USA v. Blue Bird

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3:22-CR-30I14-RAL
Plaintiff,
OPINION AND ORDER DENYING
vs. MOTION TO DISMISS
DYLAN JOSIAH BLUE BIRD,
Defendant.
Defendant Dylan Blue Bird is charged with one count ofassaulting,resisting, and impeding
a federal officer under 18 U.S.C. §§111(a) and (h). Doc. I. Defendant has moved to dismiss the
indictment. Docs. 22 and 24, and for the reasons explained below,that motion is denied.
I. Background
On September 30, 2022, Rosebud Sioux Tribe Law Enforcecement Services (RSTLES)
Officer Jay Romero was on patrol within the exterior boundaries of the Rosebud Sioux Indian
Reservation. Doc.23 at 1. The Rosebud Sioux Tribe,a federally recognized Indian tribe, operates
RSTLES to provide policing on the Reservation. The United States, through the Department of
the Interior, Bureau of Indian Affairs, has contracted with the Tribe under the Indian Self-
Determination and Education Assistance Act of 1975 to provide federal funding for law
enforcement services on the Reservation through what is commonly known as a "638 contract."
While on patrol. Officer Romero observed a vehicle passing him in a no-pass zone at what
appeared to be a high rate ofspeed. Id at 1-2. Officer Romero activated his lights and attempted
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to initiate a traffic stop of the suspect, who was later identified as the Defendant. Id According
to Officer Romero, the vehicle sped away, and thus hegan a long high-speed chase through the
reservation -with the suspect's vehicle at times exceeding speeds of 100 miles per hour. Id at 2.
During the chase. Officer Romero says he observed metal and paper objects being thrown from
the vehicle. Id
Several other officers joined the chase, and the vehicle eventually led the officers outside
of the Reservation boundaries. Id At some point thereafter, the Defendant turned the vehicle
around and drove head on, without physical contact, into Officer Richard Kumley, another
RSTLES officer who had joined Officer Romero in pursuing the Defendant. Id Officer Kumley
apparently swerved his patrol car off the road to avoid the Defendant's vehicle. The officers later
deployed spikes and stopped the Defendant's vehicle. Id The Defendant was arrested for several
tribal offenses, aggravated assault, and cited for traffic violations. Id
II. Legal Standard
In reviewing a motion to dismiss a criminal indictment, this Court must "accept the
allegations stated in the indictment as true and ask whether they can form the basis ofthe charged
offense." United States v. Hansmeier. 988 F.3d 428,436(8th Cir. 2021)(citation omitted). "The
question of whether the facts alleged in an indictment adequately state an offense therefore turns
on the elements of that offense." Id
III. Discussion
The United States charged the Defendant with Assault on a Federal Officer under 18 U.S.C.
§ 111. In general, a person has committed an assault on a federal officer if they forcibly assault,
resist, oppose, impede, intimidate, or interfere with a federal officer who is engaged in the
performance of their official duties. 18 U.S.C. § 111(a). Courts in the Eighth Circuit have
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routinely held that a tribal police officer acting under a 638 contract with BIA is considered a
federal employee for the purposes of the assault on a federal officer statute. United States v.
Bettelvoun. 16 F.3d 850, 853-54(8th Cir. 1994); United States v. Janis.40 F. Supp. 3d 1133,1135
(D.S.D. 2014), affd. 810 F.3d 595(8th Cir. 2016); United States v. Young. 85 F.3d 334, 335 (8th
Cir. 1996). A tribal police officer is considered a federal officer "regardless of whether the officer
is enforcing a tribal, state, or federal law,so long as he is engaged in the performance ofhis official
duties rather than a personal frolic of his own." Janis. 40 F. Supp. at 1135.
"In a § 111 prosecution involving tribal officers ... the court must determine threshold
legal questions—^whether the tribal contract, and the manner in which BIA has designated
particular tribal officers to perform under that contract, qualify under 25 U.S.C. § 2804(a)."
Bettelvoun. 16 F.3d at 853. But it us up to the "jury to decide whether the government proved
beyond a reasonable doubt that the assault victims were in fact federal officers who were engaged
in the performance of their official duties." Id. Defendant does not dispute that the Tribe's 638
contract with BIA could qualify under 25 U.S.C. § 2804(a), at least when a tribal officer is
performing their official duties within the boundaries of the reservation. Defendant argues,
however, that a tribal officer may not be considered a federal officer pursuant to 25 U.S.C. §
2804(f)if they are enforcing tribal law ojfthe reservation. Doc. 23 at 7.
