United States v. Sadekni

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS

          MARK A. MORENO UNITED STATES MAGISTRATE JUDGE.

         Marwan Sadekni ("Sadekni"), a non-Indian, has moved to dismiss the criminal charges lodged against him - for allegedly assaulting another non-Indian in an Indian Health Services ("IHS") facility located on an Indian reservation^[1] and leased to the United States. The dispositive question is whether the facility falls within the federal government's territorial jurisdiction. Because it does, the Court has subject matter jurisdiction over this case and Sadekni's dismissal motion must be denied.

         BACKGROUND

         The IHS facility is situated on 155 acres of land located in Rosebud, Todd County, South Dakota, and is within the exterior boundaries of the Rosebud Sioux Indian Reservation. The United States owns the land but holds it in trust for the Rosebud Sioux Tribe. On August 1, 1988, a representative of the Secretary of the Department of Interior ("DOI"), acting on behalf of the Tribe, entered into a lease agreement with IHS, an agency of the Department of Health and Human Services ("DHHS"), for the purpose of operating a new comprehensive healthcare facility and associated living quarters on the land. The lease incorporated a tribal resolution which approved the lease and building of the facility. The lease was renewed in 2008, with the approval of the Tribe and the Bureau of Indian Affairs ("BIA"), for another 20 years.

         Sadekni is a medical doctor who was assigned to the Rosebud IHS facility for several weeks in 2015. Michelle Knepper is a physician assistant who worked as an independent contractor with the BIA at the facility during the same time period. Both Sadekni and Knepper are non-Indians.

         In January, 2015, while working a shift together at the hospital portion of the facility, Sadekni supposedly "yanked" Knepper by the neck and shook her after she placed a lab order that upset him. Then about a month later, while working together at the hospital, Sadekni again became unnerved at Knepper - this time for ordering a CT scan and arranging a transport of one of his patients without his permission - and reputedly shoved her against the wall, grabbed her by the neck and began to choke her.

         Ultimately, Sadekni was indicted and charged with two counts of assault by striking, beating and wounding in violation of 18 U.S.C. §§7 and 113(a)(4). He later moved to dismiss the Indictment, insisting that the United States lacked jurisdiction and that he could not be prosecuted in federal court because the State of South Dakota had exclusive jurisdiction over the matter.

         DISCUSSION

         A. Reservation and Land History

         The Rosebud Reservation was included as an undefined portion of the Louisiana Purchase in 1803 and made up part of what was called the Louisiana Territory.^[2]Between 1851 and 1863, Indian tribes signed six treaties with the United States that collectively accounted for all of the land in what is now South Dakota.^[3] The Treaty of Fort Laramie in 1851^[4] constituted a "cease of hostilities" agreement between Indian tribes against each other and the United States.^[5] The Treaty also etched tribal boundaries and made the tribes responsible for depredations committed in their territories.^[6] The last of the six treaties, the Treaty of 1868^[7] created the "Great Sioux Reservation" which paved the way for the minting of the Rosebud Reservation two decades later.^[8] By the terms of the Treaty, lands were set aside "for the absolute and undisturbed use and occupation of the Indians."^[9] The federal government guaranteed that no persons would be allowed to pass through or settle on these lands.^[10] In return for government benefits, the Sioux gave up claims or rights in lands outside of the Reservation.^[11]

         A trilogy of acts diminished the boundaries of the Rosebud Reservation^[12] but all of the Todd County Reservation land remained unaffected by post-statehood enactments.^[13] Since 1988, the IHS facility and its hospital have occupied Reservation land in the County.^[14]

         The establishment of the State of South Dakota occurred about the same time as, but distinctly from, the spawning of the Rosebud Reservation. The 1861 Organic Act carved out the Dakota Territory, which included North and South Dakota, Montana, Wyoming and a small part of Nebraska.^[15] By 1868, this territory was pared down and consisted of only what are North and South Dakota today.^[16] In 1889, the territory was divided into the States of North and South Dakota.^[17] That same year, the United States passed the Enabling Act^[18] which allowed South Dakota to be admitted as a state upon ratification of a state constitution.^[19] Nine months later, the State formally became a member of the Union.^[20]

