Amicus Curiae Brief — Gilham v. United States

Supreme Court, U.S.

co )

Nos. 95-285 and 95-5697

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

NORMA A. GILHAM AND COLLEEN A. BARCUS,

Petitioners

vs.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE NINTH CIRCUIT COURT OF APPEALS

BRIEF OF AMICUS CURIAE BLACKFEET TRIBE

IN SUPPORT OF WRITS OF CERTIORARI

Jeanne S. Whiteing Donald G. Kittson

Counsel of Record Blackfeet Legal Dept.

Whiteing & Thompson P.O. Box 849

1136 Pearl St., Ste. 203 Browning, MT 59417

Boulder, CO 80302 (404) 338-7777

(303) 444-2549

Attorneys for Amicus Curiae

Blackfeet Tribe of the Blackfeet Indian Reservation

September, 1995

TABLE OF CONTENTS

ee ue. cine ee ee ii

PE IL OUD bs Gb tt'e'd Weds erika se eueione iv

Stmtement Of the Cage 2... ccc cc ccecsevvees 1

Sr EE be Wincbeecasveovececover 2

SEE (8 6 a6 ORO EWES ODO ERS DHA O ROS +

The Court Should Review These Cases to Confirm That

Execution of a State Court Search Warrant Against

indians or indian Property Within an Indian Reservation

is Prohibited Without Congressional Consent ..... 4

A.

C.

The State Lacks Jurisdiction to Issue, and State Law

Enforcement Officers Lack Jurisdiction to Execute,

a Search Warrant Against Blackfeet Tribal Members

on the Blackfeet Reservation ............ 4

The Provisions of Blackfeet Law Authorizing

Cross-Deputization Does Not Provide Jurisdiction to

Execute the Search Warrant Against Tribal Members

Oe ee ES be ee ees ee icesesvens 8

Clarification of Asaiealite to Execute State Court

Search Warrants Within Indian Reservations is Important

to Maintain Law Enforcement on Indian Reservations and

is Essential to Tribal Self-Government ......... 13

TABLE OF AUTHORITIES

CASES PAGE

Bryan v. Itasca County, 426 U.S. 373, 376-77 (1976)5

California v. Cabazon Band of Mission Indians, 480 U.S.

900 O40 SOB ee re ee 14

Kennerly v. District Court, 400 U.S. 423 (1971) ... 8

McClanahan v. Arizona State Tax Commission, 411 U.S.

166, 19079 COTE oe CEES RR SS. 5

Negonsett v. Samuels, U.S. _, 113 S.Ct. 1119,

1421622 (000M 5. oi eee eee 5,13

Rosebud Sioux Tribe v. State of South Dakota, 900 F.2d

1164 (8th Cir. 1990), cert. denied

600 U.S. OTS (1009) oss eo eer ees. 7

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55

(SOTO) | SOBs dass Rh eRe Gs PR 4

Solem v. Bartlett, 465 U.S. 463, (1984)....... 2,5

U.S. v. Anderson, 857 F.Supp. 52, 54

SB SO irae oo SERS rE RRR 3,6

U.S. v. John, 437 U.S. 634 (1978) .......... 3,5

United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.

SON. cst oe co Sas eke Ree ee 3,6, 15

United States v. Wheeler, 435 U.S. 313 (1978) ... 5

Williams v. Lee, 358 U.S. 217, 220 (1959) ... 5,14

TABLE OF AUTHORITIES

STATUTES PAGE

18 U.S.C. § 1152 (indian Country Crimes Act) .... 5

18 U.S.C. § 1153 (a) (the Major Crimes Act) ..... 5

21 U.S.C. § 846 and 841(a)(1) ............... 2

Be or ee 7

Blackfeet Tribal Ordinance No. 9-59....... 9,10, 12

Montana State-Tribal Cooperative Agreements Act of

1981, MCA § 18-11-101 et seg. .......... 11,12

P.L. 83-280, 18 U.S.C. § 1162 and 18 U.S.C.

i OT eee Eee E TE TREE EERE 3, 6, 7

1934 Indian Reorganization Act,

Circe tee ce cb cee uses eis iv

1968 Indian Civil Rights Act,

ee er Es cw ew cles eceees 7

eee

INTEREST OF AMICUS

The Blackfeet Tribe of the Blackfeet Indian

Reservation, Montana, is a federally recognized Indian

tribe occupying a reservation of over 500,000 acres in

north central Montana. The Tribe is organized as a

constitutional government under section 16 of the 1934

Indian Reorganization Act, 25 U.S.C. § 476.

The Blackfeet Tribe has an interest in these cases

because serious jurisdictional issues are raised concerning

the authority of state officials to stop Blackfeet tribal

members on the Blackfeet Reservation and to execute a

state search warrant against property of tribal members.

