Opposition Brief — Morris v. Tanner (No. 05-1285)
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OFFICE OF THE CLERK !
In The SUPREME COURT, U.S.
Supreme Court of the Anited States
vv
THOMAS LEE MORRIS and
ELIZABETH S. MORRIS,
Petitioners,
vs.
TANNER, Judge, Judge of the Confederated
Salish and Kootenai Indian Tribal Court
for the Flathead Reservation, and
UNITED STATES OF AMERICA,
Respondents.
¢
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
¢
RESPONDENT CONFEDERATED SALISH AND
KOOTENAI TRIBES BRIEF IN OPPOSITION
¢
JOSEPH P. HOVENKOTTER
Tribal Legal Department
Confederated Salish and
Kootenai Tribes
P.O. Box 278 ,
51383 Highway 93 North
Pablo, MT 59855-0278
(406) 675-2700; (406) 675-4665 (Fax)
Counsel for Respondent Confederated
Salish and Kootenai Tribes
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
The Respondent Confederated Salish and Kootenai
Tribes_restate the issue before this Court as follows:
Whether the Confederated Salish and Kootenai Tribes
(“CS&K Tribes”) may exercise their inherent authority, as
recognized and affirmed by Congress pursuant to 25
U.S.C. §§ 1301-1303, to prosecute a misdemeanor crime
’ committed on the Flathead Indian Reservation by a person
who is not an enrolled member of the CS&K Tribes, but
who is an enrolled member in another federally-recognized
Indian tribe.
il
TABLE OF CONTENTS
Page
QUESTION ‘PRESEN BiG? o0 cas cicccivessssvevapebbiecasae Suheutins i
TABLES OF CORN TEC EOD wskccc secavsvenns sestecids \eabaesbenscansias ii
TABLE OF AUTHOR 1 cepeescsisccusssasscesarass. séssasaveactens ili
ERASE LIN COPE GOEL Bare iva vesisintvacauncavadehassaieapheoetanioes 1
STATEMENT OF THB CARE vcicccssaicnssascctncncsbeavsnssann 2
REASONS FOR DENYING THE PETITION ............ 10
I. The Court Should Deny Review Because
Tribal Prosecution of the Petitioner Does Not
Violate the Equal Protection Component of
the FiNH Amendment ....<6.ciicciincinnhins 10
II. The Court Should Also Deny Review Because
Tribal Prosecution of the Petitioner Does Not
Violate the Due Process Clause of the Fifth
AYROTEETROAE ..ovnascncsidiciccotusccnrsabiaabondesdamnss eda 13
III. Tribal Criminal Justice Systems, As Developed
by Congress and this Court, Are Working To
Ensure the Health, Safety and Welfare of All
Indian Reservation Residents ...................0008 16
CONCLUSION .....c0scssicscscseseescuspenustannteeinannth nates 18
ill
TABLE OF AUTHORITIES
Page
CASES:
Duro v. Reina, 495 U.S. 676 (1990).............ccccecccesssssscceeseses 6
Ex Parte Crow Dog, 109 U.S. 556 (1883) ...c...ccccssscccesessoee 17
Fisher v. District Court, 424 U.S. 382 (1976)..........000000... 11
SNE OU, REET BO (EID vvste sensi iccccsaccricenconeveseuns 17
Kennerly v. District Court of Ninth J.D. of Montana,
RI AF IIR, SET IA i iicgiicid bps cetcndcannsnccpnasaocd ticcessabapanenabacanns 9
LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1992).......... 12
Means v. Navajo Nation, 432 F.3d 924 (9th Cir.
SUITE ass nck tcand Suasicanebaistieakvtvech asnbiesesvabeianadadeienobuasatuscaes 2,8
Morris v. Tanner, 288 F.Supp.2d 1133 (D.Mont.
BID iiniaviess Sccissaacesca sesinsiemniasuidlon wemeoicensteniecptetatens Sobibeeeaiaennhads 8
Morton v. Mancari, 417 U.S. 535 (1974)................. +, 24, 12
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
BITES: sin ceucp canceucababidusacdsepasebnenssbasnehdunacniesseaneeanaoes 15, 17
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)........ 14
State of Montana v. Greenwalt, 663 P.2d 1178
ER ID aint cis nish sanesceadh ok dacdaaseicel dina Cudkniesseceninenubessns 9
United States v. Errol D. Jr., 292 F.3d 1159 (9th Cir.
OUND T buicichs citaadiciekteselsiiaaueicraihukasskaudentkgnshchnuashieimabysusatiananaes 17
United States v. Heath, 509 F.2d 16 (9th Cir. 1974)......... 12
United States v. Salerno, 481 U.S. 739 (1987)...............08 13
U.S. v. Antelope, 430 U.S. 641 (1977) .......0.. ee. R, 2h, 22
U.S. v. Armstrong, 517 U.S. 456 (1996)............... cc cececeeees 13
U.S. v. Lara, 541 U.S. 193 (2004) ..................008 1, 11, 15, 16
Wayte v. United States, 470 U.S. 598 (1985)................0.... 13
iv
TABLE OF AUTHORITIES — Continued
Page
FEDERAL STATUTES:
18 U.S.C. § 13 (Assimilative Crimes Act) ........0......eeee 17
18 U.S.C. § 1152 (Indian Major Crimes Act of 1976)........ 17
18 U.S.C. § 1153 (Indian Major Crimes Act of 1976).... 7, 17
25 U.S.C. § 2 (Act of August 8, 1946)......cccccscseeseeees 15
25 U.S.C. § 476 (Indian Reorganization Act of 1934)......... 4
25 U.S.C. §§ 1301-1303 (Indian Civil Rights Act of
PR ii alit i csnccsabsaiaceingelcdenpenuedasadbuimaincasadccadsytiaiiveesaatiele 5
25 U.S.C. § 1323 (Indian Civil Rights Act of 1968) ............ 8
Pub. L. No. 93-280, 67 Stat. 588 (1953)................. ee 8,9
FEDERAL REGULATIONS:
SO a Se ie Oe akin eiliasbertaeapdbnca phi alchintoan ipa aansanveisdean their 15
De See GRA sd aciecnchdicnaccscnsnsinnisdndinprbeniunmneanes 4
STATE STATUTES:
TSG PE Be BBD osc ccccaks ssn sicnakssnidcsisdscststeuceusiaactoays 8
Maint. Codie Aine. © 2+0- BOG ooscscivnscckicesccscenecccss RARE RTO 9
TRIBAL AUTHORITY:
Constitution and Bylaws of the Confederated
Salish and Kootenai Art. VI, sec. 1(])..................cccceeceeees 4
Tribal Ordinance 103-A, CSKT Laws Codified, Title
TABLE OF AUTHORITIES — Continued
Page
Tribal Ordinance 103-A, CSKT Laws Codified § 1-2-
LRT NES oe ee CE SUE ROR ATOR NE ALY Ey eke NBS Ee 4
Tribal Ordinance 103-A, CSKT Laws Codified § 2-1-
co, ROE SENS OR RNR PIE ONC IE NN SUMMON Covet eben ck rae Re 4
OTHER AUTHORITY:
Proclamation of the Governor of Montana, Septem-
BNE Fa SI Sas soa nct bcongnciaihiaa dacsaaiacakascaaadvasuaciebaeneaenceas 9
Hearing before the Committee on Interior and
Insular Affairs, House of Representatives on H.R.
972 To Make Permanent the Legislative Rein-
statement, Following Decision of Duro Against
Reina (58 U.S.L.W. 4643, May 29, 1990) of the
Power of Indian Tribes to Exercise Criminal Ju-
risdiction over Indians, 102nd Cong., 1st Sess. 11
(1991) (statement of Ronal D. Eden, Office of
Tribal Services, U.S. Department of the Interior).......... 9
Michael C. Dorf, Facial Challenges to State and
Federal Statutes, 46 Stan.L.Rev. 235 (1994) ................ 13
Hearing before the Select Committee on Indian
Affairs, Senate on S. 962 To Make Permanent the
Legislative Reinstatement, Following the Deci-
sion of Duro Against Reina (58 U.S.L.W. 4643,
May 29, 1990) of the Power of Indian Tribes to
Exercise Criminal Jurisdiction Over Indians,
102nd Cong., Ist Sess. 30-34, Part 1, 155-160
(1991) (testimony of DeAnna Fairbanks, Chief
Judge, Minnesota Chippewa Tribal Court)..................... 7
S. Rep. 168, 102nd Cong., 1st Sess. 4 (1991).............. 12, 18
H.R. Rep. 61, 102nd Cong., Ist Sess. 3-4 (1991).......0.00.. 18
vi
TABLE OF AUTHORITIES — Continued
H.R. Conf. Rep. No. 101-938, pt. 3 (1990).............. eee eeeeee 6
S. Tap. No. 102-153, at 12 (1901)........:...c..ccisescccccscsceccccsncese 6
BRIEF IN OPPOSITION
The Respondent Confederated Salish and Kootenai
Tribes (““CS&K Tribes”) respectfully submit this Brief in
Opposition to Petition for Writ of Certiorari filed with this
Court on April 6, 2006.
The petition for certiorari should be denied because it
presents no issue worthy of this Court’s attention. The
U.S. Court of Appeals for the Ninth Circuit held that tribal
court jurisdiction is proper for prosecution of misdemeanor
crimes committed by a person who is not a member of the
tribe, but who is an enrolled member of another Indian
tribe. The ruling made no new law. To the contrary, the
ruling is founded entirely on this Court’s decisions in
Morton v. Mancari, 417 U.S. 535 (1974), U.S. v. Antelope,
430 U.S. 641 (1977), and U.S. v. Lara, 541 U.S. 193 (2004).
By working from such a well-established legal foundation,
the court of appeals constructed a ruling that is entirely
faithful to this Court’s long-standing federal Indian law
precedent.
Review should also be denied because there is abso-
lutely no conflict between the federal circuit courts on the
question presented. Petitioner concedes this point but
seeks to manufacture a conflict regarding the scope of
Congress’s authority to enact legislation affecting Indians
when it acts pursuant to the general Commerce Clause
versus when it acts pursuant to the Indian Commerce
Clause. Petitioner never raised this issue below and it
should be dismissed here as untimely. Further, Petitioner’s
attempt to manufacture a conflict between the circuit
courts is pure conjecture, belied by his failure to offer any
supporting law, fact, or research of any kind. Since no
2
conflict exists on any issue properly raised by Petitioner,
review by this Court should be denied.
Finally, the petition for certiorari should be denied
because there is nothing novel or extraordinary about this
case. This case is about a criminal defendant asserting
constitutional challenges of equal protection and due
process in an attempt to avoid prosecution of his misde-
meanor crimes by an Indian tribal government. Peti-
tioner’s assertion that he is raising important unsettled
questions of federal law is simply wrong. The court of
appeals constructed its ruling through a textbook applica-
tion of this Court’s established precedent regarding the
scope of constitutional protection applicable against a
tribal government when the tribe exercises its inherent
sovereign authority to prosecute criminal acts committed
by a non-member Indian on the tribe’s reservation. Accord-
ingly, the petition should be denied.
+
STATEMENT OF THE CASE
The CS&K Tribes do not take issue with the Peti-
tioner’s Statement of the Case regarding the procedural
background.’ However, within his statement of the case
Petitioner makes misstatements of fact and law, the most
significant of which are addressed below.
* The CS&K Tribes concur with Petitioner’s explanation regarding
controlling precedent below to the effect that the Ninth Circuit’s
decision in this case was dictated by its decision in Means v. Navajo
Nation, 432 F.3d 924 (2005), Pet. at App. 57-79, and therefore will
herein adopt Petitioner’s approach for citation to the lower court’s
opinion via reference to the Ninth Circuit’s Means opinion.
&&
3
Petitioner misstates the facts of this case by repeat-
edly making express and implied assertions that the
Congress and Indian tribes are mistreating nonmember
Indian people in a way that violates their constitutional
rights. Petitioner is an enrolled member of the Minnesota
Chippewa Tribe, Leech Lake Band, who has come to live in
the community of the CS&K Tribes. As a member of the
Flathead Reservation community, he is provided with
many opportunities aud services that the CS&K Tribes
make available to all Indians, including, among other
things: health services, housing, educational opportuni-
ties, job training programs, employment, public transpor-
tation, public assistance, and commodities. Most relevant
to this case, the CS&K Tribes provide law enforcement
services to all residents of the Flathead Reservation. The
CS&K Tribal Law & Order Department provides police
protection to all residents of the Flathead Reservation.
