Norbert Kelsey v. Melissa Pope

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0001p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

NORBERT J. KELSEY, ┐
Petitioner-Appellee, │
│
│ No. 14-1537
v. │
>
│
MELISSA LOPEZ POPE, et al., │
Respondents, │
│
│
DANIEL T. BAILEY, Chief Judge of the Little River │
Band of Ottawa Indians Tribal Court, │
Respondent-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:09-cv-01015—Gordon J. Quist, District Judge.
Argued: October 8, 2015
Decided and Filed: January 5, 2016

Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge.*

_________________

COUNSEL

ARGUED: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellant.
Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville,
Tennessee, for Appellee. ON BRIEF: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor,
Michigan, Dan Himmelfarb, MAYER BROWN LLP, Washington, D.C., for Appellant. Alistair
E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for
Appellee. Eugene R. Fidell, New Haven, Connecticut, John L. Smeltzer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Ruthanne M. Deutsch, GEORGETOWN

*
The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of
Ohio, sitting by designation.

1
No. 14-1537 Kelsey v. Pope, et al. Page 2

UNIVERSITY LAW CENTER APPELLATE LITIGATION PROGRAM, Washington, D.C.,
for Amici Curiae.

_________________

OPINION
_________________

McKEAGUE, Circuit Judge. Norbert Kelsey, a member of the Little River Band of
Ottawa Indians (the “Band”), was convicted in tribal court of misdemeanor sexual assault for
inappropriately touching a tribal employee at the Band’s Community Center. The Community
Center is located on land owned by the Band but is not located within tribal reservation
boundaries. Kelsey appealed his sentence in tribal court, arguing that the Band lacked criminal
jurisdiction over his off-reservation conduct. After his sentence was affirmed, he filed a petition
for habeas relief in United States District Court, arguing that the Band lacked jurisdiction over
his off-reservation conduct and that his appeal in tribal court violated due process protections
afforded by the Indian Civil Rights Act. See 25 U.S.C. § 1302(a)(8).

The district court granted habeas relief, holding that the Band lacked criminal jurisdiction
to try and punish Kelsey’s off-reservation conduct but declined to rule on Kelsey’s due process
challenge. We reverse and hold that the Band has jurisdiction because it has not been expressly
or implicitly divested of its inherent sovereign authority to prosecute members when necessary to
protect tribal self-government or control internal relations. We also hold that Kelsey’s due
process challenge under the Indian Civil Rights Act fails. Accordingly, we vacate the district
court’s decision to grant habeas relief.

I

The Band’s Governmental Structure. The Band is a federally recognized Indian tribe,
25 U.S.C. § 1300k-2(a), located in northwest Michigan’s Manistee and Mason Counties. Id. at
§ 1300k-4(b); see also Grand Traverse Band of Ottawa and Chippewa Indians v. Office of U.S.
Att’y for the W. Dist. of Mich., 369 F.3d 960, 961–62 (6th Cir. 2004) (providing an extensive
historical discussion of the relationship between the federal government and the Band dating
back to the Treaty of Greenville in 1795). Pursuant to federal recognition, “all laws and
No. 14-1537 Kelsey v. Pope, et al. Page 3

regulations of the United States of general application to Indians or nations, tribes, or bands of
Indians, including the . . . ‘Indian Reorganization Act’” are applicable to the Band. 25 U.S.C
§ 1300k-2(a). Under federal law, Indian tribes “shall retain inherent sovereign power,”
25 U.S.C. § 476(h)(1), with “the inherent authority to establish their own form of government,
including tribal justice systems.” 25 U.S.C. § 3601(4). Section 1300k-6 governs the
establishment of the Band’s constitution, which includes the creation of its tribal justice system.
Id.

The Band has adopted a strict separation-of-powers Constitution, including an
independent Tribal Judiciary. R. 1-6, Tribal Constitution, art. VI, § 9, PID 57. Article VI,
Section 8 of the Tribal Constitution enumerates the judicial power of the Tribal Court, vesting
the Tribal Court with the authority “[t]o adjudicate all civil and criminal matters arising within
the jurisdiction of the Tribe or to which the Tribe or an enrolled member of the Tribe is a party.”
Id. Additionally, the Band’s Constitution extends the power of judicial review to the Tribal
Court “[t]o review ordinances and resolutions of the Tribal Council . . . and rule void those
ordinances and resolutions deemed inconsistent” with the Band’s Constitution. Id.

On July 5, 2005, Heidi Foster, an employee of the Band’s medical clinic and member of a
neighboring tribe, attended a meeting of tribal elders at the Band’s Community Center.
The Community Center, located just across the street from the reservation, is constructed on
land purchased by the Band in fee simple in 1997 but is not within “Indian country” as defined
by 18 U.S.C. § 1151. At this meeting, Kelsey, then an elected member of the Band’s nine-
person Tribal Council, made inappropriate physical contact of a sexual nature with Foster.

In June 2007, the Band charged Kelsey with misdemeanor sexual assault and harassment
under its internal criminal laws. On January 21, 2008, the Tribal Court convicted Kelsey of
sexual assault and subsequently sentenced him to six months in jail. The Tribal Court held his
sentence in abeyance while Kelsey complied with the court-imposed probation requirements,
including a $5,000 fine, community service, and a prohibition from speaking to female
employees of the tribe. Less than two weeks after Kelsey’s sentence, the Tribal Court entered a
partial stay of the judgment pending appeal to the Tribal Court of Appeals.
No. 14-1537 Kelsey v. Pope, et al. Page 4

On appeal, Kelsey challenged the Tribal Court’s jurisdiction, arguing that the Band
lacked authority to exercise criminal jurisdiction over his specific conduct because it occurred
outside of the Band’s Indian country. The Tribal Court of Appeals affirmed tribal criminal
jurisdiction over Kelsey’s offense based on the Band’s inherent sovereign authority to prosecute
its members. It also found that a jurisdictional mandate in the Tribal Constitution required
extending jurisdiction to Kelsey’s off-reservation conduct. In its order, the Tribal Court of
Appeals noted the significant impact this case had on the Band’s internal affairs and self-
governance.1

The Tribal Court of Appeals also considered Kelsey’s argument that the Band’s own
internal laws precluded jurisdiction, specifically a territorial limitation in Section 4.03 of the
Band’s Criminal Offenses Ordinance. The Court of Appeals reviewed that ordinance, found it
inconsistent with jurisdiction in other internal ordinances and the Tribal Constitution, and
removed Section 4.03’s territorial limitation for being “unconstitutionally narrow.” The Tribal
Court of Appeals then rejected Kelsey’s jurisdictional defense based on Section 4.03 and
affirmed the Tribal Court’s exercise of jurisdiction.