Defendant's argument is misplaced. Subsection(f)of§ 2804 provides in relevant part, that
"while acting under authority granted by the Secretary under subsection (a), a person who is not
otherwise a Federal employee shall be considered to be ... an employee ofthe Department ofthe
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Interior only for purposes of [the assault on a federal officer statute]." 25 U.S.C. § 2804(f)(1).
Under subsection (a), "[t]he Secretary may authorize a law enforcement officer of such an agency
to perform any activity the Secretary may authorize under section 2803 of this title." 25 U.S.C. §
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2804(a)(2). Section 2803 provides that the Secretary "may charge employees ofthe Bureau with
law enforcement responsibilities." 25 U.S.C. § 2803. Among other things, the Secretary may
authorize those employees to "make an arrest without a warrant for an offense committed in Indian
country if...the offense is committed in the presence ofthe employee [or] the offense is a felony
and the employee has probable cause to believe that the person to be arrested has committed, or is
committing, the felony." § 2803(3)(A).
Here, it appears that at the very least the Defendant committed a crime in the presence of
tribal law enforcement while still on the reservation—^he was evading Officer Romero and leading
tribal police, including Officer Kumley, on a high-speed chase. Nothing in Section 2803 strips a
tribal police officer of protection as a federal officer simply because a tribal member suspected of
committing a crime in Indian country was able to escape the reservation in a high-speed chase with
tribal officers trying to effectuate the arrest. Section 2803 after all does not say a tribal police
officer can only make an arrest in Indian country for an offense committed in Indian country.
Rather, under 25 U.S.C. § 2803, the Secretary may authorize tribal police to arrest a suspect for
criminal acts committed on the reservation, and consequently, such activity is within the purview
of25 U.S.C. 2804(a).
A closely analogous case is United States v. Farkash. 952 F. Supp. 696(D. Colo. 1996).
In Farkash. the Defendant had engaged in what was deemed harassing behavior at a National Park
Service (NFS) location toward his ex-girlfriend who was an NFS employee. Id at 697. When
Defendant returned to the NFS location, an NFS security guard ultimately denied Defendant access
to the NFS location and called a Federal Protective Service(FFS)Officer. Id at 697-98. The FFS
officer arrived after Defendant left NFS property to walk with his leashed dog toward a local
shopping mall. Id at 698. When the FFS officer confronted Defendant, they were off federal
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property. Id Defendant denied being at the NFS building, refused to provide identification, and
refused to obey the FPS officer's commands. Id The FPS officer reached out to grab Defendant's
arm. Defendant instructed his dog to bite the officer, the officer pulled himselfclose to Defendant,
both fell, and a scuffle ensued. Id Defendant was charged and convicted with assaulting a federal
officer. Defendant argued that off federal property, the FPS officer was a civilian requiring any
charge to be in state court. Id at 699 n.5. The court rejected the argument, reasoning:
Defendant argued at trial that [the FPS Officer] Sergeant Fero's status as a police
officer ceased when he left federal property. Defendant points to no case that so
holds, and this Court has found no such case. In the present matter. Sergeant Fero
received a call from the security guard at the NFS building. He responded and was
attempting to make contact with Defendant. Nothing presented at trial indicated
that Sergeant Fero's actions were inappropriate in trying to contact Defendant. This
Court finds that Sergeant Fero did not lose his status as a federal officer merely
because his duties required him to follow Defendant onto private property.
Id. at 699. Likewise, this Court has found no authority that an on-duty federal officer loses the
status of a federal officer upon leaving a federal enclave to pursue a person who engaged in
criminal conduct within that federal enclave.^Ten Evck v. United States. 463 F. Supp. 3d 969
(D.S.D.2020)(tribal officer assisting in off-reservation arrest and subsequent off-reservation high
speed chase was acting under color of federal law for Bivens claim purposes).
As is always the case in prosecutions for assault on a tribal police officer under 18 U.S.C.
§ 111, it remains for the jury to decide whether Officer Kumley was actually engaged in the
performance of those official duties. However, Blue Bird's motion to dismiss should be denied
because Officer Kumley leaving the reservation in a police chase that started on the reservation
does not justify dismissal here.
IV. Conclusion
For the reasons explained above, it is
ORDERED that Defendant's Motion to Dismiss, Docs. 22, 24, is denied.
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DATED this day of March, 2023.
BY THE COURT:
ROBERTO A. LANGl
CHIEF JUDGE
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