The CS&K ‘Tribal Prosecutor prosecutes misdemeanor
criminal charges against all Indian defendants. The CS&K
Tribal Defender provides attorney services to Indian
defendants.. The CS&K Tribal Court adjudicates cases
involving all Indian defendants and incorporates social
and health services from CS&K Tribal agencies in sentenc-
ing. All of these services are provided to individual Indians
without distinction for tribal membership.’
The CS&K Tribes have developed an integrated
contemporary criminal justice system that is consistent
with federal law. The CS&K Tribal government, in its
* App. 1 (Affidavit of James Taylor, Managing Attorney ot the
CS&K Tribal Defender’s Office).
> App. 7 (Affidavit of CS&K Tribes Acting Chief Judge Gary L.
Acevedo).
4
present form, was established on October 28, 1935 pursu-
ant to the Indian Reorganization Act of 1934, 48 Stat. 987
(1934), 25 U.S.C. § 476. Pursuant to its federally approved
Constitution,’ the Tribal Council enacted law to govern
misdemeanor criminal acts committed by Indians on the
Flathead Reservation’ and vested the judicial power for
prosecuting such criminal acts in the CS&K Tribal Court.°
For traffic offenses, like the Petitioner’s, the Tribes have
adopted the applicable sections of the Montana Code
including exceeding the speed limit.’ The CS&K Tribal
criminal system is implemented consistent with a three
government criminal enforcement agreement between the
CS&K Tribes, the state of Montana (and its sub-entities),
and the United States."
The district court below developed a record that shows
the CS&K Tribal government is providing all of the above
services to Petitioner in a manner that is consistent with
federal law. The court of appeals accepted the district court’s
factual determination. Petitioner, however, continues to
* CS&K Tribes’ Const. Art. VI, sec. 1(1), App. 18-20.
* Tribal Ordinance 36B, September 14, 1982, subsequently
amended to be included in Title II of CSKT Laws Codified by Tribal
Ordinance 103A, December 9, 1999.
* CSKT Laws Codified § 1-2-101.
” CSKT Laws Codified § 2-1-1301(a).
* See Memorandum of Agreement for Retrocession of Criminal
Misdemeanor Jurisdiction Between the State of Montana, et al., and
the Confederated Salish and Kootenai Tribes, September 30, 1994,
(“Law enforcement officers will determine the Indian/non-Indian status
of a suspect at the crime scene as soon as reasonable after providing
any emergency law enforcement services and securing public safety. For
purposes of the Agreement an ‘Indian’ is a person who is an enrolled
member of a federally-recognized tribe.”) App. 34; see also 60 Fed. Reg.
33318, June 27, 1995.
assert that Congress and Indian tribes treat him, and all
nonmember Indians, as individuals-who are members of
an “overlooked” racial group consisting largely of “home-
less” “fringe-dwellers” and enduring socioeconomic condi-
tions “similar to that of indigent criminal defendants” and
World War II Japanese-American internees. Pet. at 18-19.
The Petitioner’s circumstances are nothing like the condi-
tions of the disadvantaged persons he seeks to assert for
purposes of his case. He attempts to disguise himself as
one of them because his own conditions simply do not
provide the factual_support he needs to sustain his legal
argument. There is no evidence on the record to the
contrary. Both courts below fully considered his arguments
in light of the facts on the record and rejected them based
on the relevant precedent of this Court. Accordingly, there
is no judicial error or oversight for this Court to correct.
Petitioner misrepresents the CS&K Tribes’ position
regarding the scope of the Tribes’ criminal jurisdiction by
asserting the Tribes’ position to be that the 1990 amend-
ments’ to the Indian Civil Rights Act of 1968 (“ICRA”), 25
U.S.C. §§ 1301-1303, “swept into the Tribes’ criminal
jurisdiction Indians who are enrolled members of a tribe
and perhaps other racial ‘Indians,’ but not all Indians.”
Pet. at 5 J 1. This statement misrepresents the govern-
mental practice of the CS&K Tribes and attempts to
interject a racial element into his argument that does not
arise from the facts of this case. The CS&K Tribes have
consistently exercised criminal jurisdiction based solely on
whether a defendant is enrolled in a federally recognized
* Pub.L.No. 101-511, 104 Stat. 1856 (1990), made permanent by
Pub.L.No. 102-137, 105 Stat. 646 (1991), codified at 25 U.S.C. §§ 1301-
. 1303.
6
tribe. That has been and continues to be the CS&K Tribes’
policy and practice as memorialized in several cooperative
agreements between the CS&K Tribes and other federal,
state, and local law enforcement agencies.” In effectuating
this policy, the CS&K Tribes sought evidence regarding
whether Petitioner was a member of a federally-recognized
tribe in order to determine jurisdiction for prosecution of
his misdemeanor criminal charge. The CS&K Tribes never
sought nor developed evidence regarding Petitioner’s race
or ethnicity because such information is not relevant to
this case. Accordingly, the petition should be denied
because there is no new law in the circuit court’s ruling
regarding “racial Indians” and neither the Petitioner nor
any other person has been redirected to tribal jurisdiction
by that ruling.
Petitioner misleads the Court by implication when he
states that the 1990 ICRA amendments were initially
enacted by Congress “without holding a hearing.” Pet. at 9
q 2. Although factually accurate, this implies that Con-
gress never received input from stakeholders prior to
enacting legislation in response to this Court’s decision in
Duro v. Reina, 495 U.S. 676 (1990). The implication is
misleading. Although Congress acted quickly in response
to Duro, it took care to incorporate a one-year sunset
clause in its legislation and then held extensive hearings
prior to enacting permanent legislation." Furthermore,
the record of the Senate Select Committee on Indian
Affairs is replete with references regarding non-member
Indians, including: supporting testimony from Petitioner’s
'* Supra at footnote 8.
" H.R. Conf. Rep. No. 101-938, pt. 3 (1990) 136 Cong. Reg. H13596
(daily ed. Oct. 24, 1990); S. Rep. No. 102-153, at 12 (1991).
tribe,” and cautionary testimony from a tribal watchdog
public interest group in which Petitioner’s father was an
officer.’ The testimony of all of these people addressed the
status of non-member Indians. As a result, Congress was
well advised of the civil rights of non-member Indians
regarding tribal government at the time it enacted the
1990 ICRA amendments. This Court should not be per-
suaded to provide judicial review to Petitioner based on
his misleading statements to the contrary.
Petitioner asserts that this Court’s decisions regard-
ing the Indian Major Crimes Act, 18 U.S.C. § 1153, “make
it clear that the primary, indispensable and immutable
factor for classification as an ‘Indian’ is racial.” Pet. at 9-
10. This assertion is conclusory, unsubstantiated, and
false. Although there may be a racial element to determi-
nations made under the definition of “Indian” in the Major
Crimes Act for federal jurisdiction purposes, that defini-
tion is not the law being applied by the CS&K Tribes for
determining jurisdiction in this case. The CS&K Tribes are
asserting jurisdiction over Morris based on his political
status as a member of a federally-recognized Indian tribe,
not because of his race. Both the district court and the
court of appeals were fully cognizant of the collateral
* Hearing before the Select Committee on Indian Affairs, Senate
on S. 962 To Make Permanent the Legislative Reinstatement, Following
the Decision of Duro Against Reina (58 U.S.L.W. 4643, May 29, 1990) of
the Power of Indian Tribes to Exercise Criminal Jurisdiction Over
Indians, 102nd Cong., Ist Sess. 30-34, Part 1, 155-160 (1991) (testimony
of DeAnna Fairbanks, Chief Judge, Minnesota Chippewa Tribal Court).
* Jd., Part 2 at 21-23 (testimony of Fred Hatch, Citizen Equal Rights
Alliance); Plaintiff-Appellant below Roland Morris (now deceased) was
identified as Secretary of the organization (http://citizensalliance.org/
links/pages/frames/who_we_are.html).
8
issues regarding the Major Crimes Act and took care to
first ascertain that Petitioner’s Indian status was derived
from his membership in a federally-recognized tribe before
concluding that he was subject to tribal jurisdiction
because of this political status, not because of his race.
Morris v. Tanner, 288 F.Supp.2d 11338, 1135, 1141-1142
(D.Mont. 2003), Pei. at App. 6 J 1, 19-23; Means, 432 F.3d
at 927, 933, Pet. at App. 59, 64-66, 73-74. Thereafter, both
courts also specifically addressed his assertion that Indian
status is “immutable” by noting that tribal membership
was a voluntary status that could be renounced. Morris at
1141, Pet. at App. 19-20, 22; Means at 934, Pet. at App. 73-
75. As a result, the Court should deny the petition because
it contains no substantiated issues regarding either the
Major Crimes Act or “immutable” racial determinations.
Petitioner represents to the Court that he will be
“prosecuted in state district court .. . if this Court rules in
his favor.” Pet. at 13 92. He is wrong. The Flathead
Reservation is a Public Law 280 (“PL 280”), 67 Stat. 588
(1953), jurisdiction in which partial criminal jurisdiction
was retroceded by the Montana legislature to the CS&K
Tribes. Congress enacted PL280 to allow concurrent state-
tribal criminal jurisdiction in Indian country, then subse-
quently amended PL 280 to provide for retrocession of
state criminal jurisdiction to tribes. The state of Montana
assumed PL280 jurisdiction for the Flathead Reservation
from the U.S. in 1965," then subsequently retroceded its
misdemeanor criminal jurisdiction to the CS&K Tribes in
* Pub.L.No. 90-234, Title IV, § 403, April 11, 1968, 82 Stat. 79
(1968), codified at 25 U.S.C. § 1323.
** Mont. Code Ann. § 2-1-301.
9
1994,"° and thereafter recognized and affirmed exclusive
CS&K Tribal jurisdiction over “Indians committing mis-
demeanor criminal offenses within the external bounda-
ries of the Flathead Indian Reservation.” Consequently,
state courts do not have jurisdiction over Morris’s alleged
offense. If federal courts have such jurisdiction, then it is
unlikely any federal prosecution will ensue either because
the federal system does not have adequate resources to
prosecute misdemeanor criminal offenses on the Flathead
Reservation. So, if Morris is not prosecuted in the CS&K
Tribal court, then he will not be prosecuted in any court.
See State of Montana v. Greenwalt, 663 P.2d 1178 (Mont.
1983); see also Kennerly v. District Court of Ninth J.D. of
Montana, 400 U.S. 423, 428-429 (1971). This jurisdictional
void is unique to the Flathead Reservation due to its
status as a partial PL280 reservation. The record of this
case is not well developed regarding the other predomi-
nant type of jurisdictional void (discussed below) that
would be created throughout Indian country if this Court
were to grant review and rule in Petitioner’s favor. Accord-
ingly, the petition should be denied because it only ad-
dresses questions of unique and limited application.
¢
© Mont. Code Ann. § 2-1-306.
* Proclamation of the Governor of Montana, September 30, 1994,
App. 57-58.
* Hearing before the Committee on Interior and Insular Affairs,
House of Representatives on H.R. 972 To Make Permanent the Legisla-
tive Reinstatement, Following Decision of Duro Against Reina (58
U.S.L.W. 4643, May 29, 1990) of the Power of Indian Tribes to Exercise
Criminal Jurisdiction over Indians, 102nd Cong., Ist Sess. 11 (1991)
(statement of Ronal D. Eden, Office of Tribal Services, U.S. Department
of the Interior).
10
REASONS FOR DENYING THE PETITION
I. The Court Should Deny Review Because
Tribal Prosecution of the Petitioner Does Not
Violate the Equal Protection Component of
the Fifth Amendment
There are only three facts, each simple and straight-
forward, that are relevant to Petitioner’s equal protection
claim. First, Petitioner is a member of a federally-
recognized Indian tribe. Pet. at App. 41 9 3. Second, he is
charged with committing a misdemeanor criminal offense
on the Flathead Indian Reservation. Pet. at App. 42 J 8.
Third, he is being directed to the CS&K Tribal Court for
prosecution of his misdemeanor charge because he is a
member of a federally-recognized tribe. Pet. at App. 43, 48.
