Petition — Davis v. Muellar

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Office-Supreme Court, U.S.

Fi: ED

80-2099 JUN 11. 1981

ALEXANDER L. STEVAS,

CLERK

No. 80- —

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

THOMAS D. DAVIS, Petitioner,

BRYANT MUELLAR, Sheriff of Rolette

County, North Dakota, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

Timothy Allan LaFrance,

Counsel of Record

Colorado Rural Legal Services

Box 1408

Durango, Colorado 81301

Telephone: 303/259-0392

Richard B. Collins

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

June 1981 Telephone: 303/447-8760

Counsel for Petitioner

No. 80-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

THOMAS D. DAVIS, Petitioner,

V-

BRYANT MUELLAR, Sheriff of Rolette

County, North Dakota, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

Timothy Allan LaFrance,

Counsel of Record

Colorado Rural Legal Services

Box 1408

Durango, Colorado 81301

Telephone: 303/259-0392

Richard B. Collins

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

June 1981 Telephone: 303/447-8760

Counsel for Petitioner

QUESTIONS PRESENTED

1. Does the arrest of an Indian

within his tribe's reservation by State

officers who knowingly violate the tribe's

extradition law contravene federal laws

protecting tribal self-government?

2. Does a federal district court

have habeas corpus jurisdiction to review

an Indian's claim of illegal State arrest

in Indian country prior to State court

trial?

a. Does exhaustion of State pre-

trial remedies comply with the ex-

haustion requirement of 28 U.S.C.

§ 2254?

‘b. Is exhaustion required in the

special circumstances of this case?

3. When a State has obtained custody

of an Indian by an illegal arrest in Indian

country, and his tribe obje: :s to the

arrest, may a federal district court re-

lease him on habeas corpus until the State

complies with the tribe's extradition law?

CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

The Arrest Was Illegal

The Decision Below Con-

flicts With Prior Decisions

of this Court, of Other

Courts of Appeals, and of

the Supreme Court of New

Mexico.

1. Jurisdiction

2. Remedy

The Decision Below Raises

Important and Recurring

Problems of Tribal and

State Jurisdiction Not Yet

Addressed by This Court.

CONCLUSION

APPENDIX

iii

TABLE OF AUTHORITIES

Cases - Page

Arizona ex rel. Merrill v.

Turtle, 413 F.2d 683 (9th Cir.

1969), cert. denied, 396 U.S.

1003 10,11

Benally v. Marcum, 89 N.M. 463,

553 P.2da 1270 (1976) 10,13,15,17

Davis v. O'Keefe, 283 N.W.2d 73

(N.D. 1979) 9

Fisher v. District Court, 424

U.S. 382 (1976) 10

Frisbie v. Collins, 342 U.S.

519 (1952) 14,15

Government of Virgin Islands

v. Ortiz, 427 F.2d 1043

(3d Cir. 1970) 17

Kennerly v. District Court,

400 U.S. 423 (1971) 10

Montana v. United States,

U.S. (No. 79-1128,

March 24, 1981) 19

United States v. Kagama, 118 U.S.

375 (1886) 10

United States v. Lira, 515 F.2d

68 (2d Cir. 1975),cert. denied.,

423 U.S. 847 (same) 16

United States v. Mazurie, 419

U.S. 544 (1975) 18

TABLE OF AUTHORITIES (continued)

Cases

United States v. Toscanino, 500

F.2d 267 (2d Cir. 1974)

United States ex rel. Lujan v.

Gengler, 510 F.2d 62 (2d Cir.

1975), cert. denied, 421 U.S.

1001

Williams v. Lee, 358 U.S. 217

(1959)

Younger v. Harris, 401 U.S. 37

(1971)

Statutes

28 U.S.C. §2241(c) (3)

28 U.S.C. §2254

28 U.S.C. §2254 (b)

28 U.S.C. §2251

N.Dak. Cent. C. § 12.1-17-04

Turtle Mountain Tribal Code

§ 1.0710

Other Authorities

C. Kappler, Indian Affairs: Laws

and Treaties

Page

16,17

3,8

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner Thomas D. Davis respect-

fully prays that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals for

the Eighth Circuit entered in this pro-

ceeding on March 6, 1981.

OPINIONS BELOW

The opinion of the Court of Appeals

is reported at 643 F.2d 521 (8th Cir.

1981). The opinion of the District

Court is reported at 481 F.Supp. 888

(D.N.D. 1979). Both are reproduced in

the appendix below.

JURISDICTION

The judgment of the Court of Appeals

was entered on March 6, 1981. A timely

petition for rehearing was denied on

April 3, 1981, and this petition for

certiorari is filed within 90 days of

that date. The Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

28 U.S.C. § 2241

not extend to a prisoner unless -

(3) He is in custody in violation

of the Constitution or laws or treaties

of the United States;

28 U.S.C. § 2254

(b) An application for a writ of

habeas corpus in behalf of a person in

custody pursuant to the judgment of a

State court shall not be granted unless

it appears that the applicant has ex-

hausted the remedies available in the

courts of the State, or that there is ei-

ther an absence of available State correc-

tive process or the existence of circum-

stances rendering such process ineffective

to protect the rights of the prisoner.

Turtle Mountain Tribal Code § 1.0710

Extradition.

Any Indian found within the bound-

aries of the Turtle Mountain Indian Reser-

vation who is wanted by State authorities

for a violation of State law committed

outside the jurisdiction of the Turtle

Mountain Tribal Court, and a warrant of

arrest having been issued from a State

Court, may be arrested and taken into

custody by Bureau of Indian Affairs or

Tribal law enforcement personnel for

prompt transfer to the appropriate en-

forcement agency. The arrest and removal

of the fugitive will be accomplished in

accordance with the procedure set forth

herein: Copies of State warrants may be

presented to the Agency Branch of Law and

Order whereupon they will be recorded as

to date and time received. The warrant

will be promptly presented to the Tribal

or Trial Court Judge of the Turtle Moun-

tain Tribal Court for a review as to date,

charge, and person named thereon, to de-

termine its apparent validity. The Judge,

after satisfying himself or herself as to

the apparent validity of the warrant,

will issue an order for the arrest of the

alleged fugitive from justice.

All Indians being taken into custody

as provided in the preceding paragraph

shall be taken by the police officer to

the Turtle Mountain Tribal Court where

the Judge shall hold a hearing to deter-

mine only whether the Indian person in

custody and before the Court is the same

person charged on the face of the warrant.

An Indian may waive such hearing by ex-

ecuting a waiver of removal hearing and

he will be promptly turned over to the

custody of the appropriate State official.

Where a State warrant is issued from a

State other than the State wherein the

Indian Court is located, the warrant

should be presented to the Tribal Court

by the Sheriff of the County in which

the reservation is located. Upon as-

surance by the local sheriff that the

out-of-state agency will extradite the

wanted subject, the procedure govern-

ing the arrest of the wanted fugitive

may be completed as in other cases.

After a hearing, as provided in para-

graph (2) above, if the Judge is satis-

fied the fugitive is the same person

named in the State warrant, the Judge

shall issue an appropriate order to

tnat effect which will authorize the

State official to remove the fugitive

from the Turtle Mountain Indian Reser-

vation. In all cases wherein Indians

are arrested by reservation law and

order personnel the requesting agency

supplying the warrant shall be imme-

diately notifed that the subject is

in custody and will be delivered to

a proper official within a reasonable

time to transfer the fugitive to

their particular jurisdiction.

STATEMENT OF THE CASE

Petitioner Davis seeks release by

habeas corpus from custody of respondent

Sheriff of Rolette County, North Dakota,

until the sheriff complies with the ex-

tradition law of the Turtle Mountain Band

of Chippewa Indians. Federal laws pro-

tecting tribal self-government and the

federal habeas corpus statutes are the

bases for petitioner's claim of federal

jurisdiction.

Petitioner is an enrolled member of

the Turtle Mountain Band of Chippewa In-

dians, a federally-recognized tribe orga-

nized under a tribal constitution and laws

approved by the Secretary of the Interior.

The tribe's home is the Turtle Mountain

Indian Reservation in Rolette County,

North Dakota. -

On October 9, 1978, Davis allegedly

made a threatening telephone call to

Kim Albert concerning an incident in

which Albert had struck Davis's wife.

Albert received the call in Rolla, out-

side the Turtle Mountain Reservation.

A. p. A5 n.2. The next day Davis was

arrested without a warrant by a Rolette

County Deputy Sheriff and charged with

terrorizing under North Dakcta law. N.Dak.

Cent. C. § 12.1-17-04. The arrest occur-

red within the Turtle Mountain Reservation,

Davis requested an extradition hearing

under tribal law, and he refused to waive

I7 The Reservation is set aside

under Executive Orders, agreement, and

federal statute. See C. Kappler, Indian

Affairs: Laws and Treaties vol. l, p. 885,

vol. 3, p. 39 (GPO).

extradition. Rolette County officers

nevertheless took Davis into custody

"even though they were aware of the require-

ments of the extradition ordinance.” A.

p. ac. 2/

Davis was held until later that day,

when his wife posted bond at the Rolette

County Sheriff's Office in Rolla. The

terms of his bond require him to appear

in the State courts.

In four separate appearances, Davis

made his claim of unlawful arrest in

violation of tribal extradition law to the

North Dakota courts. The North Dakota

Supreme Court denied a writ of prohibition,

“noting that prohibition is granted only

sparingly and only where there is no

27 The Turtle Mountain extradition

law is quoted above at page 3. It was

approved by the Interior Department in

1967. The law provides for arrest by tribal

or federal officers after State officials

present an arrest warrant and a judicial

hearing as conditions precedent to State

custody. Turtle Mountain Code § 1.0710.

adequate remedy by appeal" and ‘[w] ithout

reaching the lawfulness of the arrest."

A. pp. A8-A9, citing Davis v. O'Keefe,

283 N.W.2d 73, 76 (N.D. 1979). The

present federal action was then filed.

The District Court denied the petition

on December 27, 1979. A. pp. A55-A68.

The Eighth Circuit affirmed on March 6,

1981, Judge McMillian dissenting. A. pp.

