United States District Court, D. Montana, Great Falls Division
For William Tayler Kirkaldie, Defendant: Evangelo Arvanetes, LEAD ATTORNEY, FEDERAL DEFENDERS OF MONTANA, Office Headquarters, Great Falls, Great Falls, MT.
For USA, Plaintiff: Jessica Betley, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, Great Falls, MT; Lori A. Harper Suek, OFFICE OF THE U.S. ATTORNEY, Billings, MT; Yvonne G. Laird, LAIRD LAW OFFICE PLLC, Chinook, MT.
Brian Morris, United States District Court Judge.
ORDER GRANTING MOTION TO DISMISS INDICTMENT
Defendant William Tayler Kirkaldie (Kirkaldie) has moved to dismiss the indictment against him. (Doc. 20.) The United States (Government) opposes that motion. (Doc. 24.) The Court heard oral argument on the motion on April 18, 2014. (Doc. 33.)
The Grand Jury returned a one-count indictment on February 20, 2014, that charged Kirkaldie with domestic abuse by a habitual offender, in violation of 18 U.S.C. § 117(a). (Doc. 1.) Kirkaldie moved to dismiss the indictment on March 17, 2014. (Doc. 20.) The Government responded on March 30, 2014. (Doc. 24.)
Kirkaldie simultaneously reached a plea agreement with the Government, and filed a motion to change his plea on April 10, 2014. (Doc. 26.) Kirkaldie and the Government reached a plea agreement pursuant to Fed. R. Crim. P. 11(a)(2). (Doc. 32 at 2-3.) The plea agreement reserved each party's right to appeal the Court's order on the motion to dismiss. (Doc. 32 at 2-3.)
The Government charged Kirkaldie as a habitual domestic violence offender under 18 U.S.C. § 117(a). (Doc. 1.) Section 117(a)
attaches a federal penalty to the commission of a domestic assault when the actor has at least two prior, similar convictions in another jurisdiction. 18 U.S.C. 117(a). The statute addresses specifically the commission of a domestic assault in " Indian country." 18 U.S.C. 117(a). The prior convictions may arise from state, federal, or tribal court. 18 U.S.C. 117(a).
The Violence Against Women and Department of Justice Reauthorization Act of 2005 created the new federal offense under section 117(a) as part of the statute's title to promote safety for Indian women. Pub. L. No. 109-162, § 909, 119 Stat. 2960, 3084 (January 5, 2006). Section 117(a) obligates the federal Government to hold repeat domestic violence offenders accountable as part of the " [f]ederal trust responsibility to assist tribal governments in safeguarding the lives of Indian women." Pub. L. No. 109-162, at § 901. The trust responsibility between the federal Government and Indian tribes stems from " the distinctive obligation of trust incumbent upon the [federal] Government in its dealings with these dependent and sometimes exploited people." Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480, 96 Ct.Cl. 561 (1942).
" [S]ometimes exploited" seems an understatement. Indian women experience battery at a rate of 23.2 per 1,000, as compared with 8 per 1,000 among Caucasian women. Pub. L. No. 109-162, at § § 902, 909 (setting forth Congressional findings). Tribal courts generally lack the authority, however, to prosecute non-Indian domestic violence offenders for offenses against Indian women. 41 Am. Jur. 2d Indians; Native Americans § 143; see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).
An exception slowly evolves. On March 7, 2013, the President signed into law Congress's grant of jurisdiction to tribes over certain domestic violence crimes. Pub. L. No. 113-4, § 904, 127 Stat. 120, 120-124 (Mar. 7, 2013), codified at 25 U.S.C. § 1304. Tribes within the United States -- although outside of this District -- have developed the requisite capacity to prosecute a non-Indian for a domestic violence offense against a tribal member at present. See Sari Horwitz, Arizona tribe set to prosecute first non-Indian under a new law, Washington Post, Apr. 18, 2014, available at http://www.washingtonpost.com/national/ arizona-tribe-set-to-prosecute-first-non-indian-under-a-new-law/2014/04/18/ 127a202a-bf20-11e3-bcec-b71ee10e9bc3_story.html. For all other tribes, the expanded jurisdiction takes effect on March 7, 2015. Pub. L. No. 113-4, § 908, 127 Stat. at 125-126. The grant of jurisdiction represents a step toward keeping Indian women safe. The historic jurisdictional gap that arose from non-Indians that committed offenses on Indian reservations nevertheless proves troubling.
Prosecutions in tribal court will continue exclusively against Indian defendants until tribal courts successfully institute the requirements of 25 U.S.C. § 1304. The byproduct of tribal courts' limited jurisdiction to preside exclusively over prosecutions of Indian domestic violence offenders has resulted in predominantly Indian domestic violence offenders as defendants charged under 18 U.S.C. 117(a). See, e.g., United States v. Cavanaugh, 680 F.Supp.2d 1062 (D.N.D. 2009) rev'd, 643 F.3d 592 (8th Cir. 2011); United States v. Shavanaux, 2:10 CR 234, 2010 WL 4038839 at *1 (D. Utah Oct. 14, 2010) rev'd, 647 F.3d 993 (10th Cir. 2011). Kirkaldie falls within this framework.
Kirkaldie attests that " a tribal conviction in Tribal Court" constituted one of his " final conviction[s] on at least 2 separate prior occasions." 18 U.S.C. 117(a); (Doc.
21 at 2.) A Government witness testified during the motion hearing that Kirkaldie had served jail time as part of the prior conviction in tribal court. (Doc. 33.) Against this backdrop, Kirkaldie brings two challenges to ...