Davis v. Muellar

¶6HENLEY, Circuit Judge.

¶7Thomas D. Davis appeals the district court order, 481 F.Stipp. 888, denying his petition for a pretrial writ of habeas corpus, 28 U.S.C. § 2241(c)(3), by which he sought release from North Dakota state custody on grounds that his arrest and state custody were, and are, in violation of a tribal extradition ordinance. We affirm.

¶8Davis is an enrolled member of the Turtle Mountain Band of Chippewa Indians. The tribal extradition ordinance, first approved by the United States Bureau of Indian Affairs on June 13,1967, mandates the following procedure in arresting a tribal member for a crime committed off the reservation: the state officials present the arrest warrant to tribal officials, the tribal officials make the arrest, and the Indian accused has an extradition hearing as a prerequisite to state custody. Turtle Mountain Tribal Code § 1.0710.1

¶9The Turtle Mountain Indian Reservation is composed of two townships in Rolette County, North Dakota. Indian land in the County, but outside the reservation, makes up another two townships. The resulting patchwork of Indian and state jurisdiction requires close cooperation between Indian and state officials, and there is no reason to believe that in general such cooperation does not exist. Specifically, with respect to the arrest of Davis subjective bad faith is denied.

¶10On the night of October 9, 1978 Davis allegedly made a telephone call from the Reservation in which he threatened to kill one Kim Albert the next day at the Town of Rolla.2 The alleged threat was reported *524to Rolette County officials who determined to arrest Davis the following morning.

¶11On the morning of October 10, 1978 the tribal police department, obviously acting in cooperation with the Rolette County sheriff’s office, notified Davis at his place of employment on the reservation that the county officers wished to speak with him and asked him to come to the Tribal Law and Order Office, which he did. After a short time a deputy sheriff arrived and Davis was arrested without a warrant. The record reflects that Davis refused to waive extradition and requested a hearing. However, no tribal judge was available nor was one to be available that day. In those circumstances Rolette County officials elected to take Davis into custody even though they were aware of the requirements of the extradition ordinance.

¶12After Davis was placed in state custody, a complaint was filed, a warrant was issued, and bond was set at $1,500.00. Later that afternoon, Davis’ wife posted bond at the Rolette County sheriff’s office in Rolla. Davis was released, but the terms of his bond required him to appear in the state courts.3

¶13Davis presented his unlawful arrest claims to North Dakota state courts in four separate appearances. At his preliminary hearing in county justice court, Davis moved for a dismissal on the basis that the state arrest and custody of him on the reservation violated his rights under the tribal extradition ordinance and frustrated the federal guarantee of tribal self-government. This motion was denied, and he was bound over to the state district court. Then, Davis petitioned the state district court for a writ of habeas corpus, releasing him from state custody until the tribal extradition ordinance had been complied with. The writ was denied on the ground that he was not “in custody.”4 At the time of his arraignment in state district court, Davis again moved to dismiss on the basis of violation of tribal extradition laws but was denied relief. Finally Davis sought a writ of prohibition from the Supreme Court of North Dakota to restrain the impending district court prosecution. Without reaching the issue of the lawfulness of the arrest, the state supreme court denied the writ, noting that prohibition is granted only sparingly and only where there is no adequate remedy by appeal. Davis v. O’Keefe, 283 N.W.2d 73, 76 (N.D.1979).

¶14Davis then took his claim to federal court. He petitioned the United States District Court for the District of North Dakota for a writ of habeas corpus based on the tribal extradition ordinance. By an order dated December 27,1979, the district court denied the petition on the grounds that Davis had not exhausted state remedies because he had not yet been tried and convicted and that there were no special circumstances to override the exhaustion requirement. An administrative panel of this court granted a certificate of probable cause and directed that the state criminal proceeding be stayed pending appeal.

¶15I. Federal Judicial Intervention.

¶16At the outset we are confronted with the question whether this court should assume jurisdiction and decide this case on its merits.

