SCOTT WILLIAM MOSES V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
SCOTT WILLIAM MOSES,
FOR PUBLICATION
March 1, 2007
9:05 a.m.
Plaintiff-Appellant,
v
No. 262970
DEPARTMENT OF CORRECTIONS and
PEOPLE OF THE STATE OF MICHIGAN,
Defendants-Appellees.
Official Reported Version
Before: Markey, P.J., and Saad and Wilder, JJ.
PER CURIAM.
In this habeas corpus proceeding, plaintiff challenges the jurisdiction of the Isabella
Circuit Court with respect to his conviction of third-degree criminal sexual conduct (CSC), MCL
750.520d(1)(b), because he contends the offense occurred in "Indian country" as that term is
defined in 18 USC 1151. Plaintiff asserts that because he is an enrolled member of the Saginaw
Chippewa Tribe, and because the offense occurred within the exterior boundaries of the Isabella
Indian Reservation as determined by the treaties of August 2, 1855, and October 18, 1864,
between the United States and the Chippewa of Saginaw, Swan Creek, and Black River, the
jurisdiction over the CSC offense was exclusively federal or tribal. First, we conclude that
habeas corpus is an available remedy to assert a radical defect in the circuit court's jurisdiction.
Second, we deny plaintiff relief because the offense occurred on so-called "swampland" patented
by the United States to the state of Michigan before the treaties of 1855 and 1864; consequently,
the situs of the CSC offense was not "Indian country." See People v Bennett, 195 Mich App
455; 491 NW2d 866 (1992).
I. Facts and Procedural History
This action arises out of plaintiff 's November 28, 2001, no-contest plea to one count of
third-degree CSC, pursuant to a plea agreement, before the Isabella Circuit Court. The court
used a Michigan State Police report offered by the prosecutor to find a factual basis for the plea.
The parties agree that the CSC offense occurred in October 2001, at the home that the
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complainant and plaintiff shared at 3560 N. Johnson Road in Isabella County.1 The parties
further agree that this location is within the exterior boundaries of the Isabella Reservation
according to the treaties of 1855 and 1864, consisting of five townships and the north half of two
other townships, all contiguous and situated in Isabella County. In addition, plaintiff concedes
this location is on "swampland" that the United States patented2 to the state of Michigan pursuant
to the Swamp Land Act of September 28, 1850, 43 USC 982. Plaintiff was sentenced on April
11, 2002, to 110 months to 15 years' imprisonment.
On February 7, 2005, while serving his prison sentence at the Saginaw Correctional
Facility, plaintiff filed an action for a writ of habeas corpus against the Saginaw Correctional
Facility's warden in the Saginaw Circuit Court. Plaintiff argued that he should be released from
prison because the state of Michigan lacked jurisdiction to prosecute him because (1) he was an
enrolled member of the Saginaw Chippewa Indian Tribe at the time of the offense, and (2) the
offense occurred on the Isabella Indian Reservation. He also argued that various federal
constitutional rights were violated when he was arrested pursuant to a warrant that lacked
probable cause on the matter of jurisdiction and prosecuted in a forum that had no jurisdiction.
The Attorney General's office argued that the petition should be dismissed because, in substance,
plaintiff was seeking judicial review of his conviction and sentence, which took place in the
Isabella Circuit Court, and neither the warden nor the Department of Corrections (DOC) is a
proper party to an appeal of a criminal conviction.
On April 15, 2005, the Saginaw Circuit Court dismissed plaintiff 's petition for lack of
jurisdiction. Plaintiff thereafter filed an appeal by right with this Court in Docket No. 262589,
which was dismissed for lack of jurisdiction on June 15, 2005, because the April 15, 2005, order
was not subject to appeal by right. On May 27, 2005, plaintiff filed an original complaint for
habeas relief with this Court. On October 17, 2005, this Court entered an order granting the
complaint for a writ of habeas corpus and ordering the parties to "proceed to a full hearing on the
merits in the same manner as an appeal of right." On February 22, 2006, this Court entered an
order granting the Isabella County prosecutor's motion to join this action as a party defendant.
II. Standard of Review
A prisoner's right to file a complaint for habeas corpus relief is guaranteed by Const
1963, art 1, § 12. Morales v Parole Bd, 260 Mich App 29, 40; 676 NW2d 221 (2003). Also, this
Court has jurisdiction to entertain an action for habeas corpus to inquire into the cause of
detention where, as here, the judge in the county where the prisoner was detained refuses to issue
the writ. MCL 600.4304(2); MCR 3.303(A)(2); MCR 7.203(C)(3). To the extent that they do
not conflict with MCR 7.206, the rules in MCR 3.303 apply to the action. MCR 7.206(B).
Where this Court orders a full hearing on the merits, it may do so "with or without referral to a
1
Plaintiff more fully describes this location as being T15N, R5W, section seven, Nottawa
Township, Isabella County.
2
A "land patent" is "[a] muniment of title issued by a government or state for the conveyance of
some portion of the public domain." Black's Law Dictionary (4th ed), p 1282.