Al-A54. The Turtle Mountain Band appear-

ed as amicus cy ‘iae in support of petitioner.

A. pe Al4. The court held that there was

no federal court jurisdiction prior to

State court trial, or in the alternative,

habeas corpus relief is unavailable to an

Indian in State custody under an unlawful

arrest. —

37 The courts below have stayed the

State court prosecution pending final res-

Olution of this action. See 28 U.S.C. §

2251. The stay now in effect was issued

by the Court of Appeals on April 17, 1981.

It expires upon final action by this Court.

REASONS FOR GRANTING THE WRIT

A. The Arrest Was Illegal.

The court below correctly assumed that

Davis's seizure was illegal u.der federal

laws protecting tribal self-government.

A. pp. Al4-Al7. See A45-A53 (dissenting

opinion). States must comply with tribal

of Indians

extradition laws when seeking the arrest,in

Indian country. Arizona ex rel. Merrill v.

Turtle, 413 F.2d 683 (9th Cir. 1969), cert.

denied, 396 U.S. 1003; Benally v. Marcun,

89 N.M. 463, 553 P.2d 1270 (1976). These

holdings are consistent with this Court's

decisions protecting tribal self-government.

See Fisher v. District Court, 424 U.S. 382

(1976); Kennerly v. District Court, 400 U.S.

423 (1971); Williams v. Lee, 358 U.S. 217

(1959); United States v. Kagama, 118 U.S.

375 (1886).

B. The Decision Below Conflicts

With Prior Decisions of this

Court, of Other Courts of

Appeals, and of the Supreme

Court of New Mexico.

1. Jurisdiction. The court below

held that there is no federal court ju-

risdiction to review the illegality of

an Indian's seizure in Indian country

prior to State court trial. This holding

is directly contrary to the decision in

Arizona ex rel. Merrill v. Turtle, supra.

In Turtle, Oklahoma had sought extradition

of an Indian residing within the Navajo

Indian Reservation in Arizona. An Arizona

sheriff arrested Turtle in violation of

the Navajo extradition law. The Ninth

Circuit sustained the district court's

grant of release on habeas corpus based

on interference with tribal self-govern-

ment, holding that control of extradition

is “essential to the Navajos' self-govern-

ment.” 413 F.2d at 685-86.

The majority opinion below attempted

to distinguish Turtle because there the

demanding State had not yet obtained cus-

tody. A. pp. Al6-Al7. The opinion also

said that the issue must be postponed

until Davis's state trial has been com-

pleted. A. pp. A9-Al8. Neither point

makes sense. Testing the validity of an

arrest after trial is either futile,

because "A conviction is rarely over-

turned on the ground of unlawfulness of

the arrest", A. p. Al2 n. 7, or wasteful,

because the expense and time of a trial

have already been sustained and jeopardy

has attached. See part B2 infra. As

the dissent noted, the purpose of an

extradition law "to permit limited in-

quiries by the asylum jurisdiction...

prior to releasing custody of the fugitive"

would be defeated if triba), extradition

laws were considered aftex State trial.

"The tribal extradition process would be

meaningless, and the Turtle Mountain Band

would have no adequate remedy." A. pp.

A26-A28 (dissenting opinion). If there

is federal jurisdiction to release Davis

at any time based on his illegal arrest,

the most efficient time for everyone -

including the State - is prior to trial.

In Benally v. Marcum, supra, the New

Mexico Supreme Court ordered the release

on habeas corpus of an Indian arrested

within the Navajo Reservation by State

officers. The court sustained release

based on interference with tribal self-

government until the State officers

complied with the Navajo extradition law.

While federal court jurisdiction was not

at issue, the court recognized the sense

of determining this issue prior to trial.

Insofar as the decision below rests

on the exhaustion requirement of 28 U.S.C.

§ 2254, it also conflicts with this

Court's holding in Frisbie v. Collins,

342 U.S. 519 (1952) (discussed further

under B.2 infra). There the Court held

that illegal arrest and removal to a

prosecuting jurisdiction constituted

"special circumstances" justifying federal

court review without exhaustion of State

court remedies. Both in Frisbie and in

Turtle, supra, no submission had been

made to the State courts. By contrast

petitioner Davis has fully exhausted

State pre-trial remedies. A. pp. A7-A9. 4

Hence, the conclusion of the court

below that it lacked jurisdiction prior

to State trial conflicts with this Court's

47 The Court below also relied on

this Court's decision in Younger v. Harris,

401 U.S. 37 (1971). This reliance was

misplaced. Younger was based on the con-

stitutional responsibility of State courts

in cases wholly within State territorial

authority. By contrast, Indian country is

a place under special federal authority and

protection.

holding in Frisbie and with the other

cases cited.

2. Remedy. The court below held

that even if it had subject matter ju-

risdiction and the arrest was illegal, it

could not order Davis's release because

the North Dakota sheriff could maintain

custody over a defendant seized unlaw-

fully under the rule of Frisbie v. Collins,

Supra. A. pp. Al8-A22. In Frisbie, after

sustaining federal court jurisdiction, the

Court held that defendant's allegation

that he had been illegally arrested in

Illinois and brought to Michigan was not

a basis for habeas corpus release.

The reliance on Frisbie by the court

below is contrary to the holding of the

New Mexico Supreme Court in Benally v.

Marcum, supra. That Court held that

Frisbie should not be applied to violation

of a tribal extradition law by State

officers and that defendant's right to

due process of law would be violated by

trial based on illegal seizure and re-

moval from the reservation. See also

the dissenting opinion in the court below.

A. pp. A29-A54.

Reliance on Frisbie is also in con-

flict with the Second Circuit's rule that

Frisbie does not apply when the asylum

jurisdiction objects to the seizure.

United States v. Toscanino, 500 F.2d 267,

270 (2d Cir. 1974). See United States

ex rel. Lujan v. Gengler, 510 F.2d 62,

67-68 (2d Cir. 1975), cert. denied, 421

U.S. 1001 (Toscanino distinguished on

this ground); United States v. Lira, 515

F.2d 68, 71-72 (2d Cir. 1975) cert. denied.

423 U.S. 847 (same); dissenting opinion

below, A. pp. A53-A54. As previously

noted, the Turtle Mountain Band has

objected to Davis's seizure,

Frisbie and decisions following it

mostly are post-trial attempts to over-

turn a conviction, after jeopardy has

attached and both parties have sustained

the full expense of a trial. This again

demonstrates that the sensible time to

determine this issue is prior to trial.

After trial the tribe's interest in the

integrity of its processes will be

thwarted by an acquittal or prejudiced by

the reliance interest of the State in

sustaining its conviction.

Furthermore, Frisbie has been severly

criticized as inconsistent with modern

concepts of due process of law. ° It

should not be extended to preclude mean-

ingful protection of tribal self-govern-

ment. Therefore, application of the

57 See Government of Virgin Islands

v. Ortiz, 427 F.2d 1043, 1045 n. 2 (3d

Cir. 1970) and authorities cited. See

also United States v. Toscanino, supra;

Benally v. Marcum, supra.

Frisbie rule by the court below conflicts

with decisions of the Second Circuit and

of the Supreme Court of New Mexico.

C. The Decision Below Raises

Important and Recurring

Problems of Tribal and

State Jurisdiction Not Yet

Addressed by This Court.

Many Indian tribes have adopted ex-

tradition laws that have been approved

by the United States Department of Interior.

Tribal extradition laws are derived from

the sovereignty of Indian tribes “over

both their members and their territory".

United States v. Mazurie, 419 U.S. 544,

557 (1975).

The decision below raises serious

questions about tribal authority to adopt

and enforce extradition laws. The decision

would apparently permit state officials

completely to ignore tribal extradition

laws and to arrest and take into custody

an Indian at any time and place on the

reservation (including tribal offices).

Also, when a protest by the Indian tribe

involved on behalf of its tribal member

(as in this case) does not effect the

release of the tribal member or compliance

with the extradition law, tribal extra-

dition laws are rendered meaningless and

useless,

The lawless State conduct here

threatens and has a direct effect on the

political integrity of the tribe. See

Montana v. United States, _—»s U.S.

(No, 79-1128, March 24, 1981) (slip op.

at 20). As successful law enforcement on

the reservation requires close cooperation

among all law enforcement agencies, this

Court should review the decision below

to protect tribal government and promote

harmony in reservation law enforcement.

CONCLUSION

For the reasons stated, the Court

is respectfully requested to grant a writ

of certiorari to review the decision be-

low.

June 1981

Respectfully submitted,

Timothy Allan LaFrance,

Counsel of Record

Colorado Rural Legal

Services

Box 1408

Durango, Colorado 81301

Telephone: 303/259-0392

Richard B. Collins

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Telephone: 303/447-8760

Counsel for Petitioner

APPENDIX

Contents

Court of Appeals Majority

Opinion

Court of Appeals Dissenting

Opinion

District Court Opinion

Court of Appeals Order

Denying Rehearing

A22

AS5

A69

APPENDIX

Opinions Below

Thomas D. DAVIS, Appellant,

Vv.

Bryant MUELLAR, as Sheriff of Rolette

County, North Dakota, Appellee.

No. 80-1082.

United States Court of Appeals,

Eighth Circuit.

Submitted March 14, 1980.

Decided March 6, 1981

Before HENLEY and McMILLIAN, Circuit

Judges, and HARPER, Senior District Judge.

HENLEY, Circuit Judge

Thomas D. Davis appeals the district

court order, 481 F.Supp. 888, denying his

petition for a pretrial writ of habeas

corpus, 28 U.S.C. § 2241(c)(3), by which

he sought release from North Dakota state

* The Honorable Roy W. Harper, United

States Senior District Judge for the East-

ern and Western Districts of Missouri,

sitting by designation.

custody on grounds that his arrest and

state custody were, and are, in violation

of a tribal extradition ordinance. We

affirm.

Davis is an enrolled member of the

Turtle Mountain Band of Chippewa Indians.

The tribal extradition ordinance, first

approved by the United States Bureau of

Indian Affairs on June 13, 1967, mandates

the following procedure in arresting a

tribal member for a crime committed off

the reservation: the state officials pre-

sent the arrest warrant to tribal offi-

cials, the tribal officials make the arrest,

and the Indian accused has an extradition

hearing as a prerequisite to state custody.