¶17Davis contends that the special circumstances of this case negate the need for exhaustion of state remedies. Alternatively, he contends that state remedies have been exhausted. He asserts that the *525unique status given tribal sovereignty constitutes a special circumstance.5

¶18Public policy and 28 U.S.C. § 22836 discourage federal court interference with state court proceedings. Younger v. Harris, 401 U.S. 37, 40—41, 91 S.Ct. 746, 748-749, 27 L.Ed.2d 669 (1971). Younger, which dealt with a federal stay or injunction of a pending state criminal prosecution, was based on “the notion of ‘comity,’ that is, a proper respect for state functions.” Id. at 43-44, 91 S.Ct. at 750. The same policy has been applied to federal habeas corpus relief from a state criminal trial. E. g., Kolski v. Watkins, 544 F.2d 762, 766 (5th Cir. 1977); United States ex rel. Scranton v. New York, 532 F.2d 292, 295 (2d Cir. 1976); United States ex rel. Tyler v. Hall, 444 F.Supp. 104, 106 (E.D.Mo.1978). However, the rule of comity does not limit the power of the federal courts to dispense with the exhaustion requirement altogether where “special circumstances" exist. E. g., Braden v. Thirtieth Judicial Circuit Court, 410 U.S. 484, 489, 93 S.Ct. 1123, 1126-1127, 35 L.Ed.2d 443 (1973) (speedy trial rights); Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886); United States ex rel. Russo v. Superior Court, 483 F.2d 7,12 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 313 (1973) (double jeopardy).

¶19The federal district court held that requiring Davis to defend himself in a criminal trial would not justify habeas corpus relief under the “both great and immediate” irreparable injury test of Younger. As the district court noted, while Davis has exhausted his pretrial state remedies he could appeal a state conviction on the ground of the unlawfulness of the arrest.7 And as Younger teaches, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751.

¶20As stated, it is urged here that serious questions of tribal sovereignty and state-tribal relations are raised to such an extent as to constitute special circumstances justifying dispensing with exhaustion requirements as contemplated by Braden and Russo.

¶21The Turtle Mountain Band of Chippewa Indians has appeared amicus curiae and has undertaken to raise questions as to the extent to which the state must recognize sovereignty and control of the tribal government over the reservation’s inhabitants. Thus, it may be said that in a sense we are to be concerned not only with the personal injury to Davis but with broader tribal interests as well.

¶22Tribal sovereignty undoubtedly includes the power to establish a court system. American Indian Policy Review Commission, 95th Cong., 1st Sess., Final Report (Comm.Print 1977), at 99 (hereinafter Final Report), and the trust responsibility of the federal government includes protecting tribal sovereignty. Id. at 104.8 Indeed, the *526federal courts historically have protected tribal sovereignty from state interference. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832). Moreover, considerations of comity underlying Younger to a degree may be said to apply to tribal governments as well.9 And if we were presented with a claim filed to protect the extradition process prior to surrender of the individual petitioner to the demanding state considerations of comity and concern for tribal sovereignty might well dictate exercise of federal jurisdiction.

¶23Such a pre-surrender case decided before Younger was Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970). In Merrill after the Navajo Tribal Court declined to extradite a reservation Indian to Oklahoma, Arizona honored an extradition demand by Oklahoma and arrested the Indian on the reservation. The habeas corpus petition was brought in the asylum jurisdiction (Arizona) to prevent the demand jurisdiction (Oklahoma) from taking custody of him. The federal court entertained the petition and it was granted on the ground that Arizona had no extradition jurisdiction over Indian residents of the Navajo Reservation which would justify an arrest on the Reservation upon a demand from Oklahoma.

¶24But Merrill is not the case before us. Here, Davis is in custody of North Dakota. There is a pending state criminal prosecution in which Davis’ rights may be recognized and we are convinced that neither the asserted tribal interest, Davis’ individual interest, nor any combination of the two justifies our exercise of habeas jurisdiction.

¶25From what has been said, it is clear that the judgment of the district court should be affirmed and this opinion brought to a close. Even so, the position taken by the dissent seems to call for a statement on the merits and we undertake a brief discussion of the personal jurisdiction issue despite some misgiving brought on by Firestone Tire & Rubber Co. v. Risjord, - U.S. -, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), in which the Supreme Court held that this court in In re Multi-Piece Rim Products Liability, 612 F.2d 377 (8th Cir. 1980), having decided it had no jurisdiction of an interlocutory appeal erred in ruling prospectively on the merits of the appeal.