Assertion of such authority by state officials impacts the

sovereignty and self-determination of the Blackfeet Tribe

and the Tribe’s ability to govern its own members within

the Reservation boundaries.

STATEMENT OF THE CASE

On April 18, 1993, Norma Gilham and Colleen

Barcus were the sole occupants of an automobile which

was stopped by Montana Highway Patrolman Tony Cox.

The stop took place within the exterior boundaries of the

Blackfeet Indian Reservation. Both Gilham and Barcus are

enrolled members of the Blackfeet Tribe. The stop by the

State law enforcement officer was made pursuant to a

search warrant issued by the Justice of the Peace, Glacier

County, Montana. The automobile was stopped for

speeding, an admitted pretext, while the Glacier County

search warrant could be located and served upon Gilham

and Barcus.

Cox detained Gilham and Barcus at the point of stop

until Glacier County Deputy Sheriff Wayne Dusterhoff

arrived with the search warrant issued by the Justice of

the Peace. When Dusterhoff arrived and while he was

reading the search warrant, Barcus fled the scene.

Various law enforcement officers pursued Barcus and she

was ultimately apprehended and arrested while still on the

Reservation. The automobile was seized and a federal

warrant was subsequently obtained to search the

automobile. Evidence from the stop and from the search

was used in the federal criminal proceedings against

Gilham and Barcus. Both Gilham and Barcus were

eventually convicted on charges of conspiracy to possess

cocaine with intent to distribute and possession of

cocaine with intent to distribute, in violation of 21 U.S.C.

§§ 846 and 841(a)(1). Both are currently in federal

custody.

SUMMARY OF ARGUMENT

The search warrant under which Petitioners Gilham

and Barcus, Blackfeet tribal members, were stopped on

the Blackfeet Reservation could not be executed by state

law enforcement officials against tribal members on the

Reservation. It is well-established that states lack

criminal jurisdiction over Indian offenders on a reservation

or within Indian country. Solem v. Bartlett, 465 U.S.

463, (1984); U.S. v. John, 437 U.S. 634 (1978).

Because states lack criminal jurisdiction, state law

enforcement officials also lack jurisdiction to execute

state court warrants against Indian offenders on a

reservation. United States v. Baker, 894 F.2d 1144,

1146 (10th Cir. 1990); U.S. v. Anderson, 857 F.Supp.

52, 54 (D.S.D. 1994).

While states may assume criminal jurisdiction on

Indian reservations under P.L. 83-280, 18 U.S.C. § 1162

and 18 U.S.C. § 1350, the State of Montana has never

assumed such jurisdiction over the Blackfeet Reservation.

Neither has the Blackfeet Tribe otherwise authorized state

law enforcement officials to execute state court search

warrants on the Reservation.

This Court has not specifically held that state law

enforcement officials lack jurisdiction to execute state

court warrants against Indian offenders within an indian

reservation, although lower courts have so held. Such a

conclusion flows from the States’ lack of criminal

jurisdiction over such offenders. The Court should clarify

this issue which has significant importance in the

development of appropriate law enforcement on Indian

reservations, and to a tribe’s continuing authority to

govern its members.

ARGUMENT

The Court Should Review These Cases to Confirm That

Execution of a State Court Search Warrant Against

indians or Indian Property Within an Indian Reservation is

Prohibited Without Congressional Consent

A. The State Lacks Jurisdiction to issue, and State Law

Enforcement Officers Lack Jurisdiction to Execute,

a Search Warrant Against Blackfeet Tribal Members

on the Blackfeet Reservation

indian tribes are “distinct, independent political

communities, retaining their original natural rights in

matters of local self-government.” Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 55 (1978). Their rights of self-

governance, however, can be limited, modified or even

eliminated by Congress, id. at 56, but only if Congress

explicitly authorizes such a divestiture. Absent an explicit

congressional authorization, Indian tribes retain their

rights of self-governance and states lack jurisdiction over

Indians or indian property on the reservation. See Bryan

v. Itasca County, 426 U.S. 373, 376-77 (1976);

McClanahan v. Arizona State Tax Commission, 411 U.S.

164, 170-71 (1973); Williams v. Lee, 358 U.S. 217, 220

(1959).

In the particular area of criminal jurisdiction, tribal

courts and/or federal courts have exclusive jurisdiction

over offenses committed by tribal members on their

reservation. See 18 U.S.C. § 1152 (indian Country

Crimes Act), and 18, U.S.C. § 1153 (a) (the Major Crimes

Act). See also Negonsett v. Samuels, U.S. ,113

S.Ct. 1119, 1121-22 (1993); United States v. Wheeler,

435 U.S. 313 (1978). Thus, the states are prohibited

from exercising jurisdiction over crimes committed by

Indians within indian reservations. Solem v. Bartlett, 465

U.S. 463, (1984); U.S. v. John, 437 U.S. 634 (1978).