         In an abrupt change from its earlier policy of allotment and assimilation, Congress enacted the Indian Reorganization Act of 1934 (IRA)^[21] which provided a mechanism for the federal government to acquire land in trust for the benefit of Indian tribes and to proclaim new reservations on lands so acquired.^[22] The IRA also encouraged tribes to adopt constitutions to govern their internal affairs and engage in economic development.^[23] In response to the enactment of IRA, the Rosebud Tribe adopted its own Constitution and Bylaws which DOI approved in 1935.^[24] Article VIII of the Constitution authorized the federal government to take all non-allotted lands into trust and hold them on behalf of the Tribe.^[25] The acreage the IHS facility and its hospital were built on is government owned trust land and has been, and continues to be, used by federal agencies with the Tribe and BIA's approval.^[26]

         At no point in its history, has South Dakota ever had any possessory interest, or exercised jurisdiction over, the Indian land^[27] where the IHS facility is situated.^[28] This is because of the supremacy of the United States in matters involving such land.^[29]

         B. Territorial Jurisdiction Statute

         By its terms, §113(a) (4) requires that the assault occur "within the special maritime and territorial jurisdiction of the United States." This realm of special jurisdiction includes:

Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.^[30]

         The primary source of §7(3) is the "Enclave" Clause of the United States Constitution.^[31]

         1. Legislative History

         Although in its present form, §7(3) dates to 1940, the statute can be traced back to several provisions of an act passed by the first Congress entitled "An Act for the Punishment of certain Crimes against the United States" ("1790 Act").^[32] The 1790 Act did not have a marked jurisdictional provision (like §7), but instead incorporated the jurisdictional limits of federal courts separately into the substantive definition of each offense.^[33] Section 3 of that Act, for example, provided "[t]hat if any person . . . shall, with any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person . . . shall suffer death."^[34] The jurisdictional language of the Act was clearly based on and came from the Enclave Clause.^[35]

         The 1790 Act was codified and slightly amended in 1874, ^[36] but remained essentially unchanged until 1909, when Congress passed "An Act To codify, revise and amend the penal laws of the United States" ("1909 Act").^[37] The 1909 Act sweepingly codified all existing federal criminal law, including the offense of assault by striking, beating and wounding.^[38] And in the Act, Congress unveiled a separate and distinct section on jurisdiction. That section, provided that the territorial jurisdiction of the United States included:

Any lands reserved or acquired for the exclusive use of the United States and under the exclusive jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, dock-yard and other needful building.^[39]

         The 1909 Act remained intact until 1940, when Congress amended the Act in two ways ("1940 Act").^[40] First, the word "exclusive" was deleted from the initial phrase, so that jurisdiction no longer required that lands be reserved or acquired "for the exclusive use" of the United States.^[41] Second, the words "or concurrent" were inserted between "exclusive" and "jurisdiction" in the succeeding phrase, so that jurisdiction extended to "any lands reserved or acquired for the use of the United States and under the exclusive or concurrent jurisdiction thereof."^[42] Congress thus granted, for the first time, federal courts jurisdiction over crimes committed on lands that were not exclusively under the jurisdiction of the United States.

         The House report concerning the 1940 Act unequivocally states that the amendments were prompted by the Supreme Court's decision in James v. Dravo Contracting Co., ^[43] three years earlier, in which the Court held that the Enclave Clause permitted states to retain partial or concurrent jurisdiction over land they consensually transferred to the United States.^[44] Congress believed that the holding in Dravo necessitated a revision to the 1909 Act because that Act "limited the criminal jurisdiction of the Federal Government to such Federal reservations in respect to which the United States had acquired exclusive jurisdiction."^[45] Hence, the purpose of the 1940 amendment was "simply [to] restore[ ] to the Federal Government the jurisdiction it was recognized as having until [the Dravo decision] was handed down."^[46]

         2. Current Version

         Section 7(3) as it appeared in 2015 and still today, can best be understood if it is broken down into two parts. The first part of the statute provides jurisdiction over "[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof." This part applies to lands generally, as opposed to a "place .... for the erection of a . . . building." These lands must be ones the United States has "reserved or acquired." This can be done without the consent of a state's legislature if the federal government reserved or acquired the lands before statehood.^[47] Otherwise, §7(3) can only reach lands that are subject to the exclusive or concurrent jurisdiction of the United States via consent or cession.^[48]

         The statute's second part applies to any place the United States purchases or acquires by the consent of the legislature of a state for the purpose of a fort, magazine, arsenal, dockyard or other needful building. Without the state's consent, the United States does not gain legislative jurisdiction.^[49] Consent is often given in the form of a state enactment.