¶26II. Personal Jurisdiction.

¶27The traditional rule is that a state court maintains personal jurisdiction over a defendant brought before the court by unlawful means. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 112, 96 L.Ed. 651 (1952). This has been the law at least since the 1880’s when an officer from Kentucky arrested in West Virginia and abducted therefrom one Mahon who was a fugitive from a murder charge in Kentucky, Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283 (1888), and when an officer commissioned by the United States illegally abducted from Peru and brought to California a fugitive from a felony charge pending in Illinois, Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1888).

¶28Personal jurisdiction, once obtained, continues and illegality of arrest may not serve as grounds for attack on a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-866, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, supra; Pruitt v. Hutto, 542 F.2d 458, 459 (8th Cir. 1976).

¶29Only in United States v. Toscanino, 500 F.2d 267, 274-79 (2d Cir. 1974), has a court *527carved out an exception to the illegal arrest rule. In Toscanino the court remanded for an evidentiary hearing concerning the defendant’s allegation that he was illegally kidnapped from Uruguay and transported to the United States in a manner which “shocked the conscience” of the court. That exception was expressly limited by the Second Circuit in United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), to egregious incidents, as in Toscanino, which shock the conscience.

¶30The facts of this case simply do not suggest the type of shocking conduct described in Toscanino, supra,500 F.2d at 274-79, that would provide grounds for granting appellant’s requested relief.

¶31In a case involving an alleged illegal arrest in Indian country and a claim that illegality of the arrest without extradition divested a state court of jurisdiction to try a habeas petitioner, this court recently followed the general rule and refused habeas relief. Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980).

¶32As we understand the dissent, it does not quarrel with the general rule. Rather, it bases jurisdiction and its reasoning on the merits on the special status of Indian tribes in the United States and special governmental interest in Indian self-government. We do not disagree that there is a special and unique relationship between the government and the tribes nor do we question the power of the United States to alter the Ker-Frisbie personal jurisdiction rule. But we are unable to find that the United States has by policy, by treaty, by statute or by court decision decreed North Dakota’s loss of personal jurisdiction over appellant as a penalty for having arrested appellant in violation of the tribal extradition ordinance here involved.

¶33We direct dissolution of the interlocutory stay heretofore entered by this court and affirm the judgment of the district court.

¶44McMILLIAN, Circuit Judge,

¶45dissenting.

¶46I respectfully dissent. Because of federal protection of tribal sovereignty, I would reverse and grant a writ of habeas corpus1 releasing Davis from state custody until Rolette County officials comply with the Turtle Mountain tribal extradition ordinance.

¶471. Federal Jurisdiction

¶48As the majority noted, the injury to Davis personally is not the primary interest being asserted here. The issue is not whether an Indian can avoid state prosecution for crimes committed off the reservation, but whether the state must recognize some degree of sovereignty and control of the tribal government over the reservation’s inhabitants. On that issue the district court stated, “Tribal sovereignty and state-tribal relations ... do not rise to the standard of special circumstances contemplated in Braden and Russo.” Davis v. Muellar, 481 F.Supp. 888, 891 (D.N.D.1979). I disagree.

¶49Tribal sovereignty includes the power to establish a court system. American Indian Policy Review Commission, 95th Cong., 1st Sess., Final Report 99 (Comm.Print 1977) (hereinafter Final Report). The trust responsibility of the federal government includes protecting tribal sovereignty. Id. at 104. The refusal of state police officers to recognize legitimate tribal authority while on the reservation is a classic example of state interference with tribal sovereignty. E. g., Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). Because the tribes are often at a loss to remedy such state interference, the federal courts 2 have *528historically protected tribal sovereignty from state interference. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832). The first federal court3 that considered an Indian’s habeas corpus petition4 based on violation of the tribal extradition law5 did so before Younger. That court took jurisdiction and granted habeas corpus relief on the ground that control of the extradition process was essential to tribal sovereignty. Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970). Where tribal sovereignty is at stake, I believe that federal jurisdiction should still be available, under the special circumstances exception to Younger.