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judicial circuit or tribunal or agency for the taking of proofs and report of factual findings."
MCR 7.206(D)(3). The use of a fact-finder is appropriate when there are disputed facts. Durant
v State Bd of Ed, 424 Mich 364, 394; 381 NW2d 662 (1985).
We review de novo questions of law, including the interpretation of a statute or treaty.
Jones v Dep't of Corrections, 468 Mich 646, 651; 664 NW2d 717 (2003); People v Mackle, 241
Mich App 583, 590; 617 NW2d 339 (2000).
III. Analysis
As a threshold matter, we reject the DOC's argument that it is not a proper party to this
proceeding. Under MCR 3.303(J), the "writ or order may designate the person to whom it is
directed as the person having custody of the prisoner." Further, the DOC has "consistently been
named as a party in habeas corpus proceedings brought by state prisoners and its role in such
proceedings has never been challenged by the appellate courts of this state." Cross v Dep't of
Corrections, 103 Mich App 409, 413-414; 303 NW2d 218 (1981). The DOC's reliance on MCL
600.4310 is misplaced because that statute does not identify the proper defendant, but rather
identifies persons who may not bring an action for a writ of habeas corpus.
The object of the writ of habeas corpus is "to determine the legality of the restraint under
which a person is held." Phillips v Warden, State Prison of Southern Michigan, 153 Mich App
557, 565; 396 NW2d 482 (1986). The writ of habeas corpus deals with radical defects that
render a judgment or proceeding absolutely void. Hinton v Parole Bd, 148 Mich App 235, 244245; 383 NW2d 626 (1986). In general, MCL 600.4310(3) prohibits habeas corpus relief to
"[p]ersons convicted, or in execution, upon legal process, civil or criminal." But relief "is open
to a convicted person in one narrow instance, . . . where the convicting court was without
jurisdiction to try the defendant for the crime in question." People v Price, 23 Mich App 663,
669-670; 179 NW2d 177 (1970). Moreover, to qualify for habeas corpus relief the jurisdictional
defect must be radical, rendering the conviction absolutely void. Id. at 670. "A radical defect in
jurisdiction contemplates . . . an act or omission by state authorities that clearly contravenes an
express legal requirement in existence at the time of the act or omission." Id. at 671.
Nevertheless, habeas relief may be denied in the exercise of a court's discretion where full relief
may be obtained in other more appropriate proceedings. See Phillips, supra at 566; see also
Jones, supra at 658 (order of mandamus, rather than writ of habeas corpus, was the proper
remedy for the DOC's failure to conduct a timely fact-finding hearing on parole violation
charges). Thus, while plaintiff may not use a habeas proceeding as a substitute for an appeal or
to review the merits of his criminal conviction, plaintiff may assert a radical defect in the
jurisdiction of the court in which his conviction was obtained. MCL 600.4310(3); Price, supra
at 669-670.
Here, habeas relief requiring the DOC to release plaintiff might be appropriate because
plaintiff raises a jurisdictional challenge to the authority of the state to prosecute him in any state
court. Plaintiff did not waive his right to raise a jurisdictional challenge to his conviction by his
no-contest plea in the Isabella Circuit Court because the claim implicates the very authority of
the state to bring him to trial. See People v New, 427 Mich 482, 491; 398 NW2d 358 (1986).
Further, this Court's granting the prosecutor's motion to join this case as a defendant has resolved
the DOC's concern that the Isabella County prosecutor is the proper party.
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Plaintiff argues that the swampland where the crime occurred is "Indian country," as
defined in 18 USC 1151. That statute defines "Indian country" in relevant part as "all land
within the limits of any Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and, including rights-of-way running
through the reservation." 18 USC 1151(a). Plaintiff relies on the phrase "notwithstanding the
issuance of any patent" to argue that any "swampland" patents of reservation land as established
by the treaties of 1855 and 1864 are irrelevant to the determination of "the limits" of the Isabella
Indian Reservation. Plaintiff further argues that excluding swampland from the reservation is
contrary to the canons of construing Indian treaties, would result in an unworkable jurisdictional
checkerboard, and is contrary to federal caselaw. We disagree.
Plaintiff relies on two treaties between the United States and the Chippewa Indians of
Saginaw, Swan Creek, and Black River (the Chippewa). The first treaty is dated August 2, 1855.
It provides in Article I:
The United States will withdraw from sale, for the benefit of said Indians,
as herein provided, all the unsold public lands within the State of Michigan
embraced in the following descriptions, to wit:—
First. Six adjoining townships of land in the county of Isabella, to be
selected by said Indians within three months from this date, and notice thereof
given to their agent.
Second. A tract of land in one body, equal in extent to two townships, on
the north side of Saginaw Bay, to be selected by them, and notice given as above
provided.
The United States will give to each of the said Indians, being the head of a
family, eighty acres of land; and to each single person over twenty-one years of
age, forty acres of land; and to each family of orphan children . . . eighty acres of
land; and to each single orphan child under twenty-one years of age, forty acres of
land; to be selected and located within the several tracts of land hereinbefore
described . . . .