Because state courts lack criminal jurisdiction over

indian offenders on Indian reservations, state courts also

lack jurisdiction to issue search warrants against Indians

or Indian property on reservations. United States v.

Baker, 894 F.2d 1144, 1146 (10th Cir. 1990) (County

District Court acted beyond its authority in issuing a

search warrant for evidence on reservation property of an

Indian). And, state law enforcement officials lack

jurisdiction to execute state court warrants within Indian

reservations. U.S. v. Anderson, 857 F.Supp. 52, 54

(D.S.D. 1994) (parole agents lack criminal jurisdiction to

conduct a warrantless search of Indian’s residence within

Indian country).

In 1953, Congress provided for the extension of

state jurisdiction over criminal matters on indian

reservations through P.L. 83-280, codified at 18 U.S.C.

§ 1162 and 18 U.S.C. § 1350. However, the State of

Montana did not choose to assume criminal (or civil)

jurisdiction over the Blackfeet Indian Reservation at that

time or in any subsequent years.

Congress added an additional requirement to state

assumption of jurisdiction when it enacted the 1968

Indian Civil Rights Act, 25 U.S.C. § 1301, et seg.

Section 1321 of the Act provides for an assumption of

criminal jurisdiction by states “with the consent of the

indian tribe occupying the particular Indian country or part

thereof which could be affected by such assumption...."

The Blackfeet Tribe has never consented to an

assumption of criminal jurisdiction by the State of

Montana in a special election called for that purpose as

required by 25 U.S.C. § 1321.

Section 1321 makes clear that Public Law 280 as

amended by the indian Civil Rights Act is the sole

mechanism by which the State of Montana could assume

jurisdiction over criminal offenses committed by or

against Indians in Indian country, including the offenses

alleged to have been committed by Gilham and Barcus. '

' The law is equally clear that absent tribal consent,

a state has no jurisdiction over highways running through

Indian lands in the state. Rosebud Sioux Tribe v. State of

South Dakota, 900 F2d. 1164 (8th Cir. 1990); cert

denied 500 U.S. 915 (1991).

7

See Kennerly v. District Court, 400 U.S. 423 (1971).

Since Montana has not assumed criminal jurisdiction

under the procedure provided for by Congress, State

Patrolman Cox and Glacier County Deputy Sheriff

Dusterhoff indisputedly lacked jurisdiction to stop Gilham

and Barcus as members of the Blackfeet Tribe on the

Blackfeet Reservation.

B. The Provisions of Blackfeet Law Authorizing Cross-

Deputization Does Not Provide Jurisdiction to Execute the

Search Warrant Against Tribal Members on the

Reservation

The Blackfeet Tribe and the State of Montana have

a long-standing mutual recognition of criminal activities

and law enforcement problems on the Blackfeet Indian

Reservation. The parties as respective sovereigns have

attempted to address the issues through cross-

deputization agreements.

in 1959, the Blackfeet Tribal Business Council, the

governing body of the Blackfeet Tribe, enacted Blackfeet

Tribal Ordinance No. 9-59, providing for, among other

things, the issuance of deputy commissions to the

Montana Highway Patrol as tribal police. Cross-deputized

officers have "the same powers to apprehend and arrest

persons subject to the jurisdiction of the Blackfeet Tribe

as the tribal police.” See Blackfeet Tribal Ordinance No.

9-59, attached hereto as Appendix A. In the Ordinance,

the Tribal Council also adopted the traffic and highway

laws of the State of Montana as tribal law.”

This Ordinance provides for the Blackfeet Tribe to

commission an officer of the Montana Highway Patrol as

a special deputy to enforce the laws of the Blackfeet

Tribe on the Blackfeet Indian Reservation. Tribal

members and other Indians who commit criminal offenses

2 The Blackfeet Tribal Business Council had authority

to enact Ordinance 9-59 under the provisions of the

Blackfeet Constitution. Article Vi, Section 1. (k)

authorizes the Council to "promulgate ordinances for the

purposes of safeguarding the peace and safety of

residents of the Blackfeet indian Reservation...” Article

Vi, Section 1 (a) also authorizes the Council to “negotiate

with Federal, State and local Governments on behalf of

the tribe..."

are brought before the Blackfeet Tribal Court for

prosecution. Ordinance 9-59 at paragraph 1.d.

The Montana Highway Patrol approved and agreed to

the substantive terms and conditions contained in

Ordinance No. 9-59, see approval noted on Ordinance 9-

59. This arrangement governed the enforcement of Tribal

traffic and highway laws by the Montana Highway Patrol

until recently.

