1 THE HONORABLE JOHN C. COUGHENOUR 2 3 4 5 6 7 UNITED STATES DISTRICT COURT AT SEATTLE 9 ELILE ADAMS, CASE NO. C19-1263-JCC 10 11 Petitioner, ORDER v. 12 RAYMOND DODGE, et al., 13 Respondents. 14 15 This matter comes before the Court on Petitioner’s objections (Dkt. No. 46) to the second 16 report and recommendation (“R&R”) of the Honorable Michelle L. Peterson, United States 17 Magistrate Judge (Dkt. No. 45). Having thoroughly considered the parties’ briefing and the 18 relevant record, the Court hereby ADOPTS the second R&R and DISMISSES the matter without 19 prejudice for the reasons explained herein. 20 Following the Nooksack Tribal Court’s issuance of a warrant for her arrest, Petitioner 21 filed a series of petitions with this Court for a writ of habeas corpus, seeking relief from the 22 Tribal Court’s warrant, pursuant to the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301– 23 1303. (Dkt. Nos. 2, 6, 21.) On November 22, 2019, Respondents moved to dismiss the latest 24 petition—a second amended petition—pursuant to Federal Rules of Civil Procedure 12(b)(1) and 25 12(b)(6). (See Dkt. Nos. 25, 28.) Judge Peterson issued the first R&R, recommending that this 26 1 Court grant Respondents’ motion. (Dkt. No. 35). The Court adopted in part and rejected in part 2 the first R&R, remanding to Judge Peterson to consider: (1) whether the Nooksack Tribal Court 3 lacked jurisdiction over Petitioner at the time of her arrest, thereby excusing Petitioner’s failure 4 to exhaust her remedies with the Nooksack Tribal Court and (2) the adequacy of the alternate 5 grounds articulated by Respondents for dismissal—primarily sovereign and judicial immunity. 6 (Dkt. No. 43 at 3–5.) Judge Peterson issued a second R&R finding that the Nooksack Tribal 7 Court did not plainly lack jurisdiction over Petitioner at the time of her arrest—the relevant 8 standard for purposes of a habeas petition—and that, regardless, judicial immunity would apply 9 here. (See generally Dkt. No. 45.) Judge Peterson’s R&Rs contain the detailed facts underlying 10 this matter; the Court will not repeat them here. (See Dkt. Nos. 35 at 2–5; 45 at 1–4.) 11 Petitioner lodges the following objections to Judge Peterson’s second R&R: (1) Judge 12 Peterson erred in finding that the Nooksack Tribal Court did not plainly lack jurisdiction over 13 Petitioner and (2) Judge Peterson misapprehended the judicial immunity doctrine. (See generally 14 Dkt. No. 46.) A district court reviews de novo those portions of an R&R to which a party objects. 15 See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections are required to enable the district 16 court to “focus attention on those issues—factual and legal—that are at the heart of the parties’ 17 dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). 18 Tribal members must exhaust their tribal court remedies prior to seeking federal habeas 19 relief. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 848, 857 (1985); Selam v. 20 Warm Springs Tribal Corr. Facility, 134 F.3d 948, 953 (9th Cir. 1998). The Court previously 21 adopted Judge Peterson’s finding that Petitioner has not met this requirement. (See Dkt. No. 43 at 22 2–3.) At issue, though, is whether Petitioner’s failure to do so is excused by the Nooksack Tribal 23 Court’s lack of jurisdiction in this matter. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 24 U.S. 845, 857 n.21 (1985) (exhaustion is not required if it would be futile “because of the lack of 25 an opportunity to challenge the court’s jurisdiction”); Boozer v. Wilder, 381 F.3d 931, 935 (9th 26 Cir. 2004) (a petitioner need not exhaust remedies with the tribal court if it is “plain that the 1 tribal court lacks jurisdiction” thereby making exhaustion “futile”). 2 In her second R&R, Judge Peterson concluded that the Nooksack Tribal Court does not 3 plainly lack jurisdiction on Nooksack trust land outside of the Nooksack reservation—the 4 location of Petitioner’s arrest. (Id. at 5–11.) Petitioner argues that this was error: Washington law 5 applies and, under Washington law, the state has exclusive criminal jurisdiction on Nooksack 6 trust land outside of the reservation. (Dkt. 46 at 3–6.) 