Turtle Mountain Tribal Code § 1.0710. 1

17 Turtle Mountain Tribal Code (1976)

provides in part:

1.0710. Extradition. Any Indian

found within the boundaries of the

Turtle Mountain Indian Reservation

who is wanted by State authorities

(Footnote continued on next page).

The Turtle Mountain Indian Reservation

is composed of two townships in Rolette

County, North Dakota. Indian land,in the

County, but outside the reservation, makes

(Footnote I continued) for a violation of

State law committed outside the juris-

diction of the Turtle Mountain Tribal

Court, and a warrant of arrest having

been issued from a State Court, may

be arrested and taken into custody by

Bureau of Indian Affairs or Tribal

law enforcement personnel for prompt

transfer to the appropriate enforce-

ment agency. The arrest and removal

of the fugitive will be accomplished

in accordance with the procedure set

forth herein; Copies of State war-

rants may be presented to the Agency

Branch of Law and Order whereupon

they will be recorded as to date and

time received. The warrant will be

promptly presented to the Tribal or

Trial Court Judge of the Turtle

Mountain Tribal Court for a review as

to date, charge, and person named

thereon, to determine its apparent

validity. The Judge, after satisfy-

ing himself or herself as to the

apparent validity of the warrant,

will issue an order for the arrest

of the alleged fugitive from justice.

All Indians being taken into custody

as provided in the preceding para-

graph shall be taken by the police

officer to the Turtle Mountain Tribal

(Footnote continued on next page).

up another two townships. The resulting

patchwork of Indian and state jurisdiction

requires close cooperation between Indian

and state officials, and there is no rea-

son to believe that in general such

TFootnote I continued) Court where the

Judge shall hold a hearing to deter-

mine only whether the Indian person

in custody and before the Court is the

same person charged on the face of

the warrant. An Indian may waive such

hearing by executing a waiver of re-

moval hearing and he will be promptly

turned over to the custody of the

appropriate State official. Where a

State warrant is issued from a State

other than the State wherein the

Indian Court is located, the warrant

should be presented to the Tribal

Court by the Sheriff of the County

in which the reservation is located.

Upon assurance by the local sheriff

that the out-of-state agency will ex-

tradite the wanted subject, the pro-

cedure governing the arrest of the

wanted fugitive may be completed as

in other cases. After a hearing, as

provided in paragraph (2) above, if

the Judge is satisfied the fugitive

is the same person named in the State

warrant, the Judge shall issue an

appropriate order to that effect which

will authorize the State official to

remove the fugitive from the Turtle

Mountain Indian Reservation. [In all

(Footnote continued on next page).

cooperation does not exist. Specifically,

with respect to the arrest of Davis sub-

jective bad faith is denied.

On the night of October 9, 1978 Davis

allegedly made a telephone call from the

Reservation in which he threatened to kill

one Kim Albert the next day at the Town

of Rolla. é The alleged threat was reported

to Rolette County officials who determined

to arrest Davis the following morning.

On the morning of October 10, 1978 the

(Footnote 1 continued) cases wherein

Indians are arrested by reservation

law and order personnel the request-

ing agency supplying the warrant

shall be immediately notified that

the subject is in custody and will be

delivered to a proper official within

a reasonable time to transfer the

fugitive to their particular juris-

diction.

2/ Davis was subsequently charged with

terrorizing, a Class C felony under N.D.

Cent.Code § 12.1-17-04, for allegedly

making the threatening phone call to Kim

Albert concerning an incident in which

Albert struck Davis's wife. Albert re-

ceived the call in Rolla, an off-reserva-

tion town, on October 9, 1978.

tribal police department, obviously acting

in cooperation with the Rolette County

sheriff's office, notifed Davis at his

place of employment on the reservation that

the county officers wished to speak with

him and asked him to come to the Tribal

Law and Order Office, which he did. After

a short time a deputy sheriff arrived and

Davis was arrested without a warrant. The

record reflects that Davis refused to

waive extradition and requested a hearing.

However, no tribal judge was available nor

was one to be available that day. In those

circumstances Rolette County officials

elected to take Davis into custody even

though they were aware of the require-

ments of the extradition ordinance.

After Davis was placed in state cus-

tody, a complaint was filed, a warrant was

issued, and bond was set at $1,500.00.

Later that afternoon, Davis's wife posted

bond at the Rolette County sheriff's

office in Rolla. Davis was released, but

the terms of his bond required him to

appear in the state courts. ;

Davis presented his unlawful arrest

claims to North Dakota state courts in four

separate appearances. At his preliminary

hearing in county justice court, Davis

moved for a dismissal on the basis that

the state arrest and custody of him on

the reservation violated his rights under

the tribal extradition ordinance and frus-

trated the federal guarantee of tribal self-

government. This motion was denied, and

he was bound over to the state district

court. Then, Davis petitioned the state

district court for a writ of habeas corpus,

37 Davis did not waive lack of juris-

diction by posting bond and making special

appearances before the courts. A

v. United States, 273 U.S. 1, 9, 47 S.Ct.

’ 3, 71 L.Ed. 505 (1926). Indeed,

habeas corpus relief would include return

of the posted bond.

releasing him from state custody until the

tribal extradition ordinance had been com-

plied with. The writ was denied on the

ground that he was aot "in custody.” :

At the time of his arraignment in state

district court, Davis again moved to dis-

miss on the basis of violation of tribal

extradition laws but was denied relief.

Finally Davis sought a writ of prohibition

from the Supreme Court of North Dakota to

restrain the impending district court

prosecution. Without reaching the issue

of the lawfulness of the arrest, the state

supreme court denied the writ, noting that

prohibition is granted only sparingly and

47 For federal purposes, Davis is "in

custody." Kolski v. Watkins, 544 F.2d

762, 763 n.2 (5th Cir. 1977);

ex rel. Scranton v. New York, 532 F.2d

292, 293-94 (2d Cir. 1976). North Dakota

apparently requires allegation of confine-

ment in a petition for state habeas corpus.

See Fournier v. Roed, 161 N.W.2d 458, 470

(N.D. 1968) (Knudson, J., concurring spe-

cially).

only where there is no adequate remedy by

appeal. Davis v. O'Keefe, 283 N.W.2d 73,

76 (N.D. 1979).

Davis then took his claim to federal

court. He petitioned the United States

District Court for the District of North

Dakota for a writ of habeas corpus based

on the tribal extradition ordinance. By

an order dated December 27, 1979, the

district court denied the petition on

the ground that Davis had not exhausted

state remedies because he had not yet

been tried and convicted and that there

were no special circumstances to override

the exhaustion requirement. An adminis-

trative panel of this court granted a

certificate of probable cause and directed

that the state criminal proceeding be

stayed pending appeal.

I. Federal Judicial Intervention.

At the outset we are confronted with

Al0

the question whether this court should

assume jurisdiction and decide this case

cn its merits.

Davis contends that the special circum-

stances of this case negate the need for

exhaustion of state remedies. Alternative-

ly, he contends that state remedies have

been exhausted. He asserts that the unique

status given tribal sovereignty constitutes

a special circumstance.

Public policy and 28 U.S.C. § 2283 °

5/ Davis also argues that state officials’

knowing and willful violation of tribal

ordinances constituted special circumstances.

However, the district court found that there

was no showing of bad faith or harassment.

We see no need to overturn that finding.

6/ 28 U.S.C. § 2283. Stay of State

Court Proceedings

A court of the United States may not

grant an injunction to stay the pro-

ceedings in a State Court except as

expressly authorized by Act of Congress,

or where necessary in aid of its juris-

diction, or to protect or effectuate

its judgments.

All

discourage federal court interference with

state court proceedings. Younger v. Harris,

401 U.S. 37, 40-41, 91 S.Ct. 746, 748-749,

27 L-Ed.2d 669 (1971). Younger, which

dealt with a federal stay or injunction

of a pending state criminal prosecution,

was based on "the notion of 'comity,' that

is, a proper respect for state functions."

Id. at 43-44, 91 S.Ct. at 750. The same

policy has been applied to federal habeas

corpus relief from a state criminal trial.

E.g-, Kolski v. Watkins, 544 F.2d 762, 766

(Sth Cir. 1977); United States ex rel.

Scranton v. New York, 532 F.2d 292, 295

(2d Cir. 1976); United States ex rel. Tyler

v. Hall, 444 F.Supp. 104, 106 (E.D. Mo.

1978). However, the rule of comity does

not limit the power of the federal courts

to dispense with the exhaustion require-

ment altogether where "special circum-

stances” exist. E.g., Braden v. Thirtieth

Al2

Judicial Circuit Court, 410 U.S. 484, 489,

93 S.Ct. 1123, 1126-1127, 35 L.Ed.2d 443

(1973) (speedy trial rights); Ex parte

Royall, 117 U.S. 241, 251, 6 S.Ct. 734,

740, 29 L.Ed. 868 (1886); United States

ex rel. Russo v. Superior Court, 483 F.2d

7, 12 (3d Cir.), cert. denied, 414 U.S.

1023, 94 S.Ct. 447, 38 L.Ed.2d 313 (1973)

(double jeopardy).

' The federal district court held that

requiring Davis to defend hemself in a

criminal trial would not justify habeas

corpus relief under the "both great and

immediate" irreparable injury test of

ounger. As the district court noted,

while Davis has exhausted his pretrial

state remedies he could appeal a state

conviction on the ground of the unlawful-

ness of the arrest. , And as Younger teaches,

7 A cormviction is rarely overturned on

the ground of unlawfulness of the arrest

(Footnote continued on next page).

Al3

the cost, anxiety, and inconvenience of

having to defend against a single criminal

prosecution could not by themselves be con-

sidered "irreparable" in the special legal

sense of that term. Instead, the threat

to the plaintiff's federally protected

rights must be one that cannot be elim-

inated by his defense against a single

criminal prosecution. Younger v. Harris,

401 U.S. at 46, 91 S.Ct. at 751.

As stated, it is urged here that

serious questions of tribal sovereignty

and state-tribal relations are raised to

such an extent as to constitute special

circumstances justifying dispensing with

(Footnote 7 continued) So long as fruits

of the illegal arrest are not used at trial.