These facts are real, are substantiated by evidence on the
record, and are uncontroverted.
Petitioner can not prevail based on these facts, how-
ever, so he attempts to present an alternative set of
convoluted facts. First, he attempts to disguise himself as
either a non-Indian or an ethnic Indian who is not a
member of any federally-recognized tribe. Pet. at 15 ¥ 3,
17 ¥ 1. Second, he insinuates that his circumstance is akin
to a person charged with a felony crime who could end up
“languishing in [a] tribal jail facilitly].” Pet. at 17 { 1.
Third, he insists that he is being directed to the CS&K
Tribal Court on the basis of his race, not on the basis of his
membership in a federally-recognized tribe. Pet. at 15 J 1,
18-19. These facts are hypothetical, unsubstantiated, and
controverted by the record in this case.
This Court should not allow Petitioner to manufacture
an equal protection issue where there is none. It would be
particularly unjust to do so when, as here, the Petitioner’s
11
allegations are controverted by his own pleadings. In his
Complaint, Petitioner admits he is a tribal member. Pet. at
App. 41 § 3. He describes the charge against him using the
parameters of a misdemeanor offense. Pet at App. 42 { 8,
43 § 13. He admits that he was “asked by the officer
whether he is a tribal member” and then responded “that
he is a tribal member of a tribe in Minnesota, to wit, the
Leech Lake Band of Chippewa.” Pet. at App. 43 4 10. The
criminal citation affirms these facts by directing Petitioner
to CS&K Tribal court because he was a “tribal member
from Minn. (Cree)” and identifying the potential penalty
as “$100.00”. Pet. at App. 48. This evidence alone belies
Petitioner’s claim that he is being prosecuted in the CS&K
Tribal court due to his race and affirms that he is being
prosecuted because of his political status as an Indian
resulting from being an enrolled member of a federally-
recognized tribe. The Court should deny the petition,
because there is nothing novel or extraordinary about this
case.
There is a major constitutional distinction in the
manner in which the federal government deals with
Indians. Congress and the courts have created an entire
body of law (i.e., Title 25 U.S.C.) dealing with Indians as
“Indians”. This treatment has led to challenges similar to
Petitioner’s that legislation differentiating Indians from
others violated the due process and equal protection
principles of the Fifth Amendment. These challenges have
been uniformly rejected by this Court. See U.S. v. Antelope,
430 U.S. 641, 642-650 (1977); Fisher v. District Court, 424
U.S. 382, 390-391 (1976); Morton v. Mancari, 417 U.S. 5385,
552-554 (1974); See also U.S. v. Lara, 541 U.S. 193, 205
(2004). In Mancari this Court rejected the claim of unconsti-
tutional discrimination by ruling that an individual’s status
12
as an “Indian” under federal and tribal law is not racial.
The status is not taken by “a ‘racial’ group consisting of
‘Indians’, instead, it applies only to members of ‘federally
recognized tribes.’ ... In this sense, the preference is
political rather than racial in nature.” Jd. at 552-554,
n. 24; See Antelope, 430 U.S. at 646 (1977). Therefore, the
petition should be denied because the courts below issued
rulings that are entirely faithful to this Court’s long-
standing federal Indian law precedent.
CS&K Tribal law is consistent with federal law in that
it applies political criteria for establishing Indian status
for criminal jurisdiction purposes. Indian status for
purposes of CS&K Tribal criminal jurisdiction requires
that a suspect be “an enrolled member of a federally-
recognized tribe.” Indian status for purposes of federal
criminal jurisdiction requires voluntary membership or
affiliation with a federally recognized tribe. See LaPier v.
McCormick, 986 F.2d 303, 305 (9th Cir. 1992); United
States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974); see gener-
ally S.Rep. 102-168, 102nd Cong., 1st Sess. App. C, pp. 48-
54 (1991). For equal protection purposes, therefore, the
classification of “Indian” for determining either Tribal or
federal criminal] jurisdiction is one based on political
affiliation with a tribe, not one based on race. See Ante-
lope, 430 U.S. at 645-650. Thus, the petition should be
denied because there is no constitutional question regard-
ing equal protection that arises from the facts of this case.
Petitioner’s evidentiary burden in this case is sub-
stantial because, as he points out, there are 556 federally-
recognized tribes, and he must address the enrollment and
* Supra at footnote 8.
13
judicial practices of each and every one. Pet. at 17 J 2. He
must do so because he has raised his challenge to tribal
jurisdiction as a facial challenge to a federal statute. “A
facial challenge to a legislative act is, of course, the most
difficult challenge to mount successfully, since the chal-
lenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v.
Salerno, 481 U.S. 739, 745 (1987). To demonstrate that “no
set of circumstances” exists requires proof that each and
every statutory application would be unconstitutional.”
Petitioner only cursorily attempts to meet his evidentiary
burden by presenting selected excerpts of the CS&K Tribes
enrollment rules, but presents nothing regarding the
remaining 555 federally-recognized tribes. Accordingly, the
petition should be denied because Petitioner provides little
or none of the evidence necessary to sustain his burden for
supporting a facial challenge to a federal statute.”
II. The Court Should Also Deny Review Because
Tribal Prosecution of the Petitioner Does Not
Violate the Due Process Clause of the Fifth
Amendment.
The Petitioner insists that there is a “compelling” due
process question in his case. Pet. at 15 7 2. He also insinuates
that tribal courts are unfair tribunals that need the review of
this Court together with a larger group of extraconstitutional
* Michael C. Dorf, Facial Challenges to State and Federal Stat-
utes, 46 Stan.L.Rev. 235, 236 (1994).
* Even if Petitioner had adduced evidence in support of his equal
protection claim, in order for him to prevail he must show that the
prosecution has “a discriminatory effect and is motivated by a discrimi-
natory purpose.” U.S. v. Armstrong, 517 U.S. 456, 465 (1996); quoting
Wayte v. United States, 470 U.S. 598, 608 (1985).
14
sovereign powers, including unidentified foreign govern-
ments. Pet. at 15 J 2, 16 J 4, 17 9 1. Yet, he again fails to
provide any of the evidence that would be necessary to
sustain a “facial” due process challenge.” He presents
nothing regarding the structure and laws of tribal criminal
justice systems nationwide nor the nature of due process
protections provided by tribal courts nationwide. He
simply asserts that nonmember Indian criminal defen-
dants can not participate in tribal juries or in tribal
political life and implies that tribal governments are one of
a class of “extraconstitutional sovereigns.” Pet. at 16 ¥ 4,
17 J 1. He does so to insert doubt in the mind of this Court
regarding the capability of tribal courts to provide ade-
quate due process and to insert intrigue into the case by
implying that tribal courts are akin to shadowy courts of
ominous foreign sovereigns. The petition should be denied
because both points are unsubstantiated and false.
Both of the lower courts, for purposes of organizing
their opinions, accepted that Petitioner had raised a
cognizable facial due process claim but summarily rejected
his claim after considering the due process protections
available to nonmember Indians. Both courts applied this
Court’s precedent in Santa Clara Pueblo v. Martinez, 436
U.S. 49, 56 (1978) to recognize that, although tribes’
powers are not subject to the limitations of the Fifth and
Fourteenth Amendments of the Constitution, the Con-
gress, by enacting the ICRA, has stepped in to guarantee
citizens adequate protection from tribal government
action. The court of appeals concluded that the ICRA
* Because the CS&K Tribal Court has stayed proceedings in
Petitioner’s prosecution pending final resolution of the federal court
proceedings, an “as applied” due process challenge would be premature.
15
conferred all of the criminal protections to Petitioner that
he would receive under the Constitution except the right
to grand jury indictment and the right to appointed
counsel if he could not afford an attorney. The court then
furtier concluded that the right to grand jury did not
pertain because the Petitioner was charged with a misde-
meanor and that the right to appointed counsel was
adequately addressed by tribal provision of a right to
appointed counsel.” Thus, either Congress or the CS&K
Tribes are already providing Petitioner with the protec-
tions he seeks.“ Accordingly, the petition should be denied
because the courts below properly evaluated Petitioner’s
due process claim and rejected it after applying the rele-
vant federal statutes faithfully to this Court’s precedent.
This Court has previously been presented with oppor-
tunities to adopt Morris’s argument regarding his due
process rights, but has not. Oliphant v. Suquamish Indian
Tribe, 435 U.S. 191 (1978). The Court had its most recent
opportunity in U.S. v. Lara, where it upheld tribal criminal
jurisdiction over nonmember Indians, and ruled that a
subsequent prosecution by the federal government does not
violate the double jeopardy clause of the U.S. Constitution
* Supra at footnote 8.
* Petitioner has other remedies available to him in the event of
defect in the procedures of a tribal court, including: due process rights
in the form of judicial review in both Tribal and federal courts regard-
ing how the Tribal court applies the 1990 ICRA Amendments against
him (i.e., an “as applied” challenge); a unique right derived from his
membership in the Leech Lake Band of Chippewa to petition the
President for redress of any grievances he may have against the CS&K
Tribes pursuant to Article 9 of the Treaty with the Chippewa on
February 22, 1855, 10 Stat. 1165 (the process for such a petition is
provided through the Department of the Interior at 25 U.S.C. § 2 and
25 C.F.R. Part 2).
16
because an Indian tribe is “acting in its capacity of a
separate sovereign.” Jd. at 210. Of critical importance, the
decision upholds Congressional authority to reaffirm the
inherent sovereignty of Indian tribes. The Court held that
“the Constitution authorizes Congress to permit tribes, as
an exercise of their inherent tribal authority, to prosecute
nonmember Indians.” bid.
In Lara, however, the Court expressed a concern
regarding an indigent person’s right to counsel being
protected in tribal courts. Jd. at 207. The implication is
that the Court may review a future case where a non-
member Indian has been denied adequate protection of her
or his fundamental rights as a criminal defendant under
the U.S. Constitution. The Petitioner’s case does not raise
any of these issues for review. He alleges no criminal due
process irregularities in his prosecution, nor could he. This
was a simple traffic misdemeanor for exceeding the speed
limit, and he has been afforded an opportunity for a
hearing and to confront and question the charging police
officer. He has counsel. He is not subject to an excessive
fine. Accordingly, the petition should be denied because
there are no due process irregularities in Petitioner’s case.
Ill. Tribal Criminal Justice Systems, As Devel-
oped by Congress and this Court, Are Work-
ing To Ensure the Health, Safety and Welfare
of All Indian Reservation Residents.
Finally; the petition should be denied because it
threatens to destroy a functional jurisdictional system for
governing misdemeanor crime in Indian country that the
Congress and this Court have interdependently developed.
The present system preserves tribal misdemeanor crimi-
nal jurisdiction over Indians while precluding tribal
17
criminal jurisdiction over non-Indians. Oliphant, 435 U.S.
at 212. It recognizes the capability of tribal courts, but
places them subject to the due process protections of the
ICRA. It recognizes the complex social, cultural and
jurisdictional character of Indian reservations. Jbid..As a
result, the Court and Congress have developed a criminal
jurisdiction system for Indian country that provides for the
health and safety of all Indian reservation residents while
simultaneously providing adequate due process to Indian
criminal defendants. This Court should leave that system
intact. If it doesn’t, then it will open a jurisdictional void
throughout Indian country as a result of its ruling’s impact
on three federal statutes. The Indian Country General
Crimes Act, in pertinent part, proscribes federal jurisdic-
tion over “offenses committed by one Indian against the
person or property of another Indian.” 18 U.S.C. § 1152.
The Indian Major Crimes Act imposes federal criminal
jurisdiction over fourteen enumerated major crimes, but
does not include misdemeanor crimes. 18 U.S.C. § 1153.
The Assimilative Crimes Act permits the federal govern-
ment to apply minor state criminal laws and thereby
assume jurisdiction over certain misdemeanor offenses,
but since the Assimilative Crimes Act is made applicable
to Indian reservations through the General Crimes Act, it
does not include misdemeanor offenses committed by one
Indian against the person or property of another Indian.
18 U.S.C. § 13. As a result, if an Indian commits a misde-
meanor crime against another Indian on a non-PL280
reservation, then there is no law to punish the offense
except the law of the tribes. See Keeble v. U.S., 412 US.