In November 2009, Kelsey filed a petition for a writ of habeas corpus in the Western
District of Michigan, making two principal arguments: (1) the Band lacked inherent sovereign
authority to assert criminal jurisdiction over his conduct because it occurred outside of the
Band’s Indian country, and (2) the Tribal Court of Appeals’ decision to “change the Band’s
criminal laws and apply those laws retroactively” was unexpected and indefensible in violation
of the due process protections under the Indian Civil Rights Act.

The petition was first considered by a magistrate judge, who concluded that the Band had
been implicitly divested of any inherent authority to assert criminal jurisdiction over members
for off-reservation conduct. Additionally, the magistrate judge determined that the Tribal Court
of Appeals’ decision to remove the territorial limiting provision in the Criminal Offenses

1
“The interests of the Tribe are very strong here. This case involves a tribal member in an elected position
acting as an agent of the Tribe at a Tribal activity who committed a crime against a Tribal employee in a public
setting openly visible to other employees and Tribal members who were present. It also involves a Tribal Court
finding that Defendant exercised political influence affecting the victim and the Tribe’s welfare.” R.9, Tribal Court
App’x at 11–14, PID 1537–40. The Tribal Court of Appeals also referred to the “tribal nature of all the activities
that have occurred at the Community center” due to its status as a “community gathering point.” Id. at 1539.
No. 14-1537 Kelsey v. Pope, et al. Page 5

Ordinance violated Kelsey’s due process rights because it “retroactively” expanded tribal
criminal jurisdiction over Kelsey’s offense.

The district court adopted the magistrate judge’s report and recommendation in part,
holding that Indian tribes were implicitly divested of criminal jurisdiction over off-reservation
member conduct, finding that issue dispositive, and declining to address Kelsey’s due process
claim. R. 41, Opinion at 5–6, Page ID 584–85. Accordingly, the district court granted habeas
relief for lack of tribal jurisdiction. Id. Because Kelsey’s probationary period is suspended
pending resolution of this action, and because he is prevented from traveling outside of Michigan
without Tribal Court permission at this time, he is in custody for purposes of this habeas action.
McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir. 1989).

II

The question of “whether a tribal court has exceeded the lawful limits of its jurisdiction”
is one arising under federal law. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845, 853 (1985); see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987)
(holding that a tribal court’s determination of its jurisdiction may be challenged in district court).
Because of this federal law analogue, habeas claims brought under the Indian Civil Rights Act,
25 U.S.C. § 1303, are most similar to habeas actions arising under 28 U.S.C. § 2241. Poodry v.
Tonawanda Band of Seneca Indians, 85 F.3d 874, 890–91 (2nd Cir. 1996). We review a district
court’s grant of habeas relief under § 2241 de novo. Rice v. White, 660 F.3d 242, 249 (6th Cir.
2011).

III

Governing Framework. We must assess whether the Band properly asserted extra-
territorial criminal jurisdiction over Kelsey. The Band has stipulated for the purposes of this
action that the Community Center where Kelsey’s conduct took place was not within the
boundaries of “Indian country.”2 18 U.S.C. § 1151 (2012) (defining “Indian country”).

2
Were that the case, the question of tribal jurisdiction would be a less complicated one of territorial
jurisdiction. Instead, Kelsey’s conduct occurred on land held in fee simple outside the boundaries of Indian country
(referred to throughout as “the reservation or reservation boundaries”). The jurisdictional question is thus one of
extra-territorial application of criminal jurisdiction.
No. 14-1537 Kelsey v. Pope, et al. Page 6

Both parties (and the supporting amici) accept the baseline proposition that, as dependent
sovereigns, Indian tribes exercise inherent sovereign authority and retain “those aspects of
inherent sovereignty not expressly limited by Congress or treaty or implicitly divested by virtue
of their domestic dependent status.” Kelsey Br. at 30 (citing United States v. Wheeler, 435 U.S.
313, 326 (1978)); United States v. Doherty, 126 F.3d 769, 778 (6th Cir. 1997) (abrogated on
other grounds by Texas v. Cobb, 532 U.S. 162 (2001)); see also Band Br. at 19–20; Band Reply
Br. at 3, Government Amicus Br. at 8. We therefore assess the question of extra-territorial
criminal jurisdiction by breaking this governing framework into three separate inquiries: (1) do
Indian tribes have inherent sovereign authority to exercise extra-territorial criminal jurisdiction?
(2) If so, has that authority been expressly limited by Congress or treaty? And (3) if not, have the
tribes been implicitly divested of that authority by virtue of their domestic dependent status?

A

The inherent sovereignty of Indian tribes “preexisted the founding; it is neither derived
from nor protected by the Constitution.” Nat’l Labor Relations Bd. v. Little River Band of
Ottawa Indians Tribal Gov’t, 788 F.3d 537, 544 (6th Cir. 2015) (citing Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 168 (1982) (Stevens, J., dissenting)) (internal quotation marks
omitted). Indian tribes, however, no longer possess “the full attributes of sovereignty.” United
States v. Kagama, 118 U.S. 375, 380 (1886). While still exercising elements of “inherent
sovereign authority,” Michigan v. Bay Mills Indian Community., 134 S. Ct. 2024, 2030 (2014),
the tribes’ “incorporation within the territory of the United States, and their acceptance of its
protection, necessarily divested them of some aspects of the sovereignty which they had
previously exercised.” Wheeler, 435 U.S. at 323. Because of this dependent relationship with
the United States, Congress wields power “consistently described as plenary and exclusive to
legislate [with] respect to Indian tribes.” Bay Mills, 134 S. Ct. at 2030. However, “unless and
until Congress acts, the tribes retain their historic sovereign authority.” Id. Before we look to
whether Congress has expressly limited the tribes’ criminal jurisdiction over their members, or
whether such authority has been implicitly divested by the tribes’ dependent status, we must first
consider whether trying and punishing members for off-reservation conduct is an inherent aspect
of tribal sovereignty.
No. 14-1537 Kelsey v. Pope, et al. Page 7

i

Competing Theories of Tribal Criminal Jurisdiction. The sovereign authority of a tribe to
punish its own members is “a power that this Court has called inherent.” United States v. Lara,
541 U.S. 193, 204 (2004) (citing Wheeler, 435 U.S. at 322–23) (internal quotation marks
omitted). See also Little River Band, 788 F.3d 537, 544 (6th Cir. 2015) (“Indian tribes retain
broad residual powers of intramural affairs: they may . . . punish tribal offenders.”). The
question pertinent to Kelsey’s case, however, is whether this inherent authority to prosecute
members extends beyond reservation boundaries. The parties advance two competing theories as
to how tribal criminal jurisdiction operates. To the Band, the tribes have “inherent authority to
prosecute tribal members for offenses substantially affecting [tribal] self-governance interests,”
even when such offenses take place outside of Indian country. Band Br. at 3, 41–42. Kelsey
rejects this membership-based jurisdiction, arguing that sovereign authority (and thus criminal
jurisdiction) is defined by the twin factors of tribal membership and territory—when either factor
is absent, the tribe’s inherent authority, in this case criminal jurisdiction, is greatly diminished or
altogether absent. Though our governing precedent has not specifically addressed this question,
the Band’s theory of membership-based jurisdiction is more persuasive.

