Thomas D. Davis v. Bryant Muellar, as Sheriff of Rolette County, North Dakota

643 F.2d 521

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 3, 1981
• Docket: 80-1082
• Status: Published

Opinions

HENLEY, Circuit Judge.

Thomas D. Davis appeals the district court order, 481 F.Stipp. 888, denying his petition for a pretrial writ of habeas corpus, 28 U.S.C. § 2241(c)(3), by which he sought release from North Dakota state custody on grounds that his arrest and state custody were, and are, in violation of a tribal extradition ordinance. We affirm.

Davis is an enrolled member of the Turtle Mountain Band of Chippewa Indians. The tribal extradition ordinance, first approved by the United States Bureau of Indian Affairs on June 13,1967, mandates the following procedure in arresting a tribal member for a crime committed off the reservation: the state officials present the arrest warrant to tribal officials, the tribal officials make the arrest, and the Indian accused has an extradition hearing as a prerequisite to state custody. Turtle Mountain Tribal Code § 1.0710.¹

The Turtle Mountain Indian Reservation is composed of two townships in Rolette County, North Dakota. Indian land in the County, but outside the reservation, makes up another two townships. The resulting patchwork of Indian and state jurisdiction requires close cooperation between Indian and state officials, and there is no reason to believe that in general such cooperation does not exist. Specifically, with respect to the arrest of Davis subjective bad faith is denied.

On the night of October 9, 1978 Davis allegedly made a telephone call from the Reservation in which he threatened to kill one Kim Albert the next day at the Town of Rolla.² The alleged threat was reported to Rolette County officials who determined to arrest Davis the following morning.

On the morning of October 10, 1978 the tribal police department, obviously acting in cooperation with the Rolette County sheriff’s office, notified Davis at his place of employment on the reservation that the county officers wished to speak with him and asked him to come to the Tribal Law and Order Office, which he did. After a short time a deputy sheriff arrived and Davis was arrested without a warrant. The record reflects that Davis refused to waive extradition and requested a hearing. However, no tribal judge was available nor was one to be available that day. In those circumstances Rolette County officials elected to take Davis into custody even though they were aware of the requirements of the extradition ordinance.

After Davis was placed in state custody, a complaint was filed, a warrant was issued, and bond was set at $1,500.00. Later that afternoon, Davis’ wife posted bond at the Rolette County sheriff’s office in Rolla. Davis was released, but the terms of his bond required him to appear in the state courts.³

Davis presented his unlawful arrest claims to North Dakota state courts in four separate appearances. At his preliminary hearing in county justice court, Davis moved for a dismissal on the basis that the state arrest and custody of him on the reservation violated his rights under the tribal extradition ordinance and frustrated the federal guarantee of tribal self-government. This motion was denied, and he was bound over to the state district court. Then, Davis petitioned the state district court for a writ of habeas corpus, releasing him from state custody until the tribal extradition ordinance had been complied with. The writ was denied on the ground that he was not “in custody.”⁴ At the time of his arraignment in state district court, Davis again moved to dismiss on the basis of violation of tribal extradition laws but was denied relief. Finally Davis sought a writ of prohibition from the Supreme Court of North Dakota to restrain the impending district court prosecution. Without reaching the issue of the lawfulness of the arrest, the state supreme court denied the writ, noting that prohibition is granted only sparingly and only where there is no adequate remedy by appeal. Davis v. O’Keefe, 283 N.W.2d 73, 76 (N.D.1979).

Davis then took his claim to federal court. He petitioned the United States District Court for the District of North Dakota for a writ of habeas corpus based on the tribal extradition ordinance. By an order dated December 27,1979, the district court denied the petition on the grounds that Davis had not exhausted state remedies because he had not yet been tried and convicted and that there were no special circumstances to override the exhaustion requirement. An administrative panel of this court granted a certificate of probable cause and directed that the state criminal proceeding be stayed pending appeal.

I. Federal Judicial Intervention.

At the outset we are confronted with the question whether this court should assume jurisdiction and decide this case on its merits.

Davis contends that the special circumstances of this case negate the need for exhaustion of state remedies. Alternatively, he contends that state remedies have been exhausted. He asserts that the unique status given tribal sovereignty constitutes a special circumstance.⁵

Public policy and 28 U.S.C. § 2283 ⁶ discourage federal court interference with state court proceedings. Younger v. Harris, 401 U.S. 37, 40—41, 91 S.Ct. 746, 748-749, 27 L.Ed.2d 669 (1971). Younger, which dealt with a federal stay or injunction of a pending state criminal prosecution, was based on “the notion of ‘comity,’ that is, a proper respect for state functions.” Id. at 43-44, 91 S.Ct. at 750. The same policy has been applied to federal habeas corpus relief from a state criminal trial. E. g., Kolski v. Watkins, 544 F.2d 762, 766 (5th Cir. 1977); United States ex rel. Scranton v. New York, 532 F.2d 292, 295 (2d Cir. 1976); United States ex rel. Tyler v. Hall, 444 F.Supp. 104, 106 (E.D.Mo.1978). However, the rule of comity does not limit the power of the federal courts to dispense with the exhaustion requirement altogether where “special circumstances" exist. E. g., Braden v. Thirtieth Judicial Circuit Court, 410 U.S. 484, 489, 93 S.Ct. 1123, 1126-1127, 35 L.Ed.2d 443 (1973) (speedy trial rights); Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886); United States ex rel. Russo v. Superior Court, 483 F.2d 7,12 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 313 (1973) (double jeopardy).

