finds persuasive the numerous U.S. Supreme Court cases which “establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities.” Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328, 132 S.Ct. 1510 (2012) (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979); Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227 (1984); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984)). By possessing “an alcoholic beverage ... or any other thing or substance forbidden by the rules of the particular place of imprisonment ”, an inmate therefore is interfering with Detention officers’ administration of their duties to safely operate the Cherokee Detention Center and to protect the inmates, employees, and members of the public.
Detention of pre-trial defendants is also inextricably tied to the criminal proceeding. When a person charged with an offense is initially brought before the Court, the Court must consider whether the pre-trial release or pre-trial detention of that person is required based on the reasonable assurance that they will appear for the criminal trial or if their release will endanger the safety of any other person or the community. See C.C. § 15-11.6. In effectuation of an order to detain, or pursuant to the administrative booking process prior to an initial appearance before a magistrate, a thorough search is an important part of the intake process to ensure a safe detention facility, Florence, 566 U.S. at 330-331, and contraband is a direct threat. Id. at 332 (“Detecting contraband concealed by new detainees, furthermore, is a most serious responsibility. Weapons, drugs, and alcohol all disrupt the safe operation of a jail.”) (citation omitted). Threats to the safe operation of the Cherokee Detention Center disrupt and interfere with the timely administration of the criminal proceeding; the important government interests served by administrative police booking and detention procedures are carried through the criminal trial process. Maryland v. King, 569 U.S. 435, 456, 133 S.Ct. 1958 (2013) (“Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the ‘government interests underlying a station-house search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.’ ”) (quoting Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605 (1983)). Moreover, between January 1, 2020, and July 29, 2024, 112 charges were filed in the Cherokee Court for violations of C.C. § 14-70.18, many of which involved controlled substances.17
It would thusly be antithetical to the reaffirmation of special Tribal criminal jurisdiction to allow for Tribes to investigate, respond, prosecute, and imprison defendants and concomitantly determine that the Tribe has no power to punish violations of the type of regulations alleged to be involved here which are designed to ensure the safe operation of detention facilities. See e.g., Pyramid Lake Paiute Tribe v. Hernandez, 2006 WL 6358380, at * 3 (Nev. Inter-Tribal C.A. 2005) (discussing the evidence of the conviction for the offense of Obstructing or Interfering with Officers and noting that “[a]lthough [Appellant] may not have succeeded in ultimately preventing the officer from doing his duty, she did delay him and did interfere with the traffic stop. Her actions were essentially a challenge to the sovereign. The Pyramid Lake Paiute Tribe has the right to enact laws to maintain law and order and to authorize its police officers to enforce its laws. When the Appellant interfered with the officer in the performance of his duties, she challenged the Pyramid Lake Tribe’s police powers, which cannot and will not be permitted.”).
Therefore, the Court finds that the offense Providing or possessing contraband in C.C. § 14-70.18(b) under which Defendant is charged as having knowingly possessed contraband in the Cherokee Detention Center contrary to jail rules, is an offense that involves interfering with the administration or due process of the laws of the Tribe, and thus the Court has jurisdiction over the matter.
E. DEFENDANT’S ARGUMENTS
Defendant presents three main arguments as to why the Court should find that there is no special Tribal criminal jurisdiction over this matter: (1) special Tribal criminal jurisdiction under 25 U.S.C. § 1304 requires that defendants must be charged under an offense synonymous with the name or title of a covered crime; (2) the covered crime of obstruction of justice as defined in 25 U.S.C. § 1304(a)(9) requires either a pending Tribal criminal proceeding or pending investigation of a crime; and (3) special Tribal criminal jurisdiction here would violate Defendant’s substantive due process rights, and a narrow reading of special Tribal criminal jurisdiction is required by the rule of lenity. The Court addresses each of these arguments in turn.
