10 NICS App. 60, PORT GAMBLE S’KLALLAM TRIBE v. HJERT (December 2011)
IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS
PORT GAMBLE S’KLALLAM INDIAN RESERVATION
KINGSTON, WASHINGTON
Port Gamble S’Klallam Tribe, Plaintiff/Appellant,
v.
Michael Hjert, Defendant/Appellee.
No. POR-CR-09/09-169; 06/10-101; 07/10-142; 143; 11/10-257 (December 20, 2011)
SYLLABUS*
Non-Indian consented to tribal criminal jurisdiction. Trial court judge sua sponte dismissed the charge, along with prior charges and related probation violation allegations, on grounds that tribe lacked subject matter jurisdiction pursuant to U.S. Supreme Court’s decision in Oliphant v. Suquamish. Noting that U.S. Supreme Court decisions, including Oliphant, discussing tribal jurisdiction routinely refer to tribes’ “inherent authority” without distinguishing between personal jurisdiction and subject matter jurisdiction, Court of Appeals concludes that a tribe’s lack of authority under federal law to try and punish a non-Indian for a violation of the tribe’s criminal laws is in the nature of its lack of personal jurisdiction over the non-Indian. Court of Appeals holds that because personal jurisdiction can be waived, federal law does not prohibit tribe from asserting criminal jurisdiction over a non-Indian if there is a valid waiver of the personal jurisdiction requirement. However, Court of Appeals further holds that tribe had not adopted affirmative statutes vesting its courts with criminal jurisdiction over consenting non-Indians, and that even if it had, the accused’s “consent” in these cases did not satisfy minimum due process requirements necessary to constitute a valid waiver. Trial court order affirmed, although on grounds other than that asserted by trial court.
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Eric Nielsen, Chief Judge; Randy A. Doucet, Judge; Suzanne Ojibway Townsend, Judge. |
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Tim Rybka, Port Gamble S’Klallam Tribal Prosecutor, for Appellant; Steve Tanijo, for Appellee. |
10 NICS App. 60, PORT GAMBLE S’KLALLAM TRIBE v. HJERT (December 2011) p. 61
OPINION
Nielsen, C.J.:
I. Facts
Between September 2009 and September 2010, Michael Hjert, a non-Indian, was charged in the Port Gamble S’Klallam Tribal Community Court under separate cause numbers with multiple alcohol related offenses. Hjert pled guilty to those offenses. His sentences included detention, probation and fines.
On November 29, 2010, Hjert was charged with another alcohol related offense. In the complaint, the Tribe alleged Hjert was a “Non Native American defendant who has consented to Tribal jurisdiction.” The consent form signed by Hjert states:
With this form, you are being requested to consent to the criminal jurisdiction of the Port Gamble S’Klallam Tribal Community. YOU DO NOT HAVE TO CONSENT TO JURISDCTION. If you do not consent, this Tribe will not prosecute you. The matter may be referred to the county, state, or federal authorities for prosecution, however.
If you do consent, this written consent is limited to this one incident only. However, more than one charge may arise out of this one incident.
Also, if you consent, you are not necessarily saying you are guilty of any offenses. You may still maintain your innocence even if you do consent to be prosecuted by the Port Gamble S’Klallam Tribal Community.
Further, this consent will continue throughout the case. For example, if the Court finds you guilty of an offense and orders you to pay a fine or participate in counseling, you cannot later withdraw your consent to avoid obligations imposed by Court orders. (Emphasis original).
At a hearing held on January 19, 2011, the judge sua sponte dismissed the charge and related probation violation allegations on the grounds the Tribe lacked subject matter jurisdiction under Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). An order dismissing the offense and all the prior offenses was entered on January 25, 2011.
The Tribe appeals from the dismissal order. The Tribe contends the Community Court had jurisdiction to try and punish Hjert based on Hjert’s consent to the Tribe’s criminal jurisdiction.