The 1855 treaty was amended on April 15, 1856, to change the second description set
forth above. In a subsequent treaty, dated October 18, 1864 (and proclaimed on August 16,
1866), the Chippewa released their right to reserved land on the Saginaw Bay and also
relinquished to the United States all claims to any right to "locate lands in lieu of lands sold or
disposed of by the United States upon their reservation at Isabella, and also the right to purchase
the unselected lands in said reservation," as provided for in the 1855 treaty. Specifically, the
1864 treaty refers to the treaty of August 2, 1855, and provides in relevant part:
Article I. The said Chippewas of Saginaw, Swan Creek, and Black River,
for and in consideration of the conditions hereinafter specified, do hereby release
to the United States the several townships of land reserved to said tribe by said
treaty aforesaid, situate and being upon the Saginaw Bay, in said State.
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The said Indians also agree to relinquish to the United States all claim to
any right they may possess to locate lands in lieu of lands sold or disposed of by
the United States upon their reservation at Isabella, and also the right to purchase
the unselected lands in said reservation, as provided for in the first article of said
treaty.
Article II. In consideration of the foregoing relinquishments, the United
States hereby agree to set apart for the exclusive use, ownership, and occupancy
of the said [sic] of the said Chippewas of Saginaw, Swan Creek, and Black River,
all of the unsold lands within the six townships in Isabella County, reserved to
said Indians by the treaty of August 2d, 1855, aforesaid, and designated as
follows, viz:—
The north half of township fourteen, and townships fifteen and sixteen
north, of range three west; the north half of township fourteen and township
fifteen north, of range four west, and townships fourteen and fifteen north, of
range five west. [Emphasis in original.][3]
As already noted, plaintiff alleges that the offense occurred in township fifteen north, of
range five west (T15N, R5W), section seven of Nottawa Township, Isabella County. Plaintiff
concedes this property is part of the swampland that were patented to the state of Michigan
pursuant to an 1850 act of Congress that is commonly known as the Swamp Land Act. See
Sherman v The A P Cook Co Ltd, 98 Mich 61, 62-63; 57 NW 23 (1893), for a description of the
act. The act is codified at 43 USC 982, which provides:
To enable the several States (but not including the States of Kansas,
Nebraska, and Nevada) to construct the necessary levees and drains, to reclaim
the swamp and overflowed lands therein—the whole of the swamp and
overflowed lands, made unfit thereby for cultivation, and remaining unsold on or
after the 28th day of September, A. D. 1850, are granted and belong to the several
States respectively, in which said lands are situated: Provided, however, That said
grant of swamp and overflowed lands, as to the State [sic: States] of California,
Minnesota, and Oregon, is subject to the limitations, restrictions and conditions
hereinafter named and specified in this chapter, as applicable to said three lastnamed States respectively.
The Isabella County prosecutor has provided a copy of the original handwritten patent,
dated October 12, 1862, by which the United States conveyed "swamp lands," including land in
township fifteen north, range five west, to the state of Michigan. The patent recites that it was
issued pursuant to the authority of the act of Congress of September 28, 1850. Our Supreme
Court has recognized that the Swamp Land Act was a "grant in praesenti, and the surveying of
3
The townships referred to are the modern day townships of Wise, Nottawa, Isabella, Denver,
Deerfield, the north half of Union, and the north half of Chippewa in Isabella County.
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the land and the issuance of the patent conclusively fixed the character of the lands." Collins v
Gerhardt, 237 Mich 38, 64; 211 NW 115 (1926). In Crapo v Troy, 98 Mich 635, 638; 57 NW
806 (1894), the Court observed that the act of September 28, 1850, "amounted to a grant in
praesenti, and that, when a patent was subsequently issued by the Department of the Interior for
the lands listed, the act of the Department of the Interior, by relation, took effect as of the date of
the grant." In an earlier decision, Sherman, supra at 63-65, our Supreme Court apparently first
applied the doctrine that a swampland patent issued to the State related back to the date of the
act. The Court in both Crapo and Sherman relied on French v Fyan, 93 US 169; 23 L Ed 812
(1876), wherein the Supreme Court opined:
"This court has decided more than once that the swampland act was a
grant in praesenti, by which the title to those lands passed at once to the state in
which they lay. * * * * The patent, therefore, which is the evidence that the lands
contained in it had been identified as swamp lands under that act, relates back and
gives certainty to the title of the date of the grant." [Sherman, supra at 65,
quoting French v Fyan, supra at 170.]
Applying this principle to the facts of this case, title to the swampland at issue vested in
the state of Michigan before either the treaty of 1855 or the treaty of 1864. Nevertheless, the
issue remains whether the treaties of 1855 and 1864 conveyed reservation status, within the
meaning of "Indian country" and as defined in 18 USC 1151, on the swampland patented to the
state under the act of September 28, 1850.