Wong Sun v. United States. 371 U.S. 471, 83

° L.Ed. (1963). Even

where the "illegal Bla ico pt does not in-

validate a subsequent conviction, the de-

fendant may have a cuase of action under

42 U.S.C. § 1983. See Brown v. Nutsch,

619 F.2d 758 (8th Cir. 1980), and cases

cited therein.

Al4

exhaustion requirements as contemplated

by Braden and Russo.

The Turtle Mountain Band of Chippewa

Indians has appeared amicus curiae and has

undertaken to raise questions as to the ex-

tent to which the state must recognize sov-

ereignty and control of the tribal govern-

ment over the reservation's inhabitants.

Thus, it may be said that in a sense we are

to be concerned not only with the personal

injury to Davis but with broader tribal in-

terests as well.

Tribal sovereignty undoubtedly in-

cludes the power to establish a court sys-

tem. American Indian Policy Review Com-

mission, 95th Cong., lst Sess., Final Report

(Comm. Print 1977), at 99 (hereinafter Final

Report), and the trust responsibility of

the federal government includes protecting

AlL5

tribal sovereignty, Id. at 104.8

Indeed,

the federal courts historically have pro-

tected tribal sovereignty from state inter-

ference. Moe v. Confederated Salish &

Kootenai Tribes, 425 U.S. 463, 96 S.Ct.

1634, 48 L.Fd.20 96 (1976); McClanahan v.

Arizona Tax Comm'n, 411 U.S. 164, 93 S.Ct.

1257, 36 L.Ed.2d 129 (1973); Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed.

483 (1832). Moreover, consideration of

comity underlying Younger to a degree may

be said to apply to tribal governments as

well.? And if we were presented with a

“87 A refusal of state police officers to

recognize legitimate tribal judicial au-

thority while on the reservation is at

least to some extent state interference

with tribal sovereignty. E.g., Fisher v.

District Court, 424 U.S. 3 96 S.Ct. 943,

-Ed. 06 (1976); United States v.

Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42

L.Ed.2d 706 (1975).

9/ Davis suggests that the principle of

comity itself mandates respect for tribal

law, as the law of a third independent

(Footnote nn ore Pry on next page).

Al6

claim filed to protect the extradition

process prior to surrender of the individ-

ual petitioner to the demanding state con-

Siderations of comity and concern for tribal

sovereignty might well dictate exercise

of federal jurisdiction.

Such a pre-surrender case decided

before Younger was Arizona ex rel. Merrill

v. Turtle, 413 F.2d 683 (9th Cir. 1969),

cert denied, 396 U.S. 1003, 90 S.Ct. 551,

24 L.Ed.2d 494 (1970). In Merrill after

the Navajo Tribal Court declined to extra-

dite a reservation Indian to Oklahoma,

Arizona honored an extradition demand by

Oklahoma and arrested the Indian on the

(Footnote 9 continued) sovereign, citing

United States v. Wheeler, 435 U.S. 313, 98

S.Ct. 1079, 55 L.Ed.2d 303 (1978). While

it is clear that tribal reservation sover-

eignty is not congruent with state sover-

eignty, such sovereignty as the tribes do

possess is entitled to recognition and

respect both by state and federal govern-

ments.

Al7

reservation. The habeas corpus petition

was brought in the asylum jurisdiction

(Arizona) to prevent the demand jurisdic-

tion (Oklahoma) from taking custody of him.

The federal court entertained the petition

and it was granted on the ground that

Arizona had no extradition jurisdiction

over Indian residents of the Navajo Reser-

vation which would justify an arrest on

the Reservation upon a demand from Oklahoma.

But Merrill is not the case before

us. Here, Davis is in custody of North

Dakota. There is a pending state criminal

prosecution in which Davis's rights may be

recognized and we are convinced that neither

the asserted tribal interest, Davis's

individual interest, nor any combination

of the two justifies our exercise of habeas

jurisdiction.

From what has been said, it is clear

that the judgment of the district court

Al8

should be affirmed and this opinion

brought to a close. Even so, the position

taken by the dissent seems to call for a

statement on the merits and we undertake

a brief discussion of the personal juris-

diction issue despite some misgiving

brought on by Firestone Tire & Rubber Co.

v. Risjord, U.S. , 101 S.Ct.

669, 66 L.Ed.2d 571 (1981), in which the

Supreme Court held that this court in In

re Multi-Piece Rim Products Liability,

612 F.2d 377 (8th Cir. 1980), having de-

cided it had no jurisdiction of an inter-

locutory appeal erred in ruling prospec-

tively on the merits of the appeal.

II. Personal Jurisdiction.

The traditional rule is that a state

court maintains personal jurisdiction over

a defendant brought before the court by

unlawful means. Frisbie v. Collins, 342

U.S. 519, 72 S.Ct. 112, 96 L.Ed. 651 (1952).

Alg9

This has been the law at least since the

1880's when an officer from Kentucky ar-

rested in West Virginia and abducted there-

from one Mahon who was a fugitive from a

murder charge in Kentucky, Mahon v. Justice,

127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283

(1888), and when an officer commissioned

by the United States illegally abducted

from Peru and brought to California a

fugitive from a felony charge pending in

Illinois, Ker v. Yllinois, 119 U.S. 436,

7 S.Ct. 225, 80 L.Ed. 421 (1888).

Personal jurisdiction, once obtained,

continues and illegality of arrest may

not serve as grounds for attack on a sub-

sequent conviction. Gerstein v. Pugh,

420 U.S. 103, 119, 95 S.Ct. 854, 865-866,

43 L.Ed.2d 54 (1975); Frisbie v. Collins,

supra; Pruitt v. Hutto, 542 F.2d 458, 459

(8th Cir. 1976).

Only in United States v. Toscanino,

A20

500 F.2d 267, 274-79 (2d Cir. 1974), has

a court carved out an exception to the

illegal arrest rule. In Toscanino the

court remanded for an evidentiary hearing

concerning the defendant's allegation that

he was illegally kidnapped from Uruguay and

transported to the United States in a manner

which "shocked the conscience" of the court.

That exception was expressly limited by the

Second Circuit in United States ex rel. Lu-

jan v. Gengler, 510 F.2d 62, 65 (2d Cir.),

cert. denied, 421 U.S. 1001, 95 S.Ct. 2400,

44 L.Ed.2d 668 (1975), to egregious inci-

dents, as in Toscanino, which shock the

conscience.

The facts of this case simply do not

Suggest the type of shocking conduct de-

scribed in Toscanino, supra, 500 F.2d at

274-79, that would provide grounds for

granting appellant's requested relief.

In a case involving an alleged illegal

A21

arrest in Indian country and a claim

that illegality of the arrest without ex-

tradition divested a state court of juris-

diction to try a habeas petitioner, this

court recently followed the general rule

and refused habeas relief. Weddell v.

Meierhenry, 636 F.2d 211 (8th Cir. 1980).

As we understand the dissent, it

does not quarrel with the general rule.

Rather, it bases jurisdiction and its

reasoning on the merits on the special

status of Indian tribes in the United

States and special governmental interest

in Indian self-government. We do not

disagree that there is a special and

unique relationship between the government

and the tribes nor do we question the power

of the United States to alter the Ker-

Frisbie personal jurisdiction rule. But

we are unable to find that the United States

has by policy, by treaty, by statute or by

A22

court decision decreed North Dakota's loss

of personal jurisdiction over appellant as

a penalty for having arrested appellant in

violation of the tribal extradition or-

dinance here involved.

We direct dissolution of the inter-

locutory stay heretofore entered by this

court and affirm the judgment of the dis-

trict court.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent. Because of

federal protection of tribal sovereignty,

I would reverse and grant a writ of habeas

corpus 1 releasing Davis from state custody

17 Davis petitioned for pre-trial writ

of habeas corpus, 28 U.S.C. § 2241 (c) (3),

and subsequently moved for certificate

of cause for appeal, 28 U.S.C. § 2253.

The district court, however, treated this

as a § 2254 petition on behalf of a per-

son in custody pursuant to the de eene of

a state court. See discussion o eddell

N. Meierhenry, infra, p. 530.

A23

until Rolette County officials comply with

the Turtle Mountain tribal extradition

ordinance,

I. Federal Jurisdiction

As the majority noted, the injury to

Davis personally is not the primary inter-

est being asserted here. The issue is not

whether an Indian can avoid state prosecu-

tion for crimes committed off the reserva-

tion, but whether the state must recognize

some degree of sovereignty and control of

the tribal government over the reserva-

tion's inhabitants. On that issue the dis-

trict court stated, "Tribal sovereignty

and state-tribal relations ... do not rise

to the standard of special circumstances

contemplated in Braden and Russo." Davis

v. Muellar, 481 F.Supp. 888, 891 (D.N.D.

1979). I disagree.

Tribal sovereignty includes the

power to establish a court system.

A24

American Indian Policy Review Commission,

95th Cong., lst Sess., Final Report 99

(Comm, Print 1977) (hereinafter Final

Report). The trust responsibility of the

federal government includes protecting

tibal sovereignty. Id at 104. The refus-

al of state police officers to recognize

legitimate tribal authority while on the

reservation is a classic example of state

interference with tribal sovereignty. E.g,

Fisher v. District Court, 424 U.S. 382,

96 S.Ct. 943, 47 L.Ed.2d 106 (1976); United

States v. Mazurie, 419 U.S. 544, 95 S.Ct.

710, 42 L.Ed. 2d 706 (1975). Because the

tribes are often at a loss to remedy such

state interference, the federal courts 2

2/ Congress has also protected tribal

self-government. Indian Reorganization

Act, 25 U.S.C. §§ 476, 477; 18 U.S.C. §§

1151, 1152; Indian Civil Rights Act of

1968, 25 U.S.C. §§ 1301 et seq.; Indian

Financing Act of 1974, 25 U.S.C. § 1451

et seq.; and Indian Self-Determination

Act, 25 U.S.C. § 450 et seg. See dis-

cussion infra, p. 53l.