10 NICS App. 60, PORT GAMBLE S’KLALLAM TRIBE v. HJERT (December 2011) p. 62
II. Decision
This issue in this case is whether the Port Gamble S’Klallam Tribal Community Court had jurisdiction to try and punish Hjert, a non-Indian1, for a crime committed on the Reservation based on his consent. The trial judge ruled it did not under the United States Supreme Court’s holding in Oliphant.
“The Court of Appeals shall limit its review to issues of law except that the Court of Appeals may review findings of fact in cases tried before a judge sitting without a jury and shall set aside such findings of fact if they are clearly erroneous.” PGSTC 7.03.04. Whether the trial court had jurisdiction is a question of law. Because the trial judge’s decision is not dependent on issues of credibility or the weighing of facts, we are in the same position as the trial judge to determine this purely legal issue. Therefore, we review the trial judge’s decision de novo.2
Under Article I of the Constitution of the Port Gamble S’Klallam Tribe:
The jurisdiction of the Port Gamble S’Klallam Tribe shall extend over the following, to the fullest extent, except where prohibited by codes, statutes, ordinances or resolutions of the Port Gamble S'Klallam Tribe ("Tribal Law") or applicable federal law:
A. All persons, property and activities within: (1) the confines of the Port Gamble S’Klallam Reservation as established by Proclamation dated June 16, 1938, and (2) such other lands as may hereafter be added thereto, and (3) other lands held or acquired by the Port Gamble S’Klallam Tribe or for the benefit of the Port Gamble S’Klallam Tribe;
(Emphasis added).
Title 1 of the Port Gamble S’Klallam Tribe Community Court General Rules provides, “[t]he Port Gamble S’Klallam Community Court is vested with the fullest personal, subject matter and territorial jurisdiction permissible under applicable law.” PGSTC 1.02.01 (emphasis added). When PGSTC 1.02.01 is read in conjunction with Article I, the Tribe’s intent is to assert its jurisdiction unless prohibited by its own codes or applicable federal law and to authorize its
10 NICS App. 60, PORT GAMBLE S’KLALLAM TRIBE v. HJERT (December 2011) p. 63
court to exercise personal, subject matter or territorial jurisdiction where permitted by applicable law.
We find no Tribal law that specifically prohibits the court from asserting criminal jurisdiction over a consenting non-Indian. But, that does not end the inquiry. First, we must determine whether the Tribe’s asserted jurisdiction is prohibited under applicable federal law. If we find it is not, we must then determine whether the Port Gamble S’Klallam Tribe has vested its Community Court with the authority to assert the Tribe’s criminal jurisdiction over a consenting non-Indian.
Tribes have criminal jurisdiction over their members. That authority derives from a tribe’s retained sovereignty. United States v. Wheeler, 435 U.S. 313, 325-26 (1978). Tribes have criminal jurisdiction over nonmember Indians because Congress has recognized that inherent power. United States v. Lara, 541 U.S. 193, 206-207 (2004). Tribes also possess the inherent sovereign powers to exclude non-members from tribal lands. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983). The authority to exclude necessarily includes the lesser authority to set conditions on their entry and continued presence through regulations. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144–45 (1982) (the power to exclude “necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct.”).3
The seminal case on the issue of a tribe’s criminal jurisdiction where the defendant is a non-Indian is Oliphant. In Oliphant the United States Supreme Court held that tribes do not possess inherent criminal jurisdiction over non-Indians. In that case the Suquamish Tribe, which like the Port Gamble S’Klallam Tribe signed a treaty with the United States and is located in Washington State, claimed it had the inherent sovereign authority to exercise criminal jurisdiction over a non-Indian’s violation of the Tribe’s criminal law occurring on its reservation, an authority that Congress had never taken away. Oliphant, 435 U.S. at 195-96. The Supreme Court disagreed. It held that although Indian tribes retain some inherent sovereign powers, by submitting to the overriding sovereignty of the United States, treaty tribes necessarily gave up the power to try non-Indian citizens of the United States. The Court ruled that for a tribe to exercise criminal jurisdiction over non-Indians would require a delegation of such power by Congress. Id. at 208 (“Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.”).