205, 210-212 (1973); Ex Parte Crow Dog, 109 U.S. 556, 571
(1883); see also United States v. Errol D. Jr., 292 F.3d
1159, 1161-1162 (9th Cir. 2002). Therefore, the practical
result of finding in favor of Morris would be to create a
18
jurisdictional void throughout Indian country regarding
misdemeanor crime.” The petition should be denied to
avoid creating such a dangerous situation.
+
CONCLUSION
For the reasons set forth above, the Petition for
Certiorari should be denied.
Respectfully submitted,
JOSEPH P. HOVENKOTTER
(Counsel for Respondent)
June 2006
* S. Rep. 168, 102nd Cong., 1st Sess. 4 (1991); H.R. Rep. 61, 102nd
Cong., 1st. Sess. 3-4 (1991).
App. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
THOMAS LEE MORRIS, ) CV 99-82-M-DWM
a minor child, by and )
through his guardians, )
his natural parents, )
ELIZABETH S. MORRIS _ )
and ROLAND J. MORRIS, SR., )
«as )
visser ) Affidavit of James Taylor,
v. ) Managing Attorney of the
Judge Tanner, Judge of the ) Tribal Defenders Office
CONFEDERATED SALISH
AND KOOTENAI INDIAN
TRIBAL COURT for the
FLATHEAD INDIAN
RESERVATION,
Defendant,
and
UNITED STATES
OF AMERICA
i a i ae ae Le ee a ae a a
Intervenor.
Being first duly sworn, James Taylor, Managing
Attorney of the Confederated Salish and Kootenai Tribal
Defenders Office, and a member of the State Bar of Mon-
tana admitted to practice in the United States Federal
District Court, depose and say that from personal experi-
ence and diligent record keeping I have good grounds upon
which to state the following:
App. 2
1. By Tribal Ordinance, this Office offers representa-
tion to all indigent defendants accused in the Tribal Court
of criminal offenses punishable by imprisonment. A person
is considered indigent if they make less than 200% of the
current standard for poverty, as contained in the Federal
Poverty Income Guidelines. We offer these services with-
out charge to all indigent defendants, regardless of where
they are enrolled. There are four attorneys and one advo-
cate that handle criminal cases in the Tribal Court. This
Office makes contact with all individuals charged with
criminal offenses, and makes an eligibility determination
before an individual’s initial appearance. For those we
represent, we appear with them beginning at their initial
appearance. If there is no possibility of a jail sentence, a
defendant still has the right to counsel at his own expense,
but not to appointed counsel.
2. During calendar year 2001 the Tribal Defender’s
Office undertook representation of 746 total individuals in
criminal cases including 1329 criminal charges. Of the 746
total individuals, 553 (74%) were enrolled members of the
Confederated Salish and Kootenai Tribes (“Tribes”), and
193 (26%) were members from other tribes.
3. During calendar year 2000 the Tribal Defender’s
Office undertook representation of 828 total individuals in
criminal cases including 1557 criminal charges. Of the 828
total individuals, 608 (73%) were enrolled members of the
Tribes, and 220 (27%) were members of other tribes.
4. During calendar year 1999 the Tribal Defenders
Office undertook representation of 912 total individuals in
criminal cases. Of that total, 639 (70%) were enrolled
members of the Tribes, and 273 (30%) were members from
other tribes.
App. 3
5. During calendar year 1998 the Tribal Defenders
Office undertook representation of 923 total individuals in
criminal cases. Of that total, 689 (75%) were enrolled
members of the Tribes, and 234 (25%) were members from
other tribes.
6. During calendar year 1997 the Tribal Defenders
Office undertook representation of 831 total individuals in
criminal cases. Of that total, 575 (69%) were enrolled
members of the Tribes, and 256 (31%) were members from
other tribes.
7. During calendar year 1996 the Tribal Defenders
Office undertook representation of 747 total individuals in
criminal cases. Of that total, 551 (74%) were enrolled
members of the Tribes and 196 (26%) were members from
other tribes.
8. From the foregoing information, it appears that
the criminal caseload of the Tribal Defenders Office has
been composed of approximately 70-75% people from these
Tribes, with the balance of 25-30% composed of people
from other tribes.
Dated this 9th day of July, 2002.
/s/ James Taylor
James Taylor
Managing Attorney —
Tribal Defenders Office
App. 4
ACKNOWLEDGMENT
STATE OF MONTANA )
ss.
COUNTY OF LAKE
On this 9th day of July, 2002, before me Susie Loughlin,
a Notary Public for the State of Montana, personally
appeared James Taylor, known to me to be the person
whose name is subscribed to the above Affidavit, and
acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have set my hand and
affixed my official seal.
/s/ Susie Loughlin
Notary Public for the State of Montana
Residing at St. Ignatius
My Commission expires 12-16-04
App. 5
Joseph P Hovenkotter
CONFEDERATED SALISH AND KOOTENAI TRIBES
Tribal Legal department
P. O. Box 278
Pablo, Montana 59855 s
(406) 675-2700
ATTORNEY FOR TRIBAL GOVERNMENTAL DEFENDANT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
THOMAS LEE MORRIS, CV 99-82-M-DWM
a minor child, by and
through his guardians,
his natural parents,
ELIZABETH S. MORRIS
and ROLAND J. MORRIS, SR.,
Plaintiff, ) AFFIDAVIT OF ACTING
‘. ) CHIEF JUDGE GARY L.
Judge Tanner, Judge of the ) ACEVEDO AND
CONFEDERATED SALISH ) ATTORNEY LAW CLERK
AND KOOTENAI INDIAN-~- ) ROBERT J. STAHL
TRIBAL COURT for the )
FLATHEAD INDIAN )
RESERVATION,
)
i a a a
Defendant.
Being first duly sworn, Gary L. Acevedo, Acting Chief
Judge of the Confederated Salish and Kootenai Tribal
Court, and Robert J. Stahl, Attorney Law Clerk to the
Tribal Court and a member of the State Bar of Montana
App. 6
admitted to practice in the United States Federal District
Court, depose and say that from personal experience and
diligent inquiry with Tribal Department Heads and other
responsible Tribal employees in a position to provide
accurate information regarding the matters addressed, we
have good reason to make the following representations:
1. Law and Order on the Flathead Reservation
would be severely impaired without Tribal jurisdiction
over misdemeanors committed by non-member Indians on
the Reservation. Without Tribal jurisdiction, non-member
Indians would not be held accountable for their misde-
meanors. Without Tribal jurisdiction, a rapid increase in
non-member Indian misdemeanors seems certain. Most
non-member Indians are socially integrated into the
reservation Indian community and, consequently, most
victims of Indian misdemeanors are other Indians. When
non-member Indians commit crimes like domestic abuse,
assault, or theft, their victims are other Indians. However,
the victims of drunk driving are not restricted to the
Indian community but are whoever happens to be on the
highway or road at the time.
2. Before the imposition of supervision by the Bu-
reau of Indian Affairs, the Salish and Kootenai customar-
ily treated non-Salish and non-Kootenai Indians living in
their midst just as they treated one another. Federal
supervision of reservation Indian populations and the
allotment process created the tribal enrollment distinc-
tion. Previously, membership was a practical reality. If a
person lived within an Indian community and participated
in its daily life, the person was a member of the commu-
nity. That person’s ancestry may have been relevant to
selection for a leadership role but it was not a basis for
exclusion from community life or participation in civic
App. 7
debate. All persons living in the community and partici-
pating in community life were held to the same social and
moral standards and their transgressions were dealt with
in the same fashion. There was no separate justice for
visitors or those recently joining the community.
3. Most services provided by the Confederated Salish
and Kootenai Tribes (CSKT) are available to all enrolled
tribal members of federally recognized tribes without
distinction. Very few services are restricted to CSKT
members. Non-member Indians comprise a significant
percentage of the population served by most CSKT pro-
grams and services.
SKT ROGRAM [INDIAN |NON-MEMBER
EPART- SERVICE NDIANS
IMENT IPOPULATION SERVED
(estimates of
% of total
population
served provided
by individual
Tribal Depart-
ments)
Tribal Tribal all but 10-15 %
Personnel [Employment |w/Tribal
reference
Tribal Court Civil Adjudi- [all w/out 40 %
cation (mar- distinction {133 parties
riage, divorce, in actions
custody, filed thus far
protective in 2002)
orders, civil
suit, small
claim, fish &
game citation)
App. 8
Tribal Crime Victims [all w/out 35 %
Prosecutors |Advocate distinction
Salish academic & fall w/out 30-35 % (300-
Kootenai _—iwocational distinction (350 students)
College
Kicking Job Corps all w/out 100 %
Horse distinction (245 youths)
Job Corps
Tribal TANF (AFDC) \one family 40%
Human member must
Resource be enrolled
Development CSKT
Child Care lall w/out 25 %
distinction
General all w/out 25 %
Assistance distinction
Vocational all w/out 20-25 %
Rehab. distinction
Senior AOA _ all w/out 15-20 %
distinction
Commodities all w/out 15 %
distinction
Kerr Elderly SKT 0 %
exclusive
Dire Need CSKT 0 %
exclusive
Youth CSKT 0 %
Employment (exclusive
Dislocated CSKT 0 %
Workers exclusive
Senior Meals all w/out 40 %
distinction
App. 9
Computer all w/out 10 %
Education distinction
Trust all w/out 10 %
Management (distinction
Workforce all w/out 20 %
Investment Actidistinction
Care Givers all w/out 10 %
distinction
Parenting all w/out 20 %
distinction
WIC all w/out 10 %
distinction
IDOL CSKT 0 %
Temporary Firelexclusive
Energy all w/out 15-20 %
Assistance distinction
Tribal Early all w/out 14 %
Head Start (Childhood distinction
Tribal SocialiChild Welfare, jall w/out 5-10 %
Services Child Protec- distinction
tive Services,
Foster Care
ibal & Med. all w/out 32 %
ealth/IHS Services distinction (3,588 Patients)
Mental Healthiall w/out 10-20 %
distinction
Tribal INAHSDA & preference to {5-10 %
Housing Willow Inn families w/at
Authority Trailer Park feast one
member
enrolled
CSKT
App. 10
DATED this 28th day of May, 2002.
BY: /s/ Gary L. Acevedo
Gary L. Acevedo
Acting Chief Judge of Tribal Court
BY: /s/ Robert J. Stahl
Robert J. Stahl
Attorney Law Clerk to Tribal Court
ACKNOWLEDGMENT
STATE OF MONTANA )
—
COUNTY OF LAKE )
On this 28 day of May, 2002, before me Karen L.
Fisher, a Notary Public for the State of Montana, person-
ally appeared Gary L. Acevedo and Robert J. Stahl, known
to me to be the persons whose names are subscribed to the
above instrument, and acknowledged to me that they both
executed the same.
IN WITNESS WHEREOF, I have set my hand and
affixed my official seal.
/s/ Karen L. Fisher
Notary Public for the State of Montana
Residing at Ronan
My Commission expires 3-17-06
(SEAL)
App. 11
TITLE I
CHAPTER
CONSTITUTION AND BYLAWS
Part 1
Constitution of the Confederated Salish and Kootenai
Tribes of the Flathead Reservation, as Amended
Preamble
Article I — Territory
Article II - Membership
Article III — The Tribal Council
Article IV — Nominations and Elections
Article V — Vacancies and Removals
Article VI — Powers and Duties of the Tribal Council
Article VII — Bill of Rights
Article VIII — Land
Article IX — Referendum
Article X — Amendments
APPENDIX - Indian Civil Rights Act,
25 U.S.C. Section 1302
Part 2
Bylaws
Article I — The Tribal Council
Article II —- Ordinances and Resolutions
Article III — Ratification of Constitution and Bylaws
Page #
NIAAA WWN HH
App. 12
TITLE I
CHAPTER 1
CONSTITUTION AND BYLAWS
Part 1
Constitution
of the Confederated Salish and Kootenai Tribes
of the Flathead Reservation, as Amended
Preamble
We, the Confederated Salish and Kootenai Tribes of
the Flathead Reservation, Montana, in order to establish a
more responsible organization, promote our general
welfare, conserve and develop our lands and resources,
and secure to ourselves and our posterity the power to
exercise certain rights of self-government not inconsistent
with Federal, State, and local laws, do ordain and estab-
lish this Constitution for the Confederated Tribes of the
Flathead Reservation.
