United States District Court, D. South Dakota, Central Division
OPINION AND ORDER
CHARLES B. KORNMANN, District Judge.
Matthew Stymiest ("Stymiest") was charged in federal district court with assault resulting in serious bodily injury arising out of an assault which took place within the exterior boundaries of the Rosebud Indian Reservation in South Dakota, CR 08-30006. He was convicted by a jury and sentenced on September 24, 2008, to 110 months custody. He challenged his conviction and sentence, contending that he was not an Indian for the purposes of criminal jurisdiction under 18 U.S.C. § 1153. The United States Court of Appeals for the Eighth Circuit affirmed, United States v. Stymiest , 581 F.3d 759 (8th Cir. 2009), holding that, although Stymiest was not an enrolled member of an Indian tribe (he is not eligible to enroll because he does not have the requisite percentage of Indian blood), enrollment is not the only means of establishing Indian status nor is it necessarily determinative.
The Eighth Circuit held in Stymiest's direct criminal appeal that jurisdiction is proper under 18 U.S.C. § 1153 if "the defendant (1) has some Indian blood, and (2) is recognized as an Indian by a tribe or the federal government or both." United States v. Stymiest , 581 F.3d at 762 (citing United States v. Rogers , 45 U.S. 567, 572-73, 4 How. 567, 11 L.Ed. 1105 (1846)). The evidence at trial showed that Stymiest's grandfather was an enrolled member of the Leech Lake Band of Ojibwe in Minnesota. Stymiest thus has some Indian blood, although he lacks the necessary quantum of Indian blood for tribal enrollment.
I instructed the jury that, in determining whether Stymiest was recognized as an Indian by a tribe, they may consider factors including "tribal recognition formally or informally through subjecting the defendant to tribal court jurisdiction" and "whether the defendant holds himself out as an Indian." The Eighth Circuit held that "the district court properly identified two other factors relevant on the facts of this case-that the tribe exercised criminal jurisdiction over Stymiest and that Stymiest held himself out to be an Indian." United States v. Stymiest. 581 F.3d at 764 (internal citations omitted). The evidence at trial showed that Stymiest was prosecuted three times in the Rosebud Sioux Tribal Court for tribal offenses. "Each time, Stymiest pleaded no contest, did not appeal, and received a suspended sentence or spent time in the tribal jail." United States v. Stymiest , 581 F.3d at 765.
Stymiest has filed a petition for a writ of habeas corpus pursuant to 25 U.S.C. § 1303, the enforcement provision of the Indian Civil Rights Act of 1968 ("ICRA"), Pub. L. 90-284, 25 U.S.C. §§ 1301 et seq. He challenges the three tribal court convictions on the basis that the Rosebud Sioux Tribe did not have jurisdiction to prosecute him because he was not an Indian. He also seeks a ruling that the Rosebud Sioux Tribe does not have jurisdiction to prosecute him in the future for the conduct comprising his federal assault conviction even though his federal crime took place on the Rosebud Indian Reservation.
Petitioner filed an application to proceed in forma pauperis. Petitioner is indigent. Pursuant to 28 U.S.C. § 1915(b)(1), petitioner is nonetheless required to pay the statutory filing fee of $5.00 for this action. See 28 U.S.C. § 1914(a).
A. Indian Civil Rights Act.
Section 203 of the ICRA provides that the "privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe." 25 U.S.C. § 1303. The ICRA prohibits Indian tribes from depriving any person of liberty without due process of law. 25 U.S.C. § 1302(a)(8). "[I]f a tribal court acts outside the scope of its jurisdiction, that action may constitute a due process violation." DeMent v. Oglala Sioux Tribal Court , 874 F.2d 510, 514 (8th Cir. 1989). Stymiest's claim is thus cognizable under the ICRA habeas corpus provision.
B. Sovereign Immunity.
"Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation." Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla. , 498 U.S. 505, 509, 111 S.Ct. 905, 909 112 L.Ed.2d 1112 (1991) (internal quotation marks and citations omitted).
Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. Moreover, since the respondent in a habeas corpus action is the individual custodian of the prisoner, see, e. g., 28 U.S.C. § 2243, the provisions of § 1303 can hardly be read as a general waiver of the tribe's sovereign immunity. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.
Santa Clara Pueblo v. Martinez , 436 U.S. 49, 59, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978).
"Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in § 1303." Santa Clara Pueblo v. Martinez , 436 U.S. at 60, 98 S.Ct. at 1678. The appropriate respondent in this case is not the Tribe. Stymiest is not in tribal custody so the appropriate respondent is not his tribal custodian. Instead, the Rosebud Sioux Tribal Court is the appropriate respondent. See Settler v. Yakima Tribal Court , 419 F.2d 486 (9th Cir. 1969) (the appropriate respondent in a case where there is no actual physical custodian is the court which imposed the criminal penalty) (abrogated on ...