This Court considered a similar question in Bennett, supra. Specifically, this Court
addressed the effect of 18 USC 1151 on the circuit court's jurisdiction regarding land patented to
non-Indians in July 1857 pursuant to cash purchases made in 1854. Bennett, supra at 456-458.
The defendant in Bennett, a member of the Saginaw Chippewa Indian Tribe, sought to quash, on
jurisdictional grounds, an information that charged him with operating under the influence of
intoxicating liquor, third offense; impaired driving, third offense; and driving with a suspended
license, second offense. Id. at 456. He successfully argued that the circuit court lacked subjectmatter jurisdiction because the road on which he was arrested "is a right-of-way running through
the Isabella Indian Reservation, and is therefore, by definition, 'Indian Country.'" Id. at 456
(quotation omitted). The prosecutor appealed the circuit court's order quashing the information
to this Court. Id. The sole issue on appeal was whether the defendant was in "Indian country,"
as defined in 18 USC 1151. The prosecutor argued that property within the townships described
in the treaty of 1864, which had been sold before the treaty's execution, never became part of the
Isabella reservation. Accordingly, the prosecutor argued that it could not be considered "Indian
country." Bennett, supra at 457.
This Court, looking to the terms of the 1864 treaty, held:
Indian treaties must be construed "so far as possible, in the sense in which
the Indians understood them, and in a spirit which generously recognizes the full
obligation of this nation to protect the interests of a dependent people." Choctaw
Nation of Indians v United States, 318 US 423, 432; 63 S Ct 672; 87 L Ed 877
(1943). "The language used in treaties with the Indians should never be construed
to their prejudice. If words be made use of which are susceptible of a more
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extended meaning than their plain import, as connected with the tenor of the
treaty, they should be considered as used only in the latter sense." Worcester v
Georgia, 31 US (6 Pet) 515, 582; 8 L Ed 483 (1832). Ambiguities are to be
construed in favor of the Indians. Oneida Co v Oneida Indian Nation, 470 US
226, 247; 105 S Ct 1245; 84 L Ed 2d 169 (1985). Courts may not, however,
"ignore plain language that, viewed in historical context and given a 'fair
appraisal,' . . . clearly runs counter to a tribe's later claims." Oregon Dep't of Fish
& Wildlife v Klamath Indian Tribe, 473 US 753, 774; 105 S Ct 3420; 87 L Ed 2d
542 (1985).
In this case, the parties have not presented evidence of the negotiations
surrounding the formation of the Treaty of October 18, 1864. However,
examining the treaty itself, it appears that the parties intended for the previously
sold lands to be excluded from the reservation, because the Chippewas were
granted all the "unsold" lands within the six townships. Given the plain language
of the treaty, and the lack of evidence to the contrary, we believe the Chippewas
would have understood at the time of treaty formation that they were not
permitted to settle on or own any lands previously patented to individuals.
Choctaw Nation of Indians v United States, supra.
Therefore, defendant was not on a right of way passing through Indian
country when he was arrested, and he was subject to criminal prosecution in state
court. [Bennett, supra at 458-459.]
Although the instant case contains some factual similarities to Bennett, the grant of land
to the state pursuant to the Swamp Land Act cannot be characterized as previously sold land.
But according to the second paragraph of Article I of the treaty of 1864, the Chippewa "agree[d]
to relinquish to the United States all claim to any right . . . to locate lands in lieu of lands sold or
disposed of by the United States upon their reservation at Isabella . . . ." (Emphasis added.)
Because land grants to states pursuant to the Swamp Land Act of 1850 could be encompassed
within the term, "lands . . . disposed of by the United States," we conclude that the rationale of
Bennett could be extended to the swampland grants. This is because patents to the state of
Michigan for swampland relate back to the date of September 28, 1850, preceding both the treaty
of 1855 and, more importantly, the treaty of 1864.
The Isabella County prosecutor has offered factual support for this interpretation of the
treaty of 1864 through the decisions of the Indian Claims Commission. Congress enacted the
Indian Claims Commission Act, 25 USC 70 et seq., in 1946 to establish a tribunal to decide
Indian tribes' claims against the United States. Arizona v California, 530 US 392, 402; 120 S Ct
2304; 147 L Ed 2d 374 (2000). The Indian Claims Commission created under the act ceased
operations in 1978. Arizona, supra at 403 n 1. While in operation, the commission had
exclusive jurisdiction to resolve Indian claims solely by the payment of compensation. It also
had jurisdiction to consider claims alleging that treaties were vitiated by fraud, duress, or
unconscionable considerations. Id.; but see 28 USC 1505 ("The United States Court of Federal
Claims shall have jurisdiction of any claim against the United States accruing after August 13,
1946, in favor of any tribe . . . . "). The Indian Claims Commission Act had two purposes. One
purpose "was to transfer from Congress to the Indian Claims Commission the responsibility for
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determining the merits of native American claims." United States v Dann, 470 US 39, 45; 105 S
Ct 1058; 84 L Ed 2d 28 (1985). But "[t]he 'chief purpose of the [Act was] to dispose of the
Indian claims problem with finality.'" Id. (citation omitted). Although subject to review by the
Court of Claims, Arizona, supra at 403 n 1, the commission's reports containing its
determinations had the same effect as a final judgment of the Court of Claims when filed with
Congress. Dann, supra at 45.