1. Conduct identified in a “covered crime” does not require charging under a certain named offense or title.
Defendant argues that VAWA 2022 should be read by the Court as requiring defendants to be charged under the Cherokee Code with a named offense of “obstruction of justice”, and that despite C.C. § 14-70.18 being organized under an Article of the Code titled Perjury and Obstructing Justice, that alone is not sufficient. Defendant’s argument would require a strained reading of the plain language that “[t]he term ‘obstruction of justice’ means any violation of the criminal law ... that involves interfering ...”, 25 U.S.C. § 1304(a)(9) (emphasis added), and that “the Tribe will exercise special tribal criminal jurisdiction for all offenses that are covered crimes as authorized in the Indian Civil Rights Act (25 U.S.C. 1304).” C.C. § 14-1.1(a)(1) (emphasis added). This approach would also require a divesture of the very sovereign powers which VAWA 2022 reaffirms; a non-Indian defendant under VAWA 2022 is charged with a violation of the law of the Indian tribe, violations necessarily defined, codified, and enforced pursuant to a tribe’s inherent sovereignty and authority. The requirement that a violation of the criminal law of the Tribe incorporate federal or Anglo-American statutory or common law offenses; be labelled or named in a certain manner; or follow a specific organizational structure in the law are notably absent from the plain language of 25 U.S.C. § 1304, C.C. § 14-1.1, and Ordinance No. 367 (2022). Tribal and federal courts have previously declined to read the provisions in ICRA related to tribal criminal jurisdiction in the manner suggested by Defendant such that the jurisdictional rules in ICRA would pierce a tribe’s inherent powers of self-government. E.g., McCauley v. Pyramid Lake Paiute Tribe, 2005 WL 6344534 , at *4 (Nev. Inter-Tribal C.A. 2005) (noting that their conclusion that Indian status is a jurisdictional requirement and not an element of a criminal offense is shared by at least two other tribal courts and the courts of Nevada); Eagle v. Yerington Paiute Tribe, 603 F.3d 1161, 1164-65 (9th Cir. 2010) (concluding that the amendments in ICRA which reference the definition of “Indian” in the Major Crimes Act does not make Indian status an essential element of every tribal offense).
Defendant posits that the offense of Interference with a Criminal Process in C.C. § 14-70.17 should be instructive to defining obstruction of justice, and points to C.C. § 14-70.17(b) which states that “Obstructing justice shall be punishable ...” The inclusion of “Obstructing justice” in C.C. § 14-70.17(b) however is answered by the legislative history of Ordinance No. 367 (2022) which demonstrates that C.C. § 14.70-17 was amended to change the title of the offense from “Obstructing justice” to “Interference with a criminal process”. Therefore, the most likely explanation is that “Obstructing justice” in C.C. § 14-70.17(b) should have been amended to “Interfering with a criminal process” along with the offense title and should not be understood to deter from the clear direction in C.C. § 14-1.1(a)(1) that “all offenses” should otherwise be considered when determining whether there is special Tribal criminal jurisdiction over a covered crime. Ord. No. 367 (2022).