The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily
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give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.
Id. at 212.
The Court recognized that the Indian Civil Rights Act, which applies to anyone tried in tribal court, and the prevalence of crimes committed on reservations might argue for tribal criminal jurisdiction over non-Indians, but those “… are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians.” Id. at 212. The Court concluded, however, those considerations were irrelevant to the issue of whether tribes retained the inherent power to try and punish non-Indians. Because tribes gave up that power, citizens of the United States who are not Indians cannot be subjected to a tribe’s criminal jurisdiction. Id.
In Wheeler, decided shortly after Oliphant, the Court held a tribe had the inherent power to try and punish a member of the tribe. A tribe’s “sovereign power to punish tribal offenders,” while subject to congressional “defeasance,” remains among those “inherent powers of a limited sovereignty which has never been extinguished.” Wheeler 435 U.S. at 318.4 Later, in Duro v. Reina, 495 U.S. 676 (1990), the Court expanded its holding in Oliphant to include non-member Indians. It held that “the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership.” Id. at 679. The Court affirmed its ruling in Oliphant that a tribe’s power to criminally prosecute a non-member must be a delegation of that power from Congress and subject to the constraints of the Constitution. Id. at 686. The Court ruled, as American citizens, non-member Indians were not subject to the criminal authority of tribes were they could not become full tribal members. Id. at 692-93. The ruling was premised on a consent theory. “Retained criminal jurisdiction over members is accepted by our precedents and justified by the voluntary character of tribal membership and the concomitant right of participation in a tribal government, the authority of which rests on consent.” Id. at 694.
Congress immediately responded by overruling Duro in 1991. It amended the Indian Civil Rights Act to define tribal powers of self-government to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2).
In 2004 the Supreme Court discussed the amendment, sometimes referred to as the “Duro fix”, see, e.g., Lara, 541 U.S. at 216 (concurring opinion of Justice Thomas). Lara was an Indian charged with assaulting a police officer on the reservation where he lived but he was not a
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member of the tribe. Id. at 196. The tribe prosecuted Lara for the offense. Later, after he served his sentence, the United States government charged him for committing the same crime. Lara argued that double jeopardy barred the federal government from prosecuting him. Id. at 197. The Court ruled the “Duro fix” legislation was predicated on Congress’ recognition of the “inherent” authority of tribes to prosecute all Indians. Id. at 206–07. The Court determined Congress had the power to remove the restrictions it had previously placed on the tribes' “inherent” power to prosecute nonmember Indians. Id. It held that because Congress affirmed that the tribal authority to prosecute non-member Indians was inherent and was not a delegation of power, under the dual sovereignty doctrine5 the Tribe and the federal government were separate sovereigns and therefore, double jeopardy did not bar Lara's prosecution in both tribal and federal courts. Id. at 210.
In concluding Congress removed the restrictions on a tribe’s inherent power to prosecute a non-member Indian, the Court retreated from its earlier pronouncements in Oliphant and Duro that a tribe’s criminal jurisdiction over nonmembers could only be exercised if Congress delegated that authority. The Court reasoned its earlier decisions holding tribes did not have the “inherent” power to criminally try a nonmember but retained the “inherent” power to criminally try their own members was judicially made federal common law that Congress could change. Lara, at 207. “Wheeler, Oliphant, and Duro, then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes.” Id.
Generally, “[j]urisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). Subject-matter jurisdiction cannot be forfeited or waived “because it involves a court's power to hear a case ....” United States v. Cotton, 535 U.S 625, 630 (2002). Thus, parties cannot confer subject matter jurisdiction by consent. California v. LaRue, 409 U.S. 109 (1972); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377, n. 21 (1978) (quoting Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17 (1951)).