The Isabella County prosecutor relies on 1953 and 1954 Indian Claims Commission
decisions in Saginaw Chippewa Indian Tribe v United States, Docket No. 13-H, that apparently
were not appealed to the Court of Claims. In its 1953 findings of fact, 2 Ind Cl Comm 380, 386
(1953), the commission found no evidence that the swampland granted to the state under the
Swamp Land Act was made available for the selection of tribal members under the 1864 treaty.
It found that
the United States granted to the State of Michigan swamp lands within that State,
and pursuant to that Act, the State of Michigan, acting through its proper
authorities, selected 14,601.41 acres of swamp land within the Isabella
Reservation, and 14,829.41 acres of such lands within the Saginaw Reservation.
All of such selections were made prior to the treaty of August 2, 1855, and
approved by proper authorities of the United States, although patents for all of
such selections were not delivered to the State of Michigan until after August 2,
1855. That by the "so-called" Swamp Land Act of 1850 and the action of the
State authorities pursuant thereto, all of the swamp land selected in the two
reservations passed to the State of Michigan. Furthermore, none of the lands so
selected were wrongfully classified as such.
That by reason of said Act of 1850 and the selections made thereunder, the
rights thereto for selection or entry did not pass to the Saginaw or its members
under the provision of the treaty of August 2, 1855, and such lands were not
included in the category of "unsold public lands" within the areas of either the
Isabella or Saginaw reservations referred to in Article 1 of the treaty of 1855. [Id.
at 388-389.]
In its 1953 opinion, the commission specifically addressed the Saginaw Chippewa Tribe's
claim that although the swamplands passed to the state as of September 28, 1850, swamplands
within the townships described in the treaty of 1855 nevertheless must be included within the
category of "unsold public lands." Saginaw Chippewa Indian Tribe v United States, 2 Ind Cl
Comm 390, 401. The commission opined:
The undisputed evidence . . . shows the Indians were well aware of the
fact that swamp lands did not pass to the Indians under the 1855 treaty, and at no
time claimed they did until the present claim was filed. . . . [D]ocuments plainly
indicate that [the Indians] recognized the fact that the swamp lands were not
intended to be available for Indian use under the treaty.
Furthermore, the evidence offered of the surrounding circumstances which
brought about the treaty of 1855 plainly shows that the parties to that treaty
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understood that in using the phrase "unsold public lands" within the area of the
Isabella and Saginaw Reservations that it did not include the swamp lands
previously selected therein, in fact, the request for additional lands in the Saginaw
Bay area was based upon the understanding of all parties to the 1855 treaty that
the Indians were not to receive the swamp lands. [Id. at 401-402.]
These findings, if accepted, support the Isabella County prosecutor's claim that the
swampland was not intended to be part of the Isabella reservation because it was owned by the
state of Michigan before any treaty between the United States and the Chippewa of Saginaw,
Swan Creek, and Black River.
Plaintiff, on the other hand, argues that Bennett was wrongly decided. In particular,
plaintiff asserts that the Bennett decision contravened settled principles of interpreting Indian
treaties, and that it is contrary to several federal decisions rejecting the "checkerboard"
jurisdiction the Isabella County prosecutor espouses, which Bennett adopted. Plaintiff contends
that "Indian country," with respect to the Isabella reservation, is established by the exterior
boundaries of the townships reserved to the Chippewa in the 1864 treaty, i.e., "all land within the
limits of any Indian reservation . . . notwithstanding the issuance of any patent," 18 USC 1151,
or land grant authorized by the Swamp Land Act of 1850. To complete his jurisdictional
argument, plaintiff asserts that because he is an enrolled member of the Saginaw Chippewa
Indian Tribe and the offense occurred in "Indian country," jurisdiction to try the offense is
exclusively federal or tribal.
Accepting that plaintiff is an "Indian," if the offense did occur in "Indian country," there
is merit to plaintiff 's jurisdictional claim. Plaintiff relies on both 18 USC 1152 and 1153. The
former statute, 18 USC 1152, has been referred to as the General Crimes Act or the Indian
Country Crimes Act, while the latter statute, 18 USC 1153, is known as the Indian Major Crimes
Act or the Major Crimes Act. See United States v Peltier, 344 F Supp 2d 539, 543-544 (ED
Mich, 2004); United States v Male Juvenile, 280 F3d 1008, 1012 (CA 9, 2002).
The General Crimes Act, 18 USC 1152, provides:
Except as otherwise expressly provided by law, the general laws of the
United States as to the punishment of offenses committed in any place within the
sole and exclusive jurisdiction of the United States, except the District of
Columbia, shall extend to the Indian country.