2. The covered crime of obstruction of justice does not require a pending Tribal criminal proceeding nor investigation.
Defendant argues that the Court should read the dependent clause within the definition of the covered crime of obstruction of justice to specify a limitation such that in order to interfere with the administration or due process of the laws of the EBCI, the act(s) or conduct must be taken in conjunction with a criminal proceeding or investigation of a crime. Such a grammatically frustrated reading would defeat the plain language and structure of 25 U.S.C. § 1304(a)(9). “The term ‘obstruction of justice’ means any violation ... that involves interfering with the administration or due process of the laws of the Indian tribe, including any Tribal criminal proceeding or investigation of a crime.” 25 U.S.C. § 1304(a)(9) (emphasis added). First, it is generally understood as a canon of statutory construction that “a definition which declares what a term ‘means’ usually excludes any meaning not stated.” 2A N. Singer, Sutherland Statutory Construction § 47:7 (7th ed. 2023) (internal citations omitted). Further, “[t]he term ‘includes’ is usually a term of enlargement, and not of limitation, and conveys the conclusion that there are other terms includable, though not specifically enumerated.” Id. (internal citations omitted). See also Merriam-Webster Dictionary (defining “include” or “including” to mean “to take in or comprise as a part of a whole or group”). Therefore, the use of the term “including” is plainly read as elucidating that conduct which involves interfering with “any Tribal criminal proceeding or investigation of a crime” falls within 25 U.S.C. § 1304(a)(9) and does not otherwise restrict or limit the context. This clarification effectively aids tribes and other stakeholders in approaching jurisdictional questions raised under 25 U.S.C. § 1304(a)(9) when, as explained above, the inquiry is based on determining whether the charged tribal offense involves the requisite conduct - even if the offense does not incorporate the labels of “obstruction of justice” or “administration or due of process of the laws”. Second, this interpretation is also supported by the commonsense understanding that “[i]ndividuals can obstruct the process of justice even when an investigation or proceeding is not pending.” Pugin v. Garland, 599 U.S. 600, 606, 143 S.Ct. 1833 (2023) (relying on dictionaries at the time of the 1996 enactment as well as federal laws, state laws, and the Model Penal Code in determining that an offense may relate to obstruction of justice even if the offense does not require that an investigation or proceeding be pending).
3. Defendant has failed to show a violation of due process.
The EBCI has adopted all protections of the Indian Civil Rights Act. As explained by the Cherokee Supreme Court, “[a]fter ICRA became law, Tribal Council incorporated its protections into the Cherokee Code in numerous places, clearly indicating that rights protected by ICRA would be recognized and protected by the EBCI tribal government.” Blankenship v. Eastern Band of Cherokee Indians, 16 Am. Tribal Law 30, 41 (E. Cherokee Sup. Ct. 2019) (citations omitted). ICRA, as adopted by Congress and incorporated into the Cherokee Code by Tribal Council, prohibits the deprivation of liberty without due process of law. 25 U.S.C. § 1302(a)(8).
Counsel’s oral and briefed arguments assert that C.C. § 14-1.1(a)(1) violates or offends principles of due process as a result of the lack of notice given to non-Indian defendants. In accordance with the protections in ICRA, and the protections afforded in the Tribal Law and Order Act, the Tribe’s criminal laws and the Cherokee Rules of Criminal Procedure are both publicly available.18 See 25 U.S.C. § 1302(c)(4). As explained above, C.C. § 14-1.1 directs that the criminal offenses and penalties “shall apply to all persons, natural or legal of any kind, over whom the Eastern Band of Cherokee Indians has criminal prosecutorial jurisdiction when such offenses occur within the territorial jurisdiction of the Eastern Band of Cherokee Indians.” The “Tribe will exercise special tribal criminal jurisdiction for all offenses that are covered crimes” and “[a]ll criminal offenses included in C.C. Chapter 14 shall be considered covered crimes if they include” the conduct necessary for any of the covered crimes as authorized in the Indian Civil Rights Act (25 U.S.C. § 1304). C.C. § 14-1.1(a)(1).
Generally, C.C. § 14-1.1(a)(1) clearly instructs that “all offenses” under Chapter 14 should be reviewed; a subsequent charge therefore is for the specific conduct proscribed in a criminal offense within Chapter 14 and a defendant is not being charged under C.C. § 14-1.1(a) or VAWA 2022. As to whether there is proper notice for purposes of due process, this requires a consideration of the Code provision which a defendant is charged as allegedly violating. See United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198 (1979) (“It is a fundamental tenet of due process that ‘no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.’ A criminal statute is therefore invalid if it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.’ ”) (citations omitted). The Court is not persuaded by the premise of Defendant’s argument that due process is offended because the prohibited conduct in a covered crime may be charged under different provisions within the Code. See generally Batchelder, 442 U.S. at 123 (“The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.”).