The federal district court held that requiring Davis to defend himself in a criminal trial would not justify habeas corpus relief under the “both great and immediate” irreparable injury test of Younger. As the district court noted, while Davis has exhausted his pretrial state remedies he could appeal a state conviction on the ground of the unlawfulness of the arrest.⁷ And as Younger teaches, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751.

As stated, it is urged here that serious questions of tribal sovereignty and state-tribal relations are raised to such an extent as to constitute special circumstances justifying dispensing with exhaustion requirements as contemplated by Braden and Russo.

The Turtle Mountain Band of Chippewa Indians has appeared amicus curiae and has undertaken to raise questions as to the extent to which the state must recognize sovereignty and control of the tribal government over the reservation’s inhabitants. Thus, it may be said that in a sense we are to be concerned not only with the personal injury to Davis but with broader tribal interests as well.

Tribal sovereignty undoubtedly includes the power to establish a court system. American Indian Policy Review Commission, 95th Cong., 1st Sess., Final Report (Comm.Print 1977), at 99 (hereinafter Final Report), and the trust responsibility of the federal government includes protecting tribal sovereignty. Id. at 104.⁸ Indeed, the federal courts historically have protected tribal sovereignty from state interference. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832). Moreover, considerations of comity underlying Younger to a degree may be said to apply to tribal governments as well.⁹ And if we were presented with a claim filed to protect the extradition process prior to surrender of the individual petitioner to the demanding state considerations of comity and concern for tribal sovereignty might well dictate exercise of federal jurisdiction.

Such a pre-surrender case decided before Younger was Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970). In Merrill after the Navajo Tribal Court declined to extradite a reservation Indian to Oklahoma, Arizona honored an extradition demand by Oklahoma and arrested the Indian on the reservation. The habeas corpus petition was brought in the asylum jurisdiction (Arizona) to prevent the demand jurisdiction (Oklahoma) from taking custody of him. The federal court entertained the petition and it was granted on the ground that Arizona had no extradition jurisdiction over Indian residents of the Navajo Reservation which would justify an arrest on the Reservation upon a demand from Oklahoma.

But Merrill is not the case before us. Here, Davis is in custody of North Dakota. There is a pending state criminal prosecution in which Davis’ rights may be recognized and we are convinced that neither the asserted tribal interest, Davis’ individual interest, nor any combination of the two justifies our exercise of habeas jurisdiction.

From what has been said, it is clear that the judgment of the district court should be affirmed and this opinion brought to a close. Even so, the position taken by the dissent seems to call for a statement on the merits and we undertake a brief discussion of the personal jurisdiction issue despite some misgiving brought on by Firestone Tire & Rubber Co. v. Risjord, - U.S. -, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), in which the Supreme Court held that this court in In re Multi-Piece Rim Products Liability, 612 F.2d 377 (8th Cir. 1980), having decided it had no jurisdiction of an interlocutory appeal erred in ruling prospectively on the merits of the appeal.

II. Personal Jurisdiction.

The traditional rule is that a state court maintains personal jurisdiction over a defendant brought before the court by unlawful means. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 112, 96 L.Ed. 651 (1952). This has been the law at least since the 1880’s when an officer from Kentucky arrested in West Virginia and abducted therefrom one Mahon who was a fugitive from a murder charge in Kentucky, Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283 (1888), and when an officer commissioned by the United States illegally abducted from Peru and brought to California a fugitive from a felony charge pending in Illinois, Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1888).

Personal jurisdiction, once obtained, continues and illegality of arrest may not serve as grounds for attack on a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-866, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, supra; Pruitt v. Hutto, 542 F.2d 458, 459 (8th Cir. 1976).

Only in United States v. Toscanino, 500 F.2d 267, 274-79 (2d Cir. 1974), has a court carved out an exception to the illegal arrest rule. In Toscanino the court remanded for an evidentiary hearing concerning the defendant’s allegation that he was illegally kidnapped from Uruguay and transported to the United States in a manner which “shocked the conscience” of the court. That exception was expressly limited by the Second Circuit in United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), to egregious incidents, as in Toscanino, which shock the conscience.

The facts of this case simply do not suggest the type of shocking conduct described in Toscanino, supra, 500 F.2d at 274-79, that would provide grounds for granting appellant’s requested relief.

In a case involving an alleged illegal arrest in Indian country and a claim that illegality of the arrest without extradition divested a state court of jurisdiction to try a habeas petitioner, this court recently followed the general rule and refused habeas relief. Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980).