This section shall not extend to offenses committed by one Indian against
the person or property of another Indian, nor to any Indian committing any
offense in the Indian country who has been punished by the local law of the tribe,
or to any case where, by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian tribes respectively.
The Major Crimes Act, 18 USC 1153, provides in relevant part:
(a) Any Indian who commits against the person or property of another
Indian or other person any of the following offenses, namely, . . . a felony under
chapter 109A, . . . within the Indian country, shall be subject to the same law and
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penalties as all other persons committing any of the above offenses, within the
exclusive jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this section that is not
defined and punished by Federal law in force within the exclusive jurisdiction of
the United States shall be defined and punished in accordance with the laws of the
State in which such offense was committed as are in force at the time of such
offense.
Chapter 109A (sexual abuse), 18 USC 2241 et seq., provides in part:
Whoever, in the special maritime and territorial jurisdiction of the United
States . . . knowingly causes another person to engage in a sexual act—
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any person will
be subjected to death, serious bodily injury, or kidnaping;
or attempts to do so, shall be fined under this title, imprisoned for any term of
years or life, or both. [18 USC 2241(a).]
The Supreme Court discussed the interplay between 18 USC 1152 and 1153 in Negonsott
v Samuels, 507 US 99; 113 S Ct 1119; 122 L Ed 2d 457 (1993). After finding criminal
jurisdiction over offenses committed in "Indian country" to be a complex patchwork of federal,
state, and tribal law, the Court indicated that federal jurisdiction over offenses covered by the
Indian Major Crimes Act is "exclusive" of state jurisdiction. Negonsott, supra at 102-103.
Because the CSC offense underlying defendant's conviction involved force or coercion, MCL
750.520d(1)(b), it would be "a felony under Chapter 109A." 18 USC 1153. Thus, assuming that
plaintiff is an "Indian" and the offense occurred in "Indian country," plaintiff 's jurisdictional
argument has merit. See, e.g., United States v Jones, 440 F3d 927, 929 (CA 8, 2006) (the United
States has exclusive jurisdiction where an Indian committed the enumerated felony of aggravated
sexual abuse against another Indian or person in Indian country); United States v Johnson, 637
F2d 1224, 1231 n 11 (CA 9, 1980) (Indian-against-Indian crimes and Indian-against-non-Indian
crimes enumerated in 18 USC 1153 are subject to federal jurisdiction).
We note that the issue plaintiff raises involves the interpretation of federal law. Michigan
courts are permitted to construe federal law, subject to the rule that state courts are bound by
decisions of the United States Supreme Court that pertain. See Abela v Gen Motors Corp, 469
Mich 603, 606; 677 NW2d 325 (2004). As further explained in Cowles v Bank West, 476 Mich
1, 33-34; 719 NW2d 94 (2006), when adopting the rationale of and quoting Cowles v Bank West,
263 Mich App 213, 233; 687 NW2d 603 (2004), with respect to a matter of federal law:
"When construing federal statutes and regulations, we are governed by
authoritative decisions of the federal courts. Bement v Grand Rapids & I R Co,
194 Mich 64, 65-66; 160 NW 424 (1916). Where no decision on a particular
issue has been rendered by the United States Supreme Court, we are free to adopt
decisions of the lower federal courts if we find their analysis and conclusions
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persuasive and appropriate for our jurisprudence. Abela v Gen Motors Corp, 469
Mich 603, 606-607; 677 NW2d 325 (2004)."
Plaintiff primarily relies on four federal decisions to support his argument that Bennett
was wrongly decided. We first address Seymour v Superintendent of Washington State
Penitentiary, 368 US 351; 82 S Ct 424; 7 L Ed 2d 346 (1962), which, if applicable, would be
binding on this Court regarding matters of federal law. Indeed, plaintiff argues that Seymour
compels the conclusion that only the exterior boundaries of an Indian reservation are material to
the determination of what land comprises "Indian country" under 18 USC 1151. In Seymour,
however, the reservation in question was created in 1872, by executive order of President Grant,
and diminished in 1892 by an act of Congress. Seymour, supra at 354. One of the questions
before the Supreme Court was whether a parcel in the remaining portion of the reservation was
no longer "Indian country" because a non-Indian held a patent in fee. Relying on the language in
18 USC 1151, "notwithstanding the issuance of any patent," the Supreme Court rejected this
argument. Id. at 357-358. The Supreme Court held that the ownership of the particular parcel
was immaterial to whether the land was part of the reservation, absent congressional action to
remove it from the previously created reservation. Id. at 358-359. Because the instant case
involves whether swampland patented to the state was ever part of the reservation, not whether
the swampland was removed from the reservation after the creation of the reservation, Seymour
does not apply.