¶50The primary purpose of an extradition law is to permit limited inquiries by the asylum jurisdiction into the criminal process utilized by the demanding jurisdiction prior to releasing custody of the fugitive. Certainly a state, in the exercise of its own sovereign powers, claims an interest in the extradition of any fugitive who is present in its jurisdiction. But the district court in the present case would delay consideration of a violation of the tribal extradition law not only until after custody is surrendered but also until after the fugitive is tried and convicted. Such a delay would defeat the purpose of this essential function of the Turtle Mountain Band’s self-government. The tribal extradition process would be meaningless, and the Turtle Mountain Band would have no adequate remedy. Violation of tribal extradition laws is impermissible state interference with tribal sovereignty. This is not to say that reservations have identical sovereign status with the states, but rather that such degree of sovereignty as the tribes do possess must be recognized by the states and will be protected by the federal courts from state interference. Therefore, I believe that tribal sovereignty does rise to the standard of special circumstances which justify dispensing with the exhaustion requirement.6

¶51II. Personal Jurisdiction

¶52Having decided that we are not precluded by Younger from hearing the appeal, I would turn to the substantive issue of whether the state court retains personal jurisdiction over Davis despite the state’s *529violations of the tribal extradition code. This is a difficult issue because the state’s interest in maintaining jurisdiction over one accused of a state crime is in direct conflict with the tribe’s interest in self-government. I would hold that the state court does not have jurisdiction to try an Indian brought before it in violation of the tribal extradition ordinance.

¶53The traditional rule is that the court maintains personal jurisdiction over a defendant brought before the court by unlawful means. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 112, 96 L.Ed. 651 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1888). Ker involved extradition7 (prisoner kidnapped from Peru “in total disregard of that treaty”; no violation of provisions of treaty), while Frisbie involved rendition8 (prisoner abducted by force from Illinois and brought to Michigan for trial). The Ker-Frisbie rule has two related components. First, a treaty of extradition creates rights only as to the sovereign; it does not confer a right of asylum on the fugitive. Ker v. Illinois, supra, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Siegel v. Edwards, 566 F.2d 958, 960 (5th Cir. 1978). Therefore, an objection by the asylum jurisdiction to the illegal arrest may affect the jurisdiction of the demanding jurisdiction. See Ker v. Illinois, supra, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; United States v. Lira, 515 F.2d 68, 71-72 (2d Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975); United States ex rel. Lujan v. Gengler, 510 F.2d 62, 67-68 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). Second, the fourth amendment does not extend to extraterritorial actions or actions by foreign agents. Frisbie v. Collins, supra, 342 U.S. 519, 72 S.Ct. 112, 96 L.Ed. 651; United States v. Busic, 592 F.2d 13, 23 (2d Cir. 1978). The Ker-Frisbie rule is inapplicable where the United States has by treaty imposed a territorial limitation on its own authority. Cook v. United States, 288 U.S. 102, 121-22, 53 S.Ct. 305, 312, 77 L.Ed. 641 (1933).

¶54In United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), the Second Circuit created an exception to the Ker-Frisbie rule, but later limited the exception to “degrading, egregious, outrageous and flagrant indignities to human personality.” United States v. Winter, 509 F.2d 975, 986 n.36 (5th Cir. 1975). E. g., United States v. Lira, supra,515 F.2d at 71-72 (abduction after torture by foreign official upheld); United States ex rel. Lujan v. Gengler, supra,510 F.2d at 67-68 (abduction in absence of torture upheld). In Bennally v. Marcum, 89 N.M. 463, 553 P.2d 1270 (1976), on facts comparable to those at bar,9 the Supreme Court of New Mexico held that violation of the tribal extradition ordinance barred state prosecution of an Indian. It did so on the basis of the Toscanino exception to the Ker-Frisbie rule.

¶55*530In Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980), a panel of this court tersely refused to extend the Toscanino exception to a habeas corpus petition by a reservation Indian. Weddell v. Meierhenry could be easily distinguished from the case at hand. For example, that arrest was by a BIA officer acting pursuant to arrest authority in Indian country, not by state officials; the arrest was after an armed siege, not at a voluntary meeting; and the habeas corpus petition was filed two and one-half years after conviction, not before trial. Most importantly, in Weddell v. Meierhenry, the tribe was not before the court and no tribal interests were asserted, whereas here the tribe filed as amicus and appeared before the court. Therefore, that case is consistent with my result. Furthermore, I agree with the majority that it is neither appropriate nor necessary to extend Toscanino to the situation before us. Rather, my conclusion is grounded in the concept of federal preemption.