In this relatively sparse area of law, the Band cobbles together support for membership-
based jurisdiction from a variety of legal and historical sources. The two most helpful cases in
establishing membership as the driving force behind criminal jurisdiction are Wheeler, 435 U.S.
313 (1978), and Duro v. Reina, 495 U.S. 676 (1990). Wheeler and Duro are grounded in tribal
prosecutions for on-reservation conduct, but nonetheless recognize that tribes possess “attributes
of sovereignty over both their members and their territory.” See Wheeler, 435 U.S. at 323
(emphasis added). In discussing the historical context of tribal prosecutions, Wheeler explains
that “before the coming of the Europeans, the tribes were self-governing sovereign political
communities. Like all sovereign bodies, they then had the inherent power to prescribe laws for
their members and to punish infractions of those laws.” Id. The Band points to the logical
conclusion that Indian tribes certainly enjoyed this inherent power beyond “reservation
boundaries,” which, as a general concept, did not exist prior to European settlement. While
Wheeler provides a legal basis for the uncontroversial belief that tribes did not historically tip-toe
No. 14-1537 Kelsey v. Pope, et al. Page 8

around territorial borders in asserting their authority to enforce tribal laws, Duro offers the most
direct support for membership-based jurisdiction. See 495 U.S. at 694. Affirming the inherent
authority of tribes to try and prosecute their members, the Court in Duro recognized that the
tribes’ “criminal jurisdiction over members is accepted by our precedents and justified by the
voluntary character of tribal membership and the concomitant right of participation in a tribal
government, the authority of which rests on consent.” Id. This consensual agreement between a
tribe and its members provides the core principle underpinning and justifying a membership-
based jurisdiction that is not rigidly tied to geographic qualifications. Though the Band’s view
of jurisdiction may not be squarely addressed by the holdings of Wheeler and Duro, it is at least
supported by their reasoning. See Duro, 495 U.S. at 693 (“[I]n the criminal sphere membership
marks the bounds of tribal authority[.]”).

Kelsey reads the Supreme Court authorities differently, arguing that tribal sovereign
authority “centers on the land held by the tribe and on tribal members within the reservation.”
Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 327 (2008);3 Kelsey
Br. at 31–35. Leaning on the district court’s opinion, Kelsey argues that Wheeler and Duro are
decisions firmly rooted in territory and do not “stand for the proposition that tribal membership
is the sole basis for determining jurisdiction, but rather for the proposition that a tribe’s authority
to prosecute crimes within its territory is limited to its members.” R. 41, Dist. Ct. Opinion at 3,
Page ID 582. And Kelsey does marshal support lending credibility to the view that territory is a
dominant factor in determining the scope of tribal authority. See Plains Commerce Bank,
554 U.S. at 327 (holding that a tribe did not have the authority to regulate the sale of non-Indian
fee land located within the reservation); Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 647
(2001) (holding that a tribe did not have the authority to “tax nonmember activity occurring on
non-Indian fee land”); South Dakota v. Bourland, 508 U.S. 679, 681–82 (1993) (considering
whether “the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on
lands and overlying waters located within the Tribe’s reservation but acquired by the United
States” and holding that the tribe’s right had been congressionally abrogated).

3
The Band correctly points out that Plains Commerce Bank has nothing to do with membership-based
jurisdiction but is instead concerned with tribal authority over non-Indians. Band Br. at 28.
No. 14-1537 Kelsey v. Pope, et al. Page 9

But these cases miss the mark. Each one discusses tribal authority or jurisdiction only
with respect to non-members instead of tribal members—a crucial distinction given the
importance of tribal membership in determining various aspects of tribal sovereignty.4 And
Kelsey offers no persuasive reason why these cases—which do consider territory as a significant
factor in determining the contours of tribal sovereignty—do not instead stand for the contrary
proposition that tribal power is at its zenith where territory and membership intersect. Finally,
neither Kelsey nor the district court can simply wish away the language in Wheeler and Duro
that establishes membership as the historical determinant of who falls within the ambit of tribal
criminal jurisdiction. That tribes maintain their inherent authority to try and punish their
members for off-reservation conduct is neither surprising nor hard to accept given the “voluntary
character of tribal membership and the concomitant right of participation in a tribal government,
the authority of which rests on consent.” Duro, 495 U.S. at 694.

Aside from Wheeler and Duro, a 1939 Opinion of the Solicitor of the Interior Department
affirms that, “as a matter of historical record,” the government believed tribes to have the
authority to try and prosecute members for off-reservation conduct. See Solicitor’s Opinion,
April 27, 1939, 1 Op. Sol. on Indian Affairs 891, 896 (U.S.D.I. 1979). Underscoring this
authority while discussing a separate jurisdictional question, the Opinion notes:

That the original sovereignty of an Indian tribe extended to the punishment of a
member by the proper tribal officers for the depredations or other forms of
misconduct committed outside the territory of the tribe cannot be challenged.
Certainly we cannot read into the laws and customs of the Indian tribes a principle
of territoriality of jurisdiction with which they were totally unfamiliar, and which
no country has adopted as an absolute rule. That Indian tribes friendly to the
United States acted to punish their members for depredations committed against
whites outside of the Indian Country is a matter of historical record.

Solicitor’s Opinion at 9–10 (emphasis added).5

4
Compare, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978) (holding that tribal courts
do not have the power to try non-Indians) with Duro, 495 U.S. at 686 (holding that the “power of a tribe to prosecute
its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost
by virtue of their dependent status”).
5
The Solicitor’s Opinion was published in Opinions of the Solicitor of the Department of the Interior
Relating to Indian Affairs 1917–1974 (“Opinion Compilation”), a compilation of the Solicitor’s official opinions
that Congress directed be published in 1968. The purpose of publishing the Opinion Compilation was to advance an
No. 14-1537 Kelsey v. Pope, et al. Page 10

Decisions from outside our Circuit also provide support for membership as a basis for the
assertion of tribal sovereignty independent of tribal territory. See Native Vill. of Venetie I.R.A.
Council v. Alaska, 944 F.2d 548, 558 n.12 (9th Cir. 1991) (“[T]ribal sovereignty is not
coterminous with Indian country . . . [r]ather, tribal sovereignty is manifested primarily over the
tribe's members.”); see also Sidney v. Zah, 718 F.2d 1453, 1456 (9th Cir. 1983) (noting that
“[m]embership is therefore another aspect of tribal sovereignty which exists separate and apart
from the territorial jurisdiction of the tribe” in holding that the Navajo Tribe must carry out a
congressionally authorized federal court order even though the Navajo claimed that “tribal
sovereignty stops at the border”) (emphasis added); Settler v. Lameer, 507 F.2d 231, 237
(9th Cir. 1974) (holding that, though tribes did not have off-reservation arrest authority, they did
have inherent sovereign authority to prosecute off-reservation fishing offenses because they had
not ceded such authority by treaty, and because divestiture of such authority was not implied).