Article I
Territory
The jurisdiction of the Confederated Salish and
Kootenai Tribes of Indians shall extend to the territory
within the original confines of the Flathead Reservation as
defined in the Treaty of July 16, 1855, and to such other
lands without such boundaries, as may here-after be
added thereto under any law of the United States, except
as otherwise provided by law.
App. 13
Article II
Membership
Section 1. Confirmation of Rolls. The membership of
the Confederated Tribes of the Flathead Reservation is
confirmed in accordance with the per capita rolls as from
time to time prepared.
Section 2. Present Membership. Membership in the
Tribes on and after the date of the adoption of this
amendment shall consist of all living persons whose names
appear on the per capita roll of the Confederated Salish
and Kootenai Tribes of the Flathead Reservation, Mon-
tana, as prepared for the per capita distribution as shown
on the per capita roll paid in February 1959 together with
all children of such members, born too late to be included
on such per capita roll and prior to the effective date of
this section who possess one-fourth ('/,) or more Salish or
Kootenai Blood or both and are born to a member of the
Confederated Tribes of the Flathead Indian Reservation.
subject to review by the Secretary of the Interior, the
Tribal Council shall make any necessary corrections in
this 1959 membership roll so that no one eligible for
membership under prior constitutional provisions shall be
excluded therefrom.
Section 3. Future Membership. Future membership
may be regulated from time to time by ordinance of the
Confederated Tribes subject to review by the Secretary of
the Interior. Until and unless an ordinance is adopted any
person shall be enrolled as a member who shall (a) apply,
or have application made on his behalf, establishing
eligibility under this provision; (b) show that he is a
natural child of a member of the Confederated Tribes; (c)
that he possesses one-quarter (1/;) degree or more blood of
App. 14
the Salish and Kootenai Tribes or both, of the Flathead
Indian Reservation, Montana; (d) is not enrolled on some
other reservation.
Section 4. Adoption. The Tribal Council shall have the
power to enact and promulgate ordinances, subject to
review by the Secretary of the Interior, governing the
adoption of persons as members of the Confederated
Salish and Kootenai Tribes.
Section 5. Loss of Membership. Membership in the
Confederated Tribes may be lost (1) by resignation in
writing to the Tribal Council; (2) by enrollment of the
member with another Indian tribe; (3) by establishing a
legal residence in a foreign country; (4) upon proof of lack
of eligibility for enrollment, or fraud in obtaining enroll-
ment, with due notice and opportunity to be heard and
defend before the Tribal Council, subject to appeal to the
Secretary of the Interior, whose decision shall be confined
to the record made in such proceeding which, if supported
by substantial evidence, shall be binding.
Section 6. Definitions. Wherever the term “Indian
Blood” shall have been used herein or in tribal ordinances,
unless the context shall require a different meaning, it
shall be determined to mean the blood of either or both the
Kootenai or the Salish Tribes of the Flathead Reservation:
Section 7. Current Membership Roll. The membership
roll of the Confederated Salish and Kootenai Tribes of the
Flathead Reservation shall be kept current by striking
therefrom the names of persons who have died or have lost
membership pursuant to this Constitution and adding
thereto the names of persons who shall have established
eligibility or been adopted. The roll so prepared shall be
the basis for determining the right of persons whose
App. 15
names appear thereon to share in annual per capita
distribution of funds or in any other tribal property,
subject to Secretarial approval.
Section 8. Rules of Procedure. The Tribal Council shall
have the authority to prescribe rules to be followed in
compiling a membership roll in accordance with the
provisions of this article, the completed roll to be approved
by the Tribal Council of the Confederated Salish and
Kootenai Tribes. In case of distribution of tribal assets, the
roll shall be submitted to the Secretary of the Interior for
final approval as may be provided by law.
Section 9. Rights of Membership are Prospective. No
person shall be entitled to receive a per capita payment or
share in any other tribal assets which were distributed
prior to the date of his actual enrollment.
Article III
The Tribal Council
Section 1. The governing body of the Confederated Salish
and Kootenai Tribes of the Flathead Reservation shall be
the Tribal Council.
Section 2. The Council shall consist of ten councilmen to
be elected from the districts as set forth hereafter, and
Chiefs Martin Charlo and Eneas Paul Koostahtah.
Section 3. Representation from the districts hereby
designated shall be as follows: Jocko Valley and Mission
Districts, two councilmen each; Ronan, Pablo, Polson,
Elmo-Dayton, Hot Springs-Camas Prairie, and Dixon, one
councilman each.
App. 16
Section 4. The Tribal Council shall have the power to
change the districts and the representation from each
district, based on community organization or otherwise, as
deemed advisable, such change to be made by ordinance,
but the total number of delegates shall not be changed as
provided for in section 2 of article III of this Constitution.
Section 5. The Tribal Council so organized shall elect
from within its own number a chairman, and a vice-
chairman, and from within or without its own member-
ship, a secretary, treasurer, sergeant-at-arms, and such
other officers and committees as may be deemed neces-
sary.
Section 6. No person shall be a candidate for membership
in the Tribal Council unless he shall be a member of the
Confederated Tribes of the Flathead Reservation and shall
have resided in the district of his candidacy for a period of
one year next preceding the election.
Section 7. The Tribal Council of the Confederated Tribes
of the Flathead Reservation shall be the sole judge of the
qualifications of its members.
Article IV
Nominations and Elections
Section 1. The first election of a Tribal Council under this
Constitution shall be called and supervised by the present
Tribal Council within 30 days after the ratification and
approval of this Constitution, and thereafter elections
shall be held every two years on the third Saturday prior
to the expiration of the terms of office of the members of
the Tribal Council. At the first election, five councilmen
shall be elected for a period of two years and five for a
App. 17
period of four years. The term of office of a councilman
. shall be for a period of four years unless otherwise pro-
vided herein.
Section 2. The Tribal Council or an election board ap-
pointed by the Council shall determine rules and regula-
tions governing all elections.
Section 3. Any qualified member of the Confederated
Tribes may announce his candidacy for the Council, within
the district of his residence, notifying-the Secretary of the
Tribal Council in writing of his candidacy at least 15 days
prior to the Election. It shall be the duty of the Secretary
of the Tribal Council to post in each district at least 10
days before the election, the names of all candidates for
the Council who have met those requirements. Where
more than two members have filed for an office a Primary
Election shall be held at least 30 days prior to the General
Election. Only the two candidates for each office receiving
the most votes at such Primary Election shall be eligible to
run for office in the General Election. Where no more than
twe members have filed for an office, a Primary Election
will be unnecessary.
Secticra ¢. The Tribal Council, or a board appointed by the
Council, shall certify to the election of the members of the
Council within 5 days after the election returns.
Section 5. The Tribal Council, or a board appointed by the
Tribal Council, shall designate the polling places and
appoint all election officials.
App. 18
Article V
Vacancies and Removals
Section 1. If a councilman or official shall die, resign,
permanently leave the reservation, or be removed from
office, the Council shall declare the position vacant and
appoint a successor to fill the unexpired term, provided
that the person chosen to fill such vacancy shall be from
the district in which such vacancy occurs.
Section 2. Any councilman who is proven guilty of im-
proper conduct or gross neglect of duty may be expelled
from the Council by a two-thirds vote of the membership of
the Council voting in favor of such expulsion, and provided
further, that the accused member shall be given full and
fair opportunity to reply to any and all charges at a desig-
nated Council meeting. It is further stipulated that any
such member shall be given a written statement of the
charges against him at least five days before the meeting
at which he is to appear.
Article VI
Powers and Duties of the Tribal Council
Section 1. The Tribal Council shall have the power,
subject to any limitations imposed by the Statutes or the
Constitution of the United States and subject to all ex-
press restrictions upon such powers contained in this
Constitution and attached Bylaws;
(a) To regulate the uses and disposition of tribal property,
to protect and preserve the tribal property, wildlife and
natural resources of the Confederated Tribes, to cultivate
Indian arts, crafts, and culture, to administer charity; to
App. 19
protect the health, security, and general welfare of the
Confederated Tribes.
(b) To employ legal counsel for the protection and ad-
Vvancement of the rights of the Flathead confederated
Tribes and their members, the choice of counsel and fixing
of fees to be subject to the approval of the Secretary of the
Interior.
(c) To negotiate with the Federal, State, and local gov-
ernments on behalf of the confederated Tribes, and to
advise and consult with the representatives of the De-
partments of the Government of the United States on all
matters affecting the affairs of the Confederated Tribes.
(d) To approve or veto any sale, disposition, lease, or
encumbrance of tribal lands and tribal assets which may
be authorized or executed by the Secretary of the Interior,
the Commissioner of Indian Affairs, or any other agency of
the Government, provided that no tribal lands shall be
sold or encumbered or leased for a period in excess of five
years, except for Governmental purposes.
(e) To advise with the Secretary of the Interior with
regard to all appropriation estimates or Federal projects
for the benefit of the Confederated Tribes, prior to the
submission of such estimates to the Congress.
(f) To manage all economic affairs and enterprises of the
Confederated Tribes in accordance with the terms of a
charter to be issued by the Secretary of the Interior.
(g) To make assignments of tribal lands to members of
the Confederated Tribes in conformity with article VIII of
this Constitution.
App. 20
(h) To appropriate for tribal use of the reservation any
available applicable tribal funds, provided that any such
appropriation in excess of $25,000 shall be subject to
review by the Secretary of the Interior.
(i) To promulgate and enforce ordinances, subject to
review by the Secretary of the Interior, which would
provide for assessments or license fees upon nonmembers
doing business within the reservation, or obtaining special
rights or privileges, and the same may also be applied to
members of the Confederated Tribes, provided such
ordinances have been approved by a referendum of the
Confederated Tribes.
(j) To exclude from the restricted lands of the reservation
persons not legally entitled to reside thereon, under
ordinances which may be subject to review by the Secre-
tary of the Interior.
(k) To enact resolutions or ordinances not inconsistent
with article II of this Constitution governing adoptions
and abandonment of membership.
(1) To promulgate and enforce ordinances which shall be
subject to review by the Secretary of the Interior, govern-
ing the conduct of members of the Confederated Tribes,
and providing for the maintenance of law and order and
the administration of justice by the establishment of an
Indian Court, and defining its powers and duties.
(m) To purchase land of members of the Confederated
Tribes for public purposes under condemnation proceedings
in courts of competent jurisdiction.
(n) To promulgate and enforce ordinances which are
intended to safeguard and promote the peace, safety,
morals, and general welfare of the Confederated Tribes by
App. 21
regulating the conduct of trade and the use and disposition
of property upon the reservation, providing that any
ordinance directly affecting nonmembers shall be subject
to review by the Secretary of the Interior.
(o) To charter subordinate organizations for economic
purposes and to regulate the activities of all cooperative
and other associations which may be organized under any
charter issued under this Constitution.
(p) To regulate the inheritance of real and personal
property, other than allotted lands, within the Flathead
Reservation, subject to review by the Secretary of the
Interior.
(q) To regulate the domestic relations of members of the
Confederated Tribes.
(r) To recommend and provide for, the appointment of
guardians for orphans, minor members of the Confeder-
ated Tribes, and incompetents subject to the approval of
the Secretary of the Interior, and to administer tribal and
other funds or property which may be transferred or
entrusted to the Confederated Tribes or Tribal Council for
this purpose.
(s) To create and maintain a tribal fund by accepting
grants or donations from any person, State, or the United
States.
(t) To delegate to subordinate boards or to cooperative
associations which are open to all members of the Confed-
erated Tribes, any of the foregoing powers, reserving the
right to review any action taken by virtue of such dele-
gated power.
App. 22
(u) To adopt resolutions or ordinances to effectuate any of
the foregoing powers.
Section 2. Any resolution or ordinance which by the terms
of this constitution is subject to review by the Secretary of
the Interior, shall be presented to the Superintendent of
the Reservation who shall, within ten days thereafter,
approve or disapprove the same, and if such ordinance or
resolution is approved, it shall thereupon become effective,
but the superintendent shall transmit of copy of the same,
bearing his endorsement, to the Secretary of the Interior
who may, within 90 days from the date of enactment,
rescind said ordinance or resolution for any cause, by
notifying the council of such action: Provided. That if the
Superintendent shall refuse to approve any resolution or
ordinance submitied to him, within ten days after its
enactment, he shall advise the Council of his reasons
therefor, and the Council, if such reasons appear to be
insufficient, may refer it to the Secretary of the Interior,
who may pass upon same and either approve or disap-
prove it within 90 days from its enactment.