         Since 1940, Congress has required the United States to assent to the transfer of jurisdiction from a state regardless of how the land or property may have been acquired.^[50] Before then, the presumption was that the United States accepted jurisdiction, in the absence of evidence that showed otherwise, whenever it was offered.^[51]

         3. Reserved or Acquired for the Use of the United States

         Section 7(3)'s "reserved or acquired for the use of the United States" clause has not been particularly controversial or difficult to apply. Clarity in the words used in the statute has enabled courts to skip over them without much explication.^[52] Before following suit here, it, bears pointing out that the clause does not refer to a particular interest the United States must have in the lands that are "reserved or acquired."^[53] Nor does the clause require that the United States be an owner, or even an occupant, of the lands in question, so long as they have been set aside for the use of an instrumentality of the federal government.^[54]

         By this standard, there can be little doubt that the Rosebud IHS facility has been acquired for the use of the United States. The acreage upon which the facility is situated has been Indian land - that the federal government and Rosebud Tribe have owned, used and occupied - since well before South Dakota ever became a state.^[55]

         The United States, by and through DHHS and IHS, also leases the facility from the Rosebud Tribe for the purpose of operating a full-service healthcare facility and providing dwelling places for facility staff.^[56] The lease gives the BIA jurisdiction over the premises and makes it responsible for the construction, maintenance, repair and alteration of the facility.^[57] And the federal government, through two of its departments and agencies (DOI, BIA, DHHS and IHS), has regulatory authority over the facility and the land the same is affixed to.^[58]

         That the IHS facility is on lands "reserved or acquired for use of the United States, " within the meaning of §7(3), cannot reasonably be questioned.^[59] Sadekni does not contest this and acknowledges that the first clause of the statute has been satisfied.^[60]

         4. "Exclusive or Concurrent Jurisdiction"

         Consideration must next be given to whether the United States exercises "exclusive or concurrent" jurisdiction over the IHS facility. This is an exceedingly complex question that requires one to meander through a labyrinth of legal and historical interpretations to find an answer.

         In general, there are four kinds of jurisdiction that exist on federal land: exclusive, concurrent, partial, and proprietary. "Exclusive jurisdiction" is the same as "exclusive legislation, " at least as that term is used in the federal Enclave Clause, ^[61] and is present in situations in which the United States has received, by whatever method, all of the authority of a state, with no reservation made to the state except perhaps the right to serve process resulting from activities which occurred off the land.^[62] "Concurrent legislative jurisdiction" applies where, in granting the federal government. authority that would otherwise amount to exclusive legislative jurisdiction over a certain area, the state reserves to itself the right to exercise, concurrently with the government, all of the same authority.^[63] With "proprietorial jurisdiction, " the federal government has acquired some right of title to property in a state but has not obtained any measure of the state's authority over the same.^[64] The United States though still has the power to subject a person - who commits a law violation in a federal building on the property -to federal proceedings (including criminal ones).^[65]

         "Partial legislative jurisdiction" occurs when the United States has been granted some legislative jurisdiction over state territory, but the state reserves the right to exercise, by itself or concurrently with the federal government, other authority beyond the service of civil or criminal process in the territory (such as the right to tax property).^[66]

         Sadekni claims that he cannot be prosecuted in federal court for the two assault offenses because:

1. The United States never indicated that it accepted jurisdiction by filing the requisite notice with the Governor of South Dakota or in another manner prescribed by the state law; and

2. The offenses are alleged to have been committed by a non-Indian against a non-Indian on an Indian reservation which only the state, under the McBratney/Draper rule, ^[67] has criminal jurisdiction over.

         Each of these claims will be discussed - in a framed perspective - below.

         a. State Disclaimer and Cession of Jurisdiction to the United States

         The Congressional Enabling Act, permitting South Dakota to enter the Union, required that the State disclaim jurisdiction over Indian land:

[T]he people ... do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States... .^[68]

         The same Act stipulated that the ordinance adopted by the state constitution was to be "irrevocable without the consent of the United States and the people of [the state]."^[69] The State later incorporated these provisions into its Constitution and they remain a part of the Constitution today.^[70]