A25

have historically protected tribal sov-

ereignty from state interference. Moe v.

Confederated Salish & Kootenai Tribes, 425

U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96

(1976); McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36

L.Ed.2d 129 (1973); Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483

(1832). The first federal court 3 that

considered an Indian's habeas corpus

petition : based on violation of the

3/ In Arizona ex rel. Merrillv. Turtle,

after the Navajo Tribal Court declined to

extradite a reservation Indian to Oklahoma,

Arizona honored an extradition demand by

Oklahoma and arrested the Indian on the

reservation. The habeas corpus petition

was brought in the asylum jurisdiction

(Arizona) to prevent the demand jurisdic-

tion (Oklahoma) from taking custody of

him. Thus, there was no Ker-Frisbie prob-

lem. See discussion, infra, p. 529.

4/ Similarly, in Moe v. Confederated

Salish and Kootenai Tri Tribes, suit for de-~-

Claratory and injunctive relief was brought

shortly after the arrests and the district

court granted the Indians relief without

even considering Younger abstention. 392

(Footnote continued on next page).

A26

tribal extradition law ; did so before

Younger. That court took jurisdiction and

granted habeas corpus relief on the ground

that control of the extradition process

was essential to tribal sovereignty.

Arizona ex rel. Merrill v. Turtle, 413

F.2d 683 (9th Cir. 1969), cert. denied,

396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d

494 (1970). Where tribal sovereignty is

at stake, I believe that federal jurisdic-

tion should still be available, under the

special circumstances exception to Younger.

The primary purpose of an extradition

“(Footnote 7 continued) F.Supp. 1297 (D.

Mont. 1974); and 392 F.Supp. 1325 (D. Mont.

1975). See Moe v. Confedera

Kootenai Tribes, 425 U.S. 463, 468 n.5,

96 S.Ct. 1634, 1639 n.5, 48 L.Ed.2d 96

(1976).

5/ High Pine v. Montana, 439 F.2d 1093

(Sth Cir. 1971), was a habeas corpus action

by an Indian arrested on the reservation but

there was no violation of the tribal or-

dinance because he was arrested by the trib-

al police and surrendered by the tribal au-

thorities. Therefore, there was no state

(Footnote continued on next page).

A27

law is to permit limited inquiries by the

asylum jurisdiction into the criminal pro-

cess utilized by the demanding jurisdiction

prior to releasing custody of the fugitive.

Certainly a state, in the exercise of its

own sovereign powers, claims an interest

in the extradition of any fugitive who is

present in its jurisdiction. But the dis-

trict court in the present case would de-

lay consideration of a violation of the

tribal extradition law not only until after

custody is surrendered but also until after

the fugitive is tried and convicted. Such

a delay would defeat the purpose of this

essential function of the Turtle Mountain

(Footnote 5 continued) interference with

tribal sovereignty. Furthermore, he had

signed a waiver of right to extradition

proceedings. Curtis v. Bennett, 351 F.2d

931 (8th Cir. 1965) (such waivers are val-

id).

This court recently reviewed Weddell

v. Meierhenry. See discussion, infra

p. 530.

A28

Band's self-government. The tribal extra-

dition process would be meaningless, and

the Turtle Mountain Band would have no ad-

equate remedy. Violation of tribal extra-

dition laws is impermissible state inter-

ference with tribal sovereignty. This is

not to say that reservations have identical

sovereign status with the states, but rather

that such degree of sovereignty as the

tribes do possess must be recognized by the

states and will be protected by the federal

courts from state interference. Therefore,

I believe that tribal sovereignty does rise

to the standard of special circumstances

which justify dispensing with the exhaustion

requirement.

67 Alternatively, Davis contends that

state remedies had been exhausted. Davis

had presented his federal claims to the

state courts in four proceedings, including

one before the highest state court. In

light of my conclusion that exhaustion of

state remedies was not required, however,

I would leave open the question of whether

the exhaustion requirement would have been

satisfied.

A29

II. Personal: Jurisdiction

Having decided that we are not pre-

cluded by Younger from hearing the appeal,

I would turn to the substantive issue of

whether the state court retains personal

jurisdiction over Davis despite the state's

violations of the tribal extradition code.

This is a difficult issue because the

state's interest in maintaining jurisdic-

tion over one accused of a state crime is

in direct conflict with the tribe's inter-

est in self-government. I would hold that

the state court does not have jurisdiction

to try an Indian brought before it in vio-

lation of the tribal extradition ordinance.

The traditional rule is that the court

maintains personal jurisdiction over a de-

fendant brought before the court by unlaw-

ful means. Frisbie v. Collins, 342 U.S.

519, 72 S.Ct. 112, 96 L.Ed. 651 (1952);

Ker v. Illinois, 119 U.S. 436, 7 S.Ct.

A30

225, 30 L.Ed. 421 (1888). Ker involved

extradition q (prisoner kidnapped from

Peru "in total disregard of that treaty";

no violation of provisions of treaty),

while Frisbie involved rendition 6 (pris-

oner abducted by force from Illinois and

brought to Michigan for trial).

77 Extradition between nations is based

on the notion of comity. Extradition rights

exist only when created by treaty; in the

United States, by Act of Congress pursuant

to U.S. Const. art. II, § 2. The Constitu-

tion makes extradition treaties a part of

the Supreme Law of the Land, id. art. VI,

§ 2, and as such their construction is

for the courts.

8/ Rendition between states, on the other

hand, is founded on article IV, § 2 of the

Constitution and effectuating federal stat-

utes. It is not based on comity, nor is it

governed by the same principles as extra-

dition. Biddinger v. New York City Police

Comm'r, 245 U.S. 128, 13 -33, 8 $.Ct. 4l,

42-43, 62 L.Ed. 193 (1917). Rendition being

a federal matter, federal law preempts any

conflicting state legislation. Cf. Ross v.

Middlebrooks, 188 F.2d 308 (9th Cir.

cert. denied, 342 U.S. 862, 72 S.Ct. 90,

96 L.Ed. 649 (1951); Ex parte Arrington,

270 S.W.2d 39, 42 (Mo. banc 1954).

A31

The Ker-Frisbie rule has two related com-

ponents. First, a treaty of extradition

creates rights only as to the sovereign;

it does not confer a right of asylum on

the fugitive. Ker v. Illinois, supra,

119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421;

Siegel v. Edwards, 566 F.2d 958, 960 (5th

Cir. 1978). Therefore, an objection by

the asylum jurisdiction to the illegal

arrest may affect the jurisdiction of the

demanding jurisdiction. See Ker v. Illinois,

supra, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed.

421; United States v. Lira, 515 F.2d 68,

71-72 (2d Cir.), cert. denied, 423 U.S.

847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975);

United States ex rel. Lujan v. Gengler,

510 F.2d 62, 67-68 (2d Cir.), cert. denied,

421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d

668 (1975). Second, the fourth amendment

does not extend to extraterritorial actions

or actions by foreign agents. Frisbie v.

A32

Collins, supra, 342 0.S. 519, 72 S.Ct.

112, 96 L.Ed. 651; United States v. Busic,

592 F.2d 13, 23 (2d Cir. 197%), The Ker-

Frisbie rule is inapplicable where the

United States has by treaty imposed a

territorial limitation on its own authority.

Cook v. United States, 288 U.S. 102, 121-

22, 53 S.Ct. 305, 312, 77 L.Ed. 641 (1933).

In United States v. Toscanino, 500

F.2d 267 (2d Cir. 1974), the Second Circuit

created an exception to the Ker-Frisbie

rule, but later limited the exception to

"degrading, egregious, outrageous and

flagrant indignities to human personality."

United States v. Winter, 509 F.2d 975, 986

n. 36 (5th Cir. 1975). E.g., United States

v. Lira, supra, 515 F.2d at 71-72 (abduc-

tion after torture by foreign official

upheld); United States ex rel. Lujan v.

Gengler, supra, 510 F.2d at 67-68 (ab-

duction in absence of torture upheld).

A33

In Bennally v. Marcum, 89 N.M. 463, 553

P.2d 1270 (1976), on facts comparable to

those at bar, 2 the Supreme Court of New

Mexico held that violation of the tribal

extradition ordinance barred state pros-

ecution of an Indian. It did so on the

basis of the Toscanino exception to the

Ker-Frisbie rule.

3/ In Bennally v. Marcum, an enrolled

member of the Navajo tribe committed traf-

fic offenses in a nearby city. Although

he was followed directly to the reservation

and arrested, the fresh pursuit doctrine

was inapplicable because the offenses were

only misdemeanors, not felonies. The

Supreme Court of New Mexico granted a writ

of prohibition preventing the municipal

court from proceeding in the case. Follow-

ing Arizona ex rel. Merrill v. Turtle, the

state Supreme Court stressed that the trib-

al extradition procedures had been codified

and approved by the federal government.

And, like the Ninth Circuit, it granted

relief to the Indian accused prior to the

state trial. However, Arizona ex rel.

Merrill v. Turtle is inapposite to the

Ker-Frisbie issue because there the chal-

lenge was to a proposed extradition, where-

as here the demanding jurisdiction already

has custody of the defendant.

A34

In Weddell v. Meierhenry, 636 F.2d

211 (8th Cir. 1980), a panel of this court

tersely refused to extend the Toscanino

exception to a habeas corpus petition by

a reservation Indian. Weddell v. Meierhenry.

could be easily distinguished from the

case at hand. For example, that arrest

was by a BIA officer acting pursuant to

arrest authority in Indian country, not

by state officials; the arrest was after

an armed siege, not at a voluntary meeting;

and the habeas corpus petition was filed

two and one-half years after conviction,

not before trial. Most importantly, in

Weddell v. Meierhenry, the tribe was not

before the court and no tribal interests

were asserted, whereas here the tribe

filed as amicus and appeared before the

court. Therefore, that case is consistent

with my result. Furthermore, I agree with

the majority that is is neither appropriate

A34aq,

nor necessary to extend Toscanino to the

situation before us. Rather, my conclusion

is grounded in the concept of federal pre-

emption,

I begin my discussion of Indian law

mindful of the following admonition from

the American Indian Policy Review Commis-

sion:

This Commission's charter from

Congress, reflecting 200 years of

legislative and executive actions,

aptly describes the relationship be-

tween the United States and American

Indian tribes as "unique" and "special."