The requirement that a court have personal jurisdiction, however, flows from the Due Process Clause. U.S. Const. amend. V. The personal jurisdiction requirement recognizes and protects an individual’s liberty interest. Ins. Corp. of Ire. Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). “As [t]he personal jurisdiction requirement recognizes and protects an individual liberty interest, ... it can, like other such rights, be waived.” Dow Chemical Co. v. Calderon, 422 F.3d 827, 831 (9th Cir. 2005) (citations and internal quotation marks omitted). Due process rights can be waived only if the waiver is knowing and voluntary.
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D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 175 (1972); United States v. Navarro-Bottello, 912 F.2d 318, 321 (9th Cir.1990).
We have found no federal cases, however, squarely addressing the issue of whether a non-Indian can expressly consent to tribal criminal jurisdiction, nor has Congress expressly prohibited a Tribe from exercising its criminal jurisdiction over non-Indian who expressly consents to such jurisdiction.6 In Oliphant, Duro and Lara, the Court uses the term “inherent” power in the context of a Tribe’s criminal jurisdiction. The Court has never explained whether that term means subject matter or personal jurisdiction or something else altogether. If it means subject matter jurisdiction, then regardless of whether Hjert consented, the Tribal court did not have jurisdiction and the trial judge correctly dismissed the cases on that basis. If, however, the Court is referring to personal jurisdiction or something akin to personal jurisdiction, then Hjert could waive his right not to be tried and punished for a violation of the Tribe’s criminal laws.
The Court has relied on its judicially made federal common law holding in Oliphant in the context of a tribe’s civil jurisdiction over a non-Indian. Those decisions restate that a tribal court does not have criminal jurisdiction over a non-Indian, but cast little light on whether the holding in Oliphant is based on a tribe’s lack of subject matter or personal jurisdiction.
In Montana v. United States, 450 U.S. 544 (1981), for example, where the issue was the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe's reservation but owned in fee simple by non-Indians, the Court explained its holding in Oliphant rested on the “general proposition” that the “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id. at 564-567. It concluded, however, there are exceptions to the “general proposition” a tribe has inherent civil adjudicatory jurisdiction when the nonmember enters into consensual relationships with the tribe or its members through commercial dealing, contracts, leases, or other arrangements, or when the nonmember’s conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Id. at 565–566. The Court distinguished its decision in Oliphant on the ground that Oliphant held tribes had no “inherent” authority over non-Indians in criminal matters. Id. at 565.
In Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 854 (1985), the issue was whether in a civil suit non-Indian defendants were required to exhaust their tribal
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court remedies before the federal court could decide whether to assume jurisdiction. The Court explained that “[i]f we were to apply the Oliphant rule here, it is plain that any exhaustion requirement would be completely foreclosed because federal courts would always be the only forums for civil actions against non-Indians.” Id. at 854.
In Nevada v. Hicks, 533 U.S. 353 (2001), another case involving a tribe’s civil adjudicatory jurisdiction over a non-Indian, Justice Scalia, the author of the lead opinion, cited Oliphant for the general proposition that a tribe’s power does not extend to the activities of nonmember. Id. at 358. He noted the “limitation on jurisdiction over nonmembers pertains to subject-matter, rather than merely personal jurisdiction, since it turns upon whether the actions at issue in the litigation are regulable by the tribe.” 533 U.S. at 367, n. 8. The Court ruled “a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction.” Id. at 367.
Although these decisions cite Oliphant, they do not identify whether a Tribe’s lack of “inherent” authority over non-Indians means a lack of subject matter or personal jurisdiction. Justice Scalia’s statement that the limitation on jurisdiction over nonmembers pertains to subject matter jurisdiction is dicta and was made in the context of a tribe’s civil jurisdiction. See Hicks, 533 U.S. at 358, n. 2 (“Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general.”).
