MARK A. MORENO, Magistrate Judge.
Steven Nichols, a non-Indian, was excluded from the Rosebud Sioux Indian Reservation. While his exclusion was in effect, he was seen driving on a public road within the reservation. Tribal officers stopped and detained him until an FBI agent arrived. The agent then arrested him for criminal trespass. Nichols claims that the tribe did not have the authority to ban him from using the road and that his federal trespass charge built upon a tribal writ and order of exclusion — should be dismissed. Because (1) there exists latent factual issues that require an evidentiary foundation, (2)there has been no exhaustion of tribal remedies or any showing that some exception to the exhaustion prescription applies, and (3) there is no ambiguity in the language of the revocation petition as amended, Nichols's dismissal motion must be denied, but without prejudice.
Nichols has been prosecuted and convicted on several prior occasions in federal court for assault and trespass violations that occurred on the Rosebud Reservation. His convictions were all for misdemeanor offenses that were committed over a two and-a-half year time period.
In April, 2011, Nichols pled guilty to assault by striking, beating and wounding a female tribal member. Two months later, he was given a six-month custody sentence.
On February 27, 2013, he was convicted of two counts of criminal trespass. He was thereafter sentenced to a 30-day custody term on Count I and one year of probation on Count II.
Within 10 months, Nichols was convicted, once again, of two counts of criminal trespass. He was given another six months in jail on one count and a year of probation on the other count.
In the signed factual basis statements that were filed and attested to under oath in both trespass cases, Nichols confirmed that:
At his December 13, 2013 plea and sentencing hearing, Nichols also admitted to violating his probation on the February 27 offense by illegally trespassing on the reservation. He received a sentence of 30 days incarceration and his probation was terminated.
On March 18, 2014, Nichols was charged with criminal trespass for a third time. But unlike the prior sets of charges (which involved trespasses onto lands owned by or held in trust for the tribe), the new trespass charge is based on him driving a motor vehicle on a public road within the exterior boundaries of the reservation.
The Government alleges that Nichols was operating a 1998 Pontiac Bonneville on BIA Route 5 near the Two Strike housing community, within Todd County, and on the reservation. A tribal officer observed Nichols's car cross the fog line several times. The officer also noticed that there were several children in the car and at least one of them did not have child restraints on. The officer stopped the car and identified the driver as Nichols, who the officer believed was not supposed to enter the reservation. Nichols was then detained pending confirmation that the writ and exclusion order was still valid. Because of his non-Indian status, the FBI was contacted. Later in the day, an FBI agent swore out a criminal complaint, traveled to the reservation, arrested Nichols and took him into federal custody on the complaint.
The following week, a petition was filed alleging that Nichols had violated his probation by being arrested and charged with criminal trespass and by entering the Rosebud Reservation. The petition was subsequently amended twice and now alleges that he engaged in conduct that constitutes a federal law violation, namely, criminal trespass, and that he breached one of his special conditions by entering the reservation. After denying the original allegations and requesting a revocation hearing, he filed a motion to dismiss the case. In his motion, he claims that the tribe did not have the authority to exclude him from driving on a public road within the reservation, and that because of this, he did not engage in or commit a criminal trespass. He also claims that the language used in the petition to describe his non-compliant behavior is ambiguous and requires dismissal of the petition under the rule of lenity. The Government resists the motion, arguing that the tribal court and council had the power to keep him from entering or remaining within the boundaries of the reservation — including public roads running through it — and that he can be held criminally accountable as a trespasser in federal court. The Government likewise insists that the petition adequately informs him of the alleged probation violations.
Several issues are presented by Nichols's dismissal motion: (1) Is his claim a legal issue that the Court can decide prior to the revocation hearing or should the claim be addressed after the evidentiary portions of the hearing; (2) Is Nichols, in this probation revocation proceeding, entitled to collaterally attack the tribal writ and exclusion order; " and (3) If so, must he first exhaust his tribal court remedies.
At the outset, the Court is authorized to preside over the adjudicatory and dispositional facets of this revocation case. Under federal law, a magistrate judge has authority to conduct a probation revocation hearing when: (1) the defendant's probation was imposed for a misdemeanor; (2) the defendant consented to trial, judgment and sentence by a magistrate judge; and (3) the defendant initially was sentenced by a magistrate judge.
All three of these conditions have been satisfied here. Nichols's probation was for a Class A misdemeanor. He consented in writing to trial, judgment and sentence before the Court. And the Court ultimately imposed the probation sentence which the Government now seeks to revoke. The Court, therefore, is fully empowered to take up and adjudicate the motion to dismiss.