Section 3. The council of the Confederated Tribes may
exercise such further powers as may in the future be
delegated to it by the Federal Government, either through
order of the Secretary of the Interior or by Congress, or by
the State Government or by members of the Confederated
Tribes.
Section 4. Any rights and powers heretofore vested in the
confederated Tribes but not expressly referred to in this
Constitution shall not be abridged by this article, but may
be exercised by the members of the Confederated Tribes
through the adoption of appropriate bylaws and constitu-
tional amendments.
App. 23
Article VII
Bill of Rights
Section 1. All members of the Confederated Tribes over
the age of 18 years shall have the right to vote in all tribal
elections, subject to any restricts as to residence as set
forth in Article IV.
Section 2. Ali members of the Confederated Tribes shall
be accorded equal opportunities to participate in the
economic resources and activities of the reservation.
Section 3. All members of the Confederated Tribes may
enjoy without hindrance freedom of worship, speech,
press, and assembly.
Section 4. Any member of the confederated Tribes ac-
cused of any offense, shall have the right to a prompt,
open, and public hearing, with due notice of the offense
charged, and shall be permitted to summon witnesses in
his own behalf and trial be jury shall be accorded, when
duly requested, by any member accused of any offense
punishable by more than 30 days’ imprisonment, and
excessive bail or cruel or unusual punishment shall not be
imposed.
Article VIII
Land
Section 1. Land Transactions. subject to any limita-
tions imposed by the Constitution and Bylaws, to any
applicable Federal statute and to the approval of the
Secretary of the Interior, the Tribal Council may:
(1) Purchase or receive by gift or relinquishment land or
any interest therein, and may lease, exchange (with or
App. 24
without the giving or receipt of other consideration),
encumber, and assign tribal lands or any interest therein;
and
(2) Adopt ordinances or resolutions governing any or all
such transactions.
Section 2. Saving Clause. Nothing herein shall be held
to impair rights-heretofore acquired in any allotment or
assignment held by any individual.
Article IX
Referendum
Section 1. Upon a petition of at least one-third ('/4) of the
eligible voters of the Confederated Tribes, or upon the
request of a majority of the members of the Tribal Council,
any enacted or proposed ordinance or resolution of the
council shall be submitted to a popular referendum, and
the vote of a majority of the qualified voters voting in such
referendum shall be conclusive and binding on the Tribal
Council, provided that at least thirty percent (30%) of the
eligible voters shall vote in such election.
Article X
Amendments
Section 1. This Constitution and Bylaws may be amended
by a majority vote of the qualified voters of the Confeder-
ated Tribes voting at an election called for that purpose by
the Secretary of the Interior, provided that at least thirty
percent (30%) of those entitled to vote shall vote in such
election; but no amendment shall become effective until it
shall have been approved by the Secretary of the Interior.
App. 25
It shall be the duty of the Secretary of the Interior to call
an election on any proposed amendment, at the request of
two-thirds of the Council, or upon presentation of a peti-
tion signed by one-third ('/3) of the qualified voters, mem-
bers of the Confederated Tribes.
APPENDIX
2K AE KK KK
Indian Civil Rights Act, 25 U.S.C. Section 1302
No Indian tribe in exercising powers of self-government
shall —
(1) make or enforce any law prohibiting the free exercise
of religion, or abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble and
to petition for a redress of grievances;
(2) violate the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
search and seizures, nor issue warrants, but upon prob-
able cause, supported by oath or affirmation, and particu-
larly describing the place to be searched and the person or
thing to be seized;
(3) subject any person for the same offense to be twice
put in jeopardy; ;
(4) compel any person in any criminal case to be a
witness against himself;
(5) take any private property for a public use without
just compensation; :
(6) deny to any person in a criminal proceeding the right
to a speedy and public trial, to be informed of the nature
App. 26
and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for
obtaining witnesses in his favor, and at his own expense to
have the assistance of counsel for his defense;
(7) require excessive bail, impose excessive fines, inflict
cruel and unusual punishments, and in no event impose
for conviction of any one offense any penalty or punish-
ment greater than imprisonment for a term of (one year)
or a fine of ($5000) or both;
(8) deny to any person within its jurisdiction the equal
protection of its laws or deprive any person of liberty or
property without due process of law;
(9) pass any bill of attainder or ex post facto law; or
(10) deny to any person accused of an offense punishable
by imprisonment the right, upon request, to a trial by jury
of not less than six persons.
Part 2
Bylaws
Article I
The Tribal Council
Section 1. The Chairman of the Council shall preside over
all meetings of the Council, perform all duties of chair-
man, and exercise any authority detailed to him, and he
shall be entitled to vote on all questions.
Section 2. The vice chairman shall assist the chairman
when called on so to do, in the absence of the chairman
shall preside, and when so presiding shall have all the-
privileges, duties, and responsibilities of the chairman.
App. 27
Section 3. The Council secretary shall forward a copy of
the minutes of all meetings to the Superintendent of the
Reservation and to the Commissioner of Indian Affairs.
Section 4. The duties of all appointed boards or officers of
the organization shall be clearly defined by resolutions of
the Council at the time of their creation or appointment.
Such boards and officers shall report from time to time as
required to the Council amd their activities and decisions
shall be subject to review by the Council upon petition of
any person aggrieved.
Section 5. Newly elected members who have been duly
certified shall be installed at the first regular meeting of
the Tribal Council.
Section 6. Each member of the Tribal Council and each
officer or subordinate officer, elected or appointed here-
under, shall take an oath of office prior to assuming the
duties thereof, by which oath, he shall pledge himself to
support and defend the constitution of the United States —
and this Constitution and Bylaws. The following form of
oath of office shall be given: “I, , do
solemnly swear (or affirm) that I will support and defend
the Constitution of the United States against all enemies,
to carry out faithfully and impartially, the duties of my
office to the best of my ability; to cooperate, promote, and
protect the best interests of my Tribe, in accordance with
this Constitution and Bylaws.”
Section 7. Regular meetings of the Tribal Council shall be
held on the first Friday of January, April, July, and Octo-
ber, at 9:00 a.m., at the Flathead Agency.
Section 8. Special meetings may be called by a written
notice signed by the chairman or a majority of the Tribal
App. 28
Council and when so called the Tribal council shall have
power to transact business as in regular meetings.
Section 9. No business shall be transacted unless a
quorum is present which shall consist of two-thirds (?/s) of
the entire membership.
Section 10. Order of business:
(a) Call to order by chairman.
(b) Roll call.
(c) Reading of minutes of last meeting.
(d) Unfinished business.
(e) Reports.
(f) New business.
(g) Adjournment.
Section 11. It shall be the duty of each member of the
Tribal Council to make reports to the district from which
he is elected, concerning the proceedings of the Tribal
Council.
Section 12. The Tribal council may prescribe such salaries
for officers or members of the council as it deems advis-
able, from such funds as may be available.
Article II
Ordinances and Resolutions
Section 1. All final decisions of the Council on matters of
general and permanent interest to the members of the
Confederated Tribes shall be embodied in ordinances.
Such ordinances shall be published from time to time for
the information and education of the members of the
Confederated Tribes.
App. 29
Section 2. All final decisions of the Council on matters of
temporary interest (such as action on the reservation
budget for a single year, or petitions to Congress or the
Secretary of the Interior) or relating especially to particu-
lar individuals or officials (such as adoption of members,
instructions for tribal employees or rules of order for the
Council) shall be embodied in resolutions. Such resolutions
shall be recorded in a special book which shall be open to
inspection by members of the Confederated Tribes.
Section 3. All questions of procedure (such as acceptance
of Committee reports or invitations to outsiders to speak)
shall be decided by action of the Council or by ruling of the
Chairman, if no objection is heard. In all ordinances,
resolutions or motions the Council may act by majority
vote, but all matters of importance shall be fully discussed
and a reasonable attempt shall be made to secure unani-
mous agreement.
Section 4. Legislative forms. Every ordinance shall begin
with the words: “Be it enacted by the Council of the
Confederated Salish and Kootenai Tribes —.”
Section 5. Every resolution shall begin with the words:
“Be it resolved by the Council of the Confederated Salish
and Kootenai Tribes —.”
Section 6. Every ordinance or resolution shall contain a
recital of the laws of the United States and the provisions
of this Constitution under which authority for the said
ordinance or resolution is found.
App. 30
Article II
Ratification of Constitution and Bylaws
This Constitution and the attached Bylaws, when
adopted by a majority vote of the voters of the Confederated
Tribes voting at a special election called by the Secretary
of the Interior, in which at least thirty (30) percent of
those entitled to vote shall vote, shall be submitted to the
Secretary of the Interior for his approval, and shall be in
force from the date of such approval.
App. 31
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF RONAN, TOWN OF ST. IGNATIUS
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
WHEREAS, the 1993 Montana Legislature enacted
Senate Bill 368, which provided for the partial withdrawal
of the consent of the Confederated Salish and Kootenai
Tribes of the Flathead Nation [Tribes] to Public Law 280
jurisdiction on the Flathead Reservation; and
WHEREAS, Senate Bill 368 is codified in the Mon-
tana statutes at Mont. Code Ann. § 2-1-306 (1993) which
provides that the Flathead Nation may, by tribal resolu-
tion, withdraw consent to be subject to the criminal
misdemeanor jurisdiction of the State of Montana [State]
and that within six months after receipt of a tribal resolu-
tion withdrawing tribal consent the Governor shall issue a
proclamaticn to that effect; and
WHEREAS, the Tribes, the State, and affected county
and local governments have a mutual desire to provide for
a smooth implementation of tribal reassumption of exclu-
sive jurisdiction over misdemeanor crimes committed by
Indians; and
WHEREAS, the overriding purpose of this Memoran-
dum of Agreement [Agreement] is to provide for timely
and effective law enforcement and the protection of the
public safety; and
App. 32
WHEREAS, this Agreement is entered into pursuant
to the State-Tribal Cooperative Agreements Act, codified at
Mont. Code Ann. §§ 18-11-101 through -112 and Article VI,
Section l(c) of the Constitution of the Tribes approved by
the Secretary of the Interior on October 28, 1935; and
WHEREAS, the Tribes, the State, and affected local
governments shall act in good faith to effectuate the
specific provisions of this Agreement; and
WHEREAS, the Tribe’s resolution to withdraw from
Public Law 280 includes language allowing continued
state misdemeanor criminal jurisdiction in limited areas
as specifically delineated in the body of the agreement.
NOW, THEREFORE, BE IT RESOLVED THAT THE
FLATHEAD NATION AND, THE STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT SPRINGS,
THE CITY OF RONAN, AND THE TOWN OF ST. IGNA-
TIUS ENTER INTO THIS MEMORANDUM OF AGREE-
MENT AS FOLLOWS:
I. LAW ENFORCEMENT
A. DISPATCH ASSESSMENT OF INCOMING
CALLS
1. EXIGENT CIRCUMSTANCES
Upon receiving an incoming call, tribal, state, county
and city dispatch officers will dispatch the nearest officer
to the scene of a crime where exigent circumstances do not
allow for an assessment of whether the persons involved
are Indian or non-Indian.
App. 33
2. ASSESSMENT OF DISPATCH CALLS
When an incoming call to dispatch is not an immedi-
ate exigent emergency, the dispatcher shall determine the:
a. nature of the call;
b. possible suspect/victims; and
c. location of incident.
3. REFERRAL TO APPROPRIATE AGENCIES
If the key parties to the incident are Indian, and it is
not clear that the reported offense would be charged as a
felony, state, county or city dispatchers will relay the
information directly to tribal dispatch. If the key parties to
the incident are Indian and tribal dispatch receives the
call, tribal dispatch will contact tribal officers. If the key
parties are non-Indian and tribal dispatch received the
call, tribal dispatch will relay the information directly to
the appropriate state, county or city dispatch officer. In
either situation, the person making the call will not be told
to call the other jurisdiction. The dispatchers of the re-
spective jurisdictions shall directly relay information to
the appropriate dispatch office.