Fife v. Moore, 808 F. Supp. 2d 1310 (E.D. Okla. 2011), is the only modern case to
consider membership-based criminal jurisdiction, and Fife explicitly rejects the Band’s
interpretation of Wheeler as a justification for extending jurisdiction to off-reservation conduct.
In Fife, the petitioners were charged with theft-related crimes in tribal court and sought a
temporary restraining order and preliminary injunction against tribal court proceedings in the
United States District Court. Id. at 1311. Challenging tribal court jurisdiction, the petitioners
argued that the tribal court did not have authority to try their offenses because they occurred
outside of Indian country. Id. at 1314. The district court granted the preliminary injunction,
explicitly rejecting “the inherent power [of tribes] to prescribe laws for their members,” Wheeler,
435 U.S. at 323, as extending to off-reservation conduct, and holding that that the tribe lacked
criminal jurisdiction over offenses outside of Indian country. Fife, 808 F. Supp. 2d at 1314. The
district court noted that the defendant prosecuted in Wheeler had been arrested within the Navajo
Indian reservation, and “[t]he conduct which formed the basis for the prosecution [in Wheeler]
had also occurred on the reservation, according to the federal indictment.” Id. at 1314. Thus,

“extremely valuable, but largely inaccessible, source for the study of Indian Law . . . [to] determine the status of
Indian land and rights in natural resources, define tribal governmental powers and analyze many other subjects of
vital import to Indian tribes and Indian people.” Band Reply Br. at 10, Appendix A, Opinion Compilation
“Introduction” (citing United States v. Jackson, 280 U.S. 183, 193 (1930), and Udall v. Tallman, 380 U.S. 1 (1965),
for the proposition that “[t]he utility of these volumes is not that they have binding effect but that they are often
accorded great weight by the courts”).
No. 14-1537 Kelsey v. Pope, et al. Page 11

Fife found Wheeler’s deference to tribal sovereignty in trying and punishing members as
instructive only as to on-reservation conduct.

After additional briefing, the Fife court affirmed the tribal court’s lack of extra-territorial
jurisdiction, but significantly undercut its earlier analysis by hedging on the issue of
membership-based criminal jurisdiction. It noted that the tribal respondents “may well be correct
in their position [that the tribe had extra-territorial jurisdiction],” but due to the “few scattered
references (quite few and quite scattered)” interpreting the issue of extra-territorial tribal
jurisdiction, “the court is persuaded it should stand on its previous ruling.” R. 32-2, Fife Slip
Order at 2–3, Page ID 492–93. While Fife supports Kelsey’s position, its reasoning is not
persuasive. The analysis in the case wholly fails to consider the prominent language in Duro that
advances membership-based jurisdiction and justifies criminal jurisdiction over members
because of the consensual nature of tribal membership and the concomitant benefits resulting
from tribal membership. See Duro, 495 U.S. at 694. Fife also places too great an emphasis on
Wheeler’s on-reservation context. As previously discussed, none of the analysis in Wheeler and
Duro hinges on the situs of the criminal conduct, but instead rests on the pronouncement that
“[i]t is undisputed that Indian tribes have power to enforce their criminal laws against tribe
members.” Wheeler, 435 U.S. at 322. Finally, Fife significantly undermines its persuasive value
by noting in its order that the tribe “may well be correct” in its view of membership-based
jurisdiction. Id. at 493.6

ii

Membership-Based Criminal Jurisdiction. In sum, Indian tribes possess the inherent
sovereign authority to try and punish members on the basis of tribal membership. Wheeler and
Duro may not answer the specific question of whether tribes are permitted to exercise extra-
territorial criminal jurisdiction over members, but their core principles strongly support the
Band’s theory of jurisdiction. Even reading Wheeler and Duro in their on-reservation context

6
Kelsey’s reliance on “Hornbook” law to suggest that tribal criminal jurisdiction ends at territorial borders
is similarly unavailing. Kelsey Br. at 46. Felix S. Cohen’s 1942 Handbook does cite to a footnote addressing an
Attorney General opinion from 1886 that states “[t]he jurisdiction of the Indian tribe ceases at the border of the
reservation.” Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW 148 n.236 (1942). However, the 2012 version
of Cohen’s Handbook points to the opposite conclusion. See Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW,
§ 4.01(2)(d) (2012).
No. 14-1537 Kelsey v. Pope, et al. Page 12

and recognizing that their language related to membership-based jurisdiction is arguably non-
essential to their respective holdings, the reasoning behind tribal criminal jurisdiction in Duro—
that a tribe’s authority to prosecute its members is “justified by the voluntary character of tribal
membership and the concomitant right of participation in a tribal government”—provides ample
basis to validate the exercise of tribal criminal jurisdiction on the basis of membership. See
Duro 495 U.S. 677–78 (emphasis added).

B
We next turn to whether tribes’ inherent authority to exercise criminal jurisdiction over
off-reservation conduct has been expressly limited by Congress or treaty. See Wheeler, 435 U.S.
at 323. Kelsey has not identified any treaty or statute that explicitly divests the Band of extra-
territorial criminal jurisdiction. Kelsey Br. at 36–37. Nor has the district court, which instead
adopted the magistrate judge’s conclusion that Indian tribes implicitly lost power to assert extra-
territorial criminal jurisdiction over members as a “necessary result” of their dependent status.
R. 35, R&R at 29, Page ID 530. Because no statute or treaty expressly divests the Band of its
inherent authority to try and punish its members for off-reservation conduct, we turn to the issue
of implicit divestiture.