Second, Defendant offered no authority, and the Court finds no credence to the broad assertion that due process requires notice by a sovereign of the intent to exercise criminal jurisdiction only as to specific defendants for specific crimes and that the notice and scope of territorial and criminal jurisdiction and the proscribed criminal offenses are somehow otherwise deficient. Moreover, contrary to Defendant’s argument that the charge in 24CR9572 is essentially a charge for possessing controlled substances, the Criminal Complaint specifically charged Defendant with unlawfully “possess[ing] an alcoholic beverage ... or any other thing or substance forbidden by the rides of the” Cherokee Detention Center and charged that he did so willingly and knowingly. Crim. Compl., 24CR9572 (emphasis added).
As part of his argument as to the purported vagueness of C.C. § 14-1.1, Defendant argues that the principle of lenity requires more specificity so that Defendant has notice of when he would or would not be subject to the Tribe’s criminal jurisdiction. Since the meaning of C.C. § 14-1.1 is clear and unambiguous as discussed above, there is no need to apply the rule of lenity. Eastern Band of Cherokee Indians v. Long, 17 Am. Tribal Law 358, 363 (E. Cherokee Sup. Ct. 2023) (“When the statute is ambiguous, we use judicial construction to determine the legislative intent. We generally construe criminal statutes against the Tribe, as the rule of lenity requires us to strictly construe ambiguous criminal statutes. For the rule of lenity to apply, there must be more than one ‘plausible reading that comports with the legislative purpose in enacting [the statute].” ’) (citations omitted) (cleaned up).
F. CONCLUSION
As Defendant is charged with Providing or possessing contraband and that offense involves interfering with the administration or due process of the laws of the Tribe, the Court CONCLUDES that special Tribal criminal jurisdiction is proper over this matter.
ORDER
Based on the foregoing analysis, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss is DENIED.
All Citations
--- Am. Tribal Law ----, 2024 WL 3875029
Footnotes |
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Defendant has not challenged jurisdiction in 24CR9570 (charging violation of exclusion resolutions and orders) or 24CR9571 (charging resisting, delaying, or obstructing officers), and only brings his motion for 24CR9572. |
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This order refers to special Tribal criminal jurisdiction and covered crimes as being part of “VAWA 2022”. As the covered crimes were enacted within the reauthorization of VAWA, they are commonly referred to by their connection with VAWA 2022. |
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See e.g., United States v. Lara, 541 U.S. 193, 202, 124 S.Ct. 1628 (2004) (“Congress, with this Court’s approval, has interpreted the Constitution’s ‘plenary’ grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. ... [T]he Government’s Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. ... Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored ‘Indian removal,’ then ‘assimilation’ and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and ‘termination’ of recognized tribes); and it now seeks greater tribal autonomy within the framework of a ‘government-to-government relationship’ with federal agencies.”) (citations omitted); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670 (1978) (“Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.”) (citations omitted). |
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See Eastern Band of Cherokee Indians v. Cucumber, 3 Cher. Rep. 66, 67 (E. Cherokee Sup. Ct. 2003) (explaining the holding as also being supported by the customs and traditions of the Cherokee Nation, such that: “In terms of law, these customs and traditions form what may be referred to as the ‘Cherokee Common Law’.... This Cherokee Common Law continues in effect except as modified by the governing charter, tribal ordinances, or acts of the United States Congress and treaties.”). |
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The Indian Removal Act of 1830 caused a split of the Cherokee Nation; the EBCI is one of the three federally recognized Cherokee tribes and the only federally recognized tribe located within the geographical boundaries of the state of North Carolina. |
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See also 25 U.S.C. § 1301(4) (“ ‘Indian’ means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, if that person were to commit an offense listed in that section in Indian country to which that section applies.”). |