Justice Souter’s concurrence in Hicks, however, suggests Oliphant’s “general proposition” that the “inherent” sovereign powers of an Indian tribe do not extend to the activities of nonmembers is grounded on a lack of personal jurisdiction. “The principle on which Montana and Strate7 were decided (like Oliphant before them) looks first to human relationships ….” Hicks, 533 U.S. at 381. Also, in Oliphant, the Court relied in part on Judge Isaac Parker’s decision in In Ex parte Kenyon, 14 Fed.Cas. No. 7,720 (W.D.Ark.1878) to support the proposition tribes did not have the “inherent” power to try non-Indians. “Judge Isaac C. Parker, who as District Court Judge for the Western District of Arkansas was constantly exposed to the legal relationships between Indians and non-Indians, held that to give an Indian tribal court ‘jurisdiction of the person of an offender, such offender must be an Indian.’” Oliphant 435 U.S. at 200 (citing Kenyon, at 355). That holding suggests a tribe has legislative authority to adopt criminal laws, the subject matter, but does not have the jurisdiction to apply those laws to persons who are not Indians (personal jurisdiction). In Duro, the Court even recognized the possibility a nonmember might consent to a tribe’s criminal jurisdiction. It did not, however, rule on that issue or what would constitute a valid consent. “We have no occasion in this case to address the effect of a formal acquiescence to tribal jurisdiction that might be made, for example,
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in return for a tribe's agreement not to exercise its power to exclude an offender from tribal lands.” Duro, 495 U.S. at 689. Although the Court did not rule on the issue, recognizing the possibility a person could consent to a tribe’s criminal jurisdiction likewise suggests it is a tribe’s lack of personal jurisdiction or something akin to personal jurisdiction that prohibits its criminal jurisdiction over a non-consenting non-Indian.
That Tribes originally had the “inherent” power to preserve order and punish anyone within their territorial borders who violated their rules, which judicially made federal common law has restricted, is without question. “The tribes were self-governing sovereign political communities” but, after “[t]heir incorporation within the territory of the United States,” the tribes could exercise their inherent sovereignty only as consistent with federal policy embodied in treaties, statutes, and Executive Orders.” Wheeler, 435 U.S. at 322-323; see also, McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 172 (1973) (“It must always be remembered that the various Indian tribes were once independent and sovereign nations ...”). “A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.” Wilson v. Girard, 354 U.S. 524, 528-30 (1957). “Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress." Oliphant, 435 U.S. at 212 (emphasis added).
It will come as no surprise to Indian law practitioners that federal common law governing a tribe’s criminal (as well as civil) jurisdiction is inconsistent and defies a reasoned legal analysis. We find, however, based on our survey of that law, that while it lacks clarity there are some basic principles that lead us to conclude that tribes have subject matter jurisdiction over criminal offenses committed on tribal land, and the “general proposition” that tribes lack the “inherent” power to try and punish non-Indians is referring to personal jurisdiction.
Those principles are summarized as follows: 1. Tribes have the power to adopt laws proscribing criminal activity on tribal lands and as self-governing sovereign political communities had the inherent power to try and punish anyone within their territory who violated those laws, but upon treating with the United States that power was impliedly restricted or given up where the person who committed the violation is a non-Indian; 2. Tribes still retain inherent authority to try and punish members and Indians who violate their criminal laws based on consent; and 3. Tribes retain the inherent power to exclude nonmembers from tribal lands for criminal activity.8 Thus tribes have authority over criminal activity committed on tribal lands (the category of claim in suit), whether committed by an Indian or non-Indian, and therefore subject matter jurisdiction.