Such words have repeatedly been em-

phasized by the United States Supreme

Court in opinions stretching across

almost 1 1/2 centuries. Thus the un-

equivocal message from all three

branches of our Federal Government is

that Indian laws and policy is a field

into itself.

It is almost always a mistake to

seek answers to Indian legal issues

by making analogies to seemingly sim-

ilar fields. General notions of civil

rights law and public land law, for

example, simply fail to resolve many

questions relating to American Indian

tribes and individuals. The extra-

ordinary body of law and policy holds

its own answers, which are often wholly

A35

unexpected to those unfamiliar

with it.

Final Report, supra, at 99 (footnotes

omitted).

Congress has plenary power over the

Indian tribes, not under the treaty making

power or the extradition clause, but under

the Indian commerce clause. U.S. Const.

art. 1, § 8, cl. 3. Congress had endorsed

a policy of terminating all reservations

and integrating individual Indians into

the general population. But, by 1957,

Congress repudiated its termination policy

in favor of strengthening tribal govern-

ment.

In 1959, the Supreme Court rejected

territoriality as a basis for Indian

I07 Territoriality was the basis for

Worcester v. Georgia, 31 U.S. (6 Pet.)

515, 8 L.Ed. 483 11832) . Territoriality

is the strongest type of sovereignty, but

the Supreme Court has since declared that

the reservation cannot be reinstated as a

(Footnote continued on next page).

A36

law and invented to replace it the so-

called “infringement test." The still-

applicable rule was formulated as follows:

"Absent governing acts of Congress, the

question [of jurisdiction] has always been

whether the state action infringed on the

right of reservation Indians to make their

own laws and be ruled by them." Williams

v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269,

270-271, 3 L.Ed.2d 251 (1959).

Although the first phrase of the in-

fringement test raised the possibility of

federal preemption, early cases under

Williams v. Lee concentrated on the in-

fringement test, which was a sort of sub-

ject matter jurisdiction. That is, the

court looked to the activity involved and

made a case-by-case determination of its

(Footnote 10 continued) territorial sov-

ereign. De Coteau v. District Court, 420

U.S. 425, 444-46, 55 S.Ct. 1082, 1092-

1094, 43 L.Ed.2d 300 (1975).

A37

effect on tribal government. E.g.,

Orgunized Village of Kake v. Egan, 369

U.S. 60, 75-76, 82 S.Ct. 562, 570-71, 7

L.Ed.2d 573 (1962). The infringement test

created a presumption against state pow-

er. ai

It is instructive to place the

immunity of Indian tribes from State

jurisdiction in historical perspec-

tive. Since Williams v. Lee was hand-

ed down in 1958 [sic] ... the Court

has never upheld any asserted State

jurisdiction over Indians in Indian

Country. Indeed, in its long history,

the Supreme Court has never, absent

express congressional authority, per-

mitted any State to assume any jur-

isdiction whatsoever over Indians in

Indian Country.

Final Report, supra, at 119.

Il7 For a criticism of the Supreme Court's

handling of Indian affairs, see Barsh. The

Omen: Three Affiliated Tribes v. Moe and

the Future of Tribal Self-Government, 5 Am.

Indian L.Rev. 1 (1977). Barsh charges that

the Supreme Court has involuted the in-

fringement test, allowing the state to ex-

tend its jurisdiction to the reservation and

even to take away rights expressly granted

to the tribe by the federal government so

long as there was no “infringement.” But

see text discussion of preemption analysis.

Infra, pp. 532-533.

A38

2 of the Indian

Pursuant to § 476 1

Reorganization Act, 25 U.S.C. §§ 461-79

(1934), most tribes adopted constitutions,

which were then ratified by the Secretary

127, § 476. Organization of Indian tribes;

constitution and by-laws; special election

Any Indian tribe, or tribes, residing

on the same reservation, shall have the

right to organize for its common welfare,

and may adopt an appropriate constitution

and by-laws, which shall become effective

when ratified by a majority vote of the

adult members of the tribe, or of the adult

Indians residing on such reservation, as

the case may be, at a special election au-

thorized and called by the Secretary of

the Interior under such rules and regula-

tions as he may prescribe. Such constitu-

tion and bylaws, when ratified as afore-

said and approved by the Secretary of the

Interior, shall be revocable by an election

open to the same voters and conducted in

the same manner as hereinabove provided.

Amendments to the constitution and bylaws

may be ratified and approved by the Secre-

tary in the same manner as the original

constitution and bylaws.

In addition to all powers vested in

any Indian tribe or tribal council by

existing law, the constitution adopted

by said tribe shall also vest in such

tribe or its tribal council the following

rights and powers: To employ legal counsel,

(Footnote continued on next page).

A39

of the Interior. See U.S. Dept. of

Interior, Federal Indian Law 409 n.29

(Oceana Reprint 1906). The tribes thus

entered into a new era of self-government

with only the federal government as a

superior power. Therefore, the infringe-

ment test applied to increasingly fewer

cases. "The question [of inherent tribal

sovereignty as a bar to state jurisdiction]

is generally of little more than theoret-

ical importance, however, since in almost

all cases, federal treaties and statutes

define the boundaries of federal and state

TFootnote IZ continued) the choice of

counsel and fixing of fees to be subject

to the approval of the Secretary of the

Interior; to prevent the sale, disposition,

lease, or encumbrance of tribal lands,

interests in lands, or other tribal assets

without the consent of the tribe; and to

negotiate with the Federal, State, and

local Governments. The Secretary of the

Interior shall advise such tribe or its

tribal council of all appropriation esti-

mates of Federal projects for the benefit

of the tribe prior to the submission of

such estimates to the Bureau of the Budget

and the Congress. June 18, 1934, c. 576,

§ 16, 48 Stat. 987.

A40

jurisdiction." McClanahan v.' Arizona

State Tax Comm'n, supra, 441 U.S. at 172

n.8, 93 S.Ct. at 1262 n.8, rev'g 14 Ariz.

App. 452, 484 P.2d 221 (1971). The fed-

eral preemption part of the Williams v.

Lee rule had come to overshadow the in-

fringement test.

In Indian affairs, there are two

separate chains of authority. Final Report,

supra, at 119. One chain consists of the

federal and tribal governments. The

other chain consists of state, county and

local governments. The relationship of

the state and the tribe is a question of

fact in each case. See Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 93 S.Ct.

1267, 36 L.Ed.2d 114 (1973); McClanahan

v. Arizona State Tax Comm'n, supra, 411

U.S. 164, 93 S.Ct. 1257,36 L.Ed.2d 129.

Although federal law, not state law, is

preeminent in Indian country, the tribes

A4l

are not federal instrumentalities for sub-

stantive law purposes. Moe v. Confederated

Salish & Kootenai Tribes, supra, 425 U.S.

at 471, 96 S.Ct. at 1640; Mescalero Apache

Tribe v. Jones, supra, 411 U.S. at 154,

93 S.Ct. at 1273. If they were, their

activities would be limited to federal

objectives. Treaties between the federal

government and tribes are not, however,

grants of power by the United States to

the tribes, but rather grants of power

from the tribes to the United States.

Final Report, supra, at 95. The tribes

retain all powers not specifically limited.

Therefore, not only can the United States

delegate some of its authority to regulate

the affairs of Indians to tribes, but also

the tribes retain inherent sovereignty

over matters that affect the internal

and social relations of tribal life.

United States v. Mazurie, supra, 419 U.S.

A42

44, 95 6.Ct. 710, 42 L.Ed.2d 706; Final

Report, supra, at 119.

In Washington v. Confederated Tribes

of the Colville Indian Reservation, 447

U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10

(1980), the Supreme Court reaffirmed the

principles of Williams v. Lee and McClanahan.

Although the justices reached different con-

clusions on imposition of a state tax on

cigarette sales on the reservation, all

four opinions in Confederated Tribes rec-

ognized federal preemption. In the ma-

jority opinion, Justice White stated:

"[T]ribal sovereignty is dependent on

and subordinate to only the Federal Govern-

ment, not the States." Id. 100 S.Ct. at

2081. Justice Brennan, dissenting in

part, stated: "The prevalent mode of

analysis is one of preemption. It takes

as its starting point the exclusive

power of the Federal Government to reg-

A43

ulate Indian tribes and proceeds to

bound state power where necessary to

give vitality to the federal concerns at

stake." Id. 100 S.Ct. at 2088. Justice

Stewart, dissenting in part, reached his

conclusion on the basis of effectuating

federal policies. Id. 100 S.Ct. at

2092-93.

And, most significantly, Justice

Rehnquist, who had written Mazurie and

Moe, concurring and dissenting, wrote:

Since early in the last cen-

tury, this Court has been struggling

to develop a coherent doctrine by

which to measure with some predict-

ability the scope of Indian immunity

from state taxation. In recent years,

it appeared that such a doctrine was

well on its way to being established.

I write separately to underscore what

I think the contours of that doctrine

are because I am convinced that a

well-defined body of principles is

essential in order to end the need

for case-by-case litigation which

has plagued this area of the law for

a number of years. That doctrine,

I had thought, was at bottom a pre-

emption analysis based on the princi-

ple that Indian immunities are

A44

dependent upon congressional intent,

at least absent discriminatory state

action prohibited by the Indian

Commerce Clause. I see no need for

this Court to balance the state and

tribal interests in enacting partic-

ular forms of taxation in order to

determine their validity. Absent

discrimination, the question is only

one of congressional intent. Either

Congress intended to preempt the

state taxing authority or it did not.

Balancing of interests is not the

appropriate gauge for determining

Validity since it is that very bal-

ancing which we have reserved to

Congress.

