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 Fight For Justice

On the Keweenaw Bay Indian Community Reservation


UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION


UNITED STATES OF AMERICA,

Plaintiff,

V.

FREDERICK DAKOTA and
JERROLD L. POLINSKY,
Defendants.

Case No. 2:96-cr-12

HON. ROBERT HOLMES BELL


OPINION

On June 26, 1996, Frederick Dakota and Jerrold Polinsky were indicted by a grand jury. Defendants Dakota and Polinsky are charged in Counts 1 through 51 with conspiracy to give and receive bribes for the purpose of influencing the placement of gaming machines, at advantageous terms, in a casino operated by the Keweenaw Bay Indian Community (KBIC) in Baraga, Michigan. Counts 52 and 54 charge defendant Dakota with under reporting his income during 1991, 1992 and 1993. According to the indictment, defendant Dakota, as Tribal Chief, negotiated a gaming machine leasing agreement which provided for illegal kickbacks to be paid to Dakota. Defendants have pled not guilty to the charges. The matter is presently set for trial for March 24, 1997.

In defense of the charges against them, defendants sought documents that were at KBIC tribal headquarters. According to the defendants, these documents would establish the legality of the activities that defendants were involved in with respect to the leasing of gaming equipment by the tribe. The tribal headquarters are presently occupied by a group known as "Fight for Justice"




(FFJ) .1 Apparently, FFJ has occupied the tribal headquarters since August of 1995. The record does not fully disclose the nature of the intratribal dispute between FFJ and the group which refers to itself as KBIC. FFJ maintains that the KBIC group lead by defendant Dakota conducted illegal elections to retain its position as head of the tribal government. KBIC asserts that FFJ "had absolutely no claim to lawful ownership of these files, records and equipment. "See Brief of Interested Party Keweenaw' Bay Indian Community in Response to Fight for Justice's "Brief in Support of Magistrate's Original Order Requiring that Records be Returned to the Old Tribal Center Currently in Fight for Justice's Control" (Docket #94) at page 5.

On August 14, 1996, this Court ordered that the documents at the tribal headquarters be seized by the U.S. Marshals Service and stored in a location where they could be reviewed by the defendants for purposes of their defense in this action. The defendants have had a full and adequate opportunity to review those records and have identified those records which they believe are necessary for their defense. The documents which have been identified as necessary for the defense of this action are being retained by the Court. There is no reason for the Court to retain the other documents. In my August 14, 1996 order, I indicated that when the parties completed their review of the documents, those documents which were not necessary for trial in this matter would be returned to the tribal headquarters.

1FFJ is made up of members of the Keweenaw Bay Indian Tribe.


Presently before the Court is a "Motion by Interested Party Keweenaw Bay Indian Community for Return of Property Pursuant to Rule 41 (e) of the Federal Rules of Criminal Procedure"

Rule 41(e) provides that a person aggrieved by an unlawful search and seizure or by the deprivation of property "may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property." KBIC has seized upon this provision of the Federal Rules of Criminal Procedure as providing this Court with jurisdiction to resolve the intra tribal dispute that exists between FFJ and KBIC. KBIC's motion maintains that KBIC is the lawful owner of the documents and that FFJ's occupation of tribal headquarters is unlawful. Therefore, according to KBIC, this Court should order that the documents be returned to KBIC.2

A hearing was held on this motion on September 24, 1996. No testimony or evidence was presented by KBIC in support of their position. The record does not provide support for various assertions which have been made by KBIC and FFJ. KBIC consistently maintains that FFJ wrongfully seized the tribal headquarters, yet there was no testimony or other evidence to support this assertion. KBIC maintains that it is the recognized government of the tribe, yet, again, there is no evidence to support this assertion. KBIC and FFJ both maintain that they are the rightful possessors of the property which was seized by the U.S. Marshals Service.


2KBIC has failed to identify where the documents would be returned to or into whose possession the documents would be returned.


No evidence has been offered regarding who is the rightful owner of those documents.3 Both FFJ and KBIC maintain that the documents are tribal records. There is no record regarding any legal efforts which have been made by either KBIC or FFJ to determine who is the lawful possessor of the records located in the tribal headquarters. Furthermore, there is no evidence that legal actions are pending in tribal court or elsewhere to establish that FFJ's possession of the tribal headquarters is unlawful.

