United States District Court, D. South Dakota, Central Division
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 ...