Id. 100 S.Ct. at 2093 (footnote and ci-

tations omitted). Justice Rehnquist then

proceeded to discuss the role of tribal

sovereignty in federal preemption. The

result was a two-step analysis. First,

the Court reviews the "tradition of sov-

éreignty" regarding the activity in ques-

tion. Id. 100 S.Ct. at 2094. Second,

the Court undertakes "a review of the rel-

evant treaties and statutes to determine

whether this tradition of immunity had

been altered by Congress." Id. (foot-

A45

note omitted). If there is a tradition

of sovereignty, the Court will not infer

a departure from that unless Congress has

expressly abolished that sovereign power.

Id., citing Bryan v. Itasca County, 426

U.S. 373, 392, 96 S.Ct. 2102, 2112-2113,

48 L.Ed.2d 710 (1976). Conversely, if

there is no tradition of sovereignty,

the Court will not recognize a sovereign

power unless Congress has expressly con-

ferred one. Id., citing Mescalero Apache

Tribe v. Jones, supra, 411 U.S. 145, 93

S.Ct. 1267, 36 L.Ed.2d 114.

Applying those principles, then, our

task should not be to analogize from

extradition law in a vain attempt to

make the federal-tribe-state relationship

fit that mold. 13 Nor should we balance

13/ Courts have sometimes reached the

desired result by claiming that the Indian

tribes were being "treated as domestic,

dependent nations with whom the [United

(Footnote continued on next page).

A46

the state's interest against the tribe's

interest. Rather we should apply Justice

Rehnquist's two-step analysis to determine

whether there is a tradition of tribal

sovereignty which, unless expressly abol-

ished by Congress, is retained by the

tribe. This analysis is appropriate to

an extradition problem, because an extradi-

TFootnote 13 continued) States] could

make treaties as with a foreign nation."

Ex parte Morgan, 20 F.298, 306 (W.D. Ark.

ig05). There, an arrest warrant that the

Arkansas governor issued to honor an extra-

dition demand of the Cherokee chief was

held void because neither was the chief

a federal official who could act under the

extradition treaty nor was Indian country

a state or a territory for rendition pur-

poses. Other courts have attempted to

apply a federal-state analogy. E.g.,

Colliflower v. Garland, 342 F.2d 369,

376-79 (9th Cir. 1965) (tribal court is

not of state or separate sovereign but is

a federal agency), overruled in

States v. Wheeler, 435 U.S. 313, 98 S.Ct.

1079, 55 L.Ed.2d 303 (1978) (tribal court

is not a federal agency but has concurrent

jurisdiction, like a state court). See

Robertson, supra note 13,6 Am.Indian L.Rev.

at 392-93 arguing that state sovereignty

doctrine should be applied to tribes.

Neither analogy is trenchant in tribal

(Footnote continued on next page).

A47

tion treaty creates rights only as to the

sovereigns and only one sovereign's objec-

tion can affect the other sovereign's

jurisdiction over a fugitive. Here, the

tribe as a sovereign objects to the state

court's jurisdiction over Davis.

Initially, I would look at the "tra-

dition of sovereignty" regarding tribal

courts. 14 The Eighth Circuit has long

held that tribal courts are not federal

creations or delegations of federal power,

but rather are products of inherent trib-

al sovereignty. United States v. Elk,

(Footnote 13 continued) extradition

cases for the simple reason that no foreign

nation is located within any state of the

United States or is subject to complete

defeasance at the whim of the United States.

14/ Tribal sovereignty doctrine has been

criticized as "so vague that any specific

powers of self-government which remain

vested in the tribes cannot be objectively

determined in advance of a pronouncement

by the Court." Robertson, supra note 13,

6 Am.Indian L.Rev. at 373.

A48

561 F.2d 133, 135 (8th Cir. 1977);

United States v. Walking Crow, 560 F.2d

386, 388 (8th Cir. 1977), cert. denied,

435 U.S. 953, 98 S.Ct. 1581, 55 L.Ed.2d

803 (1978); Iron Crow v. Oglala Sioux

Tribe, 231 F.2d 89, 94 (8th Cir. 1956).

This conclusion was also reached in

other circuits, e.g., Tom v. Sutton,

533 F.2d 1101, 1103 (9th Cir. 1976), and

has been confirmed by the Supreme Court

United States v. Wheeler, 435 U.S. 313,

328 n.28, 98 S.Ct. 1079, 1089 n.28, 55

L.Ed.2d 303 (1978). Tribal courts have

full jurisdiction over Indians on the

reservation to the extent that such ju-

risdiction is not inconsistent with federal

enactments. 15 Quechan Tribe of Indians v.

157 The Major Crimes Act, 18 U.S.C. §

II53, preempts both state and tribal

jurisdiction over enumerated crimes when

committed by Indians in Indian country.

United States v. John, 437 U.S. 634, 98

S.Ct. 2541, 57 L.Ed.2d 489 (1978).

A49

Rowe, 531 F.2d 408, 411 n.4 (9th Cir.

1976). Therefore, Indian tribes, in-

cluding the Turtle Mountain Band, retain

inherent sovereign power to establish

court systems with jurisdiction over trib-

al members. ” Compare Oliphant v.

Suguamish Indian Tribe, 435 U.S. 191, 208-

09, 98 S.Ct. 1011, 1020-1021, 55 L.Ed.2d

209 (1978) (no tradition of criminal

jurisdiction over non-Indians).

Next I would look to see whether the

tradition of sovereignty regarding Indian

courts has been altered by Congress.

Clearly, Congress as not abolished the

Indian tribes' sovereign power to establish

court systems. On the contrary, federal

x/ Nor is this power “inconsistent with

their status" as limited sovereigns sub-

ordinate to the United States. Our fed-

eral form of government provides numerous

examples of limited sovereigns exercising

concurrent jurisdiction over the same

territory and people. Note,

ad ?, 41 U.Pitt.L.Rev.

75, 84 (1979).

ASO

statutes and rules promulgated there-

under support the authority of the tribal

courts. ia Section 476 of the Indian Re-

organization Act of 1934, 25 U.S.C. §

461 et seg., recognized all existing

rights of Indian tribes and also encour-

aged tribes to adopt constitutions and

bylaws, which would then be approved by

federal authorities. One tribal power

recognized by courts is the authority of

tribal courts to transfer those who vio-

late state or federal laws to state or

federal officials. See Quechan Tribe of

Indians v. Rowe, supra, 531 F.2d at 411

(hunting violation by non-Indians). Where

the state and the tribe might otherwise

have concurrent jurisdiction, the state's

I77 This is not a case Of delegation,

although if it were I would reach the

same result because Congress would have

expressly conferred the power.

A51

jurisdiction is totally preempted by

federal policy and legislation, and the

state cannot exercise jurisdiction unless

Congress expressly grants it. See Fisher

v. District Court, supra, 424 U.S. 382,

96 S.Ct. 943, 47 L.Ed.2d 106 (adoption

proceedings); Santa Rosa Band of Indians

v. Kings County, 532 F.2d 655 (9th Cir.

1976), cert. denied, 429 U.S. 1038, 97

S.Ct. 731, 50 L.Ed.2d 748 (1977) (land

use ordinances), citing Indian Reorgani-

zation Act, 25 U.S.C. § 461 et seq., and

Indian Civil Rights Act of 1968, 25 U.S.C.

§ 1301 et seq.

The Turtle Mountain Band adopted a

Constitution and Bylaws in 1959, which

were approved by the Commissioner of the

Interior and the Assistant Secretary of

the Interior. Pursuant to the authority

vested in it by article Ix of that Con-

stitution, the Tribal Council enacted

A52

the Turtle Mountaij Tribal Code of 1976

of which § 1.0710-.0 governs arrest

and extradition of reservation Indians

to state authorities. There is no appli-

cable federal statute conferring juris-

diction over these matters on the state.

In summary, the Turtle Mountain Band

has a tradition of sovereignty which in-

cludes the power to establish a court

system with full jurisdiction over its

members, except where abrogated by Con-

gress. One function of the tribe's

court system is its control of the arrest

and extradition of tribal members. This

function has not been abrogated by Con-

gress. On the contrary, this function

is consistent with Congressional intent

as shown in federal statutes imple-

menting tribal self-government. Under

these circumstances, there is a presump-

tion against state jurisdiction, which

AS3

could have been overcome only by a federal

enactment explicitly granting jurisdiction

to the state. There is no such enactment

here. State jurisdiction over Indian

offenders on the reservation is preempted

by the legislation and policy of the fed-

eral government, with its exclusive power

to regulate Indian affairs.

The Ker-Frisbie doctrine that a court

maintains personal jurisdiction over a

defendant despite any illegality in the

arrest is based on the rationale that a

fugitive has no right of asylum. The

Ker-Frisbie doctrine is, however, in-

applicable to a state's violation of the

tribal extradition ordinance. The state

cannot exercise jurisdiction over the

Indian fugitive, not because of a viola-

tion of the Indian fugitive's individual

rights, but because of Congressional intent

that the state recognize tribal sovereignty

A54

by complying with the tribal extradition

ordinance. Where Congress has expressed

its intention regarding the affairs of

Indians, over which it has plenary au-

thority, it is not for the courts to

attempt to balance state interests against

tribal interests. There is a federal

policy of encouraging Indian self-govern-

ment. State violation of tribal extra-

dition ordinances impedes tribal self-

governme”*:, Therefore, in my opinion,

the state court should not be allowed to

maintain jurisdiction over Davis until

the Rolette County officials comply with

the Turtle Mountain tribal extradition

ordinance,

A55

Thomas D. DAVIS, Petitioner,

Vv.

Bryant MUELLAR, as Sheriff of Rolette

County, North Dakota, Respondent.

Civ. No. A2-79-218.

United States District Court,

D. North Dakota,

Northeastern Division.

Dec. 27, 1979.

ORDER

BENSON, Chief Judge

In the above entitled action,

Thomas D. Davis, the petitioner, an en-

rolled member of the Turtle Mountain Band

of Chippewa Indians, seeks a writ of

‘habeas corpus pursuant to 28 U.S.C. §

2254, to compel his release from custody.

