--- Am. Tribal Law ----, 2024 WL 4664429 (Fort Peck C.A.)
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Fort Peck Court of Appeals,
ASSINIBOINE AND SIOUX TRIBES.
FORT PECK INDIAN RESERVATION.
POPLAR, MONTANA.
 
Destinee Rowe, Petitioner
v.
Fort Peck Tribes, Fort Peck Tribal Jail Respondents.
 
CAUSE NO. AP # 852
|
October 31, 2024

Appeal from the Fort Peck Tribal Court, Stacie FourStar, Presiding Judge.

Before Justices E. Shanley and B.J. Jones.

 

ORDER DENYING APPEAL AND OR SUPERVISORY WRIT

Erin Shanley, Chief Justice

 

BACKGROUND

¶ 1 This matter comes before the Fort Peck Court of Appeals (FPCOA) on a notice of appeal and/or Petition for a Writ of Habeas Corpus filed by Petitioner on September 10, 2024. Petitioner alleges that the Tribal Court erred in denying her Petition for Writ of Habeas Corpus because she does not meet the federal common law test for an Indian and therefore the Tribal Court lacks criminal jurisdiction over her

¶2 Petitioner entered a plea of guilty at arraignment on August 23, 2024 and was sentenced to twenty-five (25) days incarceration. Subsequently, Petitioner filed a Petition for Writ of Habeas Corpus with the Tribal Court. At a hearing on September 6, 2024, the Tribal Court denied the Writ of Habeas Corpus based on evidence that Petitioner was eligible to be enrolled as an Associate Member of the Fort Peck Tribes and possibly other factors. However, Petitioner submits that the Court erred in its determination, as her eligibility for membership and prior convictions in Tribal Court are not sufficient to meet the federal common law test for Indian status.

 

STATEMENT OF JURISDICTION

¶ 3 The Fort Peck Appellate Court reviews final orders from the Fort Peck Tribal Court. 2 CCOJ § 202. The conditional plea preserving the probable cause determination of Indian status is a final order

 

STANDARD OF REVIEW

¶ 4 This Court reviews de novo all determinations of the lower court on matters of law. but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence. 2 CCOJ § 202.

 

ANALYSIS

¶ 5 This Court previously issued a decision in a similar case, Taypayosatum v. Fort Peck Tribes, APP 804 (December 2, 2022). In that case, the Petitioner also appealed the Tribal Court’s denial of a Petition for Writ of Habeas Corpus after pleading guilty to a crime and being sentenced. Here, as in Taypayosatum, the Petitioner has failed to file a motion to set aside her guilty plea, but instead filed a writ of habeas corpus with the lower court claiming the Tribal Court lacked jurisdiction because she is not Indian under 25 U.S.C. § 1301(4). In Taypayosatum and subsequently in Jackson v. Fort Peck Tribes, APP 868 (August 2024), this Court thoroughly explained the federal common law test to determine Indian status and the procedures necessary to challenge Indian status.

¶ 6 The federal common law test first established in U.S. v. Rogers, 45 U.S. 567 (1846) considers two factors: (1) the degree of Indian blood; and (2) tribal or government recognition as an Indian.” Id. The first factor of the test does not require Tribal enrollment, but the bigger issue here, as was encountered in Tayopayosatum, is that the Petitioner pled guilty, thereby admitting all elements of the offense, including her Indian status. When a Defendant knowingly and intelligently pleads guilty to an offense, she admits the elements of the offense and the factual basis for the criminal complaint. The Defendant is subsequently barred from bringing a habeas corpus action challenging an element of the offense. Tayopayosatum, at ¶ 5 (quoting Tolett v. Henderson, 411 U.S. 258 (1973). Rather, if as the Petitioner alleges, she did not knowingly or intelligently enter her plea of guilty she must move the lower Court to withdraw her guilty plea on that basis instead of attempting to Petition for a Writ of I Habeas Corpus challenging the elements of the offense to which she previously admitted by pleading guilty.

¶ 7 For these reasons, this Court finds that the Tribal Court did not err in denying the petition for writ of habeas corpus. By entering a plea of guilty, Petitioner admitted that she is Indian and subject to the jurisdiction of the Fort Peck Tribes.

 

ORDER

¶ 8 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court denies the appeal at this point as premature and denies review of the Petition for Writ of Habeas Corpus without prejudice to the right of the Petitioner to file an appropriate motion with the Tribal Court to set aside her guilty plea.

SO ORDERED the 31st day of October 2024.

FORT PECK COURT OF APPEALS

All Citations
--- Am. Tribal Law ----, 2024 WL 4664429