¶56I begin my discussion of Indian law mindful of the following admonition from the American Indian Policy Review Commission:

This Commission’s charter from Congress, reflecting 200 years of legislative and executive actions, aptly describes the relationship between the United States and American Indian tribes as “unique” and “special.” Such words have repeatedly been emphasized by the United States Supreme Court in opinions stretching across almost VA centuries. Thus the unequivocal message from all three branches of our Federal Government is that Indian laws and policy is a field into itself.

It is almost always a mistake to seek answers to Indian legal issues by making analogies to seemingly similar fields. General notions of civil rights law and public land law, for example, simply fail to resolve many questions relating to American Indian tribes and individuals. The extraordinary body of law and policy holds its own answers, which are often wholly unexpected to those unfamiliar with it.

¶57Final Report, supra, at 99 (footnotes omitted).

¶58Congress has plenary power over the Indian tribes, not under the treaty making power or the extradition clause, but under the Indian commerce clause. U.S.Const. art. I, § 8, cl. 3. Congress had endorsed a policy of terminating all reservations and integrating individual Indians into the general population. But, by 1957, Congress repudiated its termination policy in favor of strengthening tribal government.

¶59In 1959, the Supreme Court rejected territoriality10 as a basis for Indian law and invented to replace it the so-called “infringement test.” The still-applicable rule was formulated as follows: “Absent governing acts of Congress, the question [of jurisdiction] has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1959).

¶60Although the first phrase of the infringement test raised the possibility of federal preemption, early cases under Williams v. Lee concentrated on the infringement test, which was a sort of subject matter jurisdiction. That is, the court looked to the activity involved and made a case-by-case determination of its effect on tribal government. E. g., Organized Village of Kake v. Egan, 369 U.S. 60, 75-76, 82 S.Ct. 562, 570-571, 7 L.Ed.2d 573 (1962). The infringement test created a presumption against state power.11

*531It is instructive to place the immunity of Indian tribes from State jurisdiction in historical perspective. Since Williams v. Lee was handed down in 1958 [sic] ... the Court has never upheld any asserted State jurisdiction over Indians in Indian Country. Indeed, in its long history, the Supreme Court has never, absent express congressional authority, permitted any State to assume any jurisdiction whatsoever over Indians in Indian Country.

¶61Final Report, supra, at 119.

¶62Pursuant to § 47612 of the Indian Reorganization Act, 25 U.S.C. §§ 461-79 (1934), most tribes adopted constitutions, which were then ratified by the Secretary of the Interior. See U.S. Dep’t of Interior, Federal Indian Law 409 n.29 (Oceana Reprint 1906). The tribes thus entered into a new era of self-government with only the federal government as a superior power. Therefore, the infringement test applied to increasingly fewer cases. “The question [of inherent tribal sovereignty as a bar to state jurisdiction] is generally of little more than theoretical importance, however, since in almost all cases, federal treaties and statutes define the boundaries of federal and state jurisdiction.” McClanahan v. Arizona State Tax Comm’n, supra, 411 U.S. at 172 n.8, 93 S.Ct. at 1262 n.8, rev’g 14 Ariz.App. 452, 484 P.2d 221 (1971). The federal preemption part of the Williams v. Lee rule had come to overshadow the infringement test.