The other three cases on which plaintiff relies also provide no persuasive basis for
disagreeing with Bennett. Plaintiff 's reliance on Peltier, supra, is misplaced because it was
undisputed in that case that the defendant's arrest and warrant occurred in "Indian country" as
defined in 18 USC 1151. Peltier, supra at 543. The court held that although the offenses with
which the defendant was charged were not listed offenses under the Major Crimes Act, 18 USC
1153, the federal court had jurisdiction under the General Crimes Act, 18 USC 1152. Peltier,
supra at 543-544. The other two cases, Cardinal v United States, 954 F2d 359 (CA 6, 1992),
and Keweenaw Bay Indian Community v Michigan, 784 F Supp 418 (WD Mich, 1991), both
involve the Keweenaw Bay Indian Reservation in Michigan.
First, in Keweenaw Bay Indian Community, supra, the United States District Court for the
Western District of Michigan, following a bench trial, made findings of fact with respect to an
action for declaratory relief regarding the boundary of the Keweenaw Bay Indian Reservation in
Michigan under the terms of an 1854 treaty. As in the 1855 treaty in this case, the United States
agreed to set apart and withhold from sale, for the use of certain bands of Chippewa Indians, all
"unsold lands" in specified Michigan townships or fractions of townships. Keweenaw Bay
Indian Community, supra at 419. Unlike the instant case, however, there was no amendment to
the treaty or earlier findings by the Indian Claims Commission. Using the trial evidence before
it, the district court construed what it perceived to be ambiguity in the "unsold lands" language in
the 1854 treaty by holding that title to the property within the specified townships or fractions of
townships was immaterial. Viewed from the Indians' perspective, the district court found it clear
that the Indians understood that their reservation was intended to follow the exterior lines of the
townships and fractional lines of the townships described therein, irrespective of the land title in
that area. Id. at 425. Rather, it was determined that "[t]he significance of this language, as it was
understood by the Indians, was merely that some parcels within the reservation had already been
disposed of by the United States and would, therefore, not be available for allotment to the
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Indians." Id. at 426. The court further held that a contrary construction of the treaty would result
in a "checkerboard" reservation, "a result clearly not intended by anyone signing the treaty." Id.
Significantly, the district court found evidence that the Indians were on notice of only
"one unaffiliated white landholder within the townships which formed their reservation." Id. at
425. Further, the district court found that the record was "devoid of any evidence demonstrating
that, at the time of the treaty, either the Indians or the treaty commissioners had any knowledge
whatsoever of canal, school and swamplands." Id. at 426. This differs from the instant case in
which the Indian Claims Commission found that the parties understood that swampland was not
intended to be available to the Indians under the treaty. Saginaw Chippewa Indian Tribe, 2 Ind
Cl Comm at 402. It also differs from the circumstances in Bennett, supra at 458, in which this
Court was asked to construe the 1864 treaty without any evidence of the negotiations
surrounding the formation of the treaty.
Because the facts regarding the treaty at issue in this case, as determined by the Indian
Claims Commission, are distinct from Keweenaw Bay Indian Community, we conclude that that
case does not provide a persuasive reason to reject the rule of law established in Bennett.
Although following Bennett might cause the "checkerboard" of jurisdiction disapproved of in
Keweenaw Bay Indian Community and Seymour, we find it unreasonable to treat land that was
never intended to be part of the Isabella Indian Reservation as reservation land solely to achieve
a well-defined boundary. Although the issuance of a patent is not material under 18 USC 1151,
the statute clearly requires that the land be within the limits of an Indian reservation to come
within the jurisdiction of the United States.
In Cardinal, supra, the Sixth Circuit Court of Appeals considered the 1854 treaty for the
Keweenaw Bay Indian Reservation without mentioning the district court's decision in Keweenaw
Bay Indian Community. The question before the Sixth Circuit was whether a parcel of property
within the specified area was "unsold land" at the time of the 1854 treaty and, thereby, was
actually set aside as reservation land for the Indian tribe or was sold as canal land before the
effective date of the treaty. Cardinal, supra at 361. The Sixth Circuit held that the property
constituted "unsold land" at the relevant time. Id. at 363-364. In the absence of proof that the
Indians surrendered their right of occupancy or Congress expressly extinguished that right, the
Sixth Circuit concluded that the parcel was within the property set aside for the reservation. Id.
at 365. This differs from the instant case, which involves no land that can be characterized as
"unsold land." The findings of the Indian Claims Commission determined its character.
The Isabella County prosecutor argues that this Court should be bound by the
commission's decision on the basis of two underlying legal principles. First, the prosecutor
points out that the Ninth Circuit Court of Appeals has held that final decisions of the commission
are binding on the United States and tribes in later lawsuits against state and local governments.
The essence of the Ninth Circuit decision is that title rights may not be relitigated if a monetary
award by the commission in favor of the Indian tribe operates to extinguish title. See Western
Shoshone Nat'l Council v Molini, 951 F2d 200, 202-203 (CA 9, 2000) (commission's award of
$26 million to Indian tribe for the extinguishment of title constituted a general determination of
title and barred the Indian tribe from asserting title against the state of Nevada). Because the
present case does not involve a monetary award for title, we find that the prosecutor's reliance on
this Ninth Circuit precedent is misplaced.