         The United States has not expressly relinquished its jurisdiction over Indian lands within South Dakota - including the land where the IHS facility and hospital are embedded - or ceded jurisdiction of them to the State.^[71] Nor has the State, by legislative enactment, consented to or assumed exclusive jurisdiction over these lands or any federal enclaves occupying them.^[72]

         b. Acceptance

         Before February 1, 1940, the United States's acceptance of jurisdiction over land that it acquired or owned was "presumed in the absence of any dissent on [the federal government's] part."^[73] On the date just mentioned, Congress passed 40 U.S.C. §255 (now 40 U.S.C. §3112) abrogating the rule of presumptive acceptance and substituting a notice procedure for authorized federal officials to expressly accept ceded jurisdiction.^[74] The statute reversed the presumption of acceptance that had been in force by adding a new provision: "Unless and until the United States has accepted jurisdiction over the lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted."^[75] The phrase, "hereafter to be acquired, " established, within the context of the statute itself, the existence of the earlier presumption of acceptance^[76] and did not affect the federal government's previously acquired jurisdiction.^[77]

         Notably, it did not matter that the lands acquired were not fully developed until sometime after 1940 or that their intended purpose or use changed after then. Acceptance of jurisdiction was still presumed.^[78]

         Here, the United States (and the Rosebud Tribe) acquired the Indian land - that the IHS facility sits on - long before 1940 without expressing any declination of jurisdiction. It follows then that "[acceptance" may be presumed in the absence of evidence of a contrary intent."^[79] Given the pre-1940 presumption-of-acceptance rule then in place, the United States accepted jurisdiction when it acquired the land and no further affirmation was necessary.^[80]

         c. Practical Usage and Dominion or Regulatory Authority

         Section 7(3) grants the United States jurisdiction over those territories over which it has "practical usage and dominion" or "regulatory authority."^[81] Under this standard, a court must consider whether the federal government "enjoys such control over the area that the law should constructively regard it as [federal] territory."^[82]

         Territorial jurisdiction, under §7(3), need not be exclusive.^[83] Two sovereigns may exercise concurrent jurisdiction when their relationship is regulated by law.^[84] The United States Constitution allows federal and state governments to exercise concurrent jurisdiction over certain matters with the Supremacy Clause usually - but not always -resolving any conflict in favor of the former over the latter.^[85]

         Indian reservations are a "typical illustration of lands the United States owns, not as federal enclaves, but rather as the trustee for the benefit of Indians. This ownership, without more, does not withdraw the lands from the jurisdiction of the state."^[86] The Supreme Court has confirmed that Indian lands are not subject to the exclusive jurisdiction of the federal government.^[87]

         The United States asserts practical dominion over and regulates activities at the IHS facility and the hospital that makes up a part of it. Through laws passed by Congress, and corresponding agency rules promulgated to implement these laws, the federal government controls, funds and regulates the use of reservation-situated healthcare facilities such as the one in Rosebud.^[88] And the lease between the Rosebud Tribe and the IHS gives the BIA jurisdiction over the facility and the land it rests on.^[89]

         What's more, the 1940 revision to §7(3)'s predecessor provides additional support for the notion that the United States has at least concurrent jurisdiction over crimes committed within reservation IHS facilities. The House Report explicitly states that "[t]he most significant effect of th[e] bill is to grant Federal courts concurrent criminal jurisdiction on reservations where the United States does not have exclusive jurisdiction."^[90] The Report appears to be saying that the federal government would henceforth be able to exercise legislative jurisdiction over acquired lands the states had retained concurrent jurisdiction over - just as it had been able to do for lands over which the states did not retain jurisdiction.

         The United States's status as legal titleholder and trustee further buttresses the view that federal government has concurrent jurisdiction over the actions of healthcare providers in its own Indian hospital. The government not only owns the IHS hospital but also is responsible for what goes on in the hospital, including the health, safety and welfare of those who work and are treated at the same.

         All of this aside, for more than a century, there has been a shared jurisdictional scheme in place to accommodate the needs of concurrent authorities - the United States, states and Indian tribes - in Indian territory.^[91] This scheme resembles, in many respects, the agreements the United States has worked out with other countries on foreign territories.^[92] Extraterritorial jurisdiction cases, decided under §7(3), while not dispositive, are nonetheless helpful and support federal and state criminal jurisdiction -especially in a case such as this one involving an IHS facility (the federal government has full use of and exercises dominion and regulatory control over) that is quartered on reservation land governed by an Indian tribe.^[93]

         d. McBratney/Draper Rule

         In McBratney, a non-Indian was convicted in federal court of murdering another non-Indian on a Colorado Indian reservation.^[94] In a highly suspect application of statutory construction, ^[95] the Supreme Court first observed that federal courts could only exercise criminal jurisdiction over places - including Indian country - within the exclusive jurisdiction of the United States.^[96] According to the Court, if Colorado had jurisdiction over the offense, then the federal government did not.^[97] Colorado had jurisdiction, the Court said, because Congress had admitted it to the Union "upon an equal footing with the original States" and no exception was made for jurisdiction over the reservation.^[98] Thus, the Court reasoned, Colorado law extended throughout the State, and to the reservation, insofar as that law related to non-Indian against non-Indian crimes.^[99]