¶63In Indian affairs, there are two separate chains of authority. Final Report, supra, at 119. One chain consists of the federal and tribal governments. The other chain consists of state, county and local governments. The relationship of the state and the tribe is a question of fact in each case. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); McClanahan v. Arizona State Tax Comm’n, supra, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129. Although federal law, not state law, is preeminent in Indian country, the tribes are not federal instrumentalities for substantive law purposes. Moe v. Confederated Salish & Kootenai Tribes, supra,425 U.S. at 471, 96 S.Ct. at 1640; Mescalero Apache Tribe v. Jones, supra,411 U.S. at 154, 93 S.Ct. at 1273. If they were, their activities would be limited to federal objectives. Treaties between the federal government and tribes are not, however, grants of power by the United States to the tribes, but rather grants of power from the tribes to the United States. Final Report, supra, at 95. The tribes retain all powers not specifically limited. Therefore, not only can the *532United States delegate some of its authority to regulate the affairs of Indians to tribes, but also the tribes retain inherent sovereignty over matters that affect the internal and social relations of tribal life. United States v. Mazurie, supra,419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706; Final Report, supra, at 119.

¶64In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), the Supreme Court reaffirmed the principles of Williams v. Lee and MeClanahan. Although the justices reached different conclusions on imposition of a state tax on cigarette sales on the reservation, all four opinions in Confederated Tribes recognized federal preemption. In the majority opinion, Justice White stated: “[Tjribal sovereignty is dependent on and subordinate to only, the Federal Government, not the States.” Id.100 S.Ct. at 2081. Justice Brennan, dissenting in part, stated: “The prevalent mode of analysis is one of preemption. It takes as its starting point the exclusive power of the Federal Government to regulate Indian tribes and proceeds to bound state power where necessary to give vitality to the federal cbncerns at stake.” Id.100 S.Ct. at 2088. Justice Stewart, dissenting in part, reached his conclusion on the basis of effectuating federal policies. Id.100 S.Ct. at 2092-93.

¶65And, most significantly, Justice Rehnquist, who had written Mazurie and Moe, concurring and dissenting, wrote:

Since early in the last century, this Court has been struggling to develop a coherent doctrine by which to measure with some predictability the scope of Indian immunity from state taxation. In recent years, it appeared that such a doctrine was well on its way to being established. I write separately to underscore what I think the contours of that doctrine are because I am convinced that a well-defined body of principles is essential in order to end the need for case-by-case litigation which has plagued this area of the law for a number of years. That doctrine, I had thought, was at bottom a pre-emption analysis based on the principle that Indian immunities are dependent upon congressional intent, at least absent discriminatory state action prohibited by the Indian Commerce Clause. I see no need for this Court to balance the state and tribal interests in enacting particular forms of taxation in order to determine their validity. Absent discrimination, the question is only one of congressional intent. Either Congress intended to preempt the state taxing authority or it did not. Balancing of interests is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress.

¶66Id.100 S.Ct. at 2093 (footnote and citations omitted). Justice Rehnquist then proceeded to discuss the role of tribal sovereignty in federal preemption. The result was a two-step analysis. First, the Court reviews the “tradition of sovereignty” regarding the activity in question. Id.100 S.Ct. at 2094. Second, the Court undertakes “a review of the relevant treaties and statutes to determine whether this tradition of immunity had been altered by Congress.” Id.(footnote omitted). If there is a tradition of sovereignty, the Court will not infer a departure from that unless Congress has expressly abolished that sovereign power. Id., citing Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112-2113, 48 L.Ed.2d 710 (1976). Conversely, if there is no tradition of sovereignty, the Court will not recognize a sovereign power unless Congress has expressly conferred one. Id., citing Mescalero Apache Tribe v. Jones, supra,411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114.

¶67Applying those principles, then, our task should not be to analogize from extradition law in a vain attempt to make the federal-tribe-state relationship fit that mold.13 Nor *533should we balance the state’s interest against the tribe’s interest. Rather we should apply Justice Rehnquist’s two-step analysis to determine whether there is a tradition of tribal sovereignty which, unless expressly abolished by Congress, is retained by the tribe. This analysis is appropriate to an extradition problem, because an extradition treaty creates rights only as to the sovereigns and only one sovereign’s objection can affect the other sovereign’s jurisdiction over a fugitive. Here, the tribe as a sovereign objects to the state court’s jurisdiction over Davis.