Nichols and the Government seemingly agree that the issues presented in the motion to dismiss are purely legal ones that the Court can pass on before trial. The Court, however, is not so convinced. The "facts" and circumstances recited, even if true, raise evidentiary questions that have a direct bearing on the merits of Nichols's motion and his status as an alleged probation violator. These issues include the following factual matters:
The second amended petition alleges the same law violation Nichols is charged with in his pending criminal case — criminal trespass — and continues to allege that he did not follow the special condition barring him entering, or remaining on, the Rosebud Reservation. This petition, on its face, sets forth colorable grounds for a probation violation and is presumed to be valid. The Government is thus entitled to present its evidence at a revocation hearing and have the same tested by a dismissal motion at the close of the Government's case and after both parties have rested. Evidentiary questions go to the "general issue" of revocation and should be determined at the hearing and not in a dismissal motion filed beforehand. Because there is no explicit authority for the Court to employ a kind of "criminal summary judgment procedure" to dismiss the revocation petition, Nichols's motion should be denied, without prejudice.
Nichols acknowledges that he cannot collaterally attack the substantive merits of the underlying tribal writ and exclusion order.
Whether a tribe has adjudicative authority — authority which cannot exceed the tribe's legislative jurisdiction — over nonmembers is a federal question.
For almost two centuries, Indian tribes have been recognized as "distinct, independent political communities"
As part of their residual sovereignty, tribes retain the inherent power to exclude outsiders from tribal territory.
But, as a general matter, tribes do not possess authority over non-Indians who come within their borders: "[TJhe inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe."
This general rule restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when these activities occur on non-Indian land.
Once tribal land has been transferred or conveyed to a non-Indian, the tribe loses any right of absolute and exclusive use and occupation of the land as well as regulatory jurisdiction over another's use of it.
Indian tribes though may exercise "civil jurisdiction over non-Indians on their reservations, even on non-Indian land, in two limited circumstances."
In Nichols's case, whether the tribal court and council had the civil authority to exclude and thus had personal jurisdiction over him is a federal question. Even so, principles of comity require that the Court stay its hand and allow the tribal courts the opportunity to initially pass on the jurisdictional question.
What this means, is that at a minimum, the tribe and its courts — including appellate courts — must have the opportunity to review the validity of the writ and exclusion order now under attack.
Nichols does not cite to either of the Montana exceptions. Nor does he acknowledge the need for tribal exhaustion or argue that there is any exception to it
Nichols is the moving party who seeks to dismiss the revocation petition. He therefore has the burden to show that the underlying tribal writ and order, excluding him from the Rosebud Reservation, was void for lack of personal jurisdiction.
Just because Nichols was traveling on a public road does not mean he is immune from tribal authority. The road he was on and the sites of the stop were within the exterior boundaries of the Rosebud Reservation and in "Indian country" as defined by federal law.
Apart from this, Nichols appears to have had, and maintained, a consensual relationship with a female tribal member.
Regardless of what the cognizable source is for granting or prohibiting the tribe's authority over him, the law is clear that Nichols is required to first raise his personal jurisdiction challenge in tribal court and allow the Rosebud courts the chance to determine tribal jurisdiction.
Nichols complains that the violation conduct, set forth in the revocation petition, is ambiguously written. But any alleged ambiguity was cured by the subsequent amendment of the petition. The second amended petition explicitly describes the charges and the circumstances surrounding them.
Potential factual questions exist, in need of further evidentiary development, that are relevant to a decision on the merits of Nichols's motion to dismiss. These questions are intertwined with and not segregable from the authority and jurisdictional issues he raises in his motion.
What's more, the Rosebud Tribe's authority to regulate Nichols and its personal jurisdiction (or lack thereof) over him are issues which first must be dealt with in tribal court. He has failed to carry his burden of demonstrating that the tribe lacked authority or jurisdiction to exclude him from the public road he was stopped and detained on or otherwise. He has also failed to exhaust his remedies in tribal court and has not pointed to any exception to the exhaustion requirement that applies to his case.
Finally, whatever ambiguities may have existed in the way the revocation petition was initially pled have been taken care of through later amendments. The petition, as it now reads, adequately describes Nichols's alleged non-compliant behavior and is not at all confusing even when read in conjunction with, and in light of, the banishment condition of his probation sentence.
In accordance with the discussion in this opinion and the record as it currently stands, Nichols's motion shall be and is denied, without prejudice.
