Document Type

Article

Publication Date

9-23-2004

Abstract

  • In the Blackfeet Tribal Court of Appeals, the Court via a petition for a Writ of Habeas Corpus concerning the permanent expulsion of a non-member Indian, Blackfeet Descendant, who is a member of the Blood tribe, from Canada. Defendant had lived on the Blackfeet Indian reservation since 1999 and had a tumultuous relationship with a Blackfeet tribal member which resulted in the domestic abuse conviction, in tribal court. Ten separate charges, regardless of conviction, were used to justify Defendant’s permanent expulsion from the Blackfeet Indian Reservation.

  • The Court considered whether;

  • 1) Defendant’s Due Process rights were violated by the permanent expulsion order; and

  • 2) Whether the judge was duly appointed to the Blackfeet Tribal Court.

  • The Court determined that the characterization of the Defendant as a “non-member Indian” was improper due to the fact that Defendant is a Blackfeet descendant and an enrolled member of the Kainawa Blood, a sister tribe. The Court determined that Defendant is subject to Blackfeet Tribal Court jurisdiction per Resolution 48-92, which extended criminal jurisdiction over all Indians, including Canadian Indians.

  • The Court refused to address Defendant living out of wedlock with C.H. because it is not a violation of Tribal law nor Custom, but emphasized that, because he has a child, he has ties to the Blackfeet Reservation.

  • Though there is a valid Fugitive Canadian Warrant, Canadian authorities had made no attempt to extradite the Defendant. As per the previous crimes, where no conviction occurred, the Defendant is presumed innocent until found guilty.

  • Expulsion due to unemployment is improper, as a sole reason, because nearly 70% of residents on the reservation are unemployed or seasonally employed. Nor should not owning real property be used as a basis for expulsion because then the tribe would expel many people with criminal records who do not own property.

  • The Court refers to United States Supreme Court case law, upholding the inherent authority of tribes to expel undesirables, the Court found there was insufficient evidence to warrant permanent expulsion form the Blackfeet Indian Reservation based solely on his Domestic Violence and prior juvenile convictions. However, the Prosecutor did not petition for permanent expulsion, only an expulsion.

  • Per issue 2, the Court discovered that the Judge was validly appointed by the Blackfeet Tribal Business Council, but was never subsequently approved by the Bureau of Indian Affairs, despite this being a consistent oversight on the part of the Court.

  • The Court recommended that the Blackfeet Tribal Business Council amend Blackfeet Tribal Law and Order Code, Ch.1, Sec. 2 to delete the approval requirement in order to avoid future impropriety. The Court declared that all previous decisions and orders by improperly placed tribal court judges will stand.

  • The Court found in favor of the defendant and vacated the permanent expulsion order.

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