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Second, the prosecutor correctly points out that in Oglala Sioux Tribe v Homestake
Mining Co, 722 F2d 1407, 1413-1414 (CA 8, 1983), the Eighth Circuit Court of Appeals found
that a commission decision, under the doctrine of collateral estoppel, precluded a tribe from
litigating title in an action against a private party. Notwithstanding the prosecutor's cursory
treatment of this issue, we conclude that there is merit in the prosecutor's position that the
doctrine of collateral estoppel applies. Collateral estoppel is a rule of issue preclusion. It bars
the "relitigation of an issue in a new action arising between the same parties or their privies when
the earlier proceeding resulted in a valid final judgment and the issue in question was actually
and necessarily determined in that prior proceeding." Leahy v Orion Twp, 269 Mich App 527,
530; 711 NW2d 438 (2006). But the absence of mutuality does not always preclude application
of collateral estoppel. Monat v State Farm Ins Co, 469 Mich 679, 688; 677 NW2d 843 (2004).
In Monat, supra at 695, our Supreme Court held that, where collateral estoppel is asserted
against a party who already had a full and fair opportunity to litigate the issue, mutuality is not
required. Although plaintiff was not a party to the matter before the Indian Claims Commission,
he claims rights as a member of the Indian tribe that was a party. "To be in privity is to be so
identified in interest with another party that the first litigant represents the same legal right that
the later litigant is trying to assert." Adair v Michigan, 470 Mich 105, 122; 680 NW2d 386
(2004). Because plaintiff is claiming rights as a member of the Saginaw Chippewa Indian Tribe,
we find that the requisite privity exists to apply the doctrine of collateral estoppel in this case.
The fact that the instant case is a criminal case should not preclude application of the
doctrine. Collateral estoppel cannot be invoked to preclude a defendant from contesting an
essential element of a criminal charge. People v Goss (After Remand), 446 Mich 587, 600
(Levin, J.), 610-611 (Brickley, J.); 521 NW2d 312 (1994). But because the instant issue involves
only a jurisdictional challenge to the Isabella County prosecutor's authority to prosecute plaintiff
in the criminal case, we conclude that it is permissible under Monat, supra at 695, for the
prosecutor to make defensive use of collateral estoppel to preclude relitigation of an issue
previously litigated by plaintiff 's Indian tribe regarding whether the swampland was part of the
reservation. The doctrine, as applied, promotes the efficient administration of justice and ensures
more consistent judicial decisions. Id. It also furthers the purpose of the Indian Claims
Commission Act by according finality to the Indian Claims Commission's determinations
regarding Indian claims. Dann, supra at 45. Applying the rule of law established in Bennett to
the commission's finding, it follows that the swampland granted to the state of Michigan is not
"Indian country" as a matter of law because it is not "within the limits of any Indian reservation
under the jurisdiction of the United States Government," as required by 18 USC 1151.
We find the foregoing determination to be dispositive of the remainder of plaintiff 's
claims. Specifically, because the offense did not occur in "Indian country," plaintiff 's claims
regarding the Indian Commerce Clause, US Const, art I, § 8, cl 3; the Treaty Clause, US Const,
art II, § 2, cl 2; and the Supremacy Clause, US Const, art VI, cl 2, are without merit. The only
issue material to this state habeas proceeding is whether the state, acting through the Isabella
County prosecutor, had jurisdiction to prosecute plaintiff for the CSC offense. Plaintiff has
failed to establish a jurisdictional defect necessary for habeas relief.
Plaintiff also requests that this Court consider various constitutional claims within the
framework of 42 USC 1983, but he has failed to brief the relevancy of 42 USC 1983 to this state
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habeas corpus proceeding. "A party may not merely state a position and then leave it to this
Court to discover and rationalize the basis for the claim." Mackle, supra at 604 n 4.
In any event, a complaint under 42 USC 1983 is a separate avenue for relief from a
complaint for habeas corpus. See Hill v McDonough, ___ US ___ ; 126 S Ct 2096, 2101; 165 L
Ed 2d 44 (2006) (distinguishing actions under 42 USC 1983 to challenge the circumstances of
confinement and federal habeas corpus proceedings to challenge the lawfulness or duration of
confinement). Under 42 USC 1983, civil remedies may be granted for a violation of
constitutional rights. See People v Stevens (After Remand), 460 Mich 626, 641; 597 NW2d 53
(1999). "The statute creates no substantive rights, but instead merely supplies a remedy for
deprivation of rights created by other laws." Davis v Wayne Co Sheriff, 201 Mich App 572, 576;
507 NW2d 751 (1993). Because the present case does not involve a complaint for civil remedies
under 42 USC 1983, plaintiff 's claims under 42 USC 1983 are without merit.
For all of the foregoing reasons, plaintiff has not established a defect in the jurisdiction of
the Isabella Circuit Court, and we dismiss his complaint for habeas corpus.
/s/ Jane E. Markey
/s/ Henry William Saad
/s/ Kurtis T. Wilder
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