C

We have concluded that, as a historical matter, Indian tribes have the inherent sovereign
authority to try and prosecute members on the basis of tribal membership even if criminal
conduct occurs beyond a tribe’s Indian country. Our remaining inquiry, then, is whether the
tribes have been implicitly divested of their authority to prosecute members for extra-territorial
conduct by virtue of their domestic dependent status. We look first to the history and breadth of
implicit divestiture, considering whether the Band’s purported jurisdiction is consistent with the
historical underpinnings of the doctrine. We then consider whether statutes extending federal
jurisdiction into Indian country serve as a basis for implicitly divesting tribes of their jurisdiction
over off-reservation offenses.
No. 14-1537 Kelsey v. Pope, et al. Page 13

i

Tribal Sovereignty and Implicit Divestiture. The principle of implicit divestiture was first
articulated in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), a case examining tribal
criminal jurisdiction over non-Indians. Oliphant thoroughly canvassed the history of treaties,
statutes, and judicial decisions regarding crimes in Indian country and found a “commonly
shared presumption of Congress, the Executive Branch, and lower federal courts that tribal
courts do not have the power to try non-Indians.” Id. at 206 (emphasis added). While Congress
never “expressly forbade Indian tribes [from] impos[ing] criminal penalties on non-Indians,” the
Court made the “implicit conclusion . . . that Congress consistently believed this to be the
necessary result of its repeated legislative actions.” Id. at 204. The Court based this “implicit
conclusion” on the tribes’ dependent status, identifying what it perceived to be an incongruous
result should “Indian Tribes, although fully subordinated to the sovereignty of the United States,
retain the power to try non-Indians according to [tribal] customs and procedure.” Id. at 208–11.
Though additional decisions have further restricted tribal criminal jurisdiction over non-
members, the Supreme Court has consistently affirmed that the “power of a tribe to prosecute its
members for tribal offenses clearly does not fall within that part of sovereignty which the Indians
implicitly lost by virtue of their dependent status.” Duro, 495 U.S. at 686 (quoting Wheeler,
435 U.S. at 326) (internal quotation marks omitted);7 see also United States v. Lara, 541 U.S.
193, 197, 205 (2004) (characterizing tribal criminal jurisdiction over members as an “inherent
power[] of a limited sovereignty which has never been extinguished” and noting that, by
contrast, the Court had treated “the power to prosecute nonmembers [as] an aspect of the tribes’
external relations and hence part of the tribal sovereignty that was divested”) (quoting Wheeler,
435 U.S. at 322)).

But, while tribes have not been implicitly divested of their right to prosecute members,
their unique dependent status requires a more nuanced analysis in determining whether they may
extend tribal prosecutions to members’ off-reservation conduct. In Montana v. United States,

7
In response to Duro, Congress passed the “Duro Fix,” affirming the inherent authority of tribes to exercise
criminal jurisdiction over non-member Indians. 25 U.S.C. § 1301(2); see Lara, 541 U.S. at 200 (“Congress does
possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember
Indians.”).
No. 14-1537 Kelsey v. Pope, et al. Page 14

450 U.S. 544 (1981), the Court clarified the extent of sovereign authority implicitly divested as a
result of the tribes’ dependent status. Montana first explained that “[t]hrough their original
incorporation into the United States . . . the Indian tribes have lost many of the attributes of
sovereignty[.]” Id. at 564. Defining the scope of retained inherent sovereignty, Montana held
that the “exercise of tribal power beyond what is necessary to protect tribal self-government or
to control internal relations is inconsistent with the dependent status of the tribes, and so cannot
survive without express congressional delegation.” Id. at 564 (emphasis added).8

In determining whether extending criminal jurisdiction to off-reservation conduct is
consistent with Montana’s view of retained tribal sovereignty, it is important to determine
exactly what the Band is and is not arguing with respect to the scope of their jurisdictional
power. Here we have no express congressional delegation granting the Band extra-territorial
criminal jurisdiction. The Band is cognizant that a free-floating, membership-based jurisdiction
over any criminal conduct could run headlong into Montana’s holding that retained tribal power
(i.e. criminal jurisdiction) is only that which is “necessary to protect tribal self-government or
control internal relations.” Id. at 564. Therefore, the Band advocates for a more limited scope of
extra-territorial criminal jurisdiction, arguing that its inherent authority to prosecute members for
off-reservation conduct extends at least where the offenses “substantially affect[] its self-
governance interests.” Band Br. at 3, 41–42.9

8
The terms “internal” and “external” are not used in a territorial sense. See Wheeler, 435 U.S. at 322
(discussing the tribe’s “right of internal self-government includes the right to prescribe laws applicable to tribe
members and to enforce those laws by criminal sanctions” when referring to the internal affairs of a tribe, not to
conduct within tribal boundaries). The Government Amicus offers another example of how conduct outside the
reservation boundaries may plainly affect the tribes’ “internal” affairs. “For example, when a tribe authorizes
absentee voting in tribal elections by members residing outside the tribe’s reservation, the voting is internal to the
tribe, notwithstanding its off-reservation location. Likewise, a tribal prosecution of a member for off-reservation
election fraud would be, in the words of the Supreme Court, the enforcement of an internal criminal law[.]”
Government Amicus Br. at 17.
9
Kelsey would have us read the Band’s view of membership-based jurisdiction as extending to criminal
conduct “based only on the fact of tribal membership.” Kelsey Br. at 2, 13, 30. Through this overbroad
characterization, Kelsey portrays a “sweeping” membership-based jurisdiction that would permit the Band to
prosecute members “half a mile outside of its reservation borders or halfway around the world.” Kelsey Br. at 13.
However, this clearly ignores the Band’s framing of the issue—that criminal conduct must “substantially affect[]
[tribal] self-governance,” Band Br. at 3, 41–42—and the limitations described in Montana’s characterization of
retained tribal sovereignty post-incorporation. See Montana, 450 U.S. at 566–67.
No. 14-1537 Kelsey v. Pope, et al. Page 15

We agree with the Band that Kelsey’s conduct clearly implicates core governmental
concerns and substantially affects the tribe’s ability to control its self-governance. Not only was
Kelsey a member of the Band’s nine-person legislative Tribal Council, but his victim was a tribal
employee discharging her official duties at an official tribal elders’ meeting. The criminal
conduct took place at the Community Center, “the center of Tribal community activities ever
since it was purchased,” serving to formerly house elements of the tribal judiciary and
“provid[ing] tribal office space for the conduct of the business of a tribal sovereign.” R. 9, Tribal
App’x at 13, PID 1539. This is no run-of-the-mill criminal conduct, but conduct visited on the
Band’s employee by the Band’s own elected official during an official tribal function: in pure
form, this was an offense against the peace and dignity of the Band itself. While certain
applications of extra-territorial criminal jurisdiction might well be incompatible with the tribes’
status as dependent sovereigns—that is, where they tangentially impact tribal self-governance or
fail to implicate core internal relations, see Montana, 450 U.S. at 564—the instant exercise of
criminal jurisdiction does not fall within that category.

ii

Should Implicit Divestiture Be Inferred From Federal Statutes? Kelsey suggests that
several statutes extending federal criminal jurisdiction into Indian country—the Indian Trade and
Intercourse Act (“Non-Intercourse Act”), 1 Stat. 137 (1790), the Indian Country Crimes Act
(“ICCA”), 18 U.S.C. § 1152 (1948), and the Major Crimes Act (“MCA”), 18 U.S.C. § 1153
(1948) (collectively the “Indian country statutes”)—demonstrate a congressional belief that
tribes have been implicitly divested of criminal jurisdiction outside their territory. The Non-
Intercourse Act established federal jurisdiction to enforce state criminal laws against non-Indians
who committed offenses against Indians in Indian country. Oliphant, 435 U.S. at 201. The ICCA
made the general laws of the United States applicable to Indian country where either the victim
or the defendant is an Indian, but not where both victim and defendant are Indians. 18 U.S.C.
§ 1152. The MCA extended federal criminal jurisdiction over Indians for specifically delineated
offenses committed within the reservation. 18 U.S.C. § 1153 (“Any Indian who commits . . .
murder, manslaughter, kidnapping, [etc.] . . . shall be subject to the same law and penalties as all
other persons . . . within the exclusive jurisdiction of the United States.”). However, none of
No. 14-1537 Kelsey v. Pope, et al. Page 16

these statutes addresses a tribe’s authority over member conduct outside the reservation.
According to the district court:

