809 F.3d 849
6th Cir.2016Background
- Little River Band of Ottawa Indians (the Band) prosecuted member Norbert Kelsey in tribal court for misdemeanor sexual assault after he touched a tribal employee at the Band’s Community Center, a building owned by the Band but located off-reservation (not "Indian country").
- Kelsey was convicted, sentenced (jail time held in abeyance with probation), and lost on appeal in the Band’s Tribal Court of Appeals, which upheld tribal jurisdiction and struck a territorial limitation in the Band’s Criminal Offenses Ordinance as inconsistent with the Tribal Constitution.
- Kelsey petitioned for habeas relief in federal district court, arguing (1) the Band lacked criminal jurisdiction over off-reservation conduct and (2) the Tribal Court’s retroactive removal of the territorial limitation violated due process under the Indian Civil Rights Act (ICRA).
- The district court granted habeas relief, adopting a magistrate’s view that tribes are implicitly divested of criminal jurisdiction over member conduct occurring off-reservation, and declined to reach the ICRA due process claim.
- The Sixth Circuit reversed: it held tribes retain inherent authority to prosecute members for off-reservation conduct when necessary to protect tribal self-government or internal relations; it also rejected Kelsey’s ICRA fair-notice due process claim.
Issues
| Issue | Plaintiff's Argument (Kelsey) | Defendant's Argument (Band) | Held |
|---|---|---|---|
| Whether tribes have inherent criminal jurisdiction over members for off-reservation conduct | Tribal jurisdiction is territorially bounded; membership alone does not authorize extra-territorial prosecutions | Tribes retain inherent authority to prosecute members when conduct substantially affects tribal self-government or internal relations | Held for Band: tribes may prosecute members for off-reservation conduct when necessary to protect self-government or control internal relations |
| Whether Congress or treaties expressly divested tribes of off-reservation criminal jurisdiction | Statutes expanding federal jurisdiction in Indian country show Congress intended tribal power to be limited to reservation territory | No statute or treaty expressly divests tribes of member-based off-reservation jurisdiction | Held: No express congressional divestiture identified |
| Whether tribes have been implicitly divested of extra-territorial member-prosecution power by their dependent status | Implicit divestiture follows from dependent status and the statutory framework for Indian country | Implicit divestiture does not extend to prosecuting members for conduct that impacts tribal self-government; Montana permits retained powers necessary for internal governance | Held: No implicit divestiture here; Montana permits jurisdiction where necessary to protect tribal self-government |
| Whether Tribal Court of Appeals’ removal of territorial limitation violated ICRA due process (fair notice) | The court retroactively expanded criminal jurisdiction and deprived Kelsey of fair notice and defense | Multiple tribal provisions (Constitution, Procedure Ordinance, Court Ordinance) put Kelsey on notice; appellate harmonization was foreseeable and not an unforeseeable retroactive criminalization | Held for Band: no ICRA due process violation—extension was not "unexpected and indefensible" under Bouie/Rogers |
Key Cases Cited
- United States v. Wheeler, 435 U.S. 313 (tribal power to punish members is an attribute of inherent tribal sovereignty)
- Duro v. Reina, 495 U.S. 676 (tribal criminal jurisdiction over members rests on voluntary character of membership)
- Montana v. United States, 450 U.S. 544 (tribal power beyond what is necessary to protect self-government or internal relations is inconsistent with dependent status)
- Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (tribal courts lack inherent jurisdiction to try non-Indians; articulation of implicit divestiture doctrine)
- United States v. Lara, 541 U.S. 193 (tribal criminal jurisdiction over members is an inherent retained power; contrast with powers over nonmembers)
- Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (courts should not lightly assume Congress meant to undermine tribal self-government)
- Bouie v. City of Columbia, 378 U.S. 347 (judicial construction of criminal law cannot be applied retroactively if it is unexpected and indefensible)
- Rogers v. Tennessee, 532 U.S. 451 (clarifies Bouie standard and permits ordinary judicial evolution absent unforeseeable change)
- Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (federal review of tribal jurisdiction questions; silence of Congress does not imply divestiture)