As we understand the dissent, it does not quarrel with the general rule. Rather, it bases jurisdiction and its reasoning on the merits on the special status of Indian tribes in the United States and special governmental interest in Indian self-government. We do not disagree that there is a special and unique relationship between the government and the tribes nor do we question the power of the United States to alter the Ker-Frisbie personal jurisdiction rule. But we are unable to find that the United States has by policy, by treaty, by statute or by court decision decreed North Dakota’s loss of personal jurisdiction over appellant as a penalty for having arrested appellant in violation of the tribal extradition ordinance here involved.

We direct dissolution of the interlocutory stay heretofore entered by this court and affirm the judgment of the district court.

1 . Turtle Mountain Tribal Code (1976) provides in part:

1.0710. Extradition. Any Indian found within the boundaries of the Turtle Mountain Indian Reservation who is wanted by State authorities for a violation of State law committed outside the jurisdiction of the Turtle Mountain Tribal Court, and a warrant of arrest having been issued from a State Court, may be arrested and taken into custody by Bureau of Indian Affairs or Tribal law enforcement personnel for prompt transfer to the appropriate enforcement agency. The arrest and removal of the fugitive will be accomplished in accordance with the procedure set forth herein; Copies of State warrants may be presented to the Agency Branch of Law and Order whereupon they will be recorded as to date and time received. The warrant will be promptly presented to the Tribal or Trial Court Judge of the Turtle Mountain Tribal Court for a review as to date, charge, and person named thereon, to determine its apparent validity. The Judge, after satisfying himself or herself as to the apparent validity of the warrant, will issue an order for the arrest of the alleged fugitive from justice.

All Indians being taken into custody as provided in the preceding paragraph shall be taken by the police officer to the Turtle Mountain Tribal Court where the Judge shall hold a hearing to determine only whether the Indian person in custody and before the Court is the same person charged on the face of the warrant. An Indian may waive such hearing by executing a waiver of removal hearing and he will be promptly turned over to the custody of the appropriate State official. Where a State warrant is issued from a State other than the State wherein the Indian Court is located, the warrant should be presented to the Tribal Court by the Sheriff of the County in which the reservation is located. Upon assurance by the local sheriff that the out-of-state agency will extradite the wanted subject, the procedure governing the arrest of the wanted fugitive may be completed as in other cases. After a hearing, as provided in paragraph (2) above, if the Judge is satisfied the fugitive is the same person named in the State warrant, the Judge shall issue an appropriate order to that effect which will authorize the State official to remove the fugitive from the Turtle Mountain Indian Reservation. In all cases wherein Indians are arrested by reservation law and order personnel the requesting agency supplying the warrant shall be immediately notified that the subject is in custody and will be delivered to a proper official within a reasonable time to transfer the fugitive to their particular jurisdiction.

2 . Davis was subsequently charged with terrorizing, a Class C felony under N.D.Cent.Code § 12.1-17-04, for allegedly making the threatening phone call to Kim Albert concerning an incident in which Albert struck Davis’ wife. Albert received the call in Rolla, an off-reservation town, on October 9, 1978.

3 . Davis did not waive lack of jurisdiction by posting bond and making special appearances before the courts. Albrecht v. United States, 273 U.S. 1, 9, 47 S.Ct. 250, 253, 71 L.Ed. 505 (1926). Indeed, habeas corpus relief would include return of the posted bond.

4 . For federal purposes, Davis is “in custody.” Kolski v. Watkins, 544 F.2d 762, 763 n.2 (5th Cir. 1977); United States ex rel. Scranton v. New York, 532 F.2d 292, 293-94 (2d Cir. 1976). North Dakota apparently requires allegation of confinement in a petition for state habeas corpus. See Fournier v. Roed, 161 N.W.2d 458, 470 (N.D.1968) (Knudson, J., concurring specially).

5 . Davis also argues that state officials’ knowing and willful violation of tribal ordinances constituted special circumstances. However, the district court found that there was no showing of bad faith or harassment. We see no need to overturn that finding.

6 . 28 U.S.C. § 2283. Stay of State Court Proceedings.

A court of the United States may not grant an injunction to stay the proceedings in a State Court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

7 . A conviction is rarely overturned on the ground of unlawfulness of the arrest so long as fruits of the illegal arrest are not used at trial. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Even where the illegal extradition does not invalidate a subsequent conviction, the defendant may have a cause of action under 42 U.S.C. § 1983. See Brown v. Nutsch, 619 F.2d 758 (8th Cir. 1980), and cases cited therein.

8 . A refusal of state police officers to recognize legitimate tribal judicial authority while on the reservation is at least to some extent state interference with tribal sovereignty. E. g., Fisher v. District Court, 424 U.S. 382, 96 S.Ct. , 47 L.Ed.2d 106 (1976); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).

9 . Davis suggests that the principle of comity itself mandates respect for tribal law, as the law of a third independent sovereign, citing United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). While it is clear that tribal reservation sovereignty is not congruent with state sovereignty, such sovereignty as the tribes do possess is entitled to recognition and respect both by state and federal governments.