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In Keeble v. United States, 412 U.S. 205, 209-210, 93 S.Ct. 1993 (1973), the U.S. Supreme Court regarded the passage of the Major Crimes Act to be Congress’s “direct response” to the decision in Ex parte Kan-gi-shun-ca, 109 U.S. 556, 3 S.Ct. 396 (1883), which held that the federal court lacked criminal jurisdiction over the murder of an Indian committed by another Indian in Indian country and that “in the absence of explicit congressional direction,” proper jurisdiction was with the tribe. |
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The U.S. Supreme Court held in two cases that upon statehood, unless the enabling act admitting the state excluded state jurisdiction over crimes committed on tribal lands by or against non-Indians, then the state courts had criminal jurisdiction. United States v. McBratney, 104 U.S. 621 (1881) (holding that the state of Colorado had criminal jurisdiction over the murder of a non-Indian committed by a non-Indian on the Ute Reservation); Draper v. United States, 164 U.S. 240 (1896) (holding that Montana had criminal jurisdiction over the murder of a non-Indian committed by a non-Indian on the Crow Reservation). |
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The Cherokee Court in its current form was created through Tribal Council’s passage of Ordinance No. 29 (1999) on January 1, 2000. |
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See Johnson v. M’Intosh, 21 U.S. 543, 588-89 (1823) (Adopting the principle that “[c]onquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them.... The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it. Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits.”), cited in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209,98 S.Ct. 1011 (1978). But see Oklahoma v. Castro-Huerto, 142 S.Ct. 2486, 2505 (2022) (Gorsuch, J., dissenting) (noting the court’s decision in Worcester v. Georgia, 6 Pet. 515, 561, 8 L.Ed. 483 (1832) as “establish[ing] a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the ‘courts of the conqueror,’ the rule of law meant something.”) (quoting Johnson, 21 U.S. at 588). |
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The exercise of full criminal jurisdiction by the Cherokee Nation prior to Removal is found within historical records and is documented by scholars. E.g., J. Matthew Martin, The Nature and Extent of the Exercise of Criminal Jurisdiction by the Cherokee Supreme Court: 1823-1835,32(1) NORTH CAROLINA CENTRAL L.REV. 27 (2009). |
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This Court has consistently been among the first tribal courts to successfully implement measures to enhance and enforce criminal jurisdiction; “The EBCI was the second tribe to implement the enhanced sentencing authorized under [the Tribal Law and Order Act] in August 2012.” Martinez, 15 Am. Tribal Law at 50. |
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Sec. 4(a), 136 Stat. at 846 (effective date of October 1 of the first fiscal year beginning after March 15, 2022); C.C. § 14-1.1(a)(1) (“Beginning on October 1, 2022, the Tribe will exercise special tribal criminal jurisdiction for all offenses that are covered crimes as authorized in the Indian Civil Rights Act (25 U.S.C. § 1304).”). |
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25 U.S.C. § 1304(a)(5) provides that: The term “covered crime’ ” means -
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The Court takes judicial notice that the address alleged in the Criminal Complaint is the address of the Cherokee Detention Center. |
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Ordinance No. 406 (2002) amended C.C.§ 14-10.14 in part to add section (b) setting forth the crime of interfering with emergency communication. In the ordinance, Tribal Council noted that the Tribe “is dedicated to developing a strong program within its territorial jurisdiction to eradicate domestic and other forms of violence; and ... the injury of telephone wires and communication equipment and the interference with emergency communication is an extremely serious crime against society, the Tribe, and often, the family; and ... law enforcement needs the proper authority to immediately and effectively respond to these forms of violence”. Ord. No. 406 (2002). |
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The Court takes judicial notice of its own records. N.C. R. Evid. 201. See C.C. § 7-23(a) (adopting North Carolina Rules of Evidence as a matter of comity). See also State v. Thompson, 508 S.E.2d 277, 286 (N.C. 1998) (taking judicial notice of the facts established by the criminal courts’ public records and of matters of common and general knowledge). |
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The Cherokee Code is available online through Municode. The Cherokee Rules of Criminal Procedure are available as Appendix A to Chapter 15 of the Code. |
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