July 1, 2009

Lack of jurisdiction results in dismissal of felony drug charges

Boundary County Prosecutor Jack Douglas, citing lack of jurisdiction on sovereign tribal land, made motion to dismiss two felony and one misdemeanor drug counts brought by the state against Nicole Abraham, 24, Bonners Ferry.

“I can understand fully that the public is concerned about this situation,” Douglas said. “I am very concerned, as is all of law enforcement. However, it is fundamental law that without jurisdiction, one simply cannot prosecute a criminal offense. In this case, our hands are tied. Only the federal or tribal courts have jurisdiction.”

Douglas is working with the United States Attorney’s Office and the tribal court in an attempt to see charges re-filed.

On June 9, Abraham was charged with possession of cocaine with intent to distribute and possession of methadone, both felonies, and with possession of drug paraphernalia, a misdemeanor, after a tip led Sheriff’s deputies to her home in the Kootenai Tribal Mission, which is considered, by law, Indian Country.

In making the motion to dismiss, Douglas cited the sovereignty of the Kootenai Tribe of Idaho, recognized by the Treaty of Hellgate in 1855. While Idaho Code does give the state jurisdiction over some crimes occurring on tribal lands; controlled substance violations are not included.

Douglas said the proper jurisdiction for prosecution of the crimes for which she’s charged lie with the U.S. Attorney’s Office and the tribal court of the Kootenai Tribe, which has recently begun asserting its jurisdiction, and that his office is sending both agencies police reports and other information that may lead to the re-filing of charges.

At the time charges were brought, Abraham was on felony probation after being convicted May 27, 2008, for distribution of a controlled substance to a minor and delivery of a controlled substance when children were present and for supplying James Wylie, 16, methadone, oxycontin and marijuana, which led to his death in 2006. This resulted in a two to seven year prison sentence for Abraham, with jurisdiction retained. Following a six month stint in Cottonwood, Abraham was placed on two years’ supervised probation.

“It is our intention to proceed with that matter as we would any other alleged probation violations against any other defendant,” Douglas said. “I understand the frustrations of the community and will work hard to try to get a suitable sentence on the probation violation.”