United States District Court, D. South Dakota, Central Division
MEMORANDUM OPINION DENYING MOTION TO DISMISS
MARK A. MORENO, Magistrate Judge.
Steven Nichols, a non-Indian, was excluded from the Rosebud Sioux Indian Reservation. While his exclusion was in effect, he was seen driving on a public road within the reservation. Tribal officers stopped and detained him until an FBI agent arrived. The agent then arrested him for criminal trespass. Nichols claims that the tribe did not have the authority to ban him from using the road and that his federal trespass charge - built upon a tribal writ and order of exclusion - should be dismissed. Because there exists latent factual issues that require an evidentiary foundation and because there has been no exhaustion of tribal remedies or any showing that some exception to the exhaustion prescription applies, Nichols's dismissal motion must be denied, but without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Nichols has been prosecuted and convicted on several prior occasions in federal court for assault and trespass violations that occurred on the Rosebud Reservation. His convictions were all for misdemeanor offenses that were committed over a two and-a-half year time period.
In April, 2011, Nichols pled guilty to assault by striking, beating and wounding a female tribal member. Two months later, he was given a six-month custody sentence.
On February 27, 2013, he was convicted of two counts of criminal trespass. He was thereafter sentenced to a 30-day custody term on Count I and one year of probation on Count II.
Within 10 months, Nichols was convicted, once again, of two counts of criminal trespass. He was given another six months in jail on one count and a year of probation on the other count.
In the signed factual basis statements that were filed and attested to under oath in both trespass cases, Nichols confirmed that:
1. On June 10, 2011, he was served with a petition for exclusion of a non-Indian that sought to preclude him from entering the lands of the Rosebud Reservation;
2. On September 22, 2011, a Rosebud tribal court issued an emergency writ and order of exclusion barring him from reservation lands;
3. The tribal council likewise voted to exclude him from the reservation on September 22;
4. The next day, September 23, 2011, a tribal officer served him with a copy of the writ and exclusion order and escorted him off of the reservation to the Nebraska state line; and
5. By being on the reservation, he defied the orders to leave and not reenter that had previously been communicated to him.
At his December 13, 2013 plea and sentencing hearing, Nichols also admitted to violating his probation on the February 27 offense by illegally trespassing on the reservation. He received a sentence of ...