While the statutes do not directly address the issue of a tribe’s jurisdiction outside
Indian country, they are instructive in determining how Congress views the issue
of tribal jurisdiction. The statutes establish a comprehensive legislative
framework for concurrent criminal jurisdiction in Indian country. However, the
Court is not aware of a single statute discussing concurrent jurisdiction outside
Indian country. That legislative void lends to the conclusion that Congress
believes that tribes do not have jurisdiction outside their territory.

R. 41, Opinion at 4–5, Page ID 584–85.

However, it is not clear that this “legislative void” evidences Congressional intent to limit
tribal criminal jurisdiction to Indian country. First, Wheeler considers the Non-Intercourse Act
and the ICCA to be examples of general limitations on tribal criminal jurisdiction that do not
limit tribal authority over members. 435 U.S. at 325 (discussing the statutes above and noting
that “far from depriving Indian tribes of their sovereign power to punish offenses against tribal
law by members of a tribe, Congress has repeatedly recognized that power and declined to
disturb it”). Second, viewing the “legislative void” as instructive of congressional intent is in
tension with governing authority holding that “the proper inference from [congressional] silence
. . . is that the sovereign power . . . remains intact.” LaPlante, 480 U.S. at 18 (ellipses in
original); see also Helvering v. Hallock, 309 U.S. 106, 121 (1940) (“[W]e walk on quicksand
when we try to find in the absence of corrective legislation a controlling legal principle.”).
Third, the fact that Congress did “not directly address the issue of a tribe’s jurisdiction outside
Indian country,” R. 41, Opinion at 4, Page ID 583, should not be read to limit tribal sovereignty.
In fact, given Bay Mills’ pronouncement that “courts will not lightly assume that Congress in fact
intends to undermine Indian self-government,” 134 S. Ct. at 2032, congressional silence in
matters of tribal sovereignty is more aptly viewed as congressional deference to tribal
sovereignty.

The district court adopted the magistrate judge’s view that it would be “inconceivable”
that Congress chose to “regulate[] tribal jurisdiction [in] Indian country closely for these past two
centuries, while leaving the tribes free to assert criminal jurisdiction outside Indian country.”
R. 41, Opinion at 4–5, Page ID 583–84; R. 35, R&R at 28, Page ID 529. But Congress
No. 14-1537 Kelsey v. Pope, et al. Page 17

established federal or state criminal jurisdiction within Indian reservations to provide criminal
justice where tribal powers were presumed absent or inadequate. In passing the Indian country
statutes, Congress chose not to speak regarding member offenses committed outside the
reservation because, as the Supreme Court stated in Bay Mills, “the problem Congress set out to
address . . . arose in Indian lands alone.” 134 S. Ct. at 2034 (noting that Congress responded to a
Supreme Court decision which held that the states lacked any regulatory authority over gaming
on Indian lands by passing the Indian Gaming Regulatory Act, which specifically permitted the
regulation of gaming on Indian lands).

These authorities and statutes speak only to tribal criminal jurisdiction over non-Indians
and fail to truly address extra-territorial jurisdiction. Given the baseline assumption that, “until
Congress acts, the tribes retain their historic sovereign authority,” we “respect [] Congress’s
primary role in defining the contours of tribal sovereignty” and refuse to “lightly assume that
Congress in fact intends to undermine Indian self-government.” Bay Mills, 134 S. Ct. at 2026,
2032, 2039.

IV

Because prosecuting Kelsey’s conduct was “necessary to protect tribal self-government
or control internal relations,” Montana, 450 U.S. at 564, the Band retained authority to assert
criminal jurisdiction over his off-reservation conduct. Accordingly, we reverse the district
court’s grant of habeas relief for lack of tribal jurisdiction. Because the Band properly exercised
jurisdiction to prosecute Kelsey, we must consider whether Kelsey is entitled to relief for his due
process challenge under the Indian Civil Rights Act.

V

The Bill of Rights and the Fourteenth Amendment do not of their own force apply to
Indian tribes. See Talton v. Mayes 163 U.S. 376, 384 (1896); United States v. Doherty, 126 F.3d
769, 777 (6th Cir. 1997). Thus, the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1302(a)(8), is
No. 14-1537 Kelsey v. Pope, et al. Page 18

the only basis for Kelsey’s asserted due process violation.10 The ICRA requires tribes to accord
all persons within their jurisdiction enumerated rights akin to the federal Bill of Rights. At the
time of Kelsey’s conviction, the ICRA provided:

No Indian tribe in exercising powers of self-government shall * * * deny to any
person within its jurisdiction the equal protection of its laws or deprive any
person of liberty or property without due process of law . . . .

25 U.S.C. § 1302(a)(8) (amended in 2010). Because Kelsey’s off-reservation conduct
significantly affected the Band’s self-governance and internal relations, thus falling within tribal
jurisdiction, the ICRA extends due process protections to Kelsey in the Tribal prosecution.
Kelsey contends that the Tribal Court of Appeals’ decision to strike down a territorial limitation
on the Band’s jurisdiction in one of the Tribal criminal ordinances and “retroactively expand[]
the geographic reach” of criminal jurisdiction over his off-reservation conduct is “unexpected
and indefensible,” violating the due process protection of fair notice established in Bouie v. City
of Columbia, 378 U.S. 347, 354 (1964).

Ordinarily, we defer to tribal court interpretations of tribal law “because tribal courts are
best qualified to interpret and apply tribal law.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16
(1987). However, as the Band’s criminal procedures do not “differ significantly from those
‘commonly employed in Anglo-Saxon society’ . . . federal constitutional standards are employed
in determining whether the challenged procedure violates the Act.” Randall v. Yakima Nation
Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988).

