Means
Means v. Northern Cheyenne Tribal Court
Opinion
Lead Opinion
Reed, J.
Opinion by Judge REED; Concurrence by Judge REINHARDT.
Appellant David Means, a member of the Sisseton-Wapatan (Sioux) Tribe of Indians, is currently free on bail pending criminal prosecution in the Tribal Court of the Northern Cheyenne Indian Tribe. After being arrested and freed on bail, but prior to trial, Means sought habeas relief from the district court on jurisdictional grounds. He argued that the Tribal Court does not have criminal jurisdiction over him, as a nonmember Indian, for the crimes with which he is charged. The district court reviewed his petition, but denied relief. The court’s holding was based on a federal statute enacted after all of the acts with which Means is charged were allegedly committed, and which purportedly “recognizes and affirm[s]” the criminal jurisdiction of all tribal courts over all Indians, whether or not members of the same tribe.
Further criminal proceedings in the Tribal Court have been stayed by this court pending disposition of these appeals. Means appeals the district court’s denial of his petition, while the Tribal Court and its Presiding Judge, Glenn Littlebird (collectively, “the Tribal Court” or Appellees), cross-appeal the issue…
Concurring Opinion
Reinhardt, J.
concurring:
I agree with the majority that § 1301 may not be applied retrospectively to Means. I also concur in the majority’s excellent analysis of the ex post facto issue. Indeed, as the majority properly concludes, if the amendments to § 1301 were applied to Means, he would be unconstitutionally subjected to additional prosecution and heightened penalties that he was not subject to at the time the alleged crimes occurred. Because I agree with the majority’s holding that retrospective application of § 1301 to Means would violate the Ex Post Facto Clause, I concur in the result, and in most of the majority’s well-reasoned opinion. I conclude, however, that the district court was correct in holding that Congress clearly intended that § 1301 apply retrospectively. The language of the amendments and the legislative history evince Congress’ clear intent that § 1301 would apply to cases, such as Means’, in which the crimes occurred before the amendments’ enactment. Accordingly, I would hold that the statute is unconstitutional to the extent that it is applicable to offenses committed prior to its enactment.