HELENA — Federal prosecutors no longer have jurisdiction to try a state senator and Blackfeet tribal leader on drunken driving, reckless driving and obstruction charges after he pleaded guilty to the same crimes in tribal court, his attorney said in a new court filing.
Joe McKay, the attorney representing Browning Democrat and Blackfeet Tribal Business Council member Shannon Augare, asked a federal magistrate judge to dismiss the charges against Augare on Friday, just days before his federal trial is to begin Thursday.
A federal prosecutor on Monday called McKay's motion to dismiss "jurisdictional gymnastics" meant to avoid federal prosecution.
Augare is attempting to use a tribal court proceeding two weeks before his trial to manipulate and undercut the federal case, Assistant U.S. Attorney Ryan Weldon wrote.
U.S. Magistrate Judge Keith Strong had not made a ruling Monday.
It is the second time McKay has asked Strong to dismiss federal charges of DUI, reckless driving and obstruction of a peace officer against Augare, who is accused of fleeing a Glacier County sheriff's deputy who pulled him over on the Blackfeet reservation in May.
The U.S. attorney's office took the case earlier this year at the Blackfeet's chief prosecutor's request. Prosecutor Carl Pepion said at the time that he and the tribal judges serve at the pleasure of the "political authority on the reservation" — meaning Augare and the council — and they were placed in an "untenable situation" by having to decide whether to prosecute Augare.
Last month, Strong rejected McKay's argument that the tribe has exclusive jurisdiction over prosecuting victimless crimes on the reservation involving Indians and that the U.S. attorney's office could not bring a case against Augare.
After that ruling, Augare requested the appointment of a special tribal prosecutor, and he was arraigned, pleaded guilty and sentenced by Blackfeet Chief Judge Allie Edwards on the same charges that he faces in federal court.
Edwards' sentence includes no jail time and no fine if he buys $200 worth of Christmas toys for the tribe's Toys for Tots drive. Augare also apologized for his actions last week in a news conference.
McKay argues in his Friday court filing that because the matter has been dealt with according to the local law of the tribe, "that punishment divested the Federal Court of jurisdiction."
"It matters not that the Federal government initiated its prosecution first or that a tribal prosecutor may have referred the case to the Federal government," McKay wrote in his motion to dismiss. "The Tribe never surrendered its right to commence a prosecution for the same charge."
With McKay's motion, Augare is once again seeking to avoid having the federal government exert criminal authority over him, Weldon wrote.
But jurisdiction is established at the time criminal charges are filed, and a defendant can't engage in "jurisdictional gamesmanship" to escape criminal culpability, the prosecutor wrote.
"If ever there were an example of jurisdictional gamesmanship, it is this case," Weldon wrote.