A

The Tribal Court of Appeals’ Jurisdiction Order. During his appeal in Tribal court,
Kelsey asserted that the Band’s internal laws precluded jurisdiction based on the Band’s
Criminal Offenses Ordinance. Section 4.03(a) of the Offenses Ordinance extended criminal
jurisdiction to “[1] all land within the limits of the Tribe’s reservation . . . [2] [land] held in trust
by the United States . . . and [3] land considered ‘Indian country.’” R. 1-11, Offenses Ordinance

10
For ICRA due process protections to apply, the tribal prosecution must be “within [tribal] jurisdiction.”
25 U.S.C. § 1302(a)(8). Having answered the threshold question in the affirmative, we now assess the merits of
Kelsey’s due process claim.
No. 14-1537 Kelsey v. Pope, et al. Page 19

at 4, Page ID 91.11 Section 4.03(b) looked beyond these three categories, enumerating nine
offenses for which the Band’s criminal jurisdiction would extend to “wherever committed.” Id.
Sexual assault was not one of the enumerated offenses. Kelsey argued that the tribal courts
therefore lacked criminal jurisdiction over his conduct because it fell outside of the territorial
provisions in Section 4.03(a) of the Offenses Ordinance.

The Tribal Court of Appeals accepted that the Offenses Ordinance did facially limit
Tribal jurisdiction but interpreted the ordinance in conjunction with a separate criminal
ordinance and the Tribal Constitution’s definition of jurisdiction. Article I of the Tribal
Constitution provided:

Section 1 – Territory. The territory of the Little River Band of Ottawa Indians
shall encompass all lands which are now or hereinafter owned by or reserved for
the Tribe[.]
Section 2 – Jurisdiction Distinguished from Territory. The Tribe’s jurisdiction
over its members and territory shall be exercised to the fullest extent consistent
with this Constitution, the sovereign powers of the Tribe, and federal law.

R. 1-9, Constitution at 2, PID 48 (emphasis added). Together, Sections 1 and 2 required
extending jurisdiction over tribal members and also to tribally-owned land (like the Community
Center) “to the fullest extent” permissible under tribal and federal law. In the Jurisdiction Order,
the Tribal Court of Appeals recognized that this expansive definition of jurisdiction mandated by
the Constitution made “tribal jurisdiction [] larger than territory because some tribal authority
extends beyond its land, e.g. tribal membership[.]” R. 9, Jurisdiction Order at 5, PID 1541
(emphasis in original). After determining that the Tribal Constitution affirmatively required
expansive jurisdiction, the Tribal Court of Appeals then examined the separate Criminal
Procedure Ordinance that also gave the Band’s constitutionally-mandated criminal jurisdiction
operative force. Like Section 4.03 of the Offenses Ordinance, Section 8.08 of the Procedure
Ordinance referred to the scope of tribal criminal jurisdiction. However, the Procedure
Ordinance explicitly incorporated the constitutional definition of jurisdiction, stating:

11
The Band concedes for purposes of this litigation that the Community Center does not fall within any of
these categories. In the Jurisdiction Order, the Tribal Court of Appeals also assumed that the Community Center did
not fall within the ambit of Section 4.03(a).
No. 14-1537 Kelsey v. Pope, et al. Page 20

8.08. Jurisdiction. The Tribal Court shall have jurisdiction over any action by
any Indian as defined by this Ordinance, that is made a criminal offense under
applicable Tribal Code and that occurred within the territorial jurisdiction of the
Tribe as defined in the Constitution.

R. 12, Tribal Law App’x at 32, PID 785.

Reading Section 4.03 of the Offenses Ordinance to conflict with Section 8.08 of the
Procedure Ordinance and the Tribal Constitution’s definition of jurisdiction, the Tribal Court of
Appeals found the Offenses Ordinance’s limited criminal jurisdiction to be “unconstitutionally
narrow in that it does not provide for the exercise of inherent criminal jurisdiction over all tribal
lands.” R. 9, Jurisdictional Order at 6, PID 1542. To harmonize the Offenses Ordinance with
the Tribal Constitution, the Tribal Court of Appeals removed its dissonant territorial limitation,
making it consistent the Procedures Ordinance and affirming Tribal jurisdiction over Kelsey’s
off-reservation conduct on land owned by the tribe. On appeal, Kelsey contends that the Tribal
Court of Appeals violated his due process guarantee of fair notice because it “created criminal
jurisdiction where—by the Band’s own legislation—none existed before,” increased his
punishment from a “baseline of zero” by adding a new sovereign prosecutor into the mix, and
“denied him a complete defense to his charges.”12 Kelsey Br. at 17.

B

Kelsey’s Due Process Claim. Due process protects against judicial infringement on the
“foreseeability, and, in particular, the right to fair warning as those concepts bear on the
constitutionality of attaching criminal penalties to what previously had been innocent conduct.”
Rogers v. Tennessee, 532 U.S. 451, 459 (2001) (emphasis added). See also Bouie, 378 U.S. at
351 (describing fair notice as the principle that “no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed”) (emphasis added). Our
cases reiterate this emphasis on the retroactive criminalization of conduct in examining fair
notice challenges, noting that the “touchstone behind [fair notice] concerns is an examination of
the statute to determine whether, either on its face or as construed, the provision in question

12
The exercise of Tribal criminal jurisdiction “increased the potential quantum of punishment for his
actions” because now the State of Michigan and the Band could punish Kelsey for the same action. See Lara,
541 U.S. at, 210; National Association of Criminal Defense Lawyers Amicus Br. at 20.
No. 14-1537 Kelsey v. Pope, et al. Page 21

made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” United
States v. Blaszak, 349 F.3d 881, 886 (6th Cir. 2003) (emphasis added). Thus, as Bouie and its
progeny make clear, fair notice cases “involve[] judicial decisions that allegedly retroactively
converted an innocent act into a crime.” Webb v. Mitchell, 586 F.3d 383, 393 (6th Cir. 2009).

Kelsey cannot seriously argue that his conduct—touching the victim’s breasts through
her clothing—was “innocent” conduct that was retroactively criminalized by the Jurisdiction
Order. The Offenses Ordinance had clearly proscribed inappropriate sexual contact when Kelsey
accosted Foster at the Community Center. His conduct was criminal, regardless of where it
occurred, and he could only avoid punishment if both the Tribal Court of Appeals considered
itself bound by the territorial provision in the Offenses Ordinance and the State of Michigan
chose to forgo prosecution.13 Though the Band and not the State of Michigan prosecuted
Kelsey, he was “subject to prosecution somewhere.” See United States v. al Kassar, 660 F.3d
108, 119 (2d Cir. 2011) (“Fair warning does not require that the defendants understand that they
could be subject to criminal prosecution in the United States so long as they would reasonably
understand that their conduct was criminal and would subject them to prosecution somewhere.”)
(emphasis added).