The cross-deputization arrangement under Ordinance

9-59 is not a grant of jurisdiction to the State of

Montana. Instead, it merely provides a mechanism by

which a duly commissioned state law enforcement officer

can assist in the enforcement of the laws of the Blackfeet

Tribe on the Blackfeet Reservation. The Ordinance

cannot and does not validate what is an otherwise extra-

jurisdictional state court warrant, nor does it authorize

execution of state warrants.

Earlier this year, the Blackfeet Tribal Business

Council and the State of Montana entered into a new

10

agreement. The new agreement was negotiated after the

State of Montana raised questions concerning the validity

of the 1959 cross deputization arrangement in light of the

intervening Montana State-Tribal Cooperative Agreements

Act of 1981, MCA § 18-11-101, et seq. This Act

provides that in any agreement between the State of

Montana and an Indian tribe regarding law enforcement,

the agreement must include the following:

(a) the minimum training standards and

qualifications of law enforcement personnel;

(b) the respective liability of each public agency

and tribal government for the actions of law enforcement

officers when acting under the provisions of an

agreement;

(c) the minimum insurance required of both the

public agency and the tribal government; and

(d) the exact chain of command to be followed by

law enforcement officers acting under the provisions of

an agreement.

Section 18-11-111 of the Cooperative Agreement

Act further states that the Act does not affect the validity

of any agreement between a tribe and a state agency

which was entered into prior to July 1, 1981. However,

11

any such agreement must satisfy the requirements of the

Act no later than July 1, 1983.

None of the four conditions of the Montana

Cooperative Agreement Act was contained in the 1959

Ordinance, nor was the Ordinance subsequently amended

to comply with the Act. The State of Montana treated

the cross-deputization arrangement as implicitly invalid

because of the non-conforming nature of the

arrangement, and the Montana Highway Patrol was

directed "to refrain from issuing tickets to tribal members

on the Reservation until the Agreement was reached.”

See Letter dated February 14, 1995, from Sarah A. Bond,

Assistant Attorney General, State of Montana, to Donald

G. Kittson, Blackfeet Legal Department, copy of which is

attached hereto as Appendix B.

Since the cross-deputization arrangement did not and

does not comply with the 1981 Act, any cross-

deputization of Patrolman Cox cannot be used as a basis

for jurisdiction to stop Gilham and Barcus. Therefore to

12

the extent that cross deputization of Patrolman Cox is

relied on as the basis for executing the state court

warrant, it must fail as a matter of state law.

C. Clarification of Authority to Execute State Court

Search Warrants Within indian Reservations is Important

to Maintain Law Enforcement on Indian Reservations and

is Essential to Tribal Self-Government

Law enforcement on the Blackfeet Reservation, like

other Indian reservations, is complicated because criminal

jurisdiction on the Reservation "is governed by a complex

patchwork of federal, state, and tribal law.” Negonsott

vy. Samuels, U.S. _,113S.Ct. 1119, 1121 (1993).

It is therefore of major importance that law state, federal

and tribal law enforcement officials understand their

Otherwise, offenders who

authority and their limits.

should be convicted may go free, and offenders who

should be prosecuted may go unprosecuted.

Equally important is the right of tribal governments,

as sovereign entities, to govern their own members within

the territorial boundaries of their Reservation. Execution

of state court search warrants against tribal members on

13

the reservation clearly undermines tribal self-government.

Cf. California v. Cabazon Band of Mission Indians, 480

U.S. 202, 216 (1984); Williams v. Lee, 358 U.S. 217

(1959).

Recognition of tribal sovereignty in the context of

this case would have required the state law enforcement

officials to take the simple step of obtaining the

concurrence or endorsement of the Blackfeet Tribal Court

on the state court warrant. This Court should clarify the

need to take this simple step which would, at the same

time, recognize the sovereign authority of the Tribe and

contribute to law enforcement on the Reservation.

CONCLUSION

For the reasons stated above, this Court should grant

the petitions for certiorari to confirm that state court

search warrants cannot be executed against Indians or

14

Indian property involving tribal members on their own

reservation.

Respectfully submitted,

Jeanne S. Whiteing

Counsel of Record

Whiteing & Thompson

1136 Peari Street, Suite 203

Boulder, CO 80302

(303) 444-2549

Donald G. Kittson

Blackfeet Legal Department

P.O. Box 849

Browning, MT 59417

(406) 338-7777

Attorneys for Amicus Curiae

Blackfeet Tribe of the

Blackfeet Indian Reservation

> The Petitioners address the issue of whether there

is any basis, other than the jurisdictionally invalid state

court search warrant for admission of the evidence

obtained. The Tribe would note that a jurisdictionally

invalid search warrant, unlike a search warrant that is

merely technically deficient, may preclude any evidence

obtained as a result of the void search warrant. Compare

United States v. Baker, 894 F.2d 1144, 1148 (10th Cir.

1990).

15