4. UNCLEAR ASSESSMENT
If a clear assessment of the status of the key parties is
not possible by dispatchers, direct law enforcement ser-
vices will be provided by the jurisdiction receiving the call.
App. 34
B. OFFICER RESPONSE TO DISPATCH CALLS
1. FIELD RESPONSE TO DISPATCH CALLS
Law enforcement officers dispatched into the field,
either as the nearest officer available for exigent circum-
stances or as the appropriate officer due to the status of
the persons involved, shall respond as immediately as
possible. Once dispatched, officers shall attempt no as-
sessment of proper jurisdiction until public safety is
secured. If it is clear to the law enforcement officer that
the offense committed will be charged as a felony, the
officer will proceed pursuant to the authority of the juris-
diction represented. If it is unclear whether the offense
will be charged as a felony or as a misdemeanor, the officer
will determine the status of the suspect involved.
2. FIELD DETERMINATION OF “INDIAN”
Law enforcement officers will determine the In-
dian/non-Indian status of a suspect at the crime scene as
soon as reasonable after providing any emergency law
enforcement services and securing public safety. For
purposes of the Agreement an “Indian” is a person who is
an enrolled member of a federally-recognized tribe. To
make such determination, the suspect will be questioned
as to whether she/he is an Indian.
a. Self-identification as Indian With Proof
of Enrollment
If the suspect responds in the affirmative, the officer
wil] obtain enrollment information and call the tribal
dispatch officer, who will verify the enrollment status via
contacting the specified Tribe’s dispatch office and request-
ing an enrollment verification. If the suspect’s Indian
App. 35
status is verified, the non-tribal officer will request tribal
officer response if necessary.
b. Self-identification as Indian Without
Proof of Enrollment
If the suspect claims to be an Indian to the non-tribal
officer but is unable to provide enrollment information, the
suspect will properly be within the jurisdiction of the
responding non-tribal officer until enrollment information
is secured or until a successful defense of lack of jurisdic-
tion is raised at trial.
If the suspect claims to be an Indian to a responding
tribal officer but is unable to provide verifying informa-
tion, the suspect is properly within the jurisdiction of the
Tribes unless a successful defense of lack of jurisdiction is
raised at trial.
C. TRAFFIC STOPS
1. NON-TRIBAL OFFICER STOPS
A non-tribal law enforcement officer may stop any
vehicle upon a reasonable suspicion of criminal activity.
The non-tribal officer may also conduct a protective frisk
of the suspect and the area in the suspect’s immediate
control, whether Indian or non-Indian, if the officer rea-
sonably believes that the suspect may be armed with a
weapon.
The non-tribal officer must then determine the In-
dian/non-Indian status of the suspect. If the suspect is
Indian, as verified by the tribal dispatch, the officer may,
either issue a citation for the alleged violation pursuant to
App. 36
section D or, if the officer determines that an arrest is
necessary, request response by a tribal officer.
The non-tribal officer shall have euthority to detain
the Indian suspect pursuant to Section E: Unavailability
of an Appropriate Officer.
2. TRIBAL OFFICER TRAFFIC STOPS
A tribal officer may stop any vehicle upon a reason-
able suspicion of criminal activity. The tribal officer may .
also conduct a protective frisk of the suspect and the area
in the suspect’s immediate control, whether Indian or non-
Indian, if the officer reasonably believes that the suspect
may be armed with a weapon.
The tribal officer must then determine the Indian/non-
Indian status of the suspect. If the suspect is non-Indian,
the tribal officer may either issue a citation for the alleged
violation pursuant to section D or, if the officer determines
that an arrest is necessary, request response by a non-
tribal officer.
The tribal officer shall have authority to detain the
suspect until the arrival of the non-tribal officer pursuant
to Section E: Unavailability of an Appropriate Officer.
D. CITATION AUTHORITY
1. TRIBAL OFFICERS
Officers who have met tribal requirements for certifi-
cation and who have been certified by the Tribes as law
enforcement officers are hereby commissioned by each
other party to this Agreement to exercise limited authority
within those portions of the respective jurisdictions which
App. 37
lie within the exterior boundaries of the Flathead Indian
Reservation. These tribal officers may exercise authority
limited to that necessary for issuance of citations for
violations of the state traffic laws and laws regarding
minors in possession of alcohol. This authority includes
that necessary to collect bond for the respective jurisdic-
tion.
When a tribal officer makes a stop upon a reasonable
suspicion of a criminal violation and determines 1) that
the suspect is a non-indian and 2) that an arrest is not
necessary, the tribal officer is commissioned to act as an
agent of the appropriate non-tribal jurisdiction and issue a
citation for violation of state traffic laws and laws regard-
ing minors in possession of alcohol.
2. NON-TRIBAL OFFICERS
Officers who have met the necessary requirements for
certification as law enforcement officers of the respective
state, county and city jurisdictions and who have been
certified by the respective jurisdiction are hereby commis-
sioned by the Tribes to exercise authority within the
exterior boundaries of the Flathead Reservation. These
non-tribal officers may exercise authority limited to that
necessary for issuance of citations for violations of the
tribal traffic ordinances and ordinances regarding minors
in possession of alcohol. This authority includes that
necessary to collect bond for the Tribes.
When a non-tribal officer makes a stop upon a reason-
able suspicion of a violation and determines 1) that the
suspect is an Indian and 2) that an arrest is not necessary,
the non-tribal officer is commissioned to act as an agent of
the Tribes and issue a citation for violation of tribal traffic
App. 38
ordinances and ordinances regarding minors in possession
of alcohol.
3. CHAIN OF COMMAND
The chain of command for the law enforcement offi-
cers of the parties to this Agreement shall not be changed
by the granting of authority to issue citations on behalf of
a jurisdiction other than that of the officer. Officers will
continue to report to and be accountable to superiors to
whom they now report.
4. LIABILITY
Each party shall remain liable for the actions of their
employees for purposes of this Section of the Agreement to
the same extent that they are currently. No parties as-
sume liability for employees of the other parties for actions
authorized by this Section providing for citation authority.
E. UNAVAILABILITY OF APPROPRIATE OFF'I-
CER WHEN ARREST NECESSARY
Y 1. STOP BY NON-TRIBAL OFFICER
If upon a request from a non-tribal officer, a tribal
officer determines he is unable to respond to a traffic stop
which necessitates an arrest of an Indian person for
protection of public safety within 30 minutes of the deten-
tion of the Indian suspect, the tribal officer may authorize
the non-tribal officer to arrest and transport the suspect to
the Tribal Law and Order facility. Such arrest and trans-
port in a traffic-stop situation cannot occur without the
express grant of authority from the tribal officer to the
non-tribal officer pursuant to section F. An arrest made
App. 39
with an express grant of authority from the tribal officer
includes a grant of authority to completely process the
suspect for the crime.
If the traffic stop of an Indian suspect by a non-tribal
officer does not warrant the arrest of the suspect, the non-
tribal officer may issue a citation for the alleged violation
pursuant to section D or file a report of probable cause and
report. of traffic violation to the tribal prosecutor’s office.
2. STOP BY A TRIBAL OFFICER
If upon request from a tribal officer the non-tribal
officer determines he is unable to respond to a traffic stop
which necessitates an arrest of a non-Indian within 30
minutes of the detention of the non-Indian suspect, the
non-tribal officer may authorize the tribal officer to arrest
and transport the suspect to the county or city law en-
forcement facilities. Such arrest and transport in a traffic-
stop situation cannot occur without the express grant of
authority from the non-tribal officer to the tribal officer
pursuant to section F. An arrest made with an express
grant of authority from the non-tribal officer includes a
grant of authority to completely process the suspect for the
crime.
If the traffic stop of a non-Indian suspect by a tribal
officer does not warrant the arrest of the suspect, the
tribal officer may issue a citation for the alleged violation
pursuant to section D or file a report of probable cause and
report of traffic violation to the tribal prosecutor’s office
who will then forward it to the appropriate prosecutor’s
office.
App. 40
F. ARREST AUTHORITY
1. ARREST BY NON-TRIBAL OFFICER OF
TRIBAL SUSPECT
A non-tribal officer may make an arrest of an Indian
person only when granted authority to do so by a tribal
officer after the tribal officer indicates he is unable to
assure he can be at the scene within 30 minutes of the
detention of the Indian suspect, and:
a. the non-tribal officer establishes to tribal
officer that probable cause for the arrest exists, or
b. when the crime by the Indian person is
committed or being committed in the non-tribal officer’s
presence and an arrest is necessary to protect the public or
preserve the evidence.
The tribal officer may give a verbal grant of authority
arrest to the non-tribal officer.
2. ARREST BY TRIBAL OFFICER OF NON-
INDIAN SUSPECT
A tribal officer may make an arrest of a non-Indian
suspect only when granted authority to do so by a non-
tribal officer after the non-tribal officer indicates he is
unable to assure he can be at the scene within 30 minutes
of the detention of the non-Indian suspect, and:
a. the tribal officer establishes to the non-tribal
officer that probable cause for the arrest exists, or
b. when the crime by the non-Indian person is
committed or being committed in the tribal officer’s
presence and an arrest is necessary to protect the public or
preserve the evidence.
App. 41
The non-tribal officer may give a verbal grant of
authority for arrest to the tribal officer.
3. LIABILITY
Each party shall remain liable for the actions of their
employees for purposes of this Section of the Agreement to
the same extent that they are currently. No parties as-
sume liability for employees of the other parties for actions
authorized by this Section providing for arrest authority.
G. INVESTIGATIONS
1. UNKNOWN SUSPECT
a. When the suspect is unknown and exigent
circumstances do not allow for an assessment of whether
the persons involved in an incident are Indian or non-
Indian, officers of the responding jurisdiction will stabilize
the situation and take the lead in the necessary investiga-
tory work.
b. When the suspect is unknown and it is
determined that the victims are both Indian and non-
Indian, the responding jurisdiction will lead the investiga-
tion with the cooperation of the other jurisdictions until
the identity of the suspect is determined.
c. When the suspect is unknown and it is deter-
mined that the victim is Indian, the tribal officers will
take the lead in the investigation until the identity of the
suspect is determined.
d. When the suspect is unknown and it is
determined that the victim is non-Indian, the non-tribal
App. 42
officers will take the lead in the investigation until the
identity of the suspect is determined.
2. KNOWN SUSPECT
a. When the suspect is known to be Indian, the
tribal officers will take the lead in the investigation.
b. When the suspect is known to be non-Indian,
non-tribal officers will take the lead in the investigation.
c. When there are multiple suspects known to be
Indian and non-Indian the respective jurisdictions will
each conduct investigations in preparation for separate
prosecutions. However, each jurisdiction will fully cooper-
ate with the other jurisdiction in its investigation and will
share investigatory information with the other jurisdic-
tions.
3. COST OF INVESTIGATIONS
Each jurisdiction will cover the costs of investigations
conducted by its officers.
4. LIABILITY
Each law enforcement agency shall assume liability
for the conduct of its officers during all investigations.
‘H. COOPERATIVE MEETINGS
1. COOPERATION BETWEEN LOCAL LAW
ENFORCEMENT AGENCIES
At least two joint meetings of all law enforcement
agencies shall occur either before or within one month of
App. 43
effectuating partial retrocession. One cross-training
meeting shall occur at the Tribal Law and Order Depart-
ment and one cross-training session shall occur at a
facility of a county or city jurisdiction.
II. CRIMINAL PROCEEDINGS
A MISDEMEANORS
1. All misdemeanor crimes committed by Indi-
ans shall be proseeuted in the Confederated Salish and
Kootenai Tribal Court with the exception of those misde-
meanor convictions resulting from a guilty plea, entered in
state court, pursuant to a plea bargain agreement reduc-
ing a felony to a misdemeanor or the result of a conviction
in state court on a lesser included offense in a felony trial.
2. The State may retain jurisdiction of Indian
persons for misdemeanor crimes in the limited circum-
stances that they result from a reduction of a felony
offense due to a lesser included offense jury instruction at
trial. If probation is a part of the sentence, it may be
monitored by tribal probation personnel pursuant to
agreement between the Department of Corrections and
Human Services and the Tribes.