         McBratney's holding was later shoehorned in Draper. There, the murder of a non-Indian by a non-Indian occurred on a Montana reservation.^[100] The State's enabling act provided that the people of Montana "agree and declare that they forever disclaim" all title to Indian lands and that "said lands shall remain under the absolute jurisdiction and control of the Congress of the United States."^[101] In the face of this language, the Supreme Court ruled that the State, and not the federal government, had jurisdiction over the homicide.^[102]

         Despite what commentators believe to be untenable underpinnings, ^[103] McBratney and Draper are, and remain, the accepted rule of law.^[104] Draper's rebuffing of the jurisdictional provisions contained in Montana's enabling act is still valid as precedent. Strikingly, the Supreme Court has gone on to explain that a state's disclaimer is proprietary, and not jurisdictional, and that the phrase "absolute jurisdiction and control" does not invariably mean "exclusive" federal jurisdiction.^[105]

         Several federal courts though have ruled that the McBratney/Draper rule is inapplicable to Indian lands in South Dakota - and to those on the Rosebud Reservation - based on the jurisdictional agreement the State and federal government entered into and put in place. Although not new cases, the rulings are nevertheless informative -particularly as to the issue of federal jurisdiction over offenses perpetrated by one non-Indian against another, in an enclave-like facility (the Rosebud IHS hospital) lodged on ceded South Dakota reservation land.

         The first is an Eighth Circuit case decided in 1906.^[106] In that case, the Court of Appeals held that South Dakota had, by consent of its people, ceded criminal jurisdiction over Indian land on the Rosebud and other reservations within the State which the United States had acquired before statehood.^[107] The Court said that the consent and cession of jurisdiction, on the part of the State, and the federal government's assumption of the same, were sufficiently expressed in state constitutional provisions and state and federal enactments.^[108]

         A few months afterward, the Eighth Circuit Court of Appeals specifically addressed the McBratney/Draper rule, concluding that it only applied to crimes committed "in a sovereign state, the admission of which into the Union, without any exception with respect to the Indian reservations therein or the jurisdiction over them, removed those reservations from the plenary authority of the United States."^[109] The Appeals Court also cited with approval the case just mentioned, pointing out that the case "related to a crime [larceny] committed in an Indian reservation [Rosebud] in South Dakota, jurisdiction to punish which had been completely ceded to the United States by the state and accepted by Congress before its commission."^[110]

         Fast forward to 1922. In that year, a federal district court in South Dakota determined that jurisdiction over crimes committed within the boundaries of the Rosebud Reservation had been ceded to and assumed by the United States.^[111] Federal jurisdiction applied to the entire Reservation, the court declared, even though the federal government's title to certain Reservation tracts had already been extinguished.^[112]

         In an ensuing federal appellate case, a man, who had been convicted of murder that occurred on the Rosebud Reservation, sought habeas relief on the ground that the federal district court in South Dakota had no jurisdiction to sentence him.^[113] The Tenth Circuit Court of Appeals determined that the district court had jurisdiction over the crime and denied the writ.^[114]

         The Eighth Circuit Appeals Court later followed, in step, the preceding cases and held that it was the intention of South Dakota, in 1901, to cede to the United States jurisdiction over certain criminal offenses committed within the territorial limits of State Indian reservations so long as they remained reservations.^[115] The Court further held that it was the intention of the federal government, in 1903 and thereafter, to assume and exercise that jurisdiction with respect to assault and other specifically enumerated offenses.^[116]

         The South Dakota Supreme Court then ruled that the 1948 revisions Congress made to 18 U.S.C. §§1151, 1152 and 1153 served to deprive the United States of jurisdiction over offenses committed by non-Indians against non-Indians on Indian reservations and to restore such jurisdiction to the courts of South Dakota as in other states.^[117] In the Court's view, the legislative history, subject matter and revisers notes evidenced Congress' intention, in these revisions, to restore to South Dakota the power it had previously and to adopt a uniform policy of dealing with crime throughout Indian reservations.^[118]

         So does this mean that South Dakota has exclusive jurisdiction over Sadekni's assault case under the McBratneyI Draper rule and the Supreme Court of South ...