¶68Initially, I would look at the “tradition of sovereignty” regarding tribal courts.14 The Eighth Circuit has long held that tribal courts are not federal creations or delegations of federal power, but rather are products of inherent tribal sovereignty. United States v. Elk, 561 F.2d 133, 135 (8th Cir. 1977); United States v. Walking Crow, 560 F.2d 386, 388 (8th Cir. 1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89, 94 (8th Cir. 1956). This conclusion was also reached in other circuits, e. g., Tom v. Sutton, 533 F.2d 1101, 1103 (9th Cir. 1976), and has been confirmed by the Supreme Court. United States v. Wheeler, 435 U.S. 313, 328 n.28, 98 S.Ct. 1079, 1089 n.28, 55 L.Ed.2d 303 (1978). Tribal courts have full jurisdiction over Indians on the reservation to the extent that such jurisdiction is not inconsistent with federal enactments.15Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 n.4 (9th Cir. 1976). Therefore, Indian tribes, including the Turtle Mountain Band; retain inherent sovereign power to establish court systems with jurisdiction over tribal members.16Compare Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208-09, 98 S.Ct. 1011, 1020-1021, 55 L.Ed.2d 209 (1978) (no tradition of criminal jurisdiction over non-Indians).

¶69Next I would look to see whether the tradition of sovereignty regarding Indian courts has been altered by Congress. Clearly, Congress has not abolished the Indian tribes’ sovereign power to establish court systems. On the contrary, federal statutes and rules promulgated thereunder support the authority of the tribal courts.17 Section 476 of the Indian Reorganization Act of 1934, 25 U.S.C. § 461et seq., recognized all existing rights of Indian tribes and also encouraged tribes to adopt constitutions and bylaws, which would then be approved by federal authorities. One tribal power recognized by courts is the authority of tribal courts to transfer those who violate state or federal laws to state or federal officials. See Quechan Tribe of Indians v. Rowe, supra,531 F.2d at 411 (hunting viola*534tion by non-Indians). Where the state and the tribe might otherwise have concurrent jurisdiction, the. state’s jurisdiction is totally preempted by federal policy and legislation, and the state cannot exercise jurisdiction unless Congress expressly grants it. See Fisher v. District Court, supra, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (adoption proceedings); Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977) (land use ordinances), citing Indian Reorganization Act, 25 U.S.C. § 461et seq., and Indian Civil Rights Act of 1968, 25 U.S.C. § 1301et seq.

¶70The Turtle Mountain Band adopted a Constitution and Bylaws in 1959, which were approved by the Commissioner of the Interior and the Assistant Secretary of the Interior. Pursuant to the authority vested in it by article IX of that Constitution, the Tribal Council enacted the Turtle Mountain Tribal Code of 1976, of which § 1.0710-.0713 governs arrest and extradition of reservation Indians to state authorities. There is no applicable federal statute conferring jurisdiction over these matters on the state.

¶71In summary, the Turtle Mountain Band has a tradition of sovereignty which includes the power to establish a court system with full jurisdiction over its members, except where abrogated by Congress. One function of the tribe’s court system is its control of the arrest and extradition of tribal members. This function has not been abrogated by Congress. On the contrary, this function is consistent with Congressional intent as shown in federal statutes implementing tribal self-government. Under these circumstances, there is a presumption against state jurisdiction, which could have been overcome only by a federal enactment explicitly granting jurisdiction to the state. There is no such enactment here. State jurisdiction over Indian offenders on the reservation is preempted by the legislation and policy of the federal government, with its exclusive power to regulate Indian affairs.

¶72The Ker-Frisbie doctrine that a court maintains personal jurisdiction over a defendant despite any illegality in the arrest is based on the rationale that a fugitive has no right of asylum. The Ker-Frisbie doctrine is, however, inapplicable to a state’s violation of the tribal extradition ordinance. The state cannot exercise jurisdiction over the Indian fugitive, not because of a violation of the Indian fugitive’s individual rights, but because of Congressional intent that the state recognize tribal sovereignty by complying with the tribal extradition ordinance. Where Congress has expressed its intention regarding the affairs of Indians, over which it has plenary authority, it is not for the courts to attempt to balance state interests against tribal interests. There is a federal policy of encouraging Indian self-government. State violation of tribal extradition ordinances impedes tribal self-government. Therefore, in my opinion, the state court should not be allowed to maintain jurisdiction over Davis until the Rolette County officials comply with the Turtle Mountain tribal extradition ordinance.