7 Even if Washington law controls, this Court finds that authority on the jurisdiction issue 8 is mixed. Petitioner primarily relies on a 1963 opinion from the Washington Attorney General, 9 AGO 63-64 No. 68, and a 1996 Washington Supreme Court opinion, State v. Cooper, 928 P.2d 10 406 (Wash. 1996). (Dkt. No. 46 at 4–5.) While courts often defer to Attorney General opinions, 11 such opinions are not controlling. See Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County 12 Pub. Hosp. Dist. No.1, 305 P.3d 1079, 1082 (Wash. 2013); Cedar Shake and Shingle Bureau v. 13 City of Los Angeles, 997 F.2d 620, 625 (9th Cir. 1993). As for Cooper, the question before the 14 court was not whether the tribe’s jurisdiction extended to off-reservation trust lands, but whether 15 the state’s did. See 928 P.2d at 408. While the court found that the state’s jurisdiction did extend 16 to off reservation trust lands, it never said that such jurisdiction would be exclusive. See 17 generally id. Petitioner also points to State v. Clark, 308 P.3d 590, 596 (Wash. 2013). (Dkt. No. 18 46 at 6.) That decision does contain language suggesting that Washington’s jurisdiction off 19 reservation is exclusive, but like Cooper, this was not the issue before the Clark court. See 20 generally Clark, 308 P.3d at 595–96. And more importantly, this Court cannot square such an 21 assertion with the later statement in the Clark opinion that Public Law 280 “did not divest tribes 22 of this sovereignty when delegating federal jurisdiction to the states.” Id.; see also State v. 23 Schmuck, 850 P.2d 1332 (Wash. 1993) (similar finding). Public Law 280 is the vehicle that 24 provided Washington its jurisdiction over tribal lands. Washington v. Confederated Bands & 25 Tribes of Yakima Indian Nation, 439 U.S. 463, 471–74 (1979). If it is not a divestiture statute, 26 reason dictates that a tribe’s jurisdictional rights to trust lands before Public Law 280 would, 1 indeed, survive Public Law 280. 2 Given this seemingly unclear and conflicting authority, the Court is left with no choice 3 but to conclude that the issue of jurisdiction is far from plain, even under Washington law. Judge 4 Peterson did not err in concluding that the Nooksack Tribal Court did not plainly lack 5 jurisdiction in this matter. 6 Petitioner’s first objection (Dkt. No. 46 at 3) to Judge Peterson’s R&R (Dkt. No. 45) is 7 OVERRULED. Petitioner is not excused from exhausting her remedies with the Nooksack Tribal 8 Court before bringing her action to this Court. The Court need not reach Petitioner’s second 9 objection, as Petitioner’s failure to exhaust is fatal to her petition.
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1 THE HONORABLE JOHN C. COUGHENOUR 2 3 4 5 6 7 UNITED STATES DISTRICT COURT AT SEATTLE 9 ELILE ADAMS, CASE NO. C19-1263-JCC 10 11 Petitioner, ORDER v. 12 RAYMOND DODGE, et al., 13 Respondents. 14 15 This matter comes before the Court on Petitioner’s objections (Dkt. No. 46) to the second 16 report and recommendation (“R&R”) of the Honorable Michelle L. Peterson, United States 17 Magistrate Judge (Dkt. No. 45). Having thoroughly considered the parties’ briefing and the 18 relevant record, the Court hereby ADOPTS the second R&R and DISMISSES the matter without 19 prejudice for the reasons explained herein. 20 Following the Nooksack Tribal Court’s issuance of a warrant for her arrest, Petitioner 21 filed a series of petitions with this Court for a writ of habeas corpus, seeking relief from the 22 Tribal Court’s warrant, pursuant to the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301– 23 1303. (Dkt. Nos. 2, 6, 21.) On November 22, 2019, Respondents moved to dismiss the latest 24 petition—a second amended petition—pursuant to Federal Rules of Civil Procedure 12(b)(1) and 25 12(b)(6). (See Dkt. Nos. 25, 28.) Judge Peterson issued the first R&R, recommending that this 26 1 Court grant Respondents’ motion. (Dkt. No. 35). The Court adopted in part and rejected in part 2 the first R&R, remanding to Judge Peterson to consider: (1) whether the Nooksack Tribal Court 3 lacked jurisdiction over Petitioner at the time of her arrest, thereby excusing Petitioner’s failure 4 to exhaust her remedies with the Nooksack Tribal Court and (2) the adequacy of the alternate 5 grounds articulated by Respondents for dismissal—primarily sovereign and judicial immunity. 6 (Dkt. No. 43 at 3–5.) Judge Peterson issued a second R&R finding that the Nooksack Tribal 7 Court did not plainly lack jurisdiction over Petitioner at the time of her arrest—the relevant 8 standard for purposes of a habeas petition—and that, regardless, judicial immunity would apply 9 here. (See generally Dkt. No. 45.) Judge Peterson’s R&Rs contain the detailed facts underlying 10 this matter; the Court will not repeat them here. (See Dkt. Nos. 35 at 2–5; 45 at 1–4.) 11 Petitioner lodges the following objections to Judge Peterson’s second R&R: (1) Judge 12 Peterson erred in finding that the Nooksack Tribal Court did not plainly lack jurisdiction over 13 Petitioner and (2) Judge Peterson misapprehended the judicial immunity doctrine. (See generally 14 Dkt. No. 46.) A district court reviews de novo those portions of an R&R to which a party objects. 