10 NICS App. 60, PORT GAMBLE S’KLALLAM TRIBE v. HJERT (December 2011) p. 69
Because a tribe’s lack of authority to try and punish a non-Indian for a violation of the tribe’s criminal laws is in the nature of its lack of personal jurisdiction and because personal jurisdiction can be waived, the Port Gamble S’Klallam Tribe can exercise criminal jurisdiction over a non-Indian if there is a valid waiver of the personal jurisdiction requirement. We therefore hold “applicable federal law” does not prohibit the Tribe’s assertion of criminal jurisdiction over a consenting non-Indian.
The second question is whether the Port Gamble S’Klallam Tribe has vested its Community Court with the authority to assert the Tribe’s criminal jurisdiction over a consenting non-Indian. Title 1 of the Port Gamble S’Klallam Tribe Community Court General Rules provides “[t]he Port Gamble S’Klallam Community Court is vested with the fullest personal, subject matter and territorial jurisdiction permissible under applicable law.” PGSTC 1.02.01 (emphasis added). There is no Port Gamble S’Klallam Tribal law expressly permitting criminal jurisdiction over a consenting non-Indian.9 There is no statute or code provision that authorizes the Community Court to assert the Tribe’s criminal jurisdiction over a consenting non-Indian, or establishes what the Tribe’s prosecutor may or may not promise on behalf of the Tribe in exchange for a non-Indian’s consent10 and when and under what circumstances the prosecutor can make any such promises. Given the absence of such affirmative statues or codes, we find the Tribe has not vested the Community Court with criminal jurisdiction over consenting non-Indians. Such jurisdiction is not “permissible” under applicable Tribal law.
In addition, even if Tribal law permitted the court to exercise criminal jurisdiction over a non-Indian who consents to jurisdiction in exchange for a benefit, such an agreement is more than a simple common law contract. It concerns fundamental constitutional rights protected under the equal protection and due process provisions of the Indian Civil Rights Act. 25 U.S.C.A. § 1302 (a)(8). The person’s waiver of the right to be free from the Tribe’s criminal jurisdiction cannot be coerced, induced by misrepresentation, or implied, but must be freely and expressly given, knowing, voluntary, intelligent and case specific (in other words a valid waiver
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must be obtained each time the Tribe wants to assert criminal jurisdiction).11 See Johnson v. Zerbst, 304 U.S. 458, 464 (waiver means “an intelligent relinquishment or abandonment of a known right or privilege.”). The record must show the waiver meets due process and equal protection guarantees under the Indian Civil Rights Act.12
III. Conclusion
As the Tribe’s appellate court, our responsibility is to interpret the Tribe’s laws consistent with its Constitution, the intent of the Tribe’s legislative body and the Indian Civil Rights Act. It is the Tribe’s intent to vest its court with jurisdiction over any person who violates its criminal laws except where prohibited by federal law and as permitted by Tribal law. The Tribe has not specifically permitted its court to exercise criminal jurisdiction over a consenting non-Indian as required under PGSTC 1.02.01. And, even if it had, Hjert’s “consent” to the Tribe’s criminal jurisdiction does not meet the minimum due process requirements necessary to constitute a valid waiver of his right not to be criminally tried and punished by the Tribe. For these reasons we affirm the trial court’s order dismissing the charges in these cases, albeit on other grounds. See PGSTC 7.08.01 (appellate court may reverse, affirm or modify the trial court’s decision and take “any other action as the merits of the case and the interest of justice may require.”).13
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
The Tribe does not assert Hjert is an Indian for purposes of determining whether it has criminal jurisdiction under 25 U.S.C. § 1301(2). Likewise there was no evidence presented below regarding Hjert’s ethnicity.
“For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U. S. 552, 558, 108 S. Ct. 2541, 2546 (1988); Dodge v. Hoopa Valley Gaming Commission, 7 NICS App. 51, 54 (Hoopa Valley Tribal Ct. App. 2005). Accord, Raymond Johns and Leslie McGhee v. Gracie Allen, 6 NICS App. 196, 196 - 197 (Skokomish Tribal Ct. App. 2004) (“In the absence of any specified standard of review, we review issues of fact under the “clearly erroneous” standard and issues of law de novo.”)