Under existing case law, fair notice protection has not been extended to an expansion of
jurisdiction as opposed to a retroactive criminalization of conduct. However, we need not rely
on this distinction here because even if retroactive jurisdictional changes did implicate fair notice
concerns in a case like Kelsey’s, the Court of Appeals’ decision to recognize jurisdiction over
Kelsey’s conduct was not “unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue[.]” Bouie, 378 U.S. at 354.

i

Bouie and Rogers define the circumstances under which judicial construction of a statute
may be deemed to violate the due process fair notice requirement:

In Bouie v. City of Columbia, we considered the South Carolina Supreme Court’s
retroactive application of its construction of the State’s criminal trespass statute to

13
Kelsey’s conduct would likely be classified in Michigan as criminal sexual conduct in the fourth degree.
See Mich. Comp. Laws Ann. § 750.520e.
No. 14-1537 Kelsey v. Pope, et al. Page 22

the petitioners in that case. The statute prohibited “entry upon the lands of
another . . . after notice from the owner or tenant prohibiting such entry . . . .” The
South Carolina court construed the statute to extend to patrons of a drug store who
had received no notice prohibiting their entry into the store, but had refused to
leave the store when asked. Prior to the court’s decision, South Carolina cases
construing the statute had uniformly held that conviction under the statute
required proof of notice before entry. None of those cases, moreover, had given
the “slightest indication that that requirement could be satisfied by proof of the
different act of remaining on the land after being told to leave.”

Rogers, 532 U.S. at 456–57 (internal citations omitted). In holding that the South Carolina
court’s retroactive application of its construction violated due process, the Supreme Court
explained that “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible
by reference to the law which had been expressed prior to the conduct in issue,’ [the
construction] must not be given retroactive effect.” Id. at 457 (quoting Bouie, 378 U.S. at 354)
(alterations in original). Because the state court’s construction of the statute was “so clearly at
variance with the statutory language, [and] ha[d] not the slightest support in prior South Carolina
decisions,” the Supreme Court found that the state court’s retroactive application of the new
interpretation could not stand. Bouie, 378 U.S. at 356.

In Rogers, the Supreme Court held that the Tennessee Supreme Court’s decision to
eliminate the “year and a day rule” from the common law was not a violation of the fair notice
principles set forth in Bouie.14 Rogers, 532 U.S. at 462. Recognizing the “divergent pulls of
flexibility and precedent in our case law system,” the Court rejected rigid ex post facto
limitations on judicial decision-making to avoid placing “an unworkable and unacceptable
restraint on normal judicial processes [that] would be incompatible with the resolution of
uncertainty that marks any evolving legal system.” Id. at 461. While still applying the
“unexpected and indefensible” standard, the Court characterized the year and a day rule as a relic
of the common law which itself “presuppose[d] a measure of evolution.” Id. Accordingly, it
found this circumstance to be one where there “arises a need to clarify or even to reevaluate prior
opinions as new circumstances and fact patterns present themselves.” Id. Because the state
court’s decision to eliminate the rule was “[f]ar from a marked and unpredictable departure from

14
The Tennessee common law “year and a day rule” precluded defendants from being convicted of murder
unless the victim died by the defendant’s act within a year and a day of the act. Rogers, 532 U.S. at 451.
No. 14-1537 Kelsey v. Pope, et al. Page 23

prior precedent,” and its elimination was foreseeable as it “had only the most tenuous foothold as
part of the criminal law of the State of Tennessee,” the Supreme Court found the retroactive
abolition of the year and a day rule to face no constitutional impediment. Id. at 464, 466–67.

ii

The Tribal Court of Appeals’ decision is a far cry from Bouie. It more closely resembles
a “routine exercise of common law decisionmaking,” Rogers, 532 U.S. at 467, than an
“unexpected and indefensible” judicial construction that runs headlong into the constitutional
protections of due process. See Bouie, 378 U.S. at 354. In fact, the decision to extend criminal
jurisdiction to Kelsey’s conduct was foreseeable, given that we do not make an “ad hoc appraisal
of the subjective expectations” of the defendant, but instead base our decision on the “statute
itself and the other pertinent law” in determining whether a defendant has not received fair
notice. Id. at 355 n.5 (emphasis added). As directly addressed in the Jurisdiction Order, the
Tribal Constitution mandated the exercise of jurisdiction over Kelsey’s conduct because his
crime occurred on land owned by the Band. The Procedure Ordinance, one of the ordinances
giving operative effect to the Band’s constitutionally-mandated jurisdiction, explicitly defined
criminal jurisdiction by reference to the Constitutional definition. Only the Offenses Ordinance
limited jurisdiction to on-reservation conduct. That the Tribal Court of Appeals chose to
subordinate the Offenses Ordinance’s territorially-limited jurisdiction to the Tribal Constitution’s
explicit definition, thereby reconciling the scope of criminal jurisdiction in two criminal
ordinances, is not only unsurprising but is within the Tribal Court of Appeals’ authority to “rule
void those ordinances and resolutions deemed inconsistent with [the Band’s] Constitution.”
R. 12, Tribal Law App’x at 12, Const. Art. VI, Sec. 8(a)(2), PID 765. While due process does
restrict courts from upending settled constructions of law, it does not strip courts of the flexibility
to clarify and resolve uncertainties in the law. See O’Neal v. Bagley, 743 F.3d 1010, 1017
(6th Cir. 2013) (holding that resolving uncertainty evident in state appellate court interpretations
of conflicting statutory provisions “was not unexpected and indefensible by reference to
[existing] law.”) (internal quotations omitted).

These are not the only provisions that put Kelsey on notice that his conduct was within
tribal jurisdiction. For instance, the Tribal Court Ordinance which “establish[es] the purposes,
No. 14-1537 Kelsey v. Pope, et al. Page 24

powers, and duties of the Tribal Courts” noted in multiple sections that Tribal jurisdiction shall
extend to all civil and criminal matters arising under the Tribal Constitution’s definition of
jurisdiction. R. 12, Tribal Law App’x at 22, PID 775.

Yes, we must accept the legal fiction that Kelsey read and understood the jurisdictional
limitation in the Offenses Ordinance before he committed his crime, but we need not and should
not grant him the luxury of picking and choosing à la carte which ordinances he read. While we
do look to the “statute itself,” “the other pertinent law,” Bouie, 378 U.S. at 355 n.5, weighs
significantly in favor of finding that Kelsey was not denied adequate notice: the Tribal
Constitution Art. I, Section 1 & 2; the Tribal Constitution Art. VI, Section 8; the Criminal
Procedure Ordinance, and the Tribal Court Ordinance all provided warning that criminal
jurisdiction would extend to Kelsey’s conduct by virtue of either Tribal ownership of the
Community Center or Kelsey’s tribal membership. Given the need to harmonize jurisdiction in
the Offenses Ordinance with the Procedure Ordinance and the Tribal Constitution, and with
notice provided by multiple constitutional provisions and tribal ordinances, we hold that the
Tribal Court of Appeals’ “new construction was not ‘unexpected and indefensible by reference
to [existing] law.’” See O’Neal, 743 F.3d at 1017 (quoting Bouie, 378 U.S. at 354).

VI

For the reasons above, we reverse the decision of the district court and vacate its grant of
habeas relief.