The petition alleges that Davis was ar-

rested by Rollette County officials on

October 10, 1978, within the external

poundaries of the Turtle Mountain Indian

Reservation. He was charged with terror-

A56

izing under N.D.Cent.Code § 12.1-17-04,

for making a threatening phone call to

one Kim Albert in Rolla, an off reserva-

tion town. Davis was arrested without a

warrant and placed in custody by the coun-

ty officials at the Tribal Law and Order

Office on the reservation. He was not

given an extradition hearing before or

after being taken into custody. A trib-

al ordinance allegedly would have re-

quired one in such circumstances. After

he was placed in custody, a complaint

was filed, a warrant was issued, and bond

was set at $1,500.00. It was still

October 10 when Davis' wife posted the

bond at the sheriff's office in Rolla,

and petitioner was released. The terms

of his bond required him to appear in

county court and district court as re-

quired.

Davis alleges that being placed in

AS57

custody by county officials without an

extradition hearing, even though he re-

quested one, was an arrest contrary to

the laws of the United States. This

argument is premised on a tribal ordi-

nance which has been approved by the

Bureau of Indian Affairs, and which pro-

vides for certain procedures to be fol-

lowed in arresting a tribal member for a

crime committed off the reservation, one

of which is an extradition hearing. In

effect, he argues that the county offi-

cials were without jurisdiction to arrest

him. |

At his preliminary hearing in county

justice court, Davis moved for a dismissal,

claiming that his arrest violated his rights

when the county officials failed to comply

with the reservation extradition ordinance.

This motion was denied and Davis was bound

over to the district court.

A58

Davis then petitioned the district

court for a writ of habeas corpus on the

same grounds asserted in county court.

This was denied by the district court

on its reasoning that one released on

bond awaiting trial, where there has

been no state judgment of conviction, is

not “in custody." The court did note that

Davis could raise the jurisdiction issues

before the trial court. After his writ

was denied, Davis moved the district

court at the time of his arraignment for

a dismissal of the charge. This was also

denied on the ground that the validity

of an arrest does not affect the validity

of continued prosecution.

Davis then sought a writ of pro-

hibition from the Supreme Court of North

Dakota, to restrain the district court

from prosecuting him. Without reaching

the merits of Davis" petition, the court

A59

denied the writ. Davis v. O'Keefe,

283 N.W.2d 73, 76 (N.D. 1979). The

court noted that a writ of prohibition

is used sparingly and only where there

is an inadequate remedy by appeal, or

where there is some other equitable

justification. The court held that Davis

would not be irreparably injured in de-

fending himself against a criminal

charge. Id. at 76.

Davis now petitions this court for

a writ of habeas corpus. As of this

date, he is still released on bond, and

he has not yet been tried. The remedy

he seeks is absolute release from custody

which would prevent the state district

court from conducting his criminal trial,

now scheduled for early January, 1980.

Before ruling on the petition, a

preliminary matter must be diposed of.

Davis has moved the court to accept his

A60

petition for consideration, although it

is not on a form supplied by the Clerk

of Court as is required by our Local

Rule X(C) (9). The court has reviewed

the petition and finds that it is in

substantial conformity with the form

required. Since it is a Local Rule

requirement that petitions be on a stan-

dardized form, and not a requirement

of the habeas corpus statute or the

rules pertaining thereto adopted by the

United States Supreme Court, this court

is free to waive the requirement. In

light of the completeness of the petition

filed in this case, petitioner's motion

for leave to file a petition not in con-

formance with Local Rule X(C) (9) is

granted.

The habeas corpus statute requires

that an applicant have exhausted his

state remedies before relief may be

A61

granted. 28 U.S.C. § 2254(b). ? Davis

alleges that he has exhausted his state

remedies in that he has brought four

state pre-trial actions including one to

the state supreme court, in an effort

to restrain the county from going on with

the prosecution. However, he has not

yet been tried so that there has been no

judgment of conviction by a state court.

The Supreme Court has held that

"federal habeas corpus does not lie,

absent ‘special circumstances,' to

I7 The court will assume that Davis is

"In custody" while out on bond awaiting

trial. In Hensley v. Municipal

411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed. 24

294 (1972), the Court held that one re-

leased on his own recognizance after his

conviction and pending sentence is in

custody for the purposes of habeas corpus

relief. And in Scranton v. State of N.Y.»

532 F.2d 292, 294 (2nd Cir. 1976), the

court saw no distinction between pre-

conviction and post-conviction release

on bail in determining whether one was

"in custody." But as the Court in

Hensley noted, the distinction lies in

that one who is released on bail pending

(Footnote continued on next page).

A62

adjudicate the merits of an affirmative

defense to a state criminal charge prior

to a judgment of conviction by a state

court." Braden v. 30th Judicial Circuit

Court of Ky., 410 U.S. 484, 489, 93

S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973);

Ex parte Royall, 117 U.S. 241, 251, 6

S.Ct. 734, 29 L.Ed. 868 (1886). This

requirement stems from the exhaustion

requirement, in that unless the petitioner

has been tried, he has not presented

these issues to the state trial court and

he has not availed himself of the right

to appeal to the highest state court from

an adverse lower court judgment. Even

though the court has jurisdiction to grant

writs of habeas corpus to petitioners in

state custody who have not yet been tried,

(footnote 1 continued) trial must still

comply with the exhaustion requirement.

411 U.S. at 353, 93 8.Ct. 1571.

A63

in the interest of comity between the

state and federal court, this court will

not assert jurisdiction in such a case,

absent special circumstances. See, @.g.,

Paris v. Elrod, 589 F.2d 327, 328-29 (7th

Cir. 1979). See also Ex parte Royall,

117 U.S. 241, 6 S.Ct. 734, 29 J..Ed. 868

(1886) where the Supreme Court at 251,

6 S.Ct. at 740 said:

{The granting of habeas corpus re-

lief in the absence of a state court

judgment) should be exercised in

the light of the relations existing,

under our system of government, be-

tween the judicial tribunals of the

Union and of the States, and in rec-

ognition of the fact that the public

good requires that those relations

be not disturbed by unnecessary con-

flict between courts equally bound

to guard and protect rights secured

by the Constitution,

In Braden, supra, special circum-

stances were found in that petitioner was

alleging that his speedy trial rights were

denied in not being brought to trial. It

was proper to act in that case because

A64

the very wrong complained of was the

fact of not being brought to trial. In

the case now before this court the peti-

tioner is seeking to avoid state trial.

Courts have also granted habeas corpus

relief prior to a state court judgment

when the defense asserted is double jeop-

ardy. See e.g., Russo v. Superior Court

of N.J., Etc., 483 F.2d 7, 12 (3rd Cir.

1973), cert. denied, 414 U.S. 1023, 94

S.Ct. 447, 38 I..Ed.2d 315 (1973). Habeas

corpus is proper in such a case because

the purpose of double jeopardy protection

is to prevent citizens from being subjected

to the ordeal of another trial. Id. If

petitioner was forced to be subjected to

another trial with only the opportunity

for appeal, the double jeopardy protections

would be thwarted,

Davis is seeking protection from the

alleged denial of his right to be arrested

A65

pursuant to tribal procedures. He argues

that the unique stature given tribal sov-

ereignty constitutes special circumstances,

Tribal sovereignty and state-tribal re-

lations are important considerations but

such considerations do not rise to the

standard of special circumstances contem-

plated in Braden and Russo.

Davis has exhausted his pretrial

state remedies but the exhaustion of pre-

trial remedies is not sufficient for

federal habeas corpus relief. See

Scranton v. State of N.Y., 532 F.2d 292,

295 (2nd Cir. 1976). The opportunity for

Davis to assert his alleged rights will

not be lost if the matter goes to state

court judgment. In its decision deny-

ing the writ of prohibition, the state

supreme court held that it did not re-

solve the issue of the lawfulness of

the arrest. Davis v. O'Keefe, 283

A66

N.W.2d 73, 76 (N.D. 1979). Davis would

have the right to appeal from an adverse

trial court judgment and the state supreme

court would have a fair opportunity to

consider the merits of his claim,

A more compelling reason also exists

for the denial of the relief Davis re-

quests. In Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),

the Supreme Court held that a federal

court cannot interfere with a pending

state criminal prosecution either by

injunction or declaratory judgment, ab-

sent a showing of extraordinary cir-

cumstances indicating a threat of great

and immediate irreparable injury. «

{T)he cost, anxiety, and inconven-

dence of having to defend against

a single criminal prosecution, could

not by themselves be considered

“irreparable” in the special legal

sense of that term. Instead, the

threat to the plaintiff's federally

protected rights must: be one that

cannot be eliminated by his defense

A67

against a single criminal prose-

cution.

Id. at 46,7

91 S.Ct. at 751.

There is little difference between

granting federal habeas corpus relief

from a pending state criminal trial and

enjoining the same trial. The principles

of federalism and comity underlying

Younger are present in both. See e.g.

Kolski v. Watkins, 544 F.2d 762, 766

(Sth Cir. 1977); Scranton v. State of

N.Y., 532 F.2d 292, 295 (2nd Cir. 1976);

Tyler v. Hall, 444 F.Supp. 104, 106 (E.D.

Mo. 1978).

This court will not interfere with

the state judicial process and the pend-

27 The court intimated that a showing

of bad faith or harassment by state

officials may constitute "special cir-

cumstances." Id. at 54, 91 S.Ct. 746.

There has been no such showing in the

instant case.

A68

ing criminal prosecution. >

IT IS ORDERED that petitioner's re-

quest for federal habeas corpus relief

is denied.

“37 Davis had moved to have the court

order the respondent to show cause why

habeas corpus relief should not be grant-

ed. Pursuant to 28 U.S.C. § 2243, such

an order is not necessary where, as here,

it appears from the application that pet~

itioner is not entitled to relief.

A69

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1082 September Term,

1980

Thomas D. Davis,

Appellant, Appeal from the

United States

District Court

for the District

of North Dakota.

vs.

Bryant Muellar, as

Sherriff of Rolette

County, North

Dakota,

Appellee.

me ee ee ee ee ee ee ee ee ee eet ee

The Court, having considered appel-

lee's petition for rehearing and sugges-

tions for rehearing en banc and being

now fully advised in the premises, here-

by orders the petition for rehearing and

suggestions for rehearing en banc denied.

April 3, 1981

* Sic. [Petition was filed by appellant.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.