3. The State may retain jurisdiction of Indian
persons for misdemeanor crimes in the limited circum-
stance that they result from plea brrgains which are
negotiated before a trial verdict which reduce felony
crimes to misdemeanors. If probation is a condition of the
plea bargain, such probation may be monitored by tribal
probation personnel pursuant to agreement between the
Department of Corrections and Human Services and the
Tribes.
App. 44
B. CONCURRENT TRIBAL/STATE FELONY JURIS-
DICTION
The Tribes continue to retain concurrent jurisdiction
with the State over felony crimes committed by Indians
but may transfer prosecution of such crimes to the State.
Factors the Tribes will consider when retaining jurisdic-
tion over felony crimes include:
1. Seriousness of crime
Age of Defendant
Criminal History of Defendant
Ties to the Reservation
Family on Reservation
ee Be
Sentence upon conviction in state court
versus actual jail time likely in tribal
jail
7. Prospect of rehabilitation
8. Access to appropriate services.
The State continues to retain jurisdiction, concurrent
with that of the Tribe, over felony crimes committed by
Indians but may transfer prosecution of such crimes to the
Tribes if warranted.
C. TRANSFER OF PROSECUTION
1. REDUCTION FROM FELONY TO MISDE-
MEANOR BEFORE TRIAL
When a crime is charged as a felony by the State but
prosecutorial discretion necessitates a reduction to a
misdemeanor before trial, the state prosecutor will inform
the tribal prosecutor. After providing adequate time for the
tribal prosecutor to file the charging document in tribal
App. 45
court, the State will move to dismiss its action without
prejudice.
2. UPGRADE FROM MISDEMEANOR _TO
FELONY BEFORE TRIAL
When a crime is charged as a misdemeanor in tribal
court but evidence necessitates an increase to a felony
before trial and the tribal prosecutor determines that the
case should be transferred to the State, the tribal prosecu-
tor will inform the appropriate county attorney. After
providing adequate time for the county attorney to file the
charging document in state court, the tribal prosecutor
will move to dismiss its action without prejudice.
D. PROBATION
1. Probation ordered for all tribal defendants in
Tribal Court shall be monitored by tribal probation per-
sonnel.
2. Probation ordered for all tribal defendants
who are convicted in a state district court for a felony
offense shall remain under state jurisdiction but may be
supervised by tribal probation personnel pursuant to
agreement between the Department of Corrections and
Human Services and the Tribes. Tribal probation person-
nel shall fulfill reporting requirements of state jurisdic-
tions for purposes of revocation. Such revocations shall be
within state jurisdiction when the conviction and ordered
probation occurred within a state jurisdiction.
App. 46
E. TESTIMONY OF LAW ENFORCEMENT. OF-
FICERS AT TRIAL
All non-tribal law enforcement officers shall abide by
the subpoena power of tribal court jurisdiction and all
tribal law enforcement officers shall abide by the subpoena
power of state court jurisdiction. Specifically, law enforce-
ment officers agree to provide testimony in all jurisdictions
as appropriate.
F COMMUNICATION BETWEEN TRIBES AND
LOCAL AGENCIES
The tribal prosecutors and the state prosecutors shall
meet bi-monthly for a period of six months. At the end of
the six-month period, the frequency of such meetings shall
be reviewed. These meetings will allow an open exchange
of information on pending cases to insure that each juris-
diction is prosecuting cases appropriate for that jurisdic-
tion in good faith. Communication with other jurisdictions
shall be on a case-by-case basis.
III. GENERAL PROVISIONS
A. JURISDICTION OF STATE COURTS ENTER-
ING JUDGMENT PRIOR TO DATE OF RET-
ROCESSION
Any state court issuing a judgment of conviction for a
misdemeanor offense by an Indian prior to the effective
date of retrocession will maintain jurisdiction over the
case and the defendant, including jurisdiction to issue
contempt orders, until the judgment of conviction is fully
satisfied.
App. 47
B. PUBLIC ACCESS TO COURT DOCKETS
Court dockets of the courts of the respective jurisdic-
tions will be open to the public.
C. REVIEW OF PROCESS
In order that the parties to this Agreement may
continue to provide cooperative and efficient law enforce-
ment services to the people residing on the Flathead
Reservation, the Attorney General for the State will
convene a meeting of representatives of the participating
jurisdictions no later than March 31, 1995, to review the
procedures provided for in this Agreement.
D. EFFECTIVE DATE AND TERM
The Agreement shall become effective upon execution
by the parties on either the date of execution or the date
the Governor of Montana issues the proclamation retro-
ceding criminal misdemeanor jurisdiction to the Tribes,
whichever comes later.
This Agreement shall be in effect for a term of five (5)
years from the effective date unless earlier terminated as
herein provided. Prior to the expiration of this Agreement,
or upon its termination, the parties may agree to the
renewal of the Agreement for a term agreed upon by the
parties.
E. TERMINATION AND WITHDRAWAL
This Agreement may be terminated at any time upon
written consent of all parties. Any party may withdraw
from this Agreement provided said party gives notice of
App. 48
withdrawal to all other parties by certified mail at least
120 days prior to such withdrawal.
F. AMENDMENTS
This Agreement may be amended at any time pro-
vided said amendments are in writing and signed by all
parties to the Agreement.
G. NEGATIVE DECLARATION
Nothing in this Agreement shall be deemed as a
concession by any party as to any other party’s jurisdic-
tional claims or an admission of the same, or a waiver of
the right to challenge such claims upon termination of the
Agreement. Nothing in this Agreement shall prejudice the
right of any individual to challenge the regulatory or
adjudicatory jurisdiction of either party. Neither this
Agreement nor the activities of the parties pursuant to
this Agreement shall be deemed as enlarging or diminish-
ing the jurisdiction or authority of any of the parties
within the Flathead Reservation.
H. NOTICES
All notices and other communications required to be
given hereunder by the Parties to this Agreement shall be
deemed to have been duly given when delivered in person
or posted by United States certified mail, return receipt
requested, with postage prepaid, addressed as follows:
ean
App. 49
If to the Tribes:
Chairman
Confederated Salish and Kootenai Tribes
P.O. Box 278
Pablo, Montana 59855
If to the State:
Attorney General
Department of Justice
215 North Sanders
Helena, Montana 59620-1404
If to Flathead County
Flathead County Commissioners
Flathead County Courthouse
920 South Main
Kalispell, MT 59901
If to Lake County
Lake County Commissioners
Lake County Courthouse
106 4th Ave. East
Polson, MT 59860
If to Missoula County
Missoula County Commissioners
Missoula County Courthouse
200 West Broadway
Missoula, MT 59802
If to Sanders County
Sanders County Commissioners
Sanders County Courthouse
Thompson Falls, MT 59873
App. 50
7 Ifto the City of Hot Springs
Mayor
City of Hot Springs City Hall
Hot Springs, MT 59845
8. Ifto the City of Ronan
Mayor
City of Ronan
109 Second Avenue Southwest
Ronan, MT 59864
9. Ifto the Town of St. Ignatius
Mayor
City of St. Ignatius City Hall
St. Ignatius, MT 59865
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
SIGNATURE PAGE
CONFEDERATED SALISH AND KOOTENAI TRIBES
/s/ Michael T. Pablo
MICHAEL T. PABLO, Tribal Chairman
DATED _ 9/30/94
App. 51
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
SIGNATURE PAGE
STATE OF MONTANA
/s/ Joseph P. Mazurek
JOSEPH P. MAZUREK, Attorney General
DATED _ 9-30-94
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
SIGNATURE PAGE
FLATHEAD COUNTY COMMISSIONERS
/s/ William D. Hedstrom
WILLIAM D. HEDSTROM
/s/ Howard Gipe
HOWARD GIPE
App. 52
SHARON STRATTON
DATED _10-3-94
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
SIGNATURE PAGE
LAKE COUNTY COMMISSIONERS
MIKE HUTCHIN
JERRY NEWGARD
DAVE STIPE
DATED
App. 53
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION,
SIGNATURE PAGE
MISSOULA COUNTY COMMISSIONERS
/s/ Fern Hart
FERN HART
/s/ Barbara Evans
BARBARA EVANS
/s/ Ann Mary Dussault
ANN MARY DUSSAULT
DATED _ 9/28/94
ATTEST:
/s/ Vickie M. Zeier
VICKIE M ZEIER
CLERK & RECORDER
App. 54
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION |
SIGNATURE PAGE
SANDERS COUNTY COMMISSIONERS
/s/ Norman E. Resler
NORMAN E. RESLER
/s/ Cherie Hooten
CHERIE HOOTEN
/s/ Jack Marriman
JACK MARRIMAN
DATED _ 9-29-94
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
SIGNATURE PAGE
App. 55
CITY OF HOT SPRINGS
/s/ Irwin D. Bangen, Mayor
IRWIN D. BANGEN, Mayor
DATED _ 9/30/94
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD NATION
SIGNATURE PAGE
CITY OF RONAN
Signed under protest
/s/ George Atkinson
GEORGE ATKINSON, Mayor
DATED _ 9-30-94
MEMORANDUM OF AGREEMENT
BETWEEN
STATE OF MONTANA,
FLATHEAD COUNTY, LAKE COUNTY, MISSOULA
COUNTY, SANDERS COUNTY, CITY OF HOT
SPRINGS, CITY OF POLSON, CITY OF RONAN
TOWN OF ST. IGNATIUS
AND
THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF 'THE FLATHEAD NATION
SIGNATURE PAGE
App. 56
TOWN OF ST. IGNATIUS
/s/ Sam Rouillier
SAM ROUILLIER, Mayor
DATED _10-4-94
App. 57
State of Montana
Proclamation
WHEREAS, the State of Montana obligated itself to
assume criminal jurisdiction over Indians on the Flathead
Indian Reservation in accordance with the consent of the
United States given by the act of August 15, 1953, 67 Stat.
590, and 1963 Mont. Laws, ch. 81, § 1; and
WHEREAS, the Confederated Salish and Kootenai
Tribal Council adopted Ordinance 40A (revised) granting
the State of Montana permission to assume concurrent
jurisdiction over certain subjects, including the extension of
the state criminal laws over Indians; and
WHEREAS, the State of Montana, through the enact-
ment of 1993 Mont. Laws, ch. 542 (codified at Mont. Code
Ann. § 2-1-306), provided that the Confederated Salish and
Kootenai Tribes could, through tribal resolution, withdraw
consent to be subject to the criminal misdemeanor jurisdic-
tion of the State of Montana; and
WHEREAS, the Confederated Salish, and Kootenai
Tribal Council recognizes the State of Montana will con-
tinue the exercise of concurrent felony criminal jurisdiction
over Indians on the Flathead reservation; and
WHEREAS, on April 1, 1994, the Confederated Salish
and Kootenai Tribal Council passed Resolution No. 94-123,
withdrawing tribal consent allowing the State of Montana
to exercise concurrent jurisdiction over Indians committing
misdemeanor criminal offenses within the external
boundaries of the Flathead Indian Reservation; except, to
App. 58
the extent that the State of Montana needs permission from
the Confederated Salish and Kootenai Tribes to negotiate
plea bargains of felony charges resulting in misdemeanor
convictions; and to the extent necessary to allow state
courts to provide appropriate jury instructions in felony
trials which would include conviction on “lesser included
misdemeanor offenses.”
NOW, THEREFORE, I, MARC RACICOT, Governor of
the State of Montana, do hereby proclaim that the State of
Montana retrocedes to the United States all jurisdiction
over Indians committing iisdemeanor criminal offenses
within the external boundaries of the Flathead Indian
Reservation, except to the extent that the State of Montana
negotiates plea bargains of felony charges resulting in
misdemeanor convictions, and to the extent the courts of the
State of Montana provide appropriate jury instructions in
felony trials which would result in conviction of a lesser
included misdemeanor offense.
IN WITNESS WHEREOF, I have
hereunto set my hand and caused the
GREAT SEAL OF THE STATE OF
MONTANA to be affixed. DONE at the
City of Helena, the Capital, this thzrti-
eth day of September, in the year of our
LORD, one thousand nine hundred and
ninety-four
/s/ Marc Racicot
MARC RACICOT
Governor of Montana
ATTEST:
/s/ Mike Cooney
MIKE COONEY
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.