Article 2 of the Port Gamble S’Klallam Tribe’s treaty with the United States provides in part “nor shall any white man be permitted to reside upon the same [the Reservation] without the permission of the said tribes and bands…”
See also, South Dakota v. Bourland, 508 U.S. 679, 695, n. 1 (1993) (where the Court reiterated, “tribal sovereignty over nonmembers cannot survive without express congressional delegation, and is therefore not inherent.”) (emphasis original).
The dual sovereignty doctrine is premised on the proposition that a single act that violates the “peace and dignity” of two sovereigns by breaking the laws of each constitutes two separate offenses. Heath v. Alabama, 474 U.S. 82, 88 (1985).
Under judicially made federal common law, a non-Indian cannot impliedly consent to a tribe’s criminal jurisdiction. See Duro, 495 U.S. at 695 (where the Court rejects the theory of implied consent to tribal criminal jurisdiction); see also, Oliphant, 435 U.S. 194, n. 2 (“Notices were placed in prominent places at the entrances to the Port Madison Reservation informing the public that entry onto the Reservation would be deemed implied consent to the criminal jurisdiction of the Suquamish tribal court.”). Under the Port Gamble S’Klallam Tribe’s court rules there is a provision that gives the court jurisdiction over any “person” entering the Reservation. PGSTC 1.02.03. Given the decisions in Duro and Oliphant, the Tribe understandably does not assert criminal jurisdiction based on this provision.
Strate v. A-1 Contractors, 520 U.S. 438 (1997). In Strate, the Court held the Tribal did not have civil jurisdiction to adjudicate a case involving a car accident occurring on the reservation on a road maintained by the State under an easement from the federal government where both the plaintiff and defendant were not members of the Tribe.
In colonial times, for example, banishment was a form of punishment for violation of the law. “The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one.” Smith v. Doe, 538 U.S. 84, 97 (1997) (citing T. Blomberg & K. Lucken, American Penology: A History of Control 30-31 (2000)).
Under federal law a non-Indian cannot impliedly consent to a tribe’s criminal jurisdiction. See Duro, 495 U.S. at 695 (where the Court rejects the theory of implied consent to tribal criminal jurisdiction); see also, Oliphant, 435 U.S. 194, n. 2 (“Notices were placed in prominent places at the entrances to the Port Madison Reservation informing the public that entry onto the Reservation would be deemed implied consent to the criminal jurisdiction of the Suquamish tribal court.”). Under the Port Gamble S’Klallam Tribe’s court rules there is a provision that gives the court jurisdiction over any “person” entering the Reservation. PGSTC 1.02.03. Given the decisions in Duro and Oliphant, the Tribe understandably does not assert criminal jurisdiction based on this provision and applicable federal law prohibits the assertion of jurisdiction based on implied consent.
Because it is difficult to conceive of a circumstance where a non-Indian would consent to be tried and punished without receiving a benefit, the Tribe’s prosecuting officers do not have the authority to induce a person’s waiver of the personal jurisdiction requirement by offering a benefit (such as the Tribe’s promise not to exclude the person from tribal lands) on behalf of the Tribe unless the Tribe specially authorizes it.
We do not address all the factors that might be required to constitute a valid consent to the Tribe’s criminal jurisdiction. At a minimum, however, the person must have the mental capacity to freely consent; be informed of their right to refuse to consent and that if they refuse they cannot be prosecuted by the Tribe; be informed of all the direct consequences of their consent, which includes the nature of the charges, the potential punishment, the rights afforded a criminal defendant under Tribal law, that the state or federal government may try them for the same offense despite their consent; and that their consent is limited to the Tribe’s power to try and punish them for only the specific charge.
There may be other due process or equal protection issues but we do not address those here.
Our decision does not foreclose the Tribe from excluding Hjert from Tribal lands if that is possible under the Tribe’s laws.