GREAT FALLS — Two hundred years of tribal law will be upended if a federal judge allows the U.S. government to prosecute a Blackfeet Indian leader and state senator for a victimless crime that happened on the reservation, a Blackfeet attorney said Thursday.
Joe McKay, a tribal attorney representing Shannon Augare, asked U.S. Magistrate Judge Keith Strong to dismiss the misdemeanor charges brought by federal prosecutors against Augare.
The Blackfeet Tribal Business Council member and Democratic state senator from Browning is accused of driving drunk and fleeing a Glacier County sheriff's deputy during a May traffic stop on U.S. Highway 2 within the northwestern Montana reservation's boundaries.
The tribe has exclusive jurisdiction over victimless misdemeanor crimes involving Indians on the reservation, McKay argued in a hearing at U.S. District Court in Great Falls.
"That has been the law, your honor, for 200 years," McKay said, adding the U.S. attorney's decision to prosecute Augare is a "gross intrusion on Indian sovereignty."
Blackfeet chief prosecutor Carl Pepion referred the case to federal prosecutors after weeks of investigating whether to pursue charges against Augare in federal court.
The U.S. attorney's office charged Augare with drunken driving, reckless driving and obstruction of a peace officer. Prosecutors are pursuing the case under the federal Assimilated Crimes Act, which allows them to apply state laws to offenses committed in federal enclaves that are not specifically addressed in federal law.
Assistant U.S. Attorney Ryan Weldon said the law includes Indian reservations, and the federal government has joint jurisdiction with the tribal government over such misdemeanor crimes.
"This case was referred to us, and we are prosecuting it under that theory," Weldon said.
McKay said neither the Assimilated Crime Act nor the legislative history in creating that law ever addressed Indians. He rebuffed arguments that several previous cases allowed the law to be applied on reservations.
McKay also warned Strong that a ruling allowing Augare's prosecution will subject other Indians to the possibility of dual prosecution by federal and tribal courts for misdemeanor crimes, or at least create a rush for one court to establish jurisdiction over the other.
"What will be created here under that approach is a race to justice," McKay said.
The magistrate judge said he will make a ruling on the request to dismiss the charges by the end of next week.
In the meantime, he set a Nov. 7 trial date for Augare.