The first question presented by KBIC's motion is whether this Court is the proper forum to resolve the intra tribal dispute regarding possession of the tribal records in question. Recently, in Duncan Energy Company v. Three Affiliated Tribes-Of the Fort Berthold Reservation, 27 F.3d 1294 (8th Cir. 1994), the court explained:

The Supreme Court has repeatedly recognized the Federal Government's longstanding policy of encouraging tribal self-government. See, e.g., Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14, 107 S.Ct. 971, 975-76, 94 L.Ed.2d 10 (1987); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 138 n. 5, 102 S.Ct. 894, 902 n. 5, 71 L.Ed.2d 21 (1982). Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development. Iowa Mutual, 480 U.S. at 14-15, 107 S.Ct. at 975-76. Civil jurisdiction over tribal-related activities on reservation land presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or by federal statute. Id. at 18, 107 S.Ct. at 977-78. The deference that federal courts afford tribal courts concerning such activities occurring on reservation land is deeply rooted in Supreme Court precedent. Because a federal court's exercise of jurisdiction over matters relating to reservation affairs can impair the authority of tribal courts, the Supreme Court has concluded that, as a matter of comity, the examination of tribal sovereignty and jurisdiction should be conducted in the first instance by the tribal court itself. National Farmers Union Ins. Cos.-. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2453-54, 85 L.Ed.2d 818 (1985).

3The Court has received at least one other request for return of some of the documents seized by the U.S. Marshals Service by an individual who maintains that he is the rightful owner of certain medical records seized by the U.S. Marshals Service. See copy of letter sent to this court by Geoffrey S. Harrison, M.D., attached.


In addition to encouraging tribal self government, exhaustion of tribal remedies permits:

a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed [in the federal district court] .... [It will also] encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will provide other courts with the benefit of their expertise in such matters in the event of further judicial review.

National Framers Union, 471 U.S. at 856-57, 105 S.Ct. at 2453-54. Thus, the requirement of tribal exhaustion contemplates the development of a factual record that will serve the "orderly administration of justice in the federal court." Id. at 856, 105 S.Ct. at 2453.

Id. at 1299.

It is FFJ's position that an illegal tribal election has been held and that KBIC does not represent the legitimate government of the tribe. In Wheeler v. Swimmer, 835 F.2d 259 (10th Cir. 1987), the court explained:

The allegations in this case all relate to the conduct of a tribal election. The right to conduct an election without federal interference is essential to the exercise of the right to self-government. Although appellants have couched this appeal in terms of alleged violations of their rights by individuals instead of by the tribal organization, the interest in preserving the inherent right of self-government in Indian tribes isequally strong. The Supreme Court said inMartinez: "Tribal forums are availableto vindicate rights created by the ICRA....Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." 436 U.S. at 65, 98 S.Ct. at 1680 (emphasis added).

Appellants must seek their remedy through the available tribal forum. The identity of the defendants does not change the resolution of the jurisdictional issue. As we said in Wheeler, "the Cherokee Nation has a system for interpreting tribal law, and, when a tribal forum is available ... the aggrieved party must seek relief in that forum." 811 F.2d at 553.

Id. at 262.

In Olcruin v. Lucero, 87 F.3d 401 (10th Cir. 1996), the court explained that a tribal remedy must be shown to be nonexistent by an actual attempt before a federal court will have jurisdiction to consider the issue. Id. at 404, quoting White V. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984).

It is apparent, to the undersigned, that the dispute between KBIC and FFJ is primarily an intratribal dispute between members of the tribe. The attorney representing KBIC admitted at the hearing on this motion that the FFJ is made up of tribal members. This is a court of limited jurisdiction. The case law clearly establishes that intratribal disputes should first be addressed by the tribal courts and that this court should abstain from this matter.

Moreover, Federal Rule of Criminal Procedure 41 was not drafted to provide this court with jurisdiction to resolve complex issues of Indian law.

I

f this court were to exercise jurisdiction over the intratribal dispute, the record before the court is inadequate to resolve the issues presented. Neither KBIC nor FFJ has supported the factual assertions found in their briefs filed in this court with any evidence. Representations by an attorney,' in a brief filed before this court, that its client is the rightful possessor of certain records will not carry the day. As the Sixth Circuit explained in U.S. v. Hess, 982 F.2d 181 (6th Cir. 1992), a request for return of property pursuant to Rule 41(e) must be supported by evidence offered in support of the movant's claim to possession of the property. Id. at 186. KBIC's motion was set for hearing and no evidence was offered in support of movant's claim. If this court is to resolve an issue regarding who is the rightful possessor of property, an adequate record must be made to provide for that resolution. No such record exists in this case.

Accordingly, I conclude that this court should not exercise jurisdiction over the question of who is the lawful possessor of the records in question. Therefore, the tribal records will be returned to the tribal headquarters where they were located prior to the seizure, without resolution of the issues of who is the lawful occupier of the tribal headquarters or the rightful possessor of the records in question.

Dated: October 1996 TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

To read a brief summary of FFJ and it's begining read Tina Lam's Detorit Free Press article

Copyright 2001 by Rose Edwards. All Rights Reserved.