15 See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections are required to enable the district 16 court to “focus attention on those issues—factual and legal—that are at the heart of the parties’ 17 dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). 18 Tribal members must exhaust their tribal court remedies prior to seeking federal habeas 19 relief. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 848, 857 (1985); Selam v. 20 Warm Springs Tribal Corr. Facility, 134 F.3d 948, 953 (9th Cir. 1998). The Court previously 21 adopted Judge Peterson’s finding that Petitioner has not met this requirement. (See Dkt. No. 43 at 22 2–3.) At issue, though, is whether Petitioner’s failure to do so is excused by the Nooksack Tribal 23 Court’s lack of jurisdiction in this matter. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 24 U.S. 845, 857 n.21 (1985) (exhaustion is not required if it would be futile “because of the lack of 25 an opportunity to challenge the court’s jurisdiction”); Boozer v. Wilder, 381 F.3d 931, 935 (9th 26 Cir. 2004) (a petitioner need not exhaust remedies with the tribal court if it is “plain that the 1 tribal court lacks jurisdiction” thereby making exhaustion “futile”). 2 In her second R&R, Judge Peterson concluded that the Nooksack Tribal Court does not 3 plainly lack jurisdiction on Nooksack trust land outside of the Nooksack reservation—the 4 location of Petitioner’s arrest. (Id. at 5–11.) Petitioner argues that this was error: Washington law 5 applies and, under Washington law, the state has exclusive criminal jurisdiction on Nooksack 6 trust land outside of the reservation. (Dkt. 46 at 3–6.) 7 Even if Washington law controls, this Court finds that authority on the jurisdiction issue 8 is mixed. Petitioner primarily relies on a 1963 opinion from the Washington Attorney General, 9 AGO 63-64 No. 68, and a 1996 Washington Supreme Court opinion, State v. Cooper, 928 P.2d 10 406 (Wash. 1996). (Dkt. No. 46 at 4–5.) While courts often defer to Attorney General opinions, 11 such opinions are not controlling. See Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County 12 Pub. Hosp. Dist. No.1, 305 P.3d 1079, 1082 (Wash. 2013); Cedar Shake and Shingle Bureau v. 13 City of Los Angeles, 997 F.2d 620, 625 (9th Cir. 1993). As for Cooper, the question before the 14 court was not whether the tribe’s jurisdiction extended to off-reservation trust lands, but whether 15 the state’s did. See 928 P.2d at 408. While the court found that the state’s jurisdiction did extend 16 to off reservation trust lands, it never said that such jurisdiction would be exclusive. See 17 generally id. Petitioner also points to State v. Clark, 308 P.3d 590, 596 (Wash. 2013). (Dkt. No. 18 46 at 6.) That decision does contain language suggesting that Washington’s jurisdiction off 19 reservation is exclusive, but like Cooper, this was not the issue before the Clark court. See 20 generally Clark, 308 P.3d at 595–96. And more importantly, this Court cannot square such an 21 assertion with the later statement in the Clark opinion that Public Law 280 “did not divest tribes 22 of this sovereignty when delegating federal jurisdiction to the states.” Id.; see also State v. 23 Schmuck, 850 P.2d 1332 (Wash. 1993) (similar finding). Public Law 280 is the vehicle that 24 provided Washington its jurisdiction over tribal lands. Washington v. Confederated Bands & 25 Tribes of Yakima Indian Nation, 439 U.S. 463, 471–74 (1979). If it is not a divestiture statute, 26 reason dictates that a tribe’s jurisdictional rights to trust lands before Public Law 280 would, 1 indeed, survive Public Law 280. 2 Given this seemingly unclear and conflicting authority, the Court is left with no choice 3 but to conclude that the issue of jurisdiction is far from plain, even under Washington law. Judge 4 Peterson did not err in concluding that the Nooksack Tribal Court did not plainly lack 5 jurisdiction in this matter. 6 Petitioner’s first objection (Dkt. No. 46 at 3) to Judge Peterson’s R&R (Dkt. No. 45) is 7 OVERRULED. Petitioner is not excused from exhausting her remedies with the Nooksack Tribal 8 Court before bringing her action to this Court. The Court need not reach Petitioner’s second 9 objection, as Petitioner’s failure to exhaust is fatal to her petition. 10 The Court DECLINES Petitioner’s request to stay the matter while Petitioner continues 11 to seek relief before the Nooksack Tribal Court. (See Dkt. No. 46 at 6–7.) 12 For the foregoing reasons, Judge Peterson’s second R&R (Dkt. No. 45) is ADOPTED. 13 Petitioner’s second amended petition (Dkt. No. 21) is dismissed without prejudice. 14 15 DATED this 23rd day of September 2020. A 16 17 18 John C. Coughenour 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26